One day in March, 2005, the phone rang in the studio of a loose collective of Winnipeg historians-turned-video-artists known as L'Atelier national du Manitoba. An employee at CKY, the Winnipeg CTV affiliate, was calling to report a cornucopia of potential artistic source material: Because CKY was moving to a new location, 1980s footage of the now-vanished Winnipeg Jets hockey team (some tapes no longer easily viewed because of changed technology) was destined for the dumpster. "Better you guys should take it and do something with it, otherwise it's just going to waste," the employee told them.
The artists hotfooted it over to CKY, officially signed in to the building and carried off the treasures. Then they fashioned a 60-minute "video-collage-opera," Death By Popcorn, that proposed that the Jets' corporate owners concocted a scheme to destroy the team's Manitoba fan base in order to move the Jets to a more lucrative U.S. location. (The film incorporated a real-life prank. In 1990, someone threw popcorn on the ice and stalled a crucial game, annoying fans.)
Death By Popcorn sold out every night it played at the Winnipeg Cinematheque last winter, which made it easily the most popular movie in the Cinematheque's 25-year history. BlackFlash photo-arts magazine covered the project, and L'Atelier members were interviewed by CBC and CTV.
There they made a fatal mistake. "We boasted we'd made the movie from CKY's garbage," says Matthew Rankin, which reminded everyone that the tapes had once been station property.
Although Death By Popcorn had been scheduled for Toronto's Harbourfront this summer, it has been withdrawn because of CTV's objections. "The issue is, they didn't receive written permission to use our material," explains Ken Peron, operations manager of CTV Winnipeg.
Welcome, once more, to the muddle where creativity and copyright collide. From Peron's point of view, he is defending his company's material from unauthorized use. For their part, the artists say they used material that they had been assured was doomed to the dumpster, recycling it to create a perspective on their community.
Peron asked the group to return the material. "They were work reels, they weren't fully usable, they were destroyed."
The artists say they were also asked to destroy their film (they have so far refused).
"It's appropriate," Rankin sighs. "Our whole movie was about how corporate interests removed the Jets from Winnipeg. Now, corporate imperatives may remove our movie."
Most artists would rather self-censor than risk a lawsuit or see their work destroyed. That's why they are campaigning strenuously against Canada's proposed copyright legislation, expected to be tabled this fall. Artists fear the new legislation could further restrict the creation and dissemination of contemporary art, especially conceptual art, film, video, sound art and collage.
On June 6, Appropriation Art, a coalition of arts professionals, issued an open letter warning against tightening copyright laws. It bore the signatures of more than 500 artists (including eight Governor-General's award winners). Two weeks later, the Canadian Museums Association and the Canadian Art Museum Directors' Organization also signed on. "Artists have had to destroy works for fear of infringing on copyright," says Sarah Joyce, one of Appropriation Art's founders. "We have a climate fraught with uncertainty . . . we think this is a crisis."
Some experts say the concern is premature, because no one knows what's in the new legislation. "It's a big jump to see what the issues are," says Glen Bloom, a copyright expert with Osler, Hoskin & Harcourt in Ottawa. "Many works of art are already infringements under existing law."
That's exactly what Toronto composer John Oswald discovered in 1989, when the Canadian Recording Industry Association (CRIA) destroyed hundreds of copies of his first "plunderphonics" project because he hadn't got permission from sources for his pop-music revisions.
In 2002, Winnipeg artists Diana Thorneycroft and Michael Boss pulled several pieces from Foul Play, their exhibition of images of murdered cartoon characters, after lawyers told them that, unlike U.S. law, Canadian copyright law does not recognize a parody exception. "I ended up exhibiting generic stuffed toys like Raggedy Andy, a cow and a snowman. I also tried to disguise Bert from Sesame Street, but my husband said that I just made him look like Frank Zappa," Thorneycroft says.
Despite her fears, she later sent six of the images that she had withdrawn in Winnipeg to a U.S. group show. Illegal Art opened in 2003 at CBGB's Gallery 313 in New York and then toured to Chicago, Boston and San Francisco. The Disney company looked into Thorneycroft's image of a Mickey Mouse doll hanging by the neck, but no lawsuit materialized. "I see what I did as an act of civil disobedience," Thorneycroft says.
Canadian artists find existing laws restrictive, and most assume that new legislation will only increase constraints -- especially if, as expected, it leads to Canada's ratification of 1996 World Intellectual Property Organization treaties protecting works in the digital environment. Canada took part in those WIPO talks, but unlike the U.S., never ratified. This annoys the entertainment industry, whose executives describe Canada as "a piracy haven."
So look for tougher penalties for those who break technical protection measures such as passwords and other encryption devices. (If I clip a paper copy of an article in the public domain and mail it to you, that's no problem; if I tell you how to get into a protected database to read it for yourself, under the anticipated law, we'll both be guilty of infringement, even if you don't download it, let alone quote it or use it to create collage art.)
For some time, websites have monitored the entertainment industry's federal lobbying activities. Gordon Duggan, Joyce's partner at Appropriation Art, comments, "We're at a point now where they [federal politicians]are drafting the legislation and they're consulting with the industries but not the artists."
If those arguing for greater openness were to be consulted, they say they would seek a parody exception. And they would argue against penalties for circumventing encryption. "If the U.S. and Canadian industry lobbyists have their way, all content will be digitized, and you can't get at it unless they want you to," Ottawa copyright lawyer Howard Knopf says.
L'Atelier national's Rankin explains why that situation would be so objectionable from an artist's point of view: "Britney Spears is everywhere in my world. I didn't invite her. But if I try to reinterpret her presence, which is what artists do with their worlds, then I've broken the law."