Deloitte experts on IP rights and art copyright in the context of the Internet

Interview with Anna Kostyra and Alina Davletshina, Managing partner and Senior Lawyer of Deloitte Legal CIS, respectively.

Artists today understand the vital role that online exposure plays in their future success. The good news is that they can easily upload artworks and share them with billions of people. The bad news, however, is that artworks can easily be stolen in this space. Every day someone’s photos or pictures are used without permission. .ART spoke to senior representatives of Deloitte Legal CIS – Anna Kostyra, Managing Partner and Alina Davletshina, Senior Lawyer – about how artists can protect their artworks on the web, why personal websites are so important and how digital twins can help the art market.

Some experts believe that the duration of copyright should be limited to the life of the author because it would help avoid various issues and lawsuits. What are your thoughts on this?

Yes, we’re familiar with the opinion that the duration of copyright is unreasonably long. As it stands, copyright is valid throughout the author’s life plus 70 years after their death. Right-holders have a monopoly on the use of the artist’s works and profit from this use. Just as one can have property rights on a specific piece of land, one can also see copyright as a property right. There’s arguably no difference whether you leave a physical or intellectual property to your heirs. In either scenario, one has the right to dispose of said property and derive income from it.

However, it is clear that the need to reduce the duration of copyright is primarily due to the increase in the number of works created, as well as the rapid development of information technologies.

Reducing the duration of copyright will entail a revision of the global intellectual property paradigm. It is also likely to include new tools catered to the protection of creative activity and its outputs.

Why do we need this revision and how would it look like in practice?

If we look back to when the concept of intellectual property first  appeared (basically, at the same time that the printing press was invented), the number of works that needed legal protection was substantially lower than it is today. At present, virtually everyone can create and publish art. Moreover, neural networks that were ‘trained’ to create artworks can literally ‘churn them out’ them every minute. Every work created needs protection, and most countries have laws in place that help provide legal protection for artworks regardless of their purpose and importance.

The exponential growth of the number of artworks being produced means that we have to be able to decide which ones need protection and how we go about protecting them. These decisions, along with the creation of novel tools to aid the process, need to be made by legislators on a national level.

What criteria helps distinguish original work from plagiarism?

There are a number of tools that can help establish the authenticity of an artwork. These tools may vary depending on the artwork’s age.

If we are dealing with artwork created by a deceased author, we would rely on the expertise of art historians (as well as technical and technological expertise). This helps with the authentication process.

If, however, we are dealing with the work of a contemporary author, the court takes the artist’s firsthand evidence into consideration, along with witness accounts. Exhibition materials and booklets are also considered in the process.

However, conducting a fine art appraisal of a contemporary artist’s work brings about a number of challenges. We are aware of a case where the court refused to recognize the authenticity of a work of art because the artist was a modern Western European author” with no precedent of representation in the region where the case took place. Thus, if works of a particular author are not widely represented in a certain country and there are very few experts, the expertise might not be recognized by the court as a valid evidence.

The proliferation of the web has made it easier to steal artworks. How can an artist protect his work on the Internet? What is the key difference between social networks and personal websites in this respect, and is one better than the other in terms of copyright protection?

The way intellectual property protection works depends on where the author puts their work; be it on their personal website or, let’s say, on Instagram.

In the latter, it is important to understand that social networks are regulated by terms and conditions. Virtually all T’s and C’s have a paragraph that says that when you post any content, by default everyone has the right to use it for non-commercial purposes (either by re-posting or creating derivative works). Often, people don’t pay attention or notice these terms, and are surprised to find that their work was used, for example, as a meme. They’re equally as surprised to find that this is, indeed, in line with the social network’s policies. Thus, we highly recommend that users study the terms and conditions prior to publishing their work.

The terms of use of an artwork posted on a personal website are established by the author himself (where it is not regulated by law), which is an undeniable advantage.

What is your advice to authors trying to promote themselves on the web?

When it comes to the fight against violations, first and foremost we advise them to identify themselves as the authors of the works every time they post something.

According to the law, the author of an artwork is the person whose name is on the work. It is therefore vital not to publish artworks anonymously.

If an infringement has nevertheless taken place, we recommend you gather all the evidence. It is especially important to notarize the website’s page where the suspect content was published. This will give you the opportunity to refer the even if the page was subsequently deleted. If it isn’t possible to come to an agreement with the person who used your content without permission, we recommend you contact their website administrator and request they remove the content directly.

We’re a domain provider for artists and art institutions. What do we need to include in our terms and conditions to help artists protect their IP rights?

You should outline the conditions in which the copyrighted content can be used and regulate all procedures related to resolving copyright infringement disputes. Some social networks play a role of quasi-courts” that let their administrators decide whether a violation took place and what consequences (including banning or deleting a page) will follow.

Including such provisions in the terms and conditions extends their effect to all users in the domain zone.

It should also be noted that according to the legislation of a number of countries, one is obliged to delete content posted without the copyright owner’s permission within 24 hours of the owner’s complaint.

Are there any new technological solutions for a more effective implementation of copyright and IP rights?

Yes – there are technical tools designed protect IP rights and record violations in the field, as well as to prove the origin of the object and trace the history of transactions. Blockchain, for example, is extremely useful for this. Replicating the original work as a Digital Twin is also a great idea. Special allow for you to compare the twin with the original and help you track various operations: purchase and sale transactions, insurance, transportation, customs clearance etc. All of the participants in the process can scan the tags and perform a physical check of the work. The data enters a distributed registry system, which lets you save information even if you lose a part of it.

     

Maria Efimova
Maria Efimova
is an orientalist who speaks Arabic and Hebrew. She spent a decade working with global media, shook hands with Benjamin Netanyahu and other political leaders. She is now taking a break from it all researching arts and philosophy.