Interview with Michael Karanicolas, a human rights advocate specializing in IP rights

The internet and digital technologies have changed how art is created, distributed and consumed. In light of these ongoing changes, issues around copyright and the right to access free information are becoming ever more pertinent. The traditional idea of art as a form of ‘collective good’ is effectively embodied on the internet. The downside, however, is that artworks can be easily stolen in this space. So how does one go about successfully safeguarding the interests of both those that create the works of art as well as consumers?

To try and answer that question, .ART spoke to Michael Karanicolas, a human rights advocate whose work focuses on topics such as intellectual property rights, freedom of expression, the right to information, transparency and digital rights. Michael is the Wikimedia Fellow at Yale Law School, and he currently serves as the North American representative at the body for civil society organisations in ICANN.

Michael Karanicolas at UNESCO’s Support to Media in Jordan event.

Do you see a contradiction between the free flow of information (art, thoughts, ideas etc.) in society, art as a collective good and copyright?

I would say there is a tension, rather than a contradiction. All intellectual property rights serve an important purpose, but they need to be interpreted and applied in light of that purpose. So trademark, for example, was originally designed to promote consumer protection and to incentivize the creation of quality products. But in the domain name space this concept has morphed into an aggressive brand protection tool, which can be used to stymie competitors or suppress legitimate criticism. There the appropriate balance has been lost.

With copyright, the important thing is to find a balance between the public interest in accessibility and free access to creative works, and the need to reward creators and incentivize the creation of new works. It is easy to understand why copyright is necessary as an idea, but much more difficult to justify why it should apply for as long as it does.

The duration of intellectual property protection rights is the lifetime of the author, plus a period of seventy years. That is why, for example, in Russia, nobody can make a film based on a novel by Vladimir Nabokov. His descendants in the US still hold the copyright and don’t allow for that to happen. That’s not fair, is it?

I would be skeptical as to whether a term of that length actually does more to spur creation than allowing protections that end with the death of the artist, or even for just twenty or thirty years. The vast, vast majority of creative works lose their commercial value after just a few years anyway, so for nearly all cases the only thing the longer terms do is increase the likelihood that works will disappear or fail to be preserved. 

Picasso supposedly said: ‘Good artists copy. Great artists steal’. With regard to IP rights protection, is it easy to define whether the content was made into a completely new work or whether there was any copyright infringement?

This is difficult to answer. The distinctions fundamentally require an understanding of the creative process which can be specific to each medium. But I do feel that this question should be approached with lots of latitude for derivative works, in line with our common interest in the creation of new works of art, and considering that newer or emerging artists are often more likely to need protection than established players.

Artworks by Tom Forsythe, who used Barbie dolls in his photographs, caused controversy when a lawsuit was filed against him by toy manufacturer Mattel Inc. The company lost the case in 2004 when the U.S. court ruled that the images were indeed original artwork, ordering Mattel to pay Mr. Forsythe $1.8 million in legal fees.

In the age of the Internet and file sharing it has become much more difficult to prevent copyright infringement. File sharing is perceived, especially by the young generation, as a natural order of things. As a consumer, I want to have content for free. As a hard working artist, I want to be paid. Might there be a way to find a balance?

There’s certainly a generational aspect to diverging attitudes towards copyright infringement – and I would connect that at least in part to the constant expansion of copyright beyond its natural, defensible borders. I wouldn’t say that there is any lack of respect for art or the creative process among young people today, so much as there is a perceived disconnect between the realities of that process and the way the law can be applied. I understand that the ubiquity of copyright infringement must be an enormous frustration for artists and associated commercial actors, but it is also important that solutions take into account the broader commercial landscape, and the underlying common interest in an open and secure online space. 

That balance should be what legislators aim for, but unfortunately the debate has become quite polarised, and a number of solutions being proposed to crack down on copyright infringement are increasingly extreme, such as the EU’s latest copyright directive.

Сontemporary artist Jeff Koons made a sculpture based on a photograph by Art Rogers. Mr. Rogers took a photo of a couple sitting on a bench, holding eight puppies, and copyrighted the image. Rogers filed a lawsuit against Koons and won, arguing there was a potential market for the sculptures.

Can streaming services be a solution? Netflix and Google play music serve as an example that people are ready to pay for content if the price is not very high. Maybe we need similar streaming services for art?

It is an interesting model, but even they have a problem with fragmentation. It’s reasonable to expect people will pay for, say, Netflix, but if content is divided between a dozen or more different channels, each of which require their own subscription, it can drive people back to piracy because of the complexity and expense associated with finding the specific package of content that they want. I certainly think that the market is still developing though, and there are a lot of interesting solutions to explore.

Can digital technologies carve up new opportunities for copyright protection?

Digital technologies are always a double-edged sword. They create new marketing opportunities, and they create ways to subvert IP rules. Many of the folks pushing for restrictive legislation only see one side of this. However, it’s important not to be too reactionary in how digital technologies are regulated, particularly since the past decades have taught us that heavy-handed responses are unlikely to be effective anyway.

What are some of the biggest threats to freedom of expression and access to information online?

It is important to recognise that traditional threats to freedom of expression, like old-school government censorship, remain a major challenge in many parts of the world. However, one particularly novel emerging challenge is the role of intermediaries in facilitating online speech – most notably platforms like Facebook and YouTube. In contrast to the Internet’s decentralised reputation, the clustering of speech on these hubs creates choke-points that governments, and other malicious actors, can exploit to crack down on ideas they do not like. This poses a particular challenge to human rights defenders, since freedom of expression protections were not designed with this dynamic in mind. Governments “outsourcing” their content control function to the private sector, with none of the appropriate procedural checks and balances, is a huge concern.

Nissan Motors v. Nissan Computer was a high-profile court case over the use of the name Nissan and the domain nissan.com. Nissan Motors accused Nissan Computer of trademark dilution and cyber squatting.Since Nissan Computer was named after its owner, Uzi Nissan, the US court ruled in its favuor. Today, Nissan Motors uses the name nissanusa.com and Nissan Computer uses nissan.com.

What is your opinion on the trademark rules in the domain name system (DNS)? Big companies clearly have privileges. Apple Inc. has preferential access to domains completely unrelated to their actual business, like apple.art. So an artist, whose work is titled ‘Apple’, would not be able to buy this domain. Is this a problem?

This is certainly a problem, and one which particularly impacts new startups, or non-commercial or critical commentary. Had the present rules been around when Google was founded, the similarity of their name to trademarks for “goggles” might have led to them losing their domain.

A number of proposals to fix this issue have been put forward, but likely won’t be able to succeed because ICANN operates under a consensus-based mode of decision-making. Any proposal that weakens trademark protections in any way will be vehemently opposed by well-resourced representatives of the IP industry, creating a sort of “ratchet effect” where enforcement constantly grows more expansive. It’s a fundamental problem with ICANN, and not one that is easily remedied.

The debate around regulating the Internet is gaining momentum. In a recent interview with media theorist Geert Lovink we discussed online “safe zones” and the need to change the culture of internet consumption to a more “mindful” one. Do you think this is possible or is it totally utopian?

Ultimately the Internet is a looking glass which reflects all the ugliness that humans are capable of (as well as all of the beautiful things, of course). I do think that, as far as changing cultures goes, there is something to be said for taking a careful look at what kind of behavior social media incentivizes, and the way these websites are designed to promote engagement at all costs, even if that means drawing people to increasingly shocking or extreme content to keep them clicking. There will certainly need to be a reckoning for the impacts that these platforms have on the human psyche sooner or later, though I also think that many of the proposed regulatory approaches are likely to do more harm than good, particularly if they set a precedent that can be followed by repressive governments to silence their critics. People often forget the important role that internet access plays in more repressive parts of the world, allowing marginalized or at risk groups to express themselves in a way that wouldn’t have been possible a generation ago. These are complex problems which belie simple solutions.