Kimberly Baker

I first heard about Canada’s new Bill C-47 when I was printing off my artwork for this year’s graduation exhibition at the Emily Carr Institute. My artwork, the Transit Shelter Project, focuses on the current debates around the Vancouver 2010 Olympics and homelessness. As my artwork ran off the printer, the technician asked, “You know that these are illegal?” I replied that I had used different pantone colours and computer fonts so I wasn’t infringing upon any copyright laws.
“What I mean is VANOC has copyrighted the number 2010,” he added. I was completely floored and asked how anyone could copyright a number.
“I don’t know,” he retorted, “but they have. Didn’t you see the article in the front page of the Vancouver Sun that listed everything that you are not allowed to do? I suggest you look it up on the Internet.”
Sure enough, an investigation showed that Canada had passed Bill C-47, the Olympic and Paralympics Marks Act, legislation that provides the Vancouver Olympic organizers with extreme power over the symbols and language linked with the Olympics. I had been so careful designing these posters; it was too late to redo them in time for the show, so I decided to hang them, regardless. Quite honestly, I didn’t think anyone would notice my work hung amongst all the rest. Nevertheless, on the night of the grad show, crowds gathered in front of my poster.
The following week, the Vancouver Sun reviewed the work of four artists from the grad show, my poster being one of them. And though photos of each of my colleagues’ artwork appeared in the article, mine had been excluded. Had the Vancouver Sun been so intimidated about liability issues pertaining to any formation of “Vancouver 2010” that they wouldn’t print the image? I wondered if VANOC would actually sue the newspaper and I began to think about the larger issues at stake. What happens when the organizers of a cultural event such as the Olympics are given so much power that they overrule our civil liberties? In my opinion, Bill C-47 was a direct infringement of our freedom of expression under the Canadian Charter of Rights and Freedoms.
Throughout history, artists have played an important role, turning their art into a political tool that questions and confronts existing power structures. Social commentary and political protest in art reach back to the French Revolution and the birth of modernity when art became a moral force in society. Today, a substantial number of artists maintain the tradition of communicating the world’s social and political struggles, while the shifting social realities of our time have led to questions regarding the definition of art and about art’s place in the world and the artist’s role within it. The artist’s practice of accessing popular culture through the appropriation of media’s symbols and tools, including advertising, has become an important method of making statements about a wide range of contemporary political and social issues.
Canadian artists such as Carl Beam combine painting with found objects like newspaper articles and advertisements, as a way of incorporating the symbols of contemporary culture. In Vancouver, emerging artists, such as Sonny Assu, appropriate pop culture symbols and reconfigure them into political symbols. In this way, the relevant issues become visible to a broader, public audience, challenging the notions of political authority, as a result.
For a socio-political artist such as myself, Bill C-47 presents significant challenges. I decided that more in-depth research was required to see just how far this new bill extended. An online search of the Canadian Intellectual Property database revealed that many of the “Vancouver 2010”-type marks and logo designs had been registered in the name of VANOC, under Sec. 9(1) (n) (iii), and they constitute an “official” mark, which gives the registrant an even wider amount of protection than the usual trademark. During this process, I consulted with three lawyers, all specialists in copyright law, and the main issue appeared to be one of trademark infringement. Because “Vancouver 2010” was covered as a trademark, it didn’t matter whether I spelled out the number “2010” or converted in some other way; I was still exposing myself to a potential lawsuit.
I was advised that if money were no object, I might be able to defend a claim on the basis of freedom of expression under the Canadian Charter of Rights and Freedoms, as well as upon the more technical argument that I was not “using” the trademark in such terms as is commonly understood in the case law surrounding trademarks. Namely, I wasn’t selling any good or services and I was distributing my posters free of charge. I might also argue that “depreciation of goodwill” is wrongly equated with lack of respect shown to a trademark. But apart from being very costly, it would take years and the verdict was certain to be appealed if lost at trial. One lawyer suggested that on a more practical level, I might contact the president of VANOC directly and arrange a 10-minute, personal meeting to determine VANOC’s position and find out if it would take legal action to prevent my proposed distribution of the posters. I decided to follow the advice.
After weeks of leaving messages and being passed from person to person, I arranged an appointment with Colin Jarvis, manager of Commercial Rights Management. My intention was to understand the complexities of the issues surrounding the new Bill C-47 and to glean how it applied to me and other artists. When I met with Mr. Jarvis, he was very accommodating and open to answering all my questions. He assured me that VANOC’s position is that they are not interested in litigation with artists and that artists have a right to critique. He gave a number of examples where VANOC would consider that an artist was infringing upon its copyright. One such example is if an artist created a single mug that depicted the Olympics in some way. That would be fine, as it would be considered art. If the artist produced 1,000 mugs and sold a hundred a week for profit, however, that would be not OK, as it would be seen as “ambush marketing.”
When discussing my posters, Jarvis said that VANOC would not have a problem with them. However, if put them up on bill boards across the Downtown Eastside, there would be a problem because that action would be considered more in the light of my creating a “campaign,” as opposed to my displaying a work of art. So how do I know where the threshold is before I cross the boundary into creating allegedly illegal art?
It is important to remember that trends in public authority have been marked by the power structures in place at any given time throughout history. For example, the origin of copyright law can be traced back to when Gutenberg’s printing press hit the world stage around 1440. Before then, the church and the crown controlled knowledge. With the advent of the printing press, knowledge was diffused throughout communities. The result was increased literacy, much to the horror of the traditional knowledge holders, who felt threatened and consequently imposed the Licensing Act of 1662. The Act established new legislation in Britain that required books to be registered and a copy deposited to the Stationer’s Company. Prior to this date, the consequence of reproducing a literary work was that one could sometimes find an author’s or archivist’s inscription in a book, threatening a “book curse” if the manuscript was duplicated.
The first real copyright law came into effect in 1710. The Statue of Anne accorded exclusive rights to creators and authors, as well as determining exclusive rights to a fixed period of expiration of 28 years. In 1887, copyright protection amplified internationally with the Berne Convention, which continued to license intellectual property. A huge problem occurred in the 1730s when these registered copyrights began to expire and a great debate erupted over which rights, if any, were still valid. This created the “natural rights debate.” The Mansfield ruling established that publishers had the right to publish works for which they had already acquired the rights. These early rulings formed the basis of the distinctions made today between “original works of art” and “industrial design.” These laws also stipulated that if more than 100 pieces of any particular artwork were produced, it was no longer considered art, having moved into the realm of industrial design. As a consequence, “street art,” which refers to signs, posters and banners, is considered to be part of the commercial advertising sector and is susceptible to copyright restrictions.
Although VANOC may have no intention of shutting down artists who criticize the Olympics, artists who work in the area of appropriation art are being limited by Bill-C 47, and the placement of their art will be limited to the institutionalized gallery system. On the other hand, I don’t see VANOC as the villain in this scenario; rather, it is the larger problem of our legal system prioritizing corporatism over creativity. I have learned from this experience that copyright legislation being put in place today has not kept up with the changes that have occurred in the modern art world.
Artwork being produced today has completely changed since the 1700s when the Statue of Anne was first established. Art is not static. Art is a reflection of our contemporary culture and needs to be given space within the public sphere to do its job of creating a crucial forum for public discussion, which ultimately reflects our time and place in history.

More info at www.kimberlybaker.ca