This is Rhizome Today for February 10, 2015. This post will be taken down on February 12.
On the eve of its annual conference, the US-based College Art Association (CAA) published its "Code of Best Practices in Fair Use for the Visual Arts." The report is intended to encourage arts organizations and artists to rely more heavily on fair use rather than defaulting to always asking for permission, and its recommendations are a welcome contribution to the field, and sure to stir up controversy.
At Rhizome, we take a strong Fair Use stance in broad alignment with the recommendations in this report. This is unusual among arts organizations, who (even when they have a clear fair use argument) tend to default to asking permission, for reasons of professional courtesy as much as for reasons of legality. As a result, we sometimes receive complaints and cease-and-desist notices. Usually this takes the form of copyright licensing agencies pursuing remuneration for our use of their images, usually in the context of analytic writing about a particular artwork. This type of claim is usually spurious. Sometimes, we get criticisms from artists; we try to respond sensitively, quickly, and appropriately. We even received one memorable trademark infringement notice for an image that included, just visible in the deep background, that Burning ManTM.
Along these lines, you also may have noticed yesterday that we released an archive of VVORK—the popular contemporary art blog which ran from 2006-2012—captured using Colloq, Rhizome's protoype social media archiving tool. VVORK was known for aggregating documentation of art, ordering this documentation with minimal commentary to elaborate confluences and departures in style and point of view. Without rehashing the entire archival process—read the piece!—what Colloq allowed us to do was capture in full the video files which were integrated alongside still images.
So what we now have on the Rhizome server is a nearly complete capture of a blog that freely gathered images of artworks, exhibitions, and, from time to time, entire videos that were available online. Does this fall under fair use?
Here the CAA's new guidelines are both helpful, but not bold enough. Point five of the document concerns itself with "Online Access to Related Collections in Memory Institutions." What is a memory institution for CAA? Their definition: The "collections of libraries and archives (generally referred to here as 'memory institutions.')" We would argue that VVORK is itself a memory institution, as are many of the vernacular collections that are an essential part of digital culture. Therefore, its materials (we would argue) fall under this use case. Yet there is little indication in the eyes of CAA that a thing that looks like VVORK might be a "memory institution," until it enters a more formal archive such as Rhizome's.
This is a live question. In recent weeks, there has been a significant conversation around the risk in archives becoming centralized in a handful of organizations—as Ed Summers wrote on Medium—with regard to Archive.org:
I'd like to see more Web archiving classes in iSchools and computer science departments. I'd like to see improved and simplified tools for doing the work of Web archiving. Ideally I'd like to see more in house crawling and access of web archives, not less. I'd like to see more organizations like the Internet Archive that are not just technically able to do this work, but are also bold enough to collect what they think is important to save on the Web and make it available. If we can't do this together I think the Library of Alexandria metaphor will be all too literal.
We agree with this sentiment wholeheartedly. While Rhizome is quite clearly a formal "memory institution," responsible to a public, we don't want to be the only ones capturing important materials like VVORK; frankly, we don't have the capacity to know everything that is valuable, nor to care for it all. As such, we have been working to develop public tooks to enable more of digital culture to be captured by more users, while generally evangelizing for expansive archival practices.
But for this to be a reality, users need to feel confidence that their smaller-scale archives are subject to the same fair use guidelines as a memory institution like Rhizome. Until bodies like the CAA (which determine the standards and norms that protect intellectual production and archival work) more broadly define where memory rests, and how it can be captured, fair use will continue to be sticky, vague, and tending toward centralization.