The Paradox of Limitless Creativity & Limited Protection
Written by: Saba Samanian, B.Comm, J.D
The curator's mind is always curious: thinking, creating, and weaving a narrative. Historically, she (or he) has been a keeper of cultural heritage, today a content specialist.
Their medium, such as an exhibition, is a result of knowledge and the distinct ability to tell a compelling story—one that transcends cultural barriers and unites inquisitive minds. It is a complex and detailed tale that can only be born and nurtured in the mind of a curator. The concept, which is capable of various interpretations, is presented to the audience with often factual information, sometimes personal anecdotes, and always include representations: art, artifacts, immersive experiences, etc. Audiences travel around the globe to witness the outcome of this process. However, my legally trained mind cannot help but wonder what is the core of the legal protections offered to curators in return for their efforts?
Canadian Copyright Law offers artists, writers, choreographers, and other creators protection to disseminate their creative works to the public. It is well-established law that this protection is based not on the idea itself, which cannot be protected, but rather on the fixation of that idea. The case, Canadian Admiral Corp v Rediffusion Inc., has taught us that there must be "something definite and ascertainable to protect.". While this concept has certainly not been free of considerable debate, artists can find comfort in the fact that putting their imaginative, complex, and beautiful ideas into tangible mediums opens the door for legal protection.
Yet, curators may find less comfort. The narrative told by them is intangible; it does not have a fixed form: the way the audience walks through the spaces of a museum or gallery to experience a wave of emotions, or the strategic placement of an artifact that accurately reflects its place in history. Thus, the work product of a curator simply cannot be reduced to an object; it is alive.
In Canada, "copyright" refers to the bundle of rights conferred by the Copyright Act (the Act) on the copyright owner and author of a work. The copyright owner has the sole right to produce or reproduce a work (or a substantial part of it) in any form and the exclusive right to exhibit the work in public. Copyright protects literary, artistic, dramatic, or musical works and other subject matter, including performer's performances, sound recordings, and communication signals. If a piece is unpublished, copyright includes the right to publish the work or any substantial part of it.
Furthermore, "copyright" applies to all original artistic works, such as paintings, drawings, maps, photographs, designs, musical compositions, sculptures, and plans, provided the conditions set out in the Act have been met, namely:
work must be original, in that it involves some intellectual effort or skill;
the author was at the date of making the work a citizen of, or a person ordinarily resident in, Canada.
While the work of a curator can reasonably meet these two conditions, it isn't easy to neatly fit their work product into one of the buckets mentioned above that qualifies the work for protection.
So, I cannot help but wonder: Are curators the forgotten child of our intellectual property regime? Do they live in the shadows, despite their undeniably meaningful contribution to propel art and culture forward?
Our legal system has contemplated such scenarios, albeit indirectly. Additionally, legislation is often being debated and, at times, updated. If you are a curator, artist, architect, or interested in knowing more about legal protection, contact us at the Curatorial Agency. We will be able to provide information and help you understand the nuances of the legal system when it comes to your work.
