This work is copyright 2004, Susan Crean, and licensed under a
Creative Commons License.

March 31,2004

Dear Russell

Thank you for writing, and for grappling so imaginatively with what I had to say in The Laughing One. To be honest, I wasn't expecting anyone to do what you are doing...... bringing my critique of Emily Carr and her legacy into the current debate about intellectual property.

So let me start with your question about "the right thing to do in our time" -- and I like that "in our time" part especially. Figuring out protocol is not always a matter of consulting the law books or finding the right regulations, it is often a matter of judgment, perception, and, dare I say it, humility. When you are talking about aboriginal material, you cannot simply turn to European/Western IP regimes and declare native culture to be in the public domain. Not without putting yourself in the position of subjecting another society -- an oral culture with a different value system -- to your idea of what’s moral and right.

Here's what I know: that indigenous societies have concepts of ownership that are very different from European /Western property traditions. They include the ownership of things like dances, songs, carvings and crests and, moreover, often involve collective rather than individual ownership, by a family or community. This implies ownership that is perpetua as the right to use a song or a dance can be passed on from generation to generation just as names, titles and the right to use certain territories are. This way the integrity of the work is guaranteed (and with it the public record). Copyright goes about achieving protection of IP in a very different way, by setting a time limit after which all creative works fall into the public domain and can be used by everyone.

It has often seemed to me that the indigenous approach to owning cultural material is as difficult for non-natives to grasp as the European notion of owning land is for native peoples. There is a huge conflict of values and traditions that historically has been most visible in the justice system, but latterly in culture too. The issue of cultural appropriation was first raised in a major way about 10 years ago by indigenous writers (specifically, Lenore Keeshig Tobias and Daniel David Moses in the Writers’ Union). They talked about the protocols around the use of indigenous stories and images (when, by whom, in what circumstances) and remarked on the repeated unauthorized use of native material by non-natives.

The issue, as I understand it, is not just about making money without sharing the profits, it is about meaning and appropriate use. It is about integrity, and the right of creators to have some say in the way their creations are used. (In copyright law we call these moral rights.) Dipping into another culture and lifting stuff without paying heed to such essential matters is risky business. Many have made fools of themselves by indiscriminant pilfering. The California bikers discovered sporting Maori tattoo designs of a very explicit female nature, are one comic example; but human history and literature are full of stories of those who have died, or worse, lost their souls, or reputations by ignoring context.

When it comes to photographing poles, the only thing I can advise you to do is not presume; to ask. When I visited the abandoned villages on Haida Qwaii it was under the auspices of the Haida Nation, through their watchman program. Photography was permitted, but publication did not come with that permission. When later I wanted to reproduce a couple of shots as illustrations for The Laughing One, I sought permission from the Band council. When it wasn't forthcoming, I used other views that eliminated any reference to the old settlements. When I was visiting communities on the Skeena, I was with the carver and ‘Ksan instructor, Fred Diesing, and she was able to instruct me as to what was appropriate. I have never used the photographs I took during my visits with her to Gitanyow, Kispiox, Gitwanga and Kitsumkalem, except privately.

I do not feel constricted by this. There has always to be a give-and-take in the sharing and exchange between cultures. If not, abuse, distortion and ignorance proliferate. Part of the give-and-take in our time, in my view, involves the acknowledgment of that history by non-native Canadians, and this is the necessary prelude to building a different balance into contemporary relations between mainstream and aboriginal culture. The question is, of course, completely different when asked of contemporary artists working in mainstream Canadian culture where the rules are written and protocols known. In that context, “the right thing to do”, at least as a base point is probably “nothing that you wouldn’t want another artist do to you.”

You talk about the film maker's nightmare: trying to shoot live footage in a world full of mediated images and sounds. A case of yesterday's brands become today's clearance headache, the irony being, of course, that manufacturers/distributors normally pay for such exposure; now we discover that once the program become archive, the users get to pay. Who doesn't sympathize with the filmmaker?

I personally think the situation demands that we begin to draw distinctions between and among owners as well as between and among types of material. The obvious first distinction should be made between artistic expression and non-expressive material such as software. (My personal view is that the terms of copyright should reflect this difference.) Commercial imagery should also be treated differently, and in my opinion should be free (as in free of charge). Corporations have long used their trade mark rights to control the use others (especially artists) make of their imagery. Lacking moral rights they seek outright control and have no compunction about refusing access entirely as a means of getting it. The trouble is (as I often lament) that creators get tarred with the same brush as corporations. The second obvious distinction, therefore, should be between individual creators/owners and corporate/owners.

Keeping that distinction in mind, turn to the issue of Lucy Maud Montgomery. I find it stunning to see Lucy's heirs described by you as a "powerful voice for creators of the past", but I understand the point you are making. However, I think you exaggerate, and mistake what creators are saying. Perhaps more important (from your point of view), this puts you in bed with the sort of people you accuse us of sleeping with. You take the side of Sullivan Entertainment, the film company which made the Anne of Avonlea series and sold it worldwide. Lucy's heirs struck a deal while the material was still under copyright which gave them a percentage of the profits. Not a penny of which they have ever seen. I won't go into details. Suffice it to say Sullivan slapped the heirs with a libel suit when they made their complaint public, but the suit was thrown out of court earlier this year by an irate judge who made very disparaging comments about "creative accounting".

Several critics covering the case took the position (apparently Sullivan did too) that once material is in the public domain, no one should have to pay royalties. When I find myself paying huge fees to art galleries like the AGO and the National Gallery for images of paintings that are in the public domain, I get cranky. There seems to be a double standard operating for these same pressure artists to waive their exhibition right if they want to have their work purchased for the collection. (No, I am not kidding.) Having opposed the amendment in 1988 with righteous fury – getting the bill held up in the Senate for three months -- the museums have proceeded to simply ignore it. So my question is, in what way is the public interest served, and the public domain enriched, by organizing things so that Sullivan Entertainment can take Anne Shirley to the bank, while Lucy Maud’s children and grandchildren are cut out of their contracted share?

Here's what I'd like you to consider. Most freelance writers like me make very little money in their lifetimes; nonetheless, they manage to scrounge a living together by freelancing at a number of things, like teaching and editing. We typically have few assets beyond a library, a house and our copyrights. The house our heirs can keep as long as they like; they can pass it on and it could theoretically remain in the family for decades or generations, indefinitely. Ditto the library (in my case containing several hundred of my dad’s books, and books that belonged to grandparents). Unlike every other kind property, though, the main asset I have, the one which I devoted my life and ingenuity to, has a sunset clause attached to it, after which the exclusive right of the owner to exploit the property expires. The point here is that an individual has a very different stake in the term of copyright than a corporation does.(More on this later.)

The Writers' Union has taken a position in support of the changes to the Copyright Act (Bill C-36 and now Bill C-8) out of principle and because of the above. However, I can assure you writers spend very little time worrying about their heirs, much less thinking about the value of their copyrights 50 years from now. A bit like second guessing the lottery. Most of energy of the Writers' Union is spent on issues related to securing a better deal for writers working in the here and now: tax averaging, Status of the Artist legislation, etc. It is becoming clearer and clearer by the year that we have created cultural industries that are completely incapable of supporting the labour of creative artists despite the fact that they are built on, and cannot exist without the fruits of that labour. You talk of balance, and piracy? I am concerned about the imbalance that puts artists at the bottom of the income charts, and consigns far too many to the poorhouse at the end of their lives.

There is much more to say, but I'll leave this here for now.

Which side, do you suppose, Emily Carr would be on?