There is a new French law currently in preparation on the subject of (yet again) « Création et Internet ». I think you’ve already figured out the translation, but in case you haven’t, it is (yet again) about pitting « artistic creation » against « the Internet ». We’ve already gone through several cycles of this game and still haven’t made any progress on these issues. And yet, here we are, yet again, as if the opposition of art and Internet were somehow an inevitable slow motion head-on accident that only the State could possibly prevent.

Some background. The French have always prided themselves — theoretically at least — on making the effort to defend artistic integrity on the economic world stage, or at least in the case of cinema which included battling the forces of globalization in order to create a « cultural exception » where smaller, culturally important works of art may exist. Again, this is the theory. But an interesting theory nevertheless, because it was understood — thanks to the French appreciation of cinema as a medium, and a medium highly dependant on significant economic forces –, that art forms such as cinema required a mixed form of economy and cultural politics in order for the art form to survive as precisely that, a form of art, and not just a form of entertainment. A complex system was put into place in order to foster that delicate balance that would allow works of cinematic art to emerge — works that without this subtle balance would never be possible in a purely economic logic of the bottom-line. Similar efforts were made in other mediums such as dance, theatre, and music, which as well (and in contradistinction with the visual arts) allowed again for mixed economies and therefore a certain degree of political influence in promoting more diverse forms of expression than purely market-driven economies would have allowed. And beyond the theory, it must be said that some of these efforts have lead, indeed, to forms of expression that would have a far more difficult existence elsewhere.

Fast forward now to the current stage, where the logic of horizontal networks has disrupted not only forms of distribution, but has lead to the emergence of new forms of creation as well. Here again, one would expect that the French — the country of the Minitel — would lead the charge for a new form of mixed economics, in which new forms of distribution would evolve along with the new forms of expression, and in which the State would offer (gasp!) legal and political refuge for artistic expressions attempting to engage these new complex territories — all with the same political will shown previously for, for example, the 20th Century’s recorded arts. Unfortunately, well-fought political alliances are hard to break when their time has come, and the bling bling of cinema has given the French not only a certainly artistic prestige on the world stage (at least as they themselves see it), but also an easy political walk down the Cannes promenade. Everyone loves cinéma in France, and therefore when a politician speaks, they too speak in defense of cinéma as a form of art and not merely of form of entertainment. Subsequently, the political alliance between the audiovisual old guard of cinema, music, and (who else?) television with the french political machine has fallen consistantly on the wrong side of artistic expression when it comes to the emerging forms currently coalescing via the Internet, because these new forms without mistake question many of the comforts enjoyed by the old. And so this alliance has constructed an artificial dichotomy that they are trying to pass as the latest meme of resistance : « création » is under attack from thieves and pirates, and who better to protect the valiant artist, than the State.

The important thing to understand here is that the Internet is being construed, and will therefore be legislated as, nothing but a new form of artistic distribution, irrespective of its capacities as a new locus for artistic creation. This is where the cinéastes have totally lost touch, and despite their claims to the contrary, are nothing but a dying guild defending its territory along with its economic model that has become, to quote their own expression, « obsolescent ».

The problem is that the State is attempting to legislate an issue that would better be served through political action. Cinéma is where it is today not through punative political legislation, but through affirmative political action. And to the contrary: cinéma is not yet dead, and in fact, who the hell said that video-on-the-demand = the Internet? That sounds an awful lot like centralized media in a new form to me. No, I’m not talking here only about VOD — that latest definition, according to the Ministry of Culture, of the cutting edge of the Internet. If cinéma is render itself compatible, it is — yes — going to have to define its relationship to the mashup, to aggregation, to search/index/recontextualisation; in other words, to all the denaturalizing tendencies the new media forms have with respect to the sacrosanct purity of recorded media‘s integrity-as-an-untouchable-whole. To use a French expression, cinéma is going to have to stop acting like a Sainte ni touche (I’ll let you look it up). Music’s almost there. Television — thanks to YouTube — is going to be there faster than everyone else. And yes, cinéma will survive the mashup, and yes people will still watch films in their longer, old-skool format and love it. So we still have time to adapt artistically and economically to not only new models of distribution but new models of création and cultural appropriation, and to do so with some political flair. To legislate at this moment is to set into stone an old economic model that is already artistically showing its wear and tear.

Meanwhile, attempts (laudable and laughable) are occasionally made by various institutions (Right/Left, private/public) to fund new forms of emergent media, and find some new solutions to these problems in the current explosion of new media forms. Hey, there’s an idea: let’s see what new media itself can discover in these new forms. But the sheer scale of the discrepancies in funding between the old forms and the new can only be described at best as patronizing, and whatever the case a clear sign about which artistic mediums hold the most power in the upper echelons of power in a country where culture and public financing are intimately tied to one another. As if to make the point all the more clear, at the begining of this year a whole slew of non-profit associations working in new media saw their budgets simply axed. And while I didn’t shed a tear for their loss, given that I had always been skeptical of the relevance of the old funding model, we are still waiting for that more coherent plan of new media funding that we were promised in its place.

There are of course exceptions, but they are significant in their rarity. An inspired moment in the previous debates over digital rights, led to a short-lived vote in favour of a sort of subscription/royalty model for remunerating peer-to-peer shared works (this was quickly rescinded by the government, despite its passing the vote). I don’t know what I think about this idea, but it certainly was worth entertaining. And there was a brief moment in last year’s presidential elections when one candidate fell strongly on the side of free software, the creative commons, and so on. But we also know that — for many reasons, some of which were her own — she lost. And we also know that her opponent was profoundly opposed to any such ideas, and instead arguing for the « protection » of « artists » (uh, more like protecting labels) and their works. So we knew this battle was coming, and that given time the new government would come around to fullfilling its promise.

The fault for our current situation lies of course with the artists and cultural institutions who, unlike the previous generations, have yet to mobilize and stir up enough shit to get some respect, and reframe the debate into something more constructive. But it still does not excuse the current slate of « artistes » who are pounding yet another nail on to their own coffin by designating as their enemy the « Imperialism without limits of the Net », and seeking refuge yet again under the skirt of the State. To mistake the cultural transformations wrought via the Internet with the economic powers of globalization, is to conflate the power nexus of mass media conglomerates (the old battle) with the very public these artistes claim as their raison d’être. Artists looking for legal protections against their very own public as it binges voraciously with every click on their creations? Attempting to create a State lockdown of obscure unknown and inaccessable works, finally unearthed by the adoring hordes (the new battle), previously known as “fans”? Le monde à l’envers, indeed.

Anyway, I write about all this because my friend and colleague Anne Roquigny wrote to me in August to inform me of a new petition being formed by new media artists wishing to take a position against this artificial dichotomy pitting new against old. Their petition has apparently just gone on line today. While I gave her my full support, I decided against signing yet another petition and instead offered some analysis similar to what I’ve argued here. But their movement is nevertheless significant in that we have yet to hear from the new guard of artists in this debate, and if you want to learn more about their positions, you can start here: internetmonamour.

Now, with all that said, there is a future battle of digital (copy)rights that I find far more interesting than the present battle, net.artists or otherwise. Anyone who’s listened to me rant before should see this one coming. After music, after cinema, we will most definitely have the next battle of DRM on the doorsteps of electronic gaming, as well as in other (future) forms of expression that will require algorithmic means not only for their dissemination, but for engagement with the work itself.

A lot of this still has to do with the means. Music was the first to give in, because the files were so easy to distribute. Now cinema is in sights, with Blue Ray merely slowing down its inevitable transformation into something else (who knows?). But gaming has survived still to this day with an amazingly archaic distribution model (little pieces of plastic discs, distributed in bulk) which even as it moves to an all electronic distribution (Xbox Live Arcade, Playstation Network, Wiiware, iPhone App Store) will nevertheless survive far beyond this shift for one simple reason: platform incompatibility and the failure (for now) of the open-source movement to create a common standard (the equivalence of 24-frames-per-second) for algorithmically constructed audiovisual forms. Gaming is software, but it sure still feels like hardware. Platform wars, just like the Mac vs. PC wars, have so far made it difficult to abstract the content from its material conditions. Think of how Microsoft leverages Word, or ties Internet Explorer to Windows. This is software, but you’d never know it by the way its used in the real-world. Emulators of classic gaming platforms have given us somewhat of a glimpse of what a future beyond this pseudo-material tie-in world might look like, but not so the current emerging patch of games which are currently pushing the new platforms to their material limits, and perfectly in tune with the console cycles. The irony is this is an artistic medium profoundly appropriate to the new distribution means. So it will be very interesting to see how this evolves, not only in terms of pure distribution, but how new network forms modify the very nature of what is considered (playing) a game.

To move this argument back now to politics: this would seem an obvious battleground for the defense of new complex economics in the defense of more creative, experimental — i.e. artistically rich — forms of gaming, much as France did for cinéma. It’s a clear win-win for both the politicians, and the “créateurs”. But so far, France, and Europe for that matter, has yet to step up to the plate, despite the occasional political declaration that France will offer the gaming industry similar advantages and protections offered the cinéma industry — as soon, of course, as it figures out what the hell “artistic merit” means in the case of gaming. And there’s the rub, for politically, even critically, no one of any credibility has yet to define what an — ok, let’s go for it — “auteur” form of gaming might represent. And that’s actually a good thing (for the moment), because in the last round of debates on this issue, industry hacks were trying to appropriate the debate, arguing in favor of the “artistic merit” of racing simulators — i.e. because the cars were designed so “artistically” (= they’re damn pretty, right?). Even Miyamoto, who many here consider a genius, is still not the auteur-gaming Europeans would expect from the term. So there’s a lot of good cultural push-back from the cultural sector on this issue. But there are obvious examples out there — the whole Independant Gaming movement is a clear place to start –, only so far no one with any political credibility has stepped up to the plate, and I suspect that the gaming industry will be the last to pitch in on the effort, given that they currently run their production houses quite comfortably as if they were (merely) an industry, and the “product” were (merely) entertainment. But it’s also part of their cultural disconnect, why they are culturally irrelevant, and why Nintendo will continue to eat their lunch.