19 May 2010

Why Downloaders And Remixers Aren't Quite The Same

By Tim Yap and Adrian Phoon
In an information society, is copyright a human right? Should a distinction be drawn between different types of copyright infringement? Adrian Phoon and Tim Yap enter the fray

Is copyright a human right? Sydney academic Michael Fraser thinks so. Fraser is Director of the Communications Law Centre at the University of Technology, Sydney. In a recent public seminar which explored the concept of copyright in a knowledge society, he explained why:

"We should reward creativity to encourage expression of new ideas. So we must make a better online market for intellectual property, for works of the mind. Furthermore it is right that we should do so. Copyright is a human right."

Fraser summoned Article 27 of the United Nations' Universal Declaration of Human Rights to support his case. Firstly, that "everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." The Declaration continues, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."

In terms of material interests, there's a great deal at stake here for Australia, as Fraser points out: "Australia must harness the information and communication technologies to build an information society and a knowledge economy. We must set the right conditions for quality content to flow to consumers. A secure market for content that responds to demand would attract creativity, investment and consumers."

In building his case to reform what he sees as a broken copyright market, Fraser pointed to the most significant drain on copyright revenue for content producers: illicit peer-to-peer traffic flowing through programs like BitTorrent, which enables illegal downloading of books, songs, software, movies, and TV shows. "One-third of Publishers Weekly 2009 top 15 best selling fiction books were available for illicit download," he noted. "Illegal music downloaders decrease CD purchasing by 12 per cent."

He also flagged the burgeoning issue of artistic remixing, or "mashing": the process whereby artists combine two or more pre-existing works into a new work. Mashers have become an increasingly potent source of copyright infringement angst. As Fraser sees it, mash-up artists fail to seek permission to use other artists' work because they "find it difficult or impossible to clear rights for music sampling from individual record companies. Most samplers do not clear the rights for mash-ups."

The solution, according to Fraser, is to establish a National Content Network, a "one-stop shop" where artists are obliged to register their works, along with terms for use — making the work free, not for sale, or anything in between.

In this central marketplace the rights to use content could be bought and sold, like goods to be bartered for and exchanged. It's a bold idea: an ambitious plan to mend a broken market by regulating the use of all copyrightable works, including videos, music, and literature.

But can the National Content Network really stop illicit downloading and artistic remixing? To start with, the popularity of illegal downloading has little to do with difficulties in obtaining permission. People download illegally because content is free and easily accessible, a recent online survey conducted by news.com.au found. They choose to acquire music without paying for it rather than to purchase it legally. And they prefer to download illegally the latest episodes of their favourite television shows as soon as these have gone to air abroad than wait weeks or months to watch the same episodes on free-to-air Australian television.

As for mashing, artists — for instance, filmmaker Nina Paley — believe they don't need permission to use others' work for remixing, let alone pay for it. For them it's not a question of whether copyright use is accessible, but whether they should have to pay in order to transform a source-work into something new.

Crucially, illegal downloading and remixing are very different activities. Downloading is a passive act involving no transformational use. Remixing, by contrast, is transformational, requiring artistic discernment and labour to create something new. The tendency to conflate these two acts as examples of copyright infringement reflects how absurdly vague our copyright laws are.

Copyright infringement claims are more prolific in some industries than in others. Music historian Glenn A Baker made this point recently when discussing copyright infringement cases in the music industry: "When a filmmaker [plagiarises], it can be seen as a tribute or a homage. But the music industry is much less forgiving."

Baker is surely right. It would be difficult to imagine a court ruling against a Quentin Tarantino film or a Pixar cartoon — films that famously incorporate references from other films with varying degrees of subtlety — in a copyright dispute. Yet courts rule against musicians in such disputes all the time.

Take, for instance, the recent court case against rock band Men at Work. The band was successfully accused of infringing copyright for the children's song "Kookaburra Sits In The Old Gum Tree" in a short flute riff from its song "Down Under". In this case, it was not the artist responsible for creating the work who was seeking damages, but the copyright owner. The composer of "Kookaburra", Marion Sinclair, died decades ago. The charge came from Larrikin Music, a publishing company that bought the rights to the nursery rhyme from Sinclair's estate in the 1990s, long after Men at Work wrote their song.

Where do these infringement claims stop? Taken to an extreme, would any artist influenced by another have to seek copyright permission under Michael Fraser's scheme — no matter how small the influence?

The reality of copyright infringement claims is that they tend to privilege the rights of a small elite of copyright owners over the rights of future artists, whose self-expression is arguably being impeded by copyright owners. And once again, we tend to praise the self-expressiveness of filmmakers more than musicians. When Quentin Tarantino made Inglourious Basterds — a movie whose very name borrows and imaginatively misspells the title of another film — critics duly praised its transformative use of earlier war movies. Tarantino characteristically avails himself of his source-works far more extensively than Men at Work did of "Kookaburra". We not only appreciate such indebtedness in Tarantino's films; we expect it.

No one is arguing that artists should be able to steal each other's works. But if we place limits on artistic appropriation, then we should also impose restrictions on copyright infringement claims. Copyright ownership is not an inalienable human right, as Michael Fraser argues, so much as one piece of a complex, multi-textured mosaic. Article 27 of the UN's Human Rights act would seem to bear this out; clause 2 specifically refers to the protected rights of the "author", not the copyright "owner".

Perhaps it comes down to the matter of fair use. If we are to have a serious discussion about reforming the system, we need to broaden our legal understanding of fair use to accommodate transformational works. At present, fair use (also known as fair dealing) only applies in fairly strict circumstances, such as when copyright expires; a "less than substantial part of the material" is appropriated; or "one of the specific exceptions to infringement applies", including research and study, news reporting or parody. Present copyright laws say nothing about transformational works.

And yet the idea that new works transform prior works is itself very old. In William Shakespeare's time, artists distinguished between "borrowing" (imitation) and "stealing" (plagiarism). Shakespeare himself borrowed freely and often. His Roman plays would not exist without the source-work of Plutarch's ancient historical biographies.

A National Content Network could undermine fair use of source-works, by privileging the copyright holder's entitlements over artists' self-expression. Indeed, through the ever-narrowing lens of copyright infringement, we may come to a time when all acts of artistic appropriation — allusion, imitation, and parody alike — are liable to be misrecognised as instances of plagiarism.

A corrective to our copyright infringement obsession comes from Russia. Not long ago, the author Boris Strugatsky was asked by media to comment on similarities between the science-fiction books he co-wrote with his brother and the recent film Avatar. Was this a case of plagiarism? Could Strugatsky sue Avatar director James Cameron? Strugatsky shrugged off the similarities. He chose not to care.

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Posted Thursday, May 20, 2010 - 09:03

Hey guys,

great article- there is one thing I would highlight:
"And they prefer to download illegally the latest episodes of their favourite television shows as soon as these have gone to air abroad than wait weeks or months to watch the same episodes on free-to-air Australian television."

I think on careful investigation you may find most people d/l TV shows not because they would have to wait weeks or months to see them (though arguably that is <i>a</i> reason), rather it is because the TV networks in Australia mess up our favourite shows- case in point, Flashpoint (on channel 9) in its first season was shown so out of order that the season finale was shown in the first 8 episodes, beyond that its timeslot was changed so often that many of us just trying to watch grew fed up and turned our TV sets off... There are countless other arguments for TV shows being available online, however my biggest gripe is that the networks don't look after their customers.

Outside of that, great thought-provoking article, well done!

Posted Thursday, May 20, 2010 - 10:37

Thanks for your comments Glenjamin!

In terms of the reasons why people choose to illegally download TV shows in particular (as opposed to movies and msuic), the survey link provided above in the article indicates that "I'll have to wait too long to see it on TV" was the MAIN reason (50.7%).

Admittedly, it's not clear whether "I've been stuffed around by the networks chopping and changing shows" was offered as a reason. Even if it was, I would speculate that the main reason above would continue to be the majority choice.

(Here's the survey link again: http://www.news.com.au/technology/download-culture/why-do-australians-

Posted Friday, May 21, 2010 - 08:01

Arguing over the rights and wrongs of copyright infringement is pointless. Economic value depends directly on scarcity. Noone is likley to pay for somthing which is ubiquitous (would you pay for the air you breathe -considering that even if you chose not to pay the air would still be there for the breathing?). We have now reached the point where the marginal cost of reproducing information is more or less zero, making digital copies of whatever you like as freely available as the air we breathe. Therefore the real value of such copies is effectively zero. There is no real market for such copies.

The "solution" to this situation being persued by the I.P. (intelectual property) loby is to try to create an artificial market by attempting to create either artificial scarcity or a sense of artificial scarcity. They use various means to try to accomplish this, ranging from appealing to our better natures ("I.P. is a human right") to legal threats aimed at, and prosecutions of, ordinary content consumers. This is bound to fail though, just because the scarcity so produced is artificial at best, and transperently illusory in most instances.

Furthermore the scarcity of information on which copyright depends is self-evidently a bad thing. After all, it now costs about the same to provide every human on the planet with acesss to all the world's informational and creative output as it costs to provide the same to a few paying customers. Given this preventing copying can only be considered a crime against humanity. We are effectively trying to use force (legal sanction) to deny the vast majority of humanity acess to knowledge and culture, where it would cost precely nothing to allow them acess to that information and culture.

Proponents of copyright etc. will argue that authors of I.P. need to be incentivised to create (i.e. they need to get paid). I can whole-heartedly agree with that point. But there must surely be a myriad of ways of achieving this which 1. have some prospect of working over the long term (if copies are effectively free, copyright is not going to get anyone paid), and 2. does not limit acess to knowledge and culture to a privileged few.

Posted Friday, May 21, 2010 - 11:12

Thanks for your comment Pan.Sapiens. I am glad you looked at the issue from an economic perspective, which is something sorely lacking in the current copyright debate around the world.

When copyright industries around the world talk about the size and value of their industries, some consumers may miss the point that such value is indeed created by a scarcity created by a legal construct (i.e. a monopoly), and not one created by normal economic/market conditions. At least some of that value is derived from producer surplus (aka 'super profits :) at the expense of consumer surplus.

If you can find a way to incentivise a creator without creating a monopoly, I'd be glad to hear it. At the moment, I haven't really seen many alternative proposals that ditch the monopoly idea.

Posted Saturday, May 22, 2010 - 13:01

"If you can find a way to incentivise a creator without creating a monopoly"

It's not really up to me, the consumer, to devise a workable buisness model for content creators. The best model to follow probably depends on the type of I.P. we are talking about.

Musicians (excepting mega-stars) generally make the bulk of their income through public performances and merchandising these days anyway, so the question is moot when appled to them. Interestingly this situation has arisen because the I.P. companies (RIAA/ARIA members etc) give musicians such a bad deal. See projucer/musician Steve Albini's "The Problem With Music" (google it) on this.

I'm actually more concerned with the dissemination of knowledge than with creative works. Some cases:

Accademic authors do not generally make a living through I.P.. They draw a salary from a university, private company, CSIRO, etc., and publish in order to get recognition. Accademic publishers, however, apply monopoly control over their work, limiting public access to scientific knowledge. As an asside, there are now some good projects which provide free online public access to research articles. Hopefully this will eventually become the norm.

Copyright can also be used in order to control and limit the spread of information, rather than to try to make $$$. Take as an example the U.K. govterment copyrights of government documents, creating problems for journalists etc.. Thankfully this looks likley to change under the new government, who have recognised the public harm created by copyrighting these documents.

When it comes other content (e.g. movies, computer programs) I'm not sure what the best model is. Maybe the movies industry can return to relying in (rapidly growing) cinema attendences rather than DVD sales? Maybe the software industry can make more of their their money out of the "services" side of the buisness, like so many open source software companies (not to mention MMORPG game publishers) do?

I guess the key virtue of living in a capitalist society is that people and companies are free to get out there and try out different buisness models to see what works. Whatever the best model turns out to be, it is clear that, although relying on a state-enforced artificial monopoly might be in the commercial interest of certain companies, creating such articficial monopolies does tremendous harm to society, and is contrary to the public interest.

Anyway, intersting article, certainly got me thinking about these issues, keep up the good work.