Why Downloaders And Remixers Aren't Quite The Same


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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