Monday, March 31, 2008

Music Remix Sites and Electronic Music

Music remixing is something that I would really love to have more time for. I came across this interview with Divya Bhat of Jamglue on the Creative Commons blog recently and thought to make a post on this remixing site and some others that are around.

JamGlue, launched in December 2006. In establishing an online community inspired to create and share music, the site provides tools for remixing within a browser and a vast library of tracks to work with.

CCMixter is another music mashup site, developed by Creative Commons. It also offers easy to use tools for uploading and remixing music. A preliminary study has been conducted into the use and reuse of material on CC Mixter: Giorgos Cheliotis, Remix Culture: Creative Reuse and the Licensing of Digital Media in Online Communities (10 January 2008) <http://pml.wikidot.com/local--files/working-papers/Remix_Culture_Web_Version.pdf> at 31 March 2008. At the time the data was collected there were just under 8,000 full tracks uploaded to the site.

Splice is another excellent website for remixing music. Beta released in 2006, it now hosts 43336 users, 33825 remixable songs and 30670 free sounds.

All of these sites use creative commons licenses to enable users to mix and remix tracks freely without the need to pay the large amounts of money most major labels would demand for the right to use small amounts of music. The sites also have a social side to them with regular contests, discussion forms and other ways for artists to get together and collaborate.

And... if that is not enough to get you motivated you should read the tutorial on the history of electronic music on techno.org – Ishkur’s Guide to Electronic Music v2.5 (*** Language and Rudeness Warning ***) Despite the colourful language and tone, this provides an excellent history of the development of electronic instruments.

Links/Articles:

http://www.jamglue.com/

http://www/ccmixter.org

http://www.splicemusic.com/

http://techno.org/electronic-music-guide/

Creative Commons, Featured Commoners: Jamglue (2 November 2007) < <http://creativecommons.org/weblog/entry/7760> at 31 March 2008

Wikipedia, CCMixter (December 2007) <http://en.wikipedia.org/wiki/CcMixter> at 31 March 2008

Giorgos Cheliotis, Remix Culture: Creative Reuse and the Licensing of Digital Media in Online Communities (10 January 2008) <http://pml.wikidot.com/local--files/working-papers/Remix_Culture_Web_Version.pdf> at 31 March 2008



Clips for March

CIPPIC on space and format shifting in Canada:

This is an excellent clip put out by CIPPIC which illustrates the way Canadian copyright law relates to the everyday lives of Canadians and the potential ramifications of proposed changes which would see the law brought inline with the United States. More information is available from:

http://www.copyrightforcanadians.ca

http://www.onlinerights.ca


Wired Video Listening Post – Nine Inch Nails and Digital Music



Kevin Pereira of G4's "Attack of the Show" interviews Wired’s Eliot Van Buskrik and Phil Kay of Working for a Nuclear Free City to discuss the business model employed for the Nine Inch Nails album release and other current issues in the music industry.

Sunday, March 30, 2008

Warner taking the first step?

The last few weeks have been interesting as a number of record labels and other organisations seem to be stepping toward different models for music distribution.

SonyBMG were reported to be considering a subscription service of their own and Apple has also indicated a desire to start a subscription service. It has been suggested that these subscription services will differ from current ones such as Rhapsody and Napster(2) as those that discontinue their contracts will be entitled to keep some of the files they have downloaded. The SonyBMG proposal has attracted some criticism with many questioning the viability and logic of a label specific service. There are also questions about the growth of existing subscription services to contend with.

The most promising move has come from Warner Music who have announced their intention to set up a new company, affiliated with Warner but not owned by it, with the objective of developing a licensing model over the next few years. Jim Griffin will lead the effort and has been reported as saying that the desire is to create a new collection society for individual users to pay a monthly fee to their internet service provider with the pool of funds – he estimates to be around $20 billion a year – to be shared by the copyright holders of music.

Two different types of licensing schemes have been discussed in the past as potential solutions to file sharing. The EFF support a voluntary collective licensing scheme whereby artists and consumers both elect as to whether or not they want to pay a fee/license their music. The other scheme that has been discussed is often referred to as a blanket licensing scheme. This has typically been seen as requiring government intervention to force consumers/copyright holders to participate. It seemed initially that Warner were proposing something of a hybrid scheme where it might be voluntary for the copyright holders but compulsory for consumers with charges automatically included with their internet access fees. More recent reports however suggest that the hybrid licensing proposal may already be re-evaluated with Wired quoting Griffin as stating:

"We are in the earliest stages of what is a dynamic conversation about licensing opportunities in the global digital marketplace... It would be unfortunate if a creative and fruitful dialogue were sidetracked by a rush to judgment about what was simply my own illustrative example of one of many concepts I have in this space."


As I have noted in previous posts, music cannot or should not be completely free as there needs to be incentive to attract the best creators in order to produce quality music and social progress. Other factors to be considered include the status quo – this surely has to be better than what we have now; as well as the viability of other business models on an industry wide basis. While some of these may have been successful in isolated incidents there remain questions as to their suitability on a larger scale.

The devil, as always, will be in the detail and it will be interesting to watch the scheme develop - particularly the technology that is put in place and the treatment of both signed and independent artists and songwriters. The role of ISPs is also another area to be considered as such a scheme may potentially impact on their independence just as much as having to disclose users details for the purposes of lawsuits, as well as open them up to new forms of liability which they are not currently facing. There is obviously a long way to go yet with this proposal but it is certainly the first step in the right direction.

Articles:

Portfolio.com, Fee for All (27 March 2008)
<http://www.portfolio.com/news-markets/top-5/2008/03/27/Warners-New-Web-Guru> at 30 March 2008

TechDirt, Warner Music Latest To Jump On The Music Tax Bandwagon (28 March 2008) <http://www.techdirt.com/articles/20080328/012123680.shtml> at 30 March 2008

EFF Deeplinks, Monetizing File-Sharing: Collective Licensing Good, ISP Tax Bad (20 March 2008) <http://www.eff.org/deeplinks/2008/03/monetizing-file-sharing-collective-licensing-good-isp-tax-bad> at 30 March 2008

CNet News Blog, Jim Griffin says ISP music tax only one possibility (29 March 2008) <http://www.news.com/8301-10784_3-9905952-7.html> at 30 March 2008

ArsTechnica, Warner Music floats ISP surcharge idea for unlimited P2P music (28 March 2008) <http://arstechnica.com/news.ars/post/20080328-warner-music-floats-isp-surcharge-idea-for-unlimited-p2p-music.html> at 30 March 2008

ChicagoTribune, Music biz looks at giving fans all the songs they want in exchange for broadband access fee (20 March 2008) <http://leisureblogs.chicagotribune.com/turn_it_up/2008/03/the-latest-plan.html> at 27 March 2008

Wired, Music Industry Proposes a Piracy Surcharge on ISPs (13 March 2008) <http://www.wired.com/entertainment/music/news/2008/03/music_levy> at 18 March 2008

ArsTechnica, $5 a month for legal P2P could happen sooner than you think (13 March 2008) <http://arstechnica.com/news.ars/post/20080313-5-a-month-for-legal-p2p-could-happen-sooner-than-you-think.html> at 18 March 2008

TechDirt, RIAA Now Open To 'You Must Be A Criminal' Tax On ISP Fees (14 March 2008)
<http://www.techdirt.com/articles/20080313/114351536.shtml> at 18 March 2008

TechDirt, Why A Music Download Tax Is A Bad Idea (26 February 2008) <http://www.techdirt.com/articles/20080225/094249346.shtml> at 28 February 2008

The Register, Apple 'mulls all-you-can-eat music plan' (19 March 2008)
<http://www.theregister.co.uk/2008/03/19/apple_itunes_unlimited/> at 22 March 2008

ZeroPaid, Apple in Talks with Record Labels for unlimited iTunes (20 March 2008) <http://www.zeropaid.com/news/9338/Report%3A+Apple+in+Talks+with+Record+Labels+for+Unlimited+iTunes> at 22 March 2008

ZeroPaid, Sony BMG Developing Music Subscription Service (26 March 2008) <http://www.zeropaid.com/news/9354/Sony+BMG+Developing+Music+Subscription+Service> at 27 March 2008

Digital Music News, Sony BMG Ponders Subscription Launch, Details Emerging (26 March 2008) <http://www.digitalmusicnews.com/stories/032508sony> at 27 March 2008

TechDirt, Why Sony-BMG's Music Subscription Idea Won't Work (25 March 2008)
<http://www.techdirt.com/articles/20080325/110556644.shtml> at 27 March 2008

Digital Music News, Kitty Still Tame; Napster Subscriber Tally Stay Flat (6 February 2008) <http://www.digitalmusicnews.com/stories/020608napster> at 19 February 2008

Digital Music News, Struggling Subscription: Rhapsody Numbers Show Modest Growth (8 February 2008) <http://www.digitalmusicnews.com/stories/020708rnwk> at 19 February 2008

Climate Music Festival '08

A (carbon neutral) music festival will be held in three States in Australia in April with 100% of profits going to the Wilderness Society.

The dates are: Melbourne April 5th, Sydney April 6th and Brisbane April 12th (Brisbane is an All Ages event). Artists (not all in each State) include Junkie XL, Tommy Lee & DJ Aero, DJ T, Ian Carey, Richard Dinsdale, Klass, Supafly Inc, Mark Mendes, Eric Laville, Resin Dogs (sound system), Mobin Master, Bumbleez and The Scientists of Modern Music.

You can find more information on their MySpace page: http://www.myspace.com/climatefestival

" Raising the volume on climate change: Aiming to attract an audience of 20,000 nation wide, Climate-- will promote awareness through the use of music and education. Not only will patrons experience the talents of over 30 artists (both local, national and international), they will be exposed to the overwhelming environmental measures involved in running the event. This will include, on site recycling, educative outlets, organic food and merchandise stalls, real time monitoring of Climate’s-- carbon footprint plus much more."

Thursday, March 27, 2008

The Digital Landscape – when global is local

I have been reading with some interest about the new Limewire music store. Unfortunately it will only be available in America which is a shame because it will offer both individual downloads as well as packaged downloads whereby a listener can purchase a bulk amount of tracks per month for as little as 27 cents each. All tracks will be DRM free and from non-major label artists.

As someone located outside the United States (and Europe for that matter), my view of the digital landscape is scattered with these fabulous opportunities that I am simply not able to access. The frustrating thing is knowing that the technology is there, that these services would easily be able to service a wider area and that the most likely impediment is copyright law. The time it takes to license music across jurisdictions has undoubtedly been a major factor contributing to wide spread piracy. It wasn’t until near the end of 2005 that iTunes launched in Australia, over 18 months after it became available in the United States. Emusic was another of these – when I first inquired about subscribing to this site I was told that I couldn’t because of my location; I have since been able to subscribe (as have a total of 400,000 people who together have downloaded some 177 million tracks). Similarly, when the Napster(2) began allowing music to be streamed prior to purchase I eagerly went to their site to try it out but of course was refused permission because of my location.

I am no longer surprised when I encounter this type of geographical discrimination but I remain disappointed. In this case I am surely among friends - recent reports indicate that Limewire is installed on 30% of the Worlds computers.


Articles

Slyck, Limewire Opens Music Store (18 March 2008) <http://www.slyck.com/story1678_Limewire_Opens_Music_Store> at 27 March 2008

Digital Music News, LimeWire Store Starts Bearing Fruit; DRM-Free Catalog Appears (19 March 2008) <http://www.digitalmusicnews.com/stories/031808limewire> at 23 March 2008

ZeroPaid, Limewire Opens Music Store (20 March 2008) <http://www.zeropaid.com/news/9339/Limewire+Opens+Music+Store> at 22 March 2008

P2pBlog, Limewire launches music download store (16 March 2008) <http://www.p2p-blog.com/item-552.html> at 18 March 2008

Digital Music News, LimeWire Keeps Legit Flame Alive, Taps Redeye Content (22 February 2008) <http://www.digitalmusicnews.com/stories/022108limewire> at 25 February 2008

EFFector, LimeWire on 1 in 3 Desktops World-Wide (22 December 2007) <http://www.eff.org/deeplinks/2007/12/limewire-1-3-desktops-world-wide. at 20 January 2008

ZeroPaid, STUDY: 26% of Kids Still Using Limewire (1 February 2008) <http://www.zeropaid.com/news/9239/STUDY%3A+26%25+of+Kids+Still+Using+Limewire> at 4 February 2008

Digital Music News, Holiday Offensive Pushes eMusic Past 400,000 Mark (28 December 20070 <http://www.digitalmusicnews.com/stories/122807emusic> at 11 January 2008


ZDNet, iTunes Music Store comes to Australia (25 October 2005) <http://www.zdnet.com.au/ads/interstitial/interstitial.htm?redirect=/news/software/soa/iTunes-Music-Store-comes-to-Australia/0,130061733,139218798,00.htm> at 27 March 2008

Digital Music News, Napster Quietly Buries Free, Ad-Supported Initiative (10 September 2007) <http://www.digitalmusicnews.com/stories/091007napster> at 24 September 2007

Indulging in Culture 2

The third film I have watched this week is called The Soul of a Man. This was a film by Wim Wenders and also part of the Martin Scorsese Blues Film Collection. The Soul of a Man focuses on the lives of Skip James, Blind Willie Johnson and J.B. Lenoir.

I found the story of Skip James fascinating. Having gained the name Skip for being something of a Nomad, he won a talent competition for which the prize was a recording contract. He recorded 26 tracks in two days in 1931 and instead of electing to take a cash payment for his recording, signed a contract for a percentage of the sales. However the depression set in and radio emerged and the market for recorded music in the United States collapsed meaning that he never saw a cent from the sales of his records. He decided that he was unable to continue to be a musician and became a Baptist Minister (as his father had been) and essentially disappeared from the music industry altogether. In 1964 he was discovered in a hospital and came to perform at the Newport Folk Festival in front of 18,000 people. He was suffering from cancer and in 1968 Cream covered one of his songs which gave him the money to have an operation which extended his life by a few more years. In these later years he recorded and performed music again becoming a legend of the genre.

To me this story highlights (again) the need to provide artists with an industry in which they can secure a reasonable and reliable income. At the time of winning the talent competition Skip James was considered one of the best blues guitar and piano players around with a unique sound, lyrical and performance style. Yet the economic conditions of the time were unable to provide him with the means to support his art - one can only imagine the contribution he could have made over the three decades in between. In considering the current state of the industry we should reflect on the loss to society if we continue down the path of creating an environment where the best musicians are unable to succeed. Instead of rewarding talent and quality, the business model of the labels centres on commercial success. Those most able to reflect on society and to produce artistic and social progress are faced with an environment where they must not only compete against all other culture but must compete for a random and unreliable reward. This does not seem to me to be the incentive we need to ensure these artists continue to create.

I was interested to learn that at the time of the first recording of Skip James that the recording studio was housed in an old chair factory. As the commentator pointed out, gramophones were made by furniture companies at the time so it made sense that the recordings took place near by. Since this time of course there has been incredible convergence with many of the record labels later merging with equipment manufacturers. In the digital age however there has been some divergence again, with many of the modern device manufacturers being separate from the labels altogether. The introduction of digital distribution, particularly file sharing, also highlights the further separation of labels from the wider aspects of the music industry. Arguably this has been a significant part of their downfall. Many have reflected on what could have occurred had the labels sought to buy or even license the original Napster. The labels did attempt their own digital distribution (PressPlay) but this failed to capture the interests of consumers. It is only in recent weeks that it appears that they may be looking to enter this side of the industry again.

Another very interesting aspect to this film for me was the life of J.B. Lenoir. His story reflected the next generation of blues artists after Skip James. Lenoir was a fantastic guitar player and singer who unfortunately died following a car accident in the mid 1960s, just after he had begun writing political music. Until I saw this movie I personally tended to associate blues music with issues such as love/relationship problems and with slavery. Having heard some of the music of J.B. Lenoir, particularly the Vietnam Blues, I have been reminded that political music of any persuasion is possible in any genre. He wrote about civil rights issues, the treatment of women as well as wider political issues.

The term ‘political music’ is not something that can be defined accurately and am always aware of the artificial separation I make between this and emotive and dance music. Of course political music can make you dance, it can also make you feel emotions. These categories are useful but not absolute. Some music is purely about love; some music is purely designed to make you dance; some music is clearly designed to make you think; some music has another purpose altogether and some music crosses these lines and has a range of qualities. When it comes to studying political music/technology/law, I see a scale of sorts with some music being more closely aligned with music that makes you think and when I speak of creating an environment where this music can thrive, again I think of a scale of the regulatory factors more likely to enable this.


Wednesday, March 26, 2008

Indulging in Culture

Unfortunately I was unable to go to the East Coast Blues and Roots Festival in Byron Bay over Easter this year, so instead I have been viewing some DVDs.

The first of these was The Festival Express which is a rockumentary made of a festival held in Canada in 1970. A number of artists including Janis Joplin, the Buddy Guy Blues Band and Grateful Dead played in Toronto, Winnipeg and Calgary, travelling between the concerts together on a chartered train.

In addition to some excellent performances, this film discussed the way that the public had come to expect music concerts such as these to be free following Woodstock. For these concerts the ticket price was $16.00 per person causing concern to some members of the public. In Toronto there was a demonstration outside the venue leading to conflict between the public and the police. The artists ended up setting up a separate, free, concert at a park down the road in an attempt to quell the unrest. In Calgary the promoter punched out the Mayor after he insisted that the concert be made available to the public for free. Phil Lesh of the Grateful Dead commented:

The truth is, it can’t be free completely. Someone has to pay for something to make it happen. Even if you don’t pay money for tickets,.... you still gotta rent a truck, you gotta rent a generator; somebody’s got to pay for it.

This presented some interesting parallels to today’s environment of uncompensated file sharing. Whilst it is true that the distribution and to some extent the production costs of music have been reduced by digital technologies. Nonetheless there remains a need for artists to recoup (and make a reasonable profit) from their creations.

I read this article today from The Register and without commenting on the accuracy or sentiments expressed, note that there continues to be conflict regarding the concept of ownership of music and culture as a form of property. The record labels (and perhaps some artists), do not consider music to be public property; and at the same time some members of the public refuse to acknowledge that artists have any property entitlements to their creations. For me and others supporting a collective licensing regime, these are absolute positions. I consider there to be co-exisitng and competing property rights for both artists and the public to music. Indeed the conflict over file sharing is simply the modern articulation of an ongoing debate as to the extent and emphasis the law should place on these rights.


The second film I watched was Feel Like Going Home, a 2003 Martin Scorsese Production and part of the Blues Film Collection. This was an excellent film with artist Corey Harris exploring the history of blues in the United States and the links between these artists and African culture. In particular the comparison was made between the drumming and fife styles of blues musicians and similar patterns in Africa, despite the fact that possession of a drum by an African American was an offense punishable by death up until the civil war.

In African culture there are special musical story tellers and an inseparable connection between music and history. These artists are known as griots and Corey comments that while the country itself is relatively poor, the people are 'kings' because of the richness of their culture.

A particularly inspiring interview is presented between Corey and Salif Keita in Bamako, Mali. Salif states:

Everybody in Africa, especially in West Africa, we’re born inside music. You start singing the day you are born. You understand? And growing up like this, inside it, so it’s inside you. And you live with it.

In the later part of the film Corey visits the Sankore Mosque and Library built in the 15th Century and talks with an artist called Toumani Diabate. Toumani comes from 71 generations of Kora players with the skills being passed from father to son over the years. Corey recounts how he was told that when one of them dies “it is like a whole library is burned up.”

Another aspect of the film considers the life of the American musicologist Alan Lomax who travelled the world in the 20th Century recording and preserving the music of different cultures for future generations. In discussing the importance of his work and his appreciation of music, it is suggested that he “came to realise that it was as essential as human speech and just as precious.” Lomax is also quoted in reference to the progress of music and society in his lifetime, saying:

When the whole world is bored with automated mass distributed video music, our descendants will despise us for having thrown away the best of our culture.

Whilst I very much value the work of Alan Lomax (he died in 2002) I haven’t been able to accept this statement in its entirety. Prior to the introduction of digital technologies and the ability for remixing and reusing culture on a mass scale, perhaps it may have been possible to suggest that at the end of video music there would be an inevitable sense that the past had been lost. Today, however, I increasingly see the opportunity to relive this culture over and over again in differing forms.

Just as the West African musicians have passed down musical techniques and songs to their descendants, modern society now has more opportunity than ever before to preserve culture. In the course of continually building on and communicating culture over digital networks there will inevitably be changes and adaptations but there never need be loss. The ‘originals’ can survive and just as we can trace the lineage of people we will be able to trace the lineage of culture in a way that we are only beginning to understand. For me video music reflects the evolution of society from the industrial to the digital age. From here I see the prospects for culture to be enormous - provided we allow them to be realised.

Copyright law remains the single most obvious and destructive impediment to allowing these cultural conversations to take place in the future. By focusing on controlling creativity rather than rewarding it, our society is prevented from being kings and prevented from enjoying and even producing the richness of our culture. Imagining the impact copyright law would have on the culture of West Africans highlights to me what it is we are prevented from realising at the moment. In being exposed to how music is treated within their culture I have become acutely aware of what we might be missing.


(I have one more film to watch this week on Blues music so hopefully there will be a part two to this post).

Other Links:

Columbia University: Music and Dance of Africa http://www.columbia.edu/cu/lweb/indiv/africa/cuvl/music.html

Joanna Lott, Keepers of History (May 2002) <http://www.rps.psu.edu/0205/keepers.html> at 26 March 2006


Sunday, March 23, 2008

Free, not free.

I read an interesting article this week by Paul Resnikoff from Digital Music News where he discusses the best kept secrets of viral distribution. He notes the growing acceptance by artists that having an enthusiastic core group of fans can enable their music to reach much bigger audiences simply through personal recommendations. Viral marketing can be used in conjunction with a range of business models. One type of business model along these lines is called ‘1,000 True Fans’, developed by Kevin Kelly which considers how a relatively small group of dedicated fans can financially support an artist.

In discussing how artists can use low cost promotion and self distribution to become successful Resnikoff highlights an important point when he quotes Jeff Semones, president of M80:

"The quality of the music has to be there... You can expose a ton of people to a piece of crap, but it's still a piece of crap."

Regardless of the business model in place for artists, listeners must recognise a level of quality and identify with the music in someway to be successful. While what is considered 'quality' can differ from listener to listener, it is reasonable to suggest that the regulatory models in place (law, architecture, commerce and norms) can produce environments that are more or less conducive to quality.

Having an open market where artists compete on an even playing field is one example. In the current environment where the major labels pick and choose which artists will be promoted over others and where their business model depends on a high level of success to break even, there is arguably less opportunity for quality and much more emphasis on mass popularity.

Another important aspect to producing quality music is the remuneration of artists. While the True Fans concept can help to free artists from the constraints of major labels in terms of the content of their music, like so many of the models promoted as alternatives, it fails to provide the level of financial certainty for artists that is really needed. Just like the NineInchNails and RadioHead experiments recently, these models appear to work well in isolated circumstances but problems are foreseeable if a significant sector of the industry were to attempt to engage them. Fans may be true in the short term but I question how many times this would happen and whether it would be sustainable as a long term, industry wide solution.

While it is fair to say that the production and distribution costs of music have dropped dramatically, one of the benefits yet to be truly realised is the fair remuneration of a wider sector of artists. At present, although perhaps not quite to the same extent as in the past, there remains a handful of artists recouping large amounts of money from the music industry with the vast majority seeing little or no money at all for their efforts. Most established artists are well aware of the pitfalls of large advances but new artists remain susceptible. Like any industry interested in attracting the best possible participants, the music industry needs to adapt to the digital environment to ensure that the quality of music is not only retained but improved on from here.

The purpose of copyright law has always been to promote progress (to use the USA terms but equally applicable across copyright regimes). The term progress in itself connotes a movement or change that is better from the present. So the law seeks to promote progress by providing incentives. In the digital environment however, resources are no longer artificially scarce which changes the equation altogether. Instead of recouping funds by limiting access, a new model is required which recoups funds by maximising access. A collective licensing scheme, in taking advantage of low cost distribution and viral marketing, is the most obvious vehicle for providing a basis of financial incentives for artists in this environment. In suggesting it to be merely a basis, I recognise the ability for the income of artists to be supplemented by other things such as CD sales, merchandising, concerts etc. I also believe that it could be developed in a form that whilst not remunerating every single creation for an extended period of time, would enable a broader and more equal distribution of money to artists.

The trick with art is of course, unlike mass produced commodities (yes there is a difference), that some musical works can be produced in very short periods of time but others can take a lot longer with many variations and drafts before the final work is realised. Many attempts may not succeed at all, with few that do on a very large scale; just as there are those songs that have a long life and those that fade quickly from our memories. This is particularly the case for music with a social utility beyond emotions or dancing. Where there is a more complex purpose, the lyrical and musical content can take longer to develop. To produce progress in society, we must encourage the production of this music by providing an environment where artists willing to take up the challenge have a reasonable opportunity to support themselves from their creations. As I have stated before I believe that emotive and dance music will survive in any environment but music with a more complex purpose can only survive and for that matter, thrive, in certain environments.

As the open source software movement years ago adopted the notion of ‘free not free’ so too must society and industry with respect to music. This phrase refers to freedom of things like movement and speech, but not free as in no cost. At the moment file sharers take advantage of the freeness of the architecture without paying for the privilege, or at least not in a direct or sustainable way. At the same time the music industry seeks to prevent the freedom of music and demand unreasonable amounts of money for what they consider to be worthy of our attention. Neither of these approaches have the ability to produce wide spread and long term quality and therefore progress. The very best model to achieve this is clearly that of collective licensing.

Articles

Digital Music News, The Best Kept Secrets Behind Viral Distribution... (20 March 2008) <http://www.digitalmusicnews.com/stories/031908youtube> at 23 March 2008

The Technium, 1,000 True Fans (4 March 2008) <http://www.kk.org/thetechnium/archives/2008/03/1000_true_fans.php> at 23 March 2008

TorrentFreak, MTV Uses P2P Data for Playlist Selection (14 March 2008) <http://torrentfreak.com/mtv-uses-p2p-data-080314/> at 18 March 2008

Digital Music News, Songkick Starts Measuring Band Popularity Online (17 March 2008) <http://www.digitalmusicnews.com/stories/031608songkick> at 18 March 2008

Digital Music News, Does Chatter Matter? University Researchers Say Yes (12 February 2008) <http://www.digitalmusicnews.com/stories/021108chatter> at 19 February 2008

TechDirt, Another Musician Who Recognizes The Concept Of True Fans (18 March 2008) <http://www.techdirt.com/articles/20080311/183620503.shtml> at 22 March 2008


TechDirt, Does The Math On 1,000 True Fans Add Up? (14 March 2008) <http://www.techdirt.com/articles/20080312/095631518.shtml> at 18 March 2008

TechDirt, The Path To Success As A Content Creator: Building Up Your True Fans (5 March 2008) <http://www.techdirt.com/articles/20080304/174129438.shtml> at 7 March 2008

Digital Media Wire, Music Community Slicethepie Releasing First Fan-Financed Album (6 March 2008) <http://www.dmwmedia.com/news/2008/03/06/music-community-slicethepie-releasing-first-fan-financed-album> at 18 March 2008

Digital Music News, Fan-Funded Space Starts to Grow, Slicethepie Rumbles (28 February 2008) <http://www.digitalmusicnews.com/stories/022708fan> at 29 February 2008


Wired, Jill Sobule Goes to Fans for Album Financing (5 March 2008) <http://blog.wired.com/music/2008/03/jill-sobule-goe.html> at 6 March 2008

TechDirt, What Kind Of Progress Are We Promoting? (13 March 2008)
<http://www.techdirt.com/articles/20080313/031128532.shtml> at 18 March 2008

Wednesday, March 19, 2008

Losing Culture

We don’t probably realise it but we actually lose culture all the time. Sometimes this is inconsequential – it might be something incidental to our lives, it might easily be replaced or we change and other things become more important. Maybe there is also a youth element to it as well – when you are younger culture tends to play a more predominant role in your life whereas when you get older it becomes less of a focal point and more of a side pleasure.

Often the sense of loss that is felt is minimal but sometimes the impact is much greater. There have been two times in my life when I have really understood this feeling.

The first was a few years back when I was studying my law degree. I was fairly isolated at the time having fallen out of step in course selection with the students that I started with and living in a regional environment I had no other contact with people in my profession. I also had a young child which brings its own social limitations. I became very attached to an afternoon radio program. The program was run by two very silly comedians and it became imbedded in my life – in the end it was almost like the day revolved around getting to the start of the program. I looked forward to it and even sat in my car on occasion instead of arriving at lectures on time to be sure that I caught some of it. If you knew the comedians I was referring to you might question the emphasis I placed on them but at the time it became the thing that lifted me out of my environment and gave me a chance to see the world from a different perspective.

For reasons unknown to me, they left the radio station on what I understand to be less than great terms. I think I recall them celebrating their final show from the point of view that they were finally free. They did move on to another radio station but it was based in Sydney and did not broadcast to my area.

Their last show, as you can imagine, was viewed by me from a much different perspective. I was actually at uni that afternoon and sat in my car and cried when it finished (which at the time was very unusual for me). A few days later I was still upset about it and I visited the website for their new station and emailed them urging them to come back, saying “regional Australia needs you”. Their new radio station wrote back a brief message to the effect that their show could be streamed over the internet but I had a very old computer and dial up access at the time. And so the loss was real and in a way I went into mourning. For a while I didn’t listen to the radio at all – I didn’t like the new presenters or their choice of music.

I have been thinking about those events a lot lately because of Lawrence Lessig’s departure from the free culture movement. I understand why he has moved on and I understand what he is looking at now is important and as he says, the right thing for him. But, just with the comedians, I see this from a different perspective. For the past five years I have been doing everything I can to be part of this field. Lessig has been, for me (as for many others), something of a shining light. I live in the same environment described above and aside from reading articles on the Internet I have very little opportunity to engage with other people in my field. Lessig was always there, he was always visible and he was always relevant.

Since he announced his movement away from this area of law I have felt as I did with the loss of the radio show but to a much greater degree. I tell myself not to go to his weblog because each time I do I am confronted with the reality that he’s not there anymore – well he is, he’s just not himself, well he is, he’s just not who I want him to be. I have thought about the people that booed Bob Dylan when he went from folk music to electric guitar. They had lost their culture in sort of the same way – for Dylan and Lessig it is a natural progression – but for others it is a failure to meet expectations. My sentiments are a little like that but not so much anger as sadness. I tell myself that its out of proportion because of the environment I am in but still that doesn’t make it better. I haven’t yet removed him from my bookmarks but more and more I can see the day when that will happen. I thought about who I might replace him with but for now its too painful to consider that its possible.

I know the world will go on, that the free culture movement will continue and that if I am patient and work hard maybe one day I might find it in real space rather than just in cyberspace. But until then I have a cyberspace with a hole in it. I have lost my culture, or at least a really big part of it.

For now, there's nothing left to do but thank him for being there while he was and to take it as a lesson on how it feels to lose culture.


ISP Liability

The past few weeks have provided quite a deal of turmoil for ISPs in many countries with a number of developments designed to reduce copyright infringement on their networks.

  • I have already posted on the many negative consequences of a three strikes policy. This was first raised a few months back in France, before gaining a significant amount of media attention in the UK. There have been reports that Australia, and now Japan will also seriously consider this as an option.
  • In Ireland four major labels have commenced a lawsuit against the ISP Ericom for failing to take steps to filter copyright material. Reports indicate that the ISP was not notified of any specific breaches but that the action is based on its general awareness that copyright infringement is occurring. Interestingly enough this case would not be possible in the United States or Australia given the safe harbour provisions introduced through the DMCA and associated negotiations.
  • In the United States content companies are not targeting ISPs through litigation, but have successfully pressured legislators for the introduction of filtering by universities and the offering of streaming subscriptions by tying the requirements to a funding Bill.
  • A recent court decision in Israel held that ISPs were required to block access to a BitTorrent search engine even though it was actually operated from the Netherlands. This follows on from the decision last year which saw The Pirate Bay blocked for a short time in Sweden and which in the end actually resulted in an increase in traffic to the site.
  • In Sweden there also appear to be moves to introduce the legal framework allowing ISPs to disclose the identities of file sharers more easily.

It seems Italy is the only country at the moment taking an opposing view, with a recent court decision determining that ISPs do not have to disclose users identities. This follows a decision last month which held that EU countries do not have to disclose the details of account holders unless there are provisions within that countries domestic law requiring such disclosures.

There are a number of reasons why ISPs should not be forced to, or even voluntarily, offer to filter their networks, to pass on infringement warnings and cut off users, or be required to disclose users identities.

These include the notion that independent communications carriers should not be liable for the activities of their users - telephone companies are not held liable for the activities of phone users, cars can be used as escape vehicles in serious crimes and yet car manufacturers are not held liable – and why? Because we recognise the difference between providing a product and being the person that uses it to commit a crime. We also recognise the importance of encouraging progress in these industries and the social benefits that arise from not legislating every possible restriction in exchange for the potential that might arise in an open, competitive environment.

There are also serious questions about the standards of the investigations, the ability for users to challenge decisions, the privatisation of censorship and many other issues. However it is when one really starts to analyse this debate that the most compelling reason surfaces.

It is too simplistic to say that these organisations are seeking to protect their copyrights. What they are actually seeking to protect is their business model and their control over an industry that no longer needs or desires it. All of this litigation and all of the associated costs are simply designed to artificially extend the life of a few very powerful corporations.

Free speech is not just a term, it is a fundamental quality and it is being jeapordised, around the world, as we speak, based on the poorest justification possible: money. And yet even with the implementation of all or any of these policies there will be enourmous opportunity to avoid detection and to continue to share copyright material. So the justification then becomes: some money, or maybe even, not much money.

Money is indeed the root of all evil - I know that for a fact.


Articles
The Register, Japanese ISPs agree three strikes-style anti piracy regime (17 March 2008) <http://www.theregister.co.uk/2008/03/17/japan_three_strikes/> at 19 March 2008

TechDirt, Japanese ISPs The Latest To Bow To Pressure From The Entertainment Industry (17 March 2008) <http://www.techdirt.com/articles/20080316/154404551.shtml> at 19 March 2008

ZeroPaid, Japanese ISPs to Ban File-Sharers from the Internet (18 March 2008) <http://www.zeropaid.com/news/9333/Japanese+ISPs+to+Ban+File-Sharers+from+the+Internet> at 18 March 2008

Daily Yomiuri Online/Associated Press, Winny copiers to be cut off from Internet (15 March 2008) <http://www.yomiuri.co.jp/dy/national/20080315TDY01305.htm> at 18 March 2008

ireland.com, Eircom taken to court over illegal music downloads (10 March 2008) <http://www.ireland.com/newspaper/breaking/2008/0310/breaking61.htm> at 19 March 2008

ZeroPaid, Record Labels Sue Irish ISP, Demand Music Piracy Filtering (12 March 2008) <http://www.zeropaid.com/news/9323/Record+Labels+Sue+Irish+ISP%2C+Demand+Music+Piracy+Filtering> at 13 March 2008

YNetNews, Internet providers ordered to block file sharing website (3 June 2008) <http://www.ynetnews.com/articles/0,7340,L-3515275,00.html> at 10 March 2008

TechDirt, IFPI's New Strategy: Sue ISPs For Not Stopping File Sharing (11 March 2008) <http://www.techdirt.com/articles/20080310/173104496.shtml> at 13 March 2008

ArsTechnica, "Year of filters" turning into year of lawsuits against ISPs (11 March 2008) <http://arstechnica.com/news.ars/post/20080311-year-of-filters-turning-into-year-of-lawsuits-against-isps.html> at 18 March 2008

ArsTechnica, IFPI gets Israeli ISPs to block Hebrew peer-to-peer site (7 March 2008) <http://arstechnica.com/news.ars/post/20080307-ifpi-shoots-self-in-foot-again-blocks-another-p2p-site.html> at 19 March 2008

Los Angeles Times, Piracy provision aims at universities (16 March 2008) <http://www.latimes.com/technology/la-na-piracy16mar16,1,3958660.story> at 18 March 2008

ZeroPaid, US Congress Pass Anti-Campus File Sharing Requirements (12 February 2008) <http://www.zeropaid.com/news/9259/US+Congress+Passes+Anti-Campus+File-sharing+Requirements> at 13 February 2008

TechDirt, House Approves Bill To Require Universities To Offer Students Music Services Politics (8 February 2008) <http://www.techdirt.com/articles/20080207/232136204.shtml> at 8 February 2008

ArsTechnica, Tennessee legislation would turn schools into copyright cops (25 February 2008) <http://arstechnica.com/news.ars/post/20080225-tennessee-legislation-would-turn-schools-into-copyright-cops.html> at 28 February 2008

ZeroPaid, Tennessee Proposes Own Crackdown On College Campus File Sharing (28 February 2008) <http://www.zeropaid.com/news/9293/Tennessee+Proposes+Own+Crackdown+on+College+Campus+File-Sharing> at 29 February 2008

Digital Music News, Pirate Bay Gets Shorted In Denmark, ISP Blocks Access (6 February 2008) <http://www.digitalmusicnews.com/stories/020508pirate> at 19 February 2008

ZeroPaid, Danish ISP Decides to Fight Order to Block The Pirate Bay (15 February 2008) <http://www.zeropaid.com/news/9270/Danish+ISP+Decides+to+Fight+Order+to+Block+The+Pirate+Bay>m at 17 February 2008

The Local, Sweden to clamp down on file sharing (14 March 2008) <http://www.thelocal.se/10474/20080314/> at 18 March 2008

ArsTechnica, Pirate Party rejects Swedish plan to snitch on file-sharers (16 March 2008) <http://arstechnica.com/news.ars/post/20080316-pirate-party-rejects-swedish-plan-to-snitch-on-filesharers.html> at 18 March 2008

ZeroPaid, From Privacy to Censorship - Activists Have Their Hands Full (15 March 2008) <http://www.zeropaid.com/news/9328/From+Privacy+to+Censorship+-+Activists+Have+Their+Hands+Full> at 18 March 2008

TechDirt, A Modest Proposal: ISPs Should Stop Any Activity That Hurts A Business Model (31 January 2008) <http://www.techdirt.com/articles/20080125/09042572.shtml> at 4 February 2008

Billboard.biz, Italian File-Sharers Let Off The Hook (17 March 2008) <http://www.billboard.biz/bbbiz/content_display/industry/e3i4b1f1f7f2a01d2b3c04136a266ca9813> at 19 March 2008

EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008)Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008

Monday, March 17, 2008

Better Living Through Circuitry:

I watched an excellent film last night which prompted me to write up a review for your reading pleasure...

Better Living Through Circuitry: A Digital Odyssey into the Electronic Dance Underground


This is a 1999 documentary about the electronic dance community. It features artists such as The Crystal Method, Moby, DJ Spooky and many more. Through interviews between the artists and those that attend raves the viewer is given a detailed understanding of the ethos and perspective of those within the subculture.

(Much to the horror of copyright law) this culture is produced from a combination of sampling and composition. The use of pre-existing material, whether that be visual or auditory, is evident in every aspect of the form. This includes the production of graphics parodying known brand names and designs, kids toys, the videos that accompany the music as well as, of course, the music itself.

DJ Spooky is an artist (and college graduate - philosophy and French literature) who discusses the way artists communicate with their audience:

DJ/audience relationship is a symbiosis; it’s a biological structure... You are sending out information and pulses that the crowd, in a way, then sends back to you. You are ...a focal point of the energy of these gathered people...

I love the idea of continuous sampling..., remixing everything as you go. So writing is just like that. Just like you’re probably going to do edits and cut in twice when you edit this tape. You do that with language, even when you speak you are always picking and choosing what words you are using... [how] you are going to describe something. So everything is a mix. I’m mainly a writer. To me every DJ is a writer. You’re using the urban landscape as your text so everything is writing.

Sampling is like ancestor worship in a way. You’re reconfiguring again the records that somehow stuck in your memory and ...you want to take those records and do your own take on your own memory.

He then briefly considers his relationship with music and philosophy:

Philosophy is about ideas, music is about ideas too; it’s a way of trying to bring the two together. To me the DJ, when you’re spinning, is like a stream of consciousness.

Another of the artists interviewed is Electric Sky Cloud who perform purely instrumental music. In discussing their art they state:

Our language-less philosophy is so that music is not defined by barriers. Language can create barriers. It creates what you are supposed to think about during this song: (eg.) ‘Ohhh baby, baby, I love you sooo’.

Scanner discusses the rise of the do-it-yourself compositional ethos of the subculture and how this has been enabled by technology:

When digital technology became cheaper and accessible, it enabled all of us to be able to go out and for... not many pounds or dollars, to be able to buy a tiny little studio, set up and start recording yourself. And techno music in a sense, when it really kicked off maybe seven or eight years ago, really empowered people again. It empowered a lot of young kids to be able to put their own records out and ignore the major labels and think, ‘we can press 2000 white labels and sell them in a week’.

Heather Heart suggests that the major record labels can’t grasp the art form because it is in a constant state of change.

Another point made in this film is the way that technology frees music from the limits of human ability. Scanner notes that it would not be physically possible to play many of the drum beats and rolls used in techno songs. Similarly, Joe Natoli of Atomic Babies refers to his training as a jazz guitarists and states that traditional forms of composition do not inspire him because of the limitations presented by only having 12 chords to work with. He suggests that the limitless possibilities of techno offer greater opportunities for expression.

Scanner, an artist who uses samples from the airwaves around him in live performances (mobile phones etc), also reflects on the relationship between his art and the notions of private and public spaces, and surveillance. Other artists also discuss how samplers have opened up music to limitless forms.

Another contributor to the film is Genesis P-orridge who’s comments are scattered throughout the film. This artist suggests that digital technologies have created the enthusiasm for taking back the means of production and techno offers a way to take back the means of perception. The artist also talks about how digital technology has emancipated sound making it more malleable.

BT is another artist who is interviewed and he discusses the relationship between techno and indigenous music. He refers to the use of continual stimuli in small frequencies and how this effects brain states. He refers to this as photic and auditory driving. He states that techno is the means by which youth culture in the west have adopted the archaic and ancient methods for achieving states of altered consciousness and celebrating community. The music, dance and environment of raves changes perceptions in time, enables people to transcend the physical and connect on a higher level.

Chris Decker (an Australian) of the Medicine Drum also talks about Earth Dance: The Global Dance Party for Planetary Peace which began in 1996. Twenty one locations around the world conducted simultaneous dance parties which included the playing of one song at the exact same time. The track contained a prayer evoking peace for the plant, for Tibet and for people. The Tibetan organisations in every country were involved in the event with the organisers being granted an audience with the Dalai Lama. The Dalai Lama commented on the open mindedness and courage of youth to seek and produce change.

This event has continued since then and in 2008 will be held in 60 countries. Last year it was held in three locations in Australia with funds raised going to support international and local charities, illustrating again, the connection between music, politics and social justice.

There were many other worthy aspects to this film such as discussions relating to the use of drugs, police persecution, the emergence of a new spirituality, the desire to express hope rather than despair, the subculture as a lifestyle rather than an occasional event, the equal/dignified treatment of women and others.

The relationship between this form of music and copyright law provides the clearest illustration of the discrepancies between social norms and law. Whilst not covered in this film (see Good Copy Bad Copy) it is evident in every second of the footage. When researching the adoption of Creative Commons licenses for music a year or so ago, one of the things that struck me was, what seemed to me at the time to be an over representation of this form of music (it was just what appeared to be occurring, I do not have specific statistical information). This film highlights why that might be the case. It shows, in context rather than in isolated songs, why sampling is such an important aspect of the sub culture. The natural extrapolation then, for someone like me, is how the law impedes the speech of these artists.

I really enjoyed this film and highly recommend it to anyone interested in the art form.


Private Copying of Films

Further to my previous post on the review of the private copying exceptions conducted by the Australian Attorney General’s Department earlier this year, I will now briefly discuss s110AA of the Copyright Act 1968 (Cth) which relates to films.

The review considered whether the current operation of s110AA provides an appropriate balance between the rights of copyright owners and others, what might be the options for achieving better policy outcomes and the costs and benefits of these. Comments were then sought on the circumstances which might warrant the law to permit additional copying, the kinds and sources of films likely to be affected, the frequency with which TPMs might be applied to such material, whether proposed changes would impact on the normal market exploitation of the material and whether these changes would enhance the achievement of the governments policy objectives. The review then asked whether the law should be narrowed to reduce private copying rights, again looking at issues such as normal market exploitation and government policy objectives including the achievement of fair and balanced copyright law. The review also briefly sought consideration as to whether the law should be amended to include films embodied in computer programs.

I suggested that the current operation of s110AA provides undue protection to copyright owners and therefore fails to achieve the objectives of allowing consumers to legitimately enjoy purchased goods and creates inequity given that citizens in similar jurisdictions have much wider rights than Australians.

I stated that the best option is to redraft the section to allow for fewer limitations on private copying for non commercial use. Similar provisions have been drafted with respect music under s109A which illustrates that wider copying rights still meet Australia’s obligations under the TRIPS Agreement.

In considering the costs and benefits of such a change I noted firstly, the creation of incentives for consumers to purchase legitimate material.

There has been a significant change in perception of the film industry since the advent of digital technology with many consumers perceiving the lobbying for undue limitations on private use as being unfair and greedy, furthering a lack of respect and a sense of justification in failing to obtain legitimate goods. The provision of reasonable private copying rights would restore some of the lost confidence created by the restrictions currently in place. There would be no additional cost to the industry as such measures would serve to increase the favourability of purchasing legitimate goods.

Secondly the benefits would be to consumers on an individual level and thirdly to society as a whole.

On an individual level consumers would be entitled to make back up copies, to have copies on more than one device and to make copies in the same format. This would reflect what is, in some cases already current practice and in many others, is very much the desired practice.

The increase usability and availability of culture serves society as a whole by producing an informed citizenship, educated and aware of issues, exposed to a diverse range of material and thus ultimately producing progress within society.

In discussing what changes should be made, I suggested that all private copying for non commercial purposes should be permitted, with no restriction on the number of copies or format of the copies that can be made.

Primarily the kinds of films would include entertainment and documentary style features. The sources would be most commonly professional productions although some amateur productions may also be reproduced.

There is a reasonably high chance that films of an entertainment nature would be the subject of anti-copying measures. Arguably this is less likely for other forms of film such as documentaries, art house and amateur film.

This inquiry did not specifically concern the application of TPMs however I felt it necessary to state that the current provisions as well as any changes could only ever be enjoyed in real terms if the government changed the law with respect to TPMs. Similarly, legislative provisions are needed to ensure that contractual provisions cannot be used to override any offers of fair dealing made under copyright legislation.

...There would be no loss in economic incentives to create and distribute films, no risk of an increase in piracy, nor any negative impact on emerging digital markets.

I therefore argued that there should be no increase in the limitations on the private copying of films.

In discussing the extension of the law to visual images embodied in computer programs I stated that the law should extend private copying provisions to film embodied in a computer game or program. This could be implemented by the inclusion of this form of subject matter specifically within s110AA or in another unique section of the Act. It would be optimal to expressly state its inclusion rather than leave it open for interpretation.

This again gave raise to the issue of TPMs:

...All TPMs are incompatible with consumer rights and with respect to any formulation of fair dealing. Without legitimate access to circumvention devices and the ability to use these to access material, any law purporting to offer private copying rights will be easily avoided by creators. Similarly, legislative provisions are needed to ensure that contractual provisions can not be used to override any offers of fair dealing made under legislation. The government should take steps to prevent the wholesale abrogation of consumer rights through the use of this technology and completely change the law in this area.


Saturday, March 15, 2008

Private Copying of Photographs

Without intending it, it seems I have been publishing a series of posts on letters I have sent or submissions I have made recently in relation to copyright/technology/law issues. So in keeping with this trend I thought to also briefly mention the submission I made last month relating to the Australian Attorney Generals review on the exceptions to copyright infringement for the private copying of photographs (s47J) and films (s110AA). Introduced by the Copyright Amendment Act 2006, these sections permit photographs and cinematograph films to be reproduced in a different format, for private use, in a limited range of circumstances. In this post I will detail my comments relating to the private copying rights for photographs and in the next post will examine the private copying rights for films.

With respect to photographs the issues of concern included whether the current operation of the section provided an appropriate balance between the rights of copyright owners and other interests; what may be the other options for achieving better policy outcomes, and the costs and benefits associated with these. The review also looked at what would be the appropriate circumstances which would warrant additional private copying rights; the kinds of photographs likely to be reproduced under these proposed changes; the likelihood that TPMs would be applied to this material; the impact on the normal market exploitation of the works; and how such changes would improve the achievement of the governments policy objectives. There was also opportunity to comment on whether there should be further restrictions placed on private copying of photographs, how these would impact on normal market exploitation and how such changes would assist in achieving the policy objectives of the government.

Essentially I argued that s47J was currently drafted too narrowly, resulting in an unwarranted restriction on the rights of consumers, particularly in comparison to citizens in other, comparable jurisdictions (such as the United States). I suggested that the section therefore needed to be redrafted to ensure these restrictions were reduced to ensure the law is easily understood and respected by the public. I indicated that there would be no real costs resulting from these changes as they would simply bring the law in line with current practices.

In particular I suggested that there should be a removal of the limitations which prevent digital to digital and hard copy to hard copy copies, as well as a removal of the restrictions on serial copying. Provided copying takes place for private or domestic use – ie. as a non commercial use – there should be no limitation as to the number of copies or nature of the copies permitted.

Wider private use exceptions currently exist for music under s109A which meet Australia’s obligations under the TRIPS Agreement and therefore similar provisions for photographs would also be within the standards expected by the international community.

I suggested that use of the expanded private copying exemption would primarily be for photographs of family members and of family events. The sources of such pictures would most likely be professional photographers such as wedding or events photographers, employees of theme parks, restaurants, schools or the like. In most circumstances there would have already been some payment for these services and the reproduction taking place would be only of a personal benefit.

There may also be some reproduction of other photographs such as landscape or artistic photography. Again the sources would be primarily private individuals engaged as professionals. There may also be some desire to reproduce photographs contained in publications such as newspapers and magazines which would have also been taken primarily by professional photographers with these publications being purchased prior to reproduction.

Whilst this review specifically stated that it did not relate to TPMs (DRM), the frequency with which photographs are likely to be protected was nonetheless considered relevant. I suggested that it would be fairly unlikely that photographs sought to be reproduced for private purposes would be subject to TPMs.

I also suggested that most citizens feel comfortable with reproduction of photographs for personal, non commercial uses and that the law as it stands simply fails to reflect current practices. In this light there would be no difference to the normal market exploitation of photographs and the interests of copyright holders. As the majority of photographs identified to be the subject of this section would have initially been taken by professional photographers there may be an opportunity for a small increase in contractual costs to offset any perceived detriment.

In considering how these changes would improve the achievement of the Government’s policy objectives I suggested firstly, that the government should openly acknowledge the changes in economic and social circumstances brought about by digital technologies and note that there is a far lesser need to provide economic incentives for the creation and distribution of photographs. I referred to Flickr as one example illustrating this point.

I also argued that there should be no additional limitations placed on the private copying of photographs. I suggested that any additional limitations would only dissuade consumers from engaging professional photographers therefore reducing the ability of professionals in this field to sustain themselves financially. In addition to this, any further limitations would prevent the achievement of the central purpose of copyright law which is to benefit the public. Additional restrictions of any kind would create further imbalance in the regulatory measures and offer creators undue protections at the expense of the legitimate enjoyment of the consumer.