The IT Law Wiki

Perhaps some of you have heard of this already and I am late to the game? Early today I came across a fabulous wiki called The IT Law wiki. It is available here and has 20,391 pages on Information Technology Law. In the welcome section, they write:

This wiki is an encyclopedia of the legal issues, cases, statutes, events, policies, people, organizations and publications that make up the global fields of information law, information technology law (often referred to as "computer law," "cyberlaw" or "Internet law") and telecommunications law. The wiki focuses on the laws, regulations and policy issues that impact the information, IT and telecommunications industries and those government entities, industries, organizations and people that control or use information, IT and telecommunications. It also contains an authoritative set of definitions for those legal, technical, economic, political and policy terms used in the wiki. 

I've had a quick look around it and so far it appears thorough and accurate (but I dont vouch for that - check it out for yourself!) It appears to be a little US centric with a very limited reference to Fair Dealing given the global nature of the laws and issues we are dealing with, is still likely to be a very useful tool. It is also licensed under a Creative Commons Attribution-Share Alike License (3.0).

Support the Restoration of Copyrights to their Original Duration of 28 Years

There is a petition available on the White House website that seeks to return the term of copyright in the United States to 28 years. The text of the petition reads as follows:

Our Founding Fathers established an initial copyright duration of 28-years, but that has been repeatedly extended to up to 120 years to favor corporations like Disney and Sony and authors’ descendants at the expense of the public. Such durations ignore the Constitution’s requirement that copyrights be for limited times and promote progress in science and the useful arts. They actually inhibit scientific progress by restricting the free flow of information, preventing global digital libraries, and withholding information that future generations need to freely exchange and build upon. The original copyright duration provides ample incentive for companies and authors to create, so we ask the President to urge Congress to pass a bill restoring copyrights to their original duration of 28 years.

The petition is available until the 8th August 2012 and aims to reach 25,000 signatures. It was created on the 9th July and so far has only 3,571 signatures. Unfortunately you need to create an account on the White House website to sign it but it is a small inconvenience for such an important issue. Take a moment out of your day if you can to go to the site here and after you have finished signing it spread the word through the Twitter and Facebook tabs.

ReasonTV Too Much Copyright Law

I got this from a TechDirt article that you can read here. It is an episode of ReasonTV that considers the state of copyright law and makes particular reference to SOPA/PIPA:

The Public Domain: Enclosing the Commons of the Mind

I have been catching up on more reading this week - James Boyle's 'The Public Domain: Enclosing the Commons of the Mind' has been sitting in my reading tray for about 3 years and I was delighted to have an opportunity this week to take a look at it.

The central point of the book is that 'the line between intellectual property and the public domain is important in every aspect of culture, science and technology.' [pg xvi] Boyle begins by discussing the inherent aspects of intellectual property - that it is nonrival and nonexcludable and notes that financial reward is just one of the motivations behind creation - others are fame, altruism or because of another inherent creative force. [pg 3] Without limiting intellectual property rights, it becomes a system of corporate welfare. [pg 8] He writes:

'...the goal of the system ought to be to give the monopoly only for as long as necessary to provide incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish. For most works, the owners expect to make all the money the are going to recoup from the work with five or ten years of exclusive rights' [pg 11]

He discusses changes to copyright in recent years including automatic protection and term extension and notes that these have changed the contours of copyright regulation in a bad way. [pg 15].

Boyle terms the phrase 'The Jefferson Warning' to refer to the discussion of intellectual property at the time of its inception and the reluctance of the forefathers in granting monopoly rights. In essence intellectual property was not seen as a natural right rather a mechanism to create incentives, there is no entitlement as such to monopoly rights rather they are created by the State as a means to an end, they should not be permanent but rather only last as long as is needed to provide the incentive they set out to achieve, there are inherent dangers associated with intellectual property rights as they may cause more problems than they solve and the State must be careful to only award them when they are really needed. [pg 21-22] These sentiments were echoed by Thomas Babington Macaulay in his speech to the House of Commons in 1841:

'I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad.' [pg 22]

Reiterated by Boyle later in the text, he rephrases this to say that the concerns of the forefathers were that intellectual property creates artificial scarcity, high prices and low quality. [pg 37]

Boyle goes on to define the public domain and the commons:

'The public domain is material that is not covered by intellectual property rights. Material might be in the public domain because it was never capable of being owned. Examples would be the English language or the formulae of Newtonian physics. Alternatively, something might be in the public domain because rights have expired. The works of Shakespeare or the patents over powered flight are examples.
Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive....' [pg 38]

'The term "commons" is generally used to denote a resource over which some group has access and use rights - albeit perhaps under certain conditions. It is used in even more ways that the term "public domain". The first axis along which definitions of the term "commons" vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here.
The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the conditions that your contributions, too, will be freely open to others.' [pg 39]

Boyle sees the public domain as important because it is the basis of art, science and self understanding. It is the raw material from which new things are made. [pg 39] He states that the more commodified and restricted our access to information, the less the market operates efficiently and more poorly it allocates resources in society. Creativity is undermined as the cost of the inputs rise. [pg 40]

Boyle then goes on to discuss the enclosure of land commons in England before referring to the increase in intellectual property rights as the second enclosure. [pg 43 -45] Here Hardin's tragedy of the commons does not apply as works are non rivalrous and nonexcludable. [pg 48] Indeed the increase in property rights creates a different problem:

'Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects - the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation - as the tragedy of the anti commons'.

Boyle then goes on to term the phrase 'The Internet Threat' to refer to the digital environment and perceptions that technological changes empowering copying must mean an increase in property rights. [pg 53] In particular he refers to Napster and the changes that were brought about by file sharing. [pg 53] The logic of perfect control is discussed in detail in Chapter 4. [pg 61] The background to the Napster and Grokster litigation is also discussed. [see pg 71 - 79]

Chapter 6 discusses mashups in detail. In an earlier post here I embedded the YouTube clip to The Legendary KO's song 'George Bush Doesnt Care About Black People'. This is a fascinating chapter which traces the origins of that mashup and discusses the copyright implications for its reuse over time - this is a great example for anyone interested in the origins of mashups and the law around them. [pg 122] In discussing changes that need to be made to the law to allow for mashups Boyle states that one solution is to extend the system of compulsory licenses for cover versions to samples, or in the alternative, to exempt samples shorter than 5 seconds from copyright liability and clarify fair use. [pg 158-159]

Chapter 7 concerns the science commons with particular examples of software patents and synthetic biology. [pg 160]

Chapter 8 focuses on the creative commons and looks at flickr, ccmixter and creative commons [pg 179-181]. Boyle states that losses of sharing are every bit as real as losses from unauthorised copying. [pg 182] Further discussion on this topic looks to the free software movement and how creation of software takes place on a large scale despite a lower level of intellectual property rights. [pg 185]

In Boyle's eyes copyright maximalism was believed and pursued even when it did not make economic sense. [pg 198] It was a creation of a world view not a calculation of profit and loss:

'Not only did many of the rules we ended up with make no sense from the point of view of some of the largest economic players in the area - think of the device manufacturers, the search engines, and so on - they frequently made no sense from the perspective of those proposing them. Attempting to twist the law to make it illegal for technology to interfere with your business model is frequently bad for the industry seeking the protection, as well as for the technology, the markets, and the wider society.' [pg 199]

It was however a sincere belief that more rights would lead to more innovation. [pg 199]

Boyle is particularly critical of the lack of empirical evidence used to support changes in the law with a look at the legal protection for databases in the USA compared to Europe as one example. [pg 205 - 220]

Finally, Boyle proposes a movement along the lines of the environmental movement to lobby for changes to intellectual property law. [pg 230]

An excellent summary of the main points of the book is given on pages 205 & 236.

This is a brilliant book and very easy to read I really do recommend taking the time to look at it.

Further Reading
James Boyle, 'The Public Domain: Enclosing the Commons of the Mind' (2008) available for free at: < http://www.thepublicdomain.org/download/> at 13 September 2011

RIP: A Remix Manifesto

I have been a little slow to write about the film RIP: A Remix Manifesto - it has been available to stream for a short time now but I wanted to get a copy of the film that I could keep before deciding whether or not it might be included in my research.

After some delay in gaining access to the film - Australian's cannot download from iTunes USA nor is it available outside the USA from the official website - I finally got a copy off eBay. (It was advertised as a Region 1 DVD but it turns out it has no region coding at all. I have an old DVD player which I was guessing/gambling would have played the Region 1 DVD anyway).

This is a great film which discusses remix culture and the incredible imposition of copyright law. It primarily focuses on the music remix artist Girl Talk however also discusses mashups of other forms of culture as well as the more open attitude to culture taken in countries such as Brazil. With a number of similarities to the movie GoodCopyBadCopy, this film differs largley in the way that is is made - it itself in parts is a mashup of culture, some old and some new.

Indeed, there are a number of curious aspects to the way the film has been put together. At first I wondered whether these would amount to embarrassing errors - for example, it is specifically stated that this film is about a war over ideas however it is an elementary error to say that copyright law regulates ideas. Copyright law in fact regulates expression and is expressly differentiated from laws that regulate ideas. Other intellectual property law such as patents regulate ideas.

In addition to this, the movie characterises Napster1 as being a decentralised file sharing network when of course it is well known that Napster1 was in fact a centralised file sharing network - it required a centralised server in order to index and pass files from one user to another.

Why would this film state two obvious errors? (perhaps there are more that musicians or remix artists would find that are not obvious to me).

It is my view that this is done deliberately to act as an illustration. By including errors in the film, this film serves as the perfect example as to why we should be entitled to remix. Culture of the past is often imperfect, can be added to, altered or changed in a way that makes it more relevant, useful and (in this case for those of us with a background in law) more enjoyable. It is my belief that the errors in this film are intended to invite discussion as well as corrections. If so, I consider this to be a brave tactical decision and one which enables further promotion of the film, increased relevance in the future, as well as aiding in the wider dissemination of the central messages of the film through ensuring people discuss it. [I also wondered whether it might be to bait IP lawyers to remix it in case the creator is sued and he needs some back up.... :-) ]

Just as music mashed up by GirlTalk in part gains its popularity through the ability of people to relate to the samples of songs they already know, any adaptation of this film would refer to the original at the same time as serving as a new creation. In fact in parts of the film, remixes of this very film are used. Completely displacing the notion that the purchased copy is a finished product, the creator has allowed all of the footage of the film to be uploaded to the internet and openly invites others to remix it.

Indeed the very fact that I was unable to purchase this film except via eBay and only then if it would work in my DVD player serves as a further example of the impossibility of the staggered releases of record labels and other media organisations, as well as the impediments of DRM. Of course I would try to purchase the film from eBay (as I am sure many other people have). The creator appears to be very cleverly demonstrating the futility of trying to close culture when the internet is always on and will always allow people to connect and share regardless of the attempts to prevent this. At present it is not even possible to purchase the film for private use in Australia - I could only view the copy I have because of what American's call the First Sale Doctrine. Had this copy been Region 1 encoded and had I not had an old DVD player my rights would have been lost altogether.

OR MAYBE there are no errors in the film at all and this is a lesson in not buying from the authorised supplier? How do I know I have the 'official' copy? perhaps it is a mashed up pirate version... I doubt it, I checked the sellers reputation and store but it is an interesting aspect to the experience of trying to get a copy of this film and the nature of its subject.

I am in the process of trying to organise a non commercial use license to show this film at the Southern Cross University Mixed Up Reels Flim Club night on 8th September 2009 (I am told the licesend copy of the film will arrive next Monday so ...fingers crossed... )

If you're not nearby - stream it, go along to see it at one of the other screenings, or buy it. You will be impressed by the creativity of the footage, the clarity of the message as well as be inspired to become a creator. Great flick!

REMIX: Lessig

I have just finished reading the book REMIX by Lawrence Lessig. This is thought to be his last book on intellectual property law/internet/culture issues.

Lessig introduces the text by considering the war on piracy and the collateral damage that is evident from the strategies of the major players in the content industry. While endorsing the existence of copyright law he argues for essential changes to take place to ensure that balance is achieved and future generations are not criminalised for what they perceive to be reasonable uses of culture. He urges us to step back and to assess the impact of policies and to take account of the both the need for, and likelihood of success, rather than assuming that legislative constraints are the most appropriate solution.

Lessig analyses culture as being either RO (read only) or RW (read write). He begins by examining cultures of the past with the oral tradition of singing and community interaction with culture prior to the advent of modern technology. He observes that developments such as the phonogram, player piano, radio, cassettes, CDs, televisions, VCRs, DVDs etc changed the experience of culture from RW to RO. In doing so there was a loss of tradition, amateurism, creativity and technique. He states that new technologies promise to enable society to return to a RW culture.

He explains that it is not a matter of selecting between two extremes – the internet vs hollywood; RW vs RO; the future vs the past, gains vs losses – but rather that both RO and RW culture can be extended by new technologies and that businesses which incorporate both are likely to emerge. He states that it should not be a matter of preserving RO culture at the expense of RW culture but that all should be encouraged to develop.

He acknowledges that there is part of culture that is created by professionals that we simply consume. Technology has enabled industries to develop with an emphasis on professional creation – the limitations in copying using analogue technology and support from the law prevented individuals from creating and reproducing recorded works. Now, with the advent of digital technology, any person can reproduce culture – it is not impossible but it is illegal.

He refers to the conditions that have always been present for writing – that quoting with citation has always been allowed and that there is an expectation of being able to lend texts from libraries - and argues that all culture will be ‘bookified’ this century. That is to say that we will develop norms around all forms of culture similar to those that have always been present for text.

While RO culture demands respect for creations, provides authority and integrity to culture and is an important part of ensuring the spread of knowledge; RW culture offers itself as a draft, invites a response and empowers as much as it educates and entertains.

RW and in particular remix culture is seen as a form of collage around which communities are developed and which enhances learning and education through participation. Creators are both professionals and amateurs. He argues that RW is an ecosystem that must have conditions which enable it to evolve and develop. Copyright law supports the practices of RO culture and opposes practices of RW culture.

He reflects on what may have been had the content industry accepted and adapted to the introduction of peer to peer file sharing and questions whether the next ten years should be focused on the war on piracy.

Lessig then goes on to describe three economies – the commercial, the sharing and the hybrid. The tangible value exchanged in the commercial economy is money. It is a simple way of spreading wealth and critical to the internet. Examples of internet based commercial economies include Netflix, Amazon and Google with three central features being the long tail, recommendation systems, and lego-ized development.

By contrast, the intangible value exchanged in a sharing economy is not money, indeed money is seen as poisonous to this economy. Rather it depends on the development of social relations in which participation is a key element. Lessig explains that there are two types of sharing cultures – the thin and the thick.

A thin sharing culture is driven by personal gain where motivations for self gain motivate contributions – examples include Skype and AOL’s IM Network.

A thick sharing culture whilst also depending on norms of sharing and cooperation are driven by a motivation to help others – examples include Wikipedia, GNU/Linux, Project Gutenberg, the Distributed Proof Readers Project, Distributed Computing Projects such as SETI@Home, the Internet Archive, the Mars Mapping Project, the Open Directory Project and Open Source Food.

Sharing cultures take advantage of tasks that users would do anyway and are enhanced in the digital environment because of the non rivalrous nature of intangibles. Different technologies enable new forms of participation and sharing and he suggests are likely to become part of the core of the internet’s ecosystem rather than reside at the periphery.

Hybrid economies combine both commercial and sharing attributes. Free Software and in particular Red Hat Linux are specific examples – the community of programmers are respected, they are given responsibility and the sense that they are part of something meaningful – this in turn enables commercial benefits to be derived and combined with a sharing culture. Lessig lists three main forms of hybrid successes, those that create community spaces such as Dogster, Craigslist, Flickr and YouTube; those which create collaborative spaces such as Politech, Slashdot, Last.fm, Usenet, Yahoo! Answers, Wikia and fan sites; and those which create communities such as Second Life. These forums are designed with community in mind and must balance competing priorities and expectations to succeed.

Hybrid economies produce both economic and social value with the spill-over of information having both public and private benefits. Some of the keys to long term sustainability of hybrids include not being overly focused on commercial priorities by aiming to achieve moderate rather than maximum profits, exercising only moderate control with participants being empowered to make some decisions, and transparency of motives. He refers to the transition of CCDB to Gracenotes as one example where greater transparency was required. Feelings of betrayal and a backlash from participants are inevitable when changes are made without consultation or consideration.

He states that one very damaging practice certain to undermine the success of a hybrid is share cropping. He refers to the EULAs of remix competitions where by participant's copyrights are automatically made the property of the competition organisers as one example of this practice.

Lessig states that parallel economies are possible and that creators should be free to move from one to the other as it suits them. He also acknowledges that the existence of hybrid economies which allow some legal uses of creative works as being fundamental to the decriminalisation of the cultural practices of young people.

To ensure a vibrant future for RO culture, RW culture and hybrids Lessig contends that there must be significant changes to the copyright system with far less emphasis on using the legal system to solve problems. At present the default position of copyright is set to ‘No’ but technology and the creativity of youth demand more. While he suggests that Creative Commons goes someway to addressing the issues what is really needed is a complete overhaul of the copyright system.

Lessig argues that there are five central changes which need to be made to Copyright Law. The first is that amateur production needs to be deregulated – non commercial uses should be free use not fair use. There also needs to be clear title to creative works which can only be achieved through a registration system with a renewal process imposed after a short automatic term. Copyright law must also be made simpler with legislation, in addition to fair use, specifying that some uses are not within its scope. He also suggests that the law must be rewritten to focus on uses (such as public distribution) rather than be determined on the notion of copies. Finally he advances that Congress should move to decriminalise file sharing by allowing non commercial sharing with additional taxes or by imposing a blanket licensing procedure.

Without these changes Lessig fears a destructive impact on the rule and respect for law by future generations.

This was a very enjoyable book, it is well written, easy to read and at times quite funny. For my purposes I found it a little too descriptive and thought there could have been more analysis.

The recommendations to change copyright law are not new and could have been more directly integrated with his observations with more attention given to why they are needed and what impact these changes would have on the ecosystem. The coexistence of these two forms of culture (RO/RW) have been the impetus for much of the conflict in this area and there is scope for a much more detailed discussion as to how these can survive and thrive alongside each other.

He uses the recording industry as an example of a hybrid economy with specific reference to the loss of income to major record labels as an illustration of the ability of the industry to embrace both commercial and sharing culture. Whilst I would argue that the music industry (which is wider than just the major record labels) can, and is, a hybrid economy, I would not have referred to these statistics as an example.

There was never any deliberate effort or desire on the part of the labels to embrace this strategy rather it was imposed upon them. They took active steps to prevent this from happening and only in recent times have accepted through the development of avenues such as MySpace Music and changes to Yahoo's search engine results, that complete control is not necessary. The definition of a business within a hybrid economy, and indeed the other examples he uses, refer to businesses willing to give something away in order to gain, rather than what is taken from them. The loss of income to labels while not conclusively or solely due to file sharing, could well be interpreted as an indicator of their inability to be embrace a hybrid model.

Lessig could have also paid more attention to the role of the Corporations Law and how the fiduciary duties of directors and company executives impact on the choices that are made and the obligations to prioritise profit over community.

Museums, The Public Domain and Profits

Further to my recent post on the public domain in which I highlighted the decision of the Power House Museum in Sydney to release the Tyrrell photographs in digital form through Flickr: The Commons, earlier today I read this very interesting article by Michael Geist in the Ottawa Citizen, titled ‘National Gallery looking for profits in all the wrong places’.

Most interestingly he notes:

[T]he McCord Museum of Canadian History in Montreal has poured significant resources into digitization, amassing more than 135,000 digital images that are freely accessible online. Similarly, the Canadian Museum of Civilization (which includes that museum and the Canadian War Museum) attracted a record 1.8 million visitors in 2006, but more impressively hit 66 million page views for its web-based content.

He goes on to discuss how museums are seeking to engage citizens in the digital environment through the use of things such as virtual museums, social networking and blogs. However it seems that not all uses of public domain works by museums are being offered on a non-profit basis. Geist refers to The National Gallery of Canada which is reported to have charged for the reproduction of some 250 public domain works in 2006:

The Access to Information Act records covered requests to the NGC for copies of public domain artworks between February 2006 and January 2007. The NGC received approximately 250 such requests, for which it imposed contractual restrictions on use of the images and levied an average fee of $379. While requesters were not advised of the cost breakdown, internal documents reveal that some of the price went to an administrative fee (typically $20) and a photographic fee.

Disturbingly, not only did the Gallery attach license conditions limiting the use of the reproductions but the costs levied included a permission charge higher than for works subject to copyright. This was justified on the grounds that as the works were not subject to copyright and no royalties would have to be paid, an increase in the cost levied by the gallery would be reasonable.

This comes in the same week as a story about the Metropolitan Museum of Art in New York City. Here the public were prevented from taking photographs of a Nicholas Poussin exhibition, who died in 1655. Usually the museum allows photographs provided no flash is used. When questioned about the restrictions in place for this exhibition, representatives of the museum suggested initially that this was due to copyright. Of course this is incorrect because the works are clearly within the public domain. Excess Copyright reports that the works were loaned to the museum and the restriction may have been a contractual condition imposed on their display.

These examples illustrate the use of contract law in a way which impedes access to public domain works. In establishing the copyright bargain, the United States Constitution specifically states that the copyright term shall be for a limited time. In doing so the law reflects the desire to limit the monopoly power conferred to copyright holders and to provide for full access to works on the expiration of the copyright term. Without a robust and diverse public domain, future creativity, free speech and democracy are undermined.

It is increasingly apparent that steps need to be taken to ensure that private interests cannot deprive the public of their rightful access to these works. Simply put there needs to be greater awareness of how these works are being dealt with, the ability to challenge any limitations which are imposed on the public's right to access the works, and greater education as to the vital importance to society of the public domain.

In short, it defies logic that private owners should continue to own and control works that are within the public domain.

Articles

Ottawa Citizen, National Gallery looking for profits in all the wrong places (15 April 2008) <http://www.canada.com/ottawacitizen/news/bustech/story.html?id=eea40d92-2682-458f-81ab-4926a2ae1283> at 17 April 2008

The McCord Museum of Canadian History in Montreal <http://www.mccord-museum.qc.ca/en/> at 17 April 2008

The Canadian Museum of Civilization <http://www.civilization.ca/visit/indexe.aspx> at 17 April 2008

The National Gallery of Canada <http://www.gallery.ca/> at 17 April 2008

TechDirt, Since When Has Copyright Become Life Plus 343 Years? (14 April 2008)<http://www.techdirt.com/articles/20080402/013157727.shtml> at 17 April 2008

Excess Copyright, Life + 343 years (1 April 2008) <http://excesscopyright.blogspot.com/2008/04/life-343-years.html> at 17 April 2008

The Metropolitan Museum of Art in New York City <http://www.metmuseum.org/> at 17 April
Lawrence Lessig, Free Culture (2004) <http://www.amazon.com/Free-Culture-Technology-Control-Creativity/dp/1594200068/ref=pd_bbs_sr_3?ie=UTF8&s=books&qid=1208401055&sr=8-3> at 17 April 2008

Copyright Law and New Media

Updated. I was reading today about the New Media Artists and the Law panel due to be held in San Jose, CA this Friday (more here) and I was interested to discover that the discussion will centre around “the ways copyright laws are implicated in new media art and the challenges artists face in this evolving area of the law.”

The term ‘new media art’ refers to:

[A]n art genre that encompasses artworks created with new media technologies, including computer graphics, computer animation, the Internet, interactive technologies, robotics, and biotechnologies. The term differentiates itself by its resulting cultural objects, which can be seen in opposition to those deriving from old media arts (i.e. traditional painting, sculpture, etc.) This concern with medium is a key feature of much contemporary art and indeed many art schools now offer a major in "New Genres" or "New Media." New Media concerns are often derived from the telecommunications, mass media and digital modes of delivery the artworks involve, with practices ranging from conceptual to virtual art, performance to installation. [Wikipedia, New Media Art (5 April 2008) <http://en.wikipedia.org/wiki/New_media_art> at 15 April 2008]

The implications of copyright law in new media art
There is no doubt that copyright law in its present state produces significant ramifications for the production and reception of new media art. In recent years there have been significant changes to the length of copyright protection and the scope of works to which it applies. These implications occur both with respect to the art itself and the technologies that are used to create it. The United States and Australia serve as illustrative examples of a trend that is increasingly occurring around the world.

The length of copyright protection has been significantly increased in recent years. The most recent of these in the United States was the 1998 Sonny Bono Copyright Term Extension Act which extended the period of protection for both existing and future works from 50 years plus the life of the author to 70 years plus the life of the author. Similarly, the same extension was made in Australia, although in this instance not made retrospective, through negotiations with the United States for the 2004 US-AU Free Trade Agreement .

The length of copyright protection holds many negative implications for new media art. In particular the impact and constriction of the public domain inhibits the ability for creators to draw on existing works and to reuse these in new ways.

The scope of copyright protection has also increased dramatically in recent times. In the United States the 1996 Digital Millennium Copyright Act, in particular, enacted laws which seek to support the use and development of digital rights management technologies. In Australia similar provisions were also introduced through a series of copyright amendment bills, the most recent of which was the Copyright Amendment Act 2006 (Cth).

Digital rights management technologies are the software and hardware products which code locks around digital expression in order to limit the uses and portability of protected works. The implications for new media art include eroding the ability for creators and the public to exercise fair use/fair dealing rights. These rights, whilst enacted to enable such things as non commercial transformations, personal, and educational uses, are subverted by the use of digital rights management.

The scope of copyright law has also been amended to extend to the vast majority of non commercial uses. Non commercial uses particularly relevant to new media art include sampling and remixing of works. The associated implications are an inability to explore and create derivative works.

The impact on the development of technology is also apparent. Copyright law has been used to impede the existence and adoption of new distribution networks. By inhibiting the dissemination of new media art, the illustrative, educative and communicative potential of the genre is limited. This in turn impacts on social progress and democracy.

The challenges artists face
Artists face numerous difficult challenges stemming from the present state of copyright law. These include a failure to realise the technical environment which will enable all citizens to actively participate and contribute, communicate with others and to develop business models which enable independent artists to support themselves.

Digital technologies offer a unique opportunity for the average citizen to become creators. Copyright law, in seeking to protect existing interest, inhibits the development of technology which would enable this to be fully realised. Furthermore, copyright law complicates the creative process for those seeking to reuse existing works by establishing an environment which requires lengthy and expensive negotiations for licenses with no guarantee that permission will be forthcoming. This is also the case for the creators of new media works who themselves are subject to the automatic protection of copyright and must take additional steps to allow their own art to be reused.

The flow on effect of the expansion of copyright law and the term of protection similarly inhibits the ability for new media artists to communicate with members of the public. This in turn restricts the activities and education of civil society which therefore impedes their ability to participate in democracy.

In seeking to support pre-existing forms of expression copyright law also restricts the ability for new media art forms to develop business models which would enable them to support themselves. If creators of new art forms are unable to support themselves from their craft this acts as an impediment to attracting those capable of the highest quality of expression.

Conclusion
The implications of copyright law with respect to the production and reception of new media art are apparent. As a consequence of this artists seeking to explore this genre face numerous impediments.

Further Reading
Lawrence Lessig, Free Culture (2004) <http://www.amazon.com/Free-Culture-Technology-Control-Creativity/dp/1594200068/ref=pd_bbs_sr_7?ie=UTF8&s=books&qid=1208243594&sr=8-7> at 15 April 2008

The Public Domain

And so it seems that copyright is everywhere...

I woke this morning to the hosts of the TripleJ breakfast program (radio) discussing the impending launch of a new competition. The only problem was they had just discovered the song they wanted to use was still protected by copyright. It seems they were going to use a song that had been written 50 years ago until they were advised by listeners that the copyright term is in fact fifty years from the death of the artist, so they were trying to find out which artists had died in 1958 (see guestbook entries for 10/4/2008).

Never let it be said that the impact of copyright is invisible – it's not – those that don’t readily experience it simply don’t know that it is there. Those that are aware of it see the conflict it creates, everyday single day.

They were lucky in this instance that they only had to go back fifty years – fortunately in Australia the copyright term extension, negotiated as part of the USA Free Trade Agreement, was not made retrospective. Future generations are going to have to go back a lot further than this, as today’s works are now covered for 70 years plus the life of the author.

I was interested to read on Planet Creative Commons (more on Planets here) that James Boyle is due to release a new book later in the year examining this very topic:

The Public Domain: Enclosing the Commons of the Mind ... will be published by Yale University Press in Fall of 2008 under a CC Attribution-NonCommercial license... The book is about the fate of the public domain – the realm of material that is available for everyone to use without permission or fee. The book argues that we have been neglecting the vital role of the public domain in innovation, culture, science and politics and increasingly “enclosing it” by expanding the length, breadth and scope of intellectual property rights – copyright, patent and trademark – to cover material that used to be in the public domain... (Read more about the book here as well as the competition for designing the front cover.)

But while the law attempts to further restrict access to the public domain, digital technologies are making it easier to access what works are free from copyright protection. Another very interesting post to Planet Creative Commons explains how the Powerhouse Museum in Sydney has become the first museum in the world to release publicly-held historical photographs. Two hundred photographs from its Tyrrell Collection are already available with more to be added shortly. These can be accessed on Flickr: The Commons which itself was only launched at the beginning of this year and is designed to provide access to photographs in public archives for which copyright protection has expired. The post to the museum's blog regarding the release explains:

Our Tyrrell Collection consists of 7903 plates from the two principal photographic studios in Sydney in the late 1800s to early 1900s. These were the Charles Kerry and the Henry King studios... These images are mainly of the Sydney area with a few from regional spots... One of the exciting things we have done with this collection is place as many of them on a map according to their longitude and latitude coordinates as we can, this is called geo-mapping. The image above is ‘Bondi Bay, Sydney’, Henry King, Sydney, Australia, c. 1880-1900. This reproduction was scanned from a glass plate negative. We are going to post Tyrrell images on this blog for the next week to celebrate and will continue to highlight them in the future.

I think this picture captures an essence of the public domain - people, together, exploring and enjoying the environment. Just as we would never stand for private control of Bondi, we should work together to prevent the private control of our culture.

Articles
Triple J Breakfast <http://www.abc.net.au/triplej/breakfast/> at 10 April 2008

Planet Creative Commons <http://planet.creativecommons.org/> at 10 April 2008

Wikipedia, Aggregator (7 April 2008)
<http://en.wikipedia.org/wiki/Planet_%28blog%29#Web_based> at 10 April 2008

Planet Creative Commons, Design cover for James Boyle’s new book — Public Domain: Enclosing the Commons of the Mind (7 April 2008) <http://creativecommons.org/weblog/entry/8189> at 10 April 2008

Amazon, The Public Domain: Enclosing the Commons of the Mind by James Boyle <http://www.amazon.com/Public-Domain-Enclosing-Commons-Mind/dp/0300137400/ref=sr_1_1?ie=UTF8&s=books&qid=1207787771&sr=8-1> at 10 April 2008

Planet Creative Commons, Design a book cover, protect the public domain (7 April 2008)
<http://sciencecommons.org/weblog/archives/2008/04/07/design-a-book-cover-protect-the-public-domain/> at 10 April 2008

Planet Creative Commons, Powerhouse Museum Joins Flickr: The Commons (8 April 2008) <http://creativecommons.org/weblog/entry/8190> at 10 April 2008

Power House Museum, Powerhouse joins The Commons on Flickr! (8 April 2008) <http://www.powerhousemuseum.com/imageservices/?p=164> at 10 April 2008

Flickr, The Commons (2008) <http://www.flickr.com/commons> at 10 April 2008

The myth of ubiquity and comparative rarity of protest music

The first article in the text The Resisting Muse: Popular Music and Social Protest, is written by Deena Weinstein, ‘Rock Protest Songs: So Many and So Few’. Here Weinstein addresses what she terms the ‘myth of ubiquity and comparative rarity’ of protest music.

The rise of popular protest music in the 1960s was contextualised by a number of important events and conditions including the Vietnam War and civil rights movement. At this time, many of the established record label executives were uninterested in promoting the emerging form of protest music however new record labels took on the role of supporting these artists. The dramatic rise of protest music in this era was further enabled by the openness of FM radio. Commercial radio was more concerned with Top 40 music and refused to play anything controversial, as did most television stations, however FM radio and the emergence of rock critics provided exposure for these artists, enabling the form of music to attract a wide listening base.

Despite the solid grounding for this form of music Weinstein contends that there are three factors to consider when looking at the overall place of the genre within society today:

1. There are relatively few protest songs

2. Protest songs that do exist aren’t widely heard

3. Protest songs that are heard aren’t understood as protest songs.

On the relative rarity of protest music it is suggested that commercial interests which see greater profit from other forms of music such as dance and emotion based music (love songs) influence the degree to which this type of music is produced, heard and therefore received. FM radio eventually morphed with AM radio to have similar commercial interests and preferences. There was also an increase in concentration of media ownership enabling a constriction of the diversity of music that was produced and heard. This trend has changed significantly since the widespread adoption of the Internet with an increasing prevalence of protest music and access to it by listeners who want to find it. However to the vast majority of listeners, this music is still effectively underground as they are not exposed to it unless by direct personal choice and effort.

Some protest songs are not understood as being of this nature for a number of reasons. One reason is that as protest music often addresses a specific event or set of social circumstances, as time goes on, it becomes more difficult for listeners to identify with or relate to the lyrics. The shorter life span of protest music may also make it less commercially attractive.

The use of protest music in other contexts such as advertising jingles, movie sound tacks, or promoted with nonsensical video clips, can also detract from its social or political impact. The method by which the song is heard can also diminish receptive mediation with the advertisements of commercial radio and more frequent playing of non protest songs all contributing to a loss of meaning.

Weinstein suggests that the intelligibility of the lyrics can also be diminished by the level of physical activity inspired by the song (dancing), that the lyrics may be limited in impact as they are heard in short phrases rather than as a whole text, and that mondegreens – when we hear the wrong word – also impact on the extent to which a listener can extract the political or social messages. The lyrics may also seem abstract or ambiguous without additional information from the artist as to how the song was developed and it basis.

Weinstein also suggests that if one were to classify protest music solely by its effectiveness, that only a small number of songs could be considered. Here she questions the overall impact of protest music and production of social change. She suggests that whilst protest music is useful for consolidating views and reinforcing values within a sector of the community, it does not always have the effect of inspiring outsiders. In fact, she suggests that this type of music can sometimes create further opposition and evoke negative responses. However, she also acknowledges that sometimes protest music does have the desired effect of spurring political debate and commitment, particularly when presented as part of a wider social movement.

I found this to be a really interesting article and I very much agree with her comments on the way the mainstream media prevent the exposure and reception of this type of music. From my point of view there are additional factors that impact on the effectiveness of protest music to produce change. Associated with Weinstein’s thoughts regarding the commercial influence on protest music, is the length and scope of copyright law. As Weinstein notes, protest music, unlike other forms of popular music, often has a message that is very specific and directly related to immediate events. Any factor which inhibits the access of listeners to that message directly impacts on the ability of the music to perform its function and copyright does this in every way possible.

By placing monetary gain ahead of reception, and by being automatic in its application, the law serves to prevent the very purpose of this form of expression – after the life of the author and seventy years when the song enters the public domain there is arguably very little contribution the song can make to events it seeks to address. The Internet is a very valuable instrument in ensuring that protest music not only thrives in terms of its production but also in terms of the access listeners have to it and therefore its effectiveness as a genre on the whole. If a blanket licensing scheme were introduced for file sharing, this would provide more equitable access to financial support and therefore encourage more artists to be socially involved. I would suggest that a blanket licensing scheme is proportionally more important for protest music than for other forms of music - dance music and love songs have never been restricted as a genre, although arguably they have been constricted in terms of quality, but even so, perhaps a loss of quality is easier to bare than a loss of meaning altogether.