National Human Rights Consultation

The Australian Government is in the process of undertaking a consultation process on the protection of human rights in this country and the need to introduce a Bill of Rights. I urge all Australians to take the time to make a submission on the areas they think need greater protection - for me in particular this includes freedom of expression. Community round-table discussions are being held around the country and submissions can be made until 15 June 2009 - read more here.Here is the submission I made today:

National Human Rights Consultation Secretariat
Attorney-General's Department
Central Office
Robert Garran OfficesNational Circuit
BARTON ACT 2600

2 May 2009



Dear Sir/Madam

Re: National Human Rights Consultation – Freedom of Expression

My name is Sally Hawkins, I am a PhD student and casual academic with the School of Law and Justice at Southern Cross University, Lismore NSW. I write further to the terms of reference for the National Human Rights Consultation with respect to Freedom of Expression.

As you are aware, at present Australia has an implied, limited right to freedom of expression by virtue of the High Court decisions in R v Levy [1997] HCA 31; Nationwide News Pty Ltd v Willis [1992] HCA 48; Australian Capital Television Ltd and Ord v The Commonwealth [1992] HCA 45.

Implied Nature
Indeed with respect to the implied nature of freedom of expression in this country, in ACT v The Commonwealth Dawson J at 16 stated:

...[T]he Australian Constitution, unlike the Constitution of the United States, does little to confer upon individuals by way of positive rights those basic freedoms which exist in a free and democratic society. They exist, not because they are provided for, but in the absence of any curtailment of them. Freedom of speech, for example, which is guaranteed in the United States by the First Amendment to the Constitution, is a concept which finds no expression in our Constitution, not withstanding that it is as much the foundation of a free society here as it is there. The right of freedom of speech exists here because there is nothing to prevent its exercise and because governments recognize that if they attempt to limit it, save in accepted areas such as defamation or sedition, they must do so at their peril. Not only that, but courts recognize the importance of the basic immunities and require the clearest expression of intention before construing legislation in such a way as to interfere with them... The fact, however, remains that in this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values.

I submit that the implied nature of freedom of expression is insufficient. An express or positive right is fundamental to having certainty with respect to the law and to upholding human rights. It was the perspective of our forefathers that the system of representative government as established at the Federal level through the House of Representatives and the Senate would be adequate to protect the basic rights of citizens and to ensure accountability of the legislature. Since this time however there has been a dramatic increase in the complexity of Australian society, the emergence of a number of minorities and the recognition that the representative system of government largely works in favour of the majority and more commonly in the favour of those with large financial resources including corporations. It is my position that Australia should have an express right to freedom of expression contained in a Bill of Rights.

Scope
The limited scope of the current law with respect to freedom of expression, in contrast to other countries that have a positive right to such expression, is also problematic. At present the Australian Constitution only affords protection to speech and acts undertaken which have a connection to the election and operation of the government.

To date the only case in Australia to expand the implied right to freedom of speech to acts other than speech is R v Levy [1997] HCA 31 which concerned the actions of a protestor in relation to duck shooting. While this case has developed the law in this regard, it also serves as an example of the limited opportunities the High Court has had to consider the application of the implied right and the difficulties everyday citizens have with accessing the courts to ensure that the law is applied and developed to new circumstances.

Other countries such as the United States do not have the same limitations with respect to the scope of the Constitutional protections for freedom of expression. A broad right to freedom of expression is necessary, particularly as this country and the majority of the world move into the communication age where much of the speech that occurs is separate from the election and operation of the government.

One recent example of this is the intention of the Australian Government to enact compulsory censorship of the internet through filtering at an Internet Service Provider level. While all Australians concur that prohibition of child pornography is warranted, there remains ongoing concern about the extent to which this filtering may develop both now and into the future. Communication such as that relating to abortion, homosexuality or other more topical issues is a fundamental part of the nature of free society and yet Australia enters the information age without any Constitutional protection to ensure that this information and communication remains available. Simply put, it is not the place of the government to regulate or restrict communication on the internet particularly given that voluntary measures which can be employed in the home at the request of the account holder are available. This is but one example of the need for a Bill of Rights in Australia and the need to expressly protect a broad right to freedom of expression.

Thank you for taking the time to consider my submission. I urge both the committee and the Federal Government to show strong leadership, diligence and commitment to the preservation of our fundamental rights.

Yours sincerely

Sally J Hawkins

Lessons from the Google Book Search settlement

I have been very interested to read the commentary around the Google Book Search agreement – particularly the arrangements to be put in place to track and monitor the use of works.

The ‘Books Rights Registry’ will enable authors to determine whether or not their books can be scanned with portions made available for searching. It is in essence an agreement to a collective license with protections in place for the preservation of the public domain.

Lessig Notes:
The agreement calls for the creation of a registry to be operated by a nonprofit corporation. That corporation will be governed by a board comprised of publishers and "authors" (meaning authors participating in the law suit).

And according to Silicon Valley:
Google will pay about $34.5 million to establish the registry... About 63 percent of the revenue Google earns from its book-search program will go to the registry to be divvied up among rights-holding authors and publishers. It will also pay the authors' and publishers' attorney fees.

The creation of a non profit registry for rights management with respect to literary publications is a big step forward for the long term management of books within the digital environment. For many years Lawrence Lessig and many others have been arguing that the law relating to copyright creates an inefficient property system largely due to the fact that there is no central registry of copyright holders.

In his most recent text, Remix, Lessig reflects on the social norms historically associated with the use of text – quoting with citation. He suggests that in the coming years all culture will be ‘bookified’ – that is that social norms which have already begun to emerge will enhance the expectation of all individuals to reuse and quote from culture.

One can well imagine the benefits that would flow from having a central repository of all copyright holders for all forms of expression. Enabling a system of rights registration would facilitate the process of gaining clearances, reduce litigation and enhance the ability of artists and follow on creators to more easily negotiate the uses and availability of works.

In my recent presentation relating to political music I reflected on the need for a central repository or archive and the need for integration to improve the exposure, consumption and use of oppositional audible culture. I also argued for the establishment of a non profit association to carry out these goals. The Google Book Search agreement could prove to be an excellent model worthy of examining as an analogy.

Further Reading
Lessig Blog, On the Google Book Search Agreement (29 October 2008) <http://lessig.org/blog/2008/10/on_the_google_book_search_agre.html> at 2 November 2008

Lessig, Remix (2008)
<http://remix.lessig.org/> at 2 November 2008

Silicon Valley, Authors, publishers settle copyright suit against Google (29 October 2008) <http://www.siliconvalley.com/ci_10843684?nclick_check=1> at 2 November 2008

The Register, Google settles Book Search suit for $125m (28 October 2008) <http://www.theregister.co.uk/2008/10/28/google_settles_book_suit/> at 2 November 2008

When Worlds Collide – Part 2

Following on from my last post which discussed the differences between real space and cyberspace, I would now like to consider the implications and influences of technological developments on music. Identifying how technological changes have enhanced the ability of music to communicate enables an evaluation of the current conditions offered by the digital music environment and ways in which their potential can be maximised. Socio economic conditions influence technological conditions and vice versa throughout history.

Evolution not Revolution
In the last post I referred to the conception of three worlds by Sir Karl Popper. Another of his theories is that of refutation – here he suggest that knowledge of the world is produced through a process of problem solving iterations. His model for scientific testing starts with a problem solving situation, applies tentative theories which identify false results enabling a determination of the most probable answer(s), leading inturn to more complex and interesting problem solving situations. The identification of false results in one sense is said to emulate the process of natural selection in the biological environment by identifying the most suitable or fit result.

In a similar way to Popper’s theory of knowledge and the theory of evolution, the movement of culture from an analogue environment to a hybrid analogue/digital environment with an ever increasing emphasis on the digital, takes place through a sequence of problem solving, theorising, error elimination and more problem solving.

This theory can be applied in a number of macro and micro extrapolations. The internet itself arguably follows much the same pattern, but for these purposes the focus will be on the narrower conception of the digital music environment as well as music itself.

In the digital music environment, the difficulties creating artificial scarcity led to major content owners, and in turn governments, theorising that increased protections are the most suitable response to the control of intangibles in an intangible environment. Others contend that the problem is not one of recreating scarcity but rather recognition of the impossibility of achieving this and adapting to take advantage of the new environment.

Content owners, motivated by self preservation and money rather than artist, artistic or public benefit, in misidentifying the nature of the problem entered into a cycle which has not solved the true problem and arguably has made the conditions worse for themselves and everyone else. From this perspective strategies such as DRM, file sharing lawsuits against individuals and software developers which inturn impact on overall technological development, the development of closed architectures for music distribution on the internet and the attempt to keep independent artists marginalised by refusing to adopt alternative business models, are the result of addressing the wrong problem in the first place. In contrast, identifying the problem as a need maximise the opportunities for creativity and free expression by applying a theory of positive inclusive community would lead to more interesting and productive problems to resolve such as the detail, application and subsequent revisions of an alternative compensation scheme.

In one sense the content owners have characterised the digital music environment as a context inciting revolution rather than evolution.

Culture also undergoes a constant evolution. Music provides an obvious illustration as a form of expression subjected to differing conditions which favour the existence of certain form, content, styles, accessibility, ability to communicate and in turn the production of social progress.

From its most primitive form of personal, tribal and then public performance, communication through music was, and to a relative extent remains, limited by skill, time and space. Public performances require mastery of instruments, exist for a very finite period of time and are only available to a specific and limited audience. Historically public performance represented the analogue manifestation of music and since this time there has been an ongoing evolution to the form of expression brought about by changes in technology.

The advent of radio saw the removal of space limitations enabling much larger and remote audiences to access music of live performers. This was followed by recording technology which then removed the limitations of time and space enabling audiences to access music at their convenience. Digital technologies also contributed to the production of music with the advent of instruments such as the synthesiser removing many of the barriers for the average person to compose and perform.

The advent of the internet was another major technological development which itself is dynamic and subject to constant change. Here we see the convergence of all the previous adaptations of the production and reception of culture to technology with skill, time and space being further supplemented by enabling instant, low cost and global distribution of works. In some respects for music, this is the ultimate iteration of technology with the potential for the most number of errors inhibiting communication to be eliminated. However the true potential has not yet been properly realised.

As the technological evolution has taken place so too has the content of culture evolved. The content of music has moved from anthropological and community applications to global issues. There have been detectable historical trends with respect to the prevalence of messages within music, one particular notable example being the status of protest music in the United States in the 1960s. This occurred at a time when FM radio was open and commercially ambivalent and there had been technological advances in recording equipment and techniques. Subsequent convergence of record labels and the increased influence of capitalism on the music environment ultimately led to the prevalence of emotive and dance music. If the digital music environment is able to realise its full potential there would inevitably be greater opportunity for the diversity of culture and the ability to support political music and other nonmainstream content.

At various moments in history the technological conditions have combined with the socio economic conditions to favour certain styles over others. In medieval times for example, minstrels and street performers were took on the role of illustrating current events in the commons for those largely illiterate and removed from the immediacy of royalty. Similarly the technical and socio economic conditions in the classical era saw the highest quality of music performed before limited and exclusive audiences. In contrast church music has more generally been performed in a more open environment. Over time and largely in line with changes to technology there has been an exponential growth in the number and diversity of musical styles. While there are many different conceptions to the evolution of musical styles, milestones following the dilution of the classical era include blues, jazz and folk. Rock music marks the start of a dramatic expansion of musical styles which continues unabated today.

The internet and digital technology in particular have created unique musical styles through the use of sampling techniques, mashing and remixing. Enabling limitless reproduction and variation this technology again offers the ultimate iteration by removing barriers to production of music. Similarly with the promise of open and limitless access, this context offers the opportunity to maximise receptive mediation. However the continued determination of major content owners to control music by misinterpreting the problems created by the digital music environment poses an ongoing threat to the realisation of the benefits of this technology.

By enabling or restricting expression, differing modes of communication and architectures in turn influence the effectiveness, style and content of music and therefore the ability to transfer and receive messages. The ultimate conditions for digital culture offer the maximum opportunity for expression to create social progress and without a constant review of the problem solving sequence invoked there will be delays and the possibility that the full potential of the environment will not be realised.

Further Reading
Ed. Michael Benedikt, Cyberspace First Steps (1993)

Wikipedia, Karl Popper (9 May 2008) <http://en.wikipedia.org/wiki/Sir_Karl_Popper> at
12 May 2008

Ad Supported Music – Part 2

This is the second part to an earlier post in which I discussed the increasing use of advertising in business models to supplement or replace income from individual consumers in the digital music environment. Moving on from the worst case scenario, this post considers the ways in which an ad supported business model could be employed in a beneficial way.

The Most Favourable Model
Ad supported business models for music could create opportunities for the diversity of culture, free speech and democracy if developed in a way that took account of the potential negative implications and sought to overcome these. Ad supported music services offer an enormous potential for the reception of culture, enabling any person with access to the internet the ability to enjoy and explore an essentially unlimited range of material. Under the right conditions, business models of this nature also offer the potential to level the playing field for the entry of new creators. Again it is important to consider the nature of the enterprise offering the music service, the equality of access for speakers, the mode of communication and its influence on audiences as well as the independence of the opinions of creators.

In contrast to profit seeking entities, non profit associations or formal cooperatives allow a much greater opportunity to accommodate goals of an abstract nature such as the pursuit of a diverse and fair music industry; allow for democratic decision making and mutual ownership. While not all corporations possess objectives of extreme and unmitigated capitalism, any structure other than these would, if not from the outset, then certainly in time, allow for the worst case scenario as described earlier to develop. Employing an alternative structure does not mean operating without creating revenue but that this is not the primary objective. Any profits are returned to the members or used to enhance the service itself for the ultimate benefit of the public.

By employing such a structure there is a far greater opportunity to secure equality of access for creators thus promoting active public participation. In discussing an alternative compensation model for open peer to peer file sharing, Professor Terry (William) Fisher suggests that rather than just considering the number of times a track is downloaded or streamed from a digital music service, that an alternative or hybrid satisfaction determinant may be achieved through a public voting or rating system. Media corporations could continue to operate in such an environment but would be no more powerful to control the direction or development of the service(s) than any other member.

The democratic structure also provides for an open and transparent division of advertising revenue. By ensuring that independent, particularly politically motivated artists have equal access, enhances the likelihood of this genre of music to be created reducing the present commercial preference for emotive and dance music.

The mode of communication is also a fundamental determinant in the ability to secure free expression to the benefit of democracy. Unlike the closed internet architecture models discussed in the previous post, and while again a matter of degree in each instance, open peer to peer file sharing networks, particularly those written with open source code, offer no limitations to participation and unlimited file formats. Whilst the issue of digital rights management for individual files is not directly prevented by this model, typically it has been the case that unprotected files have been uploaded to open networks. If the remuneration of artists were to be facilitated on open networks there would more than likely be a need to track downloads or streams in some way, for example, through the use of non-invasive watermarks or other software. The non profit nature of the structure would therefore aid in limiting the incentives to implement digital rights management technology to the extent used in closed networks, allowing far greater reception, interpretation and mediation of culture.

The independence of the expression of creators would also be ensured to a far greater degree if an advertising model were adopted within a democratic/non private structure. There would also be less incentive to exclude or favour particular advertisers and the potential to allocate a quantity of advertising space to non profit or socially beneficial endeavours.

Conclusion
In the end the adoption of ad supported business models may not be identical for each music service presently in place or developed into the future. Nonetheless there are conditions in which political music and a diversity of culture will thrive over others. Left to the interests of powerful corporations it is far more likely that the potential for creativity, free speech and democracy will not be realised. Some parallels may be drawn with the implications of commercial television compared with the more liberal programming of public television. In order to enhance the quality of music and to create the conditions in which deliberative democracy can take place, there must be equity between creators, an open communication model and expression independent of the overbearing influence of capitalism.


Further Reading
ArsTechnica, Report: ad-supported content will soon dominate digital media (5 May 2008) <http://arstechnica.com/news.ars/post/20080505-report-ad-support-content-will-soon-dominate-digital-media.html> at 6 May 2008

TechDirt, Advertising is Content; Content is Advertising (19 March 2008)
<http://www.techdirt.com/articles/20080318/004136567.shtml> at 6 May 2008

TechDirt, Content Is Advertising... On TV (23 April 2008) <http://www.techdirt.com/articles/20080422/022513915.shtml> at 26 April 2008

Digital Music News, We're Number Three: SpiralFrog Claims Third-Place Download Crown (28 March 2008) <http://www.digitalmusicnews.com/stories/032708three> at 30 March 2008

CNet News, Ad-supported SpiralFrog finally launches music site (7 August 2007) <http://news.com.com/2100-1025_3-6201315.html> at 12 August 2007

Digital Music News, SpiralFrog Grabs $2 Million...With Serious Strings Attached (2 January 2008) <http://www.digitalmusicnews.com/stories/010207spiralfrog> at 11 January 2008

Digital Music News, MySpace Scores Gold Record (In Ad-Supported Terms) (24 March 2008) <http://www.digitalmusicnews.com/stories/032308pennywise> at 26 March 2008

Digital Music News, Back from the Brink: Qtrax Licensing Deals Emerge (3 March 2008) <http://www.digitalmusicnews.com/stories/030308qtrax> at 5 March 2008

Digital Music News, Details Bubbling on Major-Backed, Ad-Supported Venture (19 February 2008) <http://www.digitalmusicnews.com/stories/021708ad> at 21 February 2008

Digital Music News, Gabriel Pumps Serious Cash Into Ad-Supported Startup (22 January 2008) <http://www.digitalmusicnews.com/stories/012008gabriel> at 30 January 2008

William Fisher III, Promises To Keep (2004) <http://www.amazon.com/Promises-Keep-Technology-Entertainment-Stanford/dp/080475845X/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1210219722&sr=8-1> at 5 May 2008

Christopher J Sichok, The Free Market: An Erosion of Free Speech, eLaw - Murdoch University Electronic Journal of Law, Volume 7 Number 3 (September 2000) <http://www.murdoch.edu.au/elaw/issues/v7n3/sichok73.html> at 6 May 2008

Wikipedia, Deliberative Democracy (7 February 2008)
<http://en.wikipedia.org/wiki/Deliberative_democracy> at 6 May 2008

Wikipedia, Public Television (25 April 2008)
<http://en.wikipedia.org/wiki/Public_television> at 6 May 2008

Free Press <http://freepress.net/> at 6 May 2008

Ad Supported Music – Part 1

In a recent digital media survey concerning ad supported, subscription and pay per play business models, 62% of senior media executives stated an expectation that content creators will develop ad-supported business models by 2013. Twenty-five percent considered content creators would focus on subscription-based models and only 11% favoured pay-per-play services. While this survey did not specifically consider the pay per download model, the anticipation of an increase in adoption of ad supported services reflects current trends within the music industry and is a reasonable prediction. With this is mind it is pertinent to consider the ways in which such a model could develop, with the potential for both positive and negative attributes.

Traditional notions of free speech suggest that public spaces enable a market place of ideas which further the ends of liberty and justice. This conception of free speech depends on three vital assumptions – active public participation facilitated by equality in access for speakers; the mode of communication and its influence on audiences, and the independence of the opinions of speakers. The degree to which these attributes exist in the digital music environment reflects the potential opportunities for, or impediments to, free expression.

In this post I will outline some of the conditions least likely to realise the benefits cyberspace offers. In a follow up post I will counter this discussion with an outline of the ways that ad supported business models could be used to produce conditions favourable to creators and society.

The Worst Case Scenario
The use of advertising to supplement or replace direct consumer payments for music could have detrimental consequences if developed without adequate foresight. Where ad supported music services are owned privately and operated on a for-profit basis there are inevitably implications for free expression and democracy. These manifest primarily in a negative way by reducing the equality of access to speakers, in the selection of communication models and by influencing the content of creations. At present there is already a low level of competition within the legitimate digital music market. The natural tendency of capitalist corporations is to consolidate through mergers and in the event that a reasonable level of competition could not be maintained between web services, there would again be further threats to the diversity of culture, free speech and democracy.

In evaluating the ability of creators to equally access digital music services, the position of independent artists is of fundamental importance. Artists should have equal opportunity to communicate their works to the public and the same opportunities to produce financial rewards. Where such web services are related to major record labels there is an extremely high possibility that independents will not be given equal treatment. Even if such web services are owned and run separately from major content providers, the profit seeking motive of a private enterprise may nonetheless be enough to create a similar level of favouritism. This could occur in direct ways through limiting the participation of unsigned artists altogether or through indirect ways such as the allocation of prominent spaces, reviews and other promotional activities in an unfair manner.

The internet itself is a communication mode separate and distinguishable from others such as the mass media. Within this mode of communication a number of architectural models can be employed. For-profit, private music services are more likely to engage closed architectures. These include structures such as streaming subscription services, digital media stores and closed peer to peer networks. Whilst a continuum and matter of degree in each instance, a closed architecture by definition limits the ability of creators and consumers to participate by imposing requirements such as formal identification, entry payments and limiting the range of file formats. In addition to this, restrictions on the life span and subsequent uses of the content through the use of digital rights management technology influences the reception, interpretation and mediation of expression.

Another important factor in evaluating the ability for ad supported music services to achieve these goals is the independence of opinions expressed by creators. Two important factors are the strength of the connection between individual artists and commercial sponsorship, and the content of the advertising itself.

If implemented in a way that created direct sponsorship arrangements with individual artists, the use of advertising to supplement or replace the income of creators could amount to a level of commercialism within the music industry not seen even today. While many consider the present concentration of major record labels as harmful, by directly tying commercial sponsorship to the production of music and remuneration of artists, there would be a further constriction of free expression. If on the other hand, ad supported business models were connected only to the internet based music services themselves, there may be less influence over the content of creations and artists that are rewarded.

The nature of advertisements available on such web services also raises an interesting issue. It is feasible to suggest that whilst such services could cater to an enormous range of sponsors, that any site with a critical level of popularity will attract specific and demanding corporate advertisers. The size and the placement of the advertisements may be one factor to consider but the content and the nature of the advertisers is also a central concern. As Mike Masnick of TechDirt writes, advertising is a form of content just as content is a form of advertising.

Where corporate interests determine what music is produced and which artists will succeed, this inevitably results in a lack of cultural diversity and an absence of political or thought provoking material. This leads to less social and political awareness, therefore reducing civil participation and progress.


Further Reading
ArsTechnica, Report: ad-supported content will soon dominate digital media (5 May 2008) <http://arstechnica.com/news.ars/post/20080505-report-ad-support-content-will-soon-dominate-digital-media.html> at 6 May 2008

TechDirt, Advertising is Content; Content is Advertising (19 March 2008)
<http://www.techdirt.com/articles/20080318/004136567.shtml> at 6 May 2008

TechDirt, Content Is Advertising... On TV (23 April 2008) <http://www.techdirt.com/articles/20080422/022513915.shtml> at 26 April 2008

TechDirt, On Content, Promotions, Basic Economics... And Loutish Statements (25 March 2008) <http://www.techdirt.com/articles/20080324/000718629.shtml> at 27 March 2008

TechDirt, Just Because Content Is Free Doesn't Mean It's Worthless (15 April 2008) <http://www.techdirt.com/articles/20080411/153919828.shtml> at 17 April 2008

Digital Music News, We're Number Three: SpiralFrog Claims Third-Place Download Crown (28 March 2008) <http://www.digitalmusicnews.com/stories/032708three> at 30 March 2008

Wired Listening Post, Qtrax Inks Deal With Universal for Legal P2P Music (6 May 2008) <http://blog.wired.com/music/2008/05/qtrax-inks-deal.html> at 7 May 2008

Christopher J Sichok, The Free Market: An Erosion of Free Speech, eLaw - Murdoch University Electronic Journal of Law, Volume 7 Number 3 (September 2000) <http://www.murdoch.edu.au/elaw/issues/v7n3/sichok73.html> at 6 May 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

More on Semantics

Another contribution in Music Culture and Society is a speech given by Leonard Bernstein at Harvard University [see page 38 of this text or originally published as: The Unanswered Questions: Six Talks at Harvard (Cambridge, Mass.: Harvard University Press, 1976), 125-31, 133, 135].

Bernstein states that music can be thought of as one 'super game of sonic anagrams'. The twelve 'letters' can be arranged in different combinations with a rich array of possibilities derived from hortizontal and vertical structures - melody, harmony and countrapuntal anagrams, and the added variety of features such as pitch, dynamics, duration etc.

However he then questions whether music is a game at all - for Bernstein music is more than mere pleasure: 'music does more...says more, means more...' He suggests that apart from feelings or moods and beyond representations of pictures and stories, music has 'instrinsic meaning'. Whilst acknowledging the lack of agreement on how music achieves this, he contends nonetheless that there is a general consensus that 'meaning, nay, expression' takes places via music. He sees meaning and expression as being separate - meaning allows listeners to repeat and communicate a derived notion where expression is more a sensation such as passion, glory, or mystery.

I see both expression and meaning in music, however it is questionable that the law in it present state is sophisticated enough to consider both. To some the distinction may be dismissed as trivial, but to many, including myself, it can be seen as a juncture of sorts - the place where values intersect and collide.

Copyright law categorically protects the expression of music once reduced to a material form. Typically it has been more the domain of the law relating to free speech that has centred on the freedom to communicate meaning. Where music is limited by the law, technology and the market (Lessig); so too, is meaning. It is marginalised and silenced (to a large degree but perhaps not absolutely) by the priority of other objectives (profit). The challenge for us is to find the ways that allow both, rather than one at the expense of the other. From a simplistic perspective: the present maximalist copyright laws could be said to favour expression but afford little attention to meaning; open file sharing networks provide a space for meaning but arguably lack the financial structure to sustain a professional sector; but a blanket licensing scheme could allow for both to be achieved at the same time and to a greater level.