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

European policy on ISP responsibility for copyright infringement

In recent weeks there has been increasing discussion regarding the desire for internet service providers to take steps to reduce breaches of copyright law. There are three ways in which major copyright holding corporations seek to involve internet service providers in the pursuit of those who fail to respect their property rights. These include the disclosure of users identities following private investigation of their internet use, a three strikes policy forcing the banning of users after a series of notifications of copyright infringement and an internet wide filtering policy.

Disclosure of users identities

Earlier this year the European Court of Justice ruled that the European Community does not have to disclose the identities of those in breach of copyright law unless a country's national law requires such a disclosure.

The EFF reported: The decision in Promusicae v. Telefonica involved a request made by a Spanish music rightsholder association (Promusicae) to Spain's leading ISP (Telefonica) for personal data about Telefonica subscribers using particular dynamic IP addresses, which Promusicae alleged were engaged in filesharing.

The decision upheld the importance of privacy protections preventing the disclosure of users identities where infringement does not incur a criminal penalty.

Three Strikes & Filtering

Initially France announced its intention to introduce a three strikes policy; a strategy later attracting further attention in the UK and other countries around the world. The European Parliament has also been in the process of discussing and debating the Bono Report on the Cultural Industries. In November 2007 the European Parliament's Committee on Industry, Research and Energy (ITRE), following heavy lobbying from organisations such as the IFPI, tabled an amendment supporting the introduction of internet wide filtering by ISPs.

This sparked widespread public outcry forcing the Parliament to rethink this approach.

Last week further changes were introduced to the report seeking to reverse the adoption of these strategies, instead providing formal recognition of the need to preserve human rights on the internet and to maintain a degree of policy independence:

BBC News reports stated: The amendment called on the EC and its member nations to "avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of internet access."

Two hundred and ninety seven members (out of three hundred and fourteen) of the European Parliament voted to accept these changes. Whilst not having immediate or direct impact on the laws implemented at a National level, it nonetheless represents a recognition of the negative implications of these approaches and overall policy objectives of balancing copyright protection with other fundamental human rights as they relate to the internet.

The blanket filtering of copyright material on the internet posses significant practical, social and creative implications.

The practical implications include the need to provide and maintain expensive infrastructure in an attempt to prevent unlawful access and use of such material. This would result in additional costs for ISPs which would be borne by individual and commercial users of the internet. At best, the flow on effect would be one of performance degradation, with some copyright material still likely to be accessed regardless.

The social issues are also immense. Essentially such a move would enable private interests to dictate what members of the public could access, with significant implications for free speech, cultural diversity and the future development of technology. Other arguments include the favouritism of large media corporations over that of independent producers, and the artificial continuance of business models and practices that are simply no longer relevant to the digital environment. Fair use/fair dealing rights are also likely to suffer from the adoption of a policy of this nature.

For ISPs there also remains significant questions as to their independence and liabiltiy as communications carriers. There has been a long held belief across many jurisdictions that it is for the overall benefit of the public that the internet remains an open and accesible network.

Similarly, the social costs of a three strikes policy include the restriction of internet access to those most likely to need and benefit from it – children and students. I have posted on the problems associated with this strategy in the past.

Let’s hope that these developments signify the recognition of competing interests in this space and a determination not to automatically accept the arguments offered by powerful corporations.

Articles
EFF, Music Industry Pressures EU Politicians for Filtered Internet (7 December 2007) <http://www.eff.org/deeplinks/2007/12/music-industry-europe-filter-pressure> at 15 April 2008

ZeroPaid, European Parliament Rejects Plans to Disconnect File Sharers (11 April 2008) <http://www.zeropaid.com/news/9398/European+Parliament+Rejects+Plan+to+Disconnect+File-Sharers> at 13 April 2008

BBC News, Europe rejects anti-piracy plans (11 April 2008) <http://news.bbc.co.uk/2/hi/technology/7342135.stm> at 13 April 2008

TechDirt, European Parliament Rejects IFPI Plan To Make ISPs Copyright Cops (10 April 2008) <http://www.techdirt.com/articles/20080410/165146815.shtml> at 13 April 2008

ZeroPaid, European Amendment to Stop P2p (8 April 2008) <http://www.zeropaid.com/news/9391/European+Amendment+to+Stop+P2P+Disconnections> at 8 April 2008

EFF Deeplinks, EU Politicians Strikes Back Against Three Strikes (7 April 2008) <http://www.eff.org/deeplinks/2008/04/eu-politicians-strikes-back-against-three-strikes> at 8 April 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

Public and Private Governance

Following on from a number of recent posts which have considered the dominance of major record labels and the impact of their actions on the production and reception of political music, today I would like to briefly introduce the concept of private governance.

Below you will find links to a power point presentation I delivered last year titled ‘The Dialectical Interplay of Public and Private Governance: consequences for audible culture’. Arguing that we have reached a state of globalised private governance over audible culture, I conclude that the present degree of disablement of public governance structures, which took place through a series of historical developments and the emergence of modern corporations law, dramatically hinders (if not completely prevents) the resolution of the present conflict with respect to digital music.

This is not so much a new concept as an application of an existing perspective to the digital music environment. Lawrence Lessig began to consider the impact of private governance in cyberspace in Code (2.0). Chapter 16 in particular, concerns ‘the problems we face’. Here he refers to the limitations that are presently in place preventing the courts, legislature and ourselves, from being able to respond to the challenges of cyberspace.

He contends that the courts are paralysed from making the decisions they need to make as they are unable to adequately separate themselves from the political environment and because there is no ability for them to apply constitutional values to a space that is primarily privately owned and operated.

He also refers to the problems of governance itself (not just governance with respect to cyberspace), including the corruption of the political process through campaign donations and the establishment of private governance mechanisms such as ICANN, located outside the democratic process.

Finally he considers the problems with our understanding of, and interaction with, code, suggesting that in recognising the private status of this form of regulation, we should be asking things like: Who makes and writes the law? What is the scope for society to have an input into its development? Do we have a right to know about the regulation? And, is there a way for us to intervene or review it?

He states (at 324):

Whether code should be tested with these constraints of public value is a question, not a conclusion. It needs to be decided by argument, not definition... Courts are disabled, legislatures pathetic and code untouchable.

In real space, the concept of private governance has also been considered in the context of the destruction of the natural environment.

I see the impact of private governance on digital music as being a self perpetuating cycle – using the corporations law and public choice theory, media entities lobby and receive stronger legal protections enabling them to control the production and reception of culture, which in turn limits the awareness and ability of the public to challenge their control. Indeed, when culture is controlled in this way the implications are much wider than just digital music - impeding the realisation of constitutional values in cyberspace, the natural environment and many other areas of life. Political music illustrates, educates, motivates, and in conjunction with social movements, precipitates into social progress - provided it can be produced and accessed on a socially cohesive scale.

The solutions are outlined by Lessig in Chapter 17 of Code 2.0 and are undoubtedly the subject of much of his current research. As one of the major drivers of wider social progress, I would suggest that freedom of culture is a key component to this movement. Whilst it is tempting to suggest that the freedom of culture has to come before the reclamation of the legislature and democracy, more accurately, this is a fight that needs to be fought on multiple fronts at the same time. One cannot succeed without the other and both will happen in increments.

There are two versions of this file:
The first is an animated slide show with a synchronised audio track for those wishing to play the presentation – the text of the talk is also available in the notes view (large file): http://www.filefactory.com/file/bb3dbe/

The alternative version has just the text of the talk which can be read in the notes view (smaller file): http://www.filefactory.com/file/545d0c/

A separate document is provided as a bibliography: http://www.filefactory.com/file/61ff19/

Further Reading:
Lessig, Lawrence, Code 2.0 (2006)

Korten, David C, When Corporations Rule the World (2nd ed. 2001)

Wikipedia, The Prince (8 April 2008)
<http://en.wikipedia.org/wiki/The_Prince> at 11 April 2008

Project Gutenberg, The Prince by Niccolo Machiavelli (1532)
<http://www.gutenberg.org/etext/1232> at 11 April 2008

Shut Up & Sing

Continuing my recent series of posts on interesting music DVDs, the other night I watched the Dixie Chicks film ‘Shut Up & Sing: Freedom of speech is fine provided you don’t do it in public’ – a 2006 documentary, released in June 2007 in Australia. The film covers a three year span in the band's career and examines the events surrounding political statements made by the band's lead singer Natalie Maines with respect to the war in Iraq.

In 2003, as the war was commencing, Natalie stated during a live concert in London that the band were opposed to the war and that she was “ashamed that the President of the United States is from Texas”. These comments sparked an extremely negative reaction from some country music fans, the majority of which were very strong Bush supporters. The backlash included protesters outside their concerts, the burning and destruction of CDs and merchandise, a ban by some radio stations, significant loss of CD sales and even a death threat to Maines. Despite issuing a statement clarifying the comments and openly supporting the troops serving in Iraq, the issue was quickly sensationalised by the media and snowballed beyond the control of the band.

Whilst not the genre of music I would normally listen to, I found this film illustrated some very important points with respect to free speech and the music industry.

The statement itself, which appears to have been unplanned, was nonetheless an expression of the signer’s political views. Clearly shocked at the negative reaction, they firstly tried to qualify the comments. As time went on however, they became determined to highlight the way a sector of the media and the general public were attempting to censor their views.

At a concert soon after the event, the band, in acknowledging the importance of free speech, allowed concert goers an opportunity to boo openly if they felt the need to express their lack of support for the singer’s comments. Interestingly enough there was well voiced support for the band instead of booing, but nonetheless, their relationship with many fans was significantly strained. The band closed their websites and chat rooms following the incident, which in itself could be seen as a form of censorship however other sites including FreeRepublic.com provided adequate opportunity for those concerned to express their views. In fact, it is suggested in the film that members of FreeRepublic were instrumental in organising the boycott and movement against the band.

There was obvious concern both from their sponsor, Lipton, and record label, Sony. Lipton were the sponsors of their tour at that time and whilst still wishing to be associated with the band, were so concerned about the situation that they provided support in the form of a public relations consultant to help the band mediate the conflict. Maines states that Sony were obviously concerned about music sales because in the past the band had been something of a ‘cash cow’ and this had been put at risk. To their credit the Dixie Chicks did not succumb to this pressure even discussing the possibility of voluntarily allowing Lipton to end their sponsorship arrangements. Similarly, the follow up album and single recorded by the band contained a number of tracks reflecting on these events and the importance of free speech.

The part of the film which really brought home the issue of censorship for me was the response of many of the country music radio stations. At the time that these comments were made the band was heavily dependent on this sector of radio to help publicise their music and drive CD sales. Following Maines comment some listeners contacted these radio stations when their songs were played, complaining and stating that they would never listen to that station again if they continued to play their music. This resulted in a number of stations boycotting the band altogether.

Their manager, Simon Renshaw, testified before the 2003 hearings of the US Senate Committee for Commerce, Science and Transportation which considered the concentration of media ownership (particularly radio) in the United States. The film highlights a series of exchanges between Renshaw, Lewis Dickey – CEO and President of Cumulus Broadcasting, the chairman of the committee Senator John McCain (current Republican Presidential Nominee), Senator Barbara Boxer and Senator Gordon Smith.

Renshaw describes the decision of the country music radio stations to ban all air play of the Dixie Chicks as a form of censorship exercised to silence the political views of the artists. Of particular interest is the way the decision not to play their music was made by the radio networks. Dickey disputed the characterisation of Cumulus Broadcasting as a radio network, describing the decision of the 270 radio stations in 55 States to boycott the band, as a unanimous, collaborative decision. McCain did not accept this, suggesting that it was a decision made from the corporation’s headquarters which was binding on the DJs employed by the stations in the Cumulus group. Other radio networks also banned the playing of the band’s music.

The discussion considers the right of a radio stations to select the music it plays, particularly when an artist is politically active. Senator Gordon Smith noted that politics can have ‘business consequences’ for artists and that many have realised that these consequences may be negative.

I think it is natural to expect some fans will disagree with artists that speak out on political issues, however these events suggest much more took place than simply individual radio stations responding to listener’s concerns. As McCain notes, the decision not to play the band’s music was not made by individual DJs rather it was imposed as a blanket policy. One may also question the number of listeners who did not call up and complain but either agreed with the statement or would have preferred to listen to the band’s music regardless. Reports concerning another radio station suggest that two DJs who decided to defy a ban by locking themselves in the studio, taking listener requests and playing the band's music in a Dixie Chicks marathon, were suspended by the station’s General Manager.

Problems associated with a concentration of media ownership in the United States are well illustrated by this film. The direct conflict between the political views of a very popular band and the conservative views of the station owners that had supported their music in the past and some vocal members of public, provide an unparalleled illustration of the potential for monopoly ownership to determine the content of material the wider public is exposed to. Without a diversity of media outlets who are able to make independent decisions, music of a political nature and musicians who are willing to lend themselves to promote or support certain issues, are silenced by the commercial interests of a handful of powerful corporations. To some extent the increasing use and accessibility of the internet to average citizens has helped to overcome some of these issues, but nonetheless, at present, terrestrial radio remains the most important vehicle for hearing new music.

The concentration of media ownership is not limited to radio networks but operates throughout the content industry, including television and the print media (see for example the documentary Outfoxed: Rupert Murdoch's War on Journalism.) In the music industry the major labels are also often seen to contribute to this form of censorship by selecting acts that appeal to the widest possible sector of the public to ensure greater commercial success. This typically marginalises artists with views that may not be so readily accepted by the mainstream.

If music is to provide social commentary and to contribute to the progress of society, there must be the infrastructure in place to ensure that the political views of a small but powerful minority do not influence the content of the works that are produced and made accessible to the public. The best way to ensure this takes place is to decentralise power through ensuring a diversity of media ownership and sources. This includes business models that will sustain independent artists, decentralised distribution networks and network neutrality.

In this example it appears that there is a happy ending. Since the time this statement was initially made, public support in the USA for the war has changed dramatically and in 2007 the band collected five Grammy Awards including Record of the Year, Song of the Year and Best Country Album. However this should not detract from the many artists that continue to be marginalised by the commercial interests of the labels and other mainstream media. As a society there needs to be greater attention to the potential for bias and a concerted effort to enable a variety of artists to succeed and be supported in their craft.

Articles:
Wikipedia, Dixie Chicks: Shut Up and Sing (8 April 2008)
<http://en.wikipedia.org/wiki/Dixie_Chicks:_Shut_Up_and_Sing> at 10 April 2008

Wikipedia, FreeRepublic.com (10 April 2008)
<http://en.wikipedia.org/wiki/Free_Republic> at 10 April 2008

Wikipedia, Natalie Maines (25 March 2008)
<http://en.wikipedia.org/wiki/Natalie_Maines> at 10 April 2008

Democracy Now, Shut Up and Sing: Dixie Chick’s Big Grammy Win Caps Comeback From Backlash Over Anti-War Stance (15 February 2007) <http://www.democracynow.org/2007/2/15/shut_up_and_sing_dixie_chicks > at 10 April 2008

World Socialist Web Site, Colorado disc jockeys suspended for protesting Dixie Chicks’ ban (9 May 2003) <http://www.wsws.org/articles/2003/may2003/dixi-m09.shtml> at 10 April 2008

NBC6, Radio Jocks Suspended for Playing Dixie Chicks (7 May 2003) <http://www.nbc6.net/entertainment/2185232/detail.html> at 10 April 2008

Wikipedia, Outfoxed: Rupert Murdoch’s War on Journalism (30 March 2008) <http://en.wikipedia.org/wiki/Outfoxed> at 10 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

Fair Use Forever

Updated. I was reading with some interest a recent post on The Patry Copyright Blog discussing international criticism and the history behind the fair use doctrine in the US Copyright Act. As a resident of a country with much narrower and specific fair dealing provisions I am often envious of the breadth with which the US law approaches this issue. It seems incomprehensible to me that the USA should be criticised for these measures unless it be a suggestion that they are expensive and cumbersome to enforce – something that could be easily overcome without altering the scope of the law. Recent events in Australia serve as an excellent example as to why I think this way.

Those who have read my recent post on the film Better Living Through Circuitry or have experienced electronic music, would be aware of the artistic brilliance of many DJs in remixing and mashing music. As the discussion often highlights, copyright law stands as an impediment to many of the activities which these people undertake and whilst in some cases illegal art is produced (such as The Grey Album) in many, many others, creators are prevented from producing works.

It was with a sense of disappointment that I recently read that ARIA – the Australian Recording Industry Association – have developed a new license allowing DJs to purchase the right to format shift their music to enable them to take it to gigs. As our copyright law only permits format shifting for very specific personal purposes, any DJ who moves music from vinyl/tape/CD or other source to their laptop, mp3 player or any other storage device is automatically in breach of the law unless they purchase one of these licenses. Maximum penalties can be up to sixty thousand dollars and 5 years imprisonment with on-the-spot fines of over one thousand dollars.

This, of course, operates above and beyond the fact that the venue hosting the DJ also has to pay a license for the use of the music. Indeed it was only a few days ago that the Federal Magistrates Court held a number of clubs liable for damages for failing to have such a license – APRA v Cougars Tavern & Ors [2008] FMCA 369 (28 March 2008). This case concerned two premises, one of which was The Heat nightclub located at Melbourne’s Crown Casino. APRA (Australian Performing Rights Association) representatives attended the club on three occasions between March and August 2005, and used a mini disc recorder to record evidence of the use of music in the APRA Repertoire without the appropriate license. Interesting facts from the judgement include that there are around 4 million tracks presently in the APRA repertoire catalogue with 60,000 current licenses for playing music at public venues.

The case was uncontested and the judge had little difficulty finding the operators of the club in breach of the Copyright Act. Compensatory damages were awarded in the amount of $16,952.83 with an additional allocation of $4,587.48 for interest, being the amount payable for the licenses over this period of time.

Additional damages were also awarded for what the court considered to be a flagrant breach of the law. Referring to the dictionary definition of the term, the court considered evidence that the performances were to large audiences, the popularity of the venue, that it was regularly advertised as a venue which played music and that the music was central to the profits of the business. Unlike a venue which plays music in the background or in an incidental way, nightclubs are a category of business for which music is a primary source of income and in which license fees are calculated based on the number of people in attendance. The failure of the directors of the company to cooperate with APRAs investigation, preventing the accurate calculation of the number of customers of the club, also contributed to the characterisation of the breach as flagrant. In this instance the director had an extensive history of avoiding the payment of APRA licenses and this contributed to the proportion of damages ultimately awarded. The award against the director was for $125,000.00 and a further $50,000.000 was awarded directly against the company operating the club.

I don’t dispute that venues who use music as a primary means to attract and entertain customers should pay license fees. However I do raise an eyebrow at the thought of a DJ having to pay for a license to format shift music to play at a venue that has to pay a license to play music. To me this is nothing short of double dipping. I would expect that most DJs in the past have been in breach of the law without knowing it and given the often intermittent and the already limited financial rewards they receive, are not likely to be in a position to pay for these licenses in the future. One then has to wonder whether a venue that engages a DJ who has format shifted without a license is secondarily liable if they fail to inspect and verify its existence in advance. I consider the format shifting of music in this case to be a fair use and the law should reflect that. Without playing the music before an audience there is no value to the DJ – they don’t get paid just for having it on their laptop. This is a perfect example why narrow and specific fair dealing provisions are unworkable and undesirable in real life.

Articles:
A.P.R.A. v Cougars Tavern & Ors [2008] FMCA 369 (28 March 2008)
http://www.austlii.edu.au/au/cases/cth/FMCA/2008/369.html

TripleJ, New licence for DJs to format shift music (2 April 2008) <http://www.abc.net.au/triplej/musicnews/s2205666.htm> at 8 April 2008

ARIA, Licensing Frequently Asked Questions <http://www.aria.com.au/pages/licensing-faq.htm> at 9 April 2008

TechDirt, The International Whisper Campaign Against Fair Use (7 April 2008) <http://www.techdirt.com/articles/20080403/012447736.shtml> at 8 April 2008

ArsTechnica, Big Content in worldwide "whisper campaign" against Fair Use (7 April 2008) <http://arstechnica.com/news.ars/post/20080407-patry-copyright-owners-wants-rights-expanded-to-were-rabbit-size.html> at 8 April 2008

The Patry Copyright Blog, Fair Use, the Three-Step Test, and the Counter-Reformation (2 April 2008) <http://williampatry.blogspot.com/2008/04/fair-use-three-step-test-and-european.html> at 8 April 2008

360 Contracts and MySpace

I have been holding back on blogging about the recently announced MySpace Music initiative because the few articles initially circulating have been a little light on in definitive detail. However, as more information begins to emerge there appear to be some worrying issues.

At present there are reportedly around 5 million artists with MySpace pages.

Three of the major labels (not EMI as yet) are to form a separate company, owned and run by them as a joint venture, to work with MySpace to enable artists to sell music as well as a whole range of other products. This raises questions of the potential for anti-competitive practices and the impact that the domination of the labels might have on both signed and unsigned artists.

Signed Artists
In recent times and quite apart from the MySpace initiative, there have been reports suggesting that the very survival of the major record labels depends on their ability to alter the traditional contractual arrangements with artists. Recording contracts were already notorious for being unfavourable to the artist given the small royalties, the need to recoup advances, marketing, production and other costs prior to seeing any real money as well as their length and what many see as a loss of artistic control. In the past labels have recovered their costs and profits long before the artists signed to them break even. But as the trend continues whereby labels are increasingly unable to rely on the sale of CDs to sustain their business model, a new, much broader record contract has been developed.

The newer flavour of record contract tends to allow the label to recover costs from other aspects of the artists business such as merchandising, concerts and sponsorship deals. Most signed artists realise fairly quickly that they are unlikely to make money from music sales and in the past relied primarily on these sources to support themselves. Naturally, as record companies are demanding more of this money, artists are left further financially disadvantaged.

Reports regarding this new initiative with MySpace indicate that it will not simply be music that will be sold through this avenue. Indeed it will be all of these aforementioned sources of income that will now be bundled together. This gives an enormous amount of power to the record labels to control all aspects of a signed artist’s career. One argument is that it benefits the artist because by limiting the infrastructure and coordination costs there can be a cost saving. The other side of this though is the possibility that individual artists will be worse off as they have no choice but to accept any deal offered by the labels. Without the ability to negotiate these aspects of the business independently and with the labels essentially controlling the distribution of music in this forum, signed artists may well face a much greater form of contractual slavery than they currently do.

Unsigned Artists
Around 40% of the music market (a proportion that continues to grow) are currently independent artists. One report suggests that the music service, whilst initially being developed by the major labels, will eventually allow independent artists to sell their music and associated items. Remembering however that this initiative will be owned and run by the major labels there are two points of contention. The first is that it is highly unlikely that independent artists will be treated equally. One can easily imagine a situation where the artists signed to the major labels are promoted ahead of independents, where bandwidth is prioritised in favour of signed artists or the possibility that independents may end up paying more for the privilege of having this avenue to sell their work. This later point raises a second area of contention. As the industry itself moves away from music as the primary product, it seems that paying the major labels to distribute the work of independent artists, allows them to access royalties by default. Without having to support the artist, coordinate their careers, cover the costs of their recording or marketing; major labels nonetheless will still be able to make money out of them.

The Public
Of course there are also flow-on effects to the public from this proposal. As I often note, an environment that is not supportive of the best artists inevitably results in the promotion of music that is commercially viable rather than socially advantageous. While, fortunately, not all people use MySpace and there will continue to be some competition from other music initiatives, this business model will further impede the movement to a collective licensing model. There are already suggestions that most of the music will be protected with DRM (with a possibility of some unprotected tracks). More importantly however, such a model continues to depend on the stifling of innovation through the continued persecution of file sharing technology and users.

One commentator concludes discussion of this issue by stating ‘Welcome to Feudalism 2.0’. Unfortunately this captures much of my sentiments regarding this proposal. In many ways this is much worse than the current market dominance of iTunes. It smacks of the potential for anticompetitive behaviour and does nothing to overcome the current difficulties of artists and the public in the digital music environment.

Articles
TechDirt, Major Record Labels Form Joint Venture With MySpace (3 April 2008)
<http://www.techdirt.com/articles/20080403/111142739.shtml> at 7 April 2008

The Register, MySpace Music leaves creators cold (4 April 2008) <http://www.theregister.co.uk/2008/04/04/myspace_music_coup/> at 7 April 2008

The Register, MySpace trumpets music service (3 April 2008) <http://www.theregister.co.uk/2008/04/03/myspace_music/> at 7 April 2008

SiliconValley/Associated Press, MySpace starts music service with 3 major record companies
(3 April 2008) <http://www.siliconvalley.com/personaltech/ci_8796093> at 7 April 2008

Digital Music News, It's Coming: More Dealmaking Details Leak on MySpace Music (25 March 2008) <http://www.digitalmusicnews.com/stories/032408myspace> at 26 March 2008

Digital Music News, Fog Starts Lifting on MySpace, Major Label Discussions (21 February 2008) <http://www.digitalmusicnews.com/stories/022008myspace> at 25 February 2008

Digital Music News, Upstreaming Disrupted:Why Major Label Survival Depends on Transformed Deals (18 March 2008) <http://www.digitalmusicnews.com/stories/031708upstream> at 19 March 2008

Digital Music News, 360 + Change: Labels Pushing Harder on Broader Deals (10 February 2008) <http://www.digitalmusicnews.com/stories/021008change> at 19 February 2008

Punks Not Dead

I was fortunate enough to see the 2007 documentary Punk’s Not Dead on the weekend and thought to let you know a little about it. Firstly let me say that it was an excellent film with a whole range of interviews and clips from different artists – such as Henry Rollins (BlackFlag), members of Bad Religion, The Addicts, Subhumans, The Offspring, Sex Pistols GreenDay, Fugazi, My Chemical Romance, Good Charlotte and many others.

A lot of discussion was given to the nature and purpose of punk in so much as it offers a vehicle to comment on and criticise society. With working class roots the genre circumvents musical rules and boundaries and very much consists of a D.I.Y. culture. Jello Biafra of the Dead Kennedys suggests that punk was the rebirth of the spirit of rock’n’roll that the corporations and major labels had killed off as they commercialised that style. For a very long time punk existed on the fringes of society. It was developed by the youth who formed their own bands, wrote their own songs, put on concerts for themselves, developed their own networks, published their own promotional material including magazines, and recorded and distributed their own music. This was all accomplished without the support of major record labels who saw the genre as commercially unviable.

From its inception in the 1970s through to the early 1980’s the popularity of punk grew. Some suggest that in the mid to late 1980’s the style disappeared but others argue that it simply went further underground. It has enjoyed a type of renaissance since the early 1990s and remains very popular today. Bands such as Bad Religion, Nirvana, Pennywise and Rancid all helped reignite support for the style with bands such as Green Day and The OffSpring also helping it to become more widely known.

Many artists commented on the way that the style has gained more mainstream support over this period with some suggesting that those bands signed to major labels that no longer give primacy to social commentary in their lyrics are betraying the culture and values of the genre. Others suggest that commercial support can help them to take their reflections on society to a larger audience and to achieve the purpose of the style more effectively. Highlighting the importance of the underlying messages to true punk music, Billie Joe Armstrong from Green Day states that as a child he learnt about politics from punk music rather than from the education system.

The film concludes by considering whether or not punk has changed the world. One artist notes that there is political corruption and environmental damage on a much greater scale than there was when punk first developed and that this suggests that the impact has been on an individual rather than a global level. Personally I would challenge this suggestion. It is possible that political corruption, environmental destruction and social injustice would be worse now if it had not been for punk music.

I really enjoyed this film both because it brought back some fond memories of my earlier days and because I find this genre inspirational both from the determination and dedication of the artists as well as the educational and political nature of the lyrics. Rock Against Bush is just one example of this community uniting to entertain and educate others about political issues.

The film lists some of the following websites for those that wish to find out more about the style and what’s happening in the punk scene:

Links:

Punk Voter: http://www.punkvoter.com/
Punk News: http://www.punknews.org/
Punk Network: http://www.punknetwork.com/
Punk Radio Cast: http://www.punkradiocast.com/
Punk Connection: http://www.punkconnection.com/index.php

Bebo

Billy Bragg raised some interesting questions recently as to whether artists should be entitled to some of the revenue raised from the sale of Bebo which was sold to AOL for $850 million. Media reports highlighted two opposing opinions; Bragg (and others) suggested that they should be entitled to a cut of the profits because a large part of the success of the site is due to the participation of musicians. On the other side, others argued that artists were free to chose whether or not to use the site, that if the site had made a loss they would not be offering to meet the debts, and that in having the opportunity to gain exposure and make contact with fans they have already benefited sufficiently. These are all compelling arguments. As well as highlighting the difference between contractual rights and what some might see as equitable rights, this issue also raises the need for musicians to collaborate together for their own benefit.

Contractual rights and equitable rights
Bragg’s argument is that the value added to the site was sourced from outside the software developers and operators. In essence he makes an equitable argument for a share of the sale funds. Equity is a strand of law developed by the courts over a very long period of time that does not rely on legislative enactment to gain its force. Examples of grounds for entitlement include the doctrine of unjust enrichment, constructive trusts and the like. Some remedies such as injunctions are also seen to be equitable in nature.

While it is difficult to frame Bragg’s argument within the confines of these doctrines, his suggestion nonetheless has an equitable flavour to it. He argues that artists, as the real creators of value to such sites, should be given or offered some reward for their contribution. He suggests that artists are like investors in the site and while I disagree with this characterisation overall, it is nonetheless possible to see his reasoning as to why they should be rewarded for their contribution. But of course this argument can also be extended beyond musicians. All of the 40 million members of Bebo at the time of its sale had in fact contributed some form of ‘expression’ so the value really stems from the community as a whole not merely the artists.

However, in real terms it is the contractual provisions which work against Bragg’s suggestion. Here artists have agreed to terms and conditions of use which displace any argument of an equitable entitlement. Without some other from of unconscionable behaviour which could be said to render their consent ineffective, at law, musicians on Bebo have no legal basis to make a claim.

Musicians Doing It For Themselves

There are three important points I think should be highlighted from this story:

1. It is the aggregate value of the artists rather than any one individual’s value that is important
2. Private ownership of the site has been a major disadvantage for artists
3. Artists need to recognise how emerging technologies such as blogging can create new financial opportunities for them
   

Whilst probably not possible at the time social networking sites were first launched, given their proven ability to assist in viral marketing and exposure, it may be time for artists to reconsider their position. With a relatively small amount of money it would be possible to start a social networking site owned by its members and run on a not for profit basis. While there are of course costs associated with starting a venture such as this, arguably there has been a reduction in the risk associated with these sites since their initial introduction. Furthermore, a critical mass of musicians on a member owned site would inevitably attract the wider public. Even if some privately owned social networks continued to operate, musicians would be in a better bargaining position.

If artists truly wish to realise their independence and embrace the potential that the internet offers they need to work together. Private companies are profit driven. Unless musicians are owners of those companies the decisions that are made will only ever be in their interests whilst their interests are clearly aligned with the pursuit of profit.

Articles

TechDirt, It's Not Exploitation If You Chose To Take Part (24 March 2008) <http://www.techdirt.com/articles/20080322/142342625.shtml> at 3 April 2008

New York Times, The Royalty Scam (22 March 2008) <http://www.nytimes.com/2008/03/22/opinion/22bragg.html?_r=2&oref=login&oref=slogin> at 3 April 2008

e-consultancy, These crazy bloggers still think they understand the music business (25 March 2008) <http://www.e-consultancy.com/news-blog/365309/these-crazy-bloggers-still-think-they-understand-the-music-business.html> at 3 April 2008

Making Available

Recent reports state that the Federal District Court in New York has dismissed arguments that simply making a file available in a shared folder which can be accessed on a file sharing network can amount to copyright infringement.

In the past it has generally been considered that a positive act of distribution would be required in order to establish infringement however this now longer appears to the case. Billboard reports that a judge in the Elektra v Barker case has held that whilst the Copyright Act does not define 'distribution' it does define 'publication', that these are essentially the same thing and that this can be used to interpret Section 106(3). In allowing the labels further time to amend the complaint the Judge also provided the correct wording to be used in future file sharing cases:

Justice Kenneth Karas wrote that a plaintiff must allege in the complaint that the defendant "made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display." The labels' complaint alleged that Barker made the recordings available for distribution to others - not that she "offer(ed) to distribute copies or phonorecords to a group of persons for purposes of further distribution."

Unfortunately this means that placing a file in a shared folder can amount to an offer to distribute and that actual distribution need not take place. While further consideration will be given to this issue in another case - Atlantic v Howell - it appears that for now that this decision will enable the labels to sue more people for more money, more quickly and with lower costs in gathering evidence as they will not have to establish that the file was actually shared with another person.

This is an unfortunate decision not just because it will be harder for file sharers to avoid the demands for payment by the labels - whilst I do not personally file share** and I don't think others should break the law, equally I do not think this is a reasonable or effective solution to the issues the labels face. But my concern is also with the artists.

A number of articles this year have indicated that of all the money that has been recouped in damages by the labels against file sharing software developers and network operators, very little has been given back to the artists. So not only do the artists miss out on the money that they might have had if the person sharing the file had purchased it (statistically unlikely in the first event), the very fans they are looking to to attend concerts and support them in other ways are being sued, the primary avenue for others to discover and explore their music is being shut down and still they get no money. Making it easier to sue file sharers is just as bad for artists as it is for the general public - the only real winners are lawyers and maybe the labels.

A link to a copy of the decision can be found at the RecordingIndustryvThePeople Blog.

(** I have in the past downloaded verified creative commons music on Limewire but do not currently have a copy of the software.)

Articles
Billboard, Court Backs Majors on File-Sharing Question (31 March 2008) <http://www.billboard.biz/bbbiz/content_display/industry/e3i73f32003f239851a2a6aae5368d831e9> at 2 April 2008

RecordingIndsutryvThePeopleBlog, Judge rejects RIAA "making available" theory but sustains complaint, and gives RIAA chance to replead defective theory in Elektra v. Barker (31 March 2008) <http://recordingindustryvspeople.blogspot.com/2008/03/judge-rejects-riaa-making-available.html> at 2 April 2008

ArsTechnica, New ruling may "grease the wheels" of RIAA litigation machine (31 March 2008) <http://arstechnica.com/news.ars/post/20080331-new-ruling-may-grease-the-wheels-of-riaa-litigation-machine.html> at 2 April 2008

Digital Music News, Managers Wondering Where P2P Settlement Checks Are (3 March 2008) <http://www.digitalmusicnews.com/stories/030208money> at 4 March 2008

New York Post, Infringement (27 February 2008) <http://www.nypost.com/seven/02272008/business/infringement__99428.htm> at 3 March 2008

TechDirt, Musicians Wondering Why They're Not Seeing A Cut Of RIAA Settlements (28 February 2008) <http://www.techdirt.com/articles/20080228/125620382.shtml> at 3 March 2008