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Remixing copyright

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  • This is a story of border-crossing—across disciplinary borders within academe…
  • … and across borders between working communities of artists and teachers, and professional and academic communities of lawyers and scholars.
  • This is a story about research—and particularly the importance of ethnographic research that documents creative practice.
  • This is a story about action, about people making decisions and making work that changes copyright policy
  • Finally, this is a story of constituency building.
  • Notes: The problem addressed in this story is that of unbalanced, long-and-strong copyright policy.
  • Since 1976, we live in an increasingly long-and-strong copyright era.
  • Copyright terms are so long they might as well be forever.
  • Copyright covers many related works—the play written from the book, the cover version of the song.
  • And penalties for infringement have soared.
  • It is no accident. This agenda was pushed hard and successfully by large content owning companies, who found a happy match with government neoconservatives. Both saw copyright as an ownership right.
  • The legislative changes went along with vigorous public campaigns…
  • … involving thunderous moral rhetoric.
  • This, however, is a fundamental and destructive way to conceptualize copyright, and moreover it is wrong. Copyright policy in the U.S. explicitly is designed to encourage the creation of culture, using a range of tools. A limited monopoly is one tool, with real drawbacks. Monopoly of any kind, including this kind, was highly suspect to Thomas Jefferson and regarded as a necessary evil by James Madison.
  • Notes: Other features of copyright policy that balance the evils of monopoly including putting term limits on it, allowing people to do what they want with copyrighted material once they have it—including selling it (“first sale”), and today’s most important balancing feature, fair use.
  • Notes: Other features of copyright policy that balance the evils of monopoly including putting term limits on it, allowing people to do what they want with copyrighted material once they have it—including selling it (“first sale”), and today’s most important balancing feature, fair use.
  • Notes: Long and strong copyright leads to atrophied creative practice. How do we know that? Because at CSM, along with the Washington College of Law’s team led by Peter Jaszi, we found out. We interviewed documentary filmmakers, English teachers, aspiring makers of online video, and film and communication professors. We drew on overlapping disciplinary focuses. Coming out of critical legal studies, Jaszi was concerned about the social construction of authorship. Coming out of cultural studies, I was concerned about the social construction of culture.
  • Notes: In each case we found out that both people’s confusion over what they are permitted to do, and what they are told they cannot do by their gatekeepers—their lawyers, their general counsels, their librarians—keeps their imagination enchained. They suffer, as William Blake said in a different circumstance, from “mind-chained manacles.”
  • Notes: One example; When we interviewed documentary filmmakers about their projects, they told us they never had films stalled because of copyright licensing problems. Why? Because, as good professionals, they avoided any topics that could lead to such problems. Such as? Such as….anything involving popular film, popular music, politics (too many news clips), and anything that could look like parody or satire, because it might not meet the bar.
  • Notes: Wow. When we showed them what they had just said, they said, “That’s censorship, from the inside.” We called it “imagination foregone.”  So now what? What can be done?
  • Notes: Wow. When we showed them what they had just said, they said, “That’s censorship, from the inside.” We called it “imagination foregone.”  So now what? What can be done?
  • Secessionism: Building alternative tools and platforms such as Creative Commons or Open Educational Resources that let people give away their copyrighted work if they want to, and construct a sharing culture.
  • It works OK in some limited nonprofit environments, but it can’t do more than create a sandbox. There really isn’t a world elsewhere. We typically need to quote existing commercial culture as we make new works, study the culture, comment on it.
  • Notes: Pranksterism—which is the politics of the powerless. The goal is to piss off the powerful. A lesser form of this is decrying and complaining.
  • Notes: and legal reform—which runs into the problem that Congress listens to money, and that’s how we got the 1976 Copyright Act and the problems we have today.
  • Notes: I venture to argue, with Bill Patry, that the upshot of such work has been to foment a very unhelpful metaphor of the “copyright wars,” when there is no war at all. There is a real problem, of unbalanced copyright. And if you step away from the war metaphor, you can see options.
  • Notes: There is a big area between the polarized extremes of the debate, with significant room for action. My colleague Peter Jaszi had a proposal: encourage people to use the rights they actually do have left, in the balancing features—particularly fair use.
  • Notes: It’s vague in the law, which makes it very flexible. And judges love it and urge people to use it. Judge Alex Kozinski, of the 9 th Circuit court of appeals, said that copyright is not broken, and indeed quite good over time at adapting to new conditions. But people need to use the rights they have.
  • Notes: But people often don’t feel the level of comfort that judges have with fair use. They worry: Will I guess wrong? Will I incur statutory damages? Will I be able to contravene my institution’s existing policy? Will the client let me do that? 
  • Notes: This led to my Center’s Best Practices project, which has been funded by foundations including Rockefeller, MacArthur, and Ford. The project expands the utility of fair use by creating consensus documents within communities of practice around its definition.
  • Notes: It worked like this: First the Center and WCL did academic research into the experience of communities of practice. Where was the intersection between their understanding of copyright law and their creative decisions?
  • Notes: Then we pulled together people with experience in that practice community, usually through their professional associations, and got them to brainstorm together about what they thought should be possible to accomplish the basic mission of their profession, employing fair use.
  • Notes: We created codes of best practices in fair use, in this fashion, with documentary filmmakers, media literacy teachers, makers of online video, dance archivists, and film and communication scholars.
  • Notes: In six years we have worked with hundreds of people directly, and dozens of organizations. Recently, we began working with two very different communities: poets and librarians. The poets have highly specialized concerns, and the librarians have issues that affect every school, university and library in the United States.
  • Notes: We have seen fundamental change in the field. Let’s look at documentary filmmakers. After their code of best practices was released, broadcasters and cablecasters accepted films they would never have accepted before, such as Hip Hop: Beyond Beats and Rhymes, This Film Is Not Yet Rated, and The Trials of Darryl Hunt. Programmers commissioned new films and series. Insurers for errors and omissions accepted fair use claims for the first time in two decades. And new businesses sprung up, including law firms specializing in fair use.
  • Notes: We’ve also seen a growth of interest in fair use by legal scholars, such as Michael Madison, Pamela Samuelson and Rebecca Tushnet. Legal scholars are challenging the notion of copyright as a property right. They are restoring an emphasis on the public interest value of access to existing culture. They are building a rhetoric beyond the “copyright wars.”
  • Notes: We’ve seen new organizations spring up, such as the Organization for Transformative Works , which promotes the value of fair use for people who make remixes and mashups and vids. We’ve seen a change in copyleft organizations. Public Knowledge recently held a World’s Fair Use Day, and Free Culture recently featured fair use at its annual conference.
  • Notes: The change has not just been in business practices and orientation of think tanks. We have seen groups that came to know their rights then take political action. Recently, representatives of several groups appeared, as was their right, before the Copyright Office to explain why the growth of cultural expression in their area depended on getting an exemption from the DMCA’s rules against breaking encryption to copy films and other copyrighted works. It looks like they may win those exemptions.
  • Notes: Internationally scholars and members of creative communities have begun to explore the notion of balance in copyright, and the relationship between copyright and creativity. I’ll give you two examples.
  • Notes: In South Africa filmmakers who saw what had happened in the U.S. met to identify their own problems, and with Peter Jaszi and South African lawyers to design a code of best practices in using the South African law’s right of quotation.
  • Notes: Norwegian scholars at the University of Bergen looked at our report on documentary filmmakers’ problems, Untold Stories, and used our research protocol as a template to do the same research in Scandinavia. They found very similar problems, held a conference, and are now coordinating with filmmakers a code of best practices in the use of a Scandinavian exemption to copyright’s limited monopoly: the right of quotation.
  • Notes: At the Norwegian conference, one of the great European copyright scholars, Bernt Hugenholtz, gave a speech, entitled, “Do Not Fear Copyright.” His core message? Europe doesn’t have fair use, but it does have exemptions and limitations. People should use them to the max, find out what they can do, document what they can’t, and tell their national governments and European Commission.   Notes: This is a very down-to-earth and practical example of the effectiveness of cross-disciplinary work. Measureable change in the world has happened because of scholarly research that both documented problems and envisioned a way out of the “copyright wars.” It happened because scholars worked with communities of practice. It happened because communities of practice reached across national boundaries, and worked across professional boundaries.
  • Notes: There continues to be a powerful role for scholars to play in this area, as participant-observers in cultural creation. They and their students can document problems, analyze rhetorical strategies and their limitations, and develop standards.
  • Notes: And in doing all this, they should vigorously employ their own fair use rights. In fair use, as in so many areas, practice makes practice. Grow the green space.
  • Thank you. Please feel free to reproduce this work in its entirety, and if you excerpt, please employ the principles of fair use.
  • Notes: And here’s my contact information.
  • Remixing copyright

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