Copyright and Creativity: Getting Balance Back

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This slideshow identifies the problem of copyright imbalance and addresses where it is possible to effect change that broadens the opportunities for new creators who use existing copyrighted material, such as people making remixes, mashups, slideshows, and other works.

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  • Fair use and copyright exemptions generally are escape hatches to the owner’s monopoly in copyright.
  • Nicholas Poussin’s painting is used as an illustration, under fair use, in Wikipedia’s entry on the phrase, “Standing on the shoulders of giants.” (Although the painting is in the public domain, the Met’s photo of it is copyrighted.) Cedalion standing on the shoulders of Orion from Blind Orion Searching for the Rising Sun by Nicolas Poussin , 1658, Oil on canvas; 46 7/8 x 72 in. (119.1 x 182.9 cm), Metropolitan Museum of Art
  • Over the last century, a set of economically and politically powerful mass media entities has grown up, and vigorously participated in copyright policy discussions.
  • DRM DMCA, Copyright Directive takedowns
  • Some kinds of MSM are on life support.
  • But…the fact that old methods of collecting money collide with new modes of distribution is a business problem, not a copyright problem. Once new business models emerge, and they will, because the new distribution methods are so good, then copyright will no longer be invoked. The business model crisis is off the table for this discussion. We’re talking about everything but downloading today.
  • US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire US: Fair use Europe: Right of quotation, noncommercial, academic, criticism, satire
  • Wait. The incumbent mass media businesses also find the licensing snarl to be dysfunctional, but they are universally afraid that any solution, especially compulsory licensing, will impair whatever business model eventually emerges for them. They’re staying put for the moment.
  • Creative Commons site on Flickr is an example of a pool of free images in an artificial public domain.
  • But the creation of an artificial public domain is only one fairly small solution to the problem of licensing. 1) because most people don’t do it. You can see that when I entered “commons,” “public park” and finally “park” nothing came up on Flickr within the CC site. 2) because most of what people commonly share and refer to in culture, especially popular culture, is copyrighted and often commercial. Star Trek, Disney, Halo.
  • This is the second kind of problem. Not being able to locate the owner of a work.
  • This is a problem that got much worse with default copyright. It would help if people had to register but …registration will await global reform –Berne convention prohibits registration. There are proposals to resolve this problem of identifying abandoned material and using it in the absence of permission, when you want to license it but can’t get the $ to the owner. But in most places, this is stalled for the same reason the big copyright owners won’t establish a rational licensing arrangement. In US even a proposal (escrow) with universal acceptance cannot get passed EU: Berne convention very rigid in protection of copyright holders. (Wikipedia): On June 4, 2008 European representatives of museums, libraries, archives, audiovisual archives and right-holders signed a Memorandum of Understanding [17] , an orphan works legislation supported by rights-holders. It will help cultural institutions to digitize books, films and music whose authors are unknown, making them available to the public online. [18] But no current action. But In Canada: Canada has created a supplemental licensing scheme that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable copyright owners, after a prospective licensor has made "reasonable efforts to locate the owner of the copyright". [2] As of August 2008, the Board had issued 226 such licenses, [3] and denied 7 applications. [4] EU: Berne convention very rigid in protection of copyright holders. On June 4, 2008 European representatives of museums, libraries, archives, audiovisual archives and right-holders signed a Memorandum of Understanding [17] , an orphan works legislation supported by rights-holders. It will help cultural institutions to digitize books, films and music whose authors are unknown, making them available to the public online. [18] But no current action.
  • DRM is a shifting market problem; the legal enforcement of DRM is a serious policy problem
  • This is what you find on YouTube, which as an ISP in the US is free of copyright liability so long as it responds efficiently to complaints and acts on them WHETHER OR NOT they’re legitimate. (You can demand a reinstatement but the process is intimidating.) The infringer—the person who put up the material—can be sued.
  • This is what you find if you’re on the German site for YouTube, which refers you back to a comprehensive site. In Europe, ISPs have to respond as well to takedowns, and Internet users can lose their Internet service.
  • Focused legal reform New Zealand ( http://digitaltransformationschool.org/wiki/nz-blackout/)--DMCA type law suspended after public protest (Jordan Carter can tell us how that happened) France, HADOPI (On June 10, 2009, the Constitutional Council of France struck down the central, controversial, portion of HADOPI, that would have allowed sanctions against internet users accused of copyright violations (as opposed to being convicted for same), ruling that because "the Internet is a component of the freedom of expression" and "in French law the presumption of innocence prevails", only a judge can impose sanctions under the law. [9] [10] )
  • Centerforsocialmedia.org/fairuse
  • We used the best practices approach to address the problem. This is a process of discovering the hidden norms of interpretation within the group of practitioners/makers/users.
  • The first stage was researching the problem. We interviewed about 60 filmmakers with open-ended questions about their creative decisions when faced with questions of using copyrighted material to do their work. We discovered big problems— Difficulty finding copyright holders Terrible prices Avoidance of fair use at all costs (too dangerous!) But the biggest problems were: Changing reality in order to film it Avoiding large sections of reality because they felt it would be unfilmable Music Movies Politics News Celebrities (e.g. anchors on news programs!) Filmmakers believed that understanding how to interpret fair use would stop the worst of these problems, self-censorship, and also lower costs, without impairing their ownership rights.
  • Filmmakers through 5 major organizations, which convened small-group “quiet meetings” across the country, easily identified four areas in which fair use came up: Critiquing media (Outfoxed) Media as illustration (“During the Estado Novo…) Incidental (someone sings Happy Birthday) Historical (this one was very limited, making fair use only applicable when archives could not make material available basically, and when the material was not the central topic of the film) Then a legal advisory board looked over the work. Two major foundations, the John D. and Catherine T. MacArthur Foundation and the Rockefeller Foundation, paid for this work.
  • Teachers came to us because they had a common problem whenever they taught using popular culture, and especially when they taught “media literacy”—criticism and analysis of popular culture. Once again we conducted research, and discovered teachers were overcomplying, avoiding teaching with this material when they used it, closed the classroom door and swore their students to secrecy. Used bad or inadequate material, e.g. making up their own ads to simulate common advertising. They too worked through their organizations to determine norms of interpretation, and again a legal advisory board looked over their work. The Ford Foundation paid for this.
  • The interpretation was organized according to uses that teachers make (in a classroom, preparing materials, and circulating materials) and uses that students make (making it and circulating it).
  • When YouTube was bought by Google, Viacom sued YouTube for copyright infringement. Free speech advocates were concerned that any settlement could preclude fair use. We worked with Ford Foundation money to conduct research to identify the actual practices on online video sites of makers who use old work to make new work (e.g. mashups, fan videos, vids, remixes, recuperated video, material posted as an example of an issue that the poster wants to discuss). We found nine kinds of common uses. But there was no reachable “community” to convene through associations. We then convened electronically a group divided into fair use-friendly lawyers and DIY/new media/fan culture cultural studies experts, to construct a code of best practices. They worked over four months to establish a common understanding of 1) current practices 2) legally viable ways to phrase these practices 3) limits of fair use for these practices.
  • The resulting categories of practice were deliberately designed to be familiar to people more rooted in the analog media and meatspace world, and to refer back to legal precedent on other kinds of media. Google immediately funded the making of a video about the Code, to be posted to YouTube and other sites.
  • Within the U.S., the notion of creating a community interpretation of fair use has become a popular strategy. As well, the codes have become widely enough used in some businesses that they have been incorporated into business practice.
  • Internationally, related professional communities have been eager to adapt these strategies for their own situation.
  • To develop a strategy to clarify and expand the use of exemptions to rebalance copyright for your situation, community and nation, you need to: Find out what experienced problems currently are with copyright, within communities of use and production. Are there problems in how copyright affects creative acts? Is the law the problem? Is practice the problem? What laws? What practices? Understand specifically what the exemptions of your country are, what copyright law applies, and what the current discussion about legal reform is. Decide on a strategy appropriate to the problem and the reality.
  • Copyright and Creativity: Getting Balance Back

    1. 1. Copyright and Creativity: Getting Balance Back Pat Aufderheide Center for Social Media, School of Communication, American University
    2. 2. <ul><ul><ul><ul><ul><li>How do copyright policies inhibit the growth of digital culture? </li></ul></ul></ul></ul></ul>
    3. 3. Purpose of Copyright
    4. 4. One Purpose : <ul><li>To promote the creation of culture </li></ul>
    5. 5. By: <ul><ul><li>Rewarding creators with limited monopoly </li></ul></ul><ul><ul><li>Encouraging new makers to use existing culture </li></ul></ul>
    6. 7. Why balance? <ul><li>All culture created on existing culture (we used to know that) </li></ul>
    7. 10. How we forgot balance: <ul><li>Copyright term extension </li></ul><ul><li>Default copyright </li></ul><ul><li>Derivative works </li></ul><ul><li>Large copyright holders’ anti-piracy tactics </li></ul>
    8. 11. Two challenges: <ul><ul><li>Collapse of business models (incumbents’ problem) </li></ul></ul><ul><li>Copyright imbalance (emergent users’ problem) </li></ul>
    9. 12. Business models eroding <ul><li>P2P </li></ul><ul><li>Piracy </li></ul><ul><li>Downloading </li></ul><ul><li>Etc </li></ul>
    10. 15. The Imbalance Problem
    11. 16. When we try to use existing culture to make new culture: <ul><li>It’s hard to license </li></ul><ul><li>It’s hard to find out who owns it </li></ul><ul><li>We’re locked out and punished if we break the locks </li></ul><ul><li>We’re not sure what the balancing features of our laws are </li></ul>
    12. 17. Licensing <ul><li>Usually time-limited </li></ul><ul><li>Too many layers </li></ul><ul><li>too many regions </li></ul>
    13. 18. Solution:
    14. 20. +
    15. 21. Build an Artificial Public Domain by Tweaking Licenses <ul><li>GPL (free software license) & Creative Commons licenses </li></ul><ul><li>… enabling new pools of content </li></ul><ul><li>Open source software </li></ul><ul><li>Open CourseWare </li></ul>
    16. 23. Portugal’s first branch of Students for Free Culture, started here!
    17. 25. “ Orphan Works”
    18. 27. Tech/Legal Pre-emption of Balancing Rights <ul><li>DMCA (US) </li></ul><ul><li>EU Copyright Directive </li></ul>
    19. 30. Patches: <ul><ul><li>Citizen participation in legislation (NZ; France) </li></ul></ul><ul><ul><li>Press on exemptions (U.S.) </li></ul></ul>
    20. 31. Using Balancing Rights
    21. 32. Fair Use <ul><li>U.S., Israel, Philippines </li></ul><ul><li>legal, unauthorized use of copyrighted material--under some circumstances </li></ul><ul><li>Flexible </li></ul><ul><li>Broad </li></ul><ul><li>Adaptable </li></ul>
    22. 33. The list approach: Fair dealing (Commonwealth) Fair dealing (UK] Many many exemptions to EU laws (national basis + Berne convention) Flexible dealing (Australia, more like fair use)
    23. 34. CENTERFORSOCIALMEDIA.ORG/FAIRUSE <ul><li>AU’s Fair Use Project </li></ul>
    24. 35. Fair Use Project
    25. 36. Judges love fair use <ul><li>They ask: </li></ul><ul><li>Did you transform the use? </li></ul><ul><li>Did you use the appropriate amount to satisfy the transformative use? </li></ul><ul><li>PLUS: What are your community’s expectations/practices? </li></ul>
    26. 37. Individuals fear… <ul><li>Will I get it wrong? </li></ul><ul><li>Will I get sued? ($125K+ per infringement!!) </li></ul><ul><li>Will my boss/librarian/client get angry? </li></ul>
    27. 38. BEST PRACTICES
    28. 39. Education <ul><li>Knowledge of the law </li></ul><ul><li>Awareness of problem </li></ul><ul><li>Define interpretation of fair use </li></ul>
    29. 40. Communities define fair use for themselves: <ul><li>Documentary filmmakers </li></ul><ul><li>Film scholars </li></ul><ul><li>Media literacy teachers </li></ul><ul><li>More </li></ul>
    30. 42. Doc
    31. 43. Results: <ul><li>Broadcasters program films </li></ul><ul><li>Cablecasters program films </li></ul><ul><li>Filmmakers develop new kinds of projects </li></ul><ul><li>Television/web companies expand their plans </li></ul><ul><li>All insurers of errors and omissions insurance now accept fair use claims </li></ul>
    32. 44. English teachers
    33. 45. Media literacy categories <ul><li>Teaching with copyrighted material </li></ul><ul><li>Using copyrighted material in curriculum materials </li></ul><ul><li>Circulating curriculum materials with copyrighted material in them </li></ul><ul><li>Student use of copyrighted materials in their work </li></ul><ul><li>Circulating student work </li></ul>
    34. 46. Online video
    35. 47. Online Video Code <ul><li>Comment/critique </li></ul><ul><li>Illustration/example </li></ul><ul><li>Accidentally/incidentally </li></ul><ul><li>Preserve/recall </li></ul><ul><li>Discuss </li></ul><ul><li>Collage </li></ul>
    36. 48. U.S. movement: Film scholars Archivists Open Courseware Int’l Communication Ass’n Business (“we wouldn’t even be talking if…”)
    37. 49. First steps of international movement to use exemptions : <ul><li>Canadian filmmakers </li></ul><ul><li>Mexican filmmakers </li></ul><ul><li>EU filmmakers </li></ul><ul><li>South African filmmakers </li></ul>
    38. 50. To join the movement: <ul><li>Document the problem </li></ul><ul><li>Research the reality </li></ul><ul><li>Define the opportunity </li></ul>
    39. 51. Pat Aufderheide <ul><li>Center for Social Media </li></ul><ul><li>School of Communication </li></ul><ul><li>American University </li></ul><ul><li>Washington, DC </li></ul><ul><li>[email_address] </li></ul><ul><li>202-885-2069 </li></ul>
    40. 52. Please feel free to share this presentation in its entirety. For excerpting, kindly employ the principles of fair use.

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