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October 26, 2006 | Suw Charman Anderson

Future of Copyright: Roundtable 3 - Law, regulation and the future

Note: This was the last session on Friday, and again these notes are pretty much verbatim. How could we operate if there wasn't copyright? What's the bare minimum we might exist with? Ideas for topics for discussion in this session - What is the business model for artists when you don't have copyright? How would artists make money? Who are the risk bearers? - When you have conflicting rights, how should those be resolved? How do artists feel they should be resolved? - Restricted acts, broadness of the concept of reproduction and the limits on what is restricted. - Look at alternative remuneration methods. Paradigms that could be extended. - Can copyright protect art from becoming a business activity? - Rights are defined by power, so the only strategy is continuous disobedience. - Different aspects of copyright. Freedoms. - Motivation and incentives. What motivates arts activities, as opposed to economic activities. Actual motivations don't seem to fit with assumed motivations. - Not immediately inevitable that you must do away with copyright to understand ways to remunerate artists; parallel systems and how they are relevant, e.g. academic industry and patronage of the institution. Re-discuss authorship as itself a business model. - Does anyone thing that it matters if copyright law fails to give protection to artists. - Something more idealistic, what other protections could form a basis for an economy. - What is at steak in the tension between the artistic and the business. Want some future thinking. Look at integrity to start with. As humans it's natural to see what one has and prevent others taking it, but you always think that's wrong when others prevent you from doing things. Integrity is a right that in theory gives me control over how others utilise my work, but that prevents me doing things with other people's work. So having more control means having less freedom. Huge difference in France with the right of respect that's existed for a long time. But rather than looking at what the right to integrity is, look at what's produced along the way. In the UK it's not a right that's had a very big effect, there are very few cases and in those nothing very objective has come out of them and in France sometimes we do see a conflict of rights, for example, the one place prevents theatre productions because of the right of respect, and it's a way of using this right to control contemporary culture. Other cases where the right of integrity has done good, look beyond the individuals in the case or the people who might be dead, we find that the right of integrity has done something good for art, for instance that quality has been protected in some cases. If an author has been dissatisfied with the way that his book has been published he could use his right of integrity to make a quality publication to our benefit. Works of art have been protected for future generations through this right. How does this affect the reproduction of art? In performing arts, if the heirs don't want a certain company to perform a play, that effect is clear. How does it affect the way work is reproduced in France. It might mean that the heirs, it's always the heirs never the writer himself who objects, the heirs might simply stop production or interfere with it, and say we don't want... the Beckett Estate didn't want an interpretation with all-female actresses. Might interfere with cultural process. Edward Beckett is a fine flute player, but he treats his uncle's plays as a musical score, so if the tree in Waiting for Godot is in the wrong place, he shuts it down. So this replaces this discourse within society over to the courts. Civil society should have the discourse not the court. But litigation is the end resort when you can't reach agreement in civil society. Video standard metadata, so you can discover films by topic or by these people or whatever. Wanted to encode in this metadata a 'do no evil principle', so wanted to digitally encode the intended uses of the video. Video information gets used in unintended ways, often quite immediately. Phrase they kept talking about was pornographic use of crowd violence. People think that it needs to be a digitally managed because they don't think people are responsible but it's not a good idea. Irony that they don't like copyright but think that they can use legal ways to control thing. Discourse about law going on here, not just copyright. Displacing into court something that should be done in society. But law is a part of society, and to say that something should be done in court not in society is to misunderstand the relationship. Not to defend law, but this notion that it's something sitting on a plinth with no relation to society is wrong. But, the example of the SS Windrush and the fear that a photo of disembarking passengers might be used by the BNP. But there's a difference between your work being used in a context you don't like, and your work being used in a context you don't like with the implication you have authorised it. So if it looks like you authorised it, that's qualitatively different. What's the motivation for the production of a creative work. Motivation makes a big difference. if someone used my brand or name and did something in my name that I didn't like, I'd be cross but if they developed my work in a new direction that I liked that would be good. Before university job, designed web pages, but when client went on to use same design for posters etc. and was really cross because felt should be paid. But just because was broke. Jaime wrote an article for a magazine, which then put it up online. Someone then took the article he'd written, rewrote it, and made it look like it was his work. Felt 'People are going to think that I've written this crap and that I'm working for this magazine' and felt a sense that integrity relates to some primal ideas about the way we project into the environment and the way we relate to each other. Seems to be on the one hand a way of justifying schemes of property, think of issues of ownership, e.g. you think that you have a sense of ownership for a child as an extension of yourself, but that doesn't mean you have property rights over it. Relationship between integrity and censorship, it's a bulwark against certain types of censorship. Exploitation, that's what's been done. Different people who are involved in cultural production have different relationships with their cultural product, some people feel a close connection, some feel alienated, some feel responsibility, some don't care how it's used, some see it as an extension of their personality, some see it as associated with reputation. And some of these comments are around the association between cultural production and reputation. How can we build a legal system that is respectful of this variety of relationship between cultural production and what they produce. So we have to take into account even people with what we might think of as overblown relationships. But all those other people can renounce or ignore bits they don't like. But there is a trade-off, because the stronger the right the more you interfere with others rights. Emphasising respect for one group, how does that affect others? Clearly everyone agrees that taking your stuff, changing it, and putting your name on it is bad, and should be stopped. But what if we do stuff and don't put your name on it. Everything that's being said about integrity fits in with the model we discussed when we discussed authorship. Need to overcome the idea that when we read a text we need to understand what the author meant, so the death of the author is the birth of the reader. In the case of the reworked article, Jaime found himself being surprisingly upset. Cyber rape case which was reproduced online with names of other people. But this is about identity and identity is not always the same as authorship. So this relates to all sorts of other things about how we're related as social beings. But can the author of the work regulate how the work is used? Roland Bathes' essay comes out of a tradition of intention-based reading. Author as repository of meaning in a text. What we're talking about here, and the links to reputation and the industry is not the same thing. When we're talking about integrity, it's about authorial control over the reader? But the integrity of the work is different from the action of the reader. If you make something available it's going to be reproduced, so it's nothing to do with the Windrush/BNP example. Integrity protects it against abuse. But if I reproduce it with racist statements on it? Can we deal with the variety of relationships artists and their work within the law? We have different opinions and we can't contain everything within the law. Law is the result of a political process but do we need it to reflect all relationships. Law as a reference tool? That we bounce ideas against. But we are talking about a wider issues. There are huge cultural industries that contribute to society with stories, and they will use the right of integrity to say you are not entitled to change a movie, but there is other uses for this. But not allowed to do it, because large capitalists are defining what stories we can and can't tell. Tate had a felt suit, as a work of art, that was eaten by moths and the artist's estate had said the damage was so bad that it was no longer a work of art. So the remnants are no longer a work of art which is not by Joseph (??). It's like deconsecration. Preservation is crazy. New museum that has a lab to preserve works of art made in chocolate. French case from the 90s where there was a modernist retrospective in Paris, there was a urinal and the case was about an unknown artist who broke the urinal and then urinated on it, and he was claiming to be the author of a new work, and it was agreed that it wasn't just destruction, he'd actually created something new. He was made to pay 30% of reconstruction, but did get to say he'd made something new. Technological determinism about debate about integrity. Talking about artworks or software... within the GPL, within that model of innovation, the right of integrity would cut right underneath that process. You're not creating software as a cultural activity, but within arts you are creating with a cultural aim. Questions around that. Within the arguments of integrity there's a strand of American views that finds integrity problematic because of property, idea that property exists and needs to distribute it. Marxist analysis of property is that if it is poorly distributed is a problem. Well, known integrity right in software - e.g. with Perl, you can take the code and do with it what you will be you're not allowed to call it Perl if you change it. Difference between integrity and control. Postmodernism says there is no integrity. Built on transgression of integrity, moves away from both ideas of integrity, i.e. retention of original condition and who built it. Aesthetic challenge to the demands we might make of the law. Jamie King: Why am I frustrated by this discussion and why does it not interest me? I suspect it's because I'm saturated with an online informational overload. The idea of trying to stop people I disagree with doing stuff with stuff, I have a problem with. For every informational object there is I am almost immediately confronted with the tools to disrupt it. Can edit and change anything, everything offers itself to reconfiguration. People want to have all the benefits of distribution, but don't want it disrupted, and it's beyond the capacity of rules to control that. Want all the benefits but don't want to take the risks. Code and transmissibility and reproduction creates problems for rule of law, of legal code, because it becomes hard to enforce. Law can be used as a reference and a final defence. Challenge as artists, performers and creators, what is the future system? How do we operate beyond copyright? If you don't have copyright the advantage is that huge cultural industries don't invest so heavily in blockbusters, so have a more level playing field. Just a normal market in which you can all relate to the public, and not be pushed aside by giants that make it impossible for you to distribute. If there is no dominant market force, many artists will make money and recoup their costs, and curious to hear individual cases to see what would that look like? See it in news reporting. Journalists spend most of their time reading blogs and feel usurped. But that's an ecosystem not a one way street. Journalists used blogs but blogs need the mainstream media too, so the idea that journalists are going to be usurped by bloggers is a false argument. Some may feel that way, but that's generally because they don't understand what blogs are and what bloggers intentions and ambitions are. Films that use uncleared clips, get theatrical release even though they are candidates for a copyright crackdown but it has not happened. Group called Eclectic Method, a group of DJs, who remixed copyrighted material, mostly feature films, and their biggest clients are in the music industry because they don't care that the stuff's not cleared because it's not their stuff. So there's pragmatism - is it worth suing? But ask less about exceptions or tests, but how do you fund creation that's not based on reproduction. If you say 'I am a journalist, and these are the things I've written. I would like to write an article about X and my price for doing this is £15k, and this is how I break down this cost. When I receive at least £8000 in donations I will begin to do this, and when I am done I will release it into the public domain.' Because then people can say 'right, this is this person, he's good, he's reliable, and I want to see this thing that he's making, so I'll pay £5. The result is that everyone benefits, even if they didn't pay, but the journalist doesn't care because he gets his money, and doesn't have to worry about further reproduction, but benefits from reputation not from republishing rights. Because then he can come back and say 'ok, this time my proposition costs £60k'. If you do it this way, you don't need to limit reproduction. [I thought at this point that Jamie was talking about Jay Rosen's Net Assignment, but when I asked him at the break, it turns out this was an idea he had off the top of his head, not influenced by Rosen at all.] Alternative forms of remuneration already exist. To some extent, the government via benefits. But if you take the Tate, practically none of the copyright payments go to the artists. But the artists are supported through fees, etc. Art world is unusual. If one imagines Harry Potter without copyright, is it true there wouldn't be 20 pirates piling in? There are good examples of people giving away their books under a Creative Commons licence and still getting good sales, so the idea that lifting the copyright barrier will necessarily remove economic incentive to publish is not correct. Ambulance blogger Tom Reynold's book, Blood, Sweat and Tea is both available under a CC licence, and each blog post that's in the book is still freely available on his blog, yet he reached 15 in Amazon's best seller list, and has been consistently outselling many big names. This, despite the fact that his publisher is a small independent publishing house. Other examples include Cory Doctorow and Lawrence Lessig. Free rider problem - people will free ride. Upfront funding on a co-ordination basis, there is a huge incentive to say no. People will, however, contribute in kind because they benefit. Difference between remuneration for artists and looking after them, and a different question to the future of copyright. Don't think that it's helpful to mix them up. Equally, pernicious effect of copyright. Attempts to talk about remuneration are biting off such a big bite to chew because the vested interests are working against them. What's intriguing with the art world is the multiple sources of respect, and different creative strategies within the art world are because of those alternative structures. Stuck in a deterministic model to do with the way we use technology. Future Shock was the first book to say that there was a stage beyond industrialism, called the information society. Got used to this idea that history was fractured, and then got used to a three phase history, to do with feudalism, then industrialism, then information society. Then IP becomes key and we argue about how that relates to technology, so it's just another phrase in the dialectical struggle. But is it really this simple. Their assumptions that their information society come from this elephant in the room. We want it to be that simple in moments of crisis. People who are moaning about lack of protection from copyright are corporations. Not reading letters in your paper from individuals about lack of protection, individuals moan about being stopped of doing things. We are all breaking the law and getting a richer culture from that, so what are we here for? Who owns the most copyright? An incredibly relevant question, which is not who owns the most copyright, but who asserts it? Who brings cases? If you analysed the money, we'll see who 'owns' most copyright. Copyright only protects the people with the money. I many cases, IPR for individuals don't mean anything until it comes to enforcement, so they are not really 'there'. We can't see it all until it's enforced. Different relationship with patents where it is registered. That manifestation of rights through enforcement, is a worrying development with patent law, how it's relevant to production at the beginning. Examine by litigation, so it's up to the consumers of the patents to regulate the system. This might not happen but it happens, in a sense, with copyright. People who've made money in one area move into the media because it's about influence. People invest in it. What have we got with copyright? How can it best be used? What is superfluous? First issues are what do we decide to protect? What kinds of things? And in what circumstances? Copyright has been largely around objects? What about going beyond objects? Or one that confines it to a very narrow set of cultural objects? Copyright can include the works of a genius or someone's scribbles - copyright does not discriminate between the poet and the peasant. Do we want copyright to discriminate? Is there another threshold - the law's threshold is that there must have been some effort. What level of protection do we want? What sort of rights to we want to give copyright owners - rights over reproduction; over commercial reproduction; derivative works; communication. Has been granted on all those things right now. Length, life plus 70, can agree that that can come down. Life plus 7; or life; or a fixed term of years; 14 + 14. Limitations. Even if we give these rights, do we want to limit them? Particularly about derivative uses. American dogma of fair use. Moral rights? Protecting integrity and attribution. Want to make it more author-oriented, to build in restriction of what rights can be given away. Three kinds of needs we should think about. - Instrumental needs. What activities do we need to incentivise, if any. - What ethical values do we want to incorporate. What rights do we want to give users. Respecting various relationships of authors to their work. - What symbolic values matter? We do care about art and literature, and we will put these things in law just to tell you people that we care about it. To place a value on this work. Can copyright protect art from becoming a business activity. What I don't mean is can certain individual artists use copyright to protect their works against business, but can copyright be used to protect the commons? Lots of contemporary artists have the primary concern of their resistance to business. Is copyright forcing people to be small commodity producers, when this is not what they want to be. The answer is no. Introduced race relations act and sexual discrimination act in the late 60s, but things might not be worse but are not much better. Law is part of a social system and so reflect social values. What law tries to do is channel social and political conflict into what lawyers see as technical disputes. It's interpretations of rules. To the extent that copyright is associated with two or three major cultural or philosophical ways in which the world has arranged itself in the last 300 years, of property, rights, these things are a part of a coherent development that's lasted 100 years. You are asking copyright law to do something revolutionary. People thought in the 60s that you pass a race relation act and racism goes away, and we've seen it doesn't. If the property right is so over-valued and its transmission is like shares in a company instead of the rights of an individual creator then the kind of exploitation we've described becomes an easy shot. Can we minimise that? The question was can we use copyright law to have a revolution, and the answer is no. Some of the ideas are so part of the society we live in and we'd need a revolution to do away with them. But there are some ways that copyright can be used against the system. Moral rights have a disruptive capacity. If we made that paradigm extreme and injected a big does of copyright law to it, would it result in people being paid to read the book. Has happened with people being paid to go to the cinema. The Pirate Cinema, though, didn't pay, they gave people things. But the rights administrators are key. Is it about carefully describing the transfer of rights and whether they can be Rights returning to creators when the publishing company is no longer publishing it. The majority of music recordings currently under copyright, for example, is not commercially available, it's just languishing on the record company's ledgers. Should rights revert to the creator once the rights holder (or licensee) has stopped commercially exploiting it? In Soviet Russia, they did respect copyright, did pay rights, but there was also a parallel system of state-run authors. Not totally dissimilar to the Salon in Paris, which were state controlled. But state-controlled systems generally look worse than the copyright system. What would you prefer, the artists dealing with copyright or the Arts Council deciding who gets a salary. But there is a fundamental problem with copyright being seen as a property right. The obvious hope is that we can have up-front funding, but without the bureaucratic constructs deciding who gets the money. The alternatives are not state control vs. copyright. Difference between this type of property than other types of property we recognise. One is that it's intangible and it's not wasteable - it doesn't disappear when you use it. What people mean is the property relation, but the discourse is around a property relation, rather than that it's wasteable. If you think about which bits of copyright we don't like, can you roll back what we don't like about copyright in order to change the symbolic nature of the system? Or do we need more fundamental changes. A lot of the answer might lie in the concept of authorship. Multiple constant transgressions carried out by almost everybody almost all the time, changes things, and that is actually happening. Should we look at a model of copyright that provides more choice, between the extremes of 'all rights reserved' and 'no rights reserved' as Creative Commons does? The least bankable property is on CC, but the pernicious problems, which are the real problems, they are never going to be dealt with that by. Any licensing system is an assertion of authorial control. CC is not a bad thing but it's pernicious. Concern with the CC England and Wales licence is that it is a system about the creator making things available to users, because of revocability. You can't create irrevocable licence in the UK in the same way you can in the US. So it makes the user vulnerable. Been two cases, Netherlands and Spain, on CC, because it has a rosette social value, rather than a real benefit. What's pernicious is the promotion of the idea that the licences should be read before you decide to do anything with stuff - because we're not lawyers and shouldn't be asked to be. CC is providing a service, it's not doing much campaigning. It's just providing a bunch of licences that people can use if they want. These pre-drafted license are useful to some people. CC is not copyright, it's contract law. As simple as it is, it's still contract law. CC does put more difficult language between people. Suddenly there's a contract between us based on law, we shouldn't be conditioning people to think in these terms. But also thinking that civil disobedience, if we are remixers, we have access to more culture than we have ever done. As an artist there are more specialised weird films than ever before. So if I am stopped from downloading they limit my ability to transpire culture. Point about CC is that it works best as a series of basic signposts that have some recognition. Works very differently in different areas. What you choose depends on what sort of media you are working with - works better with open access journals. Objection to it is that the more that these issues are discussed, the more problems we create. Lots of things used to happen without any sort of awareness of copyright, and if you start thinking about property and ownership in the early phases it does change and hinder things. If you are collaborating and you start thinking about which bits you own, that causes a problem. Problem is that this is being buried into places where it never used to have a role ad that's one of. Renouncing copyright. There is a difference between choosing not to enforce copyright and renouncing copyright. [I have been told by a number of IP lawyers that it is not possibly in the UK to dedicate a work to the public domain, i.e. to renounce all rights in it. The lawyer here looked puzzled at that, and insisted that it is possible to renounce copyright and that if one wanted to create a register of renounced works it was doable.] Philip Glass is much mimicked, but when someone asks him to use some music on a film, and he doesn't like the film he asks for a huge amount because he doesn't want to be in the film. So they steal it instead, because they know that the legal settlement is less than the fee. Problem of Chanel No. 5. being too popular, and so using jazz in adverts to put people off buying it. What are the other options? Could view it as a right to remuneration. system was proposed by people in the late 19th century. Labour laws in a way are about a right to remuneration. Even with in IP there are two examples - performers have a right to remuneration, and the get that through the PPL. In patents, rights that are given are property then if they are not used then they are subjected to compulsory licensing, so you have to pay an amount set by patent office. Both also have a property relation in there somewhere. To make it effective, need an administration system. There was an analysis of surrealism which suggested that the poetry of surrealism could be mathematically mapped out. Intrigued with the way that the discussion follows dichotomies - IP vs public domain - individuals vs network - private vs public - copyleft vs copyright etc. there's an association with certain ideas that we have in relation to copyright, that we fall into these binary frame of mind. Can't sum up the last day and a half, there are things we didn't talk about. Huge attempt to construct ideologies in quite concerted ways, there was a way to construct CC in a certain way which is why it gets up people's noses. Whole other debate which we didn't have, which is the faith that policy makers have in knowledge economics makes them vulnerable to representation from the industry. Ideologies about the way artists think about their practice. Copyright protects the author, but from the point of view of other authors your access to work is restricted. It does take us back a bit to the discussion, that do we have to pay each time a reader reads the text. Copyright must interrupt the flow in order to capture the value, so we need to have a way to capture value without interrupting, that would be a way to rebalance the system. Look at what user liberties are there in the law, and revitalise those rights and see how they interact with rights of the authors. Music industry is talking about renting music rather than buying, because they realise that if you can put yourself between one person and another in a communications system you can make money from it. So in the old days you buy the record and play it until it's scratched, but the new model is you buy 50 or 100 plays and you keep renting it back. There's an intriguing relationship that what you make with the object is important and your interactions with the entity is where meaning is created, and the business strategy is to interpose yourself in that meaning-making process. END I have to say that although we didn't reach any solid conclusions, it was an interesting day and a half. Certainly it was good for me to hear about copyright in areas other than text and music. I'd love to see more work done on the future of copyright, though - what future copyright schemes could we imagine? If we threw away everything we had and did a radical overhaul, what should it look like? It might seem like an intractable problem, but it's one we really have to tackle.

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Comments (2)

  1. robmyers » links for 2006-10-27:
    Oct 28, 2006 at 12:24 AM

    [...] The Open Rights Group : Blog Archive » Future of Copyright: Roundtable 3 - Law, regulation and the future “How could we operate if there wasn’t copyright? What’s the bare minimum we might exist with?” (tags: free-culture copyright org) [...]

  2. robmyers » Future of Copyright: Roundtable 3 - Law, regulation and the future:
    Oct 27, 2006 at 10:06 PM

    [...] The Open Rights Group : Blog Archive » Future of Copyright: Roundtable 3 - Law, regulation and the future Can copyright protect art from becoming a business activity. What I don’t mean is can certain individual artists use copyright to protect their works against business, but can copyright be used to protect the commons? Lots of contemporary artists have the primary concern of their resistance to business. Is copyright forcing people to be small commodity producers, when this is not what they want to be. [...]



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