Course:Legal Constraints on Digital Creativity/Course Notes/03. Copyright and Remixing
A. INVESTIGATING THE IDEA/EXPRESSION DICHOTOMY
1. The Argument:
Why is IP law not working in the digital age? Explanation might be deceptively simple – we may have just been looking out the wrong end of the telescope.
We keep trying to identify why the design of IP law is wrong. Perhaps the design is not wrong at all. The “fault” could be that digital technology has dramatically reset the practical results arising from the traditional legal threshold between “ideas” and “IP protected expression”.
Today digital technology and the tools it makes possible (E.G. Twitter, Facebook etc.) means that the half-life of an idea as merely an idea is often unbelievably short. In legal terms almost all “ideas” are automatically becoming “fixed” one way or another, and much sooner and easier then ever before. And in becoming fixed they are automatically attracting copyright “protection”.
The net result is that the balance between ideas and protected expression has changed and legally unprotected ideas are becoming quite scarce. That said the re-use of protected ideas has become epidemic, creating what manifests as significant tension among creative communities, lawyers, stakeholders, and in fact most everyone. Some mechanisms have evolved (E.G. Creative Commons) as methodologies mediating through these tensions. Examples of the tensions abound: Is it legal to sell digital downloads? Why shouldn’t it be? bit.ly/HqktHg Similarly, if piracy is so devastating, why are we seeing an unprecedented outpouring of creativity? dlvr.it/1QVD8s
It is worth noting how useful the formulation of the actual law seems like it should be. For example, from the Jury Instructions in Oracle v. Google:
“The copyright confers ownership over the particular expression of ideas in a work but it never confers ownership over ideas themselves. For example, if a book describes a strategy for playing a card game, the copyright prevents anyone (but the owner) from duplicating the book itself but everyone is still free to read the book and to use the strategy, for the idea set forth in the book, that is the strategy, is not protected by copyright. And, everyone is entitled to write their own book about the same game and the same strategy so long as they do not plagiarize the earlier book. Again, the main point is that the copyright protects the particular expression composed by the author.” (emphasis added)
“Jury Instructions in Oracle v. Google a Microcourse in Copyright Code Law”
http://harvardlaw74.com/jury-instructions-in-oracle-v-google-a-microcourse-in-copyright-code-law/
That more people then ever before are (and see themselves) as creators is a very good thing. So is the democratization of tools and access. This is because the basic notion that ideas should be free to interact and create new and further ideas is fundamental to how knowledge is built, societies become civil and the world becomes a better place. Moreover the primary purpose of copyright is to benefit the public, not to protect creators. Protecting creativity is very different then protecting creators. Must separate out the purpose from the method. In the U.S. legislators have the power to create copyright law — but for a specific purpose: “to promote the progress of science.” Nowhere does it suggest, nor even hint at, the idea that copyright’s purpose is to benefit creators. See Techdirt: “Yes, Copyright’s Sole Purpose Is To Benefit The Public dlvr.it/1QY3LY
Creativity is in fact collaboration between creator & audience, yet copyright only connects to the creator. In this sense, there is no sound to “one hand clapping”:
From “The Storytelling Animal” – the science of how we came to live and breathe stories:
http://www.brainpickings.org/index.php/2012/05/03/the-storytelling-animal-jonathan-gottschall/
“One particularly important aspect of storytelling Gottschall touches on is the osmotic balance between the writer’s intention and the reader’s interpretation, something Mortimer Adler argued for decades ago in his eloquent case for marginalia. Gottschall writes:
“The writer is not…an all-powerful architect of our reading experience. The writer guides the way we imagine but does not determine it. A film begins with a writer producing a screenplay. But it is the director who brings the screenplay to life, filling in most of the details. So it is with any story. A writer lays down words, but they are inert. They need a catalyst to come to life. The catalyst is the reader’s imagination.’….”
See also by way of metaphor: “A conversation with Jonah Lehrer on the cities chapter of his excellent book, Imagine: How Creativity Works.”
“Cities force us to interact with strangers and with the strange. They pry the mind open. And that is why they are the idea that has unleashed so many of our new ideas.”
The world is simply a digital city.
Another useful point of reference is in the transformation of what journalism is and means. What was journalism is now part of the readers own creativity; “the forum function”: See “How social media changes the function of journalism” | Center for Journalism Ethics
http://ethics.journalism.wisc.edu/?p=4681&preview=true
“A piece of forum journalism today is not just an op-ed article in The Globe and Mail. A media forum is more likely to be an evolving, interactive discussion online. The forum consists of intersecting networks of online expression, a chaotic global sphere where rich layers of information, perspective, and advocacy intertwine like the strands of a rope.”
Perhaps all that really needs to be seen, understood and appreciated is that today ideas exist in some medium, however malleable, however transitional, however seemingly unformed – however similar to the soup of ones and zeros that increasingly suspends and supports all ideas and forms them into creative realities. Why should reverse engineering to the 1’s and 0’s, back to the bare idea, be prohibited – should it not be encouraged? Today, those 1s and 0s are just the way we amplify our voices and project our ideas. That fact should make those ideas we throw out no more then ideas, and no less. Initially, the carrier of mere ideas is now simply language – transmission, not the fixed form of the creative work.
By analogy see @techdirt: EU Court Of Justice Says Software Functionality Is Not Subject To Copyright http://t.co/HaFzFhYj
“As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development…..
Consequently, the owner of the copyright in a computer program may not prevent, by relying on the licensing agreement, the person who has obtained that licence from determining the ideas and principles which underlie all the elements of that program in the case where that person carries out acts which that licence permits him to perform and the acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner in that program…….
It must therefore be held that the copyright in a computer program cannot be infringed where, as in the present case, the lawful acquirer of the licence did not have access to the source code of the computer program to which that licence relates, but merely studied, observed and tested that program in order to reproduce its functionality in a second program.”
In the end all that may be required is to realign the law to the practical and common sense levels originally intended. Simply put the legal threshold for copyright has technically come to be set far too low given the how easily technology today transforms ideas into expression, bringing “protection” into the legal equation. In fact copyright is the only one of the three main IP disciplines where protection is automatic. Trademark & patent require “intentionality”, and have significant processes and costs attached to them.
Oddly these issues seem to have an inverse relationship with privacy concerns. Currently as argued the threshold for copyright appears because of technology to be too low. When it comes to privacy it appears that technology, which so easily replicates, transforms and sends our data, has resulted in a practical lack of privacy protection – that is the privacy threshold being set too high. Accordingly it may be suggested that we are looking out the wrong end of the telescope on both these issues, and they need to be reversed. That is automatic and hard to delegate ownership rights with a low triggering threshold are appropriate to personal data; and the inverse is appropriate to copyright – never automatic & easy to delegate ownership rights with a threshold of creative originality (see “It’s Time to Take Ownership of Our Personal Data” | LA Times lat.ms/HcQRtd).
Also incongruous that IP rights have generally been extended in their protected timeframes: It’s Time To Re-Establish That If A Patent Blocks Progress, It’s Unconstitutional http://t.co/2Rs2GbBw
2. Borges
As always the steps in the journey are what is important. Ultimately we return to the key distinction between creativity and its enabling tools. So no matter how much we have learned and grown and changed on the journey of tools, all of it leads us back to our human nature – to create anew.
Jorge Luis Borges in The Library of Babel (1941):
First paragraph of the story: “The universe (which others call the Library) is composed of an indefinite and perhaps infinite number of hexagonal galleries, with vast air shafts between, surrounded by very low railings. From any of the hexagons one can see, interminably, the upper and lower floors. The distribution of the galleries is invariable. Twenty shelves, five long shelves per side, cover all the sides except two; their height, which is the distance from floor to ceiling, scarcely exceeds that of a normal bookcase. One of the free sides leads to a narrow hallway which opens onto another gallery, identical to the first and to all the rest. To the left and right of the hallway there are two very small closets. In the first, one may sleep standing up; in the other, satisfy one’s fecal necessities. Also through here passes a spiral stairway, which sinks abysmally and soars upwards to remote distances. In the hallway there is a mirror which faithfully duplicates all appearances. Men usually infer from this mirror that the Library is not infinite (if it were, why this illusory duplication?); I prefer to dream that its polished surfaces represent and promise the infinite … Light is provided by some spherical fruit which bear the name of lamps. There are two, transversally placed, in each hexagon. The light they emit is insufficient, incessant.”
Sounds like a computer, doesn’t it?
Final paragraph of the story: “The Library is unlimited and cyclical. If an eternal traveler were to cross it in any direction, after centuries he would see that the same volumes were repeated in the same disorder (which, thus repeated, would be an order: the Order). My solitude is gladdened by this elegant hope.”
The Paradox: Every creative idea has existed before…and never has existed before….
3. Supportive Facts & Notions
• Attribution would actually result in creators wanting less compensation. But Copyright law doesn’t work that way: dlvr.it/1Mqcl4
• Senator Al Franken on Facebook and Google: “You are not their client, you are their product” tnw.to/1Drb3 by @thatdrew
• Think about it: Piracy is literally about steering something away in a new direction. Possible in a digital world. Should it be illegal? Counterfeiting is theft:
Gov’t Efforts Target Online Counterfeits Much More Than Digital Piracy bit.ly/Hxwfhj
• If Piracy Is So Devastating, Why Are We Seeing An Unprecedented Outpouring Of Creativity? dlvr.it/1QVD8s
• What is creativity?
In the Five Minds for the Future, Howard Gardner coins the phrase the “synthesizing mind”:
“The synthesizing mind takes information from disparate sources, understands and evaluates that information objectively, and puts it together in ways that make sense to the synthesizer and also to other persons. Valuable in the past, the capacity to synthesize becomes ever more crucial as information continues to mount at dizzying rates.”
Perhaps the essence of creativity? Certainly the essence of creativity in the digital age.
- Also there has been a reworking of how we curate our thoughts, and therefore how we create: “Memories are becoming hyperlinks to information triggered by keywords and URLs. …” pewinternet.org/Reports/2012/H… [1/3]
• Hardware is always a passing fad:
E.G. “How Sony Fell Behind in the Tech Parade” – NYTimes.com
• Copyright is not property; copyright infringement is not theft:
Court Says That Copying Code Is Not Really Theft Under The Law dlvr.it/1R0m8x
• Study: Sharing Patents, Rather Than Blocking Others, Encourages Innovation And Market Success dlvr.it/1RGYCZ
See also: Techdirt: Former Record Label Exec Ethan Kaplan: Of Course More File Sharing Leads To More Sales
Mark Pagel in “Wired for Culture: Origins of the Human Social Mind”: “Social learning is really visual theft, and in a species that has it, it would become positively advantageous for you to hide your best ideas from others, lest they steal them. This not only would bring cumulative cultural adaptation to a halt, but our societies might have collapsed as we strained under the weight of suspicion and rancor.
So, beginning about 200,000 years ago, our fledgling species, newly equipped with the capacity for social learning had to confront two options for managing the conflicts of interest social learning would bring. One is that these new human societies could have fragmented into small family groups so that the benefits of any knowledge would flow only to one’s relatives. Had we adopted this solution we might still be living like the Neanderthals, and the world might not be so different from the way it was 40,000 years ago, when our species first entered Europe. This is because these smaller family groups would have produced fewer ideas to copy and they would have been more vulnerable to chance and bad luck.
The other option was for our species to acquire a system of cooperation that could make our knowledge available to other members of our tribe or society even though they might be people we are not closely related to — in short, to work out the rules that made it possible for us to share goods and ideas cooperatively. Taking this option would mean that a vastly greater fund of accumulated wisdom and talent would become available than any one individual or even family could ever hope to produce. That is the option we followed, and our cultural survival vehicles that we traveled around the world in were the result.”
Wired for Culture: How Language Enabled “Visual Theft,” Sparked Innovation, and Helped Us Evolve | Brain Pickings http://www.brainpickings.org/index.php/2012/02/28/mark-pagel-wired-for-culture/
- Do repressive regimes & copyright tracking go together? The corollary being to ask – do political and expressive freedoms track together? All which reveals the semantic/political reframe which is commonly and often disingenuously argued – that IP protections are an expressive freedom.
See @paidContent: Russia’s state piracy monitor could empower copyright owners http://t.co/9VypYFmu
- From Brainpickings: “Thomas of Ireland authored the most famous florilegium of all time. Florilegia were compilations of excerpts from other writings, mashing up selected passages and connecting dots from existing texts to better illustrate a specific topic, doctrine or idea. The word comes from the Latin for “flower” and “gather.” The florilegium is one of the earliest recorded examples of remix culture — a Medieval textual Tumblr.”
http://www.brainpickings.org/index.php/2011/09/19/vintage-versions-of-modern-startups/ – florilegium
Also note the same methodology prevalent in how Jewish religious & Talmudic texts have historically been compiled and presented.
- The Right Question to Ask about Copyright Reform | Brett Tech Lawyer
http://bretttechlawyer.wordpress.com/2012/05/28/the-right-question-to-ask-about-copyright-reform/
Point made: “So, what have we missed? We have missed an opportunity to start again and fit copyright laws around this generation’s model – and not those from so far back in time that printing presses were novel – let alone digital media even a forethought!”
4. Thoughts & Reflections:
• The primary purpose of copyright is to benefit the public, not to protect creators. Protecting creativity is very different then protecting creators. Must separate out the purpose from the method. Clause grants the power to Congress to create copyright law — but for a specific purpose: “to promote the progress of science.” Nowhere does it suggest, nor even hint at, the idea that copyright’s purpose is to benefit creators. SeeTechdirt: “Yes, Copyright’s Sole Purpose Is To Benefit The Public dlvr.it/1QY3LY”
• “Human nature is manifested in our social interactions more than any aspect of our behavior or intellectual activity.” http://exp.lore.com/post/20906784599/human-nature-is-manifested-in-our-social Key point is that digital technologies are interactive while technologies at time of development of copyright were distinctly not. Copyright makes more sense and does less harm when purely personal and not part of evolving technology based dialectics (multilectics?)
• Is it possible that copyright is effectively a constraint on the creativity of the creator? Not of the creativity of 3rd parties, but of the actual creator? Trade Secret law by analogy is very much based on restraining creative engagement.
By analogy consider the story of the first clock in Daniel Boorstin’s ”The Creators” 6C AD, kept secret by the Chinese Emperor, thus retarding the growth of human knowledge by hundreds of years.
• Can we protect art but not commercial exploitation? Analogous to US free speech strict scrutiny distinction between speech & commercial speech; perhaps a combination of moral rights, credit requirement and notice provisions is all copyright needs be where artist commercially exploits.
• What if right and wrong is not the best way to measure what is ethical? Is it too crude, being based on extremes? What about “mutual respect” as the guiding principle? Based on respect of the infinite creative contribution that each person makes to life.
Related to this are the Building Blocks of Morality:
1. Empathy & consolation;
2. Pro social tendencies;
3. Reciprocity & fairness.
• Personal Creative Control & Consumer Choice have not only been on the same trajectory of growth; they may in fact be aspects of the same thing.
- Protecting the creative is what is important. It is creativity that must be prioritized & served. Today we purport to serve the creator & we end up serving the creation.
Protecting the creative is protecting the process of creation. That is very different than protecting the creator or the “creative product”. In essence the law is primarily seen as protecting the product and doing so for the benefit of the creator. This may helps explain some of the tensions manifesting between law and digital culture. What the law seems to have lost focus of is connection to the creative – not to be confused with connection to the creator or to the created.
In the end we have become mesmerized by the power of the object (eg. Brands) rather then by the creative process behind them.
• Interesting symmetry raising questions: Expression/Speech are constitutionally protected. Their threshold appears to be roughly the same as the point of copyright fixation. If a pre-existing constitutional right can be clearly identified we can define its attributes. IE. the freedom of ideas, implying the right to formulate & create ideas. That right might well be where we can find the right to remix other ideas.
Freedom of Thought is contained in the Canadian Charter of Rights. Wikipedia definition of Freedom of Thought: “Freedom of thought (also called the freedom of conscience or ideas) is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others’ viewpoints.”
- Freedom of expression should trump privacy. For strong suggestion it does in Canadian law see Canadian Privacy Law Blog: Alberta Court of Appeal finds applying provincial privacy law to picket-line activities unconstitutional as picket-line activities are expression, even if they are not journalistic -
From Barry Sookman’s blog: “If privacy legislation significantly impairs Charter rights do privacy rights or Charter rights prevail? Specifically, does an individual’s right to privacy for publically crossing a picket line under Alberta’s comprehensive privacy legislation Personal Information Protection Act (PIPA) have to yield to a union’s right of free expression to film and disseminate that act under the Canadian Charter of Rights and Freedoms? This question was answered in the affirmative by the Alberta Court of Appeal in United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130.”
- Is copyright actually just a government granted monopoly that is out of sync with economic free market realities? The economic arguments against copyright are oddly parallel to the creative ones – both based on needless restrictions. See
Techdirt: “Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Age”
B. THE ROLE OF LAW: AREAS OF ENGAGEMENT & EVOLUTION
1.Co-authorship:
- Neudorf v. McLachlan et al, BC Supreme Court), there must be proof of mutual intent between artist and producer that co-authorship will take place, and evidence that such co-authorship did indeed occur. Is this too narrow for the digital age?
- Case of copyright “recapture” 35 years after signing away rights where one co-author wants them back: SGA and “YMCA” Involved in Landmark Copyright Decision – MarketWatch
http://nik.io/api/nikio.json/establishIdentity?nikioGuid=a9c46f4d-8efb-4247-b236-5c276f4de771
2. Sampling (Audio & Video): Allow specific permissible thresholds.
3. Non-commercial copying: Expand rights.
4. Length of Copyright Protection: Significantly limit.
N.B. See Pirate Party positions: http://arstechnica.com/tech-policy/news/2012/04/european-pirate-party-shares-copright-reform-alternative-to-acta.ars
- “Why Does Copyright Last So Long?” – The Dish | By Andrew Sullivan – The Daily Beast
5. Privacy: More important then IP, less important then expressive freedoms.
6.Legal Definition of “Idea”:=
- Expand to include some basic form of digital transmission where creation of a protected work is not intended. Just as computer programs and languages are not protected by copyright.
See: “The 1709 Blog: Functionality of computer programs, language, unprotected by copyright, says CJEU”
http://the1709blog.blogspot.ca/2012/05/functionality-of-computer-programs.html?m=1
& See as well: @arstechnica: “EU’s top court: APIs can’t be copyrighted, would “monopolise ideas”: http://t.co/BG3t05Vg by @binarybits
{Note also the relationship to the 2nd Ethical Principle noted in “P” immediately below – “Digital content is language.”}
7.Paramount Status of Contract Law Over Copyright Law Needs Reconsideration:
Should not be able to contract out of significant copyright norms. The deleterious impacts of contracting out needs itemization and analysis.
8.Copyright Creation To Require Intention:
Not be automatic.
9. Copyright Belongs to the Author/Creator:
It should not be fully alienable, nor necessarily easily sold. Perhaps only forms of licensing should be permitted.
10. Expand Fair Use/Fair Dealing: Reclaiming Fair Use
– see Chapter 1 of “Reframing Fair Use by Patricia” Aufderheide and Peter Jaszi
Excerpt in “Does Fair Use Fit Into The Critique Of Copyright?”:
- @suffolkmedialaw: “Canada: Parody Defence Not Far Far Away” | Heenan Blaikie Entertainment & Media Law Signal http://t.co/YuHOEFLj
- “GSU Scores a Victory for Academic Fair Use in Landmark Copyright Case “| Ballard Spahr
- IP Osgoode » “It’s Official: Functionality is Uncopyrightable, Says the European Court of Justice”
- @techdirt: “A Big Victory For Fair Use Via South Park, What What (In The Butt), Numa Numa, Afro Ninja, Et Al.” http://t.co/AyEhOWt3
11. Rethink Canadian Admiral v. Reddifusion:
- Could it actually be reformed and framed as the correct finding for the digital revolution? A decision so wrong it was right before its time……
From Wikipedia: “Canadian Admiral Corporation Ltd. v. Rediffusion Inc. , [1954] Ex. CR 382, 20 CPR 75 is a Canadian copyright law decision by the Exchequer Court (a predecessor of the Federal Court of Canada). The Court held that rebroadcasting of public performances by cable companies did not violate any communication rights or public performance rights. There cannot be copyright in telecasting live events because there is insufficient fixation.
A football game was broadcast live from the stadium by a set of three cameras directed by a producer in a van just outside the venue. The game was not recorded in any format and was broadcast live to viewers. Canadian Admiral has purchased the rights to the live feed from the game. Rediffusion, a cable company, captured the transmission of the broadcast and sold it to private homes and public show rooms. Canadian Admiral sued for copyright infringement.
The issue was whether Canadian Admiral owned any copyright in the football game.
The Court held that there was no copyright in the rebroadcast of a live game. As a general rule there can be no copyright in a sports event. The games are not pre-planned and not predictable. Moreover, the live direction by the producer was an insufficient amount of planning to create any fixation. Camron J. held that “[f]or copyright to subsist in a work, it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance.”
The point being that digital media creation & dissemination today is the equivalent, metaphorically and otherwise, “a live event”.
- See also “High Court breaks down application of database rights for ‘factual data’ recorded from football games”
12. Expand & Protect the Legal and Functional Attributes of the Public Domain:
- See COMMUNIA Final Report, March 31,2011 - http://communia-project.eu/final-report/
- See also “ Abandoning the Orphans: An Open Access Approach to Hostage Works” by Lydia Pallas Loren of Lewis & Clark Law School:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2049685
13. Expand Moral Rights – Personal Rights of Creators:
- The 1709 Blog: “Homage or Humiliation? Moral Rights, Vertigo, and The Artist” about objections by brilliant film composer and long-time Hitchcock collaborator, Bernard Hermann to the use of music from the classic film “Vertigo” in “The Artist”:
“As a lawyer interested in the moral rights of authors and artists, I couldn’t agree more. The situation surrounding the music for The Artist is a perfect, practical illustration of just how a moral rights violation can occur. Moral rights are based on the twin principles of attribution, which means adequate acknowledgement of the authorship of a work, and integrity, the notion of maintaining the quality of a work intact. The moral right of integrity is particularly relevant where the treatment of the work might cause damage to the author’s reputation.” – Mira T. Sundara Rajan
http://the1709blog.blogspot.ca/2012/05/homage-or-humiliation-moral-rights.html?m=1
- “Is Apple deleting the history of music? Moral rights on iTunes” – Mira T. Sundara Rajan arguing that technology can appropriately enable “moral rights” for example where some artists feel that splitting an album into individual tracks affects the integrity of their music (a case that was made, successfully, by rock group, Pink Floyd, in 2010; or where because not legally required only partial credits are given: “A look at iTunes provides a clear illustration of what is at stake. iTunes is already a vast digital library, offering tracks for sale in virtually every genre of music. However, there are obvious problems in relation to both attribution and integrity. For example, a jazz performance usually involves a degree of collaboration between at least three people – a soloist supported by bass and drums. Many of these “side men” are extraordinary musicians in their own right. Charles Mingus was an extraordinary bassist who also played piano, composed, and led a big band. The bassists who played with pianist Bill Evans were in a special class known for their virtuosity – Scott LaFaro, Eddie Gomez, Marc Johnson. A large number of percussionists have attained the status of jazz legends. And yet, a survey of jazz recordings on iTunes suggests that some number of them, quite probably a majority, do not list the names of contributors anywhere on the track.”
http://the1709blog.blogspot.ca/2012/05/is-apple-deleting-history-of-music.html
And in (less then successful) rebuttal; “EXCESS COPYRIGHT: Stretching Moral Rights – A Bridge Too Far?”
http://excesscopyright.blogspot.ca/2012/05/stretcing-moral-rights-bridge-too-far.html?m=1
14. Public Interest Override:
- Enforcement of IP rights should be capable of being overridden or suspended by the notion of the “public interest” rigorously and clearly defined. This capacity should not in any way be confused with or tend towards the concept of “expropriation.” By analogy see: “ITC commission unlikely to enforce US Xbox 360 ban; Public interest should override recommendation, says Florian Mueller” By Dan Pearson, 23 May 2012 – http://www.gamesindustry.biz/articles/2012-05-23-itc-commission-unlikely-to-enforce-us-360-ban?utm_source=newsletter&utm_medium=email&utm_campaign=european-daily