extending the control of your artistic rights

"When Less Isn't More: Illustrating the Appeal of a Moral Rights Model of Copyright Through a Study of Minimalist Art"
by Rikki Sapolich
2007, The Intellectual Property Law Review

This article presents the case of a European model for copyright in which, after the sale of a piece of art, as the creator, you can still maintain control of the art in certain ways. Perhaps, you seek to keep a three paneled painting as a single piece of art and you want to restrict future owners from selling off the panels individually? This article explains the pros and cons of a intellectual property system that allows creators to protects certain rights of their artwork for the duration of their lives (the lives of the artworks that is!)

"American copyright law developed to meet the constitutional mandate '[t]o promote the Progress of Science and useful Arts' by providing an economic incentive for artistic creation. Under the assumption that a major influence on the creation of art is the incentive of anticipated market demand, American copyright law grants artists the exclusive right to copy their work as an incentive for the artist to create, in turn benefiting society through increased availiability of works of art. This assumption fails, however, when applied to fine artists, who are generally outwardly influenced by culture and internally influenced by the desire to create, because economic incentives available under American copyright law are immaterial. Moral rights, as provided under European copyright law, are better adapted to address the interests of fine artists because they protect not only the finished work, but also the artist's control over the creative process and ultimately her persona and reputation. Protecting the artist's persona and reputation serves as an incentive to create. The artist will be more willing to expose her inner self, as expressed through her art, if she is assured that the public will treat her art with respect." (pg. 453

using existing works is a pain ... what to do?

Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright"
by Lydia Pallas Loren
14 Gel. Mason L. Rev. 271 (2007)

"Today's controversial climate of overly broad ownership rights for creative works makes the lawful use of existing works in any manner an edgy trip into the legal maze of copyright." (pg. 271)

This article points out a fact that most people do not know or perhaps, like to ignore, until it becomes a problem. "Registration of the copyright by the creator of the original work is not required to obtain or maintain copyright protection, and even a notice of copyright, which previously was required to include the name of the copyright owner, is no longer necessary." (pg. 272) Yes, this is absolutely correct...! Every email, SMS, etc. that you write is actually protected by copyright and you are the owner. Think about how scary that is, a world where you can own so much.

Where are those "fair use" legal opinions?

"An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005"
by Barton Beebe
(working paper as of July 5, 2007)

Most people, and especially academics raise the fair use doctrine as an integral argument to defend copyright law, but research about the outcomes of attempts to upholding fair use protection has been lacking. This papers attempts to serve as the first empirical study of fair use. The overarching finding of this study is that "conventional wisdom about that [fair use] case law is wrong." (pg. 1)

Essentially, the state of the fair use doctrine is in jeopardy and as a result there is a difference between what most individuals, even lawyers (except for those specializing in copyright law), believe is considered to be a protected fair use and what is actually considered fair use by the courts.

To promote musical expression >>> disaggregate interests of creators and distributors

"Promoting Diverse Cultural Expression: Lessons from the U.S. Copyright Wars"
by Raymond Shih Ray Ku
September 2007
Asian Journal of WTO & International Health Law and Policy

This article offers discusses the Convention of the Protection and Promotion of the Diversity of Cultural Expression (CCD) that was adopted by the UN in 2007. According to the author, "[d]epending upon the funding mechanism chosen for creation , legal protection for distributors may undermine the goals of the CCD leading to fewer works being created, disseminated, and made accesible to the public." (pg. 1) The argument put forward in this article is that, using the US as a case study, musical creativity and cultural expression are being held back by the current copyright system because under the current regime creators and distributors interests are protected in conjunction with one and other. The interests of both parties are not protected efficiently or effectively when protected in an aggregate fashion because digital technology and the internet have established overwhelming circumstances in which both parties may have opposing interests at stake.

Interesting excerpt to wet the palate...

"...[W]hom does copyright law protect? For most of copyright's history, the interests of creators and distributors were considered one and the same, and for the most part, were largely aligned with those of the public or audience. However, new technologies, especially digital techonology have always challenged a legal regime created in response to a specific techonology and means of distribution -- the printing press. Once unbundled, the assumption that the exclusive rights created by copyright serve the interest of creators, distributors, and the public becomes less clear. Many of the copyright controversies making headlines today, from the litigation and threats of litigation against Grokster, Google's Book Project, MySpace, and YouTube, among others, involve copyright owners attempting to use copyright to prevent the emergence of new distribution models and uses of their works. In other words, the middlemen of old are using copyright to preserve their status in a world in which many of these middlemen are not only unnecessary but also stifle an environment for creating, producing, and disseminating diverse cultural expression." (pg. 2)

"Manga Conquers America"

Wired Magazine's November issue featured an article explaining what manga is and how this iconic piece of japanese culture has made its was to the United States. Manga is the commonly mentioned case study of a type of art with a huge commercial market that thrives on copyright infringement. Not only do those who infringe make money, but those who are infringed upon also benefit from the the copyright infringement. According to this article, 22% of all published material in Japan is manga. Manga is a $4.2 billion industry in Japan alone.



According to Lessig the reason why Manga has succeeded in Japan is because of the distinction between a "read only culture" and a "read/write culture". IP laws were structured for a "read only culture" which is mostly obsolete in countries around the globe as a result of the Internet and digital technology. Essentially, the current copyright regime that is structured for a "read only culture" is inadequate in the United States. Interestingly, the Japanese have a comparable copyright system to that of the United States, but in the case of manga, publishers don't try to prevent the copyright infringement of manga because it recognizes the commercial and social benefits from the lack of regulation.

Cyberlawyer goes after a corrupt system

The Economist features an article on Lawrence Lessig, pioneering expert in alternatives to traditional copyright and the founder of Creative Commons. The article links Lessig's interest in reforming copyright to his current focus on corruption in politics and offers a concise biogrpahical overview of Lessig's career to date.

Radiohead's giveaway

"Pay What You Want: How Radiohead Took the Online Gamble That Could Change the Record Business"
by Jon Pareles @ NY Times, Arts&Leisure section
December 8, 2007

Radiohead's distribution of its latest album, "In Rainbows", is proving to be a success, but the band won't tell us just how many copies of the album have been downloaded, what % of those who downloaded it did so for free, or what the average price is for those who voluntarily paid to download the album. At first I did not like that the band would not tell the public these statistics. I was confident that it would make money and I felt it was necessary to make this information public in order to prove to the public that the the current copyright laws do not actually benefit the musicians, but rather the major record labels and the media industry at large. After reading today's article in the NY times, "Pay What You Want: How Radiohead Took the Online Gamble That Could Change the Record Business", I changed my mind. Not only does it seem like the band has caused quite a stir within the music business and among the general public, but it is evident that the old school industry is scared that others will follow in Radiohead's path even without knowing the financial outcome of the band's strategical move. In a way, this is the ultimate success for those who feel that the current copyright system does not promote the interests of creators, artists and the like.

Also it is worth noting, according to this article, that Public Enemy and the Smashing Pumpkins gave away albums over the internet several years ago. Perhaps the fact that Radiohead is more of a cult-like, less mainstream band, has gained them greater recognition, or because they are not only giving away "In Rainbows", but rather, offering people the opportunty to pay for it if want to do so. Who knows?

The only data regarding downloads and sales that was made available in this article comes from ComScore which claims, according to their market research, that the average price per download was $2.26, including the zero cost of free downloands. ComScore did not specify the total number of downloads, but it said that 'a significant %' of the 1.2 million people who have visited the inrainbows.com website in October of 2007 did download the album.


The album is incredible and I highly recommend giving it a listen...to download it go to: www.inrainbows.com

I paid 5 Euros for the album.

browsing the web for CC liscensed content....

Carroll, Michael W., "Creative Commons and the New Intermediaries" . Michigan State Law Review, Symposium, 2005 Available at SSRN: http://ssrn.com/abstract=782405

You can seach the web for content with creative commons licenses by using the CC search engine:
http://search.creativecommons.org/#

or, you can do this directly by selecting the CC logo in the drop down mini menu bar of your Firefox browser:





If you dont have Firefox, you should; it is one of the best web browsers available. You can download the search engine at Mozilla's website: http://www.mozilla.com/en-US/

Some interesting stats about internet usage...

Carroll, Michael W., "Creative Commons and the New Intermediaries" . Michigan State Law Review, Symposium, 2005 Available at SSRN: http://ssrn.com/abstract=782405

Young people, especially teenagers have taken advantage of the internet to express themselves and be creative in a number of different ways. "According to a study conducted by the Pew Internet & American Life Project in 2006, about 21 million or 87 percent of those ages 12-17 in the United States use the Internet. Teens are eager to share their thoughts, experiences, and creations with the wider Internet population. Here are some of the study's key findings:

• 33 % of online teens share their own creative content online, such as artwork, photos, stories, or videos.
• 32% say that they have created or worked on Web pages or blogs for others, including groups they belong to , friends, or school assignments.
• 22% report keeping their own personal Web page
• 19% of online teens keep a blog, and 38% of online teens read blogs.
• 19% of Internet-using teens say they remix content they find online into their own artistic creations

Each of these works is subject to copyright. Indeed, nearly every Web page, graphic image, photograph, song, or video one encounters on the Internet is a work of authorship to which a number of exclusive rights are attached" (Carroll, pg. 447).

Much of today's discussion about copyright is not only obsolete, but impractical and unrealistic.

What percentage of the population (or percentage of those who use the internet) must declare that they intentionally or unintentionally infringe upon the rights of another in order for the society at large to realize that many of these infringements should constitute crimes? Moreover, when will it become clear that many of these activities should be encouraged and lauded as valuable learning tools, freedom of speech, creation of culture, and yes, acts that promote economic growth?

Copyright Reform proposals

Samuelson, Pamela, "Preliminary Thoughts on Copyright Reform" . Utah Law Review, 2007 Available at SSRN: http://ssrn.com/abstract=1002676

Pamela Samuelson, co-director of the Berkeley Center for Law and Technology, has authored an interesting paper on possible directions for copyright reform. With reform she proposes to fix current problems, such as that of orphan works which is very important for film makers and other creators. She also discusses the possibility of drafting a model copyright act which would have to face the issues of either being “US-centric” or more internationally neutral. She also has a podcast on "Open Source Development and Distribution of Digital Information."

Professor Michael Carroll knows how to explain Creative Commons

Carroll, Michael W., "Creative Commons and the New Intermediaries" . Michigan State Law Review, Symposium, 2005 Available at SSRN: http://ssrn.com/abstract=782405

Carroll does an incredible job explaining what Creative Commons is for someone who does not have a legal background or who is not very tech savy. He provides a brief overview of the history of U.S. copyright law that leads to the conclusion that the system in this country is based on a "one size fits all" approach (A.K.A. copyright = "all rights reserved") to control of creative works. Today's society depends upon and thrives off of the internet and digital technologies. In today's world, "one size fits all" is an obsolete phenomenon with regard the control of creative work. A.K.A. the "all rights reserved" mantra of copyright is inefficient and ineffective. Creative Commons is the answer..."some rights reserved."

Illustrated History of Copyright

In you want to learn about the history of copyright in an amusing yet clear way, with lots and lots of great illustrations, check out The Illustrated Story of Copyright by Edward Samuels. It is available free over the net, including all of the images and photos.

DRM, Interoperatiblity and eInnovation

DRM, or digital rights management, refers to software and hardware based restrictions placed on creative material which aims at protecting a copyright holder’s interest in limiting access to the material. DRM determines where and how you can access a digital product and what modifications, if any, you can make to the content. DRM can be viewed as conflicting with systems interoperability---that is, the ability or lack of ability for a user to play a song downloaded on Itunes on her Zune. Also, because DRM restrictions can exceed uses of copyrighted material that would normally be protected by Section 107 fair use protection, innovation is also inhibited. Urs Gasser and John Palfrey, from the Berkman Center for Internet and Society at Harvard have produced an exhaustive study, published in November 2007, which analyses these issues in terms of law and technology. Their report is entitled “DRM-protected Music Interoperability and eInnovation.” They conclude “that the best way to determine the optimal level of interoperability and means of accomplishing it is to rely upon economic-based assessments on a case-by-case basis.”

Lubin v. Edison (1903)

Lubin v. Edison, 122 F. 240 (1903)

A landmark case from the beginning of the 20th century that began to distinguish film, initially copyright as photography, as its own new media format.

The problem with how the U.S. legal system responded to digital technology

"Promoting Diverse Cultural Expression: Lessons from the U.S. Copyright Wars"
Raymond Shih Ray Ku

This article provides a concise and non-technical explanation of the problem (or misunderstanding) the general public (including creators themselves!) has with regard to the current debate over the copyright legal system's response to new digital technologies and the internet. For most of copyright's history, the interests of creators and distributors were considered to be the same and were generally aligned with those of the public or audience. Ku asks, 'whose interests does copyright law protect in today's day and age?' As a result of new technologies, it is critical that the copyright system no longer couple the interests of creators and distributors because their interest are frequently different. Ku supports the notion that today's copyright system is structured to protect the interests of yesterday's distributors.

"[I]f adequate financial incentives or market conditions exist to inspire the creative acitivity of authors and encourage them to make their works available to the public without copyright, copyright protection should not be recognized." [pg 6-FN 40]

"Today, the economics of digital technology renders copyright both unnecessary and inefficient. In general, discussions about the optimal level of copyright protection ignore distinctions between the incentives from creation and distribution. In part, the bundling of these interests was strategic. Distributors found that it was to their political advantage to have their interests treated as inseperable from the interest of creators. In addition to the rhetorical power of equating the interests of distributors with creators, until now the bundling of interests was acceptable because the cost of producing the vessels --CD's, books, DVD's-- for content, and distributing those vessels, was an essential component of making content available to the public. As a result, both sets of costs had to be considered if the public was to enjoy and have access to the products of human creativity. However, as the following demonstrates, because the Internet and digital technology have revolutionized the ways in which we disseminate information, it is no longer appropriate to treat these interests as interchangeable. Once they are unbundled, it becomes clear that copyright protection cannot be justified as a means of ensuring distribution and is an impermissibly inefficient means for ensuring creation." [pg 6]

Ku makes his argument by using the music industry as an example of how the interest of creators and distributors are deceptively coupled, but in reality, they are no longer aligned. He makes his case by comparing the change in income for artists from CD sales vs. live performances since the introduction of the internet and the advancement in digital technologies.

From Lessig's blog

A really interesting post by Lessig on his personal blog about copyright/copyleft:

"On teaching artists' rights"

Film schools are in the business of creating filmmakers -- artists with film. Their job is to teach both the skill and the ethic of an artist. The skill in making film; the ethic of creating art.

So what lesson do film schools teach their students about copyright? Unfortunately, in some at least, the most striking lesson is on how best to become an artistic-sharecropper.

That at least seems to be the lesson being taught at the University of Hawaii's Academy of Creative Media. All film students must sign a copyright agreement that either renders their work "work for hire" or assigns completely all copyright in their creative work to the ACM. (After two years, the student gets a nonexclusive license to the work, but the copyright remains with ACM). ACM becomes the black hole for these rights. What they do with them is not clear.

But what is clear is the lesson ACM is teaching: That you, the creator, deserve no creative- or copy-right for your creativity. That right should be owned by the man. And while (at least so long as you're good) the man might grant you a nonexclusive license to your creativity, don't even think about the idea that what you create is yours to control. Copyright at ACM at least is not a right grant to "authors," it is a right taken from the authors by the University.

Is there anything illegal in this? No. Is there anything immoral in this? Probably not. But I should think that at least some film students will decide where they want to learn how to be film makers by thinking a bit about the values of the school they attend. IMHO, these are precisely the opposite of the values we ought to be teaching creators.

Posted on August 29, 2007 5:51 PM - comments (16)

http://www.lessig.org/blog/

A book that must be read by anyone who is interested in copyright

Lawrence Lessig, Free Culture: The Nature and Future of Creativity (The Penguin Group Press 2004).

"There has never been a time in our history when more of our "culture" was as "owned" as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now." (FREE CULTURE pg. 12)

Lessig's book is about an effect of the internet that goes beyond the internet itself: "an effect upon how culture is made." (FREE CULTURE pg. 7) "My claim is that the internet has induced an important and unrecognized change in that process. That change will radically transfer a tradition that is as old as the Republic (our country) itself. Most, if the recognized this change, would reject it. Yet most dont even see the change that the Internet has introduced." (FREE CULTURE pg. 7) The government (via the legal system) never used to regulate "noncomercial culture" unless someone account of culture was lewd or disturbed the peace of the public (telling stories, sharing music, re-enacting scenes from TV, etc.). This culture was left as "free culture." The law focused on commercial creativity, also an important part of creativity and culture (become increasingly important in the USA today), but, not the dominant force of the creation of culture, but rather one part that must be balanced with the free part as well (FREE CULTURE, pg. 8)

"A free culture is not a culture without property, or in which artists can't get paid. A culture without property, or in which creators can't get paid, is anarchy, not freedom. Anarchy is not what I advance here. Instead, the free culture that i defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against the extremism that this book is written." (FREE CULTURE pg. xvi preface)

Lessig is not just concerned with the concentration of power that results from a concentration of ownership within the media industry. His even deeper rooted fear (which he feels that most people are not aware of) is that there has been a radical change in the effective scope of copyright law and this change has is responsible for a concentration of power that did not exist in the past (FREE CULTURE pg. xv preface). The law is changing and this is altering how culture is made (FREE CULTURE pg. xv preface). What was originally designated as intellectual property in our constitution has been expanded drastically. Lessig thinks we are destroying our culture by not questioning the scope of the law (that deals with intellectual property in the United States) as it continues to be more extremist and concentrates the power of creating culture in the hands of very few corporations and individuals.

Yes, technology is producing more that can be owned, but there is a trend to progressively grant ownership to already existing knowledge, creations, etc and new information that is counter to how it was done in the past. Lessig thinks that blogs are "arguably the most important form of unchoreographed public discourse that we have." (FREE CULTURE pg. 41)


On property systems, Lessig discusses feudalism. Under feudalism, "Not only was property held by a relatively small number of individuals and entities. And not only were the rights that ran with that property powerful and extensive. But the feudal system had a strong interest in assuring that property holders within that system not weaken feudalism by liberating people or property within their control to the free market. Feudalism depended upon maximum control and concentration." (FREE CULTURE pg. 267)

"The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the change in copyright, produces. It is not just that there are a few powerful companies that control and ever expanding slice of the media. IT is that this concentration can call upon an equally bloated range of rights-property rights of a historically extreme form--that makes their bigness bad." (FREE CULTURE pg. 269)

The conclusion of the book discusses and interprets the HIV crisis in South Africa: problem is not the drug companies, their objective is to make as much money as possible. The problem is the politician. The drug company would be happy to sell cheaper drugs in South Africa because people are poorer, but the politician then asks why the price has to be so expensive in the United States if it is so cheap in South Africa, so the drug company decides to not give the drug to South Africa at all because it will loose more money if it has to lower the price in the united states (FREE CULTURE pg. 260)

"Freedom is not threatened just because some become very rich, or because there are only a handful of big players. The poor quality of Big Macs or Quarter Pounders does not mean that you can't get a good hamburger from somewhere else." (FREE CULTURE pg. 269)

"Celebrating Two Decades of Unlawful Progress: Fan Distribution, Proselytization Commons, and the Explosive Growth of Japanese Animation"

"Celebrating Two Decades of Unlawful Progress: Fan Distribution, Proselytization Commons, and the Explosive Growth of Japanese Animation"
Sean Leondard

This is a useful article for anyone who wants to understand the history and characteristics of the Manga and (XXXXX = oficial copying of Manga) market in Japan. This industry is an example of how, over a period of at least two decades, infringement of copyright fueled the commerce (business) and knowledge of that type of art. This account provides a comparison of Japanese and American copyright law which concludes that both legal systems are analygous. The purpose of this article to to provide a counter argument for those infavor of copyright in the United States on the basis that copyright infringement hurts the commercial health of creative industries who revenues are based upon exploiting intellectual property rights.

An interesting account of the creation of copyrights for films

Copyright dupes: piracy and new media in Edison v. Lubin (1903)

Peter Decherney

The article is based on several important court cases, especially Edison v. Lubin (1903), that helped to map out the origins of copyrights for films in the United States. The history of copyrights for films originated from the copyrights for photography that previously existed in the United States and eventually were distinguised as a separate set of law based on the difference between the two media formats.

"The answers to these questions grew out of philosophical positions about how to shape the future of art, business, and society through new media. It generally falls to courts, however, to make sweeping decision about new technology before society, philosophers, or Congress have a chance to explain them. In piracy cases, courts are periodically faced with a difficult decision: do existing laws account for the technology before them or does Congress need to devise a new set of regulations for a new medium? Court rulings on this question always change the development of the medium at hand. Where legal histories tend to end with the handing down of decisions [End Page 109] or statutes, I will look at the impact of the law as well as its creation. The pronouncements of judges and Congress frequently have unintended results, and they are always only one piece of a complex formula that steers the development of new media in one direction or another. It is in the interaction of law, public discourse, and business practices that we can see how piracy debates define and shape new media."

It is ironic that the creation of the film industry hinged upon "duping", or what today could be understood as the act of directly violating the most basic copyrights attached to a film by making a copy of that film and distributing it or screening it for profit without the permission of the author of the film (or paying any of the revenue generated to the author of the film).

"Edison v. Lubin is a fascinating example of what happens when courts try to explain a new medium using the terms of an old one: their decisions are ineffectual and generally delay true grappling with the newness of the new medium. Piracy is an integral element in the development of new media; ⁴⁵ it reveals the new functions and dimension of the new medium. Courts are left with the difficult job of separating the innovations revealed by piracy from the theft facilitated by piracy. But forcing new media to labor exclusively under the rules of old media inevitably fails. In 1903, film piracy clearly challenged both social norms and established business practices. This was a sign not that norms and businesses needed greater protection but rather that they needed to be updated. Of course it is much easier to make this assessment in hindsight. But it also provides an important lesson for thinking about new media. Which forms of piracy today will be tomorrow’s norms? Which of today’s pirates will be tomorrow’s media moguls?"


http://muse.jhu.edu/journals/film_history/v019/19.2decherney.html