The more I learn about Copyright Law, the more I sit back and find myself amazed at just how little of it makes intuitive sense in this digital age. Of course, some of it is quite brilliant in its insight into how creative and cultural life should be protected, commercialized and regulated. However, all too regularly I am genuinely surprised that the law seems so fundamentally out of step with the actual practice of creators and the audiences who consume their work.
And while we are yet to work out what abstract criteria makes ‘good’ law, surely one of the hallmarks of inadequate and outdated law is one which regularly conflicts with intuition and reason about how things should work.
In short, my objections amount to the fact that Copyright Law in essence is meant to protect and regulate creativity and culture; however the internet has radically changed culture and creativity at every level and current copyright law does simply does not fit this new reality.
This all came to a head two weekends ago during my attendance of a discussion panel titled “Can Copyright Preserve Culture?” as part of the larger Oxford Intellectual Property Moot Competition that I participated in. The panel was split between those in law (academics, lawyers and an ex-judge) and those in industries that deal extensively with copyright issues.
Although almost everyone has a vague idea of what copyright is, in essence what copyright really is about is the rules and regulations that deal with creativity and works of culture and thus discussing the role that copyright plays in preserving culture really goes to the core of assessing how this area of law is working for us. And well, the report back was the type that would disappoint a parent.
One of the non-law panellists was a librarian and archivist at a major library who spoke of the ludicrously impossible task of digitalizing books and other written texts due to the legal requirements of acquiring a license from the author/owner. Her point was simple: we could easily digitize and share this enormous ark of knowledge and writing online, but we are entirely hamstrung by the nightmare of having to track down every author and receive permission.
Another non-law panellist, an art curator, spoke about the amount of non-commercial public shows or exhibitions he had to cancel or curtail due to the logistical and financial difficulties of acquiring licenses from the artists concerned. For them the answer was clear: whatever positive role copyright used to play in preserving culture, it’s far too cumbersome an obstruction in preventing public accessibility for us to think that it is functioning correctly at the moment.
The last speaker was a retired Lord Justice of the Court of Appeal who had cut his teeth as a barrister working in copyright and had later, as a judge, delivered some landmark decisions in UK copyright law. One of his key points was that although copyright law has immense value in potentially protecting culture, it ultimately was a neutral tool which society itself needed to pick up to protect culture. Ok, nothing too out of place. It was his answer to an audience question at a later stage though that really floored me.
The question dealt partially with how copyright law should respond to online piracy and internet use. The judge’s answer included a sharp rebuke of the evils of piracy but then he went further and quite confidently declared: The internet has made no real contribution to culture.
I sat there, mouth agape. The internet has produced no meaningful culture. I looked like a comically bad actor overplaying his reaction to a car crash scene.
And as a result, he continued, copyright does not need deep change but rather some tweaking here and there to prevent piracy etc.
My horror mildly intensified when he used Wikipedia as the murder weapon itself to convict the internet of adding nothing reliable (and therefore meaningful?) to knowledge or literature. I mean afterall, his Wikipedia page was incorrect.
Later, in a twist of fate, I was randomly seated directly opposite the judge/his Lordship at the subsequent formal dinner. Except the formal dinner was to be an ‘egalitarian’ formal dinner as we were given the firm instructions that this dinner would have no high table and we were to abandon formal titles so that ideas could be discussed openly and freely.
For non-law readers just a quick explanatory note: Law is a conservative profession with a deeply entrenched hierarchy of respect. It’s like the military’s second cousin with a crazy wig. Deference and polite indirectness are the water in this anti-gravitational upward stream. Apparently, not tonight though.
So, armed only with a couple glasses of wine in me and the firm belief that the internet is the most important thing to happen to culture since the invention of writing, I tried to explain to his Lordship why I believed he was absolutely wrong. I mean, my God, where to start? Respectfully m’lord, the game done changed and while I cannot give anything close to a full account, in essence there are two separate components of culture which the internet has radically altered: the process and means of creation and the process and means of distribution and consumption.
Here we go.
1. The Creation Process and the Internet
To start, one of the most obvious, yet complex aspects of the internet has been the effect of making creators more interconnected amongst themselves and integrated into larger creative trends globally. The internet has thus ushered in a means of collaboration previously unseen before where people can co-create works with people they never would have been able to work with previously due to the confluence of dispersal, time and space. We’ve seen this in particular with sub-cultural fashion and music trends but notably in cross-border collaboration. For example, performers in Cape Town may have music written for them by studio producers in New York and have their work consumed primarily by audiences in Japan. This interconnectivity has had a marked effect on the type of creative work being produced.
The internet has also changed the actual tools themselves used to create; they are cheaper, more accessible and of course a lot more ‘able’. This has both dramatically widened who makes content as well as effecting the type of content that gets made seeing as these tools provide both new mediums (like GIF Art) or compelling ways of transforming pre-existing content into new creative work i.e. (derivative works, remixing, sampling, re-coding, photo-shopping etc). This has seen an unprecedented boom in amateur creation, where people who never before would have had the resources or time to create are now engaged in a global workshop of creation and modification. Popular and amateur culture is after all still culture and so purely as a democratising force the internet needs to be given credit.
Linked to these two points but certainly its own phenomena is that an entirely new paradigm of authorship has emerged – Memes and other User-Generated Content, as a prime example – where there purposively is no determinable author or artist but rather a creative work created by an interminable crowd adding, sharing, re-interpreting or deconstructing a particular concept or idea.
To this first leg, the judge countered with two points: firstly that it’s very rare for creative works authored by more than one person to be any good (with the exception of popular music) and that most of this process seemed indistinguishable from ‘game playing’ and was not akin to the (slightly romantic notion) of a creative genius who toils in the creation of a masterpiece.
Hmm, some interesting points.
As to his points about games, the first implication I want to respond to is it that the works people are making are neither trivial nor childish but often have real artistic integrity or literary merit. Then again, even if this was not the case and these were just ‘games’, games still are part of human culture. In my last post I linked to an interview with the creator of ‘Magic the Gathering’ which perfectly illustrates the deep creativity involved in game creation and participation.
Regarding his point about single authorship, – what about film making as a deeply collaborative process between multiple creative minds working towards a creative whole much greater than the sum of its parts? Unfortantely this rebuttal didn’t come to mind at the time.
I replied instead that artists rarely create in a vacuum but borrow, comment on, and react to other artists’ work and their cultural context, which is now infinitely broader and richer. Creation has a conversational character and the conversation has moved from the local to the global. Also much in the way that film is a collaborative medium by its very nature, we’ve seen the emergence of certain forms of creation which just inherently allow for huge cross collaboration. To paraphrase Lawrence Lessig: we’ve moved from a ‘read only’ culture to a ‘read-write’ culture, where audiences are no longer passive consumers who simply consume a work but actively take the content they consume and modify, extract, recombine, remix, redeploy it etc thus giving that work a substantially new dimension. In copyright law we refer to these as ‘derivative works’ as they are derived from a pre-existing work. These derivative works are often hugely creative and while yes, derivative works existed before the internet, due to the ocean of available content, powerful tools and ability to be connected to a greater community we’ve seen a phenomena whereby the boundaries of an existing work are significantly extended by people creating and sharing their reactions to and interpretations of that work. This doesn’t mean they are no longer individuals creating, but surely the idea of a single lone author locked away creating by himself is decreasingly becoming the hallmark of the creative process?
So certainly on this aspect of the creative process, I would argue that the internet’s impact on culture is gargantuan, and I believe points to a strong need to reform certain areas of Copyright Law in order for it to take into account these new approaches to the process of creation.
2. The Internet’s effect on the distribution and consumption of content and creative work.
The internet’s contribution to culture does not end at the creative process. Instead, it’s fundamentally changed the way content is distributed to and consumed by audiences. Once again this has manifested in a multitude of ways, few of which I capture here, but more importantly, it’s crucial to be aware of how this feeds back into what content gets made in the first place.
Firstly, we’ve seen the decentralization of distribution. When we think of the lived reality of culture, we must remember that we mostly access creative works through certain institutions and structures such as television broadcasters, major newspapers, film studios, record labels, radio, public galleries and museums etc. The culture we mostly consume as audiences is mediated through these macro institutions as they both control the channels of distribution as well as, in many cases, having the finances and resources to fund the creation of content. Thus in the past, record labels, publishing houses, galleries and movie studios were the gatekeepers to an aspiring creative’s career, as they controlled the channels of distribution connecting an audience with a creative work. If you wanted your record sold, your book read or film seen, you had better hoped and prayed that someone in one of those institutions decided you were bankable or an acceptable addition to the roster of ‘culture’. This in turn had a major effect on the type of work we saw being made in the first place.
And now? Look no further than Youtube’s own slogan: “Broadcast Yourself”. What an eloquent diagnosis. The web has liberated us from the old means of distribution. Now anyone has access to a channel of distribution which could potentially reach an unlimited audience. This process is not without its problems. Having moved away from this old centralized system, it has radically changed not just the variety of content available to us but also the incentives for creating in the first place.
Secondly, the internet has lowered (arguably obliterated) reproduction and distribution costs thus dramatically increasing consumer access to creative works and culture. Through legal or illegal channels, one can now watch almost anything they want to. The consequences of this are numerous both in shifting the dynamics of the market (we’ve moved from a market of content scarcity to one of content over-supply) but also in allowing people access to content that would never have been available to them before. Having grown up in South Africa, there is simply so much content I would never had access to without the internet as there was simply no other way of accessing it otherwise. Likewise, content that previously was all but impossible to view often becomes readily available and accessible, whether it is rare music records or films etc. This increased access has undoubtedly enriched us culturally and has changed our patterns of consumption which in turn has had a knock on effect to the type of content that gets created.
Back to his Lorship on this issue of distribution he counter-pointed with the problem of online piracy. His aregument: Surely this undermines culture as creators are denied the financial reward needed to sustain their labour and larger producers are reluctant to make content because they might not see a return on their investment? This sharp disincentivisation will thus cause a net-loss for culture in the long run.
He raises a pressing issue.
Piracy is an startlingly complex phenomenon that deserves PhD-thesis size treatment and not just a short retort in a blog post. Part of the problem is that ‘piracy’ is a technical definition which covers some pretty harmful practices as well as some practices which are benign or create more good than damage. However there are two short arguments I mooted to the judge that I think need to be considered:
i) In terms of merely preserving culture, the biggest problem historically has simply been the physical loss or destruction of creative content whether through plain negligence or the intentional destruction thereof (see this depressing list of destroyed libraries). This is also not an ‘ancient’ problem. For example, the US Library of Congress estimates 75% of all silent films from the early days of film are lost. Seventy. Five. Percent. This was not even 100 years ago. And what is online piracy but the creation of an illegal but exact copy of a work? Undoubtedly one of the silver linings of the piracy cloud is that cultural historians in a 100 years’ time will simply not face the same extent of loss or destruction as they will possibly be countless copies of that file throughout the world. In the macro-picture of cultural history, this should not be overlooked.
Secondly, although piracy can indeed be hugely problematic, often the value added to culture by facilitating access to a work which would previously have been inaccessible outweighs the potential economic loss that would occur to the copyright holder. For example, let’s say one downloads an illegal copy of a work readily available and currently on the market. The loss to the copyright holder is clear here and outweighs the gain to culture, doubly so if it’s a Michael Bay film. Compare this to a situation where someone downloads a work that only had a limited release and is now entirely unavailable but for illegal means. In this situation the new availability of the work marks a gain to culture over the economic loss to the copyright holder as they would not have been making money off the asset anyway.
Even from a cursory discussion of the subject it is undeniable that the internet has changed culture radically. As such, does this not call for us to reform copyright at its core rather than continue in the current ad-hoc approach of piecemeal changes arsing from litigation?
To his considerable credit, his Lordship, a senior judge and legal mind, sat and listened to me for almost half an hour, only occasionally pushing me on an assertion or stopping me to ask a question. I have deep respect for the man, particularly so after his engagement with me seeing as he is a senior legal figure and I am literally some kid. I appreciated his listening beyond words.
Sadly however, despite my best efforts, he seemed unconvinced. Which I guess is kind of to be expected seeing as the gentleman is in his mid-70’s and internet usage is sharply marked by age. Admittedly the internet’s effect on culture is still relatively recent and the generation gap would reasonably effect one’s perceptions as there is no first hand exposure to what is going on.
This raises a huge question though, and while it might seem somewhat harshly critical it is one that we should be asking seeing as judges create legal precedent and thus decide both indirectly and directly much of our copyright law:
If copyright looks to legalize and regulate culture, are the people who determine our copyright law (both judges and legislators) too disconnected from us digital citizens to create a regulatory system that matches our intuitions about what is just and economically efficient in this new digital world of culture?
If one’s starting position is that the internet has made no meaningful contribution to culture, well, I’m not sure that points us in a good direction. Sure, this is just one judge and is not an accurate sample of all judges. However, if the average age of judges is anything to go by, it would not be surprising if most judges were unaware of the extent of the cultural shift happening in cyber-space. Certainly there are some exceptions to the general trend but by and large I’m yet to read a judgement which seems aware of these changes and willing to make a significant step forward.
“Wait a second,” I hear you say, “judges are not supposed to be the major drivers of law making or legal reform, this is the job of legislators.”
Good point. Sadly we’ve yet to see legislation passed that takes this meaningful step. Instead, what we’ve seen by and large is a legislation process driven by a powerful lobby of established copyright owners who have tried hard to maintain the old market conditions by reducing the liberating impact of the internet. Furthermore, this political lobbying has been accompanied by a strategy of litigation aimed at achieving a similar obstruction to digital progress. Of course, this is somewhat ‘understandable’ as the idea of litigation is that parties represent or advance their interests as best they can and a neutral arbiter decides what would be the fairest and most equitable outcome for all. That being said, the judges—whose task it is to find the most equitable outcome between parties— are arguably disconnected from the situation on the ground.
SO, if this is the case, now what? I believe it’s crucial that we counteract this in order to create a new system of copyright appropriate for the digital age which not only ensures fair compensation and protection but also maximises creativity and access to culture.
And while legal reform is never easy or quick enough (even when it seems obvious), it can be jump-started by civic awareness and participation. As citizens and potential voters, I’d say we need to make this ‘an issue’. Granted, copyright reform may not be as pressing an issue as climate change or global poverty, but society is shaped by the information and content we have access to. If the system regulating that is broken, this might have ominous consequences down the line. Not only we do need to put this to politicians but we need to incorporate it within other activism. We need to begin a real societal discourse, from both creators and consumers about the rules and regulations we want binding us. This mindset that copyright law is fundamentally sound and the internet has made no cultural impact needs to be changed. This is surely the very core of democracy.
How to get started?
I think the first thing to admit is that this is a technical and complex area of law which might be quite alienating to most people. This is of course a challenge as it’s easy to have abstract calls for reform only to have their potential impact diluted by vague demands. Certainly taking the Occupy movement as an example, one of the most common crticisms made was: we hear your frustration but what do you counter propose in its place?. Without firm demands or solutions causes tend to lose steam.
However it doesn’t need to be that difficult. There are A LOT of very specific areas that we could look to reform. For example, let’s take the element of remixing, sampling etc. As mentioned in copyright law this is called a ‘derivative work’. This would include non-commercial user made works (i.e. fan fiction, remixes, parodies, sampling) but also commercial works like films based on books, official translations etc. Why not distinguish between those derivative works which are made by users for non-commercial purposes which should not be considered infringement and those derivative works which are clearly commercial in nature and thus should be considered an infringement.
Luckily, some countries seem currently in a period of change: the EU is in the process of Copyright reform, recently closing public consultation. A response paper should be out before June although we’ll have to see if anything truly innovative will be proposed rather than a repeat of the past. What I would recommend to those in EU states for now is to sign up with this website I found https://www.wepromise.eu/en which rates politicians running for election to the EU parliament on their commitment to internet freedom and privacy. One of their ten points (among many other important ones) is copyright reform. Elsewhere, we need to create awareness and encourage citizens to put pressure on politicians for answers and reform.
While this might seem a little preachy (mega-soz), the internet has ushered in a new paradigm of creativity that we have not seen since the invention of the printing press. And current copyright law is like trying to apply a 2D mathematics model to a 3D object. This is a cause worth advocating for as after all we are talking about our own right to participate in the cultural life of society. And since the internet has changed the very foundations of culture, in order to save copyright, we need to stand up and change the law at its root.