Speaker by Various Artists


Copyright Must Change

by Matthew Poole

In the firmament of international legal luminaries, few loom larger than Professor Lawrence Lessig, of Standford University's Law School. So I was hardly going to pass up a chance to hear him talk on copyright law, one of my pet interests, in the grounds of my own university.

A crowd of a couple-of-hundred, many of whom looked, by their style of attire, to be lawyers, gathered to hear Prof. Lessig present his thoughts on Keeping culture free. As a speaker, he was superb. He was witty, and made spectacular use of PowerPoint. Note to presenters: less is more. Few of his slides had more than five words, many only one or two. He spoke to the slides, he didn't speak the slides. His knowledge of contemporary culture is clearly broad, as witnessed by his choices of media for examples. A solid grasp of one's topic shows. His format, leading into his argument by way of a little scene-setting worked well, too, particularly for people whose understanding of the background to the issues was, perhaps, a bit shaky.

Opening with a little historical perspective, Lessig spoke of the age when the "elites" conversed in Latin, leaving the "vulgar" languages – English, German, French – to the common folk. This he compared to the advent of the modern language of online conversation. Then he quoted John Philip Sousa's notorious "infernal machines" quip:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy ... in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

Speaking there of the invention of the phonograph, Sousa decried it as a move from, to quote Lessig, "a read-write culture" to "a read-only culture", one where the cultural expression of the day would be locked up in the hands of a few rather than readily available to the masses. Lessig then raised the issue of the law failing to keep pace with technology, giving the example of the first wiretap case, where the Supreme Court of the US ruled that a wiretap without warrant was not a breach of the Fourth Amendment's "unreasonable search and seizure" clause because there was no physical search. As anyone who's watched or read even a little US crime drama knows, that's no longer the case. The technology changed, and the law eventually changed to meet the challenge.

The final historical story came with a quote from Jack Valenti, he of MPAA dinosaur fame, where Jack used the word "terrorists" - at which point in the story Lessig flashed up a photo of three children around a laptop, with "TERRORISTS" stamped across it - to describe copyright infringers. This segued back to the 4th Amendment story, which came from a case against a bootlegger during Prohibition, which Lessig called another failed "war". The point was that eventually the measures employed in trying to fight such "wars" ends up crossing the lines that society draws around civil liberties, and the intangible cost to society becomes greater than any actual benefit. Professor Lessig contends that the "copyright war" has now reached that point; the point where any supposed benefit to society from copyright as it stands is vastly outweighed by the negatives associated with its enforcement. He didn't mention the strong-arm tactics employed by RIAA, but he didn't need to. I imagine everyone in the room knew about the lawsuits against children, grandparents, and the deceased.

History adequately addressed, he proceeded to launch into his argument. In short, copyright as it is today is an anachronism, grounded in a time when the act of copying was time-consuming, and doing it on a commercial scale prohibitively expensive. In a digital world, where the very act of using something necessitates making a copy, those rules are a nonsense. Those rules also lead society to treat as outlaws the creative youth who take digital culture and remix it. They're not in the street singing, they're singing in their bedrooms, through their mice and keyboards. But the law says that their actions are forbidden, turning youthful cultural explorers into brigands.
A very contemporary example of a distinctly illegal creation was this tribute to the credit crunch. A better example involved clips of George Bush and Tony Blair, ostensibly singing to each other, overlayed to __My Endless Love__. Permission was sought to use the song, said Prof. Lessig, but the lawyers denied it because, quote, "It's not funny." They obviously thought it was **very** unfunny, because I just looked at many different YouTube links that were returned from Google and all of them had been taken down. Spoilsports. Another example given of just how prohibitive compliance is was a Cannes-award winning film that had a pre-licensing budget of USD218. To licence all the music used in the background of the movie, which was a series of videos of the maker's life spliced together and overlaid onto music from the appropriate era, would raise that cost to USD400,000. No, that's not a typo. Earlier, Lessig spoke of that most-accepted form of remixing, quoting. Just as I have done here, he made the point that nobody expects a student writing an essay to seek permission from all those whose work they utilise. Rather,

they are simply expected to cite in an accepted style. He spoke of a friend from his university days, whose English essays looked rather like:

Brandis said "blah blah blah", to which Sousa responded "ble ble ble". Countering Sousa, Olmstead said "blech blech blech".

This friend was incredibly successful as an English student, apparently, doubtless assisted by his copious quoting. The point was that he wouldn't have got anywhere if he'd had to approach every source, or their estate, and ask "May I please quote these 20 words in my essay?"

Treating creative expression as criminal, argued Lessig, is "corrosive", because it raises children in an environment where breaking the law is normalised. By telling them that their natural impulses are bad, they will grow up believing that they're bad children. It also encourages unhealthy attitudes toward the law in general, since growing up ignoring a law that is clearly an ass doesn't engender respect for the rest of the law. Cue some serious societal issues in the future.

So, where to from here? Unlike many who disagree with modern copyright, Prof. Lessig isn't an abolitionist. He sees copyright as necessary, but not in its present, absolutist form. Rather, he sees an urgent need for copyright to be granular, treating commercial copying (copying here meaning actual direct reproduction) as it is currently, but allowing totally unfettered amateur remixing and with some intermediate levels of permissibility for commercial remixing or non-commercial copying. When he spoke of commercial remixing, he illustrated the point by referring to the granting of movie rights for a new Grisham novel: it is undesirable for just anyone to make a big-budget movie based on someone's novel. Remixing, in Lessig's lexicon, is any transformation of a work from its original, be it an anime music video, one of the millions of clips on YouTube that consists of a bunch of teenagers dancing to some song or another, or even, and this wasn't an example he used, Lolcats. These acts are the new cultural "quoting", but they fall foul of the law.

A change must come from three places:

One: the law. This is the work of governments, obviously, but since we reside in a democracy we can push for those changes. Exercise our freedoms, and get in the faces of our elected representatives.

Two: us. People publishing work, be it commercially or otherwise, are encouraged to make use of Creative Commons licences on their work. The Creative Commons project allows creators to decide which forms of use they will allow, with appropriate lawyer-ese explanations created for many jurisdictions. NZ has its own translations too. Pick from the buffet of rights that you'll grant to your users - remix commercially, or not; allow others to remix the remix provided that they grant the same rights, or not – and then select the necessary document. For the geeks, it's rather like the BSD licence.

Three: business. Lessig wishes to remind you that "IP isn't a religion." Don't be scared to embrace community work. Flickr, YouTube, and others, are examples of the potentially enormous revenue that's attached to the new expression. Don't be like Sony, and send lawyer-grams to users who figure out ways to make your products do new, cool things. It's good for your product, because it adds value. People out there really want to love your product, and they want to share their love with others. Microsoft has whole communities online, built up around the passion of people for sharing with others. Microsoft, of all companies, gets it! Oh, and don't be like George Lucas and seize full control of anything that your community does with your work. Lessig called that "sharecropping for the digital age", referring to the indentured servitude agricultural practices of 19tth- and early-20th Century United States.

"Copyright must change", was the main thrust of Lessig's argument. Carrying on as we are is not an option. If change had happened 10 or 15 years ago, file-sharing could've made musicians millions. Instead, they've seen not a cent. Artists live through exposure, and fans want to share the love. Harness that passion, rather than trying to suppress it. Don't raise the next generation under a mantle of oppression that seeks to mute their expression of "the songs of the day." Creativity will flourish with or without changes, but right now the system is designed for a different time and different challenges. It doesn't encourage, in fact actively discourages, new expressions. Sending a novel-length text (sorry about how close this is to becoming one) around the world takes 20 seconds, and it's identical at both ends. Until this divergence is recognised and utilised, opportunities for rewarding creators will go unused and entire generations will continue to willingly, egregiously flout the law. That really is missing the point of copyright.

Matthew Poole

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