Sunday, February 20, 2011

are you a criminal? if you can't quote copyright law, think twice before you answer

I reckon I am going to write a lot about copyright law. I studied it at uni from both the "good guys" angle and the "bad guys" angle and I have wavered between the two, but more often than not have favoured the "bad guys". This has nothing to do with a lack of appreciation for the people who create works that they copyright. I am happy to pay for a copyrighted work. I treasure creativity and I am always looking forward to new music, books, movies, art etc.

Like many religious institutions, commercial movie studios, most of the record industry and the big book and magazine publishers are stuck at a point in time regarding copyright that has been out of date for a very long time.

When physical records and books were the only way to distribute music and written entertainment, and movies were something you attended rather than took home, the laws that covered intellectual property were barely adequate.

The advances in digital storage, duplication and distribution of intellectual property have created audiences the likes of which the owners of entertainment intellectual property and published works could never have imagined even 50 years ago. Whilst technology has advanced, the business models and mentalities of executives in these industries has failed to evolved to keep up.

Any industry that once relied on the physical movement of sanctioned copies of published music has in the last couple of decades been grappling with the fact that an almost infinite number of copies can be distributed instantaneously across the world. This can be done with or without the consent of the copyright owner.

Copyright is sketchy subject at best and it gets constantly sketchier with advances in digital technology.

Copyright Ownership
One of my favourite copyright story involves the Happy Birthday song. The rights to Happy Birthday are owned by Warner Music, part of one of the greediest & old fashioned corporate monstrosities, Time Warner. And yes, they enforce their copyright whenever they can. The company regularly charges up to $US30,000 to anyone who wants to use the song for profit whether it's played in a film, sampled in a song, downloaded as a ring tone or sung at a chain restaurant. There are even stories that the Girl Scouts have been warned that singing it to campers could result in a fine. Many questions have been posed about the validity of the claim to copyright, but up to now, it has proven more cost-effective to simply pay to use the song than to dispute the claim.

Copyright Infringement
There are lots of ways to infringe copyright. Many musical artists use samples to create their own copyrighted works. If they intend to profit from their work, they are required to seek the permission from the original copyright owner and pay them for the use of their work. Whilst this style of derivative art is often a completely new piece in itself, albeit a pastiche in which elements may be recognisable parts of other coprighted works, the very juxtaposition, rearrangement or other manipulation of the original snippets into something new is in itself a creative process. Record companies have struggled to come to terms with these relatively new creative processes and many artists have been faced with fines and court cases that have affected their ability to profit from their efforts.

One early example involves a group of satirists called Negativland and their use of snippets of songs by U2 and recorded dialogue by Casey Kasem in the early 90s to create a piece that parodied both U2 and Kasem over some outtakes from Kasem's American Top 40, where he ranted about not giving a shit about U2 whilst rehearsing for his show. Depending on interpretation, satire is one way to use copyrighted works without being required to pay the copyright owner, but this didn't stop Island Records from attempting to sue Negativland.

It is interesting to note that Island records have over the years signed many artists who use samples and have at one time or another been accused of infringing copyright themselves, including Tone Loc, Young MC and UK "Trip-Hop" artist Tricky.

Piracy is stealing, it's hard to argue. Music, movies and clothing are the big ticket items here, but unlike clothing which obviously needs to be produced physically, music and movies can be digitised and distributed without degradation all around the world via the internet on peer to peer networks, file sharing servers, email etc. instantaneously and almost anonymously.

Whilst I will not argue that Piracy is OK, some of the motivators are clear to see and easy to sympathise with. Obtaining copyrighted works through Piracy is free and easy. So, what do record companies do to address Piracy? Make their material cheaper and easier to obtain legitimately? Not a chance! They prosecute (persecute) people using archaic laws rooted in times before the internet, such as a a 32-year-old American housewife who was originally sued for $US1.9 million for downloading 24 songs on Kazaa. The penalty was recently reduced to $US54,000.

Whilst it is usually organisations and the owners of peer-to-peer servers like Piratebay and Mininova that bear the full wrath of record and movie companies, be prepared to see more and more individuals sued and/or jailed for seeking free and easy entertainment.

So there's some problems, next time I'll crap on about some solutions and alternatives.
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