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JulianAzranFirstPaper 5 - 21 Jun 2013 - Main.JulianAzran
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| META TOPICPARENT | name="FirstPaper" |
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A Renaissance: Enabling the Meta-Culture | |
<
< | -- By JulianAzran - 8 Apr 2013 | >
> | -- By JulianAzran - 21 June 2013 | | | | |
<
< | Prior to the invention of the printing press, the Catholic Church exerted de facto control over the spread of culture and ideas in Europe. The sheer speed and ease of the printing press shattered the Church’s monopoly over written texts, | >
> | Prior to the invention of the printing press, the Catholic Church exerted de facto control over the spread of culture and ideas in Europe. The sheer speed and ease of the printing press challenged the Church’s influence and paved the way for the dissemination of individual thought and unsanctioned ideas. | | | | |
<
< | Monopoly over written
texts is not correct, and does not capture the nature of the power
being exercised.
paving the way for individual thought and democratic ideals.
Replace the printing press with the personal computer, and the Catholic Church with the Viacoms and media conglomerates of the world; we are now at a similar crossroads over the control of ideas and expression. Modern technology has given rise to a remix culture; the question is to what extent we will allow copyright laws to prevent this renaissance.
The conclusion came too fast. There is an analogy to draw, and in
my writings and speeches I often draw it, but the "similarity" may
be deceptive. After all, the very idea "copyright law" has no
relevant corresponding concept in the prior historical setting.
| >
> | Replace the printing press with the personal computer, and the Catholic Church with the Viacoms and media conglomerates of the world; we are now at a comparable crossroads over the control of ideas and expression. | | |
Read-Only to Read/Write | |
<
< | Lawrence Lessig has said that we are now in the process of becoming a read/write culture after having been read-only for over a century. Rather than just passively listening to music, watching movies and reading books, people are now re-contextualizing these cultural artifacts in ways that give rise to a meta-culture. These meta-cultures are using other peoples’ works as a shared language to connect with others. The 50 Shades of Grey book series was developed from a Twilight fan-fiction website, where users post their own stories using the characters and themes from Twilight. Hip-Hop music was created by DJs who used snippets of other peoples’ songs to create new ones. These are two ways in which people are speaking with the transmissible entities that they have gleaned from pre-existing cultural artifacts. | | | | |
<
< | Of course, this is not a novel idea. Remix or meta-cultures have existed in different forms of folklore for centuries, and have long been an integral part of how people have communicated with one another. The difference today is that cheap digital technology has removed the barriers that previously prevented people from directly engaging with preexisting cultural artifacts. Prior to the early 2000s, without a large budget and an abundance of free time, it would have been impossible to do this or this. This type of remixing is wholly different from the remixing that Disney engaged in, when it created animated movies based on stories in the public domain. | >
> | Lawrence Lessig has said that we are now becoming a read/write culture after having been read-only for over a century. Rather than just passively listening to music, watching movies and reading books, people are now re-contextualizing these media in ways that give rise to meta-cultures. These meta-cultures use pre-existing cultural artifacts as a shared language to connect with others. The 50 Shades of Grey book series was developed from a Twilight fan-fiction website, where users post their own stories using the characters and themes from Twilight. Hip-Hop music was created by DJs who used snippets of other peoples’ songs to create new ones. These are two ways in which people are speaking with the transmissible entities that they have gleaned from pre-existing cultural artifacts. | | | | |
<
< | Maybe, maybe not.
Disney's activity is somewhat like Shakespeare's and is in other
ways not like Shakespeare at all. The analogies are helpful only if
they show us how to understand what is happening now in a more
powerful way. | >
> | Of course, this is not an unprecedented phenomenon. Remixes have existed in different forms of folklore for centuries, and have long been an integral part of how people have communicated with one another. The difference today is that inexpensive digital technology has removed the barriers that prevented people from directly engaging with the preexisting cultural artifacts that they were listening to, reading and watching. Anyone could have sung their favorite Beatles song in the 1960s, but until the early 2000s, doing this would have been impossible for the average consumer. | | |
Creative Control | |
<
< | Copyright does not incentivize creativity; it allows artists to control how their works are used even after they have been widely disseminated. The question is how much control do we want to give the original author? For much of the twentieth century, we gave artists almost complete control over how their works were used. For the average consumer, this regime was not an issue for the most part, owing to technological limitations. But technology has now advanced to the point where remixing has become an integral part of American culture.
In some places
"artists" had control, but mostly "artists" were employees whose
work was done for hire, and it was completely alienated from them:
they had no control. Copyright law was mostly about the latter
form of cultural production and distribution, while it pretended
wherever possible to be about the former.
So to the extent that there was a power struggle going on before, and
there is still a power struggle going on, the word I least understand
in your preceding paragraph is "we."
Piracy vs. Plagiarism
How can we change copyright to allow this new remix culture to thrive? Obviously giving artists tighter control over their works is not the answer, but neither is abolition of all restrictions. Artists must be protected against outright piracy.
Why do "artists" have
to be protected against sharing? Owners have to be protected
against sharing. Artists do not usually have to be protected
against being enjoyed. | | | | |
>
> | One of the biggest threats to meta-culture is copyright law, which media-conglomerates have used to sue people who remix their works. Advocates of copyright argue that they protect authors and in turn incentivize artists to create and disseminate their works for the public. The reality is that many musicians and authors are treated as employees, not artists. Under work-for-hire contracts, the underlying copyright of a work is transferred to the employer (record company/label/movie studio). This has put powerful corporations, not artists or the public, in control of culture. With a pure incentive to maximize profits, these corporations have engaged in scorched-earth campaigns, suing anybody that commits even the least harmful infringement. Such rent-seeking behavior has awarded merit with financial compensation and interfered with innovation. | | | | |
<
< | But there is a difference between piracy and plagiarism. Piracy is when I send a Jay-Z album to a friend, plagiarism is when I take a Jay-Z album and mash it with Beatles songs. These two concepts therefore should be separated into distinct regimes of copyright governance.
This is facile. What
is your name in this limited vocabulary for adding small bursts of
bits to a bunch of previously copyrighted Jay-Z bits and sending
the result to your friend?
This will continue to allow artists to make money selling their works, but will also allow the public to remix those works without having to seek someone’s permission. | | | Solutions | |
<
< | The Creative Commons are a step in the right direction, but its fatal flaw is that the system is voluntary; only those who want to allow others to remix their works will register with the Commons.
They're not
"registering," they're just licensing on different terms. They
aren't any different than any other licensors, and there is plenty
of utility in the world for non-compulsory licenses. Free software
and Wikipedia have already both changed the world by making
different licensing terms and creation workflow easy for people.
In order for remix culture to reach its full potential, giving the public remix rights must be mandatory. Up to this point, the fair use doctrine has been limited to protecting parodies and educational uses. In addition, there is much confusion as to where a certain remix stops becoming fair use and shades into the realm of unauthorized reproduction. Some of this confusion can be attributed to the nature of the test itself, which involves a four-part analysis. Instead, I suggest ignoring three of those questions and simply asking ‘what is the “effect of the [remix] upon the potential market for or value of the copyrighted work?’” | | | | |
>
> | How can we change copyright to allow remix culture to thrive? The Creative Commons is a major improvement, by providing people with an array of licensing options for their works. But it does not prevent media conglomerates from extorting their copyrights because they will simply choose to license on terms that are most favorable to their bottom lines. | | | | |
<
< | So that major
improvements to works remain prohibited, and ineffectual or
aesthetically displeasing derivative works may be circulated
without payment of royalties? To what end?
| >
> | In order for remix culture to reach its full potential, giving remix rights to the public must be mandatory. Up to this point, the fair use doctrine has been limited to protecting parodies and educational uses. In addition, there is much confusion as to where a certain remix stops becoming fair use and shades into the realm of unauthorized reproduction. Some of this confusion can be attributed to the nature of the test itself, which involves a four-part analysis. Instead, I suggest replacing it with a single question: is the new work productive or innovative so as to significantly contribute to social criticism or free expression? | | | | |
>
> | First, protecting public criticism has been one of the chief purposes of the fair use doctrine, such as in the case of parodies. Second, the US Constitution protects freedom of speech in its First Amendment. Third, this inquiry would substantially limit the ability of media conglomerates to engage in wasteful rent-seeking behavior and, in turn, allow remix culture to flourish. | | | | |
<
< | Such a clearance house would not be unprecedented. Since 1978, The Copyright Clearance Center has overseen the licensing of photocopy reproduction rights. It manages the rights for almost 2 million print works and represents thousands of publishers and writers. It handles over 1 million licensing transactions each year while operating as a non-profit, by taking a small percentage of the revenues it collects. | >
> | A presumption of fair use could further deter copyright holders from filing frivolous lawsuits against individuals. Copyright owners must be protected against outright piracy, but not all infringements should be treated as unlawful. There is a difference between piracy and plagiarism. Piracy is when I send a Jay-Z album to a friend, plagiarism is when I take a Jay-Z album and mash it with Beatles songs. But this distinction is not always so clear; small transformations, such as adding small bits of sound to a Jay-Z album and sending the result to my friend, shade towards piracy. However, this difficulty is alleviated by this new fair use test. By shifting the focus away from what has been done to the appropriated work and towards the benefits of the new work relative to the appropriated work, artists are protected from piracy and the public will be free to directly engage with cultural artifacts to produce meaningful expression. | | | | |
<
< |
And?
This would be an effective way to protect both original authors and remixers because most remixes do not displace the market for the original work; therefore the original author is not deprived of customers. The Grey Album is not displacing the market for the White Album. Nevertheless, it was the Beatles’ label, EMI, who sued Danger Mouse, the remixer. EMI’s stance could actually be counter to its own interests in seeking to maximize sales of its music catalogue. Indeed, the online release of the Grey Album led to a peak in sales of the White Album. Remixes, thus add to the visibility of the underlying work, without undercutting the original authors’ pecuniary interests.
Moral Rights
At this point some would ask, ‘doesn’t the author have a right to control how others use their work?’ Moral rights seek to preserve the integrity of the work by protecting the work from alteration, distortion, or mutilation. That might be true for an artist who wants to protect his paintings, but in a digital age, these concerns are not as relevant. The original work can always be preserved, but the owner should not be able to exert control over the alteration of copies. If I take a book and cut the pages into snowflakes and sell them, the author should not be able to stop me. After all, no one interested in reading the book would choose to buy mutilated pages rather than the book itself. Why should a songwriter be able to prevent me from remixing his song? | | | Conclusion | |
<
< | If we change our copyright policies in this way, remix culture will thrive and people will be able to connect in new ways via their shared language of culture. Perhaps this might even allow entire cultures to communicate with each other, in unprecedented ways.
These are interesting,
mostly half-baked, ideas in a jumble, replacing one form of argument
for compulsory licensing regimes with another.
| >
> | Modern technology has given rise to a remix culture; the question is to what extent we will allow copyright laws to prevent this renaissance. If we change our copyright policies in this way, remix culture will prosper and people will be able to connect in new ways via their shared language of culture. Perhaps this might even allow entire cultures to communicate with each other, in unprecedented ways. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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JulianAzranFirstPaper 4 - 15 Jun 2013 - Main.EbenMoglen
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| META TOPICPARENT | name="FirstPaper" |
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A Renaissance: Enabling the Meta-Culture
-- By JulianAzran - 8 Apr 2013 | |
<
< | Prior to the invention of the printing press, the Catholic Church exerted de facto control over the spread of culture and ideas in Europe. The sheer speed and ease of the printing press shattered the Church’s monopoly over written texts, paving the way for individual thought and democratic ideals. | >
> | Prior to the invention of the printing press, the Catholic Church exerted de facto control over the spread of culture and ideas in Europe. The sheer speed and ease of the printing press shattered the Church’s monopoly over written texts,
Monopoly over written
texts is not correct, and does not capture the nature of the power
being exercised.
paving the way for individual thought and democratic ideals. | | | Replace the printing press with the personal computer, and the Catholic Church with the Viacoms and media conglomerates of the world; we are now at a similar crossroads over the control of ideas and expression. Modern technology has given rise to a remix culture; the question is to what extent we will allow copyright laws to prevent this renaissance. | |
>
> |
The conclusion came too fast. There is an analogy to draw, and in
my writings and speeches I often draw it, but the "similarity" may
be deceptive. After all, the very idea "copyright law" has no
relevant corresponding concept in the prior historical setting.
| | | Read-Only to Read/Write
Lawrence Lessig has said that we are now in the process of becoming a read/write culture after having been read-only for over a century. Rather than just passively listening to music, watching movies and reading books, people are now re-contextualizing these cultural artifacts in ways that give rise to a meta-culture. These meta-cultures are using other peoples’ works as a shared language to connect with others. The 50 Shades of Grey book series was developed from a Twilight fan-fiction website, where users post their own stories using the characters and themes from Twilight. Hip-Hop music was created by DJs who used snippets of other peoples’ songs to create new ones. These are two ways in which people are speaking with the transmissible entities that they have gleaned from pre-existing cultural artifacts. | | | Lawrence Lessig has said that we are now in the process of becoming a read/write culture after having been read-only for over a century. Rather than just passively listening to music, watching movies and reading books, people are now re-contextualizing these cultural artifacts in ways that give rise to a meta-culture. These meta-cultures are using other peoples’ works as a shared language to connect with others. The 50 Shades of Grey book series was developed from a Twilight fan-fiction website, where users post their own stories using the characters and themes from Twilight. Hip-Hop music was created by DJs who used snippets of other peoples’ songs to create new ones. These are two ways in which people are speaking with the transmissible entities that they have gleaned from pre-existing cultural artifacts. | |
<
< | | | | Of course, this is not a novel idea. Remix or meta-cultures have existed in different forms of folklore for centuries, and have long been an integral part of how people have communicated with one another. The difference today is that cheap digital technology has removed the barriers that previously prevented people from directly engaging with preexisting cultural artifacts. Prior to the early 2000s, without a large budget and an abundance of free time, it would have been impossible to do this or this. This type of remixing is wholly different from the remixing that Disney engaged in, when it created animated movies based on stories in the public domain. | |
>
> | Maybe, maybe not.
Disney's activity is somewhat like Shakespeare's and is in other
ways not like Shakespeare at all. The analogies are helpful only if
they show us how to understand what is happening now in a more
powerful way.
| | | Creative Control
Copyright does not incentivize creativity; it allows artists to control how their works are used even after they have been widely disseminated. The question is how much control do we want to give the original author? For much of the twentieth century, we gave artists almost complete control over how their works were used. For the average consumer, this regime was not an issue for the most part, owing to technological limitations. But technology has now advanced to the point where remixing has become an integral part of American culture. | |
>
> | In some places
"artists" had control, but mostly "artists" were employees whose
work was done for hire, and it was completely alienated from them:
they had no control. Copyright law was mostly about the latter
form of cultural production and distribution, while it pretended
wherever possible to be about the former.
So to the extent that there was a power struggle going on before, and
there is still a power struggle going on, the word I least understand
in your preceding paragraph is "we."
| | | Piracy vs. Plagiarism | |
<
< | How can we change copyright to allow this new remix culture to thrive? Obviously giving artists tighter control over their works is not the answer, but neither is abolition of all restrictions. Artists must be protected against outright piracy. But there is a difference between piracy and plagiarism. Piracy is when I send a Jay-Z album to a friend, plagiarism is when I take a Jay-Z album and mash it with Beatles songs. These two concepts therefore should be separated into distinct regimes of copyright governance. This will continue to allow artists to make money selling their works, but will also allow the public to remix those works without having to seek someone’s permission. | >
> | How can we change copyright to allow this new remix culture to thrive? Obviously giving artists tighter control over their works is not the answer, but neither is abolition of all restrictions. Artists must be protected against outright piracy.
Why do "artists" have
to be protected against sharing? Owners have to be protected
against sharing. Artists do not usually have to be protected
against being enjoyed.
But there is a difference between piracy and plagiarism. Piracy is when I send a Jay-Z album to a friend, plagiarism is when I take a Jay-Z album and mash it with Beatles songs. These two concepts therefore should be separated into distinct regimes of copyright governance.
This is facile. What
is your name in this limited vocabulary for adding small bursts of
bits to a bunch of previously copyrighted Jay-Z bits and sending
the result to your friend?
This will continue to allow artists to make money selling their works, but will also allow the public to remix those works without having to seek someone’s permission. | | | Solutions | |
<
< | The Creative Commons are a step in the right direction, but its fatal flaw is that the system is voluntary; only those who want to allow others to remix their works will register with the Commons. In order for remix culture to reach its full potential, giving the public remix rights must be mandatory. Up to this point, the fair use doctrine has been limited to protecting parodies and educational uses. In addition, there is much confusion as to where a certain remix stops becoming fair use and shades into the realm of unauthorized reproduction. Some of this confusion can be attributed to the nature of the test itself, which involves a four-part analysis. Instead, I suggest ignoring three of those questions and simply asking ‘what is the “effect of the [remix] upon the potential market for or value of the copyrighted work?’” | >
> | The Creative Commons are a step in the right direction, but its fatal flaw is that the system is voluntary; only those who want to allow others to remix their works will register with the Commons.
They're not
"registering," they're just licensing on different terms. They
aren't any different than any other licensors, and there is plenty
of utility in the world for non-compulsory licenses. Free software
and Wikipedia have already both changed the world by making
different licensing terms and creation workflow easy for people.
In order for remix culture to reach its full potential, giving the public remix rights must be mandatory. Up to this point, the fair use doctrine has been limited to protecting parodies and educational uses. In addition, there is much confusion as to where a certain remix stops becoming fair use and shades into the realm of unauthorized reproduction. Some of this confusion can be attributed to the nature of the test itself, which involves a four-part analysis. Instead, I suggest ignoring three of those questions and simply asking ‘what is the “effect of the [remix] upon the potential market for or value of the copyrighted work?’”
So that major
improvements to works remain prohibited, and ineffectual or
aesthetically displeasing derivative works may be circulated
without payment of royalties? To what end?
| | | Such a clearance house would not be unprecedented. Since 1978, The Copyright Clearance Center has overseen the licensing of photocopy reproduction rights. It manages the rights for almost 2 million print works and represents thousands of publishers and writers. It handles over 1 million licensing transactions each year while operating as a non-profit, by taking a small percentage of the revenues it collects. | |
>
> |
And?
| | | This would be an effective way to protect both original authors and remixers because most remixes do not displace the market for the original work; therefore the original author is not deprived of customers. The Grey Album is not displacing the market for the White Album. Nevertheless, it was the Beatles’ label, EMI, who sued Danger Mouse, the remixer. EMI’s stance could actually be counter to its own interests in seeking to maximize sales of its music catalogue. Indeed, the online release of the Grey Album led to a peak in sales of the White Album. Remixes, thus add to the visibility of the underlying work, without undercutting the original authors’ pecuniary interests.
Moral Rights | | | If we change our copyright policies in this way, remix culture will thrive and people will be able to connect in new ways via their shared language of culture. Perhaps this might even allow entire cultures to communicate with each other, in unprecedented ways.
| |
>
> | These are interesting,
mostly half-baked, ideas in a jumble, replacing one form of argument
for compulsory licensing regimes with another.
| | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: |
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JulianAzranFirstPaper 3 - 08 Apr 2013 - Main.JulianAzran
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| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | The Protection of Expression: Returning Questlove’s Firstborn | >
> | A Renaissance: Enabling the Meta-Culture | | | | |
<
< | -- By JulianAzran - 25 Feb 2013 | >
> | -- By JulianAzran - 8 Apr 2013 | | | | |
<
< | Why is this a relic from a past time? Public Enemy’s “Don’t Believe the Hype” is composed of six different songs, samples that have been chopped and rearranged into a musical collage. The group did not obtain any licenses for the songs that they used, which, in 1992, was an easy feat since many in the music business thought that hip-hop was a passing fad. Today, it is financially impossible to obtain six licenses for a single song like “Don’t Believe Hype.” This technique of creative expression is now dead. How can we get it back? | >
> | Prior to the invention of the printing press, the Catholic Church exerted de facto control over the spread of culture and ideas in Europe. The sheer speed and ease of the printing press shattered the Church’s monopoly over written texts, paving the way for individual thought and democratic ideals. | | | | |
<
< | Normative Goals of Copyright | >
> | Replace the printing press with the personal computer, and the Catholic Church with the Viacoms and media conglomerates of the world; we are now at a similar crossroads over the control of ideas and expression. Modern technology has given rise to a remix culture; the question is to what extent we will allow copyright laws to prevent this renaissance. | | | | |
<
< | The impetus of copyright law was to prevent the aristocracy from holding an indefinite monopoly over copyrightable ideas. It was initially devised as a public bargain with authors and artists; designed to incentivize the authorship and public dissemination of creative works. This rationale is reflected in the copyright clause of the Constitution, giving Congress the power to pass laws "to promote the progress of science and useful arts." Our first copyright law granted authors a fixed-term of 28 years of exclusivity to their works. However, recent revisions to our copyright laws have done away with this public bargain rationale and have instead attempted to grant authors virtually indefinite property rights to their creative output. The most recent revision gives authors who published after 1978 a copyright term of life of the author plus 70 years. This rule was designed to give the estates of dead artists the opportunity to reap the financial rewards of their decedents’ art, without any concern for public bargain. | >
> | Read-Only to Read/Write | | | | |
<
< | Copyright bestows upon the public the role of picking artistic winners. Suppliers receive revenues only when they are able to persuade consumers to spend their money on a good or service. Yet, copyright represents government intervention rather than laissez-faire. The system of property rights in the reproducible arts is based on government fiat, a limited grant of rights. While the basic idea of copyright may be rooted in natural law, the practical application of copyright law is utilitarian and morally arbitrary. Therefore any argument that modern copyright laws merely bestow upon the author what is naturally his or hers is fundamentally false. | >
> | Lawrence Lessig has said that we are now in the process of becoming a read/write culture after having been read-only for over a century. Rather than just passively listening to music, watching movies and reading books, people are now re-contextualizing these cultural artifacts in ways that give rise to a meta-culture. These meta-cultures are using other peoples’ works as a shared language to connect with others. The 50 Shades of Grey book series was developed from a Twilight fan-fiction website, where users post their own stories using the characters and themes from Twilight. Hip-Hop music was created by DJs who used snippets of other peoples’ songs to create new ones. These are two ways in which people are speaking with the transmissible entities that they have gleaned from pre-existing cultural artifacts. | | | | |
<
< | Emergence of "Intellectual Property" | | | | |
<
< | The movement towards categorizing copyrights, trademarks, and patents under the umbrella term “intellectual property” only began in 1967, when the World Intellectual Property Organization was formed. Using this term inescapably implies that copyrights patents and trademarks are, by analogy, physical property and should be treated as such. In fact, these laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues. Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas. The artificial association of these two grants has led legislators to tailor laws in various ways that treat them as physical property. | >
> | Of course, this is not a novel idea. Remix or meta-cultures have existed in different forms of folklore for centuries, and have long been an integral part of how people have communicated with one another. The difference today is that cheap digital technology has removed the barriers that previously prevented people from directly engaging with preexisting cultural artifacts. Prior to the early 2000s, without a large budget and an abundance of free time, it would have been impossible to do this or this. This type of remixing is wholly different from the remixing that Disney engaged in, when it created animated movies based on stories in the public domain. | | | | |
<
< | Effects of Copyright Expansionism | >
> | Creative Control | | | | |
<
< |
“not saying this is the primary reason why we [the Roots] did original material but you don't know the pain it is to give up mid 5 figures to a group of people who ain't even the artist, the pain.” | >
> | Copyright does not incentivize creativity; it allows artists to control how their works are used even after they have been widely disseminated. The question is how much control do we want to give the original author? For much of the twentieth century, we gave artists almost complete control over how their works were used. For the average consumer, this regime was not an issue for the most part, owing to technological limitations. But technology has now advanced to the point where remixing has become an integral part of American culture. | | | | |
<
< | The Roots’ drummer and producer, Questlove, posted this comment in December 2000 (Link no longer active). He explains that the part of the reason why The Roots became a band that played live instruments was due to the exorbitant fees that copyright owners were charging for sample clearances. In addition, those in control of a song’s copyright are usually neither the song’s performer nor somebody with any direct involvement in the writing or recording processes. These two issues have together led to a virtual monopoly over the copyrights of much of the music that Hip-Hop artists tend to sample, thus many artists are unable to fully realize their true artistic visions. | >
> | Piracy vs. Plagiarism | | | | |
<
< | Acquiring a license to sample a song requires negotiating with the copyright holders. Some artists are famously unwilling to let their songs be used by others. However the Beatles are powerless to prevent another from recording a cover of any of their songs. When a cover is made, the new recording artist pays a standard royalty, fixed by statute, to the original author/copyright holder through a clearance organization to require a compulsory license. | >
> | How can we change copyright to allow this new remix culture to thrive? Obviously giving artists tighter control over their works is not the answer, but neither is abolition of all restrictions. Artists must be protected against outright piracy. But there is a difference between piracy and plagiarism. Piracy is when I send a Jay-Z album to a friend, plagiarism is when I take a Jay-Z album and mash it with Beatles songs. These two concepts therefore should be separated into distinct regimes of copyright governance. This will continue to allow artists to make money selling their works, but will also allow the public to remix those works without having to seek someone’s permission. | | | Solutions | |
<
< | Instead of an ad-hoc negotiating regime, where each copyright holder maintains a monopoly over his or her catalog of songs, a sampling clearinghouse could charge a few cents for each song/album it reviews. Rules would be devised to adjust the license fee based on how much of the original song is being sampled, how prevalent it is in the new recording, whether the original song has been altered etc. Artists would prefer to use samples administered by the clearinghouse, since these samples would not require legal haggling and fees. Labels and publishers would be encouraged to have their licenses administered by the clearinghouse, in order to collect fees and reduce transaction costs. It could be administered by a combination of artists, copyright lawyers, and representatives from the RIAA, ASCAP, BMI, SESAC, and the National Academy of Songwriters. This system would allow musicians to experiment and capitalize on their uncompromised artistic visions, while also being lucrative for copyright holders. Lower licensing fees will be result in more sampling and more licenses being granted. | >
> | The Creative Commons are a step in the right direction, but its fatal flaw is that the system is voluntary; only those who want to allow others to remix their works will register with the Commons. In order for remix culture to reach its full potential, giving the public remix rights must be mandatory. Up to this point, the fair use doctrine has been limited to protecting parodies and educational uses. In addition, there is much confusion as to where a certain remix stops becoming fair use and shades into the realm of unauthorized reproduction. Some of this confusion can be attributed to the nature of the test itself, which involves a four-part analysis. Instead, I suggest ignoring three of those questions and simply asking ‘what is the “effect of the [remix] upon the potential market for or value of the copyrighted work?’” | | | Such a clearance house would not be unprecedented. Since 1978, The Copyright Clearance Center has overseen the licensing of photocopy reproduction rights. It manages the rights for almost 2 million print works and represents thousands of publishers and writers. It handles over 1 million licensing transactions each year while operating as a non-profit, by taking a small percentage of the revenues it collects. | |
>
> | This would be an effective way to protect both original authors and remixers because most remixes do not displace the market for the original work; therefore the original author is not deprived of customers. The Grey Album is not displacing the market for the White Album. Nevertheless, it was the Beatles’ label, EMI, who sued Danger Mouse, the remixer. EMI’s stance could actually be counter to its own interests in seeking to maximize sales of its music catalogue. Indeed, the online release of the Grey Album led to a peak in sales of the White Album. Remixes, thus add to the visibility of the underlying work, without undercutting the original authors’ pecuniary interests. | | | | |
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< | | >
> | Moral Rights | | | | |
<
< | For a licensing lawyer, compulsory licensing is the solution to
every problem of too much copyright. But if one is not a licensing
lawyer, the solution to any problem of too much copyright is
probably less copyright.
Of course we can make a bureaucracy for the redistribution of rights
that get in the way of creativity. Or we can use our extremely
flexible fair use defense to obliterate the problem altogether.
Perhaps the Creative Commons Sampling License is the correct
solution for musicians who produce works copyrighted in systems
whose law of limitations is inflexible. Here, one would think given
your exploration of the over-building of "intellectual property"
doctrine, it is simpler to determine that conduct valuable to
expression and not harmful to anybody does not require a license
because it is not within the exclusive power of the copyright holder
to forbid. | >
> | At this point some would ask, ‘doesn’t the author have a right to control how others use their work?’ Moral rights seek to preserve the integrity of the work by protecting the work from alteration, distortion, or mutilation. That might be true for an artist who wants to protect his paintings, but in a digital age, these concerns are not as relevant. The original work can always be preserved, but the owner should not be able to exert control over the alteration of copies. If I take a book and cut the pages into snowflakes and sell them, the author should not be able to stop me. After all, no one interested in reading the book would choose to buy mutilated pages rather than the book itself. Why should a songwriter be able to prevent me from remixing his song? | | | | |
>
> | Conclusion | | | | |
<
< | | >
> | If we change our copyright policies in this way, remix culture will thrive and people will be able to connect in new ways via their shared language of culture. Perhaps this might even allow entire cultures to communicate with each other, in unprecedented ways. | | |
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JulianAzranFirstPaper 2 - 10 Mar 2013 - Main.EbenMoglen
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| META TOPICPARENT | name="FirstPaper" |
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The Protection of Expression: Returning Questlove’s Firstborn | | | Such a clearance house would not be unprecedented. Since 1978, The Copyright Clearance Center has overseen the licensing of photocopy reproduction rights. It manages the rights for almost 2 million print works and represents thousands of publishers and writers. It handles over 1 million licensing transactions each year while operating as a non-profit, by taking a small percentage of the revenues it collects. | |
>
> |
For a licensing lawyer, compulsory licensing is the solution to
every problem of too much copyright. But if one is not a licensing
lawyer, the solution to any problem of too much copyright is
probably less copyright.
Of course we can make a bureaucracy for the redistribution of rights
that get in the way of creativity. Or we can use our extremely
flexible fair use defense to obliterate the problem altogether.
Perhaps the Creative Commons Sampling License is the correct
solution for musicians who produce works copyrighted in systems
whose law of limitations is inflexible. Here, one would think given
your exploration of the over-building of "intellectual property"
doctrine, it is simpler to determine that conduct valuable to
expression and not harmful to anybody does not require a license
because it is not within the exclusive power of the copyright holder
to forbid.
| | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
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JulianAzranFirstPaper 1 - 25 Feb 2013 - Main.JulianAzran
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| META TOPICPARENT | name="FirstPaper" |
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The Protection of Expression: Returning Questlove’s Firstborn
-- By JulianAzran - 25 Feb 2013
Why is this a relic from a past time? Public Enemy’s “Don’t Believe the Hype” is composed of six different songs, samples that have been chopped and rearranged into a musical collage. The group did not obtain any licenses for the songs that they used, which, in 1992, was an easy feat since many in the music business thought that hip-hop was a passing fad. Today, it is financially impossible to obtain six licenses for a single song like “Don’t Believe Hype.” This technique of creative expression is now dead. How can we get it back?
Normative Goals of Copyright
The impetus of copyright law was to prevent the aristocracy from holding an indefinite monopoly over copyrightable ideas. It was initially devised as a public bargain with authors and artists; designed to incentivize the authorship and public dissemination of creative works. This rationale is reflected in the copyright clause of the Constitution, giving Congress the power to pass laws "to promote the progress of science and useful arts." Our first copyright law granted authors a fixed-term of 28 years of exclusivity to their works. However, recent revisions to our copyright laws have done away with this public bargain rationale and have instead attempted to grant authors virtually indefinite property rights to their creative output. The most recent revision gives authors who published after 1978 a copyright term of life of the author plus 70 years. This rule was designed to give the estates of dead artists the opportunity to reap the financial rewards of their decedents’ art, without any concern for public bargain.
Copyright bestows upon the public the role of picking artistic winners. Suppliers receive revenues only when they are able to persuade consumers to spend their money on a good or service. Yet, copyright represents government intervention rather than laissez-faire. The system of property rights in the reproducible arts is based on government fiat, a limited grant of rights. While the basic idea of copyright may be rooted in natural law, the practical application of copyright law is utilitarian and morally arbitrary. Therefore any argument that modern copyright laws merely bestow upon the author what is naturally his or hers is fundamentally false.
Emergence of "Intellectual Property"
The movement towards categorizing copyrights, trademarks, and patents under the umbrella term “intellectual property” only began in 1967, when the World Intellectual Property Organization was formed. Using this term inescapably implies that copyrights patents and trademarks are, by analogy, physical property and should be treated as such. In fact, these laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues. Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas. The artificial association of these two grants has led legislators to tailor laws in various ways that treat them as physical property.
Effects of Copyright Expansionism
“not saying this is the primary reason why we [the Roots] did original material but you don't know the pain it is to give up mid 5 figures to a group of people who ain't even the artist, the pain.”
The Roots’ drummer and producer, Questlove, posted this comment in December 2000 (Link no longer active). He explains that the part of the reason why The Roots became a band that played live instruments was due to the exorbitant fees that copyright owners were charging for sample clearances. In addition, those in control of a song’s copyright are usually neither the song’s performer nor somebody with any direct involvement in the writing or recording processes. These two issues have together led to a virtual monopoly over the copyrights of much of the music that Hip-Hop artists tend to sample, thus many artists are unable to fully realize their true artistic visions.
Acquiring a license to sample a song requires negotiating with the copyright holders. Some artists are famously unwilling to let their songs be used by others. However the Beatles are powerless to prevent another from recording a cover of any of their songs. When a cover is made, the new recording artist pays a standard royalty, fixed by statute, to the original author/copyright holder through a clearance organization to require a compulsory license.
Solutions
Instead of an ad-hoc negotiating regime, where each copyright holder maintains a monopoly over his or her catalog of songs, a sampling clearinghouse could charge a few cents for each song/album it reviews. Rules would be devised to adjust the license fee based on how much of the original song is being sampled, how prevalent it is in the new recording, whether the original song has been altered etc. Artists would prefer to use samples administered by the clearinghouse, since these samples would not require legal haggling and fees. Labels and publishers would be encouraged to have their licenses administered by the clearinghouse, in order to collect fees and reduce transaction costs. It could be administered by a combination of artists, copyright lawyers, and representatives from the RIAA, ASCAP, BMI, SESAC, and the National Academy of Songwriters. This system would allow musicians to experiment and capitalize on their uncompromised artistic visions, while also being lucrative for copyright holders. Lower licensing fees will be result in more sampling and more licenses being granted.
Such a clearance house would not be unprecedented. Since 1978, The Copyright Clearance Center has overseen the licensing of photocopy reproduction rights. It manages the rights for almost 2 million print works and represents thousands of publishers and writers. It handles over 1 million licensing transactions each year while operating as a non-profit, by taking a small percentage of the revenues it collects.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
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