| |
| 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. |
| | |
|
<
< | |
>
> | 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. |
| |
|