Digital Culture, Creativity, and Copyright Law

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    • 00:09

      MARCUS GILROY-WARE: My name is Marcus Gilroy-Ware.[Marcus Gilroy Ware, Researcher, The intersectionbetween digital media and the law]And I research at the intersectionof digital media and the law.When you have an original idea, to what extentis that idea yours?How much should it be protected, so that only you canbenefit from your originality?In this video, I'm going to try and painta picture comprised of the conceptual, cultural, economic,legal, and technical manifestationsof the ownership of ideas, with a specific focuson the internet.

    • 00:38

      MARCUS GILROY-WARE [continued]: [INTRODUCTION]The ownership of human originalityis something provided for in the laws of most countries,as well as some international treaties.It's usually referred to as "intellectual property."And while there are others, the three main areas of itare trademarks, which are the rightto use specific designs, slogans, and brandingexclusively, to sell certain goods;patents, which are the right to commercialize an inventionor discovery exclusively, by suppressing others whotry to commercialize the idea despite not having invented it;and copyright-- the right to control exclusivelythe distribution of something that has been createdand recorded in a relatively complete form,such as a book, an artwork, a music recording, or a softwareapplication.

    • 01:29

      MARCUS GILROY-WARE [continued]: While these three different applications of the lawhave some things in common, most notably the protectionof the exclusive rights of an owner or author,they have fundamental differences.And not everybody agrees that theyshould be lumped together under the umbrellaof intellectual property.Richard Stallman is a copyright activist and software developerresponsible for many of the key components of the GNU Linuxoperating system, which powers a large proportionof the internet's web service.

    • 01:56

      MARCUS GILROY-WARE [continued]: He believes the term "intellectual property"contains a bias that benefits only a few."The term carries a bias that is nothard to see-- it suggests thinking about copyright,patents, and trademarks by analogy with propertyrights for physical objects."This analogy is at odds with the legal philosophies copyrightlaw, of patent law, and of trademark law.

    • 02:18

      MARCUS GILROY-WARE [continued]: But only specialists know that."These laws are in fact not much like physical property,but use of this term leads legislatorsto change them to be more so.Since that is the change desired by the companiesthat exercise copyright, patent, and trademark powers,the bias introduced by the term "intellectual property"suits them.

    • 02:40

      MARCUS GILROY-WARE [continued]: The bias is reason enough to reject the term,and people have often asked me to proposesome other name for the overall category--or have proposed their own alternatives (often humorous).Suggestions include IMPs, for Imposed Monopoly Privileges,and GOLEMS, for Government-Originated LegallyEnforced Monopolies.

    • 03:01

      MARCUS GILROY-WARE [continued]: Some speak of "exclusive rights regimes,"but referring to restrictions as "rights" is doublethink too."Whether you see them as rights or restrictions, as we'll see,is a question of perspective and emphasis.On the one hand, there are legitimate reasonswhy those who create for a livingought to be entitled to some protection.

    • 03:22

      MARCUS GILROY-WARE [continued]: And at the same time, too much restrictioncan stifle our culture and creativity in a number of ways.So the ideal is for there to be a balance.Now patents are largely a realm for specialists in their field,such as computer programmers or scientists, whoare likely to invent things.And trademarks are mostly for the commercial world.So in this video, we'll look at copyright,which is what comes closest to the creativityand cultural lives of ordinary people.

    • 03:49

      MARCUS GILROY-WARE [continued]: Specifically, we're going to look at copyright as itplays out on the internet.And the reason for that is that the internethas presented challenges to the system of copyrighton an unprecedented scale.Having said that, it's worth emphasizingthat while technology is seldom the beginning of the story,it isn't in that sense a determinant of our behavior.It can and does enable us to do thingsthat were not possible before.

    • 04:13

      MARCUS GILROY-WARE [continued]: So things can change as a result of whatwe're able to do on the internet without being wholly causedby the technology that comprises the internet.That technology itself is a reflectionof the values and cultures that led to its creation.And most of the time what's being enabledby a new technology, such as the internet,is an idea or demand that existedlong before the technology came along.

    • 04:36

      MARCUS GILROY-WARE [continued]: Copyright is a huge area.So in this video, we don't have roomto get into all of the details of it as a system.That would be a whole course.But with a basic working knowledge of it,we'll look at some of the ways that long-held principlesof copyright are being challengedby cultural and technological developments.First, let's look at some of the basics of copyright.

    • 04:57

      MARCUS GILROY-WARE [continued]: [Copyright]As I said earlier, copyright is the legal namefor the principle that if you create somethingfor the enjoyment and use of the public-- for example,if you write a book or record an album-- othersshould be prevented from being able to exploit the originalityin your work, at least without remunerating you appropriately,thereby rewarding your creativity.

    • 05:23

      MARCUS GILROY-WARE [continued]: In other words, the idea is that if you'rethe creator of something original,you should be the one to benefit from it, to reapwhere you have sewn.Generally, there are two discernible rightsin copyright.First, there are moral rights, also known as author's rights,which is a basic recognition of the authoras the originator of the work.And then there are economic rights,which can be bought, sold, shared, or transferredin the form of a license, so that the commercial potentialof a copyrighted work can be exploited by somebodyother than the moral author.

    • 05:55

      MARCUS GILROY-WARE [continued]: For example, when you use Facebook,there's a common misconception that theyown the things you upload, such as photos and videos.In fact, they simply grant themselvesa license to use that content as they please,subject to your privacy and settings.The Facebook terms and conditions say the following--"For content that is covered by intellectual property rights,like photos and videos (IP content),you grant us a non-exclusive, transferable, sub-licensable,royalty-free, worldwide license to use any IPcontent that you post on or in connection with Facebook.

    • 06:33

      MARCUS GILROY-WARE [continued]: This IP License ends when you delete your IPcontent or your account unless your content hasbeen shared with others, and they have not deleted it."There are some other things you shouldknow about copyright too.[Recordings]For a start, copyright protectionis often commonly misunderstood as the protectionof ideas or the legal monopoly to exploit an idea.

    • 07:01

      MARCUS GILROY-WARE [continued]: In fact, this description would be more appropriate to patents.Copyright, by contrast, only applies to the recorded formof an idea.And by recorded, I don't mean a recordingin the literal sense of something filmed or tapedlike this video has been, but simplyin the sense that it's a specific work that's recorded,rather than the abstract idea itself.

    • 07:22

      MARCUS GILROY-WARE [continued]: In this video, for example, thereare the words of the script, the copyright of whichis owned by me, and the video recording itself,the copyright of which is owned by Sage Publications.The idea is that are communicated in the video,by contrast, aren't owned by anybody.People are free to build on and talkabout what I'm saying, just as I've been referringto the ideas of other people.

    • 07:45

      MARCUS GILROY-WARE [continued]: Quite separately from the legal side of copyright, there is,of course, a moral responsibility to credit peoplewhen they've originated a more abstract idea,but not least because it would be dishonest to claim the ideaas your own when it isn't, especially if you're freeto refer to it and build on it either way..The way copyright works is that it'sapplied to specific works that record and encode the ideasthat gave rise to them.

    • 08:08

      MARCUS GILROY-WARE [continued]: Another example might be that while Picassoowned the copyright in his famous cubist paintings,he did not and could not own any copyright on the Cubiststyle of painting itself.[Automatic protection and duration]Another important aspect of copyrightfor your average person is that in any country that'sa signatory to the Berne Convention-- a global treatyconcerning copyright which was ratified first in 1886--you don't have to explicitly state or registerthat you're the copyright holder in a work you've created.

    • 08:43

      MARCUS GILROY-WARE [continued]: The treaty requires signatory countriesto organize their laws such that copyright protection isautomatic.Only about 20 countries in the world aren't signatories.And every country in the European Union and the Americasis a member.At the very minimum, the copyrightgranted under the Berne Conventionmust last for 50 years beyond the death of the author.

    • 09:04

      MARCUS GILROY-WARE [continued]: But there are many countries, such as the United Statesor any European country, where the duration is longer.At the end of this duration, the workthat had been hitherto protected fallsinto what is known as the public domain,although it can be renewed.[Consumption and use of copyrighted works]Most of the legislation and policy around copyrightfocuses on the rights holders-- the creatorsof works which are protected.

    • 09:31

      MARCUS GILROY-WARE [continued]: Far less is said and done from the perspective of those whouse and enjoy copyrighted work.And that's strange, because when itcomes to who uses and enjoys copyrighted work,that involves pretty much all of us.If you were limited to only consumingcultural and intellectual work that was in the public domain,your world would look very strange.Nothing created by living people or people who'vebeen dead for less than several decades,depending on your local laws, would be available,save for that tiny proportion of works in which all rights havebeen explicitly renounced.

    • 10:04

      MARCUS GILROY-WARE [continued]: Together, as a society, we create a huge demandfor the works that happen to be automaticallysubject to copyright.And yet, increasingly, copyright as it existsis not proving to be highly compatible with the way wewant to consume that culture.At the heart of this incompatibilityis how, as I've said, the internethas enabled things that were not possible before.

    • 10:25

      MARCUS GILROY-WARE [continued]: One of the key ways that this has happenedis eliminating the physical form that our culturehas traditionally had.Prior to the inception of the internet,if you wanted to read a novel, you either went to the bookshopand bought the novel, or you didn't.If a single was released in the United States, but not, say,in the UK, you had to either get on the planeand go and get yourself a copy or ask somebody else to buy youone and then send it by post.

    • 10:50

      MARCUS GILROY-WARE [continued]: But today, our culture is increasinglyliberated from geography and physicality.In his 1995 book Being Digital, Nicholas Negropontearticulated this as a difference between a "bits" economyand an "atoms" economy.And I quote, "not long ago, I attended a management retreatfor senior executives of PolyGramin Vancouver, British Columbia.

    • 11:12

      MARCUS GILROY-WARE [continued]: The purpose was to enhance communications among seniormanagement and to give everyone an overview of the yearto come, including many samples of soon-to-be-released music,movies, games, and rock videos.These samples were to be shipped by FedExto the meeting in the form of CDs, videocassettes, CD-ROMs,physical material in real packagesthat have weight and size.

    • 11:36

      MARCUS GILROY-WARE [continued]: By misfortune, some of the materialwas held up in customs.That same day, I had been in my hotel room shipping bitsback and forth over the internet,to and from MIT and elsewhere in the world.My bits, unlike PolyGram's atoms,were not caught in customs."[The implications]The implications for this change are and alwayswere going to be huge.

    • 12:05

      MARCUS GILROY-WARE [continued]: And as bandwidth has increased to allow more and moredownloading at home, the limits have further and furtherreceded.In the end, we aren't only talkingabout a technical change in how people relateto the creativity of others.As a new generation has grown up with this physicality removedfrom their cultural consumption, convenience, and even defiance,have won over any feeling of intrinsic respectfor the moral rights of authors, let alonefor their economic rights.

    • 12:31

      MARCUS GILROY-WARE [continued]: Arguably, there's been a wholesale cultural shift awayfrom seeing the enjoyment of the creativity of othersas part of an exchange, as it was when people bought recordsor books, towards a something-for-nothing encounterwhere whatever people want can be downloadedas fast as the internet connection allows.And internet connections have acceleratedby approximately 50% per year every yearfor the last 20 years.

    • 12:56

      MARCUS GILROY-WARE [continued]: The United States law professor and campaigner Lawrence Lessigput it perfectly when he said, in a 2007 Ted Talk,that, and I quote, "Among our kids,there's a growing copyright abolitionism, a generation thatrejects the very notion of what copyright is supposed to do,rejects copyright, and believes that the lawis nothing more than an ass, there to be ignoredand to be fought at every opportunity possible."[A problem of piracy]So naturally, this has produced a problem of piracy.

    • 13:30

      MARCUS GILROY-WARE [continued]: Why, goes to the logic, should youbuy something, when you can get it for free?Some holier-than-thou growing up moralistically telling youthat you're stealing isn't going to cut it.Websites such as The Pirate Bay and Napsterhave defiantly made music, software,and other forms of content relatively easyto access, often using peer-to-peer technology,such as BitTorrent, to make the items fast to downloadand the whole process relatively anonymous.

    • 13:57

      MARCUS GILROY-WARE [continued]: But when the phenomenon is on this scale, how elsecan it be counted, and is it worth trying?Media theorist Jaron Lanier, having previouslybeen more accepting of how people relate to copyrightedmaterial, now argues that it's essential to democracythat we find a way to counter this changeand protect the livelihood of creative individuals.

    • 14:18

      MARCUS GILROY-WARE [continued]: Writing in The New York Times in June 2013,he said, and I quote, "in this century,we have decided that when it comes to digital networks,more and more people will not be paid for what they do,even though what they're doing is needed.Jobs involving communication and expression (music, journalism,and so forth) are suddenly much harderto come by, because information is now held to be free.

    • 14:44

      MARCUS GILROY-WARE [continued]: With enough hard work, opportunityis said to be around the corner for young journalistsand musicians.Alas, there are only a few genuine success stories.Almost everyone else in the game lives on false,hope accepting the benefits of informal economy-- reputationand barter-- while helping a small, distant elitebuild real wealth.

    • 15:06

      MARCUS GILROY-WARE [continued]: The fate of journalism and music awaits every other industryand every kind of job, unless this pattern is undone."[Example-- The music industry]It's hard not to hear some truth in what Lanier is saying.Taking the music industry as an example,whilst the easy accessibility and high quality of the MP3initially hit music executives more than musicians themselves,today's picture is pretty bleak for musicians too.

    • 15:36

      MARCUS GILROY-WARE [continued]: In some cases, it has been possible to counterthe problem of piracy by simply making the bestsolution the easiest one.Apple followed this strategy and correctlypredicted the people would happily buy music if doing sowas significantly easier than pirating it.One-click purchasing, previews before you purchase,easy integration with your handheld music player,and a high quality browsing interfaceturned Apple previously a computer company,into the United States' largest music retailerin approximately five years.

    • 16:08

      MARCUS GILROY-WARE [continued]: But the law and software used to do this stillhad all the trappings of a powerful elite coercingeveryone else.The major record labels were on board and restrictive softwareknown as Digital Rights Management wasused to prevent people from sharingthe music they had purchased.[The newer paradigm]The newer paradigm in the music industryis that of streaming, whereby youdon't possess the music at all, but download small bits of itin real time using a sufficiently fast internetconnection.

    • 16:42

      MARCUS GILROY-WARE [continued]: For this type of service, people tendto pay not per song, as in the Apple iTunes model,but as a subscription or if you'rehappy to listen to a few ads mixed in with your music,not at all.Some people, such as musician David Byrne,have been fiercely critical of this,arguing that it's not much better than the PirateBay or Napster, in terms of the effectthat it has on most musicians.

    • 17:03

      MARCUS GILROY-WARE [continued]: And I quote, "for a band of four people thatmakes a 15% royalty for Spotify streams,it would take 236,549,020 streams for each personto a minimum wage of $15,080-- that's 9,435 pounds-- a year.For perspective, Daft Punk's song of the summer,"Get Lucky," reached 104,760,000 Spotifystreams by the end of August 2013--the two Daft Punk guys stand to makesomewhere around $13,000 each.

    • 17:39

      MARCUS GILROY-WARE [continued]: That's not bad, but remember thisis just one song from a lengthy recordingto took a lot of time and money to develop.That won't pay their bills if it's their principal sourceof income.And what happens to the bands whodon't have massive international summer hits?"[Unanswered questions]So the fact remains that there are huge unanswered questionsabout how we, as consumers of art music and culturein their digital form, can make that play wellwith the low cost and high convenienceof internet consumption.

    • 18:13

      MARCUS GILROY-WARE [continued]: Making the paid options more convenient stilland encouraging creative professionalsto use the exposure to create more demand for other aspectsof their work, such as performances,is clearly not sufficient.There are no easy answers, nor clear indications as to howthis problem might play out.One thing is clear though-- plain, old top-down, bruteforce enforcement of copyright laws against an increasinglyconnected public is unlikely to be the answer we need.

    • 18:42

      MARCUS GILROY-WARE [continued]: But this type of wholesale piracyand the inadequate business models thathave arisen to meet it is only one wayin which contemporary digital culture comes into conflictwith the rights of those who create for a living in oneform or another.While the answers here are harder,there are places where it's clear to seethat the old laws of ownership, against which the internet hasin different ways revolted, do need to change awayfrom protecting originators.

    • 19:08

      MARCUS GILROY-WARE [continued]: [Copyright, incorporation, and everyday creativity]In almost every area of human creativity,rather than starting with a blank canvas,we start at the very least with influences-- respondingto the things that inspire us.In just about every area of music,for instance, borrowing is a part of the tradition.

    • 19:30

      MARCUS GILROY-WARE [continued]: The influences of Mozart and Bach on Beethovenare well known, for instance.And almost every composition for which John Coltrane is famousis a re-harmonization of an earlier jazz composition.The histories of painting, sculpture, literature,and drama are similar, and vernacular cultureseven more so.We human beings are all involved in one way or anotherin a great cultural conversation in which we listento what others have said in the form of some creative endeavor,and then may want to respond.

    • 19:60

      MARCUS GILROY-WARE [continued]: As the old saying goes, "good artists borrow,great artists steal."United States law professor and reformer Lawrence Lessig,who I referred to earlier, has called this "read-writeculture."This is borrowing from a technical nomenclatureof data storage, but it's true in a broader sense.We all read.We all write.

    • 20:20

      MARCUS GILROY-WARE [continued]: This is contrasted with "read-only culture."In the 20th century, creativity became concentratedin the hands of a very few, who got very rich producing culturefor the rest of us to consume and used this wealthand influence to strengthen the laws of copyright thatprotected their endeavors.As we've seen, in the mid '90s, the worldwide web came along,and that tight grip started to be loosened.

    • 20:45

      MARCUS GILROY-WARE [continued]: Roundabout 2004, the growth of what we nowcall Web 2.0-- the shift towards an internet in whichthe majority of the content came from other users--further fueled the rebirth of the read-write culture.[Today's internet]Today's internet, encouraged especially by the social mediatimelines on platforms such as Facebook and Twitter,for example, is home to a constant frenzy of reworking,borrowing, and remixing.

    • 21:16

      MARCUS GILROY-WARE [continued]: To view the output of others for freeat a time of our own choosing is no longer enough.We now demand that we be able to respond,often incorporating the work to which we're responding.Much of this internet culture startswith the same basic premise as the piracyI talked about earlier.A sense of entitlement to the creativity of othersand a rejection of the idea that once the computeror mobile phone has been purchasedand an internet connection procured,there should be any, further costto access the work of others.

    • 21:48

      MARCUS GILROY-WARE [continued]: The difference is that instead of simply consuming the workpassively, as in listening to a pirated album,new creativity is being applied.For example, an old copyrighted songmay be set to a new visual track,or old copyrighted photos might be reworked into materialto advocate for a new cause, both cases creating a copyrightviolation.

    • 22:11

      MARCUS GILROY-WARE [continued]: Another tricky aspect of this type of copyright violationis that while the original works mayhave been produced as somebody's livelihood and thus for money,the new works being created may well not be.So the primary justification for all so-called intellectualproperty, which is preventing othersfrom deriving economic benefit from the work of others,or reaping where they haven't sown, doesn't really fit.

    • 22:34

      MARCUS GILROY-WARE [continued]: In the moment, people simply need cultural materialto incorporate into whatever they're creatingand have no more sense that they'redoing something wrong than they have expectationof any intellectual property claim to what itis they're producing.The point, in effect, ceases to be about who owns the material,but simply that it's seen and fulfillsits communicative and referential function.

    • 22:57

      MARCUS GILROY-WARE [continued]: [Digital culture]Digital culture has embraced the cognitive science languageof Daniel Dennett and others, and the word "meme"in particular-- developed to discusshow ideas can spread through populations-- to describethose elements that for some reason,be it humor, adoration, outrage, or some other emotion,are incorporated over and over again, more commonlyin fulfillment of a communicative,an effective function, than an artistic one,although these lines are often blurred.

    • 23:32

      MARCUS GILROY-WARE [continued]: The question here is how much does a copyright holder reallylose when this happens?In the case of their own work is distributedas is, or with only slight modifications,the answers is that they probably lose a lot.Even in the case of a single image,the impact can be significant.Imagine a photographer who's takenan iconic image of a major event not being compensated whenevery news outlet then uses that image without some licensearrangement in place.

    • 23:59

      MARCUS GILROY-WARE [continued]: But in the case of a read-write culture, where peopleare incorporating colorful elements becauseof a participatory culture, copyright enforcementas "all rights reserved" doesn't really make much sense.[Creative Commons]One alternative has been that of Creative Commons--an alternative licensing basis thatkeeps some rights reserved, while releasing a workto the public in other ways.

    • 24:28

      MARCUS GILROY-WARE [continued]: But even this still requires the terms of the licenseto be observed and enforced correctly,when most people are not lawyers and aren'tfamiliar with the idea of a license to begin with.Creative Commons may not have all the answers,but it does make an enormous differenceand crucially gives rights holders their own powerto decide which rights they want to keep.

    • 24:48

      MARCUS GILROY-WARE [continued]: [Conclusion]To conclude then, let's have a look at some of the themesthat we've dealt with.While copyright, patents, and trademarks are allconsidered to be under the umbrellaof intellectual property, generalizing themall into a single area and using the metaphorof physical property is a subjective choice.

    • 25:12

      MARCUS GILROY-WARE [continued]: And there are other interpretationsof this law that say the very idea of intellectual propertyfavors the powerful.Copyright is held only in the specific recording of an idea,not in the idea itself.Remember our painting example-- Picasso had copyrightin his cubist paintings but not in the Cubist style in general,even if he's credited with developing that style.

    • 25:37

      MARCUS GILROY-WARE [continued]: These specific recordings have historicallybeen tied to physical objects in geographical places.The internet helped to make the physicality and geographyof the works of others less important,shifting us to what Nicholas Negroponte hascalled a bits economy, as opposed to an atoms economy.This loss of physicality has co-occurredwith a cultural shift that respectsless the rights and the livelihoodsof the creators themselves.

    • 26:03

      MARCUS GILROY-WARE [continued]: Publics that have been trained as content consumerswill consume as much as they can get their hands on whenthis physicality is removed, without much regardfor copyright.Creating methods of paying that are more convenientthan piracy has worked, up to a point,but still favors large companies like record labels, as opposedto everyday people who want to create for a living.

    • 26:25

      MARCUS GILROY-WARE [continued]: Finally, the same disregard for copyrighthas also had positive effects and allowed our cultureto be creative with the work of others more easily,encouraging something that Lawrence Lessigcalls the read-write culture.When people are being creative with, and in response to,each other's ideas, copyright enforcementis less clearly in anybody's interests.

    • 26:48

      MARCUS GILROY-WARE [continued]: Overall, I hope you can see from this that somethingas simple at first glance as the idea that you should havelegal protection if you want to live from your creative workis in reality incredibly complicated,and made even more so by the internet.

Digital Culture, Creativity, and Copyright Law

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Abstract

Marcus Gilroy-Ware analyzes the ins and outs of copyright law, paying particular attention to its application on the internet.

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Digital Culture, Creativity, and Copyright Law

Marcus Gilroy-Ware analyzes the ins and outs of copyright law, paying particular attention to its application on the internet.

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