Tolerance is law

Enjoying the great feeling of seeing my latest article (together with Jan Nolin) in (digital) print! Please check out Tolerance is law: Remixing Homage, Parodying Plagiarism which has been published today in the open journal Scripted.

Would like to thank the reviewers for pointing out the flaws and helping us improve the article. But I still want more so every and all comment is appreciated.

The abstract is boring but the article is (hopefully) much more interesting. Abstract:

Three centuries have passed since copyright law was developed to stimulate creativity and promote learning. The fundamental principles still apply, despite radical developments in the technology of production and distribution of cultural material. In particular the last decades’ developments and adoption of ICTs have drastically lowered barriers, which previously prevented entry into the production and distribution side of the cultural marketplace, and led to a widening of the base at which cultural production occurs and is disseminated. Additionally, digitalisation has made it economically and technically feasible for users to appropriate and manipulate earlier works as method of production.
The renegotiation of barriers and the increasing number of creators who publish their works has led to an increase in copyright violations and a pressure on copyright legislation. Many of these potential violations are tolerated, in some cases have become common practice, and created social norms. Others have not been so fortunate and the law has been rigidly enforced. This arbitrary application decreases the predictability of law and creates a situation where creation relies on the tolerance of the other copyright holders. This article analyses different cases of reuse that test the boundaries of copyright. Some of these are tolerated, others not. When regulation fails to capture the rich variation of creative reuse, it becomes difficult to predict which works will be tolerated. The analysis suggests that as copyright becomes prohibitive, social norms, power and the values of the copyright holder dominate and not law.

M Klang & J Nolin, “Tolerance is law: Remixing Homage, Parodying Plagiarism”, (2012) 9:1 SCRIPTed 7

Stormtrooper Copyright

Every grown child dreams of his very own Storm Trooper uniform and this dream can come true! The original designer Andrew Ainsworth has been selling copies to fans. But there has been a long drawn copyright battle over the uniforms. But now the final battle has come to a close when Ainsworth won yet another victory (via BBC):

Andrew Ainsworth, 62, of south London, successfully argued the costumes were functional not artistic works, and so not subject to full copyright laws.

Judges at the Supreme Court upheld a 2009 Court of Appeal decision allowing Mr Ainsworth to continue selling them.

But they also ruled that the director’s copyright had been violated in the US.

Mr Ainsworth told the BBC: “This is a massive victory, a total victory, we’ve already got the champagne out.”

I have written about this earlier here and here.

Copyright Reform

Just rediscovered why I like Mimi & Eunice – check out this one on copyright reform

This one’s going into the book.

Update: I’m going to try to write a haiku for every Mimi & Eunice comic this week. Today’s:

Real artists don’t wait
For lawyers and officials
To give permission.

Relational economies: Notes from a lecture

The CC Salon in Stockholm was a very enjoyable affair. The presentation by Gabriel Shalom & Jay Cousins was highly inspirational as were the discussions afterwards. My presentation was entitled The Role of Commons in Relational Economies and was an attempt to explore the intersection between economy, copyright and technology.

I began by describing the move from the barter system to the monetary system and focused on the situations where uneven contributions take place. I described the situation where someone needed toothpaste and had a pig. By contributing the pig to the marketplace the returns must have been a lifetime of toothpaste. Obviously I am not an expert here but the value relationship between pig and toothpaste must be radically different. How do we value a single important contribution compared to a lifetime of regular small contributions? How can we compare a lifetime spent editing grammatical errors in Wikipedia to writing the most read article on Wikipedia. Which contribution will be the most famous? Which contribution is the most important?

What I was trying to do was to explain that the barter system is a long term trusting relationship were economic value is not the focus. By moving to a monetary transactional system we no longer need to trust or build relations. We focus solely on transactions and trust abstract systems.

Within these systems money becomes the autonomous manifestation of exchange relation.

However, early money was more than this and even had intrinsic value (i.e. value in itself) as examples of this I explained the dewarra (row of cowrie shells) to plåtmynt (image below)

The heaviest could weigh almost 20 kg. Image from Kungliga Myntkabinettet

Money quickly came to play an important role and began to be used as a form of social sanction in the form of fines (e,g, weregild) or forms of compensation that are oddly strange: Dowries as proof of wealth and buying partners, blackmail: a situation of information inequality, bribery: unjust friendliness.

As the goal of the lecture was to connect this discussion to copyright it was time to bring in the role of technology. It is often overlooked that copyright is all about technology. This is because copyright is all about the fixation of an idea. Ideas that are not expressed in a fixated form are unprotected. Its when the ideas become fixated (on paper, video, audio) that they are copyrightable.

Now the problem occurs when we have fixation as a focus and the law is about fixating the social agreement upon which society has arrived at a fair balance. In the case of copyright the modern system of copyright law was created/fixated in the 1950s. But what was the understanding of copyright in the 1950s? Well to demonstrate this I used this image of a vision of the future. This is what they thought the home computer would look like in 2004…image removed (see comments below)

So this was the visionary view of technology shared by the creators of copyright law. Naturally the law has been amended and adjusted but it is fundamentally the same. The visions of technology of the 1950s control the use of technology today and the future. All law is about the fixation of social agreements and copyright law reflects the understanding of an equitable use and protection of cultural products – based upon the technological possibilities in existence. When the law fixes a social agreement it fundamentally comes into conflict with the evolution of technology.

In the past 50 years technology has brought us (amongst many things) digitalization, connectivity and a multitude of devices.

These developments are interesting as they inadvertently provide an increased focus on the relational economy. Think about the work of Stallman and the Free Software movement that provides us with ample empirical proof that economic returns are not the necessary motivation for providing labor and enthusiasm. Or what about the Wikipedia project? Seriously people spending large parts of their lives in correcting articles other people write? And they do it, almost anonymously, for free. Transactional economics struggles to find a valid reason for these activities. We have heard them all… for example: youthful enthusiasm (i.e. it will pass soon whenthey realize the error of their ways), reputation in groups (i.e. you cannot be good – you have devious motives)

The problem with understanding the relational economics becomes more interesting when organizations like museums and archives begin putting their works online. Allowing users to interact and to add metadata. I showed this image by Carl Curman that has been lying in an archive for over a century but in the last two years has been viewed over 27 000 times.

Photograph by: Carl Curman (1900) Persistent URL: Read more about the photo database

By digitalizing the photo and making it available the image has “come back to life” and has been given a new relevance in a social setting. By allowing the audience to tag, comment and add meta data the Swedish National Heritage Board has developed a relationship with a larger audience. The benefits for everyone are obvious but attempting to decipher transactional costs and benefits are too complex to make an act like this interesting or maybe even profitable.

At this point I turned to Creative Commons and explained the role of licensing in the relational economy. While copyright has been fixed in the 1950s – when technological barriers made it difficult (next to impossible) for a larger group to create and spread material to a larger audience – the world today is different. “Everyone” has a phone in their pocket that can take pictures and record sound (even video). “Everyone” has computers and internet that creates the ability to create and share material. We the amateurs of the world are creating and communicating on a level unheard, or undreamt, of in the 1950s. The transactional costs and benefits of applying copyright law are too complex to work out on this level.

Here is where Creative Commons comes in. CC licenses are there to support the relational role in copyright. What does the creator want and how does he/she want her work to be used or abused.

In my early days as project lead for CC Sweden I was met with an accusation that CC is a band-aid on the brokenness of copyright law. By creating and supporting a system like CC we were simply applying artificial respiration to a dying system. From a transactional economics point of view this is understandable criticism (if you believe that copyright should die) but from the point of view of relational economics the licenses have nothing to do with aiding copyright – they are there to aid the creator and the relationships between the creator and his/her audience. They display the wishes and hopes of the creator and ask to be respected.

Copyright and Mike Tyson’s Tattoo

Interesting developments in the silly side of copyright: (via BoingBoing) Warner Bros. Sued For Using Mike Tyson’s Tattoo in New Movie

The tattooist who decorated boxer Mike Tyson’s face is suing Warner Bros. on allegations the studio is misappropriating that tattoo for its upcoming movie, The Hangover Part II.

Victor Whitmill, who tattooed the left side of the face of the former heavyweight champion in 2003, and has copyrighted the work, (.pdf)  is demanding a federal judge block the tattoo from being shown in marketing and in the comedy film itself. The federal lawsuit, filed in Missouri on Friday, claims the movie features a “virtually exact reproduction” of the original, which appears on the Stu Price character played by actor Ed Helms.

The copyright tattoo is a fascinating subject. In particular the question of who is the copyright holder. In a similar vein read Jordan Hatcher’s (2005) paper Drawing in Permanent Ink: A Look at Copyright in Tattoos in the United States and the slides & The 1709 Blog recently (April 2011) had an interesting post on the topic Tattoos and moral rights: a couple of points to ponder.

Update: There is an interesting discussion on Mike’s tattoo over at the Freakonomics blog.

Nadia Plesner's day in court

Nadia Plesner, the Danish artist, who has been suedtwice by Louis Vuitton has had her day in court at The Hague.

Vuitton is suing her for copyright infringement for placing an image of one of their handbags on her painting Darfurnica. There is also a back story about her use of this handbag on a t-shirt. In both cases the case for parody and fair use may be argued. In both cases the purpose is to raise money and awareness for Darfur.

Vuitton seeks to penalize her 5,000 Euros for each day Darfurnica is on her website and wants to prevent Plesner from exhibiting the painting either on her website or at venues in the European Union. Yesterday, Plesner finally got to present her defense — before a full-sized reproduction of the painting. On Facebook she shares how it went:

They stated that they have no problem with Darfurnica, never had, and that they only object to me using “their product” in my Simple Living “logo” [pictured here]. We highly objected to it all, since Simple Living is an art work, just as Darfurnica and because LV has aggressively been going after the painting from day one.

We also presented the threats regarding the painting that LV’s attorney made to me by phone, which he of course denied completely.

I thought the most important part was when the judge asked LV’s attorney why Darfurnica was mentioned in the lawsuit – and forbidden by the court order – if they didn’t have a problem with it? To which their attorney responded “You shouldn’t read it like that.”

Then the judge asked how else he could read it, since the painting is the first thing mentioned in the list of works they want to forbid, but their attorney insisted that the court order should be read as if the paragraph regarding Darfurnica was not there. He aggressively went on and on for an hour about how I abused them, for example by using their Audra bag as an eyecatcher on the invitation for my exhibition. Yes, I used my own Simple Living drawing (not their Audra Bag) on the invitation to my art exhibition about Darfur. What a crazy thing to do.

We had a 1:1 print of Darfurnica in the court room and I presented it to the judge and explained why I painted it and what the different symbols represented. I have had the chance to present Darfurnica to a lot of different people by now both in my studio, in the Odd Fellow Palace and at the HEART museum, but it felt so surreal to do it in a court room, especially in front of various LV representatives.

I explained the urgency for raising awareness about the situation in Darfur, and how I had painted various Hollywood gossip stories that got an insane amount of media attention.

The judge listened, and I believe he understood the meaning of the painting.

There were about 65 people present during the hearing, many artists and fellow students came to support me, and they had made these great little supportive badges with different texts like: “Louis, art is cool”, etc. It made a great difference to me that I was not there alone, and I am grateful to the people who showed up.

There were also different reporters present, and even though LV’s attorney consistently claimed that I had manipulated the media to be on my side, the articles today are not different from the previous ones, even after the reporters had heard both sides of the story and were presented with the evidence from both sides.

The final result was that we asked the judge to have the court order from January 27th annulled, and LV objected to this. The judge said he would try to give his ruling before May 4, 2011.

Challenging the YouTube Copyright School

Last week YouTube announced that it had launched an animated film entitled the YouTube Copyright School. The problematic thing is that YouTube begins by recognizing that copyright is complex and that education is needed

Because copyright law can be complicated, education is critical to ensure that our users understand the rules and continue to play by them. That’s why today we’re releasing a new tutorial on copyright and a redesigned copyright help center. We’re also making two changes to our copyright process to be sure that our users understand the rules, and that users who abide by those rules can remain active on the site.

They then release a film portraying a simplistic view of copyright – the complex needs to be explained not simplified or banalized. They also have disabled the comments section – this is their view, enough said, no discussion.

But that does not prevent discussion (as they should well know) criticism was swift – for example Leonhard over at Governance across borders writes

The background for this crazy/disturbing/awkward “Copyright School” is a change in YouTube’s copyright infringement policies. As repeatedly discussed on this blog (e.g. “This Post is Available in Your Country“) and described by fellow workshop participant Domen Bajde (see “Private Negotiation of Public Goods: Collateral Damage(s)“), users who posted three videos containing (seemingly) infringing content to YouTube have not only lost those videos but all of their videos: their account was deleted.

The problem is not only the one-sided view they present, or even their attempts to suppress discussion but also the control of content YouTube exerts is only loosely based on copyright. Their system of removal and criticism of content is highly biased against “amateurs”.

Yesterday Public Knowledge announced the Public Knowledge “Copyright School” Video Challenge!

In an attempt to educate its users about copyright law, YouTube has debuted “Copyright School,” a video that explains why videos are removed from YouTube. While “Copyright School” does a great job of telling you what you can’t do with copyrighted content, it does a very poor job of telling you what you can do with copyrighted content–namely, remix, reuse and repurpose it without permission from the rightsholder as allowed under the doctirine of fair use. So here’s our challenge to you: can you make a better video than YouTube that explains both what you can and can’t do with copyrighted content? Watch the video above (and read the official rules) to find out how you can win $1000 and have your video featured on the Public Knowledge website!*


Act for you rights – or lose them!

One of the greatest hinders to access and reuse of cultural material lies in the long terms of protection. The way in which copyright law works today is that it automatically protects (almost) all forms of cultural production (mainly) for a period of the life of the author plus 70 years. The effect of this is that nothing produced in my lifetime will be free in my lifetime.

This extension of the time of copyright is a major shift in the original idea of the bargain of copyright. The bargain was that the creator receives a limited monopoly and in return society will eventually receive the products of his or her work.  Today the bargain is that the creator is protected and then his or her heirs take over the monopoly. This results in the situation where the children or grandchildren of the creator have the exclusive rights to the work.

My criticism is that the grandchildren of the creator should not have better rights to the work just because they have a genetic link to the author.

One area where the term of protection has remained shorter is the time span under which sound recordings are protected. But now the argument is why should sound recordings be discriminated against? Instead of arguing that the terms of protection are too long.

We all now have a chance to send a message and prevent this progress. Check out this attempt from the Open Rights Group to prevent this development. Read! And work for your rights.

The disastrous proposal to extend the term of copyright protection for sound recordings to 70 years is back on the European Council’s agenda.

There is a chance to stop this. You can help by writing to your MEPs now to tell them about your concerns, and ask them to make sure the Directive gets proper scrutiny from the European Parliament.

The economic evidence is stacked against the proposal. It will result in large parts of our cultural history being locked up. And it will benefit only a small number of artists and businesses. Leading IP professors, the UK government’s ‘Gowers  Review’ of IP, and independent analysts commissioned by the EU have all said that extending the copyright term is unwise. You can read more about the evidence here.

You can help to make sure European decision makers look again at this damaging proposal by writing to your MEP now.

Barriers to Cultural Participation

Last week I completed my draft contribution to the Exploratory Workshop on Consuming the Illegal: Situating Digital Piracy in Everyday Experience which will be held in Leuven (17‐19 April 2011). The draft paper is called Barriers to Cultural Participation: Cultural Innovation and Control Online and attempts to go deeper into the problem of borrowing or appropriating earlier works in the creation of new cultural material.

What I am attempting to do is to point to the problem that while the law is a useful tool of regulation a great deal of regulatory power is in the hands of norms. The result is that amateur remixing is discriminated against and often runs the risk of being lost, instead of being encouraged as an important source for growth of cultural material.

So the paper looks at different forms of re-use (and gives examples of each). So in the end it looks like this… The thing to be discussed is therefore not the law but the ways in which certain types of remixing/borrowing/appropriation are tolerated while others seem not to be…

The end needs to be sharpened but here is what I have written so far (full draft is on scribd)

The topic of this paper was to take a closer look at some of the different ways in which cultural material is used and reused. In particular this work wanted to widen the discussion by not limiting it to being either a legal, technical or social topic. The production of innovative cultural material relies on a healthy access to earlier material, the creativity to expand on that material, the legal leeway to share that material and the technical platforms with which to reach other users.

For most of the history of copyright the most limiting factor for a large scale participatory cultural sphere has been limited by the lack of technical means with which to create and share the results of the work. Today these technological limitations have been reduced and are easily surpassed by most users wishing to participate in a cultural exchange.

We should therefore be entering into an unprecedented production of cultural material. One the one hand this is exactly what is happening. The amounts of copyrightable material being produced and spread today are far greater than in any other period in history. However, on the other hand, the legal risks and the regulation through licenses discussed here show that the material being produced and spread is discriminated against and is under risk of being removed, and its authors punished for their productions.

These issues need to be addressed. The original purpose of copyright, and its often legitimizing reason put forward today, is that by protecting the rights of the creator there will be an increased incentive to produce more material. Society offers a monopoly in return for an increased level of cultural material. However this bargain has been steadily eroded and is, at the point where it is technically possible for a wide scale participation in danger of being lost.