The right to live without being shocked

Amazing quote from Paul Pullman author of the book The Good Man Jesus and the Scoundrel Christ in reply to a question if his book was offensive:

No one has the right to live without being shocked; no one has the right to spend their life without being offended. Nobody has to read this book, nobody has to pick it up, nobody has to open it, and if they open it and read it they don’t have to like it. And if you read it and dislike it you don’t have to remain silent about it. You can write to me, you can complain about it, you can write to the publisher, you can write to the papers, you can write your own book. You can do all those things, but there your rights stop. Nobody has the right to stop me writing this book. No one has the right to stop it being published or sold or bought or read. And that’s all I have to say on that subject.

(via BoingBoing)

Short Piece on Copyright

Two online debates in Sweden have been rather interesting. The larger one has been about the need for harsher copyright legislation. Those involved have managed to sink to bitter entrenched positions and started using underhand methods such as lobbyists appearing in the media as “impartial” news reporters and, even more interestingly, attempting to control the past in order to control the present. This last strategy is simple historical manipulation boiled down into silly unsupported statements such as “without copyright there can be no diversity”. Most amusing really.

The second debate has been growing slowly and is actually interesting in the discussion on free speech in relation to blogging. A very strident Professor at my university (whose social pathos and ability and energy to vocalise injustice and corruption are both admired and criticized) has gone out and criticized bloggers who claim to be taking part in the deliberative democracy. Bo Rothstien’s criticism is that some bloggers do not seem to be aware that even in free expression there are rules.

He is not talking about the law. He is talking about the need of the deliberative process to also include respect for those involved in the process, about respecting your adversary or opponent. When bloggers comment on their opponents philosophy, religion, sexuality or simply sink into name calling – this is not a democratic process.

Anyway I am happy since today I have sent in my two-cents on the first discussion in the form of an op-ed into a Swedish daily. Most probably it will be refused but it was good to produce something “off-blogg” since the rest of the week seems to have disappeared in a fog of empirical research.

Wikimedia not liable for online defamation

In the case of Bauer v. Wikimedia et al, a New Jersey judge has dismissed defamation claims against the operator of Wikipedia (ruling).

From the EFF blog:

This case began when literary agent Barbara Bauer sued Wikimedia, claiming the organization was liable for statements identifying her as one of the “dumbest of the twenty worst” agents and that she had “no documented sales at all.” EFF and the law firm of Sheppard Mullin Richter & Hampton represented Wikimedia, and moved to dismiss the case in May, arguing that under Section 230 of the Communications Decency Act, operators of “interactive computer services” such as Wikipedia cannot be held liable for users’ comments.

User generated sites are going to get (and have gotten) involved in defamation-like cases and it is necessary that the parent company should have some form of immunity even if such immunity can be abused. It’s nice to see that it worked in this case.

Another question is whether or not calling someone the “dumbest” can be considered to be defamatory at all…

Now, Can You Picture Me?

About time too! Fredrik Jonasson, a Swedsh artist form Jönköping, has released his new album Now, Can You Picture Me? You can download the album from (download it here) under a Creative Commons license (by-nc-sa).

Fredrik has been making music in different constellations all his life. The past 4 years he has been focusing on Phace O.S. a, as Fredrik himself puts it, “band of different and strong personalities”. But now, he figured, it was time to put 100% of him into a project and the result of it is his new album. It is his first solo album, but over 5000 downloads in just over a week say it will probably not be his last.

About the style of his music the artist says: “My only concern is to find my personal expression and I don’t care that much for fitting into a given genre. If I have to describe it, then I’d say it’s some kind of electronica with strong melodies. At least I’d like to think that.” And in the true spirit of Free Culture Fredrik says: “After all, isn’t that what it’s all about? To write great songs, regardless of which clothes you present them in?”

This is not the first Swedish musician to release under creative commons but it is a bit strange that Sweden has not produced many more than we have…

What is art? Confusion in copyright

In many forum discussions the acronym ianal (I am not a lawyer) is used to denote that the writer is not a lawyer. In all fairness then I should begin this article by adding ianaa – I am not an artist. My interest in the definition of what is, can and should be art come mainly from my work in the field of copyright – even though I have an amateur interest in art.

When I first attempted to approach the question of art in 2003 I was naïve enough to think that there was a simple answer to be found and that it was just a question of locating it. Boy was I wrong. The only thing that I have found to be common to a definition of art at large and art in copyright is that it must have an expressive element.

Most often the artist must intend a work to be art for it to be considered art. But this is not always necessary. In some cases the viewers of the work may raise an aesthetic expression to the status of art despite their being no intention from the creator.

The utilitarian object: A dustpan in my house is not art. A dustpan hanging in the cleaning closet at the museum of modern art is not art. A dustpan hanging on the wall displayed among exhibits of the museum of modern art is art. The creator of the dustpan did not have the intention of creating art however the artist may use this everyday object as a piece of art and display it as art in order to create an aesthetic expression.

In 2004 a survey among 500 art experts chose Marcel Duchamp’s urinal to be the most influential modern art work of all time. The creator of the urinal does not have copyright in it – although he or she may have protection for its design but this protection can only be awarded for the elements of the design that are not their for solely functional use.

urinal2.jpg urinal.jpg

Left image of Duchamp’s urinal 1917 photo: Readymade by GriXx (CC by-nc-nd), Right image photo Urinal by Eatmorechips (CC by-nc-nd)

Copyright law is in trouble here since the object cannot be protected as it is and yet it is possible to protect the work via copyright. The photo’s here are the copyright of the photographers. The Duchamp urinal is made specific via his signature and making copies of it are limited since the rights to the work belong to the copyright holder.

Unintentional art: In an recent post about snowmen and copyright I discussed how a snowmen scene (two snowmen pushing and pulling a large wheel over a third snow figure lying in front of the wheel) could be seen as art even if it may not have been the intention of the creators to create anything beyond their own amusement. The creator may, for many reasons, not be intending to create art but the world at large may appreciate the results and classify the work as art. In this case the expression is awarded the full protection of copyright law despite the lack of author intention.

Koko is a lowland gorilla with a sign language vocabulary of 1000 words. Koko has also painted many pictures which have been sold in art auctions.

Bird Red Slice (abstract) by Koko (acrylic on canvas) 1984

The problem with copyright in unintentional art is interesting but it is made even more so by Koko. First, does copyright have a requirement of intent in the expression of art? Here the answer should be no. Second, and more specific to unintentional animal art (Koko is not alone) can animals be authors as understood by copyright law? There does not seem to be a formal requirement to be human in the law but I have been unable to find a non-human copyright holder.


The problem is that this is not the way in which art is defined by Encyclopedia Britannica (login required): “…the use of skill and imagination in the creation of aesthetic objects, environments, or experiences that can be shared with others…” since this definition seems to require the intent of the creator.

Art and copyright are complicated subjects and I think that the only way to end this quote is with a Monty Python classic sketch with the pope discussing art with Michelangelo which ends with a comment by the pope (played by John Cleese): Look! I’m the bloody pope, I am! May not know much about art, but I know what I like!

Bad Internet, Good Internet

Andres over at Technollama is reading “The Cult of the Amateur”, by Andrew Keen, the Internet critic. I have been avoiding commenting on this book and on the author. Lots of other have been there already. Actually I will probably eventually get around to reading the book. Anyway, Andres notes that Keen has a bone to pick with the web and provides this Keen quotation which I could help but comment upon:

“When I look at today’s Internet, I mostly see cultural and ethical chaos. I see the eruption of rampant intellectual property theft, extreme pornography, sexual promiscuity, plagiarism, gambling, contempt for order, intellectual inanity, crime, a culture of anonymity, hatred toward authority, incessant spam, and a trash heap of user-generated-content. I see a chaotic humans arrangement with few, if any, formal social pacts.”

Well of course. I agree totally with Keen. Thats the beauty of the Internet – you get what you look for. Keen went looking for garbage and appears shocked when he found it. Big deal. I can do the same in any city in the world from Bombay to Boston from Seoul to Stockholm. What he then does is attempts to explain the world from the empirical garbage he picks up. This is not a reflection of the Internet but only an expression of Keen’s Internet related interests.

Internet Censorship China

Reporters Without Borders and Chinese Human Rights Defenders (a Chinese Internet expert working in IT industry) has produced a study on the Chinese official system of online censorship, surveillance and propaganda. For obvious reasons the author of the report prefers to remain anonymous. The RSF press release promises:

This report shows how the CCP and the government have deployed colossal human and financial resources to obstruct online free expression. Chinese news websites and blogs have been brought under the editorial control of the propaganda apparatus at both the national and local levels.

… [The report] explains how this control system functions and identifies its leading actors such the Internet Propaganda Administrative Bureau…, the Bureau of Information and Public Opinion… and the Internet Bureau…

Internet censorship is a vital topic any work in this area is very welcome. Two PhD thesis’ of interest in this area are Stuart Hamilton’s To what extent can libraries ensure free, equal and unhampered access to Internet-accessible information resources from a global perspective? and Johan Lagerkvist The Internet in China: Unlocking and containing the public sphere.

The other lives of Copyright

Copyright is an exciting subject that over the last couple of years has received a great deal of attention. Unfortunately most of this attention has been a discussion on the uses and abuses of copyright in the copying of music and films of the Internet. This has had the effect of very much excluded a large part of the interesting social aspects of copyright.

The other life of copyright go beyond the questions of economics and power positions. While the latter are important they are not the only game in town. Beyond the strutting and blustering pirates and anti-pirates (please interpret these terms kindly) there are several examples of people attempting (successfully and unsuccessfully) to use copyright to protect values and positions. Some of these are attempts to control as in the more traditional form but other examples seem driven more from a need to maintain an “artistic” integrity.

The purpose of this post is to present some of the odder examples in the copyright discussion. This is not solely for shock value – even if this is worthwhile in of itself. The purpose is to promote a larger copyright discussion in order to develop a better understanding of the purpose and method of copyright.

Graffiti copyright (see Morgan 2006)

No matter if you like of dislike graffiti it is a form of artistic expression and it is protected from the moment of production. The owner of the wall owns the physical copy of the graffiti but intellectual property rights, the copyright, remains with the graffiti writers and artists.

An interesting problem to deal with is the issue of popular stencil graffiti (see for example Banksy). In part stencil graffiti is popular since it is a fast way in which to create graffiti while minimizing the risk of being caught (Banksy Wall and Piece 2005). However the question of stencil graffiti is whether or not it is copyrightable. If you ask any Banksy fan they will say that without a doubt that the work is art and naturally subject to copyright.

This means that the artist has the exclusive right of reproduction. Taking photographs of graffiti and placing them on the web (as I often do), on t-shirts, in photographic books etc is not permissible without the permission of the artist.

The moral rights of the artist (in some jurisdictions) contain the right to be associated with the work (droit à la paternité) and the right not to have the work displayed in a manner that disrespects the work or the artist (droit au respect). These latter rights ensure that the work is not reproduced anonymously or in a disrespectful way they cannot be used to protect the physical work. The owner of the wall can deface or erase the physical copy without fear of violating the moral rights of the artist.

Bodies of expression: Tattoos (Hatcher 2007)

Graffiti is, in reality, relatively easy. The only problem is that many people associate it with vandalism. But this is not a problem for copyright law. Many pieces of “bad” art are widely accepted and integral parts of our cultural heritage. Bad art is not a limitation for copyright – just look at Madonna.

A much more exciting area of copyright is tattoos. The cast of characters and the social implications of tattoos is much wider and provides for an exciting range of questions ranging from copyright to human rights.
The first question is naturally – who owns the copyrighted image?

  • The person wearing the tattoo (the client)
  • The tattoo artist
  • The tattoo studio
  • Someone else

Hatcher (2007) has an excellent slide presentation on this very topic. The claim of the client is naturally that she/he has created a work of art that is a combination of the human body and the tattoo. If this line of argument were to be drawn out fully then bodybuilders would have copyright in the bodies too? The counter-argument is that the client has done nothing other than paid (in cash and pain).

This is fascinating problem that goes to the core of the copyright question – who is the artist? Is the artist the person who physically creates or is it enough to have a conceptual model and then let someone else create? This is a fascinating question that will require more work later.

The tattoo artist has a good claim to the copyright. In much the same way as the graffiti example above the client would then own the physical copy on the body while the artist owns the intellectual rights to the image. This model would prevent copying and photography without permission. But then we may argue that the artist does nothing more than copy a stencil onto the body. If this is true then either the work is too simple to have protection under copyright or the copyright holder is someone else.

If we chose to see the artist as hired laborer then this someone else may be the owner of the tattoo studio. The work may also be the property of a third party – for example if you tattoo Pondus onto yourself the intellectual property rights still belong to Frode Øverli.

So what happens when celebrities appear in advertising campaigns prominently showing their tattoos? Is this a permissible reproduction? (Vukelj 2005) And if not would this mean that the client is not allowed to display photographs of herself/himself without the permission of the copyright holder? How can we relate this to human rights law? (see for example Ramachandran 2006)

Another question is what are the limits of tattooing? Are there tattoos that would be illegal? For example gang symbols or maybe blasphemy? This is another off-topic question that could be explored.

Another exciting thing about tattoos is that they are culturally sensitive. Is the craze for tribal tattoos a violation of the rights of the tribes or tribal artists they originate from?

Food for thought (excuse the pun)

So we have copyright in skin and wall art. Where else? Several chefs have been attempting to use IP law to protect their intellectual innovations in the kitchen. But thus far they have been unsuccessful.

Chefs have traditionally worked on an open-source model, freely borrowing and expanding on each other’s ideas and, yes, sometimes even stealing them outright. But some influential people are now talking about changing the copyright law so that chefs own their recipes the same way composers own their songs. Under this plan, anyone who wanted to borrow someone else’s recipe would have to pay a licensing fee. (Pete Wells)

Magical methods
The magician on stage presents the audience with an illusion. Once the audience knows how the magic is carried out they will no longer pay to see it. Therefore the skill and ingenuity of the magician needs to be protected from copycats (Wikipedia). Loshin (2007) argues that the community’s efforts to safeguard their IP is based upon a balance of protecting and sharing. In the case of magic the law is inadequate and the community of magicians are better served by using the internal norms that pre-exist in the community.


This was supposed to be a much shorter post but as with all things of interest it grew as exciting questions reveal themselves. The use of copyright in untraditional forms has sometimes been granted as an obvious way to go and in other cases been prevented.

Which acts are protected by copyright and which are not is based more on historical and traditional arguments and their interpretation rather than a coherent systematic development. These “fringe” areas of copyright are important and need to be developed further in order for us to more fully understand the social purpose of maintaining and developing the copyright system.

Regulating Violence

Is the regulation of violence in video/computer games censorship? Or is it a question of protecting the innocent? Naturally paternalism in all forms includes a “pappa knows best” attitude however there are cases of censorship/control/paternalism which we can accept and other forms which we tend to react against.

The forms of Internet censorship (more here) displayed by states such as China and Saudi Arabia are usually criticized as forms of censorship unacceptable in democratic societies while they themselves argue the need to protect their cultures and citizens against the corrupting influences online. It is, it may seem, a question of perspectives.

Then what of the regulation of violent computer games? Are computer games supposed to be seen as forms of speech to be protected? Or are we on a dangerous slippery slope when we start excluding forms of speech? The New York Times has an article showing that the US courts tend to find laws against computer game unconstitutional.

Considering the US approach to Free Expression this is not surprising. The European approach – in particular the French, German and Scandinavian models could not be as clear cut in this question. This only means that the US is against censorship and feels the cost of this decision is worth it, while many other jurisdictions feel that the damage caused by this extreme acceptance of free expression may cause discomfort and hardship to individuals and groups beyond the eventual benefits of the speech.

The ever eloquent Judge Posner is quoted in the article:

“Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low,” he wrote. “It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault are aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.”

The problem is that there is often great value (moral rather than economic) in quixotic pursuits and the practice of subjecting people to hardships in order to prepare them for eventual future hardships is really only useful in military training and never a satisfactory way of raising children.

Free Expression & T-shirts

Did you know that you could be arrested for wearing a t-shirt with an inappropriate text on it? No I am not talking arrested for indecency or for bad taste. Several people in the United States and the United Kingdom have been arrested for wearing t-shirts with political messages on them. In July last year I presented several examples of this on this blog.

In 2004 Nicole and Jeff Rank were removed from the event at the West Virginia Capitol in handcuffs after revealing T-shirts with President Bush’s name crossed out on the front. Nicole Rank’s shirt had the words “Love America, Hate Bush” on the back and Jeff Rank’s read “Regime change starts at home”

The good news is that the couple settled their lawsuit against the federal government for $80,000, the American Civil Liberties Union announced Thursday (via ABC news).

It’s good to hear that the even if protesters are arrested the right to freedom of expression is still a valued and protected right. However, the threat of being arrested is not something that most people want to experience and therefore freedom of expression is diminished even when people are compensated later.