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| Mayor Butts |
More copyright, more "Quality Works"? Not quite but maybe, says a study of Italian opera before 1900. As Italy had a wide variety of copyright law provisions until the late 1860s when Italy itself was finally unified, Stanford economists Petra Moser and Michela Giorcelli compared the varying degrees of copyright protection to the output of operas, compiling a database of more than 2,598 Italian operas written between 1770 and 1900 - and then looked at the longevity of each opera right up to how many recordings of any opera were available in 2014 on Amazon. Vox explains "Copyright laws seem to have created significantly more operas that also had staying power and were of higher quality" and details: "States with copyrights ended up producing 2.68 additional operas per year, a 121 percent increase over states without copyrights. Historically popular operas (as measured by the 1978 publication, the Annales of Opera 1597-1940) grew by 47 percent, and durable operas [those available on Amazon in 2014] grew by 80 percent.”.png)
Do readers have any ideas or personal experiences to share with our reader?"The use of the image does not seem to fall within CC terms of “primarily intended for or directed toward commercial advantage or private monetary compensation” -- but there could be different interpretations. In the United Kingdom as in other countries, many educational organisations now need to charge for attendance, including universities. The only definitive advice I can find is in this document ["Free Knowledge Based on Creative Commons Licenses" by Paul Klimpel] with a German viewpoint from 2012 which advises on avoiding NC licences".
Toy maker GoldieBlox's has settled it's dispute with the Beastie Boys, which came to public attention when the toy company used one of the band's songs, Girls, for an advert. The company have agreed to make a $1 million charitable donation according to legal documents. Whilst the two remaining band members said they respected the toymaker's mission to make toys for young girls that break down gender stereotypes, they and the late Adam Yauch had long held a resolve never to licence their music for advertising. GoldieBlox will donate 1% of it's gross annual revenues to a charity of the band's choice until the amount paid reaches $1 million. The charity chosen would focus on supporting "science, technology, engineering and/or mathematics education for girls".
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| In the communist era, the Eagle lost its crown |
The operator of the popular file-sharing service isoHunt, is shutting down to settle a long-running lawsuit brought by the Motion Picture Association of America, according to court records. Gary Fung, the site’s Canadian operator, also agreed to pay $110 million in damages as part of the deal to end the long-running legal battle - although quite where he will get that sort of sum remains unclear. Programmer Bram Cohen released the BitTorrent file-sharing protocol in 2001, and its efficient way of transferring files has become the method of choice for illicit, peer-to-peer sharing of copyright. The isoHunt litigation began in a Los Angeles federal court in 2006. In March of this year, a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals ruled that the DCMA would not apply to Fung because Fung’s business model, the court said, was designed for the primary purpose of copyright infringement.
What has the UK's Digital Copyright Hub boss Richard Hooper been saying? Well you can read it all on the Music Ally website but in a nutshell "There is a problem with copyright in the fast-moving digital world, [but] before the kneejerk reaction ‘the law must be changed!’, look whether changes to copyright licensing, processes and organisations will resolve some, if not all of the problems specified… most of the problems can be solved if the creative industries get off their backsides and streamline copyright licensing”. 
That said, Creative Commons have urged lawmakers around the world to reform copyright law to make creative works more open to public domain. Creative Commons issued the policy statement in the face of more restrictive intellectual-property trends to dispute suggestions that "the very success of CC licenses means that copyright reform is unnecessary" saying "CC licenses are a patch, not a fix, for the problems of the copyright system," and the statement foes on to say "However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic.… CC licenses are not a substitute for users' rights" and "the public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain." |
| The monster Grendel - rivalled by Google? |
“Elysium”, the recently released sci-fi action-thriller starring Matt Damon and Jodie Foster, is facing a copyright claim in the Northern District of California. Screenwriter Steve Willis Briggs has accused director of Elysium, Neill Blomkamp, of stealing the idea for “Elysium” from his screenplay “Butterfly Driver.” At the heart of the claim is the core story in “Elysium”: In 2154, two classes of people exist: the very wealthy, who live on a luxurious space station called Elysium and the poor, who live on an overpopulated, devastated Earth. While residents on Earth are policed by ruthless robots, Elysian citizens live in comfort and regularly use man-sized medical devices called Med-Bays to keep them free of disease and injury. The film follows the main character Max, who is played by Matt Damon, as he attempts to gain access to restricted medical treatment that is reserved for the wealthy after he is exposed to a lethal dose of radiation and an ensuing fight with Elysiun's Secretary of Defence Jessica Delacourt (Jodie Foster) and vicious mercenary Kruger. Briggs claims that numerous aspects of the film, namely the plot, characters, and themes, are taken directly from his “Butterfly Driver.” Briggs registered his screenplay in June with the U.S. Copyright Office in order to file the suit. Other defendants include Sony Pictures, TriStar Pictures, Media Rights Capital, and QED International.
Now to the world of video games: First off, The Switch report that one of their most popular posts concerned a full-on recreation of Nintendo's Super Mario Bros. in the browser. Nintendo is now accusing the developer of copyright infringement — to which one commentator wrote, "I don't understand, the dude just made something for fun. He's not making profit off of it, it's a fan creation! That's like saying we should take down all fan art and not wear any cosplay, because it's copyright infringement."
"In my blog post, I wanted to make two very simple points. First, I believe that CC should improve protection for moral rights in the new version of its licences. As I understand that preparation of the new version is in progress, this seems like a good time to point that out.
Secondly, I do not believe that CC should be the only mechanism for artists or authors in the United States to receive recognition for their moral rights. Rather, people who choose to publish through traditional channels should also be able to benefit from moral rights. At the moment, it would appear that the only outlet (other than CC) for recognizing an author's moral rights in the U.S. would be a private contract. Even other legal possibilities like the Lanham Act seem to be losing their relevance to moral rights (per Dastar). Given the limited bargaining power of most authors and artists, I think that a contract-based solution might only be applicable to very few individuals. Instead, standard-form contracts will include standard waivers of moral rights. Accordingly, the only way for moral rights to receive general recognition in the U.S. would be if U.S. legislators were to create protection for authors' and artists' moral rights (and, indeed, to do so according to the requirements of Article 6bis of the Berne Convention, to which the U.S. is a signatory).
In addition to these points, my post mentioned that the digital environment makes it difficult for authors and artists to receive remuneration for their work on the same basis on which they have been paid in the past. In other words, the publication model embodied by copyright law has become, in many respects, dysfunctional -- obsolete. During the past 10-15 years, while this transition from the old publishing world to the current digital scenario has been happening, only one viable alternative to traditional copyright protection has been proposed. That new model is CC. As a result, I think that CC is actually quite important. It represents a new way of thinking about publishing, and few other new ways of thinking have emerged out of the copyright problems of the past several years (we will probably be talking about iTunes and YouTube, as a method of music distribution for new bands, in a similar light in years to come ...). CC has its place; as noted in my blog post, it is well-suited for so-called "amateurs" or people who, for various reasons, do not need or want to earn money from the publication of their work. However, it cannot apply to people who want to dedicate their lives full-time to the arts or to writing, unless they have independent means of subsistence.
Some commentators appear to be disturbed by my presenting CC as an alternative to copyright law. To me, it is self-evident that CC cannot outlaw copyright infringement, since copyright, in the U.S. and elsewhere, is a right conferred by federal law...! Someone who violated a CC licence could therefore be sued on at least two grounds - breaking the terms of the licence AND copyright infringement (for use of the work contrary to the terms agreed). This observation does beg the question, though, of what real contribution CC makes OUTSIDE the United States? In the U.S., the CC licence allows someone to give their work to the public while still benefiting from attribution. But, in many other countries, attribution is a moral right that cannot be waived, or may be waived only by explicit provision (the UK being a different scenario because of the assertion requirement in relation to attribution; in Canada, I believe that CC claims that implicit waivers of moral rights are allowed, but I'm not sure that this is the correct way to read ss. 14.1 (2) & (3) of the Canadian Copyright Act). So, by saying that moral rights are protected, CC overseas licences are merely acknowledging the state of copyright law in those countries, not adding anything to it. Someone who simply released their work on the Internet and announced that they "gave" it to the public might still retain their moral rights (ie. automatically and as required by local copyright law).
What seems to have roused the ire of the commentators on my post is my belief that CC is a non-commercial way of publishing one's work. I have not seen anything in any of the posted comments to change my understanding of how CC works. The fundamental licence on which the entire CC licensing system is built is an "attribution" licence. This means that anyone who publishes their work under a CC licence will expect to be attributed as the author of the work; but he or she will agree that the work can be used by anyone without payment of a royalty. Clearly, anyone who publishes his or her work under this licence agrees to forgo economic gain from that work. I suppose that, in theory, someone could simultaneously publish his or her work through conventional channels, and also release it under CC. But, unless the published work were different in some way from the work released under CC (ie. a sample released under CC), I cannot understand what incentive anyone would have to buy it. Why pay for something that you can get for free?".
Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong
It is a well-known fact that the United States does not protect the moral rights of authors. This point has been noted in comments on earlier posts in this series, and there is only one exception to this rule (at the federal level) – a form of limited recognition for the moral rights of visual artists alone, represented by the Visual Artists Rights Act (VARA) of 1990 (some states do provide protection for moral rights, particularly in relation to the fine arts, but the significance of these statutes is limited, and a discussion of them is beyond the scope of this post). This legislation was adopted at the height of American interest in moral rights, shortly after U.S. accession to the Berne Convention, effective from 1 March 1989. The Berne Convention has protected moral rights since 1928, when it was revised to include provisions on an author’s right to be named as the author of his or her own work, and to protest damage or distortion of the work – particularly where the mistreatment of the work has affected the author’s reputation or “honor.”
When the United States joined Berne, the American government argued that U.S. law provided recognition equivalent to the moral rights of authors through legal alternatives that were well-established in American law. Possible legal protections for moral rights included actions for defamation or slander, and, until recently, consumer protection from false advertising under the Lanham Act – an “alternative” to moral rights that was effectively ruled invalid by the U.S. Supreme Court in Dastar Corp. v Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). Dastar is not clearly against the protection of moral rights through Lanham Act provisions; it is, rather, subsequent interpretation of this case that seems to have sealed the fate of moral rights under Lanham: I discuss this in my book, Moral Rights, 144-48. Today the United States has less legal protection for moral rights than ever. But there is a new alternative venue for moral rights in the United States: Creative Commons. The shortcomings of this alternative are so striking that the Creative Commons phenomenon should be a new and powerful reason for the American government to re-examine the possibility of introducing federal legislation on authors’ moral rights – not because Creative Commons has failed to recognize moral rights – but because it fails to recognize an artist’s right to be paid for his or her work.
Creative Commons is an extraordinary phenomenon. It has emerged as a true popular alternative to copyright protection – the one functional alternative to established models of copyright law that seem to have failed, in many crucial ways, in the technological context. The basic idea behind Creative Commons is to release one’s work into the public domain, and to do so immediately. All works eventually find their way into the public domain – often as long as 70 years after the death of the author – but releasing your work under a Creative Commons licence makes it possible to send your work instantly into the public domain. In practice, what this means is that you agree to forgo payments for the use of your work. You will receive no royalties from anyone who uses it, and, a point that is equally important from the perspective of copyright theory, no one needs your permission to use your work.
The idea of releasing works into the public domain for free and unconstrained use may be philosophically appealing, but, for many authors and artists, it must also be deeply unsettling. Creative Commons brings into stark relief the contrast between those who earn regular salaries and those who depend on royalties from the use of creative works. It is easy enough for a law professor, for example, to give his or her work to the public under a Creative Commons licence, since he or she need not depend on book royalties to survive. However, for a full-time writer, giving away work means that he or she will have to find something else to do to earn a livelihood. In other words, Creative Commons represents the legal face of a more general characteristic of the digital era – the erosion of artists’ traditional methods of making a living (this point is discussed more fully in my article, “Creative Commons: America’s Moral Rights?” (2011) 21 Fordham Intell. Prop., Media & Ent. L.J., available here).
Creative Commons licences are not perfectly free of conditions. To explain this point more fully, it should be noted that Creative Commons licences are actually a family of different types of licence, progressing hierarchically from the basic version, known as the “attribution” license, to licences that gradually impose further restrictions on the activities of users. The culmination of the system is a sort of “free advertising” licence, which requires that attribution of the author be maintained while the work, itself, is not altered – called, in Creative Commons terminology, the “no derivatives” principle, because it prevents anyone from making a derivative work (such as a translation or a collage) out of your work.
Clearly, this system of licenses has some important points in common with the moral rights of authors. Attribution is the foundation of the system, the basic principle on which Creative Commons licences are built, and from which, no use of a work can be exempt. At the same time, the idea that no derivative works should be made could be seen as a very general version of the moral right of integrity. It is one way of avoiding possible distortion or mutilation of the original work, but only in situations where the alteration of the work is dramatic, and constitutes the creation of a new, “derivative” work in its own right (as in the Monty Python case, Gilliam v ABC, 538 F.2d 14 (1976), here). The possibility of less dramatic alterations is not dealt with by the Creative Commons system.
The sense of a deeper affiliation between Creative Commons and rights of authorship can be further explored by considering what Creative Commons does when it designs licences for use outside the United States. Here, the fundamental problem becomes that every other jurisdiction in the world recognizes moral rights in one form or another. The international licences take an inclusive approach to moral rights. In the case of civil law countries, where an author’s ability to waive his or her moral rights will be limited, the Creative Commons license will not – indeed, cannot – interfere with the moral rights provided by statute. In common-law countries, Creative Commons will recognize the possibility that moral rights can be waived, but, in their comments on a draft proposal for the next version of the licences, they note:
“We do not want to overreach. We have heard little justification for licensing or waiving moral rights that are unrelated to the exercise of the rights granted. The scope of the waiver is no greater or less than the scope of the licensed copyright and neighboring rights, except where no waiver is permitted in which case moral rights remain unaffected.”Creative Commons is currently engaged in a new round of “versioning”, which is to overhaul the system of Creative Commons licences by the end of 2012. At this stage, Creative Commons essentially appears to be exploring two options regarding moral rights. The first would be, simply, to clarify the existing language of the licences in such a way that moral rights could be waived by implication (ie. with no need for any explicit statement by an author waiving his or her moral rights), wherever waivers of moral rights are generally permitted by local copyright law. Alternatively, Creative Commons is considering the possibility of taking “a more proactive stance in support of moral rights.”
Of these two possibilities, it would be exciting for Creative Commons to choose the latter, and support moral rights. This would create some new opportunities for protecting the quality of culture in the non-commercial and public domain environments. Maintaining the attribution and integrity of knowledge in the digital environment is a supreme challenge, and moral rights in Creative Commons works could lend strong support to doing so.
However, choosing this option may not be as easy as it seems at first glance. A pro-moral rights position could involve a degree of fundamental conflict for the Creative Commons movement, since the very idea of the movement is to create a realm where works can be “freely” disseminated. The comments on the Creative Commons information website suggest that, on some level, where moral rights are concerned, Creative Commons just doesn’t get it. According to the website, supporting moral rights “creates an internal contradiction where the licensor gives anyone the permission to redistribute his work, but then has the possibility to arbitrarily prevent someone from doing so, just because he disliked that someone.” The purpose of moral rights is to protect the cultural domain, and to establish respect for the creative ability and efforts of artists. Artists are responsible for asserting moral rights, but the basis of any moral rights claim is that the artist dislikes the treatment of his or her work, for artistic reasons that he or she can articulate. The goal of asserting an integrity right would not be to target any particular individual for “arbitrary” reasons – few artists could afford to launch legal proceedings on such grounds. And, indeed, if a creative work were to be treated in a derogatory manner, the public as a whole, and not only the artist, could stand to lose something important.
The real problem with Creative Commons is that it disposes of the copyright system without, however, providing an answer to the all-important practical question of how artists are to survive. In the United States, artists who want moral rights can opt for licensing their work through Creative Commons, but (unless they choose to license only a few select works to benefit from “free advertising”), they cannot expect to enjoy moral rights protection and earn money from their work at the same time. Welcome to the future?
In 2004, the Belgian band Lichôdmapwa released the song “Abatchouck” under a Creative Commons Attribution Non-Commercial No Derivatives license (CC BY-NC-ND). Several years later, one of the band members happened to hear about 20 seconds of the 3:20 song on an advertisement for a theater and festival company. Recently, Lichôdmapwa was awarded 4.500 Euros for the infringement of “Abatchouck”.
When Lichôdmapwa first heard their song on the radio, they contacted the theater company (roughly translated by Bablefish as “Festival of theater of spa”) to see if they could negotiate an outcome favorable to all. The negotiations failed and Lichôdmapwa sued the theater company for copyright infringement in September of 2009.
Lichôdmapwa claimed that the theater company had violated all three of the terms of their chosen CC license. The theater had modified the original work to make it fit in the commercial, violating the No Derivatives provision. The theater violated the Non-Commercial clause by using the work in an advertisement. And the theater violated the attribution requirement by not including any mention of the song’s artist in the commercial.
The band asked for 10,380 Euros in damages, plus to have the theater pay for the publication of the court’s judgment in a magazine called “Dogmagazine.”
The theater company attempted to claim ignorance, arguing that it was unaware of the terms of the license. It appears the theater also argued that since Lichôdmapwa is not a member of the Belgian collecting society, SABAM, the band had no rights to collect payments for the music’s use.
Judge Vandeput did not agree with the theater company’s defenses. She recognized the validity of Creative Commons licenses, citing Dutch, Spanish and American courts as others that have also held CC licenses to be valid. She also confirmed that the musicians’ decision to not join SABAM and instead release their music more openly should not prevent enforcement of the license.
As to the theater company’s claim of ignorance, Judge Vandeput found that this was no excuse for violating the license. As an organizer of festivals and a company involved in using licensing, the company should have known to look for and follow the terms of the license. In addition, the website from which the theater downloaded the music, http://www.dogmazic.net, clearly mentions the terms of the license. There was no reason for the theater company not to know about the license or its terms.
Even though the band is not part of SABAM, the court held that they still suffered damages. And although Judge Vandeput did not award Lichôdmapwa the 12 Euros per distribution and 1,800 Euros per license term violated that they requested or the magazine print request, she did award the band 1,500 Euros per license term violated. 4,500 Euros and possibly court costs, not bad.
For our multi-lingual readers:
Thanks are due to Aurelia J. Schultz for letting me know about the publication by Creative Commons of a new study, Defining "Noncommercial:" A Survey of How the Online Population Defines "Noncommercial" Use. According to the Creative Commons press release, "The Report details the results of a research study launched in September 2008 to explore differences between "commercial" and "noncommercial" uses of content found online, as those uses are understood by various communities in connection with a wide variety of content.According to the excerpts from the Executive Summary,
The study investigated understandings of noncommercial and use the the Creative Commons "NC" license term through empirical online surveys of content creators and users in the U.S., open access (non random) polls of global "Creative Commons Friends and Family," interviews with thought leaders, and focus group discussions with participants from around the world who create and use a wide variety of online content".
"The empirical findings suggest that creators and users approach the question of noncommercial use similarly [Might this be because, while the functions of creator and user are different, so many people increasingly belong to both categories] and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial [This suggests the need to recognise a third category rather than the traditional binary split between commercial and non-commercial]. Similarly, uses by for-profit companies are typically considered more commercial. Perceptions of the many use cases studied suggest that with the exception of uses that earn users money or involve advertising – at least until specific case scenarios are presented that disrupt those generalized views of commerciality – there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial [ie. there is agreement in theory, but not on specifics].The study home page provides access to the press release, the report itself, the survey appendix, and research data.
Uses that are more difficult to classify as either commercial or noncommercial also show greater (and often statistically significant) differences between creators and users. As a general rule, creators consider the uses studied to be more noncommercial (less commercial) than users. For example, uses by a not-for-profit organization are generally thought less commercial than uses by a for-profit organization, and even less so by creators than users. The one exception to this pattern is in relation to uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial [There's a parallel here in terms of file-sharing, where users see their uses as private, therefore noncommercial, while rights owners see the same uses as lost sales, therefore commercial].
The most notable differences among subgroups within each sample of creators and users are between creators who make money from their works, and those who do not, and between users who make money from their uses of others’ works, and those who do not. In both cases, those who make money generally rate the uses studied less commercial than those who do not make money. The one exception is, again, with respect to personal or private uses by individuals: users who make money consider these uses more commercial than those who do not make money.
The results of the survey provide a starting point for future research [It's so refreshing to read this statement. So often, initial survey results are taken as immutable truths and are extrapolated in every imaginable direction. This blog welcomes the recognition that research of this sort is often best done by stepping-stones]. In the specific context of the Creative Commons licenses, the findings suggest some reasons for the ongoing success of Creative Commons NC licenses, rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses, and serve as a reminder to would-be users of the NC licenses to consider carefully the potential societal costs of a decision to restrict commercial use. They also highlight the need for caution when considering whether to modify the CC NC licenses in the course of a license versioning process or otherwise, so that expectations of those using NC licenses are preserved, not broken.".
