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Progressive Copyright: Part III – Remember when it was about creating content? No? Me neither.

original (uncensored) photograph by Trent McBride

original (uncensored) photograph by Trent McBride

So back in part one of this little jaunt into what a truly “progressive” copyright might actually look like, we looked at how the commercial landscape of media has changed, with (mostly) shorter commercial lifetimes for creative content. In part two we looked at how the audience and delivery mechanisms have changed, generally allowing direct access to a larger audience – but much more fragmented, and with the possibility for much more corporate gatekeeping. So the obvious concluding point is how creative content itself has changed – and how that could be reflected in truly progressive copyright reform.

To make grandiose statements about “the future of content creation” for any field, let alone all creative fields is a little bit above my pay-grade – so I’m going to try and stick to (banal) generalities – but I’m going somewhere – hang in there.

Across the board the following applies to creative content:

  • Technological advance is lowering the barrier to entry
  • Content creation is beoming smaller-scale and more mobile
  • Cross-discipline collaboration is increasing
  • Derivative works are far more common

Nothing earth-shaking there right? In fact you could probably say the same truths have always been applicable to any creative field. They would have applied to Film in the 1920s (or book publishing in the 1500s) as easily as the last decade. But the pace of change is accelerating. In the 80s and early 90s many people were still using the same post-production techniques (with physical film and magnetic tape) that had been used in film for over forty years. In the subsequent time that entire model has been discarded and replaced with a digital video and sound editing workflow – and in the last five years 2k (and now 4k) video and Digital Internegatives have again entirely revamped the concept of “highest quality”. At the same time mash-up, re-purposing, and commentary are far more common. From Mystery-Science Theatre, to the Daily Show, to Todd Haynes seminal “Superstar” – using (and abusing) media in different ways is far more extensive.

The picture I’m trying to paint here is that the landscape for creating content is radically different than it was even ten years ago – and obviously copyright legislation has not even come close to keeping up. Nor is anyone actually discussing how it could keep up given that the act of creating content is now so different. Given what we talked about in part 1 and 2 – why is it that the debate about copyright has been monopolized by distributor interests while creator interests have comparatively little voice? Here’s a couple creator-friendly ideas that would be truly “progressive”

1. Legal protection for Parody and Satire
There are a number of ways that Canada’s “fair dealing” allowances under copyright are far more restrictive than the US’s “fair use”. I was close to making this point “Completely overhaul “fair dealing”. Instead I decided to focus on the two biggest points in my personal hit list – that there’s absolutely no protection for Parody or Satire under Canadian law. While there’s no history of people being prosecuted because of this oversight why is no one talking about the fact that groundbreaking programming like “The Daily Show”, or mid-80s “Saturday Night Live”, or 70s “Mad” Magazine probably wouldn’t meet the letter of Canadian copyright law?

2. Clarification of “Public” Works
One of the biggest headaches for any artist is controlling what is actually “in the frame” and what isn’t. Back when all artists (photographers, musicians, filmmakers) had to work entirely in purpose-built studios it was very easy to control each individual element in a work, but now it is much more complex. I took a photograph out on the street the other day which contained (entirely outside of the subject of the photograph): a billboard, a streetcar, a graffiti mural, a bunch of concert fliers, a guy with a tattoo, someone walking a dog. Who has the copyright in the photograph? [Edit – this was badly stated, what I should have said is “How do I safely use this photograph as, or as part of, a creative work?” see the comments below ] While not the focus of my piece there are dozens of competing intellectual property interests in that photo from the big to the small. If that snapshot became particularly iconic (say like so) how long until all of those elements hinder its exploitation? The tattoo artist’s original design? The couture clothing on the passer-by? This may all seem pie-in-the-sky, but I’ve seen entire films derailed by (for example) a mural artist suddenly surfacing wanting to be paid for a work of theirs on a wall in the background of a shot on a public street… even the question of clearances for large crowds in documentaries is messy. What would be great is clear copyright wording that putting any work in a place generally accessible to the public limits your right to claim a copyright interest in a derivative work. [Edit – I think I also clarify this point better in the comments ] This is essentially how the law works with building architecture, thankfully, so that you don’t need approval from a litany of architects to take a photograph of, say, the New York skyline.

3. “Best Efforts” copyright clearance
This one’s a little radical – but I like it a lot. There is a wealth of material, still under copyright which is essentially abandoned and (because of those increasing terms) not entering the public domain. Wouldn’t it be progressive to set out some “best efforts” guidelines that – if followed, and no copyright holder can be found – would allow an artist to consider that work allowable for them to use? Now I’m not advocating for something willy-nilly, but rather if an artist makes a concerted effort to meet certain concrete guidelines (with appropriate backup to prove what legwork they put in) that would provide them some shelter from a future lawsuit. For example – there’s a song we really wanted to use in a show from a band that broke up. We managed to track down the distributor who suggested, in writing, that given everything he knew about the band that wouldn’t be a problem. We managed to track down most of the band, who were agreeable – but since nobody could locate the lead singer, we couldn’t use it. This one would take a little finessing but could be a major shift in the concept of copyright. Like my thoughts on term, I think that copyright should require some modicum of investment by the creator instead of being an automatic block on use by other creators. That investment could be as minor as being publicly listed in the phonebook, updating your author record with the Library of Canada, or having distributors and publishers have to publicly list a “contact person” when they go out of business.

So there’s just a number of ways that I would love to be discussing a national approach to copyright to solidify the footing for content creators. Unfortunately, as I discussed at the beginning of this series, I’m not terribly hopeful that we’re going to get anything more than the usual annual lip service to the same old distribution gripes – so in a few months we’ll be back talking about media taxes, term increases, consumer rights reductions, American style DMCA provisions and the like.

It’s hard to argue why the public should be passionate about copyright when the debate has been almost entirely steered into a corner that is of interest to such a small subset of (generally) corporate interests (and I don’t mean to imply that the distributors don’t have legitimate grievances… but that any sense of balance between creator and corporate interest has been lost).

Am I hopeful for whatever comes out of the copyright consultation? Not especially, but it would be great to be surprised. Now that would be progressive.

  • The answer to the question “Who has the copyright in the photograph?” is unambiguously “You do.” The competing claims you mention are entirely hypothetical in the context of still photography, unless you’re using it for something like an advertising campaign, and in any event would not usurp your own status as creator of the photograph.

    Copyright may be complex, but it isn’t always complex and it is unhelpful to assume that basic unequivocal facts are in dispute in every case.

  • Hi Joe (I’m a big fan of your accessibility writings) ,

    That was probably clunkily stated. My point was not actually questioning who actually owns the copyright in the photograph – but rather the works exploitability in a derivative creative work.

    Pretty much anything from this post has nothing to do with actual copyright ownership (unlike, say, the weird grey areas created by C-60) – but rather improving artists ability to exploit their own copyrighted works if they discover they contain other copyrighted elements.

    Again my prime example (and it’s not hypothetical) is having a so-called “sub-marine” copyright holder surface who painted a mural that’s in the background of a film shot, well after the fact. I’m a big fan of a reasonableness standard that publicly displayed works are – to some extent – public. That certainly wouldn’t give me the right to sell postcards of a wall mural, but would provide some kind of “collateral damage” exemptions when it’s reasonably impractical to utilize a public space in a creative work without including someone’s copyright or trademarked works.