Sunday, April 11, 2010

Copyright and Copywrong at age 300

It startles and astounds me just how right someone (or several someones) can be in one moment:

"The wide availability of content delivery platforms is based on standards and hardware for which interoperable content management technologies are critical [...]This calls for a heightened degree of standardisation within the digital media chain; in a highly networked environment, cross-sectoral cooperation is required to an unprecedented extent to ensure the interoperability of metadata for exploitation of primary, secondary and even tertiary markets and user need"

And how blatantly wrong the next:

" In most countries, there are many more consumers than creators and performers, creating political challenges for policy-makers in managing discussions on copyright"
-WIPO (emphasis is mine)

Now, before you take up your keyboard in anger and strike me down with all your anger, please allow me to explain. Remember what I said a few posts ago? I said:

"I think we're so used to thinking of ourselves as consumers that we almost don't consider what we are actually doing. I'm creating something right now. I took my camera to school with me, and on the way both there and back I did even more creating! As I have said, with the means of production becoming cheaper and cheaper (on the software side moreso, perhaps) there are fewer hurdles between you and creative expression than there have ever been in history"

And I'm right. We're the generation of ubiquitous connectivity and social media. All those pictures you take and the posts you write and possibly your twitter posts as long as you can prove that they constitute original expression beyond a simple statement of fact? That's all your creation, and that's all protected by copyright BY DEFAULT, thanks to the same kind of extensions to the law that Big Media wants to keep going. Look here:

"#2  Sharing Your Content and Information

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:

   1. For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
   2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
   3. When you add an application and use Platform, your content and information is shared with the application. We require applications to respect your privacy settings, but your agreement with that application will control how the application can use the content and information you share. (To learn more about Platform, read our About Platform page.)
   4. When you publish content or information using the "everyone" setting, it means that everyone, including people off of Facebook, will have access to that information and we may not have control over what they do with it.
   5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them)."
-Facebook Terms of Service

These seem like some pretty reasonable rules. Facebook needs a relative amount of freedom in order to provide effective services, and most people seem unlikely to care about stray backup copies of party photos that they have already implicitly decreed are safe for public consumption. Facebook isn't directly profiteering from your work, but indeed if it did not have these liberties its service would be greatly inferior, and hence their survival as a cultural and financial entity does in some way derive from the way they use your content. But ask Big Media if you can take about this level of liberty with the music that you buy and I guarantee you'll hear them scream bloody murder. Why is it ok for some creators to be treated worse than others, though? If this is good enough for us it should be good enough for everyone who creates, right?

Well, not really.

First, you might be thinking "well, what about quality?"

That would be a mistake. Do you mean to tell me that the moral high ground in this argument should go to the best art, because let me tell you that is NOT in the slightest what the content industry is trying to secure in this fight. Second, creation is supposed to come from the heart, not the pocketbook. Why should funding or publishers matter in whether or not we believe a creator should have some reasonable expectations about the kind of terms he or she can get for their work. I think the difference is that if the public as a whole had the kind of hold on the legislature that Big Media does (a terribly ironic conundrum), Facebook would be PAYING US to use their content in exchange for its continued presence as an advertising platform and cultural icon. But alas we do not, and are consequently treated as second-class creators.

If one looks at the world of webcomics, you'll see a lot of quality. You'll also see a lot of self-publishing. The comics that have attracted large readerships have not necessarily needed large corporate funding; they have grown because of the quality of their content. WE DID NOT NEED publishers or editors or agents to tell us which webcomics were worthy and which were not. Hey, what would you know, the invisible hand that everyone likes to talk about so goddamn much DID ITS JOB! Grassroots creativity does not mean "hatchet job" anymore, and perhaps our culture will wise up to this fact.

So, where are we now?

We are leaving a culture of passive consumerism, and we are building one where many people create, or become indirectly involved in the creation process through feedback (see: Imogen Heap's fan outreach and crowdsourcing from the making of her last album, or ANY popular blog with a thriving comment community). WIPO's stance is still rooted in the frankly archaic notion that modern content delivery is, and will continue to be a one-way process. There are many people who have been saying this for years; Lawrence Lessig being the obvious example.

But they are saying something right when they talk about interoperability. What they should have said in the next paragraph is that industries need to work together to create products that continue to foster two-way communication between creators. Not between "creators and consumers" because while indeed some people have become better or more prolific than others, we have already seen that giving everybody the same tools does in no way cheapen the best work done in a category of creative works. Did good webcomics not arise and gain fan followings because everyone and their dog could post one to the internet? The answer is beyond obvious. So give everyone the same tools for sharing their work. Some will take to it naturally, and others will leave it alone...but it will no longer be up to the creaking dinosaur industries of the past who gets to be transformed into something famous and who does not! To some extent we can already see this phenomenon in action: just watch the rise of a viral video.

Of course, if we envision a world without promoters and labels, the infamous words of Warhol look more and more like the literal truth of the now*. Perhaps being a famous artist will cease to be a true career option, and we will just spend our years constantly hunting down the latest viral sensation.

I'm not sure I've touched on sharing in this future world yet, but of course I am no oracle. I can say that I believe if creators were treated equally I think we might see agitation for truly balanced copyright law. The profit motives would be properly aligned for once, as what you have is no longer two adversarial groups, each trying to swindle the other. What you have is one group that has to weigh the protection of its individual livelihoods against the protection of cultural heritage. What you have is one group that has to balance its need to eat with its desire to remix, review, and renew its culture from time to time.


Oh yes, and check this out.

*"15 minutes of fame", in case that wasn't clear

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