Social Media, Copyright and Creativity

When we speak about copyright, we are so often in some way answering the system of laws that regulate intellectual property according to the Berne Convention for the Protection of Literary and Artistic Works. Sweden signed the Berne Convention on the 1st August 1904. The United States signed the convention on 1st March 1989.

The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way it recognizes the copyright of its own nationals. For example, French copyright law applies to anything published or performed in France, regardless of where it was originally created.

In addition to establishing a system of equal treatment that internationalized copyright amongst signatories, the agreement also required member states to provide strong minimum standards for copyright law.

Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration (note however that when the United States joined the Convention in 1988, they continued to make statutory damages and attorney's fees only available for registered works).

The Berne Convention states that all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author's death, but parties are free to provide longer terms, as the European Union did with the 1993 Directive on harmonizing the term of copyright protection. For photography, the Berne Convention sets a minimum term of 25 years from the year the photograph was created, and for cinematography the minimum is 50 years after first showing, or 50 years after creation if it hasn't been shown within 50 years after the creation. Countries under the older revisions of the treaty may choose to provide their own protection terms, and certain types of works (such as phonorecords and motion pictures) may be provided shorter terms.

In the European Union according to 1993 Directive on harmonizing the term of copyright protection,

the the rights of authors are protected within their lifetime and for seventy years after their death (Art. 1, D. 93/98/EEC): this includes the resale rights of artists (Art. 8, D. 2001/84/EC). For films and other audiovisual works, the seventy year period applies from the last death among the following people, whether or not they are considered to be authors of the work by the national law of the Member State: the principal director (who is always considered to be an author of the audiovisual work), the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work (Art. 2, D. 93/98/EEC).

The rights of performers last for fifty years from the distribution or communication of the performance, or for fifty years from the performance itself if it had never been communicated to the public during this period (Art. 3(1), D. 93/98/EEC). The rights of phonogram producers last for fifty years after publication of the phonogram, or for fifty years after its communication to the public if it had never been published during that period, or for fifty years after its creation if it had never been communicated to the public (Art. 3(2), D. 93/98/EEC, as modified by Art. 11(2), D. 2001/29/EC). The rights of film producers last for fifty years after the communication of the film to the public, or for fifty years after its creation if it had never been communicated to the public during that period (Art. 3(3), D. 93/98/EEC). The rights of broadcasting organizations last for fifty years after the first transmission of a broadcast (Art. 3(4), D. 93/98/EEC). The European Commission proposed this be extended to 95 years and following this suggestion the European Parliament passed legislation to increase the term to 70 years.

Where a work enjoyed a longer period of protection under national law on 1 July 1995, its period of protection is not shortened. Otherwise, these terms of protection apply to all works which were protected in a Member State of the European Economic Area on 1 July 1995 (Art. 10, D. 93/98/EEC). This provision had the effect of restoring the copyrights in certain works which had entered the public domain in countries which shorter copyright terms.[5] The EU Copyright Directive [2001/29/EC, Art. 11(2)] modified the term of protection of phonograms, calculating from the date of publication instead of from an earlier date of communication to the public, but did not restore the protection of phonograms which had entered the public domain under the former rules (Art. 3(2), D. 93/98/EEC, as modified). All periods of protection run until 31 December of the year in which they expire.

It is against this backdrop that all cultural production occurs. There is no guarantee of fair use in the European copyright system of laws. Instead there are a series of permitted limitations, which are:

* paper reproductions by photocopying or similar methods, except of sheet music, if there is compensation for rightsholders;
* reproductions made for private and non-commercial use if there is compensation for rightholders;
* reproductions by public libraries, educational institutions or archives for non-commercial use;
* preservation of recordings of broadcasts in official archives;
* reproductions of broadcasts by social, non-commercial institutions such as hospitals and prisons, if there is compensation to rightholders;
* use for illustration for teaching or scientific research, to the extent justified by the non-commercial purpose;
* uses directly related to a disability, to the extent justified by the disability;
* press reviews and news reporting;
* quotations for the purposes of criticism or review;
* uses for the purposes of public security or in administrative, parliamentary or judicial proceedings;
* uses of political speeches and extracts of public lectures, to the extent justified by public information;
* uses during religious or official celebrations;
* uses of works, such as architecture or sculpture, which are located permanently in public places;
* incidental inclusion in another work;
* use for the advertisement of the public exhibition or sale of art;
* caricature, parody or pastiche;
* use in connection with the demonstration or repair of equipment;
* use of a protected work (eg, plans) for the reconstruction of a building;
* communication of works to the public within the premises of public libraries, educational institutions, museums or archives.

Outside these points the reproduction and distribution of copyrighted material (and it is automatic, everything that is published is copyrighted according to the Berne Convention). As I show in an example below, even the use of copyrighted materials for educational purposes is very restricted.

Where there is contention in regards to copyright law is the difficulties of reconciling the laws, as they have been gradually established since the Statute of Anne, generally recognized as the first mordern form of copyright law which was made law in the (brand new) United Kingdom in 1709:

The Statute replaced the monopoly enjoyed by the Stationer's Company granted in 1557 during the reign of Mary I which, after several renewals, expired in 1695. Under this regime, company members would buy manuscripts from authors but once purchased, would have a perpetual monopoly on the printing of the work. Authors themselves were excluded from membership in the company and could not therefore legally self-publish, nor were they given royalties for books that sold well.

The statute of 1709 vested authors rather than printers with the monopoly on the reproduction of their works. It created a 21 year term for all works already in print at the time of its enactment and a fourteen year term for all works published subsequently. It also required that printers provide nine copies to the Stationer's Company for distribution to the Royal Library, the libraries of Oxford, Cambridge, St Andrews, Glasgow, Aberdeen and Edinburgh, Sion College and the Faculty of Advocates library in Edinburgh.

Copyright has since it's earliest days function to regulate and organize the business associated with media. Today digital media is providing those that work with copyright law with plenty to think about.


Lip Dub - Flagpole Sitta by Harvey Danger

Digital Millennium Copyright Act
One example of how nations and legislators have responded to the challenges of digital media in terms of copyright is the Digital Millennium Copyright Act of 1998 from the United States of America:

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users.

On May 22, 2001, the European Union passed the Copyright Directive or EUCD, which addresses some of the same issues as the DMCA. But the DMCA's principal innovation in the field of copyright, the exemption from direct and indirect liability of internet service providers and other intermediaries (Title II of the DMCA), was separately addressed, and largely followed, in Europe by means of the separate Electronic Commerce Directive. (Unlike U.S. federal laws and regulations, the execution of European Union directives usually requires separate legislation by or within each of the Union's member states.)

IPRED
In Sweden the Intellectual Property Rights Enforcement Directive (IPRED) laws were introduced in 2009:

Section 2 of the Directive deals with the evidence. Article 6 gives the power to the interested party to apply for evidence regarding an infringement that lies in the hands of the other party to be presented. The only requirement is for that party to present “reasonably available evidence sufficient to support its claim” to courts. In case of an infringement on a commercial scale, Member States must also take steps to ensure that “banking, financial or commercial documents” of the opposing party are presented. In both cases confidential information shall be protected.

Measures for preserving evidence are available even before the proceedings commence. Article 7 provides that such measures may be granted under the same conditions as under Article 6 and include provisional measures such as physical seizure not only of the infringing goods (such as hard drives) but also materials used in the production and distribution.

Article 6 provides that such measures may be taken without the other party having been heard, in particular where any delay is likely to cause irreparable harm to the rightholder or where there is a demonstrable risk of evidence being destroyed. These are interlocutory, ex parte and in personam orders known in the English and Irish jurisdictions as Anton Piller orders. They are not used outside the UK and Ireland.

The Nature of Digital Online Media



The nature of digital media is decentralized network orientated with unlimited copying potentials from read-write technology. Every example of a digital media work in its coded form resembles every other copy of the same work. The many-to-many structure of digital networks makes sharing of the copies of digital works very very easy.



When the then Swedish based Pirate Bay Torrent Tracker was taken offline briefly in 2006 there was a noticed decline in Internet traffic. Imagine if all torrent networks were closed down and information generally went through the main channels at the center of the network. The congestion would be severe, as a 2007 study pointed out:

Three distinct regions are apparent: an inner core of highly connected nodes, an outer periphery of isolated networks, and a mantle-like mass of peer-connected nodes. The bigger the node, the more connections it has. Those nodes that are closest to the center are connected to more well-connected nodes than are those on the periphery. (Proceedings of the National Academy of Sciences)

Interesting. A review of the study in The Technology Review summarized the findings as; "Routing traffic through peer-to-peer networks could stave off Internet congestion, according to a new study."

Finally I would like to share with you an example of the legal problems that are being created by digital media. In the Museum Studies course last year, which we teaching using the 3D virtual world of Second Life, a number of questions arose concerning the use of cultural materials for the purposes of education, by students. I wrote to one of the university lawyers with questions about what was permitted in regards to streaming in virtual worlds according to the Swedish copyright law.

Dear Jim

I’m sorry for taking some time to answer, it’s been a busy few weeks…

Your Second Life project seems interesting, and I’m sure it raises a few questions that the current legal structure in the higher education area is not equipped to deal with. However I will do my best to answer the questions you raise in your e-mail.

Firstly the university should not, and may not, encourage the students to use copyrighted material in violation of intellectual property laws. As I understand your e-mail the use of the particular materials has been primarily an initiative by the students? I do believe the university still has a responsibility to educate the students on the lawful use of such material and to – within reasonable limits – ensure that our students does comply with IP-laws when fulfilling their assignments. There is a certain room in the swedish intellectual property laws (Upphovsrättslagen) to use materials for scientific and artistic critique. This right does not however include the right to use movie-works such as the documentary from SVT. The Harry Potter photos could, depending on the context of their use be argued to fit within the artistic/scientific critique allowed by the law, but I’m afraid the law was not written with virtual museums in mind, and I think the outcome of a case trying that particular legal question would be hard to predict but likely not to include the right to use them in a virtual museum. My recommendation is therefore to ask the students to remove both the SVT documentary and the Harry Potter images.

The students could also contact SVT and ask for permission to use the movie, as well as the studio owning the Potter photos. As for the policy you requested, the university jurists has written a letter to Utbildningsdepartementet calling for a renegotiation of the copy-agreement which regulate our right to use copyrighted material in the educational context, to allow for a broader use of such material in the growing digital educational arena. As of today there has been no response, but with a little luck there will be a better agreement available in the future. In the meantime, if there are any specific questions that arise, don’t hesitate to contact us with questions.

Best regards

Markus Naarttijärvi
Bitr. Universitetsjurist
Umeå universitet

As far as I know we are still waiting for a response from the "utbildningsdepartementet calling for a renegotiation of the copy-agreement which regulate our right to use copyrighted material in the educational context".

According to swedish law; "Var och en får citera ur offentliggjorda verk i överensstämmelse med god sed och i den omfattning som motiveras av ändamålet." - Any person may quote from published works in accordance with fair practice and to the extent necessary for the purpose. Here is seems the onus is on what is reasonable. Citation is one thing, mass copying and distribution another and remix or mashup yet more.

Social Media as Text

In Close Reading New Media, Jan van Looy and Jan Baetens write

The decentered nature of electronic text empowers and invites the reader to take part in the literary process. Poststructuralist theorists predicted a total liberation of textual restrictions imposed by the medium of print. However, while these are culturally significant claims, little attention has been paid to their realization

In the seven years since these words were published little has changed in regards to claims made in regards to "a total liberation of textual restrictions imposed by the medium of print". The so-called social media which is filling the lives of so many people today is based upon an often unstated premise that 'You' are the media. That the limitations of what can be created and published are based on the limits of the imagination and ingenuity of those who sign up for Blogger, Flickr, Facebook, Twitter, Myspace and so on. But if we pause time and stop to consider the mechanics, what could be termed the archiTEXTure, of social media platforms, what do they reveal when they are exposed to close readings as texts?

A close reading is a product of a particular approach to literature that has developed during the past two hundred years, although it has its origins in the humanism on the Renaissance.

"In literary criticism, close reading describes the careful, sustained interpretation of a brief passage of text. Such a reading places great emphasis on the particular over the general, paying close attention to individual words, syntax, and the order in which sentences and ideas unfold as they are read" Wikipedia

Close reading of digital media pays attention to the components of the text and how they relate to each other. It analyzes and attempts to explain how possible meanings are built up according to the choices available in the digital text and what the texts present for reading. When you perform a close reading of a digital text look at the relationships that are present in the text, what values and hierarchies are represented, and the possible choices the texts makes available in responding to it.

The Text
I would like to begin by clarifying what is a text. Looy and Baetens return to the great poststucturalist theorists for gaining perspective of what is a text in the context of the digital,

"The passive reader becomes an active participant choosing his own path and assembling not just his own interpretation of the text (level of the signified), but also his own text (level of the signifier). Texts no longer have a beginning or an ending being a web of interlinked nodes or rhizome (Deleuze & Guattari through Landow 1997: 38)."

Going further along this road, "A text is a coherent set of symbols that transmits some kind of informative message" (Wikipedia).

Things to Read For
1.Authorship
Included in the concept of the digital text as social media is an enormous range of variables. They can be grounded in the fact that there is no single author in social media. Even a blog is a product of collaboration, from the design (consider if one downloads a template) to the comments section on each post. Some best blogs on the web are group projects, such as the HUMlab Blog, WFMU Beware of the Blog, and Grand Text Auto. The principle of many-to-many in social media has great implications for authorship. How textual components are transmitted and presented is in terms of "such modes as appropriation, synthesis, recombination, mutation and generation, postmodern poetics expresses a commitment to the dialogical, social world"(Joseph M. Conte, Unending Design: the Form of Postmodern Poetry).Similarly, in the Web-based communications, everyone is a potential author, contributor, and message creator . The concept of a traditional author (or a message creator) is deconstructed and replaced by a collective authorship. The individual as well as an organization cedes control over the communicative process. Attention should be paid to the material configuration of the media, as it is where form is adhered to. In his book, Code and Other Laws of Cyberspace, Lawrence Lessig argues that code displaces the balance in copyright law and doctrines such as fair use (135). If it becomes possible to license every aspect of use (by means of trusted systems created by code), then no aspect of use would have the protection of fair use (136). The importance of this side of the story is generally underestimated and, as the examples will show, very often, code is even (only) considered as an extra tool to fight against "unlimited copying".


2.Space
Digital texts are generally spatial. By this I mean they use the elements of space that are part of the media to transmit informative messages. Let take a look at Grand Text Auto



In considering space one should look for contrasts, colors, space between features, the size and possible areas of dominance, how the eye is drawn across the screen, how links are arranged, how time is represented in the page, and functional aspects such as ease of differentiation between permanent and temporal features.

Prezi is a good example of how time is presented in space:



How Prezi forces us to subscribe to its depiction of time is a result of the rules of its code. A hierarchy is created by the two dimensional arrangements of elements in Prezi presentations.

3.Repetition
The repetition of elements in a digital text which suggests responses that can be made to it. Janet H Murray writes it is devices for patterning language into units that make it easier for bards to memorize and recall" that "we in a literate era devalue as repetition, redundancy and cliché," but that make it possible for each performance to be improvised on the spot, so that they are essentially multiform, with "no single canonical version." Repetition of words, images, audio assists in guiding reading of digital texts.

A Reading of Facebook
Facebook is a horizontally arranged network based on association rather than interest (unlike Myspace). One builds connections with others in the viral sense; email is used to bring contacts into the system. By allowing Facebook access to email account (Hotmail, Gmail, Yahoo and AOL) mass mail-outs can be one way of building up you friends list and of course bringing contributing to the Facebook database. The other way of finding contacts is through work, school and college. I myself went to a tiny high school in a small town in rural Australia (Oakey State High…go the Bears!) so it is not on the list of schools (you can only choose, not type in). But the town I went to university in is well represented. Interestingly the private schools (as in non-government) seem to be much more represented in the lists of high schools. In Brisbane, the capital of my home state there are 13 High schools listed and only 3 of them are government schools that did not charge fees. I wonder if this reflects the overall demographic of Facebook or the use of digital social software in Queensland, Australia. There is also college and company searches but when you type in the title Facebook will not prompt the line for you as there are no prior entries in the database of the term.

Setting up a profile on Facebook is not too different from other social platforms. There is lots of plug-ins that can be loaded into a page; video, books I’ve read, photos, movies and the list is growing daily. There are issues of readability relevant in regards to a Facebook site. I myself believe minimalism works on the web, this is a design question but I try to keep my site fairly sharp and to the point. I decline lots of offers from friends for zombie clubs, vampire attacks and poking or biting my colleagues. I have decided it is an identity thing I have going on Facebook and not a game. I am also fully aware of what I disclose on Facebook as it is a public space, even if it does have something of a gated community feel to it. I don’t think the gated (restricted access, password protected etc.) is that substantial.

Once you have a profile on Facebook then you can join interest groups. These can be from the sublime to the ridiculous: “I bet I can find 1,000,000 people who dislike George Bush!” was a group I just noticed. I have just applied to be friends with digital researcher Anna Valdes (I have met her, I wonder if she remembers me?) in order to join her group Gender and Computer Games. The gender group is made up of serious academic researchers, game developers and players in Sweden. A worthwhile project I believe. The groups are what led me into the close reader of Facebook, as we need to create a group for our honored guests visiting Umeå for the annual awards ceremony. There are actually 3 stages we have to get through to create a group:

1. Joining Facebook
2. Becoming a friend with one central person who is organizing the group if it is not open.
3. Joining the group
Each of these stages has to be fulfilled if one is to be a member of the group. If it is a closed group only the administrator of the group can invite another;

You can join any open group on your networks. Also, you can join any “global” group that is open. These groups can be found using the Search page. Just type in a keyword for the group you want to find and specify that you are looking for “Groups.” Alternatively, you can browse by category from the Groups page. When you find the group you are looking for, click on the “join group” link on the right side of the screen. Some groups require administrative approval for you to join. If you try to join these groups, you will have to wait for an admin to let you in. Finally, there are some groups on Facebook that are invitation only. You cannot request to join these. Only an invitation from a group admin will give you access

So sometimes you have to make each member a friend before you can invite them to the group (tedious). If you send an invite to become a friend to someone who is not a member of Facebook they are asked in the same mail to join Facebook and become members of the group once they accept the invitation that appears in the Facebook Inbox.

All these considerations add up to becoming the texture of Facebook. The texture is the layers of text that have to be negotiated to engage with the site. Texture combines the collaborative aspects of Facebook (millions of authors creating content) with the structures and laws that come from those that created the Facebook platform. In essence with the efforts to create the annual awards group, I have been navigating the texture of Facebook in something akin to what Jerome McGann described in Radiant Textuality: Literature After the World Wide Web (2001) as a ‘Deformance’, the moving from non-normative readings of Facebook (I have no idea what I am doing and I make ‘mistakes’) to normative readings, where the texture becomes familiar and I create the group site that is suitable for the annual awards ceremony.

Excercises

I would like you to perform a close reading of a social media text. What you are actually paying attention to in critiquing the possible meanings of these texts is interaction design.

"Interaction design (IxD) is the study of devices with which a user can interact, in particular computer users. The practice typically centers around "embedding information technology into the ambient social complexities of the physical world."[1] It can also apply to other types of non-electronic products and services, and even organizations. Interaction design defines the behavior (the "interaction") of an artifact or system in response to its users. Malcolm McCullough has written, "As a consequence of pervasive computing, interaction design is poised to become one of the main liberal arts of the twenty-first century" Wikipedia

You can find some subject texts here:

Blogs
Wiki
Networks

As well as the usual social media sites you have been working with (i.e. Facebook, Twitter, MySpace etc.)