Sunday, February 7, 2010

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.)

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.

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