Julianna Yau’s blog

I wrote this on the train into Toronto yesterday morning:

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At the Technology in the Arts conference, Elsie Orenstein gave a presentation on copyright for artists and arts managers. Although I haven’t been engaged in the discussions on copyright reform for as long as some of my colleagues, I must admit that I was still shocked when Orenstein told the audience that she felt the current Copyright Act is inadequate for protecting copyright in the digital age.

This, of course, is a sore spot and point of contention for many. On the one hand, many of us recognize and lobby for the need for copyright reform. On the other, scores of lawsuits relating to copyright infringement in digital media are being filed based purely on current copyright law. Often, the very entities which preach about current copyright law being too lax are the ones who are also finding ways to abuse it.

I believe that some of the terminology in the Copyright Act needs to be changed so that it speaks more generally to concept than specific technologies. I also believe this type of revision is very different from what many envision when they speak of “modernizing” the language in the Copyright Act.

Because of how quickly technology and its use is changing, stripping the Act of technology-specific language is wholly important. Many of the key players in the music industry are now trying to determine whether p2p file sharing constitutes a “broadcast”, and those in the literary industries are doing the same with the concept of “publication”. Rather than probing the intent of this terminology, many find themselves in a labyrinth of legal and technical jargon as they try to retrofit the technologies and methods used online and in other digital media to the terminology being used by an archaic document.

For the most part, the core concepts behind the rights and remedies provided by the Copyright Act are sound. Consultation with the various creator groups and user/public interest/consumer groups needs to happen for us to better define and revisit some of the particularities of the rights.

With the dropping cost of production and distribution of creative works, the emergence of the User Generated Content movement can not be ignored in discussions of copyright. Not only has it made us more aware of the user rights which need to be protected, but it is changing the way we see the motivation for and value of creative works.

Although not entirely accurate, the current Copyright Act sees creative works as being the product of a limited number of people and having monetary value. This is no longer entirely true. More than ever before (or perhaps simply more visible than before), people are participating in the act of artistic creation. Not all of this activity, however, is being done for monetary gain. A hobby which used to be limited to the elite, who could afford the time and money for things like painting classes from a practised artisan, is now accessible to and being practised by hundreds of thousands of individuals. Not only that, but this new community of creators are able to publish their work to an expansive audience with little investment in time, commitment or money.

This poses a problem to the creators whose artistic practise is not merely driven by the desire to create, but so much that they need to find a way to sustain themselves financially based purely on their creative work.

So, now I’ll post the scary question which I have yet to hear others ask:

Does it still make sense for creators to attempt to make a living on their creative works?

For a pessimist, the situation looks quite dire. The concept of the starving artist is not new, and creators have always struggled with how they can generate enough income from their artistic practise to not need supplementary jobs and live above the poverty line. Now that competition for patrons is becoming more fierce (especially because much of this competition is making their creations available for free), it looks as though fewer people are willing to pay for an artistic experience.

But we certainly have no shortage of artists (even living ones) who are making more than a comfortable living from what they do. Whether they be performer, writer or visual artist, we have a fair number of superstars at the national, international and local level. Joining the ranks of superstars is a whole other challenge, exasperated not directly by technology being able to dilute an artist’s work, but by the infusion of a new class of creators producing work primarily for their own enjoyment.

We should look to copyright law as an extension of our understanding and agreement on the workings of the creative industry, not as a business model in and of itself.

Tags: art, business models, copyright, technology in the arts conference

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A while ago, others wrote about the conundrum of the concept of “intellectual property” (Cory Doctorow and Mike Masnick; Russell McOrmond has also been concerned about the use of the phrase as jargon for some time). Many of the lectures presented by the Centre for Innovation Law & Policy have also touched on the link between creativity and ownership of that creativity.

I’ve been mulling over these thoughts, and am trying to make some sense of why and whether physical output is fundamentally different from intellectual output. It is difficult to penetrate this because it suffers from similar philosophical challenges as the link between the mind and body.

Issues of copyright are seeming to develop more shades of grey in the differentiation between the ownership of a thing and the copying of an idea. Copyright law generally prevents ideas from receiving protection, but whether it’s a question of basketball, wanting to be someone’s boyfriend, toilet paper or other silliness, people are pushing the limits of what can be protected by copyright and what can be owned.

The problem is perhaps how easily ideas can now be stolen from creative persons to be made into the fortunes of the business-savvy. One of the recent examples of this is OLPC’s XO laptop, which is threatening to be another Atari 400 or Commodore 64. Although it would be difficult to successfully argue that the concept of an inexpensive and small portable computing device was “stolen” or “belonged” to the pioneers at OLPC, their literal inability to deliver the XO is suspected to be a factor in the departure of some of the major minds behind the project.

Of course, an idea on its own is almost completely useless. Whether it is political, philosophical, artistic, technological, musical or otherwise, an idea which never gets past the conceptual stage is little more than exercise for your brain. But how do we find a balance between rewarding the birth of new ideas and allowing people to stand on the shoulder of giants?

Tags: clip, copyright, cory doctorow, ip, mike masnick, olpc, philosophy, russell mcormond, xo laptop

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I’ve been catching up on some of my blog reading and thinking about copyright again. After a short break, it has become much more apparent that too many things have been incorrectly thrown under the umbrella of “copyright”, even at the legislative level. It seems that part of the reason why people use copyright to fight for creative control is that moral rights are a subset of the Copyright Act (at least in Canada).

In the next little, while, I’ll be doing some more thinking about the concept of Creator’s Rights, and some of the buzz around the concept of “intellectual property”.

Tags: Canada, copyright

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I have been very dissatisfied with the work I did in my previous post in my deconstruction of copyright, and thought this would be a good time to take a step back.

So, rather than another literal post, I decided to reorganize my thoughts in a mind map. This is something I have been intending to do, but wanted to wait until I had completed some preliminary thoughts on the structure of copyright.

This is my mapping of the Canadian Copyright Act.

And this is my mapping of how I’m starting to see the picture.

As a warning, the mind map of the Canadian Copyright Act is as messy as the Act itself. If you haven’t read the Act (or even if you have), you may benefit from the more compact, prosaic version.

Tags: Canada, copyright, mind map, verse

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So the holidays are over, everyone’s back to work and many are back to pouring their opinions, manifestos, recommendations and responses to copyright on the internet.

The Creators’ Copyright Coalition released their platform on copyright, and there were some immediate responses I noticed, plus a few more trickling in afterwards (on p2pNet, Canadian Magazines, plus the oodles of comments on the more active blogs, such as Michael Geist’s and John Degen’s).

To be honest, I usually stop reading the comments by about the third one, because everyone seems more interested in trying to be heard than trying to fix the problem. I wonder how many of us even have a good handle on what the problem is anymore.

It feels like everyone is working so hard at making sure they don’t get screwed somewhere down the line because they didn’t throw in their 2 cents (or more) that we’re collectively reacting and fortifying… and doing little else which is actually productive.

One of the horrible things about the internet is that shouting matches can go on indefinitely. On a well-moderated discussion forum (regardless of the technology used), these shouting matches can often be either tamed or extinguished altogether. From what I’ve seen, the shouting matches which take place in the blogosphere (both within comments of a blog post and between separate blogs) will go on until only one person had the endurance to have the last word.

I, too, have fallen victim to the mentality of “when attacked (or perceived to be attacked), retaliate”. But because I have little patience for conversations which lead nowhere (or in circles), I usually abandon those conversations quickly.

The internet has great potential for sparking and hosting discussion, but I fear it shall be a long time before the novelty of being our own publisher wears off and we finally take the time to do something productive with all of the discussion.

Tags: ccc, copyright, john degen, michael geist

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I realized today that I have not yet distilled Tamara Winikoff’s presentations from the Summit. When reviewing my notes, I realized that most of them were of the stats she provided of and from NAVA. While the stats highlighted the challenges they have overcome and those yet to be tackled, the stats themselves were not the thrust of the content.

The most important thing Tamara had to share was that they have only been able to accomplish as much as they have because NAVA, as “the peak body representing and advancing the professional interests of the Australian visual arts and craft sector”, works internally with the various parts of the visual arts community to reach consensus before taking it to the government and the broader public. It seems like such a simple concept, but I’ve often seen (within the arts community and elsewhere) people let sensationalism get the better of them. I continue to hope that the arts community can maintain the unity initiated by the Summit.

Another strategy NAVA has taken is to demand public/government inquiries into matters relating to the visual arts. Through this and other work done by NAVA itself, they have been able to put numbers to issues and be more effective in their influence on policy and program changes. Figures such as those presented by Hill Strategies will help strengthen our statements of what needs to be done and why.

NAVA has also produced The Code of Practice for the Australian Visual Arts and Craft Sector, which is a publication encompassing all aspects of the sector. This is obviously the result of much work, not merely in the writing of the document but the development of the code itself. I think it would be immensely valuable for the Canadian arts sector to develop a similar document. The exercise would be a useful point of reference but, more importantly, would allow us to work through the many issues which need to be settled so that we can have a better understanding of each other’s concerns and a resolution for our own.

Tags: art, nava, visual arts summit

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Yesterday, though one of the many mailing lists to which I’m subscribed, I received a call for submissions of a new graphic design for a band. The payoff? An “engraved/autographed iPod” from the band and the possibility of the design being used for the band’s merch.

I wondered to myself: is that really worth it?

CARCC’s fees for images used in merchandise is “15% of the retail price of the entire production run, payable in advance”. That’s a far cry from the cost of an iPod, even if it’s engraved or autographed, and even if the band was paying the suggested retail price for the iPod.

Then, of course, I had to ask myself: do these types of contests really any impacts to professional artists?

After some thought, I decided that they are probably likely to attract the same type of professional artist who would submit work to a contest with a submission/entry fee. Although it is entirely possible for the band to receive entries of a high calibre, they are also selecting against the many artists who are not willing to work in exchange for an iPod and some free publicity.

But are contests like these and Penguin’s cover contest a real threat to the group of artists who would have otherwise have been commissioned to create that work? Are these marketing gimmicks, or are people starting to test the waters for this being a more standard alternative to hiring artists to do that work? At this point, it’s difficult to tell…but this is definitely worth watching.

Tags: art, artist fees, contests, copyright

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Over the last few years I have gradually become more involved with the issues surrounding the need for copyright reform and have found the copyright-copyleft tug-of-war to be quite frustrating. This frustration stems not from an agreement being unreachable, but with the way we’ve been going about all of this. I am a nose-to-the-grindstone person who likes to get things done and move on. I have little patience or time for boisterous debates for the enjoyment of the debate or for open catfights and nitpicking over irrelevant matters.

So, from that perspective, here are some thoughts I would like to throw out to my fellow creators and copyfighters:

1. Not all creative media are the same.
   music ≠ software ≠ visual art ≠ literature ≠ movies ≠ new media
   Their methods of creation and dissemination are not the same. Their audience and use are not the same. Their value is not based on the same factors. Therefore, the same rules can not always be applied to them. Each must be analysed separately, while keeping in mind the knowledge of the others.
2. Involve all creators in the move towards copyright reform.
   This is a call not only to legislators but to the proponents of the copyleft movement. Creators are necessarily open-minded, but no one likes to have things taken from them and to be told that it’s for the best. Give your fellow creators the tools and knowledge necessary to understand the issues and make the leap themselves.
3. Just because we don’t completely agree on everything doesn’t mean we completely disagree on everything.
   This would seem quite obvious, but not everyone (on either side) seems to go into discussions with this perspective. Let’s find the common ground and work from there.
4. Don’t muddle the line between private/non-profit creative reuse and public/for-profit creative reuse.
   This is a call to both sides of the copyfight. In most cases, there is agreement that there should be fair use/user rights for private and/or non-profit creative reuse of works. The main issue seems to be finding the line in the sand where it moves from private/non-profit to public/for-profit—and this line may never be completely clear. But lets stop using the extreme examples for our arguments and try to wade through that messy grey area.
5. Indirect criticism without education is not constructive.
   Whatever happened to contacting another party directly if you disagree with them? Yes, blogs and similar tools are great for reaching many people and having open discussions. I have found, however, that there is still great value in one-on-one discussions (and sometimes, gasp!, in-person) with people—often this direct contact flushes out the fact that we agree on more than we thought we did.
6. Money isn’t everything, but we all have to eat.
   ’nuff said. Let’s find a healthy balance between no money because we’re giving away everything and overprotecting everything because we want more money. I don’t think anyone any creator actually wants either of those scenarios, anyway. If there are other ways to generate revenue, let’s include those ideas in discussions on copyright so that those of us who are used to the traditional copyright model are more comfortable with a newer model.

Thoughts?

Tags: copyleft, copyright, open letters

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