(Guest Post) Don’t You Forget About Me: Remix Creativity the Forgotten Victim of s92A

Guest post from Alaister Moughan about Remix and Creativity

They say the first casualty of war is innocence. In the ‘war’ against piracy the innocent casualties could be the young, and their capacity to express themselves.

During my primary school days life was much less exciting than it is today. I can remember making collages at school, cutting out magazine and newspaper excerpts to make a five minute masterpiece of pastiche genius.

The most memorable piece I created was a scrap book, which combined pictures and headlines from the local paper with my favourite cricket magazine. The creation itself had no real artistic merit, but what it gave me was an opportunity to express my hero worship and passion in an eye-catching jumble of paper and paste.

Technically such collage may be considered illegal under copyright law. When I (literally) copied and pasted the different excerpts, I created a new work. Regardless of my creative efforts I had still copied part of someone’s copyrighted work in creating that work. Whether the amount I copied was “substantial” enough to amount to infringement is a complex question of common law; however, it is not out of the question that this would be deemed copyright infringement by a hypothetical court following common law precedent.

So why aren’t there queues of handcuffed young magazine collage pirates, dressed up in newspaper hats outside your local primary school? The answer is simply one of enforcement. The owners of the copyrighted works of the ‘Hawke’s Bay Today’ and ‘The Cricketer’ would, even if they knew about my collage, hardly be concerned enough to lodge legal action against my scrapbook. Presumably this is because my scrap book has no economic value, and represents no threat to the sales of their respective publications. Unless either publishers had onsite undercover primary school cops, they would have never been aware of my potentially infringing creation.

With section 92A Copyright Infringement (File Sharing) Amendment Bill (hereafter “s 92A”) some things remain the same. Typically a digital remix or mash-up collage would seldom compete with the underlying product. However, critically the copyright owners now have the ability to discover these works as they are uploaded on publicly available websites (e.g YouTube) and more importantly with a simple notice and takedown procedure, they have a very effective mechanism to challenge and remove from the public such creative works.

Crucially the copyright owner is not required to specify the legal merits of his or her claim to a level of common law standard of proof before issuing any notice. This ignores the grey area of determining whether an item has copied a ‘substantial’ amount of an existing work, which is usually the subject of significant legal debate, to a darker black and white line, requiring the notice to be challenged before any such debate can ensue.

It also ignores the fact that in traditional copyright litigation there are numerous legal obstacles that need to be proved, including ownership and that the work is capable of being subject to copyright protection, before the tortuous issue of infringement is even considered. As Chris Wood has noted (citing Judge David Harvey) “30 per cent of copyright litigation fails due to a failure to prove ownership of copyright, or due to the copyright in question not being governed by New Zealand law.”

The amendment gives the term “file sharing” such wide scope that it covers everything from torrent sites to Youtube and blogging websites. It takes a one size fits all approach, to the almost infinite degrees of copying occurs on the internet. Therefore the same approach is taken for a case of a complete copy of a album as would be taken for selecting 20 seconds of a work to mash-up with another work, uploading onto a Youtube a cover of our favourite song or even having 20 seconds of your favourite Prince song playing in the background of a home video.

The problem of a notice and takedown enforcement regime and re-creative works has mainly been ignored by both sides of the s 92A debate. “Re-creative” works are works which use existing parts of other media content to create something new. They are commonly known these days as either a ‘remix’ or a ‘mash-up’.

The media attention surrounding the Bill has primarily focused on the divide between those for and those against Internet piracy. You are either for artists being able to earn a sufficient reward for their artistic pursuits (and rewarding the record labels for investing in the risky entertainment industry) or against, considering that the business model of the large music label is outdated, unfair, and on track for extinction. This article puts these important but well-trodden issues to the side, and focuses instead on the neglected effects the amendment could have on amateur and remix creativity.

I make two main points. First, the amendment is premised on the assumption of passive consumption of media content, a hangover from the era of the CD. Secondly, although most remix work appears trivial, this growing form of expression is more important to both sides of the debate than it first appears. Overall, the ‘presumption of guilt’ quality of the enforcement regime has a very real possibility of harming and discouraging this otherwise innocent and positive social conduct.

For the sake of clarification the Copyright Infringement (File Sharing) Bill does not make file sharing illegal. Straightforward online ‘piracy ‘in terms of taking entire copies of musical or film works is already illegal under copyright law. What the Bill does is introduce an enforcement regime to allow these laws to be imposed.

My issue with s 92A is that it appears to create a digital enforcement regime that is premised upon the ideal of the passive consumer. There is an implicit assumption in the Bill that the music and film industry is still running on the business model of the CD and DVD. For example in the music industry, the logic appears to be that mp3 files available illegally for free online are destroying the demand for CDs, and crippling the industry’s ability to earn any money.

While this argument has intuitive force, what is being ignored is the fact that in the era of the CD, music as a product had only one use – simply to be listened to. But for digital content the consumers now have many more options.

With everyday technology consumers can now create something new out of an mp3: a remix, a mash-up or even a parody. Importantly it’s not just linked strictly to music content.

For example, take the recent television interviews of Charlie Sheen, which have been remixed by others by adding music and editing excerpts of the interview in different sequences to create amusing new creations.

Modern technology now allows consumers to interact and transform music and film content. This active rather than passive interaction means that defining something presumptively as illegal and correspondingly as a form of socially unacceptable copying based on the fact that it harms the copyright owner’s ability to earn a reasonable reward for their creative effects is not so obviously justified.

Rather, remix creativity can be viewed as a new type of use of a media product, rather than a competing ‘copy.’ It is this distinction between using a work, and acquiring an unauthorised ‘copy’ which needs more attention. This is an area which large media producers should be embracing rather than fearing.

In the era of the CD a remix would typically be more of a competing product. For people to hear the remix it would have to be distributed, presumably by mass CD distribution. Usually the remixes would be a very similar product offering to the original or be a product that gained market attention because of its association with the original. The commercial distribution of the items would further enhance their potentially damaging effects for the original copyright owners of the works.

However, in the digital era the distribution is typically amateur. A typical remix is distributed online via a third party medium such as YouTube, rather than being distributed in this mass-product sense.

On to my second point: on the importance of remix creativity. Digital remixes are usually a reaction to the media saturated environment of the internet. For example, the recent Charlie Sheen interview outbursts have been so well documented and reported, that people captured by the absurdity have responded with their own humorous takes on Mr Sheen’s current state of mind.

But before they could create, the creator would have at least been aware of the interviews. Their remixes do not appear to represent a viable substitute for watching the entire interview, but rather they are a tribute or a reaction to the public who passively watch the story getting bigger and bigger.

Even straightforward musical remixes or parodies are arguably less of a threat to the purses of authors and record companies in the digital age. Typically YouTube remixes and parodies are amateur rather than professional in nature, again based on the medium of distribution. The CD era was different; consider the professional parodists of the CD era such as Weird Al Yankovich. Most musical remixes and parodies these days are a reaction to an initial consumption of a media product, rather than a substitute.

The popularity of the remix can transform it from an amateur tribute, to something of commercial value which arguably is ‘riding on the coattails’ of the original; but the majority of remixes, just like the majority of picture and text collages, do not represent a viable threat.

As with my cricket collage, the benefits of most of this creativity is the ability to recreate and react to the media. Rather than the work being of much merit itself, it is the ability to express which is important.

In brief, digital remix creativity is important as it represents a way to react to the mass media that we are constantly subject to in the digital age, while also providing a great learning tool. As Lawrence Lessig, a leading American copyright academic states, “the skills came from experiencing the making of a film, not from reading a book about it. One learns to write by writing and then reflecting upon what one has written. One learn to write with images by making them and then reflecting upon what one has created.”

Whether the remix is a competing product, or infringement on the economic rights of the copyright owner (i.e. the “riding on the coattails” argument) is hotly contested, and it is not a debate that I aim to resolve in a mere few paragraphs. Yet for the digital age providing protection for amateur remixes, which like my childish collage provide no real threat to authors, is crucially important to the people seeking protection under s92A.

The film and music industries’ strategy of suing their client base for copyright infringement is already causing much friction, as can be evidenced by the growing number of people supporting file sharing.

Additionally the softer approach of ‘education’ is unlikely to be of any persuasion when the law is being enforced in areas which everyone can see is pointless.

For any file sharing laws to be publicly acceptable they must been seen as sensible. If notice and takedown notices are to be lodged against amateur and childish creations then this law will be regarded by many with contempt, no matter how many “you wouldn’t steal a car” ads are screened.

The obvious response to these concerns is to take a common sense attitude. Surely no copyright owner would even bother to lodge infringement notices against such amateur creations. However, history suggests from looking at the American experience of a similar enforcement regime that amateur works face takedown notices which are often issued via automatic scanning software.

One Judge in the United Kingdom deemed the issue of one takedown notice as “extortion via legal process.” A pivotal example is the Lenz case. In this case a notice and takedown notice was lodged against Stephanie Lenz who uploaded a 30 second shaky amateur home video of her toddler dancing to the Prince’s ‘Let’s Go Crazy.’ See the video here.

Lenz was not perturbed by her vast legal opponent, and successfully challenged the notice, with the video eventually being put back up on YouTube. Rather than creating any substantial legal doctrine of copyright law, the case demonstrated the public’s disdain and concern of the reckless pursuit of copyright infringement rights.

How can file sharing regulation gain any respect when it is enforced against these socially innocent, negligible instances of copying? What the Lenz case illustrates that these laws are often enforced without thinking, and when this is done the law in this area loses legitimacy.

Therefore for any increased enforcement, the outdated state of copyright law (still stuck in the CD or picture collage era, where such works would never been within the reach of copyright law) needs to be modified. If any comprehensive enforcement regime is to be granted, what must also accompany it is a reform to copyright law.

While the issue of remix creativity may have been neglected in New Zealand, in Canada it has received specific Parliamentary attention. There is currently a copyright Bill in Canada which proposes that non-commercial remixes should be exempt from copyright infringement law. The relevant part of the bill is reproduced below:

Section 29.21

(1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual or, with the individual’s authorization, a member of their household to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if:

(a) the use of, or the authorization to disseminate, the new work or other subject matter is done solely for non-commercial purposes;

(b) the source and, if given in the source, the name of the author, performer, maker or broadcaster of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and

(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

This reform is something which really needs to be considered in New Zealand. It represents positive copyright regulation that recognises that in the digital world, determining what is and what is not ‘copyright piracy’ is difficult. Such reform has the potential to help to distinguish between economically harmful and beneficial remixing.

It also creates room for an important trade-off between the interests of the consuming public and those of copyright owners. In trying to protect themselves with greater enforcement powers, the music and film industries are interfering in the use of their products by their customer base. If copyright authors are going to get extensive enforcement powers to combat file sharing, it should be acknowledged that the scope of what is being looked at in terms of copyright infringement is greatly increased.

The introduction of a non-commercial remix fair dealing provision would create a legal defence to any claims of infringement. It has been argued that any exemption would need to be accompanied with a presumption in favour of the re-mixer in terms of the substantial adverse effect, given that any substantial effect would be more appropriately proven by the typically financially larger, and more knowledgeable copyright owner (or the lawyers thereof). These proposals need further discourse with s92A due to come into force.

The real issue with s 92A and remix creativity is that with the urgency behind it these issues have been completely ignored. While it may be too late to stop people engaging in illegal file sharing, this is no reason to discourage them from using modern empowering digital creations to more actively engage with modern media content.

The modern day children’s collage may become effectively illegal. As s 92A notices can be issued without proof, theses creations could presumptively be deemed copyright infringement.

When the law reaches such a stage it signals that it is time to consider whether such creativity, given the technology and mass media culture is something that SHOULD be illegal in the first place.

While the debate may rage between whether the typically young generations engaging in straightforward file sharing are as morally bankrupt as Sounds Records stores and whether they should face the full force of copyright law, we continue to ignore the beneficial aspects of digital technologies which have fundamentally changed the way in which media can be experienced and enjoyed.

Urgency and ‘Simple-Minded’ views on copyright and digital media that view copyright as concerning only the economic ‘property ‘of copyright owners, blinds the law from representing the interests of consumers, and benefiting from the creative advances made possible by digital technology.

Section 92A represents an incredibly significant extension to the enforceability of copyright; however, lawmakers are ignoring the fact that the copyright laws they are extending, and giving greater force to, are horrifically out of date.

The lawmakers ( who according to recent revelations have been heavily influenced by the United States government and entertainment industry lobbyists) are trying to drag the media industry back into the paradigm of the passive consumer. In doing so they are ignoring the existence of new active consumers, and creating serious public opposition.

This younger more active consumer base could use the words of hit song from the heyday of the passive consuming culture to express their views on the appropriate scope of copyright in the modern age; don’t you forget about me!

Alaister Moughan, Law Clerk, Burke Melrose

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