Friday 3:34pm (10th July 2009)
Copyright vs. Free Speech and The Smacking Referendum..[upload]shoulda2-thumb.jpg[/upload] In our previous story about Should-A.com's parody of the referendum question we prophetically said "The United States has parody and satire protection, but New Zealand doesn't [...] I can't imagine the Electoral Office taking action over this but it's worth remembering that free speech involving remix can be effectively censored through legal enforcement of copyright and trademarks." ...unfortunately our imagination wasn't good enough and the Electoral Enrolment Centre have sent a copyright infringement / takedown notice to Should-A.com about misuse of the "orange elector character". More inside....
The creator of should-a.com, Dylan Reeve, says
I started the site as a way to critisise, even ridicule, a political process that I think has been rendered meaningless by a leading and poorly-formed question. While I personally don't agree with the opinion of the referendum's initiators I don't have a problem with the process, but the way they've carried it out makes a mockery of it.
The Electoral Enrolment Centre are likely concerned about the public being confused about whether it's an official site and therefore interested in protecting their brand and public integrity in the democratic process.
Commentary about the referendum question has been widespread with most reaching the conclusion that the referendum results can't be clearly interpreted. A voter could be for or against the question but that doesn't necessarily mean they've got the same opinion about the law as it stands. As reported Citizen Initiated Referendums have a history of bias or imprecise wording. The should-a.com website has been used by people to talk about tax wastage, french rugby players, the cost of education, international relations, thoughtful orange men, and basic principles of humour.
While Should-A.com is political speech it also remixes copyrighted material without permission. In some cases copyright or trademark infringement may involve quoting other material (text, images, video) and in the United States they recognise this as a protected Fair Use for commentary such as parody and satire. In New Zealand, however, we have no such protection.
The http://should-a.com/ site is non-commercial and it always displayed the text "This site is intended for the purposes of amusement. Any and all trademarks remain the property of their owners." however this clarification doesn't seem to comply with the Election website licensing terms which are described as
You are free to use, store, copy and reproduce Crown Copyright content from this website for non-commercial purposes as long as you acknowledge this website as the source and include the document URL and its "last updated" date in your citation.
[...]
No commercial use may be made of the contents of this website without the written permission of the authoring electoral agency.
To make matters more complex that is just one interpretation of Crown Copyright and there are others. Crown Copyright in New Zealand is based on archaic legalese that lawyers regularly argue over. Because of this uncertainty around Crown Copyright there have been recent moves within government to consider migrating content to the public domain or a Creative Commons Public Domain license.
Could should-a.com have done it without remixing the imagery of the referendum? Sure, but that's not as effective a method of communication as turning the media message against itself.
Dylan Reeve says it's a difficult decision,
At this stage it's an awkward situation for me - because I actually really want to support the referendum process... I want as many people as possible to take part, and to really move beyond the emotive question and look at the facts of the issue. Early on when I'd thought about this I'd actually considered approaching Elections NZ and offering to display a banner for enrolment, but wrote it off.
So, where does this leave Should-A.com and the people using it to express themselves through remix of copyrighted Electoral Enrolment Centre material? In a legal quagmire of outdated Crown Copyright, Bill of Rights issues competing with copying rights, and the natural desire for the Electoral Enrolment Centre to ensure that the public aren't confused around what's official and what's not.
Ugh.
Update (July 13 2009): Public Address.net talk about the infringement notice.
Political sites The Standard.org.nz and Whale Oil talk about the website.
