Battle lines are drawn, or so it seems, with a gulf opening up between creators and consumers on the future of copyright. No one can deny the extent to which the web has disrupted business models based on copyright. Legislation needs review it may well get it, but I fear that the gulf will be too great to generate a healthy and sustainable result. At its core are arguments between producers and upholders of copyright, and the new digital advocates for consumers and creators who see copyright as a barrier to innovations and creativity. I won’t make claim to any answers, but a few points come up again and again. This post doesn’t advance a comprehensive argument; it notes a few thoughts I have on the issues. They may be misguided or not well-enough informed. Comments are very welcome.
Assume these things
Creators have a right to make a living. We all need to acknowledge that.
Creators currently rely on producers. That may or may not change, depending on the creator. Some will be capable of producing a polished and desirable product that consumers want. Others will still require and benefit hugely from the services or professional editors, designers, and other production staff.
Producers needs to make a living too. They add value and need recompense for that effort and added value.
Innovation and creativity relies on sampling and re-using existing material. We stand on the shoulder of giants and all that comes before us. Fair use generally makes that possible and fundamentally copyright holders don’t get in the way of legitimate creativity and new works.
Some jurisdictions are going too far in new copyright protections. Think Disney and Mickey Mouse, Happy Birthday, and the like. It’s creating a barrier to creativity based on those common items of popular culture.
Distribution rights may be based on copyrights but they’re not the same thing.
If it’s broke, fix it
Where consumers bemoan not being able to buy Game of Thrones in New Zealand as soon as it screens in the US, that’s not about copyright; it’s about distribution. More than that, it’s about producers not responding to global demand and instead trying to maximize profits on a territory basis.
Conversely, producers who use the moral argument of protecting creators through copyright to justify maintaining the current territory based distribution right model are just not facing up to a broken business model that the web will not allow to survive.
When producers cry foul about copyright infringement, whose rights are they most concerned about? Often the argument is made on behalf of creators (think of the poor starving writer), when in fact producers have already captured the commercial rights of individual works. For a particular piece of work, producers can only really be concerned about their commercial rights in the product, short of the typically small sum passed onto creators by way of royalties.
But there’s a systemic justification: if the producer makes money off one product they can invest in subsequent products, which may in turn support creators and foster further creativity. Undermine the ability for producers to add value and derive an income destabilizes that system.
Where it gets interesting is in, for example, the recently announced withdrawal of the editorial offices of the likes of publishers Hachette and Pearson from New Zealand. As noted here, copyright and (what I think is a broken distribution system based on unenforceable) territorial rights played a part in Hachette’s departure. (As an aside I’d also argue against GST full stop, but that’s a different post.)
The irony here is that part of the problem is parallel importing – the practice where something can be imported into a territory (say, New Zealand) by someone despite someone else owning the right to distribute that product in that territory. But that parallel importing is being made possible by the multinational owners of the local publisher. The multinational is in effect putting its own subsidiary out of business.
That aside, and whatever the reason for multinationals closing their local offices, it means there are now fewer publishing channels available for New Zealand writers, particularly those wanting an entree to an international market via multinational publishers. It breaks part of the system that supports local writers.
That’s a very real problem that producers are struggling with; others need to help, and creators need to understand how serious a problem it is. Undermining copyright won’t address that problem; nor will extending or enhancing it. Perhaps we need to forget copyright and focus on finding a new business model that doesn’t rely on territory based distribution but still creates enough wealth to support creators and producers is the critical issue.
What I really enjoy about what they’re saying and writing is a recognition of the power of digital and the enduring yet changing quality of physical. It’s an awareness that’s growing in another world I’m interested in too, publishing.
In the library, we’ve discovered that print has become a privileged medium whose allure seems to grow greater as books recede from the everyday sphere. So while the world enacts the end of print and the onset of bit-based book simulations, it simultaneously celebrates print as a special kind of experience. (Megan Shaw Prelinger in ‘The Library as a Map’.)
That special experience has taken generations to evolve but it feels like it’s only recently that digital designers and producers have recognized it and started using its lessons on the visual web. Small type and tight layout are gone in favor of large easy-reading faces, generous leading, white space and margins, resembling more and more a printed page.
Edges and canons
I’ve come across a couple of other overlapping ideas from print recently thanks to Craig Mod and Aaron Straup Cope. Craig Mod talks about the ‘edges’ that a book provides a reader; it’s contained, you know where you are in it and your place’s relationship to the beginning and end.
Not dissimilarly, Aaron Straup Cope in conversation during last year’s NDF talked about the ‘canon’ in the Western canon sense: “denotes a body of books and, more broadly, music and art that have been the most important and influential in shaping Western culture. As such, it includes the ‘greatest works of artistic merit.’”
Physicality is central to creating a canon: it’s constrained, by a book that can only fit the names of so many great writers, musicians and artists, to a library that can only fit so many great and canonical works. In effect it’s the edges that define the canon.
In a digital world then we experience the freedom to move beyond the canon but perhaps also lose the boundaries that give structure and process to reading and thinking.
Commerce and crowds
Back to summer, and the Summer 2012 issue of New Zealand Books (vol. 22, no. 4, issue 100) featured four comment pieces about digital publishing. It felt like a good number for a country that hasn’t yet embraced ebooks to the extent in the US. Not all were in favour; Guy Somerset and Jenny Nicholls were unimpressed. But Julia Marshall from Gecko Press and epublisher Penelope Todd were more pragmatic, positive even.
Gecko Press produce beautiful books, artefacts, but Marshall believes digital is capable of producing artefacts, at least in the made-by-hand sense: “we are aiming for simple but elegant productions – the same aims as with our printed books.” (‘Matters of form’.)
Penelope Todd, in ‘What we make of it’, picks up on the artefact too, comparing physical and digital books to cars and horses: “Perhaps the ebook will prove to be the motorcar of the future – freeing the book to become the horse, a coveted object of beauty…”. But it’s her suggestion that digital is a proving ground for new publishing that’s interesting:
I see digital publishing as an ongoing experiment that nonetheless offers a viable life for an author’s work. I can also be seen as a holding or testing pen for the growing body of good writing deemed too financially risky to publish in hard copy. Work that makes its mark in e-book format should be the very work that publishers turn into finely produced hard copy… with lasting value conferred on works that make it into covers.
She’s suggesting, effectively, that commerce and sales generate one of the most accurate pictures of what’s popular – it’s what the crowd will pay for. By taking what the crowd wants and turning it from digital to physical, will we then see a new crowd-sourced canon?
It’s thinking like that though that gives me some hope for publishing, some hope that publishers are seeing ways of using a new digital ecosystem to continue producing beautiful books, physical and digital. It’s a sign of digital learning from physical and physical learning from digital.
Rights and wrongs
Both of my sons are devoted DVD watchers. Broadcast TV is pretty much off their radar. It always amuses me to watch my two-year-old stare blankly at the screen as the copyright notices at the start of his DVDs roll slowly by. Clearly he’s not reading it; neither am I.
Meanwhile, my seven-year-old recently discovered the joy of Gangnam Style thanks to this rendition by Pocoyo.
It’s not a world that gives many publishers much comfort. The Publishers Association (NZ) put out a news release in December that argued strongly for maintaining the status quo around all rights issues. There are a lot of arguments contained in that short piece, and as it summarizes various talks by Auckland University Press’s Sam Elworthy, it’s hard to gauge the balance in the original talks. But what it does argue for is the continuation of rules and processes that were established in a pre-digital age to protect works in what is now a very digital age.
Elworthy makes a lot of fair points. Selling rights into different territories, for example, makes sense for taking advantage of local knowledge, and yes, a work like the Princeton Companion to Mathematics takes years and a huge investment for a publisher to produce. Similarly, he notes that in producing a 1200 page anthology of New Zealand literature, he couldn’t find many authors willing to share their content for free.
But how much sense do territorial rights make when you consider that digital has no edges and knows no territories? Perhaps a tome-like companion is no longer the right medium for popularizing and informing people about mathematics, when much of the research is probably largely publicly funded in any case. And isn’t it to be expected that a publisher will never find people willing to share their content for free in a project that’s clearly commercial? What this really makes me wonder is whether the business model needs protecting or if it’s just too busted to bother? Do publishers risk becoming obsolete if they stick with existing business models?
We’ve all heard it before: there’s a fundamental change underway, a paradigm shift. We know this don’t we? Or do we? Rick Prelinger in ‘Preexisitng Material’ is especially concerned that traditional archives don’t:
If archives don’t open their doors, and if they don’t find ways to act like cultural producers and push their holdings out to the public for people to experience and work with, they face a very uncertain future. In fact, they face obsolescence.
Younger people, who form the vast majority of mediamakers, have already given up on legacy archives. They know they can’t get material from old-school repositories, and have routed around them. They’ll get sounds and images from filesharing sites and YouTube, regardless of who thinks they own them. Do copyright maximalists really think they’re going to retrain an entire generation to ask permission?
Archives and publishers are facing surprisingly similar challenges; they’re both facing obsolescence if they don’t recognize changes that are being driven by a generation of expectation.
I’m not offering answers for either archivists or publishers; I can’t begin to say I have a full understanding of either’s position. I’m not an archivist, and while I’ve worked for commercial publishers in the past, I don’t any longer. I probably occupy an uneasy space between the two of them, working as I do for a digital publisher that draws heavily on archives and other cultural collections but that is part of a government department and so avoids the financial pressures of a commercial publisher.
But it’s not hard to see the changes that will affect them both. Changes in a world that sees copying and re-using, being global and being immediate as normal and right. Neither archives nor publishers can expect to retrain those growing up in this world or undo the expectations that are shaping it. What they have to do is find the models that will sustain them into the future.
I’m not sure where I’m going with this post, I’ll be honest. Fair to say that I’ve ventured into heavier academic territory than I’m used to thanks to a tweet from Anne Galloway:
“Openness, it seems, is beyond disagreement and beyond scrutiny.” Or is it? A critique of open politics: http://t.co/mLQELMlj (via @TOMM7)
Before I get to that, I’ll come clean: I believe whole-heatedly in the value of openness. I’m not entirely clear what that means in the day-to-day politics of life, but for work in the online cultural world, it means at least aiming to share content and data, build systems to do it better, and encourage people to use and remix our material.
A post from Timothy Vollmer, Library catalog metadata: Open licensing or public domain?, over on the Creative Commons blog, is effusive in its praise of being not just open but as open as possible in sharing your data. In reviewing OCLC’s recent recommendation that its members adopt the Open Data Commons Attribution license (ODC-BY) when they share their library catalog data online, he argues – with good reason – that ODC’s attribution (BY) requirement is too restrictive in an open data environment:
There are good reasons for relying on community norms for metadata attribution instead of requiring it as a condition of a licensing agreement. The requirement to provide attribution through a contract like ODC-BY is not well-suited to a world where data are combined and remixed from multiple sources and under a variety of licenses and other use restrictions.
He concludes by noting that cultural institutions (including The British Library, Europeana, the University of Michigan Library, and Harvard) have adopted a completely non-restrictive licence, the CC0 Public Domain Dedication, for publishing their catalog data online, with those institutions making no more than a polite request that users credit them.
From this, we see that a truly normative approach for the library community would be a public domain dedication such as CC0, coupled with requests to provide attribution to the source (e.g. OCLC) to the extent possible. Such an approach would maximize experimentation and innovation with the cataloging data, in keeping with the mission and values of the library community…
That’s all good then, but keep that innovation idea in the back of your mind.
Back to that tweet, and the article by Nathaniel Tkacz, “From open source to open government” (ephemera 12(4): 386-405; pdf). It draws heavily on an analysis of ideas in Karl Popper’s The Open Society – not something I’ve read but I can follow along ok. In it, open is defined, Tkacz argues, through what it isn’t – in the political sphere it’s democracy as against tyranny. Tkacz wonders what open can now mean politically in a world that’s fundamentally democratic and therefore already open.
In short, Popper’s argument against totalitarian knowledge – replicated faithfully by his close friend and intellectual ally Hayek to defend free markets and private property over centralised planning – is compatible with and even constitutive of neo-liberal capitalism. And it is these same forms of closure that the second coming of openness, together with its new set of conceptual allies, tries to address. But what to make of this second coming? (p.403)
Tkacz cites Google’s claim for openness, a claim based on the commerce that openness sustains. He quotes Jonathan Rosenberg, Senior Vice President of Product Management at Google, from a 2009 post “The meaning of open” (no link available) on Google’s Public Policy Blog:
In an open system, a competitive advantage doesn’t derive from locking in customers, but rather from understanding the fast-moving system better than anyone else and using that knowledge to generate better, more innovative products.
This is survival of the fittest talk; energetic agency will win out and enterprise will come to the fore.
So what about open culture, or the cultural commons. Is openness similarly defined by what it isn’t in the cultural online world? Probably; it isn’t dark webs, closed agreements, unlinked data, or copyright protection. It isn’t unreasonable access charges or reproduction costs. It isn’t restrictive re-use clauses. But if those are the things we’re trying to break down to create a future cultural world of open data, access and content, what’s left for openness as an idea when we get there? Will we find ourselves battling with our own form of cultural closures?
When all the content’s open and shareable, and commerce has feasted on our taonga, how open will the results be? At that point will we realise we’ve created a world for the technical and creative elite that excludes others? Are we just oiling another industry that will be as self-serving as those that have come before? Or can we trust them (who?) to build and create an open world that includes all of us?
I hope it’ll be the latter, and believe it’ll probably end up a bit of both, but as the people who can make this happen it’s on us to be aware and mindful of how our taonga serve our communities in the future. This final quote from Tkacz, and its final words in particular, are a good way to end:
Rather than using the open to look forward, there is a need to look more closely at the specific projects that operate under its name – at their details, emergent relations, consistencies, modes of organising and stabilising, points of difference, and forms of exclusion and inclusion. (p.404)
…an event designed for the viewers, built around a physical contest between two opposing sides. It made me realise that ‘spectacle’ does not have to be a dirty word. It can mean an event or experience that is carefully crafted to evoke a reaction. That reaction does not have to be dictated, but the expectation is that the viewer or participant will be aware that they are in a moment. ‘Spectacle’ in this sense means memorable, meaningful, moving.
If you went to the National Digital Forum last week you’d have had to sleep pretty deeply to miss the discussion on copyright, or more generally, rights in the online world. Whose rights matter most seemed to depend on what side of the fence you happen to sit (and there didn’t seem to be many with a foot on both sides). Was it a generational shift we noticed? Probably, but more worrying was a lack of ambition to understand what was happening on the other side.
It might have helped both sides to think more about how people are likely to use content and how many of the norms of academic attribution will persist. George Oates, in her presentation on Flickr Commons, demonstrated this aptly: in telling us how she identified a photo of the Hagia Sofia she clearly identified and acknowledged each source in the trail of her research. She knew her audience and used the right tools to give us confidence and comfort in her analysis.
Where norms of attribution persist, it’s precisely because the creator of a work or an idea and the person who re-uses it are talking to the same audience. Making content available for re-using is just helping more of that traditional academic conversation happen.
Where the norms don’t persist, it may not matter: maybe the content is being re-used to talk to an audience with which the academic tradition isn’t – or hasn’t been – interested. That the idea has spread is something the academic community should be interested in, regardless of how it’s been attributed. At some point down the line someone will make the connection between Work A and its unattributed derivatives, and close the loop by putting the creator of the derivative onto the creator of Work A.
It’s a simple conversation to imagine: “Hey, that idea you’re playing with? It’s a lot like what so-and-so talks about in her book such-and-such. Go read it.”
Ideas spread, but never so far that you can’t tell whose they are.