It may surprise some to know…

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It may surprise some to know that I agree with the findings of a recent Australian Digital Alliance report about loosening of copyright restrictions being economically beneficial (EFF coverage here). The rest of you would be surprised if I didn’t.

Let me explain a bit further. This past week I found that a piece of work I’d created for use on a t-shirt — now you may all be collectively surprised that I also draw and paint — had spawned another t-shirt for sale which was either a direct rip-off or a parody. I was leaning towards the former given that a) parody is such a squishy area in copyright law and b) it just seemed, to me, to be a mimic of my design and not mocking the design. It did have a contrary slogan on it, but just that wasn’t enough to convince me that it wasn’t just riding the coattails of my original work.

So I had to decide whether to just let it go or to contact the site selling the shirt. I went back and forth for a couple of days and then finally decided that I didn’t want to risk it getting out of hand and having no firm ground to stand on if I needed to challenge it (i.e. – I knew about it, why didn’t I do something previously?) later. By this I mean that I knew it was attached to a small mudslinging war going on in a particular community and who knows where it would lead; What if they sold a gajillion of those shirts? So I felt I had to at least contact the vendor and let them know I had concerns about it.

The site replied saying they were reviewing the design as not only is there a question of fair use, there’s the site’s own terms of service. They asked if they could send my contact information to the seller, in the hope that we might work it out amongst ourselves, and I said yes.

The seller went a bit nuts.

In fairness, I have to tell you he went nuts because he thought it was his ‘enemy’ that was doing this (the shirt featured one of said enemies) and confused this with an actual DMCA take-down notice and/or copyright suit. Of course, those things have specific steps and requirements and initiate the involvement of the courts. I had merely emailed the vendor with my concerns and asked them to review the allegation. He posted a Youtube video and, again not fully understanding the actualities of the complaint, made some statements that were way off base. Including a later second video with a perjury remark that I never quite understood — although someone else posited that maybe he thought I wasn’t the actual copyright owner and he still assumed the ‘enemy’ was. I responded to the videos as calmly as I could, stated my case and hoped that would be enough.

At first, it didn’t seem to be but I commented on the second video with the same eye towards civility. After all, he was fighting some war of ideology that I wasn’t and didn’t want to be a part of. That doesn’t make the conclusion jumping any more rational, but I say it here out so you know his state of mind. I had noted that the vendor should be sending him my email address and they did after a few hours. He wrote, pleaded his POV, I replied with mine and said that this was way out of hand and I was willing to just drop it. I had made my opinion known (that I disagreed that it was a clear parody) and he insisted his intent was to parody (the enemy). But it’s all settled now.

Isn’t that all a big pain in the ass? Yes. Yes it was. And considering I bothered to do this over an item which probably won’t sell more than a handful of copies, why do I say I support the findings of the Australian study? Well, because I believe the copyright system is too fractured and, in places, far too vague. In the instance above, the guy felt it was black and white: this is parody and that’s fair use, case closed. Whereas I, not wanting to loose the rights I have over my work, felt I needed to express my concern. Hardly a month goes by where I don’t see an artist having to go after someone ripping off their work. And plenty of times the person doing the rip-off tries to claim fair use. And then someone, usually a judge who’s usually none-too-keen to have to hear it, has to decide what’s actually going on: free speech or profiting off the work of others.

The Copyright Act of 1976, which is a clusterfork of loophooles and “let The Mouse win”, puts forth four measures for deciding infringement:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

That last one is often misunderstood to mean that if you’re not directly taking sales away, then nana-nana-boo-boo. But the ‘potential market’ and ‘value’ is not so cut and dried. You can reduce something’s value by diluting it, for instance. An invaluable page outlining fair can be found on copyright.gov. It’s still a bit vague, yes?

In the instance above, was it an individual exercising their free speech or an online vendor taking advantage to earn a few buck off a controversy? Like I said, it’s squishy.

But back to the ADA study. The world is changing. Actually, the world has already changed. But it takes society a while to catch up with huge changes, especially when it involves regulations and laws. And it takes on an even more glacial pace when the issue has international ramifications. We have treaties regarding copyright with other countries, but copyright is not the same worldwide. Some items that are now in the public domain in the US are not public domain in the UK. But Australia, where I lived for a few years, has an interesting mechanism in place that is, IMHO, beneficial to all:

  1. For purposes of education, which is fairly clearly defined, fair use is very broad. If you are at university and go into the library, you can make copies of books for use in your studies without worry. If you are a lecturer who wishes to show your film class how Spielberg’s camera movement enhances the film, do so without fear of an AFACT raid. If you’re a jerk who wants to scan a bunch of comics to ‘teach’ the Internet about comics, you are not within the law. The gist being, “Don’t hinder the education of our people at the expense of copyright laws”.
  2. Copyright holders get paid for this. Yes, yes, I know you get paid here in the US for sales, but this is not the same thing. In order to allow the unfettered use of copyrighted material as above, Australian schools and universities pay the copyright holders a small royalty in order to recognize their contribution. If your in-copyright book is put into a university library in Australia, you’ll received payment for that. You won’t make your living that way, but the value of your work is thereby recognized.
  3. Do keep this in mind when reading the ADA study as, while an awesome thing, is also tied into their problems. The complaint that Australian schools pay too much for material may be valid. But it can be corrected. The core idea itself is not broken, even if the measure of pay may be out of kilter. Ask an American writer the last time they received any similar compensation and they’re likely to stare at you blankly. The ADA wants to fix this by reforming copyright smartly.

    “Why?”, you may ask, “this sounds awesome!” It is. But the flip-side to the story is that much of the rest of Australian copyright is more restrictive. There is no complimentary fair use like our, albeit squishy, American section 107. Ripping your CDs to MP3 is still, technically, not legal in Australia. Australia has something called ‘Fair Dealing’. And it’s super-squishy. and not often fair.

    And this is the problem with most of our copyright laws, be it the USA or Australia. This squishiness has, like a carcass in the sun, grown squishier over time as we’ve bandaged and tacked on to the law. It’s borne out of a time when we were a paper society that was hobbled by distance, disconnectedness and slow information. Nowhere is this more noticeable than in the US patent system. Our patent system isn’t just rickety or squishy, it’s broken and obsolete. And I think we should put a bullet in it ASAP and put it out our misery, especially as regards software patents and the patenting of thought. Many feel copyright is all we need, and I think I might be one of them.

    Copyright has a place and it will probably always have a place while we’re all fancy and civilized. We need to make sure that artists and creators can benefit from their work. But we need to provide for the advancement and innovation that fancy civilized societies need in order to evolve. Our copyright needs to be looked at with a 21st century eye and rebuilt, possibly from the ground up. And as many international players that can be brought to the table the better. Not just to make it more even across the globe, but to keep us and other more-greedy countries’ natural tendencies towards aggression in check.

    So, yes. I’m all for it. Had we had a more succinct and non-squishy fair use clause in our copyright laws, I might never have had to make that guy freak out last week. It was a bother for us both. Were there a clear set of guidelines which either of us could point to to prove our case, mine or his, wonderful. But as it is, it’s all just opinions. And opinions are like… well, you get my drift.

    Let’s make it better. Let’s reform copyright and let’s modernize or completely re-thing our patent system (especially IP patents).

    I’ll close with my favorite saying re: copyright: If The Mouse* is still winning, we’re all still losing.


    * – Yes, that mouse. The famous one. The famous one who has skirted copyright expirations with all the speed and agility that millions of dollars and enormous economic power can bring to bear on politicians. But that’s another story…

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