Since I run Techdirt, book publishers frequently push random books on me. Sometimes they just send the books. More frequently they send me announcements about books to see if I might be interested. Most go directly in the recycle bin. But one that came in just recently caught my eye -- and not because of the subject matter. Usually the books are about the tech industry or politics or something. But this was a James Bond story. I almost tossed it out immediately, assuming someone mail merged the wrong press list -- but then I realized why we were on the list. James Bond recently went into the public domain in Canada, raising some interesting questions over what that meant -- since 007 is still protected by copyright in the US and some other countries. So, now it appears that some guy named Curtis Cook has decided to write himself his own Bond book, and the press release touts the fact that it's because Bond is in the public domain in Canada.
At the end of the letter, it notes that review copies are available worldwide, but that "commercial sales [will be] limited to Canada and other countries that are "life plus 50" Berne rule signatories." In other words, don't expect to see the book in the US, unless you snag a review copy.
Of course, the book may be absolutely terrible. But it does seem interesting that this book can only be sold in certain countries -- and not in the US -- thanks to copyright law. Something seems fundamentally wrong about that -- but I guess that people who live in countries outside the US who frequently experience ridiculous geoblocks will note that this is just a physical form of the same thing, but in reverse.
In the meantime, with Bond in the public domain in Canada, it's not just new Bond books we're seeing, but other interesting projects as well -- such as a new unauthorized anthology of Bond stories called License Expired. I imagine plenty more is on the way as well. All this creativity... and none of it can touch the United States. Because of our broken copyright system.
The recording is old news. Last century. Dead. The Access versus Ownership debate should have finished 10 years ago, but we're still bickering. Access models (eg. streaming) are not supposed to replace Ownership models. They're supposed to power a new reality, a new age for the Music business, in which the record industry possibly has no place.
"The Music industry" has become synonymous for the recording industry, just as it was synonymous for sheet music publishers prior to the rise of the recording companies. With new technology, come new companies, and the old companies move into the background. The new Music industry will likely not consist of those that depend on the recording (eg. major labels, or even Spotify), but those that apply technology to change what it means to listen to or interact with Music, just as the recording did in the 20th century.
Even the creative process will have to change.
Prior to the invention of the record, Music was far more participative than it has become throughout the age of mass media and mass consumption. Back then, if you wanted to hear your favourite song, you better know how to play an instrument, or have a member of the household who sings well, or you're simply not going to hear it. That sounds extremely restrictive given our current reality, but it also gave Music certain characteristics that made it richer:
Music was participative
Music was mostly a social experience
Music was more intimate
Music sounded a little bit different every time
Music belonged to everyone
I believe these are natural characteristics of Music, that got temporarily pushed into the background in the age of Mass Media and Western individualism. Entertainment and Culture became passive, and the ownership of Culture became less ambiguous, economically. A Creating Class arose, and a Consuming Class. The companies selling the output of the Creating Class benefited from the passiveness of the Consuming Class, because you couldn't consume high margin products while you create.
The KLF's Bill Drummond about Recorded Music
The KLF's Bill Drummond about what the recording took away from Music. From 1:23. Quote below.
"As the technology to record music evolved through the twentieth century, it sucked in and seduced every form of music around the world. They all wanted to become recorded music. They all wanted to become this thing that could be bought and sold. And that narrowed the parameters of what music could do and be. And it took away from music a big part of what can make music powerful, which is about music being about time, place, and occasion."
"Until 100 years ago, every musical event was unique: music was ephemeral and unrepeatable and even classical scoring couldn't guarantee precise duplication. Then came the gramophone record, which captured particular performances and made it possible to hear them identically over and over again. […] I think it's possible that our grandchildren will look at us in wonder and say: "You mean you used to listen to exactly the same thing over and over again?""
The recording is not the end of the line for Music. Every medium is a transition to the next medium.
Most people call performed music "live music" —
some people call recorded music "dead music"
The Media evolved and spawned Computers, the Internet, Video Games. The latter a highly Interactive example of Culture that went on to give birth to MMORPGs, where large Communities of players Interact and define their own Meaning, participatively. A particularly good example of the aforementioned elements coming together is Minecraft, a world-creating game where players work together to build whatever they can dream of. Deadmau5 uses this to enter a digital world of fan art and interact with his fanbase. Imagine what that's going to look like with the unstoppable momentum Virtual Reality currently seems to have. The Consuming Class has become the Creating Class: Consumption and Creation are becoming, in part, synonymous.
Why is Music still static by default?
Why am I not being offered more ways to interact with Music?
Look at the gaming industry. It's a 1,000 times easier to get someone to pay to unlock a 'special ability' than it is to sell them a piece of content.
Intimacy and Immediacy
The old Music industry is not interested in creating Intimacy. It's hard to scale. The dominance of the recording industry's model depends on hundreds of thousands of well-timed sales, and a long-tail that provides income until 70 years after the death of the Creator.
Yet the fact that we carry computers in our pockets that are more powerful than the PCs on our desks a few years ago, and always connected to the Internet, offers amazing opportunities for Intimacy and Immediacy, ones that fans are happy to pay for. It means that Kevin Kelly's theory of a 1,000 True Fans will become increasingly easy to apply for a growing number of Creators.
The rise of Intimacy and Immediacy will benefit those Creators who work with small teams, who are open about their creative process, and involve their fanbase early on in this process. This enables them to secure funds through crowdfunding, as opposed to trying to secure investment from large corporations, whether recording companies or brands.
One can create dynamics of social competition within a fanbase. Who can recruit the most new fans, or active members? Who are the most valuable contributors to the Creator's wiki? Who spend the most money on merch and who have the most complete collection? The ones that rank highest, get access to perks. A weekly 1 hour video chat with the top 10, weekly 10 minute preview of what you're working on for the top 50, 20% discount on merchandise for the top 200, etc.
An app that has a great idea for how to get people to actively discover new Music, engage with it, and feel part of the artist's success is Tradiio. It gamifies Music discovery and lets users invest virtual coins in songs they believe in. This helps artists rise to prominence on the platform and earn rewards. If this platform evolves from a reward-based game, to a real economy where users can purchase coins and artists can cash out, it would be a good example of the type of company the new Music industry will be made up of. Just to mention some other exemplary companies for music's future: look at Smule and Sonic Emotion.
More on Games
The Gaming industry got into the same mess, at the same time, that the Music industry got into, brought about by the fact that what they thought was their product could suddenly be communicated through networks at zero cost. A whole new Gaming industry emerged with the arrival of connected devices: smartphones. Instead of charging money for the game, they made the game free to play and highly social, and instead charged for a limited set of actions.
Treat money-poor, time-rich fans as well as the money-rich, time-poor, because it's the former that provide value for the latter.
Music needs a new format that's feature-oriented, rather than content-focused. The content remains central to the experience, but the interaction around the content is what brings in the money. Likewise, playback of recorded music will remain important in the future, but perhaps not as the part of the industry that rakes in the most important part of Creators' incomes.
There are countless examples of companies pioneering the future of Music. From aforementioned Tradiio, to ones started by game developers, Music business serial entrepreneurs, and artists themselves. First let's start with an example from another part of the entertainment industry.
"The software will read your emotional reactions to the show in real time. Should your mouth turn down a second too long or your eyes squeeze shut in fright, the plot will speed along. But if they grow large and hold your interest, the program will draw out the suspense."
Imagine applying that to music… Some companies are already closing in on that.
Example: Inception, by Hans Zimmer and RjDj
Music producer and film composer Hans Zimmer collaborated on an app for the Inception movie, with RjDj, a company that specializes in Context Aware Music and Augmented music, founded by one of the co-founders of last.fm, Michael Breidenbruecker. Hans Zimmer on the project:
"There's a thing I've been searching for and I've been working on forever now, is a way to get beyond recorded music. To get beyond 'you just download a piece of music and it's just always the same'."
The application they made draws information from the world around the user, and transforms it into fantastic music. It seems as if you're being immersed in dreamlike worlds, as happens in the movie.
They continued their collaboration and made another app for The Dark Knight Rises. RjDj also created a Reactive Music game called Dimensions, which owes its name to the trippy effects of the Augmented Music that make it feel like you've just crossed into another dimension. The game is free-to-play, and offers in-app purchases to unlock new experiences or further augment existing ones.
I asked two of the people behind RjDj whether people are ready for adaptive music. This is what they had to say.
"I think many of them are ready. Apps like Inception or Dark Night Rises show that people are really into this sonic experience. The problem is how this is presented packaged. I can tell you from experience that not many people hear the difference between 5 hours of generative music and 5 hours recorded music. So really... no one cares if your music changes all the time through an algorithm and never sounds the same or if [it] is a preproduced track. Music has to have a reason why it is dynamic and not linear... that's why we sync it to real life."
"I think Inception especially proved that if the experience is delivered in a way that makes sense, perhaps within a bigger conceptual framework, then millions of people can understand it and really like it.
As for people understanding the depths and details of how reactive music changes. It is very very easy to lose a huge part of the audience here. I think its fair to say that only musicologists and very serious music listeners could pick out the ways in which detailed generative music is changing for instance. Making a reactive music experience meaningful requires that the listener can tangibly feel that the change in the music is linked to his / her activity or life in some direct and hopefully emotionally powerful way.
Often making linear music is about manipulating the emotional state of the listener into particular states of mind over time for dramatic effect. Reactive music poses a different set of possibilities - what if the music is manipulated by them / their emotional state? As a composer this is totally different - its like using a sniper rifle instead of a shotgun - you can make your music hit exactly the right spot for the moment."
Adaptive soundtracks are actually quite common in games, where the Music transforms depending on the player's absolute and relative position (it's called Dynamic Music). Some developers are chucking all the other game elements aside to focus fully on that.
Proteus has been described as a non-game. The game (or 'game') was developed by one developer and one sound designer, and places you on a mystical island. There's nothing there to kill, no need to score points, and you can't die. All you have to do is to wander around the island to discover new areas and to enjoy the way objects around you influence the soundtrack. This is the literal embodiment of the phrase 'soundscape'. The changing seasons, different weather conditions, time of day, and varying ecosystems all have an impact on the Music.
I asked David Kanaga, the game's sound designer, whether this is something anyone could do, in order to understand whether this could become a more mainstream medium for Music:
"Yes, anyone could do it. It's maybe even more natural than writing static music in a way. That said, very few people are doing it, and maybe it takes years of UNLEARNING, which maybe means everything needs to be played again, to stop fixating on what's successful and beautiful in recorded music, in Sgt. Peppers and Pet Sounds, to find the play aspect of those and to move on, to stop admiring recordings.. improvise only, this is the tactic that i've been practicing myself to try this unlearning.. no serious learning is needed, really, but the UNLEARNING is totally necessary."
Example: Biophilia, by Björk
In recent years many artists have taken to releasing albums as apps. Björk had a particularly interesting take on it, releasing her album as a 3 dimensional galaxy that can be navigated and interacted with. The app even became part of MoMa’s collection.
Through the use of in-app purchases, the user can unlock new parts of the galaxy, which provide new Music to Interact with.
Example: Don't Be Scared LP, by DJ Vadim
Ninja Tune veteran DJ Vadim released an 'immersive album', which allows users to interact with different elements of the song, recomposing it according to their own wishes. What better way to create a sense of Intimacy between your fans and your Music.
Example: Central Park (Listen to the Light), by BLUEBRAIN
Then there's Bluebrain, a musical duo that produced their own apps, location-aware albums, one of which can only be used in New York's Central Park. In a way it's similar to Proteus, except in this case, the soundscape is mapped to physical locations rather than virtual.
Recently a new music startup by one of the creators of Google Maps started making waves: Weav. Weav's aim is to simply make music elastic. Unlike Spotify's new feature which picks songs that match your tempo while running, songs on Weav's platform will actually adjust to your pace. The team created tools for musicians to create dynamic music: you don't just write the song, you also program rules for it to recompose itself and adjust to different tempos. Co-founder Lars Rasmussen:
"We believe that as our lives become increasingly digital, and as our increasingly powerful mobile devices play greater and greater roles in our lives, having a song that can change and adapt -- in real time -- to what you are doing will become increasingly important. And delightful. This is why we built Weav."
If you're waiting for disruption in the music industry, don't look at the big platforms like iTunes or Spotify. They belong in the Age of the Recording.
Look at platforms that offer actual Interactivity, Immediacy, Intimacy, and Involvement. Now more than ever can Creators help give shape to future formats of Music, and to new ways to connect the listener to the Music.
Imagine Music in the Age of the Internet of Things.
Music may be static, but it doesn't have to be. And the relation between Creator and Fan certainly shouldn't be.
from the erecting-public-structures;-denying-public-access dept
More potential copyright insanity from the European Union. Some positive moves have been made, but they often seem to be offset by extremely awful ideas. Photographing public structures could soon become copyright infringement. At this point, there's no unified "freedom of panorama" across European countries. Some recognize this as a right inherent to citizens. Others feel any photographic reproductions of structures in public spaces are a violation of the creators' rights. (via Boing Boing)
A more logical approach to unification was proposed first in a copyright reform report written by Pirate Party representative Julia Reda.
The [copyright reform] report had originally suggested that the current disparity in laws on freedom of panorama across Europe (see map) be harmonised by proposing a unified standard allowing images of works that are permanently located in public places.
Perhaps feeling that anyone who self-identifies as a "pirate" is likely untrustworthy, the EU Parliament's Legal Affairs Committee has rewritten this proposal, going in the opposite direction.
16. Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them
Instead of defaulting for the more logical assessment that only very limited protections can be extended to buildings and other structures fully visible to the public and erected in publicly-accessible areas, the Committee has extended "permission culture" to include objects not normally considered to be inaccessible to the public by camera/drawing/etc. because they're accessible to the public in all other respects.
Rather than allowing people to take and publish their own photographs of buildings and monuments in public places—as celebrated in the annual Wiki Loves Monuments campaign, as well as many many books with author-supplied photographs—full permissions, clearances, royalties, and/or use of authorised images would be required for videos, photographs, paintings or drawings with any potential commercial use. (Wikipedia does not accept images unless they can be re-used for any purpose.)
The status of existing books published without such clearances would become unclear; most Wikipedia images depicting public art would be lost; and it would become very much more difficult and more expensive to publish future books comprehensively illustrating architecture and public art (or even artists' sketchbooks depicting them).
You can already see the effects of the legal disparity in regards to the "right of panorama" in effect at Wikipedia. Its page for the Atomium, a structure created by André Waterkeyn for the 1958 World's Fair in Brussels, contains a censored image, thanks to Belgium's copyright laws.
Waterkeyn's family, aided by royalty collection agency SABAM, has pursued "unauthorized" photographs of the outdoor structure. Despite its actions, there are plenty of images of the Atomium floating around the internet. But you won't find one on its Wikipedia page. The next commercial use of depictions of this outdoor structure won't be happening until 2076, if EU's copyright laws aren't unified into something less completely ridiculous.
It's not just limited to Europe, although that's where the next battle is taking place. This same sort of copyright overreach can be witnessed in photos submitted to Wikimedia Commons which have been edited due to complaints from entities residing in countries without "freedom of panorama" protections. More requests for deletion/editing are cataloged here.
It will be about three months before the EU begins debating the proposed copyright reforms. Those living in the countries possibly affected by a "unified" ruling in favor of this clause are encouraged to contact their representatives.
If you're an EU citizen, for maximum impact please contact each of your local MEPs and ask them to communicate your concern to the MEP responsible for co-ordinating their group position on the matter—in the UK, for example, this would be Sajjad Karim (on-side?) for the Conservatives, or Mary Honeyball (wobbly?) for Labour—and ask them to ask the coordinating MEP to confirm that the group will be seeking to remove this clause as it currently stands from the report, and defend the full right to make use of photographs taken in public places, in this case the existing UK law. In this way you'll get the chance to learn what the group's detailed current position is (which you may then find you need to work to persuade your own MEP away from). The coordinating MEP will also thus be made aware of the full range of concerns being expressed to the group, and may be more likely to answer a request forwarded by a fellow MEP than a direct approach.
The federal government is sitting on 7,584 historical agricultural watercolor paintings that it should make freely available to the public today. Currently, people have access only to low-quality previews of the images; the United States Department of Agriculture, where the archive is held, should serve the public interest by making the entire collection of high quality scans free for all.
The USDA's National Agricultural Library hosts the Pomological Watercolor Collection, which contains images of different varieties of fruits and nuts, commissioned between 1886 and 1942.
The public should have access to these images, and that access should be automatic and unrestricted. Fortunately, that is technically possible: the USDA, through a grant from an environmental non-profit called The Ceres Trust, went though a multi-year digitization effort and now has high-quality scans of every image. However, members of the public can currently only view low-resolution versions online, can only request up to three high-quality scans free of charge, and must pay $10 per file beyond that.
Digitizing the images cost $288,442. Since the collection went online in 2011, members of the public have ordered just 81 images, for a total of $565. That relatively tiny amount simply cannot justify the cost to the public of keeping these images behind a paywall.
There's no question that these paintings, if made more available, could be creating value for the public. High quality images could be used in printed teaching materials, which can spur conservation efforts and spark agricultural research interests in students. They could illustrate relevant articles on Wikipedia, providing historical context from over a hundred years of agriculture. The high quality scans could be examined closely by independent researchers to turn up new information.
The collection could even expand if it is accessible enough, as the National Agricultural Library described in its own report: one researcher, on hearing about the digitization project, contributed seven contemporaneous paintings of blueberries that had been stored in his lab.
With today's growing interest in heirloom varieties and others that are no longer commonly grown, the collection is an invaluable storehouse of fruit knowledge and history.
That knowledge is better served if the public has access to the scans, and it's possible to do that today. If the cost of hosting and bandwidth is an issue, the Internet Archive and Wikimedia Commons would almost certainly be willing to host even the highest resolution scans.
If you've spent any time on social networking sites like Facebook or Twitter, you can appreciate the hazards of the digital jungle. And even if you can fend for yourself out there, what about your kids? As well as I know the jungle's safe paths, I constantly worry about my three sons as they begin to navigate social platforms.
The alternate world of our social media identities – profiles, handles, accounts, "friends" – has ruined reputations and ended careers, even lives. Adolescents and teenagers see this daily in the form of online bullying. For adults, the harassment usually comes from the anonymous vitriol spewed across the web. The question becomes then: Will it get better? Or is this simply the new normal of our increasingly all-digital world?
The Supreme Court recently heard arguments in the case of a man convicted of threatening on Facebook to kill his wife. The defendant argues that he never meant what he wrote online. The prosecution argues, in effect, that intent is not the issue. Rather, a reasonable person would have felt threatened and that should be standard for a crime committed. What would you – or did you – think if someone dropped a death threat on your profile page?
How the Court decides Elonis v. United States could lead the way toward stemming online abuse. The Justices may uphold the conviction, but as Justice Sonia Sotomayor said during oral arguments, "We've been loathe to create more exceptions to the First Amendment." It's a comment that might leave the floodgates wide open for online abuse, granting online bullies and trolls even greater latitude under the cover of the First Amendment.
No matter what the Court decides, it still would be exceedingly hard to prosecute online offenders whose abuse doesn't include physical threats. Ask any teenager or adolescent if online attacks like, "You're so ugly; you should kill yourself," hurt any less than verbal assaults. The Court's decision won't stem the online harassment of adult victims either, whose tweets, posts or pictures done in poor taste can cause serious digital backlash.
The fact is social networks have changed the way we see ourselves, just as email once changed the way we communicated. Whether it's bullying or harassment, there still exists a sense of comfortable anonymity in the digital-social world. We have our "offline" selves, who would never say such things to someone's face, and our "online" selves, who can't stop from piling on our targets. In many ways, it's no different than the violent mobs of yesteryear – people in a mob find themselves doing things they would never contemplate on their own.
But Court cases like Elonis are helping to erode this digital wall between our online and offline identities. Since its foundation, the Internet has revealed its unique place in society – a place where people are free to be whoever they want. As the classic New Yorker cartoon featuring two canines puts it, "On the Internet, nobody knows you're a dog." This freedom has found its purest expression in social network sites. Yet the nature of the Internet is changing. We hardly even talk about "being online" anymore, because we're always online through our smartphones and mobile devices.
And today, more and more of our cars are online. Our televisions are online. Even our clock radios are online. There will be a time in the not-so-distance future when most of our household appliances will be connected to the web – and not in the way we now know them: using the Internet for one application, such as navigation for cars. They will be "communicating" with other connected devices, constantly gathering data through sensors on us, the users, and on our surroundings.
As the Internet evolves, so too will the way in which we see ourselves. Social networks will no longer be confined to our screens – laptops, tablets or smartphones. They will be as seamlessly integrated into our daily lives as the Internet itself. In this digital future, it will be much harder to cyberbully and torment people online, because the anonymity of the Internet will give way as we circle back to a world of singular identity – online and off.
The chasm that once existed between our online selves and our offline selves is shrinking. Given the trends of digital devices and the ubiquity of the Internet we see today, Facebook, Twitter and other social networks will no longer be separate places where our actions live without consequence. They will be as real as our brick-and-mortar reality, where civility and restraint still govern. "Welcome to the jungle" will no longer be a dire warning, but a digital whisper.
Shawn DuBravac, Ph.D., is the chief economist at the Consumer Electronics Association and the author of the forthcoming book, "Digital Destiny: How the New Age of Data Will Transform the Way We Work, Live, and Communicate" (Regnery, 2015). Follow Shawn on Twitter @ShawnDuBravac
Shaheed said a “widely shared concern stems from the tendency for copyright protection to be strengthened with little consideration to human rights issues.” This is illustrated by trade negotiations conducted in secrecy, and with the participation of corporate entities, she said.
She stressed the fact that one of the key points of her report is that intellectual property rights are not human rights. “This equation is false and misleading,” she said.
The last statement fires shots over the bows of "moral rights" purveyors, as well as those who view infringement as a moral issue, rather than just a legal one.
Shaheed also points out that the protections being installed around the world at the behest of incumbent industries are not necessarily reflective of creators' desires.
The right to protection of authorship remains with the human author(s) whose creative vision gave expression to the work, even when the copyright interest has been sold to a corporate publisher or distributor. We should always keep in mind that copyright regimes may under-protect authors because producers/publishers/distributors and other “subsequent right-holders” typically exercise more influence over law-making than individual creators, and may have divergent and possibly opposing interests to those of the creators.
In addition, the intellectual property standards pushed by the United States and others treat fair use, personal use copying, educational use and other similar aspects as exceptions rather than something inherent to the permissions granted to rights holders by these laws -- a balancing factor between the copyright holders' and the publics' interests.
The main challenge, I believe, is that international copyright treaties generally treat copyright protections as mandatory, while largely treating exceptions and limitations as optional. The standard for judging whether a particular exception or limitation is permissible under international copyright law is not articulated with precision. This is why one of my recommendations is to explore the possibility of establishing a core list of minimum required exceptions and limitations incorporating those currently recognized by most States, and/or an international fair use provision.
Not that any established industry reliant on these expansive protections would ever agree to such a thing. It took a whole lot of public shaming before industry heads agreed to copyright exceptions for the blind. Anything above this level of begrudging "charity" has been forced down the throats of these industries by various governments.
Shaheed suggests one solution to the imbalance of power in the copyright system: a division of rights between creators and their "representative" rights holders.
Creators often need corporate rights holders: to develop innovative ways of delivering cultural works to the public, provide capital to finance high-budget cultural productions, and free artists from many of the burdens of commercializing their work. The human right to protection of authorship requires that copyright policies be carefully designed to ensure that authors (and not only copyright holders) benefit materially. An appropriate balance is crucial, recognizing that creators are both supported and constrained by copyright rules.
She also points out that it's not only incumbent industries standing in the way of better international copyright laws, but also "incumbent" countries.
Several countries, such as Indonesia and Brazil, commented on the issue of the protection of local and indigenous communities, which is mentioned in the report, for which they said “intellectual property historically failed” to take into account the issues of indigenous peoples.
Some developing countries said the current copyright system hinders the right to development by a violation of the right to education, health and progress and many other rights related to affording a basic decent life to millions in developing countries, according to UN sources.
The reaction of the incumbents?
The US said it disagrees with the report, in particular the recommendation related to copyright norm-setting activities at experts’ discussion in other international fora. They also disagreed on the suggestion that individual creators and corporations or businesses should merit different protections.
Portugal said the current copyright framework constitutes an important tool for human development, especially for cultural and scientific advancement.
France wondered why more established countries weren't considered in the report, arguing that cutting out the major players who wield an inordinate amount of power somehow resulted in an "unbalanced outcome."
The UN will take this report under consideration, along with a second report due later this year from Shaheed dealing with the patent system. Unfortunately, this somewhat scathing look at the present copyright system will do little to derail secretive international trade agreements that foist intellectual property "protections" foisted on smaller, less powerful countries.
We have already written about the ridiculousness of a jury awarding over $7 million from Pharrell Williams and Robin Thicke to the children of Marvin Gaye, because their song "Blurred Lines" sounds kinda (but not really) a bit like Gaye's "Got to Give it Up." The ruling is problematic on multiple levels, as many commentators are just now realizing. Copyright lawyer Fred von Lohmann pointed out that, technically, everyone who bought copies of "Blurred Lines" is now infringing as well -- and that could apply to many others too, including Weird Al who famously did a hilarious parody of "Blurred Lines" called "Word Crimes." Weird Al, somewhat famously, makes sure to get permission to do his parodies, even though he could probably just use fair use. But... if "Blurred Lines" is infringing, there's no fair use argument to be made and Weird Al doesn't have permission from the Gaye Estate.
In other words: what a massive mess.
But that's just getting down into the technicalities, which may not matter if the Gaye Estate doesn't push the issue -- but could certainly come up in future cases. Plenty of other folks have pointed out that no matter what you think of any of the parties involved, this ruling is bad for music, bad for musicians and bad for songwriters. And, yes, musicians are concerned:
Los Angeles composer and producer Gregory Butler said Tuesday afternoon that his friends and colleagues in the industry were stunned by the verdict.
"You've made it illegal to reference previous material," said Butler, also a managing director at music startup WholeWorldBand. "I'm never going to come up with something so radically different that it doesn't contain references to something else."
Joe Escalante, an early member of the Vandals punk rock band and an entertainment law attorney, said he was concerned that the jury's decision had been driven by emotion rather than what's protected under copyright law.
"This may put a smile on the Gaye family's face, but it's a dark day for creativity, and in the end, this will be a net loss for music fans," he said. "Good news for lawyers and the bitter everywhere."
And that just hints at how it's bad for culture as well.
"Culture" itself is based on the very idea of common ideas that are shared. Common ideas are the core of every cultural movement. You share a "feel" because you want to identify yourself with a particular culture. Music in a genre has similarities for a reason. People identify with it for a reason. Locking up "the feel" of music decimates that nature of culture. We lose the "shared" part of "shared culture." And you would think that those who are often at the forefront of pushing the shared culture on everyone -- the major record labels -- would recognize this. And yet, they're partly responsible for this mess. Because they're the ones who have been pushing this myth for years that every single scrap of cultural output must be "owned" and doing anything they don't like to build off of it must be "infringing."
To be fair, this case is going to be appealed, and others have made perfectly reasonable arguments for how it's somewhat unique, in part based on the fact that Robin Thicke was an incredibly unsympathetic player in all of this -- admitting to lying and being inconsistent with his statements -- a fact that the Gaye's lawyer gleefully exploited. There is also the simple fact that this is a jury ruling and has no direct precedent-setting ability. That comes from appeals court rulings (and Supreme Court rulings), so we need to wait for any real precedent from this case. Of course, there have been some similar cases in the past, and the results often show the same sort of confusion about copyright, which is troubling.
And, it all seems to come back to this weird concept that people believe in this myth of "ownership" over cultural touchstones. The very things that should be shared: the "feel" of music, the "groove," the cultural sharing point that everyone builds off of. In discussing this case on Twitter, and talking about the horrible implications of the ruling, I noticed more than a few people on Twitter brush off all the concerns with a simple kind of "dude, they copied Gaye, so good ruling." Amazingly, one songwriter insisted that the ruling was correct and when I looked at his personal webpage it was all about how his music was "inspired" by other famous bands. Watch out, because now those bands could come after you.
This case has strayed far from actual copyright law into a made up fantasy land of copyright law -- one where people are punishing Thicke because they don't like him or the way he acted. They're also punishing both Williams and Thicke because of this amorphous idea that they must have "ripped off" Gaye because the songs feel the same. Even the press is confusing this. You see idiotic headlines, like this one from Vulture, which claims the lawsuit was about plagiarism. Except plagiarism isn't illegal. Copyright infringement is -- and plagiarism and copyright infringement are not the same thing. And even if this were "plagiarism" the question is plagiarism of what? Musicologists who have compared the two songs note that they're actually really, really different. The only thing that's the same is "the feel" of the songs. And "feel" is not something covered copyright.
But people know that plagiarism is "wrong" so they look at what Williams and Thicke did here -- copying the "feel" -- and they insist that it must be "wrong," even if copyright is only supposed to cover the specific expression written down in the sheet music for Gaye's song. The actual notes in "Blurred Lines" don't match that sheet music at all. But rather than sticking to the letter of the law, or even bothering to understand that copyright only covers specific expression, we keep getting this message pushed on us, by the RIAA, the MPAA and others, that every bit of culture must be "owned." And you can't do anything without a license. And people have heard that refrain so many times, that it infects their psyche.
As Kal Raustiala and Christopher Sprigman note in their own writeup about the ruling, the incredible thing is just how wrong it is on copyright. Yes, there may be some elements that were copied, but those are not the elements covered by copyright:
In short, what the “Blurred Lines” team copied is either not original or not relevant.
So when they see a situation here, where a less-than-likable character has made a song that was inspired by another, they assume that something must be wrong with it, and even if the law doesn't actually apply, dammit, they're just going to say that it does. It's the inevitable result of constantly pushing for a society where every bit of culture is owned under lock and key and the idea of sharing, remixing, reusing is deemed subversive, rather than the way that culture happens.
Whether or not this case really does have a long-term or wider-term impact may not really matter that much. But the results here are indicative of something bigger: and it's a dangerous view that undermines the very nature of culture itself.
What does Leonard Nimoy's "Vulcan salute" have to do with European newspaper headlines? They both might one day be regulated by new international intellectual property rules, if some have their way. One might think that what constitutes "intellectual property" is set in stone, but it isn't. Around the world, different interests are lobbying for governments to create new types of intellectual property all the time.
As DisCo has covered before, news publishers in Europe and elsewhere are currently pushing for the creation of new IP rights in newspaper headlines, so that online sites can be forced to pay for the privilege of quoting or linking to news coverage. Spain and Germany have already created these rights, and there is pressure in Brussels for a pan-European rule.
At the same time, for more than a decade there have been efforts within the World Intellectual Property Organization to create rights in "traditional cultural expression" (which, as explained below, may include the hand gesture on which Leonard Nimoy based the Vulcan salute). Some indigenous communities are distressed about the commercial exploitation of their folklore and other forms of cultural expression by "outside" entities. In a desire to (a) prevent uses that they believe are disparaging and (b) regain control over an important part of their identity, these communities have lobbied for a treaty that would require the creation of intellectual property rights in "traditional cultural expression."
Concerns have been raised about the scope of the draft treaty. If adopted in its current form, critics say, the treaty could interfere with cultural life around the world, pulling out of the public domain material that is incorporated in countless novels, paintings, films, sculptures, operas, and other musical compositions. This is because these works are based on stories, legends, dances, rituals and other forms of expression that the treaty could protect without a limitation on term.
How does this relate to Leonard Nimoy's Vulcan salute? The famous actor's death last week provoked extensive discussion of his contribution to popular culture, including the famous Vulcan salute used by his character Spock in the Star Trek television series and movies. The Vulcan salute (hand raised with the palm forward and the thumb extended, while parting the fingers between the middle and ring finger) could violate the exclusive rights that a treaty on traditional culture expression would create. This is because Nimoy, according to his autobiography, based the Vulcan salute on the hand gestures in the priestly blessings he saw in synagogue as a child.
The priestly blessing is an elaborate ritual performed during the Jewish worship service by men who believe they are descendants of Aaron, the High Priest and Moses's brother. These men are referred to as Kohanim (Hebrew for "priests"). At the beginning of the ritual, the hands of the Kohanim are washed by the descendants of the tribe of Levi, the Levi'im. The Kohanim then remove their shoes and stand up in front of the congregation. They cover their heads with their prayer shawls, turn towards the congregation, and raise their hands (underneath the shawls) in what is now popularly referred to as the Vulcan salute. With the fingers and thumbs spread in this manner, each hand looks like the Hebrew letter shin, which is the first letter of the word "Shaddai," a name for God. The Kohanim then recite the words of the priestly blessing set forth in the book of Numbers: "May the Lord bless you and guard you; may the Lord make His face shed light upon you and be gracious to you; may the Lord lift up His face to you and give you peace." (If the words sound familiar, that's because the song "Sabbath Prayer" in Fiddler on the Roof is based on them. It's also Solemn Blessing #10 in the Roman Missal used by Catholics.)
Although the words of the priestly blessing derive from the Old Testament, and thus are over 2,500 years old, the hand gesture probably developed later. It is described in the Shulchan Aruch (Hebrew for "Set Table"), a codification of Jewish law first published in 1565, thus indicating that it was in wide use 450 years ago. Currently, the priestly blessing is conducted daily in traditional Sephardic congregations, and on holidays in traditional Ashkenazic congregations.
Although no one seems to have objected to Nimoy's adaptation of the gesture for his Vulcan character, the hand gesture of the priestly blessing may nevertheless fall within the scope of the draft treaty. Traditional cultural expression includes actions such as ceremonies and rituals. The treaty's protection would extend to the traditional cultural expression created, expressed, and maintained, in a collective context, by the treaty's beneficiaries. The class of beneficiaries remains in flux. The treaty refers to "indigenous peoples" and "local communities and nations" without defining any of these terms. These terms may encompass traditional Jewish communities. Moreover, the treaty appears to allow national law to determine which communities are beneficiaries. One could easily imagine Jewish communities in some countries (e.g., Israel and the United States) successfully lobbying for the treaty's protection.
Under the treaty, the rights in the traditional cultural expression would be collectively administered by a "competent authority" for the benefit of the members of the beneficiary community. The competent authority would have the authority to license the use of traditional cultural expression and distribute any resulting compensation. Although Nimoy was Jewish, it is unlikely that the treaty would have permitted him to use the hand gesture in a non-traditional way such as the Vulcan salute in Star Trek without the approval of the competent authority. And the treaty certainly would not have permitted the unauthorized use of the hand gesture by any Vulcans played by non-Jewish actors. The current draft of the treaty does not include a grandfather clause, so if the treaty were adopted in the future, the competent authority in each country would be able to prevent the further dissemination of existing Star Trek works containing the Vulcan salute, as well as the use of the salute in future films.
Folktales permeate modern Western culture, from Disney films to Lord of the Rings to the Twilight series to Wagner's Ring of Nibelung to Tchaikovsky's Swan Lake. Thus, it is no surprise that the treaty on traditional cultural expression has little support among the developed countries and WIPO is unlikely to adopt it soon, if ever. But this just highlights the fact that what receives intellectual property protection is a policy choice, rather than a reflection of natural law. As a result, types of protection vary across countries. For example, the "ancillary rights" that restrict newspaper snippets in Europe have received no traction in the United States. Similarly, Congress rejected the attempt by large publishers to import the EU Database Directive's protection for non-original databases a decade ago. This policy decision has allowed U.S. researchers to engage in enormously productive text and data-mining, which the Database Directive prevents their colleagues in the EU from performing.
Just as policymakers were confronted with a choice over creating database rights, they may one day be presented with a similar choice about news snippets, or hand gestures, and the choices they make could have a considerable effect on culture and communication worldwide.
Today we're continuing our recognition of Fair Use Week with an episode of the Techdirt Podcast focused entirely on this critical (but commonly misunderstood) counterbalance to copyright law. Though framed by many copyright proponents as a frivolous exception, fair use is actually fundamental to protecting not just free speech, but everything about our shared culture of art, thought, conversation and criticism.
There are many, many studies on creativity and possible ways to improve the creative output of a group. Monetary incentives are often presented as a way to get people to produce more ideas, but some studies show that money isn't actually a great motivator. Obviously, there are a lot of factors that can influence how creative people are, but it would be nice to isolate a few and see if we can eliminate some practices that are downright detrimental to creativity. It would be great if we found out what really could inspire people, but maybe we shouldn't put too much pressure on the researchers... because that might dampen their productivity.