Saturday, September 25, 2010

Copyright Criminals

Last night a group of SLIS students went to see Copyright Criminals, which was absolutely amazing, followed by a Q&A with Kembrew McLeod, an event that was part of the Iowa City Public Library's Intellectual Freedom Festival. I am so excited about this film that I wanted to write a bit here. First of all, I highly recommend that folks should look at the website and watch the film. It's very well done, and it calls into question our current copyright laws by looking at the history of sampling in music.
A couple great questions were raised in the Q&A that got me thinking about licensing. Liz Holdsworth asked if RJD2's sampling was illegal at a live show, and the answer is 'no,' because music venues have to pay ASCAP & BMI licensing fees in order to host performances. What I didn't know though (and this was another question that was asked) was that anywhere music is played (i.e. plugging your iPod in to an ice cream store's stereo system) should technically be paying those fees. I started looking at the FAQ's on the ASCAP site, and apparently they can charge for just about anything, including using hold music on your business telephone! I don't want to suggest that artists not receive credit and/or money for their work, but this seems so restrictive and even somewhat invasive (Dr. McLeod mentioned that ASCAP and BMI have employees who will go in to businesses at random to see if they're in violation.) There must be a better way to go about this, but since I'm not a copyright expert I'm not sure what that better way is!
Also, as a hip-hop fan, I was really excited to see interviews with a lot of wonderful, innovative artists. I have friends who create hip-hop or other types of music using sampling, and it was really interesting to me to learn more about it (for example, the fact that it's legally easier to cover a whole song than to sample 2 bars from it.) I was definitely surprised by examples of artists who were very, err, insistent that their work only be used in a certain way. I guess it's just a mindset different from my own, where I see my work as something I am sharing with the world and others can take it and do what they would like as long as I'm credited (and as long as no large company yoinks my work out from under me and makes a bunch of money off of it, which is highly unlikely). All this talk about sampling and licensing and copyright got me thinking about libraries (as I am wont to do), and I would love to hear back from other LIS students and professionals about this. Do libraries have to pay licensing fees in order to let patrons check out DVDs and CDs? What are some ways libraries can promote sharing without running afoul of the law? Obviously we are sharing materials with others free of charge, but I'm curious what other ways libraries can get involved.
And finally! I love Creative Commons, and it is mentioned in the film, but I have a few Creative Commons questions. Because I am one of the editors of B Sides, I know about the different types of licenses and have a pretty good sense of what they entail for the author. What I'm less clear about is their implications later on. The Share-Alike feature is for those wishing their work to only be used with compatible licenses. However, what if someone is sampling (or quoting in a paper) from sources with incompatible licenses? I've also heard of CC licenses being argued against because they hold rights into perpetuity, unlike copyrighted materials which pass into the public domain after the author's death + 70 years (I think it's 70!) I wonder when (and if) CC licenses become public domain, or if it's something the author manually has to go in and do.
It occurred to me also that I don't have a CC license on this site, so as of today, I shall!


  1. Li'l story from my page days at ICPL: There was one patron who would check out a study room along with a pile of 30 or so CDs or DVDs--I think most of them were music. Annnnd he would also have his laptop. I would never have complained about this if he wouldn't have left the large pile of library items in the room when he left, but he did, so I was annoyed.

    I asked a higher-up about the law around copying library materials, which seemed pretty obvious was his goal, and her response was this: They have the right to copy materials if they have already purchased it some other time. I'm guessing this was about 5 years ago, and don't know if that law/policy has changed.

    Obviously libraries aren't the go-to enforcement agencies when it comes to copyright violations, unlike a third-party provider like Mediacom and Comcast. And clearly they have bigger jerks to deal with that CD-copying man. Just thought I'd share!

  2. That's an interesting law (that one can copy it if they purchased it at another time). I agree, I don't see libraries jumping on people who copy materials or even being concerned enough to ask them to stop--libraries are places that I feel are synonymous with sharing. Thanks for sharing your story! I wonder if that guy was creating music or just really liked to own lots of it!

  3. My friend Mike Boland, who drives for Cambus along with me, brought up a good point when I mentioned ASCAP & BMI licensing. We (and most of our coworkers) listen to our iPods or the radio while driving the bus. He asked if playing music on a bus is considered 'public performance' the same way it is in a business. Does anyone know?

  4. The wilder reaches of copyright law never cease to amaze me, but, as you say, there are no easy answers: there's a constant tension between a very valid goal of freedom of access and use, and an equally valid goal of due credit and due reward for the creator.

    Here are a couple of absurdities.

    Under UK law (and I think elsewhere) a text only achieves copyright status once published. So if a book was published in (say) 1720, it spent a certain period in copyright, but is now out of copyright. However, if a document was written in 1720, but never published, it has never achieved that copyright status: and if somebody now wants to publish it, they are supposed (legally) to trace the copyright owner, i.e. the heir of the original author (bearing in mind that copyright, like other property rights, may have descended down the main family line of inheritance, or may have been willed away to other people at some point). Obviously, this may get highly complicated, and in practice it's rare for anyone to do this detective work for anything other than major literary works; but in theory if a historian publishes a historic document for the first time, even something centuries old, they may be putting themselves at risk of litigation.

    Under French law, an architect retains copyright in any building he/she has designed, including images of it made after it's been completed and is on public view. So it's technically illegal to publish photos of any modern building in France, without first obtaining the architect's permission.

    My own current pet gripe is with libraries claiming copyright in material in their collections. Suppose (say) Artist A painted a picture in 1700; and Photographer B took a photo of it in 1930; and a copy of that photo ended up in a public collection in Library C. Along comes Researcher D, who wants to publish a copy in his new book and asks the library for a digital image of it. The library charges a hefty fee for making the image (fair enough), but they also charge an additional reproduction fee because they claim a new copyright in the digital image - and the heirs of Artist A and Photographer B, not to mention the current owner of the original painting, don't get a look in. Legally, I think, the library's in the right; but morally?

    As you say, there must be a better way ...

  5. Your first point about publishing is particularly interesting to me, because I am beginning the workings on another project with a 17th century cookbook. It was published, so it is probably safe to use bits of it in my own work, but it does make me wonder about the manuscript cookbooks I was looking at. I'm glad I chose something that was published already, because I might not have thought to track down the legal copyright holders (or have the resources to do so if it was something I thought of!)
    I had no idea about the French copyright on architecture, is that a perpetual right or does a building eventually go into the 'public domain?'
    The libraries & copyright issue is one I'm an expert on, but I agree, from a researcher's perspective it is very frustrating to have an institution that is meant to be providing a public service then turn around and charge high prices for that service. It's my understanding that a lot of libraries justify this because of shortfalls in their budgets and because they feel entitled to claim this income as the copyright holders of their collections. So I agree with your assertion: they do have the 'right' to do so, but that doesn't necessarily equate to the best practice. I appreciate institutions that provide digitized versions of their collections to the public, free of charge, although I wonder if copying an image and using it in, say, a class paper (or perhaps more notably in a published work) is considered an infringement? If any other readers happen to know more about the 'libraries as copyright holders' issue, I would be interested to hear it!

  6. On the question of libraries claiming copyright, yes, of course, I accept that most public libraries are underfunded, have a commitment to providing their core services free, and therefore need to generate income wherever they can from their peripheral services. I used to be an archivist, so I've been gamekeeper as well as poacher. And, in fairness to the libraries, they often waive their fees if the publication using the material is not-for-profit and/or provides them with publicity. However, I still have a slight sense of injustice that, in a complex situation where a number of different parties have some moral interest in a particular piece of intellectual property, the library (which has curated the item, but has provided zero creative input) can flex its muscles and claim total ownership.

    But I think my real concern here is that copyright law has generally been framed with regard to major commercially-valuable literary/artistic work, but then extended to minor work, and to semi-formal types of publication, where profit isn't a major consideration. This leads to all kinds of anomalies and absurdities; and if it was all a legal mess twenty-odd years ago, it's far worse in the digital age, when the technical side of copying is so much easier.

    The result seems to be a morass in which one group of people dutifully try to follow the rules, and get bogged down in a world of petty regulations, red tape and fees, while another group ignore the rules, successfully for the most part, but very occasionally, and rather to their own surprise, get caught out.

    On the issue of music copyright, there's an on-off debate in the UK about whether copyright should remain at the current term of 50 years, or be extended either to 70 years (in line with printed materials) or to 95 years (in line with the US). My instinct, on open-access grounds, is to be opposed to any extension; but the pro-extension lobby claim to represent many aging pop musicians from the 50s and 60s, who probably never made big money from their work but have enjoyed a steady trickle of royalties down the years, and who now find it's drying up just at the time of their lives when they could really use it.

    My own musical tastes tend towards folk, where, of course, the whole genre is based on the idea of picking up existing work and reinterpreting it. Even so, it always amuses me how artists get round the copyright issue by labelling a particular tune as 'trad.', when in fact it's well known as a modern piece with a well-documented composer. Luckily, most composers don't mind - just another example of informal creative commons, I suppose.

  7. I agree--the library as rights holder situation is a strange one, particularly when other parties who, as you say, contributed to the work's creation are interested in utilizing the work. It will be interesting to see what (if any) litigation comes from libraries in response to digital image copying. And what about those institutions whose works are digitized through a subscription-based service (i.e. EEBO or JSTOR)? It seems like they would have some stake in the rights too at that point. Messy stuff.
    Somewhat unrelated, I was thinking about copyright and scholarly publication today when talking about B Sides journal with some colleagues. I mentioned that we don't retain any rights, and instead serve as more of a repository: our authors create their own Creative Commons license (or can opt for copyright) but they choose the type of license as well as who it is licensed to. For an OA journal this is great, because our authors can use their work however they please without infringement.
    However, the reason we are able to do that is that we do not expect monetary gain from anything we publish: we work for free, and we make works freely available. Maybe not the best from my pocketbook's perspective, but it is so freeing to be able to offer such a publication that I wouldn't have it any other way!
    I'm also a fan of folk music, particularly folk music from the U.S. South and from the U.K., and to be honest I had not spent much time thinking that folk musicians technically deal with the same issues of sampling/covers that hip-hop musicians are (from a legal standpoint) even though they are not using the same technology to create those sounds. I agree that copyright terms are probably long enough, although I think it will be interesting to watch how the battles over copyright extensions play out. For example, some Disney characters (that I assume are very economically viable still, like Mickey Mouse) are set to jump into the pubic domain somewhat soon--I'm curious what strings that corporation will pull to argue against their loss of ownership (I have some issues with how stringently they enforce copyright, but that's another rant for another time!)
    I'm glad you mentioned artists who have become accustomed to receiving royalties over the years, because I think it's something we maybe don't think about as much. I also wonder if the arguments aren't somewhat generational (and I'm referring to this more in a 'use of technology' sense than by age, per se). Many of the musicians I know who are comfortable producing digital music or producing any music and placing it online also seem more concerned with getting their work out there and sharing it, rather than charging money every time it's used. Our adoption of digital technologies has changed the way we interact with music as a commodity (or not), but it's interesting to see that musicians themselves have adapted to this--most of the musicians I know work day jobs as a way to support their music, and while they would probably like to 'make it big' someday they also love the sharing and community that comes with the model they've adopted. Kind of how I feel with the OA journal--it doesn't pay my bills, but it gives me such great opportunities to network, share scholarship, and learn more about the field!