On 14/7/09 9:36 PM "ada_list-request(a)list.waikato.ac.nz"
> so, perhaps the position to take, and one that might provoke people to
> think and might also catch some news-space, is to tell people that we
> dont want copyright at all...
just thinking aloud a thought I had the other night:
how about an overall tax/fee rather than individual copyright payments? like
a broadcasting fee for the internet but tailored to usage parameters. might
require some pretty severe, privacy-invading tracking of content though if
the resulting revenue-pie was to be split fairly...
so the idea might be backward-thinking garbage, but I think if there was no
constant pay/steal right/wrong pressure, people's download behaviour would
be much more balanced - i.e. just what they actually want, and not all
series of the wire at once (just in case its a once-in-a-lifetime
opportunity). after all, most download-type entertainment is pretty crap,
and that's a lot easier to realise if there's no entry fee associated with
or am I barking up completely the wrong tree?
> On Wed, Jul 15, 2009 at 9:21 AM, Douglas Bagnall <douglas(a)paradise.net.nz>wrote:
> Speaking of art, mainstream visual art doesn't rely on copyright at all
> -- it only cares about providence and exclusive possession. All the
> most expensive paintings are out of copyright. This continues with new
> media art, as far as I know: collectors buy expensive DVD-Rs and not
Does exclusive possession not have direct ties with copyright though? If
there is no control over copies, then that opens the floodgates to
uncontrolled multiples, driving costs of artworks down due to their lack of
There is an interesting article on "Life After Copyright" here for any
Also, there are plenty of big earners who's work is still under copyright.
Warhol, Koons, and of course Hirst are still well in copyright (and the list
goes on). Hirst, particularly, has been hard-lined about claiming it, to a
...and of course there is the ongoing saga between Shepherd Fairey and AP
You may also be interested to hear that the Ministry of Economic Development
released their policy proposal document for the amended s92A yesterday. It
is open for public submission until 7 August.
In a nutshell, it is a considerable improvement on it's predecessor, however
Internet Termination is still on the table, the definition of ISP remains
broad (practically anyone with a website or shared internet connection), and
there doesn't appear to be any punishment for false accusations.
And CFF Media Release about it here:
Hi Sondra, all
Glad to see the list springing to life on an important issue. The
below article from Media and Arts Law Review by myself and Axel Bruns
and is dated (2005) and focuses more specifically on Digital Rights
Management, but it does cover the general issues of copyright,
intellectual property and economic development in the music industries
in Australasia. There are also a number of references to what I see as
the key academic and research texts on this topic that might be useful
for teaching and research purposes. I am happy to supply a copy of the
article in its finished form to anyone who wants it.
I think most of the analysis still applies today. One key point we
fail to capture is that it is not just a case of Australasian
copyright law moving toward or away from a US system. What is instead
happening is that multinationals are applying policy pressure (through
WTO and directly) to globalise the most restrictive policies for users
while reducing anything which looks like fair use or fair dealing that
might impinge on profits. However, I do think that advocacy from an
end-user perspective will have to be made within the specific frame of
the balance between author and user rights that the British/
Australasian copyright laws have given us, rather than through
reference to e.g. the US system which is based on certain
constitutional rights which are not available to us.
As far as ADA goes, I think the manifesto idea is a good one, as we
need to imagine non-copyrighted forms of circulation (or more
precisely, we need to have a way of thinking about the forms of
circulation that have always existed that copyright barely relates
to). But this would have zero effect on the passage of the current s92
legistlation, and indeed, the exchange between Julian and Adam
highlights that gaining agreement on a manifesto among the group may
be difficult. This might be perhaps more of a longer-term goal.
In the short term, I would like to see ADA make a more simple
statement like "as an organisation made up of a wide range of media
arts practitioners in New Zealand, we are concerned about the effects
of Section 92 and support the statements made by the Creative Freedom
Foundation on the need for policies that balance the rights of users,
service providers, artists and the content industries." CFF are doing
excellent work on this issue from my point of view, and we should
support them as much as we can, and then look at the issues that apply
to digital arts more specifically.
The section 92A Review Policy Proposal Document is available
submissions are due on 7th August if you'd like to make one.
Ngā mihi mahana, nā
Digital Rights Management and Music in Australasia
Danny Butt and Axel Bruns
Preprint of article published in Media and Arts Law Review, 10(4),
The Contemporary DRM Terrain
Technologists tend to see Digital Rights Management (DRM) as a
technological solution, lawyers worry about its relation to copyright
law, economists concern themselves with the market issues, and labels
- and some musicians - see it as a way to maintain their right to
extract revenue from the use of their intellectual property. And for
the listeners, who are after all the source of market demand, DRM
provides mainly headaches but few tangible benefits. While much of the
Digital Rights Management debate concentrates on legal, economic, or
technical issues, we focus on the implications of such issues for the
user experience, which we believe will be a primary determinant of the
success of DRM systems2. We finish with a set of questions and
recommendations that are particularly focussed on the Australian
environment and its musical production.
DRM emerges from a specific set of problems within the content
industries in the wake of technological changes that have radically
transformed the range of available content, and the methods for
obtaining it. These changes include the shift from analogue to digital
technologies in the production, distribution and storage of musical
and other content, and the associated increase in the flexibility of
content formats which can now be reconfigured, remixed, and
redistributed quickly and easily using standard consumer devices. As
the INDICARE report on consumer acceptance of DRM noted:
So what have consumers got in the past thirty years, during the
evolution from VCRs to portable MP3 players? They have got used to
obtaining content conveniently - they do not even have to stand up
from their chairs any more - and having other (in many cases cheaper)
ways to obtain content than buying it in shops.3
However, for reasons which at least appear commonsensical, content
providers do not want their products to be transferable anywhere and
reproduced free of charge. They are unhappy with the inability of the
law to deny access and discourage copying, even though the history of
failed legislative attempts to limit consumer choice and convenience -
from the fixed-frequency radio sets of the 1920s to the debate over
cassette tapes in the 1960s and 70s or present-day region-encoding
schemes for DVDs - already points to the ultimate futility of such
efforts. Therefore, content industries are working with technology
developers to deploy a range of measures to provide ‘digital
enforcement’ of rights protection. As Lawrence Lessig has
demonstrated, ‘code is law’, and software is an instrument that
constrains and enables behaviour, outside of the legal system we
traditionally rely on4. This observation can be further extended to
also include some of the hardware measures used to enforce DRM regimes.
A form of ‘vigilante justice’ by IP holders, DRM-related
Technological Protection Measures (TPMs) can be seen as an attempt to
bypass any legislative “copyright bargains” which have
traditionally been struck between the incentives for commercial
producers and the public benefits from non-commercial circulation. The
network of devices existing under any specific DRM regime becomes a
separate jurisdiction in its own right, and raises fundamental
questions about the ability of nations such as Australia to legislate
in support of the development of their culture and content industries.
When Windows computers automatically download ‘Windows Media Player
10′ updates from Microsoft, altering their embedded DRM structures,
neither Microsoft nor the users are waiting to consider whether these
changes provide any ‘national benefit’ to Australia, or whether
indeed they are compatible with the various types of copyright
exceptions specified in Australian law. For the end user, the
‘copy’ menu item will simply be greyed out, with little or no
ability to appeal this change in order to uphold traditional ‘fair
dealing’ or other legislated rights.
Thus, national policy in this field will continue to play ‘catch
up’ with processes that are largely outside the control of individual
nation-states. The technological DRM systems predominantly in use
today overwhelmingly emerge from the United States, and following the
signing of the U.S.-Australia Free Trade Agreement we can expect
greater harmonisation of Australia’s intellectual property regime
with that of the U.S. - although as Young and Collins5 have pointed
out, this harmonisation will be selective. Australia has a markedly
different economic position in the global music industry from that of
the United States, and may have economic interests that are often
opposed to the aims of the major U.S. music and technology
corporations. Kim Weatherall has noted that through this bilateral
trade agreement Australia has committed itself to a detailed 29-page
IP framework which has had no formal assessment by relevant government
bodies such as the Productivity Commission, and reviews of the FTA
either ignored the IP chapter or even suggested negative implications
for Australia’s economy.6
Senior Staff Attorney Fred von Lohmann from the Electronic Frontier
Foundation uses Jessica Litman’s formulation on how debates over
copyright legislation appear from the end user perspective. Overall,
it is fair to assume that the public has little incentive to reduce
infringement for its own sake. However, ‘taken to the extreme,
rampant infringement will result in the collapse of the music, movie
and publishing industries, say copyright owners.’ As a lawyer
responding to such claims on behalf of the public, ‘you would likely
treat this argument with some skepticism. While unlawful copying is
(and always has been) a problem, no one is proposing that copyright
law be eliminated. Accordingly, copyright-based incentives for
continued production of creative works will remain.’7 From the
public’s perspective, then, the question associated with Digital
Rights Management is not how DRM technologies can be used to stamp out
unsanctioned content use completely, but how they can be deployed to
ensure such incentives for content producers without infringing on the
rights of end users, or criminalising them altogether.
However, for legislative and technological reasons, it appears
increasingly likely that decisions in US entertainment and
intellectual property law, which may have previously acted as a marker
or guide for local scholars, will increasingly become an integral part
of the Australasian legislative framework as well. The DRM systems
that are possible or imaginable in the local environment are unlikely
to be unique; they will largely be instances of global platforms and
protocols. Rather than inventing an ideal DRM system, the challenge
will be to forge a shared understanding of local priorities in this
global field that is heavily shaped by non-local legal, economic, and
technological concerns. Consequently, we summarise both local and non-
local issues from the DRM literature and a series of interviews, with
the purpose of assessing where the significant ‘points of leverage’
that shape the system might be found.
This paper draws upon 20 semi-structured interviews with musicians,
performers, intellectual property experts, broadcasters, economic
development agencies, collecting societies, industry bodies,
commentators, and academic experts in Australia and New Zealand. The
interviews were conducted in-person by Danny Butt between October 2004
and February 2005, with locations provided in the notes. Interviewees
were asked for comments on wide-ranging topics including: copying,
sampling, and re-use of music; clearances and collection agencies;
trends in intellectual property law; alternative rights management
systems; DRM systems, and the future of digital music. The aim was not
to test particular hypotheses about DRM, or gain a representative
consensus on key topics; but rather to gain illustrative perspectives
on these issues from a variety of points of view.
The Stakeholders in DRM
Protection against duplication has been the overwhelming driver of DRM
adoption, even though DRM can be used for other purposes, such as
specifying use rights and tracking royalties. Content providers have
posited that strong DRM measures will result in a benefit for
consumers as more content is being made available again. This claim is
usually justified through a prediction of increased participation in
the digital content arena by content providers if they feel more
secure. The validity of this claim has yet to be tested, however -
indeed, there is a great dearth of independent evidence that increased
copyright infringement through filesharing and other exchange systems
has had any direct negative impact on the development of new content
However, there appears little if any direct consumer benefit built
into DRM systems. In an Australian industry panel on DRM in 2004, Kim
Anderson of Southern Star Entertainment suggested that ‘there is
almost a complete contradiction between what users and rights-holders
want in terms of portability and flexibility.’8 Currently, consumer
electronics manufacturers and computer software developers are doing
their utmost to develop users’ expectations of the digital network as
an environment to share and transform content - witness, for example,
Apple’s ‘Rip. Mix. Burn.’ campaign; in addition, there is also a
strong tradition (from filesharing platforms such as the original
Napster through to other content and information exchange systems
including podcasting, Audioscrobbler, or the Internet CD and movie
databases) of users themselves developing the tools to enhance their
experience of digital content. Amidst a surfeit of content, users look
for new ways to manage and experience that content through a
combination of such tools and new hardware devices such as iPods and
personal video recorders. As Foxtel CEO Kim Williams put it on the
same panel, these devices reduce consumption versus ‘lifestyle
Compared to the device manufacturers, however, content providers
remain in a largely defensive and reactive position, concentrating on
legal avenues to limit the power of these new tools and devices rather
than on the development of new business models. Their stance is also
further complicated since a number of device manufacturers coexist
with content providers under the same corporate umbrella - so, for
example, Sony Electronics’ line of MP3 players, DVD burners, and
personal video recorders can be seen as a direct threat to Sony
Music’s revenue streams, while sales of AOL broadband access are
driven in good part by the very filesharing practices which Warner
Music would prefer to stamp out.10
Thus, the question which we believe will drive the development and
acceptance of DRM systems is: “Who can remain close to the
customer?” For example, who does the listener turn to when finding
music? Historically, this has shifted from the live performer to the
venue owner, the radio station, and the music video programme.
Currently, demand in digital music is overwhelmingly driven by the
computer and device manufacturers, who must balance the needs of
labels and the desires of consumers, and consumer initiatives (such as
filesharing) themselves, which focus almost entirely on the needs of
the end user. As the labels express their desire to regain control of
the listener relationship in the online environment, a range of
different business models and technical platforms with different and
incompatible DRM systems will continue to emerge. However, the success
of Apple’s iTunes Music Store shows that users have a clear
preference for unobtrusive DRM systems, convenient access, and
“ownership” (rather than rental or subscription) of their music
The challenge for major content companies will be to move back into a
position of supplying what the customer wants (and building a
sustainable business model around this transaction) instead of
preventing customers from getting what they want. In the meantime,
however, they will jostle for legislative support (increased penalties
for piracy, mandated DRM, outlawing the bypassing of technological
protection measures, etc.) to shore up existing business models.
Electronics and computer companies try to maintain customer demand
through innovative products, on the other hand, while attempting not
to alienate too many of the content companies who may refuse to
license their material for platforms that do not support complete
content company control over the digital content experience. User
advocates will attempt to maintain the traditional exemptions
associated with copyright in a digital environment even though DRM can
be used to undermine them. Users themselves will continue to pursue
usage they now see as ‘customary’ in the digital environment: the
ability to shift formats of recordings through time and space, in the
process making copies for personal use. The interplay between these
groups will shape the future success of DRM and alternative licensing
schemes, and we suggest that in light of the continuing failure of
‘hard DRM’ approaches to win consumer approval and change end user
practices there will - and must - be a move toward more consumer-
oriented DRM design and business models.
Drawing from our interviews, we have developed a clear picture of two
relatively discrete “music ecologies” at work in digital music,
each with their own legal, economic and cultural dynamics. This
analysis perhaps reflects other literature in sociology and economics
that describes a bimodal nature of informational economies11.
The first is the “industry”, dominated by the five major record
companies; their vertical integration with other major media, retail,
and hardware / software companies; as well as their articulations into
various policy-making bodies. The tightly-integrated ‘distribution-
driven ecology’ of the major industry sector is overwhelmingly
driving the adoption of Digital Rights Management. Wallis et al. point
to a wide range of literature identifying an increasing concentration
of ownership in the global industry, and concomitant formal and
informal integration within and between different sectors12. Together,
Polygram (Netherlands), Sony (Japan), Warner (US), EMI (UK) and BMG
(Germany) account consistently for 70-80 percent of global music
sales. The mainstream industry is also characterised by a marked
disconnect between content providers and audiences - major labels (and
even some major acts under contract to them) are seen predominantly as
commercial operations which engage in exploitative business practices
and command little listener loyalty, if not even engendering outright
The second ecology is constituted by a much more disorganised set of
relationships among mostly (but not exclusively) independent
producers, distributors, markets, and audiences. While its share of
the market is smaller, it constitutes a much higher number of
musicians (employment) and musical products (i.e. intellectual
property). The primary drivers in this ecology are production and
niche market demand, and while the taste cultures supported by this
ecology frequently span the globe, the companies involved often have a
much stronger local basis than the majors.13 For smaller economy
policy-makers, this ecology therefore also offers the most sustainable
national benefit. As Murray Jeffrey from New Zealand’s economic
development agency NZ Trade and Enterprise points out:
We’ve got something like 80 or 90 independent record companies in New
Zealand. MP3 is a huge opportunity for them. Getting on the radio in
the US is not going to happen without a huge investment. It [the
digital distribution channel] might be a niche market but in a large
export market a niche is more than our national sales.14
This tier of the industry is able to build on a much stronger sense of
customer loyalty - to individual artists, but frequently also to
labels themselves where they are seen as strong supporters of specific
Industry development and DRM
The development of the ‘music industry’ is not a straightforward
proposition. A recent briefing on the needs of the Australian music
industry concluded that the majority of the challenges facing the
industry could be traced to a lack of integration and cooperation,
particularly in terms of communication to key stakeholders (government
and community)15. What is rarely explored is that the economic
interests of various parts of the industry are not only different, but
ultimately opposed. For the local arms of the multinationals, the
highest revenue comes from sales which have minimum investment in
product development and rely on their cross-media marketing and
distribution networks: e.g. overseas ‘hit content.’ For local
musicians, a healthy independent scene, particularly at the publishing
level, may be the surest path to sustainable development. The same may
also be true for regional economic development strategies. These
generally have employment and IP generation as their goal, and thus
have an incentive to support the producer-driven ecology. As Kate
Oakley points out:
Brand development, marketing and the boosting of sales of a local
artist, even by a big label, is of no major economic benefit to
Queensland’s economy if the State loses the rights on income through
intellectual property (IP) on the artist or his or her production.16
One might note that the intellectual property rights of local
musicians are important, and DRM can surely benefit them. Anti-DRM
campaigners are sometimes aligned with anti-copyright movements, but
important distinctions must be made. The critique of DRM is not a
critique of artists’ rights to make a living from their work. Few
anti-DRM campaigners claim that copyright laws should be overturned.
Instead, it is noted that existing DRM systems are focussed on the
distinctive needs of a few very large companies and exceed the
provisions of the law, but that it is very difficult for independent
artists, businesses and users to shape DRM systems to their own needs.
As Chris Atkins suggests, usage tracking is a potential boon to the
independent artist, but the overwhelming emphasis of DRM systems is on
protection against casual copying, rather than these more positive DRM
features. It is also worth noting that regardless of the success or
otherwise of DRM measures in policing copyright, ‘in an industry
founded on exploitation, oiled by deceit, riven with theft and fuelled
by greed’ (as veteran musician and record label operator Robert Fripp
has famously put it17) most musicians continue to receive only a
minute share of the revenue from sales of their music, *after* label
expenses have been recouped. Where this is the case, most musicians
are likely to have only limited interest in supporting standard DRM
Thus, content protection technologies in DRM are *designed for
dominant players in the market*. When applied to less popular content,
they form a barrier to its discovery, use, and popularity. It is
interesting to observe in this context that even Microsoft will not
pursue technical forms of IP protection in markets where it is not in
a dominant position. Scheiner notes that Microsoft’s Steve Ballmer
has been quoted as wanting to enable Windows to be pirated in China in
the short term, as a way of gaining mind share. He suggests that new
entrants in a market always benefit from having their content pirated
in the short term18. This is hardly a new approach for Microsoft - its
MS-DOS operating system was one of the most pirated software products
of the 1970s and 80s, contributing significantly to the current market
position for the successor platform Windows - but it does undermine
the music industry’s claims that copying (whether in the form of
taping, ripping, or filesharing) inevitably ‘kills music’.
This is because, unlike many other commodities, music is highly
diverse and not always substitutable: it is the circulation of music
which creates the demand for a particular piece of music. For example,
I may feel like going out to buy a new CD. Choosing between hip hop
artists Eminem and 50 Cent, my preference for one or the other may not
be great, and so the price of these CDs may be an influence in my
decision. However, this situation differs from the music listener who
hears Shania Twain on the radio then decides to buy the CD. They are
not going to buy an Eminem CD (or a Britney Spears CD) even if it is a
quarter of the cost. This is how circulation of music generates
demand. (In the U.S. this is recognised for example in the fact that
terrestrial radio stations are not required to pay sound recording
royalties to music publishers for broadcasting their songs - instead
their doing so is considered to provide a beneficial free service to
the music industry.19) As Petrick notes, ‘the introduction of a work
that is diverse enough in relation to the other works may create new
value by creating previously non-existent (or below price level)
demand.’20 The challenge for independents is almost always creating
demand, and given the market demand for artists with a track record,
it makes sense that the challenge in the short term is building a
critical mass of audience support.
However, the economic implications of prematurely controlling copying
through heavy-handed Digital Rights Management regimes are not limited
to the end listener’s experience and limiting consumer demand. In
environments where digital production, sampling and remixing are the
norm, DRM can equal a direct loss of licensing revenue opportunities,
as effective sampling can rarely be predicted prior to use. As
Melbourne electronic musician Andrew Garton notes, ‘If I think about
using something as a sample, I copy it, see if it works, and then
think about rights issues later. If I can’t copy it, I’ll use
something else.’21 The irony is that even artists whose work is based
on sampled material may have its re-use compromised by DRM. This was
the case for hip-hop group the Beastie Boys, who eventually had to
apologise to their fans for the copy-protection applied by label EMI
to their CD22.
Beyond such well-known celebrity cases in the commercial arena, wider
cultural and economic issues are at play. Sampling, remixing, and
other forms of creative content reuse and reappropriation (or even de-
propriation, as one group has called the practice23) have now become
part and parcel of the growing trend towards grassroots and vernacular
creative practices which have emerged especially in reaction to the
rise of digital media production and distribution technologies.
Commentators such as Leadbeater24 and Howkins25 point to the fact that
Western economies are swiftly developing into creative economies which
are based in good part on DIY cultural practices and the growing
cultural participation of previously passive audiences as active ‘pro-
am’ content producers26. The creative community acts as both user and
producer of content, and increasingly combines both practices in the
act of what can be termed ‘produsing’27 - the collaborative
creation of new content based on existing material from other sources.
Such content has significant potential both from a cultural point of
view, as it enables a wide swathe of society to be active cultural
participants rather than merely passive recipients of content, and
from a narrower economic perspective as this increased cultural
production is also likely to spawn new commercially viable content,
content genres, and content producers.
However, current intellectual property provisions, already
significantly extending traditional copyright terms beyond the life of
the author and now reinforced through hard DRM measures, significantly
stifle this trend towards more ‘pandemic’ DIY creative practices.
They make it difficult for grassroots creatives to draw on existing
content, as they do not have the legal resources necessary to
negotiate clearances. As a partial response to this crisis, recent
years have seen the successful introduction of the Creative Commons
project28 - not as a way of eradicating intellectual property (as is
sometimes claimed by its detractors), but as a means of specifying
copyright-style usage limitations which are more conducive to
widespread creative practice while maintaining the moral and (where
required) economic rights of authors. The Creative Commons system,
which is based on a set of clearly formulated content licences,
reintroduces certainty about user (including re-user, i.e. remixer)
rights and limitations for each piece of content to which its licences
are applied, and thereby significantly reduces transaction costs for
content use while increasing the potential for creative reuse and
Currently, creative commons licences are attached to content mainly in
the form of visible or invisible metadata (for example as part of
Website metadata structures or through the embedding of CC licence
logos and links in pages or text files which accompany licenced
content). There is nothing which would prevent the application of DRM
frameworks and technologies to CC-licenced content, however - deployed
in this fashion, DRM tools could therefore be used to specifically
permit and even encourage further uses of licenced content rather than
mainly preventing them.
Copyright Exceptions and Fair Use
In addition to such new approaches, countries with developed
intellectual property policy frameworks tend to retain various
exceptions or exclusions from the unique license to exploit
intellectual property. The exemptions recognise that fundamental
conflicts exist between the property rights of the rights holder and
the rights of freedom of expression and privacy of the user, as well
as dividing the ‘bundle of rights’ between the product owner and IP
owner29. A second rationale accounts for the “public good” nature
of creative works in an economic sense. In the former British
Commonwealth, these consist of various exemptions (’fair dealing’),
mostly for the purposes of “research and private study” or
“criticism, review and news reporting”. Uses outside of these areas
cannot be considered fair dealing, no matter how ‘fair’ they are.
The right to engage in fair dealing is considered a right of the user,
and the Commonwealth system is focussed on the balance between user
and authorial rights.30
In the United States, a less settled doctrine of ‘fair use’
provides for the ‘public good’ nature of creative works more
directly - rather than granting rights, fair use is assessed in terms
of whether it promotes overall the ‘Progress of Science and useful
Arts’. The beneficial aspects are expressed in economic terms by Paul
Petrick: ‘music has potential positive externalities that a copyright
holder cannot assess nor recoup when selling it; fair use provides a
means to subsidize uses that create sizeable value.’31 Thus many of
the most interesting legal cases relating to DRM have taken place
under U.S. law, as activities such as peer-to-peer (P2P) file sharing
are illegal per se in the Commonwealth, regardless of whether they
advance the cause of music or not. In fact, digital music players such
as Apple’s iPod have almost no legal use in Australasia, even though
the devices themselves are not illegal and everyone buys them to
engage in illegal activity - listening to CDs they have bought in
Many of the exceptions to both copyright and fair use rights take the
specific situation of use and consumption into account. However, this
is rarely the case for Digital Rights Management systems, which
concentrate on allowable uses predetermined only by the content
owner32 - DRM systems development at present remains driven mainly by
what is possible from a technological point of view, not by what is
required or desirable from a cultural, social, or moral perspective.
While there has been some work done on so-called “symmetric” Rights
Expression Languages (RELs) that can provide context sensitivity and
can enable requests for special exemption, these are faced with many
problems, not the least of which is a lack of a key institution to
resource handling of these requests. In the analogue world, consumer
requests for exemptions are essentially granted *until* a claim
against them is made in a court by the content provider. DRM takes
precisely the opposite approach, meaning that the courts never get to
decide (unless for example cases are brought to determine whether
certain DRM regimes undermine basic civil liberties).
DRM AND THE END USER
While industry associations talk up the perils of piracy, the average
user’s resistance to DRM is often for more mundane reasons, and these
raise a number of significant legal and policy issues.
Music with DRM is a product that might be called ‘usage-
impaired’33. From the consumer or user’s point of view, use
restrictions may prevent them from private copying or backing up;
using content on various devices such as MP3 players (despite there
being no legal way to purchase many artists’ music in a digital
format that is not bound to a physical carrier medium such as CDs or
DVDs); and using it in different locations (some copy-protected CDs
will not play on certain makes of car stereo or computers), not to
mention an overall reduced ease-of-use for accessing content.
Slowinski notes that DRM tends to create time-consuming workarounds
for non-infringing uses of content, and this particularly affects not-
for-profit organisations such as educational institutions and
As DRM systems are further interwoven with so-called ‘trusted
computing’ platforms, such problems are likely to be further
exacerbated. Trusted computing is the latest in a series of exchanges
in a technological arms race between hardware manufacturers (acting in
concert with copyright industries) and independent users (seeking to
circumvent any usage restrictions introduced through hardware or
software measures); it aims to introduce hardware measures which
either prevent unsanctioned content uses altogether or at the very
least make such use more easily traceable through unique machine
identifiers. While in theory hardware-based measures to this effect
will be more difficult to overcome than software-based protections, it
is likely that they will only delay rather than completely prevent
circumvention; as the history of region encoding in DVDs has shown. In
fact, hardware manufacturers themselves are often complicit in the
development of circumvention measures since insurmountable usage
limitations impact negatively on sales. Too heavy-handed approaches to
trusted computing are also likely to speed the exodus of users from
proprietary platforms towards open source operating systems.
This illustrates the intertwining of business, cultural, and social
issues in DRM. The business rules established by software and hardware
vendors for content protection can affect consumer rights and use
practices in ways which are as relevant to consumer protection law as
they are to copyright law. For example, the usage rules associated
with rights-managed content are rarely transparent. The widespread use
of complex ‘click-through’ or ’shrink-wrap’ licenses - where
users are asked to agree to extensive terms and conditions before
using digital products - creates uncertainty at the purchase level
A deeper concern is privacy. For DRM to work, data associated with
identity and authentication must usually be provided to the vendor.
However it is difficult for the user (or governments) to monitor how
this information will be used and protected. Many consumer groups such
as the European Consumer Organisation (BEUC) are concerned about the
impossibility of anonymous access to content under DRM regimes. Under
this scenario, it is unlikely that users will trust a number of
smaller providers with their data. There is a clear role for third-
party authentication schemes or government intervention in this
context - however, this brings with it the danger of excluding better
platforms for rights and identity management.
A final issue is whether the desire to protect content through DRM
technologies (and the associated legal support) is cost-effective or
worthwhile. Technology commentator Mark Pesce claims that users will
always find ways to bypass overly restrictive rights management
systems, and this has been proven in the history of digital media
technologies. Instead, he advocates for the commercial potential of
such systems - suggesting that the iTunes model proves that users will
happily pay for content if it is delivered at the right price in the
most convenient format35. Far from trying to squash Bittorrent,
content providers could see it as a massive *investment* by users in
the distribution of content.
Working with users
The standard music industry anti-copying slogan ’stealing kills
music’ is demonstrably wrong in its overly generalising approach, and
is therefore widely dismissed by users - copying does not necessarily
equate to stealing, while as a form of additional exposure for artists
copying can even help *increase* sales. However, amongst the majors,
DRM is currently viewed as a means of preventing or at least severely
inconveniencing uses of music that are often seen by a majority of
users as customary and acceptable. For example, from the listener’s
perspective, duplicating CDs for private use in one’s car does not
impact on sales since one does not expect to buy multiple copies of
the same CD. However, this experience is not reflected in the rhetoric
of industry bodies such as the Australian Federation Against Copyright
Theft. Their executive director, Adrienne Pecotic, suggests, somewhat
“Consumers are not entitled to replacement goods if they break their
crystal glasses or stain their new clothes. Once a right exists to
create an unprotected copy of a DVD film, that film is then exposed to
unrestricted copying, whether a single copy for personal use or 10,000
copies for sale around the world.”36
Quite apart from the common industry hyperbole which sees any one copy
as inevitably spinning out of control to become part of a major
counterfeit trade, this metaphor is also flawed in that DRM-protected
CDs or DVDs should be likened more accurately to crystal glasses which
are only able to hold one type of beverage, or clothes which can be
worn only at specific hours of the day. DRM-protected CDs or DVDs
constitute a product whose uses are so severely restricted that it can
be regarded as inherently defective. As a result, the listener
experience with DRM is as a strategy that seems greedy. In buying CDs
listeners purchase a licence to access intellectual property, and CDs
cost twenty times their manufacturing cost due to such intellectual
property considerations. But when listeners want to shift this
intellectual property to another format for convenience, they are
forced to buy the licence again as if a CD was a purely physical
However, rather than just making consumers buy things twice because
one can, it is possible to use tools developed for DRM for other ways
of stimulating the music economy. For example, watermarking of tracks
can establish a relationship between a digital audio file and a
specific user who may have paid for it. Other users who access this
file can be directed to a Website where they are encouraged to buy
other tracks, albums, or merchandise. It would be possible for the
original user to get a cut on these transactions, providing an
encouragement for them to share the track in a way that generates
revenue for the artist. At least in the second tier of the music
industry, there often exists a strong loyalty between artists (and
sometimes labels) and listeners, and such constructive approaches to
using DRM may well prove successful where the more standard cease-and-
desist belligerence of the mainstream music industry only engenders
further animosity and resistance. Another business model could involve
tracks that contain advertising, which can be removed on payment. Or
unauthorised tracks may even just remind the user of their
obligations, relying on a moral incentive.
While the potential models obviously rely on technological solutions,
the overwhelming focus on content protection in the industry must be
seen in the context of a *lack* of investment in innovative and user-
friendly approaches. For the oligopolistic major labels, who make
little investment in their own brands for consumer purposes, there is
little to fear from consumer backlash against their DRM tactics.
Listeners just won’t buy digital music, rather than not buying from
BMG or Sony in particular. This represents a great opportunity for
independent or artist-run labels who establish stronger presence in
consumer consciousness. They may also significantly *profit* from the
use of filesharing and other (technically copyright-infringing)
technologies as a form of word-of-mouth marketing - it is worth noting
in this context that despite claims to the contrary there is little
evidence to suggest that filesharing has had any statistically
significant effects on music sales.37
According to Audible.com CEO Donald Katz ‘the realm of piracy will
diminish most profoundly when the consumer perceives a great product
at great prices from good people with well-meaning aspirations’38 and
Condry notes that his students reinforce this point when asked ‘Is
there some music you would always pay for?’:
Most students said yes. They mentioned indie artists, or artists from
their hometown, whom they know ‘need the money’. Some students
identified major groups ‘with a solid track record of good albums’.
Other students mentioned entire genres of music, notably, jazz and
classical music, because ‘they stand the test of time’, and because
they are not adequately supported by major record companies.39
Ultimately, then, instead of a continuing, costly, but futile DRM arms
race between IP holders and IP users, it would seem more effective to
develop a more consensual and cooperative approach to deploying DRM
systems. This would include fair pricing and fair usage limitations
and a form of DRM policing that is based less on litigation than on
encouragement for users to activate the desire to pay for content
mentioned by Condry’s students above. It would harness existing user-
driven content exchange spaces as means of promoting new content,
rather than dismissing them simply as a realm of piracy - in essence,
this approach appeals more to users’ ethics rather than their fear of
It is not inconceivable that a deepening split between the sectors
will result from this, even leading to the emergence of at least two
clearly distinct DRM regimes - one that serves the major label
interests, and one more suited to smaller, independent artists or
those from smaller economies. While the generally diffused nature of
the second tier might hinder effective cooperation on developing new
DRM approaches (at least in comparison with the concentrated efforts
of the first tier), governments - especially those outside the US -
could play an important role in helping the second tier coordinate its
efforts. As noted above, the independent and often locally based
sector of the music industry is an important contributor to national
and regional economies in many countries, and should be supported in
areas where its growth is at odds with transnational mainstream music
An effective, non-adversarial DRM system, perhaps with ties to
collection societies which focus on distributing royalties fairly to
artists rather than mainly benefiting the major labels, could sustain
local music industries, support widespread DIY cultural production,
and halt the current trend to criminalise music users for customary
small-scale infringements. Government policy could support such
developments, and in the process would also help avoid the emergence
of a global DRM monopoly controlled by the major music labels and
hardware manufacturers. By contrast, the emergence of this monopoly
would provide its operators, which also happen to be the major players
in the global music industry, with a means to lock non-compliant
content producers out of the market altogether. An interesting policy
proposition by Weiser suggests that governments may have a role in
supporting ‘competitive platforms’ as part of their innovation
policy, whenever there is a chance of a platform monopoly stifling
Pesce mentioned above the self-education of users as a distinctive
trait of the contemporary digital environment. Many users have also
taught themselves how to, for example, disable region-encoding on
their DVD players, block pop-up ads on their Web browser, or check for
spyware on their computer - with such success, in fact, that pop-up
blockers have now been included as standard features in Internet
Explorer and other browsers, and that region encoding can be said to
have soundly failed in its mission to maintain geographically separate
markets for DVDs. Users do this because they feel they have a right to
use the products they have purchased in whatever ways they see fit,
and to bypass licensing restrictions that are seen as out of step with
their understanding of property. Cory Doctorow contrasts the ‘private
laws’ (such as region encoding) that have sprung up in the digital
environment with the copy protection attached to a book, which can be
taken anywhere and sold or given away after use. It is the kind of
‘objectness’ associated with the book or the CD that perhaps
provides the model for how we expect our digital content to behave.
However, in the digital environment the competing standards of
possible file types, DRM systems and operating systems further
complicates the market for content. This interoperability is one of
the key challenges facing content providers today, and the work of
Europe’s High Level Group on DRM reiterated its importance41.
Interoperability between devices and platforms is needed to allow
customary uses such as time and space shifting, but also to reduce the
risk of customers losing access to their purchases if software and
hardware become obsolete, a significant barrier to trust in e-content.
Unfortunately, manufacturers and content owners have short-term
incentives to create proprietary DRM systems that do not interoperate
with others (maintaining barriers to entry and protection of incumbent
This is due to a phenomenon called suboptimisation, where the
individual interests of actors in some imperfect markets result in a
less beneficial outcome than would otherwise be possible. In this
case, DRM might reduce total market and social good, but industries
will still pursue it. ‘This is due to the fact that price
discrimination [available through DRM] increases the ability of a
producer to appropriate a larger proportion of the surplus created.
Thus, it is possible that while total surplus might decline, a
producer’s profits might increase’42. However, through incentives
to collaborate, a larger overall surplus may be able to be obtained.
But as Bremer and Buhse point out, another reason for the lack of
common DRM standards is that the requirements are very different at
different points of the value chain, and so the different stakeholders
have conflicting views on what would constitute a viable DRM system43.
William Fisher makes the strongest argument for a system that will
overcome the economic issues of suboptimisation that come from
privatised public goods44. He shows that a levy system could be
devised that would fairly compensate artists while reducing
transaction costs for music listeners. However, while his scheme
benefits many in the digital music ecology, it does not benefit the
long term strategic dominance of the major players, which greatly
reduces the likelihood that it will be taken up in the current
political and economic environment. Nevertheless, Fisher includes a
role for DRM systems in tracking usage, which could be of great
benefit to independent artists, labels, and collecting societies. What
seems more likely, however, is that usage tracking mechanisms are
employed to determine compensation among the rights holders and
distribution partners, without recourse to public good requirements.
This is an area where collecting societies have been trying to
position themselves as well placed to manage the process of collection
and distribution. However, whenever collection societies attempt to
position themselves as intermediaries, there is a swift response from
the industry. In Australia, the Australasian Performing Right
Associaton (APRA), representing songwriters and publishers, has called
for a Canadian-style levy on blank CDs, DVDs and digital music players
to compensate artists for the effects of copying. However, the
Australian Record Industry Association tends to view such solutions as
both unnecessary and a legitimation of copying it sees as simply
Wallis et al. believe that the shift of copyright revenues from
physical distribution to intellectual property rights will benefit IPR
owners, with the “danger that the revenue distribution of IPRs will
only be safe for the most successful artists and largest record
companies, and that barriers to entry will be erected against smaller
companies and less known entrepreneurs.”46 With the majors
controlling 80% of the revenues flowing through the collecting agency
system, there is a strong economic incentive for them to gradually
withdraw from this system in favour of their own arrangements. It
appears that DRM is likely to bring a massive transformation in the
entire infrastructure of music circulation.
The interplay of technical and legal barriers to use through DRM
leaves the consumer with digital music systems that:
a) prevent consumptive uses which should be allowable under fair use/
b) lack workable provisions to exercise legal exemptions,
c) have contractual restrictions on legal exemptions that would
otherwise be available47,
d) are not usable on many free operating systems, and
e) require tightly integrated hardware and software (”trusted
computing”), leading to “digital lock up” - a reduction in user
choice of technology.
While there are no simple solutions to these troubling issues, we can
note three broad strategies that must be addressed to achieve a viable
future for digital music.
The first is a review of copyright law, in light of the fact that in
light of the fact that copyright developed in very different social
and technological situations, with differently commodified relations
between producers and consumers than we have today. Copyright law
defines the rights of rights holders of a work, but not the rights of
users. There is a need for “enforceable consumer rights” that are
not infringed by DRM, click-wrap licenses etc.
The second is to address the low level of consumer and consumer-
advocate involvement in discussions with respect to Digital Rights
Management. While this burden primarily falls to technology and
content companies who must take user rights more seriously, there is
also an important role for government and academic bodies in brokering
discussions across the domains of business, policy, artistic creation,
and end users. It will be the through the formation of shared
understanding - as opposed to defensive tactics - that the prospect of
successful Digital Rights Management will emerge.
The third and final strategy falls to governments: it points to the
need to support alternative platforms for rights-managed digital
content. This would ideally be directed to the needs of local or
independent producers for the purposes of supporting creative and
economic development. But even more importantly, it will mean that a
monopoly situation is avoided and more control is retained over policy-
making for cultural and economic objectives. A monopoly DRM
environment truly functions as private law, and the laws governing the
social and economic future of our creative sector are too important to
outsource to overseas technology and entertainment companies.
1 * Corresponding Author. Danny Butt was employed by QUT for this
project, which received funding from a Queensland University of
Technology Strategic Initiatives Grant.
2 INDICARE, Digital Rights Management and Consumer Acceptability. A
Multi-Disciplinary Discussion of Consumer Concerns and Expectations.
(2004) <http://www.indicare.org/soareport> at 20th January 2005.
3 Ibid 73.
4 Lawrence Lessing, Code and Other Laws of Cyberspace (1999).
5 Sherman Young and Steve Collins, ‘Fair Enough? Copyright and the
Australia - United States Free Trade Agreement’ (2004) (Paper
presented at the Mobile Boundaries / Rigid Worlds : The Contemporary
Paradox, Macquarie University, Sydney, 28th September).
6 Kimberlee Weatherall, ‘Locked In - Australia Gets a Bad
Intellectual Property Deal’ (2004) 20 (4) Policy 18-24.
7 Fred von Lohmann, Fair Use and Digital Rights Management:
Preliminary Thoughts on the (Irreconcilable?) Tension Between Them
(2002) Electronic Frontier Foundation at November 20 2004.
8 See Danny Butt, Report on Digital Rights Management and Cooperation
Seminar (2004) Association for Progressive Communications <http://rights.apc.org.au/culture/2004/10/report_digital_rights.php
> at 29 October 2004.
10 See, eg, Frank Rose, ‘The Civil War inside Sony’ (2003) 11 (2)
Wired. <http://www.wired.com/wired/archive/11.02/sony.html> at 28
11 See, eg, Otomar J. Bartos, ‘ Postmodernism, postindustrialism, and
the future’ (1996) 37 (2) The Sociological Quarterly 307-326; Saskia
Sassen, The Global City: New York London and Tokyo Updated Edition
12 Wallis, Roger, Charles Baden-Fuller, Martin Kretschmer, and George
Michael Klimis. ‘Contested Collective Administration of Intellectual
Property Rights in Music The Challenge to the Principles of
Reciprocity and Solidarity’ (1999) 14 (1) European Journal of
13 A similar ‘major’/'minor’ dichotomy also became highly visible
in the recent conflicts over Webcasting royalty frameworks in the
United States - see, eg, Axel Bruns, Fight for Survival: The RIAA’s
Sustained Attack on Streaming Media (2004) M/C Journal <http://journal.media-culture.org.au/0302/07-fightforsurvival.php
> at 28 April 2005.
14 Interview with Murray Jeffrey, New Zealand Trade and Enterprise
(Auckland, 19 October 2004).
15 Allen Consulting, An Integrated Approach for the Australian
Contemporary Music Industry (2004) <http://www.allenconsult.com.au/contemporary_music
> at November 2 2004.
16 Abraham Ninan, Kate Oakley and Greg Hearn, Queensland Music
Industry Trends: Independence Day?, ISBN: 1 74107 056 2 (2004) 29.
17 Robert Fripp, DGM’s Founding Aims and Mission Statement (1997) <http://www.disciplineglobalmobile.com/foundingaims.sht
ml> at 28 April 2005.
18 Bruce Schneier, Secrets And Lies: Digital Security In A Networked
World (2000), 252-3.
19 Webcasters tried unsuccessfully to use this exemption to argue for
a corresponding exemption for online music transmissions during the
bitter Webcast royalty disputes of 2002 - See, eg, Stephen H.
Wildstrom Royalties: A Royal Pain for Net Radio (2002) <http://www.businessweek.com/bwdaily/dnflash/mar2002/nf20020329_5377.htm
> at 28 April 2005.
20 Paul Petrick, Why DRM Should be Cause for Concern: An Economic and
Legal Analysis of the Effect of Digital Technology on the Music
Industry, Berkman Center for Internet & Society at Harvard Law School
Research Publication No. 2004-09. (2004), 20.
21 Interview with Andrew Garton, (Melbourne, December 7 2004).
22 Cory Doctorow, ‘New Beasties disc has DRM’ (2004) <http://www.boingboing.net/2004/06/11/new_beasties_disc_ha.
html> at 23 March 2005.
23 Snafu, ‘Wu-ming: 54: Re:inter:view’, 2 _ØYES make-world-paper_
(November 2002) 4. <http://126.96.36.199/download/paper2.pdf> at 6
24 Charles Leadbeater, Living on thin air: the new economy (2000).
25 John Howkins, The Creative Economy: How People Make Money from
26 Charles Leadbeater, ‘Open Innovation and the Creative
Industries’ (2004) (Lecture at Creative Industries Research and
Application Centre, Queensland University of Technology, Brisbane, 2
27 Axel Bruns, Gatewatching: Collaborative Online News Production
29 Interview with Brian Fitzgerald, Faculty of Law, Queensland
University of Technology (Brisbane, March 6 2005). The language of
“user rights” has caused some controversy, but support can be found
in, eg, the Copyright and Contract review of the Copyright Law Review
Committee, available at <http://www.ag.gov.au/www/clrHome.nsf/AllDocs/RWP092E76FE8AF2501CCA256C44001…
>. We are grateful to an anonymous reviewer for this suggestion.
30 Associated with the intellectual property provisions of the
Australia-US Free Trade Agreement, the Australian Government is
currently engaged in a review of the fair dealing provisions in
Australian copyright law. See for example the issues paper Fair Use
and Other Copyright Exceptions: An examination of fair use, fair
dealing and other exceptions in the Digital Age (2005) <http://www.ag.gov.au/agd/WWW/agdhome.nsf/0/E63BC2D5203F2D29CA256FF8001584D7…
> at October 6 2005.
31 Petrick, above n 20, 11.
32 Tim Jackson, Comments on the Informal Consultation of the Final
Report of the High Level Group on DRM of the European Commission, DG
Information Society (2004) <http://europa.eu.int/information_society/eeurope/2005/all_about/digital_rig…
> at March 20 2005.
33 INDICARE, above n 1, 24.
34 F. Hill Slowinski, What consumers want in Digital Rights Management
(DRM). Making content as widely available as possible in ways that
satisfy consumer preferences. (2003) <http://doi.contentdirections.com/mr/aap.jsp?doi=10.1003/whitepaper1
> at March 25 2005.
35 Interview with Mark Pesce, (Sydney, 15th February 2005).
36 Adam Turner, ‘Do you copy?’ (2004) <http://www.smh.com.au/articles/2004/09/15/1095221649806.
html> at September 16 2004
37 See, eg, Suw Charman, Listen to the Flip Side (2004) <http://www.guardian.co.uk/online/story/0,3605,1265840,00.html/
> at 28 April 2005.
38 David Becker, An Ear for Downloads (2004) <http://news.com.com/2008-1025-5317234.html
> at April 20 2004.
39 Ian Condry, ‘Cultures of music piracy An ethnographic comparison
of the US and Japan’ 7 (3) International journal of Cultural Studies
40 Philip J. Weiser, ‘The Internet, Innovation, And Intellectual
Property Policy’ (2003) 103 Columbia Law Review 534-614.
41 See for example the overview comments on the website of the EU’s
High Level Group at <http://europa.eu.int/information_society/eeurope/2005/all_about/digital_rig…
> at October 5 2005.
42 Petrick, above n 20, 28.
43 Oliver Bremer and Willms Buhse, ‘Standardization in DRM - Trends
and Recommendations’ (2003) 2770 (November 2003) Lecture Notes in
Computer Science 334 - 343
44 William W. Fisher, Promises to keep: technology, law, and the
future of entertainment (2004).
45 Julian Lee, Click at your own risk. (2004) <http://www.smh.com.au/articles/2004/08/02/1091432115074.htm
> at 3 August 2004.
46 Wallis et al, above n 12, 8.
47 INDICARE, above n 2, 70
Hi all - regarding the copyright conversation: Julian speaks to a statement about the brokenness of copyright.
If you have access to Project Muse, you might be interested in my essay 'Relinquish Intellectual Property',
in the vein of what's being discussed here:
I was disappointed in the visit & talk of Richard Stallmann here last year, but only because of my own obsessions
- he knew nothing about humanities issues. Certainly on the pure tech angles he's a splendid anarchist and might be called
an advocate for Slow Technology (to avoid all the fettering ideas of ownership).
With thanks for this list, on which I usually only lurk........
Associate Professor of English
The University of Auckland
Private Bag 92019
Tel 64 9 373 7599 ext 87092
Fax 64 9 373 7429
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ADA list Digest Version
1. Re: copyright: do we have an opinion? (Julian Oliver)
Date: Tue, 14 Jul 2009 20:42:44 +0200
From: Julian Oliver <julian(a)selectparks.net>
Subject: Re: [Ada_list] copyright: do we have an opinion?
To: adam hyde <adam(a)flossmanuals.net>
Cc: ada list <ada_list(a)list.waikato.ac.nz>
Content-Type: text/plain; charset=us-ascii
..on Tue, Jul 14, 2009 at 06:00:29PM +0200, adam hyde wrote:
> On Tue, 2009-07-14 at 15:31 +0200, Julian Oliver wrote:
> > >
> > > so i really dont think this marriage of copyright to attribution or
> > > cultural development holds. In fact, I would say that copyright has
> > > killed attribution in many ways as copyright attributes credit to the
> > > people that pay for the work. Who holds the copyright for Walt Disney
> > > films? Certainly not the creators, but the Disney Corporation...
> > I think you're mixing the license with the concept here. Copyright licenses,
> > like people, come in many shapes, sizes and dispositions. There are pro-culture
> > copyright licenses, like that Lawrence Lessig and Richard Stallman have created,
> > and then others, like those that give the RIAA federal rights to carry
> > submachineguns and fly black helicopters.
> I would not describe the GPL etc as pro-culture licenses. They are
> necessary hacks to a system whose default position is to stop the flow
> of information. That is the default position for copyright licenses but
> it is also the inherent rationale of copyright. So I dont agree with
> either the ideal of copyright or its legal manifestation.
I don't agree that copyright seeks to "stop the flow of information".
If an author makes something and chooses to give it away after that, allowing
others to remix, share and hack at, then where's the problem with (their)
copying rights? It's a win all round. Their work is still under their copyright,
they made it and that can't be un-done.
To abolish copying rights entirely would be to abandon the basic tenet that the
author of a work has rights to that work, including being able to contest that
s/he made it at all.
Without author-defined, legally-recognised copying rights I sincerely doubt
there would be a culture of contribution such that Free Software projects like
Firefox, Linux, BSD, (Flossmanuals) or Apache could exist, let alone art in an
aggressive mass-market culture industry. It's all about reward, whether that be
social, academic/historic or economic. 300 years ago, before the Berne
Convention, it was a very different kettle of lawyers..
Acknowledgment of authorship is the most basic of copying rights (Berne). That's
where copyright begins. The various copyright licenses - from the Creative
Commons to those you see in the picture theatres - are just legal figures
symptomatic of creators protecting against what they see to be abuse, while
allowing for them to gain from their efforts, in a supposedly free market.
In other words, it would greatly restrict creators' freedom to remove their
right to determine how their work is copied.
Is the problem you have actually with the Authorship rather than copying rights?
> However back to the hacks..., each of these systems (CC / GNU licenses)
> is also necessarily stopping the flow of information because there is
> very limited scope for license interoperability. Until recently CC did
> not themselves understand how their own licenses were interoperable. So
> information cannot even flow between 'open licenses'.
> This is ridiculous.
It's just something that needs to be ironed out. The CC copyright licenses,
which I don't like very much, are just super young and it shows at times like
Regardless of some 'free culture' licenses not being interoperable at times,
each license expresses a distinct need - they would not have been created in the
first place. This is a freedom and a diversity I appreciate. Just like I don't
want there to be an end to authors' copyrights, I don't want there to be a
single license for all culture. Both ideas are equally destructive, IMO.
Hack or not, the GPL has proven to work in the interests of technical cultures
worldwide, it's propelled the growth of Free Software, helped distribute vast
amounts of technical information for all to see and protected the knowledge of
countless thousands of programmers from exploitation by very big businesses. It
is, in other words, a license to copy that has culture and freedom in its
Here's a slightly extreme rant on this topic, written yesterday, by an active
open-source software developer:
> These licenses are not 'pro-culture' they are (somewhat clumsy) hacks to
> a faulty system.
Hmm, I don't understand what people mean when they talk about The Copyright
System. What system? All that there is a default legal figure that the author
has the rights to determine how their work is copied, a naturally assigned
right, after which point there are a ton of licenses they can choose from. Some
of those license are culturally destructive and some of them not.
> shall we open the floor to others? ;)
I suppose most Ada'ers are sleeping around about now.
> > > As far as i see it, its hard to say copyright is pro-culture. You can
> > > say culture hasn't completely died under copyright. I would agree with
> > > this. But it hasn't helped.
> > Copyright is just a concept, and there's nothing wrong with the concept in
> > itself IMHO..
> > Cheers,
> > Julian
> > >
> > > >
> > > > Copyright can be pro-culture - it's just that /most/ copyright is broken,
> > > > perverted by the 'free' market - exploited to the contrary.
> > > >
> > > > > However, regardless of my beliefs, the position of saying copyright is
> > > > > broken is more provocative and might encourage more people to think
> > > > > about it than taking a position on the wording of legislation.
> > > >
> > > > It may do that, yep, as long as people are educated as to the options otherwise.
> > > > As it stands I come across a lot of people that claim there is only Copyright
> > > > (aka RIAA style) and Public Domain, which reflects a gross lack of education on
> > > > the topic..
> > > >
> > > > Cheers,
> > > >
> > > > Julian
> > > >
> > > > >
> > > > > On Tue, 2009-07-14 at 11:28 +0200, Julian Oliver wrote:
> > > > > > ..on Mon, Jul 13, 2009 at 10:44:23PM +0200, adam hyde wrote:
> > > > > > > hey
> > > > > > >
> > > > > > > on the copyright issue ...
> > > > > > > rp
> > > > > > > i think it would be a good opportunity to provoke people to think about
> > > > > > > copyright - to release a statement way outside of the arguments of this
> > > > > > > debate, and go for the throat. in my mind that is a statement outlining
> > > > > > > that we think the current debate is ridiculous because copyright is
> > > > > > > broken and useless.
> > > > > > >
> > > > > > > so, perhaps the position to take, and one that might provoke people to
> > > > > > > think and might also catch some news-space, is to tell people that we
> > > > > > > dont want copyright at all...
> > > > > >
> > > > > > Hrmm.. as you (very) well know there is nothing wrong with copyright in itself,
> > > > > > in fact copyright can't be avoided. Since the 1886 Berne convention it's been a
> > > > > > naturally assigned right at the point of creating something: you can't
> > > > > > not-have-made something you've already made. It's the terms of which that are
> > > > > > later defined and it's here that problems propogate..
> > > > > >
> > > > > > There are socially destructive forms of copyright and socially creative forms of
> > > > > > copyright. The GPL is very much a copyright license as are all the creative
> > > > > > commons licenses (as you know), both of which were created to be productive at
> > > > > > the user level.
> > > > > >
> > > > > > The difference between socially destructive copyright (no right to remix / no
> > > > > > right to learn from / what you buy is not yours to share) and socially
> > > > > > productive/creative copyright (right to remix, modify, distribute) needs to be
> > > > > > emphasised.
> > > > > >
> > > > > > To these ends I think one of the terms that really needs to be squashed is
> > > > > > 'CopyLeft'; it implies that Creative Commons and the GPL are somehow
> > > > > > 'anti-copyright' which is far from the case. This confuses people greatly and
> > > > > > only serves to undermine any real education on positive, albeit reformist,
> > > > > > directions in policy that benefit the public in general.
> > > > > >
> > > > > > Cheers,
> > > > > >
> > > > > > Julian
> > > > > >
> > > > > > >
> > > > > > >
> > > > > > > On Sun, 2009-07-12 at 14:46 +1200, Douglas Bagnall wrote:
> > > > > > > > hello list.
> > > > > > > >
> > > > > > > > You have probably heard of fuss over "section 92a", a proposed amendment
> > > > > > > > to copyright law that would allow for your internet connection to be cut
> > > > > > > > when someone says you are using it piratically. It got passed as law,
> > > > > > > > put on hold, thrown out, and is now perhaps fighting its way back.
> > > > > > > >
> > > > > > > > Throughout all of this ADA has had no position. It seems to me that we
> > > > > > > > share considerable membership (that's you list subscribers) with the
> > > > > > > > Creative Freedom Foundation who led the battle against section 92 -- but
> > > > > > > > we probably also share members with APRA and SPADA who supported the
> > > > > > > > proposal. So if we do take a position, it is not immediately clear what
> > > > > > > > it should be.
> > > > > > > >
> > > > > > > > The CFF and its opponents are being terribly pragmatic and tactical in
> > > > > > > > what they call for. They are fighting over what the actual law will look
> > > > > > > > like, letter by letter. Personally I'm in favour of a far more anarchic
> > > > > > > > situation than anything the CFF dares advocate. I understand their
> > > > > > > > reasons, of course, but it makes me wonder: if ADA expresses an official
> > > > > > > > opinion, should it be unashamedly fringe? Should put out press releases
> > > > > > > > like they did manifestos 100 years ago?
> > > > > > > >
> > > > > > > > Probably nothing will come of this. I'm just curious as to whether ADA
> > > > > > > > members want their trust to be making statements on stuff like this, and
> > > > > > > > if so, what they want said.
> > > > > > > >
> > > > > > > > Douglas
> > > > > > > >
> > > > > > > > _______________________________________________
> > > > > > > > Ada_list mailing list
> > > > > > > > Ada_list(a)list.waikato.ac.nz
> > > > > > > > http://aotearoadigitalarts.org.nz/
> > > > > > > --
> > > > > > > Adam Hyde
> > > > > > > Founder FLOSS Manuals
> > > > > > > German mobile : + 49 15 2230 54563
> > > > > > > Email : adam(a)flossmanuals.net
> > > > > > > irc: irc.freenode.net #flossmanuals
> > > > > > >
> > > > > > > "Free manuals for free software"
> > > > > > > http://www.flossmanuals.net/about
> > > > > > >
> > > > > > >
> > > > > > > _______________________________________________
> > > > > > > Ada_list mailing list
> > > > > > > Ada_list(a)list.waikato.ac.nz
> > > > > > > http://aotearoadigitalarts.org.nz/
> > > > > >
> > > > > --
> > > > > Adam Hyde
> > > > > Founder FLOSS Manuals
> > > > > German mobile : + 49 15 2230 54563
> > > > > Email : adam(a)flossmanuals.net
> > > > > irc: irc.freenode.net #flossmanuals
> > > > >
> > > > > "Free manuals for free software"
> > > > > http://www.flossmanuals.net/about
> > > > >
> > > > >
> > > > > _______________________________________________
> > > > > Ada_list mailing list
> > > > > Ada_list(a)list.waikato.ac.nz
> > > > > http://aotearoadigitalarts.org.nz/
> > > >
> > > --
> > > Adam Hyde
> > > Founder FLOSS Manuals
> > > German mobile : + 49 15 2230 54563
> > > Email : adam(a)flossmanuals.net
> > > irc: irc.freenode.net #flossmanuals
> > >
> > > "Free manuals for free software"
> > > http://www.flossmanuals.net/about
> > >
> > >
> > > _______________________________________________
> > > Ada_list mailing list
> > > Ada_list(a)list.waikato.ac.nz
> > > http://aotearoadigitalarts.org.nz/
> Adam Hyde
> Founder FLOSS Manuals
> German mobile : + 49 15 2230 54563
> Email : adam(a)flossmanuals.net
> irc: irc.freenode.net #flossmanuals
> "Free manuals for free software"
home: New Zealand
based: Madrid, Spain
currently: Madrid, Spain
Ada_list mailing list
End of Ada_list Digest, Vol 77, Issue 10
I've been reading the exchanges about copyright with great interest. I'm teaching a philosophy of art course called "media and the arts" and have been thinking it'd be good to have a session on this topic. Does anyone have any recommendations either about (a) where to find some good, basic readings for first-year students about the arguments at issue, and/or (b) juicy, controversial cases to motivate student discussion?
Victoria University of Wellington
PO Box 600
ASA Newsletter Co-Editor
I do believe there is a lot wrong with copyright itself and that
copyright is a construct we can and should do without. (as a side note,
I see the GPL as a patch to copyright, as are all 'open' licenses, but
fundamentally we would be better if we did not have to patch a faulty
system - ie if we did without copyright all together).
However, regardless of my beliefs, the position of saying copyright is
broken is more provocative and might encourage more people to think
about it than taking a position on the wording of legislation.
On Tue, 2009-07-14 at 11:28 +0200, Julian Oliver wrote:
> ..on Mon, Jul 13, 2009 at 10:44:23PM +0200, adam hyde wrote:
> > hey
> > on the copyright issue ...
> > i think it would be a good opportunity to provoke people to think about
> > copyright - to release a statement way outside of the arguments of this
> > debate, and go for the throat. in my mind that is a statement outlining
> > that we think the current debate is ridiculous because copyright is
> > broken and useless.
> > so, perhaps the position to take, and one that might provoke people to
> > think and might also catch some news-space, is to tell people that we
> > dont want copyright at all...
> Hrmm.. as you (very) well know there is nothing wrong with copyright in itself,
> in fact copyright can't be avoided. Since the 1886 Berne convention it's been a
> naturally assigned right at the point of creating something: you can't
> not-have-made something you've already made. It's the terms of which that are
> later defined and it's here that problems propogate..
> There are socially destructive forms of copyright and socially creative forms of
> copyright. The GPL is very much a copyright license as are all the creative
> commons licenses (as you know), both of which were created to be productive at
> the user level.
> The difference between socially destructive copyright (no right to remix / no
> right to learn from / what you buy is not yours to share) and socially
> productive/creative copyright (right to remix, modify, distribute) needs to be
> To these ends I think one of the terms that really needs to be squashed is
> 'CopyLeft'; it implies that Creative Commons and the GPL are somehow
> 'anti-copyright' which is far from the case. This confuses people greatly and
> only serves to undermine any real education on positive, albeit reformist,
> directions in policy that benefit the public in general.
> > On Sun, 2009-07-12 at 14:46 +1200, Douglas Bagnall wrote:
> > > hello list.
> > >
> > > You have probably heard of fuss over "section 92a", a proposed amendment
> > > to copyright law that would allow for your internet connection to be cut
> > > when someone says you are using it piratically. It got passed as law,
> > > put on hold, thrown out, and is now perhaps fighting its way back.
> > >
> > > Throughout all of this ADA has had no position. It seems to me that we
> > > share considerable membership (that's you list subscribers) with the
> > > Creative Freedom Foundation who led the battle against section 92 -- but
> > > we probably also share members with APRA and SPADA who supported the
> > > proposal. So if we do take a position, it is not immediately clear what
> > > it should be.
> > >
> > > The CFF and its opponents are being terribly pragmatic and tactical in
> > > what they call for. They are fighting over what the actual law will look
> > > like, letter by letter. Personally I'm in favour of a far more anarchic
> > > situation than anything the CFF dares advocate. I understand their
> > > reasons, of course, but it makes me wonder: if ADA expresses an official
> > > opinion, should it be unashamedly fringe? Should put out press releases
> > > like they did manifestos 100 years ago?
> > >
> > > Probably nothing will come of this. I'm just curious as to whether ADA
> > > members want their trust to be making statements on stuff like this, and
> > > if so, what they want said.
> > >
> > > Douglas
> > >
> > > _______________________________________________
> > > Ada_list mailing list
> > > Ada_list(a)list.waikato.ac.nz
> > > http://aotearoadigitalarts.org.nz/
> > --
> > Adam Hyde
> > Founder FLOSS Manuals
> > German mobile : + 49 15 2230 54563
> > Email : adam(a)flossmanuals.net
> > irc: irc.freenode.net #flossmanuals
> > "Free manuals for free software"
> > http://www.flossmanuals.net/about
> > _______________________________________________
> > Ada_list mailing list
> > Ada_list(a)list.waikato.ac.nz
> > http://aotearoadigitalarts.org.nz/
Founder FLOSS Manuals
German mobile : + 49 15 2230 54563
Email : adam(a)flossmanuals.net
irc: irc.freenode.net #flossmanuals
"Free manuals for free software"
You have probably heard of fuss over "section 92a", a proposed amendment
to copyright law that would allow for your internet connection to be cut
when someone says you are using it piratically. It got passed as law,
put on hold, thrown out, and is now perhaps fighting its way back.
Throughout all of this ADA has had no position. It seems to me that we
share considerable membership (that's you list subscribers) with the
Creative Freedom Foundation who led the battle against section 92 -- but
we probably also share members with APRA and SPADA who supported the
proposal. So if we do take a position, it is not immediately clear what
it should be.
The CFF and its opponents are being terribly pragmatic and tactical in
what they call for. They are fighting over what the actual law will look
like, letter by letter. Personally I'm in favour of a far more anarchic
situation than anything the CFF dares advocate. I understand their
reasons, of course, but it makes me wonder: if ADA expresses an official
opinion, should it be unashamedly fringe? Should put out press releases
like they did manifestos 100 years ago?
Probably nothing will come of this. I'm just curious as to whether ADA
members want their trust to be making statements on stuff like this, and
if so, what they want said.
/(apologies for x-posting & please forward ... )/
We are delighted to announce the performances selected for the 090909
UpStage Festival, which takes place online and at RL access nodes around
the world on 9 September 2009. http://www.upstage.org.nz
There will be eleven performances - six by artists who have previously
created work in UpStage and five from artists who are new to the
environment. As with previous UpStage festivals, there promises to be
something for everyone. Themes include time, salvation, city life, and
explorations of cyberformance and collaborative creativity. The artists
have drawn inspiration from improv theatre, mythology, fairy tales,
absurdist theatre, poetry, daily life and media theory. One performance,
"Salvation" (by Marlena Corcoran with Antoinette LaFarge, Julian Hermann
and Tara Rebele), will have its second presentation at 090909, having
premiered in May at the Fondazione Querini Stampalia in Venice where it
was very well received.
Information about the performances can be found at
http://upstage.org.nz/blog/?page_id=366; the schedule of performance
times will be published here closer to the festival, and live links to
the stages will be available just before each show. All you need to
attend the performances is an internet connection and browser with the
Flash player plug-in.
So far there are potentially 9 RL ("real-life") access nodes at
locations around the world; operating times for the nodes will be added
here: http://upstage.org.nz/blog/?page_id=318 as the nodes are
confirmed. RL access nodes provide a physical venue for people to watch
screenings of the performances, and interact via public computers. If
you are interested in hosting a node, please read the information on the
page and contact us to arrange it.
We are also looking for people who can assist with recording the
performances for documentation/archival purposes. If you can help,
please email me - helen(a)upstage.org.nz.
UpStage enables performers located around the world to collaboratively
manipulate media (text, graphics, audio, web cams) in real-time for
online audiences who interact in the performance via a text chat. The
annual festival is a showcase of performances created in UpStage.
Further information about UpStage and previous festivals can be found at
Looking forward to a great 090909 festival!
helen : )
helen varley jamieson: creative catalyst
For anyone in Auckland in a couple of weeks:
COLAB IS PROUD TO PRESENT
“AGAINST FREEDOM” - A DISCUSSION PANEL
Tuesday, July 28th, 6pm-9pm
Galatos 17 Galatos Street, Newton, Auckland
the attached PDF has more details
Yes, I reckon ADA should make a statement.
On the one hand we want availability, accessability and all that goes
with internet immediacy, and on the other, protection against the
piracythat cheats artists of a livelihood. I propose we initiate the
"rites of copy" a manifesto of a kind that advances the principle of
shared resources of all mankind, along with which we instigate a set of
rites, the 'ethics of respect' for all downloaders – willynilly or not
– to invoke before they embark on their hunt, much as our early
ancestors might have incanted to pacify the hunted.
Rite#1 Open my ears and open my eyes to the efforts of others from
which I take pleasure (rpt x 3)
Rite#3 Homage to the creative pool from which all things flow: I O U
(rpt x 3)
Rite#2 I will repay, I will repay, I will repay with a gift to another
(rpt x 3)