More arse licking

The new copyright proposal from Attorney General Phil Ruddock has been widely discussed as a step forward. It accepts videotaping from TV and even means that ripping your CDs to your iPod is no longer a criminal act. However, it also contains proposals that have been widely condemned and rejected in the US:

It's funny: the Hollywood cartel couldn't get the US to adopt the Broadcast Flag, so they went and sold this bill of dubious goods to Australians. You'd think Australia would be smarter than that: it's pretty sad to be the easy-lay nation that Hollywood turns to when it can't convince America to put out.

Perhaps it shouldn't be surprising. The Free Trade Agreement (FTA) set new ground for ensuring the influence of US goods in a foreign market, including the rights of cultural products like film and music and television. The Leader of the Opposition at that time, Mark Latham, called the Government "arse lickers".

One of the key issues in Ruddock's proposal is that the 'fair use' provisions now set personal use as a single viewing and attach penalties for not observing this. It means you can timeshift a program once, such as recording with a VCR, but you have to delete the videotape afterwards. It looks silly until you consider videotapes are on the way out and digital devices are taking their place - devices which may enforce this silly law.

As a parent I can imagine the result of letting a child watch a program and then having to tell them they can't watch it a second time.

Maybe we're seeing a paradigm shift in the way consumers view content. Consider how digital rights management (DRM) is incorporated into music and video files and players to limit their use. It's another step along the path from how DVDs won't let you skip the copyright warning and how knows where it'll end up.

..Law allows people to make copies of parts of copyrighted works for the purposes of critiquing or reviewing them.

"That's an exemption thwarted by DRM systems," she said. "The technologies are extending beyond the law they are supposed to uphold."

Increasingly, said Ms Charman, consumers were bumping up against DRM technologies as they use digital media such as downloaded songs.

She said that DRM was less about protecting copyright and more about creating a system in which people rent rather than own the media they spend money on.

"We think people rightly feel that once they buy something, it stays bought," she said.

Maybe before long we won't own anything more than the experience of it - after all, it's the thing that attracted the salesmen who established Hollywood. I forget the studio boss who said "Movies are the only thing you own after you've sold it" but the principle of owning a creative work has seen any number of artists shafted from deciding the fate of the fruits of their labours. Just ask John Fogerty. It's worth noting another piece of recent legislation before the federal Australian parliament proposed that artists collect a percentage of the resale of their works but this was knocked back.

I wonder how long before TV stations are undermined by producers seeking a greater share of profits by selling programs directly to consumers. Wouldn't it be interesting to subscribe to a show, receive it like a podcast and know you're directly contributing to it's continued existence? I've read fans of Star Trek franchises raised money to see them continue. A similar notion has been used to great effect by Crikey when they've been faced with a lawsuit. And, being appreciative of their efforts, I've handed over money every time.

Anyway, before I digress too far on my usual rant about online delivery, one of the key things missing from Australian copyright that's ingrained in the US bill of rights is free speech and especially the role of parody. Australia has provisions for comment as 'fair use' but, as I understand it, the use of copyright protected material for satire is still contentious enough that The Panel was taken to the High Court. The judgment came in their favour but it still means no one is likely to make something like The House of Cosbys in our fair land. (It's also a shame Bill Cosby has shown himself to have no sense of humour, Rolf Harris didn't take The Goodies to court when they used a similar plot device all those years ago.)

Another development that blurs copyright is mashing original material, sometimes from more than one source. It's an extreme extension of postmodernism and the freeplay of ideas in unlimited semiosis. Where art would think itself to be clever in alluding to a quotation or reference, a mashup like Brokeback to the Future gives almost full realisation to the idea there's a homoerotic subtext.



It's clever but would it qualify as fair use? This is where I think Australia's copyright is lacking. It's potentially threatening that we don't have a bill of rights but I think the lack of laws to allow subversion for comment are thin skinned. It's like how our defamation laws favour the claimant in that it's not in the interests of the powers that be to change the situation.

More importantly, it fails to recognise that consumers have changed the way the want to enjoy media. Passive viewing is so 20th century. Here's a great article on the issues surrounding this phenomenon. It is especially relevant as the UK copyright laws are similar to Australia's.

It's a shame the DRM options being pursued by vertically integrated pop culture/technology companies and now reflected in the proposed changes to copyright law all limit the ability to repeat or 'on broadcast' media such as television, video or music. Peer to peer marketing is all the rage at the moment for good reason. The commercial power of material with high production values relies on creating a mass market to attract mass market advertising. Without a large audience we may as well admit most of the stuff on television, the internet and in the stores will be American as the Australian market is being swamped by cheaper imports.

Mark Latham was right when he called the government "a conga line of suckholes". That might seem nasty but I reckon it's justified with this quote from my hero Lawrence Lessig:

From the beginning, government and government agencies have been subject to capture. They are most likely captured when a powerful interest is threatened by either a legal or technical change. That powerful interest too often exerts its influence within the government to get the government to protect it. The rhetoric of protection is of course always public spirited; the reality is something different. Ideas that were as solid as rock in one age, but that, left to themselves would crumble in another, are sustained through this subtle corruption of our political process. (pp.6-7)

In this context it's interesting to look at who has made submissions to the Attorney General regarding copyright reform (and also the changes to the copyright technological provision measures required by 2007 under the FTA, which mean you can't hack a gaming machine you own - not just for playing pirated games but uses like cheap personal computing).
I was pleased to see CSU amongst submissions to the recent discussion paper, stating the following:

Charles Sturt University’s view is that the Act should be amended to allow format shifting for non-commercial, including educational, use of material that has been legally acquired.
[...]
Charles Sturt University’s view is: that the transformative use of works should be part of either a specific exception, or of a more general fair use exception; that specific attention ought to be given to the issue of orphaned works; and that no new statutory licences are necessary.

The first statement pushes the answer for timeshifting technologies, like VCRs and the new generation of digital recorders; while the second tackles the potential for us to comment on a commercial work through mashing or manipulating it.

The key issue throughout all of this is that copyright is not being defended by artists, it's being tightened by the companies that distribute their works. There's an industry built around hyping, manufacturing and delivering art to consumers and it's threatened by the consumers becoming artists in their own right now the technology exists to bypass other avenues. You no longer have to build a reputation as an artist to display your clever appropriation of a cultural product and you no longer have to get a record contract to have your songs heard by the masses and get screwed like John Fogerty. And, as Hugh said in the last week of term, you no longer need television stations to broadcast your work. We have the tools and, if you've got the skills, what are you waiting for?