I hope there was a non-partisan official taking notes at former arts and culture minister Judith Tizard’s meeting with Free Culture author Lawrence Lessig earlier this month. It would be good to know that some of what the father of Creative Commons licensing had to say will be passed on to the new National Government.
A year ago, I’d never have thought I’d be so professionally anxious to hear the views of the new Minister of Culture and Heritage, but copyright has moved to the forefront when it comes to imagining the future shape of the internet and computer applications.
It was good to hear Lessig, in his radio interview with Kim Hill, say how dubious were the rights claimed by big “content owners” like the Disney Corporation. Walt himself might have been a lot less possessive than Disney about the remaking of traditional “properties” like the Cinderella and Pocahontas stories. As the original authors didn’t claim ownership, the rights belong to the first person or company to think of doing so. The result, as one lawyer put it, is a lucrative business in advising developers “navigating the reefs of intellectual property” on how to come safe to port with a product that doesn’t infringe anyone else’s perceived rights.
Lessig tells the story of a film about the production of an opera that, briefly, showed some scene-shifters relaxing in the back-room watching The Simpsons. The film’s producers asked Simpsons’ creator Matt Groening for permission to use this TV snippet, which he was fine with, but he had to check with producer Gracie Films. The company wanted a large fee to use a few seconds of indistinct television.
It could be argued that The Simpsons is part of popular culture. Quotes can be heard almost daily and it’s likely to feature in any scene of a person relaxing in front of TV. So, it’s hard to see how such exposure could damage earnings from the original product.
While still minister, Tizard announced a plan to amend the Copyright Act so as to legitimise satire and parody. I’d like to think this will proceed, but we should broaden it. Satire is useful for pointing out the negative aspects of a work, but there are also positive aspects to almost every work that haven’t been fully developed by the original author. Tom Stoppard’s play Rosencrantz and Guildenstern are Dead is an example of this, as is James Joyce’s Ulysses. Neither might have been written if Shakespeare’s or Homer’s heirs, respectively, had held copyright. And mashups prove positive value lies latent in data and software that authors solicitous of their intellectual property might insist lie unused.
It is almost a duty to progress for someone to pick up such potential and use it. One might even ask whether the original author deserves any recompense for having crafted the original work.
I can’t recall any satire on a software product – although many products have features that beg to be made fun of. However, there is a vast reservoir of legitimate elaboration and reuse that lies between satire and those older fair-use rights of “comment or review”.
Critical theory uses the evocative term “re-marking” to call attention to the unexplored features of existing works. At one end of this spectrum are the commentators, at the other the graffiti vandals. In between lie writers like Joyce and Stoppard. Would Ulysses or Stoppard’s play have seen the light of day had the original heirs held copyright?
I agree with Lessig and InternetNZ’s Keith Davidson that a review of the basic concept of copyright for the digital age would be of great benefit.