Copyright and Modern Internet Culture

As you may have guessed from the post title, this is indeed a paper that I wrote for school.  However, I put a lot of time and effort into this paper and I feel it turned out well.  It was in APA style originally, and this is how it transfers to an internet page.  Take a look if you're interested, it's pretty heavy stuff, but it's also a very important topic for us creative types on the internet.  Here's the link to the pdf of the paper: Copyright and Modern Internet Culture.

Copyright and Modern Internet Culture:

A Study in the Implications of Revisions to Copyright Law

Jessica N. Jeffery

December 5, 2012

Prof: David Rankin

Capilano University

Abstract

Copyright and the laws associated with it is a highly contentious issue in today’s Internet based society. What was initiated as a means to protect creators of original works, whether this protection is for moral or fiscal reasons, has mutated into an unrecognizable juggernaut implemented to protect the endeavors of large companies. That’s where the Internet and its ability to share information on a large scale come into contention. Current copyright laws used by the Canadian and American governments were first implemented in the early 20th Century, and are in need of updating. The problem with the proposed updates are that they are fueled by the interests of big business and don’t actually meet the needs of society’s current form of culture. What has happened, with the advent of the Internet age, is that there is a large generational gap for what is considered acceptable socially in terms of file sharing. While it is illegal to share a copyrighted piece of work, most people in the younger generations partake in this activity frequently. So much so that an entire internet society revolving around fanart: taking popular material and remixing or recreating it, whether in the form of videos, music, or other forms of art, has evolved, and has been in place for so long that it has become its own industry. Currently proposed laws threaten this new social structure that has been created by a free Internet, and a middle ground must be met if an outright schism is to be avoided.

Keywords: copyright, file sharing, fanart

Copyright and Modern Internet Culture:

A Study in the Implications of Revisions to Copyright Law

In this paper I will discuss current and proposed copyright laws in Canada and the United States and how they make certain aspects of creating pieces of art very difficult. First I will discuss what the current copyright laws entail, what the future proposed or recently enacted laws entail, and how people on the internet are either following them or breaking them. I will also talk about how people don't mind that they're breaking the copyright laws because they believe that such laws don't make sense for our current generation in our particular flavor of Internet technology. Finally I want to give suggestions for what good middle ground could be.

Current Copyright Law

The Copyright Act of Canada was first passed in 1921 and came into force in 1924, being reformed to in 1988 and 1997. Based on the United Kingdoms’ Copyright Act of 1911, it complies with the Berne Convention for the Protection of Literary and Artistic Works. This act was designed to protect and distinguish intellectual property and the rights of the creators of that property.

Protection Under the Copyright Act:

A piece of work is protected under the Copyright Act once it has been committed to paper, a webpage, or some other form of recorded evidence. An idea is not copyrighted, only the expressions of that idea, and neither are spontaneous creations like a speech or sports event. So be careful whom you tell your concept of your next novel to, because unless you’ve started writing that novel, you could lose the copyright for that concept. Exceptions to an artist owning sole copyright are in the cases of engravings, photographs, projects, and works created for an employer. Once the idea is in writing, economic writes are exclusive to the copyright holder, but can be extended to others with written permission for any amount of time or purpose, from a specific day all the way to forever.

Moral Rights:

The Canadian Copyright Act also includes moral rights attributed to the author and the integrity of the work. The morality of the work is seen as an extension of the author and can be cause for loss of copyright or severe injunction in terms of reproducing the work. For example, if someone took a play that was intended to be for children and made it graphically violent, that would be cause for loss of copyright to that play and potentially cause for damages. In Canada the copyright holder can waive moral rights if they so desire. Moral rights stay with the artist their entire life, even if they are not the sole holder of the copyright. The reformation in 1997 added legal recognition for record producers, performers, and broadcasters for their recordings and performances.

Lifespan of a Copyright:

In Canada copyright lasts for the life of the author plus 50 years. In the United States copyright owned by an individual lasts for their life plus 70 years. When owned by corporations copyright lasts for 120 years for unpublished material, and for 90 from the date of publication for published material. If a piece of work was created before 1923 then it is part of the public domain. Many other pieces are part of the public domain, but their copyright should be researched extensively to be safe before being used.

Bill C-11

Bill C-11, also known as the Copyright Modernization Act, is a bill recently introduced into Canadian parliament that makes revisions to the current copyright act in terms of digital media. This new act aims to:

“Update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards; clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright; permit businesses, educators and libraries to make greater use of copyright material in digital form; allow educators and students to make greater use of copyright material; permit certain uses of copyright material by consumers; give photographers the same rights as other creators; ensure that [the Copyright Act] remains technologically neutral; and mandate [a] review [of the Copyright Act] by Parliament every five years.”

(H.C., 2012)

Digital Locks:

Where this new bill comes under fire from the general public is in how it has made it illegal to break a digital lock on any form of media for any reason. While it is still legal to create backups and to share files personally, if you were to break a digital lock to do it that would then make it illegal. Concern comes from when the digital lock software is either encumbers disabled users, does not reset itself, or is just plain broken (Raj, 2012). A well-documented case of a broken digital lock system is for the PC version of the video game Assassin’s Creed 2, where Ubisoft, the creator of the game, placed a digital lock on the game. While digital locks are common in gaming, the problem with this lock is that the user had to be connected constantly to the Internet for it to be unlocked, and if the user was disconnected, for any small or large amount of time, the game would stop working and they’d have to reset their password. The other issue was that this game could not be played when the Ubisoft servers were down (Humphries, 2010). It should be made clear that this game has no online function and should not require online accessibility after the user has purchased the game (the average price for a top tier game is $60).

Fair Dealing Exceptions:

This new bill also adds new exceptions for fair dealing, which include education (which is greatly expanded upon), parody, and satire. These three new exceptions are added to the existing exceptions for research, private study, criticism, review, and news reporting. This varies from the American standard for Fair Use, from which satire is exempt.

Fair Dealing

Fair dealing is one of the only ways for someone to legally use copyrighted content without paying the holder of said copyright. Types of work that are allowed to use fair dealing include: criticism, commentaries, parody, news, teaching, scholarship, and research (Wattles, 2012). However, these uses can and will be argued by the copyright holder and can only be determined as fair dealing by the supreme court of whatever country that supposed copyright violation happened in. Essentially, fair dealing protects people who are talking about the work. What is often the case of copyright lawsuits involving these types of produced material is that the copyright holder doesn’t like how their work is being criticized or reviewed, and often can make a case that too much of the content of the piece has been used in the critique or review.

Fair Dealing in Regards to Art:

In copyright law, fair dealing refers to amount and substantiality of the copyright work used, whether this use if for commercial or non commercial purposes, nature of the copyright work (referring to the moral nature or medium work was produced on), and effect on the potential market (Makarenko, 2009). It could be argued that a review was using too much content of the original piece it was reviewing and thereby giving cause that the audience of the review would not then go and see the piece that was being reviewed. Regarding nature of the work, many copyright holders would be upset if their imagery or characters were used in something of a very different moral nature, like pornography for example. Disney in particular is not happy when they see pornographic fanart of one of their princesses. Conversely SquareEnix has said many times that they like fanart, so the fans will do as they please, which has often included pornography. It always comes down to where the money is going, and if a copyright holder feels that a review is draining their profits, they will take legal action, even if the work is unique and had not been previously considered by the copyright holder. Fanart in particular comes under fire for fair dealing policies.

File Sharing

Even with the induction of Bill C-11 to the Canadian Parliament file sharing on a personal level is still considered legal. The difference between public and private file sharing, as considered by Canadian copyright law, is how many people have access to said file. Sites like Megavideo that stream video content are considered illegal because they are clearly violating the copyright of the videos by streaming them publicly. Torrent sites like The Pirate Bay are harder to define because they aren’t actually hosting the file, but act as a search engine for torrent files, that then allow the user to ‘torrent’ a file, whatever that may be. ‘Torrenting’ is nearly impossible to place legal restrictions on because it requires several connected computers sharing bits of a file until the process is finished and the user comes out with a completed file. While these activities have always been illegal, new legislation and acquired evidence is making it both easier and more difficult to convict.

Government View on Infringing Parties:

In Canada it is essentially legal to download copyrighted material as long as it is for non-commercial reasons. In late November 2012 Montreal based Canipre announced that they had identified one million unauthorized file sharers (Huffington Post Canada, 2012). However, Michael Geist (2012) reports that the Canadian Government actually discourages copyright lawsuits against individuals: “Industry Minister Christian Paradis told the House of Commons: ‘We are concerned about the threat of major penalties that hang over Canadians who infringe copyright for non-commercial purposes. Currently, those who have been found to violate copyright can be found liable for damages from $500 to $20,000 per work. If people illegally download five songs, for example, they could theoretically be liable for $100,000. In our view, such penalties are way out of line.’” This is great news for Canadians because it shows that our government understands modern Internet culture and how it is unfair to lambast one person for something relatively small when essentially the rest of the world is committing the same crime. Unfortunately, the American courts are not above being so petty and a whole slew of copyright lawsuits will happen in the foreseeable future.

The Pirate Bay vs. The Promo Bay:

A couple months ago the United Kingdom ordered the country’s Internet Service Providers to block The Pirate Bay. Regarding a previous blockage, The Pirate Bay was unconcerned: “When will they give up? We're still growing despite (or perhaps because of) all their efforts.” (Albert III, 2011). Unfortunately, not only did the creators of The Pirate Bay care all that much having had blocks placed on them in the past, their completely legal sister site The Promo Bay was also blocked, proving that such measures can’t be trusted and don’t work (Killock, 2012). Most people share this mentality in the millennial generation: screw big business and the government, we will take what we can without paying for it; we’ve paid enough already.

Remix Culture and Fanart

Probably one of the more contentious issues with copyright in our current era of technology is of how it relates to the production and distribution of fanart. Fanart can be anything that is derived from a piece of popular fiction and produced in any artistic format, the more popular formats being drawings and cosplay (costume play). Essentially, under strict black letter law, all forms of fanart are illegal because they are derivatives of copyrighted work. There are many different versions of fair dealing that the creators of these artworks can demonstrate to make their art legal, but at their base they are derivative works based on copyrighted material to which the artist has no legal claim. Clearly, this has not stopped the millions of people creating and distributing fanart on the Internet, most particularly on sites like Deviant Art and Tumblr.

Fanart as Derivative Works:

There is not doubt that a tattoo artist is not breaking the law when they tattoo the Batman symbol, or some other copyrighted artifact, onto a person’s skin, so my creating this piece for one person is acceptable because it is only for one person. The problem arises when this piece (usually a drawing, because a cosplay is physical and can’t be copied easily with something like a photocopier) is copied and distributed and sold enough times that it is considered to be competition by the company that owns the copyright. Often, though, derivative pieces like fanart are not only accepted but also expected when used for portfolio pieces because they show your range as an artist and your ability to conform to a design. An unfortunate issue in terms of fanart legality is that many of these pieces require great amounts of talent and time to be created, and the current form of copyright disallows the creators of this fanart to be compensated justly because their works are considered derivative, even if they are unique and are distinctly different from the source material.

“Fanart is a statement of saying, ‘I love you’. If our government is going to protect the people who are saying, ‘impeach the president,’ or, ‘overthrow the Libyan government,’ and have that as our standard for free speech, we should also protect the people who are simply saying, ‘I love you. I love you Wonderwoman, Catwoman, and I want to draw a picture that says I love you. I don’t want to sell it, I don’t want to make a million dollars off of it, and I’m not saying that I own Wonderwoman. All I’m saying is that I love you.’ And that should be protected.”

(Wattles, 2012)

Why Fanart is Lucrative for the Copyright Holder:

Fan generated content is extremely lucrative for companies because it shows that people are not only enjoying their product, but engage actively with it. Franchises that run with the notion that fanart is a good thing have a track record for being more successful. Just look at Marvel and Lucasfilm (both of which are ironically now owned by Disney, one of the most strict companies out there in terms of copyright infringement cases) and their history with their larges franchises. Star Wars or X-Men would not be relevant subjects in popular culture today if not for the fans that kept the franchises alive with their love for the work. Granted, these are large franchises that have had decently recent films, but fans of Star Wars in particular are very vocal in their love for the franchise and create so much fan-content that much of it has come to exist in the extended universe of the novels. In 2006 an Internet joke that had begun on 4Chan made its way into X-Men 3. Many of the jokes in Vancouver’s own Supernatural were generated by fan fiction and on message boards, and by including these references within the narrative has made the show ultimately more entertaining and has grown its fanbase exponentially. When it comes down to it, the fans are these companies’ customers, and limiting their expression for the love of their work only creates negative feedback in the fanverse, and makes them lose their customers.

Fan Videos:

One of the more contentious issues in terms of fan-generated content is video. Parody, review, and remix videos are extremely popular and make up a good chunk of video hosting sites like YouTube and Blip. YouTube’s draconian policies on copyrighted material have made many creators migrate over to other sites. YouTube’s gloriously lazy ignorance of fair dealing is apparent in their terms of use, which essentially state that if you use any material that doesn’t belong to you they will shut you down (YouTube, 2010). This includes people broadcasting news, reviews, and criticisms, clearly protected under fair dealing. Clearly this draconian policy came from the millions of unlicensed videos on YouTube, most of which were clips from TV shows and movies. YouTube has become more relaxed in taking down videos, distinguishing from videos with ads and those without, but there are still instances where videos are taken down without just cause. Copyright law has always protected parody because it is a form of free speech, and tends to be the most popular use of fan-generated videos. People love to laugh, even more so when they’re laughing with a group of other fans. Reviews are also popular, but tend to come under fire for copyright more often. Remixes, including fan made music videos, where imagery from a single piece or multiple pieces (for example Dragonball) is mixed with unrelated music (like Metallica) are considered illegal under the copyright law because they don’t constitute fair dealing. Often they are tolerated because they are creative and don’t pose a huge financial threat, but under many of the copyright reforms could disappear entirely from the Internet.

Conclusions

Traditional notions of copyright law just don’t apply to the current state of Internet culture. Almost everyone in my generation partakes in torrenting and other forms of illegal download, and they do so unabashedly. In most cases these downloads are to watch a recently missed episode of a television show or to watch a movie after it’s come out on DVD. Rarely do these downloads infringe on the profit to be made from the release of a new film in theatres or from concert tickets. They do infringe on the release of recorded music, but in all honesty the downloaded versions tend to be of lower quality and the consumers use them as a means to decide whether they want to purchase the official releases. In terms of copyright infringement regarding derivative works like fanart the laws need to be relaxed. The people creating these works are in no way competing with the original works and in most cases generate interest for said works. When the fan-generated art starts pretending to be real is where the line must be drawn. The new Bill C-11 allows for more exceptions that include parody and satire, but further allowances need to be implemented for positive derivative works like fanart. The principal concern, however, is that individuals who create this content that exist within the grey area of copyright law are not well protected when big corporations make a case against them. Fact of the matter is the Internet has generated an entirely new society based around taking cultural content, copyrighted or not, and remixing that content to create something entirely new. Oppressive copyright laws will only hinder that possible cultural development, and give more and more power to big businesses, and the privileged individuals that own them.

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