Analysis: OPINION: When digital changes everything, copyright might have to change too

Digital changes everything, for better and for worse, but for sure. That is the common theme of the Ministry of Business, Innovation and Employment’s recent study Copyright and the Creative Sector. It offers a fascinating and solidly documented insider look at the challenges facing New Zealand creatives—authors, filmmakers, gamers, software designers, musicians, visual artists and product designers and architects.

Their double-sided challenges sound familiar to anyone who studies, as I do, practice within creative industries internationally. It’s never been easier to make work, but that’s just as true for amateurs and upstarts as it is for seasoned professionals. It’s never been easier or cheaper to reach out and target a network of potential users or purchasers; but it’s never been easier for them to ignore you or to find your material on a torrent somewhere. Collaboration and cross-border creativity are ever more common; so are bad creative breakups. Innovation speeds up production but also forces makers to constantly invest in new equipment and training.

The report, built from interviews, a survey, focus group and workshops, is full of little gems. There’s great information on the wide variety of revenue models, as well as their relative popularity (freemium’s at the bottom). Most everybody values the copyright in their works, but nearly a quarter of survey respondents do not even try to collect revenue from them. Everybody, understandably, wants credit for their work even when they don’t want money.

Creatives are figuring out clever ways to cope with piracy, while consumers are clamoring for better legal services to use.

But for me, some of the most interesting parts were hidden in the corners, and had to do with how creatives experience copyright when they are trying to create. This is because my scholarly work has been focused on use of exceptions to copyright monopoly among U.S. creators.

The major exception to copyright monopoly in the U.S. is fair use. Fair use is the limited right to employ unlicensed copyright material. Journalists use it to quote relevant material in their journalism. Visual artists use it when they make collages, or comment on previous work. Libraries and museums use it for digitizing exhibits and collections. Scholars use it both for their research and in publishing. Filmmakers use it when, for instance, they refer to a historical moment by showing clips and images of TV and magazine reporting about it. And of course Google and all Internet platforms that employ any kind of search depend on it because technically they need to make a digital copy of material in order to provide search results.

Fair use is immensely valuable to U.S. business—The Computer and Communications Industry Association estimated in 2011 that even in the Great Recession industries dependent on fair use contributed close to $5 trillion to the U.S. economy.

It’s also extraordinarily valuable for creatives of all kinds, who put it to work millions of times a day in the U.S. Ironically, that’s not always obvious, since it’s so ingrained into ordinary practice that people take it for granted. My research showed that when people don’t explicitly know about fair use, they tend to self-censor, fearful of copyright violation. But when they understand it, it enables their digital workflow and creativity.

And it doesn’t hurt their bottom line, because fair use permits re-use when the re-user is adding some value—creating some new culture, doing something different with the material than its marketplace role. That’s the opposite of piracy, which is taking something without paying and using it for its original purpose. Under fair use, the original market for the material isn’t touched. For any kind of routine fair use, the litigation history is almost zero.

Fair use has worked so well in a digital era because it’s a general rather than specific rule. It doesn’t say, “You can use 400 words/30 seconds/a tenth,” or “you can do this in the classroom but not the hallway.” It says, in effect, “Take what you need to do something different than the marketplace role served by this material, and make more culture.” So entrepreneurs can dream of applications that depend, say, on digital search; filmmakers can think about making movies on current events; meme creators can amuse each other all day long. 

New Zealand currently lacks fair use, but has other exceptions, highly specific and designed for an analog era. Their limitations show up particularly when creators want to access or showcase existing culture. Filmmakers are forced to go to physical archives when they could be looking online; they can’t use material where the owner can’t be found; they’re reluctant to make work that involves a lot of quotation because of both expense and the fact that licenses can be limited.  Authors must spend large chunks of time hunting down copyright owners for work they quote, and the evolution of ebooks—which hold the promise of multimedia—is affected. Librarians and archivists are frustrated because they would like to digitize their collections and make them available; museums and galleries face some of the same challenges, with digital innovation just out of their reach. Budding visual artists are running scared of copyright when they think of new work to do, or producing work they’re not sure is legal.

None of these problems has anything to do with taking other people’s work for the original market purpose. What these New Zealand creators are trying to do is to make distinctively new work, enable new work, envision and imagine new work. Between their own fears and the law, they’re locking up their own imaginations.

Whether it’s U.S.-style fair use or Canada-style fair dealing or some unique reform appropriate to New Zealand, more flexible exceptions to copyright monopoly will be important to an era of such rapid and constant change. By taking the actual production practice of creatives seriously, the report offers an opportunity to address the real gaps between yesterday’s copyright law, today’s realities and tomorrow’s possibilities. 

Patricia Aufderheide is a 2017 Fulbright Senior Fellow at the Queensland University of Technology and University Professor at American University in Washington, D.C. She is the author, with Peter Jaszi, of Reclaiming Fair Use (University of Chicago Press). She will give presentations in Auckland and Wellington in March 2017.

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