Copyright is for losers* or What’s yours & mine is ours
By Rupert Grey
On the way over here I read the obituary of Francoise Demulder. Some of you will remember that she was the first woman to win the World Press Photo of the year Award in 1977. The photograph was topical enough – Palestinians in Beirut. She was one of the stars of the Paris – based agencies which made France the centre of world photo-journalism during the last years of the golden age of European and US photographic magazines. Like many photographers here in the sub- continent/Bangladesh she felt “compelled to document how it always was the innocent who suffered while the powerful get richer and richer”. Like a lot of photographers here she was an artist, and she bore witness to the times during which she lived.
I am glad to be back here – this is my third Chobi Mela – and most particularly to see such a rich diversity and high standard of photography over the last few days and – importantly for me – many powerful documentary images which reflect the same passion for justice which drove Demulder, to be a part of the struggle for change in lives of the oppressed.
1. The Title
The title of my talk tonight is Shahidul’s fault. He sent me an email a couple of weeks ago and asked me to give this talk tonight and said could he have the title by return. Just about to go to print, he said. I thought for a few seconds and recalled a phrase which appeared on the introductory page to one of Banksy’s books which I brought as a present for someone before Christmas: copyright is for losers. Catchy enough, but it raises a question which is central to the profession of photography. Banksy is a well known artist in London. So well known that nobody quite knows who he is: his art takes the form of graffiti in public spaces, and I should imagine that he has a very healthy disrespect for the establishment; so it was surprising, and yet not surprising, to see at the foot of the same page that Banksy invoked the protection of the law of copyright for his book.
2. The Central Issue
Banksy’s schizophrenic approach to copyright symbolises the conflict, the tension, between the desire for artists to find their way into the minds of all people, and the need for those artists (and their agents) to maintain a monopoly in order to earn a living. This question, how society produces and distributes its information, literature and art, goes to the very core of freedom. It is an international issue – who gets to say what, to whom? Who has access to it, who gets paid? The answers determine political outcomes. They determine wealth. They determine the extent to which an individual is able to play a central role in altering his or her own life. All this is governed by the law of intellectual property.
3. History of Copyright
Hogarth, the great cartoonist whose images of 17th century life in England are central to our understanding of his era, refused to permit his works to be publicly exhibited until Parliament passed an act prohibiting copying. Which is why the first Copyright Act in UK legislation is called Hogarth’s Act. The first in history, I think. The protection was narrow and the duration short. Since then there has been a great deal of legislation in which the overall trend (to put it mildly) has been to increase protection, reduce the exceptions and extend the duration. Before the 1911 Act in Britain – on which copyright law in Bangladesh is based – the protection was between 7 and 14 years. In 1911 it was increased to 50 years from creation of the work. In 1956 it was increased further to 50 years from 1st publication. Towards the end of the last century it was 70 plus life of the author. Policy makers and their advisors regarded the ownership of intellectual property as they did motor cars: you owned it exclusively, and when you lent it to somebody else – or granted a licence if it is was copyright – it was on strict terms. The thinking was that the more it was protected the more artist & writers would produce their works.
The US patent system was overhauled in the early 1980’s – protection was strengthened – the reach and scope of exclusivity was broadened; and the same thing happened to copyright and trade marks. Universities registered patents and required the payment of royalties: thus institutions dedicated to disseminating knowledge, information and understanding in the widest possible way were in fact impeding the sharing of that knowledge as if they were a commercial enterprise. The proprietary model for disseminating information was, and is, in the ascendant.
At the same time, reflecting perhaps the same concerns, a counter-trend has developed. As the law tightens the control given to the rights-owners and cultural producers, the consumer pushes in the opposite direction: in the networked information economy the ethic of sharing exchanging, building on the past, is the primary driver. Social networks share – with abandon and some would say a blithe disregard for their own privacy – information, knowledge and culture – so that the political and legal pressures which favour the proprietary business model runs head-on into a generation of savvy and determined consumers. There is an increasing resistance to attempts to enclose the information environment. International boundaries, indeed boundaries of all kinds, are becoming blurred, cultural values fused, sovereignty pooled authority subverted. Creative commons, the non profit organisation dedicated to granting royalty-free licenses, expands the range of creative work available to others to build on and share. There is, in short a strong movement which aims to counter the restrictions of the permission culture erected by the dominant producers of culture and the legal systems they (largely) control.
5. “One up on the Greeks”
I have selected, somewhat randomly, three cases to illustrate these conflicting trends: Perfect 10, the soft porn empire in the US, sued Google for enabling users to access Perfect 10’s thumbnail images of Perfect 10’s nude models. Google’s defence, that it was an exception to the usual rule (fair dealing, in lawyers’ jargon), failed in the lower court and won in the higher court. A significant victory for the consumer.
Last year a New Zealander called Elliot Smith uploaded a hundred videos from YouTube. No problem there, though I dare say there was an infringement or 2, but then he made the mistake of uploading Olympics footage without permission. Within 12 hours his entire account was completely deleted. The owners of the Olympic footage were savvy enough, or rich enough, to have at their disposal the necessary technology to force YouTube (now Google of course) to cut off anyone who is accused of infringing copyright. Whether or not they turn out to be guilty is no longer of interest. This is pretty outrageous. The judgment has been widely criticised as “deeply flawed”. Victory by technology, aka bullying, rather than law.
Google also feature in the third case I want to mention. It is by far the biggest and most significant. It settled just before Christmas. Four years ago Google started scanning millions of books onto the web. It asked permission of neither the publishers nor the authors, and pretty soon it got sued by both. Google’s aim was along the same lines as the chief librarian in the great library of Alexandria, burned to the ground by Caesar three centuries before Christ in one of the most destructive acts of vandalism in world history: Google wants to set up a library containing every single book, article, play or art work written or created in the history of the world. The Great Library in Alexandria housed, it is thought, between 40 and 70% of everything that had been written by that stage in world history. Google, not to be outdone by the Greeks is aiming for 100%. Furthermore, it maintains, access to its library is simple and free, neither of which was the case in Alexandria’s case.
As their archivist some what arrogantly remarked “this is our chance to get one-up on the Greeks… It will be an achievement remembered throughout time – in short, the entire works of human kind, from the beginning of recorded history, in all languages, available to all people, all the time”. Worth mentioning in this context, I suppose, is that all this information, that is to say all the information that is can currently be housed in a building about the size of a small town library. No doubt tomorrow it will all fit into your Ipod.
Battle over copyright infringement commenced in the States but the ramifications are worldwide. Eventually Google caved in, and paid out 125 million to the Association of American Publishers and the Authors Guild. Part of the damages – US$34.5 million – will be spent by Google in creating a “book rights registry”, to make sure that authors are compensated for the use of their works. It will be independent of Google, and will oversee payments to authors much as the equivalent of the music industry oversee payments to songwriters and musicians. Google also agreed to pay $60 for every book uploaded onto the web, and to charge a licence fee of which 68% will go to the authors. For reasons that are wholly unclear, photographs were not included in this agreement, and thus no doubt will be excluded from access on the web.
The new technology of searching renders archaic the concept of copyright; when is the process of copying an infringement, as opposed to just making it available? Enabling a connection? Is it the same as creating a copy, in the ordinary sense? There is a value in the connection created by the search, and the value of the work is increased the more it is shared. To put it another way, as no doubt Google did, the value of the created work is increased enormously by allowing a billion new connections. That in the previous generation would have been completely inconceivable. It is publishing on a scale which is incomprehensible. Is that good for the creator? Is it, in effect, free advertising which will enhance a reputation, or a massively outrageous infringement of copyright for which compensation should be justly awarded?
7. Review of Copyright Law
Against this background, it is not surprising that the law of copyright is being reviewed by Western Governments and the UK in particular. David Lammy, the Minister for Higher Education and Intellectual Property, launched the review earlier this year, pointing out that 8.3% of the UK GDP – at least as it was (down a bit since then I expect) – and is growing at twice the rate of the economy as a whole. It follows the Gower review a couple of years ago, amongst whose recommendations were to reform the copyright provisions in relation to orphan works – that is to say works to which owners cannot be identified after reasonable enquiries have been made by the prospective publisher – and secondly, a recommendation that a further copyright exception should be created for user generated content, on the basis that it is “transformative” – technical jargon for which I have so far read or heard about 6 definitions.
Implicit in these proposals is an acknowledgment that the high level of copyright protection considered to be crucial for intellectual creation and development should to an extent be tempered. The European Commission’s recent green paper on copyright and the knowledge economy points out that the balance between ensuring a reward for creation and investment and the future dissemination of knowledge has been challenged, or rendered less effective, by the evolving internet technology. Difficult to argue with that.
A great deal of debate has been generated by these prospective changes, particularly the proposed orphan works exception; and the transformative use exception has been described as artistic stealing. These are significant steps within the framework of our existing copyright law.
8. The Answer?
I have no idea. But I have three thoughts for photographers:
It is now critically important to ensure that your name is tagged to every one of your images on the web. Your paternity right is now more valuable than your copyright. It is the key to the management of your reputation as a photographer, and it is that reputation which will generate your income; by the same token, and equally important, tagging your name will prevent it becoming an orphan work.
Secondly technology. Not my field, to say the least of it, but programmes (on subscription) are now available to trace your image wherever it appears or is accessed on the web. They use advanced identification and algorithms to identify your images by the composition of its pixels, so its appearance on the internet sends an instant notification to the owner of the copyright. In theory you can then ask for a fee, but the real point is that it works the other way round: publishers can use it to identify copyright holders, and will need to if they are to take advantage of the orphan works legislation.
Thirdly new business models are arriving on the scene. On-line agencies aren’t just stock agencies; some of them commission work and actively engage with publishers. As the number of bricks & mortar agencies (and publishers) dwindle, undercut by fast-moving & shrewd on-line players with minimal overheads, the market-place is changing. In change there is opportunity. And more the point, it does not matter whether you are here in Dalhmundi Bangladesh or in London’s Covent Garden. The only thing that matters is the quality of your image and the content – and accuracy – of your text.
According to the British Journal of Photography in London there are now 3 trillion images on the web. That was last August. So there’s a bit of competition. But judging by the quality of some of the work I have seen in the last couple of days I can see no reason, particularly if you subscribe to a tracking device, why you should not be able to make a living out of photography.
Rupert Grey of Swan Turton, Solicitors
3 February 2009
Transcript of lecture by Rupert Grey @ the Goethe Institute in Dhaka on 4 February 2009. Dhaka, Bangladesh
* Acknowledgments to Banksy
(It is the third time that Rupert Grey has attended Chobi Mela)