Journal articles on the topic 'Authors' rights ; copyright ; online music'

Authors of original works (such as music, books, et cetera) have certain exclusive rights including, but not limited to, the reproduction of copyrighted works in copies and the preparation of derivative works. Apple’s iTunes is a vehicle for infringement. The conversion of compact discs (“CDs”) to a compressed format for portable music players such as iPods, iPhones, iPads, and computers violates a copyright holder’s exclusive rights. This Article discusses the fundamental issue of copyright protections, the way iTunes facilitates the infringement of these rights, and the legal liability of Apple for creation of this software.

The modern European mechanism of author’s relations was defined in the article by authors. It was determined the achievements of European legislation on the convergence of legal and digital realities. The article deals with copyright issues on the Internet. The current state of development of the domestic music industry plays an important economic role. This is due, first of all, to the fact that the given sphere can generate a large part of incomes. Musical works accompany us in our daily lives. In particular, in most places on the streets music can be heard. However, the issue arises as to the legality of the use of the institution of this musical work, in particular the issue of infringement of the rights of authors and performers of such copyright and related rights. The era of the digital single market has the potential to distribute and scale to any work: the artist records his work, and furthermore, his work gains an unlimited number of listenings to an unlimited number of users. It is quite understandable the desire of the authors and performers to earn income from the music, but minimizing the number of reproductions of their work. It is for this reason that the question of finding the optimal and effective means of the legal protection of a work of music as an object of copyright and related rights is being updated, due to the need to align the national legal framework with the provisions of the legislation of the countries of the European Union. The object of the study is public relations, regarding the legal regulation of the protection and protection of a musical work as an object of copyright and related rights. The subject of the research is the legal norms of Ukraine and foreign countries, devoted to the problems of legal regulation of the protection and protection of a musical work as an object of copyright rights and related rights. Keywords: copyright and related rights, music, copyright, royalties.

The gradual increase in the output of China's online literature industry and strengthening of the copyright development chain has yet to result in any standardization of copyright management. This article provides an analysis of discrimination against online literature writers, as their writing is usually considered less creative than conventionally published work. This paper then analyses the rampant piracy and plagiarism plaguing online literature in China and the difficulty authors encounter in protecting their rights. After examining this environment, the article discusses the reasons behind the dysfunctional copyright ecology facing online literature writers. It focuses on the position of the online literature platform, namely the potential capital advantage of the platform and associated weakening of the ‘elite’ label applied to certain online literature writers following from the freemium business model. Unclear management from the government is also addressed.

Copyright law has undergone significant expansion in order to tackle some of the problems posed by the ease of infringement on the Internet, as can be seen in the Digital Economy Act introduced in the United Kingdom. There must, however, be fundamental changes to the way we think about and enforce artists and authors’ rights if copyright is to make sense and be effective in the developing digital environment. This article gives a comparative view on the issue, taking account of the economic impact of online file-sharing and its cultural implications.

From the standard economic rationale, music copyright supports the rights of authors and creators to exclude competitors and the public from accessing and copying their works to the extent necessary to provide incentive to recover the investment they made in creating those works. The necessary extent in music copyright is from the interplay of three historical drivers of copyright policy—technology (which makes things possible), the market (which gives rise to consumer demand and companies delivering goods and services to satisfy those consumers), and the law (which determines the rules of the road). Due to differences in cultural traditions and historical developments, these processes have been different for the United States and China. This “In Focus” report briefly explores intellectual property and music copyright in these two countries from an historical perspective, comments on their current state, and reflects on future directions.

Several academic disciplines have begun to understand the benefits of open access to scholarship, both for scholars and for the general public. Scientific disciplines have led the way, partially due to the nature of scholarship in those areas and partially because they have felt the crisis in serials pricing more acutely than others. Theological studies, however, have largely been insulated from the push for open access; considering the reasons for that is the first task of this article. It is also the case, however, that the missionary impulse that stands behind much theological scholarship is a strong incentive to embrace the opportunities afforded by digital, online dissemination of research and writing. After discussing this imperative for global distribution, the bulk of the article focuses on how theological institutions, and especially their libraries, can encourage and support scholars in making their work freely accessible. Copyright issues, including the elements of a successful copyright management program, are discussed, as are some of the technological elements necessary for an efficient and discoverable open access repository. Options for licensing, both at ingestion of content and at dissemination to users are also considered. Finally, it is argued that the role of consortia and professional organizations in supporting these initiatives is especially important because of the relatively small size of so many theological institutions.

AbstractIn 1906 Appleton's Magazine published John Philip Sousa's most celebrated—and vitriolic—article, “The Menace of Mechanical Music.” In it Sousa predicts that piano rolls and recordings will end amateur music making in the United States. Modern writers have often condemned Sousa as a hypocrite (the Sousa Band was itself a major recording ensemble) and chastised him for failing to see the cultural and financial benefits of mechanical music. But, in fact, Sousa's article was part of a larger scheme to gain public support for the 1909 copyright revision. It was also just one step in Sousa's lifelong battle for composers' rights, a battle with five distinct phases: (1) the debate over the right of public performance precipitated by the success of Gilbert and Sullivan in the United States, (2) a test of the limits of contractual obligations between performers and managers, (3) the instigation of an international copyright law, (4) the battle over mechanical rights, and (5) the ability of the American Society of Composers, Authors and Publishers (ASCAP) to collect royalties as related to public performance.

It was only three years ago that I was told that publishing valuable digital content on the Internet would not take off for 10 years. Today it is happening all around us with MP3 music files being swapped by our children and market research reports openly passed between business colleagues. The problem is that the intellectual property owners lose control of distribution through publishing content on the Internet – in its raw essence, an unregulated global arena – and then, more often than not, do not get paid for use of a large percentage of their content, This is perhaps the greatest reason why publishers have been unwilling to place valuable content online. Historically low-value content has taken up the vast majority of what we have been able to access online with companies hoping to recoup costs through advertising revenue. The reason is simple; conventional Internet technologies do not have any facilities for enforcing copyright, but the problem is that advertising revenues are dwindling so publishers need to find other ways of generating revenue. We can now look back with a sense of irony at straplines from major technology companies saying “Information at your finger tips”, “Information where and how you need it” as this is exactly what they are now trying to prevent so that they can keep an element of control.

When individuals infringe copyright, they often use tools, services, and venues provided by other parties. An enduring legal question asks to what extent those other parties should be held liable for the resulting infringement. For example, should a firm that produces photocopiers be required to compensate authors for any unauthorized copies made on that firm's machines? What about firms that manufacture personal computers or offer Internet access; should they be held liable, at least in part, for online music piracy? In this essay, we examine how modern copyright law addresses these questions and we evaluate the resulting system on economic grounds.

Intellectual property Rights (IPRs) is protected by different systems of laws. Journals must choose a definitive form of systems. Some Blackwell journals use copyright system and some Blackwell use license from authors. Now a days online journals are using creative common licenses. Under creative common license journals are open access, allowed to download, copy, distribute, and display derivative works with proper attribution to author or owner for noncommercial purpose at a free cost. Education on IPRs will support to comprehend ones rights, professional code of conduct and the doctrine of "fair use" in publication. One cannot do anything with once writing. Researchers, academic, editors and readers must have the basic knowledge on who owns the rights in a publication and what users can do with the publication by law.

<p class="c02alineaalta">Public discussion in 2018, concerning the European Parliament, passing the Directive on copyright and related rights in the Digital Single Market, in the public discourse referred to as ACTA 2, evoked huge social emotions. The source of the conflict were two colliding values: the need to protect copyright and to ensure economic interest of authors and freedom of expression (freedom of the Internet), particularly important for users of works and Internet users. The decisions of the European Court of Justice, given on 29 July 2019 in the proceedings between Funke Medien NRW GmbH and Bundesrepublik Deutschland and the coincident decision in the case <em>Spiegel Online GmbH vs Volker Beckow</em>, deals with the above-given conflict of values. This article provides a description of the main arguments of the above-mentioned judgements of the ECJ and points at their consequences in the scope of changing the current interpretation of the provisions of copyright. The article also contains remarks on the influence of these decisions and their consequences for the disabling of content by providers of content-sharing service providers which violates freedom of expression considering the new Directive of 17 April 2019. The author presented arguments confirming that the Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market and the new way of interpreting copyright rules provided by the judgements of the ECJ has significantly changed the hitherto may of perceiving the rules of permissible use of works.</p>

The article analyses the distribution of counterfeit products through marketplaces in Russia in the context of the rapid growth of e-commerce, as well as the COVID-19 pandemic. Based on the analysis of statistical data of reports and reports of companies and organizations specializing in research of the counterfeit market in Russia, the paper concludes that marketplaces are one of the channels for the distribution of counterfeit goods. The consequences of selling counterfeit goods online have a negative impact on the state, which does not receive tax revenues to the budget, rights holders who lose their profits and reputation, as well as on consumers in the form of harm to health and threat to life. The study of the work of one of the popular marketplaces Wildberries allows us to speak about the lack of interest of the marketplace as an online trading platform in monitoring sellers (suppliers) of goods for violation of intellectual property rights. The authors of the article made a number of proposals to improve measures to counter the appearance and spread of counterfeit goods through marketplaces. The paper determines that the fight against counterfeiting should be carried out in a complex and only with the interested participation of the state, copyright holders, buyers and marketplaces.

In the practice of the Russian courts, when creating an account in an online multiplayer game, any agreement concluded between the provider and the user seems to be covered by article 1062 of the Civil Code of the Russian Federation, which is why this topic is not subject to judicial examination. However, this approach is unlikely to be applied for much longer, as it does not stand up to criticism. It can only be interpreted as a court attempt to insulate itself from the issue of virtual property. This article is devoted to the consideration the key risks to a provider related to the uncertain legal status of an online games’ terms of use, particularly the prohibition to share a user’s account or login credentials with anyone and a user’s actual rights to virtual content associated with his account. To achieve the research goal, the authors review the legal literature and perform a case study in this area, use a comparative method to identify legislative approaches in different legal systems regarding a user’s rights to their account and the virtual content connected with it, and determine the aspects of the user agreement that obviously contain risks for the provider. As a result of the research, the authors conclude that online multiplayer games are a sphere that tends to self-regulate. Therefore, to the extent possible, the risk of imbalance between self-regulation capabilities and the need to avoid abuse of the current situation, both by providers and users, should be minimized. The main source of regulation for relations between providers and players remains an agreement between them, which can be qualified as a mixed contract. However, such a qualification carries a risk for the provider, due to the complexity of determining the consequences of using the agreement as a single document, which combines various goals, ranging from determining the amount of processing of a player’s data and to fixing the legal regime of a user’s account. Regarding prohibition to share a user’s account, the authors assume that, according to Russian legislation, the most appropriate path is to determine it as a prohibition of assignment to secure providers from the liability for protection of users’ data. The lack of special regulation in this area allows the provider, through the terms of use, to sidestep the potential risk of protecting the player’s copyright on virtual content associated with his account. The authors, however, suggest that using an analogue of the American “sweat of the brow” doctrine in user agreements can to a certain extent remove the provider’s risks associated with the players’ real rights to their in-game property.

Correction to: Bulletin of Chemical Reaction Engineering & Catalysis (2018), 13 (2): 227-235 (doi:10.9767/bcrec.13.2.1307.227-235)An error appeared in Corresponding Author in a paper entitled “Studies on H2-Assisted Liquefied Petroleum Gas Reduction of NO over Ag/Al2O3 Catalyst” published in Bulletin of Chemical Reaction Engineering & Catalysis. The Corresponding Author is corrected to be:* Corresponding Authors. Tel: +919415268192. Email: rprasad.che@itbhu.ac.in (R. Prasad) Tel: +917505072607. Email: dyadav.rs.che13@iitbhu.ac.in (D. Yadav)——————The original article can be found online at: https://doi.org/10.9767/bcrec.13.2.1307.227-235——————Copyright © 2020 BCREC Group. All rights reservedHow to Cite: Singh, P., Yadav, D., Thakur, P., Pandey, J., Prasad, R. (2020). Correction to: Studies on H2-Assisted Liquefied Petroleum Gas Reduction of NO over Ag/Al2O3 Catalyst. Bulletin of Chemical Reaction Engineering & Catalysis, 15 (2): 603-603 (doi:10.9767/bcrec.15.2.7659.603-603)Permalink/DOI: https://doi.org/10.9767/bcrec.15.2.7659.603-603

Even more than intelligence, creativity is considered as a quintessentially human capacity. The same conclusion is fully applicable to the artistic creation in music sector. However, rapid technological development is constantly challenging not only the creative process as such, but also the legal instruments intended to protect the results of intellectual and artistic work. The first part of this article examines the provisions of the new EU Directive 2019/790 dedicated to online content-sharing service providers and fair remuneration of authors/performers, while its second part maps the main challenges the development of artificial intelligence imposes to the protection of rights in musical works.

In this digital era, numerous copyrighted items such as music and movies can be enjoyed online. However, our activities in enjoying those entertainments are also limited by the copyright law. Some contents are also protected by Digital Rights Management, which makes sure that the user who purchases the item is the only person who has the right to enjoy the content. All of these rules are obviously made to make sure that everything is in order. Therefore, those illegal activities can be brought to justice. However, the lack of communication might present an ambiguity to the users, and those users might unconsciously do illegal things that are previously forbidden. Other than that, the law itself has its own limitation in the aspect of execution and enforcement, causing pirated versions of a content can be found easily on the internet. This paper is going to review the current condition of the execution of the law regarding the DRM protected contents.

This article reports the concept of digital library (DL) with its definitions, concept, generic architecture, ethics and librarianship related to DL. DLs are created by Library professionals, publishers, Government initiatives, societies and other higher educational institutions. There are different types of files and file formats are created and stored on DL. For uploading the files, the copyright / IPR issues are involved. As one cannot upload directly someone's file without the permission of that person. In information communication technology (ICT) environment, the Internet and web enables everyone to have access to the e-contents available from anywhere at any time. Due to this, DL creators cannot take it granted to upload them and make them available online. The IPR issues in digital environment plays a key role for identifying and taking permissions from the respective authors / publishers / content creators to upload the digital content. DL and IPR issues are discussed with the digital rights issues.

Ford’s ‘Comments (Laws 2018, 7(4), 34; https://doi.org/10.3390/laws7040034, https://www.mdpi.com/2075-471X/7/4/34)’ are biased by a partisan approach to the issues at stake and cannot be based on scientific evidence. The article “A Counterfactual Impact Analysis of Fair Use Policy on Copyright Related Industries in Singapore”, which Gibert and Gafelle wrote together nearly a decade ago, came under heavy criticism by George S. Ford from an organization named the Phoenix Centre for Advanced Legal and Economic Public Policy Studies in an article ‘A Counterfactual Impact Analysis of Fair Use Policy on Copyright Related Industries in Singapore: A Critical Review’. (subsequently ‘the fair use study’) The Fair use study was peer reviewed by LAWS and supports the hypothesis that a more flexible fair use policy is correlated with faster growth rates in private copying technology industries and fewer negative consequences than copyright holders may desire to see. The findings of the Fair use study upset Ford as well as a host of different institutions advocating for copyright owners, such as International Federation of Reproduction Rights Organizations; Motion Picture Association; Publishers Association of Australia; New Zealand Society of Authors or Recorded Music NZ-RMNZ. Ford’s article, however, neither contains novel research, nor is it an effort to update this fairly dated analysis, which reflects data nearly twenty years of age. Rather, it is an unnecessary duplication of an old analysis with only some minor modifications, which serve to show that fair use is actually not beneficial to the economy. At the end of this peculiar exercise, Ford himself admits that this analysis is meaningless. The rest of Ford’s article consists of discussing potential limitations of the Fair use study, in a manner which suggests the authors had never disclosed them (which however they had) and thus is misleading. Ford’s most fundamental point of criticism is hinged on a supposed lack of evidence regarding the parallelism assumption, which he himself admits is impossible to offer. Contrary to Ford’s analysis, the Fair use study has the merit of being fully reproducible, which is not the case for Ford’s article. Also, contrary to Ford’s article, the Fair use study has the advantage of carefully drafted limitations and of offering genuine research insights.

Latvijas Republikas Satversmes 112. pants garantē ikvienas personas tiesības uz izglītību, līdz ar to valstij apņemoties nodrošināt iespēju iegūt pamatizglītību un vidējo izglītību. Latvija ir pievienojusies dažādiem starptautiskiem tiesību aktiem, kuros ir ietverta izglītības nozīme. Izglītība kā pamattiesības ir noteikta arī divos galvenajos starptautiskos cilvēktiesību līgumos – Apvienoto Nāciju Organizācijas Vispārējās cilvēktiesību deklarācijas 26. pantā, kā arī Starptautiskajā paktā par ekonomiskajām, sociālajām un kultūras tiesībām, 13. un 14. pantā norādot, ka izglītībai jābūt vērstai uz pilnīgu personības attīstību un tai jāstiprina cilvēktiesību un pamatbrīvību ievērošana. Nesen piedzīvotais pandēmijas laiks radikāli pārveidoja tradicionāli saprotamo izglītības procesu – no skolas sola pie datora mājās. Globālās veselības krīzes laikā gandrīz visas pasaules valstu skolas tika slēgtas, un, lai nodrošinātu akadēmisko nepārtrauktību, mācību process tika nodrošināts tiešsaistē. Līdz ar to gandrīz katras pasaules valsts izglītības sistēmā un tiesību jomā radās jautājums ne tikai par to, kā nodrošināt piekļuvi izglītībai, bet arī par to, vai globālās krīzes izraisītās izmaiņas izglītības nodrošināšanas procesā attaisno autordarbu izmantošanas ierobežojumus, kā ievērot mācību nolūkos izmantoto autordarbu aizsardzību, nepārkāpjot valstu autortiesību likumus, kā līdzsvarot tiesības uz izglītību un autortiesības. Section 112 of the Constitution of the Republic of Latvia guarantees the right of any person to education, thereby ensuring, with the commitment of the State, the possibility of obtaining basic education and secondary education. Latvia has also joined diverse international legislation, which includes the importance of education. Education as a fundamental right is also enshrined in two major international human rights treaties, Article 26 of the UN Universal Declaration of Human Rights, as well as in the International Covenant on Economic, Social and Cultural Rights and Articles 13 and 14, stating that education must be aimed at full personal development and must strengthen respect for human rights and fundamental freedoms. The recently experienced pandemic time has radically transformed the traditionally understandable educational process – from the school bench to the computer at home. During the global health crisis, nearly all schools in the world were closed and, in order to ensure academic continuity, the learning process was provided online, leading to challenges in the education system and rights of almost every country in the world, not only to ensure access to education, but also raised questions about whether the changes in the education process caused by the global crisis justify restrictions on the use of the Authors’ works to respect the protection of the Author’ works used for teaching purposes, without infringing national copyright laws, on how to balance these two rights – education and copyright.

The first sale doctrine decouples intellectual property and physical property. Suppose, at an auction at Sotheby’s, someone bought a contemporary painting by Chuck Close. The buyer now owns the physical painting, but the copyright to the painting remains with the owner of the copyright—the painter Chuck Close or whomever Close may have transferred the copyright to. Absent the first sale doctrine, if the buyer either sold the painting or displayed it to the public, the buyer would potentially infringe the copyright in the painting. The copyright owner has the exclusive right to display copies (including the original, the first copy) of the painting to the public and to distribute copies to the public. However, the first sale doctrine provides that the owner of an authorized copy may display or distribute that particular copy without infringing. The distribution right and display right no longer apply; these rights are “exhausted.” Permission from the copyright owner is not required to resell copyrighted works or to display them. First sale permits a broad swath of activity. Used bookstores, libraries, swap fests, eBay, students reselling casebooks, and many more may rely on first sale to protect their distribution of copyrighted works. Museums, galleries, archives, bookstores, and more can likewise display their copies of copyrighted works without infringing under first sale. First sale (more commonly called “exhaustion” in patent law) also applies to patented products. Someone who buys a patented product (such as a pharmaceutical, computing device, or printer cartridge) can use or resell that product without infringing the patent, even though the patent owner has the rights to exclude others from using or selling the invention. First sale enables markets for resale or lease of patent products, from printer cartridges to airplanes. First sale has its limits. In copyright, it applies only to the rights to distribute and to display the work. The copyright owner also has the exclusive right to make copies, to adapt the work, and to perform the work publicly, which are not subject to first sale. The painting buyer would potentially infringe if the buyer made a copy of the painting or adapted it into another artwork, but the buyer could not infringe the performance right, because one cannot perform a painting. The owner of a copy of a musical work may infringe if she performs it in public, which is why bars need licenses to play copyrighted music, even using copies they have purchased. The owner of a copy of a movie may infringe if she adapted the movie, such as making a sequel—or even dubbing the movie in another language. In patent, first sale likewise would not authorize the purchaser of a product to make additional copies. Similarly, first sale in patent would authorize the buyer of a patented item to use it or resell it, but not to make another one. First sale is long-established, by statute in copyright and by judicial interpretation in patent. The underlying policy of first sale, however, has been unsettled. First sale can be seen to rest on either of two rationales. The first is a contract-based, gap-filler approach. If someone sells a painting, one would expect an implicit agreement that the buyer could display the painting or resell it, as both actions are customary with artworks. To simplify transactions, the rights to resell and display are automatically included in the transaction. The other justification is the policy against restraints on alienation, borrowed from the law of real property. Someone who sells property may not impose unreasonable restraints on the buyer’s ability to resell the property. As transplanted to intellectual property law, once a party voluntarily parts with a copy, she should no longer be able to control what the buyer does with it. Hence, her rights are “exhausted” in that particular copy. The underlying rationale is important for determining the extent of the first sale doctrine. If first sale is a gap-filler, then the parties could contract around it, agreeing that the property sold would not be subject to first-sale rights. If first sale is a policy-based bar against unreasonable restraints on alienation, then first sale is mandatory—it is not subject to the agreement of the parties but rather is the opposite: a limit on the enforceability of their agreement. Both strains can be seen in the case law. Two recent Supreme Court cases, however, decisively rested first sale on the restraints-against- alienation rationale, expressly rejecting the proposition that parties can contract around first sale. This Article explores the implications of those cases for the boundaries of first sale, focusing on two issues. First, California’s resale royalty law required that artists receive 5% of the proceeds on resale of their work. The Ninth Circuit held that the California statute was preempted by the first sale doctrine of federal copyright law. We conclude that, if first sale serves to prevent unreasonable restraints on alienation, such resale royalty statutes should be valid. Rather than an unreasonable restraint on alienation, they permit resale, imposing a modest burden for a purpose entirely consonant with copyright law: rewarding authors. Second, software sellers have long avoided first sale by characterizing software sales as mere licenses, while formally retaining ownership of the software after delivery to the buyer. Courts have enforced transactions according to the parties’ contract. We conclude, however, that such transactions, which are intended to prevent resale of software, should be characterized as sales in substance, triggering first-sale rights to resell the software, overriding the contractual restraint on alienation.

Key words: copyright, jewelry, bijouterie, unfair competition, trademark, litigation Fedorova N. Foreing and domestic experience in protecting intellectual property right to jewelry and jewelry. The article focuses on studying the issue of protecting the design of artistic jewelry and bijouterie. The concept of “functionality” for jewelry is analyzed, namely, it is determined that the «functionality» notion is the quality of servicing the useful purpose. For example, a chair manufacturer cannot claim the four legs of a chair as a copyright. These four legs are a useful and functional aspect of this chair. If a competitor also manufactures a chair with 4 legs, it does not infringe any manufacturer's right, since these legs are for functional purposes only. The concept of«functionality» in jewelry means that the last cannot be protected as a normal work, since it is purely utilitarian. For example, the hands or numbers on the dial of a watch are considered as functional because the exclusive use of these aspects seriously impedes healthy competition in the watch industry. On the other hand, unique jewelry design cannot be considered functional as it has the exclusive use of its particular elements’ combination.The analysis of European legislation and US judicial practice is carried out. Under applicable US copyright law, jewelry is a subject to copyright. Under normal circumstances, the law does not require prior registration of jewelry copyright. However, in order to protect jewelry or bijouterie under the US Law on Copyright, it must meet certain conditions. The complaining party must provide evidence of illegal copying of the work and prove copyright infringement. In case of violation of copyright for jewelry, the author or the jewelry house must prove:•the originality of design;•the uniqueness in the elements combination in the process of jewelry design development.The object of an industrial design can be a shape, pattern, color, or their combination that determines the appearance of an industrial product. The main criterion for the industrial design patentability is its novelty. However, in practice, an examination for novelty when registering a designation as an industrial design, according to Alexandra Odinets, is not carried out, and the patent is issued «under the responsibility of the applicant».With regard to unfair competition in the jewelry market, according to the US jurisprudence, it is more often an offense in this context than a violation of trademark rights or copyright infringement. It is unfair competition that misleads a consumer. A competitor, by assigning a good name and an reputation established, is trying to get profit. The definition of unfair competition is carried out in a comprehensive manner, here the court will not focus on one feature of a piece of jewelry but would consider all its inherent features. In particular, it is a combination of unique elements that provide the originality of the product.The article provides recommendations for jewelry and bijouterie authors on copyright protection. 1. Pro avtorski i sumizhni prava : Zakon Ukrainy. URL: https://zakon.rada.gov.ua/laws/show/3792-12#Text. 2. Tomarov I. Fashion Law: kopiiuvaty ne mozhna zaboronyty! Yurydychna hazeta Online. 2017. № 25(575). URL:https://yur-gazeta.com/publications/practice/zahist-intelektualnoyi-vlasnosti-avtorske-pravo/fashion-law-kopiyuvati-ne-mozhna-zaboroniti.html. 3. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971). 4. Dyrektyva Yevropeiskoho Soiuzu № 98/71. URL: https://zakon.rada.gov.ua/laws/show/994_a88#Text. 5. “Designer” Jewelry vs. “Inspired-by” Jewelry: Intellectual Property Infringement and Unfair Competition Considerations, 34. 6. Davis v. Gap, Inc. - 246 F.3d 152 (2d Cir. 2001). 7. Trifari, Krussman & Fishel, Inc. v Charel Co., 134 F Supp 551 (1955, DC NY). 8. Copyright Law of the United States §102, at 68 (2000). 9. Cprava Vacheron I Constantin-LeCoultreWatches, Inc. proty Benrus Watch Co., Inc. URL: http://saperlaw.com/blog/wp-content/uploads/2007/09/cba-fashion-presentation-final.pdf (last visited April 19th, 2008). 10. Cosmetic Ideas, Inc. v. IAC/Interactivecorp, CV08-02074 R (C.D. California); Los Angeles Copyright Attorneys File Jewelry Copyright Infringement Lawsuit Over Copying Protected Jewelry Design, available at: http://www.iptrademarkattorney.com/2008/04/copyright-attorneys-jewelry-los-angeles-protected-jewelry-design-lawsuit-copying-copyrights-la.html (last visited April 19th, 2008). 11. Saper Law. “Designer” Jewelry vs. “Inspired-by” Jewelry: Intellectual Property Infringement and Unfair Competition Considerations. 2008.

Abstract Objectives – This exploratory research seeks to broadly understand the publishing behaviours and attitudes of faculty, across all disciplines, at the University of Saskatchewan in response to the growing significance of open access publishing and archiving. The objective for seeking this understanding is to discover the current and emerging needs of researchers in order to determine if scholarly communications services are in demand here and, if so, to provide an evidence-based foundation for the potential future development of such a program of services at the University Library, University of Saskatchewan. Methods – All faculty members at the University of Saskatchewan were sent personalized email invitations to participate in a short online survey during the month of November 2012. The survey was composed of four parts: Current Research and Publishing Activities/Behaviours; Open Access Behaviours, Awareness, and Attitudes; Needs Assessment; and Demographics. Descriptive and inferential statistics were calculated. Results – The survey elicited 291 complete responses – a 21.9% response rate. Results suggest that faculty already have a high level of support for the open access movement, and considerable awareness of it. However, there remains a lack of knowledge regarding their rights as authors, a low familiarity with tools available to support them in their scholarly communications activities, and substantial resistance to paying the article processing charges of some open access journals. Survey respondents also provided a considerable number of comments – perhaps an indication of their engagement with these issues and desire for a forum in which to discuss them. It is reasonable to speculate that those who chose not to respond to this survey likely have less interest in, and support of, open access. Hence, the scholarly communications needs of this larger group of non-respondents are conceivably even greater. Conclusion – Faculty at the University of Saskatchewan are in considerable need of scholarly communications services. Areas of most need include: advice and guidance on authors’ rights issues such as retention of copyright; more education and support with resources such as subject repositories; and additional assistance with article processing charges. The University Library could play a valuable role in increasing the research productivity and impact of faculty by aiding them in these areas.

A Review of: Riehle, C. F., & Hensley, M. K. (2017). What do undergraduate students know about scholarly communication?: A mixed methods study. Portal: Libraries and the Academy, 17(1), 145–178. http://dx.doi.org/10.1353/pla.2017.0009 Abstract Objective – To examine undergraduate student researchers’ perception and understanding of scholarly communication practices and issues. Design – Mixed method study involving a survey and semi-structured interviews. Setting – Two major undergraduate universities in the Midwest region of the United States. Subjects – Undergraduate students who participated in or had completed undergraduate research experiences with faculty mentors. Method – The method was first approved by Institutional Review Board offices at both campuses involved in the study. Then, students received invitations to participate in a survey via email (Campus 1 = 221 students; Campus 2 = 345 students). Identical online surveys ran separately on each campus; both remained open for a period of three weeks. All respondents received a reminder email one week before the survey closed. Participants answered twelve questions related to demographics and scholarly communication practices. The survey examined knowledge and experience across five areas: the peer review process, author and publisher rights, publication and access models, impact of research, and data management. All students who completed the survey were entered in a drawing for a $50 Amazon card. The response rates were 34.8% (Campus 1) and 18.6% (Campus 2). Surveys on both campuses were administered using different software: campus 1 utilized Qualtrics survey software while campus 2 used an institution-specific survey software. Data sets were normed and merged later in the study to enable comparison and identify broad themes. Survey respondents were also invited to participate in a 15 to 20 minute follow-up interview and were compensated with a $20 Amazon gift card. The interviews consisted of four open-ended questions that further examined students’ knowledge of scholarly communication practices. The researchers coded interview transcripts and identified themes. Qualitative software was used to analyze the surveys and assess coder agreement. Finally, connections and anomalies between survey and interview results were explored. Main Results – Quantitative and qualitative data collected during the study indicate that students were most confident in their understanding of the peer-review process and data management but felt less confident in their knowledge of author and publisher rights, publication and access models, and determining the impact of scholarly research publication. In addition, they value instruction related to scholarly communication topics like the peer-review process, publication models, and data management. However, few students feel confident in their current level of knowledge or ability surrounding the previously mentioned topics. Study findings suggest that this knowledge gap is based on a lack of training or discussion of scholarly communication topics in relation to students’ research activities. Results also suggest that undergraduate students have difficulty articulating their rights as authors and their scholarly communication practices. In many cases, skill sets like data management are learned through trial and error while students progress through the research process. In some cases, faculty mentors have misperceptions and assumptions about undergraduate students’ knowledge and abilities regarding scholarly communication practices. This can create challenges for undergraduate students as they attempt to make informed decisions about research activities based on a limited foundation of experience or information. Finally, results indicate that undergraduate student researchers do not currently view the library as a place to learn about scholarly communication practices. The authors suggest that by forming strategic relationships with undergraduate research program directors, faculty, and graduate student mentors, librarians are in a prime position to incorporate scholarly communication practices into information literacy sessions or provide point-of-need coaching. Conclusion – The researchers conclude that academic libraries are in a unique position to support overarching research, teaching, and learning goals within the academic community. By developing programs that support information literacy and scholarly communication, libraries demonstrate value and align goals with teaching and learning priorities within the higher education community as a whole. Through this work, librarians support students as knowledge creators and advocate for training that emphasizes data literacy, copyright and authors’ rights, and the impact of research within specific disciplines.

The U.S. Constitution charges Congress with promoting ‘the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’ This is achieved through copyrights. The most common argument in favour of the distribution of exclusive copyrights is that they provide an incentive for artists and scientists to create their works. But, as I will show, the characteristics of intellectual objects (objects that can be copyrighted) can support the contradictory arguments that one, exclusive copyrights are necessary and two, that they should not exist at all. I conclude that the appropriate amount of copyright protection protects the incentive for producers to create while also defending the public’s right to a rich intellectual realm. This is sometimes termed ‘thin’ copyright protection. Thin copyright protection is far weaker than the current copyright regime. For instance, the Sonny Bono Copyright Extension Act of 1998 extended copyright protection to the life of the author plus 70 years, and in the case of works created by corporate entities the act extended protection to 95 years. This is a far cry from copyright’s original duration of 14 years (plus one possible renewal). It would be difficult to argue that these extensions provide any extra incentive for authors to create, while on the other hand they surely attack the public’s right to a robust intellectual realm. Therefore, the current copyright regime needs to be substantially weakened to a ‘thin’ level. To avoid confusion, I will call works that have the potential to be copyrighted ‘intellectual objects’ before they are copyrighted and use the term ‘copyrighted works’ for intellectual objects after they are copyrighted. Intellectual objects, however, are not objects in the ordinary sense of the word. The particular edition of a book (and the particular copy of a particular edition of a book) is not an intellectual object. It is merely a manifestation (or instance) of the intellectual object. The work, in the broadest sense, is the actual intellectual object. In other words, the manifestation of the work is not the intellectual object, but the work itself is. An individual book is an instantiation of the work, which is the actual intellectual object. Without delving too far into the ontology of artworks it is necessary for this discussion only to see that when talking about intellectual objects we are not talking about physical objects but about objects that can be instantiated in many locations. That is, intellectual objects can be reproduced without losing their intellectual value. Copyright discussions often begin with the incentive argument mentioned above. An incentive is needed to foster innovation because intellectual objects are non-rivalrous (with regards to consumption) and non-excludable before they are copyrighted. A non-rivalrous good is a good for which enjoyment of it by some agents does not diminish available opportunities for others to enjoy it as well. A non-excludable good, on the other hand, is a good for which it is not possible to prevent individuals (who do not own the good) from consuming it or partaking of the benefits of it (at a relatively low cost). Since intellectual objects are non-rivalrous and non-excludable there is good reason to believe that without copyright protection authors would reduce their production of intellectual objects. This is because without this protection there would be (arguably) no way for authors to receive compensation for their work and to recoup the costs that went into producing the intellectual object at hand. The fact that intellectual objects are non-rivalrous means that there is no reason why you and I cannot read the same book at the same time. My reading the same work that you are reading (as opposed to reading the same manifestation of the intellectual object) does not decrease your enjoyment in reading that book. That is, the fact that we are both reading Moby Dick in the same period of time does not diminish either of our utilities. This should be contrasted with rivalrous private goods. Take, for instance, a bag of potato chips that you have just bought from your local grocery store. If I eat all of your chips you can no longer derive pleasure from them and if you eat the chips I cannot derive pleasure from them. Rivalrous goods are marked by this relationship. One person’s full enjoyment of such a good disallows another person’s full enjoyment of a rivalrous good. Edwin Hettinger aptly explains the concept of non-rivalrousness in his essay ‘Justifying Intellectual Property’ by writing that intellectual objects are goods which ‘are not consumed by their use’ (34). Purely non-excludable goods are goods for which there is no way for one person to exclude another from their use or consumption. An example of a purely non-excludable good is the air. It is absolutely impossible for one to exclude another person from breathing the air (except perhaps by killing them). Yet, intellectual objects are not purely non-excludable but relatively non-excludable. This ‘relative’ non-excludability arises from the fact that a person can exclude another from the physical instantiation of an intellectual object s/he owns (where s/he owns the physical instantiation and not the intellectual object). That is, s/he can prevent another person from taking his/her copy of The Corrections. But s/he cannot exclude another from the intellectual object instantiated in the book. This is because a person’s copy of The Corrections is, in many ways, a piece of physical property and not of intellectual property. What I am concerned with here is intellectual property and thus with intellectual objects (what are later the copyrighted works). Copyrighted works are legally excludable, but it is still difficult to restrict their distribution. This means that they are quasi-non-excludable. That intellectual objects are non-rivalrous and non-excludable leads to two contradictory conclusions. The first argues that there is a very good justification for having strong copyright laws; namely that without strong copyright laws works that originally had great value will be copied by unauthorised entities who will sell the copied works for very little and will give none of it back to the author of the work. This means that the author will eventually have no financial incentive to create his/her works. However, these attributes of intellectual objects also mean that there is a very good for having weak (or thin) copyrights (or no copyrights at all). Since there is no reason why each person should not be able to possess all of the great works for a very cheap price (which having weak or short copyrights would ensure). This is especially true given the fact that the entire reasoning for having copyrights at all (in this line of argument) is to ensure the progress of science and the arts which presumably are meant to belong to every citizen of the United States. The first branch of this tension could be called the producer’s conclusion and the second could be called the consumer’s conclusion. If we believe the first conclusion we will have to side with producers over consumers, whereas if we believe the second we will have to side with consumers over producers. These contradictory results both follow from the fact that intellectual works are non-rivalrous and non-excludable. Since they are non-rivalrous and non-excludable there is every reason to leave them that way (that is, not to have copyrights) as it benefits the public but for the same reason there is every reason to have strong copyrights so that authors will create intellectual works in the future. Hettinger notes that the justification for copyright at this level is paradoxical. ‘It establishes a right to restrict the current availability and use of intellectual products for the purpose of increasing the production and thus future availability and use of new intellectual products’ (48). That is, the logic is that you’ll get more intellectual objects if you limit the current availability of intellectual objects. Law Professor and copyright specialist Paul Goldstein summarises this argument in his book Copyright’s Highway when he writes, ‘since copyright allows creators and publishers of literary and artistic works to charge a price for gaining access to these works, the inescapable effect is to withhold the work from people who will not or cannot pay that price, even though giving them free access would harm no one else’ (176). But this is only one side of the tension, to elucidate the other side which Goldstein subscribes to, he writes that ‘if society withholds property rights from creative work, the price that its producers can charge for access to it will begin to approach zero; their revenues will diminish and, with them, their incentives to produce more’ (177). So we are left with this tension that must be duly dealt with by policy makers. In light of the tension we should measure copyright protection by both of its poles. These poles correspond in the first case to the author’s rights and in the second to the consumer’s rights. The best copyright protection will accept what both sets of rights demand to the extent that it can, but when it cannot it will side with the user since the set of users more or less corresponds to the public at large. (We are all users of intellectual objects but are not all authors of them.) What this means for enacting copyright policies is that copyright protection should exist, but it should exist no more than is necessary for promoting the arts and sciences. That is, copyrights should be seen as incentives to create, not property rights. The fact that there are incentives will please authors and the fact that they are limited (through broad fair use exemptions, a healthy distinction between ideas and expressions, and having copyright protections for a relatively short period of time) will please users. All in all this is the best way of seeing our way through the tension at the heart of copyright law. In terms of the enactment of the law, copyright laws should be limited in duration and scope. First, copyright protection should not last for 70 years plus the life of the author, which is too long to justify in terms of providing an incentive for authors to create. Second, fair use provisions for copying parts of works should be broadened and minor infractions (such as private copying, regardless of the difficulties in defining what ‘private’ means) should not be prosecuted since small amounts of copying do not encroach on the effectiveness of the incentive for authors to create. Third, the idea/expression distinction should be strongly and vigorously maintained. While all of these changes appear on the surface to be siding with the public over authors, the fact that copyright protection exists at all is obviously to the author’s advantage. Thus, these changes constitute a copyright regime that is more beneficial to all, authors and public included. References Bell, Tom W. “Diagram of ‘The Paths of Intellectual Property’.” http://www.tomwbell.com/teaching/Prop_Paths.pdf>. Goldstein, Paul. Copyright’s Highway. From Gutenberg to the Celestial Jukebox (rev. ed.). Stanford, Calif.: Stanford UP, 2003. Hettinger, Edwin. “Justifying Intellectual Property.” Philosophy and Public Affairs 18 (1989): 31-52. Morgan, Scott. “Columbus Farmers Market Contemplates Countersuing Recording Industry Association of America, Which Is Suing Market over Pirated Music.” Packet Online 16 Oct. 2003. http://www.zwire.com/site/news.cfm?BRD=1091&dept_id=425707&newsid=10328460&PAG=461&rfi=9>. Samuels, Edward. “The Idea-Expression Dichotomy in Copyright Law.” 56 Tenn. L. Rev. 321 (1989). ’ Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York, NY: New York UP, 2001. Note A basic discussion of public goods can be found at http://www.pitt.edu/~upjecon/MCG/MICRO/GOVT/Pubgood.html>. Citation reference for this article MLA Style Raven, Francis. "Copyright and Public Goods: An Argument for Thin Copyright Protection." M/C Journal 8.3 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0507/06-raven.php>. APA Style Raven, F. (Jul. 2005) "Copyright and Public Goods: An Argument for Thin Copyright Protection," M/C Journal, 8(3). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0507/06-raven.php>.

Rip, mix, share, and sue. Has ‘copy’ become a dirty word? The invitation to artists, activists, consumers and critics to engage in the debate surrounding the creative processes of ‘copy’ has been insightful, if not inciting sampling/reproduction/reflection itself: It clearly questions whether ‘copy’ deserves the negative connotations that it currently summonses. It has confronted the divide between the original and its replica, and questioned notions of authenticity and the essence of identity. It has found that ‘open source’ is an opportunity to capitalise on creativity, and that reuse is resplendently productive. Cultural expression and social exchange are seen to rest upon the acts of copying which are brought to our attention in this edition. As this issue illustrates, the word ‘copy’ has numerous interpretations, applications, and angles, yet an overriding wealth of debate currently outweighs all others; and that surrounds the tumultuous issue of ‘protecting’ copyright in the digital age. Since its conception in the 17th century, copyright law has faced an increasing challenge in achieving its original aims; namely, to strike a balance between creators’ and consumers’ rights in allowing concurrent attribution and access to works. Recent dramatic technological advancements affecting reproduction and distribution of copies, particularly pertaining to the Internet, have fundamentally changed and challenged the content environment. When copyright laws were first conceived, copying and distributing creative works was difficult. Now these activities are virtually free, and practically pervasive; in the digital age, the difficulty lies in their control. Yet because the primarily Western copyright regime relies on providing rights holders with the ability to control their works, copyright industries are working on strategies to garner greater control. Heading this list of strategies are technological content protection mechanisms, consumer education, and lawsuits against individual copyright infringers. Peer-to-peer (P2P) networks are being exploited and sabotaged simultaneously by entities within the Creative Industries, in an attempt to learn from and eliminate the free ‘competition’. Perceiving the mismatch of legal sanction and access to enabling technologies, critics revile the increasing restriction on consumers and creativity. The music industry, in particular, is experimenting with new business models to confine consumers’ rights to enjoy a growing bank of online music. Technical protection mechanisms, within the ambit of Digital Rights Management (DRM), are increasingly applied to enforce these licensing restrictions, providing ‘speed bumps’ for access to content (Digital Connections Council of the Committee for Economic Development 50). Given that these mechanisms can only temporarily allow a limited level of control over access to and usage of content, however, both IP and contract law are essential to the prevention and deterrence of infringement. While production and distribution corporations agitate about online ‘piracy’, an increasing population of consumers are unsympathetic, knowing that very little of the music industry revenue ends up in the pockets of artists, and knowing very little of the complex law surrounding copyright. Over the past few hundred years the content distribution business has become particularly wealthy, and it is primarily this link of the content chain from creator to consumer that is tending towards redundancy in the digital networked world: those who once resided in the middle of the content chain will no longer be required. When individuals and collectives create something they are proud of, they want the world to experience and talk about it, if not ‘rip, mix, mash, and share’ it. The need to create and communicate has always been part of human makeup. Infants learn rapidly during their first few years primarily by observing and emulating the behaviour of adults. But as children progress, and begin creating what they perceive to be their unique contribution, they naturally want to claim and display it as their own; hence the importance of attribution and moral rights to this debate. Clearly, society benefits in many ways from this drive to create, innovate, communicate, learn and share contributions. One need only cite Sir Isaac Newton, who is attributed as having said, ‘If I have seen further, it is by standing on the shoulders of giants.’ Academics and scientists worldwide have long collaborated by sharing and building on one another’s work, a fact acknowledged by the Science Commons initiative (http://www.sciencecommons.org/) to provide open access to academic research and development. Such has been inspired by the vision of Lawrence Lessig, as espoused in The Future of Ideas: The Fate of the Commons in a Connected World. Appropriation of bits and pieces (‘samples’) of another’s work, along with appropriate attribution, has always been acceptable until recently. This legal tension is explored by authors Frederick Wasser, in his article ‘When Did They Copyright the World Without Us Noticing?’, and Francis Raven, in ‘Copyright and Public Goods: An Argument for Thin Copyright Protection’. Wasser explores the recent agitation against the legislated copyright extension in the United States to 95 years from publication (or 120 years from creation, whichever is shorter) from an original 14, accompanied by the changing logic of copyright, which has further upset the balance between protection and fair use, between consumer and creator, and ultimately invests power in the intermediary. Raven argues for ‘thin’ copyright protection, having the intention to protect the incentive for producers to create while also defending the public’s right to a rich intellectual realm in the public domain. Current conflict surrounding music sampling illustrates that our evolution towards a regime of restrictive licensing of digital works, largely driven by copyright owners and content distributors, has made the use of bits and pieces of existing music difficult, if not impossible. In this issue’s feature article ‘Good Copy/Bad Copy’, Steve Collins examines the value of ‘copy’ where musical creativity and copyright law intersect. The recontextualisation and reshaping of music with regard to cover versions and sampling brings into relief the disparity in current legal and licensing provisions. When creativity is stifled by copyright, the original intention of the law is lost. Collins argues that creators are now subject to the control of an oppressive monopoly, which clearly should be addressed if innovative cultural expression is to thrive. The issue’s second article, ‘The Affect of Selection in Digital Sound Art’ by author and sound artist Owen Chapman, aka ‘Opositive’, explores the interplay and influence between the ‘raw and the remixed’, where subjective control over sound production is questioned. Transformation of sound hovers between an organic and intentional process, and creates affective influence: we are ultimately entreated to listen and learn, as sampling selection goes gestalt. Moving from the aural domain to the written, the significance of textual reuse and self-referentiality is introduced by Kirsten Seale in her academic exploration of reuse in the works of Iain Sinclair. Sinclair, in Dining on Stones (or, the Middle Ground), is seen to have subverted the postmodernist obscuration/denial of authorial control through the reintroduction of an assured self-sampling technique. Also in contemplating the written creative process, after significant exposure to the ever-more-evident proclivities of students to cut and paste from Websites, Dr. Gauti Sigthorsson asserts that plagiarism is merely symptomatic of the dominant sampling culture. Rather than looming as a crisis, Sigthorsson sees this increasing appropriation as a ‘teachable moment’, illustrating the delights of the open source process. Issues of identity and authenticity are explored in ‘Digital Doppelgängers’ by Lisa Bode, and ‘Slipping and Sliding: blind optimism, greed and the effect of fakes on our cultural understanding’ by art fraud and forensic expert Robyn Sloggett. In introducing the doppelgänger of Indo-European folklore and literature as the protagonist’s sinister double, Bode goes on to explore the digital manifestation: the image which challenges the integrity of the actor and his/her reflection, where original identity may be beyond the actor’s control. In copy’s final article ‘Slipping and Sliding’ by Sloggett, the determination of artistic authenticity is explored. Identity is seen to be predicated on authenticity: but does this necessarily hold? In reflecting on the notions of ‘copy’ explored in this issue, it is clear that civilisation has progressed by building on past successes and failures. A better, richer future can be possible if we continue to do exactly this. Instead, rights holders are striving to maintain control, using clumsy methods that effectively alter traditional user rights (or perceived rights) and practices. Imagine instead if all creative content were virtually free and easily accessible to all; where it would not longer be an infringement to make and share copies for non-commercial reasons. Is it possible to engineer an alternative incentive (to copyright) for creativity to flourish? This is, after all, the underlying goal behind copyright law. Copyright law provides a creator with a temporary monopoly over the sale and distribution of their work. Infringing copyright law is consequently depriving creators of this mechanism to make money, obtain notoriety and thus their very motivation to create. This goal to provide creative incentive is fundamentally important for society, intellectually and culturally, but alternative means to achieve it are worthy of exploration. A familiar alternative option to help generate creativity is to apply a special tax (levy) on all goods and services that enable viewing, listening, reading, publishing, copying, and downloading of digital content. The revenue pool this generates is then available for distribution amongst content creators, thereby creating a financial incentive. In over 40 countries, primarily European, partial variations of such a levy system are currently used to compensate copyright owners whilst allowing consumers a certain degree of free private copying. Professor William Fisher, Hale and Dorr Professor of Intellectual Property Law at Harvard University, and Director of the Berkman Centre for Internet and Society, proposes as much in his book outlining a government-administered compensation scheme, encompassing free online access to music and movies: Promises to Keep: Technology, Law and the Future of Entertainment. As we are left to contemplate copyrights and ‘copywrongs’ (Vaidhyanathan), we may reflect that the ‘promotion of the progress of science and the useful arts’, as per Harper v. Row (471 U.S.), rests with the (some say draconian) directions determined by legislation. Measures contained in instruments such as the Digital Millennium Copyright Act (DMCA), continue to diminish, if not desecrate, the public domain. Moreover, as the full impact of the Free Trade Agreement (FTA) with the United States looms for the Australian audience, in the adoption of the extension of the copyright term to the criminalisation of IP infringement, we realise that the establishment of economically viable and legal alternatives to the adopted regime is paramount. (Moore) We are also left to lament the recent decision in MGM vs. Grokster, where the US Supreme Court has ruled unanimously against the file-sharing service providers Grokster and Streamcast Networks (developers of Morpheus), serving as an illustration of ongoing uncertainty surrounding P2P networks and technologies, and lack of certainty of any court decisions regarding such matters. In the future, as we log into Longhorn (http://msdn.microsoft.com/longhorn/), we will wonder where our right to enjoy began to disappear. Electronic Frontier Foundation’s (http://www.eff.org/) cry to ‘Defend Freedom in the Digital World’ gains increasing resonance. In presenting ‘copy’ to you, we invite you cut, paste, innovate, create, and be entertained, to share, and share alike, while you still can. References Digital Connections Council of the Committee for Economic Development (CED). Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property, 2004. http://www.ced.org/docs/report/report_dcc.pdf>. Fisher, William. Promises to Keep: Technology, Law, and the Future of Entertainment. Palo Alto CA: Stanford UP, 2004. Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2001. Moore, Christopher. “Creative Choices: Changes to Australian Copyright Law and the Future of the Public Domain.” Media International Australia 114 (2005): 71-82. Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Citation reference for this article MLA Style Leisten, Susanna, and Rachel Cobcroft. "Copy." M/C Journal 8.3 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0507/01-editorial.php>. APA Style Leisten, S., and R. Cobcroft. (Jul. 2005) "Copy," M/C Journal, 8(3). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0507/01-editorial.php>.

The Internet has connected people and cultures in a way that, just ten years ago, was unimaginable. Because of the net, materials once scarce are now ubiquitous. Indeed, never before in human history have so many people had so much access to such a wide variety of cultural material, yet far from heralding a new cultural nirvana, we are facing a creative lock-down. Over the last hundred years, copyright term has been extended time and again by a creative industry eager to hold on to the exclusive rights to its most lucrative materials. Previously, these rights guaranteed a steady income because the industry controlled supply and, in many cases, manufactured demand. But now culture has moved from being physical artefacts that can be sold or performances that can be experienced to being collections of 1s and 0s that can be easily copied and exchanged. People are revelling in the opportunity to acquire and experience music, movies, TV, books, photos, essays and other materials that they would otherwise have missed out on; and they picking up the creative ball and running with it, making their own version, remixes, mash-ups and derivative works. More importantly than that, people are producing and sharing their own cultural resources, publishing their own original photos, movies, music, writing. You name it, somewhere someone is making it, just for the love of it. Whilst the creative industries are using copyright law in every way they can to prosecute, shut down, and scare people away from even legitimate uses of cultural materials, the law itself is becoming increasingly inadequate. It can no longer deal with society’s demands and expectations, nor can it cope with modern forms of collaboration facilitated by technologies that the law makers could never have anticipated. Understanding Copyright Copyright is a complex area of law and even a seemingly simple task like determining whether a work is in or out of copyright can be a difficult calculation, as illustrated by flowcharts from Tim Padfield of the National Archives examining the British system, and Bromberg & Sunstein LLP which covers American works. Despite the complexity, understanding copyright is essential in our burgeoning knowledge economies. It is becoming increasingly clear that sharing knowledge, skills and expertise is of great importance not just within companies but also within communities and for individuals. There are many tools available today that allow people to work, synchronously or asynchronously, on creative endeavours via the Web, including: ccMixter, a community music site that helps people find material to remix; YouTube, which hosts movies; and JumpCut:, which allows people to share and remix their movies. These tools are being developed because of the increasing number of cultural movements toward the appropriation and reuse of culture that are encouraging people to get involved. These movements vary in their constituencies and foci, and include the student movement FreeCulture.org, the Free Software Foundation, the UK-based Remix Commons. Even big business has acknowledged the importance of cultural exchange and development, with Apple using the tagline ‘Rip. Mix. Burn.’ for its controversial 2001 advertising campaign. But creators—the writers, musicians, film-makers and remixers—frequently lose themselves in the maze of copyright legislation, a maze complicated by the international aspect of modern collaboration. Understanding of copyright law is at such a low ebb because current legislation is too complex and, in parts, out of step with modern technology and expectations. Creators have neither the time nor the motivation to learn more—they tend to ignore potential issues and continue labouring under any misapprehensions they have acquired along the way. The authors believe that there is an urgent need for review, modernisation and simplification of intellectual property laws. Indeed, in the UK, intellectual property is currently being examined by a Treasury-level review lead by Andrew Gowers. The Gowers Review is, at the time of writing, accepting submissions from interested parties and is due to report in the Autumn of 2006. Internationally, however, the situation is likely to remain difficult, so creators must grasp the nettle, educate themselves about copyright, and ensure that they understand the legal ramifications of collaboration, publication and reuse. What Is Collaboration? Wikipedia, a free online encyclopaedia created and maintained by unpaid volunteers, defines collaboration as “all processes wherein people work together—applying both to the work of individuals as well as larger collectives and societies” (Wikipedia, “Collaboration”). These varied practices are some of our most common and basic tendencies and apply in almost every sphere of human behaviour; working together with others might be described as an instinctive, pragmatic or social urge. We know we are collaborating when we work in teams with colleagues or brainstorm an idea with a friend, but there are many less familiar examples of collaboration, such as taking part in a Mexican wave or standing in a queue. In creative works, the law expects collaborators to obtain permission to reuse work created by others before they embark upon that reuse. Yet this distinction between ‘my’ work and ‘your’ work is entirely a legal and social construct, as opposed to an absolute fact of human nature, and new technologies are blurring the boundaries between what is ‘mine’ and what is ‘yours’ whilst new cultural movements posit a third position, ‘ours’. Yochai Benkler coined the term ‘commons-based peer production’ (Benkler, Coase’s Penguin; The Wealth of Nations) to describe collaborative efforts, such as free and open-source software or projects such as Wikipedia itself, which are based on sharing information. Benkler posits this particular example of collaboration as an alternative model for economic development, in contrast to the ‘firm’ and the ‘market’. Benkler’s notion sits uncomfortably with the individualistic precepts of originality which dominate IP policy, but with examples of commons-based peer production on the increase, it cannot be ignored when considering how new technologies and ways of working interact with existing and future copyright legislation. The Development of Collaboration When we think of collaboration we frequently imagine academics working together on a research paper, or musicians jamming together to write a new song. In academia, researchers working on a project are expected to write papers for publication in journals on a regular basis. The motto ‘publish or die’ is well known to anyone who has worked in academic circle—publishing papers is the lifeblood of the academic career, forming the basis of a researcher’s status within the academic community and providing data and theses for other researchers to test and build upon. In these circumstances, copyright is often assigned by the authors to a journal and, because there is no direct commercial outcome for the authors, conflicts regarding copyright tend to be restricted to issues such as reuse and reproduction. Within the creative industries, however, the focus of the collaboration is to derive commercial benefit from the work, so copyright issues, such as division of fees and royalties, plagiarism, and rights for reuse are much more profitable and hence they are more vigorously pursued. All of these issues are commonly discussed, documented and well understood. Less well understood is the interaction between copyright and the types of collaboration that the Internet has facilitated over the last decade. Copyright and Wikis Ten years ago, Ward Cunningham invented the ‘wiki’—a Web page which could be edited in situ by anyone with a browser. A wiki allows multiple users to read and edit the same page and, in many cases, those users are either anonymous or identified only by a nickname. The most famous example of a wiki is Wikipedia, which was started by Jimmy Wales in 2001 and now has over a million articles and over 1.2 million registered users (Wikipedia, “Wikipedia Statistics”). The culture of online wiki collaboration is a gestalt—the whole is greater than the sum of the parts and the collaborators see the overall success of the project as more important than their contribution to it. The majority of wiki software records every single edit to every page, creating a perfect audit trail of who changed which page and when. Because copyright is granted for the expression of an idea, in theory, this comprehensive edit history would allow users to assert copyright over their contributions, but in practice it is not possible to delineate clearly between different people’s contributions and, even if it was possible, it would simply create a thicket of rights which could never be untangled. In most cases, wiki users do not wish to assert copyright and are not interested in financial gain, but when wikis are set up to provide a source of information for reuse, copyright licensing becomes an issue. In the UK, it is not possible to dedicate a piece of work to the public domain, nor can you waive your copyright in a work. When a copyright holder wishes to licence their work, they can only assign that licence to another person or a legal entity such as a company. This is because in the UK, the public domain is formed of the ‘leftovers’ of intellectual property—works for which copyright has expired or those aspects of creative works which do not qualify for protection. It cannot be formally added to, although it certainly can be reduced by, for example, extension of copyright term which removes work from the public domain by re-copyrighting previously unprotected material. So the question becomes, to whom does the content of a wiki belong? At this point traditional copyright doctrines are of little use. The concept of individuals owning their original contribution falls down when contributions become so entangled that it’s impossible to split one person’s work from another. In a corporate context, individuals have often signed an employment contract in which they assign copyright in all their work to their employer, so all material created individually or through collaboration is owned by the company. But in the public sphere, there is no employer, there is no single entity to own the copyright (the group of contributors not being in itself a legal entity), and therefore no single entity to give permission to those who wish to reuse the content. One possible answer would be if all contributors assigned their copyright to an individual, such as the owner of the wiki, who could then grant permission for reuse. But online communities are fluid, with people joining and leaving as the mood takes them, and concepts of ownership are not as straightforward as in the offline world. Instead, authors who wished to achieve the equivalent of assigning rights to the public domain would have to publish a free licence to ‘the world’ granting permission to do any act otherwise restricted by copyright in the work. Drafting such a licence so that it is legally binding is, however, beyond the skills of most and could be done effectively only by an expert in copyright. The majority of creative people, however, do not have the budget to hire a copyright lawyer, and pro bono resources are few and far between. Copyright and Blogs Blogs are a clearer-cut case. Blog posts are usually written by one person, even if the blog that they are contributing to has multiple authors. Copyright therefore resides clearly with the author. Even if the blog has a copyright notice at the bottom—© A.N. Other Entity—unless there has been an explicit or implied agreement to transfer rights from the writer to the blog owner, copyright resides with the originator. Simply putting a copyright notice on a blog does not constitute such an agreement. Equally, copyright in blog comments resides with the commenter, not the site owner. This reflects the state of copyright with personal letters—the copyright in a letter resides with the letter writer, not the recipient, and owning letters does not constitute a right to publish them. Obviously, by clicking the ‘submit’ button, commenters have decided themselves to publish, but it should be remembered that that action does not transfer copyright to the blog owner without specific agreement from the commenter. Copyright and Musical Collaboration Musical collaboration is generally accepted by legal systems, at least in terms of recording (duets, groups and orchestras) and writing (partnerships). The practice of sampling—taking a snippet of a recording for use in a new work—has, however, changed the nature of collaboration, shaking up the recording industry and causing a legal furore. Musicians have been borrowing directly from each other since time immemorial and the student of classical music can point to many examples of composers ‘quoting’ each other’s melodies in their own work. Folk musicians too have been borrowing words and music from each other for centuries. But sampling in its modern form goes back to the musique concrète movement of the 1940s, when musicians used portions of other recordings in their own new compositions. The practice developed through the 50s and 60s, with The Beatles’ “Revolution 9” (from The White Album) drawing heavily from samples of orchestral and other recordings along with speech incorporated live from a radio playing in the studio at the time. Contemporary examples of sampling are too common to pick highlights, but Paul D. Miller, a.k.a. DJ Spooky ‘that Subliminal Kid’, has written an analysis of what he calls ‘Rhythm Science’ which examines the phenomenon. To begin with, sampling was ignored as it was rare and commercially insignificant. But once rap artists started to make significant amounts of money using samples, legal action was taken by originators claiming copyright infringement. Notable cases of illegal sampling were “Pump Up the Volume” by M/A/R/R/S in 1987 and Vanilla Ice’s use of Queen/David Bowie’s “Under Pressure” in the early 90s. Where once artists would use a sample and sort out the legal mess afterwards, such high-profile litigation has forced artists to secure permission for (or ‘clear’) their samples before use, and record companies will now refuse to release any song with uncleared samples. As software and technology progress further, so sampling progresses along with it. Indeed, sampling has now spawned mash-ups, where two or more songs are combined to create a musical hybrid. Instead of using just a portion of a song in a new composition which may be predominantly original, mash-ups often use no original material and rely instead upon mixing together tracks creatively, often juxtaposing musical styles or lyrics in a humorous manner. One of the most illuminating examples of a mash-up is DJ Food Raiding the 20th Century which itself gives a history of sampling and mash-ups using samples from over 160 sources, including other mash-ups. Mash-ups are almost always illegal, and this illegality drives mash-up artists underground. Yet, despite the fact that good mash-ups can spread like wildfire on the Internet, bringing new interest to old and jaded tracks and, potentially, new income to artists whose work had been forgotten, this form of musical expression is aggressively demonised upon by the industry. Given the opportunity, the industry will instead prosecute for infringement. But clearing rights is a complex and expensive procedure well beyond the reach of the average mash-up artist. First, you must identify the owner of the sound recording, a task easier said than done. The name of the rights holder may not be included in the original recording’s packaging, and as rights regularly change hands when an artist’s contract expires or when a record label is sold, any indication as to the rights holder’s identity may be out of date. Online musical databases such as AllMusic can be of some use, but in the case of older or obscure recordings, it may not be possible to locate the rights holder at all. Works where there is no identifiable rights holder are called ‘orphaned works’, and the longer the term of copyright, the more works are orphaned. Once you know who the rights holder is, you can negotiate terms for your proposed usage. Standard fees are extremely high, especially in the US, and typically discourage use. This convoluted legal culture is an anachronism in desperate need of reform: sampling has produced some of the most culturally interesting and financially valuable recordings of the past thirty years, so should be supported rather than marginalised. Unless the legal culture develops an acceptance for these practices, the associated financial and cultural benefits for society will not be realised. The irony is that there is already a successful model for simplifying licensing. If a musician wishes to record a cover version of a song, then royalty terms are set by law and there is no need to seek permission. In this case, the lawmakers have recognised the social and cultural benefit of cover versions and created a workable solution to the permissions problem. There is no logical reason why a similar system could not be put in place for sampling. Alternatives to Traditional Copyright Copyright, in its default structure, is a disabling force. It says that you may not do anything with my work without my permission and forces creators wishing to make a derivative work to contact me in order to obtain that permission in writing. This ‘permissions society’ has become the norm, but it is clear that it is not beneficial to society to hide away so much of our culture behind copyright, far beyond the reach of the individual creator. Fortunately there are fast-growing alternatives which simplify whilst encouraging creativity. Creative Commons is a global movement started by academic lawyers in the US who thought to write a set of more flexible copyright licences for creative works. These licenses enable creators to precisely tailor restrictions imposed on subsequent users of their work, prompting the tag-line ‘some rights reserved’ Creators decide if they will allow redistribution, commercial or non-commercial re-use, or require attribution, and can combine these permissions in whichever way they see fit. They may also choose to authorise others to sample their works. Built upon the foundation of copyright law, Creative Commons licences now apply to some 53 million works world-wide (Doctorow), and operate in over 60 jurisdictions. Their success is testament to the fact that collaboration and sharing is a fundamental part of human nature, and treating cultural output as property to be locked away goes against the grain for many people. Creative Commons are now also helping scientists to share not just the results of their research, but also data and samples so that others can easily replicate experiments and verify or refute results. They have thus created Science Commons in an attempt to free up data and resources from unnecessary private control. Scientists have been sharing their work via personal Web pages and other Websites for many years, and additional tools which allow them to benefit from network effects are to be welcomed. Another example of functioning alternative practices is the Remix Commons, a grassroots network spreading across the UK that facilitates artistic collaboration. Their Website is a forum for exchange of cultural materials, providing a space for creators to both locate and present work for possible remixing. Any artistic practice which can reasonably be rendered online is welcomed in their broad church. The network’s rapid expansion is in part attributable to its developers’ understanding of the need for tangible, practicable examples of a social movement, as embodied by their ‘free culture’ workshops. Collaboration, Copyright and the Future There has never been a better time to collaborate. The Internet is providing us with ways to work together that were unimaginable even just a decade ago, and high broadband penetration means that exchanging large amounts of data is not only feasible, but also getting easier and easier. It is possible now to work with other artists, writers and scientists around the world without ever physically meeting. The idea that the Internet may one day contain the sum of human knowledge is to underestimate its potential. The Internet is not just a repository, it is a mechanism for new discoveries, for expanding our knowledge, and for making links between people that would previously have been impossible. Copyright law has, in general, failed to keep up with the amazing progress shown by technology and human ingenuity. It is time that the lawmakers learnt how to collaborate with the collaborators in order to bring copyright up to date. References Apple. “Rip. Mix. Burn.” Advertisement. 28 April 2006 http://www.theapplecollection.com/Collection/AppleMovies/mov/concert_144a.html>. Benkler, Yochai. Coase’s Penguin. Yale Law School, 1 Dec. 2002. 14 April 2006 http://www.benkler.org/CoasesPenguin.html>. ———. The Wealth of Nations. New Haven: Yape UP, 2006. Bromberg & Sunstein LLP. Flowchart for Determining when US Copyrights in Fixed Works Expire. 14 Apr. 2006 http://www.bromsun.com/practices/copyright-portfolio-development/flowchart.htm>. DJ Food. Raiding the 20th Century. 14 April 2006 http://www.ubu.com/sound/dj_food.html>. Doctorow, Cory. “Yahoo Finds 53 Million Creative Commons Licensed Works Online.” BoingBoing 5 Oct. 2005. 14 April 2006 http://www.boingboing.net/2005/10/05/yahoo_finds_53_milli.html>. Miller, Paul D. Rhythm Science. Cambridge, Mass.: MIT Press, 2004. Padfield, Tim. “Duration of Copyright.” The National Archives. 14 Apr. 2006 http://www.kingston.ac.uk/library/copyright/documents/DurationofCopyright FlowchartbyTimPadfieldofTheNationalArchives_002.pdf>. Wikipedia. “Collaboration.” 14 April 2006 http://en.wikipedia.org/wiki/Collaboration>. ———. “Wikipedia Statistics.” 14 April 2006 http://en.wikipedia.org/wiki/Special:Statistics>. Citation reference for this article MLA Style Charman, Suw, and Michael Holloway. "Copyright in a Collaborative Age." M/C Journal 9.2 (2006). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0605/02-charmanholloway.php>. APA Style Charman, S., and M. Holloway. (May 2006) "Copyright in a Collaborative Age," M/C Journal, 9(2). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0605/02-charmanholloway.php>.

IntroductionThe Internet (especially in the so-called Web 2.0 phase), digital media and file-sharing networks have thrust copyright law under public scrutiny, provoking discourses questioning what is fair in the digital age. Accessible hardware and software has led to prosumerism – creativity blending media consumption with media production to create new works that are freely disseminated online via popular video-sharing Web sites such as YouTube or genre specific music sites like GYBO (“Get Your Bootleg On”) amongst many others. The term “prosumer” is older than the Web, and the conceptual convergence of producer and consumer roles is certainly not new, for “at electric speeds the consumer becomes producer as the public becomes participant role player” (McLuhan 4). Similarly, Toffler’s “Third Wave” challenges “old power relationships” and promises to “heal the historic breach between producer and consumer, giving rise to the ‘prosumer’ economics” (27). Prosumption blurs the traditionally separate consumer and producer creating a new creative era of mass customisation of artefacts culled from the (copyrighted) media landscape (Tapscott 62-3). Simultaneously, corporate interests dependent upon the protections provided by copyright law lobby for augmented rights and actively defend their intellectual property through law suits, takedown notices and technological reinforcement. Despite a lack demonstrable economic harm in many cases, the propertarian approach is winning and frequently leading to absurd results (Collins).The balance between private and public interests in creative works is facilitated by the doctrine of fair use (as codified in the United States Copyright Act 1976, section 107). The majority of copyright laws contain “fair” exceptions to claims of infringement, but fair use is characterised by a flexible, open-ended approach that allows the law to flex with the times. Until recently the defence was unique to the U.S., but on 2 January Israel amended its copyright laws to include a fair use defence. (For an overview of the new Israeli fair use exception, see Efroni.) Despite its flexibility, fair use has been systematically eroded by ever encroaching copyrights. This paper argues that copyright enforcement has spun out of control and the raison d’être of the law has shifted from being “an engine of free expression” (Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985)) towards a “legal regime for intellectual property that increasingly looks like the law of real property, or more properly an idealized construct of that law, one in which courts seeks out and punish virtually any use of an intellectual property right by another” (Lemley 1032). Although the copyright landscape appears bleak, two recent cases suggest that fair use has not fallen by the wayside and may well recover. This paper situates fair use as an essential legal and cultural mechanism for optimising creative expression.A Brief History of CopyrightThe law of copyright extends back to eighteenth century England when the Statute of Anne (1710) was enacted. Whilst the length of this paper precludes an in depth analysis of the law and its export to the U.S., it is important to stress the goals of copyright. “Copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (Vaidhyanathan 11). Copyright was designed as a right limited in scope and duration to ensure that culturally important creative works were not the victims of monopolies and were free (as later mandated in the U.S. Constitution) “to promote the progress.” During the 18th century English copyright discourse Lord Camden warned against propertarian approaches lest “all our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves, as their own hackney compilers are” (Donaldson v. Becket 17 Cobbett Parliamentary History, col. 1000). Camden’s sentiments found favour in subsequent years with members of the North American judiciary reiterating that copyright was a limited right in the interests of society—the law’s primary beneficiary (see for example, Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994]). Putting the “Fair” in Fair UseIn Folsom v. Marsh 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) Justice Storey formulated the modern shape of fair use from a wealth of case law extending back to 1740 and across the Atlantic. Over the course of one hundred years the English judiciary developed a relatively cohesive set of principles governing the use of a first author’s work by a subsequent author without consent. Storey’s synthesis of these principles proved so comprehensive that later English courts would look to his decision for guidance (Scott v. Stanford L.R. 3 Eq. 718, 722 (1867)). Patry explains fair use as integral to the social utility of copyright to “encourage. . . learned men to compose and write useful books” by allowing a second author to use, under certain circumstances, a portion of a prior author’s work, where the second author would himself produce a work promoting the goals of copyright (Patry 4-5).Fair use is a safety valve on copyright law to prevent oppressive monopolies, but some scholars suggest that fair use is less a defence and more a right that subordinates copyrights. Lange and Lange Anderson argue that the doctrine is not fundamentally about copyright or a system of property, but is rather concerned with the recognition of the public domain and its preservation from the ever encroaching advances of copyright (2001). Fair use should not be understood as subordinate to the exclusive rights of copyright owners. Rather, as Lange and Lange Anderson claim, the doctrine should stand in the superior position: the complete spectrum of ownership through copyright can only be determined pursuant to a consideration of what is required by fair use (Lange and Lange Anderson 19). The language of section 107 suggests that fair use is not subordinate to the bundle of rights enjoyed by copyright ownership: “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright” (Copyright Act 1976, s.107). Fair use is not merely about the marketplace for copyright works; it is concerned with what Weinreb refers to as “a community’s established practices and understandings” (1151-2). This argument boldly suggests that judicial application of fair use has consistently erred through subordinating the doctrine to copyright and considering simply the effect of the appropriation on the market place for the original work.The emphasis on economic factors has led courts to sympathise with copyright owners leading to a propertarian or Blackstonian approach to copyright (Collins; Travis) propagating the myth that any use of copyrighted materials must be licensed. Law and media reports alike are potted with examples. For example, in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004) a Sixth Circuit Court of Appeals held that the transformative use of a three-note guitar sample infringed copyrights and that musicians must obtain licence from copyright owners for every appropriated audio fragment regardless of duration or recognisability. Similarly, in 2006 Christopher Knight self-produced a one-minute television advertisement to support his campaign to be elected to the board of education for Rockingham County, North Carolina. As a fan of Star Wars, Knight used a makeshift Death Star and lightsaber in his clip, capitalising on the imagery of the Jedi Knight opposing the oppressive regime of the Empire to protect the people. According to an interview in The Register the advertisement was well received by local audiences prompting Knight to upload it to his YouTube channel. Several months later, Knight’s clip appeared on Web Junk 2.0, a cable show broadcast by VH1, a channel owned by media conglomerate Viacom. Although his permission was not sought, Knight was pleased with the exposure, after all “how often does a local school board ad wind up on VH1?” (Metz). Uploading the segment of Web Junk 2.0 featuring the advertisement to YouTube, however, led Viacom to quickly issue a take-down notice citing copyright infringement. Knight expressed his confusion at the apparent unfairness of the situation: “Viacom says that I can’t use my clip showing my commercial, claiming copy infringement? As we say in the South, that’s ass-backwards” (Metz).The current state of copyright law is, as Patry says, “depressing”:We are well past the healthy dose stage and into the serious illness stage ... things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together.The erosion of fair use by encroaching private interests represented by copyrights has led to strong critiques leveled at the judiciary and legislators by Lessig, McLeod and Vaidhyanathan. “Free culture” proponents warn that an overly strict copyright regime unbalanced by an equally prevalent fair use doctrine is dangerous to creativity, innovation, culture and democracy. After all, “few, if any, things ... are strictly original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others” (Emerson v. Davis, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845), qted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994)). The rise of the Web 2.0 phase with its emphasis on end-user created content has led to an unrelenting wave of creativity, and much of it incorporates or “mashes up” copyright material. As Negativland observes, free appropriation is “inevitable when a population bombarded with electronic media meets the hardware [and software] that encourages them to capture it” and creatively express themselves through appropriated media forms (251). The current state of copyright and fair use is bleak, but not beyond recovery. Two recent cases suggest a resurgence of the ideology underpinning the doctrine of fair use and the role played by copyright.Let’s Go CrazyIn “Let’s Go Crazy #1” on YouTube, Holden Lenz (then eighteen months old) is caught bopping to a barely recognizable recording of Prince’s “Let’s Go Crazy” in his mother’s Pennsylvanian kitchen. The twenty-nine second long video was viewed a mere twenty-eight times by family and friends before Stephanie Lenz received an email from YouTube informing her of its compliance with a Digital Millennium Copyright Act (DMCA) take-down notice issued by Universal, copyright owners of Prince’s recording (McDonald). Lenz has since filed a counterclaim against Universal and YouTube has reinstated the video. Ironically, the media exposure surrounding Lenz’s situation has led to the video being viewed 633,560 times at the time of writing. Comments associated with the video indicate a less than reverential opinion of Prince and Universal and support the fairness of using the song. On 8 Aug. 2008 a Californian District Court denied Universal’s motion to dismiss Lenz’s counterclaim. The question at the centre of the court judgment was whether copyright owners should consider “the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court ultimately found in favour of Lenz and also reaffirmed the position of fair use in relation to copyright. Universal rested its argument on two key points. First, that copyright owners cannot be expected to consider fair use prior to issuing takedown notices because fair use is a defence, invoked after the act rather than a use authorized by the copyright owner or the law. Second, because the DMCA does not mention fair use, then there should be no requirement to consider it, or at the very least, it should not be considered until it is raised in legal defence.In rejecting both arguments the court accepted Lenz’s argument that fair use is an authorised use of copyrighted materials because the doctrine of fair use is embedded into the Copyright Act 1976. The court substantiated the point by emphasising the language of section 107. Although fair use is absent from the DMCA, the court reiterated that it is part of the Copyright Act and that “notwithstanding the provisions of sections 106 and 106A” a fair use “is not an infringement of copyright” (s.107, Copyright Act 1976). Overzealous rights holders frequently abuse the DMCA as a means to quash all use of copyrighted materials without considering fair use. This decision reaffirms that fair use “should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design” but something that it is integral to the constitution of copyright law and essential in ensuring that copyright’s goals can be fulfilled (Leval 1100). Unlicensed musical sampling has never fared well in the courtroom. Three decades of rejection and admonishment by judges culminated in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004): “Get a license or do not sample. We do not see this stifling creativity in any significant way” was the ruling on an action brought against an unlicensed use of a three-note guitar sample under section 114, an audio piracy provision. The Bridgeport decision sounded a death knell for unlicensed sampling, ensuring that only artists with sufficient capital to pay the piper could legitimately be creative with the wealth of recorded music available. The cost of licensing samples can often outweigh the creative merit of the act itself as discussed by McLeod (86) and Beaujon (25). In August 2008 the Supreme Court of New York heard EMI v. Premise Media in which EMI sought an injunction against an unlicensed fifteen second excerpt of John Lennon’s “Imagine” featured in Expelled: No Intelligence Allowed, a controversial documentary canvassing alleged chilling of intelligent design proponents in academic circles. (The family of John Lennon and EMI had previously failed to persuade a Manhattan federal court in a similar action.) The court upheld Premise Media’s arguments for fair use and rejected the Bridgeport approach on which EMI had rested its entire complaint. Justice Lowe criticised the Bridgeport court for its failure to examine the legislative intent of section 114 suggesting that courts should look to the black letter of the law rather than blindly accept propertarian arguments. This decision is of particular importance because it establishes that fair use applies to unlicensed use of sound recordings and re-establishes de minimis use.ConclusionThis paper was partly inspired by the final entry on eminent copyright scholar William Patry’s personal copyright law blog (1 Aug. 2008). A copyright lawyer for over 25 years, Patry articulated his belief that copyright law has swung too far away from its initial objectives and that balance could never be restored. The two cases presented in this paper demonstrate that fair use – and therefore balance – can be recovered in copyright. The federal Supreme Court and lower courts have stressed that copyright was intended to promote creativity and have upheld the fair doctrine, but in order for the balance to exist in copyright law, cases must come before the courts; copyright myth must be challenged. As McLeod states, “the real-world problems occur when institutions that actually have the resources to defend themselves against unwarranted or frivolous lawsuits choose to take the safe route, thus eroding fair use”(146-7). ReferencesBeaujon, Andrew. “It’s Not the Beat, It’s the Mocean.” CMJ New Music Monthly. April 1999.Collins, Steve. “Good Copy, Bad Copy: Covers, Sampling and Copyright.” M/C Journal 8.3 (2005). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0507/02-collins.php›.———. “‘Property Talk’ and the Revival of Blackstonian Copyright.” M/C Journal 9.4 (2006). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0609/5-collins.php›.Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953.Efroni, Zohar. “Israel’s Fair Use.” The Center for Internet and Society (2008). 26 Aug. 2008 ‹http://cyberlaw.stanford.edu/node/5670›.Lange, David, and Jennifer Lange Anderson. “Copyright, Fair Use and Transformative Critical Appropriation.” Conference on the Public Domain, Duke Law School. 2001. 26 Aug. 2008 ‹http://www.law.duke.edu/pd/papers/langeand.pdf›.Lemley, Mark. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031.Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001.———. Free Culture. New York: Penguin, 2004.Leval, Pierre. “Toward a Fair Use Standard.” Harvard Law Review 103 (1990): 1105.McDonald, Heather. “Holden Lenz, 18 Months, versus Prince and Universal Music Group.” About.com: Music Careers 2007. 26 Aug. 2008 ‹http://musicians.about.com/b/2007/10/27/holden-lenz-18-months-versus-prince-and-universal-music-group.htm›.McLeod, Kembrew. “How Copyright Law Changed Hip Hop: An interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002. 26 Aug. 2008 ‹http://www.stayfreemagazine.org/archives/20/public_enemy.html›.———. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday, 2005.McLuhan, Marshall, and Barrington Nevitt. Take Today: The Executive as Dropout. Ontario: Longman Canada, 1972.Metz, Cade. “Viacom Slaps YouTuber for Behaving like Viacom.” The Register 2007. 26 Aug. 2008 ‹http://www.theregister.co.uk/2007/08/30/viacom_slaps_pol/›.Negativland, ed. Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 1995.Patry, William. The Fair Use Privilege in Copyright Law. Washington DC: Bureau of National Affairs, 1985.———. “End of the Blog.” The Patry Copyright Blog. 1 Aug. 2008. 27 Aug. 2008 ‹http://williampatry.blogspot.com/2008/08/end-of-blog.html›.Tapscott, Don. The Digital Economy: Promise and Peril in the Age of Networked Intelligence. New York: McGraw Hill, 1996.Toffler, Alvin. The Third Wave. London, Glasgow, Sydney, Auckland. Toronto, Johannesburg: William Collins, 1980.Travis, Hannibal. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal, Vol. 15 (2000), No. 777.Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York; London: New York UP, 2003.

Nine Inch Nails have just released a new single; In addition to the usual formats, “The Hand That Feeds” was available for free download in Garageband format. Trent Reznor explained, “For quite some time I’ve been interested in the idea of allowing you the ability to tinker around with my tracks – to create remixes, experiment, embellish or destroy what’s there” (MacMinute 15 April 2005). Reznor invites creativity facilitated by copying and transformation. “Copy” carries connotations of unsavoury notions such as piracy, stealing, fake, and plagiarism. Conversely, in some circumstances copying is acceptable, some situations demand copying. This article examines the treatment of “copy” at the intersection of musical creativity and copyright law with regard to cover versions and sampling. Waldron reminds us that copyright was devised first and foremost with a public benefit in mind (851). This fundamental has been persistently reiterated (H. R Rep. (1909); Sen. Rep. (1909); H. R. Rep. (1988); Patterson & Lindberg 70). The law grants creators a bundle of rights in copyrighted works. Two rights implicated in recorded music are located in the composition and the recording. Many potential uses of copyrighted songs require a license. The Copyright Act 1976, s. 115 provides a compulsory licence for cover versions. In other words, any song can be covered for a statutory royalty fee. The law curtails the extent of the copyright monopoly. Compulsory licensing serves both creative and business sides of the recording industry. First, it ensures creative diversity. Musicians are free to reinterpret cultural soundtracks. Second, it safeguards the composer’s right to generate an income from his work by securing royalties for subsequent usage. Although s. 115 permits a certain degree of artistic licence, it requires “the arrangement shall not change the basic melody or fundamental character of the work”. Notwithstanding this proviso, songs can still be transformed and their meaning reshaped. Johnny Cash was able to provide an insight into the mind of a dying man through covering such songs as Nine Inch Nails’ “Hurt”, Depeche Mode’s “Personal Jesus” and Parker & Charles’ “We’ll Meet Again”. Compulsory licensing was introduced in response to a Supreme Court decision that deprived composers of royalties. Congress recognised: The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests (H. R. Rep. (1909)). Composers exercise rights over the initial exploitation of a song. Once a recording is released, the right is curtailed to serve the public dimension of copyright. A sampler is a device that allows recorded (sampled) sounds to be triggered from a MIDI keyboard or sequencer. Samplers provide potent tools for transforming sounds – filters, pitch-shifting, time-stretching and effects can warp samples beyond recognition. Sampling is a practice that formed the backbone of rap and hip-hop, features heavily in many forms of electronic music, and has proved invaluable in many studio productions (Rose 73-80; Prendergast 383-84, 415-16, 433-34). Samples implicate both of the musical copyrights mentioned earlier. To legally use a sample, the rights in the recording and the underlying composition must be licensed. Ostensibly, acquiring permission to use the composition poses few obstacles due to the compulsory licence. The sound recording, however, is a different matter entirely. There is no compulsory licence for sound recordings. Copyright owners (usually record labels) are free to demand whatever fees they see fit. For example, SST charged Fatboy Slim $1000 for sampling a Negativland record (Negativland). (Ironically, the sample was itself an unlicensed sample appropriated from a 1966 religious recording.) The price paid by The Verve for sampling an obscure orchestral version of a Rolling Stones song was more substantial. Allan Klein owns the copyright in “The Last Time” released by The Andrew Oldham Orchestra in 1965 (American Hit Network, undated). Licence negotiations for the sample left Klein with 100% of the royalties from the song and The Verve with a bitter taste. To add insult to injury, “Bittersweet Symphony” was attributed to Mick Jagger and Keith Richards when the song was nominated for a Grammy (Superswell, undated). License fees can prove prohibitive to many musicians and may outweigh the artistic merit in using the sample: “Sony wanted five thousand dollars for the Clash sample, which … is one thousand dollars a word. In retrospect, this was a bargain, given the skyrocketing costs of sampling throughout the 1990s” (McLeod 86). Adam Dorn, alias Mocean Worker, tried for nine months to licence a sample of gospel singer Mahalia Jackson. Eventually his persistent requests were met with a demand for $10,000 in advance with royalties of six cents per record. Dorn was working with an album budget of a mere $40 and was expecting to sell 2500 copies (Beaujon 25). Unregulated licensing fees stifle creativity and create a de facto monopoly over recorded music. Although copyright was designed to be an engine of free expression1 it still carries characteristics of its monopolistic, totalitarian heritage. The decision in Bridgeport Music v. Dimension Films supported this monopoly. Judge Guy ruled, “Get a license or do not sample. We do not see this stifling creativity in any significant way” (397). The lack of compulsory licensing and the Bridgeport decision creates an untenable situation for sampling musicians and adversely impacts upon the public benefit derived from creative diversity and transformative works (Netanel 288, 331). The sobering potential for lawsuits, ruinous legal costs, injunctions, damages (to copyright owners as well as master recordings), suppresses the creativity of musicians unwilling or unable to pay licence fees (Negativland 251.). I’m a big fan of David Bowie. If I wanted to release a cover version of “Survive”, Bowie and Gabrels (composers) and BMI (publishers) could not prevent it. According the Harry Fox Agency’s online licensing system, it would cost $222.50 (US) for a licence to produce 2500 copies. The compulsory licence demands fidelity to the character of the original. Although my own individual style would be embedded in the cover version, the potential for transformation is limited. Whilst trawling through results from a search for “acapella” on the Soulseek network I found an MP3 of the vocal acapella for “Survive”. Thirty minutes later Bowie was loaded into Sonar 4 and accompanied by a drum loop and bass line whilst I jammed along on guitar and tinkered with synths. Free access to music encourages creative diversity and active cultural participation. Licensing fees, however, may prohibit such creative explorations. Sampling technology offers some truly innovative possibilities for transforming recorded sound. The Roland VariOS can pitch-eliminate; a vocal sample can be reproduced to a melody played by the sampling musician. Although the original singer’s voice is preserved the melody and characteristic nuances can be significantly altered: V-Producer’s Phrase Scope [a system software component] separates the melody from the rest of the phrase, allowing users to re-construct a new melody or add harmonies graphically, or by playing in notes from a MIDI keyboard. Using Phrase Scope, you can take an existing vocal phrase or melodic instrument phrase and change the actual notes, phrasing and vocal gender without unwanted artefacts. Bowie’s original vocal could be aligned with an original melody and set to an original composition. The original would be completely transformed into a new creative work. Unfortunately, EMI is the parent company for Virgin Records, the copyright owner of “Survive”. It is doubtful licence fees could be accommodated by many inspired bedroom producers. EMI’s reaction to DJ Dangermouse’s “Grey Album“ suggests that it would not look upon unlicensed sampling with any favour. Threatening letters from lawyers representing one of the “Big Four” are enough to subjugate most small time producers. Fair use? If a musician is unable to afford a licence, it is unlikely he can afford a fair use defence. Musicians planning only a limited run, underground release may be forgiven for assuming that the “Big Four” have better things to do than trawl through bins of White Labels for unlicensed samples. Professional bootlegger Richard X found otherwise when his history of unlicensed sampling caught up to him: “A certain major label won’t let me use any samples I ask them to. We just got a report back from them saying, ‘Due to Richard’s earlier work of which we are well aware, we will not be assisting him with any future projects’” (Petridis). For record labels “copy” equals “money”. Allan Klein did very well out of licensing his newly acquired “Bittersweet Symphony” to Nike (Superswell). Inability to afford either licences or legal costs means that some innovative and novel creations will never leave the bedroom. Sampling masterpieces such as “It Takes a Nation of Millions to Hold Us Back” are no longer cost effective (McLeod). The absence of a compulsory licence for sampling permits a de facto monopoly over recorded music. Tricia Rose notes the recording industry knows the value of “copy” (90). “Copy” is permissible as long as musicians pay for the privilege – if the resultant market for the sampling song is not highly profitable labels may decline to negotiate a licence. Some parties have recognised the value of the desire to creatively engage with music. UK (dis)band(ed) Curve posted component samples of their song “Unreadable Communication” on their website and invited fans to create their own versions of the song. All submissions were listed on the website. Although the band reserved copyright, they permitted me to upload my version to my online distribution website for free download. It has been downloaded 113 times and streamed a further 112 times over the last couple of months. The remix project has a reciprocal dimension: Creative engagement strengthens the fan base. Guitarist/programmer, Dean Garcia, states “the main reason for posting the samples is for others to experiment with something they love . . . an opportunity as you say to mess around with something you otherwise would never have access to2”. Umixit is testing the market for remixable songs. Although the company has only five bands on its roster (the most notable being Aerosmith), it will be interesting to observe the development of a market for “neutered sampling” and how long it will be before the majors claim a stake. The would-be descendants of Grand Master Flash and Afrika Bambaataa may find themselves bound by end-user licences and contracts. The notion of “copy” at the nexus of creativity and copyright law is simultaneously a vehicle for free expression and a vulgar infringement on a valuable economic interest. The compulsory licence for cover versions encourages musicians to rework existing music, uncover hidden meaning, challenge the boundaries of genre, and actively participate in culture creation. Lack of affirmative congressional or judicial interference in the current sampling regime places the beneficial aspects of “copy” under an oppressive monopoly founded on copyright, an engine of free expression. References American Hit Network. “Bittersweet Symphony – The Verve.” Undated. 17 April 2005 http://www.americanhitnetwork.com/1990/fsongs.cfm?id=8&view=detail&rank=1>. Beaujon, A. “It’s Not The Beat, It’s the Mocean.’ CMJ New Music Monthly, April 1999. EMI. “EMI and Orange Announce New Music Deal.” Immediate Future: PR & Communications, 6 January 2005. 17 April 2005 http://www.immediatefuture.co.uk/359>. H. R. Rep. No. 2222. 60th Cong., 2nd Sess. 7. 1909. H. R. Rep. No. 609. 100th Cong., 2nd Sess. 23. 1988. MacMinute. “NIN Offers New Single in GarageBand Format.” 15 April 2005. 16 April 2005 http://www.macminute.com/2005/04/15/nin/>. McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002, 23 June 2004 http://www.stayfreemagazine.org/archives/20/public_enemy.html>. McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005. Negativland. “Discography.” Undated. 18 April 2005 http://www.negativland.com/negdisco.html>. Negativland (ed.). Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 2005. Netanel, N. W. “Copyright and a Democratic Civil Society.” 106 Yale L. J. 283. 1996. Patterson, L.R., and S. Lindberg. The Nature of Copyright: A Law of Users’ Rights. Georgia: U of Georgia P, 1991. Petridis, A. “Pop Will Eat Itself.” The Guardian (UK) 2003. 22 June 2004 http://www.guardian.co.uk/arts/critic/feature/0,1169,922797,00.html>. Prendergast, M. The Ambient Century: From Mahler to Moby – The Evolution of Sound in the Electronic Age. London: Bloomsbury, 2003. Rose, T. Black Noise: Rap Music and Black Culture in Contemporary America. Middletown: Wesleyan UP, 2004. Sen. Rep. No. 1108, 60th Cong., 2nd Sess. 7. 1909. Superswell. “Horror Stories.” 17 April 2005 http://www.superswell.com/samplelaw/horror.html>. Waldron, J. “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property.” 68 Chicago-Kent Law Review 842, 1998. Endnotes 1 Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985). 2 From personal correspondence with Curve dated 16 September 2004. Citation reference for this article MLA Style Collins, Steve. "Good Copy, Bad Copy: Covers, Sampling and Copyright." M/C Journal 8.3 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0507/02-collins.php>. APA Style Collins, S. (Jul. 2005) "Good Copy, Bad Copy: Covers, Sampling and Copyright," M/C Journal, 8(3). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0507/02-collins.php>.

Historically the impact of the printing press on Western culture is a truism. Print gave rise to the mass reproduction and circulation of information with wide reaching consequences in all fields: political, social, and economic. An aspect that this paper wishes to focus on is that this moment also saw the birth (and necessity) of copyright legislation, to administer and protect this new found ability to package and disseminate text. The term copyright itself, used freely in debates surrounding contemporary topics such as iTunes, DVD piracy, and file-sharing, is not only semantically anachronistic but, as will be shown, is an anachronistic problem. The history that it carries, through almost three hundred years, underscores the difficulties at the heart of copyright in the contemporary scene. Indeed the reliance on copyright in these debates creates an argument based on circular definitions relating to only the statutory conception of cultural rights. No avenue is really left to imagine a space outside its jurisdiction. This paper asserts that notions of the “culture industry” (as opposed to some other conception of culture) are also inherently connected to the some three hundred years of copyright legislation. Our conceptions of the author and of intellectual pursuits as property can also be traced within this relatively small period. As clarified by Lord Chief Baron Pollock in the English courts in 1854, “copyright is altogether an artificial right” that does not apply at common law and relies wholly on statute (Jeffreys v Boosey). Foucault (124-42) highlights, in his attack on Romantic notions of the author-genius-God, that the author-function is expressed primarily as a legal term, through the legal concepts of censorship and copyright. Copyright, then, pays little attention to non-economic interests of the author and is used primarily to further economic interests. The corporate nature of the culture industry at present amounts to the successful application of copyright legislation in the past. This paper suggests that we look at our conception of literary and artistic work as separate from copyright’s own definitions of intellectual property and the commercialisation of culture. From Hogarth to File-Sharing The case of ‘DVD Jon’ is instructive. In 1999, Jon Lech Johansen, a Norwegian programmer, drew the ire of Hollywood by breaking the encryption code for DVDs (in a program called DeCSS). More recently, he has devised a program to circumvent the anti-piracy system for Apple’s iTunes music download service. With this program, called PyMusique, users still have to pay for the songs, but once these are paid for, users can use the songs on all operating systems and with no limits on copying, transfers or burning. Johansen, who publishes his wares on his blog entitled So Sue Me, was in fact sued in 1999 by the Motion Picture Association of America (MPAA) for copyright infringement. He argued that he created DeCSS as part of developing a DVD player for his Linux operating system, and that copying DVD movies was an ancillary function of the program for which he could not be held responsible. He was acquitted by an Oslo district court in early 2003 and again by an appeals court later that year. During this time many people on the internet found novel ways to publish the DeCSS code so as to avoid prosecution, including many different code encryptions incorporated into jpeg images (including the trademarked DVD logo, owned by DVD LLC) and mpeg movies, as an online MUD game scenario, and even produced in the form of a haiku (“42 Ways to Distribute DeCSS”). The ability to publish the code in a format not readily prosecutable owes less to encryption and clandestine messages than it does to anachronistic laws regarding the wholly legal right to original formats. Prior to 1709, copyright or licensing related to the book publishing industry where the work as formatted, pressed and disseminated was more important to protect than the text itself or the concept of the author as the writer of the text. Even today different copyrights may be held over the different formatting of the same text. The ability for hackers to attack the copyright legislation through its inherent anachronism is more than smart lawyering or a neat joke. These attacks, based on file sharing and the morphing fluid forms of information (rather than contained text, printed, broadcast, or expressed through form in general), amount to a real breach in copyright’s capability to administer and protect information. That the corporations are so excited and scared of these new technologies of dissemination should come as no surprise. It should also not be seen, as some commentators wish to, as a completely new approach to the dissemination of culture. If copyright was originally intended to protect the rights of the publisher, the passing of the Act of Anne in 1709 introduced two new concepts – an author being the owner of copyright, and the principle of a fixed term of protection for published works. In 1734, William Hogarth, wanting to ensure profits would flow from his widely disseminated prints (which attracted many pirate copies), fought to have these protections extended to visual works. What is notable about all this is that in 1734 the concept of copyright both in literary and artistic works applied only to published or reproduced works. It would be over one hundred years later, in the Romantic period, that a broader protection to all artworks would be available (for example, paintings, sculpture, etc). Born primarily out of guild systems, the socio-political aspect of protection, although with a passing nod to the author, was primarily a commercial concern. These days the statute has muddied its primary purpose; commercial interest is conflated and confused with the moral rights of the author (which, it might be added, although first asserted in the International Berne Convention of 1886 were only ratified in Australia in December 2000). For instance, in a case such as Sony Entertainment (Australia) Ltd v Smith (2005), both parties in fact want the protection of copyright. On one day the DJ in question (Pee Wee Ferris) might be advertising himself through his DJ name as an appropriative, sampling artist-author, while at the same time, we might assume, wishing to protect his own rights as a recording artist. Alternatively, the authors of the various DeCSS code works want both the free flow of information which then results in a possible free flow of media content. Naturally, this does not sit well with the current lords of copyright: the corporations. The new open-source author works contrary to all copyright. Freed Slaves The model of the open source author is not without precedent. Historically, prior to copyright and the culture industry, this approach to authorship was the norm. The Roman poet Martial, known for his wit and gifts of poetry, wrote I commend to you, Quintianus, my little books – if I can call them mine when your poet recites them: if they complain of their harsh servitude, you should come forward as their champion and give your guarantees; and when he calls himself their master you should say they are mine and have been granted their freedom. If you shout this out three or four times, you will make their kidnapper (plagiario) feel ashamed of himself. Here of course the cultural producer is a landed aristocrat (a situation common to early Western poets such as Chaucer, Spencer and More). The poem, or work, exists in the economy of the gift. The author-function here is also not the same as in modern times but was based on the advantages of reputation and celebrity within the Roman court. Similarly other texts such as stories, songs and music were circulated, prior to print, in a primarily oral economy. Later, with the rise of the professional guild system in late medieval times, the patronage system did indeed pay artists, sometimes royal sums. However, this bursary was not so much for the work than for upkeep as members of the household holding a particular skill. The commercial aspect of the author as owner only became fully realised with the rise of the middle classes in the eighteenth and nineteenth century and led to the global adoption of the copyright regime as the culture industry’s sanction. Added to this, the author is now overwhelmingly a corporation, not an individual, which has expanded the utilisation of these statutes for commercial advantage to, perhaps, an unforeseen degree. To understand the file-sharing period, which we are now entering at full speed, we cannot be confused by notions found in the copyright acts; definitions based on copyright cannot adequately express a culture without commercial concerns. Perhaps the discussion needs to return to concepts that predate copyright, before the author-function (as suggested by Foucault) and before the notion of intellectual property. That we have returned to a gift economy for cultural products is easily understood in the context of file-sharing. But what of the author? Here the figure of the hacker suggests a movement towards such an archaic model where the author’s remuneration comes in the form of celebrity, or a reputation as an exciting innovator. Another model, which is perhaps more likely, is an understanding that certain material disseminated will be sold and administered under copyright for profit and that the excess will be quickly and efficiently disseminated with no profit and with no overall duration of protection. Such an amalgamated approach is exemplified by Radiohead’s Kid A album, which, although available for free downloads, was still profitable because the (anachronistic) printed version, with its cover and artwork, still sold by the millions. Perhaps cultural works, the slaves of the author-corporation, should be granted their freedom: freedom from servitude to a commercial master, freedom to be re-told rather than re-sold, with due attribution to the author the only payment. This is a Utopian idea perhaps, but no less a fantasy than the idea that the laws of copyright, born of the printing press, can evolve to match the economy today that they purport to control. When thinking about ownership and authorship today, it must be recalled that copyright itself has a history of useful fictions. References Michel Foucault; “What Is an Author?” Twentieth-Century Literary Theory. Eds. Vassilis Lambropoulos and David Neal Miller. Albany: State UP of New York, 1987. 124-42. “42 Ways to Distribute DeCSS.” 5 Jun. 2005 http://decss.zoy.org/>. Jeffreys v Boosey, 1854. Johansen, Jon Lech. So Sue Me. 5 Jun. 2005 http://www.nanocrew.net/blog/>. Citation reference for this article MLA Style Phillips, Dougal, and Oliver Watts. "Copyright, Print and Authorship in the Culture Industry." M/C Journal 8.2 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0506/06-phillipswatts.php>. APA Style Phillips, D., and O. Watts. (Jun. 2005) "Copyright, Print and Authorship in the Culture Industry," M/C Journal, 8(2). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0506/06-phillipswatts.php>.

All we hear is radio gaga, radio googoo, radio blahblah Radio, what’s new? Radio, someone still loves you Queen, “Radio Gaga” Someone still loves radio—and more people are beginning to discover its online form, Webcasting, as an alternative to terrestrial radio stations. Online radio allows listeners to swap local radio fare for more exotic programming, turning everyday PCs into world receivers, and offers a large variety of special-interest Webcasts catering to very genre-specific tastes. (Spinner.com, one of the largest commercial Webcasters, offers some 175 channels from Abstract Beats to Zydeco, for example.) For independent music labels whose content would never be played on mainstream terrestrial radio, Webcasting has become a major source of exposure. Unlike filesharing, however, Webcasts remain largely ephemeral: no permanent copy of radio content can be created on the user’s computer unless authorised by the Webcaster, or unless users specifically seek out software like Streambox VCR which circumvents such restrictions. Yet in the U.S. the year 2002 saw a protracted battle for the future of webcasting, waged between the Recording Industry Association of America (RIAA) and its royalty collection agency SoundExchange on one side, and a loose coalition of Webcasters on the other. Mirroring the sustained attack on filesharing services, the battle over Webcasting demonstrates once again the hardline position the RIAA has adopted in its dealings with new media music services. In the filesharing arena, we have seen the demise of early services such as Napster and their replacement with deliberately crippled, recording industry-run alternatives or more powerful underground services. In its approach to Webcasting, the RIAA similarly attempted to push through a solution that would have made Internet radio unaffordable to any but the major players in the industry. Its involvement in this fight provides a useful illustration of the shortcomings of the music industry’s strategy for dealing with new, Internet-based media. Casus Belli Prior to 2002, the battlelines had been drawn already. When the grandly named Digital Millennium Copyright Act (DMCA) became law in the U.S. in late October 1998, it introduced a requirement for royalties to be paid by online stations. Rates for such fees were to be determined according to a ‘willing buyer/willing seller’ model—in other words, they were expected to reflect what would be ‘standard’ fees in an established digital media market, as determined by an independent Copyright Arbitration Royalty Panel (CARP). Once set, royalties dating back to the date of passage of the DMCA were then to be paid retroactively by Webcasters. While agreements over performing rights (royalties due to the authors of copyrighted material) resulted in a requirement for Webcasters to pay an average rate of around 3% of their annual revenue, no decision had yet been made about royalties for sound recordings (due to the actual performers of a specific piece) as late as 2001, raising fears of a significant backlog of accumulated fees for at least three years suddenly burdening an industry which had yet to prove its profitability. Some Webcasters even pre-emptively began pulling the plug on their channels (see e.g. Borland). The Copyright Arbitration Royalty Panel (CARP) on Webcasting held its deliberations on a royalty fee structure during the second half of 2001, with submissions by the key parties. The RIAA demanded a payment of around 0.4¢ per song/ per listener. By contrast the Digital Media Association, on behalf of Webcasters, offered 0.14¢ per song/per hour (regardless of the number of listeners). The CARP recommendation markedly reduced the RIAA’s proposed fees, but retained the suggested per song/per listener royalty structure. Librarian of Congress James H. Billington rejected this recommendation but replaced it with a virtually identical model of 0.07¢ per song/per listener for commercial Webcasters, or about 18% of the original RIAA rate (Copyright Office). This still meant significant royalty fees for Webcasters: assuming an average of 10 songs per hour and 100 listeners per channel at any one time, Webcasters broadcasting only one channel, 24 hours a day, would have to pay around $6,100 per year (and this retroactively back to 1998), even though this small audience would be unlikely to generate any income. This fee punished stations for becoming moderately popular, as increasing average audience to 1000 would increase payable royalties to $61,000, while profit might still prove elusive. This was prohibitively expensive for smaller, start-up players, and contributed to a growing list of Webcasters switching off their streams in the belief that they had lost their fight for survival. By contrast U.S. terrestrial radio stations are exempt altogether from paying any royalties to the RIAA because their work is seen as providing a ‘promotional service’ to the music industry. Examining the RIAA Strategy and Its Motives Any negotiator worth their salt will make an opening offer aimed at maximising the eventual outcome of the negotiation, so the initial RIAA demand of 0.4¢ per song/per listener should perhaps be seen as ambitious. Nonetheless, the RIAA’s entire strategy in this conflict seemed geared more towards the terminal frustration of hopeful Webcaster aspirations. The strongest evidence to suggest that the RIAA never negotiated in good faith stems from June 2002 comments by erstwhile Broadcast.com founder Mark Cuban, who in 1999 was involved in negotiating a deal between his company (then newly acquired by Yahoo!) and the RIAA to set royalty rates for Broadcast.com streams. Cuban revealed that buyer and seller in this case were willing first and foremost to price out of the market any potential competition to Broadcast.com from smaller, start-up Webcast operators—this was the reason for choosing the per-song/per-listener fee structure over a percentage-of-revenue approach: I hated the [per-song/listener] price points and explained why they were too high. HOWEVER, … I, as Broadcast.com, didn’t want percent-of-revenue pricing. Why? Because it meant every “Tom, Dick, and Harry” webcaster could come in and undercut our pricing because we had revenue and they didn’t. … The Yahoo! deal I worked on, if it resembles the deal the CARP ruling was built on, was designed so that there would be less competition, and so that small webcasters who needed to live off of a “percentage-of-revenue” to survive, couldn’t. (qtd. in Maloney & Hanson) Therefore, the RIAA consciously presented to the CARP a pricing structure which was not representative of an agreement between willing buyer and seller, but rather an agreement designed to achieve specific objectives: to punish very small operators for becoming more popular, hence discouraging hobbyists from turning professional; make Webcasting unaffordable for independent, small to medium operations; open the market only to major players with significant revenue streams; encourage amalgamation of independent stations into larger networks, and incorporate networks into the bigger media organisations. Indeed, Levy cites the “testimony of an RIAA-backed economist who told the government fee panel [CARP] that a dramatic shakeout in Webcasting is ‘inevitable and desirable because it will bring about market consolidation’”—and ‘consolidation’ (thus excluding small business from the Webcasting market) was clearly the underlying motive of RIAA strategy during the fights of 2002. Reasons for such anti-competitive policies are speculative but the conduct suggests that it represents the interests of an oligopoly of major entertainment producers, defending their interests from independent and alternative upstarts emerging with the information age, whilst claiming to protect the entire music community from exploitation by digital media operators. For three years running music industry sales have been in decline, and “forecasts see sales sliding another six percent in 2003—a fall felt most by the big five music giants—Universal, Sony, Warner, EMI and BMG—which account for 70 percent of sales” (Warner & Marr). The transnationals have consistently attributed this decline to the impact of CD burning, filesharing and other Internet technologies for music transmission. Yet the RIAA was successful in shutting down Napster, and there are a host of other reasons for the downturn: There have been no major musical trends to emerge as major drivers of music sales since the advent of grunge in the early 1990s--“while record sales are dropping, they are also spreading into diverse genres” (Childress), Western economies have continued to skirt recession with a marked decrease in consumer spending, 15 years after the introduction of the CD medium, the initial waves of listeners replacing their vinyl records with CD re-releases and remasters (once a major source of income for labels) have subsided, CD prices remain high, even compared to DVD movie releases, and There is a growing backlash against the practices of an “industry founded on exploitation, oiled by deceit, riven with theft and fuelled by greed” (Fripp 9) and there are calls to boycott major labels altogether, and increased political scrutiny. Hence some observers have read the RIAA’s attacks on filesharing and Webcasts as the actions of an industry fighting for its own survival. Wired quotes former Billboard editor Timothy White as saying that 2003 “could determine whether the music business as we know it survives” (reported in Maloney, “Wired”), and this sentiment is echoed in other reports on the state of the music industry. Alternatively, analysts have noted “the industry released around 27,000 titles in 2001, down from a peak of 38,900 in 1999. Since year-on-year unit sales have dropped a mere 10.3 per cent, it’s clear that demand has held up extremely well: despite higher prices, consumers retain the CD buying habit” (Orlowski). Whether signs of an industry in decline or not, the RIAA’s uncompromising policies in its fight against unpoliced Internet music technologies have caused headaches amongst its own supporters. (A recent Wired article speaks of “civil war inside Sony” over such issues—see Rose.) The Time-Warner-Netscape-AOL conglomerate might find the benefits from its support of the RIAA will be negated by the new royalty fees required of Spinner.com in its new incarnation as ‘Radio@Netscape Plus’, or by the downturn in AOL Broadband’s ability to sign up customers as incentives such as access to filesharing and Web radio dry up. Postscript: Conflict Resolution in the Webcast Wars (?) Without significant policy shifts by the RIAA it has fallen to U.S. politicians to force an uneasy truce in the Webcast conflict. This intervention was prompted by dissatisfaction with the industry’s disregard for the stated aim of the Digital Millennium Copyright Act to cultivate not hinder business in new Internet technologies and the view that CARP had been tricked into accepting a flawed Yahoo!/RIAA deal as the basis for its fee structure recommendations. Following several attempts at legislation and emergency negotiations small Webcasters won a reprieve from the per song/per listener royalty structure which they had been threatened with, and will now pay a percentage of their revenue. This agreement is built on the “Small Webcaster Settlement Act,” which acknowledges that small Webcasters “have expressed their desire for a fee based on a percentage of revenue,” it rejects the CARP recommendations and the Librarian’s rulings as unsuitable for small operators, and instead requires the RIAA and small commercial Webcasters to develop their own structures in the spirit of this bill. While this solution generates division of the Webcast market into smaller and larger operators (and possibly makes the move from the first to the second group, who do pay per song/per listener royalties, all the more daunting), the new structure should be able to ensure its aim of protecting content diversity in Webcasting. That is until the industry finds a new battleground on which to engage Internet-based music technologies. Works Cited Borland, John. “Ad Disputes Tune Web Radio Out.” CNET News.com 11 April 2001. 9 Jan. 2003 <http://news.com.com/2100-1023-255673.htm...>. Childress, Donna J. “Boomers Key to Record Sales.” AARP: The Magazine Mar.-Apr. 2003. 12 Feb. 2003 <http://www.aarpmagazine.org/lifestyle/Ar...>. Copyright Office, Library of Congress, USA. “Summary of the Determination of the Librarian of Congress on Rates and Terms for Webcasting and Ephemeral Recordings.” 8 July. 2002. 9 Jan. 2003 <http://www.copyright.gov/carp/webcasting...>. Fripp, Robert. “Discipline Global Mobile: A Small, Mobile and Independent Record Company.” CD booklet. Space Groove. ProjeKct Two. Discipline Global Mobile, 1998. 9-10. Levy, Steven. “Labels to Net Radio: Die Now.” Newsweek 15 July 2002: 51. Lieberman, David. “States Settle CD Price-Fixing Case.” USA Today 1 Oct. 2002. 18 Jan. 2003 <http://www.usatoday.com/life/music/news/...>. Love, Courtney. “Courtney Love Does the Math.” Salon Magazine 14 June 2000. 18 Jan. 2003 <http://archive.salon.com/tech/feature/20...>. Maloney, Paul. “CARP, Congress, & Compromise: Radio and the Internet in 2002.” RAIN: Radio and Internet Newsletter, 6, 7, 8, and 13 Jan. 2003. 18 Jan. 2003 <http://www.kurthanson.com/archive/news/0...>, <http://www.kurthanson.com/archive/news/0...>, <http://www.kurthanson.com/archive/news/0...>, and <http://www.kurthanson.com/archive/news/0...>. ---. “Wired Examines Music Industry Woes in Four-Article Feature.” RAIN: Radio and Internet Newsletter, 15 Jan. 2003. 18 Jan. 2003 <http://www.kurthanson.com/archive/news/0...>. Maloney, Paul, and Kurt Hanson. “Cuban Says Yahoo!’s RIAA Deal Was Designed to Stifle Competition!” RAIN: Radio and Internet Newsletter, 24 June 2002. 9 Jan. 2003 <http://www.kurthanson.com/archive/news/0...>. Orlowski, Andrew. “Missing RIAA Figures Shoot Down ‘Piracy’ Canard.” The Register 16 Dec. 2002. 12 Feb. 2003 <http://www.theregister.co.uk/content/6/2...>. Rose, Frank. “The Civil War inside Sony.” Wired 11.02 (Feb. 2003). 12 Feb. 2003 <http://www.wired.com/wired/archive/11.02...>. Sidelsky, Barry. “Internet Radio Basics: Copyright Primer and Update.” RAIN: Radio and Internet Newsletter, 28/29 Oct. 2002. 9 Jan. 2003 <http://www.kurthanson.com/archive/news/1...> and <http://www.kurthanson.com/archive/news/1...>. “Small Webcaster Settlement Act.” U.S. Congress, 14 Nov. 2002. 9 Jan. 2003 <http://frwebgate.access.gpo.gov/cgi-bin/...>. Warner, Bernhard, and Merissa Marr. “Battered Record Execs Set to Face the Music.” Reuters 17 Jan. 2003. 18 Jan. 2003 <http://www.reuters.com/newsArticle.jhtml...> Links http://www.reuters.com/newsArticle.jhtml?type=musicNews&amp;amp;storyID=2065414 http://www.spinner.com/ http://www.boycott-riaa.com/ http://www.kurthanson.com/archive/news/010603/index.asp http://www.kurthanson.com/archive/news/010803/index.asp http://www.soundexchange.com/ http://www.theregister.co.uk/content/6/28588.html http://www.kurthanson.com/archive/news/062402/index.asp#story1 http://frwebgate.access.gpo.gov/cgi- in/getdoc.cgi?dbname=107_cong_bills&amp;amp;docid=f:h5469eas.txt.pdf http://www.kurthanson.com/archive/news/011303/index.asp#story2 http://www.kurthanson.com/archive/news/102802/index.asp http://www.aarpmagazine.org/lifestyle/Articles/a2003-01-08-recordsales http://www.broadcast.com/ http://www.kurthanson.com/archive/news/010703/index.asp http://www.kurthanson.com/silenced.asp http://www.usatoday.com/life/music/news/2002-09-30-cd-settlement_x.htm http://www.riaa.org/ http://www.digmedia.org/ http://www.yahoo.com/ http://www.google.com/search?q=streambox+vcr&amp;amp;ie=UTF-8&amp;amp;oe=UTF-8&amp;amp;hl=en&amp;amp;meta= http://radio.netscape.com/ http://www.kurthanson.com/archive/news/102902/index.asp http://www.wired.com/wired/archive/11.02/sony.html http://www.napster.com/ http://news.com.com/2100-1023-255673.html?legacy=cnet http://www.wired.com/ http://archive.salon.com/tech/feature/2000/06/14/love/ http://www.copyright.gov/carp/webcasting_rates_final.html Citation reference for this article Substitute your date of access for Dn Month Year etc... MLA Style Bruns, Axel. "Fight for Survival" M/C: A Journal of Media and Culture 6.1 (2003). Dn Month Year < http://www.media-culture.org.au/0302/07-fightforsurvival.php>. APA Style Bruns, A., (2003, Feb 26). Fight for Survival. M/C: A Journal of Media and Culture, 6,(1). Retrieved Month Dn, Year, from http://www.media-culture.org.au/0302/07-fightforsurvival.html

To sin by silence, when we should protest,Makes cowards out of men.— Ella Wheeler WilcoxProtest is culturally entwined in historical and juro-political realities and is a fundamental element of the exercise of individual and collective rights. As our title notes, while there are currently many ‘protests in progress’ around the world, there is also a great deal of ‘progress in protest’ in terms of what protests look like, their scale and number, how they are formed and conducted, their goals, how they can be studied, as well as the varying responses formed in relation to protest. The etymology of protest associates two important dynamics pertaining to the topic. Firstly, a protest is something that is put forward, forth, or toward the front (from the Latin pro); essentially, it is in one manner or another, made publically. Secondly, it suggests that a person or persons have beared witness (testis) and instead of remaining silent, have made a declaration or assertion (testari). In other words, someone has made public their disapproval or objection. The nine articles that comprise this issue of M/C Journal on ‘protest’ reminds us of these salient elements of protest. Each, in their own way, highlight the importance of not remaining silent when faced with an injustice or in order to promote social change. As Bill McKibben (7) outlines in his foreword to an excellent collection of protest documents, ‘voices of protest ... are often precisely what propels human civilisation forward and allows it to become unstuck’. However, not all forms of contemporary protest shares ideological or progressive aims. Here, we might consider the emergence of contentious formations such as the alt-right and antifa, what is considered ‘fake’ or ‘real’, and ongoing conflicts between notions of individual and collective rights and state sovereignty.This modest but insightful collection demonstrates the broad scope of this field of inquiry. This issue explores the intersections among social justice, identity and communications technology, as well as the convergences and divergences in the form, function and substance of protest. Through an analysis of protest’s relationship to media, the author’s highlight the possibilities of protest to effect social change. The issue begins with Lakota screenwriter and activist Floris White Bull’s (Floris Ptesáŋ Huŋká) discussion of the documentary AWAKE, a Dream from Standing Rock (2017) and the #NODAPL protest. The film, split into three parts, takes a poignant and quite personal look at the native-led peaceful resistance at the Standing Rock Sioux Reservation in North Dakota in 2016. This protest involved tens of thousands of activists from all over the world who opposed the construction of the Dakota Access Pipeline (DAPL) which was to transport fracked oil directly underneath the Missouri River and through sovereign Lakota land (see Image 1). However, the events at Standing Rock were not a single-issue protest and brought activists together over a range of interrelated issues including environmental protection, human rights, water security, community health and Native American sovereignty. The Water Protectors were also forced to contest racist and disparaging media representations. As such, Standing Rock remains a site of cultural exchange and learning. These protests are not historical, but instead, are an ongoing struggle. The film AWAKE is important as testimony to the injustices at Standing Rock. A short description of the film is first provided in order to provide some additional context to perspectives addressed in the film. From there, White Bull has been invited to respond to questions posed by the editors regarding the Standing Rock Protests and documentary films such as AWAKE. As an Indigenous person fighting for justice, White Bull reminds readers that ‘[t]he path forward is the same as it has always been – holding on to our goals, values and dignity with resilience’.Image 1: Dakota Access Pipeline Protesters, 2016. Photo credit: Indigenous Environmental Network.Cat Pausé and Sandra Grey use an example of fat shaming to investigate how media impacts body politics and determines who is enfranchised to voice public dissent. Media becomes a mechanism for policing and governing bodily norms and gendered identities. As well as outlining a brief history of feminist body activism, the authors draw on personal experience and interview material with activists to reflect on fat embodiment and politics. Also informed by intersectional approaches, their work alerts us to the diverse vectors by which injustice and oppression fall on some bodies differently as well as the diverse bodies assembled in any crowd.Greg Watson suggests that “[c]ontemporary societies are increasingly becoming sites in which it is more difficult for people to respectfully negotiate disagreements about human diversity”. Drawing on his experiences organising Human Libraries throughout Australia, Watson argues these spaces create opportunities for engaging with difference. In this sense Human Libraries can be considered sites which protest the micropublics’ “codes of civility” which produce everyday marginalisations of difference.Micropolitics and creative forms of protest are also central to Ella Cutler, Jacqueline Gothe, and Alexandra Crosby’s article. The author’s consider three design projects which seek to facilitate ethical communication with diverse communities. Drawing on Guy Julier’s tactics for activist design, each project demonstrates the value of slowing down in order to pay attention to experience. In this way, research through design offers a reflexive means for engaging social change.Research practices are also central to making visible community resistance. Anthony McCosker and Timothy Graham consider the role of social networking in urban protests through the campaign to save the iconic Melbourne music venue The Palace (see Image 2). Their article considers the value of social media data and analytics in relation to the court proceedings and trial processes. Given the centrality of social media to activist campaigns their reflections provide a timely evaluation of how data publics are constituted and their ongoing legacy.Image 2: Melbourne’s Palace Theatre before demolition. Photo Credit: Melbourne Heritage Action.For Marcelina Piotrowski pleasure is central to understanding data production and protest. She draws on a Deleuze and Guattarian framework in order to consider protests against oil pipelines in British Columbia. Importantly, through this theoretical framework of ‘data desires’, pleasure is not something owned by the individual subject but rather holds the potential to construct generative social collectivities. This is traced through three different practices: deliberation in online forums; citizen science and social media campaigns. This has important implications for understanding environmental issues and our own enfolding within them. Nadine Kozak takes a look at how Online Service Providers (OSPs) have historically used internet ‘blackouts’ in order to protest United States government regulations. Kozak points to protests against the Communications Decency Act (1996) which sought to regulate online pornographic material and the Stop Online Piracy Act (2011) which proposed increased federal government power to take action against online copyright infringement. Recently, the United States Congress recently passed the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), which hold OSPs liable for third-party content including advertising for prostitution. However, despite condemnation from the Department of Justice and trafficking victims, OSPs did not utilise blackouts as a means to protest these new measures. Kozak concludes that the decision to whether or not to utilise blackout protests is dependent on the interests of technology companies and large OSPs. It is evident that most especially since Donald Trump popularised the term, ‘fake news’ has taken a centre stage in discussions concerning media. In fact, the lines between what is fake and what is official have become blurred. Most recently, QAnon proponents have been attending Trump rallies and speeches giving further visibility to various conspiracy narratives stemming from online message boards (see Image 3). Marc Tuters, Emilija Jokubauskaitė, and Daniel Bach establishe a clear timeline of events in order to trace the origins of ‘#Pizzagate’; a 2016 conspiracy theory that falsely claimed that several U.S. restaurants and high-ranking officials of the Democratic Party were connected with human trafficking and an alleged child-sex ring. The authors investigate the affordances of 4chan to unpack how the site’s anonymity, rapid temporality and user collectivisation were instrumental in creating ‘bullshit’; a usage which the authors suggest is a “technical term for persuasive speech unconcerned with veracity”. This provides an understanding of how alt-right communities are assembled and motivated in a post-truth society. Image 3: QAnon proponents at Trump rally in Tampa, 31 July 2018. Photo credit: Kirby Wilson, Tampa Bay Times.Finally, Colin Salter analyses protests for animal rights as a lens to critique notions of national identity and belonging. Protests on whaling in the Southern Ocean (see Image 4) and live export trade from Australia continue to be highly contested political issues. Salter reflects on the ABC’s 2011 exposé into Australian live animal exports to Indonesia and the 2014 hearings at the International Court of Justice into Japanese whaling. Salter then traces the common elements between animal rights campaigns in order to demonstrate the manner in which the physical bodies of animals, their treatment, and the debate surrounding that treatment become sites for mapping cultural identity, nationhood, and sovereignty. Here, Salter suggests that such inquiry is useful for promoting broader consideration of efficacious approaches to animal advocacy and social change.Image 4: The ship Bob Barker, rammed by the Japanese whaling vessel Nishin Maru. Photo credit: Sea Shepherd Facebook Page. As indicated in the opening paragraphs, it is crucial for people committed to social justice to publically raise their voices in protest. As such, we would like to thank each of the authors for their important contributions to this issue on ‘protest’. In its own way, each contribution serves doubly as a form of protest and a means to understand the topic more clearly. There is solidarity evidenced in this issue. Taken as a whole, these articles attest to the importance of understanding protest and social change.ReferencesMcKibben, B. "Foreword." Voices of Protest: Documents of Courage and Dissent. Eds. Frank Lowenstein, Sheryl Lechner, and Erik Bruun. New York: Black Dog & Leventhal Publishers, 2007. 7-8.Wilcox, E.W. "Protest." Poems of Problems. Chicago: W.B. Conkey Company, 1914.

Abstract Streaming services now provide the dominant way in which music is distributed and consumed online. Digital rights management (DRM) lies at the heart of this trend and has evolved alongside a movement from copy-based to streaming-based consumption. This shift poses a number of new and unique issues. Music streaming services have changed the nature of the product offered, with musical content becoming de-bundled and reduced to a series of permissions covered by DRM and associated licences, leaving users trapped in a permission-based system. This may create tension with copyright law principles regarding personal ownership and exhaustion of rights in relation to secondary markets, but through analysing relevant US and European case law it can be demonstrated that there is little, if any, legal opportunity for digital secondary markets to emerge. There are also further specific consequences which may affect artists relating to musical diversity and the composition of popular music and, also, consequences regarding the changing nature of the Internet itself. In this context copyright remains centrally important, but only in establishing the initial proprietary rights that enable subsequent DRM and licence-based online exploitation, indicative of a re-establishment of record industry power that is now allied to streaming platforms.

In Massively Multiplayer Online games (MMOs) and virtual worlds, the idea of authors seems to have ‘died’ or been ‘wiped out,’ at least from the perspective of users. The concept of authorship does not receive adequate attention or recognition in MMOs and online games in particular appear to deprive authors of their rights, both legally and morally. Users of MMOs are required to consent to the deprivation of rights in both authorship and intellectual property before they can access multi-user environments. This deprives users of their rights as authors. This paper will show that currently acceptable practice is problematic and leads to a decrease of innovation. Furthermore, it will consider a fresh approach to such issues, in light of the idea of authors as producers and as a vivid force for innovation. In addition to this, consideration will be given to the idea of collective authorship. Rather than a strictly legal analysis, this paper will explore a legal and media approach to authorship in MMOs.The concept of authorship will be considered initially from three vantage points: Barthes’ death of the author, Foucault’s author as a function, and von Hippel’s concept of democratic innovation. These considerations will be developed to present our perspective that the author goes beyond the producing subject to become a function of a process of collective construction. The function of the author within an MMO follows the process the author assumes in this virtual world. Hence, the moral rights upon the creative production remain with every author, whereas the collective compilation becomes an untraceable product, which dissolves within the collective process of production itself. As such, authorship, once collective, cannot be disentangled into specific parts of the whole. Copyright and moral rights in virtual worlds and MMOs must reflect this - otherwise what is the underlying purpose of copyright? At the very least, the notion of authorship ought to be acknowledged and rights attributed to those who are responsible for the creativity. Furthermore acknowledgement of the author is necessary to signal to other potential authors to distribute their ideas to these virtual worlds and thereby share innovative ideas within the virtual worlds. The motivation to contribute ideas is linked with any form of recognition for the work. After all, these online spaces are persistent and ever developing, and this cannot happen without the user base, or as we argue, the authors.

The author in the article explores the issues of using publications available in Open Access on the digital network. The article describes the definition of the term «Open Access». This concept is based on the Budapest Open Access Initiative (2012) — this document contains one of the most widely used definitions of Open Access. The basic features of this term are established.A comparison is made between the free (fair) use of works and the use of publications available in Open Access. The difference between these concepts are established.The use of publications available in Open Access, except for works that have become public domain, may not be copyright free. Moral rights are reserved by the authors, and property rights belong to the person who acquired them in accordance with the law or the contract. These rights must be adhered when publishing and using this publication available in Open Access. The use of the term «Open» does not mean unlimited access to the works.The article explores that Open Access publishing is possible if there are not legal, financial, technical obstacles. It has been proven that overcoming these obstacles is directly or indirectly related to the need for compliance copyright law.The article explores the problematic issues of authors' payment for article publishing charge and the use of publications available in Open Access (Article processing charge) and ways solution these issues.This article gives an overview of examples of contracts where publication fees are paid not by institutional authors but by interested organizations. The article explores the different types of contracts that can be concluded when publishing works and the use of publications available in the Open Access. In particular, the agreements of the rights transfer, the public licenses for Creative Commons.Generally, the use of a published work may be permitted subject to the conditions, defined by the person, who has the exclusive right under law or contract to permission the use of the work, and may determine the conditions of access to that work. The article argues that the key issue is the compliance of copyright for works that are created, published, and made available to the public online under the Open Access. The author analyzes the others issues of application of the legislation in the sphereof copyright, gives examples from practices.

The music recording industry is suing Internet subscribers in Canada and the United States for alleged copyright infringement in unprecedented numbers. The procedure for obtaining non-party disclosure has taken on renewed significance in this context, as the industry requests disclosure of identifying and private information from Internet Service Providers (ISPs) who provide online communicators with their Internet connections. Legislative measures adopted in the U.S. expedited the disclosure process through an administrative mechanism with low threshold requirements for issuance of a subpoena against an ISP. In Canada (and after late 2004 in the U.S.), disclosure requests proceeded under federal rules of court. Comparison of the expedited administrative and the judicially interpreted rules-based processes raises important questions about the connection between procedure and substance, and procedural justice more generally. Not only are more permissive rules for disclosure often inconsistent with protecting substantive rights, such as privacy, bin they also cannot be presumed to enhance the likelihood of achieving accurate substantive legal outcomes. If non-party disclosure rules are not contextually designed and implemented to reflect the power and resource imbalance between the plaintiff music industry and the individual defendants pursued in online music sharing litigation, the public and private interest in substantive adjudication of critical questions relating to copyright law may be foreclosed for reasons wholly unrelated to substantive legal merits.

The digital age has brought authors of publications many more opportunities to gain further impact and visibility by sharing their work online through websites, pre-print servers, repositories, publishing platforms or other digital venues as well as journals. Publisher copyright policies have not always been enablers of these new practices but change is underway. Europe has also seen a surge in international, national and local Open Access (OA) policies in recent years, a significant one being Plan S with its requirements related to rights retention and open licensing. How far are publishers in supporting authors in this change? In early 2020 SPARC Europe commissioned a report to gain a better understanding of current copyright and licensing practices amongst scholarly journal publishers based in Europe and how these are presented to academic authors. The key purpose of the study was to provide evidence on how publisher policies support OA and to see whether the complexity of the copyright and self-archiving landscape amongst publishers has simplified over time. We also explored how Plan S-ready publishers were with regards to the first principle of their policy related to authors or their institutions being required to retain copyright to their publications, calling for all publications to be published under an open license, preferably CC BY, immediately and under no embargo. Research was undertaken on various levels: the 2020 study reviewed the copyright, self-archiving and open licensing policies from 10 large legacy publisher websites and then asked these publishers to verify these findings. We also analysed the policies of pure open access journals in Europe from the Directory of Open Access Journals (DOAJ). To limit the scope, Europe was taken as the focus of this research. This paper will firstly demonstrate how diversely publishers present and share information on their copyright, licensing and self-archiving policies and how challenging this can be for authors and the institutions that support them. We will also share findings on the specifics of publisher policies be they hybrid or pure OA. For example, examining how far large publishers currently allow authors to retain publishing rights for articles, to what extent they allow zero embargoes when self-archiving or how far pure OA journals use the CC BY license. This paper ends by making a number of recommendations to publishers, research funders, institutions and authors to ultimately support authors to more easily navigate this policy landscape and to be able to publish immediate OA.

Video game streaming on sites like YouTube and Twitch is now a billion-dollar industry. Top streaming personalities make tens of millions of dollars annually, as viewership of video game play continues to expand. While video game companies’ control over intellectual property embodied in video games is largely accepted, streamers’ rights in their recorded gameplay have yet to be settled. Game companies likely maintain the right to stop unauthorized streaming of gameplay, but most do not exercise that right, as streaming represents free advertising. This raises the related question of what rights streamers have against unauthorized use of their gameplay. It also raises the question, unexplored in the literature, of what rights gameplayers maintain when competitors in their online games stream their matches. We find that copyright can provide protection to streamers over the audiovisual recordings of their play, subject to contractual limitations imposed by game companies. Our analysis likewise establishes that gamers whose play is streamed by another party may qualify as joint authors of the streamed recording. This co-authorship could result in multi- millionaire streamers owing an accounting to other players appearing in their streams. The Article then explores the potential business implications associated with these findings and discusses potential strategies to protect the interests of game companies and streamers.

Western notions of authors’ Intellectual Property Rights (IPRs), as expressed within copyright law, maintain a potentially fraught relationship with a range of philosophical and theoretical positions on writing and authorship that have developed within contemporary Western thinking. For Roland Barthes, authorship is compromised, de-identified and multiplied by the very nature of writing: ‘Writing is that neutral, composite, oblique space where our subject slips away, the negative where all identity is lost, starting with the very identity of the body writing’ (142). Gilles Deleuze and Félix Guattari follow a related line of thought in A Thousand Plateaus: ‘Write, form a rhizome, increase your territory by deterritorialization, extend the line of flight to the point where it becomes an abstract machine covering the entire plane of consistency’ (11). Similarly, in Of Grammatology, Jacques Derrida suggests that ‘Writing is that forgetting of the self, that exteriorization, the contrary of the interiorizing memory’ (24). To the extent that these philosophical and theoretical positions emerge within the practices of creative writers as remixes of appropriation, homage and/or pastiche, prima facie they problematize the commercial rights of writers as outlined in law. The case of Kathy Acker often comes up in such discussions. Acker’s 1984 novel Blood and Guts in High School, for example, incorporates techniques that have attracted the charge of plagiarism as this term is commonly defined. (Peter Wollen notes this in his aptly named essay ‘Death [and Life] of the Author.’) For texts like Acker’s, the comeback against charges of plagiarism usually involves underscoring the quotient of creativity involved in the re-combination or ‘remixing’ of the parts of the original texts. (Pure repetition would, it would seem, be much harder to defend.) ‘Plagiarism’, so-called, was simply one element of Acker’s writing technique; Robert Lort nuances plagiarism as it applies to Acker as ‘pseudo-plagiarism’. According to Wollen, ‘as she always argued, it wasn’t really plagiarism because she was quite open about what she did.’ As we shall demonstrate in more detail later on, however, there is another and, we suggest, more convincing reason why Acker’s work ‘wasn’t really plagiarism.’ This relates to her conscious interest in calligraphy and to her (perhaps unconscious) appropriation of a certain strand of Chinese philosophy. All the same, within the Western context, the consistent enforcement of copyright law guarantees the rights of authors to control the distribution of their own work and thus its monetised value. The author may be ‘dead’ in writing—just the faintest trace of remixed textuality—but he/she is very much ‘alive’ as in recognised at law. The model of the author as free-standing citizen (as a defined legal entity) that copyright law employs is unlikely to be significantly eroded by the textual practices of authors who tarry artistically in the ‘de-authored territories’ mapped by figures like Barthes, Deleuze and Guattari, and Derrida. Crucially, disputes concerning copyright law and the ethics of remix are resolved, within the Western context, at the intersection of relatively autonomous creative and legal domains. In the West, it is seen that these two domains are related within the one social fabric; each nuances the other (as Acker’s example shows in the simultaneity of her legal/commercial status as an author and her artistic practice as a ‘remixer’ of the original works of other authors). Legal and writing issues co-exist even as they fray each other’s boundaries. And in Western countries there is force to the law’s operations. However, the same cannot be said of the situation with respect to copyright law in China. Chinese artists are traditionally regarded as being aloof from mundane legal and commercial matters, with the consequence that the creative and the legal domains tend to ‘miss each other’ within the fabric of Chinese society. To this extent, the efficacy of the law is muted in China when it comes into contact with circumstances of authorship, writing, originality and creativity. (In saying this though, we do not wish to fall into the trap of cultural essentialism: in this article, ‘China’ and ‘The West’ are placeholders for variant cultural tendencies—clustered, perhaps, around China and its disputed territories such as Taiwan on the one hand, and around America on the other—rather than homogeneous national/cultural blocs.) Since China opened its system to Western capitalist economic activity in the 1980s, an ongoing criticism, sourced mainly out of the West, has been that the country lacks proper respect for notions of authorship and, more directly, for authorship’s derivative: copyright law. Tellingly, it took almost ten years of fierce negotiations between elements of the capitalist lobby in China and the Legislative Bureau to make the Seventh National People’s Congress pass the first Copyright Law of the People’s Republic of China on 7 September 1990. A law is one thing though, and adherence to the law is another. Jayanthi Iyengar of Asia Times Online reports that ‘the US government estimates that piracy within China [of all types of products] costs American companies $20-24 billion a year in damages…. If one includes European and Japanese firms, the losses on account of Chinese piracy is in excess of $50 billion annually.’ In 2008, the International Federation of the Phonographic Industry (IFPI) reported that more than 99% of all music files in China are pirated. In the same year, Cara Anna wrote in The Seattle Times that, in desperation at the extent of Chinese infringement of its Intellectual Property Rights (IPRs), Microsoft has deployed an anti-piracy tactic that blacks out the screens of computers detected running a fake copy of Windows. The World Trade Organisation (WTO) has filed complaints from many countries against China over IPRs. Iyengar also reports that, under such pressure, the State Intellectual Property Office in Beijing has vowed it will continue to reinforce awareness of IPRs in order to better ensure their protection. Still, from the Western perspective at least, progress on this extremely contentious issue has been excruciatingly slow. Such a situation in respect of Chinese IPRs, however, should not lead to the conclusion that China simply needs to catch up with the more ‘morally advanced’ West. Rather, the problematic relations of the law and of creativity in China allow one to discern, and to trace through ancient Chinese history and philosophy, a different approach to remix that does not come into view so easily within Western countries. Different materialisms of writing and authorship come into play across global space, with different effects. The resistance to both the introduction and the policing of copyright law in China is, we think, the sign of a culture that retains something related to authorship and creativity that Western culture only loosely holds onto. It provides a different way of looking at remix, in the guise of what the West would tend to label plagiarism, as a practice, especially, of creativity. The ‘death’ of the author in China at law (the failure to legislate and/or police his/her rights) brings the author, as we will argue, ‘alive’ in the writing. Remix as anonymous composition (citing Barthes) becomes, in the Chinese example, remix as creative expression of singular feelings—albeit remix set adrift from the law. More concretely, our example of the Chinese writer/writing takes remix to its limit as a practice of repetition without variation—what the West would be likely to call plagiarism. Calligraphy is key to this. Of course, calligraphy is not the full extent of Chinese writing practice—not all writing is calligraphic strictly speaking. But all calligraphy is writing, and in this it influences the ethics of Chinese writing, whether character-based or otherwise, more generally. We will have more to say about the ‘pictorial’ material aspect of Chinese writing later on. In traditional Chinese culture, writing is regarded as a technical practice perfected through reproduction. Chinese calligraphy (visual writing) is learnt through exhaustively tracing and copying the style of the master calligrapher. We are tempted to say that what is at stake in Chinese remix/calligraphy is ‘the difference that cannot be helped:’ that is, the more one tries, as it were, to repeat, the more repetition becomes impossible. In part, this is explained by the interplay of Qing 情 (‘feelings’) and Yun 韵 (‘composed body movements’). Now, the order of the characters—Qing 情 (‘feelings’) before Yun 韵 (‘composed body movements’)—suggests that Qing creates and supports Yun. To this extent, what we have here is something akin to a Western understanding of creative writing (of the creativity of writing) in which individual and singular feelings are given expression in the very movement of the writing itself (through the bodily actions of the writer). In fact though, the Chinese case is more complicated than this, for the apprenticeship model of Chinese calligraphy cultivates a two-way interplay of Qing 情 (‘feelings’) and Yun 韵 (‘composed body movements’). More directly, the ‘composed body movements’ that one learns from the master calligrapher help compose one’s own ‘feelings’. The very repetition of the master’s work (its remixing, as it were…) enables the creativity of the apprentice. If this model of creativity is found somewhat distasteful from a Western perspective (that is, if it is seen to be too restrictive of originality) then that is because such a view, we think, depends upon a cultural misunderstanding that we will try to clear up here. To wit, the so-called Confucian model of rote learning that is more-or-less frowned upon in the West is not, at least not in the debased form that it adopts in Western stereotypes, the philosophy active in the case of Chinese calligraphy. That philosophy is Taoism. As Wing-Tsit Chan elucidates, ‘by opposing Confucian conformity with non-conformity and Confucian worldliness with a transcendental spirit, Taoism is a severe critic of Confucianism’ (136). As we will show in a moment, Chinese calligraphy exemplifies this special kind of Taoist non-conformity (in which, as Philip J. Ivanhoe limns it, ‘one must unweave the social fabric’). Chan again: ‘As the way of life, [Taoism] denotes simplicity, spontaneity, tranquility, weakness, and most important of all, non-action (wu-wei). By the latter is not meant literally “inactivity” but rather “taking no action that is contrary to Nature”—in other words, letting Nature take its own course’ (136). Thus, this is a philosophy of ‘weakness’ that is neither ‘negativism’ nor ‘absolute quietism’ (137). Taoism’s supposed weakness is rather a certain form of strength, of (in the fullest sense) creative possibilities, which comes about through deference to the way of Nature. ‘Hold fast to the great form (Tao), / And all the world will come’ illustrates this aspect of Taoism in its major philosophical tract, The Lao Tzu (Tao-Te Ching) or The Classic of the Way and its Virtue (section 35, Chan 157). The guiding principle is one of deference to the original (way, Nature or Tao) as a strategy of an expression (of self) that goes beyond the original. The Lao Tzu is full of cryptic, metaphoric expressions of this idea: ‘The pursuit of learning is to increase day after day. / The pursuit of Tao is to decrease day after day. / It is to decrease and further decrease until one reaches the point of taking no action. / No action is undertaken, and yet nothing is left undone’ (section 48, Chan 162). Similarly, The female always overcomes the male by tranquility, / And by tranquility she is underneath. / A big state can take over a small state if it places itself below the small state; / And the small state can take over a big state if it places itself below the big state. / Thus some, by placing themselves below, take over (others), / And some, by being (naturally) low, take over (other states) (section 61, Chan 168). In Taoism, it is only by (apparent) weakness and (apparent) in-action that ‘nothing is left undone’ and ‘states’ are taken over. The two-way interplay of Qing 情 (‘feelings’) and Yun 韵 (‘composed body movements’), whereby the apprentice copies the master, aligns with this key element of Taoism. Here is the linkage between calligraphy and Taoism. The master’s work is Tao, Nature or the way: ‘Hold fast to the great form (Tao), / And all the world will come’ (section 35, Chan 157). The apprentice’s calligraphy is ‘all the world’ (‘all the world’ being, ultimately in this context, Qing 情 [‘feelings’]). Indeed, Taoism itself is a subtle philosophy of learning (of apprenticeship to a master), unlike Confucianism, which Chan characterises as a doctrine of ‘social order’ (of servitude to a master) (136). ‘“Learn not learn”’ is how Wang Pi, as quoted by Chan (note 121, 170), understands what he himself (Chan) translates as ‘He learns to be unlearned’ (section 64, 170). In unlearning one learns what cannot be taught: this is, we suggest, a remarkable definition of creativity, which also avoids falling into the trap of asserting a one-to-one equivalence between (unlearnt) originality and creativity, for there is both learning and creativity in this Taoist paradox of pedagogy. On this, Michael Meehan points out that ‘originality is an over-rated and misguided concept in many ways.’ (There is even a sense in which, through its deliberate repetition, The Lao Tzu teaches itself, traces over itself in ‘self-plagiarising’ fashion, as if it were reflecting on the re-tracings of calligraphic pedagogy. Chan notes just how deliberate this is: ‘Since in ancient times books consisted of bamboo or wooden slabs containing some twenty characters each, it was not easy for these sentences… to be added by mistake…. Repetitions are found in more than one place’ [note 102, 166].) Thinking of Kathy Acker too as a learner, Peter Wollen’s observation that she ‘incorporated calligraphy… in her books’ and ‘was deeply committed to [the] avant-garde tradition, a tradition which was much stronger in the visual arts’ creates a highly suggestive connection between Acker’s work and Taoism. The Taoist model for learning calligraphy as, precisely, visual art—in which copying subtends creativity—serves to shift Acker away from a Barthesian or Derridean framework and into a Taoist context in which adherence to another’s form (as ‘un-learnt learning’) creatively unravels so-called plagiarism from the inside. Acker’s conscious interest in calligraphy is shown by its prevalence in Blood and Guts in High School. Edward S. Robinson identifies this text as part of her ‘middle phase’, which ‘saw the introduction of illustrations and diagrams to create multimedia texts with a collage-like feel’ (154). To our knowledge, Acker never critically reflected upon her own calligraphic practices; perhaps if she had, she would have troubled what we see as a blindspot in critics’ interpretations of her work. To wit, whenever calligraphy is mentioned in criticism on Acker, it tends to be deployed merely as an example of her cut-up technique and never analysed for its effects in its own cultural, philosophical and material specificity. (Interestingly, if the words of Chinese photographer Liu Zheng are any guide, the Taoism we’re identifying in calligraphy has also worked its way into other forms of Chinese visual art: she refers to ‘loving photographic details and cameras’ with the very Taoist term, ‘lowly’ 低级 [Three Shadows Photography Art Centre 187].) Being ‘lowly’, ‘feminine’ or ‘underneath’ has power as a radical way of learning. We mentioned above that Taoism is very metaphoric. As the co-writer of this paper Cher Coad recalls from her calligraphy classes, students in China grow up with a metaphoric proverb clearly inspired by Lao Tzu’s Taoist philosophy of learning: ‘Learning shall never stop. Black comes from blue, but is more than the blue.’ ‘Black comes from blue, but is more than the blue.’ What could this mean? Before answering this question with recourse to two Western notions that, we hope, will further effect (building on Acker’s example) a rapprochement between Chinese and Western ways of thinking (be they nationally based or not), we reiterate that the infringement of Intellectual Property Rights (IPRs) in China should not be viewed only as an egregious denial of universally accepted law. Rather, whatever else it may be, we see it as the shadow in the commercial realm—mixed through with all the complexities of Chinese tradition, history and cultural difference, and most particularly of the Taoist strand within Confucianism—of the never-quite-perfect copying of calligraphic writing/remixing. More generally, the re-examination of stereotypical assumptions about Chinese culture cues a re-examination of the meaning behind the copying of products and technology in contemporary, industrialised China. So, ‘Black comes from blue, but is more than the blue.’ What is this ‘more than the blue of black’? Or put differently, why is calligraphic writing, as learnt from the master, always infused with the singular feelings of the (apprentice) writer? The work of Deleuze, Guattari and Claire Parnet provides two possible responses. In On the Line, Deleuze and Guattari (and Deleuze in co-authorship with Parnet) author a number of comments that support the conception we are attempting to develop concerning the lines of Chinese calligraphy. A line, Deleuze and Guattari suggest, is always a line of lines (‘Line of chance, line of hips, line of flight’ [57]). In the section of On the Line entitled ‘Politics’, Deleuze and Parnet outline the impossibility of any line being just one line. If life is a line (as it is said, you throw someone a life line), then ‘We have as many entangled lines in our lives as there are in the palm of a hand’ (71). Of any (hypothetical) single line it can be said that other lines emerge: ‘Black comes from blue, but is more than the blue.’ The feelings of the apprentice calligrapher (his/her multiple lines) emerge through the repeated copying of the lines and composed body movements of the master. The Deleuzean notion of repetition takes this idea further. Repetitive Chinese calligraphy clearly indexes what Claire Colebrook refers to as ‘Deleuze’s concept of eternal return. The only thing that is repeated or returns is difference; no two moments of life can be the same. By virtue of the flow of time, any repeated event is necessarily different (even if different only to the extent that it has a predecessor)’ (121). Now, it might be objected that Chinese calligraphic practices, because of the substantially ideographic nature of Chinese writing (see Kristeva 72-81), allow for material mutations that can find no purchase in Western, alphabetical systems of writing. But the materiality of time that Colebrook refers to as part of her engagement with Deleuzean non-repetitious (untimely) repetition guarantees the materiality of all modes of writing. Furthermore, Julia Kristeva notes that, with any form of language, one cannot leave ‘the realm of materialism’ (6) and Adrian Miles, in his article ‘Virtual Actual: Hypertext as Material Writing,’ sees the apparently very ‘unmaterial’ writing of hypertext ‘as an embodied activity that has its own particular affordances and possibilities—its own constraints and local actualisations’ (1-2). Calligraphic repetition of the master’s model creates the apprentice’s feelings as (inevitable) difference. In this then, the learning by the Chinese apprentice of the lines of the master’s calligraphy challenges international (both Western and non-Western) artists of writing to ‘remix remix’ as a matter—as a materialisation—of the line. Not the line as a self-identical entity of writing that only goes to make up writing more generally; rather, lines as a materialisation of lines within lines within lines. More self-reflexively, even the collaborative enterprise of this article, co-authored as it is by a woman of Chinese ethnicity and a white Australian man, suggests a remixing of writing through, beneath and over each other’s lines. Yun 韵 (‘composed body movements’) expresses and maximises Qing 情 (‘feelings’). Taoist ‘un-learnt learning’ generates remix as the singular creativity of the writer. Writers get into a blue with the line—paint it, black. Of course, these ideas won’t and shouldn’t make copyright infringement (or associated legalities) redundant notions. But in exposing the cultural relativisms often buried within the deployment of this and related terms, the idea of lines of lines far exceeds a merely formalistic practice (one cut off from the materialities of culture) and rather suggests a mode of non-repetitious repetition in contact with all of the elements of culture (of history, of society, of politics, of bodies…) wherever these may be found, and whatever their state of becoming. In this way, remix re-creates the depths of culture even as it stirs up its surfaces of writing. References Acker, Kathy. Blood and Guts in High School: A Novel. New York: Grove Press, 1978. Anna, Cara. ‘Microsoft Anti-Piracy Technology Upsets Users in China.’ The Seattle Times. 28 Oct. 2008 ‹http://seattletimes.com/html/businesstechnology/2008321919_webmsftchina28.html›. Barthes, Roland. ‘The Death of the Author.’ Barthes, Roland. Image-Music-Text. London: Fontana Press, 1977. 142-148. Chan, Wing-Tsit. A Source Book in Chinese Philosophy. Princeton, New Jersey: Princeton University Press, 1969. Colebrook, Claire. Gilles Deleuze. London: Routledge, 2002. Deleuze, Gilles, and Félix Guattari. On the Line. New York: Semiotext(e), 1983. Deleuze, Gilles, and Félix Guattari. A Thousand Plateaus: Capitalism and Schizophrenia. Minneapolis: University of Minnesota Press, 1987. Derrida, Jacques. Of Grammatology. Baltimore: Johns Hopkins University Press, 1976. International Federation of the Phonographic Industry. ‘Recording Industry Steps Up Campaign against Internet Piracy in China.’ ifpi. 4 Feb. 2008 ‹http://www.ifpi.org/content/section_news/20080204.html›. Ivanhoe, Philip J. ‘Taoism’. The Cambridge Dictionary of Philosophy. Ed. Robert Audi. Cambridge: Cambridge University Press, 1995. 787. Iyengar, Jayanthi. ‘Intellectual Property Piracy Rocks China Boat.’ Asia Times Online. 16 Sept. 2004 ‹http://www.atimes.com/atimes/China/FI16Ad07.html›. Kristeva, Julia. Language: The Unknown: An Initiation into Linguistics. New York: Columbia University Press, 1989. Lort, Robert. ‘Kathy Acker (1944-1997).’ Jahsonic: A Vocabulary of Culture. 2003 ‹http://www.jahsonic.com/KathyAcker.html›. Meehan, Michael. ‘Week 5a: Playing with Genres.’ Lecture notes. Unit ALL705. Short Stories: Writers and Readers. Trimester 2. Melbourne: Deakin University, 2013. Miles, Adrian. ‘Virtual Actual: Hypertext as Material Writing.’ Studies in Material Thinking 1.2 (April 2008) ‹http://www.materialthinking.org/papers/29›. Robinson, Edward S. Shift Linguals: Cut-up Narratives from William S. Burroughs to the Present. New York: Editions Rodopi, 2011. Three Shadows Photography Art Centre. ‘Photography and Intimate Space Symposium.’ Conversations: Three Shadows Photography Art Centre’s 2007 Symposium Series. Ed. RongRong, inri, et al. Beijing: Three Shadows Press Limited, 2008. 179-191. Wollen, Peter. ‘Death (and Life) of the Author.’ London Review of Books 20.3 (5 Feb. 1998). ‹http://www.lrb.co.uk/v20/n03/peter-wollen/death-and-life-of-the-author›.

This paper is included in the First Monday Special Issue: Music and the Internet, published in July 2005. Special Issue editor David Beer asked authors to submit additional comments regarding their articles. This article complements two works that I wrote around the same time—in Popular Music and Society ("E-commerce Business Models for the Music Industry", volume 27, number 2), and—along with Bruce Wrenn—in the International Journal on Media Management ("A Broadcasting Model for the Music Industry", volume 3, number 2). Technological, social and legal changes have continued to shape the development of business models in the music industry. Notably, Apple Computer’s iTunes service has been extremely successful with over 250 millions songs being downloaded and paid for. Today, some iPOD players are capable of storing 75,000 songs. Other major developments include the development of a download service (at 88 cents per song) by Wal-Mart, the world’s largest company. And, Napster has been re-invented as a subscription site. Alternative approaches to copyright have been developed, most notably by the Creative Commons project. I believe that the most interesting technological challenges today revolve around how technology can be used to help us decide—or decide for us)—what to listen to. Research on music information retrieval systems will no doubt lead to developments that make the way we access music today seem cumbersome. Considerable attention has been given to the legal implications arising from the distribution of music in a digital format via the Internet. However, less attention has been paid to the technological and social drivers of change in the music industry. This paper attempts to demonstrate the significant impact that social and technological forces have on the music industry, especially regarding lowering barriers to entry.

‘Mashup’ is a form of music that, in its use of samples from existing popular music recordings, has often been seen as an exemplar of the participatory cultural environment that many expected the internet to foster. It is a musical form that remains widely produced and consumed today. However, the contemporary internet is a complex environment for media distribution, with dominant platforms making use of a wide range of automatic and algorithmic regulatory tools in order to police, monitor, and remove unwelcome content – including that which is seen, rightly or wrongly, as copyright infringing. Drawing on recent empirical research on and with mashup producers – including 30 semi-structured interviews and an extensive survey (n=92) – this article explores the impact of platform regulation on mashup music today. It concludes that current regulation has significant stifling effects on this kind of remix creativity, including a substantial impact on where mashup producers distribute their music, on the aesthetics of their music, and – most pertinently – on their overall motivation to create. Having outlined these key findings, we argue that the ‘shutdown’ status of mashup producers raises profound questions concerning the balance between regulating online content in terms of protecting the artists’ rights, and cultivating participation and culturally valuable artistic expression. As such, this paper offers a timely contribution to scholarship on the complex relationship between popular music and new media in its critical exploration of internet’s detection algorithms and their implications for mashup music and cultural participation more generally.

Proponents of the free culture movement argue that contemporary, “over-zealous” copyright laws have an adverse affect on the freedoms of consumers and creators to make use of copyrighted materials. Lessig, McLeod, Vaidhyanathan, Demers, and Coombe, to name but a few, detail instances where creativity and consumer use have been hindered by copyright laws. The “intellectual land-grab” (Boyle, “Politics” 94), instigated by the increasing value of intangibles in the information age, has forced copyright owners to seek maximal protection for copyrighted materials. A propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property, yet copyright is not a property right, because “the copyright owner … holds no ordinary chattel” (Dowling v. United States 473 US 207, 216 [1985]). A fundamental difference resides in the exclusivity of use: “If you eat my apple, then I cannot” but “if you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous” (Lessig, Code 131). It is, as James Boyle notes, “different” to real property (Shamans 174). Vaidhyanathan observes, “copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (11). This paper explores the ways in which “property talk” has infiltrated copyright discourse and endangered the utility of the law in fostering free and diverse forms of creative expression. The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences. There is a wealth of decisions throughout American and English case law that sustain Vaidhyanathan’s argument (see for example, Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953; Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994].). As Lemley states, however, “Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems” (1-2). Although section 106 of the Copyright Act 1976 grants exclusive rights, sections 107 to 112 provide freedoms beyond the control of the copyright owner, undermining the exclusivity of s.106. Australian law similarly grants exceptions to the exclusive rights granted in section 31. Exclusivity was a principal objective of the eighteenth century Stationers’ argument for a literary property right. Sir William Blackstone, largely responsible for many Anglo-American concepts concerning the construction of property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe” (2). On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” (405-6). Blackstonian copyright advanced an exclusive and perpetual property right. Blackstone’s interpretation of Lockean property theory argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. (Tonson v. Collins [1760] 96 ER 189.) According to Locke, every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (287-8) Blackstone’s inventive interpretation of Locke “analogised ideas, thoughts, and opinions with tangible objects to which title may be taken by occupancy under English common law” (Travis 783). Locke’s labour theory, however, is not easily applied to intangibles because occupancy or use is non-rivalrous. The appropriate extent of an author’s proprietary right in a work led Locke himself to a philosophical impasse (Bowrey 324). Although Blackstonian copyright was suppressed by the House of Lords in the eighteenth century (Donaldson v. Becket [1774] 17 Cobbett Parliamentary History, col. 953) and by the Supreme Court sixty years later (Wheaton v. Peters 33 US 591 [1834]), it has never wholly vacated copyright discourse. “Property talk” is undesirable in copyright discourse because it implicates totalitarian notions such as exclusion and inalienable private rights of ownership with no room for freedom of creativity or to use copyrighted materials for non-piracy related purposes. The notion that intellectual property is a species of property akin with real property is circulated by media companies seeking greater control over copyrighted materials, but the extent to which “property talk” has been adopted by the courts and scholars is troubling. Lemley (3-5) and Bell speculate whether the term “intellectual property” carries any responsibility for the propertisation of intangibles. A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly. Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. James Brown argues sampling from his records is tantamount to theft: “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?” (Miller 1). Equating unauthorised copying with theft seeks to socially demonise activities occurring outside of the permission culture currently being fostered by inventive interpretations of the law. Increasing propagation of copyright as the personal property of the creator and/or copyright owner is instrumental in efforts to secure further legislative or judicial protection: Since 1909, courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists. All along, the author was deployed as a straw man in the debate. The unrewarded authorial genius was used as a rhetorical distraction that appealed to the American romantic individualism. (Vaidhyanathan 11) The “unrewarded authorial genius” was certainly tactically deployed in the eighteenth century in order to generate sympathy in pleas for further protection (Feather 71). Supporting the RIAA, artists including Britney Spears ask “Would you go into a CD store and steal a CD? It’s the same thing – people going into the computers and logging on and stealing our music”. The presence of a notable celebrity claiming file-sharing is equivalent to stealing their personal property is a more publicly acceptable spin on the major labels’ attempts to maintain a monopoly over music distribution. In 1997, Congress enacted the No Electronic Theft Act which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. The use of “theft” in the title clearly aligns the statute with a propertarian portrayal of intangibles. Most movie fans will have witnessed anti-piracy propaganda in the cinema and on DVDs. Analogies between stealing a bag and downloading movies blur fundamental distinctions in the rivalrous/non-rivalrous nature of tangibles and intangibles (Lessig Code, 131). Of critical significance is the infiltration of “property talk” into the courtrooms. In 1990 Judge Frank Easterbrook wrote: Patents give a right to exclude, just as the law of trespass does with real property … Old rhetoric about intellectual property equating to monopoly seemed to have vanished, replaced by a recognition that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property … Except in the rarest case, we should treat intellectual and physical property identically in the law – which is where the broader currents are taking us. (109, 112, 118) Although Easterbrook refers to patents, his endorsement of “property talk” is cause for concern given the similarity with which patents and copyrights have been historically treated (Ou 41). In Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment “Thou shalt not steal”. Similarly, in Jarvis v. A&M Records the court stated “there can be no more brazen stealing of music than digital sampling”. This move towards a propertarian approach is misguided. It runs contrary to the utilitarian principles underpinning copyright ideology and marginalises freedoms protected by the fair use doctrine, hence Justice Blackman’s warning that “interference with copyright does not easily equate with” interference with real property (Dowling v. United States 473 US 207, 216 [1985]). The framing of copyright in terms of real property privileges private monopoly over, and to the detriment of, the public interest in free and diverse creativity as well as freedoms of personal use. It is paramount that when dealing with copyright cases, the courts remain aware that their decisions involve not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression – in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture. (Eldred v. Ashcroft 537 US 186 [2003] [J. Breyer dissenting]). Copyright is the prize in a contest of property vs. policy. As Justice Blackman observed, an infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. (Dowling v. United States 473 US 207, 217-218 [1985]). Copyright policy places a great deal of control and cultural determinism in the hands of the creative industries. Without balance, oppressive monopolies form on the back of rights granted for the welfare of society in general. If a society wants to be independent and rich in diverse forms of cultural production and free expression, then the courts cannot continue to apply the law from within a propertarian paradigm. The question of whether culture should be determined by control or freedom in the interests of a free society is one that rapidly requires close attention – “it’s no longer a philosophical question but a practical one”. References Bayat, Asef. “Un-Civil Society: The Politics of the ‘Informal People.’” Third World Quarterly 18.1 (1997): 53-72. Bell, T. W. “Author’s Welfare: Copyright as a Statutory Mechanism for Redistributing Rights.” Brooklyn Law Review 69 (2003): 229. Blackstone, W. Commentaries on the Laws of England: Volume II. New York: Garland Publishing, 1978. (Reprint of 1783 edition.) Boyle, J. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard UP, 1996. Boyle, J. “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87. Bowrey, K. “Who’s Writing Copyright’s History?” European Intellectual Property Review 18.6 (1996): 322. Cohen, J. “Overcoming Property: Does Copyright Trump Privacy?” University of Illinois Journal of Law, Technology & Policy 375 (2002). Collins, S. “Good Copy, Bad Copy.” (2005) M/C Journal 8.3 (2006). http://journal.media-culture.org.au/0507/02-collins.php>. Coombe, R. The Cultural Life of Intellectual Properties. Durham: Duke University Press, 1998. Demers, J. Steal This Music. Athens, Georgia: U of Georgia P, 2006. Easterbrook, F. H. “Intellectual Property Is Still Property.” (1990) Harvard Journal of Law & Public Policy 13 (1990): 108. Feather, J. Publishing, Piracy and Politics: An Historical Study of Copyright in Britain. London: Mansell, 1994. Lemley, M. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031. Lessig, L. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. Lessing, L. The Future of Ideas. New York: Random House, 2001. Lessig, L. Free Culture. New York: The Penguin Press, 2004. Locke, J. Two Treatises of Government. Ed. Peter Laslett. Cambridge, New York, Melbourne: Cambridge University Press, 1988. McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free (2002). 14 June 2006 http://www.stayfreemagazine.org/archives/20/public_enemy.html>. McLeod, K. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28 (2005): 79. McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005. Miller, M.W. “Creativity Furor: High-Tech Alteration of Sights and Sounds Divides the Art World.” Wall Street Journal (1987): 1. Ou, T. “From Wheaton v. Peters to Eldred v. Reno: An Originalist Interpretation of the Copyright Clause.” Berkman Center for Internet & Society (2000). 14 June 2006 http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cyber/OuEldred.pdf>. Samuelson, P. “Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Direction in Intellectual Property Law?” Catholic University Law Review 38 (1989): 365. Travis, H. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal 15 (2000): 777. Vaidhyanathan, S. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Citation reference for this article MLA Style Collins, Steve. "‘Property Talk’ and the Revival of Blackstonian Copyright." M/C Journal 9.4 (2006). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0609/5-collins.php>. APA Style Collins, S. (Sep. 2006) "‘Property Talk’ and the Revival of Blackstonian Copyright," M/C Journal, 9(4). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0609/5-collins.php>.

This paper is included in the First Monday Special Issue: Music and the Internet, published in July 2005. Special Issue editor David Beer asked authors to submit additional comments regarding their articles. When we were asked to specify the licensing terms for publishing our article, the issue of gifting suddenly seemed personal: as authors of a research paper on gifting, we had to ask ourselves and each other some hard questions about gifting our own work. In an earlier day, the issues were somewhat simpler. Copyright was not automatically bestowed on all published works, the term of copyright wasn't a moving target, and the results of publicly-funded research were typically assumed to belong to the public. Although we have decided to explicitly gift our paper into the public domain, we each initially had different responses to the licensing question -- and the ensuing discussions revealed a number of different assumptions, beliefs, hopes and expectations. In this sense, it probably parallels many of the current debates worldwide about the relationship between public interest and copyright, trademarks, and patents. Hopefully, the larger debates can occur with due public oversight, representation, and accountability. In this sense, the debates and their consequences are personal for all of us. File–sharing has become very popular in recent years, but for many this has become synonymous with file–getting. However, there is strong evidence to suggest that people have strong giving (or gifting) needs. This evidence suggests an opportunity for the development of gifting technologies — and it also suggests an important research question and challenge: what needs and concerns do gifters have and what technologies can be developed to help them? In this paper, we discuss the existing literature on gifting, report on an initial study of gifting in an online sharing community, and suggest some ways the study results can inform future research into gifting desires — as well as the design of specific gifting technologies.

This paper is included in the First Monday Special Issue: Music and the Internet, published in July 2005. Special Issue editor David Beer asked authors to submit additional comments regarding their articles. I write this introduction on March 29, 2005 , the day that Internet file-sharing finally made it to the U.S. Supreme Court in MGM v. Grokster – for a full overview of the case see the EFF website, www.eff.org/IP/P2P/MGM_v_Grokster/ . It is a moment long-anticipated by the content industries and the resistive coalition of “copyfighters” – high noon in the nation’s highest legal institution. From this vantage point it would be premature to speculate on the case’s likely long-term impacts on the music industry – on and off-line – and technological innovation. What is certain is that more people are participants in the musical world than at any time in history, and a Supreme Court decision cannot arrest that tide. The mash-up aesthetic has spread since the Grey Album cast it into the public consciousness, from dedicated national radio shows to the 47th GRAMMY awards, which opened with an attempted live mash-up of six acts. Cease and desist letters remain a genuine threat to remix DJs and websites even as the scene’s emerging stars are courted by major labels. Meanwhile, Downhill Battle continues to develop creative and attention-grabbing activist projects centered on copyright and fair use issues. The lifespan of the mash-up genre cannot be predicted, but the combustible mixture of music and politics is perennial. In 2003, a little–known DJ by the name of Danger Mouse created a "mash–up" album that remixed the music of the Beatles’ White Album and hiphop star Jay–Z’s Black Album to produce a new record called The Grey Album. The swift and draconian legal reaction to the online dissemination of this technically illegal but culturally fascinating artifact gave rise to a "day of digital civil disobedience," organized by music activism group Downhill Battle. Grey Tuesday, as the day of action was known, marks a potentially new site for a blend of online political and cultural activism in the highly charged realm of intellectual property expansionism. This paper examines emergent examples of musical and Internet activism including a detailed look at Grey Tuesday itself; considers the cultural significance of the mash–up genre and the value of the musical "amateur;" and concludes with a brief consideration of "semiotic democracy" and the new mix — or, if you will, mash–up — of culture and politics that has emerged as a consequence of the rise of digital networks.

In the past decade, the educational scenario world over has significantly been impacted by open access and open education movements. The philosophy of openness and sharing forms the cornerstone of the open education movement. The distance education approaches, together with open educational resources (OER) and massive open online courses (MOOCs), are being used to serve the increasing educational needs of diverse communities. However, adoption of openness as a core value and as part of the institutional strategy still remains a challenge for academic institutions in general, and distance education institutions in particular, in developing countries like India. In this research study, the authors report an analysis of the perception of the faculty of the Indira Gandhi National Open University of India (IGNOU) about openness and their attitude towards sharing of resources in academic institutions. Data was collected through a structured questionnaire administered to the teachers and academics of IGNOU (N=69). The results indicated that: the faculty members valued sharing of resources in academic institutions; learning resources should be made available free of cost; there is a strong need for training on intellectual property rights, copyright, and creation and use of OER; and there should be an institutional policy on OER for its effective use.

Despite being a form of art that dates back in time, the work of video art still struggles today to find a shared legal framework. There is a risk to associate video art with other more traditional artistic forms and this risk has prevented video art from attributing its own autonomy, independence and expressive specificity. Artists’ videos are not listed among the works expressly protected by Italian Law no. 633/1941 (Law on protection of copyright and moral rights), with all the consequences in terms of determining the holders of the moral and patrimonial rights of the author and the division of these rights between the various persons who, in various ways, contribute to their realization (artist, director, screenwriter, interpreters, music authors, etc.), especially if the video works result from the indissoluble creative contribution and the collective work of a group of people. Finally, video art inevitably suffers the limits of digital art: it is easily reproducible, perishable, not limited and numbered in its editions, subject to obsolescence resulting from technological development; these factors causes the arising of various difficulties in terms of claiming the status of a work of art in the essence of its uniqueness, originality and authenticity. The relevance of issues related to legal regulation and the conservation of video art is also relevant for the possible recognition as a cultural asset that audiovisual media of a rare and valuable nature can obtain under the Italian Legislative Decree no. 42/2004 (Code of Cultural Heritage). Of extreme importance, therefore, is the legal analysis aimed at qualifying such a medium, through which to frame its expressive nature and understand how to manage the circulation of such works of art, how to ensure their protection and preservation and ensure their authenticity and paternity.

This paper is included in the First Monday Special Issue: Music and the Internet, published in July 2005. Special Issue editor David Beer asked authors to submit additional comments regarding their articles. Since this paper was first published in 2002 there has been a constant stream of litigation surrounding P2P in the US and in other jurisdictions. In the United States, the District Court and the Court of Appeals controversially held that Grokster was not liable for contributory and vicarious copyright infringement. Justice Thomas of the Federal Circuit observed: "We live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation." The United States Supreme Court is due to hear an appeal by copyright owners against the Grokster decision in 2005. In Australia, litigation was initiated against Sharman License Holdings, LEF Interactive and Brilliant Digital Entertainment, as the controllers of the peer to peer network Kazaa. Again, media owners have emphasized that the network is a pirate bazaar. Global legal forum shopping is one of the intriguing aspects of P2P. We see the arguments of both sides, originally developed specifically for US deliberation manifest across the globe. The Media naively ask whether there is any point in the Australian court considering these issues, given the litigation ongoing in the US. Here the US is seen as the world leader for legal ideas surrounding P2P, with the currency in ideas about technology, innovation and growing the global information economy clouding appreciation of national sovereignty and the distinctiveness of local jurisprudence. This context makes an appreciation of the cultural uniqueness of the US views all the more important. Rip, Mix, Burn: The Politics of Peer to Peer and Copyright Law by Kathy Bowrey and Matthew Rimmer Whereas Lessig's recent work engages with questions of culture and creativity in society, this paper looks at the role of culture and creativity in the law. The paper evaluates the Napster, DeCSS, Felten and Sklyarov litigation in terms of the new social, legal, economic and cultural relations being produced. This involves a deep discussion of law's economic relations, and the implications of this for litigation strategy. The paper concludes with a critique of recent attempts to define copyright law in terms of first amendment rights and communicative freedom.

LEON VAN NOORDEN & DIRK MOELANTS Special Issue: Papers from the 10th Rhythm Perception and Production Workshop 123 JOHN BISPHAM Rhythm in Music: What is it? Who has it? And Why? 125 JOEL S. SNYDER, ERIN E. HANNON, EDWARD W. LARGE, & MORTEN H. CHRISTIANSEN Synchronization and Continuation Tapping to Complex Meters 135 TAKAYUKI NAKATA, SANDRA E. TREHUB, CHISATO MITANI, & YUKIHIKO KANDA Pitch and Timing in the Songs of Deaf Children With Cochlear Implants 147 MARTIN F. McKINNEY & DIRK MOELANTS Ambiguity in Tempo Perception: What Draws Listeners to Different Metrical Levels? 155 DOUGLAS ECK Identifying Metrical and Temporal Structure With an Autocorrelation Phase Matrix 167 FABIEN GOUYON, GERHARD WIDMER, XAVIER SERRA, & ARTHUR FLEXER Acoustic Cues to Beat Induction: A Machine Learning Perspective 177 GEOFF LUCK & PETRI TOIVIAINEN Ensemble Musicians’ Synchronization With Conductors’ Gestures: An Automated Feature-Extraction Analysis 189 GUY MADISON Experiencing Groove Induced by Music: Consistency and Phenomenology 201 CHRISTIANE NEUHAUS & THOMAS R. KNÖSCHE Processing of Rhythmic and Melodic Gestalts—An ERP Study 209 Music Perception (ISSN 0730-7829; online ISSN, 1533-8312) is published five times a year by University of California Press, Berkeley, CA 94720. Subscription rates per year are $75 for individuals ($42 for students/retired), $310 for institutions, and $257 for institutions (electronic), plus $20 per year for air freight delivery outside North America. Periodicals postage paid at Berkeley, CA, and additional mailing offices. POSTMASTER: Send all address changes to Music Perception, University of California Press, Journals and Digital Publishing, 2000 Center St., Suite 303, Berkeley, CA 94704-1223. Canadian GST 89626 2698 RT0001. All matters of an editorial nature should be addressed to: Lola L. Cuddy, Editor, Department of Psychology, Humphrey Hall, 62 Arch St., Room 232, Queen's University, Kingston, Ontario, K7L 3N6 Canada; e-mail mpercep@post.queensu.ca. Address subscription orders, changes of address, business correspondence, and advertising inquiries to Music Perception, University of California Press, Journals and Digital Publishing 2000 Center St., Suite 303, Berkeley, CA 94704-1223. e-mail journals@ucpress.edu, website www.ucpress.edu/journals. Subscription payment can be made with UNESCO book coupons. Please allow 4 months for delivery of first issue. Single copies are $15 for individuals and students and $63 for institutions. Domestic claims for nonreceipt of issues should be made within 90 days of the month of publication, overseas claims within 180 days. Thereafter, the regular back issue rate will be charged for replacement. Overseas delivery is not guaranteed. The opinions and assertions contained in Music Perception are those of the authors and are not to be construed as reflecting the views of the editor or the publisher. Copying notice: Authorization to copy article content beyond fair use (as specified in Sections 107 and 108 of the U. S. Copyright Law) for internal or personal use, or the internal or personal use of specific clients, is granted by the Regents of the University of California for libraries and other users, provided that they are registered with and pay the specified fee through the Copyright Clearance Center (CCC), www.copyright.com. To reach the CCC’s Customer Service Department, dial 978-750-8400 or fax them at 978-750-4470 or write to 222 Rosewood Drive, Danvers, MA 01923. Permission to distribute electronically, republish, resell, or repurpose material from 2001 forward, as well as requests for article reprints or offprints, can be fulfilled online through the CCC’s Rightslink service, available on Caliber at http://caliber.ucpress.net. All other permissions and licensing inquiries may be submitted through the University of California Press website at http://www.ucpressjournals.com Articles appearing in Music Perception are abstracted and indexed in the following select databases: Arts & Humanities Citation Index, Current Contents; E-psyche; International Index to Music Periodicals; Linguistics and Language Behavior Abstracts; Music Index; Psychological Abstracts, RILM; PsycINFO; Abstracts of Music Literature; and Social Sciences Citation Index. For complete abstracting and indexing information, please visit http://www.ucpressjournals.com © 2006 by the Regents of the University of California. Printed in the U.S.A. This paper is acid-free and chlorine-free.

A common criticism of the rhythm video games genre — including series like Guitar Hero and Rock Band, is that playing musical simulation games is a waste of time when you could be playing an actual guitar and learning a real skill. A more serious criticism of games cultures draws attention to the degree of e-waste they produce. E-waste or electronic waste includes mobiles phones, computers, televisions and other electronic devices, containing toxic chemicals and metals whose landfill, recycling and salvaging all produce distinct environmental and social problems. The e-waste produced by games like Guitar Hero is obvious in the regular flow of merchandise transforming computer and video games stores into simulation music stores, filled with replica guitars, drum kits, microphones and other products whose half-lives are short and whose obsolescence is anticipated in the annual cycles of consumption and disposal. This paper explores the connection between e-waste and obsolescence in the games industry, and argues for the further consideration of consumers as part of the solution to the problem of e-waste. It uses a case study of the PC digital distribution software platform, Steam, to suggest that the digital distribution of games may offer an alternative model to market driven software and hardware obsolescence, and more generally, that such software platforms might be a place to support cultures of consumption that delay rather than promote hardware obsolescence and its inevitability as e-waste. The question is whether there exists a potential for digital distribution to be a means of not only eliminating the need to physically transport commodities (its current 'green' benefit), but also for supporting consumer practices that further reduce e-waste. The games industry relies on a rapid production and innovation cycle, one that actively enforces hardware obsolescence. Current video game consoles, including the PlayStation 3, the Xbox 360 and Nintendo Wii, are the seventh generation of home gaming consoles to appear within forty years, and each generation is accompanied by an immense international transportation of games hardware, software (in various storage formats) and peripherals. Obsolescence also occurs at the software or content level and is significant because the games industry as a creative industry is dependent on the extensive management of multiple intellectual properties. The computing and video games software industry operates a close partnership with the hardware industry, and as such, software obsolescence directly contributes to hardware obsolescence. The obsolescence of content and the redundancy of the methods of policing its scarcity in the marketplace has been accelerated and altered by the processes of disintermediation with a range of outcomes (Flew). The music industry is perhaps the most advanced in terms of disintermediation with digital distribution at the center of the conflict between the legitimate and unauthorised access to intellectual property. This points to one issue with the hypothesis that digital distribution can lead to a reduction in hardware obsolescence, as the marketplace leader and key online distributor of music, Apple, is also the major producer of new media technologies and devices that are the paragon of stylistic obsolescence. Stylistic obsolescence, in which fashion changes products across seasons of consumption, has long been observed as the dominant form of scaled industrial innovation (Slade). Stylistic obsolescence is differentiated from mechanical or technological obsolescence as the deliberate supersedence of products by more advanced designs, better production techniques and other minor innovations. The line between the stylistic and technological obsolescence is not always clear, especially as reduced durability has become a powerful market strategy (Fitzpatrick). This occurs where the design of technologies is subsumed within the discourses of manufacturing, consumption and the logic of planned obsolescence in which the product or parts are intended to fail, degrade or under perform over time. It is especially the case with signature new media technologies such as laptop computers, mobile phones and portable games devices. Gamers are as guilty as other consumer groups in contributing to e-waste as participants in the industry's cycles of planned obsolescence, but some of them complicate discussions over the future of obsolescence and e-waste. Many gamers actively work to forestall the obsolescence of their games: they invest time in the play of older games (“retrogaming”) they donate labor and creative energy to the production of user-generated content as a means of sustaining involvement in gaming communities; and they produce entirely new game experiences for other users, based on existing software and hardware modifications known as 'mods'. With Guitar Hero and other 'rhythm' games it would be easy to argue that the hardware components of this genre have only one future: as waste. Alternatively, we could consider the actual lifespan of these objects (including their impact as e-waste) and the roles they play in the performances and practices of communities of gamers. For example, the Elmo Guitar Hero controller mod, the Tesla coil Guitar Hero controller interface, the Rock Band Speak n' Spellbinder mashup, the multiple and almost sacrilegious Fender guitar hero mods, the Guitar Hero Portable Turntable Mod and MAKE magazine's Trumpet Hero all indicate a significant diversity of user innovation, community formation and individual investment in the post-retail life of computer and video game hardware. Obsolescence is not just a problem for the games industry but for the computing and electronics industries more broadly as direct contributors to the social and environmental cost of electrical waste and obsolete electrical equipment. Planned obsolescence has long been the experience of gamers and computer users, as the basis of a utopian mythology of upgrades (Dovey and Kennedy). For PC users the upgrade pathway is traversed by the consumption of further hardware and software post initial purchase in a cycle of endless consumption, acquisition and waste (as older parts are replaced and eventually discarded). The accumulation and disposal of these cultural artefacts does not devalue or accrue in space or time at the same rate (Straw) and many users will persist for years, gradually upgrading and delaying obsolescence and even perpetuate the circulation of older cultural commodities. Flea markets and secondhand fairs are popular sites for the purchase of new, recent, old, and recycled computer hardware, and peripherals. Such practices and parallel markets support the strategies of 'making do' described by De Certeau, but they also continue the cycle of upgrade and obsolescence, and they are still consumed as part of the promise of the 'new', and the desire of a purchase that will finally 'fix' the users' computer in a state of completion (29). The planned obsolescence of new media technologies is common, but its success is mixed; for example, support for Microsoft's operating system Windows XP was officially withdrawn in April 2009 (Robinson), but due to the popularity in low cost PC 'netbooks' outfitted with an optimised XP operating system and a less than enthusiastic response to the 'next generation' Windows Vista, XP continues to be popular. Digital Distribution: A Solution? Gamers may be able to reduce the accumulation of e-waste by supporting the disintermediation of the games retail sector by means of online distribution. Disintermediation is the establishment of a direct relationship between the creators of content and their consumers through products and services offered by content producers (Flew 201). The move to digital distribution has already begun to reduce the need to physically handle commodities, but this currently signals only further support of planned, stylistic and technological obsolescence, increasing the rate at which the commodities for recording, storing, distributing and exhibiting digital content become e-waste. Digital distribution is sometimes overlooked as a potential means for promoting communities of user practice dedicated to e-waste reduction, at the same time it is actively employed to reduce the potential for the unregulated appropriation of content and restrict post-purchase sales through Digital Rights Management (DRM) technologies. Distributors like Amazon.com continue to pursue commercial opportunities in linking the user to digital distribution of content via exclusive hardware and software technologies. The Amazon e-book reader, the Kindle, operates via a proprietary mobile network using a commercially run version of the wireless 3G protocols. The e-book reader is heavily encrypted with Digital Rights Management (DRM) technologies and exclusive digital book formats designed to enforce current copyright restrictions and eliminate second-hand sales, lending, and further post-purchase distribution. The success of this mode of distribution is connected to Amazon's ability to tap both the mainstream market and the consumer demand for the less-than-popular; those books, movies, music and television series that may not have been 'hits' at the time of release. The desire to revisit forgotten niches, such as B-sides, comics, books, and older video games, suggests Chris Anderson, linked with so-called “long tail” economics. Recently Webb has queried the economic impact of the Long Tail as a business strategy, but does not deny the underlying dynamics, which suggest that content does not obsolesce in any straightforward way. Niche markets for older content are nourished by participatory cultures and Web 2.0 style online services. A good example of the Long Tail phenomenon is the recent case of the 1971 book A Lion Called Christian, by Anthony Burke and John Rendall, republished after the author's film of a visit to a resettled Christian in Africa was popularised on YouTube in 2008. Anderson's Long Tail theory suggests that over time a large number of items, each with unique rather than mass histories, will be subsumed as part of a larger community of consumers, including fans, collectors and everyday users with a long term interest in their use and preservation. If digital distribution platforms can reduce e-waste, they can perhaps be fostered by to ensuring digital consumers have access to morally and ethically aware consumer decisions, but also that they enjoy traditional consumer freedoms, such as the right to sell on and change or modify their property. For it is not only the fixation on the 'next generation' that contributes to obsolescence, but also technologies like DRM systems that discourage second hand sales and restrict modification. The legislative upgrades, patches and amendments to copyright law that have attempted to maintain the law's effectiveness in competing with peer-to-peer networks have supported DRM and other intellectual property enforcement technologies, despite the difficulties that owners of intellectual property have encountered with the effectiveness of DRM systems (Moore, Creative). The games industry continues to experiment with DRM, however, this industry also stands out as one of the few to have significantly incorporated the user within the official modes of production (Moore, Commonising). Is the games industry capable (or willing) of supporting a digital delivery system that attempts to minimise or even reverse software and hardware obsolescence? We can try to answer this question by looking in detail at the biggest digital distributor of PC games, Steam. Steam Figure 1: The Steam Application user interface retail section Steam is a digital distribution system designed for the Microsoft Windows operating system and operated by American video game development company and publisher, Valve Corporation. Steam combines online games retail, DRM technologies and internet-based distribution services with social networking and multiplayer features (in-game voice and text chat, user profiles, etc) and direct support for major games publishers, independent producers, and communities of user-contributors (modders). Steam, like the iTunes games store, Xbox Live and other digital distributors, provides consumers with direct digital downloads of new, recent and classic titles that can be accessed remotely by the user from any (internet equipped) location. Steam was first packaged with the physical distribution of Half Life 2 in 2004, and the platform's eventual popularity is tied to the success of that game franchise. Steam was not an optional component of the game's installation and many gamers protested in various online forums, while the platform was treated with suspicion by the global PC games press. It did not help that Steam was at launch everything that gamers take objection to: a persistent and initially 'buggy' piece of software that sits in the PC's operating system and occupies limited memory resources at the cost of hardware performance. Regular updates to the Steam software platform introduced social network features just as mainstream sites like MySpace and Facebook were emerging, and its popularity has undergone rapid subsequent growth. Steam now eclipses competitors with more than 20 million user accounts (Leahy) and Valve Corporation makes it publicly known that Steam collects large amounts of data about its users. This information is available via the public player profile in the community section of the Steam application. It includes the average number of hours the user plays per week, and can even indicate the difficulty the user has in navigating game obstacles. Valve reports on the number of users on Steam every two hours via its web site, with a population on average between one and two million simultaneous users (Valve, Steam). We know these users’ hardware profiles because Valve Corporation makes the results of its surveillance public knowledge via the Steam Hardware Survey. Valve’s hardware survey itself conceptualises obsolescence in two ways. First, it uses the results to define the 'cutting edge' of PC technologies and publishing the standards of its own high end production hardware on the companies blog. Second, the effect of the Survey is to subsequently define obsolescent hardware: for example, in the Survey results for April 2009, we can see that the slight majority of users maintain computers with two central processing units while a significant proportion (almost one third) of users still maintained much older PCs with a single CPU. Both effects of the Survey appear to be well understood by Valve: the Steam Hardware Survey automatically collects information about the community's computer hardware configurations and presents an aggregate picture of the stats on our web site. The survey helps us make better engineering and gameplay decisions, because it makes sure we're targeting machines our customers actually use, rather than measuring only against the hardware we've got in the office. We often get asked about the configuration of the machines we build around the office to do both game and Steam development. We also tend to turn over machines in the office pretty rapidly, at roughly every 18 months. (Valve, Team Fortress) Valve’s support of older hardware might counter perceptions that older PCs have no use and begins to reverse decades of opinion regarding planned and stylistic obsolescence in the PC hardware and software industries. Equally significant to the extension of the lives of older PCs is Steam's support for mods and its promotion of user generated content. By providing software for mod creation and distribution, Steam maximises what Postigo calls the development potential of fan-programmers. One of the 'payoffs' in the information/access exchange for the user with Steam is the degree to which Valve's End-User Licence Agreement (EULA) permits individuals and communities of 'modders' to appropriate its proprietary game content for use in the creation of new games and games materials for redistribution via Steam. These mods extend the play of the older games, by requiring their purchase via Steam in order for the individual user to participate in the modded experience. If Steam is able to encourage this kind of appropriation and community support for older content, then the potential exists for it to support cultures of consumption and practice of use that collaboratively maintain, extend, and prolong the life and use of games. Further, Steam incorporates the insights of “long tail” economics in a purely digital distribution model, in which the obsolescence of 'non-hit' game titles can be dramatically overturned. Published in November 2007, Unreal Tournament 3 (UT3) by Epic Games, was unappreciated in a market saturated with games in the first-person shooter genre. Epic republished UT3 on Steam 18 months later, making the game available to play for free for one weekend, followed by discounted access to new content. The 2000 per cent increase in players over the game's 'free' trial weekend, has translated into enough sales of the game for Epic to no longer consider the release a commercial failure: It’s an incredible precedent to set: making a game a success almost 18 months after a poor launch. It’s something that could only have happened now, and with a system like Steam...Something that silently updates a purchase with patches and extra content automatically, so you don’t have to make the decision to seek out some exciting new feature: it’s just there anyway. Something that, if you don’t already own it, advertises that game to you at an agreeably reduced price whenever it loads. Something that enjoys a vast community who are in turn plugged into a sea of smaller relevant communities. It’s incredibly sinister. It’s also incredibly exciting... (Meer) Clearly concerns exist about Steam's user privacy policy, but this also invites us to the think about the economic relationship between gamers and games companies as it is reconfigured through the private contractual relationship established by the EULA which accompanies the digital distribution model. The games industry has established contractual and licensing arrangements with its consumer base in order to support and reincorporate emerging trends in user generated cultures and other cultural formations within its official modes of production (Moore, "Commonising"). When we consider that Valve gets to tax sales of its virtual goods and can further sell the information farmed from its users to hardware manufacturers, it is reasonable to consider the relationship between the corporation and its gamers as exploitative. Gabe Newell, the Valve co-founder and managing director, conversely believes that people are willing to give up personal information if they feel it is being used to get better services (Leahy). If that sentiment is correct then consumers may be willing to further trade for services that can reduce obsolescence and begin to address the problems of e-waste from the ground up. Conclusion Clearly, there is a potential for digital distribution to be a means of not only eliminating the need to physically transport commodities but also supporting consumer practices that further reduce e-waste. For an industry where only a small proportion of the games made break even, the successful relaunch of older games content indicates Steam's capacity to ameliorate software obsolescence. Digital distribution extends the use of commercially released games by providing disintermediated access to older and user-generated content. For Valve, this occurs within a network of exchange as access to user-generated content, social networking services, and support for the organisation and coordination of communities of gamers is traded for user-information and repeat business. Evidence for whether this will actively translate to an equivalent decrease in the obsolescence of game hardware might be observed with indicators like the Steam Hardware Survey in the future. The degree of potential offered by digital distribution is disrupted by a range of technical, commercial and legal hurdles, primary of which is the deployment of DRM, as part of a range of techniques designed to limit consumer behaviour post purchase. While intervention in the form of legislation and radical change to the insidious nature of electronics production is crucial in order to achieve long term reduction in e-waste, the user is currently considered only in terms of 'ethical' consumption and ultimately divested of responsibility through participation in corporate, state and civil recycling and e-waste management operations. The message is either 'careful what you purchase' or 'careful how you throw it away' and, like DRM, ignores the connections between product, producer and user and the consumer support for environmentally, ethically and socially positive production, distribrution, disposal and recycling. This article, has adopted a different strategy, one that sees digital distribution platforms like Steam, as capable, if not currently active, in supporting community practices that should be seriously considered in conjunction with a range of approaches to the challenge of obsolescence and e-waste. References Anderson, Chris. "The Long Tail." Wired Magazine 12. 10 (2004). 20 Apr. 2009 ‹http://www.wired.com/wired/archive/12.10/tail.html›. De Certeau, Michel. The Practice of Everyday Life. Berkeley: U of California P, 1984. Dovey, Jon, and Helen Kennedy. Game Cultures: Computer Games as New Media. London: Open University Press,2006. Fitzpatrick, Kathleen. The Anxiety of Obsolescence. Nashville: Vanderbilt UP, 2008. Flew, Terry. New Media: An Introduction. South Melbourne: Oxford UP, 2008. Leahy, Brian. "Live Blog: DICE 2009 Keynote - Gabe Newell, Valve Software." The Feed. G4TV 18 Feb. 2009. 16 Apr. 2009 ‹http://g4tv.com/thefeed/blog/post/693342/Live-Blog-DICE-2009-Keynote-–-Gabe-Newell-Valve-Software.html›. Meer, Alec. "Unreal Tournament 3 and the New Lazarus Effect." Rock, Paper, Shotgun 16 Mar. 2009. 24 Apr. 2009 ‹http://www.rockpapershotgun.com/2009/03/16/unreal-tournament-3-and-the-new-lazarus-effect/›.Moore, Christopher. "Commonising the Enclosure: Online Games and Reforming Intellectual Property Regimes." Australian Journal of Emerging Technologies and Society 3. 2, (2005). 12 Apr. 2009 ‹http://www.swin.edu.au/sbs/ajets/journal/issue5-V3N2/abstract_moore.htm›. Moore, Christopher. "Creative Choices: Changes to Australian Copyright Law and the Future of the Public Domain." Media International Australia 114 (Feb. 2005): 71–83. Postigo, Hector. "Of Mods and Modders: Chasing Down the Value of Fan-Based Digital Game Modification." Games and Culture 2 (2007): 300-13. Robinson, Daniel. "Windows XP Support Runs Out Next Week." PC Business Authority 8 Apr. 2009. 16 Apr. 2009 ‹http://www.pcauthority.com.au/News/142013,windows-xp-support-runs-out-next-week.aspx›. Straw, Will. "Exhausted Commodities: The Material Culture of Music." Canadian Journal of Communication 25.1 (2000): 175. Slade, Giles. Made to Break: Technology and Obsolescence in America. Cambridge: Harvard UP, 2006. Valve. "Steam and Game Stats." 26 Apr. 2009 ‹http://store.steampowered.com/stats/›. Valve. "Team Fortress 2: The Scout Update." Steam Marketing Message 20 Feb. 2009. 12 Apr. 2009 ‹http://storefront.steampowered.com/Steam/Marketing/message/2269/›. Webb, Richard. "Online Shopping and the Harry Potter Effect." New Scientist 2687 (2008): 52-55. 16 Apr. 2009 ‹http://www.newscientist.com/article/mg20026873.300-online-shopping-and-the-harry-potter-effect.html?page=2›. With thanks to Dr Nicola Evans and Dr Frances Steel for their feedback and comments on drafts of this paper.

Virtual worlds, as powerful social platforms of intense human interaction, gather millions of users worldwide, producing massive economies of their own, giving rise to the birth of complex social relationships and the formation of virtual communities. By enabling the creativity of the player and figuring as an outstanding example of new online collaborative environments, virtual worlds emerge as context for creation, allowing for users to undertake a digital alter-ego and become artists, creators and authors. Nevertheless, such digital egos are not merely creations, but a reflex of their creators, an extension of their personalities and indicia of their identities. As a result, this paper perceives the avatar not only as a property item (avatar as the player’s or [game-developer’s] property) but also, and simultaneously, as a reflex of our personality and identity (avatar as the projection of one self in the virtual domain, as part of an individual persona). Bearing in mind such hybrid configuration, and looking at the disputes over property rights in virtual words, this essay makes three fundamental arguments. Firstly, it proposes a re-interpretation of intellectual property rights (namely of copyright law) according to its underlying utilitarian principles, as such principles seem to have been forgotten or neglected in the sphere of virtual worlds. The idea is to re-balance the uneven relationship between game owners and players perpetuated by the end-user license agreements (EULAs), recognising property rights to users over their own virtual creations. In order to evaluate whether a user’s contribution to the virtual world amounts to an original and creative work and is worthy of copyright protection, the essay proposes the image of a jigsaw puzzle as a tool and criteria to carry out such examination. Secondly, the author states that the utilitarian theoretical justification for intellectual property rights does not account for all the dimensions and aspects involved in the user/avatar relationship, namely for the personal attachment and the process of self-identification the former develops toward the latter. In order to fill such lacuna, the author resorts to Margaret Jane Radin’s Theory of “Property for Personhood.” In this context, Radin’s theory is deemed to be successful in capturing the personal attachment users develop with their avatars, recognizing such characters not merely as property interests, but as personal and intimate connections to one’s sense of self. Furthermore, such theoretical perspective reinforces the convergence of both property and personality dimensions upon the figure avatar, a key feature of this character. Thirdly, the author argues in favor of granting users with virtual property rights over avatars, drawing from Fairfield’s theory of virtual property, but justifying such entitlement in light of Radin’s theory of “Property for Personhood.” By articulating a hierarchy of stronger and weaker property entitlements in terms of their relationship to personhood (through the image of a continuum from fungible to personal), Radin’s theory is indicated as particularly suitable to resolve property rights disputes between game owners and users. Such understanding is based upon the conceptualization of the avatar as personal property, which, according to the “Property for Personhood” thesis, merits stronger legal protection than fungible property. Finally, by combining Property for Personhood theory with the Utilitarian one, the paper advocates a more “ecumenical” view in the articulation of the different property theories, refuting the generalized prejudice of perceiving them as rival and incompatible perspectives.

It is the same spectacle all over the Western world: whenever delegates gather to discuss the development and consequences of new media technologies, a handful of people among them will stand out from the crowd, and somehow seem not quite to fit in with the remaining assortment of techno-evangelists, Internet ethnographers, multimedia project leaders, and online culture critics. At some point in the proceedings, they'll get to the podium and hold a talk on their ideas for the future of copyright protection and intellectual property (IP) rights in the information age; when they are finished, the reactions of the audience typically range from mild "what was that all about?" amusement to sheer "they haven't got a clue" disbelief. Spare a thought for copyright lawyers; they're valiantly fighting a losing battle. Ever since the digitalisation and networking of our interpersonal and mass media made information transmission and duplication effortless and instantaneous, they've been trying to come up with ways to uphold and enforce concepts of copyright which are fundamentally linked to information as bound to physical objects (artifacts, books, CDs, etc.), as Barlow has demonstrated so clearly in "Selling Wine without Bottles". He writes that "copyright worked well because, Gutenberg notwithstanding, it was hard to make a book. ... Books had material surfaces to which one could attach copyright notices, publisher's marques, and price tags". If you could control the physical media which were used to transmit information (paper, books, audio and video tapes, as well as radio and TV sets, or access to cable systems), you could control who made copies when and where, and at what price. This only worked as long as the technology to make copies was similarly scarce, though: as soon as most people learnt to write, or as faxes and photocopiers became cheaper, the only real copyright protection books had was the effort that would have to be spent to copy them. With technology continuously advancing (perhaps even at accellerating pace), copyright is soon becoming a legal fiction that is losing its link to reality. Indeed, we are now at a point where we have the opportunity -- the necessity, even -- to shift the fictional paradigm, to replace the industrial-age fiction of protective individual copyright with an information-age fiction of widespread intellectual cooperation. As it becomes ever easier to bypass and ignore copyright rules, and as copyright thus becomes ever more illusionary, this new fiction will correspondingly come ever closer to being realised. To Protect and to ... Lose Today, the lawyers' (and their corporate employers') favourite weapon in their fight against electronic copyright piracy are increasingly elaborate protection mechanisms -- hidden electronic signatures to mark intellectual property, electronic keys to unlock copyrighted products only for legitimate users (and sometimes only for a fixed amount of time or after certain licence payments), encryption of sensitive information, or of entire products to prevent electronic duplication. While the encryption of information exchanges between individuals has been proven to be a useful deterrent against all but the most determined of hackers, it's interesting to note that practically no electronic copyright protection mechanism of mass market products has ever been seen to work. However good and elaborate the protection efforts, it seems that as long as there is a sufficient number of interested consumers unwilling to pay for legitimate access, copy protections will be cracked eventually: the rampant software piracy is the best example. On the other hand, where copy protections become too elaborate and cumbersome, they end up killing the product they are meant to protect: this is currently happening in the case of some of the pay-per-view or limited-plays protection schemes forced upon the U.S. market for Digital Versatile Discs (DVDs). The eventual failure of such mechanisms isn't a particularly recent observation, even. When broadcast radio was first introduced in Australia in 1923, it was proposed that programme content should be protected (and stations financed) by fixing radio receivers to a particular station's frequency -- by buying such a 'sealed set' receiver you would in effect subscribe to a station and acquire the right to receive the content it provided. Never known as uninventive, those Australians who this overprotectiveness didn't completely put off buying a receiver (radio was far from being a proven mass medium at the time, after all) did of course soon break the seal, and learnt to adjust the frequency to try out different stations -- or they built their own radios from scratch. The 'sealed set' scheme was abandoned after only nine months. Even with the development of copy protection schemes since the 1920s, a full (or at least sufficiently comprehensive) protection of intellectual property seems as unattainable a fiction as it was then. Protection and copying technology are never far apart in development anyway, but even more fundamentally, the protected products are eventually meant to be used, after all. No matter how elaborately protected a CD, a video, or a computer programme is, it will still have to be converted into sound waves, image information, or executable code, and at that level copying will still remain possible. In the absence of workable copy protection, however, copies will be made in large amounts -- even more so since information is now being spread and multiplied around the globe virtually at the speed of light. Against this tide of copies, any attempts to use legislation to at least force the payment of royalties from illegitimate users are also becoming increasingly futile. While there may be a few highly publicised court cases, the multitude of small transgressions will remain unanswered. This in turn undermines the equality before the law that is a basic human right: increasingly, the few that are punished will be able to argue that, if "everybody does it", to single them out is highly unfair. At the same time, corporate efforts to uphold the law may be counterproductive: as Barlow writes, "against the swift tide of custom, the Software Publishers' current practice of hanging a few visible scapegoats is so obviously capricious as to only further diminish respect for the law". Quite simply, their legal costs may not be justified by the results anymore. Abandoning Copyright Law If copyright has become a fiction, however -- one that is still, despite all evidence, posited as reality by the legal system --, and if the makeup of today's electronic media, particularly the Internet, allow that fiction to be widely ignored and circumvented in daily practice -- despite all corporate legal efforts --, how is this disparity between law and reality to be solved? Barlow offers a clear answer: "whenever there is such profound divergence between the law and social practice, it is not society that adapts". He goes on to state that it may well be that when the current system of intellectual property law has collapsed, as seems inevitable, that no new legal structure will arise in its place. But something will happen. After all, people do business. When a currency becomes meaningless, business is done in barter. When societies develop outside the law, they develop their own unwritten codes, practices, and ethical systems. While technology may undo law, technology offers methods for restoring creative rights. When William Gibson invented the term 'cyberspace', he described it as a "consensual hallucination" (67). As the removal of copyright to the realm of the fictional has been driven largely by the Internet and its 'freedom of information' ethics, perhaps it is apt to speak of a new approach to intellectual property (or, with Barlow, to 'creative rights') as one of consensual, collaborative use of such property. This approach is far from being fully realised yet, and must so for now remain fiction, too, but it is no mere utopian vision -- in various places, attempts are made to put into place consensual schemes of dealing with intellectual property. They also represent a move from IP hoarding to IP use. Raymond speaks of the schemes competing here as the 'cathedral' and the 'bazaar' system. In the cathedral system, knowledge is tightly controlled, and only the finished product, "carefully crafted by individual wizards or small bands of mages working in splendid isolation" (1), is ever released. This corresponds to traditional copyright approaches, where company secrets are hoarded and locked away (sometimes only in order to keep competitors from using them), and breaches punished severely. The bazaar system, on the other hand, includes the entire community of producers and users early on in the creative process, up to the point of removing the producer/user dichotomy altogether: "no quiet, reverent cathedral-building here -- rather, ... a great babbling bazaar of differing agendas and approaches ... out of which a coherent and stable system could seemingly emerge only by a succession of miracles", as Raymond admits (1). The Linux 'Miracle' Raymond writes about one such bazaar-system project which provides impressive proof that the approach can work, however: the highly acclaimed Unix-based operating system Linux. Instigated and organised by Finnish programmer Linus Torvalds, this enthusiast-driven, Internet-based development project has achieved more in less than a decade than what many corporate developers (Microsoft being the obvious example) can do in thrice that time, and with little financial incentive or institutional support at that. As Raymond describes, "the Linux world behaves in many respects like a free market or an ecology, a collection of selfish agents attempting to maximise utility which in the process produces a self-correcting spontaneous order more elaborate and efficient than any amount of central planning could achieve" (10). Thus, while there is no doubt that individual participants will eventually always also be driven by selfish reasons, there is collaboration towards the achievement of communal goals, and a consensus about what those goals are: "while coding remains an essentially solitary activity, the really great hacks come from harnessing the attention and brainpower of entire communities. The developer who uses only his or her own brain in a closed project is going to fall behind the developer who knows how to create an open, evolutionary context in which bug-spotting and improvements get done by hundreds of people" (Raymond 10). It is obvious that such collaborative projects need a structure that allows for the immediate participation of a large community, and so in the same way that the Internet has been instrumental in dismantling traditional copyright systems, it is also a driving factor in making these new approaches possible: "Linux was the first project to make a conscious and successful effort to use the entire world as its talent pool. I don't think it's a coincidence that the gestation period of Linux coincided with the birth of the World Wide Web, and that Linux left its infancy during the same period in 1993-1994 that saw the takeoff of the ISP industry and the explosion of mainstream interest in the Internet. Linus was the first person who learned how to play by the new rules that pervasive Internet made possible" (Raymond 10). While some previous collaborative efforts exist (such as shareware schemes, which have existed ever since the advent of programmable home computers), their comparatively limited successes underline the importance of a suitable communication medium. The success of Linux has now begun to affect corporate structures, too: informational material for the Mozilla project, in fact, makes direct reference to the Linux experience. On the Net, Mozilla is as big as it gets -- instituted to continue development of Netscape Communicator-based Web browsers following Netscape's publication of the Communicator source code, it poses a serious threat to Microsoft's push (the legality of which is currently under investigation in the U.S.) to increase marketshare for its Internet Explorer browser. Much like Linux, Mozilla will be a collaborative effort: "we intend to delegate authority over the various modules to the people most qualified to make decisions about them. We intend to operate as a meritocracy: the more good code you contribute, the more responsibility you will be given. We believe that to be the only way to continue to remain relevant, and to do the greatest good for the greatest number" ("Who Is Mozilla.org?"), with the Netscape corporation only one among that number, and a contributor amongst many. Netscape itself intends to release browsers based on the Mozilla source code, with some individual proprietary additions and the benefits corporate structures allow (printed manuals, helplines, and the like), but -- so it seems -- it is giving up its unlimited hold over the course of development of the browser. Such actions afford an almost prophetic quality to Barlow's observation that "familiarity is an important asset in the world of information. It may often be the case that the best thing you can do to raise the demand for your product is to give it away". The use of examples from the computer world should not be seen to mean that the consensual, collaborative use of intellectual property suggested here is limited only to software -- it is, however, no surprise that a computer-based medium would first be put to use to support computer-based development projects. Producers and artists from other fields can profit from networking with their peers and clients just as much: artists can stay in touch with their audience and one another, working on collaborative projects such as the brilliant Djam Karet CD Collaborator (see Taylor's review in Gibraltar), professional interest groups can exchange information about the latest developments in their field as well as link with the users of their products to find out about their needs or problems, and the use of the Net as a medium of communication for academic researchers was one of its first applications, of course. In many such cases, consensual collaboration would even speed up the development process and help iron out remaining glitches, beating the efforts of traditional institutions with their severely guarded intellectual property rights. As Raymond sees it, for example, "no commercial developer can match the pool of talent the Linux community can bring to bear on a problem", and so "perhaps in the end the free-software culture will triumph not because cooperation is morally right or software 'hoarding' is morally wrong ... , but simply because the commercial world cannot win an evolutionary arms race with free-software communities that can put orders of magnitude more skilled time into a problem" (10). Realising the Fiction There remains the problem that even the members of such development communities must make a living somehow -- a need to which their efforts in the community not only don't contribute, but the pursuit of which even limits the time available for the community efforts. The apparent impossibility of reconciling these two goals has made the consensual collaborative approach appear little more than a utopian fiction so far, individual successes like Linux or (potentially) Mozilla notwithstanding. However, there are ways of making money from the communal work even if due to the abolition of copyright laws mere royalty payments are impossible -- as the example of Netscape's relation to the Mozilla project shows, the added benefits that corporate support can bring will still seem worth paying for, for many users. Similarly, while music and artwork may be freely available on the Net, many music fans will still prefer to get the entire CD package from a store rather than having to burn the CD and print the booklet themselves. The changes to producer/user relations suggested here do have severe implications for corporate and legal structures, however, and that is the central reason why particularly the major corporate intellectual property holders (or, hoarders) and their armies of lawyers are engaged in such a fierce defensive battle. Needless to say, the changeover from the still-powerful fiction of enforcible intellectual property copyrights to the new vision of open, consensual collaboration that gives credit for individual contributions, but has no concept of an exclusive ownership of ideas, will not take place overnight. Intellectual property will continue to be guarded, trade secrets will keep being kept, for some time yet, but -- just as is the case with the established practice of patenting particular ideas just so competitors can't use them, but without ever putting them to use in one's own work -- eventually such efforts will prove to be self-defeating. Shutting one's creative talents off in a quiet cathedral will come to be seen as less productive than engaging in the creative cooperation occuring in the global bazaar, and solitary directives of central executives will be replaced by consensual decisions of the community of producers and users. As Raymond points out, "this is not to say that individual vision and brilliance will no longer matter; rather, ... the cutting edge ... will belong to people who start from individual vision and brilliance, then amplify it through the effective construction of voluntary communities of interest" (10). Such communal approaches may to some seem much like communism, but this, too, is a misconception. In fact, in this new system there is much more exchange, much more give and take going on than in the traditional process of an exchange of money for product between user and producer -- only the currency has changed. "This explains much of the collective 'volunteer' work which fills the archives, newsgroups, and databases of the Internet. Its denizens are not working for 'nothing,' as is widely believed. Rather they are getting paid in something besides money. It is an economy which consists almost entirely of information" (Barlow). And with the removal of the many barriers to the free flow of information and obstacles to scientific and artistic development that traditional copyright has created, the progress of human endeavour itself is likely to be sped up. In the end, then, it all comes down to what fictions we choose to believe or reject. In the light of recent developments, and considering the evidence that suggests the viability, even superiority of alternative approaches, it is becoming increasingly hard to believe that traditional copyright can, and much less, should be sustained. Other than the few major copyright holders, few stand to gain from upholding these rights. On the other hand, were we to lift copyright restrictions and use the ideas and information thus made available freely in a cooperative, consensual, and most of all productive way, we all might profit. As various projects have shown, that fiction is already in the process of being realised. References Barlow, John Perry. "Selling Wine without Bottles: The Economy of Mind on the Global Net." 1993. 26 Jan. 1999 <www.eff.org/pub/Publications/John_Perry_Barlow/HTML/idea_economy_article.php>. Gibson, William. Neuromancer. London: HarperCollins, 1984. Raymond, Eric S. "The Cathedral and the Bazaar." 1998. 26 Jan. 1999 <http://www.redhat.com/redhat/cathedral-bazaar/cathedral-bazaar.php>. Taylor, Mike. "Djam Karet, Jeff Greinke, Tim Song Jones, Nick Peck, Kit Watkins." Gibraltar 5.12 (22 Apr. 1995). 10 Feb. 1999 <http://www.progrock.net/gibraltar/issues/Vol5.Iss12.htm>. "Who Is Mozilla.org?" Mozilla.org Website. 1998. 26 Jan. 1999 <http://www.mozilla.org/about.php>. Citation reference for this article MLA style: Axel Bruns. "The Fiction of Copyright: Towards a Consensual Use of Intellectual Property." M/C: A Journal of Media and Culture 2.1 (1999). [your date of access] <http://www.uq.edu.au/mc/9902/copy.php>. Chicago style: Axel Bruns, "The Fiction of Copyright: Towards a Consensual Use of Intellectual Property," M/C: A Journal of Media and Culture 2, no. 1 (1999), <http://www.uq.edu.au/mc/9902/copy.php> ([your date of access]). APA style: Axel Bruns. (1999) The fiction of copyright: towards a consensual use of intellectual property. M/C: A Journal of Media and Culture 2(1). <http://www.uq.edu.au/mc/9902/copy.php> ([your date of access]).