Seit bald 150 Jahren soll das moderne Urheberrecht (UHR) den Umgang mit „Werke[n] der Literatur, Wissenschaft und Kunst“ (§ 1, des aktuellen deutschen Urheberrechtsgesetz) regeln. Rund 100 Jahre zurück reichen die Anfänge der avantgardistischen Subversion bürgerlich-romantischer Konzeptionen von „KünstlerIn“ und „Werk“, die auch dem UHR zugrunde liegen. Durch die Einführung des Prinzips Zufall, die Verwendung bestehender kultureller Artefakte, die Betonung der Rolle des Unterbewussten, oder die direkte Intervention in soziale Prozesse wurde die Vorstellung des autonomen, aus sich selbst schöpfenden Subjekts von allen Seiten untergraben. Dessen ungeachtet propagierte der expandierende Kunstmarkt genau dieses KünstlerInnenbild. Vor diesem Hintergrund ist es fast erstaunlich, dass das Urheberrecht selbst erst sehr spät im Feld der Kunst direkt relevant wurde. Der erste große Gerichtsfall fand 1990-92 statt. Der Photograph Art Rogers verklagte den Künstler Jeff Koons, weil dieser nach Vorlage einer Postkarte von Rogers (Puppies, 1986) eine Skulptur (A String of Puppies, 1988) anfertigen ließ und in der Ausstellung Ushering in Banality präsentiert hatte. Im Kern ging es um die Frage, ob es sich hierbei um eine legitime künstlerische Strategie (die sich auf das US-amerikanische Recht des fair use berufen könne) oder um eine unautorisierte Werkbearbeitung handle. Koons verlor den Prozess sowohl in der ersten als auch in der zweiten Instanz und sah sich bald mit einer Fülle von Klagen konfrontiert, die konzeptuell vergleichbare Werke betrafen.
I'm reading: The ecstasy of influence: A plagiarism, by Jonathan Lethem, (Harper's Magazine, Feb.2007). Which is how influences flow freely in art and most artists have no problem admitting this (why should they?). Today's strong claims of copyright are based on what he calls "source hypocrisy" (denial of one's sources, refusal to allow one's work to become the source for someone else). In most cases, artists themselves are less hyporcritics than the corporations, trusts, foundations administring their work. Lethem also mentions that Bob Dylan never refused the permission for a sample.
A large, diverse society cannot survive without property; a large, diverse, and modern society cannot flourish without some form of intellectual property. But it takes little reflection to grasp that there is ample value that the term “property” doesn't capture. And works of art exist simultaneously in two economies, a market economy and a gift economy. The cardinal difference between gift and commodity exchange is that a gift establishes a feeling-bond between two people, whereas the sale of a commodity leaves no necessary connection. (....) But a gift makes a connection. There are many examples, the candy or cigarette offered to a stranger who shares a seat on the plane, the few words that indicate goodwill between passengers on the late-night bus. These tokens establish the simplest bonds of social life, but the model they offer may be extended to the most complicated of unions—marriage, parenthood, mentorship. If a value is placed on these (often essentially unequal) exchanges, they degenerate into something else.
- X-axis: licensing permissiveness (freedom score)
- Y-axis: volume (number of CC-licensed items) per capita
- Bubble size: absolute volume
- Region colors: Orange -> Europe, Blue -> Asia, Green -> South Americmore information: http://wiki.creativecommons.org/Metrics
The US is missing.
Source: Andy Updegrove: A Big Victory for F/OSS: Jacobsen v. Katzer is Settled Friday, February 19 2010
A long running case of great significance to the legal underpinnings of free and open source/open source software (F/OSS) has just settled on terms favorable to the F/OSS developer. The settlement follows a recent ruling by a U.S. Federal District Court judge that affirmed several key rights of F/OSS developers under existing law.
Significantly for the F/OSS cause, the court found in favor of Jacobsen (the F/OSS developer) on three key points:
1. The code in question was sufficiently original to be entitled to copyright protection. While not unique to F/OSS code, this was a legal issue on which Jacobsen had to prevail in order to assert claims under copyright law.
2. While the JMRI Project made its code available for free, there was "evidence in the record attributing a monetary value for the actual work performed by the contributors to the JMRI project," thus laying the basis for monetary damages.
3. The removal of the copyright and authorship data contained in the pirated code was a violation of the Digital Millennium Copyright Act, thus providing a basis for suit for that action in violation of the JMRI license.
Point 2 is particularly important.
The CRA is a new project from Public Knowledge, with much of the heavy lifting being done by the Cyberlaw Clinic at Stanford and the Technology & Public Policy Clinic at UC-Berkeley. While Berkeley's noted copyright scholar Pam Samuelson works up a new "model statute" for copyright law in the digital age, Public Knowledge hopes to make smaller interim fixes to copyright law that won't require the same dramatic reworking.
This week, it released the first of these reform ideas (PDF) focusing on the principle of fair use. In addition to "criticism" and "news reporting" and the rest of the items in the fair use preamble, the CRA proposes the addition of three more: "incidental uses, non-consumptive uses, and personal, non-commercial uses." They might sound minor, but these suggestions are bound to provoke controversy.
There is very little information about the back-end of Youtube (provided by a company called audible magic), which watermarks content to screen for copyright violation. But there's an interesting snippet by Viacom's general counsel.
Fricklas points to the recent MTV music awards, where Kanye West rushed the stage, grabbed the mic, and delivered his Internet-meme-producing-line, "I'mma let you finish, but…" Viacom quickly uploaded the evening's footage into the content recognition engines of sites like YouTube, which can then block exact uploads of the same footage or allow rightsholders to monetize it with ads. Viacom used the tool to block copies of the clip, but not without offering a solution of its own: the clip was hosted on Viacom websites and was embeddable and linkable.
It also points to a more flexible strategie: Block exact copies, earn money from other people's mash-ups (who themselves don't earn money).
Source: Ars Technica,Viacom's top lawyer: suing P2P users "felt like terrorism" November 16, 2009
If we want to enable free access to knowledge goods, we need to find ways to finance the first copy. The industrial business model has been to regard the costs of the first copy as up-front investment that is later recouped by controlling access to subsequent copies. This model is clearly broken, if everyone can make copies, or if the resulting price of the copies is so high, that people who need them, cannot afford it. As is the case with many drugs, particularly, but not only, in the developing world. In the case of the latter, the big idea is to move away from the patent system (which grants exclusivity as an incentive to invest in research) to a system of prices. As James Love and Tim Hubbard write in an extensive research paper:
Reforming the way we pay for R&D on new medicines involves a simple but powerful idea. Rather than give drug developers the exclusive rights to sell products, the government would award innovators money: large monetary “prizes” tied to the actual impact of the invention on improvements in health care outcomes that successful products actually deliver.
Source: James Love and Tim Hubbard. "The Big Idea: Prizes to Stimulate R&D for New Medicines." Chicago-Kent Law Review, Volume 82, Number 3 (2007)
Felix Oberholzer-Gee and Koleman Strumpf (Harvard Business School) have a paper out in which they examine whether file sharing (and thus a weaker copyright) does negatively impact on incentives to create, release and market cultural works. Their answer is no (to the extent that data is available). Both for empirical reasons (considerably more music, books, and films have been released in 2007 and in 2000) and theoretical reasons (substitutes vs complements; artistic motivations vs financial motivations).
NYT has a short note that a deal between Google/YouTube and Warner Brothers has been reached. Terms are not disclosed, but it ends the row that had forced Youtube to remove all WB contents from its site last December. According to Business Week:
"Google says the new deal allows Warner to sell ads against its own music videos, as well as user-generated videos that contain clips of its songs."
Yet another indication that the majors can force good deals for themselves, while all others, the indies, will see no money from Google. The media industry turns into a content oligopoly.
Copyright law works with the distinction between 'public' and 'private' whereas CreativeCommons introduced the distinction 'commercial' and 'non-commercial'. But since the beginning of CC in 2001, it has been unclear what these terms mean. Now, CC published a study that tries to come up with a common definition of the term, based on user feed-back. This will be used when it comes to developing the new version of the license (v.4.0), a multi-year process to be started in 2010.
Creative Commons noncommercial licenses include a definition of commercial use, which precludes use of rights granted for commercial purposes:
… in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.
The majority of respondents (87% of creators, 85% of users) replied that the definition was “essentially the same as” (43% of creators, 42% of users) or “different from but still compatible with” (44% of creators, 43% of users) theirs. Only 7% of creators and 11% of users replied that the term was “different from and incompatible with” their definition; 6% or creators and 4% of users replied “don’t know/not sure.” 74% and 77% of creators and users respectively think others share their definition and only 13% of creators and 11% of users wanted to change their definition after completing the questionnaire.