Month: July 2017

Making Sense of Copyright


I recall cassette machines and tapes as a kid. My step-father was a techy and a music aficionado. He set up a multi-cassette recording station and used it to copy the preacher’s Sunday sermon. I guess the idea was that lots of folks would want to hear, or buy the sermon at another time (sardonically I recall this preacher having a personality slightly more tepid than mayonnaise, so demand was weak). I used the system to rip pirated copies of the Surf Punks cassettes.

Probably, if I had purchased the original cassettes, I could have justified making myself a single copy and holding the original as an archive only to be copied again when my first wore out. Nah, it was the point of punk music to steal it.

My recollection of 1976 in no way involves the copyright act. I recall bicentennial quarters and the televised July 4th celebrations, most of which occurred on the East Coast. Being born and bred in Southern California the places and events all seemed otherworldly and surreal. Perhaps the only point of resonance was the parade of “tall ships”  and that because of similar events in the San Diego harbor.

The point of this legislation was two-fold, first to get our laws in line with international laws, and second to extend the duration of copyright protection beyond the life of the author protecting their work even into the lives of their grandchildren. The History of Copyright website mentions opposition to this legislation. Unfortunately, either it was not very compelling opposition or the representation of it here is understated:

Opposition came from radio broadcasters, record manufactures, producers of “talking machines,” two patent attorneys and a publisher because life plus 50 years would make it hard to determine when a work goes into the public domain and who owns it until it does.  Opponents also argued that a longer term would not just benefit the author’s immediate heirs, but great grandchildren as well, and that by lengthening the term, it would prevent “cheap editions” of work from coming out for an additional 30 years.

Interestingly, support came from powerful professional organizations.

The Author’s League of America supported compliance with international standards because authors who produce at an early age might not be protected in their later years and because their return was small.  The Committee on Publications for the Mother Church supported it because it would extend protection for the works of Mary Baker Eddy.  The American Library Association supported life plus 30 years as it would be enough to take care of the author’s family.  Music and film industry interest also supported a longer term and international conformity.

Weirdly, this sounds like the same argument made for the original Statue of Anne legislation in 1710 and that law benefited printers/publishers.  Perhaps the subsequent turn here is that copyright owners (maybe not the author) have an extended monopoly. Weirdly, stimulating innovation, creativity, collaboration, is not a deciding factor.  ElectricLit runs some interesting numbers for us:

Here’s an example: Writer von Author writes My Big Literary Novel and Big Publishing House Press pays her $50,000 dollars as an advance. The cover price of the book is $20 dollars and her royalty rate is 10%. (In reality it would be more like a ~$25 hardcover at 10–15% followed by a ~$15 paperback at 7–10%, but I’m simplifying.) If the publisher sells 10,000 copies of the book, the total sales are $200,000 and the author has earned $20,000 from royalties… except that she was already paid $50,000 so she is actually at negative $30,000. She doesn’t have to pay anyone back either though, the publisher takes the loss. However, if the book sells 25,000 copies, then the author would earn back her advance and at copy twenty-five thousand and one, she would start earning $2 per book sold.

The Steve Laube Agency offers us the insight that the average book sells 10,000 copies. And that rather bluntly puts the lie to either earning back the advance or earning royalties. Accordingly, it seems that copyright only protects a tiny percentage of creative works and it is an open question whether the author retains that copyright and is benefited by 75 years of protection.

I graduated from college in 1988. And the Berne Implementation Act of 1988 which brought US legislation into alignment with twenty-four other countries predominately through standardizing, notice, filing and registration requirements, was passed unnoticed by myself, at least at the time. Instead, I was distracted by moving seven times,  three times across the country and once the length of the west coast. I took the GRE’s and applied to graduate schools. I worked as a roofer in Maine. I got tired of being teased about my education and to shut the crew up carried three bundles of shingles up a ladder to a third story roof — it worked.

However, I have to imagine that copyright owners made millions of dollars based on the fine tuning of US law to be in closer alignment with many other nations.

In 1992, I was between attempts at graduate school. I was married. I was working in the library at an elite liberal arts college in northern New England. However, I had, because of work, begun to be aware of copyright.  Librarians care intensely about the topic, and in higher education also about “fair use, ” and so this was a topic increasingly in my thoughts at least as a professional.

This act provided relief to copyright holders by automatically renewing a work produced between 1964 and 1977.

Congress acted to protect authors from losing their works “irretrievably into the public domain” based on an innocent failure to comply with the formalities of filing of renewal applications.  The Copyright Office, publishers, authors, academics and others “criticized the registration renewal provision for being burdensome and unfair to thousands of copyright holders and their heirs.”  Congress believed that the public domain “should not be enlarged because of an author’s error in recordkeeping, or any other innocent failure to comply with overly technical formalities in the copyright law,”  particularly when such works are “the sole source of income for authors and their families.”  Further, Congress understood that “the domestic laws of most developed countries contain very few formalities conditioning copyright protection” and that such formalities are “antithetical to the major international treaty on copyright relations, the Berne Convention.”

Again that oddly benevolent but inherently deceitful language about who the law(s) benefits. Here I am circling back to the economic realities of book sales and publisher/author business model.

My daughter was born in 1994. Accordingly, my life took a radical turn. I was working on, and nearly completed my Master’s degree. Later that year I changed jobs (awful choice). The Uruguay Round Agreements Act of 1994 was well covered in the news and so even at the time, I was aware of it. Though I was not aware of the impact, t had on foreign authors in US markets.

Section 514 of the URAA restored copyright protection for the works of foreign authors whose works had fallen into the public domain due to non-compliance of the formalities of US copyright law.

In 1998, much in my life had changed. I was again working in a library at the same elite liberal-arts college. My son, second born, was two-years-old, I had been to North Dakota and back in an attempt to start a Ph.D. program, alas, Grand Forks flooded, and then burned and turned out to be no place to relocate a young family. I was, a freshly minted homeowner, and, we had survived the Ice Storm of 1998.  I was writing HTML for the libraries website and we were aware of the exploding online environment of the internet.

The Copyright Term Extension Act was signed into law and provided even longer terms of protection.

The CTEA implemented the EC directive in the US and was signed into law by President Clinton on October 28, 1998.  It extended the terms of copyright protection by 20 years, so the pre-1978 term of 75 years from the date of publication became 95 years and the term after 1978 of life of the author plus 50 years became 70 years.

The constitutional challenge to the CTEA foreshadows our own struggle with copyright in the online environment.

The CTEA was later challenged as unconstitutional in a lawsuit filed by intellectual property lawyers supported by “rights” activist groups like the Electronic Freedom Foundation.  After seeing an article in the New York Times about Eric Eldred shutting down his online free books website “because the CTEA passed,”

Content creators online have changed the models of production and distribution so radically, and so quickly, that copyright law has been far outstripped. And yet, we see little will among legislators to take on that problem. In part, this inertia reflects that status quo stakeholders are still making plenty of money. And actually, so are content creators who are operating with new entrepreneurial models.  So for the moment there is no will to wrestle with the complexity of an update.

IP, Friend or Foe?

Bobby Munson:
You know my rule: no bud before 9AM.

Jax:
I don’t have that rule.

In drafting this essay, I want to return to my intellectual roots and to think about intellectual property from an outlaw perspective. In the following, I aim to explore thinking about indigenous intellectual property rights. Of course, from an emic perspective, these are not outlaw perspectives rather they are reasonable and formative. But for us here and now at this post-colonial moment, “outlaw” is perhaps not overstated.

Indigenous intellectual property

Alaska Native Knowledge Network Cultural and Intellectual Property Rights

Declaration on the rights of indigenous peoples

The scope of these resources precludes anymore than a survey of issues and concepts. However, from the outset, I felt that the conversations were talking past each other. The economics and legal structure of Western societies take for granted and from a privileged site, much that indigenous cultures do not or which is so alien that they cannot.

Nation states across the world have experienced difficulties reconciling local indigenous laws and cultural norms with a predominantly western legal system, in many cases leaving indigenous peoples’ individual and communal intellectual property rights largely unprotected.[6] Therefore, international bodies such as the United Nations have become involved in the issue,[2] making more specific declarations that intellectual property also includes cultural property such as historical sites, artefacts, designs, ceremonies, and performing arts in addition to artwork and literature.[7]    Wikipedia        

Three resolutions from the 2007 UN declaration address what we are calling “intellectual property.” These are articles 11, 24, and 31. Article 11 provides broad protections for cultural knowledge and identity. Article 24 focuses on and protects traditional medicinal practices. Article 31 speaks most directly to areas easily recognizable in Western discussions of “intellectual property.” “They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.” It is precisely this phrasing that demonstrates the slippage between the conversations.

Intellectual property rights include patents, copyright, industrial design rights, trademarks, plant variety rights, trade dress, geographical indications,[15] and in some jurisdictions trade secrets. There are also more specialized or derived varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in the US) and supplementary protection certificates for pharmaceutical products (after expiry of a patent protecting them) and database rights (in European law). Wikipedia

There appear to be a few points of contact, copyright, design rights, and plant variety rights seem to map most closely across the two conversations. But this far I have reviewed Western documents or representations.  Turning to the Alaska Native Knowledge Network what can we learn about these three facets of intellectual property from a native perspective? The Guidelines for Respecting Cultural Knowledge offers a definition of two terms that may inform a sense of copyright.

Sensitive cultural information: Cultural information or details that are delicate in nature and not meant to be shared with the general public or those outside of that cultural group.

Public information: Information, which no longer belongs to an individual or group, but has become public property and the general public is allowed to use it. Informants and/or members of a cultural group have a right to understand the use that will be made of their contributions before cultural knowledge is shared and allowed to become public information.

Public information seems to entail traces of the “usufruct” still but also traces of anti-colonialism. Usufruct here emphasizing communal ownership and individual use rights.  Sensitive information seems as well to bear stamps of traditional values and cultural abuse. If we recall the spiral logic of elders transmission of knowledge then perhaps sensitive knowledge is at the tightest coil of the spiral and only revealed after a long effort.  But, I do think this might be different from “secret information.” Secrets would seem to privilege individual rights in a way too contradictory to be situated on the same continuum as usufruct. Certainly, “secrets” may be an appropriate reaction to colonialism, but that is different from the sensitive or powerful knowledge that is transmitted after demonstrated maturity and to a proven cultural knowledge bearer. Certainly, this is very different from copyright it does not give ownership to an individual and their heirs. It does make cultural transmission and preservation possible, but it is aimed at knowledge transfer. There is an interesting parallel to some Western tropes about intellecutal property where analogies between physical and intellectual property seem to be made as well.

Returning to the Guidelines for Respecting Cultural Knowledge we see two points for Elders regarding copyright and intellectual property. Certainly, this is a clear charge of responsibility and probably an onerous burden as well.

Seek out information on ways to protect intellectual property rights and retain copyright authority over all local knowledge that is being shared with others for documentation purposes.

Carefully review contracts and release forms to determine who controls the distribution of any publications and associated royalties.

The second section of this statement which seems to have bearing on both intellectual property and cultural innovation is aimed at Artists and Illustrators. Ten points are raised for these creators (and here I am assuming these are aimed at culture members) I present only the four points that are relevant to my topic.

Make it a practice to insure that all cultural content has been acquired under informed consent and has been reviewed for accuracy and appropriateness by knowledgeable local people representative of the culture in question.

Arrange for copyright authority and royalties to be retained or shared by the person or community from which the cultural information originated, and follow local protocols for its approval and distribution.

Insure controlled access for sensitive cultural information that has not been explicitly authorized for general distribution.

Carefully explain the intent and use when obtaining permission to take photographs or videos, and make it clear in publication whether they have been staged as a re-enactment or represent actual events.

Informed consent and intent and use loom large as responsibilities these content creators may have. As I mentioned already controlled access is another important aspect and one that is unclear in the online environment. The final point, however, stops short, it does not entertain the possibility of cultural innovation nor does it anticipate the thorny questions of ownership. While these statements are actually quite helpful I have to wonder how universally shared they are among cultural members. How frequently are conversations had how much training is provided?

Turning to “design rights” I immediately think of form line art in Southeast Alaska. This 1998 article from the Juneau Empire “Whose art?” is quite an impressive representation of the complexity of viewpoints. Even among the native voices, there is little consistency, however near the end of the article one artist mentions treating art for commercial purposes differently from art for cultural uses. Another theme is a call for artists to pay their dues to gain the vocabulary of the style. But, if we turn time back a bit we recall that this art signaled clans, and moites, it connected people with legend and natural environment, and it was very much owned. Perhaps not in an equivalent way to Wester ownership, yet, access and expression were not, shall we say, public information even within the same culture.

Turning to the Intellectual Property Rights and Indigenous Peoples Rights and Obligations we see an interesting discussion of both “design rights” and “plant variety rights” though in a way that sets our Western thinking on end. This paper is written by a Maori and is focused on their concerns. The author outlines in detail The Wai262 Claim to Indigenous Flora and Fauna and Cultural and Intellectual Heritage Rights and Obligations. 

2.1 The claim relates to te tino rangatiratanga o te Iwi Maori in respect of indigenous flora and fauna me o ratou taonga katoa (and all their treasures) including but not limited to matauranga, whakairo, waahi tapu, biodiversity, genetics, Maori symbols and designs and their use and development and associated indigenous, cultural and customary heritage rights in relation to such taonga. Taongaí in this claim refers to all elements of a tribal groupsí estate, both material and non-material, tangible and intangible.

In this, we see that the conceptual architecture of Western notions of intellectual property as irrelevant to this statement. For the Maori plants and animals and the knowledge of them is bound together with symbols and designs. Interestingly, group estate involves both tangible property and intangible, though it is less clear what metaphors inform or exchange meaning between these categories. I am very hesitant to map concepts from the Maori onto Alaska Native cultures. But for the sake of this assignment, I will hold this point as an artifice that moves the conversation along, but which might be falsified and modified.

I want to explore several case studies of Alaska Native participation on YouTube as a way to test and refine these notions and to explore them on the internet. I wonder if the web, Creative Commons, and other modern, Western technology values mask these indigenous values completely or if the outlaw elements survive and display. I offer:

I Sing. You Dance. — Bryon Nicholai

 X̱ʼunei Lance Twitchell

Tlingit Music–Past, Present and Future: Ed Littlefield at TEDxSitka

nativejazzlive

We have several different projects going on at these channels, and curiously some overlap in moments of cultural fusion.

Bryon is a young Yup’ik. He has been creating content focused on his traditional singing, dancing, and drumming. He has been recognized in the Alaska and nationally by President Obama as a rising leader. His channel content is changing as he matures and has gone to college. We see him fusing Yup’ik singing with hip-hop rhythms and techniques and also vlogging some of his recent travels.

Lance Twitchell is an assistant professor of Alaska Native Languages at the University of Southeast Alaska. His channel is a rich resource for Tlingit language preservation and instruction. His channel archives 70 recordings of fluent elders speaking. As well he offers extensive content on language instruction.

Ed Littlefield’s TED talk and the nativejazzlive channel push the question of cultural innovation into the conversation. Ed’s thinking about it is more full blown perhaps then Bryon’s, but we see them both exploring in this space. Accordingly, we need to ask questions about the cultural, intellectual property at moments of cultural innovation.

First, we have to assume that all of the knowledge we see on these channels falls into the realm of “public information.” Perhaps, if a content creator were to distribute “sensitive information” that could be challenged through the various social media elements on the channel, comments, and dislikes, perhaps as well some sort of reporting (though likely not successfully copyright).

To begin with how does copyright play out on these channels? I did not check every single video on all these channels, however, everyone that I did showed a “standard youtube license” the terms of that are linked here. Additionally, content creators may select Creative Commons CC-BY license which is an open content license.  I did not find any such licenses on these channels, but again, I did not check every single video.  Turning to our indigenous sense of “copyright” I do not see in the “show more” or about sections of video or channel description any discussion of group ownership and individual use as might arise from a sense of indigenous “copyright.” Both Byron’s and Lance’s channels have strong elements of cultural preservation in their content. This kind of intellectual property would seem to fall into a more traditional approach to intellectual property. Additionally, we do not know how any of these content creators have set their YouTube monetization, however, clearly, that is a concern that arises in the Guidelines for Respecting Cultural Knowledge.

When we enter into cultural innovation fusion of Yup’ik singing and hip-hop or the native jazz fusion that Ed Littlefield explores this opens up a variety of questions about intellectual property. How does the innovation contribute to cultural continuity and coherence? Or, is it more individualistic then the tradition can bear? Personally, I think that this kind of innovation is extremely important for keeping young people involved in their cultures. I hazard as well that it is a way for traditional cultures to be vibrant and relevant.  But it is a very complicated question as well. On one hand, we see climate change rendering vast swaths of vocabulary and specialized knowledge irrelevant (think about sea ice) and yet there still exists many points of relevance and creativity for cultural participants to sustain language, aesthetic and values. 

The videos on the nativejazzlive channel frequently tell a genealogy or site the traditional source of inspiration for the song. So there is still a sense of group ownership that precedes the innovation. The channel builds in the “live” or performance aspect into its name and that likewise seems a gesture towards a shared ownership as well. However, in the end, I cannot see a real self-consciousness about either traditional intellectual property nor a coherent participation in Western intellectual property protections in these examples. Rather, it seems that this YouTube content is being generated in a kind of vacuum and the default of “standard license” is filling the void. While it makes sense that indigenous content creators would be struggling with the same questions about intellectual property that all content creators are struggling with I suspect that perhaps more is at stake for them.