Concerning Intellectual Property: A Conversation Between Pat Aufderheide and Ellen Seiter (Part Five)

The current situation of fan fiction represents an interesting point for thinking about how change may be occurring. The fan community has deployed the concept of “transformative works” to justify their practice through advocacy groups such as the Organization for Transformative Works, where-as the industry seems internally to have decided that they cause more damage to their consumer relations by aggressively shutting down fan fiction so the number of cease-and-desists have slowed down. What do you see as the risks and benefits of these two ways of dealing with the conflicts we are discussing?

Pat: I love the Organization for Transformative Works. These people are heroes/heroines, and they are among the folks who have gone to the Copyright Tribunal to demand (and win!) DMCA exemptions. They made it possible for all makers of noncommercial videos for any reason to break encryption for fair use without penalty. They showcase great work, explore important issues in a scholarly way, and pave the way for others.


OK, where were we? So they are great examples and exemplars in the fan community. The industry response to me also seems very healthy, and an appropriate recognition of the simple fact that fair use exists (and works for the industry, hello Viacom and Colbert Report).

I think asserting rights is good, and recognizing rights is good.

Ellen: The problem with fan production on the internet is that they have encouraged everyone to offer up lots of free labor-- whether it’s fan fiction, or Facebook reporting on the last music video you liked, YouTube fan vids or new worlds (just heard about an entire one recreating Game of Thrones) on MindCraft. It’s all very fun and creative, but I am more worried about getting paying work for the next generation, and I don’t see that happening without speaking up for unions and guilds. And authors still need to be able to get a decent payment for published works. In the long term, I think we have to look at how even fan fiction is free publicity, and even if it’s a labor of love, we still want to consider the possibility of getting paid for fan work.

Certainly things are very much in flux on how the big studios and publishers handle these relationships to get the most out of fan word-of-mouth without alienating fans for shutting them down.

Many feel that the category of the “public domain” has been endangered as the terms covered by Copyright have expanded dramatically, yet as a consequence of this expansion, we are dealing with more and more “orphan works,” where there is no one any longer asserting ownership over these materials, yet artists and the public are not legally protected if they wish to reproduce, recirculate, or remix them? See for example some of the issues which Nina Paley has encountered in her use of classic jazz recordings in her film, Sita Sings the Blues. The archive plays an ever more central role in contemporary culture, which critic Simon Reynolds has argued, is entering a moment of “retromania.” What mechanisms might best allow us to address the contradictions between current legal efforts to extend copyright and current cultural trends which encourage artists and audiences alike to build on past works?

Pat: You’re right that archives are central to new creation, always have been, and will increasingly be important to people who never thought about them before, because of the growing capacity for DIY media creation. There’s the orphan works problem; there’s the “greedy generation” problem (private archives run by the descendants of the creators, requiring clearance and even approval of the final product for access); there’s the pricing problem (some archives and media holders don’t have prices acceptable to smaller-scale productions and certainly don’t have any way to deal with noncommercial work; people who want to pay, but can’t pay a lot, often find nobody will get back to them, even to refuse); and there’s the problem of just trying to find out where stuff is and who owns or controls it. And then of course there’s the fact that many social-media materials and digital-only works such as music that only appears on iTunes are disappearing without being archived anywhere.

Of these problems, orphan works was probably the most tractable. Win-win legislation was proposed and had a life before contention among the stakeholders (including photographers who became intransigent for fear someone would make an unlicensed use of a photograph for any purpose) made the deal fall apart. That’s a benchmark. If you can’t fix orphan works in Congress, you probably can’t get any more ambitious than that with that remedy, at this point in time.

Rick Prelinger showed us all a beautiful model in his Prelinger Archive, which is housed within the Internet Archive. He took his entire collection of audio-visual materials, a substantial portion of which is public domain but which he makes available easily, which had been his living for decades, and digitized it all at lower resolution. It’s all available for any noncommercial use you may make of it. (Film students use it every semester.) He sold the actual collection to Getty, which will sell you the material you want to use at market rates and at a high resolution (they return a portion of proceeds to Rick). Rick’s deal is generating more money for him than the previous form of his business did, and now customers do their own shopping and selection of materials without his help.

That’s an example of how you can be a good actor in archival space, while also monetizing your assets. It also depends on the (sometimes quixotic) kindness of strangers, since ‘90s dot-com rich guy and Internet philanthropist Brewster Kahle hosts the material online.

Other archives are struggling to find out how to accommodate the emergent environment’s opportunities without losing their current advantages, and they have not yet come up with something.

So users need to think about what they can do themselves, with material that may not be being offered conveniently to them. If they have independent access to the materials (say, a DVD of a movie or a download of a song), then they can explore fair use. You can see why fair use rises to the top of my list, given the paucity of options. If their uses would not be fair, or if there’s no independent access, they don’t have great remedies at the moment.

While I could imagine a lot of better ways to do things, they all have a “if pigs had wings they would fly” character, in this environment.

For the most part, you have both focused on the nature of intellectual property within the U.S. context, yet America has increasingly imposed its copyright regimes on the rest of the world, whether or not the core premises of those laws are consistent with their own cultural traditions or needs. What do you see as the transnational implications of the struggles we have been describing?

Ellen: I think the most worrying development on the horizon is the Trans-Pacific Partnership, a trade agreement that is supposed to reflect American priorities, i.e. copyright holders. The TPP is being developed with great secrecy, and it has not attracted the notice it should because the name sounds like it is about container shipments when in fact it is a radical change to copyright in signatory countries. The results as it is currently outlined would block access to open materials, permit “digital locks” on content like songs and TV shows, and put all kinds of restrictions to open access in place. It is more dangerous than SOPA and PIPA because it is being written by stakeholders, handled like an international trade agreement, and only large stakeholders are in on the drafting and revision process. See this recent post in Slate

Pat: I think that the international environment is very complex, and as Ellen points out the U.S. federal government has tied international trade issues to copyright policy and its enforcement in a way that has privileged monopoly rights holders against users’ interests, European interests have also been important in unbalancing copyright further.

“Harmonization,” as it’s called--getting more conformity across national copyright regimes--has so far been pretty much a story of expanding monopoly rights. It’s possible to imagine harmonization on the exceptions/limitations side. Certainly that’s what many activists called for around the ACTA (Anti-Counterfeiting Trade Agreement) treaty, which is about counterfeiting (including digital “piracy”). Large media interests had insisted on sweeping IP issues into a treaty that was supposed to be about hard goods, pushing for ever greater imbalance. The activists were very nearly excluded, but their protests contributed ultimately to rejection of ACTA. The rejection demonstrated, one hopes, some interest in Europe in the value of its exceptions and limitations.

At the same time, you see great interest internationally in changing copyright policy to expand user access to copyrighted material with clauses that look and sound a lot like fair use. In 2008, Israel actually imported US fair use lock, stock and barrel. The Australians introduced “flexible dealing,” which in some situations can be used in ways somewhat like fair use. In early July, 2012, the Canadian Supreme Court ruled on clutch of copyright cases, setting precedents that make Canadian fair dealing--a version of exemptions in which kinds of uses are itemized more precisely--look much more like U.S. fair use. David Cameron in the UK has suggested that the UK should import fair use, since it is so conducive to innovation and the UK economy needs innovation.

Meanwhile, all copyright regimes do have some exceptions and limitations on monopoly rights. Often, they have gone unchallenged and undefined. For instance, “right of quotation” is a rather vague and widely included exception, rarely litigated.

A highly significant feature of the international landscape, in practice, is that outside the US, copyright penalties do not include statutory damages. This is very important, because it damps down litigation. There is little to be gained by taking a copyright dispute through the courts, if the outcome is getting the user to pay the license fee--which would only be a tiny portion of the costs of litigation. In fact, copyright litigation in Europe is very sparse. So that makes it much easier for Europeans to use their exceptions and limitations, because the risk, in practice, is lower.

At the same time, it’s frustrating in Europe for creators, because they hope to cross national borders with their work, and each country has different copyright policy. No one has ever done a survey of where there is overlap in exceptions and limitations; that would be an extremely valuable service.

Since the U.S. is the largest market currently for creative works, many makers of work that is pitched internationally conform to U.S. copyright policy. This certainly is common among documentary filmmakers. In general, it seems to work pretty well


Editor's Note: I hope you have enjoyed this conversation between two extraordinary media scholars discussing the current state of intellectual property law. If you would like to see further discussion around this topic, let me put in a plug here for the upcoming Futures of Entertainment conference, to be held at MIT, on November 8-10. I will be participating there in a conversation about IP issues with Jonathon Taplin, the director of the Annenberg Innovation Lab, and with composer/musician T Bone Burnett. You can learn more and registered for the event here.


Pat Aufderheide is the Co-Director of the Center for Social Media and University Professor in the School of Communication at American University in Washington, D.C. She is the co-author with Peter Jaszi of Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago Press, July 2011), and author of, among others, Documentary: A Very Short Introduction (Oxford, 2007), The Daily Planet (University of Minnesota Press, 2000), and of Communications Policy in the Public Interest (Guilford Press, 1999). She heads the Fair Use and Free Speech research project at the Center, in conjunction with Prof. Peter Jaszi in American University's Washington College of Law.

Ellen Seiter holds the Nenno Endowed Chair in Television Studies at the USC School of Cinematic Arts where she teaches courses on television and new media history, theory and criticism in the Critical Studies Division. She is the author of The Internet Playground: Children's Access, Entertainment and Mis-Education (Peter Lang, 2005), Television and New Media Audiences (Oxford, 1999), Sold Separately: Children and Parents in Consumer Culture (Rutgers, 1993) and Remote Control; Television, Audiences and Cultural Power (Routledge, 1989). Her latest book, The Creative Artist's Legal Guide:Copyright, Trademark and Contracts in Film and Digital Media Production was published in 2012 by Yale University Press.