May 2009
Cultural Farming, Copyright and Fair Use-Dealings
By: Holland Wilde
Abstract
The purpose of this paper is to address liability concerns of appropriating U.S. media (and Internet) content, while living in Canada and pursuing critical research for a PhD at an Australian university. Where appropriation, remix and dissemination of common media content could be construed as both ethically and legally troublesome, this paper argues that alongside ongoing confusions, debates and fear surrounding copyright restrictions, existing international legal language actually protects and even encourages (although this has yet to be fully contested) Cultural Farming’s brand of research.
For contiguous on-going and in-depth discussion visit: Hearsay Culture.
Introduction
In a 1939 radio broadcast, Winston Churchill voiced his confusion with Russia’s national interest stance, "I cannot forecast to you the action of Russia. It is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key.” Today much the same could be said of the legal debates and findings surrounding media copyright ownership, intellectual property, and fair use-dealings. Being an American citizen living in Canada and studying in Australia by way of (U.S.) media appropriation research collated and distributed as a global web-based research project; the legal, ethical, and moral concerns regarding Cultural Farming and copyright appear acutely entangled. But here too, “perhaps there is a key”.
There is only imperfect legal standardization guiding international fair usage of copyrighted materials; indeed, there are still deeper confusions within individual countries. Any nuanced recap of existing copyright laws is well beyond the scope of this confirmation proposal, but to greatly simplify, media copyright laws were devised primarily as a value system to locate and ensure ownership (money) and authorship (distinction) protection. That is, copyright promotes certain kinds of scarcities, even during times of abundance, in order to control demand (profitability) for the copyrighted goods and for securing name recognition (brand/fame) of those creating these goods. At face, this holds enormous social benefits, but this stance also comes with sweeping chilling effects particularly for TV/media research. (1)
I will divide this section of my proposal into three parts (Legal, Ethical, and Value) in order to discuss fair use-dealings contestations and to construct my personal case for allowing me to not only continue my media appropriation/remix research, but to also fully and freely distribute these creative re-workings of copyrighted materials in Cultural Farming.
Legal Fair Use-Dealings
Law is an imperfect protection, at any level. In socially contested cases such as abortion, underage drinking, marijuana usage, gay marriage, etc., restrictive laws ultimately decide not what is proper or best for its subjects but instead represent re-jigged formulas for identifying how many of its subjects should be newly measured as illegal actors. That is, citizens will collectively act as they will; thus, either our laws guide normative citizen activity or laws become mere tasks of categorization. Likewise, we find, with copyright and fair use-dealings. (2)
On 1 January 1978 the United States began granting any original, expressive, creative work automatic protection by copyright “from the moment the work is created” and “fixed” for the first time, thus needing no formal registration with the U.S. Copyright Office. (3) However, when all new expressive works fall under this yawning grant, copyright becomes mere mechanics eliciting little ethical consideration with still less ability for effective, fair or legal enforcement. And there lays the rub. I argue that “automatic-copyright” as just the first of many blanket denials to appropriation has deeply muddled ethical conceptions and essential applications of fair usage-dealings in the U.S. and abroad. Certainly many forms of original expression do need protection; but all, immediately, in perpetuity, with little exception? It is here that laws governing fair appropriation stumble in practice and clarity. But rather than personally grapple with fine-grained legal nuance, I recently attended two conferences on these matters in order to help sort my own Cultural Farming research practice within the standard frameworks of the law:
Beyond Broadcast 2006: Reinventing Public Media in a Participatory Culture
Berkman Center for Internet & Society at Harvard Law School
May 12-13, 2006 (4)
Summary:
The goal of this convening is to create an opportunity for interaction between active participants in traditional public media and new participatory web-based efforts; to showcase and discuss the latest projects and models emerging faster than anyone can keep track of; and to cultivate a shared understanding of the potential and meaning of a renewed public media role.
Throughout we will explore the thesis that traditional public media - public broadcasting, cable access television, etc - face a unique opportunity to embrace new social media models - podcasting, blogs, social software, etc - and create a stronger and more vital public service.
In addition to presentations and discussions of the topics at hand, we intend to incorporate media presentations (screenings of video, film, audio, web), demos of new tools and models, and a gathering of engineers and technologists meeting together to discuss their work down to the code level.
And…
Ethics, Creativity and Copyright Conference
University of Calgary at Banff Centre for the Creative Arts
August 3-5, 2006 (5)
Summary:
What is the ethical status of copyright? Is it a human right or do levy systems better accomplish copyrights goals? Do the ethics of copyright change when material is digitized or delivered electronically? Do users have rights and, if so, can they be clearly defined? In an era of increasingly blurred boundaries is it possible to make the distinction between users and creators? Can the interests of users, creators and intermediaries be reconciled? Can the competing values of freedom of expression, privacy, safeguarding intellectual property and disseminating information somehow be reconciled?
In a culture which increasingly relies upon and values information and innovation, the outcome of these debates will have far reaching impact. Visual artists, writers, lawyers, musicians, politicians, academics and participants from across a broad social spectrum are invited to attend and participate in a far reaching series of discussions that hopes to shed light, make new connections, and raise the level of debate surrounding copyright issues.
In both cases, these conferences were inclusive and well attended with a majority of attendees highly positioned throughout the fields of law, education, and media -- in both public and private arenas. It should go without saying that broaching issues of copyright and fair use-dealings were high on most every agenda. Yet the overwhelming take-away for attendees of both conferences, including me, was that there was very little “black or white” conclusion gained. The consensus: Our current laws are simply ill-conceived in such a “gray” manner as to be toothless at worse, and at best mere suggestions for litigious argument. Even today this “gray-ness” lacks proper conclusion.
However, while challenging copyright infringement may ultimately prove to be most troublesome and/or expensive for some (for instance, Napster, BitTorrent, and other insouciants of high-volume appropriation), I argue this is exactly where “gray” fair use-dealings should fall. That is to say, where necessary, generalized public forms of appropriation must be weighed on case-by-case examinations of intention. For here intention must cut two ethical ways. There must be an explicitly stated necessity for exclusivity through copyright made by the producer, along with clear, purposeful and reasonable intention for appropriation stated by the (re)user. Simply demanding something be unusable through copyright should not make it necessarily so. Nor should fair usage-dealings be an open invitation or free pass for any manner of appropriation. Coupling today’s convulsively quick technological advancements with the legitimacy of law’s ponderous pace, one begins to see exactly where the ‘rubber hits the road’ as intimated by the two conference summaries above.
Internationally, while United States copyright protection may look and feel somewhat different to the Canada Digital Millennium Act (6), at bottom, differences between the two countries are closing. (7)
The Canadian Act is the result of an intense public and private campaign waged by the U.S. government to pressure Canada into following its much-criticized digital copyright model. The public campaign was obvious. U.S. ambassador to Canada David Wilkins was outspoken on the copyright issue, characterizing Canadian copyright law as the weakest in the G7 (despite the World Economic Forum ranking it ahead of the U.S.).
In Australia, too, there are micro-differences in copyright and fair use-dealings; yet broadly conceived, it is safe to claim there are far more overarching macro-similarities. Here, I personally contacted Dr. Brian Fitzgerald, Queensland University of Technology’s Law School Professor of Intellectual Property and Innovation explaining the nature of Cultural Farming research and my need for Australian copyright clarification. Through Dr. Fitzgerald (8), QUT’s Jessica Coates of Project Creative Commons Australia responded in depth.
Within her correspondence, Coates illuminated many Australian legal considerations for appropriation, mash-up, and remix, research. Indeed, Australia does not support the same broad appearance of the fair use-dealings (9) legislation existing in the United States. However, the actual prescribed conditions guiding both “Fair Use” and “Fair Dealings” read in parallel:
“Fair Use” in U.S.A. (10):
1. the purpose and character of the use, including whether such use is of commercial nature or
is for nonprofit educational purposes
2. the nature of the copyrighted work
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. the effect of the use upon the potential market for or value of the copyrighted work
“Fair Dealings” in Australia:
1. for research and study
2. for parody and satire
3. for criticism and review
4. for reporting the news
5. for providing legal advice
Coates goes on to say that my particular research falls least problematically into the first three Australian categories and suggests my media appropriation undertakings for the pursuit of a PhD in Australia “helps any fair dealings position”. However this, she states, is complicated by a need to “establish” that my appropriation, remix, and internet publication is an “essential part of the research” (although Coates does not include how this is to be done). Importantly, Coates continues:
“In order to be a fair dealing, the use must also be 'fair'. Some considerations courts are likely to take into account…:
- the amount of material you use - while short excerpts from television shows (eg 2 minutes) are likely to be permitted, longer extracts are less likely to be regarded as 'fair', unless it is necessary to make your point (eg in a parody work).
- how you use the material - posting the material online is less likely to be fair than, for example, using it at a conference or in a closed presentation. The fact that you're not making money from the use helps, but doesn't guarantee that it's 'fair'
- whether you are affecting the market for the work - whether your use might stop people from accessing the work legitimately (eg on the station's website)
- whether the material was otherwise available - whether you might have been able to get permission to use the work (for parody and satire works, permission is less likely to be granted, so the fair dealing is more likely to apply).”
In a forthcoming article for the Melbourne Arts Law Review entitled, “Where the bloody hell does parody fit in Australian copyright law?,” Nicolas Suzor (11) proffers a more complete contrast, albeit skewed primarily toward parody and satire (12), between the U.S. and Australian positions on fair use-dealings:
Fair use, unlike fair dealing, is an open ended exception to copyright infringement. The (fair use) doctrine allows people to make some socially beneficial (but usually low-value) uses of copyright material without obtaining a licence. Unlike fair dealing, fair use does not necessitate that the use fits into a narrow purposive category. Fair use allows the judiciary to flexibly excuse certain uses of copyright material as the circumstances require.
…When an exposure draft of the Copyright Amendment Bill 2006 [AU] was introduced, it contained a limited exception for parody and satire. In the form in which it was introduced, use of copyright material for parody and satire was to become non-infringing, but only if (a) the use amounted to a special case; (b) the use did not conflict with a normal exploitation of the subject matter; and (c) the use did not unreasonably prejudice the legitimate interests of the copyright owner. The wording of the exception was drawn from the requirements of the three-step test expressed in article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works.
…These new exceptions took effect on 11 December 2006. The wording of the exceptions as enacted is much simpler than the original proposal, and does not require someone relying on the defence to prove that their use was a special case, that it did not interfere with a normal exploitation of the source material, and that it did not unreasonably prejudice the legitimate interests of the copyright owner. Proving each of these elements would have imposed an undue burden on the would-be parodist, and the Australian Government has rightly interpreted its international obligations to categorically state that parody and satire are special cases which will automatically meet these requirements, as long as they are fair.
The new exceptions hopefully close the gap between serious and funny critiques in Australian copyright law, and provide some certainty to producers of parody and satire who previously could not be assured that their work would fall within the definition of criticism or review. Whether the changes achieve this goal will depend greatly upon future judicial interpretation of the legislation.
Here still, the legalities within both U.S. and Australian fair use-deals appear to hinge “upon future judicial interpretation of the legislation”, leaving much to the realm of contention. Indeed, in a QUT ePrints cover sheet (13), Damien O’Brian and Brian Fitzgerald broach the specific conditions relating to mash-ups, remixes and copyright law. Their assessment hints at the very frustrations and confusions found throughout this fast-moving and socially interwoven debate:
Generally, the courts consider what will amount to a substantial part by reference to its quality, as opposed to quantity and the importance the part taken bears in relation to the work as whole. However, in the context of mashups and remix this issue remains uncertain under the Copyright Act, with there being little judicial authority on the issue. It is most likely that mashups and remixes will have to be interpreted on a case by case basis to determine whether any infringement of copyright has occurred. The issue of moral rights, particularly the moral right of integrity and the notion of reasonableness also need to be considered.
… Interestingly, Stanford Law Professor Lawrence Lessig believes that for the first time in history creativity by default is subject to regulation because of two architectural features. First, cultural objects or products created digitally can be easily copied, and secondly, the default copyright law requires the permission of the owner. The result is that you need the permission of the copyright owner to engage in mashups or acts of remixing. Lessig believes that the key to mashups and remix is ‘education – not about framing or law – but rather what you can do with technology, and then the law will catch up’.
…The greatest challenge for us as lawyers is to understand how we can provide seamless access to knowledge, culture and creativity within the boundaries of law and economics. A mindset that requires us to control access “just because we can” loses sight of the very great potential the knowledge and creative economy promises to produce for Australia.
It had been hoped that the Attorney General’s proposals for reform of the law in this area would bring the law up to date with the technology and social practices of Australians by addressing and accommodating the innovation of mashing and remixing. However, the recent announcement of major copyright reforms by the Attorney-General would appear to be of little assistance for mashup and remix artists. There appears to be no provision for any fair dealing exception for mashups or remixes which are highly transformative, non-commercial derivatives that do not compete with the primary market of the copyright owner. However, it is interesting to
note the provision of a fair dealing exception for the purposes of parody or satire. The extent to which mashups or remixes may amount to parody or satire and thus be afforded the defence of fair dealing is something which will need to be examined in the future.
In yet another article in the Melbourne University Law Review, Michael Handler and David Rolph (14) are critical of the Australian Federal Court’s treatment of “fair dealing deficiencies” and characterize the outcome of the well-known Panel Case between Australian television channels Nine and Ten as “passing up” a “rare and valuable opportunity to clarify the operation of the fair dealing defences” from an “analogous and problematic failure to articulate sound principles”:
VI CONCLUSION
The decision of the Full Federal Court in The Panel Case represents the highest appellate consideration of fair dealing defences in Australian copyright law. Prior to this case, the leading Australian authorities were the single-instance decisions of Beaumont J in De Garis and Hill J in Nine v ABC. It has been demonstrated that both Conti J and the Full Court’s judgments in The Panel Case fail to provide any real guidance as to the relevant principles governing the fair dealing defences and their proper application to future cases. Indeed, the articulation of principles and their subsequent application to the facts in The Panel Case have been shown to be highly problematic.
Fair dealing defences play an important role in copyright law, given that they purport to allow non-copyright owners to use copyright material for socially useful purposes. The consequence of The Panel Case is that the scope and operation of these defences in Australia are more uncertain than ever. Non-copyright owners are now less likely to use copyright material, even if they consider that the use is for legally sanctioned purposes. It is hoped that our suggestions go some way to restoring the vitality of the fair dealing provisions diminished by The Panel Case. It is further hoped, given Ten’s decision not to appeal the Full Court’s findings on fair dealing, that an appellate court will, sooner rather than later, attempt to introduce some clarity and certainty into this important but neglected area of Australian copyright law.
In this legal selection, I have tried to sketch the turbid, convoluted picture of existing copyright statutes in regards to appropriation and remix. One can see how the lack of clear legal guidance can cast a chilling effect across support for alternative, yet essential, research practices. However, it should be remembered, it is doubtful any litigation to date in these matters has truly hinged on matters other than “monetization”. Fear of high litigation costs and perceived displaced profit make most fair use-dealings an overwhelming matter of money over appropriation ethics. Thus, monetary ‘chilling effects’, which reside outside fulsome engagements with socially moral or ethical arguments inhibits all appropriation.
Ethical Fair Use-Dealings
Byzantine legal issues of fair use-dealings are hard enough to negotiate. But when coupled with moral and ethical considerations, discussions of appropriation (particularly for remix) can inflame even the most rational arguments. Is there a supportable ethical position for the practice of appropriation within current legal insufficiencies? I believe there is. Read broadly, the intent of international copyright laws unequivocally allow for the literal existence of the brand of appropriation and remix research found in Cultural Farming. However, rather than resurrect meta-justification for appropriation it is best, as stated above, to focus specifically on my (i.e., case-by-case) fair use-dealings. I will now attempt to draw my own purposeful research practice and state how appropriation is a vital, inevitable and long-awaited opportunity of discovery for media theory.
For sixty years television (my primary research subject) has been woven into the very fabric of everyday life. Indeed, within today’s ubiquitous ‘camera/screen culture’, most all forms of media are struggling mightily to become a kind of television. At every turn manufactured moving images saturate our environment (personally, socially, culturally, politically, ecologically); thus situating current media communication practice as a crucial, pivotal object of critical study. This seeming familiarity, however, masks profound opacity: the forest for the trees. How can we after all these years of watching not know everything about TV when ‘expert’ analysis seems equally ubiquitous? From a Cultural Farming perspective, maybe it is because the preponderance of prior television scholarship has been directed at TV rather than to, with, or through TV.
My ethical stance to appropriation stems from questioning television’s essential claim to communication. Until now these past six decades of television have been mere one-way broadcast – not two-way, reciprocal, give-and-take communication. This simple fact, of course, can and has been extruded and challenged throughout populist scholarship in regards to consumption-as-production (Jenkins 2006, 1992; Hartley 2005, 2008; Grossberg, et al 1998; Rushkoff 1994, 1995, 1999). However in terms of appropriation, this is a good starting point to ethical appropriation discussion.
If television is truly ubiquitous can’t it then be considered, ecologically perhaps, an essential environment in which we (i.e., North Americans) live? Certainly we observe much more interest, concern and husbandry of media than any extended to our ‘real’ world. When, and at what point, are citizens allowed to move beyond consumption to freely refashion these abundant ‘natural resources’? For it is in this abundance, above all, where the vitality of appropriation and its unique value to critical research resides. To wit, media appropriation is unique in it’s potential for ‘real-time’ cultural critique and importantly in its ability to proffer TV’s own ‘lens’ (actual screen content) as fodder for new techniques of theoretical/ethnographical observation.
Orthogonally, consider how media is generally obtained. I have purchased several hundreds of computers and TVs during my private life and professional careers. I have spent tens of thousands of dollars on peripheral media-reproduction equipment. I have spent almost as much on unending subscription fees to receive media rentals, broadband connections, and basic cable or satellite TV services. Moreover, I have paid dearly with my time watching it all -- with its embedded wall-to-wall promotion. At what point am I allowed to assume some form of ‘ownership’ of the content received from these outlays? As written elsewhere in Cultural Farming, when tools of appropriation are provided at every turn to citizens, can these same tool providers feign disdain when appropriation occurs? Simply put, rigid prohibition (excessive copyright) of common usage (appropriation) of common communication (raw materials) denies true two-way communication (creative industry).
In 2004, while auditing a post-graduate level methods research class at the University of Massachusetts, Amherst, I submitted a video critique that questioned two authors’ sweeping interpretations of a series of nationally televised beer commercials (15). To do this, however, was extraordinarily difficult. There was no easy way for me to aggregate TV content into digital usability. My interests and available tools at the time held little concern for capturing my mediated world. Thus, I had to literally sit and wait while pointing a Hi8 camera at my TV screen, record at exactly the right moment, and then dump that digital-tape content onto a Macintosh computer in order to capture the content necessary to make my critical case. What took about 80 hours of video work to find and assemble in 2004 would take less than 5 hours today in 2009 with today’s freely offered appropriation technologies.
While 2004 may seem fairly recent in terms of academic research, when compared to today’s social media explosion, it is already light years away in terms of technological advancement. For instance, the rudiments of Google, MySpace, TiVo, and iMovie were only launched in 1999; Facebook in 2004; YouTube in 2005. Each of these now ubiquitous technologies took only about two years to ‘catch on’. Couple this with the introduction of still more and ever-cheaper appropriation devices like PVR’s , DVR’s, cell phones, iTunes, thumb drives, RAM/cache, software, etc., and we begin to appreciate the breathtaking potential for equally progressive forms of research. However, while technology explodes around us, much essential media research, confounded by legal permission (McLeod 2007), remains oddly frozen inhibiting vast potentials for ‘writing culture’ (Clifford & Marcus 1986) with these new digital devices. Is it because media is simply too fast a moving target that sanctioning appropriation founders as viable research? Or is it that ‘writing television’ with media potentially threatens much of what has gone before, i.e., the scholarship of ‘reading television’ research? Regardless, from my perspective, it is the blanket denial of appropriation for research, which borders on unethical behavior.
Specifically, however, I must characterize my own ethical research methodologies. I have stated many times throughout Cultural Farming my desire “to talk back to television using its own language and content.” Appropriation thus provides a simple means to study inside my subject rather than around it or after it. Importantly, and in parallel to the above legal considerations, Cultural Farming clearly outlines an ethical and political appropriation stance. All Cultural Farming content:
1. is appropriated via typical public broadcast venues
2. is reconstructed for review and critique purposes only
3. is distributed for educational purposes only
4. is remade in low-resolution unfit for typical rebroadcast purposes
5. contains no for-profit or monetization leverage
6. contains no Cultural Farming ownership marks
7. contains primarily POST-mediated human subjects (16)
The irony here, of course, is that my unique, and somewhat cavalier, posture toward potential legal ramifications regarding my personal appropriation research is, in part, the result of my success and handsome fees garnered during my professional television design career. I have an uncommon position and insight into my ex-cohort and their industry practices -- and them me. My entire professional television career contained public overtones of exhortation (provocation) to self-reflexive and educational (emancipatory) praxis (the production of production) -- for all of broadcast television is fundamentally constructed through appropriation and remix (17). Few others in academia or media are better positioned than I to risk ‘life and limb’ by advancing the discussion of public and critical fair use-dealings. Then again, it is equally safe to say both institutions -- academia and television -- ultimately care less about my well-being or fair use-dealings than any potential litigious concerns brought to their doorstep.
Value of Fair Use-Dealings
After sketching appropriation legalities and ethical ‘gray-ness’, we have yet to uncover any Churchillian ‘enigmatic key’ to unlock final resolution regarding Cultural Farming praxis (although I emphatically maintain fair use-dealing rights). Can ‘value’ be claimed through appropriation? If so, how might it differ from or contribute ‘added value’ to the realm of existing knowledge? I argue, as does much of anthro-socio-cultural study that the Achillies Heel of qualitative research lays within subjective interpretation. Whenever the subject/object of study cannot ‘speak’ for itself something vital is lost in translation. As Elvis Costello (ND) once quipped, “Writing about music is like singing about architecture.” Today new technologies are encouraging citizens to examine TV exactly in this first-person way: as TV speaks for itself. The importance of appropriation for employing the least amount of translation in qualitative media research should not be understated. However, there are still greater a priori concerns to television scholarship.
John Hartley’s (2008:1-9) lament in Television Truths succinctly, importantly, paints the clear predicaments of television studies. I would however up the ante where Hartley builds his historical account of the marginalization of TV studies to include that no academic program proffers any comprehensive or systematic critical study of television production (18) -- that is, how production is produced. Indeed, I was most fortunate, as few others, to have engaged TV production via a theory/praxis terminal degree within the deep-set traditions of theatre design (Jones 1941; Oenslager 1975). At bottom, Cultural Farming’s raison d'être is indeed this critical meditation on TV production, and importantly also to perform these meditations in an Aristotelian manner by standing in the public forum, facing fellow citizenry, and speaking rhetorically about matters dear to hand (19). Without question, intentional, ethical appropriation and distribution of media research embodies the conceptual essence of democracy as participatory citizenship. Thus, somewhere within today’s industry-judiciary-educational-citizenship mixture lays a possible ‘key’ to the sanctioning of appropriation research through fair use-dealings: for fairness is balanced on a fulcrum of purposeful intention.
Considering the above I ask: Is it naïve to consider academia a champion of higher, clearer, fairer standards? Likewise, can Queensland University of Technology, a university distinguished by its appeal for partnership with industry and practice-led research afford to idly watch ever-newer technological advances sweep across its own campuses yet turn a blind-eye when these same technologies are applied for ground-breaking creative industry research? In today’s world can any institution afford only to valorize traditional forms and styles of writing culture (print and citation), yet consider video appropriation research insufficient for or incapable of academic rigor, review and publication? This section argues the answers are no. Moreover, while my particular personal claims to fair use-dealings may read as ethical vulgarization, my legal/ethical/value wrangle for civic appropriation can be construed from a globalization/privatization perspective as well. At bottom, all earth-given, public, natural resources belong to citizens in the regions of its origin. Oceans, riverways, airways, minerals, etc. belong to the people. The broadcast spectrum should be similarly construed. Spectrum usage is for public good – not in exclusion for private gain.
In exactly the same way we can now observe international efforts for privatization of public water systems as failed policy for both (local) producer and (distant) consumer (20), we can now conclude that the exclusive utilization of our “fattest pipes’ of communication spectrum cultivates “vast wastelands” (Minnow 1961) of scarcity (21) where local communities face growing obstructions to availability, access, pricing and quality control to communication (22). There are real dangers for all parties when communication resources such as appropriation, creation and dissemination of public information are denied to the citizens of regions of origin. In other words, not only should citizens be allowed certain legal rights to appropriating purchased corporatized TV content/resources; these same corporations (which are oddly granted much the same legal rights as individual citizens) (23) must provide reasonable full and fair use access throughout the broadcast spectrum to citizens in return. This equitableness has yet to happen.
Indeed, what is fair, legal or ethical in auctioning public spectrum resources to corporations only to have them exploit both privilege and public with these very same resources? This is where the rule of law can create difference for fairer balance. Even though auctioning public spectrum for private use is a widespread and relatively cut-and-dry legal transaction; admitting privileges of appropriation could be a first step in garnering full and equal access information communication essential to full and equal civic participation. One way to (surreally) imagine this argument from an opposite/binary position might be for citizens to demand individual surcharges to every broadcast-spectrum industry because their radio waves pass through our bodies, our homes and our possessions on their way to other private transmitters. This paradoxical conception of ‘drayage toll’ (reflecting Harold Innis’s [2003] for communication as transportation) could be the legal/logical permissive to appropriate and repurpose any and all content as it passes through various regional dissemination points. Put another way, if you don’t want content to be free to the public, don’t distribute it ‘freely’ throughout the public domain. Or better still, if you want to ensure the public sees your broadcast content, give it to them. To do otherwise is to promote closed unbalanced circuits of communication with accelerating exclusive access, high-pricing, and debased quality.
While I have attempted to draw my claim for sanctioning video appropriation in my doctoral research within an unbalanced ‘gray’ world of ethics, there is a dual/duel purpose to this section of my proposal. I plead for QUT to not only ‘bless’ Cultural Farming research, but to assist my claim to appropriation by publicly advancing the university’s truly unique position in and between the ideals of creative industry and become at least a safe harbor, if not a leading light, in the challenge to clarify this legal-ethical-value debate. For without full support from all parties fair use-dealings become a mere parody of itself; as Lawrence Lessig (1999) trenchantly chides, “Fair use (today) is the freedom to hire a lawyer”. Being the ‘first domino’ takes courageous leadership. Who better than me to appropriate? Who better than QUT, “a university for the real world”, to stand foursquare behind intentionally ethical fair use-dealings and clearly, publicly sanction Cultural Farming’s brand of practice-based in media appropriation research? “…perhaps there is a key.”
Notes
3 http://www.copyright.gov/help/faq/faq-general.html
4 http://cyber.law.harvard.edu/node/4242
5 http://madisonian.net/conferences/2006/08/03/ethics-creativity-and-copyright-at-calgary-2/
6 http://www.innovationlaw.org/projects/dcr/reform/dmca.htm
7 Michael Geist: Canada Research Chair in Internet and E-commerce Law at the University of Ottawa,
Faculty of Law.
8 Fitzgerald kindly forwarded by email to QUT’s Jessica Coates, Project Manager, Creative Commons
Australia. Coates provided clarification and case studies.
9 Where U.S. claims the legal term “Fair Use”, Australia claims “Fair Dealings”.
10 From U.S. Copyright Office web site: http://www.copyright.gov/fls/fl102.html
11 Kindly forwarded by QUT’s Jessica Coates, Project Manager, Creative Commons Australia.
12 While Cultural Farming can clearly be read as parody and satire, I prefer to categorize it as critical
ethnographic surrealism – even above criticism or review.
13 http://eprints.qut.edu.au/4239/
14 (2003). “‘A real pea souper:’: The Panel Case and the development of the fair dealing defences to
copyright infringement in Australia”. http://www.austlii.edu.au/au/journals/MULR/2003/15.html
15 http://www.culturalfarming.com/Ethnography/Whassup.html
16 All active participation of human subjects is ethically subsumed during a subjects initial mediation on
television -- before video appropriation. Cultural Farming research rarely includes ‘first person’ mediation.
In these rare cases, human subjects willfully perform in public spaces. That said, there are no
disclaimers, “Warning: This program may contain images or faces of Aboriginal natives who have died.”
17 I would argue here that the television industry could also be examined as possibly the greatest offender of
the same restrictive laws it aims against public appropriation.
18 Besides pragmatic interest, even classic television/media textbooks (Bordwell & Thompson 2008; Butler
2002; Lester 2006; Newcomb 2007; Zettl 2005, 2007) all gloss, if broached at all, any implication,
necessity and application of critical examinations into media production.
19 By this I mean public, free, and global dissemination of Cultural Farming through publication on the
internet.
20 Blue Gold: World Water Wars DVD:
http://www.shoppbs.org/sm-pbs-buy-the-blue-gold-world-water-wars-dvd-on-http--pi-3477137.html
21 The World According to Monsanto DVD:
http://www.amazon.com/World-According-Monsanto-NON-USA-FORMAT/dp/B001VYO7CQ
22 For example with a la carte pricing and anti net neutrality.
23 The Corporation DVD: http://en.wikipedia.org/wiki/The_Corporation
References
Clifford, J., & Marcus, G. (1986). Writing culture: The poetics and politics of ethnography. Berkeley, CA: University of California Press.
Geist, Michael. (2008). How the U.S. got its Canadian copyright bill. Retrieved 2 May 2009 from TheStar.com. Website: http://209.85.173.132/search?q=cache:vvWQl9aNsaMJ:www.thestar.com/sciencetech/article/443867+difference,+US,+canadian,+copyright+law&cd=9&hl=en&ct=clnk&gl=ca
Handler, M. & Rolph, D. (2003). A real pea souper: The Panel Case and the development of the fair dealing defences to copyright infringement in Australia. Melbourne University law Review. Retrieved 30 April 2009. From website: http://www.austlii.edu.au/au/journals/MULR/2003/15.html
Hartley, John. (2008). Television truths. Malden, MA: Blackwell Publishing.
Hartley, John. (Ed.) (2005). Creative industries. Malden, MA: Blackwell Publishing.
Hartley, John. (1982). Understanding news. London: Methuen & Co.
Innis, Harold A.. (2003). The bias of communication. Toronto: University of Toronto Press.
Jenkins, Henry. (2006). Convergence culture: Where old and new media collide. New York: New York University Press.
Jenkins, Henry. (1992). Textual poachers: Television fans & participatory culture. New York: Routledge.
Jones, Robert Edmond. (1941). The Dramatic imagination. New York: Theatre Arts Books.
Lessig, Lawrence. (1999). Code: And other laws of cyberspace. New York: Basic Books.
McLeod, Kembrew. (2007). Freedom of expression: Resistance and repression in the age of intellectual property. Minneapolis: University of Minnesota.
Minnow, Newton. (1961). `Vast Wasteland' speech holds true after all these years. (Edited) National Association of Broadcasters: Reprinted in Chicago Tribune . (24 April 2001).
O'Brien, Damien and Fitzgerald, Brian (2006) Mashups, remixes and copyright law.
Internet Law Bulletin 9(2):pp. 17-19.
Oenslager, Donald. (1975). Stage design. New York: Viking Press.
Rushkoff, Douglas. (1994). Media Virus!: Hidden agendas in popular culture. New York: Ballantine Books.
Rushkoff, D. (1995). Cyberia: Life in the Trenches of Hyperspace. San Francisco, CA: Harper San Francisco.
Rushkoff, Douglas. (1999). Coercion: Why we listen to what "they" say. New York: Riverhead.
Suzor, Nicolas. (forthcoming). Where the bloody hell does parody fit Australian law? Melbourne University law Review. Retrieved 30 April 2009. From personal email file.