Wednesday, November 01, 2006

remixes and current copyright law

Report on Legal Scholars Damien O'Brien and Brian Fitzgerald ponder the question of remixes and mash-ups under current Australian copyright law. Story refers to this paper: O'Brien, Damien and Fitzgerald, Brian (2006) Mashups, remixes and copyright law. Internet Law Bulletin 9(2):pp. 17-19.

YouTubers cut and paste at their peril - Technology -

From the Sydney Morning Herald
YouTubers cut and paste at their peril

Asher Moses
October 30, 2006 - 11:32AM

The days of anything goes on YouTube are over. If you're planning on using copyrighted content as part of your own creative masterpiece, you're more or less inviting legal action, says a new research paper.

The paper, authored by Damien O'Brien and Brian Fitzgerald of Queensland University of Technology, identifies "remixes" and "mash-ups" of copyrighted content as a critical factor that's been overlooked by the Attorney-General, Philip Ruddock, in his new copyright reforms, announced on May 14.

"We now inhabit a 'remix culture', a culture which is dominated by amateur creators - creators who are no longer willing to be merely passive receptors of content," the paper reads.

"The challenge for creativity and the economy of digital content production is the extent to which mash-up and remix artists should be allowed to borrow."

YouTube serves more than 100 million short video clips per day, which includes many from amateur film producers who use copyrighted material in conjunction with their own creativity to develop something new. Permission from the original copyright owners is rarely sought.

One example cited in the paper is a video remix from December last year, where a Perth group called Dean Gray uploaded a remixed version of Green Day's album American Idiot - dubbed American Edit - to the internet.

"Within days they received a cease and desist letter on behalf of Warner Bros and Green Day," the paper reads.

"Dean Gray is like many of a new generation of amateur creators. They can sit at home in the bedroom and produce the most wonderful things. Most often they do not want money. Merely, they wish to share the finished product with the world."

The paper poses the question: should Dean Gray (and authors of other remixes) pay for a licence, even if their clip is non-commercial and doesn't necessarily rob Green Day of album sales?

Under current copyright laws, unless permission has been given in advance through an open content licence, such as Creative Commons, according to the law the answer is "yes".

"The exclusive rights of the copyright owner over acts such as reproduction/copying, communication, adaptation and performance - unless licensed openly - by their very nature reduce the ability to negotiate copyright material without permission," says the paper.

The copyright reforms announced by Mr Ruddock do little to remedy the issue, which means legal action could be taken against Australian mash-up and remix artists, says the paper.

"There appears to be no provision for any fair dealing exception for mash-ups or remixes which are highly transformative, non-commercial derivatives that do not compete with the primary market of the copyright owner."

The legal implications of this could be felt sooner rather than later, having already surfaced in the US. It appears copyright owners are far more confident in taking legal action against YouTube now it has the weight of Google's substantive cash reserves behind it.

On October 20, YouTube removed no less than 29,549 videos that used material from Japanese copyright holders without permission. Six days later the site removed 1000 sports videos (including Australian Open Tennis footage), while on Friday YouTube removed all clips taken from The Daily Show, The Colbert Report and South Park, at the request of Comedy Central.

About the Author

Brian Fitzgerald
Law School, Queensland University of Technology

Professor Brian Fitzgerald
BA (Griff) LLB (Hons) (QUT) BCL (Oxon.) LLM (Harv.) PhD (Griff)
Head of Law School, QUT Brisbane Australia

Brian is a well-known intellectual property and information technology lawyer. He has published articles on Law and the Internet in Australia, the United States, Europe, Nepal, India, Canada and Japan and his latest (co-authored) books are Cyberlaw: Cases and Materials on the Internet, Digital Intellectual Property and E Commerce (2002); Jurisdiction and the Internet (2004); Intellectual Property in Principle (2004). Brian is also Project Leader for the DEST funded Open Access to Knowledge Law Project OAK Law Project, looking at legal protocols for open access to the Australian research sector. His current projects include work on intellectual property issues across the areas of Copyright and the Creative Industries in China, Open Content Licensing and the Creative Commons, Free and Open Source Software, Research Use of Patents, Science Commons, e-Research, Licensing of Digital Entertainment and Anti-Circumvention Law. Brian is a Project Leader for Creative Commons in Australia. From 1998-2002 Brian was Head of the School of Law and Justice at Southern Cross University in New South Wales, Australia and in January 2002 was appointed as Head of the School of Law at QUT in Brisbane, Australia.

Damien O'Brien
Law School, Queensland University of Technology

Damien is a research assistant with the law school’s Intellectual Property: Knowledge, Culture and Economy research program at Queensland University of Technology. Damien holds a bachelor of laws and a graduate certificate in international studies (international relations). His research interests include copyright law, internet law and other associated technology law issues.

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