Copyright in new media
By Therese Fingleton and Jennifer Wilson
This chapter provides a brief overview of current discussions around copyright in new media and explores some new options for licensing and collecting income on copyrighted material. It is no substitute for legal or business advice.
This guide identifies three high-level career paths for professional creative writers: employed writers who generally do not retain any Intellectual Property (IP) or ownership of copyright; self-employed writers who usually retain their IP, sell the rights to a publisher or distributor who will then manage the sale of the writer’s work and pay them royalties, or retain some control over their copyright; and entrepreneurs who maintain full ownership of their IP and control over how to exploit their copyright. Each one has specific implications for IP ownership and copyright use and exploitation, but the cornerstones of the copyright system, which have been around for hundreds of years still apply. It is essential for all writers, whether they are working in new media or not, to understand that there are many ways to slice and dice the copyright pie; by territory, format, publishing platform, language etc and that they must seek professional legal advice to help them develop the best strategy for their work.
Intellectual Property covers the material expression of an intellectual thought or creative work and provides a forum to enforce the protection of an original idea. Copyright is a legal concept enacted by governments giving the creator exclusive rights for a limited time (generally between 50 and 100 years after their death) before it enters the public domain. Copyright is the means for managing the use and exploitation of IP. It is generally the ‘right to copy’ but also includes stipulations on who may adapt it and who may financially benefit from it and other related rights. It is an intellectual property form like a trademark or patent.
There is no system of registration for copyright protection in Australia. Copyright protection does not depend upon registration, publication, a copyright notice, or any other procedure—the protection is free and automatic. Unless material is published the copyright will run ad infinitum, however once material is published the term of copyright runs from the date of publication until a certain number of years after the creator’s death. This term varies depending on the material, e.g. books, photographs etc. You do not need to publish your work, put a copyright notice on it, or do anything else before your work is covered by copyright – the protection is free and automatic, from the time a work is first written down or recorded in some way. For example, as soon as a poem is written, or a song is recorded, it is protected. An author’s ownership of copyright can be indicated by a copyright notice, the symbol © (or the word ‘copyright’) and the name of the copyright owner, and the year of first publication.
Territoriality is a newer concept and involves the carving up of rights by territories, such as North America, UK and Europe. A publisher or distributor will typically own the rights to content in one or more territory and can ensure that only they collect revenue from those territories.
Depending on the type of content, one of the main changes likely is that writers of traditional media will want to negotiate royalty fees for their work to be published in digital format and distributed via digital channels. In the case of book authors, new terms will need to be negotiated on when the copyright reverts back to them, which up to now is usually when the book is deemed out of print. These issues are being negotiated between publishers, agents and authors (represented in Australia by bodies such as the Australian Society of Authors and Australian Writer’s Guild).
A notable example of changes in rights and recognition is the Writer’s Guild of America’s strike, which ran for almost five months in 2007–08, ‘being among other things based on writers’ demands for a large increase in pay for movies and television shows released on DVD, and for a bigger share of revenue for such work delivered over the Internet’. The strike was resolved with a general increase of writing fees and a raft of provisions specifically related to ‘Writing for Made-for New media’.
Traditional media formats (such as books) create their own enforcement environment. It can be time consuming and expensive to make copies and almost always involves a loss of quality. If the content is in digital form copying tends to be cheap, fast and maintains the same level of quality. The music industry has seen this first hand with the explosion of file sharing via peer-to-peer networks.
In the digital age territoriality is more difficult to enforce, as the Internet is not bound by the same geography as bookstores and movie theatres. However enforcement of copyright on the Internet is not impossible. If a user downloads material from a territory where they are not entitled to download the material, they are not immune from legal challenge, just because they were able to download it. Publishing companies now can and do serve subpoenas on Internet service provider (ISP) to obtain all relevant information of the offending user.
There are also implications for marketing and promotion of new book titles for example, which increasingly include online components, which audiences in different territories may have immediate access to, prior to the publication being available in that territory. So a book may be launched with an alternate reality game in the US before the book is realised in Australia, making it difficult to manage and measure promotion and release strategies.
The copyright of content published online is usually covered within standard agreements, such as the terms and conditions of a site. Writers need to be aware that if they contribute content on a platform where content is co-created, commonly they will not retain any copyright nor will they receive payment for the use of their work, unless of course this is the explicit aim of the site. Writers who invite user-generated content from their audience should also ensure they outline copyright implications for users.
Copyright infringement in new media
The most commonly used solution to problems enforcing copyright protection in the new media industry is Digital Rights Management (DRM). DRM is a series of rules and processes designed to limit access or usage of digital media or devices. It involves a range of techniques that use information about rights to manage and distribute copyright material and is based on the principle of controlling how content (including music, text, software and games) is shared, distributed, played, altered or copied.
The music, film and publishing industries have made many attempts to implement DRM and in some cases with limited success.
Digital Rights Management and music
The Net interprets censorship as damage and routes around it.
John Gilmore TIME International, 1993
Regardless of how quickly new methods arise for protecting the DRM of a piece of content, it seems that someone somewhere will place it on a server to be streamed to others without DRM. In the case of music and to the great frustration of that industry and many of its artists, sharing music illegally has become common, despite lawsuits that have resulted in heavy penalties for offenders. . The issue is no longer confined to the music industry. Currently, there are many services that will stream yet-to-be released music, first run movies (often the day before release) and TV shows that are still in pilot. These services try to keep at an arms length from the content being streamed in order to deny responsibility, yet they are increasingly easy to use and as the speed of the Internet increases, delays are negligible.
There are also some examples of how major music companies have sought the enforcement of their rights, which have not been well received. For example, in an attempt to stop the proliferation of pirated music, in 2005 Sony placed a DRM protection module (rootkit) on more than 50 of the CDs it released. When the CD was inserted into a computer to download the tracks, the software loaded a module into the computer operating system. Unfortunately, this module could be exploited by other more malicious programs and effectively created a ‘worm hole’ through which the computer could be attacked. The module was widely and vocally criticised as being ‘malware’ and Sony ended up recalling all CDs, reissuing them and ceasing the use of a rootkit to protect its content.
Does DRM work?
There is a widespread view that DRM does not work, whether in music or other forms of content. Eric Garland, CEO of Big Champagne, an online measuring service, pointed out in September 2007 that while iTunes may have downloaded an impressive three billion items of content in the four years from 2003–07, this hardly compares with the one billion items downloaded each month from peer-to-peer file sharing services (or 48 million items of content in the same time).There are also views that DRM can act as a red rag to a bull – encouraging people to steal content, which negatively impacts on sales:
The more DRM you put on the file, the more it’s likely to be pirated, because it’s almost like a challenge. At the same time, you are also at risk of having much worse sales in what is a very tiny, nascent bit of the market, because DRM makes the files clunky and annoying to download.
Sara Lloyd, Pan Macmillan, Head of Digital Publishing, 2007
As a result, increasingly companies are removing DRM from products. The view gaining traction is that if the purchase is simple and quick and the price it right, then it will be easier to buy products than to steal them. There is a natural conflict between protecting a work and therefore controlling and limiting its release; and generating audience by spreading the work as widely as possible. This conflict is not easily resolved through DRM and authors, musicians, filmmakers and other content creators are increasingly choosing to build audience and reputation as a way of protection of their copyrights, rather than the more difficult to maintain route of strict protection.
Keeping the ads
Online delivery of television is also moving to this model. While TV shows are increasingly the target of streaming, again moves are being made to simplify legal access at the right price of ‘free to the consumer’ (retaining ad support which is the funding model for the initial broadcast).
Channel Nine and ninemsn recently released free downloadable episodes of the current series of both Canal Road and Sea Patrol – without DRM. It was hoped that episodes would be watched and then sent to friends and communities, virally promoting the series.
In this case, the ‘rootkit’ element is a small application from a company called Hiro. Before being able to view the episode, it must be ‘decoded’ by a Hiro client application that is downloaded to the computer. The Hiro application updates dynamic advertising embedded in the video, thus allowing the video to be watched on demand for free, but still giving the ability to fast forward or skip through any of the video, except the ads. It essentially brings the TV-based ad model to an on-demand audience. Whether this will work or not is yet to be determined – that all the real content except the advertising can be skipped may suit the advertiser, but is less likely to suit to the viewer.
Creative Commons Australia
Creative Commons (CC) is a charitable institute that provides free tools that allow authors, scientists, artists and educators to easily mark their creative work with the freedoms they want it to carry. CC enables writers to place their copyright material in the public domain with certain restrictions, perhaps changing copyright terms from ‘all rights reserved’ to ‘some rights reserved’. An author can maintain ownership, but allow others to change, share, distribute, alter, add to or simply legally use. Increasingly CC is gaining traction as a way of recognising the rights of the creator while allowing varying levels of permissions to reuse and remix content.
The most crucial thing for any artist to remember when considering using Creative Commons is that they understand fully the implications of the options they choose. An artist must be certain that in choosing a CC license they are not restricting their options to make their living from their work. They must strike a balance between protecting their work and getting it out there. The chapters on Marketing and Distribution [link] and Business models [link] include further discussion on when it is appropriate to choose certain copyright options. Writers should always seek legal advice before making any decisions on which copyright option is best for their work.
CC is a system that tends to have keen advocates as well as vehement opposition, with few taking the middle ground. In reality, like any other system of protecting and exploiting copyright it usually comes down to fitness for purpose. Australia is very active in using CC licenses with many companies seeing this as a way to allow broader distribution of their content. Engage Media [http://www.engagemedia.org/] provides a website for videos about social justice and environmental issues in Australia, Southeast Asia and the Pacific, and encourages all their users to apply CC licenses to the content they upload to the site.
Creative Commons is also being used as a foundation on which to experiment with new craft forms, such as remixing literature. Remix My Lit [http://www.remixmylit.com/] encourages remixing of literary content, with writers using other writers, collaborative writing and mash-up writing.
Refer to the interview with Creative Commons Australia at the end of this chapter for more information. [link]
You have two choices, you try and stop it and then you’re plugging holes in the boat all the way, or you embrace it and the way to embrace as many content makers and owners have found over the years is to think about pricing, and think about the market. Pitch it at the market and make it more appealing, not only in a price sense, but also in the practicalities of doing it for the consumer so they don’t have to worry about infringing. That’s the test of copyright.
(Peter Banki, 2007)
Any digital content business needs to recognise that sustainability is a crucial factor. Sustainability includes the right to control the work through acknowledgement of the authorship (IP). While funding from arts or government agencies may assist a product or service to get off the ground, keeping it flying means knowing where the money is going to come from, and having an idea of how much is needed (and what it will be spent on).
Even if a service is launched as a ‘free’ service, it is important to know what steps are needed to start generating revenue and when these need to be implemented. In considering sustainability, the sustainability of the practitioner is of primary and critical importance and must be supported by adopting the copyright protection option that best suits the business model.
There are many other models and ways of making copyright work in this new environment. In fact they are too numerous to mention here and are changing all the time. So the best advice for any writer with IP they wish to protect, share, distribute and monetise is to keep up to date with what’s happening in the media and seek appropriate advice.
The writer's guide to making a digital living: choose your own adventure by Fingleton, T. Dena, C. & Wilson, J. for the Australia Council for the Arts is licensed under a Creative Commons Attribution-Non-Commercial-Share Alike 2.5 Australia License.
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