Mickey Mouse Protection
Musician Kathryn Rose speaks to Milena Popova about her music, copyright, creativity and orphan works
Image: CC-AT Flickr: hiimniko
There is a reason US copyright law is sometimes “affectionately” known as the Mickey Mouse Protection Act; there is a strange coincidence at play here – every time the copyright on Walt Disney’s early creations is about to expire, US copyright terms get magically extended by another few years. Currently, a work is under copyright both in the US and the UK for 70 years after the author’s death. This might make sense for Disney—at least someone is still making money from Walt’s creations—but for the vast majority of creative works out there, this lengthy copyright term is an issue.
Seventy years after the author’s death is a very long time to keep track of who owns the copyright on, say, a documentary photograph, a poem scribbled on the back of a receipt, a short film or a hastily composed piece of music. Often records are lost, and even living authors cannot be identified or contacted, so their works become “orphan works”. This essentially makes them off limits for subsequent creators: you cannot show, use or remix a copyrighted work without the author’s permission, and if you can’t get hold of the author, or don’t even know who they are, you have a problem.
I asked musician and composer, Kathryn Rose, what impact orphan works had on her work and creativity. Kathryn is a member of the trio Brigantia Consort, who play a range of tunes, from early music to folk and improvisation. Improvisation in particular is often inspired by other works: paintings, photographs, poems.
“We liked one poem (James Fenton's "Wind”) so much, we decided we'd like to use it in a concert we put on last summer, if we could get permission” said Kathryn. “We were thinking of printing it in the programme or maybe projecting it on a screen. The author is still alive, but when we contacted the rights company by e-mail, we didn't get any reply at all.”
In some cases there are other ways of contacting the rightsholder, but the administrative burden this puts on artists is not sustainable. When putting on a concert, the last thing you want to do is spend hours listening to the rights management company’s hold music.
“As the poem is available online,” Kathryn explained, “it's quite hard to see how much damage we would do by printing it in a concert programme. But existing copyright legislation says that if we did so, we would be breaking the law, and as a small ensemble we don't really want to take that risk, even though many others do.”
The trio were ultimately forced to find a different piece to use, which didn’t fit quite as well. Perhaps most unfortunate is the fact that it is a missed opportunity for creativity, rather than a financial loss. In effect, it becomes a case of cultural impoverishment.
Kathryn’s work as a composer is also affected by the lack of clarity around orphan works, particularly with texts she would like to set to music:
"Sometimes I'll read something and immediately start to imagine how it would sound sung, what harmonies I might use or what the melody is up to – but I'm not going to follow that up and actually do the work of composing something if I don't have permission.
"My experiences with trying to get permission have not exactly been encouraging, so I try not to look too hard at anything recent, and I'm essentially working with a time-lag of a century or more, as I wait for authors and artists to have died long enough ago that I can use their work."
It is that last comment—about working with a time lag—that should give you pause. As Professor James Boyle (@thepublicdomain), pointed out at last year’s ORGCon, we are the first generation in history who are cut off from their own culture. The extension of copyright terms that we've seen in the past few decades—from as little as 14 years to a retrospective extension to 70 years after the creator's death—has the effect that, barring a deliberate choice from the creator, our culture is not accessible to be built on by others within the same generation, or even several generations on. Yet, it is widely held that the majority of works exhaust their commercial viability after only five years, and most works which copyright term extensions have put beyond our reach, are actually orphan works.
Photographs and films degrading in archives, and cases of teachers not being able to use pictures in their class, are some other examples of where these flawed laws inhibit education and creativity.
There are, however, some great initiatives to make progress in the area of orphan works, championed for instance by the Electronic Frontier Foundation in the US, where the last attempt to legislate on the matter failed miserably in 2008. Let's hope ORG along with other organisations, artists, musicians and other rightsholders continue to promote and fight for the cause in both this country and Europe as a whole.
Milena is an economics & politics graduate, an IT manager, and a campaigner for digital rights, electoral reform and women's rights. She blogs at milenapopova.eu and tweets as @elmyra
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Vince:
Jan 27, 2011 at 12:04 PM
So, is it OK for me to repost this in my blog? Or do I have to murder you and wait for 70 years? ;)
Jim Killock:
Jan 27, 2011 at 12:38 PM
You can indeed repost it on your blog, subject to the “share-alike” condition of our CC-license :)
Vince Millett:
Jan 27, 2011 at 03:11 PM
reposted here: http://secretarchivesofthevatican.wordpress.com/2011/01/27/mickey-mouse-protection/
and here: http://secretarchives.tumblr.com/
Paul Ellis:
Jan 28, 2011 at 08:43 AM
This is important because it exposes the modern presumption that everything must be instant, and immediately available.
These two people witter on about how their creativity is stifled because James Fenton's agent can't be arsed to reply to a request to set one of is poems to music.
So? It clearly hasn't occurred to Kathryn Rose to commission some original text. Now *that* would be creative, wouldn't it? Or maybe she doesn't have a budget. Are we getting somewhere?
It's Fenton's IP. Perhaps he doesn't like music, or doesn't like this person's music, which might well not be to his taste, or even simply be pretentious crap. It's his decision.
It may be rude not to, but it isn't *compulsory* to reply to letters and requests. Do you always reply to every request from dumb individuals, companies and charities wanting to use your work for nothing, because what they do is "innovative", a "really good thing", or even, perhaps, "art"?
I thought not.
Kathryn Rose's problem is not one of copyright law. It's to do with business inefficiency, laziness, rudeness, or simple lack of interest on the part of the rights holder. No legislation has a right to make replying to such nonsense compulsory, and it CERTAINLY must not assign your IP to someone else or declare your work "orphan" just because you (or even worse, your agent) haven't replied to a letter or email that no-one can guarantee you have ever seen.
Peter Bradwell:
Jan 28, 2011 at 01:20 PM
It's a good point that rights holders do not have to permit every use of a work. However, I would think that if I was a rights management company, I would probably feel that it fell within my job description to reply to requests for the use of a work, even if it was to refuse permission. And the extent to which the process of clearing work for use, or not, is burdensome is an important question. A lack of clarity and unresponsiveness is not a trivial matter. And beyond that, there is a debate about control of a work and its reuse. Is it the case that in all instances the IP holder should be able to decide whether the use of a work is acceptable? This is about the moral rights of the author and its acceptable to debate the scope of this.
The question for me here is whether we think copyright, as it stands, does a good job of facilitating legitimate, socially or economically beneficial use of creative work. It's legitimate to ask - even if you don't think on balance it is so in this case - whether the way copyright licensing and clearing works is unnecessarily burdensome (due to 'business inefficiency, laziness, rudeness, or simple lack of interest'), and in being so whether it appropriately balances the right to reward and recognition with the ability to use and build upon work.
If it gets in the way of smaller scale uses such as this, then there's an argument to say that it is obstructive. Either it should be easier for people to find out whether they are allowed to use something, or there should be flexibility built in to allow for such uses that in all likelihood will have no commercial effect on the rights holder.
Kathryn:
Feb 02, 2011 at 09:00 PM
Paul,
Actually, it has occurred to me to commission original text, to pay for translations when the English translations I want to use are not yet public domain and indeed to write my own. What in the article made you think otherwise?
None of that changes the fact that sometimes I come across an existing text which is not yet in the public domain and am unable to use it because it is impractical or impossible for me to request permission, or in many cases even for me to find out how to request permission. The work I would write in those cases would not be the same as the work from texts I commission myself; one is not a substitute for the other.
I don't think everything should be instant and immediately available. I understand that writing poetry, like writing or performing music, can be a lot of work. I just don't think seventy years after the death of the creator is a reasonable length of time to wait. Why should intellectual property be protected for that long?
Paul Ellis:
Feb 02, 2011 at 10:08 PM
A famous song lyric has it that "you can't always get what you want". It's still in copyright.
If an existing text is not available to you to use, you'll simply have to use another or create a fresh one. Yes, the particular piece of music that you wished to write will turn out differently, or indeed may not not be written. So? Is this such a great loss to the world? Its successor may be better than your original conception.
Writing poetry can indeed be a lot of work. It can take a lifetime's work and experience to do well, as can any creative activity.
In the way of things, little creative IP is of significant cultural or economic value, but some is, and it can be impossible to predict which specific works become so. A creator's life's work can accrue very significant cultural and economic value. That value is bequeathed to his successors at his death - as is his physical property. The essential difference is that the IP loses all exclusive economic value to its rights holder 70 years after its creator's death, whereas his house retains its exclusive economic value to its owner until sold. There is no time limit placed upon it.
Why should this be? Why should some natural law dictate that I as inheritor of my grandfather's intellectual property should be stripped of its value by law, but equally should be allowed to retain exclusive ownership of the house he bequeathed to me?
"For the cultural benefit of Society", I hear you say. Fine words. What about Society's economic loss, in not being allowed to assume public ownership of my house?
Stop43.org.uk have proposed a scheme whereby the cultural value of IP might be made available to all. But that is all. Economic rights are separate from this. Why, when we are prepared to allow the public to culturally enrich themselves with the products of our life's work, should we be stripped of their residual (or resurgent) economic value after the passage of an arbitrary length of time?
Do the tough stuff. Be creative. Grow a spine and make your own entirely original work. We do. And be entitled to retain the value of that work and bequeath it to your sons and daughters, in the uncontroversial way physical property is so bequeathed.
Why do you wish to strip my successors of my estate?
To reply to the previous comment: yes, of course it should be easier for people to find out whether they are allowed to use something, and our proposal facilitates this. As to whether there should be flexibility built in to allow for such uses that in all likelihood will have no commercial effect on the rights holder: No.
The work may have been created in the manner of a diary as documentation of private thoughts, for the author personally to reflect upon, and intended to remain private and never published. I myself create exactly such work. The unauthorised publication or reuse of such work is a gross invasion of privacy, certainly within the author’s lifetime and probably for a period thereafter.
It may well be that the creator has firm opinions and, given the choice, would not sanction the use to which you wish to put his work. Indeed he may have strong moral or ethical objections to such use, for example an atheist's objection to the use of his work by a religious organisation in promotion of their beliefs.
Why do you wish to remove that choice from him? Answer me this, please.
Kathryn:
Feb 02, 2011 at 11:26 PM
Why should your successors benefit from work they did not do while the rest of us are unable to make use of it no matter how much labour we might contribute? I believe in this country there are taxes on inheritance over a certain amount, and that this is right (though there may be some justified haggling over the details). Your successors don't just magically get your house with no strings attached.
Why should the work I might do using an existing work not be rewarded economically? If I learn to play Bach and people are willing to pay for recordings of it why should I not be paid? Can you honestly say that if people were never paid to play Bach (because any economic gain had to go to his heirs) the world would be a culturally richer place?
Artists do not usually work in isolation. I don't know that there is such thing as an "entirely original" work. None of what I create is anything I can magically remove from the context of things I read, hear, watch; none of what I create is separate from what I have been taught. The creative work I do draws on a variety of influences; it is in many ways an extension of or a response to the work others have done. It may be wildly different in form and content but I am not pompous enough to imagine that because it is my "own" creation it exists in some sort of vacuum without reference to any other work. I hope that it will be useful enough that others will, in turn, respond to it; maybe they will, maybe they will not.
It may well be that someone will use some of my work in a way of which I would disapprove. This is a risk I take by publishing. As it happens I have no objections to atheists using my liturgical music if they so wish (yes, even setting different texts to my music), but if I did I suppose I'd just have to grow a spine and accept that it might happen. Since I release my work under a Creative Commons license, this is something I may well face during my lifetime. I have already made my choice. I don't wish to remove choice from others, but I would support a change of the context in which these decisions are made.
Similarly, if I want something to be entirely private I do have various options, for example a) not writing it down b) not speaking it aloud c) encrypting and password-protecting it d) writing it on paper and burning it afterward. How far I might go to protect that privacy depends on how I perceive the risk of unauthorised publication, both before and after my death. Do you oppose the use of personal letters or diaries by historians for research purposes? What about paintings, initially done for private collections, which are now in museums?
I'll agree that works being available immediately for unrestricted use by other artists might not be workable, but neither is your scenario of rights being handed down from generation to generation so that nothing ever passes into the public domain. I'm happy for creators to be rewarded for the work they do and I recognise that not everyone is happy to release control over their work while they are alive, but I don't see that those who work primarily with material in the public domain should have to rely on the generosity of successors -- who also might disagree strongly with the artist about appropriate uses for the work.
Paul Ellis:
Feb 03, 2011 at 12:19 AM
Please discriminate between "public domain" and "public eye". Work in the "public domain" is work for which the period of copyright has expired, or over which its author has formally and expressly revoked all rights. ALL of them.
The James Fenton poem to which you refer in your interview is in the public eye, not the public domain. You are free to use any public domain work for any purpose. Not so work in the public eye.
You ask why should my successors benefit from work they did not do while 'the rest of us' are unable to make use of it 'no matter how much labour we might contribute'.
And I say why should my daughter not benefit from owning her great-grandmother's wedding ring? The work is MINE. I created it, and it is for ME, not you or anyone else, to say what happens to it, just as if it were physical property. I might also regard my artwork as being finished, not requiring further labour to be contributed to it by others. I may or may not be right about that, from an aesthetic standpoint, but as the creator it is for me to determine when my work is finished and complete. Not you. I might find the labour others wish to contribute to be entirely unwelcome and its results unacceptable to me. That is my prerogitive.
All inheritors benefit from work we did not do. I have benefitted from my mother's modest financial bequest to me. Why should my successors not benefit from my IP bequest to them?
You say that my successors don't just magically get my house with no strings attached. And I say you are correct. But they DO get it. They own it, and it is theirs to further bequeath, or to sell. They pay tax on it, as they would on the accrued economic value of IP they own. This is fair and just.
You ask whether I can honestly say that if people were never paid to play Bach (because any economic gain had to go to his heirs) the world would be a culturally richer place. And I say not necessarily, but at least we are now having a discussion and not merely, unthinkingly, reinforcing the prevailing orthodoxy in your world. However I would add, from the perspective of a professional photographer, that we have made proposals to enable the general public to culturally benefit from exposure to our creative work.
You are right: artists do not work in isolation and all of us build on the discoveries and inventions of our antecedents. I refer here more to derived works and "mash-ups". Furthermore, by definition, unless it is created as a mechanical copy of another work and its IP consists solely of that of the work it copies, a photograph is by definition original, if not entirely in conception, then in its execution.
You say that it may well be that someone will use some of your work in a way of which you would disapprove, and that this is a risk you take by publishing. I say that is your choice, that you are free to make right now. But you have no right to make my choice for me, and I am NOT free under present circumstances to control the use of my work as I might wish.
You ask if I oppose the use of personal letters or diaries by historians for research purposes.
Under certain circumstances, yes. At what point does "research" become prurience? There are famous cases of well-known writers keeping private diaries never intended for publication, with instructions left in their wills that the diaries should be destroyed on their deaths. Sometimes their wishes have not been respected and the diaries posthumously published. Is this "research", voyeurism, profiteering, or gross invasion of privacy?
You say that you can agree that works being available immediately for unrestricted use by other artists might not be workable, but neither is my scenario of rights being handed down from generation to generation so that nothing ever passes into the public domain.
See my comment above concerning the distinction between "public domain" and "public eye".
You can gain cultural benefit from viewing and exploring my castle, without owning it or having any rights over it. What's the difference from IP?
Granted, private ownership of IP in perpetuity may well be problematic and I don't necessarily advocate it, but the questions I ask are serious and valid, and the assumptions I challenge require such challenge.