Lets Talk About Fanfiction

Where does fanfiction fit in with the copyright laws on remixing, parody and transformative works?

I've a confession to make. Every once in a while, I write fanfiction. No, I'm not going to link to it.

For the uninitiated, fanfiction is basically taking an existing universe (a book or TV show, say) and using the setting and characters to write new stories. It's a great way of engaging with a work you love. It's a great way of learning to write fiction as it eliminates some of the variables: if you don't have to worry about world building and (to an extent) characterisation, you can focus, for instance, on plot and pacing. There are many different types of fanfiction. You didn't like the ending of that book? Write a different one. Really liked that minor character and want to know what happened to them? Make it up! In the interests of full disclosure, I should also admit that a substantial proportion of fanfiction is of an erotic nature, often involving same-sex couples. Generally male same-sex couples. And it's predominantly written by women. Go figure. (Yes, this is the type I write.)

Anyway, fanfiction is one of the dark secrets of the internet. Fans write it and read it and lovingly curate archives of the stuff. Yet no one talks about it. Each piece is tagged with a huge disclaimer about not owning the universe, or the characters, or making any money from them.

Creators and rights-holders - it is worth remembering that those are different groups - have an ambiguous relationship with the concept. The studio behind the Twilight films clearly doesn't want anyone engaging with their work ever. Computer game makers Bioware actually run fanfiction competitions. Some writers quietly tolerate what the fans do to their creations, others threaten to sue. If you hang around fandom long enough, you learn who's who. George R. R. Martin apparently really loathes fanfiction which is why all the places to find stuff based on his works are locked. Marion Zimmer Bradley used to actively encourage it and publish anthologies of fans' works set in her Darkover universe - until she decided to lock it down completely as a result of a disagreement with a fan over a story idea. Babylon 5 creator J. Michael Straczynski, a pioneer of online fan engagement, tolerated fanfiction but steered well clear of it after he had to shelve an episode idea for several years because a fan had had a similar idea. Estates like the Tolkien Estate tend to be particularly precious about their property.

I don't have the data, but I would be willing to bet good money that fandom is themajor source of derivative and remixed creative works. Yet digital rights campaigners tend to steer well clear of the subject - even those of us who have a foot in each camp. We will happily wax lyrical over the right to parody or a general framework for remixing stuff, but we don't touch fanfiction with a barge pole. This leaves fans in a perpetual state of uncertainty and dread that a creator or rights-holder will come after them one of these days.

Now, I must admit my knowledge of the legal framework that limits fanfiction is shaky. I had always assumed it was copyright - largely because of aforementioned disclaimers - but a discussion at ORGcon quickly clarified that in the vast majority of cases it probably isn't. Copyright protects "expression", not ideas, settings or characters. US law has a concept of derivative works which covers things like film adaptations and translations but is at best murky on transformative works. I don't know if UK law has an equivalent. In most cases it is more likely to be infringement of trademarks rather than copyright that is the sticking point. An informed legal opinion on the matter would be appreciated.

I suspect until digital rights campaigners - or a brave fan - take on the case, we will remain in a legal grey area. This will not stop fanfiction - nothing stops fanfiction. But I suspect it would be nice for fans to know that their labour of love isn't going to land them in huge trouble one day. Anyone fancy a test case?


[A huge thank-you to @drcabl3 for organising the Unconference session at ORGcon which prompted this post.]



The Year of the Future

What will the internet be like in the future? It looks like 2012 is set to be a critical year for internet development.

If there's one thing everyone seemed to agree on last week at Nominet's annual Internet policy conference, it's that this year, 2012, is a crucial one in the development of the Internet.

The discussion had two purposes. One is to feed into Nominet's policy-making as the body in charge of .uk, in which capacity it's currently grappling with questions such as how to respond to law enforcement demands to disappear domains. The other, which is the kind of exercise net.wars particularly enjoys and that was pioneered at the Computers, Freedom, and Privacy conference (next one spring 2013, in Washington, DC), is to peer into the future and try to prepare for it.

Vint Cerf, now Google's Chief Internet Evangelist, outlined some of that future, saying that this year, 2012, will see more dramatic changes to the Internet than anything since 1983. He had a list:

- The deployment of better authentication in the form of DNSSec;

- New certification regimes to limit damage in the event of more cases like 2011's Diginotar hack;

- internationalized domain names;

- The expansion of new generic top-level domains;

- The switch to IPv6 Internet addressing, which happens on June 6;

- Smart grids;

- The Internet of things: cars, light bulbs, surfboards (!), and anything else that can be turned into a sensor by implanting an RFID chip.

Cerf paused to throw in an update on his long-running project the interplanetary Internet he's been thinking about since 1998 (TXT).

"It's like living in a science fiction novel," he said yesterday as he explained about overcoming intense network lag by using high-density laser pulses. The really cool bit: repurposing space craft whose scientific missions have been completed to become part of the interplanetary backbone. Not space junk: network nodes-in-waiting.

The contrast to Ed Vaizey, the minister for culture, communications and the creative industries at the Department of Culture, Media, and Sport, couldn't have been more marked. He summed up the Internet's governance problem as the "three Ps": pornography, privacy, and piracy. It's nice rhetorical alliteration, but desperately narrow. Vaizey's characterization of 2012 as a critical year rests on the need to consider the UK's platform for the upcoming Internet Governance Forum leading to 2014's World Information Technology Forum. When Vaizey talks about regulating with a "light touch", does he mean the same things we do?

I usually place the beginning of the who-governs-the-Internet argument at 1997, the first time the engineers met rebellion when they made a technical decision (revamping the domain name system). Until then, if the pioneers had an enemy it was governments, memorably warned off by John Perry Barlow's 1996 Declaration of the Independence of Cyberspace. After 1997, it was no longer possible to ignore the new classes of stakeholders, commercial interests and consumers.

I'm old enough as a Netizen – I've been online for more than 20 years – to find it hard to believe that the Internet Governance Forum and its offshoots do much to change the course of the Internet's development: while they're talking, Google's self-drive cars rack up 200,000 miles on San Francisco's busy streets with just one accident (the car was rear-ended; not their fault) and Facebook sucks in 800 million users (if it were a country, it would be the world's third most populous nation).

But someone has to take on the job. It would be morally wrong for governments, banks, and retailers to push us all to transact with them online if they cannot promise some level of service and security for at least those parts of the Internet that they control. And let's face it: most people expect their governments to step in if they're defrauded and criminal activity is taking place, offline or on, which is why I thought Barlow's declaration absurd at the time

Richard Allan, director of public policy for Facebook EMEA – or should we call him Lord Facebook? – had a third reason why 2012 is a critical year: at the heart of the Internet Governance Forum, he said, is the question of how to handle the mismatch between global Internet services and the cultural and regulatory expectations that nations and individuals bring with them as they travel in cyberspace. In Allan's analogy, the Internet is a collection of off-shore islands like Iceland's Surtsey, which has been left untouched to develop its own ecosystem.

Should there be international standards imposed on such sites so that all users know what to expect? Such a scheme would overcome the Balkanization problem that erupts when sites present a different face to each nation's users and the censorship problem of blocking sites considered inappropriate in a given country. But if that's the way it goes, will nations be content to aggregate the most open standards or insist on the most closed, lowest-common-denominator ones?

I'm not sure this is a choice that can be made in any single year – they were asking this same question at CFP in 1994 – but if this is truly the year in which it's made, then yes, 2012 is a critical year in the development of the Internet.

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Image: byhdzimmermannunder CC BY-NC-SA 2.0

The ghost of cash

Speaking of money... in a digital context

"It's not enough to speak well of digital money," Geronimo Emili said on Wednesday. "You must also speak negatively of cash." Emili has a pretty legitimate gripe. In his home country, Italy, 30 percent of the economy is black and the gap between the amount of tax the government collects and the amount it's actually owed is €180 billion. Ouch.

This sets off a bit of inverted nationalist competition between him and the Greek lawyer Maria Giannakaki, there to explain a draft Greek law mandating direct payment of VAT from merchants' tills to eliminate fraud: which country is worse? Emili is sure it's Italy.

"We invented banks," he said. "But we love cash." Italy's cash habit costs the country €10 billion a year - and 40 percent of Europe's bank robberies.

This exchange took place at this year's Digital Money Forum, an annual event that pulls together people interested in everything from the latest mobile technology to the history of Anglo-Saxon coinage. Their shared common interest: what makes money work? If you, like most of this group, want to see physical cash eliminated, this is the key question.

Why Anglo-Saxon coinage? Rory Naismith explains that the 8th century began the shift from valuing coins merely for their metal content and assigning them a premium for their official status. It was the beginning of the abstraction of money: coins, paper, the elimination of the gold standard, numbers in cyberspace. Now, people like Emili and this event's convenor, David Birch, argue it's time to accept money's fully abstract nature and admit the truth: it's a collective hallucination, a "promise of a promise".

These are not just the ravings of hungry technology vendors: Birch, Emili, and others argue that the costs of cash fall disproportionately on the world's poor, and that cash is the key vector for crime and tax evasion. Our impressions of the costs are distorted because the costs of electronic payments, credit cards, and mobile wallets are transparent, while cash is free at the point of use.

When I say to Birch that eliminating cash also means eliminating the ability to transact anonymously, he says, "That's a different conversation." But it isn't, if eliminating crime and tax evasion are your drivers. In the two days only Bitcoin offers anonymity, but it's doomed to its niche market, for whatever reason. (I think it's too complicated; Dutch financial historian Simon Lelieveldt says it will fail because it has no central bank.)

I pause to be annoyed by the claim that cash is filthy and spreads disease. This is Microsoft-level FUD, and not worthy of smart people claiming to want to benefit the poor and eliminate crime. In fact, I got riled enough to offer to lick any currency (or coins; I'm not proud) presented. I performed as promised on a fiver and a Danish note. And you know, they *kept* that money?

In 1680, says Birch, "Pre-industrial money was failing to serve an industrial revolution." Now, he is convinced, "We are in the early part of the post-industrial revolution, and we're shoehorning industrial money in to fit it. It can't last." This is pretty much what John Perry Barlow said about copyright in 1993, and he was certainly right.

But is Birch right? What kind of medium is cash? Is it a medium of exchange, like newspapers, trading stored value instead of information, or is it a format, like video tape? If it's the former, why shouldn't cash survive, even if only as a niche market? Media rarely die altogether - but formats come and go with such speed that even the more extreme predictions at this event - such as Sandra Alzetta, who said that her company expects half its transactions to be mobile by 2020 - seem quite modest. Her company is Visa International, by the way.

I'd say cash is a medium of exchange, and today's coins and notes are its format. Past formats have included shells, feathers, gold coins, and goats; what about a format for tomorrow that printed or minted on demand, at ATMs? I ask the owner of the grocery shop around the corner if his life would be better if cash were eliminated, and he shrugs no. "I'd still have to go out and get the stuff."

What's needed is low-cost alternatives that fit in cultural contexts. Lydia Howland, whose organization IDEO works to create human-centered solutions to poverty, finds the same needs in parts of Britain that exist in countries like Kenya, where M-Pesa is succeeding in bringing access to banking and remote payments to people who have never had access to financial services before.

"Poor people are concerned about privacy," she said on Wednesday. "But they have so much anonymity in their lives that they pay a premium for every financial service." Also, because they do so much offline, there is little understanding of how they work or live. "We need to create a society where a much bigger base has a voice."

During a break, I try to sketch the characteristics of a perfect payment mechanism: convenient; transparent to the user; universally accepted; universally accessible and usable; resistant to tracking, theft, counterfeiting, and malware; and hard to steal on a large scale. We aren't there yet.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Image: Nobody gets me Bitcoins! by zcopley: CC BY-SA 2.0

The OrgCon Times

Excited about OrgCon? We are! Here's the low down on the programme of speakers and debates:

Cory Doctorow: The coming war on general purpose computing: The copyright wars were only the first level (10am Old Cinema)

Cory is an award-winning science fiction author and journalist, he is the co-editor of of Boing Boing and co-founder of Open Rights Group, he is also the former European Director of the Electronic Frontier Foundation. Cory has published some of his novels under a Creative Commons license and believes that copyright laws should be liberalised to allow sharing of digital media. After all the speeches on copyright he now addresses the coming war on general purpose computing, which he believes will be even more of an affront to technology use than the copyright 'skirmish.' Very excited to hear this talk.

Wendy Seltzer: SOPA/PIPA : How we won (11.10 am Old Cinema)

Wendy is a fellow at Yale Law School, she is the founder of Chilling Effects and she is on the Board of Directors at the TOR Project. Chilling Effects was a project aimed at studying and combating the ungrounded legal threats that chill activity on the internet (http://wendy.seltzer.org) earlier this year Wendy Seltzer and like-minded people in the US successfully campaigned and stopped laws SOPA and PIPA getting passed in the US.

Discussion: Should Digital Archives be open? (11:10 Room 2)

Debate with: Sam Leon; Nick Poole, Chief Executive at the Collections Trust and Ben White, Head of Intellectual Property, British Library. Is access to information a priviledge or a right?

Have warrant will extradite: Copyright Cops go international(11.10 Room 3)

Graham Smith is a partner at Bird and Bird and author of 'Internet Law and Regulation' which has been described as a 'bible' for internet law. We are excited to hear Graham's talk on the issue of extradition and the international nature of copyright law as this is such a complicated issue and it is critical for internet users understanding.

Communications Bill 1: Copyright Enforcement (12:10 Old Cinema) Theo Bertram, UK Policy Manager, Google; Jeff Lynn, Chairman of Coadec; Bill Thompson, technology critic. A further more detailed look at the complex Communications Bill.

Stop Government Snooping: Why CCDP is a bad idea (12:10 Room 1)

Gus Hosein and Eric King from Privacy International speak on the fight against survellience and privacy invasion.  

Open Data: economic asset or key ingredient for modern democracy? Debate(12:10 Room 3)

Heather Brooke; Tim Davies; Chris Taggart, Open Corporates; Rufus Pollock, Director, OFKN. Very interesting debate on data access and ownership, I'm interested to see where this may head in the future. 

How secure is the anonymisation of public data? (2pm old cinema)

Professor Ross Anderson is a Cambridge Professor of Security engineering. A controversial prof, Ross Anderson has done a lot of public policy work on digital rights issues such as privacy, ID cards and internet censorship. He chairs the Foundation for Information Policy Research.

Communications Bill 2: Censorship or Child Protection? Debate (2pm Room 1)

Professor Sonia Livingstone, Head of the Department of Media and Communications, LSE; Naureen Khan, NSPCC; Lucio Godoy, Head of Digital Engagement, O2; Tim Davies, independent consultant focused on civic engagement and social technology; Martin Brown (chair). This fascinating legal area on the line between protection and censorship will be debated here by experts.

Hargreaves: Where next for copyright reform? (2pm Room 2)

Professor Charlotte Waelde, Head of Law School, University of Exeter; Emily Goodhand (@copyrightgirl), University of Reading; Saskia Wazkel, Consumer Focus; Becky Hogge (chair, former exec. director of Open Rights, and author of barefoot in to cyberspace). Experts discuss the hopes for the future of copyright reform. 

Defeating ACTA (3pm Room 1)

Jeremie Zimmerman from La Quadrature du Net and  Erik Hjalmar Josefsson, advisor to the Greens/EFA group in the European Parliament on Internet Policy. La Quadrature du Net translates to 'Squaring the Net' and they are a French digital rights group at the forefront of the anti-ACTA campaign. Get ready for some for European policy debate!

Open Hardware Licensing (3pm Room 2)

Training for E-counting (3pm Room 3) Jim Killock: Open Rights Executive Director gives a workshop.

Lobbying against the Comms Bill (3pm Room 4)  Workshop given by Truth2Power. 

People not Profiles: Do not Track and Data Protection (3.45pm Old Cinema)

Tom Lowenthal from the Mozilla Foundation and Lillian Edwards will speak on the options we have when protecting our information online, and how effective they are. 

How to start an ORG group in you local area (3.45pm Room 2) Open Rights Group goes national! (or even international)

The US legal approach to intermediary liability for user generated content (3.45pm Room 3)

Cathy Gellis, US Lawyer and blogger talks us through this complicated area of law. 

Lobbying against the Comms Bill (3.45pm Room 4) Workshop 2!


Recognising the fight we're in: A plea for some realism about IP activism (5pm, Old Cinema)

Lawrence Lessig: We are very excited to hear Lawrence Lessig's talk, Lessig is the Roy L. Furman Professor of Law at Harvard Law School and director of the Edmond J. Safra Center for ethics at Harvard University. He is the author of five books on the subject of copyright and technology: Remix, Code V2, The Future of Ideas, and, Code and Other Laws of Cyberspace. Lessig has played a formative role in digital rights activism and many activists, fans and curious onlookers will be keen to hear what shapes his thinking. 


The end of the beginning

We've come a long way on libel and copyright reform, but there's still a little way to go yet

The coming months could see significant boosts to freedom of expression in the UK. Last night, the Libel Reform Campaign launched its report on alternatives to libel litigation at an event filled with hope that the Defamation Bill will form part of the Queen's speech in May. A day or two earlier, Consumer Focus hosted an event at the House of Commons to discuss responses to the consultation on copyright following the Hargreaves Review, which are due March 21. Dare we hope that a year or two from now the twin chilling towers of libel law and copyright might be a little shorter?

It's actually a good sign, said the former judge Sir Stephen Sedley last night, that the draft defamation bill doesn't contain everything reform campaigners want: all bills change considerably in the process of Parliamentary scrutiny and passage. There are some other favorable signs: the defamation bill is not locked to any particular party. Instead, there's something of a consensus that libel law needs to be reformed for the 21st century - after all, the multiple publication rule that causes Internet users so much trouble was created by the 1849 court case Duke of Bunswick v Harmer, in which the Duke of Brunswick managed to get the 17-year limit overridden on the basis that his manservant, sent from Paris to London, was able to buy copies of the magazine he believed had defamed him. These new purchases, he argued successfully, constituted a new publication of the libel. Well, you know the Internet: nothing ever really completely dies, and so that law, applied today, means liability in perpetuity. Ain't new technology grand?

The same is, of course, true in spades of copyright law, even though it's been updated much more recently; the Copyright, Designs, and Patents Act only dates to 1988 (and was then a revision of laws as recent as 1956). At the Consumer Focus event, Saskia Walzel argued that it's appropriate to expect to reform copyright law every ten to 15 years, but that the law should be based on principles, not technologies. The clauses that allow consumers to record TV programs on video recorders, for example, did not have to be updated for PVRs.

The two have something else in common: both are being brought into disrepute by the Internet because both were formulated in a time when publishers were relatively few in number and relatively powerful and needed to be kept in check. Libel law was intended to curb their power to damage the reputations of individuals with little ability to fight back. Copyright law kept them from stealing artists' and creators' work - and each other's.

Sedley's comment last night about libel reform could, with a little adaptation, apply equally well to copyright: "The law has to apply to both the wealthy bully and the small individual needing redress from a large media organization." Sedley went on to argue that it is in the procedures that the playing field can be leveled; hence the recommendation for options to speed up dispute resolutions and lower costs.

Of course, publishers are not what they were. Even as recently as 1988 the landscape of rightsholders was much more diverse. Many more independent record labels jostled for market share with somewhat more larger ones; scores of independent book publishers and bookshops were thriving; and photographers, probably the creators being damaged the most in the present situation, still relied for their livelihood on the services of a large ecology of small agencies who understood them and cared about their work. Compare that to now, when cross-media ownership is the order of the day, and we may soon be down to just two giant music companies.

It is for this reason that I have long argued (as Walzel also said on Tuesday) that if you really want to help artists and other creators, they will be better served by improving contract law so they can't be bullied into unfair terms than by tightening and aggressively enforcing copyright law.

Libel law can't be so easily mitigated, but in both cases we can greatly improve matters by allowing exceptions that serve the public interest. In the case of libel law, that means scientific criticism: if someone claims abilities that are contrary to our best understanding of science, critique on that basis should be allowed to proceed. Similarly, there is clearly no economic loss to rightsholders from allowing exceptions for parody, disabled access, and archiving.

It was Lord McNally, the Minister of Justice who called this moment in the work on libel law reform the end of the beginning, reminding those present that now is to use whatever influence campaigners have with Parliamentarians to get through the changes that are needed. He probably wouldn't think of it this way, but his comment reminded me of the 1970s and 1980s tennis champion Chris Evert, who commented that many (lesser) players focused on reaching the finals of tournaments and forgot, once there, that there was a step further to go to win the title.

So enjoy that celebratory drink - and then get back to work!

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Image: By opensourceway @Flickr [CC BY-NC 2.0 licence]

Written by Kafka

How adding your voice to the Hargreaves Review could help the UK progress to clearer, less Kafkaesque copyright law

He sang. In his song, he told them all exactly what he planned to do under the boardwalk, and it mostly involved making love. This is a quote from Neil Gaiman’s book Anansi Boys. The first thing you need to know about it is that me putting it up there, without intending to review it or criticise it, is illegal. The second thing you need to know is that it references - but does not quote - a popular song. The reason it doesn’t directly quote the song is that the music publisher demanded $800 for seven words. This is actually the only case I can think of where copyright shenanigans have enriched a creative work. The way Neil Gaiman circumvented the need for permission to quote the song makes for much better writing. (Phew, now that I’ve said something that might be construed as a review, we’re safely back on the right side of the law!)


Here’s another common practice of dubious legality: a teacher handing out photocopies of a poem for their students to interpret and evaluate. While there is an “educational use” exception in current UK copyright law, it might as well have been written by Kafka. Copyrighted work can be copied for the purposes of teaching or examination, as long as you don’t use a “reprographic process” to do so. Yep, photocopiers and printers are right out, and so is PowerPoint; “chalk and talk” is the way forward. If you do want to use a “reprographic process”, you may only copy no more than 1% of a work per quarter. Ever tried copying 1% of a Roger McGough poem? As if this wasn’t bad enough, these exceptions only apply where no licensing schemes cover the copyrighted work in question. Such licensing schemes, like the Copyright Licensing Agency, negate existing legal exceptions and force schools, colleges and universities to pay license fees for any copyrighted material they wish to use for educational purposes. Call me a heretic but it may be this, as opposed to actual quality, why we teach kids so much Keats, Byron and Shakespeare rather than Roger McGough.


If you’re reading ORGZine, chances are you already know that copyright law is a mess. There are a number of ways in which it is a mess, but one of them has to do with the interplay between UK and EU legislation. Unlike in the US, where exceptions to copyright are based on the “Fair Use” principle and a body of case law, the European Union has specified around twenty categories of exceptions, which member states may choose to implement pretty much as they see fit. In many cases, this approach is not exactly flexible and adaptable to new technologies. To make things worse, UK law, which predates the EU directive, does not make full use of the available exceptions. So where under EU rules, an exception could cover quoting from a copyrighted work for any reason, UK law only allows it for the purposes of review, criticism or news reporting. Where the directive would allow much wider exceptions for educational use, the UK is stuck with “chalk and talk” and licensing schemes.


The good news is that the Hargreaves Review and ongoing consultation on copyright have picked up on this mess, and have put some really sensible proposals on the table to address some of the issues. There is, for instance, a proposal to extend the exception for the use of quotations and extracts beyond the current three valid reasons (review, criticism, news reporting). The government estimates a net present value for this of £3.3 million - fairly small compared to the value of extending some of the other exceptions, but that only accounts for what they could actually monetise. There are other benefits which are less easy to measure. This one seems, more or less, like a done deal. Still, if you’re a writer or blogger or find yourself quoting copyrighted works in other ways, it may be worth adding your voice to the consultation.


Another item in the consultation is the extension of the exception for educational use. Here, the government is considering a number of options and hasn’t declared a preferred approach yet as they are finding it hard to quantify either the general positive impact or any potential negative impact on rightsholders. Some of the options being considered are expanding the types of works covered by the exception, increasing the proportion of the work that can be copied (that pesky 1%), allowing students who are not physically on the premises of an educational establishment (think distance learners) to access copyrighted material under the exception, widening the definition of “educational establishment”, and finding a way to deal with the licensing schemes. Think of the amount of resources that would be freed up at schools and universities around the country by not having to think “Have I copied more than 1% of this? And anyway, is it covered under a licensing scheme?” If you’re in any way involved with education, I’d strongly encourage you to make your views heard on this one. You have until March 21st to do it.


And speaking of those licensing schemes, something else the government is considering is making copyright exceptions mandatory by not allowing them to be overridden by contracts and licenses. Many end users of copyrighted material - from libraries to anyone buying a track from iTunes find themselves bound by sometimes restrictive licensing agreements which override legal exceptions to copyright. This creates a huge amount of uncertainty: instead of knowing that you have the right to quote a work for review purposes you may find you need to check your license. It therefore also creates disproportionate administrative and transactional costs. Making exceptions mandatory would significantly reduce those costs and create a more certain legal environment.


These and a number of other proposals to extend exceptions to copyright within the existing EU legislative framework are very much steps in the right direction and we should welcome them and encourage them by responding to the consultation.

Image: byineedcoffee/coffeeherounderCC BY-SA 2.0

A plea for a right to parody

Video remixer and musician Swede Mason tells us why he believes we need a new right to parody.

I've waited for a long time to have my say on this subject. My thoughts have built up and stagnated for so long, some of them are mouldy, and I'm finding it hard to know where to begin.

Hello, my name is Swede Mason. Well, it isn't actually. It's a name I go by in case someone tries to sue me. 

I am a video remixer and musician. I create music and video from cutting and pasting clips and dialogue from unusual TV and film sources.  I take footage, which would normally be forgotten after its intended use, and through various methods refine it and use it to create entertaining, thought provoking and above all, amusing videos.

The footage I use is always created for a completely different reason and in a totally different context to the original. I take the footage and change its context and meaning for my purposes, more often than not by twisting it into a tune. The way I see it, the footage is used once and discarded after which it has served its purpose in whichever TV or film it was used in. I find a further use for it through parody.

I'm basically like a video editing womble.

If you would like to know my history read on. If you want to get to the point, scan down to the two line gap.

I've been doing this for more than 10 years. There are two distinct halves to my 'career'. Pre YouTube, and post YouTube. Pre-YT was about making music to amuse friends, with no hope, or concern as to whether or not the music would reach a wider audience. At the time it had no chance anyway, because of copyright and financing physical releases.  It was also so 'out there' that most people - mainly, as it always seems to be, the ones with influence - didn't 'get it'.

The most exposure it got was some good reviews in magazine demo sections, probably written by open minded work experience dogsbodies. These spurred me on to thinking it actually had a bit of potential beyond making my friends piss themselves with laughter. 

A few years later, I started making videos for the tunes I was making and posting them on YouTube. Almost immediately my work began to gather an audience. I began to notice other people were creating similar parodies (see Cassetteboy, Cyriak).

The audience grew alongside my confidence and enthusiasm. Any thoughts of a proper job, or career were now even further out the window, and beyond retrieval. Online, a genre was emerging. Videos similar to my own were getting millions of hits.

One day I fell off my bike and broke a few bones. I was laid up for a month or so. No work for a month! I used the time to make 'Jeremy Clarkson Beatbox'. It got 250,000 hits in a week and has since broken 2 million. Great.

But I was totally skint. Back to work at the pub full-time for 180 quid a week. In the two years that followed nothing changed financially. I worked in the pub and then, up until last month, on a building site. But still making the videos. 



Apart from the nuisance of having videos removed by copyright owners, and the constant overhanging threat from the 'three strikes and you are guillotined' YouTube rule - I've got one life left; one more strike and I lose the channel of 25,000+ subscribers and 11,000,000 total hits - the main reason the amendment for a new right to parody must happen is, I think, financial. I want it to be possible to try to make a living from my work, like any other artist has the right to attempt.

Last July I posted a video called 'Masterchef Synesthesia'. It is a remix from clips of the TV cookery show 'Masterchef'. It twists John Torode and Gregg Wallace's descriptions of food and flavours into descriptions of their mutual appreciation of music, mainly heavy bass sounds.

Like a synaesthesiac tastes or hears colours, John and Gregg are tasting sounds. That was the initial idea I wanted to get across. But its main objective was usurped by the simple alliteration and repetition of the phrase 'I like the buttery biscuit base', as Gregg described the upside of a contestant's failed cheesecake.

Anyway, who cares, it blew up massively. I posted it online one morning, went to work, shovelled shit all day, and when I came back had 100,000 views.  It got 1 million hits in a week and was everywhere, not only on the Internet, but on radio and in the papers. As far as video remixing goes it was a commercial hit. It was amazing. 



Now, as I found out, this is the point where the companies who usually take down your videos turn tail and come sniffing around for the cash. 

Enter Shine TV, the company who creates Masterchef. They became aware of the existence of the remix on the first day. Initially I received threatening emails crying breach, which I ignored. Then as the view count grew exponentially, the penny dropped and they made a different proposal: officially releasing the tune as a single. 

We struck a deal.  After hiring a lawyer, funded from the sale of unlicensed t-shirts bearing Gregg Wallace's mug, we settled for 50% of the takings, after 10% to charity. Pre-lawyer the cut was 70/30 their way. They 'had a lot of mouths to feed' according to the fellah we were dealing with. 

With absolutely no funding or money spent, no help from Shine TV (they were actually a hinderance), no help from John or Gregg other than not stopping us and above all no nepotism, we managed, with a Facebook campaign run by one of my mates, to get it to 37 in the top forty. I just recently received 2000 quid from the sales. Not bad, but not great, considering it is the culmination of 10 years hard unpaid work honing my skills.

The video took me, on and off, a year to complete. I took a day off work every Monday so I could spend all day editing (the rest of the week nights I was too knackered from labouring on the site - violins please). Shine TV sat around doing nothing and got the same money for their old rope.

We must have also raised a few grand for charity somewhere along the line too, which sorts my conscience out for the next decade or so. I don't know how much was made in total for sure. The money was handled, of course, by Shine.

I believe morally they should have taken a much smaller cut, if any at all, and that the law should've backed me up when they decided to make some easy cash. 

This video, I think, fits the criteria perfectly for a parody exception. It takes clips of unconnected footage, which individually make no sense or are of any real use on their own, and would otherwise be overlooked. It refines them and through editing processes them into a theme that makes coherent sense as a completely new work.

It has lasting appeal and in this case also happened to touch the lives of millions of people, sparking their imagination or just making them smile for a second or two. It's worth it for that alone, but I would like the time to finance my work, through my work, and create a lot more. Is that too much to ask?

Shine TV did nothing except accidentally film the component parts of my video, and get in the way of its promotion. They had already made their money from the show as a complete product. The clips they had filmed have served their intended purpose. It was broadcast and now in my opinion, should be in the public domain for fair uses such as this. 

Put it this way. Say you want to build a house. You go to a guy who makes the bricks, you buy them from him, and you build the house. You own it. You sell it, and then he turns up and claims 50% of the profit because he made the bricks. Ridiculous. You'd tell him where to go. Of course in this case you have to buy the bricks fair and square, because bricks are specifically made for building houses; fair enough.

In the case of clips however, these were definitely not made with the secondary intention of making mash ups, they were made to make a cookery program and that is all. They had already been used when I got my hands on them. They were second hand. In the case of a house, these clips would have once been a derelict building, which has been demolished and no longer resembles a house.

The bricks are scattered around, broken into pieces lying in the dust from cement and plaster, waiting to be gathered up by someone at work on the site - just like me - then put into a skip and most probably dumped somewhere after the skippers have been through it for the copper. Now if you made a house out of that, no brick manufacturer in their right mind would have the gall to turn up and claim 50% of your house.

So I suppose I'm a bit more like a skipper than a wobble. Although as it currently stands, a 'skipper' operates around the edge of the law. I have both feet firmly on the wrong side of it.

You can argue that the video's success is derived in large part from the fact that it surfs the wake of Masterchefs' current popularity, gained through the hard work of of the production team. This is true. The footage I used was loaded with potential and had an edge because of this. It would not be a parody if it didn't.

There are a few other Masterchef parodies on YouTube with similar hit counts. They tap into and concentrate an underlying current of humour, that I believe was not intentional when making the show. It is cultivated online and in real life banter. People like to laugh and take the piss out of things that aren't meant to be funny. 

The success and popularity have mutual benefits. Shine TV have a free advertising campaign thrown into the deal because of the success of the video.  An intentional campaign couldn't have been as successful a viral as a video made from a labour of love, purely to entertain, with no hidden agenda. You can't buy that. It has raised the profiles of both John and Gregg. 

It may be the case that parodies take the piss out of their subjects, and are quite often negative in the portrayal of the target. John and Gregg were wise enough to embrace it, to their benefit, which I respect a lot. Libel, slander and defamation of character are different parts of the law and should be considered separately.

I hope my analogy demonstrates the situation, and how the law must be amended. This is a law which above all just stifles creativity. Something which should be nourished like from a big mammary gland. We shouldn't be left to scrape a meagre existence off crumbs dropped by fat cats having their cake and…I'm on one with the metaphors.  I'll shut up now.

Change the law, please



You can see Swede Mason's videos over at his YouTube channel here


The possible change to the law that this article mentions is a new exception to copyright for parody that would help support this kind of creativity. The exception is proposed in a consultation that the Intellectual Property Office is running right now. If you think this is a good idea, it's important the government hears from you - it will help them decide whether to make this change.

You can submit your comments or evidence to the consultation team at copyrightconsultation@ipo.gov.uk. Full details of the consultation are here. You need to hurry - the consultation closes on March 21st! For more on the right to parody, visit righttoparody.org.uk.

Image: Screen grab from Swede Mason's YouTube channel

Private Parts

As the dust settles over the EU Data Protection reforms, Wendy Grossman analyses them from a privacy angle

In 1995, when the EU Data Protection Directive was passed, Facebook founder and CEO Mark Zuckerberg was 11 years old. Google was three years away from incorporation. Amazon.com was a year old and losing money fast enough to convince many onlookers that it would never be profitable; the first online banner ads were only months old. It was the year eBay and Yahoo! were founded and Netscape went public. This is how long ago it was: CompuServe was a major player in online services, AOL was just setting up its international services, and both of them were still funded by per-minute usage fees.

In other words: even when it was published there were no Internet companies whose business models depended on exploiting user data. During the years it was being drafted only posers and rich people owned mobile phone, selling fax machines was a good business, and women were still wearing leggings the *first* time. It's impressive that the basic principles formulated then have held up well. Practice, however, has been another matter.

The discussions that led to the publication in January of a package of reforms to the data protection rules began in 2008. Discussions among data protection commissioners, Peter Hustinx, the European Data Protection Supervisor, said at Thursday's Westminster eForum on data protection and electronic privacy, produced a consensus that changes were needed, including making controllers more accountable, increasing "privacy by design", and making data protection a top-level issue for corporate governance.

These aren't necessarily the issues that first spring to mind for privacy advocates, particularly in the UK, where many have complained that the Information Commissioner's Office has failed (it was, for example, out of step with the rest of the world with respect to Google's Street View). Privacy International has a long history of complaints about the ICO's operation. But even the EU hasn't performed as well as citizens might hope under the present regime: PI also exposed the transfer of SWIFT financial data to the US, while Edward Hasbrouck has consistently and publicly opposed the transfer of passenger name record data from the EU to the US.

Hustinx has published a comprehensive opinion of the reform package. The details of both the package itself and the opinion require study. But some of the main points are an effort to implement a single regime and the rights to erasure (aka the right to be forgotten), require breach notification within 24 hours of discovery, strengthen the data protection authorities and make them more accountable.

Of course, everyone has a complaint. The UK's deputy information commissioner, David Smith, complained that the package is too prescriptive of details and focuses on paperwork rather than privacy risk. Lord McNally, Minister of State at the Ministry of Justice, complained that the proposed fines of up to 2 percent of global corporate income are disproportionate and that 24 hours is too little time. Hustinx outlined his main difficulties: that the package has gaps, most notably surrounding the transfer of telephone data to law enforcement; that fines should be discretionary and proportionate rather than compulsory; and that there remain difficulties in dealing with national and EU laws.

We used to talk about the way the Internet enabled the US to export the First Amendment. You could, similarly, see the data protection laws as the EU's effort to export privacy rules; a key element is the prohibition on transferring data to countries without similar regimes - which is why the SWIFT and PNR cases were so problematic. In 1999, for a piece that's now behind Scientific American's paywall, PI's Simon Davies predicted that US companies might find themselves unable to trade in Europe because of data flows. Big questions, therefore, revolve around the business corporate rules, which allow companies to transfer data to third countries without equivalent data protection as long as the data stays within their corporate boundaries.

The arguments over data protection law have a lot in common with the arguments over copyright. In both cases, the goal is to find a balance of power between competing interests that keeps individuals from being squashed. Also like copyright, data protection policy is such a dry and esoteric subject that it's hard to get non-specialists engaged with it. Hard, but not impossible: copyright has never had a George Orwell to make the dangers up close and personal. Copyright law began, Lawrence Lessig argued in (I think it was) Free Culture, as a way to curb the power of publishers (although by now it has ended up greatly empowering them). Similarly while most of us may think of data protection law as protecting the abuse of personal data, a voice argued from the floor yesterday that the law was originally drafted to enable free data transfers within the single market.

There is another similarity. Rightsholders and government policymakers often talk as though the population-at-large are consumers, not creators in their own right. Similarly, yesterday, Mydex's David Alexander had this objection to make: "We seem to keep forgetting that humans are not just subjects, but participants in the management of their own personal data...Why can't we be participants?"

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Image: By Sean MacEntee @Flickr [CC BY 2.0 licence]

Drive by wire

Are we cruising into a blind spot with the latest advances in automobile technology?

The day in 1978 when I first turned on my CB radio, I discovered that all that time the people in the cars around me had been having conversations I knew nothing about. Suddenly my car seemed like a pre-Annie Sullivan Helen Keller.

Judging by yesterday's seminar on self-driving cars, something similar is about to happen, but on a much larger scale. Automate driving and then make each vehicle part of the Internet of Things and suddenly the world of motoring is up-ended.

The clearest example came from Jeroen Ploeg, who is part of a Dutch national project on Cooperative Advanced Cruise Control. Like everyone here, Ploeg is grappling with issues that recur across all the world's densely populated zones: congestion, pollution, and safety. How can you increase capacity without building more roads (expensive) while decreasing pollution (expensive, unpleasant, and unhealthy) and increasing safety (deaths from road accidents have decreased in the UK for the last few years but are still nearly 2,000 a year)? Decreasing space between cars isn't safe for humans, who also lack the precision necessary to keep a tightly packed line of cars moving evenly. What Ploeg explains, and then demonstrates on a ride in a modified Prius through the Nottingham lunchtime streets, is that given the ability to communicate the cars can collaborate to keep a precise distance that solves all three problems. When he turns on the cooperative bit so that our car talks to its fellow in front of us, the advance warnings significantly smooth our acceleration and braking.

"It has a big potential to increase throughput," he says, noting that packing safely closer together can cut down trucks' fuel requirements by up to 10 percent from the reduction in headwinds.

But other than that, "There isn't a business case for it," he says sadly. No: because we don't buy cars collaboratively, we buy them individually according to personal values like top speed, acceleration, fuel efficiency, comfort, sporty redness, or fantasy.

To robot vehicle researchers, the question isn't if self-driving cars will take over - the various necessary bits of technology are too close to ready - but when and how people will accept the inevitable. There are some obvious problems. Human factors, for one. As cars become more skilled - already, they help humans park, keep in lanes, and keep a consistent speed - humans forget the techniques they've learned. Gradually, says Natasha Merat, co-director at the Institute for Transport Studies at the University of Leeds, they stop paying attention. In critical situations, her research shows, they react more slowly; in urban situations more automated means they're more likely to watch DVDs until or unless they hear an alarm sound. (Curiously, her research shows that on motorways they continue to pay more attention; speed scares, apparently.) So partial automation may be more dangerous than full automation despite seeming like a good first step.

The more fascinating thing is what happens when vehicles start to communicate. Paul Newman, head of the Mobile Robotics Unit at Oxford proposes that your vehicle should learn your routes; one day, he imagines, a little light comes on indicating that it's ready to handle the drive itself. Newman wants to reclaim his time ("It's ridiculous to think that we're condemned to a future of congestion, accidents, and time-wasting"), but since GPS is too limited to guide an automated car - it doesn't work well inside cities, it's not fine-grained enough for parking lots - there's talk of guide boxes. Newman would rather take cues from the existing infrastructure the way humans do. But give vehicles the ability to communicate and share information - maps, pictures, and sensor data. "I don't need a funky French car bubble car. I want today's car with cameras and a 3G connection."

It's later, over lunch, that I realize what he's really proposing. Say all of Britain's roads are traversed once an hour by some vehicle or other. If each picks up infrastructure, geographical, and map data and shares it...you have the vehicle equivalent of Wikipedia to compete with Google's Street View.

Two topics are largely skipped at this event, both critical: fuel and security. John Miles, from Arup argued that it's a misconception that a large percentage of today's road traffic could be moved to rail. But is it safe to assume we'll find enough fuel to run all those extra vehicles either? Traffic increased in the UK by 85 percent since 1980; another 25 percent increase is expected in just the next 20 years.

But security is the crucial one because it must be built into V2V from the beginning. Otherwise, we're talking the apocryphal old joke about cars crashing unpredictably, like Windows.

It's easy to resist this particular future even without wondering whether people will accept statistics showing robot cars are safer if a child is killed by one: I don't even like cars that bossily remind me to wear a seatbelt. But, as several people said yesterday, I am the wrong age. The "iPod generation" don't identify cars so closely with independence, and they don't like looking up from their phones. The 30-year-old of 2032 who knows how to back into a tight parking space may be as rare as a 30-year-old today who can multiply three-digit numbers in his head. Me, I'll wave from the train.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Image: By juhansonin @Flickr [CC BY 2.0 licence]

Foul Play

SOCA has arrested the proprietor of music blog RnBXclusive, and posted a characteristic angry message for visitors of the site to see. But what effect will this have on the ongoing copyright wars of the net?

You could have been excused for thinking you'd woken up in a foreign country on Wednesday, when the news broke about a new and deliberately terrifying notice replacing the front page of a previously little-known music site, RnBXclusive.

ZDNet has a nice screenshot of it; it's gone from the RnBXclusive site now, replaced by a more modest advisory.

It will be a while before the whole story is pieced together – and tested in court – but the gist so far seems to be that the takedown of this particular music site was under the fraud laws rather than the copyright laws. As far as I'm aware – and I don't say this often – this is the first time in the history of the Net that the owner of a music site has been arrested on suspicion of conspiracy to defraud (instead of copyright infringement). It seems to me this is a marked escalation of the copyright wars.

Bearing in mind that at this stage these are only allegations, it's still possible to do some thinking about the principles involved.

The site is accused of making available, without the permission of the artists or recording companies, pre-release versions of new music. I have argued for years that file-sharing is not the economic enemy of the music industry and that the proper answer to it is legal, fast, reliable download services. (And there is increasing evidence bearing this out.) But material that has not yet been officially released is a different matter.

The notion that artists and creators should control the first publication of new material is a long-held principle and intuitively correct (unlike much else in copyright law). This was the stated purpose of copyright: to grant artists and creators a period of exclusivity in which to exploit their ideas. Absolutely fundamental to that is time in which to complete those ideas and shape them into their final form. So if the site was in fact distributing unreleased music as claimed, especially if, as is also alleged, the site's copies of that music were acquired by illegally hacking into servers, no one is going to defend either the site or its owner.

That said, I still think artists are missing a good bet here. The kind of rabid fan who can't wait for the official release of new music is exactly the kind of rabid fan who would be interested in subscribing to a feed from the studio while that music is being recorded. They would also, as a friend commented a few years ago, be willing to subscribe to a live feed from the musicians' rehearsal studio. Imagine, for example, being able to listen to great guitarists practice. How do they learn to play with such confidence and authority? What do they find hard? How long does it take to work out and learn something like Dave van Ronk's rendition, on guitar, of Scott Joplin rags with the original piano scoring intact?

I know why this doesn't happen: an artist learning a piece is like a dog with a wound (or maybe a bone): you want to go off in a forest by yourself until it's fixed. (Plus, it drives everyone around you mad.) The whole point of practicing is that it isn't performance. But musicians aren't magicians, and I find it hard to believe that showing the nuts and bolts of how the trick of playing music is worked would ruin the effect. For other types of artists – well, writers with works in progress really don't do much worth watching, but sculptors and painters surely do, as do dance troupes and theatrical companies.

However, none of that excuses the site if the allegations are true: artists and creators control the first release.

But also clearly wrong was the notice SOCA placed on the site, which displayed visitors' IP address, warned that downloading music from the site was a crime bearing a maximum penalty of up to ten years in prison, and claimed that SOCA has the capacity to monitor and investigate you with no mention of due process or court orders. Copyright infringement is a civil offense, not a criminal one; fraud is a criminal offense, but it's hard to see how the claim that downloading music is part of a conspiracy to commit fraud could be made to stick. (A day later, SOCA replaced the notice.) Someone browsing to The Pirate Bay and clicking on a magnet link is not conspiring to steal TV shows any more than someone buying a plane ticket is conspiring to destroy the ozone layer. That millions of people do both things is a contributing factor to the existence of the site and the airline, but, if you accuse millions of people the term "organized crime" loses all meaning.

This was a bad, bad blunder on the part of authorities wishing to eliminate file-sharing. Today's unworkable laws against file-sharing are bringing the law into contempt already. Trying to scare people by misrepresenting what the law actually says at the behest of a single industry simply exacerbates the effect. First they're scared, then they're mad, and then they ignore you. Not a winning strategy – for anyone.

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Image: funkandjazzunderCC BY-NC-ND 2.0

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Schmidt Happens

Wendy M. Grossman responds to "loopy" statements made by Google Executive Chairman Eric Schmidt in regards to censorship and encryption.

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