Clearing the History

In Adler’s view, copying and imitation has always been essential to art as evidenced by the Italian Renaissance master Giogrione’s used as a strong reference in 1538 when Titian created the . Adler claims that art has a history of innovation built on emulation. In modern times, digital technology has not only allowed for copying to become a central building block to visual art but has become a technique used by many artists, including Director X and his music video for Drake’s Hotline Bling that uses the spatial light work of American artist . According to YouTube, the  has been streamed over 1 billion times.

Drawing the Line

The Copyright Clause found in Article 1, Section 8, Clause 8 of the United States Constitution empowers the United States Congress “to promote the progress of Science and useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To act as a defense to copyright law, considers four factors when determining “fair use”, or free and legal use, of copyrighted material that is also able to advance the purposes set out in the Copyright Clause:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. Effect of the use upon the potential market for or value of the copyrighted work.

In 1992, the United States Court of Appeals for the Second Circuit upheld a copyright infringement ruling against best-selling American artist for basing his sculpture too closely on another artist’s photograph. The Court relied on Koons’ opinion of what the new art represented and, based on his inability to communicate a substantial difference, the Court ruled against him. In 1994, the Supreme Court introduced the term “transformative” to determine if the new work, in comparison to the existing work, “added something new, with a further purpose or different character, altering the first with new expression, meaning or message.” In a separate infringement case, Koons carefully adapted his testimony to the Court’s definition of transformation and stated, “I want the viewer to think about
those images and
gain new insight into how they affect our lives.”

The Court held that Koons’ intention was to create a new artwork and ruled in his favour.  Adler considers the Court’s definition of "transformative" to be an unreliable standard of measure because it ultimately allows legal authorities to become curators, arbitrarily deciding an artist's intention, an artwork's representation and whether the new artwork is sufficiently different than the original artwork.

Copy and Haste

The ability to select media from densely populated online content is a form of rapid curating that has become an issue for the modern artist. Adler was involved in Cariou v Prince, a landmark 1994 copyright case in the New 91ŃÇÉ« Court of Appeals for the Second Circuit. Within 30 of his own collages, American artist Richard Prince copied underlying material to varying degrees from American photographer Patrick Cariou.

Prince refused to testify in accordance with the Court’s definition of transformation, and simply stated that he did not attempt to noticeably differentiate his artwork. , the Court was unable to use Prince’s testimony as a basis for differentiation and was forced to adopt a “reasonable person” standard. By simply conducting a side-by-side comparison of each of the 30 collages, the Court concluded that 25 were sufficiently distinct but was unsure of the remaining five, ultimately remanding the insufficiently distinct collages.

Evidently, great uncertainty exists when attempting to claim that fair use progresses the arts. In response to the New 91ŃÇÉ« Court of Appeals’ side-by-side comparison, Adler argues the photographer Sherrie Levine’s identical reproductions of Walker Evans’ photographs could not coexist with this understanding because the artwork’s meaning transcends visual interpretation.

Redefining the Rule

Adler strongly opposes an authoritative definition of art. Not only does she believe that problems arise from an artist’s forced explanation of their artwork but also that it is inherently difficult to reduce images to digestible ideas for the general public to collectively understand or for courts to effectively rule for or against. In this view, it can be justified that an artist’s intention should be irrelevant to the meaning of their work because it is an arbitrary and ever-changing standard of measure.

For example,  saw his art as collaboration with everyone who viewed it and in a sense disowned authorship of his works, while the works of expressionist  were inherently abstract and are publicly perceived as sharing no immediate identity with the works of others.

Multiple artists, editors or assistants contribute to multiple meanings of the work and consequently displace the responsibility of any individual contributor. Adler provides the example of an unknown editor of Nick Ut’s who cropped out various subjects to focus on the victims of war and, in turn, redefined the original photograph’s meaning and intent. Another example Adler provides is ’s appropriation of ’s photograph of Barack Obama to create the iconic “” illustration. Garcia claims he did not initially recognize the original photo as his own. In Adler’s view, the law’s inability to recognize an artist’s increasing reliance on the work of others is a major source of litigation and is yet another reason to abolish copyright protection for the visual arts.

The Future of Art

Adler’s first step to effectively addressing the issue of copyright and modern art is to stop thinking of art in terms of its message or meaning and to instead think about the economic market. She believes in a modification of the fair use test that incorporates market usurpation because, when it is “art-on-art stealing,” there is no market usurpation due to market’s negligible demand for copies of original artwork. Although it is difficult for some to classify visual art as a simple commodity to be traded among the wealthy, Adler believes this is the direction the market is evolving towards.

The second step, and the more radical of the two, is to abolish copyright for the visual arts because fair use lawsuits would no longer exist. Adler believes the reason copyright protection exists is mainly utilitarian and is based on economic incentives to create ideas. From this, she concludes that the worry is not about the act of copying itself but instead the allowance of a cheap copy to monetize another’s art.

The Art of Crime

Typically, the theft, duplication and resale of other types of art such as motion pictures and sound recordings create an economic loss for the rightful owner. However, in the visual art market, Adler claims there is no market substitution between copies and authentic originals. What about moral rights? Adler answers that, in the United States, an infringement of moral rights for violating copyright only applies if an individual has used a limited edition photograph of . She claims that most works of visual art do not have a re-sale value and that over 99% of visual art cannot be resold, with the exception of a small class of considerably successful artists. To incentivize the creation of art, it is important to promote the revenue generated from the first sale of an original artwork, as it is the most lucrative because the value of a copy is simply a small fraction of the first sale.

For example, Richard Prince took screenshots of  from a burlesque collective, the Suicide Girls, and turned the original screenshot into original prints that sold for $90,000 or more. Instead of taking legal action, the Suicide Girls and tried to sell them for $90. However, because visual art is more concerned unique, authentic originals rather than duplicates, the market did not react in favor of the Suicide Girls.

To resolve this discrepancy, Adler claims that the only artists generating significant revenue from copies, although relatively a small amount, are those who are already capable of generating large amounts of revenue from their original artwork. In a sense, Richard Prince conferred money on the Suicide Girls as a result from his copying. Adler believes that this economic distribution is made possible by modern artists continuing to rely on imitating their surroundings, now virtually limitless in an interconnected and online world.

As a co-founder of a visual art collective, I agree that the use of open-source references and online images allow for greater economic prosperity. This freedom grants artists a wider degree of creativity to build their brand, the main force that drives revenue generation. Although Adler’s claims are limited in scope to visual arts and focus on the protection of commercially successful artists, the abolishment of copyright law may ultimately benefit smaller artists who rely on the copying of another artist’s work for inspiration or reference. Adler reminds us that, while unfortunate to some, the art market values the brand of an artwork's creator more than the content of the actual artwork.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Since the rise – and subsequent fall – of peer-to-peer music sharing service , the recorded music industry has served as a canary in the coal mine for the digital economy and the disruptions stemming from emerging networked technologies. Napster provided previously unrealized access to the creative labour and cultural resources of the recording industry’s collective catalogue at a rock bottom price: nothing. The “free” nature of this service – which still required often costly Internet access and computers – , resulting in years of litigation as well as much-needed innovation in services offering legal distribution of music. Services, such as iTunes, and products, such as the iPod, moved into the uncharted terrain created by P2P services, redefining ways that fans can access content.

In the subsequent 15 years, record labels, music publishers, recording artists as well as other industries and actors in content distribution businesses sought to in order to receive compensation for their music and creative commodities to further the creative endeavours and economic livelihood of artists, producers, and creators. However, in recent years there has been that the economic fruits of creative endeavours have been disproportionately “captured” by the technology companies that facilitate digital distribution. Artists and creators have complained that major record labels and digital distributors receive the lion’s share of compensation for the works they create.

This trend towards “economic concentration” in the hands of technology companies distributing licensed content and facilitating transactions mirrors results of my own ongoing dissertation research, which examines how intellectual property law governs, incentivizes, and structures the emerging digital economy. For example, the so-called of the digital economy simultaneously enables new forms of capital accumulation for individuals – whether they are drivers offering rides through Uber or owners renting property through Airbnb – and the companies that facilitate, track, and leverage these transactions. However, these gains are largely concentrated at the top of the ecosystem with technologists, inventors, and investors receiving much larger compensation than the individual entrepreneurs on the ground. As my research argues, informational assets, such as trademarks, patents, and copyright supporting dominant brands, which allow companies in the technology industries to track and facilitate transactions, are becoming more lucrative than the copyright protected commodities themselves. The goods and services offered by creators and service providers feed into technological ecosystems designed and engineered to concentrate the bulk of economic gains for the benefit of the host companies. Individual “entrepreneurs” in the digital economy must, therefore, increasingly act in hyper-competitive relationships with each other without the financial or social safety nets that existed in earlier times of technological and economic disruption.

In an era of  that is arguably defined by increasingly higher levels of throughout society, this economic concentration emerging within the digital economy is an area in need of attention and concern. As it was with the emergence of P2P and the distribution services following in Napster’s wake, the music industry may once again be signalling some ways forward.

In early 2015, , rebranding the streaming service as Tidal. He with a glitzy, star-studded affair featuring other recording artists including, amongst others, his megastar wife BeyoncĂ©, Canadian rock group Arcade Fire, and pop-luminary Madonna. These recording artists are also investors and “owners” of the service, positioning Tidal as an ostensibly artist-driven distributor seeking to challenge the dominance of the music industry’s existing economic and technological order. Tidal charges a larger monthly subscription fee (around $20 per month) than its rivals, stating that this extra money will flow more directly to the music’s creators and allow for better sound quality. The service has subsequently been criticized on a number of price-related, PR, and marketing grounds, obscuring the owners’ stated goals of giving back to the music creation community. During a Jay Z positioned Tidal in this way, criticizing the digital incumbents and specifically naming Spotify, Google, and Apple.

Two months later on 8 June 2015 Apple . Drawing from the vast library already on offer in its iTunes store, Apple Music will be launched and cost, at around $10 per month, half of Tidal’s fee but in line with Spotify’s. Apple  to its new service. However, Apple Music has already garnered criticisms and into whether or not Apple is using its dominant position in the digital economy to drive out competitors such as Spotify.

It should not be surprising that Apple is moving aggressively into the streaming music space. It was with music – – that the company’s resurgence began. What is surprising is that it has taken so long. Following the announcement of Apple Music, and now has 20 million paying subscribers and a total of 75 million active subscribes. As in other areas of the digital economy, a competitive position necessitates a large, active, and loyal customer base — which both Tidal and Apple Music will have to develop to compete with Spotify’s established status.

Streaming music services have come to be for the music industry. These services, as well as similar sectors in the digital economy, require licensed content in order to generate consumer uptake, however, how the licensing agreements and royalties are structured determines who are (and are not) the real "winners" of the digital economy. will be increasingly induced to negotiate agreements that serve their interests, while creators and smaller, independent labels will have to compete feverishly on the  digital economy. Rights and compensation for creators, labels, publishers, and digital distributors will continue to be contested as these services evolve.

The goals of Tidal and Apple Music demonstrate how the digital economy continues to evolve and the economic imperatives drive its transformation. If you take their word for it (as licensing documents or rates have not been made public), Tidal is presenting a somewhat different future, where creators themselves are able to receive larger and more direct compensation for their endeavours. Apple Music, meanwhile, is looking to compete with Spotify by using a similar business model: by leveraging Apple’s already established user base and its relationships with major record labels, it hopes to shift users towards a regular, monthly subscription model and become the industry's dominant player.

How users react to and adopt these services will help to determine whose IP rights are most valuable as well as how the broader digital economy will evolve in the years to come.

Joseph F. Turcotte is an IPilogue Editor and a PhD Candidate in the Communication & Culture Program (Politics & Policy) at 91ŃÇÉ«.

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Having analyzed the numbers from Google’s latest , and other media outlets that the removes approximately 8-9 sites from its indexes every second. This is done in order to comply with takedown requests issued through the United States’ (DMCA).

In spirit, Title II of the DMCA works to balance the interests of intellectual property (IP) rights-holders with the technological and economic needs of Internet-based services and companies. introduces a mechanism that allows IP rights-holders to alert online services, such as search engines, about the existence of infringing content or websites.

This procedure is designed to limit the liability of online service providers by giving them ‘safe harbor’ protection against monetary liability that could otherwise result from the infringing activities of third parties. Amongst other conditions, these liability limitations are granted if “upon obtaining such knowledge or awareness [of infringement], [the service provider] acts expeditiously to remove, or disable access to, the material” (DMCA, Sec. 512(c)(1)(A)(iii)). Section 512 also provides opportunities for challenging notices and/or takedowns that are considered improper or illegitimate.

Although for its unintended consequences, the combination of the ‘nŽÇłÙŸ±łŠ±đ-ČčČÔ»ć-łÙČč°ì±đ»ćŽÇ·ÉČÔ’ mechanism with the ‘safe harbor’ provisions has been critical to the continuing evolution of the Internet as a tool for social and economic growth. However, there are concerns that this system and the spirit of the law are being manipulated and used for purposes not related to copyright infringement.

In a Yale Law School Information Society Project talk, , Google’s Legal Director for Copyright, Fred von Lohmann, that the company is seeing an increase in the amount of DMCA notices that are used for non-copyright related purposes or as a form of . These developments problematize the DMCA system at a time when search engines and other online service providers are facing criticism.

In particular, creative industry representatives are taking aim at the perceived inaction of search engines to deal with how they link to websites containing infringing content. In a recent to the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, the Chairman and CEO of the Recording Industry Association of America (RIAA), Cary H. Sherman, took aim at Google and mentioned the company 19 times. This is a topic the organization is familiar with: in the past year, the RIAA nearly 30 million notices to Google.

Responding to an August 2012 , which laid out the search engine’s plans to adjust its algorithm to downgrade websites with repeated instances of copyright infringement, Sherman “ 
 indicate that sites for which Google has received hundreds of thousands of infringement notices are still appearing at the top of search returns. Worse still, users are being directed to these sites through the use of ‘autocomplete’ features”.

These calls come as Google and other online service providers and technology companies are increasing collaboration efforts aimed at minimizing the viability of infringing websites. On 15 July 2013, , then the U.S. Intellectual Property Enforcement Coordinator, that “24/7 Media, Adtegrity, AOL, CondĂ© Nast, Google, Microsoft, SpotXchange, and Yahoo!, with the support of the Interactive Advertising Bureau” were committing to a set of . This voluntary system will work to disable advertising support for websites that are identified through the notice-and-takedown system and .

Time will tell if the current ‘nŽÇłÙŸ±łŠ±đ-ČčČÔ»ć-łÙČč°ì±đ»ćŽÇ·ÉČÔ’ regime and the emerging Ad Network Best Practices will have a significant impact on curtailing infringing websites. With the number of legitimate and illegitimate websites growing on a daily basis, both the content and the online service industries face an uphill battle. What is certain, though, is that in order for these industries and the broader public to thrive in the future, the calls for need to be carefully calibrated so that government regulations and business policies contribute to the sustainability of the Internet Economy.

In theory, relying upon voluntary and technological means for content filtering will be beneficial. However, as recent cases have shown, the all-seeing but non-contextual ‘eye’ of an algorithm-based approach can lead to and . While imperfect, the current DMCA-based approach provides necessary tools for protecting the rights of creators and IP rights-holders as well as challenging mechanisms that can be used to oppose illegitimate uses and protect the rights of citizens and the public at large. The real test will to be to ensure that the spirit of the DMCA can be promoted and protected going forward.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91ŃÇÉ«, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School. 

The post The Incredible, Vanishing Internet (and the DMCA) appeared first on IPOsgoode.

However the Commission also asked whether Australia ought to enact a broad, flexible exception, and if so, whether this should replace or supplement existing purpose-specific exceptions.[3] This article is relevant primarily, although by no means exclusively, to these latter two questions. Its aim is to critique existing law reform debates in relation to exceptions, many of which present the choice between closed-ended and open-ended provisions as turning on a preference for certainty or flexibility. It uses standards and rules analysis to challenge this dichotomy, and thus help reframe debates in a way that is more nuanced and contextualised.

In presenting this analysis, this article engages not only with the broad question of whether a fair use-style provision would be a desirable addition to copyright law, a position that this author supports for Australia,[4] and which has been recommended by the ALRC in its Discussion Paper dated May 2013.[5] Rather, it is also interested in questions of implementation: of the precise form any new exception should take, and what additional measures might be necessary to mitigate the risk that a broad open-ended exception will never become a meaningful part of the copyright system. Much of its analysis is based on the utilisation of the US fair use doctrine as a template for reform,[6] although it must be acknowledged that other models are also possible.[7] Indeed, Australia itself has experience with so-called flexible drafting, most notably through bespoke exception, s 200AB.

Given it is peculiar to Australian law, a brief summary of s 200AB is useful at this point. Section 200AB is a relatively recent addition, having been introduced by the Copyright Amendment Act 2006 (Cth). It has been described as a “hybrid” exception due of its use of both closed-ended and open-ended drafting elements.[8] The main closed-ended aspect is that only nominated user groups may take the benefit of the provision: bodies administering a library or archives;[9] educational institutions; and users with a disability and those assisting such people. In contrast, the legislature did not attempt to particularise the uses to which s 200AB might apply, and indeed the application of the exception to any given use is to be judged by, inter alia, factors said to have the “same meaning” as Article 13 of TRIPS: the circumstances of the use must amount to a special case; the use must not conflict with a normal exploitation of the work or subject-matter; and the use must not unreasonably prejudice the legitimate interests of the owner of the copyright.[10]

As discussed in Part II, the introduction of s 200AB can be seen against the backdrop of long-standing interest in whether general exceptions can help fix problems thought to be associated with the prevailing drafting model for exceptions across the British Commonwealth: closed-ended and often highly detailed provisions.[11] This debate was revitalised in Australia during the implementation of the US-Australia Free Trade Agreement,[12] and indeed s 200AB was identified as bringing to Australia some of the benefits of fair use.[13] However this article uses the post-FTA developments to illustrate broader themes about the propositions and analytical techniques that tend to characterise debates about the drafting of exceptions. It argues that these debates frequently rest on oversimplified claims about the respective merits of different styles of drafting. In Part III it uses standards and rules analysis to reveal complexities that are often glossed over, noting that the operation of any statutory provision depends not only on its language, but its complexity, the broader statutory context, and the interpretative practices of judges and those regulated by law. It continues these themes in Part IV by using Australian experiences with s 200AB as a case study about the implementation of open-ended exceptions into copyright law.

The particular empirical work described in Part IV is interview-based fieldwork conducted with leading Australian cultural institutions in 2012-2013.[14] This fieldwork suggests that s 200AB has failed to become a meaningful part of institutional copyright practices, and that this state of affairs shows little prospects for change. One question that arises from this research is whether a similarly restrictive interpretation is likely for all flexible exceptions, such that an Australian fair use doctrine would suffer a similar fate. However it is argued that the issues when s 200AB is viewed through the lens of standards and rules analysis, it can be seen that its muted reception is an entirely predictable consequence of the way that provision is drafted. The failures of s 200AB should not, therefore, be seen as a rejection of flexible exceptions per se. Indeed other behaviours and practices suggest there is much potential for fair use to become a workable exception for Australian cultural institutions. These lessons about the failures of s 200AB are relevant not only to Australia, but to other jurisdictions dealing with similar questions about the reform of copyright exceptions.

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