Copyrights Vs. Creative Rights by Richard Clarkson

Running Head: COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

Copyrights Vs Creative Rights for University Design Students

Richard Clarkson 300160220 CCDN271 Tutor: Nan O‟Sullivan

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COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

Abstract For years there has been huge controversy surrounding Copyright Laws in relation to intellectual property ownership and “creative evolution.” In the first section of my research paper I will briefly investigate how and why copyright was created and its development up until present day. Secondly how these laws specifically impact on Design Students studying in New Zealand universities. Finally I will investigate why these affects are overlooked. I will convince young New Zealand designers of the negative consequences copyright has on their „creative rights.‟ I will argue that, in order to move forward and progress as an innovative and efficient society, we must re-evaluate Copyright laws and our perceptions of these laws. Keywords: Copyright, technology, design, Laurence Lessig, New Zealand, University.

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

Prior to researching this project I was convinced that at this stage in my life copyright had little impact on me personally. After completing my research I soon realized I could not have been more wrong. This essay explains not only how copyright impacts myself and other students but also why this occurs. My aim is to convince the public of the affect copyright is having, and could potentially have, on all University design students in New Zealand.

The origins of Copyright lie in The Statute of Anne, 1709. This was an English statute that sought to end the monopoly of publishers or “booksellers” had on knowledge. The statute gave authors or copyright holders, the exclusive „right to copy‟ for a limited period of time – 14 years. This was renewable for another 14 year period (Patterson, 1968, p. 4). This term was essential as it allowed authors to profit from their works, but after a period of time, made these works freely available for the general population to benefit from. If we follow the development of copyright through to today, we see the definition for copyright and the coverage it has over intellectual property expanding in scope, and the lengthening of the term for which copyrights lasts in New Zealand to 50 years from the death of the author (Copyright Act 1994, 2005).1 These changes were led by critical changes in technology; for example, between 1900 and 1920 the technology for phonographs and recording machines were invented, causing the laws for copyright to expand to musical recordings (Vaidhyanathan, 2001, pp. 12-13). As technology arrives it threatens the „big firms‟ monopolization of their industries. „Big firms‟ still try to use their power and influence to have innovative technology shut down, on the grounds that artists of the old medium, will be robbed of their rights. Laurence Lessig, a known expert on copyright and intellectual property, points out in his book “Free Culture,” that historically the law has found a middle ground, in which artists 1

See section 22, part (1) to (5), of the copyright act for detailed breakdown of copyright durations of artistic works.

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

have some limited rights and creativity is allowed to flourish, once these limited rights expire (Lessig, 2004, pp. 77-79). History shows that copyright was intended for two purposes: to ensure artists and creators had incentive to create new works; and to ensure that content was made available for artists (Crews, 1993, p. 3). Today‟s version of copyright is increasingly becoming an instrument of censorship, precisely what copyright was originally created to fight (Vaidhyanathan, 2001, p. 184).

In April 2002, at Rensselaer Polytechnic Institute, information technology student Jesse Jordan received notice from the Recording Industry Association of America (RIAA), stating that he was being sued $15 million US in „statutory damages‟ for willful copyright infringements (Recording Industry of America v. Jesse Jordan, 2003). Jesse had played with a bit of software code of a search engine making it more efficient and easier to use, this resulted in a network system capable of sharing music between students and staff. In the end Jesse discovered that even if he won the case, legal fees would come to around $250,000, bankrupting his family; thus he was forced to pay the settlement of $12,000 (Lessig, 2004, pp. 50-51).2 Regardless of whether or not what Jesse did was right or wrong, the combination of today‟s of copyright laws, the current legal system and big monopolistic firms, meant that Jesse was not even allowed a chance to fight; a cause for concern for all in the creative industry. Under current copyright laws if you use any work that is not your own, even if you change it, then it is likely you may be liable for prosecution (Strong, 1999, pp. 226-227). Neither ignorance, changing it by more than 10% [a common copyright law misconception (Copyright Council of New Zealand, 2010)], the fact that you were never going to use it for commercial purposes or even common sense will save you from prosecution. 2

Read chapter 3„Catalogs‟ of Free Culture for more in-depth explanation.

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

A designer is faced with one of two options: use copyrighted material regardless of the risk [Group 1]; or stay well clear [Group 2]. The extent to which the Group 1 designers can be affected is clearly portrayed in the above case of “RIAA v. Jesse Jordan”. However, debate arises regarding Group 2 designers – why can‟t designers just create all of their own work from scratch? My response would be that it is entirely possible for one design but not for design as a whole. If designers were forced to start every single design from scratch, design as a whole would never progress beyond one generation of thinking. Each new generation would come along and have to develop every idea from square one. The technologies that exist today, such as advanced Computer Aided Design (CAD) programs, enable us to start from where the previous generation left off. This is especially important in an educational sense as it enables young designers to learn faster than ever before by using and manipulating existing works and subsequently learn the principals and methods behind each. What is so special is that in terms of knowledge and in a sense „experience‟, the students of today are starting out from where the professionals of yesterday left off. This evolutionary design process is what I call designer‟s „creative rights‟.

That's how creativity happens. Artists collaborate over space and time, even if they lived centuries and continents apart. Profound creativity requires maximum exposure to others' works and liberal freedoms to reuse and reshape others' material (Vaidhyanathan, 2001, p. 186).

Copyright affects university students by restricting and slowing down these creative rights (Lessig, 2004). University students are encouraged to utilize their creative rights, through the use

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

of precedent work as a model for their own work. Under section 44 of the Copyright Act 1994 “Copying for educational purposes of literary, dramatic, musical or artistic works or typographical arrangements” is as an example of „fair use‟ and is permitted (Copyright Act 1994, 2005), but the technicality and lack of clarity in this section, makes it almost impossible to understand what exactly is permitted. As the risks of misinterpretation are very high people turn away from the idea for fear of prosecution (Strong, 1999, p. 200). Therefore, Group 2 designers are limited to works in the public domain [i.e. any work that the authors‟ exclusive rights have expired] or are forced to seek permission for each instance of copyrighted material used. Gaining permission is often a much bigger task than anticipated and it can be very difficult to track down the copyright owner and sometimes even more difficult to gain permission (Lessig, 2004). Thus, I argue that the copyright war affects Group 2 designers as much as Group 1 designers. When big firms try to control what content is available, who the content is available to, and what cost it is available for, the creative ability of designers is limited. If all content was completely controlled by „big firms‟, which is their goal (Lessig, 2004, p. 255), then content that is crucially advantageous to our university design process would not be available to university students. Hence, if this was the case, piracy would become part of everyday life for students. Some academics debate it already does (Morris, 1993, pp. 4-5) (Lessig, 2008). Nonprofit organizations such as Copyleft and Creative Commons are actively trying to give designers and artists database foundations to share their work for others to build upon (Stallman, 2002). This is heading in the right direction, but the resources currently available are too small for creativity to truly flourish.

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

The previous section outlined how copyright affects designers at a university level, but how and why is it permitted? I believe people are unaware of what copyright is. The ambiguous language describing copyright is difficult to understand (Weatherall, 2005).

[Intellectual property law] remains the murkiest and least understood aspect of American life and commerce. The rules seem to change every few years… (Vaidhyanathan, 2001, p. 3).

Upon inspection of the Copyright Act 1994 one will find what Vaidhyanathan concludes, that it is full of confusing legal jargon, unclear statements, such as “in some circumstances,” and irrelevant statements meant for early 20th century technology (Vaidhyanathan, 2001). This leads me to my first proposal, to clean up and republish the 1994 Copyright Act, so that it is at least understandable, accessible and relevant for the public. Especially since some academics argue that legal copyright constrictions are becoming so strict and incomprehensible that they are encouraging normal people to ignore them and thus undermine the law itself (Lessig, 2004). Secondly the nature of copyright is complex and full of hypocritical contradictions. Consider what Walt Disney did to the Brothers Grim, he used their stories which where freely available in the public domain and built upon them, what is recognized today as a transformative or “derivative work.” Walt Disney then extended his exclusive rights, to the degree that no one could build on his work (Lessig, 2004, pp. 21-25). A designer when faced with limited freedoms will fight for those freedoms but as soon as they benefit from limiting those freedoms, such as Disney, they change positions. The market, legal system and even commercial culture are set up to allow this behavior, and even reward it. Currently lobbyists for extending copyrights are far more powerful than those who fight them (Lessig, 2008).

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

Thirdly as copyright laws continue to tighten people simply accept it. We have lost the ability to collectively and critically question things that do not directly affect us at the present time.

What is hard to understand is why the public takes this view… …All this seems to follow easily from this untroubled acceptance of the ‘property’ in intellectual property (Lessig, 2004, p. 256).

We need to be more critical of how and why things are done and the way they are done. If it is in the best interest of the public to extend copyrights, then so be it; the key point is that we are questioning it. An extremely important area of design is critical design, much of Dunne & Raby‟s Work in this area has improved society, not because the goods themselves but in the way they force us to ask questions. Why not then apply this ideology to factors that affect our design process, why not ask questions of copyright?

There is no doubt that we need copyright as it is essential to a healthy creative culture, however excess of regulatory measures slows creative evolution. As a creative community, we are being fed copyright regulations without realizing it. Unfortunately, by the time awareness is at a sufficient level, it may be too late for us to fix it. In this essay I briefly explained the origins of copyright and I showed how design is being restricted, even at a University level. Our creative rights as designers are becoming more and more regulated, shrinking the public domain and decreasing a law abiding designer‟s resources. Finally, I highlighted some possible reasons for this being accepted from unclear understanding of rights to our reluctance to ask questions that

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

need to be asked. Lessig and Stallman are two voices that need to be heard and it is up to us to listen and act.

I am a software designer, not a legal scholar. Iâ&#x20AC;&#x2122;ve become concerned with copyright issues because thereâ&#x20AC;&#x2122;s no avoiding them in the world of computer networks. As a user of computers and networks for thirty years, I value the freedoms that we have lost, and the ones we may lose next (Stallman, 2002, p. 88).

University designers are in the middle of the war of copyright and we must remember that it is us who will suffer collateral damage, but also only us who can find a way to stop the war and start the negotiations.

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

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progress for higher education. Chicago: University of Chicago Press.

Lessig, L. (2004). Free culture : How big media uses technology and the law to lock down . . . . . .

culture and control creativity. New York: Penguin Press.

Lessig, L. (2008). Remix Making art and commerce thrive in the hybrid economy. London: The . .

Penguin Press.

Morris, R. G. (1993). Use of Copyrighted Images in Academic Scholarship and Creative Work: . .

The Problems of New Technologies and a Proposed "Scholarly License,". 33 IDEA: The .

Journal of Law and Technology , 123.

Patterson, L. R. (1968). Copyright in historical perspective. Nashville: Vanderbilt University . .

Press.

Recording Industry of America v. Jesse Jordan, 03-CV-0417 (U.S. District Court April 3, 2003).

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS

Stallman, R. M. (2002). Free software, free society: Selected essays of Richard M. Stallman.

Boston: GNU Press, Free Software Foundation.

Strong, W. S. (1999). The copyright book: a practical guide 5th ed. Cambridge: The MIT Press.

Vaidhyanathan, S. (2001). Copyrights and copywrongs the rise of intellectual property and how . .

it threatens creativity. New York: New York University Press.

Weatherall, K. (2005). 'Pretend-y Rights': On the insanely complicated New Regime for . . . . .

Performers' Rights in Australia, and how Australian performers lost out. In F. B. . . . . . .

Macmillan, & F. K. Macmillan (Ed.), New directions in copyright law (pp. 171-197). . . .

Cheltenham: Edward Elgar.