Cultural Fair Use, Political Narrative and Copyright [Wikimania 2011]

In about two weeks time, I’ll attend the Wikimania2011 Conference and discuss Cultural Fair Use, Political Narrative and Copyright; while this might sound as one big mashup, because there is no apparent connection between copyright and political narrative. The story of fair use, however, points us to why copyright, more than any other thing, has to do with Politics. The text of this lecture is somewhat derived from my research with Dr. Nimrod Kozlovski for Consumers International about Fair Use in Israel.

But first, a short story. One of my favorite TV shows is South Park. I’ve been watching them from 1997, and have been a fan of the authors and their opinions; when Trey Parker and Matt Stone described their approach towards copyright in their interview for Reason Magazine back in 2006 i was quite happy to find out their approach for copyright was that of a true artist, a wish to reach a wider audience. In a same manner, back in 2008 when they launched South Park Studios, a website to allow watching all their episodes through video streaming as well as remixing and sharing their content, I understood how much they were artists and how they were not just in it for the money.

In 2008, South Park paid tribute to the internet nation with an episode criticizing the Writer’s Guild of America’s Strike while paying tribute to some of the latest internet meme sensations such as the sneezing panda and the Star Wars Kid. One of the subjects of criticism was Samwell, whose video “What What (in the butt)” depicted an African American male pondering whether the viewers of the video wish to “do it in the butt” with him. The video was displayed in the popular YouTube site free of charge and received millions of views.

In the “Canada on Strike” episode, the four prepubescent characters in South Park wish to earn a quick buch from the internet and decide to film a viral video. The position Butters, one of the characters, in the same way as Samwell is in the video and make the unconceivable, take the already grotesque video and make it even more grotesque. This is basically why I love South Park so much: the interaction between extreme free speech and the ability to mock the already mocked to a grain gives them the ability to go on for so many shows. This is the video that Butters produced:

Samwell decided that South Park’s use of his “Work” constituted as copyright infringement and decided to sue Viacom for copyright infringement. Viacom decided to be the better person and instead of settling the case out of court (which would help it, as a copyright owner to fight others who make similar uses of its content) decided to try and use the affirmative Fair Use defense. This week, a Wisconsin federal judge dismissed the case, arguing that South Park’s use of the work was fair (read the full opinion of 10-CV-1013 Brownmark Films LLC, v. Comedy Partners). The court weighed in favor of what I try to call “Cultural Fair Use” which became somewhat popular recently, but is not actually in the general Fair Use exemptions.

For all you non-lawyers, fair use is a defense (codified in 17 USC 107 for those who use copyrighted works for causes such as “criticism, comment, news reporting, teaching, scholarship, or research”. However, South Park’s use, in spite of the wish to be considered criticism, is not really criticism, but mockery or homage. South Park used Samwell’s work in order to criticize the viral videos altogether, not the work itself. In a similar case, where a famous Israeli Comic Book (or should I actually say “Graphic Novel”) cartoonist depicted Donald Duck in order to mock the Isreali Society, the Israeli Supreme Court ruled that his use was not fair as the criticism was not on the work itself (RCA 2687/92 Geva v. Disney). Only recently, the lower courts acknowledged that other, cultural aspects of fair use in order to stretch society’s public domain and ability add some works of authorship to the public domain without the formal requirements of copyright terms, solely because such works have become works of the public due to popularity and demand.

The recent cultural fair use is based on folklore more than anything else. The basic elements are that once a work has exhausted its commercial value and became a part of popular culture, it may allow others to create additional social value by reusing the work. Such uses may be mashups, remixes or other uses which are not highly criticizing or transformative, but are without any impact on the actual market value.

[Here comes that part where if you read this prior to hearing my lecture you thanked me, because the crowd will be rickrolled]

A good example is Rickrolling, the phenomenon of baiting someone into clicking a link on the internet which leads to Rick Astley‘s “Never Gonna Give You Up” video, which is not as grotesque as Samwell’s “What What”, but is no less funny. People have used this song and attempted to add it into popular culture and other works as an homage to the internet nation; either by playing it instead of the end credits to Bill O’Rielly‘s show, paying tribute in an episode of the popular TV show Family Guy, using Barack Obama as the singer by mashing up his speeches or even a Stephen Hawking tribute to the song.

But putting Rick Astley‘s career aside, let’s discuss Government Works for a bit. The US, as well as other states, has a “Government Works” clause that determines that any work of authorship made by the state itself is not subject to copyright. Unlike the US, Israel does not have such clause. Therefore, a material part of Israel’s history is subject to copyright; meaning that the national photo archives and other government works such as reports of the Central Bureau of Statistics are subject to copyright. In such case, when Israeli nationals (and other nationals, actually) wish to use government works, they must either license them or find other sources.

This creates a burden, first of all because the Israeli government does not benefit from selling licenses. It is not one of its positions as a government nor is it a material source of profit. The government has set up its Press Office to allow dissemination of information freely from the government outwards and copyright restrictions seems to contradict Israel’s wish to disseminate its message.

During the 2010 term, Parliament Member Meir Sheetrit submitted a bill introduced by Wikipedia Israel, proposing that non-commercial use of government pictures shall be free of charge, as long as the use is with credit, and does not manipulate or alter the photos in any way. In an interview, Sheetrit stated that one of the reasons for the governmental opposition to the bill was the fear from use of the photos by organisations
which are hostile to Israel or wish to promote the opposing narrative.

The bill was prepared following a study by Creative Commons Israel and Wikimedia, which dealt with Crown Copyrights. The understanding and discussions were whether to apply fair use principles to these uses or to exempt them individually. The tension between personal uses and political uses was balanced by the Israeli ministry of justice, which drafted the bill for MK Sheetrit, and exempted non-commercial use only.

Interestingly enough, the definition of what is commercial and what is not has yet to be discussed. It is interesting to note that both the language of the bill and the language opposing the bill use copyright as censorship or impediments on free speech. The rationale behind the bill, at least as stated by MK Sheetrit, was to allow the dissemination of Israeli Hasbara (propaganda) and use of the Israeli imagery for free by bloggers, Wikipedia and other organisations who wish to use them in order to enrich their works. However, at least as stated by MK Sheetrit, the governmental opposition was based on the fear of use by hostile organisations. Both parties held an opinion that government works are a part of the discourse and that copyright may be used to prohibit others’ speech or to allow them to undertake one’s narrative. These rationales underplay the economical aspects of copyright, and deal with fair use in a different manner, which is the ability to silence political speech.

If, indeed, the only rationale for copyright in Israeli government works is political: to maintain the political narrative, then one material aspect, which is the commercial value of the work, has to be let aside when discussing government works. Let’s, for this cause, inspect the incentives behind copyright and see whether they apply for government works (based on the incentives described by Julie E, Cohen in Copyright as Property in the Post-Industrial Economy: A Research Agenda); the purpose of Copyright was to encourage new and original authorship, however, in Government Works, there is little originality, most Government Works are either documentary (formal photographs or official journals) or are the result of a research; and even if commercial uses were made using these works, then the Government shall continue to create.

Therefore, the incentives for Government Works do not exist in copyright. Now, what’s left is the apparatus of control, and this is actually what’s important in copyright nowadays, more than the economical incentives in Copyright, it seems that Governments, like artists, wish to keep the control of what others shall do with their works, therefore applying their political narrative through copyright.

Israel’s offer for a “Israel Friendly License” shows that we do have a problem: Israel wishes to enforce its political narrative through copyright, by granting a license to use its works solely for those who adhere to its standards. Because the Government does not work for-profit, we can learn, more than from any commercial entity, that fair use is required for criticism, because it is made exactly where people do not want others to use their intellectual property.

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