Do No Harm: Revisiting Intellectual Property Rights In The Digital World

The system of intellectual property has developed into a huge machine, largely out of control, and ever more aggressive as it fails to stop the floodwater of information from breaking through the barriers it tries to erect

Aigrain, P 2005 “Positive Intellectual Rights and Information Exchanges” in R A Ghosh (ed), CODE: collaborative ownership and the digital economy, pp 287-315. Cambridge, Mass: MIT Press at page 289.

For many who create, these are fighting words.

Undoubtedly, by empowering the user to create the new digital environment has placed the subject of the ambit of copyright protection squarely in the spotlight. Governments around the globe are grappling with finding the right balance between copyright protection and encouraging innovation that builds on previous works. In this country, the Australian Reform Law Commission is currently finalising its review, entitled Copyright and the Digital Economy, into the effectiveness and reform of Australia’s copyright laws in the Internet age. The ALRC released its discussion paper in June 2013 after receiving more than 300 submissions, including from Google and eBay to its issues paper and the same number of submissions again to its discussion paper.

The Australian review follows on the heels of similar reviews held in the United Kingdom, with the main findings summarised in the Hargreaves Report released in 2011, Ireland in 2012 and Canada. In April 2013, the US Government announced it was also reviewing US copyright laws in this press release.

The importance of this inquiry is highlighted by the following statement from Professor Lawrence Lessig, in his article In Defense of Piracy:

The return of the “remix culture” could drive extraordinary economic growth, if encouraged and properly balanced. It could return our culture to a practice that has marked every culture in human history—save a few in the developed world for much of the 20th century – where many create as well as consume.

Or if you prefer the visual, you can see Professor Lessig’s TED talk on this topic here.

At the time of writing this post, Canada leads the way in innovating its approach to copyright laws particularly in the context of user-generated content (UGC). After conducting a review into copyright law in that country, Canada enacted the Copyright Modernization Act which came into force in November 2012. It inserted, what is now widely known as the ‘YouTube clause”, permitting the creation and publication of mashup videos and other UGC without infringing copyright in the works used. The clause, number 29-21, provides that it is not an infringement of copyright for an individual to use an existing work which has been published or made available to the public in the creation of a new work or to disseminate it if:

  • the use is done solely for non-commercial purposes
  • the source of the original is mentioned in the new work if reasonable in the circumstances
  • the individual has reason to believe that the existing work is not infringing copyright
  • the use does not a have a substantial adverse effect, financial or otherwise on the actual or potential exploitation of the existing work or on an existing or potential market for it, including that the new work is not a substitute for the existing one.

At this stage, the ALRC is not recommending that Australia follow the Canadian example believing that determining the issue of whether a work is created solely for non-commercial purposes is problematic. That issue, the ALRC argues is made more difficult by the interaction of UGC and social media platforms where the creator of the UGC may not use the work for commercial purposes, but the platform operator may.

The way forward must balance the needs of new creators with the old and should focus on the concept of harm to the original copyright holder.

It is said that copyright as a form of property was implemented to ensure that original creators could maximise the return for their creations thereby encouraging innovation. However, In practice, creativity never occurs in isolation and works generally borrow from
what has come earlier. Transformative works make a beneficial contribution to modern culture and should be permitted particularly when they cause no harm to the incentives to creation for the original copyright holder.

220px-Barack_Obama_Hope_posterWhilst no direct empirical study exists on the economic consequences of transformative works on the rights of the original, some indicative principles can be drawn from a recent study undertaken in the context of the proposed introduction of a parody fair dealing exemption in the United Kingdom. The study reviewed a sample of more than eight thousand YouTube musical videos which were stated to be parody and viewer behaviour in response to those videos. The study found that the activities of the parody creators had little or no direct impact on the audiences of the original creators and if any impact was observed it was positive in that it appeared to be more advantageous for a commercial video to be parodied than not parodied at all. The addition of creative labour to the original made the work potentially transformative and diminished the possibility of confusion in the minds of viewers between the parody and the original. The study went further to note that even if the parody is produced for commercial purposes, it may well increase demand for the original or be sold in a different market. Contrary to popular belief, there is not necessarily any direct relationship between profitability to the copyright owner and the matter of exploitation by others.

We are at a point in history where we have an opportunity to recalibrate our thinking on copyright. Permitting the use of copyright material where no harm is caused to the original copyright holder strikes the right balance between the present and the future and avoids our children being unnecessarily labelled as copyright criminals.

And keeps things like the Hope poster coming.

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Got A Mac Attack? Would You Like Some Publicity With That?

I am a Maccas girl from way back. During my formative years, I spent more than a decade working under the Golden Arches. McDonald’s or Maccas as we Aussies refer to it, was a fun place to work. It Big MAcprovided an education that supplmented my book learning through school. It taught me about processes, structure and team work, suggestive selling and the six steps to great customer service.

During my stint at Maccas I was regularly called upon to do “window”. This was the name that we gave to the job of serving customers. At various points in my fast food career, Maccas ran a promotion

where the customer would have to recite the Big Mac Chant in 30 seconds or less to receive a free soft drink. As a window girl I would have to listen to endless customers chanting about the ingredients in a Big Mac. What people will do for for a free drink! For those of you who don’t know the Big Mac Chant goes something like this:

Two All Beef Patties Special Sauce Lettuce Cheese Pickles Onions On A Sesame Seed Bun

except if you say it fast it sounds more like:

twoallbeefpattiesspecialsaucelettucecheesepicklesonionsonasesameseedbun

You might be asking what this has to do with social media. Glad you asked.

A couple of days ago, McDonald’s launched its Big Mac Chant promotion. The idea of the promotion is to have Big Mac lovers make a video of the Big Mac Chant and upload it to the website. Visitors to the website then vote on the videos. The mysterious McDonald’s panel then determines the best video to award the grand prize of an overseas trip for 7 people and of course, a Big Mac.

This week in our course material we studied the habits of audiences in the online world. And Big Mac Chant campaign embodies much of what we talked about.

Phot courtesy of freedigitalphots.net

Phot courtesy of freedigitalphots.net

Audiences are not the passive recipients they used to be. Shock horror, we now want to participate, engage and be part of the discussion. Brands and news organisations have recognised and leveraged off this desire to various degrees. Some welcome audience participation, others do not. In what to me is a clever move, McDonald’s is playing the social media audience at its own game in what should be a win/win situation for both. The reward for a great Big Mac Chant is no longer just a soft drink and let’s face it, that just would not cut it in today’s world. The prize is now free publicity, validation and fifteen minutes of fame. The potential for likes and comments and possible retweets and linkages is huge. So, not only is McDonald’s harnessing the creative power of its Big Mac fans at little or no cost, it also feeds into their desire to show off and delivers to them a ready-made audience of fellow Big Mac lovers. Not to mention the odd video producer or advertising agency or two.

The cost of all of this involvement will be the need to moderate its community. The issue for McDonald’s will be that videos and comments left on its website by others will become in effect owned by it. This leads to issues both from a reputation or brand standpoint and a legal standpoint.

I want to focus on the later for the balance of this post.

Over the last few years, the Australian legal system has provided some guidance on responsibility for the activities of others in the online space.

Through a series of Court decisions and decisions of the Advertising Standards Bureau * it is now clear in Australia that:

  • a page or wall owner can be responsible for publication of content on its pages by others when it knows of that publication and does nothing to remove it
  • the Facebook page of a business is a marketing communication tool over which the owner has a reasonable degree of control, and therefore an advertising or marketing communication on that page is covered by the Australian Advertising Code. This is because Facebook provides the tools to effectively moderate the page
  • The Code not only covers material published by the brand, but also to comments and material published on the page by friends or fans of the brand
  • whilst the tone and the audience of the page and brand will be taken into account, it will not be fully determinative of the standards that will apply in that community. Comments which are offensive, such as anti-women or anti-homosexual even for a brand whose marketing is tongue in cheek and full of larrikinism, will still be considered offensive and the brand responsible for them
  • brands need to monitor and moderate their online spaces regularly and remove any offensive material within a reasonable time.

The lesson for brands and businesses is that they must manage the user generated content (UGC) that appears on their pages as actively as they manage their own. Traditionally, big corporates have compliance teams vetting their content before publication. The rise of UGC adds a whole different dimension as the brands don’t know about it until after publication. Vigilance and pro activity is the key to staying on the right side of the legal and reputational line. Online moderation is now a profession and is not for the faint hearted or those short of time.

Now, all this talk of legal liability has made me hungry. Surely, it’s time for a Big Mac.

* See Australian Consumer and Competition Commission v Allergy Pathway Pty Limited (No.2) [2011] FCA 74 and

Advertising Standards Bureau Case Report, Case Number 0271/12, Advertiser: Foster’s Australia, Asia  & Pacific (11 July 2012)

This blog post is for discussion purposes only and does not constitute legal advice. Please see a legal professional to obtain specific advice in relation to your individual circumstances.

Digital Culture: It is All About YOU!

We hear the term “digital culture” everyday. Usually it is used with a negative connotation, describing a counter-revolution to traditional media delivery and consumption and the death of reading and writing as we know it. But what does the expression really mean and what is our place in this so-called “culture”?

Digital CultureLet me start by outlining what it is not. Digital culture is not the same as being digitally cultured. There is no doubt, our children are growing up more exposed to digital devices than ever before and at an ever earlier age. My children were born before the smartphone/tablet revolution, so it always intrigues me when I see toddlers out with their parents at restaurants with smartphone or tablet in hand. They have replaced books and plastic keys as the distraction devices of the new millennium. And from what I have observed, the practice is almost universal. In fact, just yesterday at the supermarket, a four year old was being pushed around in a trolley playing on his tablet allowing his mother the time to shop. I pass no judgement on this practice other than to use it as an example of children becoming more and more familiar with the use of digital devices, in other words becoming digitally cultured. You can read more about the possible impacts in this UK Telegraph article .

The concept of digitally cultured therefore connotes an ever increasing computerization and digitizatilation of society. It is as a result, that digital culture emerges. In his article, Participation, Remediation, Bricolage: Considering Principal Components of Digital Culture, Mark Deuze notes the main components of a digital culture as:

    • Participation – we have all become active agents in the content creation process
    • Remediation – we build on, modify, amplify and recreate what has come before
    • Bricolage – we assemble and disseminate our version of reality

Whilst to Deuze, this may not be quite so radical as it sounds, to some of us it is a huge change in the way we relate to and engage with news and information. We may never have written a letter to a newspaper editor, done a stint on community radio or complained to the Publications and Media Ombudsmen in the past, but we are now blogging, tweeting and linking. Web 2.0 has brought us an easy and low cost way to do it all. And this not only impacts journalism and the way we consume news, but also impacts on product development, marketing, public relations, corporate communication and many other sectors of the economy.

Let’s have a closer look at blogging and see how that fits in with Deuze’s three components.

Examples of news and political blogs abound in the Australian context. In late 2011, Greg Jericho, the author of the Rise of the Fifth Estate and pro blogger at Grog’s Gamut, compiled this list of Australian political blogs. The 2013 winner of the Best Australian Blogs competition in the commentary section was AusVotes 2013, a compilation blog. Clearly, Australians who are not journalists are participating in political commentary by running and contributing to blogs. However, far from replacing traditional media sources, they act as a supplement to it. Would these bloggers or blogs have survived this long if traditional media sources were giving the public all they want in news delivery? They lend another voice to the debate, sometimes that voice is objective, sometimes not, sometimes that voice is in pursuit of a personal agenda, sometimes not. An Internet connection, a point of view and some very basic technical skill is all that participation requires.

According to Deuze, remediation:

does not necessarily mean different from or in radical opposition to, the mainstream or dominant ways of doing things, but rather an expression of a distinctly private enactment of human agency in the omnipresent computer-mediated reality.

What this means is that blogs sit alongside traditional media where public journalism is still practiced in corporate news groups. Blogs however rely more on Netiquette or a loose consesual way of reader and producer interaction whilst still building on notions of quality journalistic practice, such as credibility and legitimacy. They often address the experiences of people in a more meaningful way, taking the news story and targeting its relevance towards readers rather than to a demographic.

And finally, bricolage. This refers to the act of creating something new out of what is existing. Think remix, think tweaking and reassembly. Because of Netiquette, bloggers understand the interconnectivity of the world in which they operate. Linking to mainstream media stories, other blogs and refashioning blog posts to apply across different sites and platforms so as to reach different audiences are all part of the blogger’s tool box. Bloggers of value always however add their own opinions and analysis and as such appear to be talking to us.

Created through Tagxedo

Created through Tagxedo

Every time we post a blog, pass a comment on a new item, take a story and post a link to it whilst adding our own viewpoints we are engaging in digital culture. Every time we follow a Titter news feed, retweet, video an event and upload a YouTube video or add to a Wiki we shape digital culture. It is all about YOU and it is all about ME.

Digital culture gives us the freedom to create and publish, but requires us to live up to the responsibility of being discerning and ethical readers. It is indeed a brave, new world.

In what ways do you participate in digital culture? Are you a blogger? Do you prefer other ways of participation, such as microblogging on Twitter or news dissemination on Facebook?