Lessig on text and image

Earlier this week, I attended a Creative Commons conference at QUT in Brisbane, including the launch of the Creative Commons licence for Australia. The main speaker was Larry Lessig, who gave two papers and joined a panel discussion as well. Lessig is a great speaker with really effective presentations, a point on which I hope to post more later. There was a lot of food for thought, and I’ll start with the opening presentations.

In this talk, the central idea was remix, taking bits and pieces from the existing culture and recombining them to produce something new. My summary of the core argument

1. text is the past, video and audio are the future
2. the set of rights surrounding text has always allowed for a lot of remix, including direct copying for fair use, parody and so on
3. because of digital rights management technology and strong IP, the current trend is to suppress remix for video and audio, thereby depriving our culture of one of its historic sources of validity

As I’ve argued for some years, the first claim doesn’t stand up to scrutiny. The Internet is an essentially text-based network and has promoted a resurgence of text, relative to video and audio, reversing the trends that prevailed for most of the 20th century. But, I think, this part of the argument isn’t central; it provides a rhetorical sense of urgency, but the rest of the argument stands or falls without it.

On the second point, it’s important to notice that the availability of remix differs a lot within the text culture. Remix is far more restricted for fiction than for non-fiction. I can’t, for example, legally publish a novel about Harry Potter goes to Australia,and those who’ve tried something similar have been sued.

The whole culture of fan fiction (including slash fiction) exists in the legal shadows, subject to the will of the original creator. As this story shows, copyright law on fan fiction can create big problems for authors, giving them good reason to refuse permission for the use of their characters and settings.

The paradigm example of remixable text has historically been the academic world, which is, not surprisingly, Lessig’s starting point, and mine. As a general rule, academics adhere to the standard Creative Commons licence: free permission (in fact keen encouragement) to copy, with a strictly enforced demand for acknowledgement of the source. This has worked marvellously well in promoting the growth of knowledge, and it’s no wonder that academics want to promote this model[1].

But the blog world goes far beyond academia in these respects. Blogs havepushed the concept of fair use to the limit, most obviously in the case of ‘fisking’, that is, complete republication of an article interspersed with critical comments. Except in rare cases, this isn’t an exceptionally useful thing to do and the practice has largely died out. But the point remains that, in blogging, fair use extends to complete reproduction. Even if a copyright holder could limit an individual blogger to a couple of sentences, it would be possible for the entire article to be reproduced in separate, but linked, blogs, each commenting on a small part of the original.

Conversely, bloggers are even more particular than academics about credit. Links and trackbacks are the currency of the blogosphere, and when republishing material standard etiquette requires not only acknowledgement of the source but a “hat-tip” to any other blogger whose earlier links were used in locating the material.

On the third point, Lessig made a convincing case that the task of obtaining the rights necessary for reasonable use of audio and video material, and the riskiness of the fair use defence compared to the case of text create a highly burdensome environment for remix. I agree with his conclusion that we need to extend some of the freedoms historically associated with text to the world of audio and video.

There are, however, issues here that are largely orthogonal to the concerns about intellectually property and digitally encoded restrictions on use raised by Lessig. There are some very strong views in the visual arts regarding the integrity of work as a whole, which is antithetical to remix, and much more of a 19th century view of the relationship between the creator and the work. It was striking to listen to the views of a progressive filmmaker who wanted to ensure that he could control the way his work was used, for example to stop segments with negative images of indigenous people being used by racists. When pressed he said that to protect his rights, he would support the rights of Fox to suppress a film like Outfoxed, which uses segments of Fox footage as a central element in its critique.

Intellectual property issues are only tangentially related to this question, which is more concerned with the view that there are inalienable moral rights associated with the act of creation. Once you have sold your copyright (and this is more or less inevitable in most of the activities concerned) you’ve usually licensed a huge range of remixes by the new owner, while still precluding the public in general from engaging in any such activity.

Coming back to the question of text and image, it strikes me that a focus on text leads to a quite optimistic view of the way the issues of intellectual property and intellectual freedom are going. Attempts to cordon off substantial bodies of content as the basis of a “walled garden” have generally failed. A striking instance is the willingness of the NY Times to allow bloggers full access to its archives through RSS feeds, thereby mitigating the problem of linkrot

The NYT is still selling archived stories to those who reach them using its search engine, but it gives them away to bloggers, partly because they can reproduce so much of it while sticking to fair use, and partly because links are valuable to newspapers as well as to bloggers.

Only financial papers like the Wall St Journal and the Australian Financial Review (for which I write) have stuck rigorously to a subscription model. One consequence, I think is a decline in influence for the opinion pages, which don’t benefit from crosslinks.

By contrast with all this, a focus on audio and video yields the kind of negative picture noted by Lessig. Every year, some new acronymic assault on free information seems to arrive, from TRIPS to DMCA to FTA, backed up by the lobbying power and extremist ideology of the RIAA and MPAA. I’ll talk a bit more about this when I cover Lessig’s second talk.

fn1. Of course, as was pointed out with some vigour, we don’t rely on publication sales for our income. We’re in the same position as a band that uses recordings to promote its live gigs, rather than vice versa