tag:theconversation.com,2011:/es/topics/copyright-1766/articlesCopyright – The Conversation2024-03-22T12:32:33Ztag:theconversation.com,2011:article/2257602024-03-22T12:32:33Z2024-03-22T12:32:33ZGenerative AI could leave users holding the bag for copyright violations<figure><img src="https://images.theconversation.com/files/583567/original/file-20240321-21-h56ai6.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5459%2C3612&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How can users of AI tools like OpenAI's Sora video generator be sure they aren't producing copyright-violating content?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-a-video-created-by-open-ais-news-photo/2008187952">Drew Angerer/AFP via Getty Images</a></span></figcaption></figure><p>Generative artificial intelligence has been hailed for its <a href="https://doi.org/10.1038/s41562-023-01751-1">potential to transform creativity</a>, and especially by lowering the <a href="https://doi.org/10.1145/3582269.3615596">barriers to content creation</a>. While the <a href="https://doi.org/10.1126/science.adh4451">creative potential of generative AI tools</a> has often been highlighted, the popularity of these tools poses questions about intellectual property and copyright protection. </p>
<p>Generative AI tools such as ChatGPT are powered by <a href="https://research.ibm.com/blog/what-are-foundation-models">foundational AI models</a>, or AI models <a href="https://hai.stanford.edu/news/what-foundation-model-explainer-non-experts">trained on vast quantities of data</a>. Generative AI is <a href="https://news.mit.edu/2023/explained-generative-ai-1109">trained on</a> billions of pieces of data taken from text or images scraped from the internet. </p>
<p>Generative AI uses very powerful machine learning methods such as <a href="https://doi.org/10.1038/nature14539">deep learning</a> and <a href="https://www.datacamp.com/tutorial/transfer-learning">transfer learning</a> on such vast repositories of data to understand the relationships among those pieces of data – for instance, which words tend to follow other words. This allows generative AI to perform a broad range of tasks that can <a href="https://doi.org/10.1145/3442188.3445922">mimic cognition and reasoning</a>. </p>
<p>One problem is that output from an AI tool can be <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10922">very similar to copyright-protected materials</a>. Leaving aside how generative models are trained, the challenge that widespread use of generative AI poses is how individuals and companies could be held liable when generative AI outputs infringe on copyright protections.</p>
<h2>When prompts result in copyright violations</h2>
<p><a href="https://doi.org/10.1017/dap.2022.10">Researchers</a> and <a href="https://www.tomshardware.com/tech-industry/artificial-intelligence/ai-image-generators-output-copyrighted-characters">journalists</a> have raised the possibility that through selective prompting strategies, people can end up creating text, images or video that violates copyright law. Typically, generative AI tools output an image, text or video but <a href="https://spectrum.ieee.org/midjourney-copyright">do not provide any warning about potential infringement</a>. This raises the question of how to ensure that users of generative AI tools do not unknowingly end up infringing copyright protection. </p>
<p>The legal argument advanced by generative AI companies is that AI trained on copyrighted works is not an infringement of copyright <a href="https://doi.org/10.1126/science.adi0656">since these models are not copying the training data</a>; rather, they are designed to learn the associations between the elements of writings and images like words and pixels. AI companies, including Stability AI, maker of image generator Stable Diffusion, contend that output images provided in response to a particular text prompt <a href="https://www.hollywoodreporter.com/business/business-news/artists-copyright-infringement-case-ai-art-generators-1235632929/">is not likely to be a close match</a> for any specific image in the training data. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/583571/original/file-20240321-16-98fgbv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a pair of hands, one holding a paint brush, over a painting" src="https://images.theconversation.com/files/583571/original/file-20240321-16-98fgbv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/583571/original/file-20240321-16-98fgbv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/583571/original/file-20240321-16-98fgbv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/583571/original/file-20240321-16-98fgbv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/583571/original/file-20240321-16-98fgbv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/583571/original/file-20240321-16-98fgbv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/583571/original/file-20240321-16-98fgbv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Some artists, including Kelly McKernan, who is shown here painting, have sued AI companies for copyright infringement.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AIVisualArtists/48ed9b3665824d72b59bf4b9a7151073/photo?Query=ai%20copyright&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=21&currentItemNo=1">AP Photo/George Walker IV</a></span>
</figcaption>
</figure>
<p>Builders of generative AI tools have argued that prompts do not reproduce the training data, which should protect them from claims of copyright violation. Some audit studies have shown, though, that <a href="https://www.tomshardware.com/tech-industry/artificial-intelligence/ai-image-generators-output-copyrighted-characters">end users of generative AI</a> can issue <a href="https://spectrum.ieee.org/midjourney-copyright">prompts that result in copyright violations</a> by producing works that <a href="https://garymarcus.substack.com/p/no-multimodal-chatgpt-is-not-going">closely resemble copyright-protected content</a>.</p>
<p>Establishing infringement requires <a href="https://houstonlawreview.org/article/92126-copyright-safety-for-generative-ai">detecting a close resemblance</a> between expressive elements of a stylistically similar work and original expression in particular works by that artist. Researchers have shown that methods such as <a href="http://dx.doi.org/10.48550/arXiv.2301.13188">training data extraction attacks</a>, which involve selective prompting strategies, and <a href="https://doi.org/10.48550/arXiv.2311.17035">extractable memorization</a>, which tricks generative AI systems into revealing training data, can recover individual training examples ranging from photographs of individuals to trademarked company logos. </p>
<p>Audit studies such as the one <a href="https://spectrum.ieee.org/midjourney-copyright">conducted by computer scientist Gary Marcus and artist Reid Southern</a> provide several examples where there can be little ambiguity about the degree to which visual generative AI models produce images that infringe on copyright protection. The New York Times provided a similar comparison of images showing how generative AI tools <a href="https://www.nytimes.com/interactive/2024/01/25/business/ai-image-generators-openai-microsoft-midjourney-copyright.html">can violate copyright protection</a>. </p>
<h2>How to build guardrails</h2>
<p>Legal scholars have dubbed the challenge in developing guardrails against copyright infringement into AI tools <a href="https://dx.doi.org/10.2139/ssrn.4438593">the “Snoopy problem</a>.” The more a copyrighted work is protecting a likeness – for example, the cartoon character Snoopy – the more likely it is a generative AI tool will copy it compared to copying a specific image. </p>
<p>Researchers in computer vision <a href="https://doi.org/10.1145/3466780">have long grappled with the issue</a> of how to detect copyright infringement, such as logos that are counterfeited or <a href="https://doi.org/10.1145/3466780">images that are protected by patents</a>. Researchers have also examined how <a href="https://doi.org/10.1145/3611309">logo detection can help identify counterfeit products</a>. These methods can be helpful in detecting violations of copyright. Methods to <a href="https://doi.org/10.1038/s42256-023-00733-2">establish content provenance and authenticity</a> could be helpful as well. </p>
<p>With respect to model training, AI researchers have suggested methods for making <a href="https://doi.org/10.1007/s42979-023-01767-4">generative AI models unlearn</a> <a href="https://openaccess.thecvf.com/content/CVPR2022W/HCIS/html/Kim_Efficient_Two-Stage_Model_Retraining_for_Machine_Unlearning_CVPRW_2022_paper.html">copyrighted data</a>. Some AI companies such as <a href="https://claudeai.uk/anthropic-says-no-client-data-used-in-ai-training/">Anthropic have announced pledges</a> to not use data produced by their customers to train advanced models such as Anthropic’s large language model Claude. Methods for AI safety such as <a href="https://doi.org/10.48550/arXiv.2403.04893">red teaming</a> – attempts to force AI tools to misbehave – or ensuring that the model training process <a href="https://doi.org/10.48550/arXiv.2302.10870">reduces the similarity</a> between the outputs of generative AI and copyrighted material may help as well.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/DUwDqSY8StE?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Artists and technologists are fighting back against AI copyright infringement.</span></figcaption>
</figure>
<h2>Role for regulation</h2>
<p>Human creators know to decline requests to produce content that violates copyright. Can AI companies build similar guardrails into generative AI?</p>
<p>There’s no established approaches to build such guardrails into generative AI, nor are there any <a href="https://spectrum.ieee.org/midjourney-copyright">public tools or databases that users can consult</a> to establish copyright infringement. Even if tools like these were available, they could put an excessive burden on <a href="https://spectrum.ieee.org/midjourney-copyright">both users and content providers</a>.</p>
<p>Given that naive users can’t be expected to learn and follow best practices to avoid infringing copyrighted material, there are roles for policymakers and regulation. It may take a combination of legal and regulatory guidelines to ensure best practices for copyright safety. </p>
<p>For example, companies that build generative AI models could <a href="https://dx.doi.org/10.2139/ssrn.4438593">use filtering or restrict model outputs</a> to limit copyright infringement. Similarly, regulatory intervention may be necessary to ensure that builders of generative AI models <a href="https://dx.doi.org/10.2139/ssrn.4438593">build datasets and train models</a> in ways that reduce the risk that the output of their products infringe creators’ copyrights.</p><img src="https://counter.theconversation.com/content/225760/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anjana Susarla receives funding from the National Institute of Health</span></em></p>With the right prompts, AI users can mimic copyrighted works. There’s no easy technical or legal fix.Anjana Susarla, Professor of Information Systems, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2217172024-01-25T13:18:54Z2024-01-25T13:18:54ZCould a court really order the destruction of ChatGPT? The New York Times thinks so, and it may be right<figure><img src="https://images.theconversation.com/files/571252/original/file-20240124-29-abie1d.jpg?ixlib=rb-1.1.0&rect=7%2C44%2C4985%2C3196&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Old media, meet new.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-the-new-york-times-logo-is-seen-news-photo/1894336797">Idrees Abbas/SOPA Images/LightRocket via Getty Images</a></span></figcaption></figure><p>On Dec. 27, 2023, The New York Times <a href="https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec2023.pdf">filed a lawsuit</a> against OpenAI alleging that the company committed willful copyright infringement through its generative AI tool ChatGPT. The Times claimed both that ChatGPT was unlawfully trained on vast amounts of text from its articles and that ChatGPT’s output contained language directly taken from its articles.</p>
<p>To remedy this, the Times asked for more than just money: It asked a federal court to order the “destruction” of ChatGPT.</p>
<p>If granted, this request would force OpenAI to delete its trained large language models, such as GPT-4, as well as its training data, which would prevent the company from rebuilding its technology. </p>
<p>This prospect is alarming to the <a href="https://www.theverge.com/2023/11/6/23948386/chatgpt-active-user-count-openai-developer-conference">100 million people</a> who use ChatGPT every week. And it raises two questions that interest me as a <a href="https://law.indiana.edu/about/people/details/marinotti-jo%C3%A3o.html">law professor</a>. First, can a federal court actually order the destruction of ChatGPT? And second, if it can, will it?</p>
<h2>Destruction in the court</h2>
<p>The answer to the first question is yes. Under <a href="https://www.law.cornell.edu/uscode/text/17/503">copyright law</a>, courts do have the power to issue destruction orders. </p>
<p>To understand why, consider vinyl records. Their <a href="https://www.theverge.com/2023/3/10/23633605/vinyl-records-surpasses-cd-music-sales-us-riaa">resurging popularity</a> has attracted <a href="https://fortune.com/2023/04/06/punk-rock-fan-uncovers-six-year-scam-that-sold-1-6-million-worth-of-counterfeit-vinyl-records-to-collectors/">counterfeiters who sell pirated records</a>. </p>
<p>If a record label sues a counterfeiter for copyright infringement and wins, what happens to the counterfeiter’s inventory? What happens to the master and stamper disks used to mass-produce the counterfeits, and the machinery used to create those disks in the first place?</p>
<p>To address these questions, copyright law grants courts the power to destroy infringing goods and the equipment used to create them. From the law’s perspective, there’s no legal use for a pirated vinyl record. There’s also no legitimate reason for a counterfeiter to keep a pirated master disk. Letting them keep these items would only enable more lawbreaking.</p>
<p>So in some cases, destruction is the only logical legal solution. And if a court decides ChatGPT is like an infringing good or pirating equipment, it could order that it be destroyed. In its complaint, the Times offered arguments that ChatGPT fits both analogies.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/kUUievwKEaM?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">NBC News reports on The New York Times’ lawsuit.</span></figcaption>
</figure>
<p>Copyright law has never been used to destroy AI models, but OpenAI shouldn’t take solace in this fact. The law has been increasingly open to the idea of targeting AI. </p>
<p>Consider the Federal Trade Commission’s recent use of <a href="https://www.jdsupra.com/legalnews/ftc-coppa-settlement-requires-deletion-1217192">algorithmic disgorgement</a> as an example. The FTC has forced companies <a href="https://www.dwt.com/-/media/files/blogs/privacy-and-security-blog/2022/03/weight-watchers-kurbo-stipulated-order.pdf">such as WeightWatchers</a> to delete not only unlawfully collected data but also the algorithms and AI models trained on such data. </p>
<h2>Why ChatGPT will likely live another day</h2>
<p>It seems to be only a matter of time before copyright law is used to order the destruction of AI models and datasets. But I don’t think that’s going to happen in this case. Instead, I see three more likely outcomes.</p>
<p>The first and most straightforward is that the two parties could settle. In the case of a successful settlement, which <a href="https://www.washingtonpost.com/technology/2024/01/04/nyt-ai-copyright-lawsuit-fair-use">may be likely</a>, the lawsuit would be dismissed and no destruction would be ordered.</p>
<p>The second is that the court might side with OpenAI, agreeing that ChatGPT is protected by the copyright doctrine of “<a href="https://www.copyright.gov/fair-use/#:%7E:text=Fair%20use%20is%20a%20legal,protected%20works%20in%20certain%20circumstances.">fair use</a>.” If OpenAI can argue that ChatGPT is transformative and that its service does not provide a substitute for The New York Times’ content, it just might win. </p>
<p>The third possibility is that OpenAI loses but the law saves ChatGPT anyway. Courts can order destruction only if two requirements are met: First, destruction must not prevent lawful activities, and second, it must be “<a href="https://casetext.com/case/hounddog-prods-llc-v-empire-film-grp-inc">the only remedy</a>” that could prevent infringement. </p>
<p>That means OpenAI could save ChatGPT by proving either that ChatGPT has legitimate, noninfringing uses or that destroying it isn’t necessary to prevent further copyright violations. </p>
<p>Both outcomes seem possible, but for the sake of argument, imagine that the first requirement for destruction is met. The court could conclude that, because of the articles in ChatGPT’s training data, all uses infringe on the Times’ copyrights – an argument put forth in <a href="https://copyrightalliance.org/current-ai-copyright-cases-part-1/">various other lawsuits</a> against generative AI companies. </p>
<p>In this scenario, the court would issue an injunction ordering OpenAI to stop infringing on copyrights. Would OpenAI violate this order? Probably not. A single counterfeiter in a shady warehouse might try to get away with that, but that’s less likely with a <a href="https://www.reuters.com/technology/openai-talks-raise-new-funding-100-bln-valuation-bloomberg-news-2023-12-22/">US$100 billion company</a>.</p>
<p>Instead, it might try to retrain its AI models without using articles from the Times, or it might develop other software guardrails to prevent further problems. With these possibilities in mind, OpenAI would likely succeed on the second requirement, and the court wouldn’t order the destruction of ChatGPT. </p>
<p>Given all of these hurdles, I think it’s extremely unlikely that any court would order OpenAI to destroy ChatGPT and its training data. But developers should know that courts do have the power to destroy unlawful AI, and they seem increasingly willing to use it.</p><img src="https://counter.theconversation.com/content/221717/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>João Marinotti does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It may seem extreme, but there’s a reason the law allows it.João Marinotti, Associate Professor of Law, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2210592024-01-17T17:49:49Z2024-01-17T17:49:49ZHow a New York Times copyright lawsuit against OpenAI could potentially transform how AI and copyright work<figure><img src="https://images.theconversation.com/files/569551/original/file-20240116-23-9vwxs9.jpg?ixlib=rb-1.1.0&rect=17%2C0%2C5858%2C3920&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/dnipro-ukraine-0507-new-york-times-2361003783">Stas Malyarevsky / Shutterstock</a></span></figcaption></figure><p>On December 27, 2023, the New York Times (NYT) <a href="https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec2023.pdf">filed a lawsuit</a> in the Federal
District Court in Manhattan <a href="https://blogs.microsoft.com/blog/2023/01/23/microsoftandopenaiextendpartnership/">against Microsoft</a> and <a href="https://openai.com/">OpenAI</a>, the creator of <a href="https://chat.openai.com/auth/login">ChatGPT</a>,
alleging that OpenAI had unlawfully used its articles to create artificial intelligence (AI) products.</p>
<p>Citing copyright infringement and the importance of independent journalism to democracy, the newspaper further alleged that even though the defendant, OpenAI, may have “engaged in wide scale copying from many sources, they gave Times content particular emphasis” in training generative artificial intelligence (GenAI) tools such as Generative Pre-Trained Transformers (GPT). This is the kind of technology that underlies products such as the AI chatbot ChatGPT.</p>
<p>The complaint by the New York Times states that OpenAI took millions of copyrighted news articles, in-depth investigations, opinion pieces, reviews, how-to guides and more in an attempt to “free ride on the Times’s massive investment in its journalism”.</p>
<p><a href="https://openai.com/blog/openai-and-journalism">In a blog post</a> published by OpenAI on January 8, 2024, the tech company responded to the allegations by emphasising its support of journalism and partnerships with news organisations. It went on to say that the “NYT lawsuit is without merit”. </p>
<p>In the months prior to the complaint being lodged by the New York Times, OpenAI had entered into agreements with large media companies such as <a href="https://openai.com/blog/axel-springer-partnership">Axel-Springer</a> and the <a href="https://apnews.com/article/openai-chatgpt-associated-press-ap-f86f84c5bcc2f3b98074b38521f5f75a">Associated Press</a>, although notably, the Times failed to reach an agreement with the tech company.</p>
<p>The NYT case is important because it is different to other cases involving AI and copyright, such as the case brought by the online photo library <a href="https://newsroom.gettyimages.com/en/getty-images/getty-images-statement">Getty Images against the tech company Stability AI</a> earlier in 2023. In this case, Getty Images alleged that Stability AI processed millions of copyrighted images using a tool called Stable Diffusion, which generates images from text prompts using AI.</p>
<p>The main difference between this case and the New York Times one is that the newspaper’s complaint highlighted <em>actual outputs</em> used by OpenAI to train its AI tools. The Times provided examples of articles that were reproduced almost verbatim.</p>
<h2>Use of material</h2>
<p>The defence available to OpenAI is “fair use” under <a href="https://www.copyright.gov/title17/92chap1.html">the US Copyright Act 1976</a>, section 107. This is because the unlicensed use of copyright material to train generative AI models can serve as a “transformative use” which changes the original material. However, <a href="https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec2023.pdf">the complaint</a> from the New York Times also says that their chatbots bypassed the newspaper’s paywalls to create summaries of articles. </p>
<p>Even though summaries do not infringe copyright, their use could be used by the New York Times to try to demonstrate a negative commercial impact on the newspaper – challenging the fair use defence.</p>
<figure class="align-center ">
<img alt="ChatGPT" src="https://images.theconversation.com/files/569550/original/file-20240116-15-9vwxs9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569550/original/file-20240116-15-9vwxs9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569550/original/file-20240116-15-9vwxs9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569550/original/file-20240116-15-9vwxs9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569550/original/file-20240116-15-9vwxs9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569550/original/file-20240116-15-9vwxs9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569550/original/file-20240116-15-9vwxs9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/screen-smartphone-chatgpt-chat-ai-tool-2261871805">Giulio Benzin / Shutterstock</a></span>
</figcaption>
</figure>
<p><a href="https://www.cnbc.com/2024/01/08/openai-responds-to-new-york-times-lawsuit.html">This case</a> could ultimately be settled out of court. It is also possible that the Times’ lawsuit was more a <a href="https://www.theinformation.com/articles/new-york-times-co-s-openai-microsoft-suit-is-a-negotiating-tactic">negotiating tactic</a> than a real attempt to go all the way to trial. Whichever way the case proceeds, it could have important implications for both traditional media and AI development. </p>
<p>It also raises the question of the suitability of current copyright laws to deal with AI. In a submission to the <a href="https://committees.parliament.uk/writtenevidence/126981/pdf/">House of Lords communications and digital select committee</a> on December 5, 2023, OpenAI claimed that “it would be impossible to train today’s leading AI models without copyrighted materials”. </p>
<p>It went on to say that “limiting training data to public domain books and drawings created more than a century ago might yield an interesting experiment but would not provide AI systems that meet the needs of today’s citizens”.</p>
<h2>Looking for answers</h2>
<p><a href="https://www.europarl.europa.eu/news/en/headlines/society/20230601STO93804/eu-ai-act-first-regulation-on-artificial-intelligence">The EU’s AI Act</a> – the world’s first AI Act – might give us insights into some future directions. Among its many articles, there are two provisions particularly relevant to copyright.</p>
<p>The first provision titled, “Obligations for providers of general-purpose AI
models” includes two distinct requirements related to copyright. Section 1(C)
requires providers of general-purpose AI models to put in place a policy to respect EU copyright law.</p>
<p>Section 1(d) requires providers of general purpose AI systems to draw up and make publicly available a detailed summary about content used for training AI systems.</p>
<p><a href="https://copyrightblog.kluweriplaw.com/2023/12/11/a-first-look-at-the-copyright-relevant-parts-in-the-final-ai-act-compromise/">While section 1(d)</a> raises some questions, section 1(c) makes it clear that any use of copyright protected content requires the authorisation of the rights holder concerned unless relevant copyright exceptions apply. Where the rights to opt out has been expressly reserved in an appropriate manner, providers of general purpose AI models, such as OpenAI, will need to obtain authorisation from rights holders if they want to carry out text and data mining on their copyrighted works.</p>
<p>Even though <a href="https://www.theguardian.com/technology/2023/sep/01/the-guardian-blocks-chatgpt-owner-openai-from-trawling-its-content">the EU AI Act</a> may not be directly relevant to the <a href="https://www.theguardian.com/technology/2023/aug/25/new-york-times-cnn-and-abc-block-openais-gptbot-web-crawler-from-scraping-content">New York Times</a> complaint against OpenAI, it illustrates the way in which copyright laws will be designed to deal with this fast-moving technology. In future, we are likely to see more media organisations adopting this law to protect journalism and creativity. In fact, even before the EU AI Act was passed, the New York Times blocked OpenAI from trawling its content. The Guardian followed suit in September 2023 – as did many others.</p>
<p>However, the move did not allow material to be removed from existing training
data sets. Therefore, any copyrighted material used by the training models up until then would have been used in OpenAI’s outputs – which led to negotiations between the New York Times and OpenAI breaking down.</p>
<p>With laws such as those in the EU AI Act now placing legal obligations on general purpose AI models, their future could look more constrained in the way that they use copyrighted works to train and improve their systems. We can expect other jurisdictions to update their copyright laws reflecting similar provisions to that of the EU AI Act in an attempt to protect creativity. As for traditional media, ever since the rise of the internet and social media, news outlets have been challenged in drawing readers to their sites and generative AI has simply exacerbated this issue.</p>
<p>This case will not spell the end of generative AI or copyright. However, it certainly raises questions for the future of AI innovation and the protection of creative content. AI will certainly continue to grow and develop and we will continue to see and experience its many benefits. However, the time has come for policymakers to take serious note of these AI developments and update copyright laws, protecting creators in the process.</p><img src="https://counter.theconversation.com/content/221059/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dinusha Mendis does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The lawsuit could see other media companies move to protect their copyrighted content.Dinusha Mendis, Professor of Intellectual Property and Innovation Law; Director Centre for Intellectual Property Policy and Managament (CIPPM), Bournemouth University, Bournemouth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2167252024-01-17T13:38:02Z2024-01-17T13:38:02ZReining in AI means figuring out which regulation options are feasible, both technically and economically<figure><img src="https://images.theconversation.com/files/569664/original/file-20240116-21-278zrn.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5097%2C2880&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">One form of regulating AI is watermarking its output – the equivalent of AI signing its work.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/an-artificial-intelligence-paints-a-portrait-of-a-royalty-free-image/1427639738">R_Type/iStock via Getty Images</a></span></figcaption></figure><p>Concern about generative artificial intelligence technologies <a href="https://www.pewresearch.org/short-reads/2023/08/28/growing-public-concern-about-the-role-of-artificial-intelligence-in-daily-life/">seems to be growing</a> almost as fast as the spread of the technologies themselves. These worries are driven by unease about the possible spread of disinformation at a scale never seen before, and fears of loss of employment, loss of control over creative works and, more futuristically, AI becoming so powerful that it causes extinction of the human species. </p>
<p>The concerns have given rise to calls for regulating AI technologies. Some governments, for example <a href="https://www.consilium.europa.eu/en/press/press-releases/2023/12/09/artificial-intelligence-act-council-and-parliament-strike-a-deal-on-the-first-worldwide-rules-for-ai/">the European Union</a>, have responded to their citizens’ push for regulation, while some, such as the U.K. and India, are taking a more laissez-faire approach.</p>
<p>In the U.S., the White House <a href="https://theconversation.com/biden-administration-executive-order-tackles-ai-risks-but-lack-of-privacy-laws-limits-reach-216694">issued an executive order</a> on Oct. 30, 2023, titled Safe, Secure, and Trustworthy Artificial Intelligence. It sets out guidelines to reduce both immediate and long-term risks from AI technologies. For example, it asks AI vendors to share safety test results with the federal government and calls for Congress to enact consumer privacy legislation in the face of AI technologies soaking up as much data as they can get. </p>
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<figcaption><span class="caption">The Biden administration’s executive order on artificial intelligence set some key standards, but most of the work of regulating AI falls to Congress and the states.</span></figcaption>
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<p>In light of the drive to regulate AI, it is important to consider which approaches to regulation are feasible. There are two aspects to this question: what is technologically feasible today and what is economically feasible. It’s also important to look at both the training data that goes into an AI model and the model’s output.</p>
<h2>1. Honor copyright</h2>
<p>One approach to regulating AI is to limit the training data to public domain material and copyrighted material that the AI company has secured permission to use. An AI company can decide precisely what data samples it uses for training and can use only permitted material. This is technologically feasible.</p>
<p>It is partially economically feasible. The quality of the content that AI generates depends on the amount and richness of the training data. So it is economically advantageous for an AI vendor to not have to limit itself to content it’s received permission to use. Nevertheless, today some companies in generative AI are proclaiming as a sellable feature that they are only using content they have permission to use. One example is Adobe with its <a href="https://firefly.adobe.com/">Firefly image generator</a>.</p>
<h2>2. Attribute output to a training data creator</h2>
<p>Attributing the output of AI technology to a specific creator – artist, singer, writer and so on – or group of creators so they can be compensated is another potential means of regulating generative AI. However, the complexity of the AI algorithms used makes it <a href="https://doi.org/10.48550/arXiv.1312.6199">impossible to say which input samples the output is based on</a>. Even if that were possible, it would be impossible to determine the extent each input sample contributed to the output. </p>
<p>Attribution is an important issue because it’s likely to determine whether creators or the license holders of their creations will embrace or fight AI technology. The 148-day <a href="https://theconversation.com/what-are-hollywood-actors-and-writers-afraid-of-a-cinema-scholar-explains-how-ai-is-upending-the-movie-and-tv-business-210360">Hollywood screenwriters’ strike</a> and the <a href="https://www.theguardian.com/culture/2023/oct/01/hollywood-writers-strike-artificial-intelligence">resultant concessions they won</a> as protections from AI showcase this issue.</p>
<p>In my view, this type of regulation, which is at the output end of AI, is technologically not feasible. </p>
<h2>3. Distinguish human- from AI-generated content</h2>
<p>An immediate worry with AI technologies is that they will unleash automatically generated disinformation campaigns. This has already happened to various extents – for example, <a href="https://thehackernews.com/2023/12/russias-ai-powered-disinformation.html">disinformation campaigns during the Ukraine-Russia war</a>. This is an important concern for democracy, which relies on a public informed through reliable news sources. </p>
<p>There is a lot of activity in the startup space aimed at developing technology that can tell AI-generated content from human-generated content, but so far, this technology is <a href="https://www.nytimes.com/2023/05/18/technology/ai-chat-gpt-detection-tools.html">lagging behind generative AI technology</a>. The current approach focuses on identifying the patterns of generative AI, which is almost by definition fighting a losing battle.</p>
<p>This approach to regulating AI, which is also at the output end, is technologically not currently feasible, though rapid progress on this front is likely. </p>
<h2>4. Attribute output to an AI firm</h2>
<p>It is possible to attribute AI-generated content as coming from a specific AI vendor’s technology. This can be done through the well-understood and mature technology of <a href="https://www.cisa.gov/news-events/news/understanding-digital-signatures">cryptographic signatures</a>. AI vendors could cryptographically sign all output from their systems, and anyone could verify those signatures. </p>
<p>This technology is already embedded in basic computational infrastructure – for example, when a web browser verifies a website you are connecting to. Therefore, AI companies could easily deploy it. It’s a different question whether it’s desirable to rely on AI-generated content from only a handful of big, well-established vendors whose signatures can be verified. </p>
<p>So this form of regulation is both technologically and economically feasible. The regulation is geared toward the output end of AI tools. </p>
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<figcaption><span class="caption">The stakes are high for being able to distinguish between AI-generated and human-generated content.</span></figcaption>
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<p>It will be important for policymakers to understand the possible costs and benefits of each form of regulation. But first they’ll need to understand which of these is technologically and economically feasible.</p><img src="https://counter.theconversation.com/content/216725/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Saurabh Bagchi receives research funding from a variety of federal government agencies and a few corporate entities. The total list of current and past funders can be found from his CV which is at:
<a href="https://bagchi.github.io/vita.html">https://bagchi.github.io/vita.html</a>
He is a Professor at Purdue University, the CTO of a cloud computing startup, KeyByte, and is a Board of Governors member of the IEEE Computer Society.</span></em></p>There are many ideas about how to regulate AI, but not all of them are technologically feasible, and some of those that are won’t fly economically.Saurabh Bagchi, Professor of Electrical and Computer Engineering, Purdue UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2206562024-01-14T19:05:41Z2024-01-14T19:05:41ZThe first Mickey Mouse is now in the public domain. How can I use the Disney character?<p>The earliest versions of Mickey and Minnie Mouse entered the public domain in the United States at the start of this year, 95 years since they were introduced to the public in the film Steamboat Willie. </p>
<p>Many characters come into the public domain on New Year’s Day (<a href="https://en.wikipedia.org/wiki/Public_Domain_Day">Public Domain Day</a>) every year. For works “made for hire”, including films, copyright in the United States lasts 95 years; for other works it is the life of an author plus 70 years. </p>
<p>Prior to 1998, copyright for works of corporate ownership lasted 75 years, but the <a href="https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act">Sonny Bono Copyright Term Extension Act of 1998</a>, often nicknamed the Mickey Mouse Protection Act due to the lobbying by Disney, expanded copyright protections to 95 years.</p>
<p>Only this first iteration of Mickey is in the public domain, but it didn’t take long for creators to seize the opportunity – limited though it might be.</p>
<p>Already <a href="https://www.cbsnews.com/news/mickey-mouse-at-least-2-horror-movies-disney-copyright-over/">two horror films</a> are on the horizon, albeit with the lawyers on hand to make sure there will be no cease and desist letters! </p>
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Read more:
<a href="https://theconversation.com/happy-birthday-mickey-mouse-animations-greatest-showman-is-90-106563">Happy birthday Mickey Mouse – animation's greatest showman is 90</a>
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<h2>What can people do with Mickey?</h2>
<p>The earlier iterations of Mickey and other characters from Steamboat Willie can be used in any adaptation. </p>
<p>Before this they could only be used in a transformative way under the United States’ <a href="https://www.lib.purdue.edu/uco/fair-use">fair use exception</a>. Fair use in the US allows creators to transform other existing works as long as they create something new and different from them. </p>
<p>This feature of the US copyright system in a <a href="https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf">recent case</a> reiterated that it would only work where works were not in competition with each other. </p>
<p>From January 1, this factor is irrelevant for early Mickey. As long as creators are not misleading consumers as to Disney endorsement or connection, do not use Mickey’s later likeness, and don’t use the Mickey or characters of Steamboat Willie as a trademark, they are free to go nuts.</p>
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<h2>Can I use Mickey in Australia?</h2>
<p>Many jurisdictions have <a href="https://commons.wikimedia.org/wiki/File:World_copyright_terms.svg">different terms</a> for copyright, so it may be that early Mickey is still not free in some places.</p>
<p>In Australia, films made in Australia get <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca1968133/s93.html">70 years</a> of copyright protection once made public, so all Australian films made public before 1955 are now in the public domain.</p>
<p>Australia’s protection for cinematography works is shorter than the US, but due to a number of <a href="https://www.wipo.int/treaties/en/ip/berne/">treaty obligations</a>, member states give the same treatment to foreign works that they do national ones. This means the law that applies will depend on where you are sued, and if an Australian was sued in the US for their usage of early Mickey Mouse before this year you could be liable under US copyright laws. </p>
<p>As of 2024, if Disney sued you in Australia or the US you are likely to win but other jurisdictions may still have some protection, so it will depend on where you publish or show the work. Online, where a work can be “shown” anywhere, the suing company can not just choose any country: there must be some connection for the parties to the country they are being sued in.</p>
<p>Additionally, while Australia does not have a broad fair use exception to copyright, our creators could always use Mickey in a parody or satire or for review or criticism. I may even have used a likeness or two in a law exam question (<a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca1968133/s200.html">exams have a special exception under the act</a>). </p>
<p>With the early Mickey in the public domain, you no longer need to be satisfied that one of those categories applies. A movie, artwork or literary work that shows the early version of Mickey can be whatever you want. </p>
<p>The issue will then be making sure your creative work is restricted to the early Mickey. For example, when Winnie the Pooh came into the public domain in 2022 only the A.A Milne version was free to use so the <a href="https://www.youtube.com/watch?v=W3E74j_xFtg">horror movie</a> made shortly after did not include the famous red t-shirt used in the Disney version. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/life-plus-70-who-really-benefits-from-copyrights-long-life-48971">Life plus 70: who really benefits from copyright's long life?</a>
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<p>A trademark is very different to copyright. Trademarks can last forever as long as registration is renewed, but there is no restriction on using logos and names that are trademarked as long as you are not using it as your own brand identity or mark, and not misleading or confusing consumers as to the origin of products. That means you can’t call your business “Mickey Mouse” or “Steamboat Willie” but you can use the likeness of those early characters in your marketing (as long as it’s not being used as <em>your</em> logo or brand recognition). </p>
<p>A number of <a href="https://archiveofourown.org/works/search?work_search%5Bquery%5D=Mickey+Mouse">fan fiction</a> and perhaps even some more risqué adaptations using Mickey Mouse already exist online. Fan fiction will often also be a copyright infringement but the risk of being sued is slightly smaller. Companies tend to go after those who are making commercial dealings and those that they see as hurting their brand image. Even Banksy has incorporated <a href="https://hexagongallery.com/catalog/artist/banksy/napalm-cant-beat-that-feeling/">Mickey in a work</a> (likely being seen as a parody and as such non-infringing). </p>
<p>On the other hand, commercial publishers are incredibly risk averse and so if you do want to use Mickey be warned there may be an issue getting a publisher to bite. Additionally, merchandising of your creative work may be an issue depending on trademarks in different categories and where you market these. You also will only get copyright protection on original elements you add to the work.</p>
<p>So yes, upload and share the original movie, paint those early Mickeys, sing a song about Steamboat Willie, and enjoy the horror comedies coming out. Next year Popeye will become public domain so don’t be surprised if a slasher horror remake of him is coming soon!</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/tiktokkers-are-writing-ratatouille-the-musical-but-who-owns-the-copyright-151294">TikTokkers are writing Ratatouille, the musical. But who owns the copyright?</a>
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<p class="fine-print"><em><span>Sarah Hook does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The earliest versions of Mickey and Minnie Mouse entered the public domain in the United States at the start of this year, 95 years since they were introduced to the public.Sarah Hook, Senior Lecturer in Law, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2184992023-12-03T13:27:47Z2023-12-03T13:27:47ZCanada’s Fall Economic Statement signals the ‘right to repair’ your tech devices<figure><img src="https://images.theconversation.com/files/562810/original/file-20231130-19-4lzp9h.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3000%2C1998&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Copyright and intellectual property laws protect manufacturers, but can also affect consumers' right to repair.</span> <span class="attribution"><span class="source">(Blaz Erzetic/Unsplash)</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/canadas-fall-economic-statement-signals-the-right-to-repair-your-tech-devices" width="100%" height="400"></iframe>
<p>On Nov. 23, the Government of Canada released the <a href="https://www.canada.ca/en/department-finance/news/2023/11/government-of-canada-releases-2023-fall-economic-statement.html">2023 Fall Economic Statement</a>. In a bold move toward empowering consumers, reducing costs and promoting sustainability, the Canadian government has <a href="https://www.budget.canada.ca/fes-eea/2023/report-rapport/chap2-en.html">reiterated its commitment to the ‘right to repair</a>.’ </p>
<p>The right to repair is a public interest movement seeking greater parts, tools, information and software necessary to repair and maintain the devices and technologies that surround us. Advocates for the right to repair point to the need to reduce <a href="https://www.sciencedirect.com/topics/computer-science/planned-obsolescence">planned obsolescence</a>, increase consumer choice and market competition and offer greater social understanding and technological literacy.</p>
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<figcaption><span class="caption">The right to repair movement advocates for consumers to be able to repair their goods.</span></figcaption>
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<p>In setting sights on amending the Competition Act, the Fall Economic Statement signals a decisive step by the federal government to prevent manufacturers from refusing to provide the “means of repair of devices and products in an anti-competitive manner.” </p>
<p>This is welcome news for repair advocates, but making sure that manufacturers are compliant will pose some challenges.</p>
<h2>Intellectual property rights</h2>
<p>Bill C-244 <a href="https://www.parl.ca/legisinfo/en/bill/44-1/c-244">amends the Copyright Act to allow access to device software for repair-related purposes</a>. With Bill C-244 receiving unanimous support in the House of Commons and now before the Senate, the focus on competition law reforms signals that the government has taken a broad view of their legislative strategy for the right to repair. </p>
<p>But, <a href="https://www.law360.ca/articles/28188/one-person-s-trash-interaction-between-intellectual-property-right-to-repair">as many have observed</a>, the approaches taken by manufacturers to refuse access to the “means of repair” are often enabled by a number of different intellectual property (IP) rights. </p>
<p>Copyright in software is just one of many IP rights that can be leveraged to keep a tight leash on repair. Addressing these issues at the market competition level will require a more comprehensive view of the IP dynamics at play when crafting new policy.</p>
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<a href="https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a screen showing code" src="https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Bill C-244 allows access to device software for repair-related purposes.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<h2>Competition and intellectual property</h2>
<p>Manufacturers attempting to restrict access to repair often rely on a combination of copyright, software protection, patent law, industrial design, trademark law, contractual terms of use and warranties to maintain a tight grip on repair processes. A key challenge in recalibrating Canada’s competition rules will be in navigating this often overlapping and complex network of rights.</p>
<p>Any renewed competition policy to promote repair will need to distinguish between the legitimate application of IP rights, and the laws used to prevent independent repair.</p>
<h2>Applicable laws</h2>
<p>The intersection between IP rights and repair is quite broad. Patent rights can be asserted to safeguard the technical aspects of manufacturers’ devices and products. This includes intricate components and proprietary technologies that are integral to the functionality of devices. In some cases, the line between repairing or “remaking” a product or device with patented components is not entirely clear.</p>
<p>Industrial designs are lesser-known IP rights that can also impact repair. These rights focus on <a href="https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/industrial-designs/industrial-designs-guide">the esthetic elements of products or their components</a>. Manufacturers often use distinctive designs as a means of product differentiation. </p>
<p>In these types of situations, the lines between form and function become blurry, as the distinctive design of parts or components may be the only one that will fit or work properly for repair purposes. </p>
<p>This is an issue that has been <a href="https://www.dyoung.com/en/knowledgebank/articles/acacia-designs-repairs">well discussed in the European Union</a>, and Canadian policymakers should take note. Of particular concern is the ability for industrial design rights to prevent others from manufacturing or selling replacement parts.</p>
<p>Trademark law, which safeguards brand identity and prevents consumer confusion in the marketplace, is also used by manufacturers to control repair avenues. In some cases, refurbished or replacement parts will bear small trademarks of the original manufacturer.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a person's hand revealing the inside of a mobile phone" src="https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Intellectual property rights can be applied to industrial design.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p><a href="https://repair.eu/news/apple-crushes-one-man-repair-shop/">As a small iPhone repair shop owner in Norway learned</a>, these often microscopic trademarks can offer enormous downstream control by original manufacturers. </p>
<p>Even if these logos are not visible after the part has been installed into the device, their existence on the part itself may be enough to <a href="https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/corporate-information/intellectual-property-blog/how-stop-counterfeit-products-border">empower the Canada Border Services Agency</a> to deem them “counterfeit goods,” requiring their destruction or issuance of fines. </p>
<p>A challenge for Canada’s competition authorities lies in crafting amendments that prevent abusive uses of trademark rights without diluting their essential protection or the legitimate need to combat counterfeit goods.</p>
<h2>Amending the Competition Act</h2>
<p>The government is chartering new waters in addressing the right to repair as a market competition issue.</p>
<p>The challenge for policymakers will be in preventing abusive practices while not compromising the exclusive rights guaranteed by various IP statutes. It would certainly not be the first time that policymakers have put their mind to these issues, however. </p>
<p>Canada’s <a href="https://ised-isde.canada.ca/site/competition-bureau-canada/en/how-we-foster-competition/education-and-outreach/intellectual-property-enforcement-guidelines#sec07">Intellectual Property Law Enforcement Guidelines</a> acknowledge the intricate relationship between intellectual property and competition law. Any approach to recalibrate Canada’s competition rules to embrace repair will need to revisit (and likely significantly add to) these guidelines. </p>
<p>Any proposed amendments to the Competition Act must not only uphold national guarantees, but reconcile with these and other international obligations. Canada’s commitments under various international agreements, including the <a href="https://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/ip-pi/trips-adpic.aspx?lang=eng">Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)</a>, require that Canada guarantee a certain level of protection for various forms of IP rights. </p>
<p>Even beyond IP rights, Canada <a href="https://www.theglobeandmail.com/business/commentary/article-right-to-repair-movement-digital-trade/">has agreed to safeguard the secrecy of source code and diagnostic software</a> as part of the Canada-United States-Mexico Agreement (CUSMA). Unless revisited and renegotiated, this obligation alone could limit the government’s wiggle room to create new competition remedies addressing repair, straining the ability of the Competition Bureau to intervene in anti-competitive situations.</p>
<p>As challenging as it may be to wade into these waters, the government’s commitment is welcome news. The intricate dance between competition law and guaranteeing protection for various intellectual property rights signals an opportunity to create a more level playing field for independent repair businesses across the country.</p>
<p>The Fall Economic Statement signifies a recognition and willingness to see the right to repair as a broad-based policy initiative, and this gives reason for much hope and optimism.</p><img src="https://counter.theconversation.com/content/218499/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony D Rosborough is the recipient of a Doctoral Award from the Social Sciences and Humanities Research Council of Canada (SSHRC), and volunteers with the Canadian Repair Coalition.</span></em></p>In the Fall Economic Statement, the Canadian government signalled its commitment to the right to repair.Anthony D Rosborough, Assistant Professor of Law & Computer Science, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2166192023-11-23T19:02:22Z2023-11-23T19:02:22ZFriday essay: ‘when the facts conflict with the legend’ – how does a biographer balance storytelling with the truth?<figure><img src="https://images.theconversation.com/files/561178/original/file-20231122-26-fufacy.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6720%2C4466&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Ron Lach/Pexels</span></span></figcaption></figure><p>In October 1975, at a talk in Wollongong, Frank Moorhouse discussed the first project for which he deliberately undertook archival and historical research – a feature film called <a href="https://www.austlit.edu.au/austlit/page/C532391">Between Wars</a>. This process would become integral to Frank’s work.</p>
<p>It would culminate in his celebrated “Edith trilogy”, which followed the League of Nations (a forerunner of the United Nations) from the 1920s through the 1940s, then the establishment of Canberra as our nation’s “Capitol” in the 1950s, through the fictional Edith Campbell Berry.</p>
<p>In Wollongong, Frank discussed balancing what he called “the historical element” with the “the narrative element”. In his notes for that talk, he wrote: “When the facts conflict with the legend print the legend.”</p>
<p>Since 2015, I have been working on a two-volume <a href="https://www.penguin.com.au/books/frank-moorhouse-strange-paths-9780143786122">biography of Frank Moorhouse</a>. This has involved its own process of archival and historical research. </p>
<p>But biography is a sub-field of history. For a biographer, when the legend conflicts with the facts – print the facts. The problem is that establishing the facts, and disentangling fact from legend, is not as straightforward as one would hope – especially when the subject is a protean figure like Frank Moorhouse. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/556508/original/file-20231030-23-11of4i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/556508/original/file-20231030-23-11of4i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/556508/original/file-20231030-23-11of4i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=377&fit=crop&dpr=1 600w, https://images.theconversation.com/files/556508/original/file-20231030-23-11of4i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=377&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/556508/original/file-20231030-23-11of4i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=377&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/556508/original/file-20231030-23-11of4i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=473&fit=crop&dpr=1 754w, https://images.theconversation.com/files/556508/original/file-20231030-23-11of4i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=473&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/556508/original/file-20231030-23-11of4i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=473&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Frank Moorhouse at his Ewenton Street studio, circa 1970s.</span>
</figcaption>
</figure>
<p>When initially considering this project, I realised although I had read many literary biographies, I had never really considered how biographies are written. I took for granted certain aspects of the process, which involve complicated, time-consuming reconstructions. </p>
<p>Take, for example, establishing a seemingly simple timeline. I first pulled together a basic chronology of Frank’s life from various public sources. I found nearly 2,000 articles referencing Frank, which included public statements by and about Frank. There were interviews, reviews and news reports on various activities he was involved in. </p>
<p>Frank gave me a 30-page curriculum vitae. He had also written various pieces of memoir over the years. This allowed me to define the scope of the project. </p>
<p>I also started working through Frank’s archives. The initial plan was to integrate the general outline I had pulled together with the more detailed contents of the archive – to use the outline as a method to organise the archival material, a form of call and response. </p>
<p>This proved to be wrongheaded and embarrassingly naïve. </p>
<p>Increasingly, the archive contradicted both my outline and the public sources. Additional research was required to establish otherwise simple facts and sequences of events. There were two seemingly trivial moments, in particular, that forced me to reconsider nearly everything. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/bringing-edith-home-frank-moorhouses-cold-light-7270">Bringing Edith home: Frank Moorhouse's Cold Light</a>
</strong>
</em>
</p>
<hr>
<h2>‘I speak for Whitlam at the Opera House’</h2>
<p>In 1980, Frank edited <a href="https://www.penguin.com.au/books/days-of-wine-and-rage-9781742746562">Days of Wine and Rage</a>, an idiosyncratic anthology of the 1970s. One section opens with a reference to <a href="https://theconversation.com/australian-politics-explainer-gough-whitlams-dismissal-as-prime-minister-74148">Gough Whitlam’s dismissal</a> on November 11, 1975. The second piece is an excerpt from <a href="https://theconversation.com/donald-hornes-lucky-country-and-the-decline-of-the-public-intellectual-80743">Donald Horne</a>’s <a href="https://www.goodreads.com/en/book/show/709947">Death of the Lucky Country</a> (1976), a book about the dismissal and the subsequent federal election on December 13, 1975. </p>
<p>The first piece, however, is by Frank, titled: “I speak for Whitlam at the Opera House”. Frank writes about a lunchtime rally that took place at the Sydney Opera House, with 3,000 people inside and 8,000 people outside. After, at the Journalists’ Club, Frank immediately fell asleep – from “the suppressed tension of it all”.</p>
<p>I wanted to include this anecdote in my biography because of something it illustrated about Frank’s character. He was a very shy person, riddled with anxiety and what he referred to as “verbal impotence”, particularly when speaking to an audience. What is interesting about Frank is that in spite of this, he forced himself to engage publicly, at cost to himself.</p>
<p>The problem? The only corroborating evidence for this incident was a letter Frank wrote to his ex-wife in June 1974 – 18 months before Whitlam’s dismissal. There was no rally at the Opera House following the dismissal, though there was a campaign launch there before the December 1975 election – which Labor lost. </p>
<p>And <a href="https://www.smh.com.au/politics/federal/there-s-a-surefire-way-for-labor-to-lose-the-next-election-20191027-p534km.html">there was such a rally</a> in May 1974, the week of the 1974 federal election – which Labor won; one month before Frank wrote about the event to his ex-wife. The anecdote holds, but the context, and more importantly, the date of the anecdote – and where it fits in the sequence of Frank’s life – is very different. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/jenny-hocking-why-my-battle-for-access-to-the-palace-letters-should-matter-to-all-australians-139738">Jenny Hocking: why my battle for access to the 'Palace letters' should matter to all Australians</a>
</strong>
</em>
</p>
<hr>
<h2>Nude sunbathing and copyright</h2>
<p>This made me reconsider a second trivial anecdote, regarding a landmark copyright case Frank was involved in. In September 1973, a story from one of Frank’s books was photocopied without his permission in the library at the University of New South Wales. </p>
<p>In October 1973, Frank first met with David Catterns and Peter Banki, from the Copyright Council. They had engineered this violation in order to bring a test case before the courts, arguing that copyright holders should be paid for their work being copied and used. </p>
<p>The court case took place between April and May 1974. <em>Moorhouse and Angus & Robertson (Publishers) Pty. Ltd. v. University of New South Wales</em> was part of a larger strategy that eventually led to the establishment of the Copyright Agency Ltd, a not-for-profit that, <a href="https://www.copyright.com.au/about-us/what-we-do/">among other things</a>, collects licensing fees for reusing copyright materials, which it then distributes to copyright holders. </p>
<p>But copyright law is dry and the only sources were court documents and transcripts. I needed something to inject some of Frank’s own personality into the proceedings. </p>
<p>In the 1990s, Frank gave various talks about the case. One anecdote Frank told was about how one day he was reading a book about copyright, while sunbathing naked with a woman friend in the backyard at his Ewenton Street studio, when suddenly his heart started pounding: </p>
<blockquote>
<p>I said to My Friend, there in the garden – “my god, intellectual property is about the very nature of existence. Intellectual property is the key to all understanding”.</p>
</blockquote>
<p>He then explains three approaches to intellectual property – in terms of collective rights, moral rights, and economic rights. </p>
<p>One could be forgiven for placing this anecdote in late 1973 or early 1974. Frank explicitly places it as occurring “one day around the time of Moorhouse v University of NSW”. </p>
<p>But the problem is, in another version of the anecdote, Frank names the book he was reading that day: <a href="https://catalogue.nla.gov.au/catalog/496385">Copyright in International Relations</a> by M.M. Boguslavsky. This book was published in Australia by the Copyright Council, edited by David Catterns, in 1979 – six years after the start of the copyright case, four years after the High Court’s final judgement in August 1975. </p>
<p>Maybe Frank got the book wrong? Perhaps. But this forced a closer look at 1979. I found a reference in October to a woman friend sunbathing nude at Ewenton Street. The following month Frank attended a symposium, hosted by the Copyright Council, on the question of moral rights. The speakers were Peter Banki and David Catterns. Frank was given a copy of their talks beforehand – with, or without, the Boguslavsky book. </p>
<p>Frank’s reference to moral rights and the expansive claim that “Intellectual property is the key to all understanding” is more consistent with that 1979 event than with the copyright case from years earlier. That case was deliberately narrowed down to the single legal question of “authorisation”.</p>
<p>And so, on balance, that anecdote does not hold, at least not as a point of entry into the 1973–74 copyright case. I omitted it from the biography, on the grounds that when the legend conflicts with the facts – print the facts, even when they are dry.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/books-3-has-revealed-thousands-of-pirated-australian-books-in-the-age-of-ai-is-copyright-law-still-fit-for-purpose-214637">Books 3 has revealed thousands of pirated Australian books. In the age of AI, is copyright law still fit for purpose?</a>
</strong>
</em>
</p>
<hr>
<h2>‘I find it impossible to remember’</h2>
<p>We are all unreliable narrators of our own lives. Faulty memory and self-deception inflict us all when reflecting on our past. Frank is no exception; statements about his own life should not be taken at face value. This unreliability should be taken into account when weighing such statements. </p>
<p>Perhaps this is enough to account for the errors regarding these two stated moments? Frank himself suggests an additional explanation. </p>
<p>Writers of literary fiction often draw on actual experiences as a starting point for their work, which becomes – filtered through imagination, literary convention and narrative necessity – something very different from that initial experience. Frank had been writing since he was 12 years old, but as he got older he became aware of a peculiar psychological effect: the act of writing fiction distorted his memory in a particular way. </p>
<p>“By incorporating one incident and processing it into fiction I find it impossible to remember how that incident occurred in reality,” he wrote to a friend in 1967. “I have difficulty in remembering now what incidents occurred in my life and what occurred in stories.” </p>
<p>Two years later, aged only 30, he told an adult education class that one of the “losses” a writer “suffers” is the actual “incidents” of one’s own life: </p>
<blockquote>
<p>he loses the accurate memory of how it actually happened once he uses, however loosely, a mood or an incident or a character – the created incident, mood or character is not simply confused by the fiction it is in fact replaced by the fiction.</p>
</blockquote>
<p>Could this process also have occurred in balancing “the historical element” of his own life with the “the narrative element” in recounting that life? There are many examples which suggest so. Moreover, as with this distortion of memory when writing fiction, Frank is aware of this process occurring when telling his own life story.</p>
<p>During an address in 1997 – where he first relates the anecdote about nude sunbaking and copyright – Frank opens by outlining his first meeting with David Catterns and Peter Banki. “I see it occurring in the famous Marble Bar where Henry Lawson once drank,” he said. But did it occur in the Marble Bar? </p>
<p>In 1989, Frank gave an earlier talk about the Copyright Agency Ltd, titled: “How CAL got started in the Marble Bar”. There are two versions in the archives. </p>
<p>In the first version, where Catterns and Banki are referred to by their initials, Frank writes: “My first serious meeting with DC and PB was one day back in 1974 in the famous Marble Bar where <a href="https://theconversation.com/henry-lawson-and-judith-wright-were-deaf-but-theyre-rarely-acknowledged-as-disabled-writers-why-does-that-matter-208365">Henry Lawson</a> once drank.” In the second draft Frank keeps this sentence, putting their names in full, but adding in parenthesis: “I say Marble Bar because meetings did occur there, but it is a metaphorical site to dramatise the compression of many conversations over many months in many places.” </p>
<p>Frank admits he does not remember where that first meeting took place, and so he creates a legend which, after being repeated enough times becomes considered as fact.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/560643/original/file-20231121-27-7kth9r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/560643/original/file-20231121-27-7kth9r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/560643/original/file-20231121-27-7kth9r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560643/original/file-20231121-27-7kth9r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560643/original/file-20231121-27-7kth9r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560643/original/file-20231121-27-7kth9r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560643/original/file-20231121-27-7kth9r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560643/original/file-20231121-27-7kth9r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Frank Moorhouse once wrote that the Copyright Agency Limited (CAL) started in the Marble Bar, where Henry Lawson once drank – but did it?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/evarinaldiphotography/">Eva Rinaldi/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Likewise, the legend of the 1975 Opera House rally was consecrated in 2005 in a book published by Melbourne University Press, titled: <a href="https://www.mup.com.au/books/the-dismissal-paperback-softback">The Dismissal: Where were you on November 11, 1975?</a>. Frank wrote one of the pieces, relating how that day he was at lunch with Donald Horne in the staff club at the University of New South Wales when news came in over the radio. </p>
<p>Frank segues into the legend of the rally: “In the following weeks, although I supported no political party, I was invited to speak at a great rally of support for Whitlam at the Sydney Opera House…” He repeats the story from Days of Wine and Rage, including falling asleep at the Journalists’ Club after. </p>
<p>But even here, Frank seems to be aware of the vagaries of memory and narrative, even as he applies this selectively. In a footnote to this 2005 piece, Frank adds a proviso: “Donald and I have different recollections of who was at this lunch. Never trust oral history.” </p>
<p>And never trust the legend.</p>
<h2>Jaded with journalism</h2>
<p>There is a further biographical thread that complicates this matter: a question of intellectual honesty and Frank’s relationship with the media. After graduating from high school, Frank started working as a copy boy, quickly becoming a cadet, then a journalist. </p>
<p>Before he was 21, he was editing a newspaper in Lockhart, New South Wales. He worked off and on as a journalist: for the ABC in the 1960s, The Bulletin in the 1970s, freelance reporting since the 1980s. He maintained his membership of the Australian Journalists Association for decades – hence his falling asleep at the Journalists’ Club in 1974. But he was never entirely comfortable being a journalist. This was a day job, so he could pursue his own writing. </p>
<p>He became jaded with journalism very early on. As a cadet he argued with more seasoned journalists over their use of hyperbole in writing stories, or with their poor treatment of citizens on the court beat. Frank exercised an intellectual honesty that put him at odds with his professional cohort. As an editor in Lockhart, it also put him at odds with the rest of the township. </p>
<p>This was fuelled by Frank’s reading in the history, sociology and psychology of media communications, advertising and publishing industries. In the 1960s, at the Workers Educational Association, Frank developed several courses on these topics, while also writing various longform pieces for the Current Affairs Bulletin (for example, “Now Here is the News…”, 1969). </p>
<p>They were all critical of methods and practices of journalism, obfuscated by what he called “journalistic mystique”. Behind the claims of independence, objectivity and just-the-facts rhetoric were economic and ideological dependencies, partiality, subjective decision-making and simplistic narrative forms that forced the “facts” to fit some pre-determined morality tale. </p>
<p>These functioned in our culture, Frank argued in one course, the same way as <a href="https://theconversation.com/friday-essay-why-grown-ups-still-need-fairy-tales-87078">fairy tales</a> and folk stories. </p>
<p>But from 1969 on, following the publication of his first book, <a href="https://www.penguin.com.au/books/futility-and-other-animals-9781740511384">Futility and Other Animals</a>, Frank’s relationship to the media shifted, from being a consumer, producer and critic of the news, to being a subject of the news. This only reinforced his previous criticisms. </p>
<p>The first thing that happened was the undermining of his literary fiction’s autonomy. The process of writing stories, where the facts of his experience were replaced by the fiction of his imagination, was collapsed by reviewers and journalists, with the resulting fiction being reported as autobiographical or documentary “fact”. Additional associations were then overlaid. </p>
<p>Perhaps the earliest was Frank’s association with the <a href="https://en.wikipedia.org/wiki/Sydney_Push">Sydney Push</a> – that bohemian subculture that emerged out of the University of Sydney in the 1950s. The influence of the Push became overdetermined and was rarely questioned (consider the hastily written obituaries when Frank died in June 2022). </p>
<p>But many of the intellectual positions Frank held that were shared with the Push – advocating for freedom of expression, for sexual freedom, against censorship – were fully formed in him (and articulated) before he became involved with them. </p>
<p>Many of the short stories he wrote during the 1960s drew on experiences he had in the late 1950s, before he entered this circle. And on the rare occasion he did write about the Push (without naming it as such) – for example, “The American Poet’s Visit” (Southerly, 1968) – it is as satire. In 1963, he wrote a paper criticising this cohort as being “reactionary” and “conservative”.</p>
<p>This should not be overcorrected. The Push was part of the facts of Frank’s life, but only a peripheral part. He spent more time, for example, during the same period, at the <a href="https://ala.asn.au/celebrating-a-century-of-workers-education/">Workers Educational Association</a>, a role he found more intellectually fulfilling and politically relevant – but that was not reported on by the media. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/susan-vargas-hard-joy-explores-the-possibilities-and-limits-of-memoir-182852">Susan Varga's Hard Joy explores the possibilities and limits of memoir</a>
</strong>
</em>
</p>
<hr>
<h2>‘Ironic involvement’</h2>
<p>Frank’s association with the Push is best described by his own notion of “ironic involvement”, which he defined in the late 1960s as being “where the person participates in human endeavour but as both an observer and game player”. He explains:</p>
<blockquote>
<p>Ironic involvement is a description of a relationship to activity. It may in fact, queerly enough, have some of the outward manifestations or appearances of commitment but the relationship beneath the behaviour is radically and fundamentally different. Contained in the ironic attitude is an almost constant awareness of the briefness and insignificance of life, the absence of sacredness, the futility of effort, the paradoxical, the hypercritical, the betrayals, the pretensions, the deceit, the self-deceit, the mutual exploitation and the cruel and bewildering nature of the human condition.</p>
</blockquote>
<p>This also describes Frank’s engagement with the media. He became a media game-player, the public persona, “Frank Moorhouse, writer”. This revealed itself in interviews and in news reports on various activities he was involved in. </p>
<p>There is an important caveat to Frank’s “ironic involvement” with the media, however: his intellectual honesty meant he tried to be as accurate as possible when it came to speaking about broader issues and events, and other people. </p>
<p>It was only when talking about himself, his private life and his past that he was a media game-player: sometimes truthful, sometimes not, sometimes telling an anecdote while suggesting it may not be necessarily so. </p>
<p>Frank used hyperbole and distraction in his personal public statements – the cumulative effect of which is the outline of his public legend – in part to protect himself, to cover his trauma and anxiety. And in part he did it to compartmentalise his life, to negotiate the relationship with his family and distinct groups of friends, lovers and acquaintances. To hide from the public, while in public. This was particularly the case regarding his sexuality and gender identity, and the personal difficulties relating to each. </p>
<p>There is a chronological aspect to this: something he would keep to himself at one stage of his life would be slowly revealed over time, in various guises or to various degrees of disclosure. At each moment, Frank would use his understanding of the media to position himself within its coverage in a way that meant he could advocate for ideas he was interested in, while at the same time controlling how those ideas could be applied to himself. </p>
<h2>The personal and political</h2>
<p>In 1971, for example, Frank wrote an essay responding to <a href="https://en.wikipedia.org/wiki/Anne_Koedt">Anne Koedt</a>’s 1970 pamphlet, “Myth of the Vaginal Orgasm”. There are three versions of the essay. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/560680/original/file-20231121-23-81w5vu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/560680/original/file-20231121-23-81w5vu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/560680/original/file-20231121-23-81w5vu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=776&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560680/original/file-20231121-23-81w5vu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=776&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560680/original/file-20231121-23-81w5vu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=776&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560680/original/file-20231121-23-81w5vu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=975&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560680/original/file-20231121-23-81w5vu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=975&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560680/original/file-20231121-23-81w5vu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=975&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Moorhouse published three distinct versions of his essay responding to Anne Koedt’s The Myth of the Vaginal Orgasm.</span>
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<p>The shortest version, containing the core of his argument, was published in The Bulletin. This had a large mainstream audience – and, importantly, it was read by Frank’s family. This version reveals nothing of a personal nature, but still argues for a renegotiation between the sexes, and for a social openness in talking about sexual pleasure and anxieties. </p>
<p>A longer version was published in Thor, an underground student newspaper, circulating among Sydney bohemia. Here Frank admitted – for the first time in a public forum – that he had homosexual relations. But Thor had a smaller, less mainstream, more sympathetic audience. Frank could risk revealing part of himself. </p>
<p>There is a final version, however, that touches more on the confusions of Frank’s gender identity – and this remained unpublished. This was something Frank was not yet ready to disclose socially, even within his own subculture. </p>
<p>In Days of Wine and Rage, Frank reprinted the Thor version, including his personal admissions. But by the mid-1980s he downplayed even this, telling interviewers he had “homosexual streams” in his life, but in the past – when, in reality, it was ever present. Around the same time, in an unpublished interview with a university student, Frank first disclosed his transvestism. </p>
<p>This chronological aspect is also where biography intersects with social history. These prevarications and feints are part of Frank’s negotiation of shifting social conventions and historical moments, from a period when homosexuality was legally prosecuted and socially persecuted, through to a period when homosexuality was decriminalised. </p>
<p>This began federally in 1973, and continued state by state, <a href="https://www.moadoph.gov.au/explore/stories/history/40th-anniversary-of-decriminalisation-of-homosexuality">from South Australia becoming the first state to decriminalise homosexuality</a> in 1975 until <a href="https://www.utas.edu.au/library/companion_to_tasmanian_history/G/Gay%20Law%20Reform.htm">Tasmania became the last in 1997</a>. The social opprobrium slowly shifted, but never entirely lifted. This becomes an active ground on which Frank’s biography unfolds. </p>
<p>In the late 1950s, for example, Frank was a court reporter in Sydney, during a period when the number of arrests and prosecutions in New South Wales was on the rise. His comments on his sexuality in the 1980s were made against the background of a developing HIV/AIDS crisis. In between, in 1964 – seven years before his first public admission regarding homosexuality – a 24-year-old Frank said in a lecture: </p>
<blockquote>
<p>There seems to be a large minority engaged in the exploration of sexual relationships outside of the conventions. But the interesting point is that this exploration and its results are being concealed by many of these people. Where this concealment occurs among people who are concerned with freedom of action, freedom of information, and the creation of an open society, then they can be criticised. But I want to be gentle in my criticism because I realise that there are immense personal problems in becoming a sexual radical. The obvious case of extreme difficulty is the homosexual. If he behaves openly he will be persecuted and gaoled.</p>
</blockquote>
<p>Decades later, Frank gave his younger self greater sexual awareness, self-confidence, and agency. In his 2005 memoir, <a href="https://www.penguin.com.au/books/martini-9781740513616">Martini</a>, Frank recalls how, around the time of his 18th birthday, he began a sexual relationship with an older man. “I had seduced him,” Frank wrote of their first encounter. </p>
<p>It was a point he kept repeating to me, in conversation and correspondence, whenever we discussed this situation: Frank seduced him. But the contemporaneous evidence suggests otherwise, and records Frank’s initial response as being freighted with guilt, disgust and repulsion; his internalising of what in the years to come he would refer to as “a sexually sick society”, one that imposed a narrow conventional morality over its citizens. </p>
<p>Accepting the legend would mean omitting the arduous process by which Frank dealt with his own “immense personal problems in becoming a sexual radical”. The personal denial, confusion and acceptance, and the public denials, obfuscations and tolerance, are necessary parts of the facts of his life. </p>
<p>As much as literary biography intersects with social history, it also intersects with political history. In the introduction to The Dismissal, for example, Jenny Hocking, Whitlam’s biographer, points out that the 1974 federal election has been “ignored and invisible in contemporary reference”, distorting our collective political memory. </p>
<p>She cites Whitlam referring to his second-term win as “the election that never was”. Frank’s misremembering of the Opera House rally that accompanied that election reinforces that broader political amnesia and misunderstanding. </p>
<p>Such seemingly trivial moments – when a particular political rally occurred, or where a meeting took place, or an incident occurred – can have broader ramifications. A biography is constituted by numerous moments such as these, intersecting various larger histories - and that is where its responsibilities lie. </p>
<h2>Putting the legend in its place</h2>
<p>The line from Frank’s 1975 Wollongong talk is a variation of a line from the 1962 Western film, The Man Who Shot Liberty Valance (directed by John Ford). The James Stewart character had built a political career on the legend that he shot the outlaw Liberty Valance (played by Lee Marvin), even though Valance was actually shot by the John Wayne character. When James Stewart comes clean to a newspaper editor about the story, it is the editor who finally burns the confession, stating: “When the legend becomes fact, print the legend.” </p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/363ZAmQEA84?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">The Man Who Shot Liberty Valance, 1962, “When the legend becomes fact…”</span></figcaption>
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<p>We cannot infer from Frank’s notes what interpretation he gave the line that day in 1975: whether he approved of it, disapproved of it, or whether he used it ironically. But this John Ford film is a dramatic example of what Frank had spent more than 15 years at that point arguing against in public culture. </p>
<p>When I first reconsidered these two moments – the legends of the Opera House rally, and the backyard copyright revelation – I realised I had fallen into the trap at the heart of Frank’s media and cultural criticism. </p>
<p>With my initial outline, pieced together from public sources, I was doing what Frank himself objected to in the methods and procedures of a journalist in making those public sources. I was making the “facts” fit some pre-determined narrative, papering over anything that would contradict the legend. Perhaps, too, I was leaning too heavily on my personal relationship with Frank – but knowing him as a friend is not the same as understanding him as a biographical subject. </p>
<p>These moments forced me to start the project over. I abandoned my initial outline and chapter breakdown, expanding the scope of the project and obliterating my initial writing schedule – with frequent apologies to my publisher. </p>
<p>I put public sources and statements by Frank himself at a critical remove, and went back to the archive, not as a retrospective response to various calls my preconceptions were asking of it, but to provide the set of questions I needed to slowly, gradually find provisional answers for, through a steady, chronological building up of material. </p>
<p>This time the project opened up in far broader and more interesting ways than I had previously considered. It led to the discovery of material previously missed or otherwise unavailable to either the archive or the public record. But this new method also meant making certain omissions, killing other darlings, putting the legend in its place. It required weighing the material according to the vagaries of fact and fiction, memory and deception (including self-deception), intentional or otherwise. </p>
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<a href="https://images.theconversation.com/files/560682/original/file-20231121-4426-5ortev.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/560682/original/file-20231121-4426-5ortev.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/560682/original/file-20231121-4426-5ortev.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=918&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560682/original/file-20231121-4426-5ortev.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=918&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560682/original/file-20231121-4426-5ortev.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=918&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560682/original/file-20231121-4426-5ortev.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1153&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560682/original/file-20231121-4426-5ortev.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1153&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560682/original/file-20231121-4426-5ortev.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1153&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>Biography is about making an argument for a particular account of a person’s life and times, while acknowledging the limitations of doing so, and the doubts inherent in the attempt. </p>
<p>In the conflict between the facts and the legend, the question became not only how to establish the facts, or disentangling fact from legend, but a more interesting and important question: how did the legend of “Frank Moorhouse” develop? And how to incorporate this development into the facts of his life – particularly those facts the legend kept hidden? </p>
<p>Wrestling with this question, I would argue, brings us closer to understanding Frank than if I had focused on just the facts, or just the legend. It also brings us closer to understanding ourselves, and a culture Frank Moorhouse himself felt the need to alternately challenge and hide from, all while producing an extraordinary body of work. </p>
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<p><em>Matthew Lamb’s biography, <a href="https://www.penguin.com.au/books/frank-moorhouse-strange-paths-9780143786122">Frank Moorhouse: Strange Paths</a> (Knopf Australia) will be published on November 28 2023.</em></p>
<hr><img src="https://counter.theconversation.com/content/216619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matthew Lamb does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Establishing the facts – and disentangling fact from legend – is not always straightforward when it comes to biography. Frank Moorhouse’s biographer unpacks his process.Matthew Lamb, Honorary Research Fellow, School of Historical and Philosophical Inquiry, The University of Queensland., The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2163342023-10-25T18:38:12Z2023-10-25T18:38:12ZToo many products are easier to throw away than fix – NZ consumers deserve a ‘right to repair’<p>There was a time when the family washing machine would last decades, with each breakdown fixed by the friendly local repair person. But those days are long gone. </p>
<p>Today, it is often <a href="https://www.consumer.org.nz/articles/device-repairability-is-expensive-or-non-existent-consumer-nz-has-the-solution">faster, easier and cheaper</a> to replace household items, even when they are meant to be repairable. </p>
<p>This is not just a consumer issue. Only about <a href="https://ourauckland.aucklandcouncil.govt.nz/news/2022/12/dispose-of-your-tech-the-right-way/">2% of New Zealand’s e-waste is recycled</a>, meaning most of our electrical goods are ending up in landfills.</p>
<p>And the problem is likely to worsen as more appliances use software. This allows manufacturers to limit the lifespan of their products. Copyright rules on that software are making repairs even more difficult – and potentially illegal. </p>
<p>So what can be done to protect consumers and the environment from appliances with deliberately short lives? <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4604098">Our research</a> found changes are needed to a range of laws, including copyright law, to enshrine the consumer’s “right to repair”. The government can look overseas to see how this can be done.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1374550928439709699"}"></div></p>
<h2>The right to repair</h2>
<p>The concept of a “right to repair” is <a href="https://www.europarl.europa.eu/RegData/etudes/BRIE/2022/698869/EPRS_BRI(2022)698869_EN.pdf">relatively vague</a>. But essentially, products need to be <a href="https://commission.europa.eu/document/afb20917-5a6c-4d87-9d89-666b2b775aa1_en">designed to last longer and be repairable</a>. </p>
<p>Manufacturers also need to ensure <a href="https://therestartproject.org/right-to-repair">repairs can be done with commonly available tools</a>, and that <a href="https://www.europe-consommateurs.eu/en/shopping-internet/spare-parts-and-repairs.html">spare parts and repair information</a> are available.</p>
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Read more:
<a href="https://theconversation.com/if-you-buy-it-why-cant-you-fix-it-heres-why-we-still-dont-have-the-right-to-repair-203236">If you buy it, why can't you fix it? Here's why we still don't have the 'right to repair'</a>
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<p>While there is no single definition or set of requirements, a number of countries (including the <a href="https://www.thefirstmile.co.uk/the-big-picture/the-new-right-to-repair-law">United Kingdom</a>, <a href="https://grist.org/climate/why-frances-new-repairability-index-is-a-big-deal/">France</a>, <a href="https://www.cleanup.org.au/right-to-repair-automotive-industry">Australia</a> and parts of the <a href="https://www.ncsl.org/technology-and-communication/right-to-repair-2023-legislation">United States</a>) are introducing laws establishing the right to repair, albeit to varying degrees.</p>
<p>But New Zealand has yet to make, or indeed propose, any such legislation. </p>
<h2>Beyond repair – software locks</h2>
<p>Crucially, the right to repair is not limited to simply repairing broken electronics and appliances. </p>
<p>Increasingly, manufacturers are using software to <a href="https://policyreview.info/articles/analysis/regulation-through-bricking-private-ordering-internet-things">control how products are used</a> through “<a href="https://www.theregister.com/2021/04/23/ifixit_software_locks/">software locks</a>”, also known as <a href="https://www.theregister.com/2020/12/15/right_to_repair_dmca/">digital locks</a>. </p>
<p>For example, these have been used to stop printers working at the <a href="https://www.newshub.co.nz/home/technology/2022/08/outrage-over-epson-stopping-working-printers-from-functioning-with-hardcoded-end-of-life-date.html">end of their pre-programmed life</a> or if the owner stops <a href="https://www.theguardian.com/money/2022/nov/29/hp-instant-ink-service-printer-cartridges">paying a monthly subscription</a>.</p>
<p>Consumers are then forced to choose between using expensive authorised repairers to “service” the printer, to continue paying a subscription, or to throw away their “<a href="https://policyreview.info/articles/analysis/regulation-through-bricking-private-ordering-internet-things">bricked</a>” appliance (one that has become as <a href="https://www.howtogeek.com/126665/htg-explains-what-does-bricking-a-device-mean/">functional as a brick</a>). </p>
<p>Software locks are also used to prevent repairs by the owner or independent repairers, even if <a href="https://www.ifixit.com/News/69320/how-parts-pairing-kills-independent-repair">genuine spare parts are being used</a>. </p>
<h2>Copyright infringement</h2>
<p>Hacking a software lock is possible, but it can be a technical challenge and also a legal nightmare. Professional repairers are concerned about infringing copyright and other intellectual property rights if they repair items. </p>
<p>And they have every reason to be worried, with manufacturers using “<a href="https://repair.eu/news/apple-crushes-one-man-repair-shop/">intellectual property as a weapon</a>” against independent repairers.</p>
<p>In New Zealand, software locks called “technology protection measures” (<a href="https://smartcopying.edu.au/glossary/technological-protection-measure-tpm/">TPMs</a>), are <a href="https://www.legislation.govt.nz/act/public/1994/0143/latest/DLM346899.html?search=ad_act__copyright____25_ac@bn@rn@dn@apub@aloc@apri@apro@aimp@bgov@bloc@bpri@bmem@rpub@rimp_ac@ainf@anif@bcur@rinf@rnif_a_aw_se_&p=1">protected under the Copyright Act</a>. Independent repairers who circumvent a TPM to repair or maintain a product are committing an <a href="https://www.legislation.govt.nz/act/public/1994/0143/latest/DLM1705882.html?search=ad_act__copyright____25_ac@bn@rn@dn@apub@aloc@apri@apro@aimp@bgov@bloc@bpri@bmem@rpub@rimp_ac@ainf@anif@bcur@rinf@rnif_a_aw_se_&p=1">offence</a> and if prosecuted are liable for a <a href="https://www.legislation.govt.nz/act/public/1994/0143/latest/DLM1705882.html?search=ad_act__copyright____25_ac@bn@rn@dn@apub@aloc@apri@apro@aimp@bgov@bloc@bpri@bmem@rpub@rimp_ac@ainf@anif@bcur@rinf@rnif_a_aw_se_&p=1">fine</a> of up to NZ$150,000 or up to five years in prison, or both.</p>
<p>But some countries have recognised that manufacturers are illegitimately using copyright to prevent repair. In the US there are <a href="https://jolt.law.harvard.edu/digest/copyright-offices-ruling-on-exemptions-to-the-digital-millennium-copyright-act-allowing-consumers-repairers-and-hackers-to-fix-their-own-devices">narrow exceptions</a> for circumventing software locks to repair some goods. But these are temporary and need to be <a href="https://www.theregister.com/2020/12/15/right_to_repair_dmca/">reconsidered and renewed</a> every three years.</p>
<p>A <a href="https://www.parl.ca/legisinfo/en/bill/44-1/c-244">proposed amendment</a> to the Canadian Copyright Act would allow the circumvention of TPMs. The amendment is currently <a href="https://www.nortonrosefulbright.com/en-ca/knowledge/publications/11c47b23/right-to-repair-bill-passes-unanimously-at-house-of-commons">moving through the legislative process</a> and is expected to pass.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1704479268648939674"}"></div></p>
<h2>Parts pairing</h2>
<p>The growing practice of “<a href="https://www.ifixit.com/News/69320/how-parts-pairing-kills-independent-repair">parts pairing</a>” – allowing manufacturers to prevent a product operating correctly, if at all, after the installation of a spare part – means circumventing TPMs will not resolve all the software lock issues.</p>
<p>It’s a complex problem and any ban on parts pairing would require careful consideration. </p>
<p>Overseas, Apple has a “self-service repair” programme, meant to allow independent repairs of Apple products. In practice, the programme has been largely unworkable due to <a href="https://www.fastcompany.com/90967234/californias-new-right-to-repair-law-fails-to-stop-the-parts-pairing-loophole">Apple’s demands</a> – including handing over customers’ personal information, agreeing to years of audits, and signing non-disclosure agreements simply to get the parts.</p>
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Read more:
<a href="https://theconversation.com/families-count-the-costs-as-big-tech-fails-to-offer-cheap-phone-laptop-and-fridge-repairs-177493">Families count the costs as big tech fails to offer cheap phone, laptop and fridge repairs</a>
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<p>Some of the harm of parts pairing could be mitigated by implementing a <a href="https://www.consumer.org.nz/articles/we-re-making-it-easier-to-choose-a-repairable-phone">repairability label scheme</a>, as introduced in France.</p>
<p>Such schemes require manufacturers to include labels outlining the repairibility of an item, and what it is likely to cost. This helps consumers make an informed decision about what they are buying, but it also requires an independent watchdog to ensure the information is accurate. </p>
<p>While the global right-to-repair movement is growing, none of the solutions being implemented overseas are straightforward, and all require significant legislative effort. </p>
<p>That said, New Zealand needs to address the issue of product reliability and longevity as an environmental issue and a consumer right.</p><img src="https://counter.theconversation.com/content/216334/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexandra Sims is a member of the Right to Repair Coalition Aotearoa, which is advocating for right to repair legislation in New Zealand. She also served as a board member of ConsumerNZ between 2009-2015. </span></em></p><p class="fine-print"><em><span>Trish O'Sullivan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Manufacturers have too much legal freedom to sell products that don’t last or are hard to repair. It’s time local law caught up with global efforts to address this environmental and consumer issue.Alexandra Sims, Associate Professor in Commericial Law, University of Auckland, Waipapa Taumata RauTrish O'Sullivan, Senior lecturer, School of Accountancy, Massey UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2155382023-10-19T23:59:48Z2023-10-19T23:59:48ZDressing up for Halloween? You could be in breach of copyright law, but it’s unlikely you’ll be sued<figure><img src="https://images.theconversation.com/files/554433/original/file-20231018-19-u84nxj.jpg?ixlib=rb-1.1.0&rect=4%2C1%2C994%2C577&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/happy-halloween-group-children-suits-pumpkins-1175523997">Shutterstock</a></span></figcaption></figure><p>Love it or loathe it, it’s almost Halloween.</p>
<p>While it’s traditionally seen as an American holiday, <a href="https://www.roymorgan.com/findings/ara-roy-morgan-media-release-halloween-2023">more Australians are preparing to celebrate it</a> this year.</p>
<p>Many jump at the chance to dress up as their favourite fictional character, but have you ever stopped to wonder whether you could be breaking copyright law?</p>
<p>Here’s what we know about costumes, cosplay and copyright.</p>
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Read more:
<a href="https://theconversation.com/books-3-has-revealed-thousands-of-pirated-australian-books-in-the-age-of-ai-is-copyright-law-still-fit-for-purpose-214637">Books 3 has revealed thousands of pirated Australian books. In the age of AI, is copyright law still fit for purpose?</a>
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</p>
<hr>
<h2>What is copyright?</h2>
<p><a href="https://www.infrastructure.gov.au/sites/default/files/short_guide_to_copyright.pdf">Copyright is a legal right</a> that grants the creator of an original creative work exclusive rights over the way their work is used or distributed. </p>
<p>The idea of the author holding exclusive rights is to encourage the creation of new works. </p>
<p>Importantly, copyright does not exist in the <em>idea</em> of a character, but in <a href="https://www.theipmatters.com/post/the-concept-of-idea-expression-dichotomy-under-copyright-law#:%7E:text=Idea%2DExpression%20Dichotomy%20means%20that,expressions%20of%20these%20ideas%20are.">its <em>expression</em> in tangible form</a>. </p>
<p>For example, copyright cannot exist in the general idea of a young wizard who attends a magical school and embarks on adventures. </p>
<p>However, copyright can exist in the expression of the specific details, characters and descriptions J.K. Rowling used to bring Harry Potter to life in her books. </p>
<p>Whether copyright exists depends on two things: the expression of the character, and the type of work that has been created.</p>
<p>Under the <a href="https://www.legislation.gov.au/Details/C2022C00192">Copyright Act 1968</a>, copyright applies to various categories of original authored works, provided they meet specific criteria. These works include:</p>
<ul>
<li><p>a literary, artistic, or dramatic work</p></li>
<li><p>a sound recording</p></li>
<li><p>a film.</p></li>
</ul>
<p>Taking Harry Potter films as an example, Warner Bros. could assert copyright in several aspects of their films as separate works. </p>
<p>These could be the original written screenplay as a literary work, the musical score as a musical work, the recorded music as sound recordings and the films as cinematographic works.</p>
<p>The initial design sketches and photographs of costumes in the Harry Potter films could qualify as artistic works. </p>
<p>In 2011, a <a href="https://www.bailii.org/uk/cases/UKSC/2011/39.html">UK court case</a> considered whether a Star Wars stormtrooper helmet was a sculpture (artistic work) for the purposes of copyright protection. </p>
<p>The case involved one of the craftsmen who helped design the stormtrooper costume. He used his original tools to make stormtrooper helmets and sold them to the general public. Lucasfilm alleged infringement on the basis the helmets were copyrightable sculptures. </p>
<p>However, the UK court rejected this argument. It found that while the helmets had practical functionality, they didn’t have an artistic purpose and therefore were not covered by copyright.</p>
<p>While this issue has not been tested under Australian law, the ruling might be similar.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of small children in Halloween costumes run towards the camera smiling" src="https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Whether a cosplay costume infringes copyright will require examination in the courts, something that hasn’t happened in Australia yet.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/little-kids-halloween-party-1173596917">Shutterstock</a></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-was-halloween-invented-once-a-celtic-pagan-tradition-the-holiday-has-evolved-to-let-kids-and-adults-try-on-new-identities-192379">How was Halloween invented? Once a Celtic pagan tradition, the holiday has evolved to let kids and adults try on new identities</a>
</strong>
</em>
</p>
<hr>
<h2>How can copyright be infringed?</h2>
<p>Infringement is found when a person uses either the entire or a “substantial part” of an original copyrighted work.</p>
<p>The Australian courts have found the idea of a “substantial part” to be a significant, important or distinctive part of the copyrighted material. </p>
<p>That part doesn’t have to be big. <a href="https://austlii.community/foswiki/NTLawHbk/Infringementsubstantialpartrequirement">Even a tiny part</a> can infringe copyright if it’s distinctive enough.</p>
<h2>How does this all apply to costumes?</h2>
<p>Along with Halloween dress-ups, <a href="https://theconversation.com/explainer-what-is-cosplay-20759">cosplay</a> – the hobby of replicating and embodying a wide range of characters through detailed costumes – is another increasingly popular activity.</p>
<p>For cosplayers if the expression of the character is distinctly reproduced, then this might be deemed a “substantial part” of an original work and could therefore be a breach of copyright.</p>
<p>Whether a cosplay costume infringes copyright will require examination in the courts, something that hasn’t happened in Australia yet. </p>
<p>However, the greater the differences between the costume and the original work, the less likely a finding of infringement. </p>
<p>This means relatively small differences in costume elements and features could make a big difference to the outcome.</p>
<h2>Costumes as promotional material</h2>
<p>But even if a costume is technically infringing copyright, are you really going to get sued? Is J.K. Rowling really going to sue a fan for making a Harry Potter costume at Halloween? </p>
<p>This is highly unlikely, particularly when there is no commercial activity involved.</p>
<p>Many authors and artists are proud of the fact their characters are so celebrated through costumes, cosplay and fandom. Homage to creative works plays a vital part of modern pop culture. </p>
<p>For example, as seen with the Game of Thrones, <a href="https://theconversation.com/after-8-years-of-memes-videos-and-role-playing-what-now-for-game-of-thrones-multimedia-fans-117254">fandom</a> can have a significant influence on the success and longevity of the work. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/dolls-and-dollars-why-small-businesses-should-be-wary-of-cashing-in-on-barbiemania-with-their-branding-210875">Dolls and dollars: why small businesses should be wary of cashing in on Barbiemania with their branding</a>
</strong>
</em>
</p>
<hr>
<p>And ultimately, this can help to promote sales of the original work.</p>
<p>If, however, a person engages in commercial activity, they are more likely to be sued for infringement. </p>
<p>In <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/944.html">2016, an Australian Federal Court</a> case addressed copyright infringement of J.R.R. Tolkien’s “one ring” inscription from Lord of the Rings. Over eight years, the respondent’s jewellery websites sold about 1,300 rings with this inscription. </p>
<p>The court ruled the inscription was an artistic work and was therefore protected by copyright. Through the respondent’s commercial activity, they had reproduced and sold a substantial part of the inscription, without licence or consent and were found liable.</p>
<p>So if you create your favourite character’s costume this Halloween, even if you are technically infringing copyright, the chances of you being sued are low. </p>
<p>If, however, you engage in commercial activities, your chances of being sued are much higher.</p><img src="https://counter.theconversation.com/content/215538/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wellett Potter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Traditionally seen as an American holiday, more Australians are preparing to celebrate Halloween. Here’s what we know about costumes, cosplay and copyright, just in time for the spooky season.Wellett Potter, Lecturer in Law, University of New EnglandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2146372023-09-29T08:22:31Z2023-09-29T08:22:31ZBooks 3 has revealed thousands of pirated Australian books. In the age of AI, is copyright law still fit for purpose?<p>Thousands of Australian books <a href="https://www.abc.net.au/news/2023-09-29/australian-authors-copyright-books3-generative-i-chatgpt/102914538">have been found</a> on a pirated dataset of ebooks, known as Books3, used to train generative AI. Richard Flanagan, Helen Garner, Tim Winton and Tim Flannery are among the leading local authors affected – along, of course, with writers from around the world. </p>
<p>A <a href="https://full-stack-search-prod.vercel.app/">search tool</a> published by <a href="https://www.theatlantic.com/technology/archive/2023/09/books3-database-generative-ai-training-copyright-infringement/675363/">the Atlantic</a> makes it possible for authors to find out whether their books are among the nearly 200,000 in the Books3 dataset.</p>
<p>Many of these writers have reacted angrily about their works being included in these datasets without their knowledge or consent. Flanagan <a href="https://www.theguardian.com/australia-news/2023/sep/28/australian-books-training-ai-books3-stolen-pirated">told the Guardian</a>, “I felt as if my soul had been strip mined and I was powerless to stop it”.</p>
<p>“Turning a blind eye to the legitimate rights of copyright owners threatens to diminish already-precarious creative careers,” said Olivia Lanchester, chief executive of the Australian Society of Authors, in <a href="https://www.asauthors.org.au/news/asa-response-to-use-of-australian-books-to-train-ai/">an official response</a> this week.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1707333780799914299"}"></div></p>
<h2>AI moving at speed</h2>
<p>Authors have turned to copyright law because it is the body of law that has traditionally protected authors and other creators from the appropriation of their works. </p>
<p>However, laws designed for the pre-AI era have little meaning in the post-OpenAI world.</p>
<p>Just last year, the issue of AI was only faintly on the cultural radar. But while AI technology is moving at high speed, the law moves slowly. </p>
<p>It took a very significant amount of time for copyright law to first appear. The first copyright law, the <a href="https://www.historyofinformation.com/detail.php?entryid=3389">Statute of Anne</a>, emerged in 1710 after protracted lobbying by stationers (publishers).</p>
<p>In a more modern context, it took 20 years from the time Australian courts first recognised a system of Aboriginal law existed, with the <a href="https://en.wikipedia.org/wiki/Milirrpum_v_Nabalco_Pt">Milirrpum decision</a> in 1971 – meaning <em>terra nullius</em> was implausible – to the High Court handing down the <a href="https://theconversation.com/australian-politics-explainer-the-mabo-decision-and-native-title-74147">landmark Mabo decision</a> that erased <em>terra nullius</em>, in June 1992. In the interim, injustice reigned.</p>
<p>The question that now confronts us is whether we can wait for the law to catch up with the rapid advances of technology – or whether we must jumpstart the process. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/authors-are-resisting-ai-with-petitions-and-lawsuits-but-they-have-an-advantage-we-read-to-form-relationships-with-writers-208046">Authors are resisting AI with petitions and lawsuits. But they have an advantage: we read to form relationships with writers</a>
</strong>
</em>
</p>
<hr>
<h2>A spate of copyright disputes</h2>
<p>There has been a spate of copyright disputes around AI datasets and copyright-protected works. </p>
<p>Earlier this month, the US Authors Guild <a href="https://authorsguild.org/news/ag-and-authors-file-class-action-suit-against-openai/">filed a class action</a>, with 17 authors including Jonathan Franzen and Jodi Picoult, against OpenAI for copyright infringement.</p>
<p>This followed <a href="https://theconversation.com/two-authors-are-suing-openai-for-training-chatgpt-with-their-books-could-they-win-209227">the first copyright lawsuit</a> against OpenAI in July. It was filed by authors Mona Awad and Paul Tremblay, for using their books to train its AI, ChatGPT, without their consent. </p>
<p>And in August, Benji Smith was <a href="https://theconversation.com/prosecraft-has-infuriated-authors-by-using-their-books-without-consent-but-what-does-copyright-law-say-211187">forced to take down</a> his website Prosecraft, which used an algorithm to trawl through more than 25,000 books (again, without authors’ consent) to produce analysis designed to give writing advice.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/two-authors-are-suing-openai-for-training-chatgpt-with-their-books-could-they-win-209227">Two authors are suing OpenAI for training ChatGPT with their books. Could they win?</a>
</strong>
</em>
</p>
<hr>
<h2>Copyright is not the answer</h2>
<p>While it’s true that the uploading of works into a dataset is an act of copyright infringement, that only pertains to a one-off act of infringement. </p>
<p>No doubt, the liability would be large if thousands of works were involved and thousands of authors were to sue (as with the US Authors Guild class action), but the damages obtained by an individual author would be relatively small, making it not worth suing. The large commercial interests driving the development of the datasets and related AI tools are likely to withstand these lawsuits even if they are found liable.</p>
<p>Likewise, copyright law’s rules on <a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">fair dealing</a> in Australia and fair use in the United States would likely protect some uses. </p>
<p>Further, the outputs from AI that have been trained on these datasets are not likely to result in works that satisfy the substantial similarity threshold (which means that when the two works are compared side by side, they must be similar) for copyright infringement in most jurisdictions, including Australia.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/prosecraft-has-infuriated-authors-by-using-their-books-without-consent-but-what-does-copyright-law-say-211187">Prosecraft has infuriated authors by using their books without consent – but what does copyright law say?</a>
</strong>
</em>
</p>
<hr>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1706664367138496852"}"></div></p>
<h2>‘A type of market failure’</h2>
<p>Copyright law has previously had to balance the interests of creators with those of technology developers. </p>
<p>This happened when the photocopier was invented, when video cassette recorders were developed, when blank tapes became widely available and when peer-to-peer copyright infringement took off during the digital era.</p>
<p>The difference then was that these technologies did not fundamentally threaten artistic and creative labour in the way AI does.</p>
<p>To appropriate a part of someone’s market is a radically different thing to producing a product that could entirely displace them in that market.</p>
<p>Yet this is the direction we’re heading in. And it requires a very significant rethink about the regulation of technology.</p>
<p>A type of market failure is occurring here, because authors are not being compensated even though their works, collectively, are the basis for new and commercially viable AI products. </p>
<p>When the sale of blank tapes began, <a href="http://classic.austlii.edu.au/au/journals/SydLawRw/1994/38.html">the government responded</a> with a levy on every blank tape sale, which sent money back to copyright owners. </p>
<p>Something like the blank tape levy might need to be considered for AI. This would mean every time somebody uses an OpenAI-type tool for which they pay a fee, some small portion of the fee would revert to copyright owners.</p><img src="https://counter.theconversation.com/content/214637/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dilan Thampapillai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Authors are furious about finding their works on pirated dataset Books3. Copyright is the usual avenue for redress, but while AI moves at speed, the law is slow – and not designed to combat AI issues.Dilan Thampapillai, Dean of Law, University of Wollongong, University of WollongongLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2120912023-08-23T03:32:01Z2023-08-23T03:32:01ZInternet Archive’s digital library has been found in breach of copyright. The decision has some important implications<figure><img src="https://images.theconversation.com/files/544146/original/file-20230823-17-l8cwq3.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C7348%2C4671&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>“Information wants to be free” – but at what cost?</p>
<p>The <a href="https://archive.org/">Internet Archive</a> was founded in 1996 as a non-profit digital library, aiming to provide “universal access to all knowledge”. It started with a project to preserve the World Wide Web. Its <a href="https://web.archive.org/">Wayback Machine</a>, developed in 2001, made the automatically archived content available to the public. </p>
<p>In 2005, Internet Archive started digitising books and began archiving television programs in the late 2000s. Since 2006, it has also provided a web archiving subscription service to institutions and individuals, allowing them to create digital archives and preserve collections of digital content.</p>
<p>Also in 2006, it established the Open Library. Its vision was to become a universal book database with a web page for every book ever published, and a web-accessible public library offering full access to books in digital formats. </p>
<p>In 2020, a group of publishers sued. Three years on, the Internet Archive has <a href="https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/92975-judge-approves-final-injunction-in-publishers-internet-archive-copyright-case.ht">lost</a>.</p>
<h2>Copyright issues</h2>
<p>The lending of books that are out of copyright is not controversial, but Internet Archive’s distribution of copyrighted works is problematic. </p>
<p>The Open Library portal has been relying on a practice known as <a href="https://controlleddigitallending.org/">controlled digital lending</a>, which allows libraries to lend a digitised title in place of a physical one in a controlled manner under fair use and fair sale doctrine. Only one person can borrow any given copy at a time for a limited period. Borrowers are not allowed to copy, retain or distribute the file. </p>
<p>Facilitating access to books in this manner without permission from, or payment to, publishers or authors has been <a href="https://nwu.org/nwu-denounces-cdl/">condemned</a> as a “flagrant violation of copyright and authors’ rights”. </p>
<p>In March 2020, when Internet Archive created the <a href="https://blog.archive.org/national-emergency-library/">National Emergency Library</a> in response to the COVID-19 pandemic, they removed the waiting restriction. It was this development that galvanised four major publishers – Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House – to file a lawsuit against Internet Archive in June 2020. </p>
<p>The lawsuit was supported by some authors’ organisations, such as the <a href="https://authorsguild.org/">Authors’ Guild</a> in the United States and the <a href="https://www.asauthors.org.au/">Australian Society of Authors</a>, but not by all. In September 2022, over 300 authors signed an open letter calling for publishers to “cease efforts to undermine the essential contributions of libraries to an accessible and inclusive world of books”, a campaign that was broadly <a href="https://www.booksandpublishing.com.au/articles/2022/10/03/221140/authors-accuse-publishers-of-undermining-libraries/">condemned as misleading</a>. </p>
<p>There is a significant difference between a company sharing digital files with global audiences without any license or payment to authors or publishers, and public libraries, which participate in traditional sales channels and cater for specific audiences.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/544143/original/file-20230823-17-lqld1n.jpg?ixlib=rb-1.1.0&rect=0%2C6%2C4395%2C2921&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/544143/original/file-20230823-17-lqld1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/544143/original/file-20230823-17-lqld1n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/544143/original/file-20230823-17-lqld1n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/544143/original/file-20230823-17-lqld1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/544143/original/file-20230823-17-lqld1n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/544143/original/file-20230823-17-lqld1n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Facilitating access to books without permission from, or payment to, publishers or authors has been condemned as a flagrant violation of authors’ rights.</span>
<span class="attribution"><span class="source">Susan Q. Yin/Unsplash</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-internet-archive-has-been-fighting-for-25-years-to-keep-whats-on-the-web-from-disappearing-and-you-can-help-163867">The Internet Archive has been fighting for 25 years to keep what's on the web from disappearing – and you can help</a>
</strong>
</em>
</p>
<hr>
<h2>Legal implications</h2>
<p>In response to the lawsuit, the National Emergency Library, which included 1.4 million “recent” books and over two million books in the public domain, was closed on June 16, 2020. </p>
<p>The Southern District of New York court issued its final order in <em>Hachette v. Internet Archive</em> on March 24, 2023. It found that Internet Archive was liable for copyright infringement. The consent judgement of August 11 has banned the Open Library from scanning or distributing commercially available books in digital formats. </p>
<p>This decision leaves a concerning gap: it does not apply to physical books that are not currently available digitally. As Olivia Lanchester, CEO of the Australian Society of Authors, observed to me in an email:</p>
<blockquote>
<p>there is a commercial market for digital book licensing, as evidenced by the Untapped Project in Australia. By allowing Internet Archive to retain digitised versions of print books so long as no ebook edition is available, a valid future market for authors is undermined. </p>
<p>For example, authors of out-of-print works may choose to later publish their work in an ebook format and monetise that edition. The deficiency in the court’s ruling is that the Internet Archive can beat them to it – and supply their work for free.</p>
</blockquote>
<p>The <a href="https://publishers.org/news/publishers-and-internet-archive-submit-negotiated-judgment-with-permanent-injunction-to-district-court-in-hachette-book-group-et-al-v-internet-archive/">Association of American Publishers</a> saw the ruling as a strong sign of support for the copyright holders, who should be able “explore, create, and license a variety of copyright markets for their works without fear of appropriation from actors who do nothing to invest in or transform the author’s expression”. </p>
<p>Internet Archive received the ruling – which is subject to appeal – as an attack on “the traditional right of libraries to own, lend, and preserve books”. But as the director of its library services Chris Freeland <a href="https://blog.archive.org/2023/03/25/the-fight-continues/">concedes</a>, </p>
<blockquote>
<p>This case does not challenge many of the services we provide with digitized books including interlibrary loan, citation linking, access for the print-disabled, text and data mining, purchasing ebooks, and ongoing donation and preservation of books. </p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/debate-the-multiple-paradoxes-of-meta-and-mark-zuckerberg-199263">Debate: The multiple paradoxes of Meta and Mark Zuckerberg</a>
</strong>
</em>
</p>
<hr>
<h2>Consequences</h2>
<p>The outcome of the court case may affect the fate of controlled digital lending more broadly. Other libraries in Canada and the US have adopted the practice as an alternative to far more expensive and restrictive ebook licensing. </p>
<p>The scale, however, is different. While Internet Archive claims to share the mission of libraries to provide access to books for the public good, the court rebuked it for exploiting and profiting from copyrighted material without compensating publishers and creators. </p>
<p>Though the Internet Archive is based in the US, its activities have an effect on the earnings of authors in Australia. In 2019, the Australian Society of Authors advised authors to search the Open Library for their works, contact the platform, and request the removal of their publications.</p>
<p>In contrast to Canada and the US, controlled digital lending is, in general, not allowed in Australia. Jo Kaeding, lecturer in Library and Information Management at the University of South Australia, has written to me that libraries can, however, scan books for preservation purposes, or to make them available to patrons with print disabilities if an accessible copy is not commercially available. </p>
<p>Australia’s lending rights schemes were established in 1975 by the Whitlam government. They aimed to offset the income lost from works being available to borrow in public and educational libraries. Until recently, the scheme only covered books in print. </p>
<p>In January 2023, Prime Minister Anthony Albanese and Minister for the Arts Tony Burke announced the expansion of the <a href="https://www.arts.gov.au/funding-and-support/australian-lending-right-schemes-elrplr">Australian Lending Right Schemes</a> to include ebooks and audiobooks, as part of the national cultural policy, Revive. The reform recognises the right of authors to earn a living from the lending of digital formats.</p>
<p>When I asked her to comment on the Internet Archive injunction, Olivia Lanchester observed: </p>
<blockquote>
<p>It’s beyond time that readers and consumers of all cultural output recognise the cost of creating cultural material. If we want authors to survive, we’ve got to stop assuming that authors’ intellectual labour is a public commodity. In the broader context of current generative AI discussions, I think our whole community is fed up with short-sighted arguments that aim to justify the ripping off of authors – whose earnings sit at an average of $18,200 per year. </p>
</blockquote>
<p>For the record, the national minimum wage in Australia is $45,905 per year.</p><img src="https://counter.theconversation.com/content/212091/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Agata Mrva-Montoya is a member of the Executive Committee of the Round Table on Information Access for People with Print Disabilities </span></em></p>The legal ruling against the Internet Archive has come down in favour of the rights of authors.Agata Mrva-Montoya, Lecturer, Department of Media and Communications, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2105982023-08-14T12:25:46Z2023-08-14T12:25:46Z3 ways AI is transforming music<figure><img src="https://images.theconversation.com/files/542381/original/file-20230811-32504-6469wf.jpg?ixlib=rb-1.1.0&rect=0%2C42%2C9428%2C5250&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Musicians and producers can already utilize AI to realistically reproduce the sound of any instrument or voice imaginable.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/blue-musical-instrument-wall-royalty-free-image/1283143454?phrase=digital+musical+instruments&adppopup=true">Paul Campbell/iStock via Getty Images</a></span></figcaption></figure><p>Each fall, I begin my course <a href="https://et.iupui.edu/departments/mat/research/machine-musician-lab1/">on the intersection of music and artificial intelligence</a> by asking my students if they’re concerned about AI’s role in composing or producing music.</p>
<p>So far, the question has always elicited a resounding “yes.” </p>
<p>Their fears can be summed up in a sentence: AI will create a world where music is plentiful, but musicians get cast aside.</p>
<p>In the upcoming semester, I’m anticipating a discussion about Paul McCartney, who in June 2023 announced that he and a team of audio engineers had used machine learning to uncover a “lost” vocal track of John Lennon <a href="https://www.cnbc.com/2023/06/13/paul-mccartney-says-ai-got-john-lennons-voice-on-last-beatles-record.html">by separating the instruments from a demo recording</a>. </p>
<p>But resurrecting the voices of <a href="https://www.wired.com/2011/12/ueki-loid-speech-synthesizer/">long-dead artists</a> is just the tip of the iceberg in terms of what’s possible – and what’s already being done.</p>
<p><a href="https://www.theguardian.com/music/2023/jun/23/paul-mccartney-says-theres-nothing-artificial-in-new-beatles-song-made-using-ai">In an interview</a>, McCartney admitted that AI represents a “scary” but “exciting” future for music. To me, his mix of consternation and exhilaration is spot on. </p>
<p>Here are three ways AI is changing the way music gets made – each of which could threaten human musicians in various ways:</p>
<h2>1. Song composition</h2>
<p>Many programs can already generate music with a simple prompt from the user, such as “Electronic Dance with a Warehouse Groove.”</p>
<p><a href="https://www.frontiersin.org/articles/10.3389/frobt.2021.680586/full">Fully generative apps</a> train AI models on extensive databases of existing music. This enables them to learn musical structures, harmonies, melodies, rhythms, dynamics, timbres and form, and generate new content that stylistically matches the material in the database.</p>
<p>There are many examples of these kinds of apps. But the most successful ones, like <a href="https://boomy.com">Boomy</a>, allow nonmusicians to generate music and then post the AI-generated results on Spotify to earn money. <a href="https://www.foxbusiness.com/lifestyle/spotify-removes-ai-generated-songs-platform">Spotify recently removed many of these Boomy-generated tracks</a>, claiming that this would protect human artists’ rights and royalties.</p>
<p>The two companies quickly came to an agreement that allowed Boomy to re-upload the tracks. But the algorithms powering these apps still have a <a href="https://scholarship.law.edu/cgi/viewcontent.cgi?article=1108&context=jlt">troubling ability to infringe upon existing copyright</a>, which might go unnoticed to most users. After all, basing new music on a data set of existing music is bound to cause noticeable similarities between the music in the data set and the generated content. </p>
<figure class="align-center ">
<img alt="Yellow and pink poster attached to a lamp post that reads 'artificial intelligence plus human stupidity equals bangers.'" src="https://images.theconversation.com/files/542358/original/file-20230811-17-o479w3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542358/original/file-20230811-17-o479w3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542358/original/file-20230811-17-o479w3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542358/original/file-20230811-17-o479w3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542358/original/file-20230811-17-o479w3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542358/original/file-20230811-17-o479w3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542358/original/file-20230811-17-o479w3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A poster for the AI music service Boomy in Austin, Texas.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/poster-for-the-ai-music-creation-service-boomy-austin-texas-news-photo/1475137303?adppopup=true">Smith Collection/Gado/Getty Images</a></span>
</figcaption>
</figure>
<p>Furthermore, streaming services like Spotify and <a href="https://music.amazon.com/">Amazon Music</a> are naturally incentivized to develop their own <a href="https://www.musicbusinessworldwide.com/amazon-music-strikes-playlist-partnership-with-generative-ai-music-company-endel12/">AI music-generation technology</a>. Spotify, for instance, <a href="https://dittomusic.com/en/blog/how-much-does-spotify-pay-per-stream/#:%7E:text=Spotify%20pays%20artists%20between%20%240.003,holders%20and%2030%25%20to%20Spotify.">pays 70% of the revenue of each stream</a> to the artist who created it. If the company could generate that music with its own algorithms, it could cut human artists out of the equation altogether.</p>
<p>Over time, this could mean more money for giant streaming services, less money for musicians – and a less human approach to making music.</p>
<h2>2. Mixing and mastering</h2>
<p>Machine-learning-enabled apps that help musicians balance all of the instruments and clean up the audio in a song – what’s known as mixing and mastering – are valuable tools for those who lack the experience, skill or resources to pull off professional-sounding tracks. </p>
<p>Over the past decade, AI’s integration into music production has revolutionized how music is mixed and mastered. AI-driven apps like <a href="https://www.landr.com">Landr</a>, <a href="https://cryo-mix.com">Cryo Mix</a> and <a href="https://www.izotope.com">iZotope’s Neutron</a> can automatically analyze tracks, balance audio levels and remove noise. </p>
<p>These technologies streamline the production process, allowing musicians and producers to focus on the creative aspects of their work and leave some of the technical drudgery to AI. </p>
<p>While these apps undoubtedly take some work away from professional mixers and producers, they also allow professionals to quickly complete less lucrative jobs, <a href="https://mackie.com/en/blog/all/8_Ways_Earn_Money_Music_Production.html">such as mixing or mastering for a local band</a>, and focus on high-paying commissions that require more finesse. These apps also allow musicians to produce more professional-sounding work without involving an audio engineer they can’t afford. </p>
<h2>3. Instrumental and vocal reproduction</h2>
<p>Using “tone transfer” algorithms <a href="https://mawf.io">via apps like Mawf</a>, musicians can transform the sound of one instrument into another. </p>
<p>Thai musician and engineer <a href="https://yaboihanoi.com">Yaboi Hanoi’s</a> song “<a href="https://youtu.be/n2bj5R5o9mE">Enter Demons & Gods</a>,” which won the third international <a href="https://youtu.be/1VH-0EAXutU">AI Song Contest</a> in 2022, was unique in that it was influenced not only by Thai mythology, but also by the sounds of native Thai musical instruments, which have a non-Western system of intonation. One of the most technically exciting aspects of Yaboi Hanoi’s entry was the reproduction of a traditional Thai woodwind instrument – <a href="https://www.metmuseum.org/art/collection/search/501870">the pi nai</a> – <a href="https://youtu.be/PbrRoR3nEVw">which was resynthesized</a> to perform the track.</p>
<p>A variant of this technology lies at the core of the <a href="https://www.vocaloid.com">Vocaloid voice synthesis software</a>, which allows users to produce convincingly human vocal tracks with swappable voices. </p>
<p><a href="https://www.washingtonpost.com/technology/2023/03/05/ai-voice-scam/">Unsavory applications of this technique</a> are popping up outside of the musical realm. For example, AI voice swapping has been used to scam people out of money. </p>
<p>But musicians and producers can already use it to realistically reproduce the sound of any instrument or voice imaginable. The downside, of course, is that this technology can rob instrumentalists of the opportunity to perform on a recorded track.</p>
<p><audio preload="metadata" controls="controls" data-duration="14" data-image="" data-title="Using tone transfer, a singer's voice is turned into the sound of a trumpet." data-size="296160" data-source="Jason Palamara" data-source-url="" data-license="CC BY" data-license-url="http://creativecommons.org/licenses/by/4.0/">
<source src="https://cdn.theconversation.com/audio/2861/tone-transfer-vocal-to-trumpet.mp3" type="audio/mpeg">
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Using tone transfer, a singer’s voice is turned into the sound of a trumpet.
<span class="attribution"><span class="source">Jason Palamara</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a><span class="download"><span>289 KB</span> <a target="_blank" href="https://cdn.theconversation.com/audio/2861/tone-transfer-vocal-to-trumpet.mp3">(download)</a></span></span>
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<h2>AI’s Wild West moment</h2>
<p>While I applaud Yaboi Hanoi’s victory, I have to wonder if it will encourage musicians to use AI to fake a cultural connection where none exists.</p>
<p>In 2021, Capitol Music Group made headlines by signing an “AI rapper” that had been given the avatar of a Black male cyborg, but which was really the work of Factory New non-Black software engineers. The backlash was swift, with the record label roundly excoriated <a href="https://www.bbc.com/news/newsbeat-62659741">for blatant cultural appropriation</a>. </p>
<p>But AI musical cultural appropriation is easier to stumble into than you might think. With the extraordinary size of songs and samples that comprise the data sets used by apps like Boomy – see the open source “Million Song Dataset” <a href="http://millionsongdataset.com">for a sense of the scale</a> – there’s a good chance that a user may unwittingly upload a newly generated track that pulls from a culture that isn’t their own, or cribs from an artist in a way that too closely mimics the original. Worse still, it won’t always be clear who is to blame for the offense, and current U.S. copyright laws are contradictory and woefully inadequate to the task of regulating these issues.</p>
<p>These are all topics that have come up in my own class, which has allowed me to at least inform my students of the dangers of unchecked AI and how to best avoid these pitfalls. </p>
<p>At the same time, at the end of each fall semester, I’ll again ask my students if they’re concerned about an AI takeover of music. At that point, and with a whole semester’s experience investigating these technologies, most of them say they’re excited to see how the technology will evolve and where the field will go. </p>
<p>Some dark possibilities do lie ahead for humanity and AI. Still, at least in the realm of musical AI, there is cause for some optimism – assuming the pitfalls are avoided.</p><img src="https://counter.theconversation.com/content/210598/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jason Palamara does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>AI can streamline the painstaking work of mixing and editing tracks. But it’s also easy to see how AI-generated music will make more money for giant streaming services at the expense of artists.Jason Palamara, Assistant Professor of Music Technology, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2108752023-08-03T02:16:46Z2023-08-03T02:16:46ZDolls and dollars: why small businesses should be wary of cashing in on Barbiemania with their branding<p>Blockbuster movie brand merchandising is a multi-billion-dollar industry. </p>
<p>That <a href="https://www.ebay.com/itm/114638951463">Buzz Lightyear bubble bath</a>, <a href="https://www.amazon.com/lightning-mcqueen-bedding-set/s?k=lightning+mcqueen+bedding+set">Lightning McQueen bedding</a> or <a href="https://woowcool.com/elemental-backpack-for-school-waterproof-bookbag-lunchbox-boy-gifts-idea-elemental-backpack.html">Elemental backpack</a> all contribute to a movie’s overall income stream.</p>
<p>And brand owners are in a constant battle against fake or unlicensed goods. The European Union Intellectual Property Office <a href="https://euipo.europa.eu/ohimportal/en/web/observatory/report-on-trade-in-fakes">estimates</a> that counterfeits comprise around 2.5% of all world trade.</p>
<p>But successful brands also inspire well-meaning imitators such as <a href="https://www.dailymail.co.uk/news/article-2114365/Hobbit-pub-Southampton-sued-Hollywood-giant-Middle-earth-Enterprises-name.html">Hobbit-themed pubs</a>, <a href="https://petapixel.com/2019/10/02/dr-seuss-goes-after-photographer-over-grinch-themed-photo-shoot/">Grinch-themed photoshoots</a>, <a href="https://www.nzherald.co.nz/business/warner-bros-crackdown-puts-dark-mark-over-potter-festivals/K5AAYQUCNCYL2LJ5W3XOSKLVRY/">Harry Potter fan festivals</a>, or, in New Zealand, a cleaning business van painted with “<a href="https://www.stuff.co.nz/business/small-business/71285291/kiwi-cleaner-minions-and-me-slapped-with-hollywood-legal-action">Minion” imagery</a>. Small businesses trying this kind of thing often get “cease and desist” letters from film studios, demanding they stop. </p>
<p>The <a href="https://www.theguardian.com/film/2023/jul/31/barbie-and-oppenheimers-success-continues-into-second-weekend">success of Greta Gerwig’s Barbie</a> seems destined to encourage businesses to use elements of the film’s brand – from the <a href="https://www.thefashionlaw.com/barbie-pink-what-is-it-and-what-do-mattels-trademark-right-look-like/">distinctive lettering and colours</a> to the doll’s packaging and image. </p>
<p>But businesses in New Zealand and elsewhere need to consider the risk they face by infringing on Mattel’s intellectual property rights. </p>
<h2>The rise of Barbie</h2>
<p>Barbie was already a juggernaut brand before the release of the film. In 2002, an <a href="https://caselaw.findlaw.com/court/us-9th-circuit/1260576.html">appellate judge in the United States</a> said “Mattel created not just a toy but a cultural icon”. </p>
<p>Mattel has been vigilant about <a href="https://www.nytimes.com/2007/07/26/business/26toy.html">controlling the Barbie image</a>. It <a href="http://www.artistrights.info/decision_mattel-inc-v-walking-mountain-productions">tried to stop</a> conceptual artist Thomas Forsythe from <a href="https://emilybordon.wordpress.com/essays/a-remix-the-question-of-perfections-existence-dealing-with-tom-forsythes-food-chain-barbie-and-the-role-women-assume-in-the-21st-century/">creating artworks</a> depicting Barbie in perilous positions – such as in cocktail blenders and under an oven grill. </p>
<p>And in the late 1990s, Mattel <a href="https://caselaw.findlaw.com/court/us-9th-circuit/1260576.html">tried to stop</a> Danish pop group Aqua from singing about Barbie.</p>
<p>Recently, Mattel <a href="https://www.natlawreview.com/article/mattel-defeats-chinese-trademark-applicant-attempting-to-register-barbie-services">convinced a court in China</a> to stop a local firm called Barbietang from registering “Barbie tang” as a trade mark for veterinarian services – including artificial insemination. </p>
<p>In 2022, Mattel <a href="https://www.reuters.com/legal/litigation/mattel-ends-trademark-lawsuit-over-nicki-minaj-barbie-que-chips-2022-09-14/">settled a claim</a> against the use of “Barbie-Que” potato chips, apparently driving the product off the market.</p>
<p>Mattel’s legal strategies haven’t always worked. Forsythe won his case, and Mattel’s <a href="https://www.theguardian.com/media/2002/jul/26/marketingandpr.internationalnews">suit against MCA Records</a>, Aqua’s North American record label, failed. </p>
<p>In 2006, the <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2294/index.do">Supreme Court of Canada</a> held that the fame of the Barbie trademark was not enough to stop a restaurant from using the word “Barbie” in its own branding.</p>
<p>But for local businesses, these cases won’t offer much comfort. Often, just the threat of legal proceedings will be enough.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/the-reaction-to-x-elon-musks-rebrand-of-twitter-reflects-how-we-feel-about-brands-210607">The reaction to 'X,' Elon Musk's rebrand of Twitter, reflects how we feel about brands</a>
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<h2>Investing in brand protection</h2>
<p>Serious concerns lie behind these enforcement efforts. Millions of dollars are spent on creating and sustaining brand images. What if Barbie-themed cruises, brunches, home decorating services and nightclub evenings aren’t any good? Will these poor imitations affect how people feel about the brand?</p>
<p>Mattel’s worldview has matured, as the Gerwig movie shows. It now seems open to some pretty sophisticated social commentary targeting its doll.</p>
<p>Yet it still has a strong interest in the Barbie image – boosted by the success of the film. A lacklustre “Barbie Brunch” could dim the brand’s shine. Brands can die by a thousand cuts.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/in-greta-gerwigs-barbie-land-the-matriarchy-can-be-just-as-bad-as-the-patriarchy-209317">In Greta Gerwig’s Barbie Land, the matriarchy can be just as bad as the patriarchy</a>
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<p>There’s another reason: money. As Mattel told the Canadian court, it is in the business of building brand equity – the commercial value that comes from consumer perception of a brand, which supports vast networks of licensing deals. It can be a firm’s most valuable asset. </p>
<p>Warding off unlicensed use of a brand <a href="https://hbr.org/2006/12/strategies-to-fight-low-cost-rivals">protects new market segments</a>. Sitting back while others enter the market with the same brand risks losing money. It’s not just poor imitations that matter. Any unlicensed use of the brand can take away market share.</p>
<h2>What is a brand?</h2>
<p>For all its importance, a “brand” is not a distinct legal category. Brand equity is protected by an array of intellectual property (IP) rights. Trademarks, copyrights and business goodwill work together to create and protect the valuable asset known as a “brand”.</p>
<p>The Canadian restaurant wanted only to use the word “Barbie”. The court was not convinced this would cause consumer confusion. This decision might have been different if the restaurant’s goods and services had been more similar to Mattel’s. </p>
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Read more:
<a href="https://theconversation.com/how-i-learned-to-stop-worrying-and-love-the-doll-a-feminist-philosophers-journey-back-to-barbie-208730">How I learned to stop worrying and love the doll – a feminist philosopher's journey back to Barbie</a>
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<p>And it would have been a totally different case if the restaurant had also copied Barbie artwork, infringing Mattel’s copyrights. </p>
<p>Importantly, copyright rules protect against copying – brand owners don’t need to show that the copying will damage its reputation or jeopardise its market share.</p>
<h2>A global network of IP treaties</h2>
<p>Some will bridle at foreign firms using their IP muscle against New Zealand firms. </p>
<p>But international protection of IP has been around since at least the end of the 19th century. Owners of strong trademarks have also had entry into some markets blocked by businesses who used the brand first. </p>
<p>Aotearoa New Zealand is now party to a <a href="https://www.iponz.govt.nz/about-ip/copyright/international-protection/">network of international IP treaties</a> that help prevent this from happening. </p>
<p>These treaties are often linked to trade. Protecting IP is part of the quid pro quo for lowering tariffs for our goods in foreign markets. And it works the other way around: local artists and creative brand developers enjoy reciprocal protections for their IP in foreign markets.</p>
<p>For a small business getting a “cease and desist” letter, this can seem like cold comfort. Repainting a van or rebranding a pub is an irritating expense.</p>
<p>But when the IP system works well, it encourages creativity. To avoid problems, local firms need to come up with their own original brands and imagery. As with any branding strategy, that will require investment and creativity. But these efforts enrich our culture and, it’s hoped, the local businesses that do the hard yards.</p><img src="https://counter.theconversation.com/content/210875/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Graeme Austin does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The temptation to cash in on a global phenomenon might be strong. But Mattel has a history of fiercely protecting the Barbie brand with legal action.Graeme Austin, Chair of Private Law, Te Herenga Waka — Victoria University of WellingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2103792023-08-01T20:13:07Z2023-08-01T20:13:07ZIs it OK to pirate TV shows and movies from streaming services that exploit artists? An ethicist weighs in<p>You’ve probably heard that Hollywood writers and actors are striking. </p>
<p>One of the main revelations to outside observers is the hard treatment meted out by production companies (in concert with streaming giants) to artists. Even very <a href="https://nypost.com/2023/07/18/the-bear-writer-who-lived-below-the-poverty-line-rips-disney-ceo/">successful</a> and sometimes <a href="https://www.yahoo.com/entertainment/sag-strike-residuals-explainer-mandy-moore-sanaa-lathan-orange-is-the-new-black-210639209.html">famous</a> writers or actors can struggle to make a <a href="https://www.hollywoodreporter.com/business/business-news/writers-guild-streaming-report-members-falling-behind-1235352341/">living wage</a>, with residuals – the money these artists make when their work is re-aired – dropping precipitously in the streaming era. </p>
<p>One of the <a href="https://books.google.com.au/books?id=O2KsAgAAQBAJ&pg=PA154&lpg=PA154&dq=hollywood+defends+copyright&source=bl&ots=6vtFZzM6yT&sig=ACfU3U1er3ABl7KYfqLAO1OUnwjmsUBqAQ&hl=en&sa=X&ved=2ahUKEwj8-NuZhLCAAxVocGwGHQ6lCBAQ6AF6BAhyEAM#v=onepage&q=hollywood%20defends%20copyright&f=false">key reasons</a> the entertainment industry urges us to support copyright and avoid piracy is to support artists. So what happens to our moral calculations when it turns out industries direct so little revenue to creative workers? Should we really feel morally beholden to pay streaming services that exploit artists? </p>
<p>The strike presents a worthwhile moment to think about why we have copyright, and whether it is a law worthy of respect.</p>
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Read more:
<a href="https://theconversation.com/how-ronald-reagan-led-the-1960-actors-strike-and-then-became-an-anti-union-president-209800">How Ronald Reagan led the 1960 actors' strike – and then became an anti-union president</a>
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<hr>
<h2>What is piracy?</h2>
<p><a href="https://www.britannica.com/topic/piracy-copyright-crime">Piracy</a> refers to the illegal copying, accessing, downloading, streaming or distributing of another’s created work of entertainment, without transforming that work. (For example, <a href="https://legalvision.com.au/does-fanfiction-infringe-copyright/">fan fiction</a> often violates copyright, but because it transforms the work, it isn’t piracy.)</p>
<p>Content industries tend to stereotype pirates as rapacious, remorseless thieves. But <a href="https://www.jstor.org/stable/25482147">many pirates</a> pay respect to <a href="https://journals.sagepub.com/doi/10.1177/0196859909333697">copyright law’s spirit</a>, if not its black-letter obligations.</p>
<p>Consider four different types of pirates:</p>
<ul>
<li><strong>takers</strong> take whatever they want without compunction</li>
<li><strong>samplers</strong> pirate only to sample works. Once they find something they enjoy, they purchase it</li>
<li><strong>finders</strong> only pirate works that aren’t otherwise available</li>
<li><strong>non-payers</strong> only pirate works they would never otherwise have purchased (for example, because they do not have the money to pay for it).</li>
</ul>
<p>These four types of pirates raise different moral concerns, and it can be tricky to <a href="https://hughbreakey.com/wp-content/uploads/2020/12/Breakey-2018-Ethics-of-Digital-Piracy-ONLINE.pdf">tease out the ethics</a> of each. Let’s confine our attention here to <em>taking</em>, which is the most concerning type of piracy.</p>
<p>Is piratical taking of copyrighted works ethical?</p>
<h2>Is copyright law morally right?</h2>
<p>Perhaps the most obvious question to consider will be whether we agree with copyright. Copyright law has <a href="https://plato.stanford.edu/entries/intellectual-property/">two main moral justifications</a>.</p>
<p>First, copyright might be justified on the basis that it provides incentives to artists to develop their work. The production of new art usually requires significant labour. Without some way of supporting artists for what they do, there would be less art and entertainment for us all to enjoy. This “<a href="https://utilitarianism.net/">utilitarian</a>” argument justifies copyright because of its good consequences.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1680395389525180416"}"></div></p>
<p>Second, we might think artists <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2856883">deserve to be compensated</a>. If through hard work and talent someone creates something that gives enjoyment and fulfilment to millions, then it seems unfair if they don’t get rewarded. This is a rights-based or desert-based moral justification.</p>
<p>When industry bodies <a href="https://escholarship.org/content/qt3fk848wz/qt3fk848wz_noSplash_3c19eb9dc89e79675946515dd1b1e8e4.pdf?t=oo6uou">appeal</a> to the need for copyright law to protect and support artists, they are tapping into the moral force of these arguments. </p>
<p>Still, both these justifications are controversial. <a href="http://tomgpalmer.com/wp-content/uploads/papers/morallyjustified.pdf">Reasonable</a> and <a href="https://en.wikipedia.org/wiki/The_Uneasy_Case_for_Copyright">informed</a> people can disagree with them.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">From convicts to pirates: Australia's dubious legacy of illegal downloading</a>
</strong>
</em>
</p>
<hr>
<h2>Understanding legitimacy</h2>
<p>Suppose we disagree with a law. Do we have the right to ignore it? There are two good reasons to think we don’t have that right.</p>
<p>First, if people only respected laws they already agreed with, then law itself would cease to function. The main reason we have the <a href="https://www.ruleoflaw.org.au/what-is-the-rule-of-law/">rule of law</a> is to avoid everyone simply doing whatever they want. </p>
<p>As political theorists such as <a href="https://www.britannica.com/biography/John-Locke">John Locke</a> argued, such situations quickly descend to violence, as everyone enforces their chosen understanding of rights and obligations. Lawless societies are not nice places to live.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1679748981923151872"}"></div></p>
<p>Second, democratically made laws have a <a href="https://resume.uni.lu/story/democratic-legitimacy">special claim</a> to legitimacy. As human institutions, democracies are inevitably flawed. Yet they provide an important way that everyone in a community can come together as equals and play a role in deciding the laws that will bind them. </p>
<p>These two arguments show we can disagree with a law, but still think it should be respected.</p>
<h2>So, should we turn to piracy?</h2>
<p>Where, then, are we left when we find that many entertainment industries exploit artists, and that little of the money from our purchases trickles through to the artists who created it?</p>
<p>For a start, we have reason to think that such industry bodies are not just being exploitative. They are also being hypocritical and manipulative when they appeal to artists to persuade us to support copyright. </p>
<p>If they really were morally committed to supporting artists, their own behaviour would reflect this. </p>
<p>The lack of support to artists may also prompt us to rethink how well copyright law really serves the justifications presented for it.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1668979246855774209"}"></div></p>
<p>Can we go a step further, and say that if entertainment industries are such exploitative hypocrites, we’re entitled to stop handing over our hard-earned cash to access their shows?</p>
<p>If the above arguments are on the right track, then the answer is “no”.</p>
<p>For one thing, copyright law is still the democratically created law of the land. We wouldn’t want other people dispensing with laws and entitlements we cherish and rely on. So we have reason not to break laws that are important to other people.</p>
<p>More specifically, many artists at least make <em>some</em> money from the present system. If we are morally outraged at how little our purchases contribute to their wages, it would be a wildly inappropriate response to <a href="https://www.vox.com/2016/4/20/11393162/piracy-arthouse-film-extinct-jason-blum">stop paying altogether</a> (and thereby strip our contribution to artists down to zero!).</p>
<p>While we should resist resorting to piracy, the Hollywood strikes do invite us to think critically about how well our current laws live up to their justifications, and whether there are other ways we can support artists.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/computer-written-scripts-and-deepfake-actors-whats-at-the-heart-of-the-hollywood-strikes-against-generative-ai-210191">Computer-written scripts and deepfake actors: what’s at the heart of the Hollywood strikes against generative AI</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/210379/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Breakey does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Given the hypocritical and exploitative treatment of artists by entertainment industries, do we really have moral obligations to pay for streaming services?Hugh Breakey, Deputy Director, Institute for Ethics, Governance & Law. President, Australian Association for Professional & Applied Ethics., Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2075592023-07-04T22:33:25Z2023-07-04T22:33:25ZCopyright exceptions in Canadian education aren’t a loophole, they’re essential<figure><img src="https://images.theconversation.com/files/534361/original/file-20230627-29-hl1r78.jpg?ixlib=rb-1.1.0&rect=0%2C301%2C4436%2C2565&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The shift towards digital access has changed the way libraries buy materials. </span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Recent op-eds about Canadian copyright law call on <a href="https://www.hilltimes.com/story/2023/05/18/canadas-writers-need-a-functioning-market-not-endless-promises/387222">the Canadian government to</a> stop allowing uncompensated copying in education.</p>
<p>At the end of May, an op-ed in <em>The Globe and Mail</em> described the current state of affairs regarding copyright and education as “<a href="https://www.theglobeandmail.com/arts/article-copyright-loophole-for-education-should-be-plugged/">the legalized robbery of Canadian authors by the education sector</a>.”</p>
<p>This follows the ongoing “<a href="https://ivaluecanadianstories.ca/">I Value Canadian Stories</a>” campaign, by a coalition of more than 20 <a href="https://ivaluecanadianstories.ca/about-us.php">publishing, writerly and creative associations</a>, which calls on the federal government to “restore fair compensation to creators and publishers for the use of their works by the education sector.” </p>
<p>As researchers with expertise <a href="https://doi.org/10.17161/jcel.v5i1.15513">in copyright and universities</a>, we think the tone of this discourse is misleading. It’s also potentially harmful to a broader discussion of the important role that copyright exceptions serve within education and society at large. </p>
<h2>Decline in author incomes</h2>
<p>Authors and publishers <a href="https://www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR9990266/br-external/TheWritersUnionOfCanada-e.pdf">trace the decline</a> in author incomes back to a specific addition to the Copyright Act in 2012 that added “education” as a purpose <a href="https://www.lib.sfu.ca/help/academic-integrity/copyright/fair-dealing">under the fair dealing exception</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-is-fair-dealing-in-copyright-heres-why-it-matters-when-moving-classes-online-due-to-coronavirus-134510">What is fair dealing in copyright? Here's why it matters when moving classes online due to coronavirus</a>
</strong>
</em>
</p>
<hr>
<p>Fair dealing protects the right to research, private study, education, parody, satire, criticism, review and news reporting. Fair dealing is not illegal — <a href="https://fair-dealing.ca/">the ability for users to make copies for specific purposes is an integral part of the Canadian Copyright Act</a>.</p>
<p>When universities do use fair dealing in a small number of situations to supplement purchased, licensed and freely available resources, they are working <a href="https://toronto.ctvnews.ca/restricting-copyright-exceptions-detrimental-to-education-says-student-group-1.3901077">within guidelines developed across the post-secondary</a> and kindergarten to Grade 12 sectors.</p>
<figure class="align-center ">
<img alt="People seen walking across a campus." src="https://images.theconversation.com/files/534877/original/file-20230629-12801-krliiv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534877/original/file-20230629-12801-krliiv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534877/original/file-20230629-12801-krliiv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534877/original/file-20230629-12801-krliiv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534877/original/file-20230629-12801-krliiv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534877/original/file-20230629-12801-krliiv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534877/original/file-20230629-12801-krliiv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A changing landscape of digital disruption affected universities’ decisions not to renew licences with Access Copyright.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<h2>Shifting licensing relationships</h2>
<p>Prior to 2012, most post-secondary institutions paid Access Copyright for the right to copy and distribute articles and chapters to students. Access Copyright is an organization that collects copying fees from institutions, like schools and governments, on behalf of authors. </p>
<p>It’s true that during the <a href="https://www.canadianlawyermag.com/news/general/access-copyrights-next-chapter/269495">early part of the 2010s</a> many post-secondary institutions decided not to renew their annual licences with Access Copyright. This certainly had an impact on the royalties higher education institutions passed along to authors. </p>
<p>For <a href="https://excesscopyright.blogspot.com/2011/08/more-update-on-opt-outs-from-access.html">many institutions, including the University of British Columbia, the University of Alberta and Dalhousie University</a>, the initial decision to step away from the Access Copyright licence preceded any changes to the Copyright Act. It was informed by the diminishing value of the licence and the technological changes happening in the publishing sector.</p>
<p>For a long time, the Access Copyright licence served the needs of the university community. However, in a changing landscape of digital disruption and acquisition models, it became less valuable. Libraries make decisions all the time about how they purchase and license materials, responding to the value of different products and services on the market. </p>
<h2>Digital disruption</h2>
<p>The Access Copyright licence, which only covered <a href="https://www.michaelgeist.ca/2018/05/canadian-copyright-fair-dealing-and-education-part-two-the-declining-value-of-the-access-copyright-licence/">physical photocopies of up to 20 per cent of a work</a> in 2011, no longer made sense given the growing impacts of digital disruption. A shift from print to digital materials was happening in many sectors at this time. </p>
<p>University libraries were increasingly paying publishers for online access to materials. These licence agreements included unlimited digital access to many articles and books universities had already been paying Access Copyright for the right to use. This access reduced the need to make copies of materials for teaching and learning.</p>
<figure class="align-center ">
<img alt="People seen on computers in a library." src="https://images.theconversation.com/files/534879/original/file-20230629-17-r0c2bo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534879/original/file-20230629-17-r0c2bo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=467&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534879/original/file-20230629-17-r0c2bo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=467&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534879/original/file-20230629-17-r0c2bo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=467&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534879/original/file-20230629-17-r0c2bo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=586&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534879/original/file-20230629-17-r0c2bo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=586&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534879/original/file-20230629-17-r0c2bo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=586&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A shift to digital purchasing and access impacted how instructors assigned university readings.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>This shift to digital purchasing and access also impacted how instructors assigned readings. Instead of each student being asked to purchase a textbook or course pack of photocopied and bundled readings, instructors could share a digital syllabus with links to library-licensed readings. </p>
<p>Students would only have to enter in their library password and could have immediate access to assigned readings from any location. </p>
<h2>How libraries buy materials</h2>
<p>The shift towards digital access has increased the ability of universities to meet the needs of students and instructors, but has also changed the way libraries buy materials. </p>
<p>Universities now gain access and copying rights primarily through these digital licences. This significantly reduces the need to pay additional fees for copying, such as Access Copyright licence fees. </p>
<p>To supplement library materials, universities also pay publishers directly for use of specific materials that aren’t included in the licences. Increasingly, <a href="https://www.ecampusontario.ca/wp-content/uploads/2018/10/eCampusOntario_September2018_ResearchReport.pdf">educators are also using freely available online materials such as YouTube videos</a>. </p>
<p>Despite the variety of sources available for educational content today, universities continue to <a href="https://www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR10002433/br-external/UniversitiesCanada-e.pdf">pay large amounts for library materials</a>.</p>
<h2>Creative writers affected</h2>
<p>The types of authors that Access Copyright represents and those discussed in the opinion pieces above are primarily creative writers. </p>
<p><a href="https://www.carl-abrc.ca/wp-content/uploads/2018/08/Library_Expenditures_Memo.pdf">Only about two per cent of post-secondary library holdings are Canadian literature</a> of the type that would be covered under an Access Copyright licence. </p>
<p>The vast majority of university courses do not assign work by creative writers.
Universities overwhelmingly purchase and use research and other non-creative materials created by scholars and students who receive no financial compensation for their writing.</p>
<p>Universities Canada’s submission to the Standing Committee on Industry, Science and Technology’s statutory <a href="https://www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR10002433/br-external/UniversitiesCanada-e.pdf">review of Canada’s Copyright Act acknowledged changes</a> in copyright and publishing industries. These shifts have happened while <a href="https://theconversation.com/low-funding-for-universities-puts-students-at-risk-for-cycles-of-poverty-especially-in-the-wake-of-covid-19-131363">university funding models are also changing</a>.</p>
<p>The submission to the standing committee proposed two solutions for remunerating writers affected by a loss of royalties: increased funding in <a href="https://www.canada.ca/en/canadian-heritage/services/funding/book-fund.html">the Canada Book Fund</a> and including university libraries’ Canadian literature in <a href="https://publiclendingright.ca/">Canada’s Public Lending Right program</a>. This program issues annual payments to authors according to the frequency with which their books appear in Canadian public libraries.</p>
<h2>Fair dealing’s value to society</h2>
<p>Fair dealing exists for all Canadians and empowers individuals to access information, critique institutions, educate themselves, create new cultural products, innovate on technology and more. </p>
<p>Education can include any kind of instruction, formal or otherwise — the impact of removing education from fair dealing would go far beyond universities. For example, a community organization might share an article about a key issue with its staff and volunteers in a training session.</p>
<p>Fair dealing is not a copyright loophole that facilitates robbery, it is an essential part of the Copyright Act and has been <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2125/index.do">defended in Canada by the courts at the highest level</a>.</p><img src="https://counter.theconversation.com/content/207559/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Zerkee receives funding from an SFU/SSHRC Small Explore Grant. </span></em></p><p class="fine-print"><em><span>Stephanie Savage does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When universities do use fair dealing to supplement purchased, licensed and freely available resources, they work within guidelines developed across the education sector.Stephanie Savage, Scholarly Communications and Copyright Services Librarian, University of British ColumbiaJennifer Zerkee, Copyright Specialist, Simon Fraser UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2074732023-06-15T18:18:00Z2023-06-15T18:18:00ZGenerative AI is a minefield for copyright law<figure><img src="https://images.theconversation.com/files/532241/original/file-20230615-11155-nww82y.jpg?ixlib=rb-1.1.0&rect=17%2C5%2C3817%2C2149&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Still from 'All watched over by machines of loving grace' by Memo Akten, 2021. Created using custom AI software.</span> <span class="attribution"><span class="source">Memo Akten</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>In 2022, an AI-generated work of art won the Colorado State Fair’s art competition. The artist, Jason Allen, had used Midjourney – a generative AI system trained on art <a href="https://www.forbes.com/sites/robsalkowitz/2022/09/16/midjourney-founder-david-holz-on-the-impact-of-ai-on-art-imagination-and-the-creative-economy/?sh=6b99081f2d2b">scraped from the internet</a> – to create the piece. The process was far from fully automated: Allen went through some 900 iterations over 80 hours to create and refine his submission. </p>
<p>Yet his use of AI to win the art competition triggered a heated backlash online, <a href="https://www.nytimes.com/2022/09/02/technology/ai-artificial-intelligence-artists.html">with one Twitter user claiming</a>, “We’re watching the death of artistry unfold right before our eyes.”</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1565712173183016960"}"></div></p>
<p>As generative AI art tools like Midjourney and Stable Diffusion have been thrust into the limelight, so too have questions about ownership and authorship. </p>
<p>These tools’ generative ability is the result of training them with scores of prior artworks, from which the AI learns how to create artistic outputs.</p>
<p>Should the artists whose art was scraped to train the models be compensated? Who owns the images that AI systems produce? Is the process of fine-tuning prompts for generative AI a form of <a href="https://theconversation.com/generative-ai-is-forcing-people-to-rethink-what-it-means-to-be-authentic-204347">authentic creative expression</a>? </p>
<p>On one hand, <a href="https://www.freethink.com/robots-ai/ai-and-future-of-creativity">technophiles rave</a> over work like Allen’s. But on the other, many working artists consider the use of their art to train AI to be <a href="https://www.artnews.com/art-in-america/features/midjourney-ai-art-image-generators-lawsuit-1234665579/">exploitative</a>.</p>
<p>We’re part of a team of 14 experts across disciplines that just published a paper on generative AI in Science magazine. In it, we explore how advances in AI <a href="https://doi.org/10.1126/science.adh4451">will affect creative work, aesthetics and the media</a>. One of the key questions that emerged has to do with <a href="https://www.copyright.gov/what-is-copyright/">U.S. copyright laws</a>, and whether they can adequately deal with the unique challenges of generative AI.</p>
<p>Copyright laws were created to promote the arts and creative thinking. But the rise of generative AI has complicated existing notions of authorship.</p>
<h2>Photography serves as a helpful lens</h2>
<p>Generative AI might seem unprecedented, but history can act as a guide. </p>
<p>Take the <a href="https://heinonline.org/HOL/Page?handle=hein.journals/coml8&div=41&g_sent=1&casa_token=oFkqu0HYSOgAAAAA:C_ZxdPOJEoIWzr2PmppzxZgIdgdf6mx-bocutIgYsKOFyOJAomcBF4rfVVymEGmBgt3fFXZR&collection=journals">emergence of photography in the 1800s</a>. Before its invention, artists could only try to portray the world through drawing, painting or sculpture. Suddenly, reality could be captured in a flash using a camera and chemicals. </p>
<p>As with generative AI, many argued that photography lacked artistic merit. In 1884, the <a href="https://supreme.justia.com/cases/federal/us/111/53/">U.S. Supreme Court weighed in on the issue</a> and found that cameras served as tools that an artist could use to give an idea visible form; the “masterminds” behind the cameras, the court ruled, should own the photographs they create. </p>
<p>From then on, photography evolved into its own art form and even sparked <a href="https://www.mdpi.com/2076-0752/7/2/18">new abstract artistic movements</a>. </p>
<h2>AI can’t own outputs</h2>
<p>Unlike inanimate cameras, AI possesses capabilities – like the ability to convert basic instructions into impressive artistic works – that make it <a href="https://theconversation.com/ai-isnt-close-to-becoming-sentient-the-real-danger-lies-in-how-easily-were-prone-to-anthropomorphize-it-200525">prone to anthropomorphization</a>. Even the term “artificial intelligence” encourages people to think that these systems have humanlike intent or even self-awareness.</p>
<p>This led some people to wonder whether AI systems can be “owners.” But the U.S. Copyright Office has stated unequivocally that <a href="https://www.copyright.gov/ai/ai_policy_guidance.pdf">only humans can hold copyrights</a>.</p>
<p>So who can claim ownership of images produced by AI? Is it the artists whose images were used to train the systems? The users who type in prompts to create images? Or the people who build the AI systems?</p>
<h2>Infringement or fair use?</h2>
<p>While artists draw obliquely from past works that have educated and inspired them in order to create, generative AI relies on training data to produce outputs. </p>
<p>This training data consists of prior artworks, many of which are protected by copyright law and which have been collected without artists’ knowledge or consent. Using art in this way might violate copyright law even before the AI generates a new work.</p>
<figure class="align-center ">
<img alt="Computer generated image made to look like a painting of a face with wires spilling out of its head surrounded by a field of grass and flowers." src="https://images.theconversation.com/files/532244/original/file-20230615-15-urogfz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/532244/original/file-20230615-15-urogfz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/532244/original/file-20230615-15-urogfz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/532244/original/file-20230615-15-urogfz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/532244/original/file-20230615-15-urogfz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/532244/original/file-20230615-15-urogfz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/532244/original/file-20230615-15-urogfz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Still from ‘All watched over by machines of loving grace’ by Memo Akten, 2021. Created using custom AI software.</span>
<span class="attribution"><span class="source">Memo Akten</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>For Jason Allen to create his award-winning art, Midjourney was trained on <a href="https://www.forbes.com/sites/robsalkowitz/2022/09/16/midjourney-founder-david-holz-on-the-impact-of-ai-on-art-imagination-and-the-creative-economy/?sh=b14a0aa2d2b8">100 million</a> prior works.</p>
<p>Was that a form of infringement? Or was it a new form of “<a href="https://www.copyright.gov/fair-use/">fair use</a>,” a legal doctrine that permits the unlicensed use of protected works if they’re sufficiently transformed into something new? </p>
<p>While AI systems do not contain literal copies of the training data, they do <a href="https://arxiv.org/abs/2212.03860">sometimes manage to recreate works</a> from the training data, complicating this legal analysis. </p>
<p>Will contemporary copyright law favor end users and companies over the artists whose content is in the training data? </p>
<p>To mitigate this concern, some scholars propose new regulations to protect and compensate artists whose work is used for training. These proposals include a right for artists to <a href="https://arxiv.org/pdf/2303.11074.pdf'">opt out of their data’s being used</a> for generative AI or a way to <a href="https://www.uspto.gov/sites/default/files/documents/Jessica-Fjeld_RFC-84-FR-58141.pdf">automatically compensate artists</a> when their work is used to train an AI.</p>
<h2>Muddled ownership</h2>
<p>Training data, however, is only part of the process. Frequently, artists who use generative AI tools go through many rounds of revision to refine their prompts, which suggests a degree of originality.</p>
<p>Answering the question of who should own the outputs requires looking into the contributions of all those involved in the generative AI supply chain.</p>
<p>The legal analysis is easier when an output is different from works in the training data. In this case, whoever prompted the AI to produce the output appears to be the default owner. </p>
<p>However, copyright law requires meaningful creative input – a standard satisfied by clicking the shutter button on a camera. It remains unclear how courts will decide what this means for the use of generative AI. Is composing and refining a prompt enough? </p>
<p>Matters are more complicated when outputs resemble works in the training data. If the resemblance is based only on general style or content, it is unlikely to violate copyright, because style is not copyrightable. </p>
<p>The illustrator Hollie Mengert encountered this issue firsthand when her unique style was mimicked by generative AI engines in a way that did not capture what, in her eyes, <a href="https://waxy.org/2022/11/invasive-diffusion-how-one-unwilling-illustrator-found-herself-turned-into-an-ai-model/">made her work unique</a>. Meanwhile, the singer Grimes embraced the tech, “open-sourcing” her voice and encouraging fans to create songs <a href="https://www.nytimes.com/2023/05/24/arts/music/grimes-ai-songs.html">in her style using generative AI</a>.</p>
<p>If an output contains major elements from a work in the training data, it might infringe on that work’s copyright. Recently, the Supreme Court ruled that Andy Warhol’s drawing of a photograph <a href="https://theconversation.com/warhol-foundation-v-goldsmith-supreme-court-rules-for-income-streams-over-artistic-freedom-205986">was not permitted by fair use</a>. That means that using AI to just change the style of a work – say, from a photo to an illustration – is not enough to claim ownership over the modified output. </p>
<p>While copyright law tends to favor an all-or-nothing approach, scholars at Harvard Law School have proposed new models of <a href="https://clinic.cyber.harvard.edu/files/2020/02/WIPO-Comment-FINAL-2020-02-14.pdf">joint ownership</a> that allow artists to gain some rights in outputs that resemble their works.</p>
<p>In many ways, generative AI is yet another creative tool that allows a new group of people access to image-making, just like cameras, paintbrushes or Adobe Photoshop. But a key difference is this new set of tools relies explicitly on training data, and therefore creative contributions cannot easily be traced back to a single artist. </p>
<p>The ways in which existing laws are interpreted or reformed – and whether generative AI is appropriately treated as the tool it is – will have real consequences for the future of creative expression.</p>
<p></p><hr><p></p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/528404/original/file-20230525-19537-m9iltu.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/528404/original/file-20230525-19537-m9iltu.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/528404/original/file-20230525-19537-m9iltu.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/528404/original/file-20230525-19537-m9iltu.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/528404/original/file-20230525-19537-m9iltu.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/528404/original/file-20230525-19537-m9iltu.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/528404/original/file-20230525-19537-m9iltu.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption"></span>
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</figure>
<p><em>Learn what you need to know about artificial intelligence by <a href="https://memberservices.theconversation.com/newsletters/?nl=ai&source=inline-promo">signing up for our newsletter series of four emails</a> delivered over the course of a week. You can read all our stories on generative AI at <a href="https://theconversation.com/topics/generative-ai-133426">TheConversation.com</a>.</em></p><img src="https://counter.theconversation.com/content/207473/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessica Fjeld is a member of the board of the Global Network Initiative.</span></em></p><p class="fine-print"><em><span>Ziv Epstein received compensation from OpenAI for adversarially testing DALL-E 2 in Spring 2022.</span></em></p><p class="fine-print"><em><span>Robert Mahari does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Intellectual property law wasn’t written with AI in mind, so it isn’t clear who owns the images that emerge from prompts – or if the artists whose work was scraped to train AI models should be paid.Robert Mahari, JD-PhD Student, Massachusetts Institute of Technology (MIT)Jessica Fjeld, Lecturer on Law, Harvard Law SchoolZiv Epstein, PhD Student in Media Arts and Sciences, Massachusetts Institute of Technology (MIT)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2025162023-04-25T20:01:27Z2023-04-25T20:01:27ZIf ChatGPT wrote it, who owns the copyright? It depends on where you live, but in Australia it’s complicated<figure><img src="https://images.theconversation.com/files/520967/original/file-20230414-24-jxr5zk.jpg?ixlib=rb-1.1.0&rect=329%2C285%2C3928%2C2660&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Prathankarnpap/Shutterstock</span></span></figcaption></figure><p><a href="https://openai.com/blog/chatgpt">ChatGPT</a> and other generative AI tools which draw on large language models (LLMs) are a hot topic. Released in November 2022 by OpenAI, ChatGPT is a chatbot – it generates text output refined through user prompts. </p>
<p>What makes it special is just how <a href="https://theconversation.com/we-pitted-chatgpt-against-tools-for-detecting-ai-written-text-and-the-results-are-troubling-199774">sophisticated and impressive that output is</a>. The stratospheric rise of generative AI tools has sparked much discussion over what it might mean for the future of <a href="https://theconversation.com/chatgpt-is-the-push-higher-education-needs-to-rethink-assessment-200314">education</a>, the <a href="https://theconversation.com/ai-could-take-your-job-but-it-can-also-help-you-score-a-new-one-with-these-simple-tips-199883">job market</a>, <a href="https://theconversation.com/has-gpt-4-really-passed-the-startling-threshold-of-human-level-artificial-intelligence-well-it-depends-202856">humanity</a> and <a href="https://theconversation.com/i-used-to-work-at-google-and-now-im-an-ai-researcher-heres-why-slowing-down-ai-development-is-wise-202944">society as a whole</a>. </p>
<p>By now, you’ve likely interacted with a generative AI. But who owns copyright to the output, and how does copyright law apply?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/calls-to-regulate-ai-are-growing-louder-but-how-exactly-do-you-regulate-a-technology-like-this-203050">Calls to regulate AI are growing louder. But how exactly do you regulate a technology like this?</a>
</strong>
</em>
</p>
<hr>
<h2>Text output and the law</h2>
<p>ChatGPT is powered by an LLM – a machine-learning algorithm which processes vast datasets, including text, websites, news articles and books. Through the use of billions of parameters, ChatGPT <a href="https://www.zdnet.com/article/how-does-chatgpt-work/">statistically analyses complex language structures and patterns</a> to produce the output.</p>
<p>Some people might think OpenAI – the company responsible for ChatGPT – would have an authorship right in any output (the generated text), but this is not so. <a href="https://openai.com/policies/terms-of-use">OpenAI’s terms</a> assign the right, title and interest in output to a user. Anyone who uses such AI tools needs to know the copyright implications of generating output. </p>
<p>Putting aside ethical and moral issues regarding <a href="https://www.theguardian.com/australia-news/2023/jan/10/universities-to-return-to-pen-and-paper-exams-after-students-caught-using-ai-to-write-essays">academic integrity</a>, there are many copyright implications surrounding LLMs.</p>
<p>For example, when you use ChatGPT to produce output, under Australian law, would you own the copyright of that output? Can AI such as ChatGPT be considered a legal joint author of any LLM output? Do LLMs infringe others’ copyright through the use of data used to train these models?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-the-lensa-ai-app-technically-isnt-stealing-artists-work-but-it-will-majorly-shake-up-the-art-world-196480">No, the Lensa AI app technically isn’t stealing artists' work – but it will majorly shake up the art world</a>
</strong>
</em>
</p>
<hr>
<h2>Do you own your ChatGPT output?</h2>
<p>Under Australian law, because the output is computer-generated code/text, it may be classified as a literary work for copyright purposes.</p>
<p>However, for you to own copyright in ChatGPT output as a literary work, requirements known as “subsistence criteria” must also be satisfied. When considering AI processes in light of the subsistence criteria, the analysis becomes challenging.</p>
<p>The most contentious subsistence criteria in the context of LLMs are those of authorship and originality. Seminal Australian cases dictate a literary work must originate through an author’s “<a href="https://www.mondaq.com/australia/intellectual-property/290668/can-a-database-be-protected-by-copyright">independent intellectual effort</a>”.</p>
<p>To determine potential copyright in ChatGPT output, a court would examine the underlying processes of creation in detail. Hypothetically, when considering how LLMs learn, although people prompt AI, a court would likely deem this prompting to be a separate, precursory act to the actual creation of the output. The court would likely find the output is produced by the AI. This would not meet the criteria for authorship, because the output was authored by an AI instead of a human.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot of a user interacting with ChatGPT and asking to write a poem in the style of Robert Burns" src="https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=698&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=698&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=698&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=877&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=877&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=877&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">ChatGPT 3.5 claims that a machine-generated work is not subject to copyright protection.</span>
<span class="attribution"><span class="source">The Conversation</span></span>
</figcaption>
</figure>
<p>Also, the output is unlikely to adequately express a person’s “independent intellectual effort” (another subsistence criterion) because AI produces it. Such a finding would be similar to the ruling in a seminal case about a <a href="https://www.claytonutz.com/knowledge/2010/december/computer-generated-compilations-not-protected-by-copyright-says-full-federal-court">computer-generated compilation</a>. There, a valuable Telstra database was not protected by copyright due to lack of establishment of human authorship and originality.</p>
<p>For these reasons, it’s likely copyright would not come into effect on ChatGPT output as a literary work produced in Australia.</p>
<p>Meanwhile, under UK law, the result could be different. This is because UK law makes provision for a person <a href="https://www.legislation.gov.uk/ukpga/1988/48/section/9">who makes the arrangements for a computer-generated literary work</a> to be considered an author for copyright purposes. </p>
<h2>Can you be a joint author with ChatGPT?</h2>
<p>In recent years, human authorship has been challenged in court a few times overseas, including the <a href="https://www.wipo.int/wipo_magazine/en/2018/01/article_0007.html">famous monkey selfie case in the United States</a>.</p>
<p>In Australia, a work must originate with a human author, so AI doesn’t qualify for authorship. However, if AI were ever to achieve something akin <a href="https://theconversation.com/a-google-software-engineer-believes-an-ai-has-become-sentient-if-hes-right-how-would-we-know-185024">to its own version of sentience</a>, AI personhood debates will unleash many issues, including whether AI should be considered an author for copyright purposes.</p>
<p>Assuming one day AI can be considered an author, if a court was assessing joint authorship between a person and AI, each author’s contribution would be examined in detail. A “<a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html">work of joint authorship</a>” states that each author’s contribution must not be separate from the other. It’s likely that a person’s prompting of the AI would be deemed separate to what the AI system then does, so joint authorship would probably fail.</p>
<h2>Do LLMs infringe on copyright?</h2>
<p>A final issue is whether LLMs infringe others’ copyright through accessing data in training. Such data may be copyright-protected material. This requires an examination of the LLM training and output. Is a substantial portion of copyright-protected material reproduced? Or, is mass data synthesised without substantial reproduction?</p>
<p>If it is the earlier option, infringement may have occurred; if it’s the latter, there would be no infringement under current law. But even if output reproduces a portion of copyright-protected material, this might fall under a copyright exception. In Australia, this is called fair dealing.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">Explainer: what is 'fair dealing' and when can you copy without permission?</a>
</strong>
</em>
</p>
<hr>
<p>Fair dealing permits particular purposes, such as research and study. In the US, similar fair use exceptions are broader in scope, so LLM output may be caught by this. Also, the European Union has a <a href="https://academic.oup.com/grurint/article/71/8/685/6650009">copyright exception for text and data mining</a> which permits the use of data to train LLMs unless expressly prohibited by a rights-holder. </p>
<p>Seeing as AI is here to stay, a final point to ponder is whether amendments should be made to the Australian <a href="https://www.legislation.gov.au/Details/C2022C00192">Copyright Act</a> to allow an AI user to be considered an author for copyright purposes. Should we amend the law by following in the United Kingdom’s footsteps, or implement a text and data mining exception similar to that in the EU?</p>
<p>As AI initiatives continue advancing, Australian copyright law will likely grapple with these issues in the coming years.</p><img src="https://counter.theconversation.com/content/202516/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wellett Potter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Do you own a literary work that ChatGPT helped you write? Does OpenAI? The legal questions are thorny, and the answers unclear.Wellett Potter, Lecturer in Law, University of New EnglandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2005972023-04-17T10:57:51Z2023-04-17T10:57:51ZChatGPT: what the law says about who owns the copyright of AI-generated content<figure><img src="https://images.theconversation.com/files/517857/original/file-20230328-431-ko5ilu.jpg?ixlib=rb-1.1.0&rect=169%2C24%2C2311%2C1470&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">ChatGPT has generated enormous interest, but is some of its content protected under copyright law?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/3d-rendering-artificial-intelligence-ai-research-1721499874">Shutterstock / Blue Planet Studio</a></span></figcaption></figure><p>The AI chatbot ChatGPT produces content that can appear to have been created by a human. There are many proposed uses for the technology, but its impressive capabilities raise important questions about ownership of the content.</p>
<p>UK legislation has a definition for computer-generated works. Under the <a href="https://www.legislation.gov.uk/ukpga/1988/48/section/178">Copyright, Designs and Patents Act 1988</a> they are “generated by computer in circumstances such that there is no human author of the work”. The law suggests content generated by an artificial intelligence (AI) can be protected by copyright. However, the original sources of answers generated by AI chatbots can be difficult to trace – and they might include copyrighted works.</p>
<p>The first question is whether ChatGPT should be allowed to use original content generated by third parties to generate its responses. The second is whether only humans can be credited as the authors of AI-generated content, or whether the AI itself can be regarded as an author – particularly when that output is creative. </p>
<p>Let’s deal with question one. The technology underpinning ChatGPT is known as a Large Language Model (LLM). In order to improve at what it does, it is exposed to large data-sets, including vast numbers of websites and books. </p>
<p>At the moment, the UK allows AI developers to pursue text and data mining (TDM), but only for non-commercial purposes. OpenAI’s terms of use assign to the users “all its right, title and interest in the output”.</p>
<p>But the company says it’s up to users to ensure the way they use that content does not violate any laws. The terms and conditions are also subject to change, so do not carry the stability and force of a legal right such as copyright.</p>
<p>The only solution will be to clarify laws and policies. Otherwise, every organisation will have to take legal action individually, aiming to show that they own the works used by an AI. Furthermore, if governments do not take an action then we are approaching a situation where all copyrighted materials will be used by others without the original author’s consent. </p>
<h2>Question of ownership</h2>
<p>Now to question two: who can claim copyright to AI-generated content. In the absence of a claim by the owner of original content used to generate an answer, it’s possible that copyright to the output from an chatbot could lie with individual users or the companies that developed the AI. </p>
<p>Copyright law is based around a general principle that only content created by human beings can be protected. The algorithms underpinning ChatGPT were developed at OpenAI, so the company would appear to hold copyright protection over those. But this might not extend to chatbot responses.</p>
<figure class="align-center ">
<img alt="Man thinking" src="https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&rect=4%2C2%2C889%2C689&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=467&fit=crop&dpr=1 600w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=467&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=467&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=586&fit=crop&dpr=1 754w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=586&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=586&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">One day, AIs could own the copyright to what they produce, but we’re not there yet.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/lines-connected-thinkers-symbolizing-meaning-artificial-553521775">Shutterstock / Liu zishan</a></span>
</figcaption>
</figure>
<p>There is another option regarding the ownership of AI-generated content: the AI itself. UK law would currently prohibit an AI from owning copyright (or even recognising that an AI created it), as it is not a human and therefore cannot be treated as an author or owner under the <a href="https://www.legislation.gov.uk/ukpga/1988/48/contents">Copyright, Designs and Patents Act</a>. It is also unlikely that this position is going to change anytime soon, given the UK government’s response to the AI consultation. </p>
<p>Where a literary, dramatic, musical or artistic work is made by an employee in the course of their employment, their employer is the <a href="https://www.gov.uk/guidance/ownership-of-copyright-works">first owner of any copyright in the work</a> – subject to any agreement to the contrary.</p>
<p>For now, policymakers are sticking to human creativity as the prism through which copyright is granted. However, as AI develops and is able to do more, policymakers might consider granting legal capacity to AIs themselves. This would represent a fundamental shift in how copyright law operates and a reimagining of who (or what) can be classed as an author and owner of copyright.</p>
<p>Such a change would have implications for business as firms integrate AI into their products and services. <a href="https://blogs.microsoft.com/blog/2023/03/16/introducing-microsoft-365-copilot-your-copilot-for-work/">Microsoft recently announced</a> that it will be embedding its product Copilot – based on ChatGPT – into the company’s software, such as Word, PowerPoint and Excel. Copilot can help users with written communication and summarise large volumes of data. </p>
<p>More developments like this are sure to follow, and early adopter firms have a chance to capitalise on the current situation, by using AI to increase the efficiency of their operations. Firms can often gain an advantage when they are first to introduce a product or service to a market – a situation called the “first-mover advantage”.</p>
<h2>Future shifts</h2>
<p>The UK government recently carried out a <a href="https://www.gov.uk/government/consultations/artificial-intelligence-and-ip-copyright-and-patents">consultation on AI and copyright</a>. Two conflicting views emerged. The tech sector believes the copyright to AI-generated content should belong to users, whereas the creative sector wants this content to be excluded from ownership completely. The UK government has not acted on the findings and instead recommended further consultation between the interested parties.</p>
<p>If copyright law shifts away from its focus on human agency in future, one could imagine a scenario where an AI is classed as the author and the developers of that AI as the owners of the output. This could create a situation where a handful of powerful AI companies wield colossal influence.</p>
<p>They could end up owning hundreds of thousands of copyrighted materials – songs, published materials, visuals and other digital assets. This could arguably lead to a dystopian situation where the majority of newly-created works are generated by AI and owned by businesses. </p>
<p>It seems logical that such knowledge should remain in the public domain. Perhaps the solution is that each person or company declares their contribution when they use AI – or that their contribution is automatically calculated by software. Accordingly, they get credit or financial benefit based on the amount of work they contributed. </p>
<p>AI content that is itself based on copyrighted materials remains problematic. An inability to rely on copyrighted materials could undermine the ability of the AI system to answer prompts from end users. But if the content is to be based on protected works, we would need to accept a new era of open innovation where the intellectual property rights do not matter.</p><img src="https://counter.theconversation.com/content/200597/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We may know what ChatGPT can do, but questions remain over who owns the copyright.Sercan Ozcan, University of PortsmouthJoe Sekhon, Senior Lecturer in Intellectual Property Law, University of PortsmouthOleksandra Ozcan, Lecturer, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1989362023-02-01T15:41:03Z2023-02-01T15:41:03ZJustin Bieber sells his back catalogue – an expert explains why artists give up rights to their music<figure><img src="https://images.theconversation.com/files/507382/original/file-20230131-11270-wacbvj.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4128%2C2726&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justin Bieber performing on stage.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/justin-bieber-performs-pittsburgh-wednesday-july-486723634">Jack Fordyce</a></span></figcaption></figure><p><a href="https://theconversation.com/pop-with-purpose-in-defence-of-justin-bieber-73860">Justin Bieber</a> is the latest artist in a growing list of musicians who have sold the rights to their music. </p>
<p>This move is typically made by more seasoned artists such as <a href="https://www.nytimes.com/2021/12/15/arts/music/bruce-springsteen-sells-music-catalog.html">Bruce Springsteen</a>, who reportedly received US$500m (£406m) for the sale of his life’s work in 2021, or <a href="https://www.rollingstone.com/pro/news/stevie-nicks-fleetwood-mac-catalog-primary-wave-1098850/">Stevie Nicks</a> who sold a share of her publishing for US$100m in 2020.</p>
<p>Bieber, at the age of 28, has <a href="https://www.nytimes.com/2021/12/15/arts/music/bruce-springsteen-sells-music-catalog.html">sold his rights</a> to all the music he released before 2022 for a reported US$200m. Merck Mercuriadis, founder and chief executive officer of Hipgnosis Song Management, who bought the rights, <a href="https://www.wsj.com/articles/justin-bieber-sells-music-rights-to-blackstone-backed-fund-hipgnosis-11674585814">said</a>: “This acquisition ranks among the biggest deals ever made for an artist under the age of 70.”</p>
<h2>What does it mean when an artist sells rights to their songs?</h2>
<p>Songs are protected by something called <a href="https://theconversation.com/even-famous-musicians-struggle-to-make-a-living-from-streaming-heres-how-to-change-that-151969">copyright</a>. This is a legal right that the creators can sell or licence in order to make money from their music.</p>
<p>Artists with deals sign over some, or most, of these rights to publishers and record labels. In fact, songs have more than one right attached to them. </p>
<p>There is a right for the composition which can be owned by a publisher, one for the recording which can be owned by the record label and there are also rights in the performance of a song. All this means is that when a song is bought, or performed (e.g. played on the radio, in a film or on TV) the money is divided between all those that have a stake in the music rights.</p>
<p>Justin Bieber has a record deal with Universal Music Group and a publishing deal with Universal Music Publishing Group (UMPG). So, he owned a percentage of his rights. </p>
<p>He shares these rights with his publisher, which owns a percentage of his composition copyright and his record label, which owns a share of his rights attached to the recording of the songs, sometimes referred to as the master recordings.</p>
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Read more:
<a href="https://theconversation.com/even-famous-musicians-struggle-to-make-a-living-from-streaming-heres-how-to-change-that-151969">Even famous musicians struggle to make a living from streaming – here’s how to change that</a>
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<p>Bieber sold 100% of his share of his publishing copyright and performance rights, master recordings and neighbouring rights (the performance within the recording) for his entire back catalogue – which includes over 290 tracks – to investment company <a href="https://www.hipgnosissongs.com/">Hipgnosis Songs Capital</a>. Hipgnosis buys catalogues of music and then manages the rights to make an income from the royalty payments. </p>
<p>This means that when his songs are bought or performed, the share of the income that would have previously been a royalty payment to Bieber, now goes to Hipgnosis. The company is hoping that over time these royalties will exceed the upfront payment it made to Bieber and so it will profit from this investment.</p>
<p>Copyright in the musical composition lasts for 70 years after the death of the creator, so the owner of the copyright can keep receiving royalties for a long time. However, the songs need to be used in order to make an income, so it is a risk.</p>
<p>When artists tour, they can make money from ticket and merchandise sales, but they also receive a royalty when their music is performed. This sounds great, but <a href="https://www.theguardian.com/music/2022/oct/18/risks-rising-costs-and-relentless-demands-why-so-many-musicians-are-cancelling-their-tours">the cost of touring is huge</a> and continues to increase, so it doesn’t always turn a profit. </p>
<p>Bieber doesn’t own his back catalogue anymore, so he won’t receive that royalty when he performs those songs. This is unlikely to affect his motivations to tour because it forms a smaller part of the income.</p>
<h2>Why artists are selling their music rights</h2>
<p>So why would Bieber and other artists want to sell their rights, when they could keep this income for themselves? </p>
<p>For artists who are thinking about retirement, it’s a way to enjoy the fruits of their labour and create a pension for themselves. It could be that, because of the pandemic, artists have sold their catalogue to compensate for loss of revenue while venues and other income streams were lost.</p>
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<p>Copyright is an asset that can be left in a will, so for the 70 years that copyright survives the creator, their royalties can go to their heirs. However, copyright must be managed and so it may be more attractive for some to cash-out and leave the administration to the purchaser.</p>
<p>Bieber can still make royalty income on music that he creates from January 2022 onwards, so perhaps he has plans to release new music and in the meantime wanted to increase his current income. The singer had to take time off and postpone tour dates because of difficulties with Ramsay Hunt syndrome, a rare virus that in his case caused facial paralysis, which may have contributed to his decision.</p>
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Read more:
<a href="https://theconversation.com/justin-bieber-what-is-ramsay-hunt-syndrome-the-condition-affecting-the-singer-184935">Justin Bieber: what is Ramsay Hunt syndrome, the condition affecting the singer?</a>
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<h2>Is there a risk when artists sell their music rights?</h2>
<p>The risk for Bieber is that, in the long term, he could have made more money from keeping his rights and receiving royalty payments than from the lump-sum payment. To make any more money from music, Bieber will now need to release new songs.</p>
<p>In general, it is essential for artists to retain their rights so that they can continue to benefit from their music over time. There has been <a href="https://ivorsacademy.com/campaign/composers-against-buyouts/">push back from the music industry</a> on similar deals where catalogues are being collated by investment businesses buying out creator copyright.</p>
<p>while it can seem very attractive to receive upfront cash, playing the long game can often be more beneficial for artists.</p><img src="https://counter.theconversation.com/content/198936/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hayleigh Bosher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Justin Bieber will no longer own the rights to music he created before 2022 – a legal expert explains why he made the decision, and why he may go on to regret it.Hayleigh Bosher, Senior Lecturer in Intellectual Property Law, Brunel University LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1977712023-01-23T18:54:12Z2023-01-23T18:54:12ZMore means less: Extended copyright benefits the corporate few, not the public<figure><img src="https://images.theconversation.com/files/504764/original/file-20230116-14-bardrl.jpg?ixlib=rb-1.1.0&rect=54%2C20%2C2737%2C1983&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Canada's extension of copyright to 70 years after an author's death puts corporate profits ahead of the public interest.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/christopherdombres/5814893360/in/photostream/">(CHRISTOPHER DOMBRES/flickr)</a></span></figcaption></figure><p>Who benefits from Canada’s recent extension of copyright? Dead authors? Students? Marginalized writers? If you answered no to all of these, you’d be correct. </p>
<p>At the beginning of January, <a href="https://www.cbc.ca/news/entertainment/canada-public-domain-pause-1.6706498">Canada extended its copyright period</a> by an additional 20 years after an author’s death. Previously, copyright lasted up to 50 years after an author’s death. The extension means that works will not enter the public domain in Canada for 70 years after a creator’s death. </p>
<p>The <a href="https://canlii.ca/t/jqgw0">Supreme Court of Canada</a> has made it clear that “Copyright law does not exist solely for the benefit of authors,” but is meant to balance the rights of users and authors. </p>
<p>The <a href="https://www.canlii.org/en/ca/scc/doc/2021/2021scc32/2021scc32.html?resultIndex=1">Supreme Court</a> has also stated that while copyright should ensure a just reward as incentive for authors, “increasing public access to and dissemination of artistic and intellectual works, which enrich society and often provide users with the tools and inspiration to generate works of their own, is a primary goal of copyright.”</p>
<p>The latest copyright extension is a result of the trade negotiations that created the <a href="https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cusma-aceum/index.aspx?lang=eng">Canada-United States-Mexico Agreement (CUSMA)</a> — the successor to the <a href="https://www.canada.ca/en/treasury-board-secretariat/services/policy-notice/contracting-policy-notice-2020-2-replacement-north-american-free-trade-agreement-nafta.html">North American Free Trade Agreement (NAFTA)</a>.</p>
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<a href="https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three men wearing suits sit at a table. Two of them hold up booklets with signatures. Behind them are flags of mexico, canada and the U.S." src="https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=333&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=333&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=333&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=418&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=418&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=418&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Canadian Prime Minister Justin Trudeau at a signing ceremony for the CUSMA agreement with the then-presidents of the U.S. and Mexico in Buenos Aires, Argentina in November 2018.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Sean Kilpatrick</span></span>
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<p>Like any monetary negotiation, these <a href="https://www.imf.org/en/Publications/fandd/issues/Series/Back-to-Basics/Trade">trade agreements</a> include give and take. Canada gets greater access to U.S. markets, for example, while the U.S. gets Canada to adopt the same copyright duration that they have.</p>
<p>Copyright material is increasingly valuable to Canada. In 2019, copyright-based industries contributed about $95.6 billion to Canada’s economy and made up around <a href="https://www.canada.ca/en/canadian-heritage/corporate/transparency/open-government/economic-impact-copyright-based-industries.html">4.9 per cent of GDP</a>. That means the country needs a more fine-tuned approach to trade deals. And a better understanding of how to best foster our creative industries.</p>
<h2>Who benefits from longer copyrights?</h2>
<p>Most authors need to license their work for it to reach a wide audience. The <a href="https://laws-lois.justice.gc.ca/eng/acts/c-42/"><em>Copyright Act</em></a> grants first ownership to the author who can license it. The act also states that the economic rights belong to the owner of the copyright. That is most often a media company, <a href="https://cb-cda.gc.ca/en/copyright-information/collective-societies">collective society</a>, publisher or other corporate entity. </p>
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<a href="https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman with grey hair carries a book." src="https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=784&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=784&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=784&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=985&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=985&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=985&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The extension of copyrights means Canadians will have to wait much longer for works like Margaret Atwood’s Handmaid’s Tale to enter the public domain.</span>
<span class="attribution"><span class="source">(AP Photo/Alastair Grant)</span></span>
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<p>If copyright is a way to incentivize and reward creativity, that incentive should manifest while the author is still alive. The idea of authors benefiting during their lifetime was brought to Parliament’s Copyright Review Committee in 2018 by musician <a href="https://www.michaelgeist.ca/2018/12/bryan-adamscopyrightwarning/">Bryan Adams</a>. </p>
<p>In Canada, copyrights are usually turned over to an author’s heirs <a href="https://laws-lois.justice.gc.ca/eng/acts/C-42/section-14.html">25 years after their death</a>. This right is one of the ways the <em>Copyright Act</em> seeks to maintain a balance between having an economic incentive to be creative and making works available to others for education and inspiration. </p>
<p>Adams suggested that this would do a lot more good for authors if it were to occur 25 years after the copyright was initially granted. That would mean an author could gain greater benefits during their lifetime. </p>
<p>If further proof was needed regarding who really benefits from this extension, an article from <a href="https://ip.fasken.com/who-really-benefits-from-canadas-impending-copyright-term-extension/">Jean-Philippe Mikus of Fasken law firm</a> makes it clear. </p>
<p>Mikus states that the term extension is a “positive development” for copyright owners. But he also highlights that an author’s heirs can simply have the works handed to them. He goes on to suggest that Canadian law needs to copy the <a href="https://edwardslaw.ca/blog/work-made-for-hire-explained/">American work-for-hire model</a>, essentially ensuring that authors have no claim or ownership in their own creations.</p>
<h2>The public domain</h2>
<p>Another important aspect of copyright is its public interest goal, and works entering the public domain are essential to fulfill that goal. <a href="https://www.ifla.org/publications/the-public-domain-why-wipo-should-care-2007/#:%7E:text=The%20public%20domain%20is%20part,commercial%20and%20non%2Dcommercial%20purposes">The International Federation of Library Associations and Institutions</a> clearly outlines the importance of works entering the public domain:</p>
<blockquote>
<p>“The public domain is part of the common cultural and intellectual heritage of humanity and is the major source of inspiration, imagination and discovery for creators. Works in the public domain are not subject to any restrictions and may be freely used without permission for commercial and non-commercial purposes. It is important for access to knowledge and must be accessible for the benefit of creators, inventors, universities and research centres.”</p>
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<figcaption><span class="caption">Large corporations like Disney have lobbied the U.S. Congress to extend copyright protections.</span></figcaption>
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<p>Law professor <a href="https://www.michaelgeist.ca/2022/04/the-harm-from-budget-2022s-hidden-copyright-term-extension-part-one-entry-to-public-domain-of-canadian-authors-lost-for-a-generation/">Michael Geist</a> points out that an entire generation will lose out on works not entering the public domain for an additional 20 years. </p>
<p>The extension of copyright has been described as essentially <a href="https://www.techdirt.com/2022/11/29/canada-steals-cultural-works-from-the-public-by-extending-copyright-terms/">stealing cultural works from the public</a>. Canadian authors whose works fall under the extended copyright period include Marian Engel, Adele Wiseman, Hugh MacLennan, Margaret Laurence, bpNichol and Gabrielle Roy, to name just a few.</p>
<p>The public domain allows publishers to publish works that may have been languishing elsewhere because they weren’t seen as being economically viable. In addition, with fewer royalties to pay for the work, publishers are able to add pedagogical material to the text. </p>
<p>It is unlikely that any government will pass legislation to roll back the duration of copyright, but that doesn’t mean there is nothing that can be done. </p>
<p><a href="https://www.michaelgeist.ca/2022/04/the-canadian-government-makes-its-choice-implementation-of-copyright-term-extension-without-mitigating-against-the-harms/">Geist argues</a> for a registration system for the new extension. The author (owner) of the copyright would have to proactively register the copyright to retain it for the additional 20 years. This would allow works to still enter the public domain, particularly works that might not be being published because they aren’t seen as lucrative enough. </p>
<p>Under the <em>Copyright Act</em>, “<a href="https://laws-lois.justice.gc.ca/eng/acts/c-42/page-6.html#h-103270">Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright</a>.” But expansion of the fair dealing exception to include “such as” before the listed purposes could also help encourage new creations and bolster educational goals. </p>
<p>Adding “such as,” similar to <a href="https://www.copyright.gov/help/faq/faq-fairuse.html">fair use in the U.S.</a>, makes the list illustrative and allows for wider interpretation of what is an allowable use. This would be in line with <a href="https://www.ourcommons.ca/Content/Committee/421/INDU/Reports/RP10537003/indurp16/indurp16-e.pdf">recommendation 18 of the government’s Statutory Review of the Copyright Act</a>. </p>
<p>Corporate copyright owners are ultimately most concerned about their bottom line. Better protections for users’ rights are needed to ensure the public retains access to Canadian culture and heritage so Canadian creativity and innovation can continue to thrive.</p><img src="https://counter.theconversation.com/content/197771/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Macklem is a PhD Candidate in Law at the University of Western Ontario. She currently teaches at Western, King's University College and Brescia University College. She is cited in York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 and The Statutory Review of the Copyright Act, both of which are cited in this article.</span></em></p>Canada’s extension of copyright might be good for corporations that hold copyrights, but it’s bad news for creators and the public.Lisa Macklem, PhD Candidate, Law, Western UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1940692022-11-14T19:00:23Z2022-11-14T19:00:23ZChokepoint Capitalism: why we’ll all lose unless we stop Amazon, Spotify and other platforms squeezing cash from creators<figure><img src="https://images.theconversation.com/files/494947/original/file-20221113-18-5ebjcc.png?ixlib=rb-1.1.0&rect=29%2C245%2C3580%2C1928&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In 2020, the independent authors and small publishers whose audiobooks reach their readers via Audible’s <a href="https://www.acx.com/">ACX platform</a> smelled a rat.</p>
<p>Audiobooks were booming, but sales of their own books – produced at great expense and well-reviewed – were plummeting. </p>
<p>Some of their royalty statements reported <em>negative</em> sales, as readers returned more books than they bought. This was hard to make sense of, because Audible only reported net sales, refusing to reveal the sales and refunds that made them up. </p>
<p>Perth-based writer <a href="https://www.susanmaywriter.net/single-post/audiblegate-the-incredible-story-of-missing-sales">Susan May</a> wondered whether those returns might be the reason for her dwindling net sales. She pressed Audible to tell her how many of her sales were being negated by returns, but the company stonewalled. </p>
<p>Then, in October 2020, a glitch caused three weeks of returns data to be reported in a single day, and authors discovered that hundreds (and even thousands) of their sales had been wiped out by returns. </p>
<p>Suddenly, the scam came into focus: the Amazon-owned Audible had been offering an extraordinarily generous returns policy, encouraging subscribers to return books they’d had on their devices for months, even if they had listened to them the whole way through, even if they had loved them – no questions asked. </p>
<p>Encouraged by the policy, some subscribers had been treating the service like a library – returning books for fresh credits they could swap for new ones. Few would have realised that Audible clawed back the royalties from the book’s authors every time a book was returned.</p>
<h2>Good for Amazon, bad for authors</h2>
<p>It was good for Amazon – it helped Audible gain and hold onto subscribers – but bad for the authors and the performers who created the audiobooks, who barely got paid.</p>
<p>Understanding Amazon’s motivation helps us understand a phenomenon we call <a href="https://scribepublications.com.au/books-authors/books/chokepoint-capitalism-9781761380075">chokepoint capitalism</a>, a modern plague on creative industries and many other industries too.</p>
<p>Orthodox economics tells us not to worry about corporations dominating markets because that will attract competitors, who will put things back in balance. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/five-ways-to-boost-australian-writers-earnings-110694">Five ways to boost Australian writers’ earnings</a>
</strong>
</em>
</p>
<hr>
<p>But many of today’s big corporations and billionaire investors have perfected ways to make those supposedly-temporary advantages permanent. </p>
<p>Warren Buffett salivates over businesses with “<a href="https://markets.businessinsider.com/news/stocks/warren-buffett-moat-etf-simple-explanation-for-how-he-invests-and-its-easy-to-replicate-2017-10-1005613232">wide, sustainable moats</a>”. Peter Thiel scoffs that “<a href="https://www.wsj.com/articles/peter-thiel-competition-is-for-losers-1410535536">competition is for losers</a>”. Business schools teach students ways to lock in customers and suppliers and eliminate competition, so they can shake down the people who make what they supply and buy what they sell.</p>
<h2>Locking in customers and creators</h2>
<p>Amazon is the poster child for chokepoint capitalism. It boasts of its “<a href="https://feedvisor.com/resources/amazon-trends/amazon-flywheel-explained/">flywheel</a>” – a self-described “<a href="https://fourweekmba.com/amazon-flywheel/">virtuous cycle</a>” where its lower cost leads to lower prices and a better customer experience, which leads to more traffic, which leads to more sellers, and a better selection – which further propels the flywheel. </p>
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<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=379&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=379&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=379&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=477&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=477&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=477&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>But the way the cycle works isn’t virtuous – it’s vicious and anti-competitive. </p>
<p>Amazon openly admits to doing everything it can to lock in its customers. That’s why Audible encourages book returns: its generous offer only applies to ongoing subscribers. Audible wants the money from monthly subscribers and wants the fact that they are subscribed to prevent them from shopping elsewhere. </p>
<p>Paying the people who actually made the product it sells a fair share of earnings isn’t Amazon’s priority. Because Amazon founder Jeff Bezos’ famous maxim is “<a href="https://www.marketplacepulse.com/articles/the-cost-of-your-margin-is-my-opportunity">your margin is my opportunity</a>”, the executive who figured out how to make authors foot the bill for retaining subscribers probably got a bonus.</p>
<p>Another way Audible locks customers in is by ensuring the books it sells are protected by <a href="https://www.fortinet.com/resources/cyberglossary/digital-rights-management-drm">digital rights management</a> (DRM) which means they are encrypted, and can only be read by software with the decryption key.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-us-government-is-trying-to-stop-the-merger-of-two-of-the-worlds-biggest-publishers-but-will-it-help-authors-188364">The US government is trying to stop the merger of two of the world's biggest publishers – but will it help authors?</a>
</strong>
</em>
</p>
<hr>
<p>Amazon claims DRM stops listeners from stealing from creators by pirating their books. But tools to strip away those locks are freely available online, and it’s easy for readers who can’t or won’t pay for books to find illegal versions. </p>
<p>While DRM doesn’t prevent infringement, it <em>does</em> prevent competition. </p>
<p>Startups that want to challenge Audible’s dominance – including those that would pay fairly – have to persuade potential customers to give up their Audible titles or to inconveniently maintain separate libraries. </p>
<p>In this way, laws that were intended to protect against infringement of copyright have become tools to protect against infringement of corporate dominance. </p>
<p>Once customers are locked in, suppliers (authors and publishers) are locked in too. It’s incredibly difficult to reach audiobook buyers unless you’re on Audible. When the suppliers are locked in, they can be shaken down for an ever-greater share of what the buyers hand over.</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=377&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=377&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=377&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=474&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=474&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=474&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<hr>
<h2>How a few big buyers can control whole markets</h2>
<p>The problem isn’t with middlemen as such: book shops, record labels, book and music publishers, agents and myriad others provide valuable services that help keep creative wheels turning. </p>
<p>The problem arises when these middlemen grow powerful enough to bend markets into hourglass shapes, with audiences at one end, masses of creators at the other, and themselves operating as a chokepoint in the middle. </p>
<p>Since everyone has to go through them, they’re able to control the terms on which creative goods and services are exchanged - and extract more than their fair share of value.</p>
<p>The corporations who create these chokepoints are trying to “monopsonise” their markets. “Monopsony” isn’t a pretty word, but it’s one we are going to have to get familiar with to understand why so many of us are feeling squeezed. </p>
<p><a href="https://www.wallstreetmojo.com/monopoly">Monopoly</a> (or near-monopoly) is where there is only one big seller, leaving buyers with few other places to turn. <a href="https://www.wallstreetmojo.com/monopsony/">Monopsony</a> is where there is only one big buyer, leaving sellers with few other places to turn.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/theres-an-obvious-reason-wages-arent-growing-but-you-wont-hear-it-from-treasury-or-the-reserve-bank-122041">There's an obvious reason wages aren't growing, but you won't hear it from Treasury or the Reserve Bank</a>
</strong>
</em>
</p>
<hr>
<p>In our book, we quote William Deresiewicz, a former professor of English at Yale University, who points out in his book <a href="https://www.chicagoreview.org/william-deresiewicz-the-death-of-the-artist/">The Death of the Artist</a> that “if you can only sell your product to a single entity, it’s not your customer; it’s your boss”.</p>
<p>Increasingly, it is how the creative industries are structured. There’s Audible for audiobooks, Amazon for physical and digital versions, YouTube for video, Google and Facebook for online news advertising, the <a href="https://www.liveabout.com/big-three-record-labels-2460743">Big Three record labels</a> (who own the big three music publishers) for recorded music, <a href="https://pluralistic.net/2022/09/12/streaming-doesnt-pay/">Spotify</a> for streaming, Live Nation for live music and ticketing – and that’s just the start. </p>
<p>But as corporate concentration increases across the board, monopsony is becoming a problem for the rest of us. For a glimpse into what happens to labour markets when buyers become too powerful, just think about how monopsonistic supermarkets bully food manufacturers and farmers.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=966&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=966&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=966&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1214&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1214&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1214&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><a class="source" href="https://scribepublications.com.au/books-authors/books/chokepoint-capitalism-9781761380075">Scribe Publications</a></span>
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<h2>A fairer deal for consumers and creators</h2>
<p>The good news is that we don’t have to put up with it.</p>
<p><a href="https://scribepublications.com.au/books-authors/books/chokepoint-capitalism-9781761380075">Chokepoint Capitalism</a> isn’t one of those “Chapter 11 books” – ten chapters about how terrible everything is, plus a conclusion with some vague suggestions about what can be done. </p>
<p>The whole second half is devoted to detailed proposals for widening these chokepoints out – such as transparency rights, among others. </p>
<p>Audible’s sly trick only finally came to light because of the glitch that let authors see the scope of returns. </p>
<p>That glitch enabled writers, led by Susan May, to organise a campaign that eventually forced Audible to reform some of its more egregious practices. But we need more light in dark corners. </p>
<p>And we need reforms to contract law to level the playing field in negotiations, interoperability rights to prevent lock-in to platforms, copyrights being better secured to creators rather than publishers, and minimum wages for creative work. </p>
<p>These and the other things we suggest would do much to empower artists and get them paid. And they would provide inspiration for the increasing rest of us who are supplying our goods or our labour to increasingly powerful corporations that can’t seem to keep their hands out of our pockets.</p>
<hr>
<p><em>Chokepoint Capitalism: how big tech and big content captured creative labour markets, and how we’ll win them back is published on <a href="https://scribepublications.com.au/books-authors/books/chokepoint-capitalism-9781761380075">Tuesday November 15</a> by Scribe.</em></p><img src="https://counter.theconversation.com/content/194069/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Giblin receives funding from the Australian Research Council and state and territory libraries for the Author's Interest Project (authorsinterest.org), the eLending Project (elendingproject.org) and Untapped: the Australian Literary Heritage Project (untapped.org.au). She is a Fellow of the CREATe research centre at the University of Glasgow, and a member of the Author's Alliance and the Australian Digital Alliance. She has occasionally and intermittently used Audible's service since its inception (though has not been a subscriber for a very long time),buys goods and services from Amazon when she really has to, subscribes to Spotify (where she sometimes listens to music controlled by the Big Three record labels, and published by their Big Three music publisher subsidiaries), and sometimes watches videos on YouTube.</span></em></p><p class="fine-print"><em><span>Cory Doctorow is a consultant to the Electronic Frontier Foundation. He co-founded the UK Open Rights Group. He is a visiting professor of practice at the University of North Carolina's School of Library and Information Science. He is a dues-paying member of the Free Software Foundation and FSF Europe. His books and audiobooks are published by Random House, Macmillan, Beacon Press, McSweeney's, HarperCollins, Hachette, and many other publishers. These are for sale on Amazon, Excerpts of his work are for sale on Audible. He runs a personal ebook store (craphound.com/shop) that compete with Amazon and Audible for ebook and audiobook sales. One of his books was favorably reviewed and endorsed by Jeff Bezos.</span></em></p>Rebecca Giblin and Cory Doctorow’s new book reveals the tricks behind ‘Chokepoint Capitalism’ – how big corporations use low prices to lock in users and creators, while locking out real competition.Rebecca Giblin, ARC Future Fellow; Associate Professor; Director, Intellectual Property Research Institute of Australia, The University of MelbourneCory Doctorow, Visiting professor of computer science, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1881872022-08-04T15:49:59Z2022-08-04T15:49:59ZBeyoncé is cutting a sample of Milkshake out of her new song – but not because she ‘stole’ it<p>There was lot of excitement leading up to Beyoncé’s album Rennaissance, which was <a href="https://variety.com/2022/music/news/beyonce-renaissance-leak-1235327192/">leaked two days before it release</a>. Maybe it could have done with a bit more time, as two songs are set to be rerecorded and released. The song Heated will have <a href="https://www.insider.com/beyonc-remove-ableist-lyric-heated-renaissance-2022-8">ableist language</a> removed from it, while the song Energy will be rerecorded without one of the samples on which it is built.</p>
<hr>
<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/beyonce-is-cutting-a-sample-of-milkshake-out-of-her-new-song-but-not-because-she-stole-it-188187&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p><em>You can listen to more articles from The Conversation, narrated by Noa, <a href="https://theconversation.com/us/topics/audio-narrated-99682">here</a>.</em></p>
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<p>This second change has been portrayed as a response to the singer Kelis calling the use of the sample “<a href="https://www.billboard.com/music/music-news/beyonce-removes-kelis-interpolation-energy-1235121669/">theft</a>”, and to Beyoncé “allegedly failing to seek permission for usage”. But that’s not actually true. While Kelis might not have been paid for the sample – and that is an issue – that’s to do with her legal contract with her producers, not a failure on Beyoncé’s part.</p>
<p>Kelis is the performer of Milkshake, which was released in 2003. Now you might think she should be getting money for any use of the song. However, the credits and the royalties for Milkshake go to Chad Hugo and Pharrell Williams, together known as The Neptunes, who reportedly wrote and produced it. </p>
<p>In the music industry, when a song is recorded it has two rights attached to it. One in the actual sound recording and one in the song itself. This is why Taylor Swift re-recorded and release her music to <a href="https://www.youtube.com/watch?v=pB1nyP_O7II">reclaim her rights</a> in the sound recordings. She was the owner of the songs themselves but not the recordings, so she made new recordings. </p>
<p>These different rights are often owned by different people and are governed by contracts. So who owns what and how much they earn depends heavily on the agreement between the people involved.</p>
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<p>In 2020, Kelis revealed in an <a href="https://www.theguardian.com/music/2020/jan/30/unmasked-singer-kelis-on-music-men-and-her-missing-money">interview</a> that she doesn’t make any money from her two albums produced by The Neptunes. She said that she was told everything would be split three ways and so didn’t double check when presented with the contract.</p>
<p>She was 19 at the time of signing the contract and claimed that she was “blatantly lied to and tricked” but didn’t notice at first because she had other sources of income, like from touring. “Their argument is: ‘Well, you signed it.’ I’m like: ‘Yeah, I signed what I was told, and I was too young and too stupid to double-check it.’” So, due to the contract, Kelis doesn’t have any copyright in the song Milkshake, or indeed much of her first and second albums. </p>
<p>In an <a href="https://www.vulture.com/2022/05/producer-chad-hugo-neptunes-interview-pharrell.html">interview </a> earlier this year with the culture publication Vulture, Hugo brushed off these comments: “I heard about her sentiment toward that. I mean, I don’t handle that. I usually hire business folks to help out with that kind of stuff.”</p>
<h2>Different type of samples</h2>
<p>The sample of “Milkshake” in Beyoncé’s new song <a href="https://www.youtube.com/watch?v=O9rk6ldyFkA">Energy</a> is credited to Chad Hugo and Pharrell Williams, but not Kelis. The Milkshake singer commented on <a href="https://www.instagram.com/p/CgcSNyHsTVW/">Instagram</a>: “My mind is blown too because the level of disrespect and utter ignorance of all three parties involved is astounding.” And said that she found out about the sample use at the same time everyone else did.</p>
<p>This has happened because of the way that sample licensing works alongside the song rights and the sound recording rights. </p>
<p>When you sample directly, you take the sound recording and cut and paste it into a new song. This means you are using both the sound recording and the musical work, and so need permission from both owners. </p>
<p>For example, the artist Ashnikko recently directly sampled another hit song performed by Kelis – <a href="https://www.youtube.com/watch?v=N3JFwd1bk4Q&ab_channel=KelisVEVO">Caught Out There</a>, taken from the same debut album Kaleidoscope – in her song <a href="https://youtube.com/watch?v=DXGelmwqfm4">Deal With it (feat. Kelis</a>). Williams and Hugo also both appear in the writing credits.</p>
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<p>Beyoncé, on the other hand, did not directly sample the sound recording, but instead recreated the sound herself, known as an interpolation. There are a number of reasons why a song creator might choose to use either a direct sample or an interpolation. It can relate to budget (unlikely in Beyoncé’s case), or artistic choice based on the meaning behind the use of the sample or the formation of the song. </p>
<p>For example, in a dance track it’s common to use the sound recording and lean towards more of a remix. Whereas an interpolation can be more about building on a theme or making a cultural reference. </p>
<p>An interpolation only requires clearance for the musical work that is usually owned by the publisher and credits the songwriters. Kelis is not credited as a songwriter and doesn’t own any of the publishing rights, so legally there was no requirement to clear the sample with her.</p>
<p>So Beyoncé may have decided to remove the sample due to the public backlash, or because she sympathised with Kelis. But it does not appear to have been for legal reasons and it certainly wasn’t the case that she stole the sample.</p><img src="https://counter.theconversation.com/content/188187/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hayleigh Bosher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s not a copyright infringement, it’s a far more complicated and personal issue.Hayleigh Bosher, Senior Lecturer in Intellectual Property Law, Brunel University LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1874262022-07-26T00:37:47Z2022-07-26T00:37:47ZLabelling ‘fake art’ isn’t enough. Australia needs to recognise and protect First Nations cultural and intellectual property<p>The latest <a href="https://www.pc.gov.au/inquiries/current/indigenous-arts/draft">draft report</a> from the Productivity Commission on Aboriginal and Torres Strait Islander visual arts and crafts confirms what First Nations artists have known for decades: fake art harms culture.</p>
<p>Released last week, the report details how two in three Indigenous-style products, souvenirs or digital imagery sold in Australia are fake, with no connection to – or benefit for – Aboriginal and Torres Strait Islander people.</p>
<p>This is a long-standing problem. As Aboriginal Elder Gawirrin Gumana (Yolngu) <a href="https://catalogue.nla.gov.au/Record/1133887?from=list">explained</a> in 1996:</p>
<blockquote>
<p>When that [white] man does that it is like cutting off our skin.</p>
</blockquote>
<p>The Productivity Commission has proposed all inauthentic Indigenous art should be labelled as such. But we think a much bolder conversation needs to happen around protecting the cultural and intellectual property of Indigenous artists. </p>
<p>Australia has no national licensing or production guidelines to protect Indigenous cultural and intellectual property within commercial design and digital spaces. Our work hopes to see this change.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/indigenous-cultural-appropriation-what-not-to-do-86679">Indigenous cultural appropriation: what not to do</a>
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</em>
</p>
<hr>
<h2>‘This is storytelling’</h2>
<p><a href="https://apo.org.au/node/318268">Our research</a> focuses on supporting and representing First Nations artists within design and commercial spaces, understanding how to ensure cultural safety and appropriate payment and combat exploitation.</p>
<p>Many First Nations artists we spoke to told us stories of exploitative business models. They were blindly led into licensing agreements and client relations that were not culturally safe. Clients thought commissioning a design equated to “owning” the copyright to First Nations art, culture and knowledge.</p>
<p>Gudanji/Wakaja artist and winner of the 2022 NAIDOC poster competition <a href="https://nardurna.com/">Ryhia Dank</a> told us:</p>
<blockquote>
<p>We need clear recognition, structures and licensing guidelines to protect all of what First Nations ‘art’ represents. I know a lot of us, as we are starting out don’t know how to licence our work […] <br></p>
<p>One of my first designs was for a fabric company and I didn’t licence the design correctly, so that company is still using my design and I only once charged them $350 and that was it. Having legal support from the start is critical.</p>
</blockquote>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/475761/original/file-20220725-29416-u6dq6h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="NAIDOC poster reads: Get up, stand up, show up." src="https://images.theconversation.com/files/475761/original/file-20220725-29416-u6dq6h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/475761/original/file-20220725-29416-u6dq6h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=848&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475761/original/file-20220725-29416-u6dq6h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=848&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475761/original/file-20220725-29416-u6dq6h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=848&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475761/original/file-20220725-29416-u6dq6h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1066&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475761/original/file-20220725-29416-u6dq6h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1066&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475761/original/file-20220725-29416-u6dq6h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1066&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The 2022 National NAIDOC Poster incorporating the Aboriginal Flag and the Torres Strait Islander Flag (licensed by the Torres Strait Island Council).</span>
<span class="attribution"><span class="source">NAIDOC</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>Arrernte and Anmatyerre graphic novelist <a href="https://www.stickmobstudio.com.au/">Declan Miller</a> explained how many clients and businesses are misguided in thinking commissioning a design equates to owning the copyright to First Nations knowledges.</p>
<p>“Our art is not just art,” he said.</p>
<blockquote>
<p>Clients need to be aware this is storytelling. This is culture. We will always own that. But we are happy for clients to work with us, and use our art and pay us for it, but we have to keep that integrity. This is our story, this is where we are from, this is who we are and you can’t buy that or take that from us.</p>
</blockquote>
<h2>Protecting property</h2>
<p>Transparent labelling of inauthentic art is a great start, but there is more work needed. </p>
<p>Intellectual property laws and processes should adequately protect First Nations art.</p>
<p>“Indigenous cultural and intellectual property” refers to the rights First Nations people have – and want to have – to protect their traditional arts, heritage and culture.</p>
<p>This can include communally owned cultural practices, traditional knowledge and resources and knowledge systems developed by First Nations people as part of their First Nations identity.</p>
<p>First Nations products should be supplied by a First Nations business that protects Indigenous cultural and intellectual property, with direct benefits to First Nations communities.</p>
<p>The outcomes of our research have resulted in the recent launch of <a href="https://solidlines.agency/">Solid Lines</a> – Australia’s only First Nations illustration agency to be led by First Nations people. An integral part of this agency is the Indigenous cultural and intellectual property policy designed specifically for the design and commercial art industry.</p>
<p>The agency hopes this policy, created with <a href="http://marrawahlaw.com.au/">Marrawah Law</a>, will help create and support culturally safe and supportive pathways for First Nations creatives.</p>
<p>For First Nations artists represented by Solid Lines, our policy also means obtaining culturally appropriate approval to use family or community stories, and knowledges and symbols that are communally owned.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-indigenous-fashion-designers-are-taking-control-and-challenging-the-notion-of-the-heroic-lone-genius-121041">How Indigenous fashion designers are taking control and challenging the notion of the heroic, lone genius</a>
</strong>
</em>
</p>
<hr>
<h2>Recognition and protection</h2>
<p>The report from the Productivity commission focuses on fake art coming in from overseas, but fake art also happens in our own backyard.</p>
<p>In our research, we have spoken to Elders, traditional custodians, and community leaders who are concerned that Western and Central Desert designs, symbols and iconography are now used by other First Nations across Australia. </p>
<p>This work often undermines customary laws and limits economic benefits flowing back to communities.</p>
<p>Community designs, symbols and iconography are part of a cultural connection to a specific land or country of First Nations people. Embracing Indigenous cultural and intellectual property policies will mean designs, symbols and iconography can only be used by the communities they belong to.</p>
<p>The Productivity Commission calculated the value of authentic Aboriginal and Torres Strait Islander arts, crafts, and designs sold in Australia in 2019-2020 at A$250 million. This will only continue to grow as Australia’s design and commercial industries continue to draw upon the oldest continuing culture in the world.</p>
<p>Visible recognition and protection of First Nations cultural and intellectual property will allow for new creative voices to respectfully and safely emerge within Australian art and design industries.</p>
<p>Through embracing guidelines around Indigenous cultural and intellectual property, First Nations artists will be supported in cultural safety, appropriate payment and combat exploitation. This is the next step beyond labelling inauthentic art.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/friday-essay-how-the-mens-painting-room-at-papunya-transformed-australian-art-79909">Friday essay: how the Men's Painting Room at Papunya transformed Australian art</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/187426/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicola St John has received research funding from Creative Victoria and The Australia Council for the Arts, Australian Government’s principal arts investment, development and advisory body.</span></em></p><p class="fine-print"><em><span>Emrhan Sultan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Productivity Commission has proposed inauthentic Indigenous art should be labelled. But ‘fake art’ is only part of the problem.Nicola St John, Lecturer, Communication Design, RMIT UniversityEmrhan Sultan, Researcher, RMIT School of Design, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1871662022-07-20T05:14:55Z2022-07-20T05:14:55ZPublishers vs the Internet Archive: why the world’s biggest online library is in court over digital book lending<figure><img src="https://images.theconversation.com/files/475010/original/file-20220720-22-rebqz8.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C5918%2C3915&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/december-29-2018-la-trobe-reading-1919650016">Shutterstock</a></span></figcaption></figure><p>Earlier this month, the Internet Archive asked a US court to <a href="https://www.reuters.com/legal/litigation/book-publishers-internet-archive-ask-court-decide-ebook-lending-fight-2022-07-08/">end a lawsuit</a> filed against it by four large book publishers.</p>
<p>The <a href="https://archive.org/">Internet Archive</a> is a not-for-profit organisation founded in 1996 that lends digital copies of books, music, movies and other digitised content to the public. It <a href="https://archive.org/about/">aims</a> to support people with print disabilities, preserve digital content for future generations and democratise access to knowledge.</p>
<p>The publishers say the Internet Archive’s digital lending practices amount to wilful copyright infringement. Authors have also <a href="https://www.theage.com.au/culture/theatre/the-future-of-libraries-or-haven-for-piracy-the-case-of-the-internet-archive-20220717-p5b27d.html">complained</a> the site hosts pirated content. </p>
<p>The Internet Archive says it is <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/jnpwedgrdpw/IP%20ARCHIVE%20COPYRIGHT%20archivesj.pdf">behaving like an ordinary library</a>, as it only loans digital copies of physical books it owns. Its supporters at the Electronic Frontiers Foundation say the publishers simply want “<a href="https://www.reuters.com/legal/litigation/book-publishers-internet-archive-ask-court-decide-ebook-lending-fight-2022-07-08/">to control how libraries may lend the books they own</a>”.</p>
<h2>The National Emergency Library</h2>
<p>Publishers were particularly concerned about the “<a href="https://blog.archive.org/national-emergency-library/">National Emergency Library</a>” set up by the Internet Archive <a href="https://www.newyorker.com/books/page-turner/the-national-emergency-library-is-a-gift-to-readers-everywhere">in March 2020</a>. This temporary project aimed to <a href="https://docs.google.com/document/d/10baTITJbFRh7D6dHVVvfgiGP2zqaMvm0EHHZYf2cBRk/mobilebasic">give teachers access</a> to digital teaching materials in the face of widespread library closures due to the COVID-19 pandemic.</p>
<p>In June 2020, the publishers Hachette, Penguin Random House, HarperCollins and John Wiley & Sons <a href="https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/83584-internet-archive-to-end-national-emergency-library-initiative.html">filed a copyright infringement action</a>. The publishers appear to want to shut down not just the National Emergency Library, but all of the Internet Archive’s book-lending practices. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1242477219227693057"}"></div></p>
<p>The publishers claim the Internet Archive is engaging in <a href="https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.1.0_1.pdf">wilful mass copyright infringement</a> by lending digital books without permission from and payment to publishers.</p>
<p>The Internet Archive argues that, because it allows only one person at a time to borrow a digital book, it is simply replicating regular library lending. However, this restriction was temporarily relaxed for the National Emergency Library. </p>
<p>Ordinary library lending does not require a payment to publishers. Once a library purchases a book, the library is free to lend it out to its members. </p>
<p>The publishers are arguing that digital books are not equivalent to physical books and should be treated differently under the law.</p>
<h2>Copyright déjà vu?</h2>
<p>Didn’t Google already win the argument about digital books years ago? Yes and no.</p>
<p>Google began digitising library books in 2002. In 2005, book publishers and authors brought <a href="https://en.wikipedia.org/wiki/Authors_Guild,_Inc._v._Google,_Inc.">a high-profile lawsuit</a> against Google for copyright infringement, which took a decade to resolve.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-to-protect-authors-after-google-books-wins-its-fair-use-case-again-49363">How to protect authors after Google Books wins its 'fair use' case, again</a>
</strong>
</em>
</p>
<hr>
<p>In the case against Google, US courts decided that making full copies of books and displaying snippets of those books to the public in the Google Books database is a “fair use”.</p>
<p>When deciding for Google, the courts paid particular attention to the historical purpose of copyright, which is to serve the <a href="https://scholar.google.com.au/scholar_case?case=2220742578695593916&q=Google+Books+2015&hl=en&as_sdt=2006">public interest in access to knowledge</a>.</p>
<h2>A question of markets</h2>
<p>But the Google Books decision does not mean book publishers will lose again against the Internet Archive.</p>
<p>In the United States, when deciding whether a use is fair or not, courts need to consider the extent to which the copyright owner’s markets are harmed.</p>
<p>Because book publishers often lend e-books commercially (including to libraries), the Internet Archive could be seen as harming that aspect of publishers’ market.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&rect=17%2C0%2C5982%2C4500&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Internet Archive argues it is simply acting as a library, but the court may rule differently.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/bridport-dorset-uk-november-17-2019-1562470024">Shutterstock</a></span>
</figcaption>
</figure>
<p>It could be said that, by providing online access to books in full, the Internet Archive is doing for free what the publishers do for payment.</p>
<p>This is different to the Google Books decision, in which providing access to snippets of books in Google’s database was considered to potentially enhance the market for books.</p>
<h2>What counts as fair use?</h2>
<p>The flexibility of fair use is one thing the Internet Archive has on its side, however.</p>
<p>There is room for the court to assess the public benefit of the Internet Archive’s lending practices which, as the <a href="https://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/">National Emergency Library</a> exemplifies, are undeniably strong.</p>
<p>Assessing whether the public interest arguments are strong enough to overcome the weight of the market harm may be key to deciding who wins this case.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/selling-mp3s-you-should-have-stuck-with-cds-13219"> Selling MP3s? You should have stuck with CDs
</a>
</strong>
</em>
</p>
<hr>
<p>The Internet Archive may also have difficulty establishing that its practices are simply an extension of the traditional role of libraries, and beyond the boundaries of publisher’s legitimate markets.</p>
<p><a href="https://theconversation.com/selling-mp3s-you-should-have-stuck-with-cds-13219">In a case in 2013</a> involving a “second-hand” market for digital copies of music, US courts decided that emulating analogue models of dissemination was not enough to evade copyright infringement.</p>
<h2>Access matters in the digital age</h2>
<p>Underlying this recent dispute is a now decades-old tension between media industries born before and after the advent of the internet. </p>
<p>Prior to the internet, media and entertainment businesses made money by selling individual copies of content (think books, CDs, DVDS).</p>
<p>But individual copies have lost value in the internet era. Online, we seek access to content rather than ownership of copies of content.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Streaming platforms make it easy to access music or video online without owning it, but the situation for books is less clear.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/penang-malaysia-29-aug-2018-close-1773091049">Shutterstock</a></span>
</figcaption>
</figure>
<p>In the music and video industries, subscription or ad-supported streaming services such as Spotify and Netflix have largely prevailed.</p>
<p>However, the lawsuit against the Internet Archive shows we have not yet, in 2022, found the right legal and economic settings for access-based book-publishing models to thrive.</p>
<h2>Finding a way forward</h2>
<p>Entities like Internet Archive have been trying to operate in the grey area between old and new by, for example, limiting access to match the number of print books in storage.</p>
<p>Rather than aiming to eliminate these grey areas, publishers should look to these activities as evidence of unmet demand and a failure to be agile in times of crisis.</p>
<p>Publishers should adapt their dissemination models to the needs of society.</p>
<p>Rather than institute restrictive terms and conditions for access, they should work with libraries to build sustainable models for dissemination that ensure books are available to people who need access to our shared knowledge and culture.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-is-a-book-in-the-digital-age-19071">What is a book in the digital age?</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/187166/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>After 20 years of copyright battles, publishers have still not found a way to make the most of the potential of digital books.Joanne Gray, Lecturer in Digital Cultures at The University of Sydney, University of SydneyCheryl Foong, Senior Lecturer in Law, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1861422022-07-04T09:55:14Z2022-07-04T09:55:14ZThe case of the acclaimed South African novel that ‘borrows’ from Samuel Beckett<figure><img src="https://images.theconversation.com/files/472238/original/file-20220704-16-jd8a24.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Image by carloscastilla/iStock / Getty Images Plus</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p><em>Pereant qui ante nos nostra dixerunt</em>: may those who utter our words before us perish. This lighthearted Latin curse speaks a truth many readers and writers have felt: to have our thoughts articulated by someone else.</p>
<p>Coenraad de Buys is unruffled by such a possibility. He is the antihero of Willem Anker’s award winning 2014 Afrikaans novel, <em><a href="https://www.nb.co.za/en/view-book/?id=9780795706936">Buys</a></em>. Vagabond philosopher that he is, Buys reflects on the nature of memories. Their substance is flaky; their origin sometimes obscure. You might glimpse them in a glass darkly or even find them outside your own mind – in the books you read. When this happens to Buys, he feels </p>
<blockquote>
<p>as if the stories of others capture something of my own life … the outlines of a conversation, a fly on the edge of my hat, but not the words. </p>
</blockquote>
<p>This musing occurs during one of the novel’s rare moments of uneventfulness. Nothing happens; no one comes or goes. Maybe that’s why the text opens onto four pages of near-undiluted dialogue from celebrated Irish author <a href="https://www.britannica.com/biography/Samuel-Beckett">Samuel Beckett</a>’s 1952 play <a href="https://www.britannica.com/topic/Waiting-for-Godot"><em>Waiting for Godot</em></a>. Of course, it’s one thing for a character to be cavalier about the words of others, and quite another for an author.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/472111/original/file-20220701-25-sjhjjo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A book cover with a graphic of a pack of wild dogs, spatters of blood and large black letters reading 'Buys'" src="https://images.theconversation.com/files/472111/original/file-20220701-25-sjhjjo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/472111/original/file-20220701-25-sjhjjo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=875&fit=crop&dpr=1 600w, https://images.theconversation.com/files/472111/original/file-20220701-25-sjhjjo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=875&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/472111/original/file-20220701-25-sjhjjo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=875&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/472111/original/file-20220701-25-sjhjjo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1100&fit=crop&dpr=1 754w, https://images.theconversation.com/files/472111/original/file-20220701-25-sjhjjo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1100&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/472111/original/file-20220701-25-sjhjjo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1100&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">NB Publishers</span></span>
</figcaption>
</figure>
<p>According to <a href="https://drive.google.com/file/d/1kFqzYZsAbLY0sZwwgeR7gqZ8YtTFkCoI/view?usp=sharing">my analysis</a>, at least 78 lines from Beckett’s play are reproduced in <em>Buys</em> without significant alteration – a fact which, if noticed, has not been noted to my knowledge. </p>
<p>The Afrikaans text carries no acknowledgement of <em>Waiting for Godot</em>, nor does it acknowledge Beckett’s influence. The English translation, <em>Red Dog</em> (2019), also doesn’t credit the play, though Beckett is mentioned with US writer <a href="https://www.britannica.com/biography/Cormac-McCarthy">Cormac McCarthy</a> as an author whose “remains” might be recognised.</p>
<h2>The McCarthy affair</h2>
<p>Not long after the English text appeared, a reviewer for the <a href="https://www.the-tls.co.uk/articles/mccarthy-cormac-blood-meridian-red-dog/"><em>Times Literary Supplement</em></a> and <a href="https://www.theguardian.com/books/booksblog/2020/mar/04/appropriation-or-plagiarism-booker-novel-poses-difficult-question"><em>The Guardian</em></a> noted close correspondences with McCarthy’s epic novel <a href="https://theconversation.com/the-unfilmable-blood-meridian-91719"><em>Blood Meridian</em></a>.</p>
<p>The reviewer took issue with <em>Red Dog</em>’s “clunky act of mimicry” and questioned whether McCarthy was sufficiently acknowledged. He writes that Anker walks a fine line between appropriation and plagiarism.</p>
<p>This drew a <a href="https://www.litnet.co.za/willem-anker-red-dog-en-vrye-weekblad/">defence</a> from the book’s translator, Michiel Heyns. <a href="https://johannesburgreviewofbooks.com/2020/03/05/i-had-to-choose-which-truth-would-suit-the-story-best-willem-anker-chats-to-jennifer-malec-about-his-novel-red-dog/">Anker himself</a> explained that these correspondences belong to the book’s “playful rewritings and quotes (which), when noticed, would enrich … broader conversations”.</p>
<h2>Enter Beckett</h2>
<p>I said earlier that <em>Buys</em> opens onto <em>Waiting for Godot</em>. A more precise formulation: it yields the floor, gives itself over to Beckett without giving him any of the credit. </p>
<p>For scale and seriousness, consider that the amount of appropriated material exceeds the <a href="https://www.theguardian.com/books/2022/jun/09/miles-franklin-nominated-novelist-apologises-for-plagiarising-nobel-laureate-without-realising">nearly 60 uncredited ‘borrowings’</a> recently identified in Australian author John Hughes’s <a href="https://www.theguardian.com/books/2022/jun/10/miles-franklin-prize-removes-novel-from-longlist-after-author-apologises-for-plagiarism">prize-withdrawn</a> novel, <em>The Dogs</em>. It also exceeds what Faber and Faber, Beckett’s publisher, considers “<a href="https://www.faber.co.uk/fair-use/#:%7E:text=Fair%20dealing%20or%20fair%20use%20is%20a%20guideline%20we%20generally,guideline%2C%20not%20a%20law">fair use</a>”.</p>
<p>Putting aside the question of copyright, the sustained nature of the reproduction of <em>Godot</em> perhaps offers its own curious form of mitigation. Surely Anker wants us to pick up on this wholesale transfer? And isn’t it a truth universally acknowledged that a writer in possession of an individual talent might sometimes be in want of a riff? </p>
<h2>In defence of Anker?</h2>
<p>That was more or less US-born poet <a href="https://www.britannica.com/biography/T-S-Eliot">T.S. Eliot</a>’s position, himself no stranger to charges of unscrupulous <a href="https://www.jstor.org/stable/27796103?origin=JSTOR-pdf">liftings</a>. But Eliot gets off by having practised what he <a href="https://muse.jhu.edu/resource_group/2">preached</a>: </p>
<blockquote>
<p>Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different from that from which it was torn.</p>
</blockquote>
<p>Now, one could mount an unorthodox defence and claim that Anker is a bad writer. You could argue that he has simply failed to pressure-cook his source into something rich and strange. Embarrassing, true, but the plea would at least reduce the charges from ethical to aesthetic badness. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/472144/original/file-20220703-24-1aw43g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A book cover with a graphic of a wild dog and large red letters behind it reading 'Red Dog'" src="https://images.theconversation.com/files/472144/original/file-20220703-24-1aw43g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/472144/original/file-20220703-24-1aw43g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=924&fit=crop&dpr=1 600w, https://images.theconversation.com/files/472144/original/file-20220703-24-1aw43g.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=924&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/472144/original/file-20220703-24-1aw43g.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=924&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/472144/original/file-20220703-24-1aw43g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1161&fit=crop&dpr=1 754w, https://images.theconversation.com/files/472144/original/file-20220703-24-1aw43g.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1161&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/472144/original/file-20220703-24-1aw43g.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1161&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">NB Publishers</span></span>
</figcaption>
</figure>
<p>Trouble is, Anker isn’t a bad writer – quite the opposite. This is borne out by the <a href="https://sala.org.za/willem-anker/">awards</a> <em>Buys</em> has won: among them the UJ Prize (2015), Hertzog Prize (2016), K. Sello Duiker Memorial Award (2016) and, of course, <em>Red Dog</em>’s longlist <a href="https://thebookerprizes.com/the-booker-library/authors/willem-anker">nomination</a> for the Man-Booker International in 2020. </p>
<p>Add to this the <a href="https://www.litnet.co.za/willem-anker-red-dog-en-vrye-weekblad/">voice</a> of Anker’s translator, Heyns, who cites the author’s “incredible linguistic dexterity” as a charm against temptations to literary theft: </p>
<blockquote>
<p>Anker is more than capable of writing his own novel.</p>
</blockquote>
<p>It may then be asked: why doesn’t Anker do so throughout? Why copy Beckett so closely and at such length?</p>
<h2>Comparing the texts</h2>
<p>What about allusive aptness? After all, the ‘borrowings’ occur at a moment when Buys and another character are waiting on a farmer who never shows. This lull makes them attentive to their existential plight and to the received wisdom that blunts a critical faculty. The niggle, though, is that these ideas occur only because of <em>Godot</em>’s presence. They are themselves a received wisdom blunting Anker’s creative faculty: </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/472100/original/file-20220701-20-sb3u10.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Graphic comparing Godot and Buys with the words Waiting for Godot Vladimir: how is it that of the four Evangelists only one speaks of a thief being saved. And only one speaks of a thief being saved. Why believe him rather than the others? Buys Ek dink ma" src="https://images.theconversation.com/files/472100/original/file-20220701-20-sb3u10.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/472100/original/file-20220701-20-sb3u10.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=273&fit=crop&dpr=1 600w, https://images.theconversation.com/files/472100/original/file-20220701-20-sb3u10.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=273&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/472100/original/file-20220701-20-sb3u10.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=273&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/472100/original/file-20220701-20-sb3u10.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=343&fit=crop&dpr=1 754w, https://images.theconversation.com/files/472100/original/file-20220701-20-sb3u10.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=343&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/472100/original/file-20220701-20-sb3u10.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=343&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Rick de Villiers</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>The acknowledgements</h2>
<p>Late to the party, I had started reading the <a href="https://www.nb.co.za/en/view-book?id=9780795708510">novel</a> towards the end of May 2022, unaware of the earlier accusations. About halfway in – before I noticed the <em>Godot</em> snatchings – I flicked to the back pages. Here I encountered the “Acknowledgements”:</p>
<blockquote>
<p>As far as other quotations, references and rewritings are concerned: Omni-Buys saw it all, read every word. He eats as he reads. As he plunders mission stations and cattle kraals, so he plunders the texts of others far and wide in order to tell his own tale. Should you then in his retelling stumble across the remains of other authors, regard it as the homage of a scoundrel.</p>
</blockquote>
<p>(I reproduce Heyns’s translation but without mention of Beckett and McCarthy, since these do not appear in the Afrikaans version.) I took this as an ingenious defence of the creative logic that lets the protagonist slip his temporal borders and rove trans-historically. </p>
<p>But after I encountered the <em>Godot</em> pages, it became clear that this insert was a get-out-of-jail card, an authorial self-pardoning. Anker isn’t speaking on behalf of Buys; he’s speaking on behalf of himself.</p>
<h2>What to make of it?</h2>
<p>There seems to me three ways of responding. The good-faith reader will say, sure, while the Afrikaans text doesn’t cite Beckett, the oversight is corrected in the English translation. </p>
<p>They might add: we hardly expect novelists to declare influences and sources that go into the making of their work. Isn’t intertextual play the beating heart of the modernist tradition to which <em>Buys</em> brings tribute? Half the pleasure in reading a work of literature is that it enlists our participation. </p>
<p>Consider also how Anker takes <em>Godot</em>’s Bible and transforms it to match the wilderness of late 1700s/1800s South Africa, and also Buys’s untamed psyche:</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/472105/original/file-20220701-20-myxn97.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Graphic comparing two texts with the words: Waiting for Godot Vladimir: Do you remember the Gospels? Estragon: I remember the maps of the Holy Land. Coloured they were. Very pretty. The Dead Sea was pale blue Buys As jy wil klets oor die Bybel, eerder dan" src="https://images.theconversation.com/files/472105/original/file-20220701-20-myxn97.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/472105/original/file-20220701-20-myxn97.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=164&fit=crop&dpr=1 600w, https://images.theconversation.com/files/472105/original/file-20220701-20-myxn97.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=164&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/472105/original/file-20220701-20-myxn97.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=164&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/472105/original/file-20220701-20-myxn97.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=206&fit=crop&dpr=1 754w, https://images.theconversation.com/files/472105/original/file-20220701-20-myxn97.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=206&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/472105/original/file-20220701-20-myxn97.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=206&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Rick de Villiers</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>A sceptical reader must agree that this is a fine bit of transposing. But this isolated example shows exactly how minimally other phrases have been changed.</p>
<p>Forget the not-insignificant fact of the missing acknowledgement in Buys. Set aside the puzzling fact that an out-of-copyright addendum receives full bibliographic treatment (a quote from German physician and explorer Hinrich Lichtenstein) while <em>Godot</em> doesn’t. Also disregard the grim view that the Beckett estate is likely to take. You are still confronted with Buys’s baffling disavowal: </p>
<blockquote>
<p>It’s as if the stories of others capture something of my own life … the outlines of a conversation, a fly on the edge of my hat, but not the words.</p>
</blockquote>
<p>Given the barefaced translation of Beckett that soon follows, “but not the words” reads either as suppression or provocation. Albeit in a different language, it’s exactly the words of Beckett that manifest on the page.</p>
<p>The third position is that of the “ruimhartige” reader. This word occurs in Buys. It’s much more expressively generous than its English counterpart, magnanimity (generosity). To be <em>ruimhartig</em> is to be disposed to complexity – as a principle of compassion but also of intellectual broadmindedness. </p>
<p>Such a reader will respond to the good-faith argument by following it through to its logical conclusion: if Anker declares his debt and wants us to see the presence of <em>Godot</em>, it comes at the cost of his own achievement. For who, following Beckett nearly word for word, would not pale by comparison? Homage to the master means damage to the pupil.</p>
<p>Except, of course, if the homage remains unrealised. By trading on the beauty of Estragon and Vladimir’s exchanges, by drawing from the well of Beckettian despair, and by securing a buy-out through a cover-all acknowledgement, Anker has his cake and eats it too. </p>
<p>A <em>ruimhartige</em> view must also admit the possibility that Anker was seduced by his very seductive creation. Buys declares himself to be a rover, a plunderer. He acts with impunity not only in the world of the novel but across time. </p>
<p>Having written a conceptual “grensroman” (border novel), Anker has been charmed by the idea that boundaries don’t exist. He has spoken the <em>pereant</em> curse without considering that the already-said might come back to haunt him.</p>
<p><em>Disclosure: While writing this article, the author was contacted by the publisher of Buys, NB Publishers, who requested he submit a report detailing his analysis. This he did as a freelance consultant.</em></p><img src="https://counter.theconversation.com/content/186142/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick de Villiers does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Buys, the award-winning novel by Willem Anker, uses lines without credit from the Irish writer - not the first such literary controversy it has raised.Rick de Villiers, Senior Lecturer, Department of English, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.