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London Metropolitan University

Postgraduate Studies

MA Digital Media
Module CUP007N: Principles of Digital Media


Mickael Abensur


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1. Discuss the concept of intellectual property, focusing on copyright.

What are the limitations existing copyright regulations place on cultural
development? What are the alternative systems in place? How do they
run? Demonstrate, using the example of Free Software and/or other
examples, such as the movement of Creative Commons.

Copyright laws give an exclusive right to copy an intellectual work,

whether it be written, composed or depicted to a specific author or produce;
for a limited period of time. These rights are automatically granted at the
creation of the work. In the 18th century, in England, they were created
primarily as a way to regulate the printing industry. In this way, publishers will
reduce the competition. Meanwhile songs and folktales, generally published
under anonymous names, remained in the Public Domain. “Before the case of
Donaldson v. Beckett, in 1774, there was no clear idea of a public domain in
England (Lessig, 2004, p93)”.

During the mid 19th century, new laws extended copyrights to other
industries and in the 20th century, with the rise of the recording industry, music
was categorized, distributed, and as a consequence, copyrighted.

According to Liang (2005, p13), the battle between the Public Domain
and large publishing house drifted progressively to the advantage of the
publishers who kept pushing the limitation date of entry of any intellectual
work into the Public Domain.

As a matter of fact, entertainment industry lobbyists persuaded the

United State Congress 11 times to extend copyrights on their vast treasure
troves of books, films and music. More recently, the Copyright Term
Extension Act (CTEA) of 1998 added a further 20 years of ownership from
publication, for any work produced inside or outside a company. These
giveaways hamper the creativity of authors in a sense that every discovery,
invention and creative work relies on and builds upon everything that came
before it. Behind these reforms, Walt Disney lobbyists were the most zealous;
but they forget that some years ago, many stories were adapted into cartoons,
such as “The Jungle Book (1894)”, based on Rudyard Kipling's novel; were
part of the Public Domain. Rick DeMott (2001) declares, it is not acceptable
that the same people profit from the advantages of both worlds. Indeed, Walt
Disney cartoon entitled “The Jungle Book (1967)” was released immediately
after Kipling's copyrights expired.

Sprigman (2002) discusses that the value of a copyrighted work is higher

than a same work that is not subject to copyright, as the copyright owner will
be entitled to eliminate competition in the provision of that expression to
others; although he maintains that this advantage is not significant compared
to the harm caused by the retention of an inspiring work, for other decades.

A dark future glooms for authors; as we continue reading Liang’s guide

(2005, p26) we realize that we move slowly away from a world where

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everything was presumed to be in the Public Domain unless otherwise stated,
to a world where everything is protected unless otherwise stated.

But it is not totally black or white. As the time went by, copyright laws
adopted or encountered few limitations. For the sake of clarity, I have divided
these limitations into three categories: ‘sampling’, ‘fair use’ and ‘physicality’.

First of all, copyright laws don't protect ideas, but only the form of their
expression. This means that if a copy has been made without prior consent,
the original owner has to prove that the supposedly infringing version was
derived from his own work; as opposed to being an independent work. In
order for the derivative work to be undermined, it needs to show a minimum of
tangible similarities with the original work. This legal diagnostic is called
’sampling’ (Baker 1995). Arun Kumar (2010) relates that this ambiguous task
is often left to the subjectivity of individuals in charge of the case.
Consequently, copyright law on derivative work, often leads to lengthy and
costly disputes.

Secondly, a further legal issue stipulates that a derivative work can be

used without consent of the author if it reports on the current actuality (e.g.
material used in a documentary) or if it reviews the original work. As such this
derivative work will be considered as "fair use". A clear example of this
limitation can be found in The Fifth Element written by Robbins (2010), where
Jeff Koons, a famous artist, won a juridical case for the ‘fair use’ of a
photograph of a pair of women's donning Gucci sandals from Allure
Magazine, in his 10 foot by 14 foot photorealistic painting named “Niagara”. At
the time of the trial, Koon claimed that the stolen photo was irreplaceable in
order to demonstrate the yoke of our consumerist society.

Lastly, copyright laws were initially designed for printers who were
publishing physical assets. Now that we have entered a digital era, with the
Internet as the pivotal component, the number of physical assets has become
scarce, as well as the number of traditional publishing house reduced. It is fair
to observe that copyright laws struggle to control illegal digital distribution
commonly called in cybernetic language ‘piracy’ (Lessig, 2004, p62).

These limitations encouraged people to look for alternatives. The

pioneer of this revolution is an American computer programmer who was
promoting the free circulation of softwares. Richard Stallman, a cybernaut,
found a solution to the copyright dilemma. The more obvious way to fight
illegal copies will be to vest free distribution straight at the creation of the

In 1989, the Free Software Foundation released the first version of the
General Public License (GPL). This license withdraws some restrictive
copyright terms in a way that it makes your work directly available in the
public domain, and cannot be taken out of it afterwards. Some renowned
software products are using the GPL such as the GNU/Linux operating
system, the Apache web server, the Mozilla Web browser, the PHP
programming language, and the OpenOffice suite. These applications cannot

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be sold but are called “viral software” because even their derivative products
are forced to stay in the Public Domain. Nonetheless it is permitted to use
them for different business purposes that are not part of the software industry
as long as you do not alter the software GPL license. Gradually, this concept
of a culture based on collaborative work extended to other areas. Mansoux &
de Valk (2008, p7) cite ‘expressions such as “free software” and “copyleft”
were seen as direct alternatives to copyright’.’

We can briefly explain why this revolution was born out of the software
industry. In 1985, Eric Steven Raymond, who was one of the first contributors
to the popular GNU/Linux first operating system released under the GPL,
comments on its early programming experience. He claims notably that
software is initiated by a developer’s need to fulfill a precise function.
Moreover, he argues that, considering the time spent programming for only a
single action, it is preferable to test and base the future work on preexistent
software. At last, he concludes that the best way of handling a complex series
of lines of code, is to hand them off to another programmer (Raymond, 2000
pp1-4). This revelation leads us to collaborative work as a new way to
regulate authorship.

15 years later, the founder of the "Free culture" movement, Larry Lessig
suggested a "code" that will regulate differently the "cyberspace", from the
"law", instituted by the copyrights (Lessig, 2000). Lessig stipulates that events
don't occur in cyberspace like they do in real life, the consequences are
unconventional. As an example, when browsing the Internet, packets of data
are sent and received between multiple computers; they travel in an anarchic
behavior. Effectively on the Internet, packets of data are set to circulate using
the most efficient method, and nothing ensures that they will follow the same
route. It is therefore very difficult to stop ‘piracy’ because certain routes
borrowed belong to different users (Lessig, 2006, p63).

In 2002, the Creative Commons (CC), a non-profit organization founded

by Larry Lessig, Hal Abelson, and Eric Eldbred, made publicly available open
content licenses similar to the GPL, which are applicable not only for
softwares but for all intellectual properties. These licenses enable authors a
greater visibility of their work by removing some restrictions of the copyright
model. Commonly, these new licenses grant the free use, free modification,
free multiplication, free distribution and no warranty of the work (Liang, 2005,

Open content licenses allowed programmers notably, to collaborate

without formal organization attached. And surprisingly, the work invested in
‘open projects’, appeared well rounded enough to compete against assembly-
line software produced by large multinational companies. Additionally, with the
arrival of Internet in the mid 20th century, authors or programmers were
enabled to publish their work with very little means. It was the end of the
dictatorship of large publishing houses and media conglomerates (Ghosh,
2005, p32).

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Nowadays, the Internet allows authors to publish music via ‘peer to peer’
programs, to publish videos via ‘Youtube’, and to publish texts via ‘blogs’. All
of these media contents are not spread by the biggest player, but by the most
popular. They are selected according to their ranking in terms of interest to a
wider audience, simply by allowing every user to link to them. Since the
essence of Internet is based on a technology that praises users activity, it has
become a more democratic medium than those used in broadcasting,
newspapers and in the radio industry (Lessig, 2004, p43).

On Internet, the consumer shapes his media world by selecting his

preferable media content; tools like ‘pod casts’, ‘flickr pictures’, or ‘streaming
videos’ empower him to have the information he requests ‘On Demand’. The
consumer becomes, thus, a ‘prosumer’: a combination of producer and
consumer of information (Yuill, 2008, p75).

Free software works together with free information, they are intricately
connected, as free software gives more control to the author to manipulate
and publish his own content. Free software grows within communities of
‘prosumer’ who collaborate to accelerate its production for everyone 's benefit.
In Flusser’s opinion, (2002, pp70-74) the collaborative system represented by
free software under the copyleft model, has a shape of a tree where from one
concept, multiple alterations will blossom. On the contrary, proprietary
software, published under the copyright model, evolve in a pyramidal structure
where all the participants of the project will be directed towards a same and
unique goal. This latter system is centralized on the profit of a single
organization, and can be seen from the perspective of the participants as
unfair, antisocial and unethical.

Extensively, the Free Software Movement is pushed by an insatiable

desire of exploring the boundaries of its own nature. It praises a fully engaged
and symbiotic dance with the computer and blurs the border between two self-
contained realms: the human and the machine. From a deeper point of view,
this movement core mantra is the freedom of expression that can be
interpreted as an artistic motivation (Mauro-Flude, 2008, p214).

In contrast with the Free software movement led by Stallman, Ken

Thompson from his key text Reflections on Trusting Trust (1984), argues that
'The act of breaking into a computer system has to have the same social
stigma as breaking into a neighbour's house. It should not matter that the
neighbour's door is unlocked.' Activists of the free culture are potentially a
threat to the property of others, and can make abusive use of their freedom
without even being aware of it. As we can read in the Floss+Art essay of
Florian Cramer (2008, p132), a lot of authors misunderstand the open content
licenses with a way to use copyrighted work in total eligibility as long as they
publish the derivative work under a non-commercial license. To a certain
extent, some copyleft activists are often put into the same group as hackers (a
computer programmer who uses his skills to gain illegal access to a computer
network or file).

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Whereas the GPL license grants complete freedom to the public, to
use the work without recognition of the authorship, Creative Commons
licenses have a compulsory attribution clause. Alternatively, buying a work
that has been copyrighted gives you all the rights to use the related work as
you see fit. It appears, then, that the CC licenses are surprisingly the most
restrictive option. Hans Steiner (2008, p138) reports fairly that in case of a
search engine, which lists a comprehensive selection of work, CC licenses will
require a large number of attribution notes, and can be very tedious for the
producer to handle.

Mia Garlick (2006), the General Counsel of the Creative Commons

argues that CC licenses are based on the existent copyright laws, this means
that it doesn't take away the core values of copyright laws, like the attribution
of authorship, the respect of the author's moral rights and the control of the
commercialization on derivative work. In fact, copyleft law uses copyright law
creatively, to articulate a positive, rather than a negative discourse. Again
Steiner (2008, p141) disproves the CC licenses by saying that even if we want
to give attribution to a work that is not aimed for commercialization, why would
you do so?

Steiner (2008, p143) contends that the authors do not necessitate

‘attribution’ in order to build their reputation. He argues that reputation stems
from the love of consumers for a specific author or artist. As a result,
consumers will naturally look for a name in order to communicate their
discovery to their peers. Hence, even if the author or artist did not promote
himself well, he will be awarded for a good work. Steiner supports his
argument with two concise examples: In the music industry, most musicians
nowadays make more money from live performances rather than from
royalties on sales of their records. So It discards the benefit from having the
author’s name mentioned only to make money from it. In the book industry,
even if an author did not bother to name his work, publishers would be likely
to do so as a way of capitalizing on the author's reputation. As such,
publishers get free promotion on the book they sell and have better chance to
raise profits.

Ultimately, Steiner suggests that instead of resting on our laurels, we

can simply change our attitude with regard to the problem. He thinks that in
the future, services on demand, such as software support, online teaching,
live performances or other types of representation are likely to thrive.

The rise of Internet along with the Free Software movement allows the
common consumer to become a prosumer. Copyrights do not restrict our
freedom of expression but are simply not relevant in a digital era. Our culture
is still dominated by a "Read-only" system (Lessig, 2004, p37) however its
transformation into a “Read and Write” system has already begun.

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Cramer, F (2008) “The Creative Common Misunderstanding” in A. Mansoux &

M. de Valk (ed) Floss+Art, GOTO10, Poitiers FRANCE pp 128 - 137.

Baker, R (1995) Media Law: a user's guide for film and programme makers,
Taylor & Francis, Abingdon UK.

DeMott, R. Support of the US congress for Copyrights extensions. Internet

(2001) Available:
copyright-extension. Jan 2011.

Flusser, V (2002) Writings, University of Minnesota Press, Minneapolis.

Garlick, M. Explanation about the Creative Commons License and their

different versions. Internet (2006) Available: Jan 2011.

Ghosh, R A (2005) Code: Collaborative Ownership and The Digital Economy,

Massachusetts Institute of Technology, Cambridge USA.

Kumar, A. Copyright laws on derivative work. Internet (2010) Available: Jan 2011.

Lessig, L (2000) Code and Other Laws of Cyberspace, Basic Books, New

Lessig, L (2004) Free Culture, The Penguin Press, New York.

Lessig, L (2006) Code version 2.0, Basic Books, New York.

Liang, L (2005) Guide to open content licenses, Piet Zwart Institute,


Mansoux, A and de Valk, M (2008) “Preface” in A. Mansoux & M. de Valk (ed)

Floss+Art, GOTO10, Poitiers FRANCE pp 6 - 13.

Mauro-Flude, N (2008) “Linux for Theatre Makers: Embodiement & Nix Modus
Operandi” in A. Mansoux & M. de Valk (ed) Floss+Art, GOTO10, Poitiers
FRANCE pp 206 - 223.

Raymond, E C (1999) The Cathedral and the Bazaar, O’Reilly Media,


Robbins, B D (2010) “The Fifth Element: the unspoken element in the fair use
four part test” Intellectual Property Law Bulletin 14, 2, pp. 95 - 108.

Sprigman, C. Disney and the Copyright Term Extension Act. Internet (2002)
Jan 2011.

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Steiner, H C (2008) “Copyright is for Copying” in A. Mansoux & M. de Valk
(ed) Floss+Art, GOTO10, Poitiers FRANCE pp 138 - 154.

Thompson, K (1984) “Reflections on Trusting Trust” Communication of the

ACM 27, 8, pp. 761-763.

Yuill, S (2008) “All Problems of Notation Will be Solved by the Masses: Free
Open Form Performance, Free/Libre Open Source Software, and Distributive
Practice” in A. Mansoux & M. de Valk (ed) Floss+Art, GOTO10, Poitiers
FRANCE pp 64 - 91.

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