Copyright dungeons and grey zones

His review highlights the increasingly difficult position that large archive projects (like Images for the Future) find themselves in. While these projects are expected (and commit themselves) to play by the complex and out of time rules of copyright legislation, they have to compete with successful content providers, like youtube.com or the pirate bay that operate from grey zones that enable them to ignore (many of) the restrictions imposed upon the archives by copyright legislation.

This results in the seemingly paradoxical situation that the most popular parts of the collections maintained by these archives (and as such probably also the parts with the biggest potential to generate revenue) are more or less readily available from the grey zones while they are not available form the bona-fide archives because of the difficulties involved with clearing their rights. In the long run such a situation will undoubtably undermine the ability of official archive projects to function.

It is therefore important to examine if we are willing to accept the constraints imposed by copyright law on these ‘grand projects’ of our times or if we should seriously reconsider some of the restrictions imposed by copyright law on the images of the future. Otherwise we risk that in the future the images of our past will either be owned by google inc or be available form a torrent site near you…

"Copyright dungeons and grey zones (reposted from the nettime mailing list in its entirety with permission by the author)

I recently spent two days in Amsterdam at the “Economies of the Commons” conference put together by Eric Kluitenberg and others (including myself in a minor editorial role) at DeBalie. The aim of the conference was to look at long-term strategies to produce and maintain cultural resources in and for the commons. The presentations and discussions were all taped and are made accessible online. I recommend to check it out, it was a good conference, though I’m probably biased.

What struck me the most was that one could clearly distinguish two camps, even though everyone agreed that making things available under the least strictive terms possible is a good idea.

On the one side were those who work within the conventional constraints of copyright (i.e. authors/rights holders control their works). This group was, by and large, made up of representatives of large European audio-visual archives and of various multi-national EU funded projects. They sit on very large holdings (100′000s of hours of material) and command massive budget (100s of million euros) to digitize and make them available to the public. Taken together, these projects appear to reach the scale of, say, the Google books project.

The other group was comprised of projects working outside these constraints, either because they work with public domain material (Prelinger archive), ignore copyright altogether (ubu.com, ‘steal this film, II’), or work with open source models using copyright to protect user access rather than author control (blender.org).

For the first group, the main problem is that as public institutions they perceive themselves as having to adhere to the most restrictive definitions of what is legal. Working under governments that are all professing the protection of copyrights to be essential to the European ‘knowledge economy’, they seem to have fully internalized that mission. So now, they are faced with mission impossible: making material widely available AND satisfy each and every rights-holder upfront.

So, a good deal of each of their presentations was devoted to what they could not do and how digitizing the material does not make it more accessible. In the case of the Swedish archive, you still need to come to their building in downtown Stockholm to watch the tapes (ups, these are files now). Before making the material available online, they need to get permission, which is close to impossible, either because it’s hard to track down so many rights holders (and heirs of rights holders), or, in case of commercial producers, they do not see any value in free public access and so refuse to grant permission.

The most poignant moment came when Edwin van Huis (Netherlands Institute for Sound and Vision) recounted a discussion with a broadcaster about whether the institute could put online some TV segment that was already on Youtube. The answer was: No! When he asked the broadcaster how he felt about his content being on Youtube the answer was: ‘You can’t do anything against Google’. Thus, as Paul Keller remarked, there is a perverse situation that the official repositories of culture are going to be stuck with stuff that either they cannot make accessible, or nobody cares about. All the rest will be better accessible via Youtube or piratebay.

In short, it became abundantly clear that, no matter how much money you have, the attempt to solve all the legal issues first and only then start to release the material is doomed to failure. Digitization plus strict adherence to the law will not create digital archives but copyright dungeons.

Most of the successful, innovative projects, it turns out, are operating in zones of varying degrees of grey. In the American example, Youtube, the grey zone is protected by corporate might (Google). In the European example, piratebay, the grey zone is sustained by mass civil disobedience.

I suspect that the grey zones will not stay grey for ever. Sooner or later, the basic framework in which they will operate be will be defined. Google will have settled all the law suits against Youtube and p2p providers will becomes mainstream (keep an eye on mininova….). However, it seems equally save to predict that the new framework will look considerably different from what it is now, reshaped by the sheer force social reality. But by then, the official cultural repositories will have wasted a huge amount of money by building systems of restriction and a generation of culturally-interested citizens will have learned to look elsewhere to find the material they care about.

This is already the case. As many nettimers know, ubu.com is, by far, the best archive on the audio-visual heritage of the Western avant-garde art, far better than, say, what the Moma or any other major institution offers. And this on a operating budget, as Kenneth Goldsmith explained, of $50/month. Ubuweb runs on volunteer work and its own growing reputation. This is already the de-facto official archive of the avant-garde and receiving material from foundations. The point is not that you can do everything for free, but getting rid of the crippling overhead of copyright creates tremendous freedom and energies to create resources that people actually like and use."