Wolf Richter

Does YouTube kill the Media Festival star?I spent a fantastic weekend at the annual Transmediale festival for “art and digital culture” in Berlin. The Transmediale is one of the “landmark” festivals of the European digital event circus and has so far ranked among my personal favorites. This year’s motto shouted “Unfinish!” at the visitor to “re-open closed processes”, “question finality and claims that any given situation is full of potential” and “ investigate artistic processes that are open to change and reversal of decisions”. Therefore I entered the festival with the expectation of an artistic reflection on the recyclic production paradigma of the Web 2.0 generation, the perpetual creation of new works based on the existing, and the artists standing on the shoulders of the YouTube giant.

The festival surprised me like many times before, but this time the surprise was disappointing: The exhibition displayed a rather ordinary selection of humming machines with speakers producing spheric noises, screens showing the 0.x-th version of an interactive approach to mix recorded videos and life-streams of the audience, black and white videos of empty rooms, and – as the main attraction – a telescope to explore a virtual world, which rather resembled World 1.0 than Second Life. During the panels of the conference an impressive line-up of established media theorists tried their best to ignore all current trends and continue the discourse about the relationship between art and technology.

The festival has recently re-branded itself from being a festival for “media art” to being a festival for “digital media art and culture”. While I witnessed a lot of media art I was wondering what happened to all the digital culture I find myself surrounded by every day?
What about reading the blogosphere as art? What about the ambivalent roles FlickR and YouTube play in creating a privately owned public space for artistic creation? What about questioning the established understanding of “art” in view of the abundance of creativity spanning from Taiwanese boys lip-sinking Madonna to the latest videos created by students at the school for media art in Vancouver?

Do these digital phenomena not qualify as digital culture in the scope of an established art festival? Is the development we are witnessing or shaping as these lines are written too fast for the established media artists and theorists to reflect?
Or has the process of disintermediation, which has threatened publishers with extinction from the value chain in digital publication for the last 10 years, also reached media art (and digital culture, too)? In other words: Has the semiotic power to qualify digital creation as either “art” or digital rubbish finally passed from the curators of media festivals to the persons of the year: You?

P.S.: Despite my critical reflections, I would also like to mention my personal highlight: An exhibit by Aram Bartholl called Random Screen, which resembles a digital 5×5 projection screen from the forefront, but really consists of 25 rotating candlelights, rotating in canvases carved from beer cans. The whole piece is powered by the thermodynamics created by the candles and will easily survive the next power shortage of the national grid!

In a recent publication the Intelligence Unit of the Economist surveyed 405 high-level executives of European companies from a variety of industries like life-sciences, telecom, IT, professional and financial services.

Most striking I found the split about the role patents and open source strategies play in the surveyed industries. While 75% of the life-science and healthcare execs agreed that stricter enforcement of patents would foster innovation, manufacturing and IT were less affirmative (unfortunately the report does not provide exact numbers for these industries). For open source development the situation is exactly the opposite: 66% of the executives in IT, 58% in Telco und only 25% in life-sciences and healthcare agree that new technologies will be developed according to an open source model and that they have got an open source strategy.

Since all participants of the survey were high-level executives, these findings cannot be explained by different forms of market or non-market production dominant in IT or the pharmaceutical industry. It rather indicates fundamentally different strategies and models of innovation reflecting the structural specificities of the surveyed industries. These differences make a “one-size fits all” approach to patenting and use of intellectual property to foster innovation seem obsolete. What is considered as beneficial to one industry is considered harmful to another.

Under the agenda set forth by the German G8 presidency, the discussion on the reform of the European patent system, and more specific the European Patent Litigation Agreement, will regain momentum . Findings like these will hopefully inform the discussion and lead to better adjusted solutions, which reflect the structural differences between the industries in Europe.

The much anticipated findings of the review of the British Intellectual Property system (a.k.a. the Gowers review) have been presented to the public yesterday.
The report contains 55 recommendations on how to change Great Britain’s copyright, patent and trademark laws to reflect the changes brought about by digital distribution and production technology.
First reactions to the report have been ambiguous. While individual commentators appreciate the recommendations to introduce exceptions for private copying and creation of derivative works (which have been very much limited or non-existent in the U.K. so far) and the rebuff of the much discussed extension of copyright for sound recordings, Germany’s heise ticker (in German) criticizes strongly the harsh criminal penalties of up to 10 years in prison for violations in intellectual property as recommended by the review.
Given the amount of paper produced and the complexity of the subject matter, it seems too early to jump to any conclusion. I will reserve some time over the next couple of days to study the report and will use my blog to document my findings. This is going to be an important debate and the U.K. might serve as a case study on how current legal thinking is planning to address the challenges the rapid advances of technology poses.
From what I have seen so far the answer is not looking for a totally new approach to intellectual property, but instead trying to again patch the existing system by incrementally improving its most obvious shortcomings with the traditional tools. This seems disappointing as a fundamental review like the Gowers review would have clearly had the chance to recommend new legal tools like self-regulation to extend the validity if its recommendations.

On Monday, Nov 13, Prof. Jonathan Zittrain gave a key note on copyright extension for sound recordings in front of the Open Rights Group in London. As part of the ongoing review of the UK’s intellectual property system (Gowers Review) a group backed by the British Recording industry is pushing to extend the term of copyright on sound recordings, which currently is 50 years, to 95 years. Jonathan’s key note was followed by a discussion between proponents and opponents of the motion, which Fernando Barno covers in his blog entry.

In his key note Jonathan characterized the two current regimes of copyright:One he calls “Section 16″ (i.e. codified U.K. copyright law) and the other “Reality”. Both regimes had co-existed for a long time and only recently the discrepancy between the two had become more and more apparent. To substantiate his point he gave a couple of (American) examples, where the reception of the majority of the people (”Reality”) was challenged:

- Singing “Happy Birthday” in public was an infringement of the copyright owner’s right to public performances
- Showing a documentary of a rodeo was an act of copyright infringement, as long as the music company’s right to the songs played in the background of the show had not been cleared
- Playing music in a restaurant was limited to a certain size of the restaurant and the use of no more than 6 speakers
- Playing third party tapes in teddy bear shaped cassette recorder capable of moving its arms and sighing was found to infringe the copyright to the teddy bear’s movement.

Further initiatives of the music industry (represented by the collecting society ASCAP) like asking girls scouts to pay levies for campfire song s had further alienated the general public.
The advent of the Internet and especially the increasing popularity of digital media had accelerated this movement. The organization of the recording industry in the United States (RIAA) recently sued 261 school kids for sharing their songs online and the heavy metal band “Metallica” has written a letter to the President of Harvard university, asking him to shut down all file-sharing networks in the university.

While copyright law had traditionally been a playing ground for experts, the continuous extension of copyright’s scope had resulted in an increased part of the general public being exposed to its claims. Furthermore as a result of the transformation of copyright the perception of what is right and wrong had drifted apart between the industry and their customers.

Prof. Zittrain claimed that intellectual creation required symbols as frames of reference to evoke ideas and communicate them to others. This implied that a certain freedom to refer to and adapt existing creation was a necessary condition of creativity in a society. Therefore copyright law had always been considered a limited right, both in term and scope.
The original copyright act of the United States provided creators with a copyright of 14 years, which could be renewed for another 14 years. In subsequent years the term was extended to 70 years in the 1970ies and 95 years in 1998. The continuous extension was at the center of the argument in the Eldred vs. Ashcroft case. A full account of the case and the arguments can be found at this Harvard Law school site.

In the U.K. copyright extension had followed a similar pattern. The last extension came in 1996 (lifetime of author + 70 years or 95 years for works, 50 years for sound recordings) during the implementation of the EU Copyright Directive. Inspired by the current review, the industry now promoted “equal treatment” for sound recordings and songs and suggests 95 years for both.
The equal treatment argument sounds logical, but lacks further foundation, since creation of a song and a sound recording are two separate rights, which are not immediately related.

Jonathan Zittrain suggests as the foundation of a future-proof intellectual property system the four principles creativity, respect, abundance and freedom.
Finally he portrayed a couple of suggestions with respect to copyright:
- Require a registration requirement for performances, which should enjoy the 95 years term, to ensure that at least all performances, which are no longer deemed commercially valuable, enter the public domain.
- Grant extended protection for future performances only if performance is not sold to a record company, to increase incentives for performers
- Change the compensation system by introducing a cultural tax, which is distributed to performers and authors by popularity of their works, incentivizing copying and sharing. A more proper account of this idea can be found here.