Mine by Right: Copyright in Aotearoa

In a knowledgeable essay, Elizabeth Heritage explores the copyright decisions you make every day, and tackles the difficult issues of digital entitlement, monetisation and worth.

In a knowledgeable essay, Elizabeth Heritage explores the copyright decisions you make every day, and tackles the difficult issues of digital entitlement, monetisation and worth.

Somewhere in Aotearoa – maybe in a garage or storage locker – is a cassette tape I made in my mid teens. (I had one of those boom boxes that allowed me to record songs from the radio.) The tape was higgledy piggledy, songs starting in the middle and being recorded over, with snippets of DJs talking, and weird, dead-air silences. It was an aural notebook of whatever caught my fancy in the charts; a time capsule of my teenaged self; and, although I didn’t realise it at the time, arguably an unlawful infringement of copyright and/or a remix artwork.

Over the past few years copyright has come to fascinate me; the way it rears its head in issues from behavioural economics to art to civic participation in democracy. Copyright law gives you, as a copyright owner, extensive rights and powers that you were probably unaware you had; conversely, it also renders illegal many of the things you have done today. It is the stuff of a million boring contracts and protestors rioting in the streets. Even if you’ve never really thought much about copyright before, I can guarantee you have a lot of feelings about it.

Let's start with what copyright in Aotearoa actually is. Copyright is a form of intellectual property (IP) right that is granted by the law automatically upon creation of a work. A ‘work’ can be a wide range of things: this essay is one example, also photographs, books, datasets, videos, recordings of songs, annual reports, most of the internet, TV shows, and podcasts. Copyright law prevents people other than the copyright owner from making copies of that work without the owner's express permission (including adapting, sharing or performing). This is usually granted via a copyright licence.

The general exception to this rule comes under what the law in New Zealand calls 'fair dealing': someone may copy your work without your permission for the purposes of research or private study (e.g. they can print it out at home), and they may quote from it publicly for purposes of criticism or review. The law also makes special exceptions for uses like journalism, public administration, libraries and education.

Hokianga Country Library Service by Lee-Johnson. Licensed with a Creative Commons BY-NC-ND Copyright Licence. From the Te Papa collections.

Copyright is immediate, automatic and unregistered – unlike patents or registered trademarks, you don't have apply for copyright; you don't even have to use the little © symbol. This creates problems when you’re trying to work out who owns what, because there’s no central record. This problem is compounded by the term of copyright: in Aotearoa, it’s usually the life of the creator plus fifty years, after which point the copyright expires and the work enters the public domain. Once it’s there, you can do pretty much whatever you like with it.

Copyright law was written in the pre-digital age, back in the good old days when the act of copying involved a certain degree of manual labour and was usually done deliberately – and when, crucially, the means of production, the physical copying and distributing, were controlled by the few. Then along came the internet, a vast copying machine accessible by the many. Suddenly we are all coming up against copyright law exponentially more often. For example, all of these day-to-day activities involve making a copy: downloading a pdf from a website; retweeting/regramming/reblogging; forwarding on an email to a group of other people; right-clicking a picture from the Google image search results screen and selecting ‘Save Image As…’; sharing a Facebook post; screencapping. How often have you done that without checking you have the permission of the copyright owner? That is, without a copyright licence? And how are you managing the copyright in the content you yourself are creating each day, for instance all of those photos on your phone?

Because we’re all always both creating copyright works and copying other people’s, we’re constantly making decisions – consciously or not – about the extent to which we’re willing to comply with copyright law. I’d say that copyright is up there with jaywalking in terms of laws that are persistently disobeyed. This means that NZ’s current copyright law is no longer fit for purpose. In my opinion, the law needs to change.

We were taught very much in the context of maximising commercial return through the controlling of copies…. I came away with the impression that readers were to be courted but not entirely trusted.

I was first formally taught about copyright as part of my publishing diploma at Whitireia; a course on which I am now a tutor. We were taught very much in the context of maximising commercial return through the controlling of copies. Free copies of books were to be supplied only when contractually obliged or when there was reasonable expectation of a return on that 'investment,' such as publicity. Libraries and schools had to be closely watched, due to their known history of unlicensed copying and giving books and illicit copies away for free. One of the disadvantages of ebooks, we learned, was that they are easy for readers to copy and distribute illegally. I came away with the impression that readers were to be courted but not entirely trusted.

When you have a business predicated on the control of copying, these behaviours make sense. The way you make money is by selling copies of books; You need readers to buy copies of the book from you rather than make their own, otherwise you won’t make a profit and can’t publish any more books. But then the internet comes along and, even though you still have the same or even more rights under the law, suddenly the control of copies in practice is much harder to enforce. As a publisher trying to run a business, what do you do?

Page one of Sunshinea comic by Jem Yoshioka. Licensed with a Creative Commons BY-SA Copyright Licence. Yoshioka has released many of her comics and images under Creative Commons.

When I am discussing copyright with the publishing students now, I also try to bear in mind my own experience as a reader of books, watcher of television and movies, and listener to music. To take the example of TV: over my lifetime, I have gone from being grateful to have three whole channels to choose from, to demanding instant access to high-quality versions of any TV show from anywhere in the world. I will gladly pay for database subscription services such as Netflix, but where a show isn’t available from these I will download a pirated copy without a second thought. Digital culture has taught me that immediate global access to the best version of whatever I want is mine by right: and this is the marketplace into which publishers must now try to sell their books. Interesting times, to put it mildly.

In 2014, I got a part-time job at Creative Commons Aotearoa New Zealand (CCANZ), and was introduced to some very different, newer ideas about copyright. Creative Commons was invented by US legal academics who wanted to provide standard copyright licences for free that anyone could use in order to grant blanket permissions for others to copy and adapt their work. In other words, it challenges the idea inherent in copyright law that all creators everywhere must necessarily want to reserve all the rights in their work to themselves, and to make money from their works.

Creative Commons Kiwi from Creative Commons Aotearoa NZ on Vimeo.

For example, if you’ve read the Pantograph Punch’s terms of use, you’ll know that this very essay is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike licence. That means that I and The Pantograph Punch have granted permission for anyone to copy, adapt and reuse this essay on the grounds that you:

1. Attribute me as the creator and link back to this page on the Pantograph Punch’s site; 2. Don’t use it for commercial purposes without my express permission (which you will need to get from me separately); and 3. License any work you make out of my work under the same conditions.

Through my work at CCANZ, I have been introduced to the various capital-O Open movements: Open Government, Open Educational Resources, Free Cultural Works, Remix Culture, Free and Open Source Software, Open Access to Research, and Copyleft. ‘Open’ in this sense generally refers works that are not only accessible online and free of charge, but also fully editable by anyone; that is, the copyright in those works has been openly licensed, for example under Creative Commons. One of the Open resources you probably use most often is Wikipedia: its content is free and anyone can edit it. (And now you know what that Creative Commons Attribution-ShareAlike licence is at the bottom of each page.)

One of the things I’ve learned from my work at CCANZ is that what people want even more than money from their work is recognition. I’ve seen people despair as others make a copy of their work without asking; not because they wouldn’t have gladly granted permission, but because their work got passed off as someone else’s. It is for this reason that all six of the Creative Commons copyright licences require Attribution. Leaving aside the legally binding terms of the licences, acknowledging the work of others is just good manners.

The main way I am involved in the Open movement in my CCANZ job is by arguing that if a work has been publicly funded, it should be publicly accessible at no extra charge. This seems to me to be a no-brainer, but you’d be surprised how often taxpayers, public servants and academics are double- or even triple-charged for works (such as research, teaching resources, data sets, reports and so forth) that have already been paid for by the state/taxpayers. For example, there’s an interesting piece by Mark Wilson on the serials crisis in New Zealand academic research publishing where he states, 'in New Zealand research institutions spend about as much on journal subscriptions and database access as the entire Marsden Fund (the only "blue skies" research fund) awards to researchers — more than $NZ50 million annually. The University of Auckland alone spends more than $AU9 million per year on journal access.'

Happily, all of this is starting to change: research institutions across the world are challenging publishers like Elsevier, and, separately, thousands of universities have open research repositories. In New Zealand, you can get Open government data from and all kinds of Open taonga from DigitalNZ (use the ‘usage’ filter), and so far we have two Open Access scholarly publishing houses: Tuwhera at AUT and ePress at Unitec.

I’ve seen people despair… because their work got passed off as someone else’s… Acknowledging the work of others is just good manners.

At its most radical, the Open movement challenges the idea that individually owned intellectual property can even exist at all. Because we are all influenced from birth by the art and culture around us, the argument goes, the creative works that we produce are necessarily part of that historical flow and should be held in common in the public domain for the good of humanity. Nothing is absolutely original and everything is in some sense a remix, or a derivative work. Cast in this light, licensing your work under Creative Commons or waiving your rights altogether becomes – in theory at least – a noble act. The downside is that you don’t get paid: or, more accurately, you have to find other ways to get paid, such as crowdfunding, having a day job, or selling advertising on your site. And, as long as we live in a capitalist society, that is a very significant problem. It’s not just Open creators who need an answer to this quandary. Using the full powers that copyright law grants you by default (aka ‘closed copyright’) is no guarantee of income. Plenty of creators reserve all their rights and still fail to sell enough copies of their work to make a living. In fact, I am increasingly of the opinion that the best way to support the New Zealand arts and creative sector is to introduce a universal basic income.

When I am not at CCANZ I am a freelancer in the New Zealand publishing industry. Generally this very rewarding and fun and I get to work with a range of really intelligent and creative people. However, I have also had to find ways to work productively with those who espouse rigidly ideological views on both sides of the copyright debate. For example, at the 2015 Publishers’ Association of New Zealand conference, Creative Commons was referred to contemptuously as the ‘freetard jihad.’ On the other side, particularly where Open overlaps with the digital technology sector, there’s a vein of smugness that can get quite toxic. It’s a combination of tech utopianism with a point-blank refusal to acknowledge that (a) some people and institutions have very good reasons for keeping their copyright closed; and (b) not everyone has the time, resources or inclination to, for example, learn how to run a new operating system.

The main lesson I have taken from all of this is that it’s okay to have whatever opinion you like about copyright, but it’s not okay to be a dick about it... when two sides of a debate become so isolated and entrenched... everyone loses.

The main lesson I have taken from all of this is that it’s okay to have whatever opinion you like about copyright, but it’s not okay to be a dick about it. More broadly, it has also made me really take to heart the lesson that’s currently being written in fire across the USA: when two sides of a debate become so isolated and entrenched that they are no longer able even to see each other, everyone loses.

My favourite part of my CCANZ job, and something I spend a lot of time doing, is going into workplaces and classrooms to present workshops on copyright and Creative Commons. Through the dozens of talks I’ve given I’ve noticed some definite patterns. The part where people always become anxious and annoyed is when they learn that their employer may well have a claim to own the copyright in a lot of what they make. New Zealand copyright law states that, unless agreed otherwise, an employer owns all copyright in works the employee creates 'in the course of their employment.' Unfortunately the law does not then go on to fully define that phrase; so, as with all things legal, it comes down to argument.

For example, if you are employed as a music teacher (and composing music is part of your job) and you write songs in your spare time, your employer might be able to make a case that they own the copyright and in turn the profits made from selling copies of those songs. Alternatively, if you’re a musician by night and, say, a barista by day, your employer would probably have a harder time arguing that they owned the rights to those songs, unless you were writing them during work hours and/or using the employer's resources.

Tony Fomison's painting No! on High St as part of the Christchurch Art Gallery's Outer Spaces programme (mural by anonymous street copy artist). The photograph Outer Spaces Tony Fomison's No! by Sue Colyer is licensed with a Creative Commons BY-NC-SA Copyright Licence.

Generally, though, I’ve found that people are pleased to discover the powers the law grants them over their own work and irritated that everyone else also has these rights. In other words, we tend to want to reserve our own work to ourselves while simultaneously doing as we please with everyone else’s creations.

I think this is because of, on the one hand, what behavioural economists call ‘loss aversion,’ and what I’ve come to think of as ‘digital entitlement’ on the other. Loss aversion (thank you Wikipedia) describes an irrational preference that seems to be hard-wired into all humans: we would rather avoid losing a thing we have than gaining a thing of equal or greater value. Digital entitlement is, as defined by me, the attitude that being a citizen of the internet grants you the right to any cultural good you fancy for free at any time. (It is of course impossible to talk about digital entitlement without mentioning millennials, and Simon Sinek has some interesting theories about millennials, entitlement, digital technology, and instant gratification.

This instinctively proprietorial way of thinking arises because capitalism has taught us that anything – even ideas – can be property. It also gives rise to what I’ve come to term the dream of monetisation.

I believe also that this instinctively proprietorial way of thinking arises because capitalism has taught us that anything – even ideas – can be property. It also gives rise to what I’ve come to term the dream of monetisation. In my work for CCANZ I’ve seen people cling to their copyright because they’re convinced that one day it will make them a fortune, despite the fact that – at least in terms of content creation – the digital revolution has ushered in an age of abundance. No matter what you have written, composed, photographed, or otherwise created, there is a pretty good chance that someone else has already made something very similar and better – and made it available for free online.

All of these experiences have informed my thinking about how I want to manage my own copyright as I try to develop my career as a book reviewer and writer. Writing that I do for CCANZ in the course of my employment (there’s that phrase again) is available to everybody for free and with a Creative Commons Attribution licence. Writing that I do for magazines and journals tends to be available to readers in print for a subscription fee – and sometimes online for free – with all rights reserved, although it’s often unclear whether the rights are reserved to me or to the magazine. For this I am generally paid a set fee so small that I cannot bear to calculate the hourly rate, and sometimes the editor will suggest that they just send me an extra copy of the print publication in lieu of any money at all. (How the heck we fund high-quality local journalism in the face of digital entitlement, globalisation, and 'alternative facts' is an excellent question; There are some Kiwis coming up with potential answers at Project Freerange, PressPatron and the People’s Commission on Public Broadcasting and Media.) And then there are the times I am asked to write for free.

As a feminist, I know it’s very bad for our reading culture to only be hearing from people rich enough to write for free.

I am pretty conflicted about this. On the one hand, under Open philosophy, I should be glad to contribute my work to the commons for the greater good. On the other hand, under capitalism, I protest the devaluation of my labour and, as a feminist, I know it’s very bad for our reading culture to only be hearing from people rich enough to write for free.

Then again, sometimes I get an idea in my brain so loud and persistent that I have to write it down just to shut it up – and publishing online is so ridiculously easy that I may as well just do it myself if I can’t interest a magazine editor in buying the publication rights. And who’s going to pay to read my Medium account, in amongst the whole of the internet? Absolutely no one. In amongst all of this, there’s also an interesting argument that cash rewards actually disincentivise creativity. (Pantograph Punch: please note that I still want to be paid though.)

I still keep writing, though, and I keep publishing. Partly this is because I just read Fight Like a Girl by Clementine Ford and listened to the On The Rag podcast and now I’m all ‘FUCK THE PATRIARCHY I WILL NEVER BE SILENCED.’ But mostly it’s because one of the upsides, if you like, of digital entitlement is that I believe that what I have to say is worth reading. I believe my words are worth your time, if not, in this particular instance, your money.

Given the choice, then, I generally favour the Creative Commons Attribution-NonCommercial licence for my own work. It seems to me to be a fair balance between making sure people can share my writing and thus hopefully gain me more readers, and calming my inner compulsion towards loss aversion by reserving my commercial rights. You can apply a licence to your own work for free at Creative Commons.

I must admit that I myself am not immune to the dream of monetisation. Even though I know the chances of Benedict Cumberbatch ringing me up and saying he wants to make and sell audio recordings of my book reviews are so close to zero as to make no difference, I still can’t quite bear to let go of the commercial rights to my work. You never know: one day that old cassette mix tape from the nineties might be my ticket outta here.

Feature Image: Bazaar Formations VIII by Meena Kadri. Kadri releases many of her photographs under a Creative Commons BY-NC-ND Copyright licence.

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