Fair participation; why copyright laws don’t work.

Traditional applications of copyright are becoming unworkable in the contemporary media environment.

As our culture moves from a mass media environment into a participatory system of media consumption, traditional applications of copyright have become unworkable (Regner, 2010 p1). Publishers and broadcasters who once controlled the spaces their product was consumed, now face an online environment where media is increasingly utilised in spaces controlled by the audience (Bowery, 2002 ). Because of this trend, copyright law must evolve to remain relevant and ultimately protect the rights of content creators, media producers and corporate entities whose business model is based on the profitable distribution of media. This essay will argue that traditional copyright law fails to account for the economies of sharing (Lessig, 2004 p56) and the anthropological nature of human desire to use the tools available, to communicate and create, as an expression of their culture (Wikstorm, 2010 p2).

Until copyright law differentiates between stealing and sharing, and interprets ‘taking a copy’ as not being the same as ‘making a copy’, existing copyright laws are untenable. The traditional application of copyright considers every act of sharing digital media with another person online, to be the same as shoplifting a physical product off the supermarket shelf (Gallagher, 2003 para.5). In the contemporary media environment this application of the law sees media corporations treating every ‘illegal’ download as one less product they would otherwise sell (Kot, 2009). Lessig (2004, p56) argues that this application of copyright law ignores the emergence of a participatory culture and “the economics of sharing” (Lessig, 2004 p56). Applying traditional copyright law to media disseminated online, overlooks the desire of the audience to participate in its own culture and remediate their consumption (Wikstorm, 2010 p2). Wikstorm (2010 p2) states that: “Participatory culture is a trend pushed from the consumers desire to be creative and social” (Wikstrom, 2010 p2). While current copyright law has been sufficient in maintaining lawful distribution of physical product, so far it has been unsuccessful in governing new media platforms and networked spaces that allow audiences to create their own media and control what they consume.

New media is interactive and networked; a two-way street where communication is disseminated from one network to another or via a ‘many-to-many’ system of distribution (Coldicutt & Streten, 2005 p2) Physical media is a one-way street, the message is disseminated from the top down, or from the publisher to the consumer.  Dissemination in a ‘many-to-many’ system occurs when one network asserts influence over another (Coldicutt & Streten, 2005 p2). The only way an audience can access media disseminated from the top down, is to engage with platforms of which the publisher has control.   Within a networked ‘many-to-many’ environment audiences control the access, not the publishers (Rosen, 2006 p20).  This idea is supported by Jenkins, (2004) who states that; “Consumers are learning how to use these different media technologies to bring the flow of media more fully under their control and to interact with other users” (Jenkins, 2004). Copyright law has lost its hold on media dissemination because publishers no longer control the distrabution of the product the law is trying to protect.

The traditional application of copyright works by monitoring access points that are controlled by the publisher (Moses, 2011 section 6 para.8). Online audiences have found tools that allow them to control access Wikstorm (2010 p2). Copyright laws have been effective for governing spaces that publishers and creators traditionally controlled (Shirky, 2012). But by making use of technologies that have made it easy to copy and share content, the audience has forced a transition from  a ‘top-down’ model of distribution and one-way communication model to a  participatory ‘many-to-many’ network of communication (Shirky, 2012). The modern audience has moved from a ‘read only’ media environment into a participatory media culture, and this transition has seen a dramatic loss of copyright control because of the shift in control of the spaces where media is accessed (Shirky, 2012).  Not only are audiences sharing what they come into contact with, they are also remediating the content they consume.

Using free online tools audiences can now distribute and create new media from licensed works with a quality once only achievable by highly financed production companies (Shirky, 2012).  Media created by the audience from what they have consumed is then redistributed back into the network and exists democratically alongside the original work (Shirky, 2012). Remediation comes from a desire that the audience has to be creative and social with their culture (Wikstorm (2010 p2). Jarvis (as quoted in Rosen, 2006) states that if you; “Give the people control of media, they will use it. The corollary: Don’t give the people control of media, and you will lose. Whenever citizens can exercise control, they will” (Jarvis, as quoted in Rosen, 2006). The recorded music industry was arguably the first major media industry to see the consequences of no longer having full control over the way in which its product was consumed (Kot, 2009 p25). Since the practice of sharing and remediating recorded music for dissemination within online networks became popular, corporate entities whose business model is based on the sale of recorded music, have claimed that sharing or illegal downloading will render the industry unprofitable (Kot, 2009 p25). They claim that as more audiences consume and interact with their product online, and most times without any cost they will have less money to invest back into the industry. (Kot, 2009 p25 & Moses, 2011 par4).

One of the ways that the recorded music industry initially sought to maintain traditional copyright protections and control over the revenue streams created by the sale of their product was by prosecuting internet users who redistributed their product in breach of copyright law (Kot, 2009). The music industry lead action against peer-to-peer network operators and their users, failed to stop the trend, and the number of people sharing music online continued to grow (Sandulli & Martin-Barbero, 2007). In Sandulli and Martin-Barbero’s (2007) article 68 Cents per Song, A Socio-Economic Survey on the Internet, they found that while the threat of prosecution or legal ramification was considered by peer-to-peer users, it has not halted the trend of downloading music illegally, or without payment, and in fact the trend has become common place within the community. Sandulli and Martin-Barbero (2007) also argue that while internet users in Spain enjoyed the freedom of free access to music, they are and were also open to the notion of paying small amounts of money or making ‘micro-payments’ for each song downloaded (Sandulli & Martin-Barbero, 2007). The audience, who were surveyed as part of the report, indicated that they were prepared to pay for the music they now accessed for free if the paid service had comparable libraries and functionality (Sandulli & Martin-Barbero, 2007). This indicates that to be responsive to current usage and audience trends and to offer some protection of revenue to the creators and distributors of music, the application of copyright law needs to ensure that it allows for easy access to media, and facilitates participation by its audience. This analysis also indicates that free product is not the only reason audiences have turned to online networks to consume music. In fact Sandulli and Martin-Barbero’s (2007 p.75) findings show that given a similar library and familiar functionality that facilitates participation and interaction, audiences are happy to play by the rules.

If we accept that access without payment is not the only reason audiences are using online networks to consume media, then we must also accept that copyright law, as it is currently applied, is untenable. If sharing and remediating licensed material is a form of cultural expression the practise should not be considered legal. The growing number of people willing to break the law by participating in networked dissemination of media shows that audiences’ desire control, and if given the tools to participate in their culture, this desire far outweighs any concern about breaching copyright and the possible legal ramifications for audiences that reject such entrenched media protections. Where publishes and creators once controlled spaces of consumption, audiences are now actively involved in the process of dissemination. For copyright to remain relevant and to offer protection to licensed works, as well as provide revenue streams for the producers and traditional disseminators of media, it must take into account this shift in control and the burgeoning nature of audience participation in consuming and remediating media. When these competing demands are better catered to within the regulatory framework, and the rights of consumers as well as the creators of media are considered, then copyright will be better suited to perform its roll of providing a framework for the distribution of licensed media in a rapidly changing technological environment.




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