Wednesday, 30 January 2013
Tuesday, 22 January 2013
The Medium is the Message?
The Medium is the Message?
Truly brilliant essay which explains McLuhan phrase Its the medium is the message and help tie it into my dissertation by focusing our attention on the structural changes in our affairs that are introduced subtly, or over long periods of time. Whenever we create a new innovation - be it an invention or a new idea -
http://individual.utoronto.ca/markfederman/article_mediumisthemessage.htm
What is the Meaning of The Medium is the Message?
by Mark Federman
Chief Strategist
McLuhan Program in Culture and Technology
"In a culture like ours, long accustomed to splitting and dividing all things as a means of control, it is sometimes a bit of a shock to be reminded that, in operational and practical fact, the medium is the message. This is merely to say that the personal and social consequences of any medium - that is, of any extension of ourselves - result from the new scale that is introduced into our affairs by each extension of ourselves, or by any new technology." (McLuhan 7) Thus begins the classic work of Marshall McLuhan, Understanding Media, in which he introduced the world to his enigmatic paradox, "The medium is the message." But what does it mean? How can the medium be its own message?
Of all the Internet searches that end up at the McLuhan Program website and weblog, the search for the meaning of the famous "McLuhan Equation" is the most frequent. Many people presume the conventional meaning for "medium" that refers to the mass-media of communications - radio, television, the press, the Internet. And most apply our conventional understanding of "message" as content or information. Putting the two together allows people to jump to the mistaken conclusion that, somehow, the channel supersedes the content in importance, or that McLuhan was saying that the information content should be ignored as inconsequential. Often people will triumphantly hail that the medium is "no longer the message," or flip it around to proclaim that the "message is the medium," or some other such nonsense. McLuhan meant what he said; unfortunately, his meaning is not at all obvious, and that is where we begin our journey to understanding.
Marshall McLuhan was concerned with the observation that we tend to focus on the obvious. In doing so, we largely miss the structural changes in our affairs that are introduced subtly, or over long periods of time. Whenever we create a new innovation - be it an invention or a new idea - many of its properties are fairly obvious to us. We generally know what it will nominally do, or at least what it is intended to do, and what it might replace. We often know what its advantages and disadvantages might be. But it is also often the case that, after a long period of time and experience with the new innovation, we look backward and realize that there were some effects of which we were entirely unaware at the outset. We sometimes call these effects "unintended consequences," although "unanticipated consequences" might be a more accurate description.
Many of the unanticipated consequences stem from the fact that there are conditions in our society and culture that we just don't take into consideration in our planning. These range from cultural or religious issues and historical precedents, through interplay with existing conditions, to the secondary or tertiary effects in a cascade of interactions. All of these dynamic processes that are entirely non-obvious comprise our ground or context. They all work silently to influence the way in which we interact with one another, and with our society at large. In a word (or four),ground comprises everything we don't notice.
If one thinks about it, there are far more dynamic processes occurring in the ground than comprise the actions of the figures, or things that we do notice. But when something changes, it often becomes noticeable. And noticing change is the key.
McLuhan tells us that a "message" is, "the change of scale or pace or pattern" that a new invention or innovation "introduces into human affairs." (McLuhan 8) Note that it is not the content or use of the innovation, but the change in inter-personal dynamics that the innovation brings with it. Thus, the message of theatrical production is not the musical or the play being produced, but perhaps the change in tourism that the production may encourage. In the case of a specifictheatrical production, its message may be a change in attitude or action on the part of the audience that results from the medium of the play itself, which is quite distinct from the medium of theatrical production in general. Similarly, the message of a newscast are not the news stories themselves, but a change in the public attitude towards crime, or the creation of a climate of fear. A McLuhan message always tells us to look beyond the obvious and seek the non-obvious changes or effects that are enabled, enhanced, accelerated or extended by the new thing.
McLuhan defines medium for us as well. Right at the beginning of Understanding Media, he tells us that a medium is "any extension of ourselves." Classically, he suggests that a hammer extends our arm and that the wheel extends our legs and feet. Each enables us to do more than our bodies could do on their own. Similarly, the medium of language extends our thoughts from within our mind out to others. Indeed, since our thoughts are the result of our individual sensory experience, speech is an "outering" of our senses - we could consider it as a form of reversing senses - whereas usually our senses bring the world into our minds, speech takes our sensorially-shaped minds out to the world.
But McLuhan always thought of a medium in the sense of a growing medium, like the fertile potting soil into which a seed is planted, or the agar in a Petri dish. In other words, a medium - this extension of our body or senses or mind - is anything from which a change emerges. And since some sort of change emerges from everything we conceive or create, all of our inventions, innovations, ideas and ideals are McLuhan media.
Thus we have the meaning of "the medium is the message:" We can know the nature and characteristics of anything we conceive or create (medium) by virtue of the changes - often unnoticed and non-obvious changes - that they effect (message.) McLuhan warns us that we are often distracted by the content of a medium (which, in almost all cases, is another distinct medium in itself.) He writes, "it is only too typical that the "content" of any medium blinds us to the character of the medium." (McLuhan 9) And it is the character of the medium that is its potency or effect - its message. In other words, "This is merely to say that the personal and social consequences of any medium - that is, of any extension of ourselves - result from the new scale that is introduced into our affairs by each extension of ourselves, or by any new technology."
Why is this understanding of "the medium is the message" particularly useful? We tend to notice changes - even slight changes (that unfortunately we often tend to discount in significance.) "The medium is the message" tells us that noticing change in our societal or cultural ground conditions indicates the presence of a new message, that is, the effects of a new medium. With this early warning, we can set out to characterize and identify the new medium before it becomes obvious to everyone - a process that often takes years or even decades. And if we discover that the new medium brings along effects that might be detrimental to our society or culture, we have the opportunity to influence the development and evolution of the new innovation before the effects becomes pervasive. As McLuhan reminds us, "Control over change would seem to consist in moving not with it but ahead of it. Anticipation gives the power to deflect and control force." (McLuhan 199)
Reference
McLuhan, Marshall. Understanding Media: The Extensions of Man. New York: McGraw Hill, 1964.
Download a pdf version of this essay.
Interested in reading more Marshall McLuhan, but don't know where to start? Try On Reading McLuhan (pdf).
Citation:
Federman, M. (2004, July 23). What is the Meaning of the Medium is the Message? Retrieved from http://individual.utoronto.ca/markfederman/article_mediumisthemessage.htm .
Notice to Students and Teachers:This essay is licensed under a Creative Commons by-nc-sa license. This means that you are allowed to use this essay, in whole or in part, for almost any purpose, provided you:
Truly brilliant essay which explains McLuhan phrase Its the medium is the message and help tie it into my dissertation by focusing our attention on the structural changes in our affairs that are introduced subtly, or over long periods of time. Whenever we create a new innovation - be it an invention or a new idea -
http://individual.utoronto.ca/markfederman/article_mediumisthemessage.htm
What is the Meaning of The Medium is the Message?
by Mark Federman
Chief Strategist
McLuhan Program in Culture and Technology
"In a culture like ours, long accustomed to splitting and dividing all things as a means of control, it is sometimes a bit of a shock to be reminded that, in operational and practical fact, the medium is the message. This is merely to say that the personal and social consequences of any medium - that is, of any extension of ourselves - result from the new scale that is introduced into our affairs by each extension of ourselves, or by any new technology." (McLuhan 7) Thus begins the classic work of Marshall McLuhan, Understanding Media, in which he introduced the world to his enigmatic paradox, "The medium is the message." But what does it mean? How can the medium be its own message?
Of all the Internet searches that end up at the McLuhan Program website and weblog, the search for the meaning of the famous "McLuhan Equation" is the most frequent. Many people presume the conventional meaning for "medium" that refers to the mass-media of communications - radio, television, the press, the Internet. And most apply our conventional understanding of "message" as content or information. Putting the two together allows people to jump to the mistaken conclusion that, somehow, the channel supersedes the content in importance, or that McLuhan was saying that the information content should be ignored as inconsequential. Often people will triumphantly hail that the medium is "no longer the message," or flip it around to proclaim that the "message is the medium," or some other such nonsense. McLuhan meant what he said; unfortunately, his meaning is not at all obvious, and that is where we begin our journey to understanding.
Marshall McLuhan was concerned with the observation that we tend to focus on the obvious. In doing so, we largely miss the structural changes in our affairs that are introduced subtly, or over long periods of time. Whenever we create a new innovation - be it an invention or a new idea - many of its properties are fairly obvious to us. We generally know what it will nominally do, or at least what it is intended to do, and what it might replace. We often know what its advantages and disadvantages might be. But it is also often the case that, after a long period of time and experience with the new innovation, we look backward and realize that there were some effects of which we were entirely unaware at the outset. We sometimes call these effects "unintended consequences," although "unanticipated consequences" might be a more accurate description.
Many of the unanticipated consequences stem from the fact that there are conditions in our society and culture that we just don't take into consideration in our planning. These range from cultural or religious issues and historical precedents, through interplay with existing conditions, to the secondary or tertiary effects in a cascade of interactions. All of these dynamic processes that are entirely non-obvious comprise our ground or context. They all work silently to influence the way in which we interact with one another, and with our society at large. In a word (or four),ground comprises everything we don't notice.
If one thinks about it, there are far more dynamic processes occurring in the ground than comprise the actions of the figures, or things that we do notice. But when something changes, it often becomes noticeable. And noticing change is the key.
McLuhan tells us that a "message" is, "the change of scale or pace or pattern" that a new invention or innovation "introduces into human affairs." (McLuhan 8) Note that it is not the content or use of the innovation, but the change in inter-personal dynamics that the innovation brings with it. Thus, the message of theatrical production is not the musical or the play being produced, but perhaps the change in tourism that the production may encourage. In the case of a specifictheatrical production, its message may be a change in attitude or action on the part of the audience that results from the medium of the play itself, which is quite distinct from the medium of theatrical production in general. Similarly, the message of a newscast are not the news stories themselves, but a change in the public attitude towards crime, or the creation of a climate of fear. A McLuhan message always tells us to look beyond the obvious and seek the non-obvious changes or effects that are enabled, enhanced, accelerated or extended by the new thing.
McLuhan defines medium for us as well. Right at the beginning of Understanding Media, he tells us that a medium is "any extension of ourselves." Classically, he suggests that a hammer extends our arm and that the wheel extends our legs and feet. Each enables us to do more than our bodies could do on their own. Similarly, the medium of language extends our thoughts from within our mind out to others. Indeed, since our thoughts are the result of our individual sensory experience, speech is an "outering" of our senses - we could consider it as a form of reversing senses - whereas usually our senses bring the world into our minds, speech takes our sensorially-shaped minds out to the world.
But McLuhan always thought of a medium in the sense of a growing medium, like the fertile potting soil into which a seed is planted, or the agar in a Petri dish. In other words, a medium - this extension of our body or senses or mind - is anything from which a change emerges. And since some sort of change emerges from everything we conceive or create, all of our inventions, innovations, ideas and ideals are McLuhan media.
Thus we have the meaning of "the medium is the message:" We can know the nature and characteristics of anything we conceive or create (medium) by virtue of the changes - often unnoticed and non-obvious changes - that they effect (message.) McLuhan warns us that we are often distracted by the content of a medium (which, in almost all cases, is another distinct medium in itself.) He writes, "it is only too typical that the "content" of any medium blinds us to the character of the medium." (McLuhan 9) And it is the character of the medium that is its potency or effect - its message. In other words, "This is merely to say that the personal and social consequences of any medium - that is, of any extension of ourselves - result from the new scale that is introduced into our affairs by each extension of ourselves, or by any new technology."
Why is this understanding of "the medium is the message" particularly useful? We tend to notice changes - even slight changes (that unfortunately we often tend to discount in significance.) "The medium is the message" tells us that noticing change in our societal or cultural ground conditions indicates the presence of a new message, that is, the effects of a new medium. With this early warning, we can set out to characterize and identify the new medium before it becomes obvious to everyone - a process that often takes years or even decades. And if we discover that the new medium brings along effects that might be detrimental to our society or culture, we have the opportunity to influence the development and evolution of the new innovation before the effects becomes pervasive. As McLuhan reminds us, "Control over change would seem to consist in moving not with it but ahead of it. Anticipation gives the power to deflect and control force." (McLuhan 199)
Reference
McLuhan, Marshall. Understanding Media: The Extensions of Man. New York: McGraw Hill, 1964.
Download a pdf version of this essay.
Interested in reading more Marshall McLuhan, but don't know where to start? Try On Reading McLuhan (pdf).
Citation:
Federman, M. (2004, July 23). What is the Meaning of the Medium is the Message? Retrieved
Notice to Students and Teachers:This essay is licensed under a Creative Commons by-nc-sa license. This means that you are allowed to use this essay, in whole or in part, for almost any purpose, provided you:
- Give attribution to the author, Mark Federman (by);
- Do not use the essay for any commercial purpose (i.e. if you're going to make money from it, you need to obtain another, different license from the author) (nc);
- Share alike, that is, license any derived work that you create from this essay under the same by-nc-sa terms (sa).
"It's not the technology, it's the behaviour, stupid."
Just stumbled across this article whilst searching for more on the idea that new media of themselves demand change. This blog gives me an incite into this idea that I did not have before. New media are not simply new ways of producing /transferring information , they offer the consumer new ways of doing something encourage for what ever reason new behaviours and it is this that we see the demand for changes in copyright law to respond to these new technology. Old law old ways of behaving , new laws to regulate the new ways of behaving encouraged by new media and digital convergence.
Each generation seesaw its culture those values and practices with which it grew up, it hallowed traditions are those it learned in childhood. 96 remix lawrence Lessig quotes Ithiel de Sola Pool. Copyright as it stands is based on the hallowed traditions of the digital immigrant , values and practices learned in their pre digital youth , attempting to manage and control consumers who are accepting the offer of new ways of behaviour offered by the new media's and digital convergence.
http://www.fastcompany.com/1844177/innovation-isnt-about-new-products-its-about-changing-behavior
Innovation Isn't About New Products, It's About Changing Behaviour
Companies are not so much in the business of what we buy, but the way we act.
Behavior is the unknowable variable in every innovation, and it is the variable that most determines the opportunity a new business model has to evolve and take advantage of the new behavior.
It's The Behavior, Stupid
We are at the tail end of an era that has focused almost entirely on the innovation of products and services, and we are at the beginning of a new era that focuses on the innovation of what I like to call "behavioral business models." These models go beyond asking how we can make what we make better and cheaper, or asking how we can do what we do faster. They are about asking why we do what we do to begin with. And the question of why is almost always tied to the question of how markets behave.
When Apple created iTunes it didn't just create a faster, cheaper, better digital format for music, it altered the very nature of the relationship between music and people. eBay did not just create a platform for auctions, it changed the way we look at the experience of shopping and how community plays a role in the experience. When GM created OnStar it didn't just make getting from point A to point B faster, it changed the relationship between auto manufacturer and buyer, and fundamentally altered the reason we buy a car.
Google did not invent Internet search--there were nearly fifty software vendors delivering Internet-based search, some for as long as twenty-five years before Google!--but Google changed the way we interact with the Internet and how our behaviors are tracked and analyzed, allowing advertisers to find and pay for buyers in a way that was inconceivable before.
All of these are examples of innovations in behavior that led to entirely new business models. Yet we continue to be obsessed with technology innovation. To paraphrase James Carville's now-popular political pun, "It's not the technology, it's the behavior, stupid."
The greatest shift in the way we view innovation will be that the innovation surrounding behavior will need to be as continuous a process as the innovation of products has been over the last hundred years. The greatest shift in the way we view innovation will be that the innovation surrounding behavior will need to be as continuous a process as the innovation of products has been over the last hundred years. It's here that the greatest payback and value of innovation in the cloud has yet to be fully understood and exploited.
Unfortunately, far too many of us are stuck in an old model of innovation--just as surely as we are stuck in line waiting to take part in the new one.
Innovative organizations are those that can depart quickly from their planned trajectory and jump onto a new opportunity; they're organizations that recognize and take an active role in introducing new behaviors that were unknown. It is ultimately the speed with which companies do this and the willingness to experiment in new and unanticipated areas that determines the extent to which their innovation is "open."
This changes the idea of open innovation to mean more than going outside the company to find new ideas from experts; it means developing a collaborative innovation model that intimately binds the market to the process of innovation, in lockstep. That does not suggest that companies are held hostage by their customers, who only know to ask for incremental innovation in what they have already experienced.
Instead, it means that companies need to push the envelope of innovation based on observations of what a market's behaviors are and then work closely with the market to identify how innovations can add value in unexpected ways.
Cloud-based Dialogue
The cloud is the ultimate open system for this sort of innovation, one that is influenced by factors that are both unknown and unknowable. In other words, no amount of time, information, focus groups, or traditional market research will increase the certainty with which we can innovate. The most important thing to do in the cloud is to realize that innovation must involve openness and disruption. Then we have to minimize the risk and uncertainty so that we increase the opportunity for finding novel approaches to solving problems and expand the ability to quickly scale, so we can address these problems once a resonant nerve is struck.
This is precisely the type of innovation that companies like Apple, Google, Facebook, and Netflix have enabled by constantly challenging their customers to adapt to new offerings. For Facebook, this creates a fairly consistent market tension. Whenever Facebook delivers a new feature, such as its Timeline capability, there is an almost immediate market backlash, which is followed by a lull in the market's pushback and an eventual acceptance and integration of the new capability. This dance is repeated on a regular basis. While it does create some degree of tension, the result is a steady disruptive force that provides both Facebook and its users with more than just a path to sustained innovation; it also provides a periodic jump to a new type of behavior that would otherwise be seen by most companies as incredibly risky. The benefit for Facebook is that it has a built-in cloud that allows any innovation to be immediately presented to its customers.
This sort of dialogue between the marketplace and its providers has never been as pronounced and 
apparently dysfunctional as it is in the cloud, where voices are amplified to an unprecedented magnitude. But that increase in the decibel level of market pushback can be a death knell for innovation. The cloud is not inherently for or against innovation, any more than the Internet is. Both are simply new platforms for conversations that have the power to drive both positive and negative momentum. And it is this point that companies need to pay especially close attention to.
apparently dysfunctional as it is in the cloud, where voices are amplified to an unprecedented magnitude. But that increase in the decibel level of market pushback can be a death knell for innovation. The cloud is not inherently for or against innovation, any more than the Internet is. Both are simply new platforms for conversations that have the power to drive both positive and negative momentum. And it is this point that companies need to pay especially close attention to.
Innovation is always a tense conversation between affected parties. That will not change and it should not change. It is the basic mechanism by which we align ideas with the value they can produce.
Reprinted by permission of Bilbiomotion. Excerpted from Cloud Surfing: A New Way to Think About Risk, Innovation, Scale and Success, copyright 2012 Thomas Koulopoulos. All rights reserved.
Monday, 21 January 2013
Authors’ Rights as a Limit to Copyright Control Leslie Kim Treiger-Bar-Am
While copyright is intended to support the production of creative works, it can be used to restrict that production where the creative works depend upon previous works.
Embracing authors’ rights also can protect creators of so-called ‘secondary’ works.
Current critics of copyright often avoid using the term ‘authors’ with respect to the users of copyright works. These creators are labeled ‘users’, or simply ‘the defendants’. Lawrence Lessig prefers the terms ‘re-mixers’, or ‘re-coders.’ Creators who recode or mix past works, and use those past works in their own creative productivity, are often threatened by authors and exploiters of the copyright of the primary works. Yet re-coders are themselves authors. Giving full recognition to authors’ rights should deepen the protection that must be given to re-coders for their expression.
The Authors’ Rights Tradition
The Anglo-US copyright model is often framed as being about creating incentives for creative production. The idea is that where creators and producers have the incentive of financial rewards, they will continue to produce. The creation and communication of works will increase. Given such incentives to disseminate works, authors and media entrepreneurs are thought to be more likely to maximise the information available to society.
The Statute of Anne in 1709 was titled: ‘An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or Purchasers of such Copies’.1
Under the US Constitution copyright bears the same purpose, to promote the Progress of Science and useful Arts.2
United States Constitution Art 1 sect 8 cl 8 (‘The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’)
Authors’ rights can be used by an author in a conflict with a copyright owner. Even once copyright passes out of the author’s hands, the author retains control under moral rights. For example the integrity right allows an author to prevent the distortion of her work. The author can stop a copyright holder or other owner of a work from using it in distortive ways. This right could give protection against copyright holders who use copyright in abusive ways, for instance by commercializing a work against the wishes of its author.
The droit d’auteur tradition in Europe is often viewed with suspicion in this way in the UK and US. It is seen as reflecting an old, burdensome tradition. It would double the actors who can restrict the use of prior works, namely copyright owners but also primary authors even once they have sold the copyright.
An example of authors’ rights being expansive may arguably be seen in the successful restriction of creative reinterpretations of a work of art. For example a French court blocked the performance of the play Waiting for Godot by women, given Samuel Beckett’s instructions that this not be done.TGI Paris, 3e ch, Oct 15, 1992.
Authors’ rights protect authors. Who may be called an author? It must be recalled that the creator, re-mixer, re-coder is also an author. Those creators are rightly labeled so. The term ‘author’ can, and should, be attributed to all such authors. Authors’ rights can, and should, protect them.
Even so-called primary works are remixes of earlier works. The ‘primary author’ is often a user, and in fact a secondary user at some level. Even with a touch of newness in the creation, much will have been influenced by what went before. The reverse is true as well: the user, or so-called secondary author, is a primary author as well. Adaptations are a central means of creativity in all of the art forms. We can see this in each of the art forms: in literature, music, visual arts, and also digital works.
Certainly a court should not be asked to determine the meaning of a work of art. Yet the author’s intent is central. While there is intent to ‘copy’, there is also intent to transform. US law indeed looks to the purpose and character of a use, and UK law to the object and Copyright poses obstacles to creativity when works refer to previous works.
If the images of a former and a later work are substantially similar, there may well be a claim of copyright infringement. If the images in the two works are closely enough related but with distortive differences, there may be a claim of moral rights violation.
A type of creation involving the ‘remixing’ of earlier works that the law is very familiar with is parody.
How can Transforming Authors be Protected?
A tradition of authors’ rights can allow for protection of rights of authors who build on the work of earlier authors. European droit d’auteur doctrines entail certain protections of transformative use.
The EC Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright, allows for the protection of caricature, parody or pastiche, against copyright claims (Article 5(3)(k)).
In the UK, fair dealing enumerates certain situations in which copying does not constitute copyright infringement, for example for the purposes of criticism and review, and news reporting.Copyright, Designs and Patents Act 1988 s.30.
The US copyright statute by its very terms is restrictive: prohibited uses of a copyright work which violate the copyright holder’s exclusive right to ‘derivative’ uses of it, are defined to include uses in which the work is ‘transformed’. Fair use is, however, a defence. Fair use offers protection to transformative works, as the US Supreme Court stated in Campbell v Acuff-Rose Music Inc.
In the US, statutory law enumerates factors for courts to consider to determine if the copying may be defended as fair use: the purpose and character of the allegedly infringing work (including whether it is transformative); nature of the copyrighted work; amount and substantiality of the portion used; and the effect of the market value on the original.
The factors are similar to those considered under fair dealing in UK law: ‘(1) whether the alleged fair dealing is in commercial competition with the owner's exploitation of the work, (2) whether the work has already been published or otherwise exposed to the public and (3) the amount and importance of the work which has been taken.’
What is really interesting is that when dealing with this area, oct consider breach of copyright to take place once the work is complete , but really do not consider the situation when the re-mixing author - active consumer is actually included in the creation of the work of art in question? DO i infringe copyright when I have been asked by the author creating the work to create a storyline or character that becomes part of the finished work!
Key to transformative work seems to be changing the original , Within the transmedial space the transformative work becomes part of the origina
“Authors’ Rights as a Limit to Copyright Control”, in Fiona Macmillan (ed.), New Directions in Copyright vol. 6 (Edward Elgar 2007)
While copyright is intended to support the production of creative works, it can be used to restrict that production where the creative works depend upon previous works.
Embracing authors’ rights also can protect creators of so-called ‘secondary’ works.
Current critics of copyright often avoid using the term ‘authors’ with respect to the users of copyright works. These creators are labeled ‘users’, or simply ‘the defendants’. Lawrence Lessig prefers the terms ‘re-mixers’, or ‘re-coders.’ Creators who recode or mix past works, and use those past works in their own creative productivity, are often threatened by authors and exploiters of the copyright of the primary works. Yet re-coders are themselves authors. Giving full recognition to authors’ rights should deepen the protection that must be given to re-coders for their expression.
The Authors’ Rights Tradition
The Anglo-US copyright model is often framed as being about creating incentives for creative production. The idea is that where creators and producers have the incentive of financial rewards, they will continue to produce. The creation and communication of works will increase. Given such incentives to disseminate works, authors and media entrepreneurs are thought to be more likely to maximise the information available to society.
The Statute of Anne in 1709 was titled: ‘An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or Purchasers of such Copies’.1
Under the US Constitution copyright bears the same purpose, to promote the Progress of Science and useful Arts.2
United States Constitution Art 1 sect 8 cl 8 (‘The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’)
Authors’ rights can be used by an author in a conflict with a copyright owner. Even once copyright passes out of the author’s hands, the author retains control under moral rights. For example the integrity right allows an author to prevent the distortion of her work. The author can stop a copyright holder or other owner of a work from using it in distortive ways. This right could give protection against copyright holders who use copyright in abusive ways, for instance by commercializing a work against the wishes of its author.
The droit d’auteur tradition in Europe is often viewed with suspicion in this way in the UK and US. It is seen as reflecting an old, burdensome tradition. It would double the actors who can restrict the use of prior works, namely copyright owners but also primary authors even once they have sold the copyright.
An example of authors’ rights being expansive may arguably be seen in the successful restriction of creative reinterpretations of a work of art. For example a French court blocked the performance of the play Waiting for Godot by women, given Samuel Beckett’s instructions that this not be done.TGI Paris, 3e ch, Oct 15, 1992.
Authors’ rights protect authors. Who may be called an author? It must be recalled that the creator, re-mixer, re-coder is also an author. Those creators are rightly labeled so. The term ‘author’ can, and should, be attributed to all such authors. Authors’ rights can, and should, protect them.
Even so-called primary works are remixes of earlier works. The ‘primary author’ is often a user, and in fact a secondary user at some level. Even with a touch of newness in the creation, much will have been influenced by what went before. The reverse is true as well: the user, or so-called secondary author, is a primary author as well. Adaptations are a central means of creativity in all of the art forms. We can see this in each of the art forms: in literature, music, visual arts, and also digital works.
Certainly a court should not be asked to determine the meaning of a work of art. Yet the author’s intent is central. While there is intent to ‘copy’, there is also intent to transform. US law indeed looks to the purpose and character of a use, and UK law to the object and Copyright poses obstacles to creativity when works refer to previous works.
If the images of a former and a later work are substantially similar, there may well be a claim of copyright infringement. If the images in the two works are closely enough related but with distortive differences, there may be a claim of moral rights violation.
A type of creation involving the ‘remixing’ of earlier works that the law is very familiar with is parody.
How can Transforming Authors be Protected?
A tradition of authors’ rights can allow for protection of rights of authors who build on the work of earlier authors. European droit d’auteur doctrines entail certain protections of transformative use.
The EC Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright, allows for the protection of caricature, parody or pastiche, against copyright claims (Article 5(3)(k)).
In the UK, fair dealing enumerates certain situations in which copying does not constitute copyright infringement, for example for the purposes of criticism and review, and news reporting.Copyright, Designs and Patents Act 1988 s.30.
The US copyright statute by its very terms is restrictive: prohibited uses of a copyright work which violate the copyright holder’s exclusive right to ‘derivative’ uses of it, are defined to include uses in which the work is ‘transformed’. Fair use is, however, a defence. Fair use offers protection to transformative works, as the US Supreme Court stated in Campbell v Acuff-Rose Music Inc.
In the US, statutory law enumerates factors for courts to consider to determine if the copying may be defended as fair use: the purpose and character of the allegedly infringing work (including whether it is transformative); nature of the copyrighted work; amount and substantiality of the portion used; and the effect of the market value on the original.
The factors are similar to those considered under fair dealing in UK law: ‘(1) whether the alleged fair dealing is in commercial competition with the owner's exploitation of the work, (2) whether the work has already been published or otherwise exposed to the public and (3) the amount and importance of the work which has been taken.’
What is really interesting is that when dealing with this area, oct consider breach of copyright to take place once the work is complete , but really do not consider the situation when the re-mixing author - active consumer is actually included in the creation of the work of art in question? DO i infringe copyright when I have been asked by the author creating the work to create a storyline or character that becomes part of the finished work!
Key to transformative work seems to be changing the original , Within the transmedial space the transformative work becomes part of the origina
Saturday, 19 January 2013
Following on from recent discussions with my supervisor, Samuel Brooks I have again looked at Prensky's source material on digital immigrants and digital natives to see whether what he is actually saying is that yes, digital immigrants, and digital natives think differently; and yes, that changes the way that they understand the world are in; but more fundamentally, that the type of stimulus that the digital immigrant has grown up with; as of its self demanded a change in the consumer's mindset. And that is this change, that sits, at the heart of the clash between digital immigrant and digital natives.
Looking at my dissertation, what I'm starting to see a new idea it's not simply Transmedial narrative that and the active consumer that is at the heart of the digital immigrant native battle within the law courts around copyright ownership. But for the new media forms of themselves, because of the way they are used demand change and effect change that is the tension between the digital natives and a digital immigrant.
When it comes to this idea of intellectual property and property rights. Within this new Transmedial space. What's really being said, yes, there needs to be change. And yes, Transmedial narrative and it is the use of the active consumer in the creation of the finished artistic piece creates challenges for copyright; But that there is a deeper and more fundamental issue at play here and that is that the new media technologies demand a new response in those who are using them and create a necessity for new regulations and business models. This is not a new phenomenon. This technology led demand for change can be seen time after time within the development of copyright over the last 400 years.
The example I already have of this within my reading is really looking at that movement from a read/ write artistic culture of the 19th century, where effectively, if you want to enjoy a piece of music you had to play yourself or find somebody who could (because there was no way of recording in capturing a performance) to the read only culture of consumer consumption created in the 20th and 21st century. In the read only culture the professional artist creates creates the piece of work and the audience passively consumes it.
Digital natives, digital immigrants part to
notes on Mark Prensky second essay
do they think differently.
Prensky begins this essay by pointing out that digital natives have been socialised in ways fastly different than those of their parents and digital immigrants. Before he or she leaves college with digital native will have on average, played 10,000 hours of video games, received over 200,000 e-mails and instant messages, spent over 10,000 hours talking on a digital phone, watched over 20,000 hours of television, mostly of the high-speed MTV quick editing by, seen over 500,000 commercials. But read that most only 5000 hours of books.
Neuro plasticity -Prensky points at research in neurobiology, which shows that stimulation of various kinds actually changes brain structure and affect the way people think. The brain constantly reorganise itself. Throughout our childhood and adult lives. This ability to reorganise is known as neuro plasticity.
Social psychologists have shown that people who grow up in different cultures do not. Just think about different things, they actually think differently. The environment and culture in which people are raised and effects, and even deep determines many of their thought processes.
The brain and thought patterns don't change overnight, a key finding within this area of plasticity research has been done. Brain reorganisation takes place only when the animal pays attention to the centre of input and the task at hand. It requires hard work, focused attention, and it would seem that the students to gain this kind of reorganisation into spent 100 minutes a day. Five days a week for 5 to 10 weeks to create the desired change. Prensky suggests that that's exactly what kids have been doing since the 1970s, playing computer games and watching fast cutting television.
This retraining will be human brain to perform in a new way is not new. Since reading became accepted as a basic requirement of life. Man has struggled to retraining sprang to read. Reading has a different neurology, are things that are hardwired into the brain like spoken language. One of the main focuses of schools. Last couple hundred years has been retraining our speech oriented brains to be able to read again the training is involved several hours a day. Five days a week, up sharply focused attention. I
I can attest to this myself. Having struggled terribly to read as a child between five and 10 years old, and then discovering comics and finding my reading age, shot up from 7 to an average reading of 12 and then moved on from there.
Prensky suggest just as we've now more or less retrained and brains to take on reading. We retrained and they can television, and nothing to change again. And now our children are furiously training their brains to cope with these new inputs
Remediation:
http://www.ebook3000.com/Remediation--Understanding-New-Media_112289.html
Remediation: Understanding New Media By J. David Bolter, Richard Grusin
Publisher: MIT Press 1999 | 295 Pages
Media critics remain captivated by the modernist myth of the new: they assume that digital technologies such as the World Wide Web, virtual reality, and computer graphics must divorce themselves from earlier media for a new set of aesthetic and cultural principles. In this richly illustrated study, Jay David Bolter and Richard Grusin offer a theory of mediation for our digital age that challenges this assumption. They argue that new visual media achieve their cultural significance precisely by paying homage to, rivaling, and refashioning such earlier media as perspective painting, photography, film, and television. They call this process of refashioning "remediation," and they note that earlier media have also refashioned one another: photography remediated painting, film remediated stage production and photography, and television remediated film, vaudeville, and radio.
Looking at my dissertation, what I'm starting to see a new idea it's not simply Transmedial narrative that and the active consumer that is at the heart of the digital immigrant native battle within the law courts around copyright ownership. But for the new media forms of themselves, because of the way they are used demand change and effect change that is the tension between the digital natives and a digital immigrant.
When it comes to this idea of intellectual property and property rights. Within this new Transmedial space. What's really being said, yes, there needs to be change. And yes, Transmedial narrative and it is the use of the active consumer in the creation of the finished artistic piece creates challenges for copyright; But that there is a deeper and more fundamental issue at play here and that is that the new media technologies demand a new response in those who are using them and create a necessity for new regulations and business models. This is not a new phenomenon. This technology led demand for change can be seen time after time within the development of copyright over the last 400 years.
The example I already have of this within my reading is really looking at that movement from a read/ write artistic culture of the 19th century, where effectively, if you want to enjoy a piece of music you had to play yourself or find somebody who could (because there was no way of recording in capturing a performance) to the read only culture of consumer consumption created in the 20th and 21st century. In the read only culture the professional artist creates creates the piece of work and the audience passively consumes it.
Digital natives, digital immigrants part to
notes on Mark Prensky second essay
do they think differently.
Prensky begins this essay by pointing out that digital natives have been socialised in ways fastly different than those of their parents and digital immigrants. Before he or she leaves college with digital native will have on average, played 10,000 hours of video games, received over 200,000 e-mails and instant messages, spent over 10,000 hours talking on a digital phone, watched over 20,000 hours of television, mostly of the high-speed MTV quick editing by, seen over 500,000 commercials. But read that most only 5000 hours of books.
Neuro plasticity -Prensky points at research in neurobiology, which shows that stimulation of various kinds actually changes brain structure and affect the way people think. The brain constantly reorganise itself. Throughout our childhood and adult lives. This ability to reorganise is known as neuro plasticity.
Social psychologists have shown that people who grow up in different cultures do not. Just think about different things, they actually think differently. The environment and culture in which people are raised and effects, and even deep determines many of their thought processes.
The brain and thought patterns don't change overnight, a key finding within this area of plasticity research has been done. Brain reorganisation takes place only when the animal pays attention to the centre of input and the task at hand. It requires hard work, focused attention, and it would seem that the students to gain this kind of reorganisation into spent 100 minutes a day. Five days a week for 5 to 10 weeks to create the desired change. Prensky suggests that that's exactly what kids have been doing since the 1970s, playing computer games and watching fast cutting television.
This retraining will be human brain to perform in a new way is not new. Since reading became accepted as a basic requirement of life. Man has struggled to retraining sprang to read. Reading has a different neurology, are things that are hardwired into the brain like spoken language. One of the main focuses of schools. Last couple hundred years has been retraining our speech oriented brains to be able to read again the training is involved several hours a day. Five days a week, up sharply focused attention. I
I can attest to this myself. Having struggled terribly to read as a child between five and 10 years old, and then discovering comics and finding my reading age, shot up from 7 to an average reading of 12 and then moved on from there.
Prensky suggest just as we've now more or less retrained and brains to take on reading. We retrained and they can television, and nothing to change again. And now our children are furiously training their brains to cope with these new inputs
Remediation:
http://www.ebook3000.com/Remediation--Understanding-New-Media_112289.html
Remediation: Understanding New Media By J. David Bolter, Richard Grusin
Publisher: MIT Press 1999 | 295 Pages
Media critics remain captivated by the modernist myth of the new: they assume that digital technologies such as the World Wide Web, virtual reality, and computer graphics must divorce themselves from earlier media for a new set of aesthetic and cultural principles. In this richly illustrated study, Jay David Bolter and Richard Grusin offer a theory of mediation for our digital age that challenges this assumption. They argue that new visual media achieve their cultural significance precisely by paying homage to, rivaling, and refashioning such earlier media as perspective painting, photography, film, and television. They call this process of refashioning "remediation," and they note that earlier media have also refashioned one another: photography remediated painting, film remediated stage production and photography, and television remediated film, vaudeville, and radio.
Tuesday, 8 January 2013
Fan Fiction, Plagiarism, and Copyright, by Jane Litte
I have copied a section of this because I feel that it provides a very interesting overview of the legal a situation as regards fanfiction , ( at least in the USA). It raises in my mind the impact that the invitation to respond to the authors creative out put which sits at the heart of to transmedial narrative impacts on the tests for infringement as out lined below. Part of that test would seem to be the detrimental effect that the infringing work has on the commercial success of the original work. WIthin the transmedial setting the impact is not detrimental , at best it may be seen as an integral part of the finished work , and at worst I would suggest it can be seen as supporting the commercial strength of the franchise.
http://www.teleread.com/copy-right/fan-fiction-plagiarism-and-copyright-by-jane-litte/More on Derivative/Transformative Works
Fan Fiction, Plagiarism, and Copyright, by Jane Litte
March 19, 2012 | 8:20 am
In most cases, the closer the derivative work is to the original, the more likely it is copyright infringement. Many fan fiction and youtube creations contain a disclaimer that infringement is not intended. However, copyright infringement does not depend upon intent. George Harrison was sued for his 1969 song “My Sweet Lord.” In 1971, Bright Tunes filed a copyright infringement lawsuit alleging that it had been a copy of “He’s So Fine.” During testimony in the trial, Harrison said that he wasn’t thinking of “He’s So Fine” when he wrote the song. During the trial, the songs were compared, word for word, note for note, and the jury found Harrison guilty of infringement and was ordered for over $1.6 million in damages.
In the 1994 case of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), 2 Live Crew was sued for a parody of the Roy Orbison sung song “Pretty Woman.” The Acuff Rose case turns solely on a finding that 2 Live Crew’s song was a parody but it’s instructive because it sets out some of the elements in measuring fair use protection of derivative works. In evaluating whether derivative works are infringing, the methodology employed should be as follows:
Look to the nature and objects of the selections made, the quantity and value of the materials sued, and the degree in which the use may prejudice the sale, or diminish the profits or supersede the objects, of the original work.
Id. at 576.
If the work fulfills the test set forth, it is no longer derivative. Instead it is transformative or has become an original new work itself. “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Id. at 579. Parody is considered transformative. “Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. “ Id. at 580.
The first element of the methodology is looking at whether the work is looking at the nature and objects that were utilized in the secondary work. When the secondary work does not critically examine the original work, the other factors become more important. “If, on the contrary, the commentary has no critical bearing on the substance or styel of the original compisition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work dimisnishes accordingly (if it I does not vasnih), and other factors, like the extent of its commerciality, loom longer.” Id. at 581-82.
The value of the materials used is less important when comparing works of fiction against each other. Althought, if comparing a short work of fiction against a longer work of fiction, this can mitigate against infringement.
The third factor refers to the quantity and value of the material uses. In other words, how much of the source material and of what important is the source material before it is infringing. In looking at 50 Shades, the characters of the Twilight series are very important whereas I would argue that the settings are less important. I.e., the Twilight series takes place primarily in Forks, Washington and the 50 Shades is also set in Washington. What makes it curiouser, however, is that Bella and Edward honeymoon in a remote paradise island and, alas, so do Ana and Christian. In Twilight, the paranormal aspects of the story are quite important and in 50 Shades, those elements are replaced with dark sexual desires. Possibly replacing a core element of the Twilight series is sufficiently different.
Finally, is the issue of commercialism. The court acknowledges that a good parody can essentially kill the market for the original however “the role of the courts is to disginuish between biting criticism [that merely] suppresses demand [and] copyright infringement,[, which] usurps it.” Id. at 592.
The aforementioned methodology, however, is a fair use defense for a derivative work. James et al could argue that her work is not derivative but original (although given MOTUs existence this is an incredibly difficult argument to make). If the work is not derivative, then the measurement is whether the other work is infringing based on the substantial similarity standard (which is tested by a number of different concepts such as abstractions test, total concept and feel, pattern, subtractive, ”extrinsic/intrinsic”, among others).
Post Acuff Rose Cases
Two post Acuff cases of interest deal with non fiction works:
Castle Rock Entertainment Inc v. Carol Publishing Group
Castle Rock, the copyright owner of Seinfeld, sued Carol Publishing over a non fiction trivia book published about the events and characters in Seinfeld. Castle Rock Entertainment Inc v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998) There was no parody defense here. Instead, the non fiction trivia book was said to inappropriately copy creative expression rather than facts. In other words, the Senfield characters and their words were creative expression unlike the number of at bats a baseball player may have or the number of times it has rained in September in California for the past twenty years.
Harry Potter Lexicon case (Warner Bros. Entertainment, Inc. v. RDR Books)
J.K. Rowling sued to prevent the publication of the Harry Potter Lexicon. This was a work based on a website that was run by the Lexicon author with the stated approval of JK Rowling herself. Rowling argued in her complaint, however, that “[T]here is a big difference between the innumerable Harry Potter fan sites’ latitude to discuss the Harry Potter Works in the context of free, ephemeral websites and unilaterally repackaging those sites for sale in an effort to cash in monetarily on Ms. Rowling’s creative works in contravention of her wishes and rights.” Complaint, Warner Bros. Entertainment, Inc. v. RDR Books, (No. 07 Civ 9667), ¶ 4. In issuing the injunction in support of Rowling, the court found that the work was not derivative, but contained too much copying of Rowling’s material to be considered fair use. In employing the methodology in the Acuff Rose case, the judge determined that the balance of factors weighed in Rowling’s favor. In December 2008, a rewritten version was published by RDR Books.
Fanfiction and Commercialism
Professor Rebecca Tushnet who will be on hand to answer questions later this week, argues that fan fiction is not infringement because there is no commercial aspect to fan fiction. It is written and distributed freely without renumeration. In Let Everyone Play: An Educational Perspective on Why Fan Fiction Is, or Should Be, Legal, the authors argue that a footnote in Suntrust Bank v. Houghton Mifflin (268 F.3d 1257 (11th Cir. 2001)), suggests that not for profit writing mitigates against finding fan fiction infringing:
Of great importance with respect to fan fiction is footnote 24 attached to that statement: “Randall did not choose to publish her work of fiction on the internet free to all the world to read; rather, she chose a method of publication designed to generate economic profit” (Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1269 (2001)).
Disclaimers v. Cease and Desist Letters
Like the ineffectiveness of copyright disclaimers by fan fiction writers so to are many of the cease and desist letters/emails/blog posts written by authors lacking in legal support. Merely because the original creator doesn’t like slash fiction or AU fiction that is loosely based on their work doesn’t mean that the fan fiction work is infringing. In other words, the author of the original work does not decide what is infringing. C&D letters are not legal determinations of wrongdoing either. Often C&D letters are used simply to scare someone into taking an action that the author of the C&D letter desires. A C&D letter should not be ignored, but whether a work is copyright infringement depends on the actual text of the secondary work.
Conclusion
From a purely intellectual standpoint, a case involving 50 Shades and Twilight would be fascinating. 50 Shades was fan fiction. It was written by an author who gives her direct source of inspiration to a copyrighted work. It has dozens of similarities with the original, particularly the emotional arcs of the characters and the characters’ traits, but it also deviates in major ways. It speaks to the issue of copyright of characters, rights of publicity of the actors like Pattison and Stewart, and the scope of transformative works. While the case would likely go to trial where a jury would decide it, the mere fact that a case like this makes it past the motion point would provide good precedent. It could clarify the legal bounds of fan fiction and identify more clearly the issue of derivative works.
(Of interest and not covered here is to what extent James has protection over her unregistered work, Masters of the Universe. While copyright exists for any fixed expression of an idea, it is not entitled to statutory damages until the work is registered even though under Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010), the Supreme Court ruled that registration is not a jurisdictional prerequisite to filing an infringement suit, but it does prevent the damages to which an unregistered work may be entitled. It might not even be possible for James to register her work because it lacks originality without the unchanged names, locations, and the like. It might also limit the claims of piracy she could make against the freely shared MOTU)..
Subscribe to:
Comments (Atom)