Not more than ten years ago, intellectual property was divided by heated rhetoric on both sides. The changing technological landscape had given citizens unprecedented power to copy, manipulate, and distribute art. If you were to attend a panel on copyright back then, you might have heard from a number of traditionalists in the music industry who insisted on squashing this new threat, and controlling the Internet in a way that preserved the current business model. On the other side, a group of ardent reformers would respond that the industry that was a victim of its own greed, and needed to catch up with the times.
At the Osgoode Entertainment and Sports Law Conference in 2009, the IP Osgoode panel on copyright did not descend into anything nearly as divisive. At several points in the discussion, people with different viewpoints not only seemed to respect each other’s interests, but also showed a willingness to help meet each other’s goals.
Brett Gaylor, the filmmaker behind the documentary “Rip!: A Remix Manifesto”, showed a clip of a woman listening to a song made from 1-2 second samples, chopped up, sped up, and blended together. She summed up the artist’s use of the old song as “turning something that it was into something that it wasn’t.” This phrase lies at the heart of remix culture, which Reuven Ashtar and Marcus Bornfreund described in further detail. Ashtar, a student working at Borden Ladner Gervais, offered a list of examples of remixes from both music and visual art, while Bornfreund noted that many artists choose to encourage derivatives of their work through the Creative Commons licensing regime.
A self-referential moment came from Casey Chisick, a partner at Cassels Brock, who worried that his service to big content producers set up an expectation that he would strongly disagree with the other panelists. But he agreed with the other panellists on a number of issues, including his feeling that there was artistic merit in remix culture (and even if he didn’t, he saw it as a legitimate part of the culture that would continue on regardless of its detractors). The consensus did not stop there. Every single panelist reminded the audience that the process of creating new art from old has existed for centuries (and even longer), and that we are actually re-affirming an old aesthetic with the rise of the remix. Even the issue of Creative Commons attracted very little debate. Bornfruend, a founding project lead of Creative Commons Canada, was the first to caution that there is a still a strong role for “all rights reserved”, just as the other panelists praised the Creative Commons regime for offering a useful alternative. The individual panelists shared a very balanced approach to this new copyright challenge.
Perhaps the most interesting moment came when the panel discussed Girl Talk, a DJ who blends numerous pop songs into a seamless dance party. Gaylor alleged that Girl Talk would be willing to compensate the artists for the songs he uses. But he pointed out that it is too onerous to obtain licenses for such an elaborate sequence of songs, when many record labels insist on a fee of thousands of dollars just to begin the process. This is especially difficult for hiphop tracks that themselves sample numerous other songs, creating a complicated web of rightholders that all need to be contacted. Gaylor then suggested a system similar to compensating an artist for a cover song, where the original artist receives a percentage of proceeds, with a simplified system for obtaining permission. When Ashtar pointed out that a similar system would be much more difficult for a work with dozens of samples and respective right-holders, Chisick expressed optimism that such a scheme was still possible. He noted that many musical works involve dozens of contributors, and everyone still gets paid. In essence, the panel universally agreed that we should try to compensate artists when their works are remixed, but that our current approach forces such remixes into a black market. For anyone paying attention to the copyright debate over the past decade, it’s astonishing that such a diverse panel could agree upon so much.
Of course, the panelists offered few concrete solutions, let alone anything they could agree upon. And even if four panelists could cooperate on some fundamental goals, this is not to say that the rest of the world has caught up. Although Chisick questioned the effectiveness of targeting a particular woman for posting a video of her baby dancing to Prince, he did not expect copyright holders to abandon the strategy of criminal sanctions or other penalties for this kind of unauthorized copying, and noted that there are other cases where litigation is necessary. And that’s not to say that creators themselves all love remixes: every panelist noted that the remix culture has not been as well received in Europe and Quebec, where the culture of “droit d’auteur” sees the remix as a threat to the original author’s artistic principles. This is in contrast to North America, where a consensus on remix culture seems more tenable. Rather than a debate about moral principles, North Americans tend to view this as a challenge to find an appropriate balance between commerce and free expression. Although a common understanding may be closer than ten years ago, a solution remains far away.