copyrights vs. creative rights

Running Head: COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS 1

©V©®

Copyrights Vs Creative Rights

for University Design Students

Richard Clarkson

300160220

CCDN271

Tutor: Nan O‟Sullivan

COPYRIGHTS VS CREATIVE RIGHTS FOR UNIVERSITY DESIGN STUDENTS 2

Abstract

For years there has been huge controversy surrounding Copyright Laws in relation to intellectual

property ownership and “creative evolution.” In the first section of my research paper I will

briefly investigate how and why copyright was created and its development up until present day.

Secondly how these laws specifically impact on Design Students studying in New Zealand

universities. Finally I will investigate why these affects are overlooked. I will convince young

New Zealand designers of the negative consequences copyright has on their „creative rights.‟ I

will argue that, in order to move forward and progress as an innovative and efficient society, we

must re-evaluate Copyright laws and our perceptions of these laws.

Keywords: Copyright, technology, design, Laurence Lessig, New Zealand, University.


Prior to researching this project I was convinced that at this stage in my life copyright had little

impact on me personally. After completing my research I soon realized I could not have been

more wrong. This essay explains not only how copyright impacts myself and other students but

also why this occurs. My aim is to convince the public of the affect copyright is having, and

could potentially have, on all University design students in New Zealand.

The origins of Copyright lie in The Statute of Anne, 1709. This was an English statute that

sought to end the monopoly of publishers or “booksellers” had on knowledge. The statute gave

authors or copyright holders, the exclusive „right to copy‟ for a limited period of time – 14 years.

This was renewable for another 14 year period (Patterson, 1968, p. 4). This term was essential as

it allowed authors to profit from their works, but after a period of time, made these works freely

available for the general population to benefit from.

If we follow the development of copyright through to today, we see the definition for

copyright and the coverage it has over intellectual property expanding in scope, and the

lengthening of the term for which copyrights lasts in New Zealand to 50 years from the death of

the author (Copyright Act 1994, 2005).1 These changes were led by critical changes in

technology; for example, between 1900 and 1920 the technology for phonographs and recording

machines were invented, causing the laws for copyright to expand to musical recordings

(Vaidhyanathan, 2001, pp. 12-13). As technology arrives it threatens the „big firms‟

monopolization of their industries. „Big firms‟ still try to use their power and influence to have

innovative technology shut down, on the grounds that artists of the old medium, will be robbed

of their rights. Laurence Lessig, a known expert on copyright and intellectual property, points out

in his book “Free Culture,” that historically the law has found a middle ground, in which artists

1 See section 22, part (1) to (5), of the copyright act for detailed breakdown of copyright durations of artistic works.


have some limited rights and creativity is allowed to flourish, once these limited rights expire

(Lessig, 2004, pp. 77-79). History shows that copyright was intended for two purposes: to ensure

artists and creators had incentive to create new works; and to ensure that content was made

available for artists (Crews, 1993, p. 3). Today‟s version of copyright is increasingly becoming

an instrument of censorship, precisely what copyright was originally created to fight

(Vaidhyanathan, 2001, p. 184).

In April 2002, at Rensselaer Polytechnic Institute, information technology student Jesse Jordan

received notice from the Recording Industry Association of America (RIAA), stating that he was

being sued $15 million US in „statutory damages‟ for willful copyright infringements (Recording

Industry of America v. Jesse Jordan, 2003). Jesse had played with a bit of software code of a

search engine making it more efficient and easier to use, this resulted in a network system

capable of sharing music between students and staff. In the end Jesse discovered that even if he

won the case, legal fees would come to around $250,000, bankrupting his family; thus he was

forced to pay the settlement of $12,000 (Lessig, 2004, pp. 50-51).2 Regardless of whether or not

what Jesse did was right or wrong, the combination of today‟s of copyright laws, the current

legal system and big monopolistic firms, meant that Jesse was not even allowed a chance to

fight; a cause for concern for all in the creative industry. Under current copyright laws if you use

any work that is not your own, even if you change it, then it is likely you may be liable for

prosecution (Strong, 1999, pp. 226-227). Neither ignorance, changing it by more than 10% [a

common copyright law misconception (Copyright Council of New Zealand, 2010)], the fact that

you were never going to use it for commercial purposes or even common sense will save you

from prosecution.

2 Read chapter 3„Catalogs‟ of Free Culture for more in-depth explanation.


A designer is faced with one of two options: use copyrighted material regardless of the risk

[Group 1]; or stay well clear [Group 2]. The extent to which the Group 1 designers can be

affected is clearly portrayed in the above case of “RIAA v. Jesse Jordan”. However, debate arises

regarding Group 2 designers – why can‟t designers just create all of their own work from

scratch? My response would be that it is entirely possible for one design but not for design as a

whole. If designers were forced to start every single design from scratch, design as a whole

would never progress beyond one generation of thinking. Each new generation would come

along and have to develop every idea from square one. The technologies that exist today, such as

advanced Computer Aided Design (CAD) programs, enable us to start from where the previous

generation left off. This is especially important in an educational sense as it enables young

designers to learn faster than ever before by using and manipulating existing works and

subsequently learn the principals and methods behind each. What is so special is that in terms of

knowledge and in a sense „experience‟, the students of today are starting out from where the

professionals of yesterday left off. This evolutionary design process is what I call designer‟s

„creative rights‟.

That's how creativity happens. Artists collaborate over space and time,

even if they lived centuries and continents apart. Profound creativity

requires maximum exposure to others' works and liberal freedoms to reuse

and reshape others' material (Vaidhyanathan, 2001, p. 186).

Copyright affects university students by restricting and slowing down these creative rights

(Lessig, 2004). University students are encouraged to utilize their creative rights, through the use


of precedent work as a model for their own work. Under section 44 of the Copyright Act 1994

“Copying for educational purposes of literary, dramatic, musical or artistic works or

typographical arrangements” is as an example of „fair use‟ and is permitted (Copyright Act

1994, 2005), but the technicality and lack of clarity in this section, makes it almost impossible to

understand what exactly is permitted. As the risks of misinterpretation are very high people turn

away from the idea for fear of prosecution (Strong, 1999, p. 200). Therefore, Group 2 designers

are limited to works in the public domain [i.e. any work that the authors‟ exclusive rights have

expired] or are forced to seek permission for each instance of copyrighted material used. Gaining

permission is often a much bigger task than anticipated and it can be very difficult to track down

the copyright owner and sometimes even more difficult to gain permission (Lessig, 2004). Thus,

I argue that the copyright war affects Group 2 designers as much as Group 1 designers.

When big firms try to control what content is available, who the content is available to, and

what cost it is available for, the creative ability of designers is limited. If all content was

completely controlled by „big firms‟, which is their goal (Lessig, 2004, p. 255), then content that

is crucially advantageous to our university design process would not be available to university

students. Hence, if this was the case, piracy would become part of everyday life for students.

Some academics debate it already does (Morris, 1993, pp. 4-5) (Lessig, 2008).

Nonprofit organizations such as Copyleft and Creative Commons are actively trying to

give designers and artists database foundations to share their work for others to build upon

(Stallman, 2002). This is heading in the right direction, but the resources currently available are

too small for creativity to truly flourish.


The previous section outlined how copyright affects designers at a university level, but how and

why is it permitted? I believe people are unaware of what copyright is. The ambiguous language

describing copyright is difficult to understand (Weatherall, 2005).

[Intellectual property law] remains the murkiest and least understood

aspect of American life and commerce. The rules seem to change every few

years… (Vaidhyanathan, 2001, p. 3).

Upon inspection of the Copyright Act 1994 one will find what Vaidhyanathan concludes,

that it is full of confusing legal jargon, unclear statements, such as “in some circumstances,” and

irrelevant statements meant for early 20th

century technology (Vaidhyanathan, 2001). This leads

me to my first proposal, to clean up and republish the 1994 Copyright Act, so that it is at least

understandable, accessible and relevant for the public. Especially since some academics argue

that legal copyright constrictions are becoming so strict and incomprehensible that they are

encouraging normal people to ignore them and thus undermine the law itself (Lessig, 2004).

Secondly the nature of copyright is complex and full of hypocritical contradictions.

Consider what Walt Disney did to the Brothers Grim, he used their stories which where freely

available in the public domain and built upon them, what is recognized today as a transformative

or “derivative work.” Walt Disney then extended his exclusive rights, to the degree that no one

could build on his work (Lessig, 2004, pp. 21-25). A designer when faced with limited freedoms

will fight for those freedoms but as soon as they benefit from limiting those freedoms, such as

Disney, they change positions. The market, legal system and even commercial culture are set up

to allow this behavior, and even reward it. Currently lobbyists for extending copyrights are far

more powerful than those who fight them (Lessig, 2008).


Thirdly as copyright laws continue to tighten people simply accept it. We have lost the

ability to collectively and critically question things that do not directly affect us at the present

time.

What is hard to understand is why the public takes this view… …All this

seems to follow easily from this untroubled acceptance of the ‘property’ in

intellectual property (Lessig, 2004, p. 256).

We need to be more critical of how and why things are done and the way they are done. If

it is in the best interest of the public to extend copyrights, then so be it; the key point is that we

are questioning it. An extremely important area of design is critical design, much of Dunne &

Raby‟s Work in this area has improved society, not because the goods themselves but in the way

they force us to ask questions. Why not then apply this ideology to factors that affect our design

process, why not ask questions of copyright?

There is no doubt that we need copyright as it is essential to a healthy creative culture, however

excess of regulatory measures slows creative evolution. As a creative community, we are being

fed copyright regulations without realizing it. Unfortunately, by the time awareness is at a

sufficient level, it may be too late for us to fix it. In this essay I briefly explained the origins of

copyright and I showed how design is being restricted, even at a University level. Our creative

rights as designers are becoming more and more regulated, shrinking the public domain and

decreasing a law abiding designer‟s resources. Finally, I highlighted some possible reasons for

this being accepted from unclear understanding of rights to our reluctance to ask questions that


need to be asked. Lessig and Stallman are two voices that need to be heard and it is up to us to

listen and act.

I am a software designer, not a legal scholar. I’ve become concerned with

copyright issues because there’s no avoiding them in the world of computer

networks. As a user of computers and networks for thirty years, I value the

freedoms that we have lost, and the ones we may lose next (Stallman, 2002,

p. 88).

University designers are in the middle of the war of copyright and we must remember that it is us

who will suffer collateral damage, but also only us who can find a way to stop the war and start

the negotiations.


References

Copyright Act 1994. (2005). Wellington, New Zealand: Govt. Printer.

Copyright Council of New Zealand. (2010, June 8). FAQs. Retrieved June 8, 2010, from

. Copyright Council of New Zealand Website: http://www.copyright.org.nz/faq.php

Crews, K. D. (1993). Copyright, Fair Use, and the Challenge for Universities: promoting the . . .

. progress for higher education. Chicago: University of Chicago Press.

Lessig, L. (2004). Free culture : How big media uses technology and the law to lock down . . . . .

. culture and control creativity. New York: Penguin Press.

Lessig, L. (2008). Remix Making art and commerce thrive in the hybrid economy. London: The .

. Penguin Press.

Morris, R. G. (1993). Use of Copyrighted Images in Academic Scholarship and Creative Work: .

. The Problems of New Technologies and a Proposed "Scholarly License,". 33 IDEA: The .

. Journal of Law and Technology , 123.

Patterson, L. R. (1968). Copyright in historical perspective. Nashville: Vanderbilt University .

. Press.

Recording Industry of America v. Jesse Jordan, 03-CV-0417 (U.S. District Court April 3, 2003).


Stallman, R. M. (2002). Free software, free society: Selected essays of Richard M. Stallman.

Boston: GNU Press, Free Software Foundation.

Strong, W. S. (1999). The copyright book: a practical guide 5th ed. Cambridge: The MIT Press.

Vaidhyanathan, S. (2001). Copyrights and copywrongs the rise of intellectual property and how .

. it threatens creativity. New York: New York University Press.

Weatherall, K. (2005). 'Pretend-y Rights': On the insanely complicated New Regime for . . . .

. Performers' Rights in Australia, and how Australian performers lost out. In F. B. . . . . . .

. Macmillan, & F. K. Macmillan (Ed.), New directions in copyright law (pp. 171-197). . . .

. Cheltenham: Edward Elgar.

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