Barriers to Cultural Participation: Cultural Innovation and Control Online

Draft for ESF Exploratory Workshop on Consuming the Illegal: Situating Digital Piracy in Everyday Experience, Leuven, 17-‐19 April 2011

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Barriers to Cultural Participation: Cultural Innovation and Control Online

Mathias Klang [email protected]

University of Göteborg

Introduction In 2004 Constantin Films released Oliver Hirschbiegel’s movie Downfall (Der Untergang), a powerful film portraying the final ten days of Nazi Germany and Adolf Hitler’s life in his Berlin bunker in 1945. The film contains some powerful acting by Bruno Ganz in the role of Hitler and in particular a scene where Hitler realizes that all is lost and blames all those around him for plotting his demise has caught the imagination of many of those who saw it. Since the film was released this bunker scene has been used again and again by fans that change the subtitles to the original German and alter the meaning of the scene. The strong acting and Hitler’s anger are made to represent anger against a whole range of issues from the death of Michael Jackson, the lack of functionality in the iPad, the fact that people were making downfall parodies and eventually Hitler getting angry because the copyright holder was attempting to remove the parodies. Interviewed by the New York Magazine in 2010 (Rosenblum 2010), the director Hirschbiegel, seemed to be positive to the parodies: “The point of the film was to kick these terrible people off the throne that made them demons, making them real and their actions into reality. I think it's only fair if now it’s taken as part of our history, and used for whatever purposes people like.” Despite this approach, the copyright holder Constantin Films demanded in April 2010 that YouTube remove their copyrighted material and YouTube complied. However, later the same year it appears that YouTube stopped blocking Downfall parodies. At the point when Contantin Films began taking action against the parodies the discussion of the application of copyright law in relation to cultural remixes was sparked into life (this was naturally not the first time). However the Downfall parodies also brought the vulnerability of the parody authors, and their dependency on third party platforms, into focus. The purpose of this text is to unpack the concept of copyright regulation of cultural artifacts in relation to Internet technology. Not content with analyzing the role of copyright law in these situations the author will demonstrate the additional complexities faced by those wishing to “pirate” cultural works and “remix” them in order to produce new cultural artifacts. The aim of this paper is to demonstrate that without an understanding of the social norms, licenses and the role of FUD (fear, uncertainty and doubt) it is impossible to fully understand the barriers to Internet-‐based cultural production today. The analog roots of copyright


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It may be a minor point, but it is important to note that copyright does not create property per se. Modern copyright legislation creates an exclusive set of rights, which give the creator a monopoly like situation to decide exclusively whether his or her right may be copied or transferred to an audience. The modern origins of copyright law are to be found in the beginning of the enlightenment period, specifically modern copyright law is seen to begin with the entering into force of the Statute of Ann in 17101. A central premise of the enlightenment is the focus on the individual and the role of experience. The enlightenment breaks with the authoritarian past in that the period places human experience, and not authority, as the foundation of understanding of truth. With the introduction of the Statute of Ann the legislator recognized two problems. First, that the printers were acting in a manner, which was deemed to be unfair towards the author and that, these acts were damaging to cultural production. The preamble of the draft bill explains the need for the new legislation: “Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Con sent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books” With the introduction of this act the focus of protection was moved from the printers, who had control over the technology of copying and distribution, over to the author whose control was over the creation of the works. Two additional interesting elements of the act are; (1) the act viewed authorship as a process of creating something out of nothing and (2) the focus of the act was to encourage learning by regulating the book trade any legal advantages gained by the author were incidental, a means to reach an end. Copyright is commonly interpreted in relation to an understanding of property proposed by John Locke, who was discussing the wastefulness of underutilized land in the context of the enclosure movement, from the point of view that idle nature was wasteful and property could be created by adding labour to wasteland. Individual property was created by the addition of labor into underused land since “...every man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his” (Locke 1960 [1690], p 287-‐288). From this point Locke extrapolates that: “Whatsoever then he removes out of the State of Nature hath provided, and left it in, he has mixed his Labour with, and joined to it

1 An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned (1709)


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something that is his own, and thereby makes it his Property” (Locke 1960 [1690], p 288). This latter accommodating view on property creation has been used to legitimize the creation of new property rights in both tangibles and intangibles (Hughes 1988). As we have seen the purpose of the law was to regulate the book market and its philosophical underpinnings were taken from arguments on the commoditization of finite, rivalrous2 objects. Such as a system may have been clear in the cultural system embedded in an analog technology, a system where the creator was highly dependent upon the role of professionals, such as printers and booksellers, to be able to communicate to a wider audience. However, this text argues that these intuitive arguments become flawed when the communications infrastructure is no longer predominantly analog. Therefore, the act carries within it a specific socio-‐technical system, a concept of technology and a level of technological sophistication. It attempts to establish an effect through the balancing of norms between the author and the book market while not focusing necessary systems of copying and distribution. The latter systems lay in the hands of the printer/booksellers and were to be resolved contractually. By failing to see, or choosing to ignore, the role of technology the act fixates social norms in a static technological system. The effects of this have been to attempt to interpret technological developments and innovations in the light of this static technological understanding and embedded in the technological systems of the early 18th century. One size fits all Other countries were slow to follow England’s lead but eventually in the centuries following the implementation of the Statute of Ann many countries followed England’s lead and adopted similar systems of copyright protection (Johns 2009). The norm of copyright was slowly becoming internationalized. However, as long as the system remained in the hands of the nation states it was flawed, since the protection offered by the states was first and foremost intended for their own nationals. Towards the end of the eighteenth-‐century, international book piracy was viewed as a serious problem and the United States was commonly identified as the most piratical nation in this field (Johns 2009). The first main attempt to create a true international legal norm of copyright came with the Bern Convention of 1886 which established, among other things, the principle of national treatment, which holds that each member state to give citizens of other member states the same rights of copyright that it gave to its own citizens. In addition to the process of internationalization, copyright law was also being re-‐interpreted in the light of new technology. As copyright deals with the fixation

2 Rival goods are goods whose consumption by one individual prevents simultaneous consumption by others


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(or expression) of a creative idea it was only natural that we new technologies of fixation appear they would create a discussion as to how their products should be understood in the light of existing copyright legislation. One of the more interesting of these discussions deals with the area of photography and the question of whether photographs should be considered to be a creative work similar to the text and be given the same protection. This complex set of problems was discussed in the case of Burrow-‐Giles Lithographic Co. v. Sarony3. The case revolved around the photographs of Napoleon Sarony and in particular an image of Oscar Wilde. Sarony established his own studio in New York in 1867 and paid celebrities to pose for photographs. Sarony would retain full rights to sell the pictures. In 1882 Sarony paid Oscar Wilde to pose for a series of photographs which he then made into prints which he sold. The company took an image of Oscar Wilde (no. 18) and began using it in an advertisement. Sarony sued for a violation of his copyright in the image. The case of Burrow-‐Giles Lithographic Co. v. Sarony4 discussed whether the photographer Sarony could have sole rights to his portrait of Oscar Wilde. The United States Supreme Court ruled that photographs could be “…representatives of original intellectual conceptions of an author” and were therefore to be protected, in the same way as text, under copyright legislation (Farley 2004). Permissible Piracy An obvious problem encountered by the exclusivity of copyright legislation is the level of unauthorized copying that is permissible within the framework of the system. This problem is connected to related problem areas such as plagiarism and homage where an author takes earlier works and either builds upon them. As copyright deals with the expression of an idea and not the idea itself it opens up the discussion of what should be done with plagiarism. The issue of plagiarism is, in its clearest form, when an author takes the work of another and presents this work as his own. In this situation the new work is clearly a violation of the first authors copyright as that which has been taken is the expression of the idea. However, plagiarism becomes more complex when the thing that is appropriated is not expression but the idea itself. In most cases, being accused of plagiarism is viewed as, an embarrassing if not, serious offence. Most cases of revealed plagiarism have had serious consequences for the authors and/or publishers. In 2010 the German minister of defense, Karl-‐Theodor zu Guttenberg, was stripped of doctorate by University of Bayreuth and forced to resign after revelations that his PhD thesis contained sections of text plagiarized from other authors. It is interesting to note that not all authors react in this manner. When the author Helene Hegemann was accused of plagiarizing sections of her debut novel Axolotl

3 l l lU.S. 58 (1884) 4 l l lU.S. 58 (1884)


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Roadkill (2010) she countered by presenting her writing process as a form of intertextuality (Kristeva 1986) by saying: “There’s no such thing as originality anyway, just authenticity”. According to this interpretation of intertextuality it is (almost) impossible to construct a new text but rather each text builds on the past and is “... the absorption and transformation of another” (Kristeva, 1986 p 37). Posner (2007) argues that the taking of another’s ideas in this way is not a form of copyright violation – as the expression is not repeated – but rather is a form of fraud as the later author claims to be presenting original ideas of his own. Therefore while the taking of another’s ideas may not be a violation of copyright, indeed the works that are taken may no longer be protected under copyright, the act still runs counter to the social norm of not appropriating that, which is not rightly ones own. By taking the position of fraud as a starting point it also becomes possible to understand the issue of self-‐plagiarism. Using copyright as an argument against self-‐plagiarism not possible (Bird 2002) as the author naturally would give himself permission to reuse a text. Within cultural creations there is, however, a level of acceptance in copying and reusing the ideas of other. Commonly referred to as homage, and is a process that seems to exist as a norm between plagiarism and copyright. The homage may be viewed as mark of respect when a creator takes ideas or themes from earlier creators works and interprets them in an original work. An example of homage is the Chicago Union Station staircase scene in De Palma’s film The Untouchables (1987), which is based on the Odessa steps scene in Eisenstein’s film The Battleship Potemkin (1925). In both cases the violent scenes are interspersed with a baby in a pram uncontrollably rolling down the stairs. Alternatively Quentin Tarantino’s films Kill Bill 1 & 2 (2003 & 2004), which are his homage to the whole genre of martial arts films. Interestingly, in Kill Bill, Tarantino portrays an identifiable character of a one-‐armed swordsman, which is based upon the earlier Hong Kong film One-‐Armed Swordsman (Dubidao) (dir. Zhang Che, 1967). Pang (2005 p 136) argues that there is a norm of cultural dominance occurring here with “The underlying assumption is that Hollywood productions are superior to the local ones both in terms of creativity and in the legal sense—only Hong Kong plagiarizes Hollywood, and never vice versa.” Another example of East West cultural transfer can be seen in the film The Lion King (1994), which bears a strong resemblance to Kimba the White Lion the Japanese television cartoon from the 1960s. Similarities include the name of the lead character (Kimba/Simba), the plot line and scenes with nearly identical composition and perspective. Disney’s official position is that similarities are all coincidental and that the story is inspired by public domain works such as Moses from the Bible and Hamlet by William Shakespeare (Schweizer and Schweizer 1998)


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Piracy, Copyright & Fans As this work has shown the original goal of copyright was to regulate the book market. This goal was expanded to enable first the author to take advantage of the exclusive rights, which were the bi-‐product of the regulatory attempt. Copyright was internationalized through the Berne convention and adapted to suit novel technologies. The tool of copyright was too useful not to be used. In addition to this the terms of protection for copyrighted works were lengthened and thus the bargain created within the copyright system was slanted to the advantage of the creator and away from their counterparts – the consumer. Copyright has, since its inception, seen the role of the cultural consumer as a passive one. The consumer is vital to the system as they are the reason d’être and yet they are not the focus of legislation, but rather an implicit goal. In an analog environment this may not be particularly important, as the consumer has not had a viable means of production or dissemination. The consumer is important to the creator as an interpreter of the work, Marcel Duchamp (1957) explained this view when he said, “The creative act is not performed by the artist alone; the spectator brings the work in contact with the external world by deciphering and interpreting its inner qualifications and thus adds his contribution to the creative act” However, the role of the consumer is not limited to interpretation, the consumer has, despite his passive label, been relatively active within the means set by the confines technical limitations. A not unusual activity is where the consumer takes the works of a published creator and uses elements such as characters or scenarios to create new works. These works are rarely authorized by the original creator or publisher and are almost never published. In a recent example of the line between tolerated and non-‐tolerated fan fiction an attempt was made to publish a sequel to J.D. Salinger’s Catcher in the Rye (1951). The presence of fan versions or variations of the work have been, more or less, openly available online and yet in 2009, just before his death, Salinger broke his customary silence and sued the author John David California (a pseudonym for Fredrik Colting). California’s book was presented as a sequel and revolved around the protagonist of Catcher in the Rye, Holden Caulfield, as an old man on the run from a nursing home. In his complaint to the court5 Salinger argued that the book, 60 Years Later: Coming Through the Rye, published in the United Kingdom, was in fact a violation of his copyright. “This is an action to preliminary and permanently enjoin the reproduction, publication, advertisement, distribution or other dissemination of the book entitled 60 Years Later: Coming Through the Rye… on the grounds that it is an unauthorized sequel (the “Sequel”) of the acclaimed copyrighted novel The

5 J.D. Salinger, individually and as Trustee of the J.D. Salinger Literary Trust (Plaintiff) against John Doe, writing under the name John David California; Windupbird Publishing Ltd; Nicotext A.B.; and ABP, Inc. d/b/a SCB Distributors Inc, (Defendants) United States District Court Southern District New York, Case 1:09-‐cv-‐05095-‐DAB, Filed 07/01/2009.


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Catcher in the Rye (“Catcher”) written by Salinger. The Sequel infringes on Salinger’s copyright rights in both his novel and the character Holden Caufield, who is the narrator and essence of that novel.” In marketing the book it was presented as a sequel, while to the court Colting argued that the work was a parody of its original. In essence the court agreed with Salinger and found that California had “…taken well more from ‘Catcher’, in both substance and style, than is necessary for the alleged transformative purpose of criticizing Salinger and his attitudes and behavior.” The court issued a ruling preventing the manufacturing, publishing, distributing, shipping, advertising, promoting, selling, or otherwise disseminating any copy of the Sequel.6 The process of fan fiction, borrowing from earlier works to continue a well-‐known story has its roots back in oral story-‐telling and may be seen in early works such as The Epic Cycle and its relation to The Odyssey an The Iliad (Burgess 2001). Even in the analog eighteenth-‐century fans were doing more than simply deciphering and interpreting its inner qualifications. In her study on fan-‐fiction in the enlightenment Elizabeth Judge (2009) notes that the practices included annotations in book margins, penning alternate endings and revisionist interpretations. In addition to this rival authors wrote parodies or unauthorized sequels and “…contemporary fans made fascinating interventions in these characters’ lives by casting them in sequels, migrating them to different genres, honouring them with namesake racehorses, and spawning character merchandise, such as waxworks, silk fans, and china sets.” (p 26) It may therefore be taken as a given that the desire to produce and spread fan-‐fiction has been part of our culture comparable to our desire to read the established works which the fan fiction is based upon. Therefore it should come as no surprise that our recent shift in our basic communications infrastructure and our digitalization of cultural experience have naturally led to an increased ability to produce and spread works of fan fiction. Clash of Systems: Parody While we often attempt to understand systems as if they existed independently of any form of context, this is usually a form of simplification in order to understand the workings of the systems. The system of copyright, for example, does not exist in a vacuum but must exist concurrently with other systems and norms. An area where copyright regularly overlaps with another system is the area of parody. Despite the exclusivity of copyright it is regularly deemed to be secondary to the “right” to parody. In his research Spence (1998) presents four common arguments why parody should be permitted (1) parody is a distinct genre and needs protection, (2) parody demonstrated an instance of market failure in copyright as authors are unlikely to give permission to have their works parodied, (3) parodies as transformative works – the works are new and

6 Ibid.


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original even if they are dependent upon the earlier work, and (4) the free speech argument, where the parodists right to free speech needs to be supported. Therefore there exists a conflict between parody and copyright that regularly needs to be defined by the courts. Take for example the case of Rogers v Koons7, the artist Jeff Koons unsuccessfully argued that his use of elements of Rogers’ photograph in his sculpture, String of Puppies (1998), was to be interpreted as parody. The court did not accept Koons’ argument that his sculpture was a parody of modern society. Further the court went on to interpret parody to mean that the appropriated work must itself be, at least in part, parodied. The courts position differs in this aspect from a commonly accepted understanding that parody is an “…imitation characterised by ironic inversion, not always at the expense of the parodied text” (Hutcheon 1985, p6). A recent conflict concerning the overlap between copyright and parody occurred in a work that portrayed the civil war classic Gone With The Wind (1936) by Margret Mitchell in a new light. Where Mitchell’s novel tells the story of the troubles of the wealthy, white daughter of a slave owner Scarlett O’Hara, Alice Randall’s The Wind Done Gone (2001) is set in the same location and period but told from the point of view of Scarlett’s half-‐sister, the slave Cynara. While The Wind Done Gone avoids using the names of Mitchell’s characters or locations. It is not difficult from the title and context to understand what the Randall’s novel is portraying and parodying. Margaret Mitchell’s estate reacted to the publication of Randall’s book by suing her and her publisher for copyright infringement on the grounds that The Wind Done Gone was too similar to Gone with the Wind, thus infringing its copyright. The case was eventually settled out of court in 2002 with Randall’s publisher Houghton Mifflin making an unspecified donation to Morehouse College in Atlanta. It is interesting to note that Randall & Houghton Mifflin attempt to define the work as a parody, physical copies of The Wind Done Gone bear stickers with the text “The Unauthorized Parody”. This raises the interesting question of attempting to define the parody and additionally the question, when in doubt, whom has the right to interpret a parody. Positioning Piracy For most of the history of copyright the question of piracy concerned the organized, unauthorized taking of others material. While, as we have seen, individuals have been active in this respect the results of their work have been largely tolerated. Arguably this may be due to the individual’s lack of access to an efficient communications infrastructure. Therefore the actual constraints to piracy were not legal or based upon social norms but were largely technical.

7 Rogers v. Koons, 960 F 2d 301 (2nd Cir.1992)


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Therefore it is unsurprising that when the technological barriers were removed individuals would begin to create and share on a larger scale. In light of this increased piratical behavior copyright organizations have been lobbying the courts and legislators to make the law into an artificial barrier to replace the lost technical barrier. The move towards more defined and limiting (from the pirates point of view) legislation has had a detrimental effect on many previously tolerated activities. Lawrence Lessig (2008) argues that our culture today has the potential to be a culturally active zone with large amounts of small-‐scale creators working on enriching the cultural sphere. However, this production is being lost as the law is creating a read/only culture where the freedoms available through the copyright bargain are being eroded. Lessig (2008) calls for the building and strengthening of a remix culture, a society that not only allows, but also encourages derivative works. Within such a culture the default would be that it was permissible to add to, and share, available works. The motivation or desirability for such a culture would be the widespread increase in creativity and cultural output. Under the present legal regime the remix, both in its legal and illegal forms, is often under direct threats of legal action and the ensuing uncertainty of the creator as to the legality of his actions. A popular form of remixing is the creation music videos by recording video clips from movies, cartoons, games etc and adding new soundtracks – most often music – to the clips. An example of the practice can be seen in the work of Johan Söderberg (2003) whose remix of Lionel Richie’s song Endless Love set to news images of George W. Bush and Tony Blair, gives the appearance of a love story between the world leaders. A subgenre, within this genre, entails the blending of pop music set to Japanese anime cartoons. The resulting works are known as Anime Music Videos (AMV). As we begin to understand from the examples presented in this text it is increasingly difficult to know what the outcomes of an instance of appropriation will result in. At this stage I would like to attempt to map the different examples into the fields of legal, illegal and tolerated and untolerated piracy. By positioning them in this manner I hope to demonstrate the difficulties involved in understanding how the current copyright system deals with these types of actions. Naturally, each of these cases is different in the circumstances for their development and presentation but all represent the use of an earlier work in an attempt to present a new work. They are, so to speak, both dependent on the earlier works and at the same time stand independently to them as new cultural products. Together with this positioning I have attempted to label the acts with a more common terminology in a further attempt to position the works culturally. Therefore, Endless Love the AMV represent an artform, which is both tolerated and illegal and has commonly come to be seen as examples of a remix, while the tolerated legal form of this process would be seen as a homage. Meanwhile the


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untolerated, legal form would be a parody, while the untolerated and illegal form is usually seen simply as piracy.

The purpose of this visualization is to present the reader with a clearer positioning of the cultural products within a socio-‐legal system. The legal-‐illegal dichotomy is easily understood but by simply remaining on this axis we fail to fully see that the law is not a system that acts alone outside a social context. Additionally, by visualizing the process of creation based on earlier works in this way we easily see a need for clarification of the position of the groups’ works that are either untolerated and legal or tolerated and illegal. Both these groups rely on a weak set of protective rules and an unacceptable level of protection. It is intuitive to place the homage into the section of Legal/Tolerated despite the issues that may surround their creation and use they are firmly accepted as a legitimate form of activity. However this is not necessarily obvious from viewing the cultural product but is understood from the social reactions to the products. One could argue that it is the inaction of the copyright holder makes them legitimate. In the cross section of Legal/Untolerated we may place parodies. Taken as a theoretical standpoint most legal systems support the right to parody. However the parody is not necessarily safe simply because of this theoretical right. Both The Wind Done Gone and the Downfall parodies have been threatened by copyright holders and show how precarious a position this is to maintain. In the area of Illegal/Tolerated we find the cultural products, which are on the definite fringe of cultural production. This is the home of the remix, such as AMV’s and the Endless Love duet. These cultural products have a very low ability to survive should any copyright decide to take action.


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Finally we see the losers of this system in the Illegal/Untolerated field. Here are the works that have been challenged and lost. They are, for all intents and purposes, banned works. When looking at the positioning of the different works in the table seems that there is a difference in the treatment between acceptable and unacceptable cultural productions and that these norms are a form of cultural hegemony attempting to control certain cultural forms that are found to be less worthy of our consideration. It is however important to bear in mind the words of Franz Boas “…civilization is not something absolute, but … is relative, and … our ideas and conceptions are true only so far as our civilization goes.” Boas wrote these words when he was discussing the novel concept of cultural relativism and attempting to remind us that concepts of right and wrong are similar to ideas of taste and culture in that they are neither constant in time or geography. This attempt at positioning is complicated by the works Axolotl Roadkill and The Lion King as they have not been challenged in court. From this we are to assume that they are legal works where Axolotl Roadkill admits to plagiarism and The Lion King denies any “wrongful” borrowing. Therefore in order to better understand the relationship between legality and tolerance we must further understand the relationships between law and social norms. Law and norms Norms may be understood as the socially agreements which coordinate our interactions with others (Lewis 1969). Such norms often govern forms of social interaction that we view as socially correct behavior in a given situation. These norms are negotiated and enforced within social group rather than being dictated from above. This is why, for example, laws governing jaywalking, speeding and tailgating can be the same in different countries but our social adherence to the rules differ widely (Vanderbilt 2008). We tend to adhere to social norms once they have become established partly from indoctrination in the rule as being the correct way to act and due to the expectation that others will also follow this accepted behavior (Peyton 2008). One way of understanding the problem is the realization that law and social norms rarely fully match each. One way of understanding the relationship between law and norms is that the law explains what we ought to do while norms demonstrate what we actually do. To this complex image we must also add the effects of our technology, as it is ultimately here we are limited by what is physically possible. Any discussion on the rights or wrongs of, for example, making a copying of a cultural artifact is ultimately defined by our ability to make such a copy.


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Three main technological factors are of importance to cultural piracy. First, the bulk of our cultural production has now become digitalized. Second, our homes have become connected at fixed costs. Third, our ability to store (and the cost of storing) data has improved to the point were storage is not an issue. To this can be added the major shift in our consumption, legal or otherwise, now mainly is done with the aid of digital devices. All the technology surrounding our cultural consumption implicitly encourages us to store, share and consume culture. Or to put it very simply – what implicit message is transferred with a MP3 player that can store 40 000 songs? With the falling away of technical barriers to sharing there has been a demand that the law should fill the role of the lost technical barriers to sharing. However, the problem is that the norm of creating and sharing is strong and does not seem to match the demands of those parts of the copyright industry calling for limitations to user rights. Indeed, as individuals enter the arena of cultural sharing they take their cues from the tolerated/legal and the untolerated/legal products. On the face of it is difficult to see why these products are available while others, those in the untolerated/illegal section are penalized. The result is that the users have the desire to create, the technology to create, the infrastructure to share but are supposed to be limited by legal rules which seem not make sense internally or match the current set of norms within this social framework. The norms at work create a system where the individuals believe themselves to have the right to interact with the cultural products presented by the culture industry. Henry Jenkins (2006) argues that: “Fans reject the idea of a definitive version, produced, authorized, and regulated by some media conglomerate. Instead, fans envision a world where all of us can participate in the creation and circulation of central cultural myths. Here, the right to participate in the culture is assumed to be “the freedom we have allowed ourselves,” not a privilege granted by a benevolent company… Fans also reject the studio’s assumption that intellectual property is a “limited good,” to be tightly controlled lest it dilute its value. Instead, they embrace an understanding of intellectual property as “shareware,” something that accrues value as it moves across different contexts, gets retold in various ways, attracts multiple audiences, and opens itself up to a proliferation of alternative meanings.” (p 256)


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One of the problems with the desire of users to participate in a cultural production and discussion are the limiting effects of the current legal system. The fear, uncertainty and doubt (FUD) about the current regulatory system results in a reduction of the number of individuals and groups taking part in the cultural sphere. Regulation by Proxy: the license Assisted by technology, there is a large amount of cultural creation emerging in the gap created between user norms and legal rules. While the tools for creativity are mainly in the hands of the users the infrastructure for transferring the cultural products are in the hands of others and are offered to the users for at no cost. As the users are not paying for their infrastructure they have no rights to place demands for a level of service. The de facto standard for spreading remixed material such as AMVs, Downfall parodies and Endless Love today is the video-‐sharing site YouTube. There is, however, an additional level of regulation that must be taken into consideration as it impacts on the ability to transfer cultural material. This level of regulation is the system of licenses, which any user wishing to upload a video is required to agree to. As the licensing system is based upon a contractual relationship between the user and the platform provider, and the latter if providing the service at little or no cost, the agreement tends to be slanted in favor of the provider. A result of this is that it is necessary for cultural products to fit into the norms set by the technology and the wishes of the service provider. Additionally, as the service provider receives little or no payment, they have little or no incentive to defend the “rights” of the uploader to transmit any cultural product. A weakness in this system is that if the platform provider receives a complaint from a copyright holder, whether valid or not, the platform provider will inevitably commence the automated removal of all materials covered by the complaint. This was the process that took place when Constantin Films sent a complaint to YouTube, as described in the introduction of this text. The complaint by Constantin Flims activated YouTube’s automated filtering system, Content I.D. even if their claims were questionable as the use of the Downfall clip would have been covered by the fair use rules in the American copyright system. The effect is as McSherry (2010) defines it “…a content owner can take down a broad swath of fair uses with the flick of a switch. It seems that’s exactly what Constantin Film has chosen to do.” While there are naturally measures a user can take should his material be removed from a content provider, however it is clear that the user is placed in a unfavorable position and any attempts to argue will be an uphill battle. Conclusion


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The topic of this paper was to take a closer look at some of the different ways in which cultural material is used and reused. In particular this work wanted to widen the discussion by not limiting it to being either a legal, technical or social topic. The production of innovative cultural material relies on a healthy access to earlier material, the creativity to expand on that material, the legal leeway to share that material and the technical platforms with which to reach other users. For most of the history of copyright the most limiting factor for a large scale participatory cultural sphere has been limited by the lack of technical means with which to create and share the results of the work. Today these technological limitations have been reduced and are easily surpassed by most users wishing to participate in a cultural exchange. We should therefore be entering into an unprecedented production of cultural material. One the one hand this is exactly what is happening. The amounts of copyrightable material being produced and spread today are far greater than in any other period in history. However, on the other hand, the legal risks and the regulation through licenses discussed here show that the material being produced and spread is discriminated against and is under risk of being removed, and its authors punished for their productions. These issues need to be addressed. The original purpose of copyright, and its often legitimizing reason put forward today, is that by protecting the rights of the creator there will be an increased incentive to produce more material. Society offers a monopoly in return for an increased level of cultural material. However this bargain has been steadily eroded and is, at the point where it is technically possible for a wide scale participation in danger of being lost. Bibliography Stephanie J. Bird (2002) “Self-‐plagiarism and dual and redundant publications: what is the problem? Commentary on ‘Seven ways to plagiarize: handling real allegations of research misconduct’”. Science and Engineering Ethics 8 (4): 543–4. Franz Boas 1887 “Museums of Ethnology and their classification” Science 9: 589 J. S. Burgess (2001) The Tradition of the Trojan War in Homer and the Epic Cycle XXX, Baltimore. Marcel Duchamp (1957) XXX from Session on the Creative Act, Convention of the American Federation of Arts, Houston, Texas, April 1957. Christine Haight Farley. “Copyright Law’s Response to the Invention of Photography.” 65 U. Pitt. L. Rev. 385 (2004). Linda Hutcheon (1985) A Theory of Parody: The Teaching of Twentieth-‐Century Art Forms (Methuen, London).


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Barriers to Cultural Participation: Cultural Innovation and Control Online

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