[Oceania-video] Fwd: Liang on copyright in documentary

[and]

hey,
this is a good intro to things like creative commons and other such  
open content licensing systems by indian lawyer lawrence liang. he also  
tackles the issue from a much more radical (anti-capitalist)  
perspective than lawrence lessig (creative commons guru) and offers  
some good critiques of CC whilst at the same being engaged in the  
indian CC process.
More info here also
https://pzwart.wdka.hro.nl/mdr/pubsfolder/opencontent/view

Begin forwarded message:

> From: "Frederick Noronha (FN)" <fred at bytesforall.org>
> Date: 8 February 2005 3:45:25 PM
> To: and at axxs.org
> Subject: Liang on copyright in documentary
>
> SHOOT, SHARE AND CREATE: WHY LOOKING BEYOND COPYRIGHT MAKES SENSE IN  
> FILM
>
> Young lawyer Lawrence Liang, based in city of Bangalore,
> makes an articulate case of why documentary and alternate film makers  
> in
> India could do well to think of starting to license their works under  
> an
> 'open content' license.
>
> By Lawrence Liang lawrenceliang99 at yahoo.com
>
> Let's begin with a small personal statement, when I was in law school,  
> I had
> great aspirations of wanting to be a film maker , and an FTII-type  
> (Film and
> TV Institute of India, a prominent school for film-making) friend told  
> me
> that the best place to start was to watch a lot of foreign films and
> documentaries. So I did that rather dutifully and spent many hours  
> when I
> should have been reading corporate law, watching documentaries.
>
> My fondest memory of my placement in Mumbai with a law firm was when  
> we took
> off to the Tata Institute of Social Sciences (TISS) and watched Anjali
> Monteiro and Jayasankar's film on the Yeravada prison.
>
> Then, I gave up on the idea of becoming a film-maker after we finally  
> did do
> a documentary on law school. But by then the bug had bitten and I had  
> fallen
> in love with cinema and the documentary form as well. And yeah I think
> watching documentaries has also made me a better lawyer than I would  
> have
> been if I read Ramiaya on the Indian Companies Act. So if I have  
> written
> this rather longish argument about why documentary film makers should  
> start
> thinking about open content licenses, it is with a sense of repaying a  
> debt.
>
> But firstly a few clarifications: what does an open content / creative
> commons license actually mean?
>
> Open content licenses have basically been inspired by the Free Software
> movement, where they try to reverse the principles of copyright to  
> build a
> more vibrant public domain of materials which can be used by people.
>
> Copyright grants the author of a work an exclusive right to copy,
> distribute, create adaptations etc of his or her work. Any person  
> using any
> material without the permission of the author, or without paying  
> royalty, is
> presumed to be infringing the exclusive copyright of the author of the  
> work.
>
> While copyright was initially supposed to be a means of balancing  
> between
> providing incentives for authors and ensuring that works circulate in  
> the
> public domain, over the past few decades, this balance has been  
> completed
> tilted in favour of the owners of copyright.
>
> Increasingly, one sees the use of copyright to supplement restrictions  
> on
> freedom of speech and expression. A quick example: Alice Randall, an  
> African
> American author, wrote a rewriting of 'Gone With The Wind', from the
> perspective of Scarlett O Hara's mullato half-sister. The publishers  
> claimed
> that this was an infringement of copyright and obtained an injunction
> against the publication of the book. Thankfully, in this case, the  
> court of
> appeal then overturned the injunction.
>
> Similarly, copyright licensing makes the acquisition or use of a
> pre-existing work very very expensive, and let's hope that we don't go  
> down
> the US route where you have to take a hundred copyright permission  
> before
> you use any music, clip etc while making your own film. Think about  
> your own
> experiences. If you had to pay for every time you wanted to use a clip  
> or a
> song, how much would that add to your overheads?
>
> A cautionary take: In 1990 Jon Else, an American documentary  
> film-maker was
> working on a documentary about Wagner's 'Ring Cycle'. The focus was
> stage-hands at the San Francisco Opera. Stage-hands are a particularly  
> funny
> and colourful element of an opera. During a show, they hang out below  
> the
> stage in the grips' lounge and in the lighting loft. They make a  
> perfect
> contrast to the art on the stage.
>
> During one of the performances, Else was shooting some stage-hands  
> playing
> checkers. In one corner of the room was a television set. Playing on  
> the
> television set, while the stage-hands played checkers and the opera  
> company
> played Wagner, was The Simpsons.
>
> Else judge thought this shot would be great to use and he went ahead  
> and shot
> it; he then decide to obtain permission form the owners of the  
> copyright in
> The Simpsons to use the four-second clip. While Matt Groening, the  
> creator,
> did not have a problem, he did not own the copyright. Gracie Films, the
> owner, demanded that he pay them $ 10,000 for the use of the four  
> seconds.
>
> Else obviously could not afford to pay them. He could have gone ahead  
> and
> used the clip, and it would have fallen under his 'fair use' right to  
> do so.
> But this was too risky given that Elsie films had a record of pursuing
> copyright infringement cases, and the average costs of defending a law  
> suit
> in the US is $250,000.
>
> The situation in the US is pretty bleak now, and any documentary film  
> maker
> submitting a film to a broadcast organization has get copyright  
> clearances
> for all materials used, otherwise they refuse to broadcast the film.  
> This
> sounds almost like the Indian scenario of obtaining the censor  
> certificate
> for films before broadcast.
>
>> From software to the other world
> --------------------------------
>
> Anyway, as a response to the stifling copyright regime, the Free  
> Software
> movement began. What it did was to create something called the GNU  
> General
> Public License. This license, instead of denying people access or
> restricting their rights over a work, made software available for all  
> with
> the freedom to copy, modify, redistribute etc.
>
> It is, of course, important to remember that the word Free here refers  
> to
> freedom, and not to price. The only condition was that if someone  
> created
> something new out of a Free Software, then that work would also have  
> to be
> licensed on the same terms and conditions, namely that it could not be  
> taken
> outside the public domain.
>
> The movement has now spread to other domains  of cultural production  
> and the
> creative commons is the best example of how this idea is being used  
> with
> respect to movies, music, documentaries, literature etc. So why should
> documentary film makers start taking the Free Software movement  
> seriously
> and think about similar licensing models for their works, as well as  
> the
> very idea of collaborative production for the future?
>
> Here are some sound reasons:
>
> * DISTRIBUTION, A MAJOR HEADACHE NOW: One of the biggest problems  
> faced by
> documentary film makers in India has been the question of circulation  
> and
> distribution. This is an issue which has been discussed in a number of
> meetings as well as on electronic mailing-lists in cyberspace.
>
> If the work were available freely (again note this does not mean that  
> you
> cannot charge for the documentary, but means that a person who has  
> bought a
> copy may make a copy and distribute it to others), there would a far  
> greater
> circulation of documentaries amongst other film makers, students,  
> activists,
> scholars and general public.
>
> It is a fact that, currently, if you want to access documentaries,  
> then you
> either have to approach the film maker or approach an NGO  
> (non-governmental
> organisation) which keeps documentaries. Greater availability will  
> ensure
> greater distribution and subsequently promote documentary-film  
> watching.
>
> * IF YOU HAVE NO PROBLEM, SAY SO: I am sure that most documentary film
> makers do not have a hassle if people circulate their work, but it is
> important to remember that unless you state explicitly that people  
> have a
> right to do so, to use your work etc it is presumed that they do not  
> have a
> right to do so.
>
> In that sense, Copyright by default applies to your work. Which is why  
> it is
> important to start thinking in terms of a pro-active licensing policy  
> that
> allows people to use your work.
>
> * THIS DOESN'T MEAN WAIVING ALL YOUR RIGHTS: There may be one or two
> immediate concerns that arise. If I make my work available, isn't  
> there a
> danger that someone will use my materials and pass it off as their own  
> work.
>
> By licensing under a 'open content' license, you do not waive all your
> rights as the author of the work. It is really up to you to determine  
> the
> nature of the usage involved.
>
> For instance, you could have a license that allows the work only to be
> copied for non-profit purposes, so I can't make a hundred copies of  
> your
> work and then start selling the work for profit. Similarly, by  
> licensing
> under an open content license, you do not loose your other rights,  
> such as
> the right to be identified as the author of the work, and so on.  You  
> may
> allow or not allow someone to modify the work or use significant  
> portions.
>
> * FILM-MAKERS DON'T LIVE OFF ROYALTY:  More importantly is the fact  
> that
> most documentary film makers do not live off royalty in any case. Their
> films are either commissioned or they earn some money from various  
> prizes,
> invitations and the like.
>
> So, the fear of the loss of revenue cannot be a very serious one. But  
> apart
> from the fear of loss of revenue on the film maker's part is the more
> important issue. When a film-maker is commissioned to make a film, it  
> is
> important to ask the question as to where that money comes form, and  
> if the
> money comes from public finding, there should be no reason why the  
> film that
> is made from public money should then become the private property of an
> individual film-maker.
>
> Let's assume that the money that is provided for the film is not that  
> great
> and cannot be measured in terms of the efforts that the film maker has  
> put
> in. It is important to acknowledge that the film maker still benefits  
> in
> terms of experience, credits, recognition, future assignments etc.
>
> * THEN, THERE'S THE COLLABORATIVE NATURE OF FILM-MAKING: Copyright's  
> myth of
> the individual creator genius is perhaps more violently expressed in  
> film
> making. Film making, as we all know, is perhaps one of the most
> collaborative of the arts, and the amount of diverse labour that goes  
> into
> it is incredible.
>
> Yet, for the purposes of copyright, the author of the film is  
> considered to
> be a single individual, namely the producer of the film.  To its  
> credit, the
> system of credits in film making, especially in feature film, still
> recognizes this process of joint authorship.
>
> Another issue, of course, is to recognise the hundred and thousands of
> influences and inspirations that have gone into our own films. We need  
> to
> work beyond the assumed myths of copyright law, and develop alternative
> practices that recognise the multiplicity that goes into the making of  
> a
> film.
>
> When we extend this principle to the making of films, we can start  
> thinking
> in terms of the great benefit that making film-footage available has on
> film-making itself. I think at this point we really need to laud the  
> efforts
> taken by a few documentary film makers post-Gujarat, in the form of the
> shared footage project. Given that we (documentary film-makers in  
> India) are
> a small community, it is important to start thinking in terms of the
> benefits of collaboration, prime among which will obviously be vast  
> amounts
> of footage available to be used.
>
> COPYRIGHT, INCREASINGLY THREATENING CREATIVITY: If copyright is  
> increasingly
> threatening creativity, then one of the means of protecting this  
> creativity
> is by ensuring that we take pro-active steps that build towards an  
> ethic of
> the public domain in our own practices as well.
>
> One thing is sure: the digital revolution has arrived. You have more  
> and
> more people from a non-film-making background who want to experiment  
> with
> films, use it in the course of their work etc. In that sense the media  
> and
> the medium is no longer external to any of our practices.
>
> At some level, we all have to, whether we are academics or lawyers or
> activists, start thinking of ourselves as media professionals as well.  
> And
> the great thing that digital media has done is that it has enabled  
> almost
> any person to become a low-cost production studio.
>
> You have a decent computer, and you can mix and match and edit your own
> stuff. Tinkering cultures are a critical part of the way we are  
> learning the
> grammar of new media, for instance at the Alternative Law Forum, we  
> have
> been working to bring out a CD on queering Bollywood which brings  
> together
> clips of subversive queer readings of Bollywood. Three years ago we  
> wold not
> have imagined ourselves doing it.
>
> Two students at the law school -- Warisha and Vinay -- have made their  
> own
> films, one on Kashmir and one on Pakistan. I think we are living in  
> very
> interesting times as far as democratic media is concerned, and we cant  
> allow
> the freedom provided by technology to get curbed through a content  
> barrier
> that arose in the 18th century as Copyright.
>
> * IT'S A QUESTION OF POLITICS, ABOVE ALL: Finally most documentary film
> makers would identify themselves as being against the neo-liberal  
> global
> order. It's therefore important to start realizing that intellectual
> property is one of the key pillars upon which this neo-liberal order is
> built, and important to incorporate the subjects of our film into our  
> own
> practices as well.
>
> It does sound a little ironic to make a film on protests against the
> hegemonic order of the WTO, and then claim strong protection for your  
> own
> film!
>
> ENDS
>
> Lawrence Liang is a Bangalore-based lawyer, and leads the Alternate Law
> Forum. He wrote the above essay in an open letter addressed to Indian
> documentary film-makers recently, over the docuwallahs2 mailing-list on
> Yahoogroups.com He can be contacted via email at  
> lawrenceliang99 at yahoo.com
> ----------------------------------------------------------------------- 
> -----
> Frederick Noronha (FN)                    Nr Convent Saligao 403511  
> GoaIndia
> Freelance Journalist                      P: 832-2409490 M: 9822122436
> http://fn.swiki.net                       http://fn-floss.notlong.com
> ----------------------------------------------------------------------- 
> -----
> Where the needs of the world and your talents cross, there lies your
> vocation. --Aristotle
>
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