Remix Culture and Amateur Creativity: A Copyright Dilemma

By Guilda Rostama, Consultant, WIPO

Many commentators today are talking about the “age of the remix”, a practice enabled by widespread access to sophisticated computer technology whereby existing works are rearranged, combined or remixed to create a new work. They make it sound as if remixing were a novel phenomenon, but a brief glance at human history reveals that it is in fact nothing new.

Most cultures around the world have evolved through the mixing and merging of different cultural expressions. The US media scholar Professor Henry Jenkins argues that “the story of American arts in the 19^th century might be told in terms of the mixing, matching and merging of folk traditions taken from various indigenous and immigrant populations.” Another historical example of remixing is Cento, a literary genre popular in Medieval Europe consisting mainly of verses or extracts directly borrowed from the works of other authors and arranged in a new form or order.

Similarly, the arts and architecture of Renaissance Europe in the 15th and 16th centuries derive directly from Ancient Rome and Ancient Greece. Another example is found in Persian traditional music. Drawing on the work of different artists stored in a repertoire known as radif, performers create new musical variations and improvisations around common themes. Their similarity with the original work is such that listeners often feel they have heard the musical theme before. Throughout history, the public has been actively involved in creating and re-creating culture, a phenomenon referred to by the US academic Lawrence Lessig as the “read/write” culture.

A shift in the creative landscape

However, technological changes that emerged throughout the 20^th century enabled the widespread distribution of music, prompting a shift in the creative landscape in favor of an increasingly passive “read-only” culture. “The 20^th century was the first time in the history of human culture when popular culture had become professionalized, and when the people were taught to defer to the professional,” Professor Lessig notes.

In a further twist, widespread access to ever more sophisticated computers and other digital media over the past two decades has fostered the re-emergence of a “read-write” culture. Today, anyone with access to a computer and an internet connection can create remixes, mash-ups, and spin-offs combining musical and audiovisual elements to create new works.

Where does copyright stand in all of this?

Important challenges for copyright

The remix culture raises important challenges, not only for cultural industry stakeholders, legal practitioners and scholars, and policy makers, but also for members of the public.

The national copyright laws of most countries around the world do not effectively address these challenges, and leave many important questions unanswered. For example: Are remixes legal under copyright law? If so, should the “remixed work” benefit from standard copyright protection? Should it qualify as a derivative work, (in the same way as  an adaptation or a translation as defined under Article 2(3) of the Berne Convention on the Protection of Literary and Artistic Works)? Should there be a right to remuneration for the original author? Should a distinction be made if the remixed work is used for non-commercial purposes?

A violation of copyright?

Many within the cultural industries believe that any unauthorized extract taken from a pre-existing work constitutes copyright infringement. Strictly speaking, they are right. Remixes do violate the copyright in a pre-existing work, insofar as the act of creating a second work that contains elements of an original work violates both the right of reproduction (Article 9 of the Berne Convention) and the right of communication to the public (Article 8 of the WIPO Copyright Treaty) of the original author.

The moral rights of the original author also come into play. Under Article 6bis of the Berne Convention, “the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification […] which would be prejudicial to his honor or reputation”. When a given song is remixed in a way that strongly decontextualizes its meaning, the author of the original work can claim a violation of moral rights.

Compliant with copyright?

However, it could also be argued that remixes and mash-ups are compliant with copyright law. For example, Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) states that in “certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”, an exception to copyright can be made.This school of thought argues that as long as the remixed work remains in the realm of amateur creativity (i.e. no commercial gain is derived from it), the exclusive right of the original author can be limited, as the new work does not threaten the “normal exploitation” of the work.

In other words, just because images from a cinematographic work are mixed with a specific song that does not mean that the public will stop purchasing either the original movie or the original soundtrack. On the contrary, such remixes or mash-ups may constitute free publicity for the pre-existing work.

The uncertain legal status of remixes and mash-ups is the source of great frustration among the public.

One might also argue that remix works are akin to quotations protected under Article 10 of the Berne Convention. Under this Article, it “shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose”. While quotations are often associated with literary works, the Berne Convention refers to “quotations from a work”, which may include audiovisual, musical or even photographic works. In 2011 the Court of Justice of the European Union decided in Eva-Maria Painer v. Standard Verlags GmbH and others (CJEU-C/145/10) that photography could be quoted, as long as it had been made lawfully available to the public and the name of the author was indicated. It could therefore be argued that remixing audiovisual or musical works is similar to quoting from a literary work.

The uncertain legal status of remixes and mash-ups is the source of a great deal of frustration among members of the public. Few understand why the creative remixes they upload to YouTube are automatically taken down or blocked. Many, unfamiliar with the minutiae of copyright law, feel their creativity is being censored. As Professor Lessig observes, the copyright laws that exist today were to a large extent drafted with the principle aim of regulating relations in the professional world, not the activities of ordinary citizens. In the digital environment, however, this has all changed. “For the first time, [copyright] law regulates ordinary citizens. For the first time, it reaches beyond the professional to control the amateur, to subject the amateur to a control by the law that the law historically reserved to professionals.”

A new exception

Existing copyright laws do not adequately address the challenges arising from the wealth of amateur creativity facilitated by the tools available within the digital environment. Canada is one of a few countries, if not the only one, to have introduced into its copyright law a new exception for non-commercial user-generated content. Article 29 of Canada’s Copyright Modernization Act (2012) states that there is no infringement if: (i) the use is done solely for non-commercial purpose; (ii) the original source is mentioned; (iii) the individual has reasonable ground to believe that he or she is not infringing copyright; and (iv) the remix does not have a “substantial adverse effect” on the exploitation of the existing work.

The jury is still out

The situation, however, remains less than clear elsewhere. In the United States, the courts are still grappling with the issue, as indicated in Stephanie Lenz v. Universal Music Corporation which has been ongoing since 2007. The claimant, Stephanie Lenz, posted a video to YouTube of her children dancing and running around in her kitchen with Prince’s Let’s Go Crazy playing in the background. A few months later, Universal Music Corporation had the video removed from YouTube claiming copyright infringement; an allegation strongly contested by Ms. Lenz.

After six years of proceedings, in 2013 a district court ruled that copyright owners do not have the right to simply take down content before undertaking a legal analysis to determine whether the remixed work could fall under fair use, a concept in US copyright law which permits limited use of copyrighted material without the need to obtain the right holder’s permission (US District Court, Stephanie Lenz v. Universal Music Corp., Universal Music Publishing Inc., and Universal Music Publishing Group, Case No. 5:07-cv-03783-JF, January 24, 2013).

A Green Paper issued by the US Department of Commerce Internet Policy Task Force in 2013 recognized this gap in the law: “[A] considerable area of legal uncertainty remains. The question is whether the creation of remixes is being unacceptably impeded. There is today a healthy level of production, but clearer legal options might result in even more valuable creativity”.

Given the emergence of today’s “remix” culture, and the legal uncertainty surrounding remixes and mash-ups, the time would appear to be ripe for policy makers to take a new look at copyright law.