I wrote this up several days ago and decided to share it with my students and other readers.
In this proposal (inspired by conversations with MattP) I suggest that we need a major documentary filmmaker to offer source material from his or her film under a license that will allow amateur documentarians to remix it. I argue that such a move would help to spur a democratic, citizens media, while bringing renewed attention to the work of the documentarian and quite possibly increasing sales of the original documentary. One further effect would be new publicity for the documentarian and his or her work among online communities interested in Web journalism, digital rights, and a media Commons.
We are in the middle of a communications revolution, as significant as the ones that began with the invention of the alphabet in the ancient world and the printing press in the 15th Century. Both of these earlier revolutions transformed art, culture, and politics, by democratizing the transmission of information. The current revolution, which is a digital one, promises to do no less. But there are obstacles. The Culture Industry, represented by an increasingly smaller number of increasingly larger corporations, has spent the better part of the last century consolidating its ownership of, and control over, the creative works of our culture.
In the early years of the internet these corporations failed to pay attention. After Napster, however, and with the Grokster case pending before the Supreme Court, they have moved from panic, to partial restoration, and finally to fantasies of consolidation and control unimaginable before. The Culture Industry has come to see the digital age as one in which it can gain advantages far beyond what the analog age afforded. Those of us who hold out a hope for the triumph of democracy over the Culture Industry must be vigilant. The progress of the sciences as well as the arts depends upon a repository of ideas, available to all, which inventors may draw upon to create new works. Lawrence Lessig (blog), professor of law at Stanford University and founder of the Creative Commons, contends that a healthy culture (one not dictated by a Culture Industry), is a “Remix Culture.” Remix Culture needs free ideas. No one said it better than Thomas Jefferson:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
With corporations attempting to patent, trademark, and copyright everything from life saving medical procedures to phrases like “fair and balanced,” we are a long way from Jefferson’s vision of the freedom of ideas. When Mickey Mouse was about to fall into the public domain in 1988, lobbyists for “intellectual property” owners (an oxymoron for Jefferson) persuaded Congress to pass the Sonny Bono Copyright Term Extension Act, extending the life of copyrights to 70 years after the death of the author (75 to 95 years in the case of works produced by a corporation).
In the same year the DMCA (Digital Millenium Copyright Act) was passed. This law accomplished an "end run" around Fair Use provisions, by making it illegal to copy or sample from any digitally encoded material which is protected by a DRM (Digital Rights Management) scheme (regardless of whether for Fair Use purposes). As the EFF (Electronic Frontier Foundation) puts it:
By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, section 1201 grants to copyright owners the power to unilaterally eliminate the public’s fair use rights. Already, the music industry has begun deploying "copy-protected CDs" that promise to curtail consumers’ ability to make legitimate, personal copies of music they have purchased.
In addition to being a threat to consumers, the law also has a “chilling effect” on commentators, movie reviewers, professors, and journalists, who may have good Fair Use reasons to sample from copyrighted works for purposes of pedagogy or critique.
With the rise of digital media, CDs, DVDs, and Digital TV, corporations are consolidating their control over the plethora of creative works that constitute our culture: music, movies, and news. These corporations view the internet as nothing more than a more efficient “content distribution system” for their “intellectual property.” The democratic potential inherent in the Web, the ability to create new democratic conversations and share information and culture through Weblogs, P2P (“Peer to Peer” systems), and other Web-based social software applications, is seen by these corporations as a direct threat to their old, 20th Century business model.
Currently a great deal of Remix Culture exists in a dangerous legal terrain. Practicing a form of civil disobedience in the digital age, amateur musicians have begun to remix bits of sampled sounds to create new forms of music. Though this practice has roots in Baroque and jazz music from the past, digital technologies now allow musicians to borrow not only the themes and motifs of a musical piece, but to sample sounds from a recorded version thereof.
One of the most popular examples of a remix work is DJ Dangermouse's Grey Album, which he made by combing clips from the Beatles White Album with an a cappella version of Jay-Z's Black Album. Thousands of people have downloaded the Grey Album on P2P networks since it was released in early 2004. Though Dangermouse distributed his work freely to others who distributed it to an even wider audience freely, EMI, who owns rights to the White Album, claims that the Grey Album is an illegal use of their intellectual property.
Not long after Dangermouse's Grey Album began to circulate, the Jay-Z Construction Set appeared on the P2P networks. The Jay-Z Construction Set is a large collection (several hundred megabytes) of audio clips, loops, riffs, breaks, and nine remixed versions of the entire Black Album. the creators of the Construction Set say that their goal is to "inspire new artists to add their voices to the cacophony." LIke the Grey Album, the Jay-Z construction set is, arguably, illegal, though no one has profited from it and there is no evidence that it has resulted in a loss of sales of the Black Album. On the contrary, by increasing the exposure of the Black Album the Jay-Z Construction Set may very well have contributed to more sales of Jay-Z's music.
In its November 2004 issue, Wired magazine broke new ground. The magazine included, in its print edition, a free CD with music by such luminary artists as David Byrne, Chuck D, and the Beastie Boys. The music on the CD was licensed with a new sort of license that allows content producers in the digital age to give other artists certain rights to borrow from their work.
This new CC (Creative Commons) license is not a replacement for, but a compliment to, existing copyright law, and can be tailored to the desires of the copyright owner. In the case of the Wired CD, anyone was free to sample from the music and remix it to create new works. A contest was held to judge the best of these remixed works, bringing further publicity to Wired and to the musicians who contributed to the Wired CD. In an online interview, Lessig explains the significance of this endeavor:
The purpose of all this was to demonstrate that you could give up control over part of your rights and encourage lots of creativity on top of it without necessarily giving up the right to make money from the underlying content that's being sampled.
The sampling license in its pure form says, you can sample me, you can sample me for commercial purposes, but you can't copy my underlying song and distribute that for either commercial or noncommercial purposes. Again, it's encouraging the kind of creativity that the technology has at its soul: the creativity, which you're going to see more of in music and film, the creativity of remixing other creativity.
What happens in the digital music world is a harbinger of what will happen in the digital movie world. The MPAA (Motion Picture Association of America) is pursuing a DRM (Digital Rights Management) scheme combined with legislative and legal assaults on the principles of “Fair Use.” These actions have sought to criminalize the copying of legally purchased DVDs and threaten to stifle innovation on the internet (specifically by making P2P technologies all but illegal). Those of us who are interested in helping to build a “Commons” of creative work as an alternative to Big Media’s Big Content should look to the example of the musicians who contributed to the Wired CD.
What applies to music also applies to books. Dan Gillmore (blog), formerly a technology columnist with the San Jose Mercury News and author of We the Media, a book about grassroots journalism in the digital age, has famously said "my readers know more than I do." In this spirit, several authors have released their books under CC (or similar) licenses, hoping to recruit the talent of the Web public in correcting, annotating, and expanding their work. Lessig is a notable example.
Lessig has recently invited the Web public to help him rewrite his book on internet law, Code and Other Laws of Cyberspace, first published in 1999 by Basic Books. This is not Lessig’s first foray into leveraging the power of the Commons. In March 2004, through a deal with Penguin Press, Lessig made a copy of his book Free Culture available on a website licensed with a CC license allowing anyone to make derivative, non-commercial use of the book's content. Within a few days, people began to upload free MP3 files of the book (audio books) and to post annotated and glossed copies of the book’s chapters in various formats (collected here). Because internet technology and law advance so rapidly, Lessig has recently decided to update Code. But this time he is taking his use of the Commons one step further. He has created a collaborative website (known as a wiki), inviting the Web public to help him revise his book. Anyone who wants to can make changes to Lessig's Code. Of course Lessig will make the final editorial decisions for the revised print edition, but by opening access to his content online he is leveraging the collective knowledge of the Web public to help him produce a better work. What is true for music and books is also true for journalism.
In September of 2002, Sheila Lennon was featured in a New York Times article about bloggers. Only one sentence from the interview ended up in the article. Though she felt that the Times had quoted her fairly, Lennon decided to publish her own copy of the full interview on her Weblog, allowing readers to dig deeper. The Web makes it easy for journalists to share such source material with their readers. Barb Palser, writing in the American Journalism Review, puts it this way:
Most journalists who publish interviews they've conducted are...loath to let a good thought go to waste. Not all interviews are interesting or coherent or even publishable, but every reporter knows the regret of culling one quote from an amazing conversation. Why not invite the audience to read (or hear) the interview?
Jonathan Dube, who publishes CyberJournalist, points to a media archive maintained on the Web by the US Department of Defense as an example of how valuable interview databases are for the journalist who wants to dig deeper. Palser summarizes Dube's take on the DoD's archive:
[DefenseLink is] a 'journalist's gold mine' of speeches, briefings--and transcripts of every media interview given by top DoD officials. The site is a prime venue for what [Dube] calls interview voyeurism--journalists can not only spy on the techniques of their colleagues, but pluck quotes for their own stories since the interviews are public record.
Ultimately, when source material is made available, everyone wins, including the reporter. Indeed, despite the trepidation of some journalists, journalists savvy to the Web may be the primary beneficiaries; Lenoon explains (quoted in Palsner):
Traditional reporters who think of the Web as just another way to publish the same story they'd write for print are the ones most likely to be rattled by the source putting up the conversation.... Online journalists are more likely to understand the freewheeling nature of the Web--the synergy that comes when their story stands on its own and the source's transcript sends more people to the reporter's story....
Digital Film and OurMedia
I have considered not only how amateurs, but also professional musicians, authors, and journalists stand to benefit from participating in Remix Culture. I would like to suggest that filmmakers also stand to benefit—especially documentary filmmakers who pursue critical journalism through their films. By granting small, amateur filmmakers access to some of their source material, professional documentarians would help to attenuate the power of Big Media, invigorate public debate, and bring a new form of recognition to their own work.
The problem of film in the digital age is especially tricky. The small or amateur documentarian, enabled by cheaply available digital filmmaking tools, nevertheless faces a legal minefield. Lessig explains:
...The point to recognize is that the rise of digital technologies and the spread of the internet has encouraged a different kind of filmmaking to go on. So the idea that people with a Sony videocam who are trying to make a little documentary about something going on in their hometown that they'll share on the internet with anybody who wants to get access to it ... the idea that those people have to live by the same rules that 20th Century Fox lives by is crazy. The rules that 20th Century Fox lives by are crazy, but at least a big company like Fox can afford the legal costs to bear the burden of those rules.
The solution, Lessig urges, is to build a Commons of shared source material based on CC licenses:
If you can begin to wrap content in licenses where the original creator signals there are subsequent uses available for this content, you could begin to develop a different norm--a norm around people being free to remix and build upon, to sample out of, to supplement, to criticize content that otherwise ... at a minimum, it's uncertain whether you have that right. More fundamentally, it's probably not the case that you have that right because of the way the copyright law has developed.
Crucial to the effort of building a rich Commons is OurMedia. OurMedia, a not-for-profit organization made up of a “who’s who of bloggers, scholars and citizens media advocates,” launched its website on March 21st, 2005. With help from the Internet Archive and Creative Commons, OurMedia, in it’s own words, “seeks to spur the citizens media revolution.” It is instructive to look at OurMedia’s mission statement.
[OurMedia], a free global repository for grassroots media, allows anyone to upload, store and share digital works. The site will accept home movies, music videos, original music, audio interviews, photos, art, documentaries, grassroots political ads, animations, books, student films, software — any work in digital form....
The site is open to amateurs, hobbyists and professionals alike. There is no charge for the service....
“We’re living in a time of fundamental change in the media landscape,” said Lasica [J. D., cofounder of OurMedia].... “We’ve been taught that only a trained professional elite can create media. But people are now realizing that there are alternatives to top-down, passive consumer culture.
“Some of the most startling forms of new expression can be found online in the works ordinary people are creating every day,” he said. “Ourmedia is about spotlighting those works and creating a place where people can come together, learn how to create do-it-yourself media, and discover these creative jewels that are now hidden away.”
Ourmedia will also test the boundaries of fair use, permitting inventive or educational mash-ups or “remix” works that contain small snippets of copyrighted work — but drawing the line against infringement and illegal misappropriation of others’ content.
Advisors to the OurMedia project include:
Lawrence Lessig, a Stanford University professor and chairman of Creative Commons; James Boyle, co-director of the Center for the Study of the Public Domain at Duke Law School; David Bollier, co-founder of the public interest group Public Knowledge; Angela Beesley of Wikipedia; authors Howard Rheingold and Dan Gillmor, and 10 others.
Remix Documentary (The Plan)
So here’s the plan. Where possible, a major documentary filmmaker should make source material from his or her documentary available on OurMedia under a under a CC license (non-commericial, attribution, derivative, share-and-share-alike). This would not require relinquishing copyrights to any of the material. With such a CC license, citizen journalists, video bloggers, and citizen documentarians would be free to sample from the source material to produce their own investigative reports or documentaries, as long as:
- They credit the content owner.
- They do not use their derivative work for commercial purposes.
- They license their own derivative work under a similar CC license, so that anyone can produce a derivative work from theirs, as long as those people too credit the original and make their work available for non-commercial purposes only.
Again, this can all be done legally under the CC licensing scheme without the documentarian giving up an iota of his or her copyrights to the source material.
Further, the documentarian should approach OurMedia with the plan, and a proposal to host a "remix contest" for citizen documentarians, based on the original film. Like the various members of the Web public who remixed chapters of Lessig's Code, glossing and annotating it, enhancing its content and thereby providing greater visibility for the book and its author, contest participants would undoubtedly produce fresh versions of the original documentary, drawing on the cornucopia of relevant information (much of it available on the web) that has appeared since the release the original documentary film.
Such a contest would also bring a new round of publicity for the original, and for that filmmaker’s work in general. At the same time, the participation of a well-known documentary filmmaker in the OurMedia / Creative Commons project would doubtless help to legitimize the vision of a critical media Commons for the digital age; a vision that is vital to the future of global democracy.