Having had an extended
hiatus from blogging after a particularly bruising and fraught
masters dissertation process (!), this blogger is absolutely
delighted to return to discuss the plight of Sebastian
Tomczak,
a music technologist whose 10 hour YouTube video
of White Noise
was plagued by copyright complaints (this story was mentioned on the
Copykat
last week). After a furore that engulfed the internet over a period
of days, Tomczak tweeted
on the 08 January that YouTube released the copyright claims on the
video.
Tomczak’s approach and
his music – does it attract copyright protection?
Tomczak interviewed with
Torrent
Freak,
and discussed his approach to his work:
“I teach and work in a
music department at a University here in Australia. I’ve got a PhD
in chiptune, and my main research interests are various intersections
of music / sound / tech e.g. arduino programming and DIY stuff,
modular synthesis, digital production, sound design for games, etc,
The white noise video was
part of a number of videos I put online at the time. I was interested
in listening to continuous sounds of various types, and how our
perception of these kinds of sounds and our attention changes over
longer periods – e.g. distracted, focus, sleeping, waking, working
etc,.
I ‘created’
and uploaded the video in question. The video was created by
generating
a noise waveform of 10 hours length using the freeware software
Audacity and the built-in noise generator.
The resulting 10-hour audio file was then imported into ScreenFlow,
where the text was added and then rendered as one 10-hour video
file.” (I added the red to the font.)
As a very
general rule of thumb, for copyright protection there must be (i) a
work (ii) that work must be original (iii) the work must be fixated.
Great debate can be expounded on all three of these aspects – what
a work is, what originality is and what amounts to fixation. However,
it is the question of originality that is most pertinent to Tomczak’s
case. Within the European jurisdiction, a work is considered to be
original when it is ‘the author’s own intellectual creation’
(Infopaq);
where she might exert ‘creative freedom’ (FAPL)
and where she is able to ‘express her creative abilities in the
production of the work by making free and creative choices … so she
can stamp the work created with her “personal touch”’ (Painer).
From these legal
considerations of originality, it would appear from Tomczak’s
description of how the work was generated (in red above) that it
would likely not meet the legal originality threshold. It appears
that no creative freedom was exercised nor were free and creative
choices made. (I must concede, however, that I have based my
assumption on the quote provided by Tomczak above. It
is possible
that he made creative choices during the creation of his piece and
just did not explain this to Torrent Freak.)
YouTube’s Content ID
Software and the Article 13 question
Tomczak’s case is yet
another example that highlights the limitations of Google’s content
ID software. It shows that the software is incapable of determining
whether or not copyright actually subsists within the video in
question. (And this case does not even touch upon fair dealing or
fair use issues!)
Readers will be aware of
Article
13
of the proposed Directive on Copyright in the Digital Single market.
It is supposed to redress the ‘value gap’, which posits that
content creators are losing massive profits because of copyright
infringement online. Article 13 is specifically directed at platforms
that host user-uploaded content and threatens potentially to obligate
these platforms either to use content ID software – such as that
used by YouTube – or to agree licenses with rightsholders. If
platform providers that host user-uploaded content are obligated
under the law to use content ID software, the
completely absurd set of circumstances that materialised in the
Tomczak case
– where white noise was subjected to copyright complaints – would
arise as a result of the operation of the law.
Law is an essential aspect
of the social contract and a regulative concept that binds our
society together. If we make laws that generate absurd outcomes,
surely we must question why we choose to govern ourselves in this
way. This writer must argue that laws that intrinsically create
preposterous circumstances will probably not serve society positively
– they will serve to alienate citizens and inhibit cultural
development.
The limitations of YouTube’s
$60 million Content ID software are brought into sharp focus in
Tomczak’s White Noise case and brings to mind the dangers of making
the use of these types of software obligatory
under the law.
Article 13 is currently with the Legal
Affairs committee
and has been hotly contested throughout its entire journey through
the legislative process. The committee was scheduled to vote on it
this month but this will probably be pushed back to March due to the
difficulties associated with the Article. This writer is waiting
to see the result of the compromises and negotiations currently
taking place surrounding Article 13 with bated breath.
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