Monday, October 31, 2011

where are all those mashers and mixers we keep hearing about?

More reading please, we're Ontarian

As mentioned in an earlier post, my employer, the Ontario Arts Council, recently commissioned a study on arts engagement in this extremely artistically-active province. The full report on the study can be found on the OAC website at this link, and I will be pulling out bits and pieces of the data as they catch my eye, to discuss them here.

I've already noted how well reading in general fared in the survey both in overall participation and frequency. It also does extremely well in terms of salience, which is the survey analyst's term for the relative importance placed on the activity by those participating in it. In fact, page 31 of the report notes:
"Reading in general exhibits the highest frequency and salience index scores overall."
In Ontario at least, it would appear that people gravitate to reading as their most-favoured form of arts engagement. It warms the heart of an old Literature Officer, it does.

Somewhat less engaging for Ontarians, it seems, is the artistic practice of writing. In fact, reading and writing present almost inverse numbers on the various engagement measures. So, while only 6% of respondents indicated they never read generally in newspaper or magazines, fully 95% say they never take writing lessons. While only 12% indicate they never read paperback or hardcover books for enjoyment, 83% say they never write fiction, short stories or poetry. By comparison, practices like music and visual arts show greater engagement in the actual doing of the art.

Hello? Remixers? Anybody out there?

Something else that jumps out at me across the disciplines is the engagement with art through technology, specifically online. Despite all the industry buzz around e-books, the OAC study shows only 26% of respondents indicating any frequency in enjoying their reading electronically. Compare that to the 56% of respondents who indicate frequency in listening to music online and the 54% who like to download and organize their music into playlists. And even with music showing higher digital engagement than books (which is to be expected, I think), it still surprises me to see only roughly half the respondents accessing music online. It seems new technology's grasp on cultural enjoyment is not as all-pervasive as we might be tempted to believe.

Which leads me to the result that really has me shaking my head. Page 36 of the report shows a brief analysis of the frequency of other online activities. Here are the results:
46% of respondents indicated they use the Internet to view art online, such as paintings, sculpture or photography;

16% of respondents indicated they share something online that they created themselves such as music, artwork, or stories, and;

only 12% of respondents indicated they take things they find online, like songs, text or images, and remix them into their own artistic creation.
I think I've been involved in the copyright reform discussion for too long, because that last statistic is a shocker to me. So much of the reform debate revolves around a commonly-held belief that technology has changed everything about how we appreciate and make art, and that a sharing, mashing-up and remixing culture is the new normal. Canada's new Copyright Modernization Bill (C-11), currently going before committee in Parliament, even contains a controversial User Generated Content amendment that promises to protect the public's right to take things we find online (like songs, text, film or images) and remix them into our own artistic creations.

Opponents of the UGC exception point out that it represents a dramatic appropriation of intellectual property rights from original creators, and they wonder why it's necessary when common practice has always permitted generous "remixing" of content without a special exception. With only 12% of the population indicating any frequency at all in this practice (half of that being only once a year), do we really need a whole new exception. Is digital remix culture more flash than reality?*

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* I have edited this last paragraph after discussion with one of my commenters. If digital remixing is the child of traditional reference, commentary and homage (and I believe it is) then our common practice of permitting these "uses" despite copyright protection should be enough, and dramatic new exceptions with potentially undesirable consequences for rightsholders are unnecessary.


Bill Curry said...

That is interesting. I was not aware that fair dealing allowed for any remixing of works. I thought it only allowed quoting and excerpts for private research, criticism, etc...

You mean you can currently create derived works and justify it as "fair dealings"? I am amazed. I think the current rules already go too far.

John said...


This is part of my frustration with the whole notion of "new" forms of creative expression. What's new about remixing and mashing, other than the terms themselves? So-called derived works are not an invention of the post-Internet generations.

One can find implicit and even explicit reference to other works, and even partial (qualifying as fair dealing) use of other works in "new" works as far back as there has been creative expression.

"Deriving" new works from old is part of how we create -- of course, when we do it clumsily or with little skill and art, the new work is called "derivative."

Free culture advocates love to point out that much original creation has a great deal of copying already in it, yet they can't quite turn the logical corner and see that what this tells us is that our nuanced fair dealing actually works very well and gives new creators incredible freedom to use our common culture.

Bill Curry said...

Hello again John.

I did a little Googling and came across this;

I don't know how well wikipedia can be trusted, but with regards to what it says about fair dealings, it says "The fair dealing clauses[1] of the Canadian Copyright Act allow users to engage in certain activities relating to research, private study, criticism, review, or news reporting.".

As such I think you are taking after the free culture crowd a bit more than you should and are reading far more flexibility into this defense than is reasonable.

There is nothing here which appears to allow any sort of derived or remix works at all.

Perhaps I am not reading this properly or perhaps wikipedia has it wrong, but thankfully there is nothing here which allows anyone to take another persons work, change it in some way, and then claim it as their own.

John said...

Hi Bill,

Your concern raises a lot of good questions about just what we mean when we're talking about "remixing." Certainly, the last scenario you mention sounds far more like flat-out plagiarism, and I don't think that line has been eliminated at all. Passing off someone else's work as your own is in the realm of fraud, and I'm confident society will always call it as offside.

That said, I think you're right about "fair dealing" as it is written in the Copyright Act. What I'm trying to get at is perhaps better described as a permitted act. It has always been accepted that artists borrow bits and pieces from each other. Digital culture may have blurred the lines a bit between what is borrowing and what is flat-out stealing, but in my opinion we don't need a whole new set of exceptions carved out of copyright to make those lines clearer. Common practice and common sense will do the job.

At the very least, these new exceptions strike me as rushing to a conclusion on a question that is still undecided. The study I quote shows no great social demand for appropriation powers, and clearly some folks are still unclear even about the meaning of appropriation. I received notice of this upcoming conference this morning:

Bill Curry said...

Thanks again for the reply John. I'm sorry though, but your words are confusing. On the one hand you say I am right about the limits of "fair dealing", but on the other hand you say it has always been acceptable to borrow 'bits' and 'pieces' of other peoples work to incorporate into new works. These seem like contrary statements.

Are 'permitted acts' not restricted to those which are defined in the Copyright Act? Yet you seem to be saying things which are not listed as exceptions within the act are non-the-less acceptable.

First, I don't believe it has always been accepted. nor should it be. Second, my reading of fair dealing (that I quoted previously) only has a very limited set of defenses for copyright infringement. None of which include creating new works. If people want to be able to do these things with other people's property they should have to pay and/or ask permission first.

John said...


Obviously, my preference is always that references and borrowings be explicit (even cited) and, where appropriate, done with permission of the original artist (in cases of parody, that last part is often impossible, but parody is an important type of expression and should be protected IMO - of course, there's good parody and then there's the endless Hitler movie mash-ups on YouTube).

Still, common cultural practice does not always require citation or permission. There are very few (if any?) jazz quotation lawsuits as far as I know, despite the fact that jazz artists regularly sample and borrow and remake the work of others. I think it's an important detail that they mostly do so while improvising on an instrument rather than editing pre-recorded sound, but that's just the fuzzy line I'm talking about.

Speaking of "permitted acts," Section 32.2 of the CA has this interesting detail in it:

(1) It is not an infringement of copyright

(a) for an author of an artistic work who is not the owner of the copyright in the work to use any mould, cast, sketch, plan, model or study made by the author for the purpose of the work, if the author does not thereby repeat or imitate the main design of the work;

Maybe that's where we formed our common practice around borrowings and building on each other's works, while at the same time maintaining a respectful distance on matters of pure property and commerce.

The reason I don't like a whole new batch of exceptions (especially UGC and "education") is primarily that I don't see any need for them. The Act is flexible enough as it is, and there appears to be no great social demand for these things. Instead, I believe the demand is coming from cost-cutters inside corporations and large universities. The populist nature of these exception requests is a mask, IMO.

BTW, are you the Bill Curry from the Globe?

Bill Curry said...

Hi John, while I could never object to referencing other works, 'borrowing', ESPECIALLY when it is explicit, is not and should not be allowed. Without permission, it is theft. Plain and simple.

I did not see anything in fair dealings about parody being a protected form of expression. Perhaps you could cite your sources for me please.

I don't know about jazz necessarily, but I do recall Men At Work being sued recently for their 'borrowing' of about a dozen almost imperceptible notes from Kookaburra. They lost. I think this demonstrates quite clearly that borrowing is not a permissible nor acceptable act. It may simply not be financially worthwhile for jazz musicians to sue each other, but that does not make it right.

Your quote of the copyright act seems to be very specific to sculptures. I do wonder what the reason for that is. Why do they not get the same protection as everyone else?

I too do not see any need for more exceptions, but not because I think we should be ignoring the law and infringing other people's rights anyway. Rather, because I think the fair dealing exceptions are more than sufficient to maintain free speech. If you want to use a work for purposes other than what is classed as fair dealing, then you should be seeking permission first.

As for me. No I'm not that Bill Curry, though perhaps he is part of our clan. I'm out in the maritimes. There are actually a few Bill Currys out here. A couple in my family alone. I guess it is a popular Scottish name.

John said...

Hi Bill,

I don't necessarily disagree. Perhaps the question is more appropriately then "what is a citation?" Jazz references are mostly uncited in the traditional sense (not explicit in liner notes), yet the winking insider knowledge one feels at recognizing a sly reference is, I think, in some way a valid citation.

Anyway, this is a part of our culture, and I hope it stays. It lies in a very interesting gray zone where copyright applies but may not be insisted upon. That's a good place, I think, but it requires lots of mutual respect to be used well. For me, copyright is about respect as much as it is about revenue.

Parody is not currently a fair dealing category, but it is being added as such in C-11. My take on parody is as stated - it may not be possible to get permission to parody, so removing that requirement has merit. O the other hand, citation of the original should stand. I'm not sure it will, and that's too bad for our culture I think, because it lowers professional standards.