I read this letter written in to TODAYonline by a Galen Yeo, and I feel that there are some issues that should be addressed.
Disclaimer: Nothing in this blog post should be considered legal advice, and is merely a discussion as to the nature and purpose of the law of copyright.
A very brief introduction
I state upfront that Galen Yeo is entitled to his opinions regarding copyright law, but a person must always be aware that the things they say and do are constrained by the limitations of their own knowledge and understanding.
The term “intellectual property” is very much a misnomer. In law, there is no such thing as “intellectual property”. There is the law of copyrights, law of trade marks and passing off, law of patents, registered designs, and various other types of statutory monopolies created by legislation. All of them are very different things, and have different reasons for existing, different ways of existing, and are different in nature.
To lump all these “things” together as “intellectual property” is to make it very easy for one to become confused, making it difficult for one to understand them properly.
To make it clear, this post will talk about the Law of Copyright, and as such, will only apply to copyright.
The Nuances of the Law of Copyright
What is copyright? The words mean what they say. A copyright is literally, a right to copy. This means that a copyright owner is the only person allowed by law to make copies of the expression of an idea.
What happens when someone else makes copies of that expression of the idea without the authority of either the copyright owner, or some other legal authority? The person who makes a copy without authority infringes on the copyright of the owner.
Copyright does not exist to protect economic profits, much less GUARANTEE such profits.
This means that the word “piracy” has no legal meaning. What we have to understand is the meaning of “copyright infringement”.
Idea or Expression?
Note that I emphasise “expression of an idea”. This is fundamental to the understanding of copyright. Copyright law does not prohibit the copying of AN IDEA. It only reserves the right to make copies of the EXPRESSION of the idea.
For example, if you write a story about a boy who had a demon fox sealed inside his body, and how he overcomes rejection from those around him to gain respect and love [Naruto], you have not infringed copyright. If you draw manga or create anime from this story, using your own designs and visuals, you have not infringed copyright.
However, if you used the identical or substantially similar EXPRESSIONS of the words used in Naruto’s story in your own, then you MAY have infringed copyright. If you copied the art and visuals from the Naruto manga and anime into your own story, you MAY have infringed copyright.
Copyright Infringement
Earlier on I stated that copyright is infringed when a copy is made of the expression of an idea, without the authorisation of the copyright owner or some other legal authority. A question that must be answered is, what is a copy?
This looks easy, but actually is not. The established rule is that you look at whether the alleged infringing copy contains the essence of the original. If it does, then it is a copy. If it does not, then it is not. Obviously if you make an exact duplicate of the original, it has to be a copy. The difficulty is when the alleged copy is not an exact duplicate, and is possibly a portion of the original. The only way to tell is to have the Court determine the evidence.
The discussion in this paragraph is not irrelevant, and in fact is very important, as I will explain below.
The Creation of Culture
Since Galen Yeo claims to be a member of the creative community, therefore he must also understand that creation of cultural works do not occur in a vacuum. When we create new works, not only do we exercise our creativity, but we also use raw materials in the creation of new works.
What are these raw materials? The very culture surrounding us. We make new music by using old music. We make new art by using old art. We write new prose and poetry by building upon the works of others who have come before.
What Galen Yeo fails to understand is, whenever we create new works, we are ALWAYS copying. Copying is necessary and FUNDAMENTAL to the creation of new works. If “piracy is always wrong”, as Galen Yeo claims, then the creation of any and all works will always be wrong.
This is not a hypothetical. A simple Google search will reveal: hip hop artists regularly getting sued by record labels for using unauthorised samples, home videos uploaded to Youtube getting taken down simply for using copyrighted songs as background music, fansites of various authors or artists getting sent letters to have their own creative derivative works taken down just because they are unauthorised.
As a member of the creative community, is this the sort of creative environment that Galen Yeo wants?
Permission to Create
In the black-and-white world of “copyright infringement is always wrong” that Galen Yeo lives in, anyone who seeks to create new works will have to seek permission beforehand, from all and any existing copyright owners, just to ensure that they do not fall foul of any potential existing copyrights.
In such a world, only the rich and powerful will have the resources to conduct such searches. Such as the huge record labels, huge publishing houses, huge media companies, and etc. In such a world, only the rich and powerful will be ALLOWED to create.
As a member of the creative community, does Galen Yeo not appreciate the restriction on free speech and creativity that would result from his black-and-white perspective of how copyright works?
Entrepreneurship and Innovation
It is no accident that Google and Youtube, two shining examples of technological and artistic innovation, have come from a foundation of IGNORING copyright to build a business. My argument is that overly restrictive copyright rules do not protect creativity, but in fact HINDER creativity, and protect incumbent special interest groups.
The reason why there is no Youtube or Google arising from Singapore, I submit, is because we Singaporeans are too obedient to the laws, and fail to appreciate that what is often illegal may not actually be unjust or morally wrong. Nobody would dare to start a business on the basis of copyright infringement, EVEN IF it provides great social and commercial value, because nobody in Singapore dares to try to be different.
Not condone, but merely see the shades of gray
The purpose of this post is to try and convince those like Galen Yeo to try and see the shades of gray. As a member of the creative community, I’m sure that of all people he should be able to appreciate that the world does not exist in stark dichotomies.
I do not condone the downloading of anime per se. But I do believe that there are those who download and create copies, for the purpose of creating new works. Some do translation work, and add subtitles to the RAWs that they download. Others add their own music, or mash up and remix various different music with various different portions of anime. I argue that all of these actions SHOULD constitute valid defences against allegations of copyright infringement.
Sadly however, they are not. In Singapore, we do not have a culture of free speech. Therefore, copyright trumps free speech, and no matter how creative or artistic you are in your derivative works, you will still be considered to be infringing.
Is this the sort of world that members of the creative community such as Galen Yeo want?
10 Comments
Wow, it’s a good read on copyright law. However, I’m puzzled: was copyright an idea mooted so that people are encouraged to create new works for the public domain, or was it something major companies (like Disney) lobbied for because they wanted to control the profits?
pkchukiss:
thank you, I’m glad you liked this post. =)
You can research on the history of copyright law through Google, but if I am not wrong, the first actual copyright legislation is the Statute of Anne, way back in Ancient England times.
Prior to that time, there are rumours of common law copyright, but I don’t know if that is verifiable.
I guess economists will tell you that what copyright law does is to incentivise the creation of copyrighted works.
However, economists will also tell you that there is a fine balance to be struck: restrictions that are too strong and too broad will result in LESS creation of copyrighted works.
Personally, I think we’ve gone far beyond that balance already.
“On the Origin of the Right to Copy” by ronan deazley. that would sum up the history of CR.
CR now, essentially, serves different purposes in dif societies. ie. civil law CR is premised very differently from common law CR - and i’d even extend tt to UK CR and US CR.
Write more copyfight posts leh.
Also, copying is fundamental to appreciation. The fact is, our brains are copying machines — we can extract a tune and store it in our heads for later memory. Otherwise, songs would not be able to get stuck in our heads.
If our voices could be speakers, we could probably replicate mp3’s with reasonable fidelity. The brain is the ultimate photoshopping tool, the ultimate audio editor.
Sometimes, motifs linger in our minds, influencing the way we create works, and we don’t even know it.
I think the reason that so many libertarians (who you would expect to be quite vehement about property rights) are so upset over copyright law is that it often violates the notion of freedom to think. When we download an mp3, often we have heard that song so many times already — echoing in our heads — only we seek to reinforce it with external stimulation.
If you think technology upsets traditional conceptions of copyright now (what with all this filesharing), wait till we get to the age where our brains will have machinery to go with them. (Mind-machine interface. Sounds quite distant, but we already know how to manipulate nerves to generate perception (make artificial digital ears, etc.) What happens when we start sending the stuff inside our heads to our friends?
“NO! You may not think! That violates intellectual property law!”
Hi Han,
Your entry has been featured in The Singapore Daily. Thank you for your support!
The Singapore Daily Team
singaporedaily.wordpress.com
SGDaily:
Thank you ^_^
Great article. Would be better if this was published in the printed media, then much more people may get to see this.
Han
You misunderstand the letter with an argument which runs tangentially to what I wrote. People are copying all the time - the context of how that works depends as you have pointed out - in different ways. We can discuss photocopying a newspaper article in terms of “fair use” for education or we can talk about the creative commons structure created by members of the creative community. That wasn’t even remotely my point.
The letter does not explicate copyright. It does however address the mindset of people who feel entitled to download or acquire pirated goods for their own use without payment to the legitimate stakeholders. We can argue how about copyright works and should work, but that isn’t what’s at stake here.
Yes, intellectual property covers a broad scope, and yes, different viewpoints may exist. But that’s not what this is about. If Radiohead chooses to acknowledge the situation with their own response, and offer a free download of their new album - that is their choice. Perhaps you should investigate what people call the ‘free rider’ philosophy and write about that.
Hi,
I’ve been conducting some research for a while trying to get copyright for dubbing Naruto in another language, do you have any ideas as of whom I should be contacting?
Thank you for your time,
Sincerely
Michel Al Rahi
One Trackback/Pingback
[...] Read the rest of this great post here [...]
Post a Comment