Forging a New Copyright Ethos Nobody wins unless everybody wins by Denise Caruso Media Letter, June 1990, Vol.1, No.1 The forward march of technology over the past few decades has, among other things, turned us into a society of rampant copyright violators. With virtually no concern about the legal rights of those who create original works -- whether printed words, music, photography or art -- we've used whatever technology we could get our hands on to feed our need to own. We don't even question anymore whether it's "okay" to tape programs or movies off TV. Guilt-free, we tape albums or CDs onto cassettes for our friends. Xerox machines have made anything printed on a page fair game for volumes of unauthorized copying. And of course, computer technology makes copying anything digital -- from software to images and sound -- as easy as the click-and-drag of a mouse or the "Enter" key on a PC. But it's a double-edged sword. Our voracious appetite for free information, and our "if I can copy it, then I guess I'd better" attitude, is repellent to those who can do the most to promote the business of interactive media: artists, information providers and property rights owners. Their resulting paranoia causes them to charge an arm and a leg for electronic publishing rights, if they'll grant them at all. At present, this is a no-win situation. Interactive technology products are, by nature, data intensive. Though multimedia authors and producers will no doubt be creating their own text, graphics, video and sounds for some of their products -- especially in the corporate world -- the fact is that the licensing of existing databases, still and motion pictures, video, music and sound will provide the foundation for most high-profile, recognizable multimedia products. So when you think about who owns the rights to valuable existing data -- especially today, when media conglomerates with deep pockets and big legal staffs litter the landscape -- you'll get a whiff of what the future could be if the multimedia industry doesn't get hip, and now, to how quickly a rash of copyright infringement lawsuits could snuff their newborn businesses. Conversely, you can also see a future where information providers lock themselves out of a potentially spectacular new market if they don't find a way to work with, trust and share the wealth with multimedia vendors whose new products could make their old information properties valuable again. SOB STORIES How many of you had a chance to see that wonderful disc by Newsweek called "Upheaval in China"? A team of Newsweek designers used still photographs and voice-over reportage by Newsweek staffers who were on the scene of the Tianamen Square uprising. The result was one of the best examples of interactive multimedia produced to date. "Upheaval in China" was an experiment, but the idea was to create a real product. It won't be one, because the rights to the photographs were too expensive to make it commercially viable. Garry Hare of Fathom Pictures in Sausalito has a similar tale about an aborted interactive product based on the popular spectator sport, Rotisserie League Baseball. Hare's comments, made at the CD-ROM conference in February, came as a part of a breakout session called "Creative License: A Question of Rights." (Other panelists included licensing specialist Dick Lehrberg, Dick Brass of Oracle Data Publishing and Patrick Gibbons, late of Pergamon Compact Solutions, producers of the Guinness Disk of World Records.) For his Rotisserie project, Hare wanted to mix likenesses of famous past players with contemporary players, mix in a little music, a little video footage, get a statistical database online. So he just needed to buy a few sets of rights . . . By the time he'd talked royalties with everyone involved, including Major League Baseball (who wanted 10% of gross wholesale), the Major League Baseball Players Association (10% more), the TV networks (another 6%), Sporting News regarding statistics (tack on 5%), music rights (3% of the wholesale), he was up to 43% of wholesale just in property rights. "That's one game that didn't get made," he said. On the other hand, when's the last time you went to a trade show and saw a multimedia vendor demonstrating a frame grabber or a color photo digitizer or animation program or some such, and what was up on the screen was a very recognizable photograph or piece of art? Nathan Benn, a contract photographer for National Geographic, saw just such a thing a few days ago at a multimedia conference in Boston. I won't name the company because I'm nice, but Benn said this firm was demonstrating its hardware by showing a montage of photographic images. Two in particular caught his eye -- a picture of a car, and a picture by Richard Avedon of Paloma Picasso. This was unfortunate for the company in question since Benn and another NatGeo contract photographer Cary Wolinsky put together a copyright seminar in January called "The Electronic Book," which discussed in detail the problems of property rights and electronic publishing. Benn doesn't allow his photos to be digitized for what should now be obvious reasons. He didn't do what he wanted to do, which was to get up the nose of the person in the booth by asking if the company had paid to use the photos. But he did gently make it clear that scanning and using a photo for demonstration purposes clearly constitute commercial use, infringing on both Avedon's and Picasso's rights. "It's way over the line by several miles," he said. A COMPLEX PROBLEM Thus it's not a big surprise that many artists are nervous about or refuse to allow their work to be distributed electronically. "What's annoyed us for years is the lack of respect for digital images," says Alvy Ray Smith, executive vice president of Pixar and one of the progenitors of computer graphics. "Our pictures sometimes take days and days to make. But we've seen people steal our stuff. Early on, when we were at New York Tech (the birthplace of computer graphics), we'd see our images just show up places." Pixar's solution to the problem is to create a product that Smith calls "appearance libraries" to be used with Pixar's Renderman software. He says they'll consist of textures, shades, photos -- all kinds of imagery that can be used with impunity. "We spent a lot of time thinking about handing out free images, and I think we should," said Smith. THE COMPLICATIONS But people without the wherewithal of a Pixar aren't going to be able to create the kind of massive data archives, especially of graphics and photos, needed to feed the multimedia beast. As Sean Callahan says in "Forum" (see page 11), what's needed is some kind of cooperative venture between the owners of information and the people who want to publish it. One of the best ideas so far is to create a model similar to the one used by ASCAP (American Society of Composers, Authors and Publishers). By random sampling and by licensing radio stations, TV stations, colleges and universities, Musak services, symphony orchestras and music promoters, and "general" Licensees like bars, restaurants, hotels, circuses, etc., ASCAP is able to estimate that there are over one billion licensed performances per year. Its members earn "performance credits" by how often their music is aired or performed. Such a model could be created for multimedia content providers, where heavy users such as advertising agencies or large multimedia producers would pay higher license fees than users with smaller needs. Different kinds of use -- i.e., education, commercial, internal promotions, consumer market -- would give different weight to license fees. NO (EASY) WAY OUT The easiest way to solve copyright problems in multimedia is first and foremost to do the right thing and pay people for their work. How to do that, however, doesn't lend itself to an easy solution -- mainly because it involves technology that most of us already own. In some ways, the situation is similar to the problem of gun control, or getting people to stop using DOS. It's pretty hard to convince people to give back what they've already got. They tend to ignore you, or worse, sometimes even feel a little threatened by the implications. In this case, as with intellectual property rights, the most important thing the multimedia industry can do is educate both property owners and users -- about why it's important to protect property rights, and why it's important to work with producers who want to use someone else's work. Anyone who's in this for the long haul owes it to themselves and the industry to work this problem out now.