Copyright Law and Mash-Ups: A Policy Paper
149 Pages Posted: 11 Dec 2015
Date Written: July 1, 2010
This report provides an analysis of the cultural, policy and legal implications of ‘mash-ups’. This study provides a short history of mash-ups, explaining how the current ‘remix culture’ builds upon a range of creative antecedents and cultural traditions, which valorised appropriation, quotation, and transformation. It provides modern examples of mash-ups, such as sound recordings, musical works, film and artistic works, focusing on works seen on You Tube and other online applications. In particular, it considers Literary mash-ups of canonical texts, including Pride and Prejudice and Zombies, The Wind Done Gone, After the Rain, and 60 Years Later; Artistic mash-ups, highlighting the Obama Hope poster, the ‘Column’ case, and the competition for extending famous album covers; Geographical mash-ups, most notably, the Google Australia bushfires map; Musical mash-ups, such as The Grey Album and the work of Girl Talk; Cinematic mash-ups, including remixes of There Will Be Blood and The Downfall.
This survey provides an analysis of why mash-up culture is valuable. It highlights the range of aesthetic, political, comic, and commercial impulses behind the creation and the dissemination of mash-ups. This report highlights the tensions between copyright law and mash-ups in particular cultural sectors.
Second, this report emphasizes the importance of civil society institutions in promoting and defending mash-ups in both copyright litigation and policy debates. It provides a study of key organisations – including: The Fair Use Project; The Organization for Transformative Works; Public Knowledge; The Electronic Frontier Foundation; and The Chilling Effects Clearinghouse.
This report suggests that much can be learnt from this network of organisations in the United States. There is a dearth of comparable legal clinics, advocacy groups, and creative institutions in Australia. As a result, the public interest values of copyright law have only received weak, incidental support from defendant companies – such as Network Ten and IceTV – with other copyright agendas.
Third, this report canvasses a succinct model for legislative reform in respect of copyright law and mash-ups. It highlights: The extent to which mash-ups are ‘tolerated uses’; The conflicting judicial precedents on substantiality in Australia and the United States; The debate over copyright exceptions relating to mash-ups and remixes; The use of the take-down and notice system under the safe harbours regime by copyright owners in respect of mash-ups; The impact of technological protection measures on mash-ups and remixes; The possibility of statutory licensing in respect of mash-ups; The use of Creative Commons licences; The impact of moral rights protection upon mash-ups; The interaction between economic and moral rights under copyright law; and Questions of copyright law, freedom of expression, and political mash-ups.
Keywords: Copyright Law, Remix Culture, Mash-Ups, Fair Use, Copyright Exceptions, Technological Protection Measures, Statutory Licensing, the Creative Commons, Moral Rights, Free Speech.
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