Copyright matters. It is a body of law that affects what we know, how we experience and understand the world, and what we are allowed to do with the knowledge we gain. But for most of us copyright is more of a snarl. We only know of it as a restriction that complicates how we interact with each other. It is not often experienced as regulation that helps make good new things happen.
So what is happening with the rules that will affect our capacity to “leap, connect, sparkle and guide” others? There is a copyright agenda underway. And in short, under Attorney-General George Brandis, there has been a lot of twitching and jerking.
Brandis did not have a clean slate. When he took his place in the Abbott ministry there was already an extensive and much needed review of copyright underway, established by the former Labor government.
Brandis sat on the final report for some time, tabling it in Parliament on February 13, 2014. The day after he gave a speech where he agreed with the problems highlighted in the report:
“The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often in its administration, pointlessly bureaucratic.”
But rather than engage with the recommendations of the report, he raised the furphy of piracy — an issue specifically excluded from the ALRC terms of reference, reserved for trade discussions conducted without public input — and then in August 2015 the Abbott government established yet another review.
However successive governments have negotiated away many areas of Australian IP policy in international agreements, beginning with Chapter 17 of the 2005 the US-Australia Free Trade Agreement, and more recently the 2015 Trans-Pacific Partnership. These agreements, negotiated without public scrutiny or evidence about impact, limit our capacity to determine the national interest in fashioning the balance of our IP laws.
In terms of copyright, the Productivity Commission inquiry covers much of the same ground as the ALRC: efficiency and balance, adaptability for the future and evidence based reform. In response to the issues paper 115 submissions were received. There will be another round of public submissions when the discussion paper is released in March/April 2016. So many rounds of public consultation going on, but to what end?
Among the raft of government business hidden in the Christmas break an Exposure Draft was released by the Department of the Communication and Arts (DOCA) on December 23, 2015. There is a public invitation for comment until February 12, 2016.
The background paper to the Exposure Draft notes:
“It is appropriate to proceed with the amendments contained in the Bill before the [Productivity] Commission reports as those amendments simplify the operation of the Act and are likely to be consistent with the recommendations (if any) made by the Commission.”
However the draft provisions are far from simple to follow. They completely fail to address basic issues affecting those who legally access material held in public collections. The bill is based on fantasies about how institutions work in practice and ignores the public’s experience of them altogether. Mere oversight or part of the government’s design?
For example, section 113M allows libraries and archives to make “preservation copies” of original material that is of historical or cultural significance to Australia, but they are not allowed to make these copies available to patrons except through a terminal on site. As a researcher I am not allowed to make an electronic copy of the material so I can use it in writing up my research. As is common practice in libraries I would probably be allowed to transcribe a document by hand.
However transcribing by hand is, as a matter by law, no different to a digital reproduction. Why does this law require me to spend public research money to physically attend the institution, perhaps also requiring an airfare and accommodation expenses, so I can take out my quill?
The bill sets out excessively complicated rules that allow institutions to provide material that might or might not be in copyright to researchers. The rules only apply to a limited number of institutions. The ability to comply with them is based on the incorrect assumption that collections are catalogued to the Nth degree where it is easy to determine who the author was, the date of making the work, the date of publication of the work, the date of the author’s death, relevant details of the current estate holder.
These collections have little commercial, educational or cultural value if left dead, buried and forgotten because of lousy copyright laws. Institutional purpose and the value of the collection is generated when the material is utilised, repurposed, and made to bloom again, by users of the collection.
If the “ideas boom” is to move from mediocre slogan to stimulate real “leaps” and progress so that the “brightest” can shine, there is a need for more than a redistribution of public funds to starving public institutions. Copyright law reform needs to be taken seriously as a political concern, not left as a plaything shunted from inquiry to inquiry, while other games are carried on behind the scenes.
Kathy Bowrey is a Professor in Intellectual Property Law at UNSW.
Remember Britannia High? 2008 UK’s answer to Fame? The just-before-primetime ITV song-and-dance debacle that was axed after one series? They were great days. The show, of course, was a complete disaster, both on a creative, commercial, in fact, every possible level.
But if you examine audition footage of Britannia High on YouTube maybe you’ll start to wonder if the whole thing could have been rescued, had the show only made different casting decisions. Here, for instance, is a great singer who didn’t make the cut.
In case you couldn’t be bothered to watch the clip above, the “great singer” auditioning for Britannia High is Ed Sheeran.
Now it’s funny isn’t it—you never read Ed Sheeran talking too much about his attempt to become the next Darcey Bussell when he was launching the career we know and love today. It was all “SBTV” this, “Wiley and Sway” that.
Ed Sheeran isn’t alone in suffering from selective career amnesia. When Haim stomped towards the top of the BBC Sound Of 2013 poll, they weren’t regaling the media with tales of the time two Haim sisters starred in absurd teen pop band Valli Girls, notable for tunes like “It’s a Hair Thing.” Tahliah Barnett isn’t big on telling the world about the time, years before she was FKA Twigs, when she appeared as a dancing carwash attendant in a Dionne Bromfield video.
Pop’s always been full of these Sliding Doors moments, but in the digital age it’s hard for an act to remove evidence of their pasts. Hard, but not impossible. Last year, at the behest of the Court of Justice of the European Union, Google implemented a “right to be forgotten” procedure. It’s a way for people to get pages removed from Google searches, the logic being that if you get caught having a wank on the bus when you’re 22 and Metro decide to publish a LOL news story about it, it’s reasonable to hope that a potential employer won’t find out about it when you’re 28.
For musicians, swap out “potential employer” for potential fans, potential record labels, and potentially keen journalists. And for “having a wank on a bus” insert “making terrible music and videos,” and consider Sam Smith. Prior to a career jump-start from Disclosure he was just another pop hopeful with a really helpful mother. Unfortunately long before Grammy wins, Bond themes, and household name status, he was busy recording and releasing songs like “Bad Day All Week.” “Bad Day All Week” was the opposite of a good song, and it was accompanied by an arse-clenchingly awful video.
Usually there would be a video embed instead of this paragraph, right? That’s how journalism works in 2015.
But the video just isn’t online any more—it disappeared from YouTube, and these days seems to be swiftly dealt with if it does reappear. Similarly many of Sam’s pre-fame tweets, in which he alluded to his sexuality and obsessive Gaga fan status, have also disappeared.
In the US, prior to becoming Kanye’s current protégé, Kacy Hill was a model in a controversial (aren’t they all) American Apparel campaign, and eyebrow-raising ads don’t sit well alongside the singy-songwritey image she’s now putting forward. Naturally, those shots aren’t mentioned in her official bio—which is what many journalists will work from when writing about her—but it also looks like her lawyers have been trying to get those shots unlisted by Google. Kacy now seems to own the copyright in those images so takedowns should be successful to a degree, but what about Sam Smith’s deleted tweets, which can no longer be embedded but whose words live on, copied and pasted in pages like this?
“People do own the copyright in their own tweets,” says Twitter’s Bruce Daisley. “Strictly speaking there would be grounds to make a claim, but generally we see that when people are asked politely to remove those things, they tend to comply.” Those tweets could also fall under fair use, which circumvents copyright when it comes to commentary and news reporting. In any case, Daisley has another word of caution for any artists thinking of getting lawyers involved. “I do wonder,” he says, “if going to law on it might go a bit ‘Streisand’.”
He’s referring to the Streisand effect, a phenomenon so well known that it has its own Wikipedia page but which bears repeating here because it’s funny. In 2005 a photographer took 12,000 photographs of the California coastline in order to document coastal erosion. It seems fair to assume he couldn’t have given two shits about Barbra Streisand but one of those 12,000 pictures contained Streisand’s home, resulting in a lawsuit from Babs. The picture had been downloaded a grand total of six times before Barbra kicked up a fuss; four times if you don’t count downloads by Barbra’s lawyers. In the month following the well publicized lawsuit, almost half a million people visited the site.
“The risk of trying to take down old music, or old videos is not only that you will never get rid of them all, but also that you risk highlighting a problem and thus creating a story out of that,” agrees one music publicist who’s helped massage the profiles of various “new” artists. “I’d advise people in this situation to just try and own it—the more you try to hide something, the bigger deal people think it is, and the bigger a story it becomes. It’s definitely better to just own it and move on.”
Internet privacy expert Frank M Ahearn, whose books include How to Disappear: Erase Your Digital Footprint, Leave False Trails, is similarly wary of asking sites to remove content. “The website could post that you requested removal and it could go viral again,” he agrees. “Some celebrity clients I have worked for have done some embarrassing work in the past and once they make it, they want to turn back clock and rid the world of the past. But it is extremely difficult. The internet is like the tide; information and photos come and go. What you delete today can easily creep up tomorrow.”
Ahearn adds that Google’s measures are “useless” when VPNs and other search engines exist, and when asked to consider Sam Smith’s predicament he suggests an elaborate smokescreen. “If you are famous, sometimes I suggest to clients to leave it, let it ride it course and hope it dies a digital death,” he says. “Alternatively, we begin creating disinformation that Sam Smith from London Shoe Store tweeted the information, and then I build blogs where the fake Sam takes responsibility for the information. It does not always work but sometimes it creates doubt and other tweeters and bloggers assist disseminating the doubt.”
Despite the risks, there’s still a chance nobody will notice the disappearance of content, so there’s strong temptation to quietly remove content you have access to in your own sites and social channels—particularly if you’re trying to launch your music via a media industry that exists on layer upon layers of tastemaker approval.
The singer in one act currently hoping for a place on the 2016 tips lists said they’d talk to Noisey if we didn’t blow their cover, which under the circumstances seems fair enough. The rough story, though, is that their current offering is fairly leftfield and requires tastemaker support in order to get traction, but a couple of years ago they were in a markedly less credible band that had been formed by a titanically uncool management company.
“There is a cloud over my head,” they admit to Noisey. “I’m worried it could all come back and bite my ass. I suppose it’s like if you walked into someone’s bedroom to pick up a phone charger and saw that they had a whip and handcuffs. It’s not necessarily that I’m self conscious of it myself—it’s just that it could be detrimental to my current goals. Which is dumb, but whatever.”
Does it seem unfair how there’s now an expectation that all artists should get it right first time? It feels like experimentation is being penalised, in a way. “It is unfair, I think,” they agree. “People do things that don’t work. I don’t see why it should be a problem. I was 18 and my personal music was in a rut—I had no idea how anything worked in the industry so I took the plunge. I learnt a lot in that time, but then I started again on a new journey that, hopefully, I’ll get right this time.”
It’s important to state that this new artist isn’t being paranoid about how their previous exploits might affect their future chances. “With new artists, everything needs to be perfect,” says James Penycate, a digital communications expert whose work has included launching artists like Tom Odell, Tove Lo and Ghostpoet. “We all know how difficult it is to sell an act through Radio 1. To catch the attention of their key decision makers you need numerical or statistical proof that you have an engaged audience or the potential for one, but just as importantly you need a true avalanche of support from tastemakers. This whole subject boils down to authenticity.”
It might seem strange at a point when credible publications are falling over each other to tell the world how much they like the new Justin Bieber album but when it comes to a new act, rightly or wrongly (mainly wrongly), the sense that an artist has changed direction implies that their current incarnation is somehow false. Reasonable people might say that having a chicken sandwich for lunch yesterday doesn’t necessarily mean the soup you ate today is suspicious or unconvincing, but to the media a change in direction can look calculating or manufactured.
The fear, Penycate says, is that an act will get to the point where they need everyone on side (and many acts are at that point right now, with tastemakers currently voting in next year’s new artist polls) only for something awful to be revealed. “It could completely derail your campaign,” he explains. “The laughable thing is: do consumers really care? I don’t know if they do. Does the media care? Yes. That’s the problem.”
But as long as the media continues its obsession with credibility, and as long as massaging past exploits works, it’ll remain the norm. Last year’s BBC Sound Poll winners were Years & Years. During 2014 they made all the right moves in terms of engaging tastemakers: small gigs, an EP release, a featured vocal on a dance track. But before that all took place, they’d deleted early work from online accounts.
“When we first started making music we just put everything online,” Olly from the band says today. “Obviously no one gave a shit so it didn’t matter that there was random music and video floating about. When we did eventually get management as a result of those videos the first thing they said was ‘take everything offline’. This was meant to make us more appealing to potential labels. We were pretty happy to do it—it felt good to wipe the slate clean and put our best foot forward.”
Years & Years had gone through lineup changes and their music had also developed in style and quality, but they didn’t take absolutely everything offline immediately, and early videos remained online. When they signed to Polydor, even those went. “At that stage we all decided that the stuff we’d put online didn’t reflect who we were as a band anymore,” Olly explains. “We felt that if this was going to be the first time for most people to hear about us, we wanted people to see what we thought represented us best.”
When direct and honest communication with fans is so important, doesn’t this seem slightly dishonest? Olly reckons not. “I don’t think it’s being dishonest—people’s first impressions of you are really important so you wanna get that right. If we were going on a first date I wouldn’t be showing you pictures of how I was a little chunky and had a mullet a few years ago. To be honest some of our more hardcore fans have found old links or downloaded all that stuff. Nothing’s really erased on the internet anymore, right?”
It’s not only new artists who choose to sidestep portions of their careers. And sometimes the media, instead of having the wool pulled over their own eyes, are complicit in nurturing a selective narrative. It’s interesting how little is made of Beyoncé’s confusing mid-period between Destiny’s and “Crazy In Love.” The hugeness of her current success eclipses the role in Austin Powers that gave Beyoncé her first solo hit single. Likewise, chaos theorists could have a field day speculating what might have happened had Destiny’s Child never recorded a shit single in 1998 with Corrie mechanic-turned-hopeless-popstar Matthew Marsden:
That song came out through Columbia in 1998, but over on another Sony imprint in the same year, Northwestside boss Nick Raphael was securing a guest vocal from Beyoncé’s future husband. And so it was that Jay Z released a single with boyband Another Level.
“Rappers have made guest appearances for pop records for the last 30 years,” Nick Raphael recalls today. “It adds another dimension to the recording. At the time, outside America Jay was a credible, but niche artist—not the Jay-Z we know today.”
Raphael states that Jay has nothing to be embarrassed about musically (“he’s one of the greatest artists of all time”); these days Raphael is president of Capitol Records, home to Sam Smith among others, and he insists that a dodgy history doesn’t come into play when he and his longterm A&R associate Jo Charrington are looking at new artists.
“Very few artists strike upon their eventual paths immediately,” he reasons. “If artists don’t experiment, how will they find their true voice? When Jo and I sign an artist we judge the music they are presenting to us now. If their past behavior will affect their future success we have to bear that in mind—but it’s not a decision we’d base on their previous works.”
The same can’t necessarily be said for how the media look at things, and many artists—from Years & Years and Sam Smith to the likes of Lana Del Rey, Katy Perry, and Drake—have all benefitted from diverting attention away from their earliest work. Right now the music industry is built on quick and dirty experimentation and fast pivots if something doesn’t work out, with each incarnation of an artist’s endeavour leaving a digital footprint. And it’s still a headache for the anonymous hopeful we met earlier, who tells Noisey: “I’ve removed things from my personal accounts and deleted what I can, but it’s an ongoing effort to conceal a cheesy couple of years from influential people.”
Still, while he can’t speak for those in the media who obsess over artists’ perceived indiscretions, Nick Raphael offers some encouraging advice to any artist currently worrying about skeletons in cupboards. “Your history makes you more interesting to your fans,” he says. “Embrace who you are.”
States are passing laws to make it easier to obtain digital data from Facebook, Yahoo and other password-protected accounts when someone dies. Tech companies, however, have been slow to support such laws and are now actively pushing back against them.
This week, Yahoo claimed that a model law fails to protect sensitive data like photos and messages, and that allowing heirs to access accounts fails to respect the wishes of dead users.
In a blog post, senior lawyer Bill Ashworth wrote:
In order to protect our users’ privacy, we honor the initial agreement that a user made with us […] We believe that account holders and individuals—not legislators—should determine what happens to a person’s digital archives at the time of their death. When it comes to a person’s digital archive, our team will continue to argue in favor of a user’s right to privacy.
The object of Yahoo’s criticism is a draft digital death law from the Uniform Law Commission. States can use the draft as a template to add rules to their inheritance laws in order to make it easier for executors to access the online accounts where important contracts or other information may be located. Delaware has already passed such a law, and a dozen states are expected to follow suit in the coming year.
So what is Yahoo upset about? Is it fair for the company to claim, as it does in the blog post, that “the ULC model sets the privacy default at zero?” Hardly.
As I reported earlier, the law wasn’t slapped together by a group of numbskull bureaucrats. It’s the careful work of a national group of lawyers and addresses the real problem that, these days, a range of assets and artifacts — from photos to bank information to bitcoins — lie on the other side of a password-protected gate controlled by tech companies. And the law, as written, doesn’t allow just anyone to demand that Facebook or Yahoo (or whoever) hand over a deceased user’s account. Instead, it involves a verification process that is intended to allow authorized agents to gain access for a limited period of time.
The real reason that Yahoo is upset about the law is probably not privacy. Instead, the company may dislike the fact that the law forces tech companies to act as intermediaries between dead users and their family members. Such responsibility is not just awkward, but will also entail the companies to expend resources dealing with the requests — instead of just relying on user agreements to say “no,” which is what they do now.
In the blog post, Yahoo says it prefers that its users determine what happens to their archives after they die. And indeed, Google has already created an “inactive account manager” tool to help them do just that.
But while such self-serve tools are a good idea, few people are now using them. More importantly, tech companies like Yahoo have little reason to claim that state laws should treat digital goods any differently than the physical photo albums and bankers boxes that people have always left behind.
What electronic media did you use today? Did you log into Facebook? Check your personal e-mail? Post on Instagram? Write a blog? Take an online order for your business? Play a video game? All of these actions involve your digital assets and help create your digital footprint. For a minute think about the different online accounts you use. All of these are digital assets and they could be misused to create serious issues for your family members or heirs after your death.
As our lives become increasingly digitalized, new risks are developing that challenge traditional asset management and estate planning approaches. For instance, someone can now steal your money from a bank without ever stepping into a vault. Online fraud and theft are at an all-time high and are expected to continue to grow at a rapid pace. Additionally, as people spend more of their personal time online and more businesses offer digital services, the management and disposition of digital assets is becoming increasingly complex and important. A decade ago, few business executives were concerned about their digital assets or a digital estate. However, this has changed, digital assets, if not properly managed, can endanger the strategic plans of their employers, the co-workers who depend on the success of the employer for their own wellbeing, and their personal beneficiaries. As such, an executive’s incomplete estate planning can lead to their employer’s financial loss, lawsuits between heirs, and complications due to theft or fraud.
Digital assets are not your computer and cell phone; instead they are all of the information recorded and stored on those devices. For some people, digital assets are primarily sentimental in value. For example, personal photos, social networks, video games, and e-mail correspondences are worth little monetary value on the open market. However, if you are an executive in a large corporation or running a small business, your company’s financial welfare depends on the security your digital assets, from e-mails to the company website. Certain digital assets like Bitcoin and PayPal accounts have clear financial values and should be protected accordingly. Other digital assets vary in value to you as a company leader and as a private individual and also vary in the danger that their misuse could present to your employer or your loved ones if found in the wrong hands. For instance, information recorded by internet carriers, shopping sites like Amazon, online retailers like Home Depot, payment systems like PayPal or credit cards, or banking accounts create opportunities for theft and significant financial harm.
Because you spend a lot of time online, you have a variety of digital assets. However, have you considered how you will leave these assets to your spouse or heirs if you die or become incapacitated? Unfortunately, many people have never thought about their digital estate plan. There are three main concerns with digital asset transfers that need to be considered as part of your estate planning:
1) Can your heirs or the person taking care of you during a period of incapacity find all of your digital assets? Since digital assets are not physical in nature, they often do not leave a distinct paper trail. If the executor or person handling your affairs cannot locate your assets, they will not be able to manage or properly transfer them in accordance with your wishes.
2) How do you access the digital assets? Even if your legal representative is authorized to transfer the assets and can locate them online, it is likely that the assets are held by a third-party service provider that requires a password, username, and other evidence of authorization to access the assets.
3) Do you have the right to transfer the asset? For example, Yahoo accounts are non-transferable. This means you cannot bequest the account to your heirs nor can you transfer ownership to another person or entity while alive. This inability to transfer digital assets can create business succession issues and estate planning challenges.
Dr. Pearce is the VSB Endowed Chair in Strategic Management and Entrepreneurship at Villanova University.
So, how can you protect and see to the proper management and disposition of your digital assets? A multipronged approach works best. First, you need to keep a record of your digital assets. Make sure you have an up-to-date record of the accounts that you have and how to access them. Second, you need to let a trusted representative know where they can find this information in the event of your death or incapacitation. Third, you should determine the services that are offered by your digital asset services (i.e., Google and Facebook) to assist in the transfer of your assets. For example, Facebook allows you to pick a beneficiary of your Facebook account (you can set this up in your general Security setting tab under Legacy Contact). This legacy contact will manage your memorialized Facebook account after you are deceased. You need to make sure that these services are not in conflict with your estate planning documents. For instance, if you set up your last will and testament to state that all of your assets transfer to your spouse but you designated your brother as your Facebook legacy contact, it is possible that your last will and testament will create friction between your spouse and brother to result in a lawsuit over your digital assets.
To minimize the complications involved in the transfer of digital assets, it is helpful to set up a power of attorney and a will that specifically grant someone the ability to manage your digital assets. It is also important to make sure that these documents do not conflict with other estate planning devices such as a trust or beneficiary designations that could control digital assets. Unfortunately, only Delaware has a law that provides your estate fiduciary or power of attorney the right to access to your digital assets once you have passed away. However, this protection will expand if the Fiduciary Access to Digital Assets Act that was created by the Uniform Law Commission is approved in the in the more than 20 states where it has been introduced.
There is great value in protecting your digital assets in the event of your inability to manage them personally. Such protection is available quickly and at low cost but preplanning and arranging key agents in the process is essential. By including details about your digital assets in your legal documents, and by clearly specifying your intentions before any event that limits your ability to act on your own behalf, you can protect the integrity and value of your intellectual property and provide for its disposition according to your wishes.
Human fascination with immortality stretches back to the time of Greek mythology with history littered by charlatans, oddballs and megalomaniacs either claiming or seeking the secret to eternal life.
However, the modern tech-savvy generation has discovered, quite by chance, that an immortality of sorts is now freely available via the digital footprint they leave should they meet an untimely end. It’s estimated that on Facebook alone, more than 30 million accounts belong to people who are deceased.
As if the pain of coping with the death of a loved one isn’t difficult enough, friends and family must now consider the implications of the deceased’s online life to go with their material existence.
Your online footprint
Think for a moment about your own digital presence. You’ll almost certainly use online banking and shopping facilities, perhaps an online wallet like PayPal, email accounts, a frequent flyer program, a social media presence via Facebook or Twitter, along with potentially thousands of personal files, receipts and photographs.
Most people already understand the importance of estate planning to help pass on worldly goods such as housing, savings and mementos to their beneficiaries. But how will your heirs even gain access to your computer and your passwords?
Like so many laws relating to the digital world, many are outdated or irrelevant, and several online services have already established their own policies. For instance, Twitter allows family or friends to download a copy of your public tweets and close your account. You need to nominate someone in advance to provide their name and contact details, their relationship to you, your Twitter username and a link to or copy of your obituary.
No laws currently exist in Australia to grant a Will’s executor automatic access to someone’s social media accounts. However, there are still several options available to help decide on how your online legacy is managed.
The first step is to create a Digital Will. In addition, you will need to select a trustworthy digital executor to handle arrangements for your digital assets and digital legacy once you are gone. Similarly, if you run your own business, it will have its own digital incarnation and its own digital legacy to maintain. Some Australian Will makers offer Digital Wills so people can ensure their online legacy lives on – or fades away – in accordance with their wishes.
Online vaults for safe storage
An increasingly popular alternative is to store important documents and passwords in an online vault. The likes of SecureSafe, Legacy Lockboxor Assets in Order pledge to provide secure online storage of passwords and documents.
Password management accounts can be set up using software such as Norton Identity Safe while Google recently introduced a new program called Inactive Account Manager, which enables you to choose in advance exactly what you wish to have done with all your Google data – from Gmail accounts to YouTube videos.
Considering how much of our communication takes place online these days, it’s worth investing some time thinking about your digital footprint and what is required to manage it when you’re gone. A good time to do this might be when next reviewing your Wills and Powers of Attorney. With a little thought and preparation, you can leave a lasting legacy to your loved ones, well beyond photos or videos, and avoid complications associated with your ‘digital immortality’.