Copyright: “Media use in the gray zone”

In the study "Kulturelle Produktion und Mediennutzung im Alltag" (Cultural Production and Media Use in Everyday Life, PDF), which was commissioned by the Austrian Chamber of Labor, Felix Stalder, Konrad Becker and Martin Wassermair from the Institute for New Culture Technologies / t0 in Vienna show how active media use on the Internet is often blocked by copyright issues, or exposes users to unclear risks. This applies to song performances in kindergarten, the use of toy robots at technical academies and the use of audiovisual materials in museums, for example. "We need a fundamental copyright reform, Stalder said, "The non-commercial use of content must not be prevented."

futurezone: Does media use primarily take place in a legal gray area today?
Felix Stalder: When we see media use not as pure consumption, but as an interactive exchange of reception, opinion expression and production, then it is in fact often taking place in a gray area. For two reasons. A lot of things that used to happen privately, for example sharing with friends, is now happening publicly – on Facebook, YouTube and similar networks. Today, large groups of people have the ability to participate in media production. They use existing material for this, and incorporate it into their own content, or make new content with it. Such transformative usage always requires the permission of the copyright holder under current law. But it is not possible to obtain permission for such use, and these uses are often trivial and minor. This is why we need to set up regulations under which permission is not needed in individual cases.

What are examples of such media use?
When students create a video using existing material for a class project about history, for example. As long as this only happens in the classroom, it`s okay. But when the video is put on YouTube, the risks are unclear. A teacher who wants to be sure that the students act correctly must prohibit this. There are many things that we think would be good socially, but that we don`t do because it is risky to be in that legal gray area, or to do something that is clearly illegal. We lose a lot of potential. Copyright issues are usually discussed on the basis of things that have happened. In our study, we point out things that don`t happen.

A lot is said about active consumers. How many people really do creative things with existing material?
Seen over the long term, this is a strong trend. But this doesn`t mean that everyone is active in this all the time. We want to create a situation where everyone is allowed to become active. When we are in a situation like that, then we can make offers to schools to show how people can become active. Today, people who actively work with content do so at their own risk – and people who could help them don`t want to, because they aren`t allowed to go into this gray area. It is a political question of whether or not we should create conditions under which as many people as possible can become active in this way if they want to. In addition to copyright issues, this also has to do with issues of media competence and network neutrality. The key question is how we want to conduct a public discourse in the network society, and under what conditions this discourse should be held.

How can a new set of rules be established to govern the separation between private and public?
A very fundamental aspect of copyright law is the difference between public and private. In the private sphere, we have a very broad range of rights. We can copy, share and modify material that has been created by someone else. The problem is that the private sphere does not exist anymore in that sense. Many things that were once confined to the private sphere now take place in a sphere that is perceived as private, but that is public for the purposes of the law – namely social networks. This means that things that used to be allowed are no longer allowed when you do them in a contemporary way. It is no longer possible to determine the difference between public and private for practical purposes. We don`t just see the blurring of this line in connection with copyright laws. It is a general social trend. It is a fundamental change. Because of this, we suggest moving away from this separation, and differentiating between commercial and non-commercial use.

Lawyers will undoubtedly have no trouble depicting file sharing in the private sphere as commercial use, because you could argue that users derive benefits from this, for example.
I don`t think so. The creative commons licenses that permit non-commercial use have shown that this can be defined well in practice. There has not yet been a single court case where this distinction has been debated. It is also not a problem when a particular type of use has a different meaning for different people. When I upload a video to YouTube and share it, that is non-commercial use for me. For Google, which generates revenue this way, it is commercial use. That means that I can do it without obtaining permission or paying a fee, but the platform that offers it has to pay for it. This also applies to file sharing sites. For me, it is non-commercial, but it is a business for the providers of this platform. The distinction is easy to make. But we have a problem in this. The industry will fight it. Many things that used to be a line of business are now done by private individuals for non-commercial purposes. The distribution of files is so trivial today that there is no money to be made from it.

There are different models for paying for or not paying for such non-commercial uses.
We have two different options. The Anglo-American fair-use principle under which a user is allowed to do certain things without having to pay. Or you can grant a general license for non-commercial use, for example by legalizing private copies by collecting flat fees. But I don`t think that the hard drive tax that is currently being discussed makes any sense. It won`t solve any problems, it will just result in the copyright holders earning a little more money. But when we say that we want it to be legal to use content freely in the private sphere, we can of course also talk about whether or not we should pay for this through blanket mechanisms.

Such models have been on the table for years. Why have they not been able to generate enough support?
A lot has changed in recent years. ACTA failed in the EU, and the pirate parties have come onto the scene. We are reaching the limits of how much we can tighten copyright laws. Daily life and consumer behavior have changed. Society is undergoing a gradual transformation. The point is not to eliminate the copyright system, but to put it back where it belongs. The copyright system should be a basis for business relationships between professional, commercial users. Private persons were excluded until a few years ago. Now, they find themselves in an area that even lawyers have a hard time understanding. This situation is completely unacceptable.