Tag: copyright

Big bang

In 2008, when the recording industry was successfully lobbying for an extension to the term of copyright to 95 years, I wrote about a spectacular unfairness that was affecting numerous folk and other musicians. Because of my own history and sometimes present with folk music, I am most familiar with this area of music, which aside from a few years in the 1960s has generally operated outside of the world of commercial music.

The unfairness was this: the remnants of a label that had recorded numerous long-serving and excellent musicians in the 1970s were squatting on those recordings and refusing to either rerelease them or return the rights. The result was both artistic frustration and deprivation of a sorely-needed source of revenue.

One of these musicians is the Scottish legend Dick Gaughan, who had a stroke in 2016 and was forced to give up performing. Gaughan, with help from friends, is taking action: a GoFundMe is raising the money to pay “serious lawyers” to get his rights back. Whether one loved his early music or not – and I regularly cite Gaughan as an important influence on what I play – barring him from benefiting from his own past work is just plain morally wrong. I hope he wins through; and I hope the case sets a precedent that frees other musicians’ trapped work. Copyright is supposed to help support creators, not imprison their work in a vault to no one’s benefit.

***

This has been the first week of requiring age verification for access to online content in the UK; the law came into effect on July 25. Reddit and Bluesky, as noted here two weeks ago, were first, but with Ofcom starting enforcement, many are following. Some examples: Spotify; X (exTwitter); Pornhub.

Two classes of problems are rapidly emerging: technical and political. On the technical side, so far it seems like every platform is choosing a different age verification provider. These AVPs are generally unfamiliar companies in a new market, and we are being asked to trust them with passports, driver’s licenses, credit cards, and selfies for age estimation. Anyone who uses multiple services will find themselves having to widely scatter this sensitive information. The security and privacy risks of this should be obvious. Still, Dan Malmo reports at the Guardian that AVPs are already processing five million age checks a day. It’s not clear yet if that’s a temporary burst of one-time token creation or a permanently growing artefact of repetitious added friction, like cookie banners.

X says it will examine users’ email addresses and contact books to help estimate ages. Some systems reportedly send referring page links, opening the way for the receiving AVP to store these and build profiles. Choosing a trustworthy VPN can be tricky, and these intermediaries are in a position to log what you do and exploit the results.

The BBC’s fact-checking service finds that a wide range of public interest content, including news about Ukraine and Gaza and Parliamentary debates, is being blocked on Reddit and X. Sex workers see adults being locked out of legal content.

Meanwhile, many are signing up for VPNs at pace, as predicted. The spike has led to rumors that the government is considering banning them. This seems unrealistic: many businesses rely on VPNs to secure connections for remote workers. But the idea is alarming; its logical extension is the war on general-purpose computation Cory Doctorow foresaw as a consequence of digital rights management in 2011. A terrible and destructive policy can serve multiple masters’ interests and is more likely to happen if it does.

On the political side, there are three camps. One wants the legislation repealed. Another wants to retain aspects many people agree on, such criminalizing cyberflashing and some other types of online abuse, and fix its flaws. The third thinks the OSA doesn’t go far enough, and they’re already saying they want it expanded to include all services, generative AI, and private messaging.

More than 466,000 people have signed a petition calling on the government to repeal the OSA. The government responded: thanks, but no. It will “work with Ofcom” to ensure enforcement will be “robust but proportionate”.

Concrete proposals for fixing the OSA’s worst flaws are rare, but a report from the Open Rights Group offers some; it advises an interoperable system that gives users choice and control over methods and providers. Age verification proponents often compare age-gating websites to ID checks in bars and shops, but those don’t require you to visit a separate shop the proprietor has chosen and hand over personal information. At Ctrl-Shift, Kirra Pendergast explains some of the risks.

Surrounding all that is noise. A US lawyer wants to sue Ofcom in a US federal court (huh?). Reform leader Nigel Farage has called for the Act’s repeal, which led technology secretary Peter Kyle to accuse him – and then anyone else who criticizes the act – of being on the side of sexual predators. Kyle told Mumsnet he apologizes to the generation of UK kids who were “let down” by being exposed to toxic online content because politicians failed to protect them all this time. “Never again…”

In other news, this government has lowered the voting age to 16.

Illustrations: The back cover of Dick Gaughan’s out-of-print 1972 first album, No More Forever.

Wendy M. Grossman is an award-winnning journalist. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Mastodon or Bluesky.

Objects of copyright

Back at the beginning, the Internet was going to open up museums to those who can’t travel to them. Today…

At the Art Newspaper, Bender Grosvenor reports that a November judgment from the UK Court of Appeal means museums can’t go on claiming copyright in photographs of public domain art works. Museums have used this claim to create costly licensing schemes. For art history books and dissertations that need the images for discussion, the costs are often prohibitive. And, it turns out, the “GLAM” (galleries, libraries, archives, and museums) sector isn’t even profiting from it.

Grosvenor cites figures: the National Gallery alone lost £31,000 on its licensing scheme in 2021-2022 (how? is left as an exercise for the reader). This figure was familiar: Douglas McCarthy, whom the article quotes, cited it at gikii 2023. As an ongoing project with Andrea Wallace, McCarthy co-runs the Open GLAM survey, which collects data to show the state of open access in this sector.

In his talk, McCarthy, an art historian by training and the head of the Library Learning Center at Delft University of Technology, showed that *most* such schemes are losing money. The National Gallery of Liverpool, for example, lost £71,873 on licensing activities between 2018 and 2023.

Like Grosvenor, McCarthy noted that the scholars whose work underpins the work of museums and libraries, are finding it increasingly difficult to afford that work. One of McCarthy’s examples was St Andrews art history professor Kathryn M. Rudy, who summed up her struggles in a 2019 piece for Times Higher Education: “The more I publish, the poorer I get.”

Rudy’s problem is that publishing in art history, as necessary for university hiring and promotions, requires the use of images of the works under discussion. In her own case, the 1,419 images she needed to use to publish six monographs and 15 articles have consumed most of her disposable income. To be fair, licensing fees are only part of this. She also lists travel to view offline collecctions, the costs of attending conferences, data storage, academic publishers’ production fees, and paying for the copies of books contracts require her to send the libraries supplying the images; some of this is covered by her university. But much of those extra costs come from licensing fees that add up to thousands of pounds for the material necessary for a single book: reproduction fees, charges for buying high-resolution copies for publication, and even, when institutions allow it at all, fees for photographing images in situ using her phone. Yet these institutions are publicly funded, and the works she is photographing have been bought with money provided by taxpayers.

On the face of it, THJ v. Sheridan, as explained by the law firm the law firm Pennington, Manches, Cooper in a legal summary, doesn’t seem to have much to do with the GLAM sector. Instead, the central copyright claim was regarding the defendant software used in webinars and presentations. However, the point, as the Kluwer Copyright blog explains, was deciding which test to apply to decide whether a copyrighted work is original.

In court, THJ, a UK-based software development firm, claimed that Daniel Sheridan, a US options trading mentor and former licensee, had misrepresented its software as his own and had violated THJ’s copyright by using the software after his license agreement expired by including images of the software in his presentations. One of THJ’s two claims failed on the basis that the THJ logo and copyright notices were displayed throughout the presentation.

The second is the one that interests us here: THJ claimed copyright in the images of its software based on the 1988 Copyright, Designs, and Patents Act. The judge, however, ruled that while the CDPA applies to the software, images of the software’s graphical interface are not covered; to constitute infringement Sheridan would have had to communicate the images to the UK public. In analyzing the judgment, Grosvenor pulled out the requirements for copyright to apply: that making the images required some skill and labor on the part of the person or organization making the claim. By definition, this can’t be true of a photograph of a painting, which needs to be as accurate a representation as possible.

Grosvenor has been on this topic for a while. In 2017, he issued a call to arms in Art History News, arguing that image reproduction fees are “killing art history”.

In 2017, Grosvenor was hopeful, because US museums and a few European ones were beginning to do away with copyright claims and licensing fees and finding that releasing the images to the public to be used for free in any context created value in the form of increased discussion, broadcast, and visibility. Progress continues, as McCarthy’s data shows, but inconsistently: last year the incoming Italian government reversed its predecessor’s stance by bringing back reproduction fees even for scientific journals.

Granted, all of the GLAM sector is cash-strapped and is desperately seeking new sources of income. But these copyright claims seem particularly backwards. It ought to be obvious that the more widely images of an institution’s holdings are published the more people will want to see the original; greater discussion of these art works would seem to fulfill their mission of education. Opening all this up would seem to be a no-brainer. Whether the GLAM folks like it or not, the judge did them a favor.

Illustrations: “Harpist”, from antiphonal, Cambrai or Tournai c. 1260-1270, LA, Getty Museum, Ms. 44/Ludwig VI 5, p. 115 (via Discarding Images).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Mastodon.