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The Dutch Look To Legalize Mashups

We complain a lot about copyright over in the U.S. -- rightly so -- but Europe is still waiting for even the slightest leeway of fair use laws, the doctrine that, in the U.S., gives exemptions for using copyrighted material for commentary, reporting...

We complain a lot about copyright over in the U.S. — rightly so — but Europe is still waiting for even the slightest leeway of fair use laws, the doctrine that, in the U.S., gives exemptions for using copyrighted material for commentary, reporting, education, and so on. No permission required, though the actual legality is subject to considerations of four things:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

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Mashups and remixes are still kind of a grey area, but figure Girl Talk would probably lose in a court case. Sorry (kind of). This is a “quick post” so I’ll spare you/myself the nuances of fair use, but it’s good that it exists, but it’s pretty narrow in this arena. A snippet of a song shoved together with a snippet of another song in an ironic and amusing way is in itself an act of creativity, which copyright exists to support, right? Eh, not really. It’s more about the money and supporting vast industries. And those are industries that have made it even harder to get things done under fair use in the U.S., crafting nifty tech tools to detect copyright infringement and boosting the Digital Millennium Copyright Act, which lets anyone claiming infringement remove a work from a website.

Anyhow, Europe doesn’t have fair use, however faulty our conceptions of it in the U.S. are. Instead, it has a bunch of very specific rules, less so parameters needing to be considered and interpreted. From Radio Netherlands Worldwide:

“We all love YouTube,” says Bernt Hugenholtz of the Dutch state committee on copyright law. “Many of the videos we find there are creative remixes of material protected under copyright. They’re mostly for laughs or political commentary, or they’re simply absurd. If we applied the law today strictly, we would not be allowed to do these things.”

The RNW piece continues:

Fred von Lohmann, chief copyright counsel for Google, points out that new technology and copyright have collided many times over the past century, “beginning with the player piano (self-playing piano), broadcast radio, broadcast television, cable TV, video recorders and so on.” Each of these technologies was initially seen as a threat by copyright holders, he says, “but each eventually expanded the market, creating vastly more profits for a wider circle of people.” Therefore, Von Lohmann told attendees in The Hague, copyright holders should embrace new technologies rather than fearing them. And governments should introduce as much copyright flexibility as possible to allow creativity to flourish.

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See there it is again: copyright flexibility as benefit to creativity, the thing copyright is meant to safeguard. Mind-bending, I know. It involves acknowledging that culture is not actually a business and doesn’t particularly bend to the whims of business at least in the capitalistic discrete property sense. Culture happens along a fluid continuum where things build up on top of other things. For most of its history, in fact, music was shared non-property. A lot of that history had to do with shared stories and passing down history and various other acts of community. Community. Eh, eh? Culture was built on and existed for sharing.

All in all, culture probably just needs to die and wash away the various culture industries in its blood. I don’t see it working out very well any other way. Copyright, at least in the U.S., has only gotten more restrictive over the years and all that power, though far less so, is still sitting up top with the industries. Those are the same industries that, ironically, get by with making absolutely nothing new ever and cannibalizing every weak trend or fashion that comes along, crapping it back out as whatever, and celebrating that Whatever in big events like the Grammys that have nothing to do with culture, but the victories of an industry that someday soon will sink into the sea.

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Reach this writer at michaelb@motherboard.tv.