Saturday, 9 January 2010

"Oh Mandelson" - Digital Economy Bill - parody

If you choose to sing or play along with this to the tune of "Mandy" by Barry Manilow or Westlife, don't do it out loud in "public"! Scroll to the second half of this blog post to find out why.

Links for the references below don't appear in the video as you can't yet link YouTube videos to external sites (only to other YouTube items). Click the links to find out more about the references, e.g. to Finland.

Oh Mandelson

We'll regret it all our lives
If our freedoms don't survive
With the DEB, they'll reach through our windows
Prying day and night
To get right into
What we're sharing on the Net
- but kids and grans are not the threat
What a rotten show, to cut their connections
Without a court of law to weigh up the evidence

Oh Mandelson
You can take your posh dinner and -- eat it
But don't kill our cafes, oh Mandelson
When a Bill is so wrong, we must beat it
Or we're all gonna pay, oh Mandelson…

Seems like you don't fathom tech
Kids and grans are not the threat
Don't just cut them off, while organised crime
Gets away with it, time after time.
Parliament debates our laws
When they're major, just because
Democracy demands that one person's say-so
Can't change copyright
That's got to be wrong - oh

Oh Mandelson
You can take your posh dinner and -- eat it
But don't kill our cafes, oh Mandelson
When a Bill is so wrong, we must beat it
Or we'll all gonna pay, oh Mandelson…

Innocence should be the default position
No one should be done on mere accusation

Oh Mandelson
Many people have insecure wifi
- or just live in Swindon
Oh Mandelson
Please don't force me to not share my Mifi
Or go live to Finland

Oh Mandelson
You can take your posh dinner and -- eat it
But don't kill our cafes, oh Mandelson
When a Bill is so wrong, we must beat it
We'll defeat it

This video, images and words are released under a Creative Commons BY-NC-SA licence – i.e. copy, use, remix as much as you like, as long as you credit it with a link back to this blog post and don’t use it commercially without my permission. I of course gave TalkTalk permission to use, even commercially, this blog post as well as the video, as part of the conditions for entering the competition mentioned below.

The above video and words are my entry for the Don't Disconnect Us competition. The contest was for people to create a song, poem or other form of artistic expression in protest against the proposed UK ‘Three Strikes’ law (see Digital Economy Bill links). UK ISP TalkTalk set up the Don't Disconnect Us site.

The compo, to be judged by polymath actor/comedian/presenter, writer and technology/science enthusiast Stephen Fry, is open till midnight on Friday 22 Jan 2010. So if you want to have a go yourself, go ahead - it could be a poem, artwork etc, it's entirely up to you.

But if you like my entry do please rate it so that I can be in with a chance of winning!

The rest of this blog post explains why I am confident my video doesn't infringe any copyright.

No need to read on unless you're interested in things like that - but, I repeat, be careful not to sing or play along with the video "in public"!

Warning: the following may contain "copyright" as a verb, and "copyrightable". If that offends your sensibilities, don't read on.

Singing along with this video - don't do a public “performance”

If you want to sing along to my video feel free. Pick a tune, any tune.. . But DON'T sing it (or indeed sing or play any other "in copyright" songs / carols / recordings) “publicly”- whether on your radio or PC speakers, not as background music while working e.g. in a garage or a police station, not to your cats, dogs or horses, not even at a Girl Scouts' campfire singsong. Just don't do it unless you get the copyright owner's permission.

Your home livingroom or bedroom, or indeed shower, is fine as long as you're not so loud that “the public” (i.e. effectively anyone who's not in your family) can hear you - neighbours, passers-by etc.

Why? Because the copyright police could pop up to claim it’s a “public performance” - so pay up for a licence now, or get sued. That even includes singing Happy Birthday in public (because it’s still technically in copyright).

Indeed, in the USA ASCAP wanted to be paid again for (already-bought) ringtones whenever mobile phones / cellphones rang in public, but the judge sensibly wouldn't wear it.

Not singing or playing a copyrighted song in public is the strict "100% safe" view, of course. In practice you would have to be heard, and considered worth suing - even if it's just to make an example of you - before you get sued. Though sometimes they can relent.

Things to note about copyright in songs & recordings

  1. Copyright rights. Copyright in a creative work gives the copyright owner certain exclusive rights to that work - including (with some exceptions) the right to stop others from copying or reproducing the work, adapting it or performing it in "public", unless the owner allows it. Which they won't usually do unless they get paid e.g. royalties for licensing the rights.

    The law gives creators exclusive rights for a certain period or term to reward them for their efforts or creativity, but, in return, after that term anyone can (generally) use and build on the work etc. freely, to the enrichment of culture as a whole. No one creates in a vacuum, everyone has influences.
  2. Copyright term. Copyright in things like songs and poems lasts for (generally) the life of the author plus X years (X=70 in the EU), in order in theory to help support the author's children and grandchildren - but for copyright in performances and sound recordings the duration is 50 years in the EU, though the EU wants to extend it to 95 years in order to feed, perhaps rather more realistically, music industry executives' and shareholders' great grandchildren. Again, after the copyright term ends, anyone can copy, use, adapt or publicly perform the work (or recording, depending).
  3. Different things, different rights. The rights of composer and lyricist in a song are different from the rights of the record producer and performers (singers & other musicians) in relation to their recording of the song. In other words several people may well have different rights in relation to the same song. And of course there may be different recordings of the same song.
  4. "Private use". There is no general "private use" get out for breach of copyright in the UK. I repeat, no general private use exception!

Why don't my video and lyrics land me in copyright doodoo?

Am I in trouble for my video and lyrics? Do they cause me to infringe copyright?

I don't think so, and here's why not.

Title - why did I call it "Oh Mandelson" and not "Oh M****"?

In the UK and US, generally titles (of songs, books, poems etc) can't effectively be copyrighted because they're too short (see p.2 of this Australian note mentioning the case of Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd [1940] AC 112 where the highest English court said that a film called "The Man who Broke the Bank at Monte Carlo" didn't infringe the copyright in a song with that title).

However, France and some other countries will protect even short titles. In the EU (which of course includes the UK) it seems even 11 word snippets could now be subject to copyright.

So to avoid being sued in the likes of France, I'm not calling the song "M****" or even "Oh M****". I'm calling it "Oh Mandelson". Now you know why.

Music - why isn't there any music?

Even though I'd worked out a piano accompaniment and made up a harmony line to go with the original song which I'm riffing off, I didn't include any music with my video (except for the credits at the end, which are over a Creative Commons licensed song by the eternally brilliant David Byrne). Why not?

Rhythm patterns or chord progressions / harmonic progressions - there’s generally no copyright in rhythms or in chord progressions. Else virtually no one would be able to write any new songs.

Countless songs are based on the same 3 chord trick, while other combos of chords are used again and again too, e.g. the "sensitive female chord progression" (Am F C G if in A minor).

Another commonly used sequence of chords is demonstrated by the following clever video (via Techdirt, and see the Pachelbel video rant mentioned there) which runs together bits from different songs into the same key - and guess what, they use the same chords! (E B C#m A if in E major):

Indeed, popular 80's comediennes French & Saunders got away with taking off well known songs or genres just by using the same (or at least very similar) chord progressions - but different tunes.

However, that's only in general. As this blog post puts it:

"To use the same chords with the same rhythm as the song you found it in starts to move into the copyright infingement area. So be sure that your use of the progression is unique."

In other words if you're using the same chord progressions and rhythm and indeed the same groups of (albeit well known and commonly used) chord progressions in the same order, that combination is probably getting too close to the line, and may even cross it.

It's an infringement to make an "adaptation" of a work without permission, which in the case of a "musical work" means recording (writing, audio etc, so unrecorded piano doodlings are OK) "an arrangement or transcription" of the work (section 21 of the Copyright, Designs & Patents Act 1988, section 21(3)(b) to be precise, if you're desperate to know).

What's an "arrangement or transcription" of a musical work? Encylopaedia Britannica: "A transcription is essentially the adaptation of a composition for an instrument or instruments other than those for which it was originally written. An arrangement is a similar procedure, although the arranger often feels free to take musical liberties with elements of the original score. This is especially true of arrangements for jazz or rock groups and arrangements of popular compositions or songs from musical comedies".

I can't find any case law exactly on point (ADDED: only on taking parts of lyrics not being an "adaptation", Morrison Leahy 1993, and that creating performing editions which try to reconstruct a 17th century composer's music, including missing bits, faithfully but playably, wasn't in general making an "arrangement" of it - Sawkins 2005 - and see the Williamson parody case mentioned below, where the lyrics were thought safe but the music was too close; if the music sounds too similar to the ear, that could be "substantial" enough). So I suspect there's a good chance that, even though it doesn't include the original melody, any backing music with the exact same chord progressions in exactly the same order and with exactly the same rhythms for the whole length of the song might well be considered an "arrangement" of the original song (Oxford English Dictionary: "a composition arranged for performance with instruments or voices differing from those originally specified") if not a substantial reproduction ("the way that the commonplace elements are assembled", see Williamson). That's why there's no backing music in my video, as it's not worth the risk.

Harmony line - making up a harmony can’t infringe copyright as long as the harmony line is original and doesn’t copy any part of an existing copyrighted melody. In that sense my own harmony line, which is itself an original tune in its own right, should be OK because I was careful to make sure it didn't copy any other melody.

Trouble is, my words follow much the same rhythm pattern as those of the original song so that they'll scan and match if you sing them to the original tune - even though, of course, you can recite my words like a poem, you don't actually have to sing them to any tune (and, I repeat, if you do sing or play them to the tune of "Oh Mandy", don't do it in public or you're risking a "public performance"!).

My harmony's not a "copy" of the original tune - but could it be an "adaptation", i.e. an arrangement or transcription? I don't know what "transcription" means here either. OED again on "transcription": "an arrangement of a piece of music for a different instrument, voice, or group of these" (so, the same as "arrangement" then??)

I'd have thought a totally different monophonic tune with the same rhythm pattern (but no musical backing whatsoever) wouldn't be a "transcription", whereas it seems the same (or very similar) tune in a different key or style or for a different instrument would be - but who knows.

So while I believe my own harmony line would be non-infringing, I don't want to take the risk of my own melody being considered an "adaptation" of the original song. If anyone knows whether making up an original and totally different harmony line to an existing tune has been held to breach (or indeed not breach) copyright in the existing tune, I'd really like to hear about it.

If DontDisconnectUs or TalkTalk thinks the risk is minimal and offers to help fund my defence should I get sued, however, I'd be happy to put up the video complete with my own tune that harmonises with the original tune (but is an original melody in its own right that doesn't copy the original tune)!

Words - are my words safe?

What about my words? Do they infringe copyright in the original lyrics?

In the UK, there's a "reproduction" copyright problem only if you copy or reproduce a “substantial part” of the original. Copying only an insubstantial part is OK.

Unfortunately, “substantial” isn’t clear. It’s an issue of quality, not quantity. E.g. with words, one verse (4 lines) of Kipling’s 32 line poem "If" used in a Sanatogen pills ad was enough to amount to a “substantial part”. With music just the short hook or recognisable riff from a song might be enough – e.g. the lawsuit about the Ghostbusters guitar riff, or Vanilla Ice and the bass riff from “Under Pressure”. It's whether people can recognise the original song from the bits used in the "copy".

So let's compare my words with Manilow's - I haven't even used any 2-word sequences from his original lyrics, just single words here and there:

  • Same word in same place, only 1 word used
    • used just once - all, night, into
    • used several times - Oh
  • Different but similar(ish!) word in same place, again only 1 word used
    • used just once - regret (remember), our (my), lives (life), windows (window), prying (crying)
    • used several times - Mandelson (Mandy).

In a parody of the song "There is Nothin' Like a Dame", the only parts left from the original song were the words "we got", used several times. Result - no infringement, those words weren't copyrightable anyway in themselves, so there was no copy of a "substantial" part. (Williamson Music v Pearson, 1987). On that basis I think I'm OK because you can't copyright "all", "night" etc. Or even "Oh". Fancy that. ADDED another example: in the Joy Music case a parody whose chorus contained "Rock-a-Philip, Rock-a-Philip, Rock-a-Philip, Rock" didn't infringe copyright in an existing song which had the words "Rock-a-Billy, Rock-a-Billy, Rock-a-Billy, Rock" - the verses were totally different and no music was used.

So I think I'm in the clear. I don’t believe my words have copied a “substantial part” of the original lyrics so as to infringe copyright in the original lyrics in the first place.

In the USA they value freedom of speech rather more than in the UK, and I'm pretty sure that there they'd consider my lyrics "transformative" enough to let me off. Even in the UK, being "transformative", putting a huge amount of your own work and effort into your creation, should help to make it "fair" dealing (but I won't tell you how many days I spent on mine, you'll think I'm even sadder!).

“Fair dealing”?

What's fair dealing? Now if I'm wrong and my lyrics do reproduce a “substantial part” of the original song, could I be saved by any of the exceptions which are allowed by law? These are defences or get outs that can save you even if you have breached copyright. (But, I repeat, there's no "private use" or "non-commercial use" exception -and "private study" doesn't apply here.)

One major UK exception which lets you off copyright infringement is where what you've done is ”fair dealing” with the original work for the purpose of criticism or review (where the work's been published), or for the purpose of reporting of current events (where the work isn't a photo) - as long as it's accompanied by a "sufficient acknowledgement" of the original. (Note that UK "fair dealing" is NOT the same as the much broader and culture-friendlier US “fair use” concept).

Criticism or review. My words are meant to be criticism and review of the Digital Economy Bill via a homage to "Mandy" by Barry Manilow which is a classic, a perfect pop song with a great tune - go buy the original if you’ve never heard it (I trust that was a sufficient acknowledgement!) Also, I mention the original song in the video itself. Is that good enough?

To be saved by this get out, my work has to be criticism “of that [original song] or another work or of a performance of a work”.

Now my words don't constitute a criticism of Manilow's song or another creative work; they criticise proposed laws affecting internet access and copyright etc. While some might say, with no little justification, that the Bill is itself a creative work being performed by certain politicians, I dunno if that’s good enough! But seriously, the Bill is a "literary work", so I think I'm OK there. I'm criticising another copyrightable work, which is within the scope of the exception.

Also, the English courts have said that "criticism or review" is to be interpreted liberally. So e.g. it's enough to criticise the decision to withdraw a film as opposed to criticising the film itself (the Clockwork Orange Channel 4 case, where excerpts from the film were shown), and similarly to criticise the practice of chequebook journalism using extracts from a TV programme said to typify that kind of journalism (Pro Sieben, Court of Appeal). That should help even though the song lyrics whose rhythm I've based my on words on aren't perhaps directly related to the work (the Bill) which I'm criticising, i.e. I'm really doing a parody about something else (which is what parodies tend to do - see further below on parodies).

Reporting current events. I've sufficiently acknowledged the original song, above. Tick. My words and video were certainly created at least partly for the purpose of reporting on issues under the Digital Economy Bill to do with internet connection cut-off without a fair trial before a court, and the risk of copyright law changes being made by an unelected Minister rather than by Parliament. Is that good enough?

The DEB is probably a "current event" as it's of national political importance. Not all events qualify as"current events" even if people are interested in them or they're reported in the news, though extensive media coverage can sometimes turn something otherwise trivial into a "current event". This matters because if it's not a "current event" there's no defence for reporting it. But at least the courts have said "reporting current events" is to be interpreted liberally too.

The bigger hurdle is that for the get-out to help me, the work I've dealt with, i.e. the Manilow lyrics, have to relate to, or at least be relevant to, the current event reported. Now the song has nothing to do with the Bill or copyright law (except to the extent I'm using it to illustrate difficulties with grey areas and absurdities in current copyright law), but obviously the title can be (and has been) used colloquially to refer to the prime mover behind the DEB, Lord Mandelson. Is that enough to make my lyrics "fair dealing" for the purpose of reporting "current events"? I honestly don't know.

(There's also a, very restrictive, let out for copyright breach if the copying is "for educational purposes", but although this song is in part to educate people about the problems with the Digital Economy Bill and in part to help educate people about some copyright issues, I am not yet, nor will I ever be, an educational institution!)

What about parody or satire?

My work is what most of us would think of as a parody or satire.

It's hard to parody a work without putting in enough references or allusions to the original work such that people will recognise the original, because that’s part of the point - you do it in such a way that people will get what work you're trying to parody, and hopefully think that your parody is clever or funny.

Problem is, if the original is identifiable from the parody, have you copied a “substantial part” of the original? Do the allusions make it a “copy”? The amount of work you've put into the parody will be a factor (the more the better for you), and I've certainly put in a lot.

Even if your work infringes copyright, if it pokes fun at an existing work there’s a good chance that it is a "criticism or review" of the work, and so might be saved by the "fair dealing" exception.

But what if you’re poking fun at the artist or composer / songwriter, rather than the song itself? Or what if you're building on or making reference to an existing work not in order to make fun of a creative work but to make a point about something else altogether, as in the case of my work? Basically then you're back to having to hope you'll be saved by the standard exceptions like "criticism and review" or "reporting current events", with all their uncertainties.

My point here is, being able to create and perform a parody / satire is important to freedom of speech, but there’s no let out in the UK for parody or satire generally - unlike in the USA and France, where parody and satire are specifically permitted by law – and there really ought to be.

The government-commissioned, evidence-based, independent 2006 Gowers review of intellectual property recommended bringing in a UK parody/satire exemption (for more info see e.g. this PDF note on Gowers and parody / satire), as well as other sensible reforms like making it legal to rip your own bought CDs - at the moment, believe it or not, strictly that’s not legal.

But sadly many of the Gowers recommendations seem destined never to be implemented, despite the increasing weight of public and expert opinion that our current copyright laws are broke. The UK IPO have alas decided (see para 19) not to introduce a parody / pastiche / caricature exception, but their consultation on what they do propose to implement from Gowers is still open, till 31 March 2010 - so if you have views do consider responding to them.

Basically what I'm really saying is that my words are so different that they don't infringe copyright in Manilow's lyrics at all in the first place, even if the rhythm is very similar, so I won't have to try to run arguments that it's fair dealing for criticism or review or reporting of current events.

If there’s nevertheless a complaint about copyright in relation to my words, I’ll just have to change them or delete them. Else – sacrificial lambs ‘r’ us!

Just so you know

I support ORG but I'm also a member of the "creative industries", as they like to call it, given my authorship of both words and music (in fact with any luck I hope to be getting something in from the MCPS and PRS myself. For other stuff, nothing whatsoever to do with any of this).

I just happen to believe in quaint outmoded old fashioned concepts like the right to a fair trial, innocence till guilt is proven, and basic democratic principles such as only duly elected representatives of citizens being empowered to make important changes to fundamental laws, and then only after proper open informed discussion.

And I also believe that we have to move with the times, that internet access is too important to modern society to allow disconnection of citizens or consumers without grounds judged to be correct and legitimate by an independent court of law based on all the evidence after a proper hearing, and that heavy handed over- the-top measures can be counterproductive and alienate consumers.

There are signs that the entertainment industry is finally modernising its business models by starting to deliver what consumers want, in the way that they want to consume them. Singles sales are at record levels largely due to MP3 downloads: "Digital sales now account for around 98% of the singles market. The BPI, which represents UK record labels, has said it expects total single sales in 2009 to exceed 150 million." Record label and entertainment group EMI has increased revenues in 2009 over 2008. Even US movie box office receipts are up as "Americans spent more money at the movie theater in 2009 than the year before".

All that without any 3 strikes or other threats of disconnection or suspension of internet access.

There are ways and there are ways. The Digital Economy Bill, certain parts of it at least, is not the way.

Disclaimer

Nothing is this blog post is legal advice, of course. If you need assistance on things copyright, please consult a copyright lawyer in the relevant country.

©WH. This work is licensed under a Creative Commons Attribution Non-Commercial Share-Alike England 2.0 Licence. Please attribute to WH, Tech and Law, and link to the original blog post page. Moral rights asserted.