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The Uses of Creative Intellectual Property in the Networked Era

Introduction

It is our concern that if appropriate legislation regulating digital copyright is to be drafted, it is first necessary to properly understand how creative intellectual property is used in the era of digital media and digital networking. Here is a contribution from photographers on this subject - one with which we are intimately familiar. Different media tend to be put to different uses. This article, although referring to other media, will concern itself primarily with the uses of photographs.

Let us first categorise the uses to which creative Intellectual Property (IP) is put:

• End Use: The final use made of an instance of IP;
• Further Use: any use made of the IP before its End Use.

Both of these can be subcategorised:

Private Use (by an individual or household, as defined by typical DVD or CD License to Use statements);
Public Use (in which the IP is put on public display or made available for the public to enjoy or share); and
Commercial Use (in which the IP is used to generate revenue in some form, and/or to further a political, religious, or social (charity) purpose).

There is an economic value chain from the originator to end user of IP. End Use is exactly that: the end of the value chain. All other uses can be categorised as Further Use in that subsequent private, public or commercial use can be made of the intellectual property beyond this point.

Before the advent of cheap and ubiquitous networked digital capture devices, IP on most traditional media could not be easily put to Further Use because the practicalities and barriers to further use of that IP were difficult to surmount. It is now trivially easy to digitise almost any medium into usable formats for Further Use, and the ease of use and propagation of digital IP is such that with few exceptions there is no longer any real end-user of digital media: it can be endlessly used, re-used and combined or “mashed-up” into new uses.

It is important to note that the primary purpose of all copy-protection and Digital Rights Management mechanisms is to limit that instance of the IP to its defined End Use and prevent unauthorised Further Use.

Here are some examples of the six categories of use:

END USE
usually the end of the economic value-chain for that particular instance of the IP

Private

• a photographic print of a privately commissioned portrait
• a printed wedding album
• purchase of a limited-edition "art" print
• the enjoyment of books and other printed matter, traditional vinyl records, CDs, videotapes and DVDs bought for private use, as defined in their accompanying Licenses to Use
• before the widespread adoption of domestic tape and video recorders, broadcast radio and television.

Public
• viewing a picture on a public gallery wall
• reading a book in a public library
• attending a free-to-enter exhibition, performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar event not staged to further a commercial, political, religious or social (charity) purpose.

Commercial
• listening to music "piped" to shops, restaurants, lifts, and other public spaces
• attending a pay-to-enter exhibition, performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar free-to-enter event staged to further a commercial, political, religious or social (charity) purpose.

FURTHER USE
not usually the end of the economic value chain for that instance of the IP

Private

• any recombination, collaging or “mash-up” of IP originated by others, for that individual’s study, practice or amusement

Public
• display on a public gallery wall
• placing a book in a public library
• mounting a free-to-enter performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar event
• Use in any way on the public Internet (including “blogs”) for non-commercial purposes (see below), or on “private” web-pages viewable by others, such as Facebook. Note: This is not private end use because it is in fact publishing, and makes it trivial for IP displayed there to be re-used by others, without authorisation. Furthermore, Facebook and others assert or have asserted rights to use IP posted to their services over and above those necessary for the provision of their services. Such assertions are known as rights-grabs.
• any recombination, collaging or “mash-up” of IP originated by others, for public display

Commercial
• the publishing, resale or re-licensing of the IP in any form, paid or not
• use in advertising, or in an advertising context (the advertiser is making money from the use. This includes search engine results pages or “blog” pages that contain advertising banners or links)
• use in a commercial, political, religious or social (charity) context; i.e. to further a commercial, political, religious or social (charity) purpose
• any public recombination, collaging or “mash-up” of IP originated by others, to achieve a commercial, political, religious or social (charity) end, such as the infamous “Ashes to Ashes” political posters
• borrowing a book, CD or DVD from a public library
• use on the Internet, beyond Public use
Editorial uses in “the media
Public Relations uses in “the media”, etc.
• “Corporate” uses such as Annual Reports, in-house magazines, brochures, flyers, etc.
• “Educational” use. United Kingdom universities generated £59 billion for the UK economy in 2009, more than the pharmaceutical industry or the agricultural sector. Education is not unprofitable, and many creatives depend upon licensing their IP for educational uses for their main income stream. We know that many students are encouraged to duplicate photographs found on the Internet for inclusion in their course work, and that their teachers and tutors do exactly the same when preparing tuition materials. This must be considered commercial educational Further Use.

An additional usage definition is possible: Cultural Use. In our view, this use can be defined as being similar to Public End Use, but with some restrictions. In other words:
• viewing a picture on a public gallery wall
• reading a book in a public library
• attending a free-to-enter performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar event free of advertising and sponsorship messages and not staged to further a commercial, political, religious or social (charity) purpose.

This is an End Use: no Further Use in any way can be made of the IP. In a digital networked form, it is one possible way in which so-called “orphan works” might be made available for public cultural enrichment.