Copyright, Content & Congress
A panel discussion for Digital Hollywood 2013
recorded May 1, 2013 (Los Angeles)
presented by Copyright Clearance Center
For podcast release Wednesday, May 8, 2013
KENNEALLY: Welcome. My name is Chris Kenneally. I’m director of business development for Copyright Clearance Center. We’re online at copyright.com. We’re very happy you can join us for a program we call, “Copyright, Content and Congress.”
It occurred to me that you might wonder how we got those three all together in one place. Well, let’s start with two of them, copyright and Congress. They go together because article one, section eight, clause eight of the US Constitution is the one that provides for copyright and all the various laws that flow from that. It reads very briefly, “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
So Congress has the power to make all the various copyright laws that are enforced today. Along the way, that “limited times” period has been extended over time. Originally, 14 years, now it’s life of the author or creator plus 70 years. A congressman from California has something to do with that. As you may recall, Sonny Bono.
But today, we’re going to talk about the problems that you all face as creators, the problems that both the big studios and the individuals face, and we’ve got a terrific panel to do that. I want to briefly introduce them all. I’ll move from my right over to my left here.
Amelia Wang, welcome. Amelia is the Chief of Staff to Representative Judy Chu, a congresswoman here in California. Prior to that, she was district director for the California State Board of Equalization. She received a BA in psychology and sociology from UCLA. She came the farthest to join us, but she is a local. She studied Mandarin at the Beijing Normal University. So Amelia, welcome.
WANG: Thanks, Chris.
KENNEALLY: Beside Amelia is PJ Kuyper. PJ, welcome.
KUYPER: Thank you, Chris.
KENNEALLY: PJ is president and CEO of Motion Picture Licensing Corporation, a nontheatrical licensing agency representing the Hollywood studies and over 400 independent film and television producers. Prior to becoming CEO of the MPLC, PJ spent five years in the UK as MPLC’s managing director for Europe. Then again, further on to my left, Rob Aft. Rob, nice to see you.
AFT: Thank you.
KENNEALLY: Rob is president of Compliance Consulting, an LA-based media, finance and distribution consultancy. He has served seven terms as member of the board of directors of the Independent Film and Television Alliance, an organization you should all be familiar with, if you’re not. He has taught film business courses at USC, UCLA, and Loyola Marymount. And he has written, most recently, From Script To Screen: The Importance Of Copyright In The Distribution Of Film, which was published by WIPO.
AFT: It is a free publication. I’m not selling it. It’s free.
KENNEALLY: Right. This is free.
AFT: Go to the WIPO website and download it all you want.
F: What is it called?
AFT: From Script To Screen.
F: No. The WIPO, did you say?
AFT: World Intellectual Property Organization. It’s a UN agency that deals with all of the copyright and trademark treaties.
KENNEALLY: But Rob will sign it for you even if it’s just an electronic signature.
AFT: Electronically. Yeah. Just send me an e-mail.
KENNEALLY: And finally we have, from Los Angeles, Maura Kawai. Maura, welcome. She is senior international trade specialist with the US Department of Commerce’s Export Promotion Arm, and she serves particularly for electronic media, IT and telecom entertainment and education sectors. She’s organized and hosted programs to introduce US firms to global buyers, including delegations from China, Hong Kong, Brazil, Taiwan, Thailand, Philippines, and many other countries. So welcome to all of the panelists.
I want to start with Amelia because she has come the farthest, and I think she’s got some news for everybody here at Digital Hollywood that’s really important. There is now organized, by Congresswoman Chu, a Creative Rights Caucus. What’s the creative caucus about, why was it formed and who is trying to serve?
WANG: Chris, the congresswoman serves on the House IP subcommittee and when the SOPA debate was happening, she was right in the middle of the whole thing. During this debate, she noticed that the voice of the creator, the individual creator, was not heard or understood. So she saw this need to advocate for their rights, specifically. The caucus – basically the core principle is protecting creative rights. The congresswoman also sees an opportunity to stress that creators are where innovation begins. Technology cannot exist without creative works or vice versa. Truly, it’s a symbiotic relationship.
Take, for instance, app developers, who basically create in the tech space. With the dramatic growth of this industry, they too have now become increasingly concerned about protecting their IP – intellectual property. At the end of the day, we can all agree that protecting creators’ rights is in the best interest of everyone. It’s of upmost importance. It drives American ingenuity and creates jobs. In the creative sector alone, it creates 5.1 million jobs. So it’s an extremely important issue.
KENNEALLY: Right. The point about innovation – I think that was why the founders wrote copyright into the Constitution in the very first place. They had a new country and a country that was only going to succeed if its people could be innovative and creative, and it was put right into the Constitution.
Remember, they had to amend the Constitution for freedom of speech, but they put it in the very first article. And I think from there flows all the concerns that the congresswoman has. Amelia, you mentioned SOPA and PIPA. I guess people will be familiar with that, but briefly remind us what happened in Congress about a year and a half ago, around two bills, one called the Stop Online Piracy Act and the other the Prevent Internet Piracy Act, I believe.
WANG: Right. On the Senate side. Well, it was obviously an extremely heated debate. Being on the Hill at that time, it was incredible. It was such a wave of opposition to those two pieces of legislation. From the vantage point that I see, there was an agreement that protecting copyright was important and protecting content. But at the end of the day, there was not an agreement on how to go about doing that and sort of the mechanics of it. So the whole thing basically went down. I think most of us were shocked by the level of mobilization that the opposition had and also just the messaging. To the average American, having an Internet blackout is a scary thing.
KENNEALLY: Right. I think the point that is driving the creation of the Creative Rights Caucus is it seemed to be about big studios promoting things to protect themselves. But the point of view of the congresswoman is that this is really about individual creators.
WANG: Exactly. You’re absolutely right, Chris. At the end of the day, they are the unit of innovation, and so we need to make sure that the individual creator’s creative rights are heard. Whether it’s the filmmaker, whether it’s the songwriter, maybe it’s a software designer, but all creators are equal and we really want to work on their issues.
KENNEALLY: Right. PJ Kuyper, I’ve seen you nodding your head vigorously, so it’s no surprise you agree with those sentiments. I know for you, it’s really important because you recognize – you’ve been working in the industry for so long – that production’s not easy. There’s a lot of work that’s done. As Amelia mentioned, there are a lot of jobs that are involved here.
But really, the focus of MPLC is about the various rights that flow from copyright. Tell us about those rights. Because again, I’m not sure everybody in the room – they’ve heard about copyright. They’ve maybe heard about SOPA and PIPA. But as creators, they may not be as familiar as they ought to be around their copyright or what protections they get from copyright. So tell us about those.
KUYPER: Yeah. For people who are creating film productions – and we all know it’s whether you’re doing a big-budget film or you’re doing a small-budget film, there’s a lot of a passion and energy and creativity that goes into it. And you have three rights that protect that. That’s it. You have the right to control the duplication of your work. You have the right to control the transmission or the retransmission of your work. And you have the right to control the public exhibition.
Without those three rights, there is no way to make money on your creative work. That means there is no way – there’s no home entertainment market. There’s no television market. There’s no streaming market. And there’s no cinema, theatrical market. As we saw with the demise of PIPA and SOPA, there are a lot of people that are advocating against copyright and trying to tear it down.
KENNEALLY: I was going to say, I know you feel strongly about this. I want to give you a chance to tell people about your view there. For you, this really is fundamental. It’s about standing up for the rights of creators.
KUYPER: It is. And the rights of creators – I think this is the part we’re not in – I think Amelia mentioned it. You don’t hear the creators standing up and saying, wait a minute. This is my copyright. We made this film. We financed it. People are stealing it. The advocates against copyright have reframed the argument. How did they take PIPA and SOPA, which is legislation to try to block pirate websites in foreign countries, and turn that into an argument about censorship?
KUYPER: I was standing – while you were in Washington, DC, with the heat of the PIPA and SOPA, I was actually outside Chuck Schumer’s offices in New York. I listened to the arguments that these anti-copyright advocates were coming up with. It was absolutely ridiculous.
The arguments were, well, it’s censorship, right? Censorship. The second one was that Hollywood is trying to control the Web, right? We built it. There was this woman, got up there and very eloquently said – or not very – she said, we built this and now Hollywood’s trying to take it away from us. And then the third argument – this was the one I loved the most – was that this is going to cost tech jobs. Right?
You think of all the Hollywood jobs, all the layoffs that have happened, the rounds and rounds of layoffs that have happened over the last five years. And their argument was it’s going lose tech jobs.
KENNEALLY: Well, PJ, I guess the other piece is that it’s not just a legal argument for you, but a moral argument. How difficult is that as a sell these days?
KUYPER: What our company does – we represent 420 studios and producers around public exhibition. If you’re showing a film in a public place, whether it’s a library, on an oilrig in a corporate training program, you need to have permission from the copyright owners. That’s what we provide.
So every day we are confronting people who are using films illegally. We’re explaining to them the copyright law, the importance of the copyright law, and asking them to do the right thing, which is take a license, legalize it. When you engage – certainly on a one on one basis about the rationale of the law and the reasons behind and what you have to do about it –
F: It works.
KUYPER: – it works. And it makes perfect sense. But we’re not hearing that debate. What we’re hearing is that it’s not stealing, it’s sharing. That’s what we’re hearing.
KENNEALLY: Well, Rob Aft, I want to turn to you because you’ve written about some of these issues for WIPO and elsewhere. You’ve got experience not only working with companies about this and individuals, but you teach at film schools. When it comes to copyright and distribution and the rest of it, how well is that taught, in your view?
AFT: Well, it’s fairly poorly taught. There’s a relatively low knowledge in the general public about it, as well.
KENNEALLY: Rob, can you pull the mic just a little closer? Yeah.
AFT: Sorry. Just in terms of copyright and piracy, I tend to take the view that the creators need to establish their ownership on their own of their work first. They need to understand copyright very well and put all the pieces in place, so that they’ve got their music rights, their underlying rights, their screenplay rights, their actors’ performance rights – all of those things.
It’s a very complicated thing to do and it’s generally not taught at all or very well in a lot of the film schools. It’s a law school thing that is also not taught very well in law schools. I’ve got friends who teach this. There’s a great – Jay Dougherty, down at Loyola Marymount and there’s some others that do it very well, but most law schools don’t teach intellectual property rights very well.
KENNEALLY: I think it’s because they consider it a dirty topic, at least at some of the film schools.
AFT: Well, the film schools certainly do. They want people being creative. They don’t want them wallowing, and they say, they can always hire a lawyer. Which is a really bad way of approaching these things, because a lot of people can’t hire lawyers. They don’t have the resources during their productions. And also, the lawyer’s not signing the documents. They’re signing it.
Any document you put your signature on, you’d better understand it, because you will be held responsible for it. You don’t want to steal other people’s work, other creative work. But one of the things – and this was just completely random – this morning, the LA Times – I’m one of the last subscribers to the LA Times, by the way.
KENNEALLY: I have to tell you, I subscribe back home to the Boston Globe and whenever I go anywhere, I buy a copy of the paper, the paper. And I know which article you’re going to talk about. It’s great.
AFT: Oh my God. Front page, LA Times.
KENNEALLY: Front page.
AFT: Front page, LA Times. One man’s move to copyright a British phrase that’s behind a commercial frenzy has resulted in a blitz event. And of course, we all know that editors write headlines. The story is about someone trademarking a phrase, not copyrighting it.
AFT: The rest of the story is fine. But this is the biggest town in a state where our biggest revenue generator is IP, and the paper gets copyright and trademark confused.
KENNEALLY: Rob, I thought of that too as I was sitting and reading it upstairs. It’s a terrific point. It’s an article you should all look at. It’s about that phrase we all know, keep calm and carry on. It’s been sort of adopted for, in this particular situation, keep calm and bring a lawsuit. Right?
AFT: Yeah. Right.
KENNEALLY: So with this particular issue, though, you’re right. We need to understand better those various branches of intellectual property. What are the rights? What are the obligations that go with them? That’s not a copyright story. It’s a trademark story.
AFT: Right. A lot of copyright creators are screaming about people stealing their work while they’re in the process of stealing other people’s work, which is the other thing that I really – and you talk to people about – I looked at a movie the other day and it opens up with people sitting in a movie theater watching a very old Bollywood movie.
I said, where can I find the copyright holder who licensed those rights? It’s like, well, then you’re just stealing it. You didn’t license those rights properly. You know what? The tragedy is when you go to distribute that movie, all the distributors are going to ask you the same question. So show me the piece of paper where you got those rights.
F: And so will television and so will film festivals.
AFT: You will get no money. No one will see your movie. It’s even worse than not getting any money. No one will see your movie because no one will touch it for distribution.
KENNEALLY: Rob, I just want to make that final link. So it’s not just about all the legalities and having the papers in order. This is about ultimately getting compensated. Getting your work out into the world, but frankly, it’s about being compensated for it.
AFT: Compensated is part. It depends on the level you make movies. I’ve got friends who just want their stuff to be seen. They would be thrilled if they knew 100,000 people had seen their movie. Whether or not they ever got paid for it, they wouldn’t care.
But yeah. What I represent for the most part are banks in film loan transactions. They want to get paid. In order to get paid, they need to know that all of the copyright documentation has been properly taken care of. There’s a certain type of insurance that they will insist on, called errors and omissions insurance. I don’t know if you’ve ever dealt with that, but it seems like a very complicated system.
And it really is a very complicated system, but the whole system is predicated on certain UN treaties that we’ve signed that resulted in certain laws that were written, and those laws are enforced. There are lots of lawyers involved and lots of contracts that are very complex. But if you expect your work to be respected as a copyrighted piece that you own, you need to respect and understand all of the underlying copyrights that go into it.
KENNEALLY: Right. I’m fond of saying about copyright, if you’re confused, you’re beginning to understand the problem. That’s really how it works.
AFT: And trademark’s worse.
KENNEALLY: Right. Trademark is worse. Trademark is a kind of – let’s just give people a bumper sticker for that. It’s really a kind of form of consumer protection. It tells people that that shoe they’re buying really is a Nike.
AFT: Partly. It’s also a form of encouraging people to invest in companies. Nike has to know that people will understand that this is a Nike and not some shoe with a swoosh on it that was made in a sweatshop in Bangladesh. But in order to make a movie, in order to invest in the huge amount of money it costs to make a movie or to launch a consumer product, whoever invests in that needs to know that they’re not just putting money into thin air. So that trademark is an economic entity in and of itself. Not just to protect the consumer, but also to protect the investor in Nike, for instance.
KAWAI: And another way the trademark affects film producers is their websites and domain names are considered part of it, as well.
AFT: And title treatments, in a lot of cases.
KAWAI: Right. For overseas markets, that can be the first point of introduction to a US film company is through their website.
KENNEALLY: Maura, lean in on the microphone there. ]I was going to say, you’re from the government and you’re here to help us. Right?
KENNEALLY: Isn’t that the truth? Right. I think it is the truth. I read a story today. You should all go and check it out. The US Trade Representative’s Office issued its annual report looking at piracy around the world. There are some names there that they call out on their priority list and their watch list and so forth. The countries that are cited at the very top of the list, you’ll be familiar with. China’s there. The Ukraine is apparently the worst offender in the world right now, the US government says. But you will also see countries that you might be surprised to find on that list. Canada, Italy, Brazil, and so forth.
So the world – I hate to say it – is a dangerous place. But what you do Maura – and I’m being sort of half-serious about that – is to help educate people about what they can expect when they try to go abroad with their businesses and to help people abroad understand better US practices, so they can work with their US partners in correspondence with the law and otherwise. Tell us more about what you do.
KAWAI: Well, actually, I, myself, am not an IPR specialist, but I did consult with our IPR office in Washington, DC. What I do is I promote US film and entertainment abroad. That’s my specialty. I work with our overseas network of commercial officers in 70 countries housed in the US embassies and US consulates.
Those officers, as well as our IPR office in Washington, DC, are a resource for all of you, because they can help you navigate foreign government’s legal system, including providing local lists of investigative firms if you want to follow up on some copyright infringement, and also local attorneys. And they can also, for free, share experience and expertise in that country. The film distribution industry is quite territorial. It’s territory by territory. And so that really works well with our overseas network, which is very specific to certain markets.
KENNEALLY: Right. And it’s not just about being the heavy in the room for the US, and I think you want to stress that. One of the things the US tries to do is to bring its standard of IP protection and its concern for these issues to the rest of the world.
KAWAI: Right. The administration has now a very strong resolve to provide a stronger and more streamlined system for protecting US IP. That really sets a standard in terms of our trade negotiations with our trading partners. Of course, international trade’s a very important part of our economy and the global economy. So the US Trade Representative’s Office, USTRO.gov, they’re really winning recognition on behalf of US business for increased transparency in trade policy negotiation for intellectual property rights.
KENNEALLY: Right. Maura, the initiatives you’re talking about allow people to come to you, I assume – well, let me be just clearer, to help people, be clear. If they discover their work has been reused without their permission elsewhere in the world, who do they go to? Do they go to you?
KAWAI: Yeah. They can come directly to me and I’m the liaison to our overseas offices, but US companies are also able to go directly to our overseas office. That’s trade.gov, and we have our list there. But before you contact our commercial officer, let’s say, in Brazil, you may want to have some orientation or initial consultation.
That’s what our www.stopfakes.gov Web portal is all about. That’s your first point of entry into working with us, because we provide a free online IPR training module that will help you understand your IPR assets domestically, internationally and then also have it enforced globally. So that’s free.
KENNEALLY: Well, I want to go back to PJ, because all this is pretty good. It’s on paper. Right? But we want to make it work for the people in this room, people attending Digital Hollywood and for the creators here in Hollywood and elsewhere. What are the things you think we really need to do? I think you think education. Part of what we’re trying to do here is the education, but what would you like to see happen more so that these people can be protected?
KUYPER: Well, I think that there’s two sides of this. I think the first solution is technology. I think that if we can use technology to stop copyright violation, we should. So stronger DRM, monitoring of network traffic, or keys, whatever it is that we can do. I think that along with that requires cooperation of partnership with internet service providers.
WANG: Right. ISPs, yeah.
KUYPER: ISPs and the tech community. But if we can’t restrict it with technology, we have to find a way to legalize it. I think this is a lot of what you’re talking about for filmmakers. It is really hard to get all the clearances, and that frustration breeds two things. It breeds discontent and it breeds violation. Just forget it. Blow it off.
We have to, as creators of this work, find ways to make it accessible to people. If we can’t stop someone from doing it using technology, they will do it. So let’s find a way to license it. Let’s find a way to make it available for them. Let’s find a way to easily, easily access it.
The third thing that we really have to do because – as I mentioned, these advocates against copyright – we have to stand up for our rights. The PIPA and the SOPA debate, you did not hear any senators or congressmen come out in favor of PIPA. They all ran away. Where was the MPAA? Where was the directors, producers? Where were the banks financing films? Crickets. But yet the tech community was able to have this huge onslaught of support.
KENNEALLY: Of outrage.
KUYPER: Of outrage.
KAWAI: And an interesting point – opinion I’ve read – is that actually, the reason why the entertainment community cannot profit more from the Internet is exactly because of copyright infringement.
F: That’s true.
KUYPER: But when Instagram changed its terms and conditions, my daughter came running out to me and she said, Instagram is ripping me off. They’re ripping us off. They’re changing their terms and conditions so they can sell my pictures wherever they want. And I was like, Annie, are you kidding me? That’s about copyright. She says, yeah, this is ridiculous.
I said, but Annie, you still have your pictures. Instagram has a copy, but who cares? You still have your pictures. She’s like, Dad, they’re ripping me off. They’re ripping us off. But this is sharing. Sharing is fun, right? When you look at the users of Instagram and how they protected their copyright, why can’t Hollywood do the same? Why can’t we be as outraged as those millions of Instagram users?
F: I don’t know why. It doesn’t make any sense.
KENNEALLY: Right. In fact, Amelia, I want to turn to you because I’ll have to ask you – you’re on the Hill. Your congresswoman is the co-chair for the Creative Rights Caucus. You witnessed the debates around SOPA and PIPA. And the artist community, creator community is pretty broad. It covers everybody. Songwriters and musicians, they get a lot of attention. This is to PJ’s point. How well is the film and video community getting its voice heard on the Hill?
WANG: Well, I think that’s what we need to do moving forward is to make sure that all creators have a voice from every medium. I think you’re absolutely right. There was not as much of a presence for the individual creators on the SOPA and PIPA issue. It’s what you said, Chris. It was basically looked at as Hollywood versus Silicon Valley. So that was the big messaging loss there. I think moving forward, certainly, all creators should be there at the forefront with their voices, with their issues, and be able to use the caucus as a voice moving forward.
KENNEALLY: Right. Rob Aft, you follow these issues and see them on a daily basis. And so I guess I have to ask you about the clients you have and the things you have to alert them to. I was going to ask a trick question at the beginning about – is The Great Gatsby under copyright? Is Alice in Wonderland under copyright? Is Snow White and the Seven Dwarfs under copyright? And the answer is well, yes, but.
KENNEALLY: So can you fill people in? Because so much of what’s being made today is based on other works anyhow.
AFT: Sure. If you ever look at the top 10 box office, most of the time, the majority of them are based on previously existing copyrighted work.
KENNEALLY: All those films I just mentioned are either out recently or coming out soon.
AFT: Right. And something like Snow White – anybody can make a movie of Snow White. And everybody did a couple. Was it last year? The year before? It seemed like everybody had a Snow White movie, but –
F: Loved them.
AFT: – if you want to put seven dwarves in there and call them Sleepy and Doc and all those, then that’s violating a Disney copyright. Some people don’t think Disney copyrights will ever expire if they have their way – their influence in Congress. But that actually brings up a point that keeps going through my head every time that SOPA and PIPA get brought up and the Sonny Bono/Mickey Mouse copyright extension, where it’s an issue of overreach. I think that the public has gotten somewhat tired of overreach from the entertainment community.
KENNEALLY: Well, tell me what you mean, exactly.
AFT: Well, you brought up when – I believe in the Constitution, the copyright was a 14-year term with a 14-year extension.
KENNEALLY: Fourteen, renewable for another 14.
AFT: Yeah. And it wasn’t even enforced. The United States famously didn’t enforce any intellectual property rights until the mid-1860s. That’s a completely different issue. When it became in our best interest, we started enforcing the rights. But now, as you say, for corporate copyrights it’s 90 years from the first release.
AFT: There was a reason that there was a limitation on the term of copyright. There’s a societal good that’s produced by public domain material. The fact that anybody can take Moby Dick and turn that into a movie, or TV show, or anything they want right now, that’s a good thing. It’s also arguable that it would be a good thing if someone could take The Great Gatsby today and turn it into anything they wanted. I hated the fact that rap musicians couldn’t sample anymore. I loved sampled rap. That was great. And now you can’t. Yes, those are violations –
KUYPER: You can. You just have to pay for it
AFT: And you have to pay so much that that kid on the street in Brooklyn cannot do it. It’s completely impossible. Whereas you got somebody like George Lucas who recognizes the societal good, and the promotional good for his own work, of allowing people to do anything they want that’s noncommercial generally, but sometimes commercial work, as well, with the Star Wars characters.
The big question right now is will Disney, who’s notoriously been on the complete opposite end of the enforcement scale – will Disney still let fans create fan videos and post those on YouTube based on Luke Skywalker and the rest of the Star Wars characters? I would argue that it’s a good thing that fans were able to do th,at for a long time without paying. George Lucas thought it was a good thing. Now the copyright’s controlled by Disney. Will they still agree it’s a good thing, or will they shut that down and restrict creativity in that part of the marketplace?
KENNEALLY: But finally, Maura, let’s just wrap it up with this notion of the global economy that we live in today. There is no such thing as international copyright law. People get confused. There is only US copyright law and Canadian copyright law and Chinese and so forth and so on. So every country you go to, you have to respect the particular copyright laws in that particular country. Yet we are faced with this global world and the Internet being instantly global. How would you tell us the effort to cooperate between governments and private companies and individual artists is going right now?
KAWAI: Actually, the US government has been negotiating with foreign governments and has been successful in lessening the burden for protecting copyright abroad. They have greatly streamlined that. It used to be that you’d have to file several series of paperwork and so forth. Now, it’s almost – well, it’s fairly automatic, depending on if the foreign country is covered by an international copyright convention.
In general, if a foreign market is covered by an international copyright convention, your copyright will be protected and that’s understood. If a foreign country is not covered by an international copyright convention, then your copyright can still be protected, but as Christopher mentioned, it would be more under the national law of that foreign country.
KENNEALLY: I want to thank our panelists. Maura Kawai, Rob Aft, PJ Kuyper, Amelia Wang. Copyright.com has lots of information about all these questions. And be happy to hear from you. So thank you all for joining us today.
WANG: Thank you.