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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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I want to introduce a few key issues, some of which I am pleased to say have already been raised at the conference. The first question is: so what’s new? We continually share our audio and images, and way before the socalled ‘digital revolution’. To this extent, the promotional rhetoric sounds like ‘spruiking’. There is little interest in configuring the Creative Commons movement as an incremental step in a long history of shared creativity – with all its attendant problems - instead proposing a radical, indeed revolutionary, break with the past, which is cast as progressively more problematic, as increasingly ‘a barrier to creativity’. Thus, the Commons rides in to save the day, to bestow on us our freedoms, like Brecht’s ‘bourgeois mounted messenger’, whether we need them or not.

Perhaps it is just the language, but this signals a highly paternalistic approach and has disturbing echoes of the neo-conservative language used to support other US led global endeavours.

What I will argue is that the conditions and aspirations of independent film makers in this country are not usefully addressed by the founding arguments used to promote the Commons. There are significant and specific local industry conditions that make these arguments - for example, the high cost of lawyers and executives stomping on artists’ creativity - a little hard to take. These rationales are off-kilter with how we produce our creative work in the Australian independent film sector. The more iCommons Australia avoids uncritically importing American assumptions and addresses the specific needs and aspirations of local film makers, the more likely the uptake of its licenses and its cause in the independent sector.

This may well be a problem related to the global reach of the Commons, but it may also be that leaders in Australia have not engaged sufficiently with the public institutions that support and fund independent films here.

These organisations, for example the Australian Film Commission, Film Victoria, the unions and our professional bodies, such as the Australian Screen Directors Association and the Australian Writers Guild, have grappled with the delicate issues of making public funded work freely available for many years. They are worth engaging with, not the least because in funding our films they have substantial impact on what rights we can licence to the Commons.

A difficult and unspoken issue is clearly the amorphous border between ‘amateur’ - not as a measure of quality but as an issue of earning living and ‘professional’ film makers. I can see iCommons working quite effectively for ‘amateurs’, although I don’t find the work available to date particularly inspiring. The minute you make films for a living however, you step into another world, although not the one described by most promoters of Creative Commons. The costs of production and the variety of contracts with funding bodies, distributors, authors, cast and crew, musicians and so on, make it very difficult to licence our films to the Creative Commons at the moment. I expect that this won’t be resolved unless and until public funding bodies, film unions, distributors and producers are able to incorporate Creative Commons licencing rights into our production agreements. It will take an enormous and protracted effort to accomplish this, and I am not sure at this stage whether the will is there.

Our general experience as film makers is of a sharing and caring environment similar to the Commons, which in itself is nothing new. What seems to be new, although largely rhetorical, is the digital ‘revolution’.

This so-called revolution has been with us for over twenty years now. It is actually only revolutionary if you fetishize the digital side of the equation in a binary that counter-poses the analogue to the digital. This opposition, often implied in the language of Creative Commons, isn’t particularly helpful. We move seamlessly between analogue and digital processes, in both production and distribution. If you remove the digital references, what you find is the age-old issues of ‘originality’, authorship, copying and theft.

In many ways, this is the same old wine, in a brand new (digital) bottle.

What is at stake, and what the Creative Commons still struggles with, and has yet to resolve, is the difficult issues relating to moral rights. These are critical concerns with widely divergent responses from different member countries, which makes it difficult to share films in a global digital environment. Should the licences remain silent on moral rights, require an explicit disavowal or facilitate authors in protecting them? I won’t approach this question from a legal perspective except to say that the focus should be on how to best retain and enforce moral rights, and for reasons other than the legal issues pertaining to jurisdiction and interoperability.

Instead, I hope to show that moral rights are not necessarily about an author’s ego or artistic preciousness, or their unwillingness to share the products of their labour, as is commonly assumed. Rather, this is about responsibilities that extend well beyond our individual rights and aspirations, and for good reasons. You might say “well just don’t sign up to the Creative Commons, don’t share the work”. That is a serious option, but I would reply that we will all be the poorer for not finding ways to resolve the issues, for just walking away. I don’t suppose I need to remind you of the exceptional contribution made by Australian independent film makers to our history, culture and political debate over the last 70 years, or our tremendous desire to continue getting this work into the public arena.

Let me explain a little more about why I think the American experience can’t easily be mapped onto the Australian independent film industry. The highly influential US version of Creative Commons is decidedly reactive. It plays to the ‘autre’, an individual genius who is hard done by in a crass encounter between ‘Art’ and money. This relies for its momentum on the assertion that executives, distributors and even producers are squashing our creative expression, our freedoms no less! Well, hang on a minute. In this country film production is not dependant on evil, money hungry moguls and grasping, conniving lawyers. This is most particularly true of documentary production, which is likely to form the substantive base for sharing work via iCommons. Independent Australian films (and film makers) are primarily developed and funded by public organisations. We work with a network of institutions, like the Australian Film Commission, Film Victoria, SBS, ABC and others. Their executives and commissioning editors are not stomping all over us poor creatives and ruining our great work. Thankfully, there is a significant flow between the independent film sector and these public institutions. Every commissioning editor and project officer I know is also a filmmaker in their own right. They frequently have exceptional track records, are seen as part of the team, and are not the sorts of executives who do not know what they are talking about, who say, “just cut it here”, or, “just make it a love story” or whatever. If you have seen ‘Swimming with the Sharks’, you will know what I mean about this particularly US version of what it is like to work with ‘the suits’.

We often thank our commissioning editors publicly for contributing the ideas, expertise and resources that make our films happen. The ‘us vs.

them’ binary that drives much of the rhetoric of Creative Commons, as I have said, cannot be mapped very easily onto the industry we work in. This is not to say there isn’t creative tension; it is simply to say the public funding system in Australia does not necessarily lead to the same issues that Creative Commons people from the US are talking about, although this seems to be an underlying dynamic in the Australian movement, at least to date.

In seeking to protect their moral rights, which is a high stakes issue in any form of distribution, film makers are not necessarily solely interested in attribution, their own reputations and the integrity of the work as it reflects on themselves. They are often more deeply engaged with the distribution issues embedded in the politics of the film. How is the work going to be placed? Where is it to be placed? What context is it going to be used in?

Can someone else pick it up and pass it on to someone who won’t respect the original agreements? For example, if we are licensing a film made with indigenous communities, are re-users going to understand and respect all the issues involved? What if there are images of deceased indigenous people in the film?

If we put our films into the Commons, it doesn’t seem that we can qualify the context of use very well. For example, I have made a film about racism and against racism. If I put it into the Commons, could someone else pull it out – a little section of it – and actually use it as a racist clip, because it is de-contextualised and reconstructed? We all know it is one thing to have a license that protects your rights, and quite another to have an ability to enforce it, or even to know that these rights have been compromised. Prior written agreement per use seems for the moment at least to be the only viable option. It is interesting that while the CC logo represents the Commons and its ideals, it is not in the Commons. Any use of the logo, except for the purpose of indicating that the work is licensed under the CCPL, can only be made with prior written consent, presumably based on articulating the context. Thus leaders of the Commons have encountered the problems I am talking about, and seem to have fallen back on traditional IP processes to solve them.

An example of the type of moral rights issues that emerge: a colleague is making a film called ‘My Father’s Eyes’, in which she has a profound and moving look at the way her father photographed her as a young girl (and seems to have sexualised her through his images). In the context of her voice-over in the film, you understand it, but this context could be ripped out and images could be used in all sorts of other ways. What I am arguing here is that the real and insistent position of many independent film makers is – “do not reuse my work in strange and unintended ways. I’m just not going to let you do that”. Unfortunately at the moment this only seems possible by withholding the work from online distribution until a way is found to agree on context, not just use (and re-use). Of course, any published work can be pirated and re-used. This is not just an online issue.

The potential for theft shouldn’t mean that we don’t vigorously seek protection, or at least try to minimise the risk.

Usually the first question we ask when approached about using our images is “well, what’s the context?” We swap materials with each other often, at least when we can, but need to say, “well, show your final version to us, and we’ll approve the end use of it, and not just give a generalised consent to any use whatsoever”. These days the people in our films often have a similar requirement. This ‘right’ can and I think should be given to on screen subjects, particularly in work that is made by, for, about and with specific individuals and communities. For example, I am working with men in a maximum-security prison at the moment. We are doing photography as a way of engaging these men in education. This includes a series of fantastic portraits. These prisoners have signed consent forms, but they are only asked to consent to two specific contexts of use: an exhibition for family and friends at the prison, and non-public screenings to develop further funding for the project. I think this is a respectful way of working with the men, particularly because a generalised consent does not sufficiently protect them. It wouldn’t enable them to specifically consent to uses in new or unforseen contexts, for example a book publication or web compilation of the images. My experience is that most of the prisoners would consent to unlimited use if I asked. However, I can’t bring myself to do this, because I know from experience that in ten years their life circumstances may have changed dramatically, and that some may not want anybody to know that they had been in a maximum-security prison. I’ve photographed the men as well, and completely accept that even though I could potentially put these photos online, I shouldn’t, much as I’d love to. I am responsible for how these images may move out of our control, and the impact this might have on the prisoners’ lives. I don’t think this example can be distinguished as extreme or highly unusual. Many independent film makers, particularly in documentary production, work in sensitive environments with similar consent issues.

While this ‘protective’ approach doesn’t completely safeguard the subjects, it does limit the risk. This is a political decision; it is a social decision; it is an issue of control. But it is control sought for reasons other than ego or money. One challenge to the Creative Commons is – can you construct a licence to say – “yes perhaps you can use the work but specifically describe the context to me first and I will tell you for sure then”. Another option, which I have used, is to require that we receive the material that a user wants to include our images in - with briefing notes – and that we select and cut the images into it. I am not seeking this just for myself, but for the subjects, actors, crew, funding bodies and everyone else involved in the films. This is where Creative Commons comes a little unstuck. It seems to be geared for a sole author, not for the complex network of creators that contribute their images, stories and creative work. I feel much more obliged to the film’s subjects and contributors than I am to anonymous digital remixers in Europe. If this protection cannot happen, Creative Commons strips away the politics of context. I would like to see some serious work towards resolving the issue, particularly by moving on from the libertarian abstractions I read on www.creativecommons.org.

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