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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 guess we are still more comfortable sharing our work in a face-to-face environment via a network of obligations, friendships and professional standards that I don’t find on-line. In a face-to-face relationship, creators are frequently quite generous about sharing their work. I remember a film colleague helping me to ask his mate Paul Kelly to let me use a song called ‘Before Too Long’ in a film for prisoners in Pentridge, and Paul wanted to support that. He asked me about how it would be used, why and so on, then said – “look I’ll make sure you get the rights cleared. There you go. Let’s play a game of pool”. We are looking at an eyeball to eyeball negotiation, one that ultimately comes down to the sort of trust you get amongst a community of filmmakers who have long term friendships and professional relationships, and who know where each other lives!

Another thing that concerns me about the American experience, as reported by the US Creative Commons’ folk, is the notion that lawyers are substantially depleting our budgets, creating ‘barriers to our creativity’. But from the budgets most of us work on, lawyers get hardly a penny. Sorry about that. The reason is that we do not need lawyers all that often. When we are funded by Film Victoria, we have access to a Film Victoria lawyer.

ABC has lawyers. SBS has lawyers. Touch wood, I have never been sued, although I have done my own contracts for almost twenty years, including a substantial amount of licensing rights. We all know how to license third party content – we can license music with our eyes closed. This is generally a pro forma process, and there is considerable help available via free copyright advice services and industry bodies. It seems to me that we are in a quite different world to Professor Lessig’s experience of the US film industry: another US rationale for the Creative Commons that does not make a lot of sense to independent filmmakers here.

There is an area where Creative Commons’ ideals can really come to the fore, although it seems to get little attention. The real interest of independent filmmakers is in this notion of the release of Crown copyright via Creative Commons’ style licences. We are generally not looking to reuse some individual artist’s view of the world or for the kind of ‘clip art’ I have seen available in the Creative Commons. We all do political, cultural and historical documentaries that aim to have some sort of public impact.

Hence, what we are looking for is better and cheaper access to our national sound and image archives, such as those held by the ABC and Film Australia. My experience is not that the ABC or Film Australia withhold access for political reasons (although there is one example of this that quickly turned around in the face of industry concerns), but rather that the legitimate costs of providing this service are often too high, and many of these costs are met by film-makers via license fees. I have no doubt that the ABC and Film Australia would provide better access with increased funding. Even the commercial networks in Australia don’t have a serious reputation for ‘blocking’ independent film makers’ access to their footage.

In fact, 60 Minutes recently gave a colleague a great deal of assistance in finding the right footage for a very reasonable price. If the Creative Commons can provide a service here, by lobbying for the release of Crown Content, and arguing for increased public funding for access, this is likely to have a tremendous impact on independent film making and public debate in digital environments, and would go a long way to facilitating the sorts of freedoms Creative Commons espouses.

With the Creative Commons online archive, there is a bit of a wait and see attitude. How good is the reference engine, can we find the materials we need easily, and are they useable quality? Is the material we are looking for actually in the Commons? It is hard to think that the Creative Commons ‘bank’ will come anywhere near the depth and quality of, for example, the 70 year collection of films, photos and sound held by Film Australia. Why set up another archive when a tremendous public resource already exists, and can potentially be added to by users? Further, the archival librarians in public institutions are the unsung heroes of documentary film making, and I cannot see an online engine providing the service they offer to the independent community. I can ring them up and say, “Look, I remember there was a shot of Malcolm Fraser walking out of a court room”, and they will say “1974 – Queanbeyan County Court’; and give me details of who shot it, how much footage, and sometimes even a shot list. A filmmaker’s time spent searching for usable footage can be extremely costly, and can draw significant attention away from all the other work. If you replace these human wellsprings of knowledge with some sort of digital search engine, what have we lost?

Another issue to touch on briefly is that in our funding agreements we typically assign all rights to the funding body, distributors and broadcasters. Our films cost a lot of money. We do not fund them ourselves. We cannot afford to make these films in a way that would be professionally satisfying, most often because we believe in paying our crews decent wages. To acquire the funding the trade off is that we assign our rights. If the moral rights issues were resolved, most of us would put our films, or bits of them, into the Creative Commons. The thing is, we generally do not own them. To be more specific, one of our biggest problems in contributing to the Commons is that actors are paid residuals and, in order to maximise the money that goes onto the screen – the production values – we buy the most limited licences possible for the distribution required. Generally, the more rights and territories you license, the more it costs. Our licences are limited by medium, territory, duration and use. If we are making a film in Australia, we will generally only licence the relevant Australian rights, otherwise we are spending a lot of money that goes out of the production budget unnecessarily. We could afford another four days’ shooting with that money. It is very hard to offer much into Creative Commons, with its worldwide reach, because what we can offer is so limited. Creative Commons therefore has to have a fairly significant engagement with funding institutions like the Australian Film Commission, and of course the Media Entertainment and Arts Alliance (who deal with actors wages and residuals41 to enable funded film makers to contribute to the Commons. This, as I’ve said, is best achieved by ‘Residuals is the term used to describe royalties paid to actors, directors, and writers for airing programs originally and in subsequent replays and re-runs, and for cassette sales and rentals’: Robert G Finney, ‘Unions/Guilds’ The Museum of Broadcast Communications http://www.museum.tv/archives/etv/U/htmlU/unionsguilds/unionsguilds.htm at 28 August 2006.

seeking to have Creative Commons style licensing opportunities incorporated into our production agreements.

These are difficult issues. They may ultimately prove prohibitive for ‘professional’ film makers. And yet I think there is a general sense of the Commons as a good thing, although it is nothing new. What is relatively new is machine readable licences, the digital exchange, the increased opportunity for sharing and caring, re-mixing and so on. These activities may contribute to opening up the limited number of distribution channels and facilitate public discourse, which, in the Australian independent sector at least, doesn’t seem to be in decline. However, like the pre-nuptial, these issues have to be addressed specifically, pragmatically and in detail if the Creative Commons is going to move from a brief, passionate interlude to a sustained and no doubt difficult engagement with the needs and realities of funded film making in this country.


My contribution to this discussion will be from a few perspectives based on my personal experiences as composer, educator and academic manager.

First as a creative professional. I have been an active composer of contemporary classical music for nearly forty years. I think that the changes that have come in music the last few decades are, in fact, paradigm shifts. I was fortunate enough as a musician to enter into the digital age very early in the 1970s at the University of California and at Princeton where I was first exposed to and studied computer-generated music. A few years before, the famous German composer, Karlheinz Stockhausen, said that all the orchestras and all the opera houses would disappear within 30 years and that all music would be electronic. I believed him and set out to see what the future was going to be made of. Well, the opera houses and concert halls are still there but I do not know how many people in this room have heard live non-electronic music recently, other than their own bathroom, singing. Today, virtually all music comes out of loudspeakers;

even if we can see the ‘live’ performer or performers the sound comes to us indirectly, electronically. Even if music involves the voice, or instruments designed and constructed hundreds of years ago, we now mostly, overwhelmingly, hear music and see it being made via electronic means.

We all know that this transformation started more than a century ago but the second half of the 20th century saw the completion of the process such that now we conceive, create and experience almost all music with great involvement of synthetic electronic production. Digitally based techniques have accelerated this. With this in mind, issues of reproduction and ownership attribution have all come under pressure. In this context it seems to me any innovation that seeks to create new ways of dealing with fundamental issues of ownership, use and sharing and that appears to be solving problems caused by the changes that have happened in this period, has to be thoroughly interrogated and — if useful and progressive — embraced. But I do think that even in the presentations this morning we run the risk of simplifying the discussion: we have got so used to a black and white world, dare I say a zero and one world, that the debate seems to be happening as if it were a bipolar argument. We must not let simple explications and arguments be the basis of the decision. The interrogation must encompass the complexities and the humanity of the modern world.

So as a composer, while I am interested, even excited, by the possibilities of the Creative Commons, I still wish to maintain a sceptical perspective and look carefully at the detail and the implications.

I also react as an educator and teacher. Like many composers, artists and writers, I have been involved in teaching, in my case, creative music teaching, for many years. I think the Creative Commons idea has the power to impact positively on teaching — it assumes freedom to use other people's creative output, which is very valuable when you are learning.

When you try to teach people how to make music, one of the things I encourage them to do is to discover all the possibilities — to imagine all the ways a work can go: where can this tune go next, where can this line go next, where can this harmony go next? And I am sure that writers, painters and all creative teachers try to get the developing artist, the student, to know as many of the potential ways of creating a particular piece of work as possible. It seems Creative Commons, by its very nature, is enhancing that. We now live in a market place that covers the world: everything is owned, everything is for sale, including ideas, music and art. Every time you use or sample or test someone else’s idea you wonder if you need permission or if you have the right permissions. Maybe that will not always be so, but certainly for the moment the world we live in is essentially market driven on a global basis and therefore something that enables some creative material to be used, tried out, borrowed, extended without having to go through a commercial transaction is very worthwhile.

One of the outcomes of the Creative Commons idea is to facilitate and encourage the mixing of things. Within music, the notion of mixing has always been there. Seventeenth-century composers such as Monteverdi mixed songs of their time to create something new and vibrant. Japanese traditional music was vitalised by mixing different sources of musical material. Classic, pop, jazz — virtually all genres — have been affected by this process. Music is about mixing things. Music, until the last hundred years or so, was also social activity, a shared activity, an instant ‘live’ activity. Not recorded, not frozen, not made from pre-recorded material.

Music was made by people, together. Now, of course, the twin processes of technological change and commercialisation mean most music is recorded and indeed made from the endless mixing of pre-recorded material. This evolution demands constant exploration of the mixing idea. And what is more beautiful than mixing lots of peoples’ ideas? In a way it has been ever thus but the consciousness, the tracing of the sources of the mixture is now more explicit. And for a developing musician, it seems to me that to be able to mix things freely, from hopefully the very best of your fellow artists, to extend the range of the possibilities, is a powerful part of learning and finding your own personal expression. To be able to do that in the freest most comfortable way is very attractive.

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