The Saturday Paper – Artistic License

The Saturday Paper – Artistic License

Unlike countries with a fair use exemption, copyright laws in Australia require artists to secure prohibitively expensive licences for even the smallest quotation of others’ work. By Patricia Aufderheide.

Once a year, in early October, about 60 people gather at the City of Whittlesea’s Fountain View Room in the northern fringes of Melbourne to begin 10 weeks of rehearsal for a single concert.

They span generations – aged from eight to over 90 – cultures and faiths. For nine months of each year they never see each other, and then they come together to sing Christmas carols as part of a healing process that began after the 2009 Black Saturday bushfires. Filmmaker Andrew Garton has documented one year’s worth of rehearsals with the help of a grant from the council and volunteers from First Impressions Youth Theatre.

The result, a 30-minute documentary called This Choir Sings Carols, will probably never be seen.

Published in The Saturday Paper, 10 June 2017

Copyright rules crippling artists _ The Saturday Paper

A scene from Andrew Garton’s documentary film 'This Choir Sings Carols'.

A scene from Andrew Garton’s documentary film ‘This Choir Sings Carols’.

InsideAPC  Number 20 – May 2017

InsideAPC Number 20 – May 2017

Andrew Garton on Fair Use in Australia

Over recent months an intense debate has had artists, authors and filmmakers in Australia rail against recommendations made by the Productivity Commission, consisting of a Fair Use provision to be added to Australia’s Copyright Act. Andrew has been one of a few supporting such a provision and he has been a guest panellist at two recent forums on the subject in order to describe how restrictive the Australian Copyright Act can be within non-profit and educational sectors.

A film he completed in 2016 cannot be seen due to the cost of synchronisation rights that would have to be paid for the right to have it screened. “This Choir Sings Carols” tells the story of a community choir that meets once a year in a multicultural, multi-faith, intergenerational setting. The film was made with a local youth theatre group mentored by Andrew to crew the production. The end result is a series of interviews with choir members interwoven with auditions, rehearsals and a public performance. It’s a not-for-profit production commissioned by local government who in turn sponsor the choir.

Even if they could raise the AUD 10,000 to cover synchronisation rights for the music sung throughout the film, there are strict limits to the licence. “This Choir Sings Carols” would be allowed to be screened at Australian film festivals only, no theatrical nor broadcast release, only 100 DVDs could be published, and trailers would have to be negotiated independent from the feature. Another flag: it’s a three-year licence. If they wanted to have it screened at an overseas festival the synchronisation rights fees would increase 100%.

Meanwhile, if Australia had a Fair Use provision, such a film could be screened anywhere at any time. Royalties for rights holders would still be distributed were the film to be screened at festivals. The only people missing out are the publishers which benefit the most from synchronisation rights licence fees. Andrew will be speaking at Sydney’s Vivid Festival in May to further the discussion about these issues and “This Choir Sings Carols”, fast becoming his most popular and least seen film. For more information about this topic, check “The Creative Power of Copying” and the Australian Digital Alliance.

Provisional Fair Use sampler by Andrew Garton and collaborators.

Interview: NETWORKER Mag – Jan 2005

Interview: NETWORKER Mag – Jan 2005

Interview Column of Networker Magazine (No. 15) January 2005

Name: Andrew Garton
Organization: c2o / Toy Satellite
Title: Director

Question 1) Could you explain the introduction of c2o and Toy Satellite? – History, activities, role etc.

1989 saw the founding of Pegasus Networks, a computer network with a social conscience that would reach anyone, anywhere in Australia for the cost of a local call. Pegasus became the first, and perhaps most underrated Internet Service Provider (ISP) in the country. We must have introduced thousands of people to their first modem and many to their first computer. It was via Pegasus that I began conceiving of and producing online artworks, performances and compositions, works that would combine my political and cultural interests with online technologies and the arts.

When Pegasus Networks reached its use-by-date in 1997, Ltd was established. Pegasus was a founding member of the Association for Progressive Communications (APC). maintained the APC membership in Australia.’s first initiative was Community Communications Online (c2o) which took up where Pegasus left off, to focus on content management services and web hosting for non-government organisations.

Prior to this, I had already moved to Melbourne and was working as editor of Pegasus Netnews and was setting up Toy Satellite, in 1995, with my partner, Justina Curtis. Toy Satellite was to give me the structure I needed to realise so many of my projects as well as establish a multimedia design and production studio for online works, performances and installations.

Question 2) What’s the meaning of “Toy Satellite” and “Computer-mediated arts for public space”?

Toy reflects the playful, intuitive side of the organisation and its founders. Satellite refers to communications, self-sustaining, autonomous. We have always been concerned about the notion of public space, what it is, how it exists, whether it exists at all, and if it does, how can it be protected from commercial influences, and even it has been claimed, how can it be transformed or utilised for the benefit of all people?

The internet is such as space, much like an arcade or piazza, an environment populated by culture and commerce, by passers-by and beggars, by minstrels and junkies. Our work sees the role of computers as utilitarian, invisible to the process of making art,whether by ourselves or those that chose to interact with the works we create. For instance, I was recently asked about a performance we produced for the Liquid Architecture Festival, Brisbane, 25 July 2004. I performed with my group, Terminal Quartet. The question was asked of me, do you use real instruments? I answered, Of course! Four laptops…

In fact, if we are to talk of computers as musical instruments we would focus more on software as an instrument, the computer merely being the means to enable access to an extraordinary palate of possibilities.

Question 3) How many people, organizations or entities do use (join or subscribe into) c2o and Toy Satellite?

At present with have 16 hosted organisations on c2o. This does not reflect the level of activity as we provide customised and personalised IT and hosting services to these specific organisations. Toy Satellite works on a project by project basis, both self-initiated and commissioned works. Our works have been supported by the Australian Centre for the Moving Image, Australia Council for the Arts, Australian Broadcasting Corporation, Australian Film Commission, RMIT University, Ars Electronica (Austria), ORF/KunstRadio (Austria), Taipie International Arts Festival, Multimedia Arts Asia-Pacific, Melbourne International Film Festival, Melbourne Fringe Fashion and the Melbourne Fringe Festival.

Question 4) What are the main (hot) issues of c2o and Toy Satellite these days?

C2o is working with the APC on it’s ICT Rights project. It has recently established an ICT Rights portal for civil society in Australia. We are working with community broadcasters, some unions and independent media producers to stimulate broad civil society understanding of the role of ICTs and the need for greater awareness to the policies that can affect how and what we may communicated through them.

Toy Satellite is specifically engaged in projects that seek to encourage various communities to express themselves in a way that creates a broader sense of national identity, that which constitutes the multiplicity of cultures that have made Australia their home. Through these projects, both as installations and performance works, we attempt to map the socio-political influences on language, cultural identity for examples. This is demonstrated both through the works themselves and the few surveys we conductwith audiences.

We have also been investigation the Australian Broadcast Authorities regulations on the use of wireless networking protocol, 802.11. Through this project, we have been looking at the distribution of cultural content that does not necessitate the excessive licensing costs were we to resell access to a wireless network, as well as the licensing fees charged by royalty collection agencies covering the public performance of original works of music. Both regimes discourage independent publishing and distribution of works that are not necessarily accessible, let alone picked up by mainstream industries.

Question 5) In digital era, cyberspace activities are very important. Could you explain online activities and main role of your organizations in Australia?

At present we are assisting to define policy frameworks and models for the ongoing development of ICTs for community use in the state of Victoria, Australia.

Question 6) Maybe you and your organizations have some difficulties for your activities. Could you explain what kind of them you have?

Making a significant impact on our operations are spam and computer virus attacks. The ramifications are significant in terms of cost and time. Despite the Australian Spam Act of 2003, there has been no let up in the volume of unsolicited data consuming our bandwidth.(in Australia we are charged for inbound traffic @ AUD15cents/Mb). As long as there are weak laws in the US that do little to discourage spammers, so long as the major US based telcos and ISPs are making money from all this outbound traffic, and with no firm agreement between the Australian authorities and their equivalent in the US, our costs will increase to a point where it will no longer be sustainable. This is a daily challenge for us and one that distracts us from more important issues.

Limiting some aspects of our content delivery projects are the restrictions imposed on streaming within Australia by royalty collection agencies. Although I agree with the need for such agencies, I don’t agree with the licensing scheme imposed on internet service providers.

Streaming technologies are providing artists with innovative means for expression, exhibition and control over the distribution of their own works. Not only are we witnessing and participating in an outstanding, historical explosion of cultural diversity, we are exploring and experimenting with new forms of expression and converging technologies, extending their capabilities and finding new audiences.

However, royalty collection agencies, that have worked for the interests of artists in conventional medias, are now reaching into the vast, untapped resource of the Internet and are imposing fee structures that could be hindering rather than encouraging creative innovation and independent distribution.

The Internet is the only means by which works not compatible for any other medium may be seen and heard. For example, collaborative sound works that are created, or generated in real time across geographically dispersed locations, works that may last fromone hour to several months, have no other suitable medium to be heard or performed in. As these works constitute a public performance they will incur a fee charged to the internet service provider regardless of whether the stream is live or on-demand.

Question 7) Do you have any strategies or examples to solve the problems upper?

With regards to spam and virus attacks the strategies are technical. At this time, we do not have the time nor the resources to assist with advocacy in this area, but we do raise it in the course of our ICT Rights work.

The only way we have been able to get around the royalty issues is to provide all our online content is royalty free and released under an Open Music or Creative Commons license.

Open Music allows …artists to grant the public permission to copy, distribute, adapt, and publicly perform their works royalty-free as long as credit is given to the creator as the Original Author. The license encourages communities of participating artists to share and build upon each others works. It also enables audiences to share these and other works without fear of infringing mainstream copyright laws.

Question 8) I think the art works have some critical issues regarding Intellectual Property Rights. And do you have any critical issue in your activities regarding Intellectual property rights such as copyright?

The only issues that I deal with specifically are to do with music and the use of the Internet as a means to not only distribute new works, but as a tool to generate new works with, either as a platform for sound devices, or a medium through which creativeideas can be exchanged.

Traditional copyright laws hinder the evolution of creative ideas and hence culture itself. Although not necessarily an answer for all such problems, we do advocate for the use of Creative Commons licensing. It gets the business side of arts practice out of the way quickly and elegantly so that the true work of making art can take place.

We would rather royalty collection agencies encourage and stimulate the creation and distribution of cultural content rather than hindering it well before it has the opportunity to flourish.

Question 9) Korean government has tried to revise the copyright law which would strengthen the right-holders authority. Many civil society organizations have been opposed to this government position. What is the general situation and are there any specificissues regarding IPR in Australia?

Australia, in general, has had fairly liberal IPR policies, or rather, debate on IPR issues has been productive in some areas and counter-productive in others. For instance, a national identity card was successfully advocated against quite some years ago, but the introduction of mandatory taxation identification numbers, a claytons national identity system, was implemented alongside the introduction of a goods and services tax (GST). In addition, everyone who earns an income through independent means, above AUD$40,000.00 p/year, must have an Australian Business Number (ABN). However, almost all workplaces, whether they be a gallery or club, will request an ABN and many will not employ/contract you if you don’t. The ABN and GST, despite pushing black market economies further underground, has become an information gathering exercise that enables the tax authorities, and the agencies they have agreements with, to track your work practice and every single transaction from the day you commence your life to the day you die. The national identity card may have been thwarted, but these less obvious means of human identification and data tracking are a lot less transparent than what the card may well have introduced.

The Australia – United States Free Trade Agreement has seen Electronic Frontiers Australia (EFA) advocate for immediate implementation of long-standing copyright reform. The Agreement will see a number of significant changes to Australian copyright laws which are already draconian by their very nature. Under Australian law it is a breach of copyright to record a CD that you have purchased onto a 3rd party device such as an iPod. It is also a breach of copyright to record a soccer match off TV to watch backat a more suitable time. The amendments demanded by the US will see criminal prosecutions brought to such breaches.

The national government is currently looking at passing Bills that would see the search and seizure of information on computer without the need for a search warrant. The EFA are working on this issue as well, their submission to the Senate Standing Committee for the Scrutiny of Bills re: Inquiry into Entry, Search and Seizure Provisions in Commonwealth Legislation has been accepted.

There are many other important issues, such as the need for protection of client information available from telecommunications companies, some of whom have been known to sell their client databases. Telco’s should be prohibited from disclosing such information, specifically to data-matching and marketing companies.

Question 10) In Korea, civil society organizations have tried to make some alternative system related to IPR, especially one group called “IPLeft” has developed Korean Open Access License. Is there any good case or examples like this in Australia?

In the past the Australian Copyright Council and the Arts Law Centre have been very helpful, offering excellent support and information, but they working within the limitations of Australian Copyright Law. The only major change we will see in Australia will be the release of a Creative Commons License within our jurisdiction.

Question 11) I read in your website that you are interested in the communication of socially relevant and culturally significant narratives etc etc… I think the meaning of “communication” is very important. Could you explain in detail more about it?

When I working with Pegasus Networks I was inspired by the notion that a single communications medium would strengthen social movements, providing them with the means to coordinate and build alliances that would empower disenfranchised communities, particularly those within politically volatile countries. Well, the conduit was created and still exists, but whether these groups interact with each other on a collaborative basis remains to be seen.

Prior to Pegasus I was involved in theatre, film and community radio. All forms of communication, all forms of expression. For me, there is a relationship between community and communication. Through studied, practised and considered articulation of an idea, one finds, or perhaps defines a community. It has its extremes. One can see the same formula displayed by despots as well as playwrights, by dictatorships and poets. What I look for, and what I learnt from my varied experiences in Asia, and in part from my own family, are forms of communication, distilled and rarefied where a response is evoked rather than demanded. It could come in the form of a perfectly bowed harmonic on a violin, the graceful movements of a Sinawe dancer, the collective expression ofa people who aspire to be heard and their rights recognised.

Some say the medium is the message, but when the message is a lie who do we trust? The medium or the messenger? If we can but ask the question, knowing that we can ask questions, then we are better off than most. In that sense, the art of communication is perhaps more about the question. The evoked response may well be a question itself and with each question comes a thousand more, and from them springs knowledge, perhaps wisdom…

Question 12) What is your these days work to prepare and future plan?

Much of my current work involves far greater focus on composition and performance. They include the following projects:

  • Son of Science (audio-visual) Ensemble
    Terminal Quartet
    Radio Song – Installation based on the political history of radio broadcasting
    Auslander und Staatenlose – an opera
    The Last Geisha – collaborative work with Korean recording engineer
    D3 Public Authoring Kiosk – installation based on Situationist theory

Question 13) Do you have anything to say to Korean activists?

I think Korean activists have more to say and far more to teach me than I can share from this side of the world. I have nothing but the utmost respect and admiration for the activists I have met there. If there is anything I can say, it would be to encourage them to remain strong and true, and when possible, take a little time out to teach us a favorite recipe each. A Korean activists cookbook would be a treasured cultural artifact in the Toy Satellite kitchen.

Thank you for this opportunity to share these few words with you.