Dan Hunter

MULTI-MEDIOCRITY

In the recent Creative Nation statement, the Prime Minister singled out multimedia as the Next Big Thing. Millions of dollars are being ladled out into the trough, and the hungry hordes are elbowing each other out of the way in their efforts to get a share. Now, all propeller-headed computer-geeks and all artists who can turn on a computer are busy trying to come up with proposals which will get their noses into the swill.

I must say that I'm delighted that the government is interested in fostering technological art-work (for all that it might be more about improving our balance of trade than pushing out the edge of the artistic envelope), but I am concerned about the lack of understanding of the problems multimedia creates; both on the part of the artists and the government. I think that we may turn around in two years time and find that nothing has happened because of institutional difficulties with multimedia that no individual group of artists can resolve. Or worse, we may find that we are simply propping up increasingly wealthy media organisations.

The law of multimedia

The basic legal problem lies, unsurprisingly, with copyright. (If I had two bob for every time this was said I'd be Rupert Murdoch). Copyright, for all its strengths, assumes that books are different from plays, which are different from music, which are different from films, and so on. Each type of work is defined as a separate entity, and in many cases the levels of protection and the factors necessary for protection changes. For example, literary, dramatic, artistic and musical pieces are called "works", but the newer types of expression, sound recordings and films are considered "non-works" and are differently protected.

Of course, it is the defining characteristic of multimedia that all of these types of expression are necessarily combined. This leads to inevitable confusion, in terms of levels of protection, type of protection and more importantly defining the distinguishing characteristics of each type of expression in a multimedia work; how does one distinguish between the textual and graphical features of fancy text, or between audio recordings and musical works. This confusion has yet to be addressed by the numerous governmental committees which play in this copyright and information sandbox (the Copyright Law Review Committee, the Broadband Service Expert Group, Copyright Convergence Group, etc, etc) and as far as I'm aware it is not currently under review.

If this were the only problem, then I wouldn't be particularly worried. It is true that the elements of a multimedia work all have different types of protection, and it would be a nightmare trying to separate them, but at least there is some protection available. More worrying is the potential absence of protection for the most important aspect of the multimedia work, the way it is put together. You see, in multimedia works, the elements that make it up are often not owned by the artist/producer. Often the only creative work undertaken by the artist/producer is in stitching together the disparate other artistic elements. What can the artist/producer then point to as her contribution? She may have created the intangible atmosphere of the piece, by the juxtaposition of otherwise commonplace items. Think of Cornell's eerily beautiful boxes of detritus. There is, unfortunately, nothing in the Copyright Act called "Cornell copyright".

But again, this is only a small problem which may in time be resolved. The real killer is called "licensing". The necessary corollary of having a multimedia work which comprises many other copyright snippets, is that these snippets each have copyright owners. And each one of these owners has to be tracked down, haggled with, and cajoled to strike a deal. When one considers that even the relatively simple multimedia works that we can currently produce contain thousands of copyright snippets, one gets a picture of how time-consuming and costly this phase of the process is. A number of the more obvious multimedia works, like the CD-ROM encyclopedias, have taken years and hundreds of thousands of dollars to arrange licences. And administering the payment of royalties on thousands of licences is no picnic. No wonder that we are seeing the creation of people whose entire lives will be spent arranging licenses for multimedia artists.

Even if we were prepared to accept this, more troubling is the cost and overheads it creates. Essentially, current licensing practice means that multimedia works become the province only of the Time-Warners and the News Corps, since few small artist/producers can afford the time and money it will take to undertake the licensing. Further, since much of the copyright work we will want to use in multimedia is owned by large US organisations, we will again be paying through the nose to our commercial overlords overseas.

Under these conditions, it does tend to make one wonder who will be the (unintended) beneficiaries of the largesse in the Creative Nations statement.

The solution?

I don't have an easy solution to this dilemma. Obviously, we need someone to examine what type of copyright we really want for multimedia. There are so many groups looking at copyright that one of them is bound to come up with something. My only suggestion would be that we should think seriously about creating a statutory collection agency, or a mandatory licence for copyright works to be used in multimedia. This would mean that artists would be forced to allow their work to be used by multimedia artists, and that the administration of licences and royalties would be handled by a central body.

Both of these suggestions fly in the face of current artistic philosophy, which suggests that an artist should have complete control over her work. (Another feature of this thinking, moral rights in copyright, is the subject of my next column) Nonetheless I think that in multimedia perhaps we should seek to create a regime where small artist/producers can actually do something, without having to deal with agents, administrators, licensors or, worse, lawyers.

I don't hold out any real hope of this outcome. Each group of artists will grimly hold onto their preserve, as though their lives (and livelihoods) depended on it. In ten years, these same artists will realise that digitised and multimedia versions of their art are the only way they will sell. By then, of course, the US will own that global/local market, and these artists will ask why we didn't see the writing on the wall. And you will say that you did.

Next issue: "Moral rights, moral wrongs"

Dan Hunter is a lawyer and computer scientist who lectures at the Law School, University of Melbourne. He can be contacted on the Internet at dah@rumpole.law.unimelb.edu.au