Law in Contemporary Society

A Renaissance: Enabling the Meta-Culture

-- By JulianAzran - 21 June 2013

Prior to the invention of the printing press, the Catholic Church exerted de facto control over the spread of culture and ideas in Europe. The sheer speed and ease of the printing press challenged the Church’s influence and paved the way for the dissemination of individual thought and unsanctioned ideas.

Replace the printing press with the personal computer, and the Catholic Church with the Viacoms and media conglomerates of the world; we are now at a comparable crossroads over the control of ideas and expression.

Read-Only to Read/Write

Lawrence Lessig has said that we are now becoming a read/write culture after having been read-only for over a century. Rather than just passively listening to music, watching movies and reading books, people are now re-contextualizing these media in ways that give rise to meta-cultures. These meta-cultures use pre-existing cultural artifacts as a shared language to connect with others. The 50 Shades of Grey book series was developed from a Twilight fan-fiction website, where users post their own stories using the characters and themes from Twilight. Hip-Hop music was created by DJs who used snippets of other peoples’ songs to create new ones. These are two ways in which people are speaking with the transmissible entities that they have gleaned from pre-existing cultural artifacts.

Of course, this is not an unprecedented phenomenon. Remixes have existed in different forms of folklore for centuries, and have long been an integral part of how people have communicated with one another. The difference today is that inexpensive digital technology has removed the barriers that prevented people from directly engaging with the preexisting cultural artifacts that they were listening to, reading and watching. Anyone could have sung their favorite Beatles song in the 1960s, but until the early 2000s, doing this would have been impossible for the average consumer.

Creative Control

One of the biggest threats to meta-culture is copyright law, which media-conglomerates have used to sue people who remix their works. Advocates of copyright argue that they protect authors and in turn incentivize artists to create and disseminate their works for the public. The reality is that many musicians and authors are treated as employees, not artists. Under work-for-hire contracts, the underlying copyright of a work is transferred to the employer (record company/label/movie studio). This has put powerful corporations, not artists or the public, in control of culture. With a pure incentive to maximize profits, these corporations have engaged in scorched-earth campaigns, suing anybody that commits even the least harmful infringement. Such rent-seeking behavior has awarded merit with financial compensation and interfered with innovation.


How can we change copyright to allow remix culture to thrive? The Creative Commons is a major improvement, by providing people with an array of licensing options for their works. But it does not prevent media conglomerates from extorting their copyrights because they will simply choose to license on terms that are most favorable to their bottom lines.

In order for remix culture to reach its full potential, giving remix rights to the public must be mandatory. Up to this point, the fair use doctrine has been limited to protecting parodies and educational uses. In addition, there is much confusion as to where a certain remix stops becoming fair use and shades into the realm of unauthorized reproduction. Some of this confusion can be attributed to the nature of the test itself, which involves a four-part analysis. Instead, I suggest replacing it with a single question: is the new work productive or innovative so as to significantly contribute to social criticism or free expression?

First, protecting public criticism has been one of the chief purposes of the fair use doctrine, such as in the case of parodies. Second, the US Constitution protects freedom of speech in its First Amendment. Third, this inquiry would substantially limit the ability of media conglomerates to engage in wasteful rent-seeking behavior and, in turn, allow remix culture to flourish.

A presumption of fair use could further deter copyright holders from filing frivolous lawsuits against individuals. Copyright owners must be protected against outright piracy, but not all infringements should be treated as unlawful. There is a difference between piracy and plagiarism. Piracy is when I send a Jay-Z album to a friend, plagiarism is when I take a Jay-Z album and mash it with Beatles songs. But this distinction is not always so clear; small transformations, such as adding small bits of sound to a Jay-Z album and sending the result to my friend, shade towards piracy. However, this difficulty is alleviated by this new fair use test. By shifting the focus away from what has been done to the appropriated work and towards the benefits of the new work relative to the appropriated work, artists are protected from piracy and the public will be free to directly engage with cultural artifacts to produce meaningful expression.


Modern technology has given rise to a remix culture; the question is to what extent we will allow copyright laws to prevent this renaissance. If we change our copyright policies in this way, remix culture will prosper and people will be able to connect in new ways via their shared language of culture. Perhaps this might even allow entire cultures to communicate with each other, in unprecedented ways.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


Webs Webs

r6 - 14 Jan 2015 - 22:15:33 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM