Plunderpalooza Debate

Thursday, September 25, 1988?

INTER/ACCESS

401 Richmond St. W. Ste. 444, 599-7206

Taped by John Magyar

Transcribed by 235

OG = Oliver Girling, debate moderator

JO = John Oswald, Plunderphonics

DB = David Basskin, President of CMRRA

MH = Mark Hosler, Negativland

KC = Kathleen Maitland Carter, MuchMusic VJ

FTA = From The Audience 

My name is Oliver Girling. I'm from the visual arts community, which may not seem directly involved with some of the things we're going to be talking about here today. But I'm very closely involved with the question that we're dealing with, which is intellectual property. For the debate, I'm neutral, because I'm the moderator, but I can tell you the first exhibition I ever had, with a nod to Abbie Hoffman, was called "Steal this Exhibition." I come out of the tradition of using pictures from the media, from the newspapers, so it's very close to the practices that I'm involved with. Especially now with the internet, and issues of photocopying, stuff like that, copyright is a very crucial issue. I can also say that I work with Canadian Artists Representation of Ontario and the Copyright Collective.

So, without any further ado, I'm going to introduce the speakers. The first speaker is Mark Hosler from Negativland. I'm sure every one is aware of the lawsuit Negativland had against them by U2's record company, so I'll let Mark speak.

Mark Hosler: But, my mouth is full! I'm not sure . . . what am I speaking about?

OG: Your point of view, where you're coming from.

From the Audience: Could everybody speak up, so we can appropriate them, later?

OG: Okay, umm... 

MH: Okay, I was hoping to get to talk at the end, after David Basskin, but... 

OG: The trouble is, nobody wants to go first. 

John Oswald: I'll go first. My name is John Oswald. I'm independent. I'm having the same kind of difficulty Mark and Oliver were having, of introducing this topic, because I'm not sure what the topic is. The event is called, "Plunderpalooza," which I think in part is related to something I've been involved with, called "Plunderphonics." Plunderphonics is simply, taking very familiar existing music and transforming it into some other kind of music; in a way that you still recognize that source, once the transformation has been made. Therefore, I usually take something that is very well-known, and something that almost everybody can recognize, whether they want to recognize it or not, and do something that is usually something that the person involved in making that original piece of music didn't do, or wouldn't likely do. And, therefore I feel justified in doing it because, as I've heard Mark say a couple of times, "It's interesting." This sets up a situation that's somewhat contentious with the way some people value these things they generate. 

So, that's very broad, but specifically, I'm NOT one of several things: I'm not a counterfeiter, in that I don't make illicit copies of things. If I'm quoting something within the context of something else, in almost all cases I'm very blatant about saying "I'm quoting this." I'm also not a plagiarist–I don't say, "Hey, this is MY thing." I say, this is Beethoven's thing, or whatever. I'm not, and have never been a "No Copyright" person. There are various people who put "No Copyright" notices on the things they generate in multiple copies. That's always seemed quite problematic because that puts you in a position where somebody else can come along and say "I'm copyrighting this." All the sorts of things you want to prevent can then be caused by someone else. 

If Negativland, for instance, hadn't copyrighted their "U2" record, and U2, who derive their name from somewhere (could have been an American spy plane), could have said "We have the copyright for that." They managed to get the copyright, anyway. 

MH: Well, that's considered a trademark, in that particular case, though. That part of the lawsuit against us was based on trademark. 

OG: Okay, let's not get into that too soon. 

MH: Can I just add, though–it's important: There is sometimes a mixing-up of copyright law and trademark law in people's minds, and they are quite different things. So, sometimes people will speak of one when they mean the other. 

JO: U2 wasn't "U2 tm." It was just assumed... 

MH: Yeah, you could say, "We've been using this for so many years, and we can prove that it's our mark." 

JO: The same way that Bob Dylan can say "You can't use the name "Dylan" in your product, because I am Dylan," which he actually derived from Dylan Thomas. 

MH: Exactly! 

OG: Let's go on to everybody's introductions. Kathleen Maitland Carter is a VJ and film maker, all around producer of visual and audio art. 

Kathleen Carter: The context I've worked in has been live events, raves, clubs, festivals, and also involves sampling, plundering from various sources: Commercial broadcast television, nature programs, whatever–everything was up for grabs, I guess, to a large degree, recognizing the notion of "fair use" versus "fair dealing." Again, it's not about pirating whole pieces, claiming them as your own, or, as John said, counterfeiting. It's about recontextualizing and giving new meaning to those things, by putting them into another context, by displacing them. I think it's very interesting because, as the whole culture of sampling has developed, and continues to develop, it has been said "Collage is the art form of the 20th century." And I think, more so with the advent of new technology, of digital samplers in music culture. There's an acknowledgment that this is the artistic practice of the late 20th century. I think, to a large degree, the law is out of date and out of touch with that; That has been a large part of artistic practice of this century. 

OG: Okay, I'd like to introduce David Basskin, who's from the Canadian Musical Reproduction Rights Agency. 

David Basskin: The great thing about democracy, a nineteenth century French thinker once said, is that a rich man as well as a poor man can sleep under a bridge by the Seine. And the great thing about copyright is that it protects all works, whether they're by some vast faceless corporation, or by a struggling artist. My name is David Basskin. I'm the president of the Canadian Musical Reproduction Rights Agency, and I'm executive director of the Canadian Music Publishers Association. I'm a lawyer, I'm a musician, I'm a web fanatic, and I've been involved in "show bidness" one way or another for most of my life, a little bit of everything. These days, my job is to represent the interests of song writers, the creators of music, and the people who work with them, sometimes called music publishers. Many musicians are music publishers, and so on. I think it’s vital to understand from the start, that this subject, which is endlessly fascinating, is a strange blend of art, and law, and policy, and politics, and economics, to a degree where the individual strands can almost not be separated from one another. But one thing that is important, is that when we start talking about copyright law, we’re talking about something that is highly specific to each nation. Canada’s copyright law is very different, in many respects, from that of the United States. And, although there are international treaties and conventions that try to level the playing field, and make the rules the same in most territories, there are vast and significant differences between nations’ copyright laws, that arise not just from some legislative curiosity, or by just having gone down a different path, the way sometimes things do. But arising very much from the nation’s respective personalities, cultures and histories. We’ll talk about that later, but that’s best seen in the fundamental difference between the United States Copyright Act provision regarding “fair use,” and the Canadian Copyright Acts provisions regarding “fair dealing.” They are very different creatures. Fair use is American. Fair dealing is Canadian, British, and elsewhere in the commonwealth. We’ll get into the details of that, later. 

I am not some boogie-man here to say that creativity must be stifled, or that the art of the collage is implicitly illegitimate. There's been plenty of collage that’s been very interesting, and some of the most interesting works have been done in the form of collage, and some of the most boring. There’s nothing inherently beneficial about doing work as a collage. Every thing depends on the work itself. There’s millions and millions of copyrighted songs, most of which will never be heard because they’re worthless. It is a matter of fact that most works created get no audience, because they don’t come up to the standard. At any time in our cultural history, there’s always been a demand for, to use a crass term, “product.” Or, in other words, people are looking for something to fill up their time with. Now, I happen to know the music of 18th and 19th century Europe pretty well, and I can tell you that in Vienna around the time of 1800 and 1830, there were literally dozens, of not hundreds of composers working. And, if you’re not a scholar of that period, you probably couldn’t name more than perhaps Beethoven or Schubert. But, if you study the era, you see there are all sorts of people. Why don’t we hear their music any more? It really wasn’t very good. Over the course of time, the good stuff survives. And there’s always been a great deal more art, more music, more architecture, more drama, more literature, more poetry than we can deal with, that we can want to, or had the opportunity to watch thereof. Or to listen to. (sic) 

Music is the most important thing in the world, after food, family, and shelter. If I didn’t believe that, I wouldn’t be in this business. But, I also believe that the most important thing in the world of music is the composer. The composer, the author, the lyricist, the person who creates the music. The motto of our organization is "It all starts with a song." And it really does. At any given moment I could play 2 or 3 notes from certain tunes, and the entire tune would roll back into your head. You couldn't stop it. Songs are the original viruses. They get into your head and they stay there. We've all had the experience of saying, " I've got that tune in my head, and I can't get rid of it." Songs, to me, are probably the most mysterious and magical forms of intellectual creation. They can take a moment or two to write, or they can take years to write. Beethoven carried around ideas in his sketchbook for 30, 35, 40 years, before finding a place for them. Mozart sat down, and it rolled out of his pen like water out of a tap. Irving Berlin wrote a song in an evening that's lasted forever. Other writers sweat and sweat and sweat. There's no guarantee, whether you're talking about songs or literature or poetry, or any other art form, whether doing it quickly or slowly is going to result in the work. 

But, there's no question that, without the creators, we have no works. Without the divine spark, if you will, without the initial creativity of the author, there are no works, and that's why we have copyright. The fundamental reason for copyright is to protect the rights of the author; the rights to control the use of his work, the rights to his own reputation, the right to protect the integrity of his work. There's an awful lot of people out there who, over the years, have felt that the easiest thing in the world to do is to take the work, and ignore the author. And, the music industry has a long and exceptionally unpleasant history of ripping people off. I refer largely to record companies, but everybody's had dirty hands at one point or another. Nevertheless, people make music because they can't stop. They have to make music. Any form of musical expression is innately worthy–it may not last long, it may not be good, but it's innately worthy. 

My job is very simple. I don't view the use of other peoples music in collage or Plunderphonics, or in any other form as inherently bad. My job is to make people understand, to help people understand that to respect the right of the creator is the first duty on any one who takes part in the performing arts or in creativity of any sort. Because every creator I have ever known wants his work respected. Many creators will allow their works, or are glad to have their works sampled, adapted, or put into collage in other forms. It's always up to the person who owns the work, who created the work, because without them there would be nothing for us to enjoy. And, we'll hear, I'm sure a lot of reflects of leftism, a lot of "evils of the corporation," a lot of "triumphs of the struggling people over the running dog lackey of imperialist corporations," and I love those 60's hits, too–I grew up there! But, none of us have clean hands. We're all dirty. The technology in that box was designed by companies for the military-industrial complex. You can't escape it. This thing was printed using some form of laser printer. The laser printer was invented by Xerox, that got most of its money to develop it from the military-industrial complex. But, we can't all work by wax tallow candles and all of us want to enjoy the benefits of technology. One of the benefits of technology is that it gives us the opportunity to face a unique moral dilemma: to respect the rights of the creator, or not to respect the rights of the creator. That's what it comes down to. 

OG: Could I ask one question? Is your position purely to do with technology, or is it to do with the intellectual property itself? 

DB: Well, I'm not particularly interested in technology, except that it's an interesting subject. I'm interested in intellectual property in the form of patents, trademarks, and copyrights, but principally copyrights, and principally copyrights in music. What my organization does, is we act for the people who own and administer those copyrights, and we collect money from record companies, largely, and film and television producers, for the use of those songs, in the form of tapes, CD's, films, television programs, and so on. 

OG: Okay, last speaker. 

MH: My name is Mark Hosler, and I'm part of a group called Negativland. I don't want to go on and on about all the stuff we've been involved with, but we have been making original noises and sounds, and combining them with stuff we have taken from television, talk radio, top forty, records we find, our answering machines, and mixing it together with other stuff for about 17 years now. –Always never being noticed by any one who's part of the music industry, until in 1991, we did the "U2" single. That experience led us to a very intense reevaluation of what we did, who we were, why we were doing it, and could we "walk our talk," and what the hell was our talk? We ended up deciding that we really had a good point to make, and, at that time we were not hearing anybody advocating from the point of view of the creator. It's funny, because what I'm saying is exactly what he's saying (Basskin). But, from the point of view of the people who are creating this kind of work, all we were hearing were people who represented the music industry, the lawyers, the CEO's, the publishers, the managers, the software people, and we weren't hearing anything from the creative net. It's now 6 years later, and there's a lot more voices out there, which is really cool, it's a great thing. And now we're one of many different voices. 

I'm disappointed to hear Mr. Basskin invoke '60's liberalism in a way that sounds like he's just ready to dismiss anything that any of us have to say as if we're a bunch of lefty, intellectual– 

DB: Don't put words in my mouth, and I won't put them in yours. I haven't dismissed anything. 

MH: I'm just saying that's what it sounded like to me. I understand there are differences between our two countries' copyright laws. In the United States, copyright is a limited right. There is the word "limited" in there, and I think it's a real important word to remember, it's a word that I see as overlooked. I absolutely believe that people should be able to profit from their creative work. I completely agree with that. I also completely feel that it's a limited right. If you want complete, total control over your work, if you don't want anything to happen to it that you can't have a say so in and earn a profit from, then, for god's sake, keep it in your bedroom, and play it for your friends. Don't let it out. But, the feeling is, we live in this world where we don't always have a choice whether we're going to hear top-forty music, or read a billboard, or look at an ad. It's out there all the time coming in at us, It's in the public space. I don't have a choice about it, I really don't. If you see a billboard, you're going to read it–can't help it, you're going to take it in. I'm going to hear U2 songs whether I want to or not, unless I go live in a mud hut, somewhere.  

So, my feeling is, you have a right to profit from what you do, but it's a limited right. If you're going to engage in public discourse, if you're going to be out there shoving your stuff into people's heads whether they like it or not–and we are too–we don't get played on commercial FM radio, but we get played on college radio. People are going to hear us at times, whether they like it or not, and so, to me, the argument is an incredibly simple one. It's just common sense that you just can't control every possible conceivable use of the work. You have to relinquish some of those rights. You should be able to profit from the use of your whole entire work, absolutely. We're not talking about counterfeiting, bootlegging and piracy. But if it's reused, anything less than the whole, I don't have any kind of issue with that. It's just common sense. I also, from a cultural-political standpoint, we live in a world where there's so much culture; it's so top-down, it's so directed down to us. And we're just supposed to consume it, and that idea just enrages me; it repulses me! You know, I want to be able to respond to that–I don't want to just buy and consume the mass culture out there. It's inevitable that there're going to be some people in the arts who are going to respond to it. It happens that in Negativland I think our work is very goofball and kooky, and far funnier sounding than I sound right now, but the impulse is there.  

There's a top forty hit now, on the radio, Janet Jackson using a Joni Mitchell song. Now, I'm sure Joni Mitchell is getting a lot of money for the use of that sample, but Janet Jackson and her producers aren't trying to make any kind of post-modern comment or anything, they just thought it was a cool idea for how to do a song. And that, to me just shows the degree to which, like Kathleen was saying, this whole idea of collage is becoming more and more a response to the world we're living in. It's inevitable, because we're so bombarded with things, that as artists, anyone who's creative (and this is another common-sense argument that I'd like to make to Mr. Basskin): Artists respond to their environment. Some people, if you want to write a song or make a painting, you may write a song about the birds and bees, or make a painting of a flower, or whatever, and that's fine. It happens, though, that we live in an environment that's mostly brick and steel and concrete, and glass, and it's constant media overload, and it's common sense that people are going to respond to it. I think, Negativland, we're a group of people who, maybe a little earlier than some other folks, but I just see this as a growing, growing, growing thing. I can't imagine there'd be a three-day-long event like this 6 years ago. 

OG: The funny thing is, I'm not hearing any contradiction, here... 

JO: I finally found something I can disagree with, and it's Mark's proposition that there would be a workable situation where if somebody took less than 100% of a work, and reproduced that in some way, where there's potentially 99% of this given work... 

MH: Go ahead, but I use one of your works as an example, when I make that argument. 

JO: Okay, I play the tambourine on top of that, and then say, all right I have this Michael Jackson record with me on tambourine. They don't even have to say– 

MH: But, that to me would just be– 

JO: –and then we have a court case, where, (audience chuckles) no, really: It's a situation where people obviously are going to take advantage of drawing those lines in a different way than they're drawn now. 

MH: That's true, but I think that's just kind of–if someone wants to push that to the limit, fine, they can try doing that. But, I think it's basically pretty easy to judge when the sum is greater than its parts. That's a pretty easy thing to determine, for the most part. John made a piece I have cited often, as an example of this, when people ask "How far would you go, if copyright law could be reformed?" John made a piece called "The great pretender, which takes a Dolly Parton song. The entire piece is simply hearing that song at the beginning, playing so fast, you can't even tell what it is, it's just a (high pitched whirring sound), and by the end of the song, the song is so slow, it finally grinds down to a halt. In the course of the piece, you hear Dolly Parton finally becoming recognizable. It sounds like a little chipmunk, then a mouse, then a little girl, and then you hear her gender seems to change, over the course of the piece. And that's the entire piece. Right? 

JO: Yes. 

MH: Now, that is probably way too extreme for many people out there to agree with. But I think that that is a creative reuse of someone's work. It takes nothing away from Dolly Parton, it's not an idea they would have had, it would never be confused with the original, and again, common sense tells you it's a "no brainer." I don't know what else there is to argue about. But, what I've run across is that the people who represent the interests of the industry–and I hope Mr. Basskin is sincere–but a lot of what I hear from people in the music industry and publishing on these issues is that they talk about protecting the "little guy," and I have to say that's bullshit. The number of times you're protecting the little guy is very infrequent. Yes, it's true, but for the most part it's protecting the interests of all the people who own the rights to this stuff and a lot of other "big guys," so I find that to be kind of a false argument. 

DB: Well, if I made the unstated presumption that the people who make more money off their art are less worthy of protection than those who make no money from their art. The reason why you rarely see lawsuits to protect unknown songs is because the typical cost of a lawsuit could be anywhere, win or lose, from $150,000 well into seven figures; whether you're talking about Canada, the United States, or any other territory. We may think there is common sense involved in the idea that you should be able to appropriate the works of someone else for your own use, your own collage, your own exploitation, without the consent of that person. It's not common sense at all. It's a slippery slope. Is 99% of the work okay to take? Well, maybe that's too much. Is it 70%? Is it 50? Is it 33? Where is our calculator we use to take the percentage. 

MH: But, that's what needs to be discussed; and on your end I hear you saying "No. Absolutely not. There's no–" 

DB: I didn't say–first of all, I thought I was clear enough to start with, I have nothing against collage, I have nothing against sampling, I have nothing against integration. There's an awful lot of music in the public domain which no one will trouble you about. As for music that belongs to somebody, the basic rule is, and I think it's equally common sense, that the person who is the owner of that work, the administrator of that work and the performer or author who that person represents, if they're not one in the same, has a right to have their rights as a creator respected. It comes down to that–if an artist, such as the Grateful Dead, don't mind people showing up at their concerts with tape recorders, that's great. It was their decision. But, to think that because you categorize yourself as an artist engaging in a uniquely valuable form of creation that that puts you into a higher category, is intellectual arrogance. You may produce interesting artworks. You may create wonderful artworks, but that's not the point. It's no more the point, than if I went and broke into a store selling art supplies, and said "The point of this painting is, I'm going to paint the picture that says 'painted with goods stolen from Curry's Art Supplies,' and it's a comment on the rapacious bastards who make us pay so much for paint." It would be an interesting point. It might even be a good painting. But, you'd have to explain that to the police. 

Now, as for artists and money, most of the song writers and musicians I've met have a dedicated commitment to eating on a regular basis, and as a former working musician, I know a little about that. But, to come back to the issue of the artist who makes it big, there's an implicit assumption, and we hear this all the time from members of Parliament, from educators, from all the many many people who are constantly pushing the government to expand the number of exemptions, and the extent of those exemptions. Michael Jackson doesn't need any more money. Barbara Streisand doesn't need any more money. Fill in the name of whatever rich artist you want to think of. And, to say that, "Well, we know that the artists don't mind, but it's those rotten bastard record companies, music publishers, corporations, and so on. You'd have to look pretty hard and pretty far to find a situation where a song writer or performer was forced at gun-point to sign an agreement with a corporation. Usually, the corporations end up handing out significant amounts of money as advances, and in most cases, the artists don't make them back. Now, don't ask me to defend the accounting practices of record companies–I'm the last person on Earth to do that. There's just as many rotten bastards in the accounting departments of record companies and music publishers, as anywhere else. But, the bottom line is, if it were such a bad thing, there wouldn't be an infinite number of performers and authors who are busting their kiesters to get themselves a record deal or a publishing deal. 

The reason is, because at this point still, and probably for a little while to come, those companies largely control access to the market. Now, a few years ago, this document here would have required 5 or 6 hundred dollars worth of typesetting. Today, it was off of somebody's word-processor, and what looks like a laser printer or maybe a Kinko's Copies offset, or something like that. Last time I looked, major corporations weren't stopping people from starting websites. And there are millions of websites, and there will be millions more. Major corporations aren't stopping anyone from making their own cassettes and CDs and distributing them. And as a matter of fact, the distribution system that prevails in the music industry today, of moving cardboard and plastic into stores will, in one way or another, erode in the next 10 to 15 years, to the point where, assuming we get sufficient bandwidths going into people's homes, we'll start to see very interesting alternatives to plastic and cardboard. It's a democratization of the media I've been talking about for a decade of public appearances. And, I think it's the most interesting thing that's happened since the invention of the typewriter, as a means of putting communicative technology in people's hands. If you have a song to sing, if you have a story to tell, and if at this point in the corporate structure of the entertainment industry you can't get to the audience, those barriers are falling, and they're falling rapidly. The over all price of entry into all these industries is plummeting, and that's meant dozens of people like you are able to create works. But it doesn't mean that those works shouldn't be protected by copyright. 

JO: The concept of copyright itself entails that sort of arrogance that you mention, that every creator has. As soon as I do something in this artistic realm, I automatically have a copyright on that thing. I don't even have to write to my MPNC, and I have copyright. 

DB: You never did, in this country. 

JO: You have that copyright, until it is possibly disputed by someone else. I think, some of the things we end up looking at, on this table are those odd kinds of cases where that implicit idea that we are basically creative isn't as irrefutable as it might seem; that perhaps there is this well stream of other stuff that's behind every single thing that we do. All of these composers I think we're referring to are trying to deal with the same 12 notes. Northrop Frye said about literature, that all poems that are written are based on poems already written. All novels are based on novels already written. There is something that anyone who does this kind of stuff realizes, that they're not just in this vacuum, that the stuff they're creating is coming from all the stuff that's around. And the modern world is very much the scenario that Mark paints, where you're walking down the street and getting bombarded with stuff, and those are big influences. There's a tendency to not admit the extent that you've been influenced. 

I find it quite entertaining, every once in a while, dipping into interviews with people anywhere in the music world, classical music, pop music, where reviewers, who have this tendency to describe music by comparison, since their audiences don't usually have a musical vocabulary, in order to have a conversation about the technical matters that create music. You say, well, this kind of sounds like Queen on acid, or something like that. So, when the person who sounds like Queen on acid is being interviewed, the interviewer might say, you know, "You sound a lot like Queen on acid," and the reply is, "Well, first of all, we never do acid, and second of all, we've never listened to Queen." The most recent example being Mick Jagger having never listened to K.D. Laing singing "Constant Craving." It would be fairly impossible to pin him down and say, "I was sitting beside you at the Grammy's when K.D. was up there on stage, but you were asleep, so it's cool." Situations like that, ridiculous kind of things that are kind of entertaining. I think Negativland, especially, are the sort of people who are dealing with that, in the same way that Jay Leno gets up there and makes jokes about politicians. Politicians, at least in the United States, are in the public domain. 

DB: No. No, it's not "public domain." Let's get the vocabulary straight. Politicians are "public figures," and unable to sue for libel, in the United States. "Public domain" refers to a work that has gone out of copyright. Don't mix up the two. And in Canada, a politician could probably sue for libel. The term may be used in an inaccurate sense, but the reason Jay Leno can make jokes about public figures, the reason why it is almost impossible to say anything about an American public figure that can could lead to a libel suit, is because the U.S. Supreme Court decided in 1964, in a case called "New York Times vs Sullivan," that public figures give up their right to sue for libel, by virtue of being public figures. And, it's a radically different approach to privacy and reputation than prevails in Canada, where we had the situation many years ago, where a Cabinet minister in British Columbia didn't like an editorial cartoon that depicted him as cruel enough to pull the wings off a fly, sued for libel, and to everybody's astonishment, won a rather large amount. In the states, the case would never even have gotten started. In Britain, libel laws are even tougher. So, that's libel. That has nothing to do with whether Jay Leno can criticize somebody. And, for that matter, Jay Leno can get on television and sing any song he wants. Why? Because the public performing rights of that song have already been paid for by the broadcaster.  

There's different layers of rights, and it's a technical subject. But, I come back to the point, where, there's a belief that because we are exposed to media, we are somehow entitled to appropriate that media in manners that violate the law, and that are somehow legitimate. I haven't heard a U2 song in more than a decade, and I listen to music day in, day out, from morning 'til night. I just don't listen to the radio–I listen to the music that I want. I've got Blues Traveller in here (great band), and I have John Coltraine on a tape in the car. Okay, I listen to what I want, and I presume most of you–when was the last time any of you happened to hear some Mantovanni. It's out there, but you don't listen to it. Don't like the billboards? This is life. 

FTA: Is that pre-recorded Blues Traveller? 

DB: No, it's copied. I own the original disk, and I'm in favor of what was passed in bill C-32, a levy on blank recording media. 

OG: I'd like to bring the discussion back to what you were saying, that people are influenced, but don't acknowledge their influence. It reminds me of a Picasso quote, "I don't borrow, I steal." 

JO: Which Stravinsky then stole. But, Picasso's quote is based on something Goethe said. 

DB: Well, there you go, whoever said it first, it makes–Nobody denies that artists influence each other, that if they do– 

JO: Some artists– 

DB:–if they do, they're too arrogant or childish–Well guess what? Performing artists have personal limitations, you know. 

MH: If you haven't noticed, lately, there's a few more billboards around than there were 20 years ago. 

DB: And, what's your point? 

MH: The point is that the world is changing all the time. We're not living in this static place where everything is– 

DB: When DID we live in a static place? 

MH: What a lot of this is suggesting, is that things are changing, and we live in a real different kind of world. It's a very strange world we're living in: We're not out there responding to living in little villages with a local troubadour who sings a song, and by the way, all those people traveled from village to village, and they all stole each other's melodies and lyrics, all the time, too. But, it's just a really different kind of a game, and I see that you are representing a way of thinking that is not willing or able to acknowledge that the playing field is very different out there. I'm not saying these people can't profit from selling their music. It's just that–I don't claim any right to total, complete, omnipotent, Godlike control over what happens to a Negativland record. I think that's just wrong, ethically, morally, philosophically, how can I put my stuff out there and then claim it, and, again, it's because we live in a world where there are more ads all the time, there is more information, more news, and– 

OG: That's been going on for a hundred years, now, or something like that. 

KC: How would you feel if Pepsi decided to do a commercial taking a Negativland song– 

MH: That's the one thing we're against! 

(audience laughter) 

DB: How would you feel if Amnesty International decided to take a Negativland song and use it in a promo. 

MH: The point is, anything less than the whole, and I realize that can get into some sticky decisions, but I think courts, if we had more liberal laws, could make those decisions easily. 

FTA: I've got a question. David Basskin was saying that collage is indeed an appropriate medium, and has also very strongly stated that we need to respect the rights of the creator. So that would then prevent you from using any images or sounds without the agreement of the creator. As an artist, do you think that you should not have the right to make comment on things–if you're going to make an audio collage, you have to get the rights to all of the pieces of music. Is that what you're saying? 

DB: Essentially, if you use something that is copyrighted, you have to have the consent of the owner. But, before I address that, and there is no such thing as an illegitimate art medium, per se. Collage is just as legitimate as any other form. 

MH: What if you're being critical of them? How can I get permission–first of all I don't have the money, and I'm using hundreds of samples from different people on my records, and you can listen to anything we do, and there's no way you'll confuse our music with anybody else's, but, I could never afford to pay all of those people the money. What I do is unflattering to those people, and critical. We've made an entire record made up of cut-up Pepsi jingles. I mean, I'm not going to go ask them for permission to mock and ridicule their corporate marketing campaign in a work of art I'm making. So, to me, your strategy means "end of game," I can't be creative, I can't do anything. I can't operate. 

DB: I didn't say you can't be creative. I didn't say you can't say anything. I said that you can't use something that belongs to somebody else, without their consent. 

KC: I think there's a larger philosophical and political issue, which is really the control of public space. Mental space, physical space, again–and you did say that there is nothing inherently beneficial about the collage form, and there I would disagree. It has its particular, inherent qualities, it's a response to this bombardment. 

DB: There's nothing inherently beneficial, nothing inherently detrimental, it's simply another form. 

KC: I think there is an inherent contradiction in the notion of public space that is privately controlled. And I think the response of samplers, there're people who take things and then feed it back in another form. It is an inherently critical form. 

DB: If you want to give away what you own, and you have no trouble with it, that's fine. But, the idea that–I think the term "Post Modern" was used, whatever that means, I think everybody's got a different definition, but if there's a degree of criticality inherent in it, then the idea that, somehow, if you are Janet Jackson, using a Joni Mitchell sample, then there’s every need to clear it, or whatever. But somehow, if you are taking a critical stance, you are in a special category– 

MH: No. I think that Janet Jackson should not pay Joni Mitchell any money at all for taking that thing. Joni Mitchell didn’t have the idea. Janet Jackson had the idea. 

DB: Ideas aren’t protected by copyright. Expression is protected by copyright. You can not copyright “boy meets girl, boy loses girl, boy gets girl,” but you can copyright a play on that subject. 

MH: We live in a world now, where instead of just borrowing ideas, whatever you want to call it, stealing is what I say, you could make a copy of the thing, not just a simulation of the thing. You could take a chunk of the thing. 

DB: But, you said a very interesting thing. You said that Janet Jackson should have the right to use Joni Mitchell, or I suppose by extension, anybody else’s work. 

MH: She used a chunk, a little chunk, right? 

DB: The point is you said she should have the right to use Joni Mitchell’s sample without consent, without payment. 

MH: That’s correct. 

DB: Okay, now,  

MH: And, you think I’m insane. 

DB: No, I think you’re taking a very rhetorical extreme position, and I respect you for it. 

??: (what sounds like 5 people talking at once.) 

FTA: I think it’s very interesting you said you had John Coltraine in your car, because I think Jazz has been something that’s been missing, here. Also, the rigid idea of the absolute composer quite frequently flies out the window when you’re dealing with jazz; which certainly has it’s composition, but also has its improvised performance development,. And jazz, for one thing, even though–I’m a former musician, I actually disdain live music. I think anybody who’s into the righteousness of live music should find a guru and play jazz and get out of pop culture–But, then when I think of that, I go, Well, jazz is all about quotations, though. It’s all about history , and it’s all about contextualizing, and it’s also about paying people a huge compliment. 

DB: Well, if you’re talking about jazz and quotation, I absolutely agree with you. For years and years and years, jazz artists have quoted from other melodies, when they play solos. And, nobody has pursued it commercially. And frankly, the reason has been probably, that there is very little money associated with it. 

(same guy from the audience): Well, did Charlie Parker have to pay Irving Berlin, or whoever wrote “Jingle Bells,” in the middle of “White Christmas,” which is more like– 

DB: “Jingle Bells” is in the public domain since 1828. You can do anything you like with it. 

MH: So you just seem to be saying that this is more about money. 

DB: No, I’m saying this is about rights. You said copyright is a limited right. And limited does not mean some kind of abstract “There are limitations in some kind of social or cultural context.” It’s a limited right. It expires 50 years after the death of the author. That’s when the work goes into public domain. There are exemptions provided for in every nation’s copyright act, that say that this certain act that would otherwise constitute an infringement, if unpaid, is not an infringement because it’s specifically exempted. In Canada, that includes the exercise of the reproduction right in a work, for private study, for newspaper or media criticism, includes certain limited rights to photocopy and educational institutions, and there are other limitations or exemptions that have been created for the benefit of various– 

MH: What year was this law? 

DB: 1924, the Canadian Copyright Act , amended 1988, amended 1997. 

FTA: Can we get back to Kathleen, I’d like to hear more about what you had to say about public and private domain. It’s a huge issue that’s being circumvented here. 

OG: If Kathleen put out a disk of what you do as a DJ, how are you going to go about getting permission for everything you spin? 

KC: Well, back to David Basskin. He kind of pointed out himself, I mean, you said that we hardly ever hear about some unknown pursuing a court case against their songs being used, because of the legal costs involved. So in a sense that reaffirms the notion that it is just there to protect corporate interests, and not the so-called “little guy.” 

DB: Many is the little guy, who has been ripped off, but who can’t do anything about it, because the person who ripped him off is a big corporation. 

KC: So, how does the law protect–that seems like a contradiction to say that the law– 

MH: For every one case you can name, where that happened, there will be a hundred that’s the other way. 

DB: My friend, I get phone calls every day from young musicians who have signed lousy contracts. Who say, how can I get out of my contract? I don’t like this record deal. I got screwed by the record company, I got screwed by the publisher, I got screwed by the distributor, I got screwed by the record store, and I say, “You’ve got no alternative but to hire a lawyer. And they say they have no money to hire a lawyer. For everybody, if you’re in show business, whether you consider yourself a creative artist or a giant corporation. Taking action to protect your rights has to be a decision based on what you can afford to do. It has never been an easy or affordable or inexpensive thing to do. 

KC: Sorry, I didn’t really get back to the issue that you suggested. I did a little research into music copyright, recently, and of course copyright related to when things like musical notation started to be recorded, and then publishers came into existence. And, before that, we have to remember, we lived in a mostly oral culture, and that we had more control over our own public spheres or communities. And I think that there is a deeper philosophical point, which is "What about our public space?" What is the cultural hierarchy in operation? And, basically, it is about monetary interests, and who can get their message out there, who can disseminate it, as well, through distribution means, and that those are the issues of control that are in operation. So there are deeper philosophical issues that maybe transgress the law, but they're obviously still worth discussing, because people more and more are feeling disempowered. And there is this bombardment of media, and McDonald's opening up at Queen and Spadina, and there goes the neighborhood! So, I think people need to respond and talk back to the media. Artists have always taken on that role, and not to privilege the artistic practice, but it's been one avenue of talking back to that cultural hegemony. 

DB: Absolutely. No problem with that at all. Music publishing goes back approximately to the year 1500. Copyright started in 1857. May I just tell you a little story about Mozart? This is very instructive. Approximately 1785, Mozart wrote a letter to his father. He said, "I'm enclosing for four of my new symphonies. For god's sake, don't let any of the Vienna musicians see this, because they'll have it copied before the week is up, and it will be out to orchestras all over Europe." Because copyright didn't exist, composers and all creators prior to 1857, in France, where it started, and prior to most of the western world in 1897, when the Verne Convention was passed, had no ability to control the use of their works. Let me tell you a story about Charles Dickens, who owned the works he created, but couldn't stop American publishers from publishing and distributing the books without any compensation– 

MH: These are entire works, this is different than what we're talking about. 

DB: The point is– 

FTA: The point I would like to make is, what Kathleen was saying is that the artist has the right to respond to these things, and you're saying "no problem," but you're also saying "provided you have the permission of the originator." If you need the permission of the originator, what does that say for criticism, satire, pastiche. How are we supposed to get permission from somebody to criticize them? 

JO: The good side of a scenario like that is that Jay Leno wouldn't be able to tell any more of those jokes! 

MH: But, I'd like to hear your answer to that question. 

DB: Your implicit assumption is that criticism is only possible if you appropriate the original work and re-use it. 

MH: It's one method. 

DB: But you said, "How can you criticize?" 

FTA: How can I criticize using audio collage– 

MH: How can you pursue THAT form of criticism? 

FTA:–it makes perfect sense to take these images and respond to them. But, you're saying, "That's all fine," but how do you say to McDonald's, "Excuse me, I want to create a collage piece that criticizes your business practices"? They're not going to say, "okay." As an artist, who can take a stance, is what you're saying valid, or is it not valid? 

DB: But there are forces other than copyright law at work. Many of you are probably familiar with the so-called "McLibel" case in the UK. Now, McDonald's sued and won against the two relatively minor protesters, who were handing out a brochure I'm sure many of you have seen, which talks about all the evils of McDonald's. McDonald's decided to protect their reputation and sue, using Britain's really tough libel laws, and these folks defended themselves–it's all over the web, fascinating reading–They defended themselves, and you have to ask yourself, at the end of the day, who won? As a result of McDonald's pursuing the case, outside the fact that it cost them in excess of 30 million dollars Canadian to pursue this case against these two little folks. And, yes, McDonald's won a settlement they acknowledge they'll never be able to collect. As a result, tens of millions of people have read that brochure, who otherwise would never have seen or heard of it. Perhaps, tops, 300 people might have seen it. 

MH: I don't want to keep getting screwed for everything I do, though! I'm sorry, perhaps I shouldn't be making the assumption that what you're saying is that in the end, it worked to their advantage, because they got the word out. 

DB: Well, their goal was to criticize McDonald's. An awful lot more people read critical information and had a chance to have their minds change about McDonald's than would have ever been the case. 

KC: You're saying it's an effective strategy. 

DB: In their case it ended up being an effective strategy, but there you have an extreme and unusual case of two people who couldn't be crushed, and a corporation who was willing to spend a lunatic amount of money on the bad PR case of the century. This doesn't happen very often. And, I will admit in this situation– 

JO: It does happen quite often, with McDonald's, as anybody who's tried to open a store called McPaint– 

DB: But, there you're seeking to trade for commercial value on a name that's reasonably similar. This is not exactly artistic behavior– 

JO: We're talking about intellectual property here– 

DB: If it's going do devolve into the idea that protecting intellectual property that people have made an investment in is inherently wrong, then fine, we'll have a discussion on that. But, this, I thought, was about artistic use. If you're opening a store and using somebody else's trademark name– 

MH: No, let's go back to artistic use. 

JO: You might be using your father's name, something like "McKenzie"– 

FTA: Before we travel too far from the original question, we talked about public figures in the States, and that critics should have the right to criticize them because they are public figures. Doesn't the artist have just as much right to criticize images that are put in the public domain, as they do with public political figures. And, why should the permission of the originator be acquired to engage in such works? 

DB: I understand, and I have no doubt we differ on the point. Let me ask you a question: Where would you draw the line? When does a work cease to be critical and start to become commercial? 

KC: Integrity– 

DB: What if an artist wants to appropriate images to celebrate corporations? 

MH: I want to protect Surrealism! It doesn't have to mean a damn thing! We happen to be involved in stuff that's pretty obviously about something, and takes a sort of critical stance, and, in a way that's to your advantage; but in fact, if you're making stuff that's just completely about aesthetics–I think more of John's work falls into that category, his work is just about "how this sounds." 

JO: Well, I have that kind of reaction, too, because I think I'm an example of, maybe not so much of celebrating corporations, because I haven't received any music created by a corporation, as opposed to a corporation presenting someone's music that would be worth working with. But, in almost all cases, I feel like I'm in the position of a hands-off producer, who's trying to make someone sound good. So,– 

DB: But, didn't you do some work with the Grateful Dead? 

JO: Yeah, I was in exactly the same position. 

DB: They invited you, as I recall. 

JO: Under the assumption that I would probably try to make them sound good, which is what I had done with almost everyone else. Dolly Parton, included. Michael Jackson included. So I'm rarely in a position of celebrating the sort of work that they're doing in the work that I'm doing. But, there's something in my personality where I'm not so quick to react with this idea of having to knock down the people who are on top. I think it's quite often entertaining to talk about odd little incidences. Everybody knows about various Michael Jackson plagiarism. There's two plagiarism cases in one song, which I can't remember the title of, from "Dangerous." For a couple of years, "Dangerous" was banned in Italy. Do you know what happened with that one? 

DB: I'm not up on that one, sorry. 

JO: They had me over to Italy to talk about this thing, because I had some kind of image associated with Michael Jackson, supposedly, but it was really just talking about the intellectual situation of this case. Albano, a popular Italian song writer had written a song; he claimed the Michael Jackson song was the same song, and the Italian courts found that to be true. I haven't heard Albano's song, so I can't comment on that. But, in the very same song, there's a minute and a half prologue, which is a major portion of the choral part in Beethoven's Fifth Movement, Ninth Symphony, which was appropriated from another record, but on the same record company as Michael Jackson; Sony, Columbia, CBS, all those things, from a 1962 recording by The Cleveland Orchestra. And Michael put this song on the record without any sort of acknowledgment of Beethoven or the guy who wrote the words for this choral part, and it's interesting to read the liner notes to this song, because Michael gives himself credit 6 times as "Music by Michael Jackson, music composed by Michael Jackson, words by Michael Jackson, etcetera, etcetera, etcetera. Uh, Beethoven wasn't around to sue, and he isn't able, because the music is in the public domain; I think that was the assumption. But, there was a contractual agreement with the Cleveland Orchestra that their recording could not be used without some sort of arrangement with them. So, they sued in this case of plagiarism not as a copyright infringement or plagiarism case, but as a contractual thing. At the same time, Janet Jackson was interviewed in this Irish magazine, and there's an entertaining little bit where she said "You should hear some of the stuff that Michael's doing, now–he's working with orchestras, and some of it sounds so incredible–it sounds like Beethoven or Mozart." He's not even admitting the plagiarism to his own sister. So, things like that are just funny. 

But, the reason I used Michael Jackson's music in making some music of mine is because the original music was pretty good, but it wasn't really good enough to really satisfy me. And, I did the same sort of thing people do when they turn a song off in the middle of it, or they turn the volume down because it doesn't sound quite right, adjust the rebel controls; I just have more resources that I bring into play, and sometimes devote a lot more time, to try to make the music sound better. I therefore put myself in the position, in this thing, with current copyright law. But what I'm doing is completely independent of those things I'm acknowledging that I'm using, that I don't have a readily acknowledged vehicle for presenting these things to the public. So, I've tried various ways of doing that, and that also can be interesting. As Mark was saying last night, the main reason for doing things is because they're interesting. So, then you could bring up the idea of "what's the moral basis of these interesting things?" What lines will you draw? What won't you do? There was that case mentioned yesterday, about your parody of the O.J. Simpson case– 

MH: That isn't a parody, it was taking an O.J. Simpson exercise video which we re-edited the audio track. We didn't make anybody say anything they didn't actually say. We just took sentences out of context, and re-edited them together so it now sounds like O.J.'s personal trainer is instructing him how to kill someone with a knife. 

JO: So, there was a big objection from one of the audience members last night, who said Mark hadn't taken into consideration the feelings of victims in this particular case. The people who were killed. We don't know if O.J. Simpson killed them or not. And that brings up this thing that one always thinks of; what happens when you do something? Where does it go? Who get's affected? This also brings us back to the point where I had to slap my wrist before, for using the term "public domain" in a non legal manner. So, perhaps we have to say something that's not used as copyright terminology, like "public sector" or something. Those things that are in the discourse of the public sector, and those things that are private things; what are the lines dividing between those? Most people can choose when they are doing something that they want to remain private, when they want something to be their private property, and when they want it to be public property. It gets really dicey with intellectual property that you put out for everybody to inspect. How you're able to say this is my property, and where the line is drawn. It's not property in the usual sense, because if somebody else takes it and does something else with it, you've still got the original thing. So that's not property loss, in the traditional sense. All these things do become nebulous, when you start analyzing them in this kind of way. It's just one of the things we're thinking about. How can copyright allow us to do things that are, I think, important to do? 

DB: There are some very interesting points that have been raised. The question of where to find a space for people to be critical of works of intellectual property without exploiting them or violating the rights of others, is a very interesting one. And it is definitely a challenge posed to copyright law. The difficulty is, once you say it's okay to do it for critical purposes, you don't get to decide that what you do is necessarily a critical purpose, and what somebody else does is or is not. It's an exceptionally difficult line to draw. None of copyright law depends on the subject matter, or depends on the quality of expression–garbage is as protected as glory. If Michael Jackson didn't want to credit Beethoven, we learn there's a technical name for a person like that, its "Asshole," okay? If he didn't want to credit the Fourth Movement of Beethoven's Ninth with words by Beethoven and Schiller, and music by Beethoven, then he's demonstrating that he's a philistine, and nothing will ever change that. But, so what? Beethoven literally can't do anything about it, he's been out of copyright for about 150 years. The bottom line is...it's a legitimate question. I don't know of a way to do it. And, I'd certainly be interested in hearing some suggestions for how we could have a system that would allow this kind of criticism, but, I'm sorry, I don't think many people will share your point of view that it would be all right for a very commercial recording act like Janet Jackson to appropriate another very commercial piece of property and not pay for it. Why should she have a right to have a success based, in part, on somebody else's product, without properly compensating the owner? Did she get the blank CD's for free? 

FTA: What about the case where John made a recording, and used not-for-profit distribution, and still, the owner of the copyright jumped on John, and had all the remaining copies destroyed, even though it was a not for profit piece of art? 

DB: Should "not for profit" be your criteria? If it sells below a certain number, you shouldn't have respect for the person's copyright? 

JO: It wasn't "not for profit," it just wasn't for sale. 

DB: What happened in John's case is truly an extraordinary thing–of record companies acting in a very heavy-handed fashion. I said before, the last thing on earth I am is a defender of anything a record company does. I fight them every day. 

JO: I think, to clarify the situation, David Basskin is the president of the CMRRA, which is different from the CRIA. There's also the Canadian Marine Rescue Auxiliary, so the arguments are really getting mixed-up! 

DB: But, the bottom line is, record companies and publishers are very different people. 

JO: The CRIA is the representative for most of the major labels, There's 5 major labels? 

DB: Six. 

JO: Six, at this point, and they are investigating the interests of the major labels. David is in a very different position. 

MH: I think the other collision that's going on here is between creative impulses and business. And a lot of the sensibility you espouse to me comes from a business standpoint. A corporate way of thinking. The music industry is a business, and the people who run it very much think of it that way. This is about making money. The people who make the stuff, all of us little workers, they look at us as just people who are making, you know, nice shoes. If they can sell a new brand of shoe, and it's the Nirvana shoe, well great! We love the Nirvana shoe. From where I am, that's not what I'm doing. It happens that I wouldn't be able to do what I do, and continue to spend the amount of time and energy I spend on it, if I only made one copy of it. I'm very interested in reaching more people with what I'm doing. I very much like the idea of making something that I very much consider art, but I realize that it's going to be mass-produced. And that enters into the aesthetic choices you make in a real interesting way. And so, I want to keep doing this, so I do want to be able to sell what I'm doing and make some kind of a profit, but– 

DB: Then, what's the difference between you and a corporation, is it only the dimension of the money? 

MH: It has to do with the degree of control that someone wants to exercise over this. We have been sampled on a million-selling record. Marky Mark and the Funky Bunch: The first ten seconds on the album "Music for the People" is from a Negativland album. It's a pretty dumb record, but I really don't care that he did it. That's fine. They did not seek permission. Interestingly enough, they did seek permission for everything else I recognize on that record. 

DB: Had they sought permission, what would you have done? 

MH: We would have said "Please go ahead and do whatever you want. 

DB: Then, I have no problem with that at all. Probably some of you think the Grateful Dead, and God rest Jerry Garcia's memory, are a bunch of people who espoused a pretty strong counter-cultural point of view. 

They did, except, you know what else? They'd pick a part of the stadium where the sound was not really very good, and that's where they'd herd everybody into. 

In the last 10 years before Jerry Garcia's untimely death, the Grateful dead was one of the top 5 touring acts in America, taking in excess of 35 million dollars US per year. Why are they not a corporation? Why are they not an evil corporate entity? 

MH: I can take the attitude you're saying, I mean, we do take that attitude: If people want to use Negativland, go right ahead. Do whatever you want with it. 

OG: See, you're advocating, which no one else here is, I find kind of curious; You're saying "Be an outlaw." Everyone else is being very polite and saying– 

MH: No– 

DB: This is Canada, son. We don't take that crap here. 

(FTA, semi-audible): You made a comment earlier that . .?. I'm a web developer myself– 

DB: I never said corporations didn't mind using works on the internet. I said that the use of the growth of the internet is one of the great opportunities for the democratization of access to the media; and that may change this situation. 

(half-audible web developer): Well, from my point of view, I don't need an invitation; freedom is something we as a society discover and evolve and . ?. . I claim my right to that medium as much as that corporation does. And therefore what corporate issues ... from the corporate sort of law structure point of view. It's like how can you control the images . .?. There was always the issue of control and regulation of the mediums like the airwaves, and from my point of view, the airwaves are for all of us to use. Broadcasting is subject to the CRTC and the FCC, regulating radio waves, radio frequencies. I disagree with that, I think that the . .?. is for all people to use– 

DB: Now wait just a minute. You think that anybody who wants to run a radio station on top of another radio station should be allowed to? If I don't like CKLN, should I be able to ride a station on their frequency? The airwaves belong to the public. Without regulation we wouldn't have a damn Canadian television, film or music industry. 

FTA: I don't remember the public giving any instructions to the CRTC to give out something like five ten billion watt licenses instead of, like, fifty thousand 300 watt licenses– 

DB: How many of you have ever written an intervention on the CRTC, here? 

OG: We're way off topic. 

FTA: Actually, my point earlier was more around other issues. I'm actually kind of interested where this is going to go, around airwaves and pirate radio, and cable TV–

OG: Well, what you suggest, it's a great idea, but

(half-audible web developer): The issues of copyright, like when I put a web page up, it's my web page, and I put it on display on the internet . .?. it I have my space there, and somebody comes and destroys my work, then it's infringement on my work. But, if somebody comes and steals my images to use in their own work, that's fine, because I put it out there . .?. I disagree that any medium should be controlled with like a gestapo regime that only protects the interests of people who have money. How many people can open a television station? How many people can open a licensed radio station with all the regulations and everything? . .?. negativism . .?. repression . .?. and so the issue is that they're outdated. They don't make sense any more. 

DB: You've mentioned about ten different things. Let me respond very briefly. Airwaves are a limited resource. You can't have two radio or television signals running on the same frequency, or neither of them can be seen or heard properly. Generally people think it's not a good idea to have two radio stations on the same frequency. Somebody's got to be the traffic cop, and say – 

(half audible web developer): But it's my neighborhood, and I– 

DB: Please, may I finish? I hear a lot of categorical imparity. I don't mind if my stuff is stolen, so nobody should mind if their stuff is stolen. That's where it breaks down. 

FTA: No, I think the issue is, as an artist, why should I care whether you care or not. Unless I'm bootlegging or imitating your work– 

DB: But, if you shouldn't care, why is bootlegging wrong, then? 

FTA: Because, in that case, it's just simple counterfeiting. 

DB: But, what if that's my artistic statement? What if my statement is "I will make– 

(mostly unintelligible) FTA: . .?. nobody's talking about a straw man. 

DB: But, I'm looking at the issues, here. If it's not wrong to appropriate less than the whole, what makes appropriation of a whole wrong? 

FTA: Like many laws, the intent is important. We can identify the intent. It's very clear that, what Kathleen does, and what Mark does, and what John does–they're not bootlegging any thing, but they are commenting. And as artists, I do not see why they should get anybody's permission under any circumstances. 

(woman who keeps trying to get Kathleen to speak): I'd really like to hear more of what Kathleen has to say, because she started to say some stuff, and got overwhelmed, and I'd love to hear more. Especially how it relates to what you do as an artist. 

KC: Well, I guess, to describe the culture I come from, in a sense, a lot of it, in terms of like, rave stuff, it isn't actually directly critical. It's more just a taking of footage or sound as your raw material and reorganizing it, and out of that comes your response. And, I think the jazz model is interesting, because, you know, the whole notion of a riff or a quotation of other songs is so present in, say, jazz. Like Coltraine, "A Few of My Favorite Things, " or whatever, it's like, a starting-off point, and from there things break down. I think that's a very interesting artistic model, which is also contemporary. To talk about the law, I think it could be developed so that it's more encompassing of these sort of artistic strategies, and yet at the same time, I think part of this artistic practice is about circumventing the law, perhaps, in response to it. So, I don't know if I'd really like to see the law accommodate this kind of artistic practice, because it's a strategy that is in opposition to it. 

JO: But, those two examples you mentioned, raves and jazz, are cases where the system does accommodate those kinds of things, and that there aren't any examples of people saying you can't do that. And the same thing with raves, it's mostly about money. They don't go after raves– 

KC: They do, though. You're saying the system accommodates; It's an interesting parallel, because early jazz culture was quite affiliated with underground black culture, and pot smoking, and it was illegal. And now, raves, in England and throughout Europe are being banned. So, it's kind of an interesting parallel, when, in a sense it is illegal culture. And jazz originally started off that way, and became more and more accommodated– 

FTA: It's also the public space / private space thing. Like something seems to have crossed a boundary between "well this is kind of like a harmless sub sub sub sub culture that suddenly has become public enough," that authorities have to clamp down on it. 

FTA: You can be damn sure that if you made a dance record that appropriated one of the major hooks of a platinum selling Chemical Brothers record, even though they may come from the milieu of rave culture, They're more than likely going to insist on ownership of their own material. 

KC: That depends how you circulate your material– 

FTA: How do you know? 

KC: That depends on how you circulate your information or your product. 

(audience): In that case, I don't think the artist would, as they have ripped off so many other people. But, their publishing company sure would, because there would be lawyers' work to be done, and money to be made. 

FTA: But, then they probably shouldn't sign a record deal with Virgin Records that probably totally indemnifies the record company against any of their plagiarism. They should stay independent and take their lumps. 

(half audible web developer): The main challenge of mainstream media, that's just basically bombarding . .?. because there's just so much information, and only so much information can be consumed by an individual. 

DB: I found I consume much more information when I turned my TV off. 

(half audible web developer): And those channels are being controlled and copyrighted. All these issues are basically related to control of the mediums, quality control, control of distribution, control of content, for those channels. 

KC: Sure. 

DB: No. They're not in any way. Copyright is about the protection of authors and their works. You walk into bookstores any where in this city, you walk into Pages, one of the best book stores in Toronto, or Bacca, or any other of the book stores, you will not see anybody regulating what can and can't get on the shelves. Many years ago, I started reading novels I'm sure many of you have read, by Charles McKemsky. It comes from a little press called Black Sparrow Press. Who the hell is Black Sparrow Press? It's probably a couple of very talented people, good art direction, and wonderful books, coming out of a warehouse somewhere in Southern California. Thanks to a great book store called Pages, I got a chance to read it. Thanks to Amazon.com I can order damn near anything that I want. There's nobody saying what books you can or can not buy in this country, beyond a very narrow zone of control for things like hate literature. I don't want this discussion to go in that direction, because we'll talk of nothing else. But, the point is, copyright has nothing to do with control of access to the media. You have a copyrighted web page–by the way, you can not put your work into the public domain, work is copyrighted the moment it is create. If you choose not to protect your rights, then God bless you, that's your choice. But the work is copyrighted– 

MH: But, the copyright laws ARE restricting me, okay? Yes, it actually is kind of fun to be in the outlaw position. Absolutely. I've had all kinds of amazing, bizarre things happen to me in my life, because of what's happened in our work. But, in the long run, when I look at the bigger picture–I kind of wanted to add this to what you were saying–It is interesting to try and be clever and circumvent the law. It can be a lot of fun, to be in the outlaw position, and be the rebel. But, I have seen over the last few years how many times that the general threat of suits that would come because of any kind of infringement over the creative reuse of some work, has a real chilling effect. I see it just stopping a lot of people from pursuing any creative impulse. And that makes me very, very upset. Very very angry. And that's where I see, not that we want copyright abolished–I think everybody here would agree on that–it's just that those laws really are based upon hundred-year-old-ideas, and they really have to be changed, and re-figured out. And I realize our position is real extreme. Negativland is like the Earth First of intellectual property law. We're not going to be setting the rules. If you have something like the Sierra Club, that's progressive– 

(everybody talks at once): ?? 

MH: And you're saying, "How do we figure this out– 

DB: Let's talk about something Canadians have that Americans don't, and that's called "moral rights." Under Canada's law, the author has the right to protect his work from mutilation or disintegration. All of you have probably been in the Eaton Centre. Seen the birds in the south half of the Eaton Centre? You know, the Canadian Geese coming in for a landing? That's not just some idly created toy; That's a sculpture by Michael Snow, a rather good artist 

JO: Who played piano on my first– 

DB: That's right; Michael Snow, creator of The Walking Woman sculpture. In any event, the Eaton Centre bought the sculpture from him–owns it 100 per cent. Cadillac Fairview is the developer. About ten years ago, they decided to make a great Christmas promotion, some of you know this story, to tie red ribbons around the geese's necks and to reproduce the image of the goose with the red ribbon on banners and posters and shopping bags, and all the usual point of purchase stuff the shopping centres put out. Michael Snow saw that, and he went absolutely apeshit. He said, "This is not what I created this work of art for. This is not meant to be a decoration for your Christmas sale; This is a work of art that expresses a lot of what I feel about Canada, about the image of geese coming in for a landing. It is my work. You have screwed around with my work. This is not the basis on which I created it. My rights as the author, to my reputation as a creator to the integrity of the work have been violated." He went to court, he got an injunction, and forced the evil corporation, Cadillac Fairview, to take their ribbons off the geese, stop using the image; and that was a case of the protection of the artist's rights. And this is something Americans don't have, and will probably never have, because of the way American politics work. Moral rights is a vital part of our law–it protects the author's right to the integrity of what he creates, and protects the rights to his reputation as an artist. You may think that what you're doing is expressing criticism, and you may think, well the artist won't mind I'm sure, but the artist MAY mind. And the artist has a right to protect his reputation, and protect the integrity of his work; and it's like that in almost every country in the world except the US. 

KC: I guess we have to bring up the whole issue of authorship, which is maybe what we've kind of been talking about. But, the whole notion of the author itself has shifted and changed so that John can become an author, when the elements of his work come elsewhere–there's authorship there, but we have to redefine just what authorship is. 

DB: An awful lot of work has been done on that by the French Post-Structuralists. There has been a lot of thought about 'is there any such thing as originality?' and there's a vast gulf between post-structuralist aesthetics and classical aesthetics and copyright law. By no means does the author in copyright law have anything remotely to do with what creative people or critics think it means today. But, if somebody sits there and writes a song, it may be that he's been influenced by everything that came before. There's no protection for the idea. There's no protection for the idea. It's the expression of the idea that is protected. 

MH: Well, what I might be talking about is not that Michael Snow has one work of art sitting–where is it sitting? 

DB: It's in the Eaton Centre. 

MH: Okay, I'm talking about if Michael Snow has reproductions of his work, and there is one sitting on my neighbor's front lawn, and there's one down the street, and one in the city square, and in fact every where I go I have to see Michael Snow's geese. 

OG: That was the issue, because it was turned into an advertising image. He didn't want to see his geese photographed with the red ribbon. 

OG: That was the issue, because it was turned into an advertising image. He didn't want to see his geese photographed with the red ribbon. 

MH: Okay, but I'm saying that if I'm seeing something like that every where I go, that– 

FTA: You’re saying that if maybe Michael Snow has pushed that image into your face– 

MH: Or that a business has bought his image and reproduced it every where–I think what I’m saying is different. I think the initial impulse, the idea’s fine. It’s just that we’ve entered into a really different era. The world is really really different now, and again, you said earlier, “You know those billboards, oh well, that’s just the way things are." But, that’s not how I feel. 

DB: Let’s suppose that the “Earth Firsts” of the copyright movement have, through some colossal event of chance, been handed the pen to rewrite copyright law. What law would you write? What rule would you make with respect to the use of other people’s works in a critical fashion? What would you allow? What wouldn’t you allow?

 MH: I would say in general, anything less than the whole, and that it would be for the courts to determine if the sum is greater than its parts. And if someone was trying just to take 99 per cent of a work and fade it out just before the last ten seconds, and said that was theirs, then I’m sure the courts would say “No, that’s ridiculous.”

DB: But, how would you express the rule? 

MH: Well, I’m not an attorney. 

DB: Use plain English. 

FTA: How do we express the public figure rule in the states? How do you tell a public figure from a private figure? So, it’s common sense. We all have it. You can take a look at a piece and say the intent of the piece is artistic, or the intent of this is a bootleg. It’s not some boogie-man that you can’t pin down. It’s actually very clear.

DB: I didn’t say you couldn’t pin it down. 

JO: Well, you know those absolutes don’t exist. There’s the case of the guy who makes the white Michael Jacksons out of porcelain– 

DB: Jeff Koonz. 

JO: There was the case where he took a post card, did a ceramic reproduction. He didn’t do it. He assigned it to artisans in Italy to make this ceramic reproduction. Coincidentally, he had torn the copyright notice off the post card before handing it to these guys. The guy who took the original photographs used in the post card found out about the sculptures, and found out that this series of six sculptures had been sold for some 150 thousand dollars apiece, so he wanted a piece of that. Jeff Koonz argued that “I’m not doing what he’s doing. Look–that’s a photograph, this is a ceramic sculpture. People sat on both sides of that fence. Is this original, or isn’t it original?

FTA: How come composers who quote other composers in their work– 

JO: The last person who could really do that was Charles Ives, at the turn of the century when public domain was much closer to his back yard. He was able to quote songs that were in the current vernacular. These days you can’t do that kind of thing. 

FTA 1: It happens all the time. Aztec Camera quoted three bars of "MacArthur Park" in a song. I remember hearing it, and thinking “that is so cool. He just wove it into his song.” Now, by taking those three bars, was he violating copyright? 

DB: He probably cleared the sample. 

FTA 2: George Clinton, who is probably the most sampled person in the whole recording industry; probably even more than James Brown by this point– 

FTA 1: I’m not talking about sampling, this was an actual melody that he wrote. He took– 

DB: If you’re asking why nothing was done, A. It might not have come to the attention of the copyright owner, or B. The original copyright owner may have been pleased by it, and not wanted to do anything about it. Or C. The owner may not have the financial wherewithal to do anything about it. 

KC: What better way to illustrate something that you have to say about a particular artist, corporation, any piece of media, than to use that artist’s own words against them. Or to use their own art against them. And how is that possible if you have to get their permission? 

DB: It’s not a case of you’re out to get their permission, it’s a question of the artist being entitled to take action if he feels his rights have been aggrieved. 

KC: If you’re using something that they have done– 

DB: If you’re making the assumption that the artist will regard–You’re assuming–you’re choosing to decide for someone else what his point of view will be. You’re saying “what better way to show that you respect the rights of the author, than to steal him blind?”

FTA: No, I think what she’s saying is why should you care what their point of view is? 

KC: If you want to illustrate that someone is a hypocrite, and you’re using what they have done and have said in the public eye that has been recorded, and you have to get permission from each media source and from that person to use it, obviously it’s never going to get done, and it’s never going to get said. But how better to say it than to show it to someone as what they have actually done, than to just stand up on a platform and say “this person is a hypocrite.” 

DB: No one’s stopping you from saying someone’s a hypocrite. 

KC: No, but it doesn’t have the same weight as seeing what they have actually done.

DB: It may not be the same, but it doesn’t mean it’s inherently inferior to using it. Frank Zappa wrote a wonderful song about Andy Warhol, that appeared on the album “One Size Fits All.” It’s pretty critical of Andy Warhol.

KC: But it isn’t the same as if he had shown Andy Warhol doing what it was– 

DB: No. It was the work of another artist. It was the work of a creator. 

MH: See, you’re drawing these little lines and circles around what ways we can create, and what ways we can’t. That’s the big problem I have. I mean, yeah, I’m acknowledging that I’m hopefully a benevolent capitalist running my little Seeland Records, Negativland's label. But, god fucking dammit, I’m not going to have business people and lawyers telling me what I can and can not do when I’m creating stuff. That’s what this boiled down to for me. It’s a bunch of business people and lawyers who have been drawing these circles and lines and fences around me and saying “This is okay. You can criticize him if you talk about him, but if you actually use the thing itself." Well, don’t use the Pepsi jingles themselves. You can simulate them, or use a word like “Poopsi.” To me, there’s a jarring interesting effect by taking the actual thing. And this has everything to do with new technology. The ability to grab the thing itself. 

FTA: Reclaiming the logic, like, Marcel Duchamp signed the urinal. 

DB: Marcel Duchamp called those “readymade,” and he pursued people who reproduced them without permission. He said "anything I sign is art." 

FTA: You can reclaim anything. Then, I can take your work and use it in a different context. 

DB: He never actually did that in the context of somebody else’s copyrighted work. 

KC: There is a notion that the idea of copyright came up in 1821– 

DB: 1797, actually. 

KC: I think that that kind of goes along with something else that was mentioned, that the idea of copyright has become outdated. One of the ideas that you mention was that something becomes public domain 50 years after the– 

DB: In Canada, life and fifty. In Europe, life and seventy. 

KC: I find that to be interesting, because maybe in 1871–Beethoven, fifty years after he died, people actually knew about this music. But, in our day in age, a song comes out and three days later, the world knows about it, and you’re bombarded with it, and it’s all over. 

DB: When Mozart premiered "The Marriage of Figaro" in Prague, it was on the streets of every major European capitol within four weeks. And the hurdy gurdy players were playing the tunes. The world’s not so new. The world’s rather old. Beethoven was certainly not a no one in 1877, 50 years after he died. But Johann Albrechtsburger was probably forgotten. Why? Because he was second rate. 

FTA: Yet, who decides that? 

DB: It's not a question of taste. Why life and 50? Because a line has to be drawn somewhere. 

KC: With social comment, time is of the essence, and it can't wait 50 years. 

DB: How do you decide what's social comment and what isn't? How far is this from Duchamp saying "anything I do or say is art?" 

KC: What is and isn't social comment is not for one person to decide. 

DB: What if it's social comment we don't like? What if it's right-wing social comment?

KC: Social comment is social comment. The issue is that is should be allowed to be said. 

(everybody talks at once for about 10 seconds) 

FTA: There's a case recently where a group has made a very derogatory song about the Barbie doll. How do you feel about that, their trouble with MCA Records? 

DB: Well, it's not trouble with MCA, it's probably trouble with Mattell. Interesting case. Nobody's been sued. 

FTA: Do you think these people are justified in criticizing the– 

MH: No, Mattell is suing. 

 DB: Well, I think it's a fascinating idea to criticize Barbie. You're getting into very different areas, here, than appropriation. You're getting into freedom of speech. My gut feeling is that in the U.S., the case wouldn't stand up. Writing a song critical of a product would probably be defensible under the first amendment, and under the Charter of Rights. 

FTA: Do you think that's the right approach? 

DB: I've got no problem with a song that's critical of Barbie, or critical of anything. 

FTA: But, at what point does a trademark or a copyright become a vernacular idea, not "public domain," but at what point does it become a conceptual– 

DB: I'm not a trademark specialist. Trademarks are very different creatures. You don't get a trademark automatically by saying "I've made this symbol, and it's my trademark." You have to go through a long and expensive process to get a trademark issued to you by a government. There's a public process whereby anybody who wants to file objections–there could be hearings, legal appeals. It's a big deal to get a trademark. 

KC: There are trademarks that have become part of the vernacular, like Kleenex. There is no such thing as "Kleenex." 

FTA: Because one company dominates the market. 

KC: It's actually "facial tissue." 

DB: Yes, you're absolutely right on an aesthetic level, but that doesn't mean the law ceases to apply. 

MH: They are different, and we could get into trademark, but if we do, it gets way more complicated. I think, at least in America, Mattell would have a very good argument about trademark violation, from my understanding of trademark law. But I wanted to say something–I don't know if this is going on in Canada as well–but in the States, there's been a lot of effort being put into extending this "life of the creator plus 50 years." Now, that's an interesting thing. Is that happening here? 

DB: Term extension. "Life plus 70." Gotta have it! 

MH: Okay, it's being extended. Now, who's behind that? 

DB: Europeans. Europe is "life and 70." 

JO: There were various terms across Europe, and they decided, with the European common market, to harmonize them all up to "life and 70." 

MH: What I'm saying is that the motivation– 

JO: The public domain get's further and further into the past. 

DB: It's going to be a hell of a fight. There's no question about it. It's not a "slam-dunk" fight by any means. 

MH: But the motivation there, it becomes really clear that the people who would like copyright to be extended are corporations. What's come out of the corporate model is that corporations are immortal. They will never die. They will always be able to profit from Beatles records and Michael Jackson records. 

DB: No they won't. The Beatles records will go out of copyright 50 years after– 

MH: They're trying to change that. 

DB: From 50 to 70, but they'll never achieve permanent copyright. 

MH: I wouldn't be surprised if they make concerted effort. 

JO: They don't have to. Every 20 years, they just have to ratify it so– 

DB: Not in the United States. I plead guilty: I represent capitalists. 

FTA: One thing I find interesting is, the media of 200 years ago were eyes, ears, voice, and were all organic. Quoting somebody, or singing their song was the only one way to copy something. Now we have electronic eyes and ears and ways of projecting ourselves. 

JO: You're getting into a really interesting area, because there are a lot of cases now having to do with, for instance, copyrighted genetic material, genetic information. Various people have tried to copyright pieces of the DNA strand. There's all sorts of discussion about, you know, what are the ramifications of assigning that kind of control over that kind of information? We don't really know. But, what seems to be happening is that these controls over intellectual property are expanding. The potential problem with that is that the realm of things that we share gets smaller and smaller, the wellspring dries up. The argument that "We'll never have permanent copyright," where somebody has copyright in perpetuity over the things that they've created; the resistance to that is that eventually–Spider Robinson, a Canadian science fiction writer, wrote something called "Melancholy Elephants," which was a story about some time in the future when there is permanent copyright. There is this small band of creators who are trying to figure out ways to write a new song. The problem was, after a couple of hundred years, all these copyrighted songs had used all the possible configurations of all the possible notes and orthodox rhythms that were possible. So, people would try to write original songs, and send them to the copyright office, and they'd run it through the computer, and be told, "Uh uh." Now, that's the case that we don't want. 

DB: But, that's never been the case. And one of the things that– 

JO: There have been attempts to expand and extend copyright– 

DB: There has been an effort, but, look: Ladies and gentlemen, you all seem to be bodily functioning, you all seem to have voices, opinions, and hands. 

JO: How come you think I'm disagreeing with you? 

DB: How many of you followed anything to do with Bill C-32, the phase 2 copyright amendment act? How many of you took the opportunity to write your point of view in to the government? (pause) Okay, that's one. That's one more than I would expect. How many of you have taken part in a CRTC hearing, by making your voice known? (pause) That's excellent! There's hardly anybody who does. The fact of the matter is, I'm a professional lobbyist. I spend a lot of time in Ottawa, talking to people in government. These people go berserk when they get letters from the public, because it's such an unusual thing to happen. My opinion is that all these things are on the table for a far more vigorous debate than you might think. Join your creator organizations. Join your artist support organizations. Write individually. Take part. Believe me, the viewpoints–

JO: Make works that people notice. We're talking artists, here. Make works that people notice, and it's going to make a public dialog about these things, like we're having now. 

DB: In much more simple terms, express you point of view. If you feel that there's something that should be done, you will accomplish butter-all sitting in a nice place at Richmond and Spadina venting at a guy who represents a bunch of evil corporations. If you want to express something, get involved. Invest a little of your time and creativity in speaking up to people in government. Believe me, every inch we have to battle against our enemies–people like record companies and broadcasters, we have to fight uphill against a well-entrenched user community that has the ear of, among other people, the Department of Industry. And educators, librarians, broadcasters, the disabled, all kinds of people got great slabs of new exemptions in C-32, and it was a hard-fought issue. But if you want to have an impact on where these things are going, I think you're short-changing yourself in any way if you think that you can't be heard, or that you're somehow marginalized into nonexistence. Perhaps in America, that might be the case, but I can tell you, from 15 years of lobbying, the voice of individuals gets heard. But it has to be spoken continuously. 

MH: That's great. If you believe in the political system here. 

DB: As long as the politicians write the laws, we have to deal with them. I don't like them much, either. 

MH: Keep making examples of it, too, which is what we're trying to do, to keep putting examples out there. 

FTA: (inaudible, something about the constitution) 

DB: Constitutional reform is so immensely difficult in this country, among other things, it would require the agreement of Quebec. End of discussion. Constitutional reform, if anything ever happens–we are an infinite distance away from any debate on entrenching the right of property. Our friends in Quebec will make sure the constitutional discussions we have, if any, are about the survival of this country. 

FTA: Quebec was not opposed to living copyrights in the last– 

DB: You're not going to amend anything in the constitution without getting Quebec to vote on it. Quebec doesn't admit the legitimacy of the constitution at all. 

FTA: I don't want to get caught up in the Quebec thing; I think what's going on is simply that the corporation wants too usurp the idea of the individual, because there's been a history under this constitution of the corporation somehow being able to declare itself as being simultaneous with the individual. So, therefore the corporate rights become the individual rights, and the individual rights get (raspberry noise). 

OG: I'm curious, Mark, how do you feel about the corporate use of various well-known songs and stuff like that. 

MH: Mostly, they're paying for the right to do that. Frito-Lay did a commercial that sounded just like a Tom Waits song, and Tom Waits sued Frito-Lay, owned by Pepsico, and got, I believe, a couple million dollars. 

OG: Yeah, but David Bowie licenses "Changes" to the Bank of Nova Scotia– 

MH: David Bowie and Tina Turner did a Pepsi commercial, too. I'm not sure what your question is. 

OG: Well, I guess in a way it's an aesthetic question. They're doing a reversal, which you're doing with the Pepsi project. 

MH: There's lots of advertising that's acting very anti-corporate and mocking their own bigness, and mocking the fact that they're trying to sell you something that you don't need. 

OG: I don't think it works. When I hear those things, It turns me against the original. 

MH: Well, where I live, it's very successful. People love it. People really like it. 

JO: Mark, have you been approached by various corporations to– 

FTA: The originals were advertisements for the artists themselves, so in some ways I don't see the difference between someone like Robert Palmer, who did what ever that big song with all the women– 

MH: Pepsi Commercial. 

FTA: And then does the commercial at exactly the same time, almost making a case for him being some kind of post-modernist, because he fails to distinguish between his single and the Pepsi commercial. 

DB: One of my musical heroes, Irving Berlin, never licensed one of his songs for a commercial in his whole life, and is probably the most successful song writer of the 20th century. Everybody wanted to use "My God," everybody wanted to use "White Christmas" in a commercial. He never licensed one, but it was his choice not to do it. And if Bob Dylan wants to, it's his choice. 

MH: We were asked to do ads for Genuine Draft beer. 

KC: We actually have to wrap fairly soon, so Adina's got a question, and then we're going to allow a summary, then– 

FTA: There's a gentleman by the name of Gary Johnson–does that ring any bells to you?

DB: We're not talking about a band called The Government, from 20 years ago, are we? 

FTA: –The FU2 Stupidland compilation. 

DB: Oh, I know who this guy is. 

MH: Can I describe this, do you mind? Hopefully, most of us do know about us being crushed by Island Records for our U2 single. It really upset a lot of fans of ours, including a gentleman who lived here in Toronto. He went on to produce a cassette compilation he was going to call FU2. He put a notice in Now magazine, soliciting people to submit mutilated versions of U2 songs to be put out on a cassette. This was not to be sold, it was to be distributed to those who had contributed–cassette only, very underground. I believe within a week he received a letter from Mr. Basskin here telling him that he would bring legal action against him for doing such a thing. David Basskin wasn't representing Island Records or U2, simply the interests of the industry.

DB: Can I speak, please? 

MH: Can I finish the story? 

DB: Don't try to say what I said, when I'm here to tell you what I did say. Okay, I did not threaten action on the basis of anybody. I act for the publisher of a song.

MH: Were you directed by the publisher to do anything? 

DB: I have a general mandate from my clients to protect their interests. What I said to him was, "license it." Whether or not you're giving it away, pay for the use of the song. And if you don't, that's an infringement of copyright. 

MH: He published an apology the following week– 

DB: He published an apology because he got on the radio and said I was an enemy of musicians and creators. And I've been a musician for 35 years, and I've done a lot for song writers in this country, and I will continue to do so. And I will not sit still for anybody for any purpose calling me an enemy of musicians. 

MH: So you then threatened him with libel. 

DB: My friend, I don't like being called an enemy of music or musicians, when I've dedicated my professional life to their protection and their enhancement. And I will not sit still and have my personal reputation besmirched by somebody like that. I said to him, if you use the song, pay for it. That's copyright infringement. I send out 50 letters a month like that, to people who rip off music. That's our job. 

MH: So he then printed another letter the following week–he was so frightened by all of this, that he printed another letter apologizing for his apology. 

DB: That was his decision. All I asked for was what he gave. 

MH: When I heard about this, I thought it was one of the most Orwellian, Big Brotheresque things that I'd ever heard– 

DB: “Fuck with the eagle, and– 

MH: –and grind this little guy– 

DB: I didn't grind him into the ground. I protected my personal reputation, as I'm sure you would yours. And if you don't choose to protect your reputation, that is your choice. 

MH: Okay, let me play you an interesting track. I hope you can hear this. This is from a CD we did that comes with our book. Mr. Basskin went on the radio and had a lot of very interesting things to say about this FU2 project. 

(MH plays track from Fair Use CD, including Basskin soundbytes from a show hosted by David Scurr on CKLN) 

DB: I don't think it's inconsistent with anything I've said this evening; "Respect creators. Cherish works." 

FTA: What about the work of Gary Johnson? 

MH: I'm sorry, I'm just wondering how you feel about the fact that I took a recording of you on the radio speaking about this, and used it in that audio collage? 

DB: I don't think that it's very good, but you're welcome to use my words if you want.

MH: Okay. 

DB: I’m an advocate. I’m a lobbyist on behalf of my– 

FTA: Gary Johnson was a creator. Why would you try to stop HIM from expressing himself? 

DB: I didn’t try to stop him from expressing himself. I said, if you use the song, pay for it. 

(audience): Why should he have to pay for it? 

DB: Because it belongs to somebody. 

MH: Why would U2–Nobody’s going to give him permission to mutilate U2 songs! 

DB: Why is it that every person who wants to use music for free thinks he has an entitlement? Why are writers–why are musicians the last ones–Why are musicians always the ones to be told “You don’t get paid”? I’ve got people in broadcasting, in every other business that say, “I’m promoting you. Why should I pay you?” And you’re saying a small variation on that. My purpose is artistic creativity and creation. You shouldn’t get paid. 

FTA: No, that’s another straw man. That’s not what anybody’s saying. People are taking things from the public space that they see, just like public figures, and they are using that in their own work– 

DB: No. There is another fallacy. You’re saying if something happens where the public can’t receive it, it ceases to belong to anybody–it belongs to everybody. 

FTA: You can not have private ownership of public space. 

DB: It’s not a “public space” to put a private object into public space. 

FTA: Well, then why do we have exception in this case of public figures? What is the logic in this? 

DB: You want to get into a discussion of the American tradition of freedom of speech and– 

FTA: What about freedom of speech? What about Gary Johnson’s freedom of speech?

DB: It’s not a question of freedom of speech. 

MH: It is, though, and that’s what you fail to see. 

DB: Why does that overweigh the rights of the creator? Ultimately it’s “I can, but you can’t.” 

FTA: He wasn't putting out copies of U2’s “October.” He was not bootlegging U2 albums. Nobody who was going out to buy a U2 album would have picked up this thing and said– 

DB: He announced “I am going to use the song. I am going to mutilate the song." Do you expect the person whose mandate it is to protect the rights of the creator to sit still and do nothing? 

FTA: Excuse me, how much of the mutilation would be allowed? What if it was completely unrecognizable?  

DB: If it was completely unrecognizable, how could anybody tell it was theirs?

 FTA: There's a composer by the name of John Free (?) who did a piece called "This Is Not Iggy Pop." He took an entire song and processed it into white noise and feedback. You'd never be able to tell it was an Iggy Pop song– 

MH (to somebody else, audible to tape recorder):–Culturcide record? They took entire songs and just sung over them with their own lyrics– 

FTA: (inaudible) 

DB: I'm not familiar with that case. I can't comment on a situation like that. If you're saying a work from an artist has been mutilated beyond recognition, and the person seeking do distribute or otherwise put copies out of the mutilated work claims that it belongs to one or another, then he's going to have to take the consequences of using somebody's name. You don't get a free ride because you call yourself an artist. I'm sorry. 

FTA: I'm not asking for a free ride. I'm simply taking things from my environment and re-creating them into works of art the same way– 

DB: Why not create from scratch? 

MH: There's nothing wrong with creating from scratch. It's just a different approach. As I keep saying over and over again, things have changed. The world keeps changing all the time, and people are going to respond to that world and create different things. 

DB: We have always responded to change. My father grew up in a world of horse-drawn delivery carts. Now he surfs the web. Are you saying that's less change than we've experienced in our lives? 

MH: There's very different kinds of things going on now than when–Yes, change is always happening, but it's very different. 

DB: So what? Why does the fact of change entitle you to take someone else's property without their consent? Why does the assumption that your taking of their work would be okay with them stand higher than their own wishes? 

MH: It has to do with the earlier argument I put forth at the beginning of the evening: That we live in a world in which we really are hearing and experiencing a lot of information, whether we like it or not. And it's going to be the impulse of some small percentage of people out there, which is obviously growing and growing, that they're going to respond very directly to that. It may be in the form of real obvious commentary, like Negativland, it just may be making some fun jam at a rave. There's all kinds of different responses and aesthetic choices. 

DB: I feel like we're an inch from Bakounine, you know, "Property is theft." 

KC: No one is arguing that to take an entire piece of an artist's work, and to pass it off as your own is okay–that is copyright infringement. But to take a small portion of it, and to use it in your own piece. That's not really taking something away from that other artist. 

MH: It's because so much of the culture being shoved down our throats is–It's not– 

DB: –Helpless victim who's constantly being– 

MH: No! I'm not a "helpless victim." I do this, and it helps me feel like I'm not a helpless victim. 

DB: So, it makes you feel good. The bottom line is, to cite some vague strain of victimization of the media–Turn off your television set! I turned mine off years ago. I read a lot more books, as a result. 

MH: It's not that simple. We're not on a level playing field with Michael Jackson. 

DB: But, you've obviously got the critical acumen to be able to deconstruct virtually any image you see. So, in who's name are you doing this? In the name of the huddled masses out there who are being victimized by billboards, McDonald's symbols and so on? 

KC: Reality is what you can afford, and I can not afford to find myself some place where I am not constantly bombarded by the media; In the subway, when I sit down on the toilet, at U of T, I'm constantly confronted by media, by advertising. 

DB: Aren't you smart enough to ignore it? 

(everybody talks at once, from which only the following two comments are audible) 

KC: –There's an ad for Pizza Pizza– 

DB: –The fact that you mention it implies a critical ability. Why not disregard it? 

MH: What about a five year old, a ten year old, an eleven year old? All my critical acumen comes not because I'm some Mr. Smarty-pants guy who figured it all out, it's because I've done this work. The work I've done, for me personally, has been an intense education– 

DB: I'm not here to defend the advertising industry in regards to children. 

FTA: If there's a guy following me around all the time saying "Buy a hamburger. Buy a hamburger. Buy a hamburger," I'm going to turn around and say "No!" 

DB: But you can just as easily say "no" by not buying the hamburger. 

KC: That doesn't mean that you can get away from the guy that's chasing you around constantly saying "Buy a hamburger." 

DB: You act like all this was invented yesterday.

KC: It's been around for ages. I'm not acting like this just happened yesterday. I'm saying you're acting like we haven't been constantly bombarded from the day that we are born. As though we have a choice. 

FTA: I'm overweight. I can't afford a shrink to convince me not to eat hamburgers every day. But McDonald's can afford a team of psychiatrists and researchers to determine–

 (everybody laughs) 

DB: But, the last time I looked there were no gangs or goons yanking you into a McDonald's. Do you have the ability to say "No, I do not wish to eat at McDonald's?" Then you can resist all the advertising like that. 

MH: Let's all say it together!" I do not want to eat at McDonald's! 

KC: Actually, I think this evening is really serving the purpose it was designed for, which is to get everybody thinking. We've all started, obviously, and everybody should continue thinking about this stuff. I'm looking at the time; and I think at this point, we aren't going to change Mr. Basskin's mind, and he's put forward his ideas. We've had a really valid discussion, and I would really like to thank all the panelists for their time, for their intellectual energy towards this. And, I'd like to encourage everybody to continue considering these issues, and bring them forward into their every day lives. If there are any last few summary points, this is the time for it. 

MH: Pay no attention to the man behind the curtain. Ignore restrictive copyright laws. And if you're into being part of the political process to make that change, you know, that's right on! In the United States, I have a pretty hard time with that. 

FTA: The irony I think everybody's reacting to is that there is definitely a corporate agenda to create a mass culture that's shared by all of us; but at the same time, to retain private ownership of that culture. And just like Kathleen was saying, public space can not be privately owned. Culture, if it's going to be a mass culture that we all share in, can not be privately owned. 

MH: It's a contradiction in terms. And I think that's the crux of this whole thing, personally. 

KC: Well, just to say, beyond the law, sampling culture is alive and well, and will continue to be so. And those spaces probably will not be closed down for commentary and reaction. 

OG: I think the only area that didn't get into the discussion, that I've heard discussed in other places, are the merits of different types of sampling. I know, I'm not open to the kind of corporate stuff I was discussing with Mark. I think it would be interesting to open up the discussion to involve issues of censorship, aesthetics, things like that.

FTA: Or class. 

OG: And class, yeah. 

JO: Copyright is inherently a free right. Any one who claims to be an artist can make something, and automatically have copyright on that, until someone says you're infringing on them. So, you can take advantage of that situation, but also please feel free to comment on that situation. 

DB: Ultimately I've probably said far more than was my share, and I apologize for hogging, if other people had things to say. I don't feel as though I was invited to be the sole speaker, so please accept my apologies if I yakked too much. Musicians are often the last ones to get paid. There's a reason the band wants to get paid before it plays. Musicians and authors have been ripped off from day one. It comes fundamentally from a desire to ensure that, "hey every one else gets paid–we want to get paid, too." And, at bottom that is still what copyright is all about. And it doesn't matter if we're talking about the estate of John Lennon, or we're talking about Loreena Mckennitt. Loreena Mckennitt has a career today because of copyright law. Some of you may think she's desperately unhip; it doesn't matter. She started off playing her harp in front of St. Lawrence market, playing and singing unamplified, a little cardboard box in front of her. Today, she's known around the world. She produces her own recordings. She writes her own songs. She owns her own songs. She cuts razor-sharp deals with international labels, and gets the upside of those deals. Sharp, sharp businesswoman. Knows what she's doing. She wouldn't have been able to do any of that without copyright. And, the protection that copyright gives to the successful, to the large, to the small, comes fundamentally from respect for the creator's work. 

The bottom line is, if you start down the slope of saying that a certain category of people get to use works if it's critical, you are down a road from which there is no return, because the subjectivity of determining what constitutes criticality or social comment means that eventually every rip-off artist–and not you well intentioned people, perhaps–but every rip-off artist will claim that his work constitutes a "critical approach." I know. I deal with this day in and day out. Unfortunately, the real world in which we live says that–we live in cyberspace, we in the music business, and we've been there for a very long time. We have no object you can put in your hands. We have no physical reality to our creations. All we have is the legal protection we have fought very hard to get, and we will continue to fight for that. If large corporations benefit from it, and that troubles you, there's nothing I can do about that. The bottom line is that copyright protects the creator, protects the fruits of the creator's work, and without it there would be no opportunity for most creators to do their work, and bring their genius into our lives.