The Public Domain Remix competition was launched in France on the 4th of May as part of the OuiShare festival. The competition, organised by the Open Knowledge Foundation and Wikimedia France seeks to promote the public domain by demonstrating the versatility and utility of these works, and what they can be used to accomplish.

Participants are encouraged to embrace transmediality, and seek to be transformative in their approach to remixing. For example, converting literature to music or still images to video. The contest is as such ​​divided into five categories: Arts, Literature, Music, Video and Hardware.

The competition will run till December 31st, 2013, and readers are encouraged to forward the information to anyone that might be interested in tackling this interesting creative challenge.

Philip Schlesinger makes a correction and raises a new question.

Hasan Bakhshi has written to correct my misquotation of the NESTA Manifesto’s definition of the creative economy.  I wrote:

‘those sectors which specialise in the use of creative talent for creative purposes’ (p.34)

But it should be:

‘those sectors which specialise in the use of creative talent for commercial purposes’ (p.34)

Hasan’s corrective nudge, however, has turned my attention to another matter.

He and his co-authors observe that in their proposal to redefine the key terms there is ‘only one bottomless item of complexity: the word creativity’ (p.34).  Not entirely so: if talent has more of a ‘bottom’ (or has been less over-used) it is nonetheless also very complex.

Thus a phrase like ‘creative talent’, while it trips off the tongue, carries much more symbolic freight than ‘creative occupation’, its intended synonym.

While ‘occupation’ is a relatively neutral, official descriptor of a type of work, in popular culture ‘talent’ is currently highly associated with wannabe celebrity. In The X Factor or Britain’s Got Talent context, it is deeply connected to being manufactured, ‘discovered’ and displayed for audience appraisal, thumbs up or down.

By comparison, in a self-developmental framework, ‘talent’ is deeply connected to craftsmanship, and advancement through self-discipline over extensive periods of time. There is another model, therefore, that of apprenticeship and necessary collaboration with others, as Richard Sennett’s The Craftsman has argued, stressing social relations and competences and pointing to wider moral economies in which culture is produced.

None of this is to decry commerce – cultural workers have to make a living, after all – but just to note, once again, that in the creativity debate (which Sennett would like to abolish as obscuring our understanding of cultural production) embedded terminologies can set up some very complex associations. And these will continue to fuel argument.

Professor Philip Schlesinger – Deputy Director, CREATe discusses the recently launched NESTA Manifesto for the Creative Economy. Update: see Schlesinger’s follow-up post for a correction and additional reflection.

NESTA launched A Manifesto for the Creative Economy on 23 April. Its meeting room was packed to capacity, with prominent members of the great and unco guid well in evidence.

The timing was rather opportune. NESTA set out its stall for redefining the creative economy just a day before Maria Miller, the UK Secretary of State for Culture, Media and Sport, spoke at the British Museum about culture and the arts in an age of austerity.

Affirming her belief in the civilizing effects of culture and its centrality to Britishness, Ms Miller emphasized the contribution of the arts to economic life. She talked – in a phrase redolent of the New Labour era – of public funding through the Arts Council acting as ‘venture capital’. Indeed, in my view the speech as whole was entirely consistent with the previous government’s thinking, although not everyone will agree.

The Arts Council, of course, is banging the drum of relevance and utility – sensible austerity politics, as an astute Peter Bazalgette has made clear.

What proved to be an action-packed week for the cultural policy wonkerati actually began on 19 April when, the UK government offered a consultation on proposed changes to classifying and measuring the creative industries.

It was just like the buses coming in threes, combining the predictability of a reassuring procession with relief that there’s actually something to talk about.

Back to NESTA’s Manifesto, which plainly has been launched into an interesting context.

NESTA’s initiative has been very self-consciously positioned. It reflects in chapter 2 – ‘How Creative Britain lost its way’ – on a history of disappointment at the UK government’s failure to deliver consistent and transformative policies for the creative industries.

The lead author, Hasan Bakhshi, apart from being highly prolific and influential in this field, was also co-author of an earlier attempt to move the conceptual ground, Staying Ahead, published in 2007 and sidelined by the DCMS as too radical. Ian Hargreaves, as a co-author (alongside Juan Mateos-García), is of course well-known for his journalism and wider role in public life, but in this context for the 2011 Hargreaves Review, aka Digital opportunity: a review of intellectual property and growth, the proposals of which are still in play.

The Manifesto’s acknowledgements round up many influential players in the battle for ideas. So we should take this initiative seriously, even if the eventual destination is not known.

Why do definitional and classifying exercises matter? The obvious answer is that they can be consequential. Many authors would be delighted to be cited as half as often as the DCMS’s categorisation of the mystical 13 creative industries; and their delight would be unsurpassed by the global renown the Creative Industries Mapping Document 1998 has enjoyed.

NESTA’s Manifesto is a reformers’ charter. The ancient creative industries’ carapace is worn out and we need a new one. Where better to start than with a redefinition and reclassification to help us imagine a new world? This exercise is undertaken in Chapter 3, ‘What is the creative economy?’ This is a key part of the manifesto for future debate and it contains a definition of a creative occupation as:

‘a role within the creative process that brings cognitive skills to bear to bring about differentiation to yield either novel, or significantly enhanced products whose final form is not fully specified in advance.’ (p.29)

This chapter then specifies 5 criteria of creativity ‘with which to score all the Standard Occupational Classification (SOC) Codes in the UK workforce’.  These are novel process, mechanization-resistant, non-repetitiveness, creative contribution to the value chain, and interpretation (p.29).

And – acknowledging that there are problems in the criteria taken in isolation – although arguing that together they constitute a whole, the argument moves on to a calculus of ‘creative intensity’ for each SIC industrial code – the basis for saying who is in the creative workforce.

After applying their criteria, the authors conclude that in 2010 ‘8.7 per cent of the UK labour force worked in the creative economy’ and that ‘the creative industries accounted for 5.3 per cent of UK GVA’ (pp.31, 33)

The underlying assumptions will doubtless attract expert comment from labour economists in due course. Meantime, NESTA has a ready-made package in answer to the DCMS’s call. But what will be remembered from the Manifesto launch, it is doubtless hoped, will be the headline figures that affirm the previously under-estimated importance of the creative economy.

Given the undoubted clunkiness of the definition of a creative occupation cited above, a more user-friendly definition of ‘creative industries’ is proposed as:

‘those sectors which specialise in the use of creative talent for creative purposes’ (p.34)

With ‘creative’ appearing three times in one definition, we might consider this to be a mite recursive or otherwise entirely dependent on criteria that lie outside the definition itself.

And this goes with an allied definition of the ‘creative economy’ as:

‘those economic activities which involve the use of creative talent for commercial purposes’ (p.34)

Provided we know what ‘creative talent’ is – and how this both differs from and relates to ‘creative occupations’ – that might carry more weight.

There is no doubt that this is the really crucial part of the document because it leads to Proposal One, which is:

‘The Government should adopt our proposed new definitions of the creative industries and the wider creative economy. These are simple, robust and recognize the central role of digital technologies’. (p.34)

The last point is key to this reformers’ exercise. Part of the regretful history supplied is that New Labour inventions such as the DCMS and Ofcom did not get the internet.

Proposal Two is a plea for governmental rationality that the authors themselves evidently doubt (given the chequered history recounted) but still harbour hopes for:

‘Policymakers should establish a “creative innovation system” framework within which strategic priorities can be addressed in a coherent and effective manner.’ (p.50)

The other eight proposals range widely, meriting a chapter apiece, including tax relief for creative businesses, creative clusters, finance, valuation of public arts and cultural spending, incentives for experimentation, and expanded role for Ofcom vis à vis the internet, re-balanced copyright rules and a Schools Digital Pledge.

The Manifesto is profusely referenced (it runs to 127 pages, with no less than 617 footnotes).

Lets’s see how it plays.

Much ado, even an air of conspiracy, surrounds the passing of the Enterprise and Regulatory Reform Act (ERRA) on 25 April.  The main focus has been on the Copyright Provisions in Part VI (“Miscellaneous and general“) that will insert a new section 116A into the Copyright, Design and Patent Act 1988, entitled “Orphan works licensing and extended collective licensing”.

The section will enable the government to set up (through the statutory instrument of regulations) a body with the authority to license so-called Orphan works, i.e. those works whose owner of copyright “has not been found after a diligent search made in accordance with the regulations” (s. 116A(3)).

Campaigning photographers (http://www.stop43.org.uk/) have argued that identifying metadata are routinely removed before images are published online, and a misinformed section of the blogsphere has trumpeted a message of expropriation. Eleonora Rosati of the IP Kat and Ben Challis of the 1709 Blog offer a nice range of quotes, including Dominic Young’s assertion that the UK had “abolished copyright”, and the Telegraph’s Instagram Act  headline: “social media users lose ownership of their own photos”.

Paul Briden’s KnowYourMobile blog is another typical example:

“Within the new legislation is a change to UK copyright law which will effectively allow companies to use images which don’t include information identifying the owner for commercial gain. In other words, your holiday snap taken on your iPhone which you shared to your public-facing Facebook page, could end up in someone’s glossy brochure and you wouldn’t even get a penny, let alone a note asking if it’s ok.

There’s also no section of the new act which forbids sub-licensing practices, ie: someone can get your photo and sell it to someone else with little risk of repercussions. This is a very serious problem and I can see it only getting worse.

Interestingly, Instagram tried to enact this kind of commercial sharing approach to users’ content fairly recently but was (quite rightly) shouted down by angry consumers – and yet here it’s happening on a broader scale, by a national government and quietly through the back door.”

There are many misunderstandings in these short paragraphs. Here are three reasons why social media services will not attempt to rely on the Orphans provisions of the ERR Act for the use of digital images.

First, users would have to evidence diligent search (which photographers can pre-empt by registering their images on any public database).

Secondly, users will have to obtain a formal licence from a public body.

Thirdly, user will have to pay a market price for commercial use (and deposit that fee so that it could be claimed by a reappearing author).

Why would a social media service want to jump through these hoops?

Prior to the ERR Act, none of these processes were formalised. The current media practice to strip images of meta data, and even use such images in prominent positions (e.g. on newspaper covers, as is common with Twitter photographs after accidents and atrocities) will now attract greater scrutiny. While these practices may be undesirable (and indeed constitute an infringement under copyright law, both before and after the ERR Act), this a matter for legal remedies (such as the damages available for stripping metadata and indeed for unlawful use). This is where the photographers’ scrutiny should be.

It is misleading to claim that the ERR Act would permit digital images to be used without permission and compensation for the rights holder, and it is surprising that the claim has gained such currency.

The Orphan works provisions of the ERR Act are really designed for the large body of copyright works that lie barren because of the long copyright term.  For example, Mulligan and Schultz found that only 2.3% of in-copyright books and 6.8% of in-copyright films released pre-1946 remained commercially available in 2002: Mulligan, D.K. & Schultz, J.M., ‘Neglecting the National Memory: How Copyright Term Extensions Compromise the Development of Digital Archives’, 4(2) Journal of Appellate Practice & Process 451 (2002).

Archives currently run considerable risks making their collections available online. While the intentions of the ERR Act are thus well meaning, and entirely consistent with the overall purpose of copyright law (to release creativity), the details of implementation will matter greatly. I have to declare an interest here, as I am co-author of a study commissioned by the UK IPO which aims to offer a clearer understanding of how Orphan works are regulated and priced in other jurisdictions, and how a pricing system could be structured to ensure that “parents” are fairly remunerated if they re-appear, and users are incentivised to access and exploit registered orphan works.

Our study (with colleagues Favale, Homberg, Mendis and Secchi of Bournemouth University) simulated the clearance of Orphan works in several jurisdictions which have an operational system for licensing Orphan works (including Canada, Denmark, Hungary, Japan and India). Another example of the bizarre reception of the ERR Act is the Register’s claim that “[f]or the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work“. Simply not true.

Our study found that in most of these systems in particular non-profit, non-commercial uses do not happen in the way anticipated, i.e. Orphan works are not released, or reunited with their parents, as the legislators claim. (I’ll write another blog once we can reveal the data with the publication of the full study.)

Lastly, I also should put on record that I consider the legislative process of the ERR Act to be problematic (http://www.create.ac.uk/blog/2013/03/17/copyright-in-artistic-designs/). The first version of the ERR Bill (as introduced in May 2012) did not contain any Orphan works provisions at all, and I still do not think the appropriate scope of copyright exceptions should be a matter for secondary legislation.