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Sunday, November 2, 2008

The (Un)Life Of The Author Plus Seventy Years

Since Halloween has just passed, I thought I'd reproduce a horror-themed, moderately factual satirical essay I wrote about this time back in 2006. It was from when I was one of three co-editors of Obiter, the UQ Law School's student comedy magazine (you can read the issue in full colour here with pictures of Sadako crawling out of an iPod and everything...)

If any aspects of the Copyright Act 1968 (Cth) have changed rendering this article legally incorrect now, just keep in mind that it was only a joke and was written two years ago.

And it was probably legally incorrect then too. :p


Intellectual Property Rights In Cursed Japanese Videotapes

The Japanese horror film Ringu (and its American remake) featured a cursed videotape which condemned its viewer to death seven days after watching its series of bizarre images. In the climax of the movie, it is revealed that the only way for the viewer to prevent said horrific death is to make a copy of the tape and screen it for someone else. If not done, the ghost of Sadako Yamamura emerges from the nearest TV screen seven days later Candyman-style, in a mess of matted black hair and kills the lazy arsed viewer with, quite literally, a death stare.

Chances are you’ve seen the famous scene by now, but in case you haven’t, my description really doesn’t do it justice without watching it in the context of the film. You can say “the shower scene in Psycho”, but it just doesn’t have the same impact until you watch Mother’s silhouette rip the curtain away. Sadako crawling out of the TV was one of the most fuck-you-up scary moments I had seen since the final scene of The Blair Witch Project.

Filmic and horror value aside, Ringu (or The Ring) highlights significant problems in the treatment of the legal rights of the undead, particularly the neglect of Sadako’s intellectual property rights in the cursed tape.

It seems somewhat ironic and unfair that for a tortured artist like Sadako to be able to exercise her rights as the author of the work and express herself in an adequate manner, it must done by infringing copyright. It’s a lose-lose situation for her audience: if you infringe, you could be liable under the Copyright Act. If you don’t infringe, she will emerge from your TV and murder you.

First of all, it’s important to note that the video in Ringu would attract copyright protection. It may do so under Part III of the Act which deals with “works” and would be likely to be classified as an original artistic work.

It may also attract protection under Part IV as a “matter other than works”. In the movie, it is revealed that the video originated from a broadcast to a remote cabin on an unknown television signal, where it was then committed to tape. Therefore, it is possible to assume that publication occurred upon broadcast of the images and sounds. Sadako holds copyright as the broadcaster, since the images were being transmitted from her dying (or already dead) thoughts while she was still in the well.

International agreements on copyright have also affected the rights of the undead. Ringu’s success ensured that it would be remade by Hollywood and was done so successfully in Gore Verbinski’s The Ring, featuring a second haunted video and a second murdered girl who emerges from the TV – “Samara”. Japan, the United States and Australia are all parties to the Berne Convention. It is therefore irrelevant which version of The Ring we are talking about, since this international agreement bestows upon Sadako/Samara the right to bring an action in Australia as if she were an Australian national (see Zeccola v Universal City Studios). If she really wanted to sue here.

On the other hand, other international agreements severely disadvantage the undead. The US Free Trade Implementation Act 2004 extended the period of copyright protection under the Copyright Act to “the life of the author plus seventy years”. This not just neglects the rights of the undead like Samara, but creates even more confusion. What happens if the work is created after the author has died? It is unclear whether or not this protection is afforded to authors of published artistic works that are vengeful spirits and/or already dead at the time of publication.

The Australian case law and legislation are, at best, “hazy” on the civil rights of the dead, or even the undead. However, if one interprets it as Samara “publishing” the “work” while she was still alive in the bottom of the well, there would be no issue of her rights as owner of the copyright. Unless of course she was never really alive in the first place, which has been suggested from subsequent Asian sequels to Ringu – kind of a “half-spirit” from hell. And that just makes the matter really confusing.

Of course, if you haven’t guessed already, the most likely defence available to any infringement of copyright in the tape is that Sadako/Samara provides her viewers with an implied license to copy. Licenses do not need to be in writing, and thus can be given, say, ooh, I don't know, over the phone, perhaps?

Sadako/Samara had created a legitimate artistic work from which they have the right to enjoy the benefits. It seems somewhat odd then that the only safe method for patrons to enjoy her work is to have it continuously infringed upon. Why would she impose such a restriction upon her own curse? It just doesn’t make sense. When she calls the doomed viewer, she merely says “seven days” - not “you will die in seven days”. People assume that the impending death is inevitable. But her shyness as a reclusive artist (so reclusive, she lives in a well) prevents her from properly telling the viewers what she really wants — “Please show my work to the world. I have a MySpace and everything..." If you don’t I will murder you in a week.” It’s really her own fault. Sadako is essentially the Blockbuster Video From Hell. “I’m sure other people want to watch this. So be kind. Please rewind.”

So that aside, if one were to view the video somehow, how does one go about defeating this curse? Well, you can use the neglect of the undead under the Copyright Act to your own advantage!

With VCRs going the way of the dodo, it’s going to become increasingly unlikely that copying the cursed video onto tape is a sustainable medium of transfer. However, advancing technology has given us potentially twisted-face corpses the chance to avoid their fates with a little technological know-how. The Copyright Amendment (Digital Agenda) Act 2000 has made it possible for the digitization of works to constitute an act which falls under the terms of the exclusive rights within s.31. Therefore, it should be adequate enough to defeat the curse by digitizing the cursed video to your computer and uploading onto the internet! File sharing programs such as Kazaa and You Tube have made it infinitely easier for a file to be copied and viewed by anyone in the world - as long as one person views the video within those seven day you’ll survive!

And don’t worry about copyright infringement IF ANY – they’re off chasing down people who post Metallica songs and bootlegged
Lost episodes to worry about someone posting some weird David Lynchian shit like this.

BUT if worse comes to worst and you just have to let seven days elapse without copying the video AND showing it someone, why not learn a lesson from the movies? In the Ring movies, Sadako/Samara crawls out of a television screen, allowing her to emerge at her full size – why not transfer the digitized video to your iPod?

So when the seven day time limit is up and you’ve been too lazy to show it to someone else, make sure your iPod screen is the only screen available and she’ll be forced to crawl out of it. She’ll be two inches tall at most! Can you take something that small trying to kill you with an evil eye … seriously? Better yet, transfer it onto someone else’s iPod and trick them into watching it.

So there you have it – the undead have a pretty rough trot under Australian copyright law. No superior court judge is yet to give an opinion on where these individuals stand (or levitate or hobble or lurk) in respect of the law, for fear of being accused of betraying their allegiance to the fully living… or just for the fear of having their brains eaten. Either way, The Ring raises significant issues for future consideration – IP is a booming area and, like the vampire that could very well become tomorrow’s litigant, will eternally be in need of fresh blood.

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