Editing Remix (section)

==Copyright implications==

Because remixes may borrow heavily from an existing piece of music (possibly more than one), the issue of intellectual property becomes a concern. The most important question is whether a remixer is free to redistribute his or her work, or whether the remix falls under the category of a [[derivative work]] according to, for example, United States copyright law. Of note are open questions concerning the legality of visual works, like the art form of [[collage]], which can be plagued with licensing issues.

There are two obvious extremes with regard to derivative works. If the song is substantively dissimilar in form (for example, it might only borrow a motif which is modified, and be completely different in all other respects), then it may not necessarily be a derivative work (depending on how heavily modified the melody and chord progressions were). On the other hand, if the remixer only changes a few things (for example, the instrument and tempo), then it is clearly a derivative work and subject to the copyrights of the original work's copyright holder.

The [[Creative Commons]] is a non-profit organization that allows the sharing and use of creativity and knowledge through free legal tools and explicitly aims for enabling a [[remix culture]].<ref name="remixbook"/> They created a website that allows artists to share their work with other users, giving them the ability to share, use, or build upon their work, under the [[Creative Commons license]]. The artist can limit the copyright to specific users for specific purposes, while protecting the users and the artist.<ref>{{Cite web|url=https://creativecommons.org/about/|title=What we do}}</ref>

The exclusive rights of the copyright owner over acts such as reproduction/copying, communication, adaptation and performance – unless licensed openly – by their very nature reduce the ability to negotiate copyrighted material without permission.<ref>{{cite journal|title=Copyright Act 1968 (Cth) ss 31|pages=85–88}}</ref>
Remixes will inevitably encounter legal problems when the whole or a substantial part of the original material has been reproduced, copied, communicated, adapted or performed – unless a permission has been given in advance through a voluntary open content license like a Creative Commons license, there is fair dealing involved (the scope of which is extraordinarily narrow), a statutory license exists, or permission has been sought and obtained from the copyright owner. Generally, the courts consider what will amount to a substantial part by reference to its quality, as opposed to quantity and the importance the part taken bears in relation to the work as whole.<ref>Mashups, Remix, and Copyright Law</ref>

There are proposed theories of reform regarding the copyright law and remixes. Nicolas Suzor believes that copyright law should be reformed in such a manner as to allow certain reuses of copyright material without the permission of the copyright owner where those derivatives are highly transformative and do not impact upon the primary market of the copyright owner. There certainly appears to be a strong argument that non commercial derivatives, which do not compete with the market for the original material, should be afforded some defense to copyright actions.<ref>{{cite journal|last=Nicolas Suzor|title=Transformative Use of Copyright Material|journal=LLM Thesis|publisher=[[Queensland University of Technology]]|year=2006|url=http://nic.suzor.com/publications|access-date=2012-08-14|archive-date=2010-05-05|archive-url=https://web.archive.org/web/20100505064546/http://nic.suzor.com/publications/|url-status=dead}}</ref>

[[Stanford Law]] professor [[Lawrence Lessig]] believes that for the first time in history creativity by default is subject to regulation because of two architectural features. First, cultural objects or products created digitally can be easily copied, and secondly, the default copyright law requires the permission of the owner. The result is that one needs the permission of the copyright owner to engage in mashups or acts of remixing. Lessig believes that the key to mashups and remix is "education – not about framing or law – but rather what you can do with technology, and then the law will catch up".<ref>{{Cite web|url=http://eprints.qut.edu.au/4239/1/4239.pdf|title=Mashups, Remix, and Copyright Law}}</ref> 
He believes that trade associations – like mashup guilds – that survey practices and publish reports to establish norm or reasonable behaviours in the context of the community would be useful in establishing fair use parameters. Lessig also believes that Creative Commons and other licences, such as the [[GNU General Public Licence]], are important mechanisms which mashup and remix artists can use to mitigate the impact of copyright law.<ref name="remixbook">{{cite book |last=Lessig |first=Lawrence |title=Remix|year=2008|publisher=[[Penguin Press]]}}</ref> Lessig laid out his ideas in a book called ''[[Remix (book)|Remix]]'', which is itself free to remix under a [[CC BY-NC]] [[Creative commons license|license]].<ref>[https://www.wired.com/2009/05/download-lessigs-remix-then-remix-it/ Download Lessig's Remix, Then Remix It] on [[wired.com]]</ref><ref>[https://web.archive.org/web/20100425054011/http://www.bloomsburyacademic.com/remix.htm remix] on [[Bloomsbury Academic]] (2008, archived)</ref>

The [[fair use]] doctrine allows users to use copyrighted materials without asking the permission of the original creator (section 107 of US federal copyright law). This doctrine specifies limitations on borrowing copyrighted material. Material borrowed falls under fair use depending on the amount of original content used, the nature of the content, the purpose of the borrowed content, and the effect the borrowed content has on an audience. There are no distinct lines between copyright infringement and abiding by fair use regulations while producing a remix.<ref>{{cite web|title=Fair Use|url=http://www.copyright.gov/fls/fl102.html|work=U.S. Copyright Office|access-date=13 December 2011|archive-date=20 December 2007|archive-url=https://web.archive.org/web/20071220093741/http://www.copyright.gov/fls/fl102.html|url-status=dead}}</ref>  However, if the work that is distributed by the remixer is an entirely new and transformative work that is not for profit, copyright laws are not breached.{{Citation needed|date=April 2018}}  The key word in such considerations is transformative, as the remix product must have been either sufficiently altered or clearly used for a sufficiently different purpose for it to be safe from copyright violation.

In 2012, [[Canada]]'s [[Copyright Modernization Act]] explicitly added a new exemption which allows non-commercial remixing.<ref name="WIPO2015_4">{{cite web|url=http://www.wipo.int/wipo_magazine/en/2015/03/article_0006.html|title=Remix Culture and Amateur Creativity: A Copyright Dilemma |date=June 1, 2015 |access-date=2016-03-14 |first=Guilda |last=Rostama |publisher=[[WIPO]]|quote=Canada is one of a few countries, if not the only one, to have introduced into its copyright law a new exception for non-commercial user-generated content. Article 29 of Canada's Copyright Modernization Act (2012) states that there is no infringement if: (i) the use is done solely for non-commercial purpose; (ii) the original source is mentioned; (iii) the individual has reasonable ground to believe that he or she is not infringing copyright; and (iv) the remix does not have a "substantial adverse effect" on the exploitation of the existing work.}}</ref>
In 2013, the US court ruling ''[[Lenz v. Universal Music Corp.]]'' acknowledged that amateur remixing might fall under fair use and copyright holders are requested to check and respect fair use before doing [[DMCA take down notice]]s.<ref name="WIPO2015_3"/>

In June 2015, a [[WIPO]] article titled "Remix Culture and Amateur Creativity: A Copyright Dilemma"<ref name="WIPO2015_3">{{cite web|url=http://www.wipo.int/wipo_magazine/en/2015/03/article_0006.html|title=Remix Culture and Amateur Creativity: A Copyright Dilemma |date=June 1, 2015 |access-date=2016-03-14 |first=Guilda |last=Rostama |publisher=[[WIPO]]|quote=in 2013 a district court ruled that copyright owners do not have the right to simply take down content before undertaking a legal analysis to determine whether the remixed work could fall under fair use, a concept in US copyright law which permits limited use of copyrighted material without the need to obtain the right holder's permission (US District Court, Stephanie Lenz v. Universal Music Corp., Universal Music Publishing Inc., and Universal Music Publishing Group, Case No. 5:07-cv-03783-JF, January 24, 2013).[...] Given the emergence of today's "remix" culture, and the legal uncertainty surrounding remixes and mash-ups, the time would appear to be ripe for policy makers to take a new look at copyright law.}}</ref> acknowledged the "age of remixing" and the need for [[Copyright reform movement|copyright reform]].