Tuesday, 31 December 2013

My Annual Copyright Rant

On an irksomely regular basis, the question of copyright infringement raises its ugly head and this week I received an email from someone on this very subject.

She said in her email that she had signed up for a Jacobean embroidery course in her hometown. As the classes progressed, she became more interested in this type of embroidery and began searching the internet. She was surprised to see that a portion of the design that her instructor was using for her class was the exact copy (colors, stitches and design elements) of one of the motifs in one of my designs, a design that has been widely published. During one of the classes, one of the students asked the instructor how she develops her designs. Despite having claimed in the notes that the design was her illustration, she said that she had a part of the design and then just added another part. "She gave you no credit at all".

My correspondent went on to say that she felt very conflicted about this because she is sensitive about copyright issues and the rights of artists to protect their work, especially when this is their source of income. She continued by saying, "I am even more concerned after reading your comments on your blog about requests from clubs to use your designs for free. Perhaps you have licensed the instructor to use a portion of your design and I am over reacting. But, maybe not. Or, perhaps this design is a historical one, like quilt blocks and okay to copy." She closed her email by asking me for my thoughts.

And give her my thoughts, I did. Copyright infringement is one of my hobby horses, partly because we live in a country which has a reputation second only to China for this crime and also because I realise that, because the subject does not come into the school curriculum many people, unless they have had reason to become informed, do not know that the concept even exists. So, what follows is much of my reply to her.

Some years ago I discovered that a teacher in Johannesburg was copying my designs, printing them on fabric and passing them off as her own to her students. This discovery happened quite by chance as I had popped in, on my way out of Johannesburg, to see her about something else and happened to spot some packs for sale, packs that were quite obviously my designs (in their entirety) but marked as her products. A person normally given to knee jerk reactions, on this occasion I hardly reacted and didn't say a word. After I left, I got onto the highway and commenced the long drive home, steaming. If you had overtaken me you might even have seen smoke coming out of my ears. About two hours into the journey my husband, who is a lawyer, phoned to see how I was going and I blurted out the whole problem to him, as one does. He immediately went into lawyer mode, telling me my rights under the law, the solutions that I had, and told me I should have bought one from her as proof (not possible under the circumstances). But I said to him, wait. I'm a woman. I don't have testosterone and I don't immediately go into fight mode. Let me think about this, we'll chat tonight when I'm home. To be fair, he doesn't go into fight mode. He's the calmest person in the world. He was just trying to help.

By the time I got home, having driven for six hours, I had decided that I needed to research the copyright thing fully and asked my husband to give me a few days to work out some questions, that he would then answer, from a legal point of view. I knew about copyright and I tried not to infringe it, but I needed to know more and, specifically, how it applied to what I do. I asked him about seven or eight questions, most of which are irrelevant to this situation, but one that was relevant. Incidentally, the question that, for me, was the most important of all of them.

Jacobean embroidery, by its very nature, relies on traditional shapes and motifs. When drawing a Jacobean design you have to use motifs that are either a copy or are very similar to motifs that have been used for hundreds of years. It wouldn't have the Jacobean look if you didn't. So, if a designer were to, say, take a motif from a piece of wallpaper, another from a book, yet another from an embroidery design and so on, then weave them into a design of her own, would that constitute an infringement of copyright?

The reason why I needed to know this was because all of us, no matter how clever or talented we are, have to fall back on what has gone before and I didn't want to accuse someone of copyright infringement when I, myself, take inspiration from - well - everywhere.

He came back to me a few days later with a no-holds-barred legal opinion. Needless to say, it was in legal speak, a whole other form of so-called English, and I had to ask him to translate much of it for me. Not having Ritalin to hand for concentration, that took a while. Fortunately I am not completely stupid and, having worked through it with him, I not only understood it perfectly but was also, eventually, able to write articles and discuss it with authority, using his legal opinion as my guide. One of those articles appears on my website at http://hazelblomkamp.co.za/useful-information/copyright-information and if you would like to know more about the subject, you are welcome to read it.

For the purposes of the current problem, though, we only need to interpret the following.

First of all, our country, is a signatory to the Berne Convention, which deals with copyright and applies to all countries that are signatories, which includes pretty much all the countries that we need to worry about. On that specific question he advised that if a design were to land up in front of a judge and he or she was required to make a decision, that judge would look at whether the design could have come into being without the infringement. In other words, that the infringing elements form the basis of, essence of, and majority of the design, that without them the design could not exist. If that proves to be the case then the second 'designer' would be guilty of infringing copyright.

So, if your instructor has used one element of my design and surrounded it with elements from elsewhere, she is not infringing my copyright.

That does, of course, brings us to a whole other place. Ethics. It's not the same as law and sometimes what is legal is not necessarily ethical. Ethics are somewhat esoteric, hard to pin down and what might be ethical to one person may not be to another. They should be universal, but they aren't. Not in all aspects. My personal feeling is that if you are going to 'take inspiration' from something, you should never copy it in its entirety, which seems to be the case here (colours and stitches) and that if you do you should, at the very least, acknowledge that you have done so. Probably your instructor should at least acknowledge her source and she's silly if she doesn't because that design appeared in Inspirations Magazine about two years ago. Many people (worldwide) have seen it, stitched it, used it, ordered it from me. I taught it at Koala Conventions in Brisbane earlier this year. So it is very much out there and for the sake of her own reputation, she would be wise to at least give it a nod.

I would be lying to you if I said that I had never copied anything. I have, particularly while I was developing my 'talent'. I watched an interesting Charlie Rose talk show in the last year or so, the subject being 'The Creative Brain'. Apart from a neuro-scientist or two, a number of artists were on the panel. All of those artists, without exception, said that their learning process included wholesale copying. It was how they developed their personal styles, and that after years of copying they found that the style was embedded in their psyche and that they were producing completely original works in the same style. I found that interesting because that has been my own experience. After all, after thousands of years of human endeavour on this earth, there can be very little that hasn't been done before.

For the last seven or eight years I have not bought Jacobean, or indeed any embroidery, books. The only books I buy nowadays are stitch guides and books on techniques, particularly historical techniques. This is partly because I have reached a point where I don't find inspiration in books anymore, but mostly because I don't want to be influenced by other embroiderers. I want to be completely original. And I am, by and large, getting that right. When I draw a Jacobean design I no longer look at what is being done out there. I now have my own style and am able to draw my own shapes and motifs without reference to anyone else's work, be it William Morris or a current designer. But it took me years to get there. The interesting thing is that, having decided to do that, I find that I have far more original thought than I had ever imagined I would and that I get so much satisfaction from being original. Actually, satisfaction is not really the right word. Pride would be more descriptive. A deep, personal, warm sense of achievement.

But even with all of that, I have to acknowledge that I am still not completely original. That's impossible because I am inspired all the time. It might be an upholstery fabric, or a piece of wallpaper or, most recently, a trip to Russia and Ukraine where there is quite the most exquisite art and craft. Gosh, that trip inspired me. But there is a large gap between inspiration and copying. And certainly those that take something in its entirety (even a motif) are not inspired. They are copying, even though you might have a hard time proving it in a law court.

The solution to your dilemma? On the one hand, at least your tutor is promoting hand embroidery - which is in danger of disappearing - but on the other if she is saying that her work is completely her own (as she appears to be doing when she lays claim to being the illustrator) then she not being honest with herself or her students. I think that, paticularly as you are in a town where there is limited opportunity, you should continue learning from that teacher, despite your misgivings. For your own sake. As you said to me in your email, you are enjoying the embroidery and it would be sad to give it up because you've lost respect for that aspect of her character. Take what you can for your own selfish needs and in return, give back by using any opportunities that arise to discuss the ins and outs of copyright and ethics in class. She might learn something and so might your fellow students.

I feel I must add here that if she had emailed me to ask for my permission, I would have given it. I often do. Yes, I derive an income from what I do, but at the same time if a person is starting off in the business of designing embroidery, I am the first in line to help. As I've often said, I'm not a particularly generous person but we are, in a sense, all in this together and we need to help each other.

As to my original dilemma? The one that got me started on investigating the whole issue of copyright in the first place. Because I am a person who dislikes confrontation, I initially did nothing. I knew I should be doing something, but couldn't quite bring myself to do the deed. Then, about six months later a shop-owner phoned me prior to a workshop that I was going to be doing at her shop in Johannesburg, to tell me that somebody had not wanted to book on that workshop. Her reason being that I was copying everything that this aforementioned Johannesburg teacher was designing. So, I had to set the record straight, for my own sake. I went round to see her. Very reluctantly, I might add. She claimed, with a sweet and innocent voice, that she didn't know she wasn't allowed to do that. But I knew that she did, because she had been confronted on the issue before. So silly. They think that people don't talk. It's a small community that we inhabit and there has always been a grapevine, even before the days of Facebook and Twitter.

We parted on amicable terms but I was cross when I drove out of her property. Absolutely livid because she had tried to fob me off. Maybe even thought I was a bit stupid and that she had got away with it, yet again. So, without going into too much detail, I named and shamed her. Let it be widely known that she had been confronted on the issue, so that she could never again claim that she didn't know that it was wrong. That really set the cat among the pigeons and, here's the interesting thing. I was the one who received the hate mail. But I knew that I was the one in the right, that I was actually the victim here. So I quietly stuck to my guns, largely ignored it (although I did put the phone down on one particularly obnoxious person) and it passed with, I must say, my having made some really good friends along the way. Other original designers, with identical problems, who have become really firm friends.

I thought she wouldn't dare to copy me again, so I'm going to tell you a really funny story.

About ten or twelve years ago I bought a book by mistake. I was in a hurry, thought it was a stumpwork book, and then got it home to find that it was nothing of the sort. It was a book on needle lace. My initial reaction was disappointment and the fact that I had wasted money on what was, as it happens, quite an expensive book. But the more I looked at the book, the more I loved the look of the needle lace and eventually set about working out a way to incorporate the techniques into my embroidery. Months and months of work, I might add. In essence, doing that is what put me on the map, embroidery-wise. It is because of that, largely, that I have ended up writing books and travelling the world teaching what I do. I am not going to say that it has never been done before. It probably has. But certainly in recent years, it is me that has introduced the idea of using needle lace techniques, to the extent that I do, in embroidery and, specifically, Jacobean embroidery.

So back to the funny story. I was a vendor at a convention in Johannesburg during September this last year. A group of ladies were at my stand admiring my embroidery and during the course of our conversation they told me that they were learning needle lace techniques from (insert name of aforementioned Johannesburg teacher). 'She invented it for embroidery, you know'!!!!!!!!

What can you do? After you've picked you jaw up off the floor, you just have to laugh and reaffirm in your mind that actually, all you can do is to keep one step ahead of every one else. I know that, for now, I have that in me. That as I said, earlier, I have original thought and I must not be lazy. I must continue to be inventive. Because that's the nub of it. But for the pernicious practice of claiming it as your own, copying others is just laziness.

So, that was my rather long reply to this poor lady who had emailed me out of concern, not expecting to get a novel to read in return. I am grateful that she did contact me, not because I can necessarily do anything about it but because it reminded me that, on at least an annual basis, one needs to raise the issue of copyright infringement. As a way of keeping the topic alive, as a way of keeping the discussion going, as a way of educating the public and as a service to my fellow designers, whose work is being copied just as much as mine is.

A couple of years ago, my annual article on the subject was a somewhat tongue-in-cheek epistle, although I was being perfectly serious. When I've posted this missive, I'll post that one for you to read. Those of you that don't live in my part of the world won't recognise many of the names of the people mentioned. Suffice to say, they are all corrupt politicians in our country, or their drug-smuggling spouses and our erstwhile Commissioner of Police. Enjoy.

A Previous Copyright Rant (and nothing's changed)

This article, written in 2011, was published in South African Stitches Magazine.

It’s supposed to be autumn, but here we sit in hot and humid weather having been warned on the weather report last night to expect a high discomfort index. I’m tired of summer. We’ve had enough now and need some cooler weather. I usually find my trip to Hobby X in Johannesburg is a welcome relief from Natal’s hot and humid early March weather, but this year the Reef got hit by a heat wave during that week, so no respite. However, it was still good to be at Hobby X. It’s a place where we meet up with our friends from all over the country, catch up with news, share a few glasses of wine and supper, then return home feeling happy. And this year was no different, albeit that I received an interesting phone call from Dude the day after the show closed.

There I was at The Dome, supervising the loading of our boxes to be freighted home having had a successful show, knowing that my husband had flown off to Cape Town on business and that Dude was looking after things at home. Life was good. But you should never, ever get too comfortable. Things were not going well for Dude. He’d had a ‘small’ accident in the Patriarch’s car the night before. Could I please pass on the glad tidings to Father? It’s always the mother that has to break that sort of news, isn’t it? On asking questions - once I had established that he was not injured - it turns out that Bru needed to be taken home late on Sunday night and Dude decided that, instead of using the petrol in his own car, he would use the petrol in Father’s car. It was standing there, not being used, so why not? I could have told him why. On the way home he hit a hole in the road that should have been covered with a metal plate, it burst a front tyre, he lost control and crashed through the railings of the Duzi River bridge. Thankfully he landed on the bank and not in the river. I duly phoned Father, begging him to be gentle with the poor boy who was feeling as bad as he possibly could feel. Needless to say, the accident was not that ‘small’. The car has been written off, Dude has learnt one of his hardest lessons and Father’s brand new car will be delivered today. It’s been an expensive month!

But onto something that interested me up on the Reef. I was driving on the R21 from Pretoria to Joburg when I noticed a billboard advertising a website called ‘unashamedly ethical’. I was interested enough to have a look at it when I got home, but more than that it got me thinking about the whole question of ethics as it applies to what we do. The thing is that there is a national pre-occupation with corruption, theft of public funds, jobs for relatives - no whole mining companies for relatives - and Shabir Sheik playing golf while he should be rotting in jail. Are we entitled to complain and make snide remarks about all of this? I think not and I’m going to tell you why.

I once noticed half a ton of cigarette butts in the stones outside Dude’s window. They were the result of the happy get-togethers that happen in his bedroom. I’ve described them before. Everyone slouching over Applemacs, chatting, updating Facebook, drinking and smoking. They don’t use the ashtrays which we can provide. Oh no. The butt just gets hurled out of the window. At the time of my discovery, I didn’t say a word. Just bided my time and it was only a few days later that Dude went off pop over the filth and litter that we have in our city, with its bankrupt municipality. And that was my chance. I told him that he was a hypocrite. You can’t complain about people who don’t use rubbish bins if you and your Chinas can’t even be bothered to look for an ashtray

People who count needlecrafts as their hobby are not unsophisticated people. Most of them are white women, educated, living in leafy suburbs, with two cars in the garage and a swimming pool in the garden. In the kitchen is a maid and in the garden is a gardener. Many of them are to be found taking up space in church pews on a Sunday. But as comfortably middle-class and self-righteous as they are, they are no better than petty criminals when it comes to copyright infringement and getting a bargain. They just don’t get it. They really don’t. And I’m at a loss to explain why.

Let’s start with copyright infringement. For many years there were sanctions in place against South Africa and many people speculate that this is where the problem started. You know, they won’t sell it to us, so we’ll just copy it. I think that’s a weak excuse. There haven’t been sanctions for nearly twenty years now. But the copyright culprits are still at it, fingers elegantly poised over photocopier buttons, churning out page after plagiarized page. But, let’s be kind and say that is the reason why, if you try to explain the concept of copyright to some people, what you get in return is a blank stare. You know, the door of the mind is open but whatever goes in hangs around in the entrance hall looking confused. They cannot process the fact that if someone has designed, written, composed or otherwise created something, that person owns it and all the rights to it. It is the creator’s intellectual property. An abstract concept, I agree, but surely not a difficult one to understand? If that confused person visits her doctor, who uses his intellectual capabilities to diagnose her symptoms, she expects to pay for that? Paying royalties to an artist is no different. So that’s the first category in the copyright mafia. The ‘Dumb and Dumber’.

The next category is the Multiplugs. (So-called, because they are like electricity thieves in the townships. You’ve seen it on the news. A roadside transformer with an illegal cable and a multiplug, put there by a helpful member of the community to assist all stakeholders. It provides free electricity to all the houses in the street.) Multiplugs move in groups, know where all the best shops are, visit the craft shows and, of late, have learnt how to surf the internet. They buy one book then make photocopies for the other members in the group. The person who takes on the copying job also makes copies for her sister, her auntie, her next door neighbor and her daughter’s gay friend who is into needlework. Many of the Guilds are the worst culprits here. They know that what they’re doing is illegal but they don’t care because in a country where prosecutors’ time is taken up with headless bodies and the rape of 4-year olds, they know that even if a docket were to land on a desk in the Department of Justice, it would be marked ‘decline to prosecute’ because this country has bigger fish to fry.

The Multiplugs category has a sub-category called the Heavy-Duty Multiplugs. These are the ladies that have gone abroad and done a workshop. They buy all the books and goodies, come home and quickly set themselves up as teachers of whatever it is that they have learnt. Very often they will claim that only they have the rights to teach the techniques. Now, on one level that’s probably okay. One hopes, though, that they’ve had the manners to ask the person who taught them for permission to pass on the techniques. It is on the other level that it all goes terribly wrong. Those books they bring back get copied, page for page, chapter for chapter, and get sold to their students. This is wholesale theft of intellectual property. They think that because they sit on the bottom tip of Africa they won’t be found out. Well, the world is not as big as it used to be and they will eventually be caught. It’s not a good idea to be a Heavy-Duty Multiplug. It could cost you your life savings if say, an American author gets wind of what you’re doing and decides to sue. Remember Americans can pay local lawyers in US dollars. With our exchange rate? Do the sums.

The next bunch is the 13% gang. They’ve heard of copyright, but they think that they have worked out ways to get around it. They say that you can pass someone’s design off as your own, provided you have made 1/13/25 changes or that 10/20/25% has been altered. The numbers vary depending on who you’re speaking to. I don’t bother getting into a debate with them. The fact that I’ve been married to a lawyer for nearly 30 years and, with his assistance, have gone into copyright law in great detail, would mean nothing to them. They always know better. They’ve got some cousin’s brother-in-law’s sister’s boyfriend whose father’s cousin’s stepson is a magistrate and that person told them that 13 changes would mean they weren’t copying! Well, they are wrong and if they were ever to land up in front of a Judge - the real thing with red robes - they would get a very nasty shock.

I have a favourite stupid remark that always forms part of any discussion on copyright. It has been known to cause much mirth in our home and it goes like this. “But copyright is so complicated; it’s so hard to understand.” Oh please. Complicated? Don’t copy. Don’t copy. Don’t copy. Keep your fingers away from the photocopier button. That’s not complicated, is it?

Let’s move on to the bargain hunters. I’m going to call them the ‘Rights Without Duties Brigade”. There are some businesses who sell DMC threads at very, very low prices. Prices so low that, at first, you doubt whether they can be genuine DMC threads? Well, I’ve looked at them and decided that they probably are. So how are they able to sell them at those prices? I buy them through the proper channels and I can’t do that. You can’t sell things for less than you’ve paid for them. So, let me enlighten you. They have relatives who travel. Some of those relatives are pilots or air hostesses. Others are regular travelers who form part of their extended families. These relatives come back into this country with suitcases full of threads and by luck – but more likely, design – they stroll through customs without declaring a thing and without paying a cent in import duty. Everyone loves a bargain and so do I. I won’t deny it. It stands to reason. If you can somehow manage to spend less on something, then you can treat yourself to something else. It’s simple economics. But buying things that have been smuggled into the country without import duty? That’s a bit like buying the alleged Cheryl Cwele’s alleged drugs brought in by alleged mules allegedly from South America.

It’s all so deliciously irritating and so very amusing to notice the hypocrisy. Of course everyone must do what they want to do, I wouldn’t dream of suggesting otherwise. But if you recognize yourself here, please remember that you may not complain about Duduzane Zuma’s shares in Arcelor Mittal, Shabir Sheik’s golfing habits, the thugs that had Jackie Selebi in their pockets and, indeed, you cannot be outraged when your house is broken into. There is no purpose to be served by putting criminal acts into categories. Crime is crime. Corruption is corruption. It’s that simple.

As an up to date addendum to this article and on the subject of bargain hunters, the "rights without duties brigade", our South African DMC importer and distributor went into liquidation about a month ago. Whilst not completely as a result of the abovementioned customs duty dodgers, the Euro/ZA Rand exchange rate having played a part too, I happen to know that stranded cotton was the mainstay of their business and that having reduced so because of these criminals, they eventually had to close. What that means of course is that unless another ethical agent comes to the fore, we are going to be forced to order from guess where, unless we bring it in ourselves (which I am investigating). What the people who bought from the dodgy dealers didn't consider while they were busy saving their pennies and were so pleased with themselves was that these dealers only brought in stranded cotton. Not perle threads, not metallic threads, not dentelles threads…….. I could go on and on but suffice to say, we are all going to suffer.