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Sunday, 29 August 2010

A dogged abuse of copyright rules...

Malama Katulwende writes on a recent abuse of copyright by the Zambian Watchdog and Lusaka Times and the issues it raises on the legal and ethical practice of the the websites. At the centre is this article published back in 2008 by UK Zambians and recently abused by the Zambian Watchdog and Lusaka Times without attribution and through some remixing of the content. 

Blogs have recently gained increasing notice and coverage for their role in breaking, shaping and initiating news stories on the Internet. Blogging has thus become a distinctive, alternative media form in its own right – as distinguished from, say, the mainstream media such as newspapers, television and radio stations.

To quote Goldfain and Van der Merwe in Prof. Fackson Banda’s presentation, “Alternative media: a viable option for Southern Africa?”, blogging is “an aggregator of information that encourages dialogue and participation in a society that is flooded with information dispersed by authoritative voices. It is a media platform and has the potential to give minorities a voice.”

For all its potential good, however, blogging can result in legal liabilities, defamation, unethical media practices as well as political and social dangers. Let us take the case of The Zambian Watch Dog and the Lusaka Times.

According to the website http://www.zambianwatchdog.com the Zambian Watchdog is owned by private Zambian journalists who publish breaking news on Zambia and about Zambia on a 24 hour basis. They also publish ‘investigative special reports’ and at times ‘aggregate news’ carried by local media. Their guiding principle is – “We write news regardless of who or what the subject is. We fear no one. We favor no one.”

Recently – on the 20th August 2010 – the Zambian Watchdog posted an article titled, “Mwanawasa was not a great president” by Malama Katulwende on their website. The post coincided with the late Levy Mwanawasa’s memorial and became an instant success. It was read by millions of people around the globe and inspired a flood of comments. The article was also reproduced by another blogger, The Lusaka Times – again as ‘breaking news’. What the Zambian Watch Dog and the Lusaka Times did not inform their readers, however, was the source of the article, when it was published, and who authorized its use on their blog.

As the author of the article I was shocked to read this post in its current form. The original title, “Reinventing Levi: Mwanawasa as a memory site” had been altered to read, “Mwanawasa was not a great president”. Furthermore, the first three critical paragraphs had also been removed so that the piece started somewhat in the middle. Yet what was even more puzzling was the fact that contrary to the recognized norms of journalism, UKZambians was not credited as the publisher and copyright owner of the article.

For me personally, though, I was disheartened that the readers presumed the article was recent when, in fact, it was published in September 2008. The work in question was preceded by “Measure for Measure: Levi’s Legacy on Trial”, which I’d written to dispel the wild claims associated with the late Mwanawasa’s legacy. The reproduced article, however, was not prefaced to place the text in context – though I still stand by every word I wrote. The Zambian Watch Dog and the Lusaka Times had done nothing but copy and paste. They even allowed their readers to throw a cascade of verbal abuse, offensive language and other types of obscenities on the author, late president Dr. Levy Mwanawasa, and some of the current leaders in the Zambian government. I also read remarks which demeaned the Bemba people of the country (of which I am a part) as thieves and plunderers.

Concerned, UKZambians emailed the Zambian Watchdog:
“Can you stop to copy and paste old articles from UKZambians without permission? The article you have reproduced was written a year [and half] ago when this topic was important. Right now, things have changed and people have moved on. Now because you cannot be resourceful enough to produce your own original articles, shamefully you start on this irresponsible way of pasting old article and opening old wounds. This is damaging the image of our respected columnist and UKZambians association with him as can be seen from comments on your website. We demand that you withdraw the article immediately and write an apology about your careless behavior to your readers.”
The Watchdog Team responded like this: “You are an idiot and if you want go to court. Why don’t you ask the one who sent that thing to us. Moron.”

UKZambians then asked me whether I’d authorized the Zambian Watch Dog to reproduce the said article – and I said “no”. I emailed the editor of the blog and kept my editor in copy:
“I have read your exchanges with my publisher, UKZambians in respect of the article, “Mwanawasa Was Not A Great President” which was posted on your website. I did NOT send you the said article, which I wrote in 2008, nor did I authorize the use of it. I think what you should have done was at least contact UKZambians for authorization, then do a write up to explain to your readers the context in which the article was written. It appears to me – from the comments – that they think the article was written a few days ago. Once they understood the mood at the time, they might have appreciated why it was written. As it is, I’ve received unwarranted attacks and all kinds of insults and some people have even misrepresented the facts about my private life. You did not even inform me nor UKzambians that you’d post this article. I just got a mail from someone I hardly know. I also think that as a media, we need to acknowledge each other’s works and not resort to insults. We are in the same business and we have to work together. I trust the Watchdog team will write UKZambians and apologize unreservedly.”
I received a response from their editor:
“Listen you fool, stop wasting my time. We told the other chap who was sending us nonsense to go to court. So why don’t you take your copyright to court? Coward.”
I responded again:
“Sir, when you use someone’s work, don’t you think you ought to acknowledge the source? I am sure the Zambian Watch Dog believes in the ethics of journalism? Whoever sent you my article? Lots of Zambian websites use my work – I don’t mind as long as they acknowledged who published it. Don’t you understand copyright?”
Again I received an acrid retort:
“The article we publish did not come from that thing you are referring to. It was sent to us with the name of the author whom we put. Is that difficult to understand?”
I challenged them on copyright once more – and the Zambian Watch Dog replied:
“If you have nothing to tell us, please keep the silence [!] And how can we know that you are who you claim to be? And what is this UKZambians you are talking about? If people attack you for your work, well, why did you write it? You wanted to write something like that and hide it on a website read by 13 people? And now that it has been read by millions of people you are cowering and want to run away? Nothing has changed my friend from the time Levy died. Apologize? The Watchdog apologizing? You are joking.”
Now the case of the Zambian Watch Dog and, to some extent, the Lusaka Times, raises some legal and ethical challenges of web-blogging. Is journalism all about copying news stories from various websites and tabloids and pasting them on blogs for your readers in defiance of copyright laws? Should blogs respect intellectual property rights at all? What might be some of social, political economic and legal consequences of this form of plagiarism? Again – is the conduct of the Zambian Watch Dog in respect of a reminder to acknowledge the source of information ethically justifiable?

Copyright laws, as I understand them, are the basis on which intellectual property rights are created. To quote Wikipedia at length: “Copyright are exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or fixation. In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses which are covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others.”

Copyright laws were enacted to encourage originality by regulating the copying of inventions, identifying symbols and creative expressions. Without copyright laws, nevertheless, incomes for musicians, authors, artists, scientists and composers would diminish from their intangible assets such as musical, literary, artistic works, discoveries and inventions, words, symbols and designs. Thus copyright laws allow owners of such intellectual property to benefit financially from the labor of their minds, and pay for associated research and development costs. Other benefits are economic growth and innovation in countries where intellectual property rights are strengthened and guaranteed.

The question to consider right now, though, is whether the rights accorded to the copyright owner (such as UKZambians in respect of the articles I write) are subject to the “principle of fair use” in the case in which the Zambian Watch Dog and the Lusaka Times, collectively, copied and reproduced my article “Reinventing Levi: Mwanawasa as a memory site” on their blogs? The answer is “No”. In terms of Section 107 of the US Copy Right Law, for instance, the reproduction of the said article and its alteration may not be said to have been intended as criticism, comment, news reporting, teaching, scholarship and research. The two blogs plagiarized the article and simply pasted it on their websites to make money.

According to the U.S Library of Congress home page, however, the reproduction of my article would have been regarded as “fair use” had the blogs used “quotation of excerpts in a review or criticism for the purpose of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

In my view, therefore, the blogs failed to uphold the efficacy of media ethics which, among other things, required all practicing journalists and the institutions they represent to acknowledge their sources and respect the copyright laws. Yet granting that every blogger and individual stood in breach of copyright laws they way the Zambian Watch Dog and Lusaka Times had done, then I am afraid that institutions which invested in creating a viable and vibrant media would lose out. The bloggers would simply sit tight and wait for newspapers to gather news at great expense, and then copy it out once it were published and make money. This, I dare say, is not what journalism is about. This is fraud and ought to be punished.

The reader will perhaps observe from the email responses we received from the Zambian Watch Dog that these guys are conceited, disrespectful, vulgar and hackneyed. Yet I do not believe that journalists, conscious of their craft and reminded of copyright laws in general, have very much to gain by offending the copyright owners and the creator of the said article. What bloggers ought to do instead is negotiate access to and fair use of news materials with different sources such as UKZambians, The Post newspapers, Times of Zambia, Daily Mail, Reuters, and so on, through mutually beneficial agreements. If they don’t then I am afraid the blogs will be inundated with lawsuits for copyright infringement.

The other point worth of consideration is whether the blogger might be ethically excused for allowing obscene language and other kinds of insults to be posted on their website. From what I have observed so far, though, it is safe to suggest that the Zambian Watch Dog and Lusaka Times have become platforms where different people exchange insults around various topics and hurl obscenities at each other. I have read, for instance, comments which demeaned Zambia’s republican president, Mr. Rupiah Banda and his ministers, the Catholic bishops, and the leaders of the opposition in the most indescribable manner.

There are also comments which suggest that Bembas, for example, are thieves and irresponsible people. Tongas, Lozis and other tribes are also equally insulted or belittled. The blogs carry these ideologies of the tribe, discrimination, racism and other kinds of hatred against groups on the basis of their ethnicity, culture, race and religion almost every day. Although I am personally critical of the government and what our leaders do, I find all this ethically wrong and unacceptable. This is because providing media spaces for bigotry and other types of prejudices could inspire social strife. Blogs should therefore not publish such comments. Much as an individual should always exercise his or her freedom of expression, it is also important to remember that the liberties and freedoms of other people ought to be respected as well no matter how much one disagreed with them.

I have argued the legal and ethical challenges of web-blogging. Blogs such as the Zambian Watch Dog and the Lusaka Times should enter into agreements with other media institutions to avoid copyright infringement and lawsuits. They may also avoid legal liabilities by exercising the principle of fair use of copyrightable material. Copyright laws exist to foster innovation by regulating inventions, symbols and other creative expressions. Furthermore, the blogs and those who run them are better advised to be respectful at all times and delete offensive comments from their websites so that the rights and dignities of all people are respected regardless of their religion, culture, ethnicity and race.

6 comments:

  1. There are clear exemptions against copyright laws. Fair Use is such an exemption.

    § 107. Limitations on exclusive rights: Fair use

    How Current is This?

    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    (2) the nature of the copyrighted work;

    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of the copyrighted work.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


    This is part of US law, and as most of our servers are in the US, their jurisdiction in in force.

    ReplyDelete
  2. This is a very odd situation. News aggregation is still a controversial issue especially when articles are simply copied and not attributed back to the original source. And in this case, the behaviour by the Watchdog is even more egregious because they ‘edited’ the article to suit their spin without the owner’s permission, and I think he’s well within his rights to be upset especially when you see the insults being thrown in his direction. They did not follow the Fair Use rule and have indeed infringed upon the author’s copyright.

    It’s even more disappointing to see the response from the owners/editors of the Watchdog. I’m not sure if what was posted are the responses in their entirety, but regardless of that, responding with such vulgar language is irresponsible and non-productive.

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  3. Miss Bwalya,

    I have similarly received the same treatment from the Watchdog. A while back I posted a story that explained why they went off line for a long time. I was actually trying to help them recapture readers. They sent me a torrent of abuse. We resolved the situation, but I was quite surprised by the unprofessionalism.

    I am sure in time they will improve.

    The future of Zambian media is online and mediums like the Watchdog are first movers with enormous potential.

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  4. Hi Miss Bwalya:

    I am Malama Katulwende. The response from the Watch Dog is as I reproduced it without editing anything....I am still shocked by their conduct.

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  5. Well, I have always felt that Zambia should move with the rest of the world in terms of technology. What I mean is that the IT sector should have been regulated before allowed to expand the way it has with people setting up websites without anyone caring what they do, without that am afraid people will go to extremes and can even set up porn websites without being noticed. Is there any regulation for setting up a website and its contents? Educate me if am missing something...

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  6. It is sad to learn that some Zambian professionals can be allowed to use abusive language in public. The legal profession must learn to respond to advances in technology and help in how to regulate legal issues concerning technology, like copyright laws involving ICT. They ought to provide solutions on a timely basis. They is definitely a need for Zambians to conduct themselves with integrity. For Watch Dog to challenge someone to go to court, they must have looked at the law having no provisions. The problem in my country is that they are no established Institutions to bring to books people who abuse their code of conduct. We need to establish institutions that check on unprofessional performance. For example the police force must have a body to check them e.g A Police watch Dog. Not a newspaper Watch Dog. The journalist need one as well so that they can stop insulting the public. Their job is to inform the public professionally. So, Journalist must be made accountable to professional reporting.

    David January 24th 2012

    ReplyDelete

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