A Kookaburra (image by Eva Hejda)

COURT decisions, particularly those involving heinous crimes, are typical talkback and tabloid fodder. But how often does the heinous crime that has the public up in arms revolve around the obscurity of copyright law?

Last week, the Federal Court found that Men at Work had infringed the copyright of Larrikin music in its iconic early ’80s hit Down Under with that flute riff lifted from Kookaburra Sits In the Old Gum Tree. The reaction seemed to range from the bemused to the incredulous. Comments on news websites and online forums have described the decision as “plain stupid”, “an utter crock”, “disgusting” and “crazy.”

As someone who has long been frustrated with absurdities of copyright, the decision didn’t surprise but the reaction certainly did. I suspect that the reaction has been so stark for a few reasons. The first is that Down Under is a pop classic. It’s one of those rare works of any genre that has transcended the pop charts and wedged itself into the national psyche. The court has questioned its very existence.

Think about that. Imagine if a song that, for better or for worse, has been associated with defining moments of our national identity was never created? Today, without the kind of legal agreement that most artists struggle to negotiate, Down Under would never have been recorded. Inevitably, tomorrow’s favourite songs risk being lost forever for what might debatably be described as homage, similarity or subliminal referencing.

The implications go beyond this case. The practical reality is that, today, all sorts of works are routinely not recorded or created for the want of a licensed sample or pre-emptive permission. The trend is spreading into other art forms.

Try filming the Sydney Opera House. Will the estates of Brett Whiteley or Ken Done find themselves in court as the result of an overzealous future application of the Opera House trademark? Will future generations of artists be sued for painting, videoing or photographing it?

Implausible, but possibly yes, and not much more implausible than this decision might have seemed in the 1970s.

The second source of the outrage is that it is the owners and not the author who brought the case. Kookaburra’s writer Marion Sinclair died a decade after the Men at Work song was released and there’s no suggestion she ever objected to it.

The decision reinforces the argument that a set of rules designed to protect artists, creators and innovators has become the domain of profiteers, speculators and litigators. At its worst, copyright law is evolving from a set of legal protections to an almost predatory casino industry. If you’re on the wrong end of it, copyright can resemble a protection racket to extract dollars from creators for even casual, creative, referential and reverential use of works they honour and love.

The final sense of disbelief stems from a more basic shock that the case has been brought now. How can a similarity that was barely remarked upon for nearly 30 years suddenly be regarded as blatantly ripping off someone else’s intellectual property? Is there no statute of limitations on these things? Some common-sense reappraisal of copyright is desperately overdue. A system designed to reward innovation is increasingly stifling it. A system designed to empower creators is alienating them. The law has drifted further and further away from forums where artists and creators have any say and towards a system wherein the lawyers, lobbyists and profiteers are writing rules that serve their interests.

Artists need to reassert themselves in the debate. A healthy right to reference and draw from the culture around you is vital to contemporary artistic expression. It is vital to innovation – the very thing the copyright system is supposed to encourage. Surely we can open up the system, take out the lawyers and profiteers and switch to a system that actually encourages appropriate use and reuse? Work that is drawn from or references the work of others is natural and inevitable; what’s missing is a simple and proportionate mechanism to ensure that they are compensated. It’s been a difficult debate to get started, but perhaps this decision will be the catalyst for it. No doubt the popular backlash will come with consequences. You mess with unofficial anthems at your peril.

HOW often does it have to happen? How many times has government – in order to solve one problem such as late-night violence and antisocial behaviour in notorious nightclub zones – implemented a crackdown that inadvertently sideswipes a whole range of people who had nothing to do with the problem in the first place?

Call it the law of unintended consequences. The liquor licensing crackdown that has caused the closure of the Tote is just the latest in a long line of botched decisions, bureaucratic entropy and poorly-thought-through policy impacting hard on artists and creative communities. It has got to stop at some point, surely?

Surely we could start to think about this stuff before we pass stupid legislation? The sad thing about unintended consequences is that they are rarely unpredictable. It was obvious from the moment that the new licensing regime was mooted that it would hit cultural venues far more harshly than mega-nightclubs. The Tote fiasco has unfolded more or less as I predicted in these pages back in November.

Remember the crisis of public liability insurance a few years back? A litigious culture, buck-shifting down the government chain and ludicrous over-regulation caused a wave of festivals, venues and events to close as liability premiums skyrocketed. The reasons behind this had little or nothing to do with artists or arts festivals – in more than 15 years, there hasn’t been a single claim against any event that I’ve been involved in or attended. Yet I can think of plenty of events and organisations that would have spent more on insurance than on paying artists in that time. It killed the ambitions of a lot of young artists dead. How many more potential drawcards or community events never made it into being for the overinflated cost of an insurance policy?

Even established events are constantly being upended by changing rules. It’s almost an annual ritual that the Melbourne Fringe Festival suffers a new round of zealotry that kills off street parties, forces venue and licensing crackdowns or reshuffles shows. Yet how often is violent, unsafe or antisocial behaviour seriously associated with Fringe events?

I’ve had so many insane interactions with bureaucracy that I’m pounding the keyboard as I think about them. Safety rules sensibly designed for industrial workplaces enthusiastically and cripplingly misapplied to small art galleries. “Best practice” building codes lumping performance venues with six-figure bills to move a perfectly functioning door barely an inch. Crippling compliance rules gradually destroying the live music and performance scene while comparatively lax and lucrative incentives encouraged pubs to put in poker machines.

There’s a real reason why cultural venues and events are hit hard by institutionalised stupidity: most people running them aren’t really out to make money. Mostly they are trying not to lose money. They are trying to maximise the cultural value of what they do and not maximise the return on their financial investment and as a result, they don’t have money to burn.

A good thing it is. If there weren’t people trying to make the world interesting, every shopfront would have become a chain store and every pub would have become an apartment block years ago. Consequently though, cultural activity is often economically marginal and cultural venues will disappear long before strip clubs, meat markets and booze barns when a major new cost like increased security is applied indiscriminately. They will always struggle when tone-deaf governments fail to recognise that regulation should be proportionate to risk and impact.

Unfortunately, artists fail to lead in this area. Generally, they take regulatory issues for granted while second-division issues such as funding programs and capital works grab the lion’s share of the attention. It’s back to front. In any truly vibrant culture, the main game is how easy it is to put on show, play a gig, or start a venue. If the culture is healthy at that level, then it will be vibrant and dynamic. If it’s not, then all the architect-designed arts centres, funding programs, application procedures and guidelines in the world won’t save it.

If governments can’t twig to the policies, maybe they’ll twig to the politics of what communities value. If the government can’t spot the difference between the Tote and a King Street nightclub, perhaps people will let them know at the polls.

Dan Hill of the blog City of Sound fame (and much more besides) has written a piece for the current Architecture Review Australia about ‘bottom up planning’ or ‘emergent urbanism’ as he prefers to call it. In the article and the accompanying blog post he uses Renew Newcastle as a strong example and says some very nice things about us.

His definition of ‘emergent urbanism’:

It partly concerns increased transparency over the urban planning process but also, and perhaps more interestingly, how citizens might be able to proactively engage in the creation of their cities.

Dan’s post reminded me that at some point i do need to write a much longer post/ article/ book about my recent thinking in this area and what i’ve learned from the Renew Newcastle experience. In trying to explain where the thinking behind Renew Newcastle resides i’ve taken recently to using an analogy of cities as made up of hardware (built environment, physical design), operating systems (rules and regulations) that are constantly being contested and designed and yet there is almost no thought whatsoever going into the applications that those systems are put to.

It seems almost that governments, urban planners, community activists at times all run under the assumption that the only application anyone wants to run is “property developer.exe” and are constantly contesting how best to do, to manage, or to thwart that. Yet in my experience there are many resourceful people with initiative and imagination trying to run other other applications but the systems are not designed to cater for them. I think Renew Newcastle is best understood as an example of a system that is. In the absence of any control over the hardware and operating system it is an exercise in trying to run totally different applications on the city.

Anyhow, it seems to work. Of Renew Newcastle, Dan says:

I can think of few more positive examples of how to quickly make a genuine difference in cities I.e. not just at the surface layers of urban design, as important as that is, or festivals, or marketing, but at the very core of economic, cultural and social sustainability, with all the ensuring knock-on effects for repairing urban fabric and civic confidence. This is why cities exist, after all, and for Marcus and his colleagues to have addressed this aspect directly, with literally no funding, is thoroughly inspirational.

It is a good prompt to try and flesh out that thinking a little more. If anyone running an architecture/ urbanism type event, journal ever wants me to have a go at fleshing that out i’d love an excuse to.

Read the full article on the City of Sound blog.

After years of ‘running on the sly’, one of Sydney’s leading underground jazz clubs is becoming a legal venue.

An infamous Sydney underground jazz venue is finally going legit. After nearly six years operating ‘505′ off the record and strictly hush-hush, recent changes in licensing laws and compliance regimes as well as a change of venue have finally allowed cofounders Kerri Glasscock and Cameron Undy to make what they do legal.

Back in 2004 they established the original 505 venue at one of the lowest points in Sydney’s live music history, “POPE [Place of Public Entertainment] licensing was unbelievably expensive and venues had turned away from hosting live music. We decided that all our community was missing was a supportive space and so we decided to create 505,” Glasscock says.

505 began as a space for the local theatre and music scenes to meet, collaborate and present work. As time moved on it gradually into one of Sydney’s leading underground jazz venues.

“Running gigs on the sly has actually worked out to our benefit in many ways,” Glasscock says, “It has meant that we were able to build up a solid audience base of dedicated music lovers who because of the nature of the space had to hunt it out, which meant we have a very respectful and appreciative base to now move forward with.”

Read the full story on the ABC Arts site.

In my spare time I’ve been working with Arts NSW to try and turn the Renew Newcastle project into a template for other organisations and areas to follow. I’ve started by writing up a “how-to” guide based on the Renew Newcastle experience. It’s both a how-to and also a pretty good overview of the logic and thinking behind the Renew Newcastle scheme. You can download it here.

My hope is to grow it into something thorough that will encourage other groups to try and do the same in their parts of the world.

We’ve also managed to get the NSW Planning department to put together a guide to navigating the planning system for temporary projects. You can download that from here.

A third document of legal templates should be due in the not too distant future along with a much more comprehensive website. Let me know if you have any questions or there is anything that isn’t clear.

Art is often discussed in reverent tones , we invest in it, create daunting palaces for it. In the scale of reverence, it sits ever so slightly below death and religion. A quick look at my email in-box and you could be forgiven for thinking that art galleries are the new cathedrals, that every artist has an epic backstory, and every show needs to be hyped-up like an Oscar nominee.

But is art itself really all that serious? I hope not – or at least not always.

For a start, I’m not sure that all that seriousness actually helps much. The idea that seriousness is somehow a measure of value and that art needs to be treated seriously all the time is a weird one. Much of the time, people value things that make them laugh, cry, scream, think or inspired – much more than they value the worthy and the serious.

Of course art can be very serious. Certainly the content of art, or the issues that underlie it, or the trail of history and life experience that led to it can be very serious indeed. But art itself and the rituals by which we view, trade and discuss it can be downright daft. Perhaps a good rule of thumb is that art itself should be treated as no more or less serious than the emotions or experiences that it evolves from, communicates and represents.

For those of us who spend a lot of time with artists, it is a relief to realise that most of them aren’t always relentlessly serious. A lot of my favourite artists are very funny people. They invest their work with their sense of humour. All to often it can easily be ruined by the sense of humourless analysis and long-winded explanation. The barrier of superficial seriousness we cloak art in only serves to alienate a lot of artists from their potential audiences.

Ever noticed the hush in an art gallery? Why? Do we mistake art galleries for libraries? You need to be silent in a library so that other people can concentrate on long, wordy passages  if the descriptions are that long and dense in galleries the silence is probably not going to help.

There’s a place for quiet contemplation in art but it is one of many places. I’d like to think that there’s equally a place for loud conversation, robust debate, and animated piss-taking. Any of these could be at least as effective as monk-like concentration when it comes to engaging with and understanding what’s up on the walls.

Much the same could be said for the performing arts. Shakespeare’s plays benefited a lot from the robust environment in which they were originally presented. The immediate feedback from a loud, loutish and opinionated audience is far more effective in correcting the inevitable weak points in a work than polite silence followed by the occasional scathing review. I’m sure there’s data somewhere that will show that the decline in theatre as a major cultural force directly corresponds with the improving behaviour of its audiences.

Perhaps galleries and theatres large and small could start marketing days when the general public (and not just the select few who are invited to get drunk and animated on opening nights) could feel encouraged to offer up more genuine responses to the work? How about the occasional tumultuous Tuesday or a wild Wednesday down at the NGV?

Or perhaps mad matinees down at the arts centre? What’s the harm as long as no one breaks anything?

Far from alienating artists and their audiences, we may find that it actually starts to connect them. Wouldn’t it be great if everyone felt comfortable and confident enough in Australia’s art and artists to laugh and take the piss.

ONE of the things I’m hoping for more of in the arts this decade is failure.

No, I’m not wishing that the nation’s artists and arts companies spend the coming years slipping into decline, bankruptcy and despair.

I’m just hoping that they will find ways to take the kinds of creative risks that don’t always come off.

The kind of failure that I’m talking about is not the opposite of success but the kind that is intrinsically bound up in it.

It is one where the alternative is not success but risk aversion, low expectations and predictability.

It is a kind of failure that is actually a prerequisite for innovation in creative life – and most other areas of life for that matter.

It is part of the process of challenging yourself and those around you to try to do something a little different.

I know the only reason I’ve ended up any good at anything is through making mistakes and being reasonably good at not repeating them. It is failing and applying the lessons learnt that allow us to refine our ideas, experiment and innovate.

I’m particularly reminded that failure is important at this time of year because the commercial world is shoving it in our faces around now. Half the much-hyped TV shows starting over the coming month aren’t destined to see out the season. They will be unceremoniously axed or forced to run after midnight (or on the new digital channel graveyard) if the ratings don’t support them. The perpetually shunted local histories of the likes of The Sopranos, The West Wing and The Wire on Australian TV have demonstrated that being bumped in this way is hardly a sign of poor product. Hey Hey It’s Saturday on the other hand . . .

For every Avatar or mediocre Boxing Day blockbuster there are a dozen films that bomb at the box office and a hundred more that struggle straight to cable or on to video.

For every hit record there are a hundred that won’t make their money back. This is how culture moves forward. Failure in a commercial sense is very different from failure in a creative one.

Inevitably, much of the “failed” work will inspire a small but loyal audience and some will inspire and resonate long after the blockbusters are forgotten. Give me inspired flawed creative failures over lacklustre blockbusters any day.

Things aren’t so simple in the arts world.

Most of our publicly funded organisations and institutions would find it impossible to sustain anything like the failure rate that the commercial cultural world takes for granted. Competing claims for the public purse make it difficult to justify things that are complex and unpredictable. Risk-averse politics make it hard to justify resourcing failure, tight financial margins mean they often can’t afford it, and it is almost impossible to distinguish between types of failure.

Failing  from attempting to try something new, trying to challenge or reach a new audience, or long-term repositioning  is indistinguishable from mismanagement or a growing series of self-indulgent duds.

Public subsidy can also simply entrench the wrong kind of failure. It can create a culture of subsidised mediocrity and low expectations of success. The Australian film industry seems to revel in demonstrating that it is possible to fail repeatedly without it leading to innovation or evolution from applying the lessons of the experience.

Our failure at productive failure is not all the artists’, administrators’ or risk-averse managers’ fault. We in the media aren’t usually renowned for our sympathy either.

When a gallery puts on an exhibition that is panned and poorly attended, or when a theatre company puts forward a show that few see and even fewer would ever recommend, it is rare to see a review that contextualises the value of experimentation.

Yet where culture will truly flourish is when it has strategies for failure and risk. One of the great paradoxes of the arts is that you can take more risks with fewer resources. Part of this is simply about creating spaces for experimentation. It is encouraging to see that some larger institutions such as the Arts Centre in Melbourne and the Opera House and Belvoir Street in Sydney create spaces in their programs that allow for lower budgets, failure and innovation.

Here’s hoping that 2010 and beyond will be an era of fruitful failure and flawed experimentation. May we all find the courage to try ideas that may not quite come off.

Reggie Watts: Sasquatch (for Shoot The Player) from shoottheplayer.com on Vimeo.

Shoot The Player has created an incredible series of videos of Australian and international musicians performing live and in one take.

Between now and the end of the month, Sydney’s CarriageWorks is showcasing the work of Sydney based ‘cult DIY film project’ Shoot The Player. Amelia Tovey and Johnathan Wald have created an incredible series of videos of Australian and international musicians performing live, in one take, in public across Sydney and occasionally in other cities around the world.

Read the story over at the ABC arts site.

Late last year the Federal Government announced that it intended to go ahead with one of the worst ideas I’ve heard in a long time. The Communications Minister Senator Stephen Conroy – presumably assuming Australia was distracted by Christmas and Copenhagen to notice – announced that an expensive, ineffective and intrusive filter will be installed on every Internet connection in the country.

It’s philosophically dubious and practically unworkable. It will leave artists and creative enterprises particularly vulnerable to its errors, complexities and abuses. It calls into the question the very idea of Australia as a culturally liberal western democracy that values open cultural exchange, free speech and freedom of expression. As commentators from left and right, from Australia and around the world have noted that it would put Australia in a select and dubious club whose members include China, Iran and Burma. I hope and expect that it will profoundly resisted by artists and the creative community.

In case you’ve not been following it, the problems with such a scheme are many. While a filter on the underside of the Internet may sound appealing to some but the reality will be a cultural and technological nightmare. Far from being a deterrent to terrorists and paedophiles – the government report into the technology freely admits they will have no problem getting around it – it is likely to instead be a giant pain in the arse to the rest of us.

At best the filter will prevent most Australians from viewing a relatively small number of web pages contained in a secret blacklist. The leaking of an earlier and error ridden version of the list ably demonstrated that any such list will be riddled with incompetency and fodder for endless allegations of political or ideological interference by current and future governments. It’s also way short of comprehensive: Google is indexing well over a trillion pages and growing exponentially so a manually compiled list will always be falling behind.

In the government’s trial, smart filtering software didn’t work particularly effectively either. The software managed the trifecta of slowing down the Internet (sometimes drastically), letting problematic pages slip through, and blocking many legitimate pages unintentionally (and without recourse) in the process. Also the technology is only effective for web pages and not chat rooms, peer-to-peer networks or any other current and future Internet applications where undesirables things may be lurking.

The misplaced faith of parents who trust their children to the “safe” Internet provided by such a scheme will be tabloid fodder for years to come.

All this is to say nothing of those trying to get around it.  A secure and encrypted internet connection to somewhere outside the country – a technology that corporate networks and IT professionals use every day – can bypass even the most repressive of filters entirely. Anyone who has spent any time in states with successful filters knows they don’t rely so much on technology as fear. Draconian laws that make it illegal to circumvent or discuss how to circumvent such systems are critical to their effectiveness.

For Australia as a cultural centre, if the response to last week’s announcement is anything to go by we risk becoming a laughing stock. If such a filter is enacted expect inconsistently applied rules, clumsily and mistakenly censored works and poor respect for freedom of expression to become a running joke in discussions of Australia around the world.

Artistic worth will likely remain a consideration in censorship. Effectively that means that Australia is about to embark on the bizarre project of empowering blacklisting bureaucrats to assess the artistic merit of hundreds of thousands of contentious web pages from around the world. If the Australia Council can be baffling imagine a small army of bureaucrats making judgements about what is and isn’t art and making it disappear from our internet connections accordingly.

Perversely the sheer absurdity of it means that “blocked in Australia” may well become a badge that many may wear with pride. Local and international artists will inevitably provocatively position their work at the fuzzy boundaries of political speech and censored expression under such a system. Expect the filter to spurn creative works ranging from the undergraduate and puerile to the nuanced and politically charged. The censorship of Australian arts and artists will be both tabloid fodder locally and a cause celebre for free speech advocates and the arts community internationally.

Lets hope it doesn’t come to that. I’d like to think that government has failed to consider the full ramifications of their approach. If the response online is anything to go by they’ve certainly underestimated the reaction to the policy. Australian artists could help by getting creative in opposing the legislation before they need to get creative to get around it.

While i was off in Japan honeymooning in December there was a flurry of articles in the Newcastle press celebrating the 12 month anniversary of the Renew Newcastle scheme.

This one actually brought a little tear to my eye, from Amy Delore in the Newcastle Herald:

THIS is a column I was going to write this time last year.

What prompted me then to think about putting words to paper was an incident that occurred about 10am one weekday just before Christmas.

I had ducked out of work for 20 minutes to see my daughter’s kindergarten class have their photograph taken with Santa at David Jones in town. There was, as you can imagine, much squealing and frivolity as the children relayed their Christmas lists to a very patient Mr Claus, smiled and pulled faces at the camera and waved to parents.

Leaving this jolly scene to head back to work, my thoughts were consumed by the deterioration of the Hunter Street Mall. Someone had told me a few days earlier they had counted 20 empty shops and this seemed so unlikely I decided I’d count them myself as I walked to The Herald’s Bolton Street building.

I think I was about three-quarters of the way up the mall and up to about 12 or 13 in my count before an animated discussion about 15 metres ahead diverted my attention. A small group of people were speaking loudly and waving their arms around. At first I thought it was a bit of tomfoolery, until I heard the sickeningly unmistakable thud of a clenched fist meeting a cheekbone.

Alarmed, I looked up to see that a nasty fight had begun between two deadbeats in singlets and bare feet who, despite their rather pathetic physical presence, were throwing fists around with frightening force. To one side, a heavily tattooed woman connected to one or the other of them or perhaps both wailed, although whether it was in protest or encouragement I’m not sure.

There were no security guards in sight and no bystander seemed willing or able to break up the melee. So intimidated was I, that I decided to take refuge inside one of the few open shops.

It was then I remembered the kindergartens were soon to be heading this way after their Santa visit and I was horrified that a group of five- and six-year-olds might encounter this ugly scene.

Fortunately the fight dispersed before they arrived, but the whole incident well and truly ruined my mood for the morning.

I walked back to work fuming. Was it not enough that those who lived and worked around the mall had to put up daily with its parlous decay the depressingly empty shopfronts, the graffiti, the broken windows, the awful buskers and hawkers, the trouble-making loiterers without also having to be confronted by fistfights at 10 in the morning?

It was this new low in the mall’s escalating downward spiral that made me think then about writing a column beseeching somebody to do something about the blight and embarrassment the city’s CBD had become. Could there, I wondered, be a higher priority on the civic agenda than sorting out this mess?

I was going to point out that when I had started working at the top of town in the mid-1980s, it had been a privilege to work in the centre of the city’s bustling business and retail precinct, when there were too many shops to browse in even a week of lunch hours and the mall was abuzz with smartly dressed office workers and day shoppers. I intended to write about how I’d all but stopped going down the mall to buy lunch because walking through it made me feel like an extra in some B-grade movie about the Apocalypse.

I can’t remember why I didn’t get to writing that column but I’m glad now that I didn’t. Glad, because just one year later, there is a much more encouraging column to be written.

Around the same time those two neanderthals were slugging it out in the mall that morning, Marcus Westbury was taking delivery of keys to empty shopfronts in the mall, having convinced property owners in his quiet but purposeful way that leasing their spaces out to artists at peppercorn rents was better for all concerned than having a mall full of shops displaying nothing more than “For Lease” signs in their windows.

I walked down the mall again this week and the change in it since December 2008 is nothing short of outstanding. Some of the small galleries have evolved into viable retail shops, there’s a new tea room, and, in what must be the most encouraging sign of newfound confidence yet, mainstream retailers seem to be rediscovering the precinct. Three new shops all chain stores found in the suburban malls have opened in the past month or so and several existing tenants have shifted to larger premises and updated their shops.

It’s a small step in what is going to be a long haul to bring a semblance of Hunter Street’s past retail glory back to the area, but it’s important to see the slide has not only been arrested but turned around.

So thanks Marcus Westbury and your dedicated team at Renew Newcastle for having a crack, for acting without the motivation of financial or political gain and actually making a difference.

The original story is here.

There was also a fairly indulgent profile piece on me and “the miracle on Hunter street” around the same time.