Macaque Selfies

Speaker A: 00:00:00

Hello and welcome to the Cognitive Engineering podcast produced by Tell Me Studios for Aleph Insights. In this series of podcasts we take a look at interesting topics and discuss what we think they tell us about analysis and decision making. I'm Fraser McGruer and I'm here with Peter Coghill and Nick Hare of Aleph Insights and this week we're discussing Naruto, the macaque

Speaker B: 00:00:18

and copyright. Peter, lead us in. So it's a fun story that has been going around for the last 12 months or so. Photographer David Slater, a British photographer, wanted to highlight the plight of the macaques, this particular species of macaque, as their numbers were dwindling to a few hundred mating pairs and so he came up with a nice idea which was quite fun to encourage these animals to play with his camera in the hope that they would press a shutter and take an accidental selfie, which he achieved. He published his images and one in particular went pretty viral. It spread around social media and it did its job. It got people looking at these animals and looking for ways to help them out in some way. So yeah, it worked but it turns out since then that poor David Slater has struggled to earn any money at all from his copyright, from his image that he made and in fact is thinking about giving up photography entirely because the process of all these court battles around this image have really put him off photography altogether. I think he wants to be a tennis coach instead. So anyway, the legal battles started when Wikipedia put the image up in reference to either these specific animals or the plight of them and David Slater spotted it on Wikipedia and asked them to take it down. Wikipedia refused, arguing that the copyright actually belonged to the monkey and not to him. I think he eventually won that case but then the wider case was taken up by the people for ethical treatment of animals or known as PETA who sued him on behalf of the animal for ownership of the copyright and I believe that case has recently been heard and it was quashed with lots of questions about, they couldn't really tell if it was the right animal or not and all sorts of things and it was ruled that animals can't own copyright and things. But all this left poor old David out of pocket and doubting himself. As a fellow photographer, I sympathise with him.

Speaker A: 00:03:00

Okay, but PETA sued him on the macaque's behalf saying that the macaque should have copyright. Correct, yeah. Okay, because usually copyright in photography resides with the person who took the photograph, right? And in this case it's the macaque. Yes, indeed. So yeah, and that was the

Speaker B: 00:03:21

point of the case that he engineered the situation but it was actually the macaque that took the photograph. Okay. Released the shutter to take the photograph. So this raises all sorts of

Speaker A: 00:03:29

interesting questions, especially relating to copyright and macaques. But Nick, sort of take us on from there. I mean, where does this leave us with, I mean, I guess my question would be who would ever have thought, you know, when copyright laws were first initiated or drawn up that there would one day be a case of a macaque taking a photo of himself and, you know, and calling on copyright law to sort that out. So tell us what's going on. Well, I think we have done a podcast

Speaker C: 00:04:01

before about intellectual property and the idea of copyright, the reason it's a thing at all, is that the kinds of things you can copyright have the characteristic that they're very cheap to reproduce, right? So the problem is that this then means that they fall into a category of goods which are non-rivalrous and to an extent, non-excludable. So non-rivalrous means that me consuming it doesn't stop you consuming it. And then coincidentally, they're also non-excludable, which means that as it happens, very hard to control who consumes things. So if you take, I mean, there are other examples of this throughout the economics literature. So you have, you know, classic example of a non-rivalrous good being something like a street lamp where, you know, the fact that I get the benefit of the street lamp certainly doesn't stop anyone else from getting its benefit. Non-excludable goods include things like fish, you know, absent any kind of seriously enforced international law about fishing. You know, fish aren't non-rivalrous. If I eat a fish, you can't eat it as well. But it is very hard to stop people fishing, you know, out at sea. It's very hard to prevent people from taking fish out of the sea. So the problem with goods that are non-rivalrous and non-excludable is that they tend to, they're called public goods, and they tend to be underproduced. That's the problem. So if, you know, if we didn't have a government effectively providing street lighting, there would be very little of it. You know, only people who really valued having a well-lit front of their house would put street lights up. And so the argument is that in those cases, you either have the government providing things. Now, in this case, obviously, there's no argument for governments providing photos of macaques. But in general, we can kind of substitute the fact that it's not excludable with technology. So that process has occurred. There's certainly lots of technological precedents, not least things like streaming TV services, where, you know, in the past, we had to have TV licenses. And if, you know, the channels that weren't funded through, effectively, taxes, were funded through advertising, because there was no way of charging people for receiving your TV channel. Now, with the technology we have, we can, we can have it subscription-based. So you can sign up to, you know, Netflix or whatever. And Netflix can charge you, and only you can watch those films. So in a sense, here, we've got a choice, really. Do we want this to be a kind of good, which is going to be non-excludable? Or do we want to make an effort to make this an excludable kind of good? Now, the argument for having it excludable is that, you know, the usual ones that you hear. So, you know, if you can get the full economic benefit from your photograph, then, you know, if you're not able to charge people for looking at it, or for sharing it, then you don't get compensation for it. And therefore, you're not perhaps going to produce it in the first place. You're going to be less likely to go to Africa to take a photo of a macaque, and the world will be worse off to the tune of photos of macaques. Likewise with music, you know, if you don't have a means of being able to charge people for it, then it will be underproduced. That's the argument. But on the other hand, there is also an argument that if it really is sort of zero cost to produce, then really the market will end up putting zero value on those things. So the idea being that, you know, if you can't use that particular photo of a macaque, in theory, somebody else will take a very similar photo of a macaque. And, you know, in a price war for macaque photos, because it's effectively zero to produce a new digital copy of a macaque photo, you know, they'll be bid down to zero anyway. So there is an argument that a copyright actually simply sort of imposes an artificial monopoly on the producer, which may be inefficient, because they may underproduce.

Speaker B: 00:08:07

And just to widen it slightly further, it also hints at important ethical questions about who should have ownership, and who should have the right to limit publication of a likeness of a person. So this hints at ethical questions around social media. So if I publish photos of you, Fraser, on my Facebook feed, you'd potentially be quite in your right to say, no, I don't want those photos of me on Facebook. So Facebook now provides you with a means of finding those photos and having them removed. So Facebook has handed over some control over my social media profile to you, to other people.

Speaker C: 00:08:52

But is it also not the case that Facebook actually owns the photos you upload? Pass. I haven't thought it, no. Yeah, I have a feeling that they effectively own that. And so there was a controversy a few years ago, when they were proposing using people's photos that they'd uploaded in, you know, their sort of marketing material. And I think if you read the small print, that's, they're completely within their rights to do that. And I think there's a similar controversy when people discovered that actually by deleting photos from their Facebook feed, it didn't delete it from Facebook's databanks, you know. And so they, yeah, this, I think this is obviously the reason that this is much more of a big deal today is because it's, I mean, in the old days, you know, as a photographer, you would perhaps do a run of 500 photos and sell them and they'd be fit and, you know, it wouldn't be an issue because those things were rival as unexcludable. Whereas now you can just create a new copy for zero cost. And a photo can be, you know, halfway around the world before, you know, the copyright, copyright's got its boots on. And so it's, you know, it's something that we're obviously grappling with. And I, you know, there are pretty good arguments on both sides, really, you know, on one hand that copyright laws have not, you know, technologically kind of redundant. They're just not, you know, they don't reflect the reality of digital products. And, you know, you can see, I mean, that is, that's something which, you know, we sort of have to grapple with all the time. So things like, you know, the fact that someone's in a photo, the fact that you might be able to take a photo and digitally manipulate it, you know, what is it that you've got a copyright over? Have you got a copyright over the, you know, the ones and zeros, which are the representation of that photo? Or have you only got a copyright over the, you know, over the particular representation of that as a photo of a macaque? You know, if you, I mean, in theory, you could imagine someone writing a program which would generate every single possible photo of a certain size, and then, you know, claiming copyright over them all. So, you know, these technological possibilities make it much, I mean, we're gonna have to do a lot of thinking as a society to work out what actually you own. I'm reminded of a...

Speaker B: 00:11:09

I've considered a performance art piece, where I deliberately take copyrighted images that are not for reuse, and certainly not for reuse and modification, and modifying them in such a way that they're indistinguishable from the original, and then publishing them. So that there's no... but being open about the fact that they are all images that are subject to copyright. But because no one can track down which ones they are, I'm sort of in the clear.

Speaker C: 00:11:36

Although, yeah, there's a similar issue with copyright, the idea of copywriting gene sequences, which I think either you could copyright them all or trademark them. But, you know, obviously, firms, genetic modification firms, you spend a lot of money developing, you know, particular, you might, you know, particularly resistant crops or whatever, and feel that they have a right to, you know, to that particular sequence. And that obviously is very controversial, the idea of being able to copyright or trademark a particular gene sequence. But it's not that dissimilar, really. I mean, it's just, you know, you write it down, it's a string of letters. And I know, I think someone did try to do that, did sort of write in order for the public benefit to basically have a website which reproduces every single possible sequence so that they can't... so that they're all in a public domain. Now, I think there was a very interesting case years ago, back in the old analogue days, I think it was Roger Moore, but I'm not totally sure, who had written some love letters to a girlfriend and she wanted to reproduce them and argued that she owned them because Roger Moore had written the letters and given them to her. And the court ended up ruling that yes, it was true that she owned the pieces of paper and the ink, but he owned the words and the sequence that they were in. And so they couldn't, she didn't have the right to reproduce them in a newspaper. Yeah, it's a very interesting philosophical question.

Speaker A: 00:13:09

Well, so, I mean, we're actually close to sort of wrapping up, actually. But I want to ask, so what's the answer? But actually, I'm not even sure if I quite understand the question. Is it the case that we're saying copyright law is difficult to interpret now because stuff is so much easier to copy, and to do it at zero cost? And so therefore, I mean, what's the question?

Speaker B: 00:13:35

What's the answer? I'm lost. Well, that's part of it. But there's also a lot of novel works, particular in social media, and even in software programming and stuff is derived from other work. So it's very common to take an image and manipulate it in some way to make something new. In a really crude case, you might just be putting some block capital letters to create a meme with using a funny picture of a cat or something. But in software, a lot of software is built, standing on the shoulders of what's come before. Now, in software, the need for this to enable this kind of working has brought about various open copyright systems. There's a GNU, there's Copyleft, there's various different flavours which actually encourage reuse of works, but still provide a legal mechanism and legal framework for ensuring that the original citation is maintained and all sorts of, you know, that there's still some degree of control. But yeah, I think it's partly the reproducibility, but it's also not wanting to turn off the serendipitous kind of rediscovery and recreation based on what's previously come before that is powering a lot of the innovation that's happening in the modern world. Okay. Before we finish, any final words?

Speaker C: 00:15:04

Well, it might be worth saying that, you know, often when you have when technological changes can change goods from being excludable to non-excludable and vice versa. So I mentioned, you know, the sort of having been the technology that we have for being able to subscribe to particular, you know, TV channels is a way of making what used to be non-excludable excludable. And you can imagine technologies for other things. So even, you know, as I mentioned, streetlights, you can imagine having a subscription based streetlight service where, you know, as you walk down the street, the light switch on activated by an RFID chip or something. And so there is an element to which we can choose the level of excludability. It may be that we, you know, we might want to make it harder to share it. And certainly technology has enabled us to enforce copyright. So things like the reverse image search facility on Google is really massive game changer for owners of photographs because they can find out where it's where other people have taken copies, you know, and using them. And of course, you know, in this particular case, it's, you know, it seems there's a few kind of details about who owns it, whether the macaque owns it and stuff. But there are cases where people have taken photos, they're professional photographers, and those photos have just been reproduced in online marketing material by other companies, you know, with absolutely no attribution. And of course, for those people, it does seem, you know, like it's genuinely better for them to be able to track down who's doing that and to, you know, enforce it. But yeah, I think, you know, I feel like technology will gradually give us more and more options for doing that. So at some point, we'll face the question of how much all these things to be owned, you know? I mean, if you could apply ownership to everything, would we end up having to pay a lot more to, you know, have a website or to consume information? You know, if it's possible to have these subscription-based approaches, you know, I mean, when people first started to monetize the web, there was a lot of talk of micropayments, you know, paying every time you read an article or whatever. Now, you know, people have...the web has generally been funded by advertising. That may be something that would change. You know, paywalls, I think, are coming back in. And of course, the prevalence of ad blockers, which we've covered before, slightly undermines the marketing angle. So I suppose what I'm saying is that this is not...there's not something inherent. It's not an inherent...it's not something that's inherent in the type of good. What it is is a technological choice that

Speaker B: 00:17:43

we can make. Peter, you do like? Yeah, I would be remiss if I didn't jump on the technology bandwagon and mention a few things which might be interesting. 30 seconds. So if we're just tracking the provenance and the ownership of things, there are various ways of encoding ownership information in the image as a watermark that can't be seen, so it can be detected. But also, we've got to mention blockchain. Blockchain would be the perfect thing for...a distributed ledger would be the perfect thing for registering who owns what in a way that's immutable and is virtually impossible to manipulate. Okay. Just to finish things off,

Speaker C: 00:18:22

Nick, favourite primate? I read a very interesting book about...do you mean...I mean, probably humans realistically. But having said that, I did read an interesting book by Robert Sapolsky a few years ago about baboons and their society. And, you know, it turns out there's...I don't know, it's probably true of lots of other primates, but baboons...they have so many analogies with humans. It's sort of touching and a bit sad, you know, that they have this very defined status hierarchy. And what Sapolsky discovered was that the baboons at the bottom all have much higher stress hormones. So being low status...people used to assume that the high status baboons, probably in order to maintain their position, had a very stressful job. You know, like we assume being the boss, being the CEO of a major corporation must be stressful. What he discovered was that the poor old baboons at the very bottom are constantly getting beaten up by other baboons and can't get a mate, are actually the ones with all the stress. So since then, I've had a lot of

Speaker A: 00:19:24

sympathy for baboons. Quite. Empathy as well. Quite a degree of similarity in some areas as well.

Speaker B: 00:19:33

Yeah. Peter, favourite primate? Orangutans. There's something very noble about them. They're sort of extremely strong and big. And a ginger as well. I'm a sort of closet ginger. Actually,

Speaker A: 00:19:44

if you were a primate, I could see you as an orangutan. Yeah. Slightly forlorn. Slightly forlorn. Thanks. Slightly forlorn, gingerous, sort of mooching around. Yeah. A do a Scot kind of orangutan. Yeah. Actually, my favourite primate is baboons, actually, all the more so given what you've just said now. I once saw a fight between a bunch of baboons and a bunch of people in Africa. People? Yeah. As I was zooming down a road on a... Both species are pretty vicious. Yeah. Well, yeah. And I was on a bus of careening down this road. And just it was this little vignette that went racing by of a load of people with sticks chasing after baboons and baboons chasing right back at them. Anyway. Who won? Who knows? I mean, it's an eternal struggle, isn't it? The war

Speaker C: 00:20:29

twixt man and baboon, which, you know, could be an endless one. Indeed. Indeed. They should make a film about it. I do. I don't like. It's chimpanzees. You don't like them? Yeah. I don't like them. Everyone says they don't like them. They remind me of all the worst aspects of humans. No, that's what everyone says. Yeah. No, the way that they behave, you know, they're so vicious. The way that they hunt in packs and they, you know, pick off weak members of society and, you know, they've got just like... And they pick their noses. It's too much like humans when

Speaker A: 00:20:59

they're being badly behaved. Yeah. The way they fling crap at each other. God, it's just... Yeah, exactly. All right. Let's wrap up there. You've been listening to the Cognitive Engineering Podcast. I'm Fraser McGruer. We've been here with Nick Hare and Peter Coghill of Aleph Insights. Thank you. And until next week, bye-bye.