This evening I participated in a lively, well-attended forum on copyright in Toronto. Hosted by MP Olivia Chow, the panel included MP Charlie Angus, Victoria Owen (representing the Canadian Library Association), Stephen Waddell (ACTRA), and Don Quarles (Songwriters). A streamed version of the event should soon be available here.
While the discussion covered a range of issues and featured some important revelations which I'll address soon in a separate post, I thought that I would post my opening remarks. I used as my starting point Clay Shirky's terrific post on the weekend about newspapers and applied some of his thoughts to Canadian copyright. My prepared remarks:
Last weekend, Clay Shirky, author of Here Comes Everybody, posted an exceptional piece on the future of newspapers. It deserves to be widely read, but I want to focus on a single paragraph. Shirky says:
"When someone demands to know how we are going to replace newspapers, they are really demanding to be told that we are not living through a revolution. They are demanding to be told that old systems won’t break before new systems are in place. They are demanding to be told that ancient social bargains aren’t in peril, that core institutions will be spared, that new methods of spreading information will improve previous practice rather than upending it. They are demanding to be lied to."
This last sentence really struck a chord with me because I believe there are Canadian copyright equivalents:
- When someone demands to be told that anti-circumvention legislation will address concerns over peer-to-peer file sharing, they are demanding to be lied to.
- When someone demands to be told that implementing DRM will reduce infringement, they are demanding to be lied to.
- When someone demands to be told that the current fair dealing provisions adequately addresses the needs of users and creators, they are demanding to be lied to.
- When someone demands to be told that it is the absence of C-61 style copyright reform that stands in the way of creators earning a better living than is now the case, they are demanding to be lied to.
- When someone demands to be told that the proliferation of user generated content and participation is nothing more than a blip that has no impact on cultural consumption, they are demanding to be lied to.
- When someone demands to be told that Canada is the piracy equivalent of China or Russia, they are demanding to be lied to.
- When someone demands to be told that an Internet exception will address their concerns around copyright in the classroom, they are demanding to be lied to.
- When someone demands to be told that opposition to DMCA-style legislation consists of nothing more than a few rabble-rousing infringers, they are demanding to be lied to.
We’ve spent the past few years demanding to be lied to.
The result was C-61, legislation that did little to address the concerns of either creators or users. Instead, we got unnecessarily restrictive anti-circumvention rules, gimmicky statutory damages reforms, and laughably limited fair dealing changes complete with references to VHS tapes and bans on cloud computing models. We’re left with Canadian cases such as the one in BC that says that there is no legal protection for parody and satire, an exception that many creators rely upon. We’re left with ongoing international pressure through the Anti-Counterfeiting Trade Agreement to establish these reforms through the backdoor.
So what do we need now?
There are two ways to tackle that question – either by pointing to specific reforms or discussing broader principles. On specific reforms, I raised 61 reforms to C-61 over the summer. Rather than going through all 61, I would instead come back to the "Fair Copyright Principles" that I posted over a year ago. They include seven specific reforms:
- Anti-circumvention provisions should be directly linked to copyright infringement. This is WIPO compliant, preserves balance, and removes the need for fights over exceptions.
- No ban on devices that can be used to circumvent a TPM. If we accept that circumvention is permissible in certain circumstances, must have access to the tools to circumvent.
- Expand the fair dealing provision by establishing "flexible fair dealing." I think this is cleanest and fairest way to address issues like parody, time shifting, and new innovation models.
- Establish a legal safe harbour for Internet intermediaries supported by a "notice and notice" takedown system. This system has proven to work well in Canada and avoids the problems associated with notice-and-takedown in the U.S.
- Modernize the backup copy provision. The same rationale that was applied to the fragility of computer software many years ago, applies today to other digital data.
- Rationalize the statutory damages provision. Should distinguish between commercial and non-commercial cases of infringement.
- Include actual distribution in the making available right. Should follow the U.S. trend toward demonstrating actual harm before awarding damages.
While we can debate these issues (and others), I think the bigger principles are in some ways more important. I have five:
- Reject C-61, not copyright reform. There is a need for copyright and for copyright reform. That said, if we get anti-circumvention provisions, they must preserve current balance and user rights. This is permitted under WIPO and need to take advantage of that flexibility.
- Shift away from special interest exceptions. We need to get away from approach of special interest lobbying for exceptions – better solution would be a more flexible fair dealing approach for the benefit of creators, users, and businesses.
- Transparent policymaking. The behind-the-scenes work on treaties like ACTA breeds skepticism. The absence of consultations or committee hearings on domestic reforms builds frustration. There is no better time to open things up – proper consultation domestically, open treaty negotiations internationally.
- Experimentation. We don’t know with certainty the "right" models for success. C-61 promoted a very specific model, one that has been shown largely to fail. We need government to promote policies that encourages different approaches – set the broad framework and let the market do the rest. I’m supportive conceptually of SAC proposal – I think some issues need work, but I think we need these proposals, rather than continued emphasis on one failed model.
- Copyright in Context. We need to put copyright in context. For creators and users alike, contract is often a bigger issue than legislated copyright rules. We should be honest about copyright’s importance and its limits. Further, within the legislative context, copyright should be viewed as just one piece in a broader digital agenda issue. Net neutrality, broadcast, spectrum issues, consumer protection, privacy are all part of that bigger issue. We need to address copyright within that broader context so that we establish rules that are not instantly outdated.
I took part in the online conversation during this presentation. Good presentations and questions afterward. I think more online participation should be a good idea as well. Let those tuning into these presentations offer up questions of their own for the panel to answer as well.
Being on the front lines of innovation in the new media industry, a lot of those who want to startup new innovative ways of attracting consumers, are often very scared to do so due to the complexity of copyright law. Although collective licensing was discussed, we should be more focused on developing or merging copyright compensation in to the networks, rather than focusing on compliance issues which really doesn’t matter at all, since a company that is starting up can easily move operations to a country like Russia, that is virtually copyright immune.
We must focus on keeping innovation in the Canadian economy, and build a system that is open to everyone, and anyone. Simplify the system to allow innovation to occur at a rapid pace. Put forth an automatic an very simple copyright system in place that will put money in the pockets of creators and allow for legal business to occur.
Any attempts and fiddling around with the compliance language on a system that has already failed, is a waste of tax payers money, and a waste of time. Copyright compensation needs to be built into the global networks now, and innovators shouldn’t have to worry about compliance. Any future workable model on copyright legislation should make compliance automatic in the digital world, and out of mind out of sight for innovators.
We need to be having a lot more discussions on how to build copyright into the networks in order for the system of copyright to be sustainable a few months after reforms take place, and look towards where we will be in 10 years. Good panel discussion around this and the need for different approaches to this. Although it was nice to see someone stand up for American Artistic values which has nothing to do with the Canadian approach being discussed by this panel. Also a point of note, that many American artists have changed their tone that this guy displayed to the panel. I think the realization of going to war with consumers (who are their main source of income) has hit home for many. It’s too bad for those in the music industry that we still have the odd wingnut screaming bloody murder towards discussions that are basically for their benefit. They are very much starting to become the Pariahs of the digital industries.
http://techdirt.com/articles/20090303/0129163958.shtml
JK
Tell me that copyright has a future
Tell me that copyright has a future and you are lying to me.
“Yes, with sensible tweaks rather than ill conceived tweaks, we can reform copyright such that it once again becomes effective in preventing the public sharing and building upon published works without proper license or authorisation”
Ahem. Copyright never did prevent the public sharing or building upon each other’s work. It permitted printers to enforce their unnatural privilege of a reproduction monopoly, which consequently denied the public access to the press without copyright clearance (which publishing agents would arrange if they considered the copy or derivative commercially viable).
Today the public have a press in their living room and can produce and distribute the equivalent of a million of pressings of print or vinyl without significant cost – and without giving a flying fig about copyright.
Michael, you don’t have to tell me that copyright has a future, but I am worried that this is what you’re still telling yourself.
Copyright as it stands today has no future. I don’t think we need to abolish copyright, but do think the really only logical solution that will work for the digital age is to merge copyright into the networks. The age of the media monopoly, and content control is over. It’s finished. It now becomes when, not if, those studying this issue can fully understand this, and build a system that accurately represents what’s needed to foster income for the IP industries around where the marketplace and industry stand today.
Fair or Unfair copyright laws it doesn’t matter. How can you develop laws around a system that is virtually unenforceable without a dictatorial state, and has failed. Rules that are based on fostering innovation is what’s needed.
It took me as an innovator 12 hours of extensive research before I gave up and paid a lawyer to figure out where I needed to pay copyright royalties to, only to find that were are no copyright royalties set for the type of innovating I was doing. So basically innovation has become illegal, and as an innovator I’m left wide open to lawsuits under the current laws if I try to make money off of what I’m doing. Because I’m not the only one innovating, a competitor now can walk in, and basically shut me down on one DMCA notice, and vice versa. The system has become too hostile towards innovators, and lags the independent academic understanding of the real issues the people on the front lines of this have. While this panel did hint of some understanding, more proactive discussion on all sides is needed before we ever hope we can develop a system for all.
No [Mr. Angus]…there are no concessions either side needs to make. It’s either we get it right, or we fail, and we will fail hard no matter what balance is struck on a system that has become irrelevant. We have to fail in order for the stupidity in this debate to subside, and to cut through the BS to find what the actual problems are on the front lines, and only then we get back to business.
“How can you develop laws around a system that is virtually unenforceable without a dictatorial state, and has failed. Rules that are based on fostering innovation is what’s needed.”
Yes Jason K. you are right.
Copyright is a PRIVILEGE and a CONTRACT; it is NOT a right
Copyright is NOT a right, it is a LIMITED-time PRIVILEGE given to creators; in return to that privilege, the work must pass to the public domain after the time LIMIT. This looks like a contract to me. Contract between the creators and the society.
The special interests have a long history of violating that contract. If they violate the contract, there is NO reason for everyone else to honour their part of the deal.
the unthinkable progress
In the future we will be able to shake our hands and share our information (along with all our music collection). Technology won’t stop no matter how many locks they try. Today already we can print an MP3 songs as a glyph on a piece of paper, think tomorrow what we’ll be able to do. Music industry will be replaced with … nothing. It is called progress (and progress has always shut down obsolete businesses and created new modern ones.)
great case for copyright abuse
the writer of the star trek 60’s show suing for more cash
like HELLO have ya done anything else to make you money?
This is what they want to economically screw the rest of us regardless of technology making things easier and cheaper
just raise the prices
now we’ll see in may if our internet goes poof
any hike means i and prolly many thousands like me barely affording it are gone
YUP great way to ushering culture , civilization and technology, just disclude it form as many as you can and sue everyone else into non existence
WE NEED LES LAWYERS AND MORE REAL ARTISTS THAT SHARE
The sound ….of silence
can you hear it
What will really happen?
Please someone tell me….as just a plain person who sometimes reads this site all of these proposed ‘restrictions’ can get so confusing.
What I want to know is this….what will change?
When I brows the web it’s usually like this:
I view some entertaining sites (most of which are not Canadian)…
I play some World of Warcraft….
I upload some artwork to DeviantArt….
and watch some Youtube…
What I need to know is this. Will I still be able to do those things? Will they disappear and I’ll be forced to only view Canadian sites? I also shop online what will happen to that?
Please will someone give me a cut-and dry run-down of what the CRTC and big media plan to do to the access an average Canadian will receive?
Thank you
I gave up and paid a lawyer to figure out where I needed to pay copyright royalties to, only to find that were are no copyright royalties set for the type of innovating I was doing. So basically innovation has become illegal, and as an innovator I’m left wide open to lawsuits under the current laws if I try to make money off of what I’m doing. Because I’m not the only one innovating, a competitor now can walk in, and basically shut me down on one DMCA notice, and vice versa. The system has become too hostile towards innovators, and lags the independent academic understanding of the real issues the people on the front lines of this have. While this bedroom furniture panel did hint of some understanding, more proactive discussion on all sides