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Designing A Copyright Law That’s Built To Last

As the national copyright consultation launched earlier this summer hits the midway point, the first four weeks have attracted considerable interest.  There have already been more than a thousand submissions, one town hall meeting, and five roundtable discussions, with many Canadians visiting copyrightconsultation.ca to provide their views on copyright reform.

Changes such as expanded fair dealing, legal protection for digital locks, and new digital levies have emerged as the most-discussed issues. However, my weekly technology law column (Toronto Star version, homepage version) grapples with one of Industry Minister Tony Clement's core concerns: In an era of rapidly changing technology, how does the government ensure that a new copyright bill is built to last?

Clement's focus on longevity appears to be a tacit acknowledgement that Bill C-61, the last Conservative copyright bill that died with the federal election call last fall, was not sufficiently forward looking.  With specific references to VHS tapes, emphasis on digital rights management, and blocks on the use of network-based personal video recorders, critics argued that bill was past its best before date the moment it was introduced. Designing copyright reforms that are not rendered outdated soon after introduction requires identifying the right principles to use as a metric against which new provisions can be measured.  At least four come to mind.

First, copyright law should strive for balance between creator rights and users' rights.  If the law tilts too far in one direction, the other side is virtually guaranteed to put the issue of reform back on the table and the changes do not last. 

Second, the law must be technologically neutral.  Copyright has proven remarkably resilient over the decades in large measure because it states broad principles about the scope and limits of protection.  If copyright veers too far toward specific technologies by mandating new protection for specific business models or technological innovations, those rules risk being overtaken as the technologies and marketplace evolve.

Third, the law should strive for simplification and clarity.  Copyright may once have been a niche issue understood by a small number of experts, yet today it affects the daily lives of millions.  If Canadians are to respect the law, they must first understand it.  When Bill C-61 proposed a 12-part test to determine whether recording a television program was legal, it rendered the law far too complex for the average person.

Fourth, the law should embrace flexibility, which has allowed many copyright provisions to adapt to continually changing economic and technology environments. Flexibility takes a general purpose law and ensures that it works for stakeholders across the spectrum, whether documentary film makers, musicians, teachers, researchers, businesses, or consumers.

How would these principles apply to the thorniest issues faced by Clement and Canadian Heritage Minister James Moore?

On the issue of fair dealing, balance requires that it remain fair dealing, not free dealing.  Technological neutrality, simplification, and flexibility suggest that the best approach may well be to expand the current list of fair dealing exceptions by making it illustrative rather than exhaustive. Courts would be freed to add new exceptions such as parody or recording television shows. This approach would remove the link to specific technologies and would build in new legal flexibility.

Similarly on the issue of digital locks, linking the picking or circumvention of a digital lock to the intent to infringe copyright would retain the copyright balance, avoid the need for complex exceptions, and do away with specific references to technology. 

Copyright reform is never simple, but a principled, forward-looking approach is the right place to start.

14 Comments

  1. Not disagreeing…
    Don’t take my comments here to be disagreement; they aren’t intended as such. The problem that I see with having the law state principles rather than specifics is that it leaves the law open to interpretation by judges. On some things that isn’t a bad thing; I would include copyright as one of those issues. However, it opens up to comments about reactionary judges creating law rather than interpreting it that can/will be used by the losers in court battles and their supporters.

  2. No copright law is the one that lasts
    I don’t think they can make a copyright law that won’t be broken by at least % of Canadians on a daily basis. Downloading mp3s, copy and pasting, aggregating news headlines, even recording your favorite TV show all fit into a grey area that keeps getting blacker with laws that have little to do with improving the life of average Canadians.

  3. I agree Jeff M.
    Yep, And the ISP’s who are also in media won’t think twice about blocking any content via filter, including Email, if/when changes come. It’s in their best interest.

    As someone who Emails aggregated news to a certain place I actually already had a run-in with Videotron when they decided to block what I was Emailing (ie links from Quebecor media and others). And it was a daily Email to one person only (a website).

    I got into a tiff with Videotrons abuse deptarment and I told them to fix it and just be a dumb pipe as they are supposed to be.

    Videotron Emailed me back assuring me they are no dumb pipe and they could block what they want.

    Was very enlightening to say the least. It opened my eyes.

    With “balanced copyright law” I expect to see lots more of this as well as ambulance chasing lawyers who will be out for a buck while the ISP’s are stating they are “not dumb pipes” and “can block what they wish” (as was my case).

    Viva la liberte eh. It’s all a cash grab.
    :/

  4. Chris Brand says:

    The government has no business in the family rooms of Canadians
    A blanket exemption for more-or-less “anything done in the privacy of your own home” (which would not have to include uploading via the internet), would instantly bring the Act into much better alignment with what people believe is reasonable, and would satisfy a lot of the need for simplification.

  5. Separate Distribution from Copying.
    Back in the time of printing presses, with moderate capital investment required to actually “copy” anything, it made sense to limit copying. By the time the material was printed, it was too late.

    Now, everyone can copy. Copying is easy, and impossible to prevent. Distribution is easier to detect, and it is also the point where the damage happens.

    I think we need to separate right to copy from right to distribute.

    I would like to see a law where you are allowed to make a copy of anything you like. Distribution of that copy is an entirely different thing.

    I would like to see a “Right of First Sale” applied to all copyrighted works. You are able to algorithmically copy or transform the work in any way you see fit.

    Collage? Perfectly legal. Ripping CDs/DVDs/BluRay? Legal.

    DRM? You can put it on, but you can’t prevent me from breaking it.

    Distribution however, would still be limited. If I sell/rent/loan/give away my legal copy, all the other copies I have made must be transferred or destroyed.

    The interesting bit is that I feel these rules (right of first sale) to broadcast media as well. Yes, if you have a bank of 1000 DVB tuners, you would be allowed to make 1000 legal copies of a TV show and sell them.

    People are already disregarding the “copy” portion of copyright (recorded a baseball game lately?), and the firms are only barely hanging on in the fight against distribution.

    It’s time to realise that the game is over, stop paying the lawyers and make money.

  6. Laws are not a solution to every issue.
    I think it’s critical that we acknowledge sometime very soon that laws cannot fix every issue we face. When you mix up computers, networks (internet), tons of media, and the public, you get a lot of copying. You get tools for copying. You also get massive innovation at a naturally and wonderfully speedy pace.

    Nothing can stop it.

    I think that anything we could try to do to constrain the public will either fail, or be very harshly oppressive, as bad or worse than what we see in other countries with harsh internet censorship (which I hope we all find repulsive). If we do not acknowledge the generous reality of the real public expectations for fair use, we will just keep on trying to solve an impossible problem in ever more damaging ways. I fear that not starting with this principle clearly in mind could lead us to a slippery slope of an ever escalating battle between rights holders and the true public will. We already see this battle begun, so let’s hope we have some traction to climb back up.

    We need to recognize that copyright is intended to allow content creators, manufacturers, and distributors a monopoly on commercial profit from their works, SO THAT THEY COULD GET PAID. That made easy sense when information came in fixed objects like books and records, that people couldn’t easily copy. The main purpose of copyright was effectively to protect against commercial level theft.

    Information is no longer physical. Computers have almost completely eradicated the old reality. The public is now fully equipped to manufacture (copy) and distribute (share) almost any information imaginable. We bought and paid for our own systems and networks. We invested our own time to learn how. All FULLY WITHIN OUR RIGHTS. This represents an amazing wealth of public capability, something akin to everyone becoming a fully trained mechanic. Would we force people to take their car to the shop anyways, and ban ownership of the special tools? Obviously not.

    It is perverse that some kind of monopoly law claims the right to force me to hire someone else to provide these services, when I choose to do it for myself. The reality of this is reflected by the rampant information sharing we see today, in spite of the laws. We will not be restrained, and there is no going back.

    The claims of rights holders garner even more public disrespect when they are obviously NOT primarily in support of the content creators (artists), and really only enforcing a particular sales channel (“yer gonna buy it from us, or else”). I think this situation is sadly almost the norm, and it is intuitively understood and disrespected by the public.

    The questions remain:

    - how do we make sure to pay the people who create information?
    - how do we protect the immense and rapidly growing value of our own public ability to manage information?

    One thing seems sure to me: “laws against” cannot solve these issues alone. Painful transitions are upon us now that information does not come as objects. Copyright reform must be very carefully integrated into a much larger context of how to balance the information needs of our society.

  7. Re: Separate Distribution from Copying.
    Jason, I like your post, you have the spirit of the thing right. But you have chosen an obsolete distinction when you suggest we draw the line between copying and distribution. In the digital realm, distribution is just a copy across the network. There is no practical difference between these two acts. COPYING AND DISTRIBUTION ARE NOW EQUAL AND TRIVIAL ACTS. No law can stop either.

    I suggest that when you say “Distribution is easier to detect”, you call for an ugly invasive war against privacy, and mostly for the sake of profiteering. When you say ” and it is also the point where the damage happens.”, you fail to acknowledge that distribution in itself is fast becoming an obsolete business, with dubious value compared to our own public personal capabilities. The damage to distribution is inevitable, IT IS DAMAGE TO THE REAL CREATORS WE MUST PREVENT.

    I don’t know the answers, but I dread a future where internet is invasively monitored by profit motivated companies, and our free use of computers to innovate ever better methods of sharing is shackled by protectionism.

    Ultimately the public will have to face the fact that NOT paying creators is a dead end. Distributors will have to face the fact that the public at large is now their biggest competition, and often no longer needs them at all.

  8. Kelly Gray says:

    Exploder wrote:
    The questions remain:

    - how do we make sure to pay the people who create information?
    - how do we protect the immense and rapidly growing value of our own public ability to manage information?

    I beg to differ on this. Copyright is not, and never has been about seeing that creators get paid. Copyright was always intended as merely an incentive to create, not payment for doing so. Over the last hundred years or so, it’s been used more as a welfare system for those distributing copyright works. The creators often get little, or nothing in the way of copyright royalties.
    We also don’t have very much in the way of a public ability to manage information. What we do have is an extremely valuable ability to communicate with each other. I would phrase those two questions as:

    – How do we encourage the creation of new works while minimizing the costs to the people who pay for it?
    – How do we protect and nurture our immense and rapidly growing ability to communicate.

  9. Re: Exploder
    One of the best comments I have read to date. We need a system that actually promotes payment to content creators, associated or not. As a society, we’ve invested countless hours and efforts to speed up distribution and freedom of acquisition. Why should a person not be allowed to acquire content at 3 a.m.? Why continue limiting distribution to stores and distributer. Why is it that a creator only gets a small portion of the profits gained from their creation? I have no interests in paying some company to supply me with content when a) I found the existence of the content myself, b) I acquired the content through my own means and c) I provided the medium to hold such content. Tell me, what has the distributer offered me in all this? Billion dollar industries allowed themselves to get outdated and are now paying the price. Had they adapted instead of kicked and screamed, maybe they could be the ones owning sites such as youtube and other online streaming sites. There are legit sites that compensate artists for every song listened to, ala, radio, however, as a north american, we don’t have access to them yet. You can thank our industry lobbies for that.

    Tell me, does it make sense to force an entire society to put their lives on hold, tune in on sunday night, at seven o clock, just to enjoy something? Or letting them enjoy it when they actually have the time to?

  10. Balance can only be achieved when one understands what role creative destruction has played for each industry.

  11. Re: Kelly Gray
    You’re right, but I don’t think I really got it wrong. My phrasing means about the same thing, because the incentive is that creators get paid when they have protection from others freely selling their works without paying for the right to do so. Sadly, the reality is as you say, that a disproportionate amount of the benefit has always gone to distributors, not the creators. It is a difficult argument though, because you could also say it is the just balance of a free market that determines such things. I am not ideologically blinded by capitalistic thinking though, and I don’t see the real outcomes as having been anything less than exploitive much of the time. It makes one wonder what kind of wealth of knowledge we might come to enjoy if “we the people” can take care of the costs of marketing and distribution, and divert the profits more directly to creators, who would then see HUGE incentives to get busy and make more good material. Between the effects of information costing less, and creators making more, we could see some excellent things happen by reducing the role of the middle man.

    As for your critique of the public’s information management skills, I simply must point to the internet in general, and claim that managing information is precisely what we are doing, very often outside of any large corporate structures, and often in a completely ad-hoc but extremely effective way. Look at file sharing as an example. The eD2k and Kademlia networks (E-Mule file sharing client) offer search, discovery, and transfer of vast amounts of information, while companion websites offer structured indexes to the same data pool. Bit Torrent is similar. Public forums become user organized repositories of information. I am just scratching the surface here.

    Lastly, I would like to tweak your excellent rewrites of my questions: (my changes in ALL CAPS)

    - How do we GENEROUSLY encourage the creation of new works while minimizing the costs to the people who pay for it?
    - How do we protect and nurture our immense, IMMENSELY VALUABLE, and rapidly growing ability to communicate?

    I might also add:

    - How do we beat back the over inflated private financial interests that seek to forcefully interfere with the primary public acts of freely creating and consuming information?

    Hint: refusing to pay them anything might be a helpful start.

  12. Let’s give copyright back to the authors and get red of collecting societies, music publishers and record companies. There’s already one experiment taking place in this field: http://www.villamusicrights.com.

  13. Abolish Corporate Welfare!
    Return copyright to a reasonable time frame.

  14. Oxana,

    there are several such experiments:

    http://www.jamendo.com

    Personally, I lately consume more music which I acquire directly (for free or for a fee) directly from the artist(s) than through the traditional media distributors. That’s how I “stick it to the man”. Hopefully, more and more artists get the picture.