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Copyright Fear Mongering Hits a New High: Writers Groups Post Their C-32 Brief

A coalition of English-language writers organizations have publicly posted their response to Bill C-32.  Despite an ideal opportunity for constructive dialogue and a good faith effort to find compromise positions on the more contentious elements of the bill, the groups have chosen to increase the level of fear mongering with a misleading and often inaccurate document that implausibly claims the end of Canadian publishing is near if C-32 is passed in its current form. 

Perhaps most disappointingly, the groups had promised in August to offer “constructive suggestions”, particularly on the issue of fair dealing, which was said to require clear legislative guidance.  Rather than offering proposed language for such guidance, the groups simply want to hit the delete key.  Inclusion of education as a fair dealing category?  Delete.  Non-commercial user-generated content?  Delete.  Digital inter-library loans?  Delete.  Format shifting for private purposes?  Delete. 

At a time when the opposition parties are asking for constructive advice on how to determine the confines of issues such as fair dealing, the writers groups maintain that there is no scope for including education as a category and refuse to offer any suggested language to improve the bill.  Instead, they offer hyperbolic claims about how C-32 violates international copyright law (despite the fact that the U.S. typically offers more flexibility on these issues) or will result in unfettered copying (ignoring the fact that fair dealing includes a test for determining whether the copying is fair).

The full issues and recommendations section from the document (in italics) – along with a much-needed reality check – are posted below:

1.    Expansion of “Fair Dealing” to education

Issue

Bill C-32 as drafted would expand the current purposes of “fair dealing” to include “education”. This appears to be an enormously broad exemption of uncertain scope, added to an existing “fair dealing” exemption in the current Copyright Act that already allows educators and students, as well as others outside educational institutions, to reproduce copyright material for research and private study.

The exception is neither enormously broad nor of uncertain scope.  As the groups acknowledge, fair dealing already covers categories such as research and private study, which accounts for a significant amount of copying that takes place within education.  The inclusion of education fills in some gaps, but is hardly a dramatic change from the current system.  Moreover, the scope is not uncertain since fair dealing analysis involves a two-part test. First, does the use (or dealing) qualify for one of the fair dealing exceptions. Second, if it does qualify, is the use itself fair. The extension of fair dealing to education only affects the first part of the test.  In other words, while Bill C-32 will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair. The Supreme Court of Canada has identified six non-exhaustive factors to assist a court‘s fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.

There are also many specific exemptions for educational institutions in the existing legislation – cost-saving provisions that permit the copying of materials that educational institutions might otherwise need or want to purchase.

Many of the exceptions have little to do with cost savings or the avoidance of purchasing materials.  Rather, they merely offer clarity that engaging in things such as writing on boards does not involve an act of infringement.

If this new, unstructured educational “fair dealing” exemption were to become law, educators would claim that most of the massive widespread copying that takes place in educational institutions is “fair dealing”.

False. The Federal Court of Appeal ruled this summer on the limits of fair dealing within education and noted that the inclusion of education as a category would not have changed its analysis.  All copying within education would still be subject to a fairness analysis, making it very unlikely that educators would make such ill-advised claims.

Business corporations would also benefit at the expense of rights holders, as “fair dealing” for the purpose of education is not restricted to non- commercial users, and there will be no lack of newly, self-styled “educators”.

Anyone seeking to rely on the education category within fair dealing would still have to prove that the dealing was fair.  The fact that some may try to fit within the education category would change very little, given that today they might be similarly inclined to argue that they are engaged in research or private study. 

If courts were to interpret this proposed provision as broadly as its wording invites, Canada would be in breach of the Berne Convention and similar international obligations.

If Canada is in breach, so too are many other countries.  For example, the U.S. fair use provision has no limits on the categories that may qualify as fair use.  The Canadian equivalent – even with C-32′s reforms – is more restrictive.  There seems to be little risk of a claim against Canada that would not also call into question rules elsewhere.

Potential Impact

Because neither users nor rights holders will know the bounds of what can be copied as “fair dealing” for the purpose of “education”, the new fair dealing provision for education will encourage litigation to determine what can be copied without a license.

False. The test of fair dealing is well known to all and the prospect of widespread litigation is very remote.  While there may be the occasional case, this would be consistent with fair dealing in Canada over the last decade, as there have been a handful of cases that have provided all parties with considerable guidance on the test for fair dealing.  It is also open to the government and opposition parties to codify the test within the law to further remove any perceived uncertainty.

Because educational uses represent approximately 85% of the revenues collected by Access Copyright, Canadian English-language writers will no longer receive significant payments from Access Copyright. Currently almost 9,000 writers are signed up with Access Copyright. In 2009, affiliated writers received about $600 each, with a few receiving considerably more, for copying during 2008. Quebec writers affiliated with Copibec will also receive much less. This new free use would represent a significant loss to independent professional writers, whose average annual income from their writing is under $20,000.

Potential reductions in payments to Access Copyright have little to do with fair dealing.  To the extent payments may go down, this reflects changes in the way education accesses works, including campus-wide licencing of materials in databases, open access to materials, book purchases, and individual licencing.  These alternatives may result in offsetting increases in payments to writers and publishers through non-Access Copyright licencing.

Because of reduced sales of their books as a result of widespread uncompensated copying, the educational publishing sector in Canada will contract dramatically. Educational publishers will receive less revenue and will cut back on the number of titles they produce. Lower revenues will make it impossible for some publishers to stay afloat and others will be forced to reduce their publishing programs. This will mean a significant loss of income for the writers whose work is included in books published for educational markets.

There is simply no evidence that fair dealing will lead to widespread uncompensated copying or reduced sales since all copying must still meet the fair dealing test.

Publishers of trade books, such as novels, poetry and non- fiction will also see their market shrink because of widespread copying. These publishers will lose income, make smaller royalty payments to writers and cut back on both staff and their lists of new books. Trade book publishing houses will shrink in size and some may not survive.

False. It is inaccurate to suggest that full copies of novels will be copied without compensation due to the fair dealing reforms.  Such suggestions is fear-mongering at its worst.

Layoffs across the publishing sector in Canada will reduce Canadian-created content in schools, colleges and universities.

Once again, fear mongering without evidence.  If anything, new methods of distribution are increasing the creation and availability of Canadian content.

Writers will see their markets for existing works shrink, and it will be more difficult to get new works published because of publisher cutbacks. This will detract from their professional contribution to Canadian society.

Greater flexibility within the law may actually increase the market for existing works and increase opportunities for Canadian writers.

Universities, colleges, ministries of education, school boards and other educational institutions will save a relatively tiny percentage of their annual expenditures but will be faced with a significant reduction in the number and quality of Canadian publications that reflect Canada’s citizens and culture.

More fear-mongering without any evidence. If anything, schools and universities re-thinking their approach to licencing materials may find that they have more money available to invest in Canadian publications with publishers more than ready to offer new choices.

Recommendation   

Delete “education” from the list of purposes of “fair dealing”. Any exceptions should be clearly delineated to reduce uncertainty for both users and rights holders and the likelihood of prolonged and costly litigation.

After months of calling for legislative guidance on fair dealing, it is shocking to see these groups call for the absolute deletion of education from the list of fair dealing categories.  The inclusion of education is a small step from the current approach and wholly consistent with the Supreme Court of Canada’s view of fair dealing and copyright as a balance.

2.    Non-commercial user-generated content or “Mash-ups”

Issue   

Bill C-32 as drafted allows anyone to incorporate entire existing works into a “new” work without permission or payment as long as the use is non-commercial, but there is nothing to ensure that any such new use will be fair. Professional writers may not object in principle to others incorporating reasonable excerpts from their works into new creative works as long as they are credited and the use is truly non-commercial and if the new work does not interfere with the market for the original work.

This is precisely what C-32 proposes.  The provision is limited to non-commercial purposes, providing attribution if it is reasonable in the circumstances to do so, ensuring the underlying work is not infringing, and confirming the use of the work does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work.  In other words, the provision is very narrowly tailored and features protections for the original creator.

However, distribution of these so-called “mash-ups” by commercial disseminators such as Facebook or YouTube without payment encroaches peremptorily and unfairly on writers’ rights. Whether there is “a substantial adverse effect” on the original work, which would result in an infringement, will not be known until too late and may depend on how many others create “mash-ups” using the same work. This feature of C-32 represents an erosion of rights that does not exist anywhere else in the world and that would certainly put Canada in breach of the Berne Convention and similar international obligations.

False.  The limits of the provision draw directly from the Berne Convention’s three-step test as it is designed to be limited and not to apply where it significantly harms the market or potential market for the work.

Potential Impact

Without clear rules to ensure fairness to the creators of the works incorporated in “mash-ups”, the market for existing works and for sequels, films, games and other derivative works based on those existing works may be destroyed.

The provision provides clear rules and protects against harming the market for existing works.

For example, “fan fiction”, if widely disseminated on the Internet, could deter a publisher from subsequently publishing an author’s own sequel to his or her own novel.

Fan fiction is already widely disseminated and frequently increases the marketability of the original.  In fact, attempts to stop fan fiction raise serious free speech issues.  It is shameful to find writers groups seeking to stop others from writing and engaging in original creativity.

Or, a teacher could develop and post course materials on a website, such as a collection of articles or an anthology of poems, which other teachers could access freely and use in preference to a coursepack licensed by Access Copyright or an anthology made available commercially by a publisher. Writers will not be paid for these uses which piggyback on their work.

The claims that a non-commercial user generated content provision could be used as a substitute for coursepacks in education is so absurd as to not merit a full response.

Recommendation   

Delete the “mash-up” provision and engage in consultation with authors on how such a provision might be structured to allow reasonable use of another author’s work in a new work while ensuring “fairness” to that author whose work is used.

Again, the writers groups simply want to hit the delete key, much like the instances where rights holders have demanded that parents delete home videos of their children because a song was playing in the background.  Bill C-32 rightly protects this form of speech and does so in a balanced way that respects and protects creators.

3.    “Interlibrary Loans”

Issue   

Bill C-32 expands the existing exception for “interlibrary loan” to allow digital delivery directly to the computer of a reader. One copy of a book, magazine, journal or newspaper purchased and held by a single library can be the source of material delivered directly to the computer of every library patron in Canada.

This takes fear-mongering to a new level as the writers groups now claim that a digital interlibrary loan provision so restrictive that many in the library community find it useless could result in just one copy being purchased of a book for all of Canada with massive digital distribution and sharing of that single work.  The reality is that the provision is limited to digital copies requested through other libraries, the digital copy must be restricted so that the copy cannot be distributed to any other person, and it must be rendered unusable after five business days.  Indeed, the provision is so narrow that the government should be working on removing some of the restrictions, not removing the provision itself.  Moreover, some on the library community argue that digital delivery of loans is already permitted by the existing fair dealing provision in the Copyright Act.

It is already possible for a single library to provide material digitally to another non-profit library, archive or museum, but the copy must not be given to the person who has requested it in digital form. Free electronic delivery by these institutions will pre-empt rights holders’ sale of electronic books, magazines and other electronic materials that are in the holdings of a library and can be obtained without charge anywhere in Canada and also would preclude Access Copyright from ever authorizing electronic delivery to library patrons as part of its license or tariff for libraries, archives and museums.

Many of these materials are not obtained via an Access Copyright licence at all, but rather are licenced independently.  The suggestion that Canada should restrict the availability of materials in digital form so that Access Copyright can charge for it, runs counter to current practices and to the goals of a country focused on enhancing the role of the online environment to access to knowledge.

We are not aware of any other country that has a similar provision for legalized “sharing” of materials held by libraries, archives and museums that are open to the public and we believe it would breach Berne and other similar treaties.

False. This is a very narrow provision that clearly complies with international copyright law.

Potential Impact

A source of revenue for writers and publishers will evaporate before other, long-overdue revisions to the Copyright Act are enacted to make the digital distribution by libraries more secure. Royalty income from photocopying in libraries, now licensed by Access Copyright, is very modest but will decline as digital delivery becomes the norm, unless Access Copyright can license digital delivery.

Access Copyright income may decline, but it is not a result of this provision.  Rather, libraries are finding new ways to access works – particularly through open access and licenced databases – which already provide digital delivery rights without the need for an Access Copyright licence.

Recommendation   

Delete the amendment to the “interlibrary loan” exception that permits direct digital delivery to library patrons and allow collective societies an opportunity to offer a license to libraries, museums and archives that will include digital uses. The principle of copyright payment for reproduction of published works – formerly almost exclusively by photocopying and soon almost exclusively by electronic or digital means – must remain intact.

The government should not be in the business of propping up a single business model – in this case licencing digital copies through Access Copyright.  Digital interlibrary loans are a logical extension of longstanding lending policies that meet the needs of libraries, patrons, and the broader public, while providing protection for authors. The brief is asking the government to support Access Copyright rather than public access, a dangerous and misguided approach.

4.    Reproduction for Private Purposes

Issue

Professional writers do not object in principle to reproduction of their works, if legally obtained, for the truly private use of individuals. There is not and has never been any problem with the lending of a work as embodied in a physical object. But when works are in digital form and downloaded or reproduced to make additional copies without payment for unspecified “private purposes”, writers are deprived of income.

This represents an incredible leap of logic.  Note that the provision only applies to format shifting of works from non-infringing, legally acquired copies of works that may only be used for private purposes.  It is not clear how writers are deprived of income for such copies.  If anything, the clear right to make such copies increases the likelihood that consumers will purchase these works in the first place and the right to copy would be completely consistent with consumer expectations in making the original purchase.

We are not aware of any other country that has such a broad provision for uncompensated use by individuals and believe that it will violate the Berne Convention if implemented without substantial amendment.

The U.S. fair use provision has been used to cover similar copying for more than two decades.

Potential Impact

The impact of this broad exception for reproduction for private purposes is unpredictable, but it will certainly deprive writers of income and result in greater use of technological protection by rights holders. More technological protection of works will further exacerbate the frustration of users and ultimately encourage “hacking” and a general disrespect for intellectual property.

This prediction exhibits remarkable disrespect for Canadian consumers, viewing them as little more than ATMs, who can used for regular withdrawals.  The fact that the writers groups admit that rights holders may increase the use of digital locks to stop consumers from viewing or reading content they have purchased on the device of their choice demonstrates why C-32 needs a clear exception for circumventing locks to exercise such consumer rights.

Recommendation

Engage in consultation with rights holders and users specifically on the exception for reproduction for private purposes. It is premature to enact a broad exception that includes format shifting prior to ensuring adequate compensation for rights holders. Consider a copyright levy on Internet Service Provider (ISP) accounts.

It is hard to understand how there is any connection between a new levy on ISPs and consumers having the right to view or read content they have purchased on the device of their choice.  The proposal provides a fitting conclusion to the brief, which seemingly views consumers, students, educators, and ISPs as little more than sources of revenue whose only rights are those determined by the creator.  There is no balance in this vision of copyright and for that reason it should be soundly rejected by Canadian MPs.

57 Comments

  1. per use
    the writers want to be paid every time it read. per download is NOT enough, destroy everything every thirty days. /course end class. all hail the new royality-right?

    looks like a gold mine to me. Much like making the VLC illegal.

    packrat

  2. Quite frankly if c32 goes through with this protection for tpm’s that override fair use such as backups or format shifting then I’d rather see the exceptions deleted than have these misleading exceptions included.

  3. I think we are missing the point with TPM
    “The fact that the writers groups admit that rights holders may increase the use of digital locks to stop consumers from viewing or reading content they have purchased on the device of their choice demonstrates why C-32 needs a clear exception for circumventing locks to exercise such consumer rights.”

    The average user would NOT be able to circumvent TPM’s by themselves to move a book from iPad to Kindle or to their PC or TV for legally purchased media that would only frustrate the end user and force them to get a non DRMed version of the work.

    I am all for the rights to get paid but putting more and more restrictions on consumers will only push them further away. If I could loan a book to someone after reading it, why couldn’t I give it to my wife or kids after reading the digital version. I think we need to think what exactly are we buying, are we buying an end user license to read it once and it gets deleted after x days or are we buying a product (whatever format). That has to be the fundamental question that needs to be asked first.

    If I buy an end user license for a book, movie or tv show that I could only watch once myself one one product, then I would be willing to pay a very small amount of money for that license..say $2-3 for a book, $1-2 for a movie, and $0.10 for a TV episode. Anything above that would not be worth the digital version.

  4. And yet, Howard Knopf is claiming that because of fair dealing post-CCH, the Access Copyright licensing tariffs should be close to zero. Geist, on the other hand, says that even if education becomes a fair dealing purpose, it won’t have any impact on tariffs because of the Federal Court of Appeal decision – which if being appealed, so no way of knowing the outcome there although the SCC doesn’t have a good record of upholding copyright protection.

    So, who is right, Geist or Knopf?

  5. @Geist
    What I’m not seeing are Professor Geist’s compromises. In other words, what is it that he wants but is prepared to sacrifice in reaching agreement.

  6. @Bob
    He outlined those in another post. Compromise is in the title.

  7. Further to CndCitizen’s point
    “The average user would NOT be able to circumvent TPM’s by themselves to move a book from iPad to Kindle or to their PC or TV for legally purchased media that would only frustrate the end user and force them to get a non DRMed version of the work.”

    Exactly. If you have the option of purchasing a non-DRM version legally, then using a legal product or service to transform it (oh look, more product markets) you will choose it.

    If you are going to have to break the law to use the product the way you think is fair, then why not cut out the middle man altogether and just get a pre-broken version off the net? You save both time and money, with the same amount (if any) of guilt.

    I think what’s frequently missed here is this: we are dealing with a situation where both sides are trying to establish what they think a fair use entails. The problem for content generators is that, if they “win” but the end user thinks the situation is unfair, the end user can simply opt out of the transaction while still gaining the product through other means.

    The only long term solution that will work is to ensure the user’s senses of product value and consumer rights fulfillment have been satisfied, and for content generators to understand that, to maintain their revenue streams, they will have to accept declines in traditional revenue streams while creatively coming up with ways to generate new ones.

  8. @RabidWombat: “The only long term solution that will work is to ensure the user’s senses of product value and consumer rights fulfillment have been satisfied, and for content generators to understand that, to maintain their revenue streams, they will have to accept declines in traditional revenue streams while creatively coming up with ways to generate new ones.”

    That is why such services such as STEAM, NetFlix, etc provide value for their services. Buying something from iTunes or the likes (when it had DRM) and then not legally being able to move if from computer to computer or device is just plain crazy. I lost a hard drive that had all my 200+ CD’s on it a couple months ago, it took me almost 2 weeks to rip those CD’s back to my computer (this time I backed them up). We have stopped purchasing music online @$1 per track and only buy the music once it hits the wal-mart or second store bin at $1-5 bucks for the complete CD that we can do whatever we want with since it is our property and I can play it on my computer, put it in my mp3 player, put it in the car or make a backup so not to harm the original by leaving it on the dash to melt (happens a lot).

    See the whole thing I am trying to grasp is that how we consume media has changed, how the publishers distribute media has changed, the supply and demand that is structured for scarcity in physical sales no longer exists in digital media, cost of an end product has decreased drastically with Digital media but prices are higher…Why?

    With all those changes, what is the value of digital media that will make me want to purchase it with all the restrictions and limitations when the physical product is easier to manipulate/resell/backup/lend/etc and DRM free media from free services around the world are available like hulu, google, youtube, etc.

  9. The writers organizations in question seem to be living in the past…
    They seem to forget that consumers of their work have a tremendous amount of power these days. If they insist on being belligerent about rights then the consumers can simply pirate everything. Educational users can and will generate materials as part of a common effort if they have to. Perhaps some effort should be expended on coming up with new ideas on how to encourage creative effort rather than quibbling about pointless restrictions no one cares about.

    Computers exist. Deal with it.

  10. Reproduction for Private Purposes
    Michael, while what you raise is valid, I think you may have missed an important point in this para. The important word here is “lending”. The text “But when works are in digital form and downloaded or reproduced to make additional copies”, to me, references the phenomenon of sharing the work via the internet… lending physical media means that the lender no longer has the use of the media. Not so with digital copies. Remember that the reason it is legal now for us to do this for music is due to the existance of the private copying levy; this collects money which is supposed to be sent to the rights holders to compensate them for personal, private copying and also now compensates them for downloaded works. However, this doesn’t exist for writers; while the CRIA/RIAA complains about a loss of revenue for downloaded works they ignore the revenue received from the levy. The writers groups don’t have an equivalent revenue stream, and so they could make a better case for the loss of revenue (although the same arguments could be made with respect to the chances of a sale of a physical work being made as a result of the download… however for a written work there is little to no degradation of the work in a download unlike for music). While I don’t necessarily agree with them on this point, I will concede that they have a point here which at the very least deserves further examination.

    Your comment “increase the use of digital locks to stop consumers from viewing or reading content they have purchased on the device of their choice demonstrates why C-32 needs a clear exception for circumventing locks to exercise such consumer rights”, to me, does not address their concerns. The point they seem to have been making is that, in order to protect the revenue streams, the rights holders may resort to using any means allowed by law, including the use of TPMs. An exemption to break TPMs, while I support it, does not address their concerns as it simply places the desires of the consumer in front of those of the rights holder without consideration. As far as the ISP levy is concerned, frankly, how is this any different from the private copying levy on recordable media, other than in WHAT you pay the levy on and who is compensated? To be clear, I don’t support the idea of levies. To me a levy is the lazy way out, as it means that we all pay for someone violating the rights holders’ rights, or a potential violation of their rights. It is a way for the rights holders to maximize their income for no effort at the expense of my right to the presumption of innocence. However, the precedent has been set that the music industry can have a levy to compensate them for the potential to violate their rights, so I can understand the writers wanting one too. After all, what is good for the goose…

  11. Sandy Crawley says:

    Issue 1.
    Professor Geist’s response to the writers’ coalition position on the “education” exception in C-32 proves the writers point. He suggests that for all time to come we Canadian citizens, as both creators and consumers, rely on a Supreme Court case and a single ruling from the Court of Appeal, rather than on clarity in a new law. As to his pre-judgement of such constructive suggestions as may come from the organizations who form the coalition once the committee is struck, I’m sure he understands the political process well enough to know that the devil is in the details, that clear final positions are not developed (let alone shared) until the attitudes of all players are discernible.


  12. @Pat: “the writers want to be paid every time it read. per download is NOT enough, destroy everything every thirty days.”

    Everybody wants that. Pay per view model.

    But… since I can’t keep the book… why should they keep my money?

    If they want such deal, then they will have to agree that my money is not paid but licensed for use 30 days too. They could keep just the interest they earn on it.

    Nap.

  13. @napalm
    haha that’s brilliant dude! And fair.

  14. The truth about DRM
    …it all boils down to them trying now to rent you a book for the same price as you were previously able to fully purchase one.

    Like the auto rental industry would try to rent you a Chevrolet Malibu for $25,000 per month. ROFL.

    And here’s the truth about why they really want DRM. They absolutely need such schemes in order to create rentals.

    It’s not about piracy. It’s about creating rentals. And they cannot simply create “for profit” libraries where they lend you printed books as we already have them and they would be competing with *free*. So they need a transition to digital and DRM in order to create this scheme.

    Nap.

  15. Slave Labor?
    “This new free use would represent a significant loss to independent professional writers, whose average annual income from their writing is under $20,000. In 2009 affiliated writers received about $600 each .. for copying.”

    Some clarification on this comment is needed …

    1) If your average professional writer is only earning 20K a year and IF this is for the equivalent of a 40 hour work week then that is shameful and there is something seriously wrong with the contracts they have with the publishers. They should either seek better contracts or possibly seek other employment rather that work for minimum wages. I fail to see how such exploitation by the publishing houses is a case for further exploitation of the consumer by limiting valid fair use.

    2) If on the other hand the 20K is supplementary income, then how much time and effort does the average independent professional writer employ towards that figure? Without that information it is not possible to ascertain if they are actually being fairly compensated or not?

    3) A $600 bonus on $20,000 is hardly a significant portion, even if 20K is their sole income. Evan a 50% ($300) adjustment in either direction due to legislative changes is not going to break the bank or create a windfall.

    It sounds like all the effort involved in this might be better directed to negotiating greater renumeration from the publishers or researching better ways to leverage technology to create more lucrative opportunities for creators.


  16. “If I buy an end user license for a book, movie or tv show that I could only watch once myself one one product, then I would be willing to pay a very small amount of money for that license..say $2-3 for a book, $1-2 for a movie, and $0.10 for a TV episode. Anything above that would not be worth the digital version.”

    In reality, for movies and TV shows, the cost is higher than this. With so many ISPs capping Internet usage these days, there is the often overlooked, hidden cost of bandwidth usage. A full 1080p HD movie can easily run over 10GB. 10GB will cost me approximately $11 in Internet bandwidth. Even at $1 for a movie, at that cost it will actually cost me $12, I might as well wait for it to hit the bins, buy the original BD and save my bandwidth for something else.

    “The average user would NOT be able to circumvent TPM’s by themselves to move a book from iPad to Kindle or to their PC or TV for legally purchased media that would only frustrate the end user and force them to get a non DRMed version of the work.”

    I’m not so sure this entirely true anymore. Our population base is increasing tech savvy and there are so many tools freely available and easily found with a Google search. Those who are not tech savvy generally knows someone who is and usually willing to help out.

    “The impact of this broad exception for reproduction for private purposes is unpredictable, but it will certainly deprive writers of income and result in greater use of technological protection by rights holders. More technological protection of works will further exacerbate the frustration of users and ultimately encourage “hacking” and a general disrespect for intellectual property.”

    At least they acknowledge the fact that strict TPMs will have the opposite effect of their intended use, though I disagree that an exception for reproduction for private purposes with cause any lost revenue. VERY FEW people will be willing to buy multiple copies of the same work just to play/view it on multiple devices. TPMs or not, those who are going to copy are going to do it regardless of what C-32 says.

    “the writers want to be paid every time it read. per download is NOT enough, destroy everything every thirty days.”

    I don’t see this happening and it would cause untold amounts of lost revenue. On top of that, if they try it, I give it less than 24 hours before someone releases a crack to remove the time limit and/or TPM altogether, especially if they try it on movies or music. Even with Kindle, most people I know convert the Kindle file to an ePub to protect their purchase.

  17. Another irratating point…
    They B1tch and B1tch and B1TCH about copies having value. But where does the value come from? Please someone tell me where the value comes from? Historically and currently they make a physical copy and sell it to me. Production cost, raw materials, shipping to vendors, etc. were all covered in the cost. Now with digital, most of the cost of production goes away, so they want to produce a single copy and sell multiple copies of it to a single person, quite often at more than a physical copy, just for the “right” to play it on multiple devices. It’s very hypocritical to say we can’t make copies for personal use, when they only had to make a single copy themselves.

    It’s greed, pure and simple and they won’t fool many for very long. If anything digital copies should be vastly cheaper than physical copies.

  18. Bob,

    As far as I can tell, the professor and Knopf are actually in agreement on the point you mention. Funny how it doesn’t seem that way when Geist is offering his compromises.

    http://bit.ly/cqJLMM

  19. @Sandy “As to his pre-judgement of such constructive suggestions as may come from the organizations who form the coalition once the committee is struck, I’m sure he understands the political process well enough to know that the devil is in the details, that clear final positions are not developed (let alone shared) until the attitudes of all players are discernible.”

    Certainly everyone is allowed their opinions, but coming to the table with a one sided wish list rather than a spirit of compromise is not constructive from either camp. AC’s attempt to silence their critics before the copyright board is a stark example of this.

  20. “The claims that a non-commercial user generated content provision could be used as a substitute for coursepacks in education is so absurd as to not merit a full response.”

    Michael, can you clarify this statement? Which part is absurd?

    That someone would willing put together a compilation of this manner and put it up on the internet for free?

    That it could replace commercial course packs?

    Or are you saying that its absurd to think that this would satisfy the criteria of being “fair”?

  21. Sandy Crawley says:

    @IanME
    It’s not the copy that has the value, Ian, it’s the content.

  22. Alas, civility where hast thou hidden thyself?
    John, for all your talk of clear legislative guidance and compromise the above letter seems to be more of a cut and gut approach along with citations of obvious worst case scenarios. Don’t you ever get tired of the hyperbole not just from the ‘enemies’ camp but also your own?

    Your assertion on your blog that the ‘attacks’ by consumer advocate groups is getting nasty may have some merit in regards to the language being used, passions do flare. On the other hand there are far more insidious forms of ‘nastiness’ such as the hypocrisy of blaming others for behavior you participate in yourself, or attempting to quash debate all together by limiting the participants [for example AC’s attempt to limit other views being presented at the copyright board).

    Everyone needs to pause and take a good long look at themselves for any lumber that may be lodged lodged in their corneas.


  23. @Sandy: “It’s not the copy that has the value, Ian, it’s the content.”

    Good to know. So how many times do you have to buy/license/whatever_it_is_called_when_you_buy_a_disc the same content in order to make happy “the industry” and “the artists”?

    Let’s hear a figure. Like in “we estimate that the average household makes 2 extra copies, usually 1 for backup and 1 for viewing on additional device”.

    Then jack up the price of that damn DVD upfront. Sell it for $89 instead of $29 if you think that that’s what it’s worth. Scared no one will buy? so you try to sneak in hidden costs – like levies and taxes, or buying “additional” licenses for “additional devices?

    Nap.

  24. How about some more clear guidance?
    @IanME “It’s not the copy that has the value, Ian, it’s the content.”

    Which is why we need to make clear if consumers are purchasing, or renting, digital content. If it is renting for single use and possible timed obsolescence then the pricing structure must change to fit those new realities. Digital distribution should also reflect the substantive savings over physical transportation and stocking costs in the final sale price to the consumer (which it often currently fails to do).

    Failure to address these issues in hopes of maintaining physical model income streams with less the valuable restricted digital content is the reason there is so much back pressure from the public.

  25. If the copy is valueless, then why are authors worried about private copying? I mean, if I make myself 5 copies, then those 5 copies has better have some value if you want to charge me for them. Not the content, the copies. I already bought the content once, why should I buy it again?

    If your worried about me giving a copy to my friend and keeping a copy for myself (or other people in my household, where I would not have bought more than one copy of a physical book either), that’s when it becomes a genuine concern, and something that is probably not covered under the private copying section of the bill. If it is, that may need to be changed. Personally, private copying should really only e in a household where one physical medium would have been used by everyone anyway. Outside of that, if you give a copy to someone outside then it becomes questionable.

    I still disagree that TPMs need any sort of legal protection (other than the bare minimum to meet WIPO) and the concerns brought up here really don’t change that at all. If you want to use TPMs to try and keep the market like it is now, then you really need to learn to adapt to the times. Things have changed, Pandora’s box is already open an no amount of trying to legislate it closed is going to change that.

    I also disagree with levies, mainly because I don’t think that I should have to pay for stuff that I’m not doing because I happen to play video games online and watch Netflix. Levies, if used, should only apply to single use devices/services. If the device has more than one use, then sorry you don’t get money from me (which would be the opposite of the blank CD levy now).

    On the subject of bought, if you want to to have to pay for every copy I make for myself, then you’re going to have to work out a licencing deal because I’m not paying the same amount of a digital book I’m licencing as I would for a digital book I’m buying.

  26. I would, quite frankly, only recommend the following two changes to C32: 1) that the privilege of legal private copying of copyrighted works not be vetoed by the existence of digital locks on the work; and 2) that technologies which are developed for the purpose of privately copying such works not be made illegal simply because they may happen to be getting used (possibly extensively) by people who do violate copyright.

  27. @Sandy: “It’s not the copy that has the value, Ian, it’s the content.”

    Ahhhh, I see. So why is everyone so uptight about the private copying levy? If copies don’t have value (Which I’ve strongly stated a number of times), then, logically, I should legally be able to make private copies for my own use and copy them to whatever device I want for my own use…provided I purchase the original “content”. They’re trying to force us in to a PPV type of scheme and I, for one, will have no part of it. Unless I’m getting it for next to nothing, since I’m receiving nothing in return, I will never partake of such a system. They want to sell us a “limited license”, not a “copy”

    This is the same reason I won’t buy software with such licenses. I want to actually get something for my money. I can live with having to pay for upgrades, but want the option to opt out and I won’t buy software that will “expire” after a certain time period.

    With C-32, if they try to lock down Canadian content like this, I will look to Europe, Asia, South America, etc. for suitable replacements. We live in a global economy and there is so much out there, so, so much more than the limited Americanized entertainment we’re subjected to here. YouTube, iTunes, Napster, etc are wonderful tools for finding and previewing such material. Then go to Walmart or HMV to buy it. Quite often they’re not big sellers and are perpetually on sale…often for less than buying on-line. I just bought 3 CDs on the weekend for about the same price as I would have paid on-line. One from a band from Finland and two from a band from The Netherlands. I ripped them in to MP3s at a much higher quality than those I could have purchased on-line and still have the original CDs in case I need them. I recently bought a BluRay concert from the same Dutch band from Amazon.fr. It was never released here in BluRay, only DVD. I suspect it won’t be much longer that I’ll be able to do this. How long before they lock down foreign Amazon and eBay sites? D4MN GEOBLOCKING!!! We already have to pay an “Import fee” at Amazon.com, and even then it’s often still cheaper.

    The irony is that the more they lock us down, the more foreign content they make legal to download. Under the Berne Convention, if something was never released here, legally I then have the option to buy or attain a non-original copy if I so choose. THEN, I could even “legally” sell copies of it. Once upon a time, that was the only way you could get many foreign horror movies. I’m far too lazy for that sort of racket, but the option is there.

  28. Once something is digitized a exponential spread of mirror copies throughout the web is pretty inevitable. Hacking is a sort of neural net, tens of millions of individuals trying different approaches and passing on the ones that work will always be a step ahead of any central authority. Trying to stop private copying and distribution is Canute like, it wont work; It will always cost more than it could ever pay.

    And hypothecated transaction taxes reward the wrong people , real creatives do not hang around conferences and author clubs: “Solitude and silence; Only the mediocre need fear it”.
    @ john stop whining on about copies, be grateful that people still want to read. and PLEASE Write something new for a change.

  29. The logic of copy v. content seems to have completely eluded folks over here for a very long time. I know I’ve tried to explain it many times on my own blog only to be met with the same kind of incredulous “oh, yeah?” comments as Sandy has gotten this time.

    When you buy a DVD, you are buying a copy of a film, not the film itself. The rights that adhere to the original content (copyright!) do not adhere to the copy. If you want to do extra things with the copy you’ve bought… things that were not intended in the original sale, there must be negotiation.

    That’s what’s happening now. And that’s why “I bought it, I can do what I want with it” is a very weak argument in the negotiation.

    You didn’t buy “it”; you bought a copy of “it.”

  30. That said. Commercial publishers have valid reasons to be worried about university libraries becoming tax-exempt not for profit, commercial rivals.
    Universities these days do mix up public and private in ways that can be an issue. There are potentially real problems about education copying becoming a cover for de-facto commercial copying activities.

    University libraries,m especially in the subject areas that do not get a lot of full fee paying students, are under lots of pressure to generate income from their collections.

  31. @degen
    Lots of nice discussion tonight…

    “You didn’t buy “it”; you bought a copy of “it.”

    So, we are buying a copy of a book, that we can resell, lend, burn in fire, whatever. So really we are paying for the material that is in the book itself. hmmm… but the argument is saying copying is a lost sale, so if we are only buying a copy, then why should we pay for a copy when it is not original. If we extend this further down the logic train, if we are buying a copy that costs nothing to copy, then what are we paying for? Are we paying for the right to consume it once then delete it?

    The main question that most people are saying is what are my rights when I give you money for something. If it is limited in number of uses, accesses, transfers, reply, resale, etc we want to know about it and will pay accordingly for the restrictions or not at all if there are free alternatives (Google, etc) for the same product or similar in features functions. Open Source is here to stay, training guides and walk through guides are dead because of end users wiki forums. The greater collaboration of people provides more information then any one person can put into a book…similar to movies and music.

    Until the Canadian Citizen and consumer understands what their rights are and if they are fair, they will not back this bill…at this point the consumer have no rights just more restrictions and PPV models being thought up.

  32. ‘When you buy a DVD, you are buying a copy of a film, not the film itself. ‘
    ‘You didn’t buy “it”; you bought a copy of “it.” ‘

    ok Degan,
    Then why should I have to pay again if I want to watch “IT” on an ipod as opposed to a tv?

  33. ISP’s are already taxing us
    @IamMe – Didn’t even think of that…I just checked my ISP bill and they are charging $2.00 for every GB over 60 gigs per month. So if you download a netflix movie that is 10 gigs they are charging you $20 for the bandwith for “renting” that movie. I think that the big ISP’s in this country need to smarten up quick or these streaming services will not be brought into Canada because of these ISP taxes they implement…

    So I guess wallymart is still cheaper and provides more options….and we are trying to implement a digital economy when the ISP’s hold the biggest say….something isn’t right.

  34. Democracy triumphs once again
    Access Copyright looses bid to bar intervenors in it’s University tariff.


  35. degen said: “You didn’t buy “it”; you bought a copy of “it.”

    Yes, a copy indeed. Like anything else, I “bought” the copy, I “OWN” THE COPY, what gives anyone the right to try to tell me how I should be able to use that thing I “own”? The problem is, John, that even if it is passed in its current form. It won’t be enforcible and will ultimately cause even less respect for copyright. Even the writer’s groups mentioned in this article conceed to this. Tools such as deCSS, VLC and any one of several free media and Kindle converters, which would infringe under C-32, won’t magically disappear from Google searches, the millions who use these tools every day won’t magically decide to stop just because some a$inine legislation says they have to. All of the US, the UK and the EU have moved towards loosening copyright and fair use. Yet, you would have us start with a vastly more strict model than any of them. It will fail even more spectacularly than the DMCA in the US or 3-strikes and HADOPI in France. In a global economy it’s the WRONG approach.

  36. @Degen,

    So when I buy a pre-owned DVD at blockbuster, who’s copy am I buying?

    Hey Degen… Also, say you got your full DRM needs. Do you support the resale of DRM products? Say if I bought one of your books with all the TPM’s you could put on. Would you support me being able to sell it again as long as any copy on my source device was deleted?

  37. Oh, for common ground …
    I think the root of the problem here is the expectations of the consumer and the allowances of the distributors are so far apart that there is little common ground to work on. Now that the lock of distributional control has been for a large part taken out of their hands, the traditional players will have to come to the table with something to offer, otherwise infringement will continue regardless of hopes, wishes, laws or litigation.

    Obviously the balance is way out of whack or there wouldn’t be a problem to begin with.

    Creators need to be paid, consumers expect flexibility in their media. Infringement needs to decrease, value needs to increase. In some ways it’s complicated in others it’s just plain simple.

  38. @CndCitizen
    I am an avid user of Steam. It has pretty much completely obliterated any thoughts of pirating on my part, and has actually increased sales as far as I’m concerned, because I’m buying a lot of indie/small publisher games I might not have considered otherwise.

    The biggest advantage is of course, as you mention, the portability from computer to computer as I upgrade over time. I enjoy the sense of security it gives, knowing that in the case of a catastrophic failure all I’ll lose are my saved games, and the time it takes to reinstall all the software.

    As you say, writers and other content providers are hanging on to tired revenue models while use models, and the expectations they generate, change around them. Rather than explore the new platforms for innovation opportunities they are trying to enforce their specific business model, and they are doomed to lose because there is no effective way to enforce it.

    They can attempt to criminalize the behaviour and throw the guy that photocopied a copy of 1984 in the cell between the pedophile and the murderer, but they’ll only get 0.000001% of the people doing it, and recoup none of the revenue they’ve lost.

    The only way to effectively curtail the problem is to:

    1. Provide a legal alternative that satisfies the consumer’s senses of fairness and value.
    2. Accept the new revenue model that creates, or provide the additional value it takes to maintain or increase previous revenue levels.

  39. .. and cooperation.
    Once again to clarify, I do not support ‘piracy’ and I believe that creators should be compensated for their work. I would posit though, that the level of infringement we see today is a symptom of the dissatisfaction of the current ‘deal’ the media industry offers consumers.

    So to have the position … @Degen “If you want to do extra things with the copy you’ve bought… things that were not intended in the original sale, there must be negotiation.” … is fine, but to also realize the customer may not wish to participate in such an agreement.

    Yes John I said ‘customer’, I know you don’t like that term but copyright is not just all about creators. Without customers, there will be few creators and then only as a hobby. If you want to have art, books, cinema and be compensated for it then you must provide a product at a value point the customer will agree to. The dissatisfaction out there indicates that this is not the case today. It’s time for new models and a reciprocity that will benefit both parties. The road to there is not paved with new laws to embed old models but creative thinking and an honest commitment to act in good will, from everyone.

  40. @Degan
    Yes, I bought a copy. I can do with that copy what I want. If you don’t want me to copy my copy to another device, then sell the copy at a much lower price than the physical copy since the digital is now inferior.

  41. To amend, I can do with that copy what I want as long as I don’t try to make money off of selling/giving copies of said copy to other people. At that point, it becomes copyright infringement if I keep the original copy for myself.

  42. @RabidWombat..love the moniker…”increased sales as far as I’m concerned, because I’m buying a lot of indie/small publisher games I might not have considered otherwise.”

    Once I installed STEAM, I have increased my purchases for media by I don’t know how much, some games I haven’t played yet because they were interesting and on sale and indie. Big companies like Ubisoft I had an issue with their DRM when I purchased it even through STEAM so they are excluded from future purchases. There are a lot of good games out there that are indie that can take up many many many hours of travel time that you don’t need the blockbuster with DRM loaded onto your system.

    http://members.cox.net/rgettman/ (in no way affiliated with myself) is a game that I played on the c-64 and in ported versions over the years. It is like risk that is all about strategy…no bells or perks…straight strategy like chess….think if someone tried to copyright chess….think it would have survived for 3 thousand years?

    Anyway…yes I agree, for people to purchase a product it has to have a value…if it doesn’t then they will not purchase or if they do and are not satisfied then they need to be able to return it….cough cough transformers game….movie…etc.

  43. What would it cost to abolish Access Copyright?
    It seems writers make $20,000 a year from writing, of which $600 from Access Copyright is at risk from all these uses. If those revenues go down to zero that’s 3% of their income gone. Let’s compensate authors for that income and never speak of it again. When you buy a book, about 10% goes to the author as royalties, and up to 20% for e-books. In order to fully compensate them for their loss, your $10.00 book would cost you $10.05. Hands up those who say give them the nickel and abolish Access Copyright.

  44. Laurel L. Russwurm says:

    Bill C-32 is Premature Any Way You Slice It
    As a writer I find it absurd our government is even contemplating copyright legislation without first establishing the meaning of words like “buy” “ownership” “copy” and “license”.

    Not just the legal definition, we need a real consultation that asks the majority stake holders — those forgotten souls known as citizens– what they believe these words mean.

    The confusion reminds me of a running gag from a movie called “The Princess Bride” which I dare not quote for fear of misconceptions around what is actually “fair dealing.”

    That last copyright levy’s track record should more than provide a cautionary tale of why NOT to go by that misguided route again. We owe it to our actual creators not to punish them in that particular way.

  45. Dear distributors & infringers;

    Stop that whining now, I mean it!

    … anybody want a peanut?

  46. They can have all the copyright
    restrictions they want as soon as they remove the cost of physical media, distribution, packaging and etc… from the purchase price.

  47. the content
    yes, the content is value

    http://www.w-tb.com

  48. gaps
    Michael,
    What “gaps” does the proposed inclusion of education fill in?
    Are you suggesting that the multiple copies of works (that teachers routinely make for the purpose of ‘education’) would not be covered by an ‘education’ user’s right? (i.e. deemed fair) Or do you think that is for affected rights-holders to have to test in court?


  49. @Laurel: “Not just the legal definition, we need a real consultation that asks the majority stake holders — those forgotten souls known as citizens– what they believe these words mean.”

    We’ll never get there. “The industry” loves to play Humpty Dumpty ‘it means just what I choose it to mean – neither more nor less.’

    What I, as a consumer, would like to see is that:

    - I would have unrestricted use of it inside my household
    - I can resell it or lend it to my friends or donate it or make a gift
    - I have the right to use short quotations of the material (with proper atribution to the authors
    - At same time I understand that I shalt not counterfeit/copy it and distribute such copies outside my household

    It is very simple and it doesn’t look unfair/unbalanced/radical extremist/pirate to me at all. If it actually is please let me know where I’m wrong.

    Nap.

  50. sad sad little man
    how can the author of this article , and anyone supporting him not realize you are a uneducated child , you dont deserve rights because you grant none to others you dissagree with , just remember when this happens , you deserve what happens , you cant hide any longer because we know the questions to ask , do you believe in god , if the answer is yes , they you believe your actions here on earth dont matter because you will be forgiven. you deserve death after you watch your loved ones …….. i think you understand right ?

  51. And more nonsense …
    It seems like ‘digital creators’ today are often labeled as an elitist bunch, and they cry bitterly about it. Well here’s maybe a reason why …

    http://news.cnet.com/8301-13506_3-20022957-17.html

    I suppose I should have sent Ford a check as I just bought a used pickup … darn how could I have forgotten to do that!

  52. The video game industry seems to be trying to kill the used game market, for consoles at least, by offering exclusive items when you buy it new. You can of course get those items if you buy them used, but you need to pay for them.

    The used game market for PC games is pretty much already dead at the moment, especially as more and more are tying the games to specific accounts. Though in the case of Steam and Battle.Net these have benefits in that if I ever lose my disks or need to move things to a different computer without a disk drive, I can just download the game. Ubisoft on the other hand has pretty much made it so I will never buy a computer game from them again. But their method is much better than the older methods like Securom that destroyed some people’s computers or made it so that the game could not be played despite having been legally bought.

    So to the people who are curious about how to survive in a digital world, there are examples out there, you may just need to actually try them.

  53. The example of Steam is very important. The service demands that consumers sacrifice certain rights they’ve long enjoyed. For example, they lose the ability to resell, or otherwise pass along their ‘purchases.’ But they get new benefits in return. They can download any game they ‘own’ infinite times; they no longer need a backup, and they can play on any computer. All with no strings attached, no invasive DRM installed on the computer.

    To date, while PC game publishers bleat on and on about piracy killing the business, 30 million consumers have embraced Steam. (For a sense of scale, the Microsoft Xbox 360 and Sony PlayStation 3 each have something over 40 million owners. Steam has risen from nothing to be fully comparable to those big-name platforms.)

    Consumers are eager to spend money on content. They just want to feel that they’re not being played for suckers. Is that too much to ask?

  54. Rhetorical question …
    @Fung0 “Consumers are eager to spend money on content. They just want to feel that they’re not being played for suckers. Is that too much to ask?”

    And creators want to be compensated for their efforts, the two really go hand in hand so let’s show the door to whomever is getting in the way … *cough* RIAA/MPAA/CRIA/USTR *cough*

  55. Object lessons …
    Chris, I use steam for all my PC entertainment purchases. I realize I am loosing the ability to resell my game when finished but the convenience that the service offers makes up for that in my estimation. Also the prices on most of their offerings, especially the sales, has caused me to purchase more (both in quantity and total $$$) that I ever did from the ‘old business’ models.

    Hmm .. something to be learned here .. but I suspect the **AA’s are too busy lobbying to notice.

  56. Yeah, Steam is definitely a perfect example of something that gives creators and consumers controls. Now of course not everyone in both camps likes it, but it’s popular enough at this point that it should show that something like that is possible.

    I don’t have a huge amount of hope of some of the creative industry to actually maybe try new business models that may or may not make as much money as they used to based on other methods that seem to work. But one can hope.


  57. Like Crockett, I use Steam exclusively. It’s convenient, portable and usually much cheaper. It also gives me access to all kinds of wonderful Indie games that I would otherwise not have access to. Machinarium, Braid, World of Goo and Osmos are all prime examples. The only real right you lose is resale and I’m too lazy to resell my games anyway.

    Some music sites I’ve used are starting to offer a similar feature. eMusic for example allows you to redownload any music you’ve already purchased. This is especially important in the case of some catastrophic event where you lose everything. eMusic also uses MP3 exclusively and generally uses a higher quality encoding than both Napster and Puretracks. In comparison, I recently bought an album from Napaster and one track failed to download properly. I spent an hour on the phone with them before they eventually agreed to let me download it again. And even then, they had to give me a one track credit, so I basically had to remove it from my library and rebuy the track. AND the album was DRM’d…which was promptly rectified. If I had my time back, I would have simply bought the actual CD from Amazon since it was the same price. I’ll not make that mistake again.