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Clearing Up the Copyright Confusion: Fair Dealing and Bill C-32

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Wednesday December 15, 2010
Fair dealing has played a prominent role in the hearings on Bill C-32, with education and creator groups debating the merits and impact of the proposed reforms.  Unfortunately, much of the discussion has confused rather than clarified the issue with misleading claims about potential losses, inaccurate comments on copyright and Internet materials, and dubious arguments about the compliance of the reforms under international copyright law.

Given the recent discussion, this lengthy post [also available as a PDF] seeks to clear up the confusion with an opening basic introduction to fair dealing and the proposed reforms followed by answers to many of the questions that have been raised over the past few months (a similar review of the digital lock rules can be found here [PDF]).

Bill C-32 and Fair Dealing - The Basics

Fair Dealing Today

Canadian copyright law currently includes a fair dealing exception as well as specific exceptions for certain classes of works and certain users.  These include exceptions for research, private study, news reporting, criticism, and review.  Until fairly recently, the Canadian fair dealing provisions were generally viewed as quite restrictive, both with regard to the limited number of categories that statutorily qualify for fair dealing as well as in the way that the Canadian courts interpreted the provision. 

That changed in 2004, when a unanimous Supreme Court strongly affirmed its support for a balanced approach to copyright law and in the process breathed new life into the Copyright Act’s fair dealing provision in a case called Law Society of Upper Canada v. CCH Canadian.  In reviewing copying practices in the law library of the Law Society of Upper Canada, the court stated:

The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.

In determining whether a particular use (or dealing) met the fair dealing standard, the Court established a two-part test.  First, the use must qualify for one of the fair dealing categories. Second, assuming it does qualify under one of the categories, the court identified six factors to consider to gauge the fairness of the dealing:
  1. The Purpose of the Dealing - the Court explained that “allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights.”
  2. The Character of the Dealing - one should ask whether there was a single copy or were multiple copies made. It may be relevant to look at industry standards.
  3. The Amount of the Dealing - “Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness.”  The extent of the copying may be different according to the use. 
  4. Alternatives to the Dealing - Was a "non-copyrighted equivalent of the work" available?
  5. The Nature of the Work - “If a work has not been published, the dealing may be more fair, in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."
  6. Effect of the Dealing on the Work - Will copying the work affect the market of original work?  "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.
Since the CCH case, there have been several noteworthy fair dealing cases, including a B.C. case which ruled that the defence of parody was not available under fair dealing (not covered as one of the categories), a Federal Court of Appeal decision that the research category includes consumer research (in a case involving song previews), and a Federal Court of Appeal decision that ruled that certain classroom copying qualified as a category of fair dealing but the dealing itself was not fair.  Requests have been filed to have the Supreme Court of Canada consider appeals of the two Federal Court of Appeal decisions.

Fair Dealing Under Bill C-32

Bill C-32 introduces three new categories to the Copyright Act's fair dealing provision - parody, satire, and education.  The proposed changes only change the first part of the fair dealing test by adding additional categories.  The new categories - like the current categories - are still subject to a fairness test analysis.

The inclusion of three new categories represents a compromise position. During the 2009 copyright consultation, many stakeholders called for the implementation of the "such as" approach, which would have made the list of categories illustrative rather than exhaustive.  In doing so, the approach would have made Canadian fair dealing more like the U.S. fair use provision, but backed by Canadian jurisprudence.  At the other end of the spectrum, some stakeholders argued against the introduction of any new fair dealing categories.  Bill C-32 strikes a middle ground by adding two categories requested by creator groups and one requested by user groups.

Bill C-32 and Fair Dealing - The Questions

The fair dealing reforms in Bill C-32 have generated considerable discussion and confusion. The following questions have been raised in committee and in the media.

1.    Won't the fair dealing reforms allow education to make unlimited copies without compensation?

No. As noted above, Canadian 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.

While this means that the Canadian courts have already established limits on fair dealing, addressing ongoing concerns could involve codifying the six-part fairness text within the Copyright Act.  This would ensure that judges would be required to assess the fairness of any use – including education – before it was treated as fair dealing. 

2.    Isn't the six factor test established by the Supreme Court too "ambiguous"?

No. While Douglas Arthur Brown of the Writers Union claimed the test is too ambiguous in his recent committee appearance, Access Copyright took a different view in a brief filed earlier this year with the Supreme Court, arguing that the flexibility in the test is a good thing:

Access Copyright submits that there is no benefit in having this Court determine for all future cases that, where multiple purposes exist, one person's purpose should prevail over another's, or that when multiple copies are made, the court should look to the aggregate amount of copying in preference to the amount copies from each individual work. Such determinations would clearly be counter-productive since they would confine the future application of the exception and limit the trial judge's appreciation of what is fair in each particular case.

This Court held in CCH that the six fairness factors provide a 'useful analytical framework' which 'could help determine whether or not a dealing is fair.' It is recognized that the factors 'may be more or less relevant' depending on the facts of each case, and that 'in some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.'

Thus, in CCH this Court stressed that fairness depends on the facts of each case.  The 'bright lines' requested by the Applicants are simply not possible where a case by case analysis is required. The change of any one fact may render a situation that was fair, unfair.

In other words, even Access Copyright appears to support a flexible test that leaves some latitude to the courts.

3.    Isn't the fair dealing reform an unbalanced approach that solely addresses education concerns?

No. As noted above, Bill C-32’s fair dealing reforms represent the government’s attempt to strike a balance between those seeking a U.S.-style fair use provision and those opposed to new exception categories altogether. 

4.    Won't extending fair dealing to education dramatically reshape the ability for education institutions to copy works without compensation?

No. Fair dealing in education is not new. Fair dealing already encompasses research, private study, news reporting, criticism, and review.  These categories already cover a considerable amount of copying on Canadian campuses.  These latest reforms are not revolutionary, but evolutionary – reforms that will help enable the use of new technologies in the classroom and support student creativity, innovation, and curiosity in their scholarly pursuits.

5.    Isn't the fair dealing reforms really about saving money for education?

No.  Educational institutions and students spend over a billion dollars each year on books and hundreds of millions of dollars on licencing for access to databases.  That will not change with the inclusion of education within fair dealing. 

Rather, the addition of education will open the door to the use of new technologies in the classroom without fear of potential liability.  For example, one of my colleagues notes that he sometimes uses a photograph from court documents as part of his classroom discussion.  Copying the photograph for research or private study purposes is clearly permitted, but extending the use to classroom instruction, podcasts, or webcasts raises potential concerns. Such uses would likely qualify as fair dealing.  Similarly, group and collaborative studies, which may otherwise fall outside the private study definition, could be captured by the education category.  Regardless of the specific use, all uses within education will still need to meet the fairness test.

6.    Is the extension of fair dealing to education a violation of international copyright law?

No. Many countries have implemented far broader fair dealing (or fair use) reforms.  The best known is the United States, which includes an open-ended fair use provision that includes specific mention of teaching including multiple copies for classroom use.  Fair use can be found in other countries including Israel and the Philippines. The Israeli provision, adopted in 2007, features an illustrative list of categories that includes instruction and examination by an educational institution. 

At international law, exceptions and limitations within copyright law, whether described as fair dealing, fair use, or simply enumerated exceptions, enjoy widespread acceptance.  The Berne Convention’s Article 10 includes a specific, though somewhat limited, fair use provision that focuses primarily on quotation, educational use, and attribution.

Since the Bill C-32 extension is limited by the existence of the six factor test adopted by the Supreme Court of Canada and the likelihood of an international challenge is incredibly remote.

7.    Aren't educational institutions reducing payments to Access Copyright because of the C-32 fair dealing reforms?

No. Potential reductions in payments to Access Copyright have little to do with fair dealing reform.  Post-secondary institutions and Access Copyright are currently before the Copyright Board on the issue of a potential tariff. To the extent payments may go down or education may reconsider its use of the Access Copyright licence, this primarily 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.

8.    Won't the extension of fair dealing to education result in massive new litigation?

No. It is always possible that there will be litigation on fair dealing - as noted above Access Copyright just won a major case on the fair dealing issue - but the norms will not change with C-32 and there is no reason to believe that the bill will open fair dealing litigation floodgates (unlike the digital lock provisions, which are likely to face a constitutional challenge).

Publishers already have the right to sue to enforce copyright. This is how the copyright system works - rights holders have rights and the power to turn to the courts to enforce those rights.   Over the past 30 years, there have only been occasional fair dealing cases and that seems likely to continue with or without reforms.  Moreover, jurisdictions with even broader fair dealing or fair use provisions rarely experience significant litigation between publishers/authors and educational institutions.  Indeed, even in far more litigious U.S., such cases are rare.

9.    If massive litigation is unlikely, how will fair dealing rights and limits be respected?

Experience in other jurisdictions suggests that best practice guidelines will quickly emerge.  The reality is that neither publishers/authors nor educational institutions want to engage in expensive litigation. The experience in Israel is instructive. A forthcoming article in the prestigious Journal of the Copyright Society of the USA describes the experience to date in developing fair use best practices for higher education institutions in Israel.  That experience was based on similar efforts in the U.S.

10.    Shouldn't the term "education" be defined to identify specific types of education institutions?

No. First, there is no need for greater guidance on the meaning of "education" and, even if there was, the guidance would be unlikely to change certain groups' concern with its inclusion in fair dealing. By using the word alone, the government has sent a clear signal that it means education in the broad sense.  In fact, this is consistent with the Supreme Court of Canada, which ruled in Vancouver Society of Immigrant and Visible Minority Women v, M.N.R.:

There seems no logical or principled reason why the advancement of education should not be interpreted to include more informal training initiatives, aimed at teaching necessary life skills or providing information toward a practical end, so long as these are truly geared at the training of the mind and not just the promotion of a particular point of view...there is no good reason why non-traditional activities such as workshops, seminars, self-study, and the like should not be included alongside traditional, classroom-type instruction in a modern definition of “education."

While the government could limit the scope of who qualifies under "education", there is no doubt that any definition would include universities, colleges, and secondary schools, the very institutions that groups such as Access Copyright identify as raising concerns with the inclusion of education within fair dealing.  The reality is that a broad definition should not raise concerns, since any use must still meet the fairness analysis.

11.    Aren't the C-32 fair dealing reforms bad for the economy?

No.  In fact, the opposite is true. The 2006 Gowers Report on Intellectual Property, the leading United Kingdom study on intellectual property reform, concluded that “‘fair uses’ of copyright can create economic value without damaging the interests of copyright owners."

12.    Have the Canadian courts commented on the proposed C-32 fair dealing reforms?

Yes. 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. The court noted:

I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright". However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.

13.   Is it true that the digital lock rules contained in Bill C-32 trump fair dealing?

Yes.  When asked directly about the issue during committee hearings, Canadian Heritage Assistant Deputy Minister Jean-Pierre Blais was unequivocal in confirming that digital locks trump educational fair dealing rights under Bill C-32.

While some have argued that the act distinguishes between access and copy controls for fair dealing purposes, the distinction between access controls (access to the work itself) and copy controls (copying the work) is a distinction without a difference for many of today's digital locks.  The digital locks used by Amazon or Apple on e-books or the locks on DVDs are both access and copy controls.  In order to effectively circumvent to be able to copy, you have to circumvent access.  The locks often permit access for some uses, but not others.  In other words, Canadians will often need to circumvent access to get to the copying and therefore will still be infringing under the law.

Moreover, even if a consumer could distinguish between access and copy controls, the tools themselves that would be used to circumvent for copy purposes cannot be lawfully marketed or distributed.  The notion that it is permissible to circumvent for copying but that the software needed to do so can't be distributed demonstrates how this distinction really makes no real difference.

Bill C-32 does include a number of limited exceptions, but there is not an exception for fair dealing.  A full review of the implications of the digital lock rules in Bill C-32 can be found here [PDF version].

14.    Where can I learn more about fair dealing and Bill C-32?


Fair dealing is one of the most discussed issues in the recent book on Bill C-32 and Canadian copyright - From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda.  Notable articles include:
Comments (26)add comment

John said:

...
What crap... It aint because Geist says so that it is. Although his opinion is certainly valued, it's his point of view. The amount of opposition to C-32 proves that a lot of people DO NOT SHARE his opinion on C-32.
December 15, 2010

Anarchist Philantharapist said:

...
There's got to be a fireplace somewhere on parliament hill, I got a couple matches and some wood, we could use this bill to get a nice fire going!
December 15, 2010

Chris A said:

@John
I'm pretty sure that there are a lot of different opinions on this, and there have been. The creators have their viewpoints, the users have theirs. The question is which is more likely to be actual reality, that's what the government needs to muddle through when looking at this bill.
December 15, 2010

qwerty said:

@John
Uh.. what? He's stating facts (not opinions) about the law here. (well, Bill, since it's not a law yet)

YES digital locks trump fair dealing in the bill.
NO adding education under fair dealing DOES NOT allow free unlimited copies.

You have trouble recognizing facts, buddy?
December 15, 2010

Programmer, author, and linux user said:

Re: John
"What crap... It aint because Geist says so that it is. Although his opinion is certainly valued, it's his point of view. The amount of opposition to C-32 proves that a lot of people DO NOT SHARE his opinion on C-32."

That was...quite an articulate and detailed refutation of Dr. Geist's article. Thank you for your input, John.

@Dr. Geist

I wonder if Clement and Moore will expect you to help their PR campaign in selling the fair dealing reforms.
December 15, 2010

Mark said:

...
It seems evident to me that the Conservatives are not ever going to compromise on C32... at least not on what has been the most controversial subject of this bill. What's worse, they are making themselves hypocrites in the process. They say that they are willing to hear honest proposals for compromise, but immediately reject without any deliberation whatsoever any proposals that would advocate the notion that digital lock protections simply take a back seat to fair dealing and private copying. So, I am convinced that they would rather lose the bill than compromise on its digital locks position... after which they will then just go and draft up another bill with likely even worse provisions for the consumer than what C32 proposed. Further, I cannot help but believe that this will keep on happening indefinitely, until they have a majority government and will then pass whatever the goddamn hell they want, regardless of opposition. Isn't it delightful to see our tax dollars at work? :rollingeyes:
December 15, 2010

Bob said:

...
Well then, here's my contribution.

There is a real risk that adding education as a fair dealing purpose will result in free-for-all copying. Schools and colleges are obviously going to assume that the inclusion of education allows them to make multiple copies, and that they no longer need permission to do this. Yes, there is a 6-part test in CCH but (as contributors to this blog so often point out) the legal technicalities won't get in the way of what people think they can do. And on a practical level, how will any of this be regulated anyway? And there is a possibility (quite a high possibility) that the Supreme Court will (a) decide to take the K-12 tariff appeal and (b) overturn the earlier decisions that said copying on that huge scale wasn't fair dealing. So I'd say there is a cause for concern here. And combined with what's happening with AC licensing of universities, major cause for concern. It may well be possible to manage without collectives, but it isn't as simple as Prof Geist suggests because any analysis of what is currently being copied goes massively beyond what can be covered off by open access and site licensed content. Does any of this matter? I think it does. Publishing is a business. If publishers find they can't make money, they'll find something else to do with their capital. In an era in which students seem to do most of their research on Wikipedia, teaching focuses mainly on what will be in the exam, and critical thinking has long vanished from undergraduate life, the potential endgame here is very depressing.
December 15, 2010

K.M. said:

@Bob
"Schools and colleges are obviously going to assume that the inclusion of education allows them to make multiple copies, and that they no longer need permission to do this."

Respectfully, I have worked in academic libraries for years, and I can assure you that this is not the case -- we have always exercised caution when it comes to copying. Indeed, we have always made a point of knowing what we were entitled to do (never assuming), as what we assume is that we are leaving ourselves open to legal action if we don't make sure we are compliant.

Also, an excellent way to prevent individuals from assuming that this means it is legal to copy whatever they want for the purposes of education would be for groups who oppose the addition of education to STOP SAYING (in error) that this means people can copy whatever they want for the purposes of education -- and for the media to stop publishing these factually inaccurate statements. These statements only perpetuate this mistaken belief, guaranteeing that this will happen.
December 15, 2010

Bob said:

@K.M.
I don't see the problem being at the library level. But to put this in perspective: a un iversity with 10,000 students likely reports 100-150 coursepack pages per student a year, along with unknown amounts of Part A copying. This exceeds a million pages a year. It seems very, very unlikely that either this will suddenly stop, or migrate to copyright-cleared copying. Without licences and with expanded fair dealing, much and maybe most of it will continue, without permission.
December 15, 2010

Sandy Crawley said:

Balance of opinion, as opposed to fact
The legitimate concerns of authors and publishers are founded in an interpretation of the draft provisions on Fair Dealing in V-32. So are Dr. Geist's. When he uses an idiom such as "generally viewed" that is pure speculation to back up an opinion. Concerns around the education exception are also based on the recalcitrance of universities who are currently licensed by not-for-profit copyright collectives and, in at least two instances, public statements to the effect that the draft provisions in C-32 will obviate the need for those licenses. The statements of the teachers federation at the legislative committee this week suggested that they would continue these payments, but unfortunately it is not teachers and librarians who have authority to decide to do so. According to the stance of the Council of Ministers of Education (excepting Quebec, where the quality and value of cultural expression is recognized both intrinsically and as a driver of an economy based on knowledge) there is every intention of saving money at the expense of creators and publishers. The likelihood of these savings having any discernible positive effect on the cost of education to individual students is extremely low.
December 15, 2010

Napalm said:

yehaaa
A really nice one:

http://yro.slashdot.org/story/...t-Overseas

There's only one solution to this madness. Abolish copyright laws.

Nap.
December 15, 2010

Mark said:

...
@Napalm

The problem with abolishing copyright is that publishers would lose most of the commercial incentive to publish works, since anyone could freely copy them. Before copyright existed, copying something was tedious and error-prone enough that it unauthorized copies of works were not generally a threat to legitimate sources (although they sometimes were, in practice the illegitimate copies tended to suffocate themselves due either to the expenses of copying or else by developing a poor reputation on account of not reliably reproducing the work). Now that copying is literally as easy as pushing a button, copyright is even more important than ever, as it is about the only thing that protects a copyright holder's interests in any works that they create for publication.

Of course, artists would still create, but without incentive for publishers to actually publish the creative works, the only ones who would be liable to get really wide distribution and exposure are people who who have enough of a public reputation that a publisher is willing to take on the risk that they would recover their losses on high volume initial sales before the work started to get cheaply copied everywhere.

People who try to self-publish via the web may have varying levels of success in their endeavors, but in practice, they will tend to get lost in the noise that is the ever growing Internet, and may not be able to effectively compete without a publisher.
December 15, 2010

Crockett said:

Times they are a changin' ...
Sandy & Bob,

It may well be that the education institutions are looking to save money, makes sense from a business perspective. Would you admit though that AC was at the same time trying to make as much money as possible with their large increase (maybe not 1200%, but still substantial)?

This behavior is actually two sides of the same coin and not much different in intent or 'morals'. If you are going to play the game you have have to be prepared to take your bruises. If both sides were to put forward more reasonable requests and deal respectfully then there may not be this 'field of carnage' we find ourselves in.

The same can be applied to the various media and other information industries. Advancing technology and changing social patterns (read the latest TIME magazine 'man of the year' article) has changed the playing field. The two teams must learn how to deal with the new Astroturf, it just aint' the same as that old grass ...
December 15, 2010

Napalm said:

...
@Mark:

Copying is not exactly free either. I would rather buy a $29.99 book than spend an afternoon copying it for the same price.

Musicians, actors etc - they traditionally made their money by performing. Which is usually done behind closed doors and you have to buy tickets. How comes suddenly they're not interested in performing anymore. Maybe all this recording industry is spoiling them? And instead of creating/performing they just sit waiting for the levies to come to them?

Other categories are producing physical goods - paintings, sculptures, jewelry etc. There's no copying machine for those.

Nap.
December 15, 2010

Mark said:

...
@Napalm:
"Other categories are producing physical goods - paintings, sculptures, jewelry etc. There's no copying machine for those. "
Yet.

"Copying is not exactly free either. I would rather buy a $29.99 book than spend an afternoon copying it for the same price."
Of course any content that is on physical media has some inherent limitations on how quickly and easily that media can be physically copied. But copying any digital content takes virtually no time at all... it is entirely "free" for the copier. As we are in the 21st century here, and there is an ever-growing quantity of digital content, it is the ease with which digital content may be copied that I believe is of chief concern.

And on the subject of copyright on books, remember that prior to the printing press, copying tended to be performed by literate workers in what was roughly equivalent to the notion of today's sweatshops. Such massive numbers of low wage workers could only be be maintained by very wealthy people, so authors usually made their money by finding or being discovered by such people who would back them to continue to produce their works. The actual copying itself could take days to produce even a single copy, so it was not cheap. These backers would often undertake measures to recover their money by publicizing the work, the artist himself rarely taking on that responsibility (unless they already had the money themselves to reproduce their own creations and handle their own publicity).

As for actors and musicians, they would generally make their money by busking... which today is not generally considered a lucrative line of work. Some more well-known actors would get hired by a theatre to perform there, and the theatre in turn would make its money by charging people who wished to attend. Again, however, since we can transmit entertainment virtually instantaneously anywhere in the world, there is no physical presence required that would have traditionally warranted an exchange of money.

Today, more than ever, copyright is still needed.
December 16, 2010

Napalm said:

...
@Mark: "Again, however, since we can transmit entertainment virtually instantaneously anywhere in the world, there is no physical presence required that would have traditionally warranted an exchange of money."

Yes but in order to transmit you have first to install cameras in the theater which requires physical presence and creates the opportunity to be paid.

We had this model of free over the air TV for decades, how did it work?

Nap.

December 16, 2010

Napalm said:

...
@Mark: "As for actors and musicians, they would generally make their money by busking... which today is not generally considered a lucrative line of work. Some more well-known actors would get hired by a theatre to perform there, and the theatre in turn would make its money by charging people who wished to attend."


Well. Mr. Moore has to be credited for stating that "artists have the right to engage in the market" and that's all. Just because you play a guitar does not entitle you to revenue.

The best artists will get contracts, the less than stellar ones will be busking.

This happens to any other "industry" where there is competition. Including mine.

Nap.
December 16, 2010

pat donovan said:

insane

the whole process is INSANE!

gov't / biz don't have the right to do this.
property is NOT a rental.

admin law / subordinate legislation
(and the latest wrinkle in captive reg systems, the corperate oversight commitiie)

shouldn't have tax revenue streams THAT GO TO CORPERATIONS , not gov't.

it is an assumtion of guilt, premetative guilt andwith NO appeal.

this is INSANE!
packrat
December 16, 2010

Napalm said:

More madness

http://www.theregister.co.uk/2...t_bot_ban/

1. If you're playing a "solo" game against your computer, I don't see why it should be illegal to modify that game.

2. If you're playing a game against other humans, participants should follow some rules otherwise the game becomes meaningless. However game rules should not be enforced by police/justice. It should be the game organizers responsibility to ensure that those rules are observed. Or should we have litigation in court after a soccer match where a player touched the ball with the hand?

This is insane.

Nap.
December 16, 2010

Andrew said:

Solution to Copyright
Trademarks aside, copyright is primarily to ensure that the original owner gets to make money first on his/her idea first. That's it. So let copyright last for 5 years and then make it public domain. If the owner can't capitulate on that 5 yr head start, then they didn't do a good marketing campaign. After all, how many songs out there are still "good" after 5 years anyway? It would solve archiving issues, it would solve most fair use issues and all other issues in general.
December 16, 2010

Eric L. said:

RE: Andrew
Very good suggestion. It would also force the person authoring the works to actually do something. They will have to innovate in order to sustain themselves. This is a GOOD thing.

Long copyright terms just create an environment of stagnation.
December 16, 2010

Napalm said:

...
More interesting reading:

http://www.theregister.co.uk/2...ic_survey/

While I won't take the figures as the absolute truth; what is interesting is the second graph listing the issues with filesharing.

So yes there is value in buying the original record. However "the industry" managed to screw that up too: by using some anti-copying technologies that degrade the quality of the reproduction (intentional errors on CD recordings); and by installing malware on your computer ($ony rootkit).

So instead of capitalizing on the advantages they just miserably failed.

Nap.
December 16, 2010

Mark said:

...
@Nap:
"We had this model of free over the air TV for decades, how did it work?"
It worked because the broadcaster paid for the licenses to distribute the copy of the work that it broadcast. The expense involved of getting the equipment to do this was the prohibitive factor. Expense is simply no longer the barrier it used to be.

@Andrew: I'd be all for shorter copyright terms... although I believe that the duration of the term should depend on the nature of the work being copyrighted, however, I would think that 5 years may be too short in practice. I would think that about 10 years would be appropriate for computer software, 20 years for music or movies, 40 years for books, and the lifetime of the artist for physical works of art such as paintings or sculptures. The time left for the copyright would start when the work is first published or publicly released and should not ever be reset or extended. After the copyright expires, of course, the work should irrevocably become public domain.
December 16, 2010

Napalm said:

...
@Mark: "Expense is simply no longer the barrier it used to be. "

It still is even in the internet era. If you want to distribute media on an industrial scale then you're looking at web hosting services or running your own data center and when we're talking Gbps bandwidth the bill goes tall quickly. So you'll need a revenue stream to make this sustainable. Places like Google and Facebook sell advertising space. This is how TV used to work too. Places like iTunes will charge the customer for the downloaded media. But all of them have some serious infrastructure expenses.

Nap.
December 16, 2010

oldguy said:

@Napalm
..."we're talking Gbps bandwidth the bill goes tall quickly"

True, but you can start out with 100Mbps and scale up at many hosting sites. Starts at under $200US, sometimes around $100US per month. 100Mbps can service a fairly robust base, and once you have a revenue stream you can move up..

The economics of servers and bandwidth isn't insurmountable, for anyone. If you are paying more than $200US per month for 100Mbps service, you should be looking elsewhere.

December 16, 2010

seeker said:

I wish i might
If only i was getting paid by American interests, then id have time to sit here and mar intentions and truth with simple statements which have no thought or explanations as to why or how these laws we fallow are there in the first place. this debate cannot happen in this fashion where the speakers are cherry picked from the best of one side of the argument and little to no allowance for actual public interests, see im a gay man and im busy trying to fight alberta's laws with regards to allowance of even speaking about homosexuality , so im sorry i dont have time to fight this war for your children, i dont and wont have children so thats for them to suffer , go right ahead and pass this law i double dare you idiots. your children will appreciate it just like you appreciate your predecessors, I personally could give a damn at this point , the war is lost, FYI when canadian forces end up staying in Afghanistan because we allow these types of debates to hinder our focus on matters of which we need to sort, and our resources are treatied away from us because we have more than we need and we are too cowardly to fight for what is ours. They pissed their resources away and we still havent paid for helping their slaves escape. Do any of you realize that american education fails to explain we burned down their whitehouse and allot more of their country during our last war with them. im not gonna bother explaining this any further , im sure you all know better than I because you have been fighting this fight longer and harder than me , and im sure you are willing to do what it takes to retain our freedom right ?
January 04, 2011

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