Michael Geist
April 2005

Appeared in the Toronto Star, April 4, 2005


Last week, almost 24 hours before the U.S. Supreme Court heard arguments in MGM v. Grokster, a highly publicized file sharing case that pitted Hollywood against the technology community, dozens of people began lining up, prepared to brave a cold Washington, DC night in order to attend the hearing. Outside the courtroom, the steps of the U.S. Supreme Court were filled with protesters representing both sides of the copyright issue.

This intense interest in copyright is not limited to the United States -- recent Canadian Supreme Court copyright cases have also featured packed courtrooms.  Moreover, last month’s announcement of the government’s plans for copyright reform was greeted with headlines from coast-to-coast, despite the fact that the government did not enact a new law or even introduce a bill – instead it only released a statement of intent.

When people camp out overnight for copyright or dissect government press releases about its future copyright policy plans, it is apparent, as Buffalo Springfield sang, “there’s something happening here.”

In this case, what’s happening is that we are in the midst of profound changes in the way people access, distribute, and create content.  Years after the prognosticators spoke of convergence between media, telecommunications, and the Internet, a different kind of convergence is emerging.  This convergence, which has significant implications for how we define the stakeholders in the copyright debate, is tearing down well-established notions of what constitutes mainstream media and creative work.

Copyright reform has always been a contentious issue.  In the 1880’s, publishers battled authors.  In the early 1900’s piano roll manufacturers faced off against a nascent sound recording industry.  In the most recent round of reform in the late 1990’s, rights holder groups, comprised primarily of the recording industry, Hollywood, and copyright collectives challenged librarians and the education community. Decade after decade, the battle for an appropriate copyright balance does not change, but the players involved in the debate continually evolves.

As we enter yet another round of reform, convergence is creating a new group of players.  While the rights holder groups remain largely the same, the other side now features millions of individual users who are both copyright users and creators.

Convergence is most evident in the growing influence of web logs or blogs.  Once dismissed as little more than non-credible Internet home pages, today blogs have entered the mainstream.  Some of the more than eight million blogs command greater readership than major newspapers, are the first to report news stories (the first reports on the Grokster hearing came from blogs), as well as feature both audio broadcasts (podcasting, the process of offering MP3 sound files on a blog is growing in popularity) and video content (blogs were the first source of tsunami videos several months ago).

Meanwhile, the traditional mainstream media is starting to look increasingly like blogs.  Many have hired popular bloggers to write for their own sites, while adding RSS feeds (a content syndicator used by blogs) to compete directly with blog postings.  Moreover, the most popular articles on many of these mainstream sites are no longer news -- they are opinion pieces much like those found on popular blogs.

Music and video is undergoing a similar convergence.  While file sharing is still being demonized by the music and movie industries, no one can seriously believe that dozens of people spent all night camped out so that they could download songs for free.  Rather, those people, and millions like them, have embraced the potential of peer-to-peer as a source to discover and sample new music.

Progressive independent music labels are also embracing peer-to-peer to promote their artists and many more are likely to follow in the months ahead.  In fact, even the revamped Napster has introduced an “all you can download” model that looks strikingly similar to proposals to fully legalize peer-to-peer downloading in return for a monthly license fee.

Indeed the remarkable confluence of computing power, the Internet, and a plethora of new software programs is enabling millions to create their own songs, movies, photos, art, and software and to then efficiently distribute them electronically -- minus the need for the traditional distribution systems. 

Their creativity is increasingly converging with the mainstream.  For example, building on the explosive growth of Creative Commons, a movement that facilitates the active re-use of content produced primarily by individuals, Yahoo! recently established Creative Commons search functionality that allows users to search the more than 10 million works that are currently under Creative Commons licenses.

These developments signal a dramatic shift in the production and distribution of creative work.  In doing so, the relevance of copyright reform has grown from the small group of traditional stakeholders to the far broader circle of millions of individuals who are both creators and users.

Admittedly not everyone has adjusted to this changing dynamic.  The Canadian Heritage Parliamentary Standing Committee, which saw its May 2004 recommendations roundly rejected by the government, heard only from a small number of stakeholders and thus arrived at an unsustainable result.

The success of future reform depends upon recognizing this evolution and ensuring that reform processes properly accommodate the broader circle.  This is not a simple task -- it may require governmental support for civil society organizations to better represent the millions of individual creators whose interests are not represented by traditional rights holder groups.

As part of a 2001 copyright consultation, the Canadian government received roughly 600 contributions from individuals, most of which were lumped together and written off as a single interest.  If dozens of people are willing to freeze overnight for a glimpse of copyright policy in the making, Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla can expect much greater interest in the next round of consultations.  Incorporating those perspectives will prove essential to finding the right copyright balance.

Michael Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist@uottawa.ca and is on-line at www.michaelgeist.ca.

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