Justice Minister Rejects Call for Camcording Law

The National Post reports that Justice Minister Rob Nicholson has no plans to prioritize a new camcording law, despite the intense lobbying of recent weeks.  Nicholson noted "that there is already a stiff copyright law in Canada to catch people who sneak camcorders into movie theatres for the purposes of filming for commercial distribution" and is quoted as saying that "I do point out to people that the country is not completely bereft of laws in this area." The article notes that the CMPDA now says that Canada is responsible for 20 percent of global camcording, a far cry from the claims of 50 percent that were raised just last month.


  1. Maark
    Actually, there *ISN’T* any law against sneaking camcorders into theatres, which has left theatre owners hands tied. Since the onus would be on either the theatre or the crown to prove that some sort distribution was intended (which although I appreciate that the premise that it’s not strains all reasonable credibility, to do otherwise would be to disregard the premise of innocent until proven guilty), the only thing the theatre can really do is basically slap them on the wrist and kick them out.

    This was illustrated very clearly to me by something that was recently told to me by one of children, who works at a theatre in the greater Vancouver area. Apparently, he actually caught a kid recording a movie with their cell phone in the theatre recently. He escorted the fellow out of the theatre and spoke to the manager about it, who then called the police. When the manager told the police that this kid was recording in a theatre, the officer responded “Is that even illegal?” Well, it turns out that it’s not. Not unless there is intent to distribute, which of course, could not be proven at that time. The manager’s hands were tied… there was nothing he could do except delete the movie from the kid’s phone and call the kid’s parents. Maybe that incident frightened the kid enough to not do it again, but who knows? My son was quick to draw my attention to this incident because I’ve been fairly vocal with all of my kids about not pirating stuff (I’ve lost count of the number of times I’ve lectured them about not sharing music files with their friends via MSN or getting them through limewire, which might tell you how much credibility they give to it). What was particularly sad about this is that my son delighted in relaying this story to me because it sort of proved his point that nobody really cares about copyright infringement, not even the police, and I am reluctantly forced to concur with that assessment. At least for the time being.

  2. Actually, I think that’s exactly right.

    There is an existing law dealing with camcording for commercial distribution.

    If somebody’s camcording for some reason other than commercial distribution, who cares ? It’s not harmful to anyone. Even if they make a couple of copies for friends, this is not what copyright law was intended to address (not to say that doing so is morally right, but it does negligible harm to anyone). p2p distribution ? Maybe, although even there we hear that the harm is “stistically indistinguishable from zero”.

    I wish more of our copyright law focussed on the “for profit” side of things rather than tarring personal activities like format-shifting with the same brush (and the same statutory damages).

  3. kid you not
    If the cartels had their way, that kid would be facing 5 to 7 and a 50-thousand dollar fine for being a kid with a cell phone.

  4. Mark
    Actually, camcording for reasons other than commercial distribution is harmful. Here\’s how.

    Copyright is supposed to be a time-limited, exclusive right of the creator of a work to create copies of the work for distribution and to grant other people permission to copy the work. Without this exclusivity, the whole purpose of copyright (which is to ensure that the creator of a work has jurisdiction over it, for at least a time) is moot. Any usefulness that a copyright might possess is intrinsically connected to this exclusivity.

    When a person copies something without permission from the copyright holder, they are, in fact, literally stealing some of this exclusivity that the copyright holder was supposed to have. After all, if Joe Y copies Sam X\’s copyrighted stuff without permission, by very definition of what exclusive means, Sam X will have lost some of his exclusivity. What\’s more, once taken, exclusivity can never actually be restored. Financial renumeration for some of that loss of exclusivity may or may not compensate for this, but the exclusivity is still forever taken. Ultimately, if enough exclusivity is removed from a copyright (ie, a significant number of people have made copies and either sold them or given them away to friends or family), the copyright becomes useless and worthless. Since Copyright is, when all is said and done, a form of social contract (that is, an agreement to let the creator have exclusive rights over it for a time so that he might be motivated to allow other people to enjoy it, possibly making money in the process), as the worthwhileness of owning any one particular copyright is diminished, it naturally follows that there is less value (ie, usefulness, not necessarily monetary) to holding a copyright in general, so in fact the value of _all_ copyrights is diminished.

    So let\’s look at a world without copyright. After all, one time the world existed without them, for thousands of years, in fact, and everything seemed to work quite well.

    Well, prior to the invention of copyright, the printing press had not been invented, so the work involved in making a large number of copies that someone would want to make was extremely high, rising even more than linearly with the number of copies that one wanted to make because every copy had to be hand-made as well as proofed for correctness. This high cost of creating copies discouraged enough people from making copies of a work that the copying of something without any permission was inconsequential to the creator of the work.

    When the printing press changed, this shifted. Suddenly, the cost of making more copies did not rise as fast as the number of copies one wanted to produce. This meant that in order to keep larger printing companies from copying the work of a smaller printing company and completely outselling them, some legal measures would be required to ensure that an author was fairly compensated if anyone were to try this. So Copyright was invented, requiring anyone who wishes to copy a work, whether or not for commercial gain, to get permission from the author. The reason why commercial gain is irrelevant to the issue of infringement is because a larger company who might be able to afford to take a loss might want to simply give copies away for a while to force a smaller company out of business (in fact, that intent may as well be assumed), and all the while, the creator of the work didn\’t get any compensation for all those extra copies that got out there. If actual the cost of making copies was small enough (which it easily is today, as the average home consumer can create a digital copy of almost any work with little more than pushing a few buttons), the potential for any person to be able to give away enough copies to force a publisher out of business is very real. This is hardly fair.

    So without copyright, an author really wouldn\’t have any reason to assume that he or she could get any decent compensation for having agreed to distribute this work, which would diminish the incentive that many authors might have to publish in the first place.

    Of course, the world would still have people who would want to publish regardless of financial incentive, but they would be hard pressed to find publishers who would be willing to do so without protection of copyright, as there would be nothing to prohibit people from copying the work and the amount of money they could make back would be extremely limited, and it could even bring about a society where books are no longer available and even outlawed (think Fahrenheit 451).

    So in an absence of Copyright, why not publish stuff on computers? That\’s a thought, as the cost of publishing on the \’Net is very low… couldn\’t people just publish that way? Well of course they could… but if one wants to see how effective that is, one merely has to look at what is already on the \’Net. The ratio of useful content to utter tripe on the Internet is very low, so what you\’d end up with is a situation where it would be extremely difficult to find the gems of published material online. Publishers would need alternative ways to generate revenue, since their content would not be protected by any Copyright, so there would be an elevated amount of commercials that people would be forced to endure, as advertising would be their only source of revenue. Commercially published material would bear a stronger resemblance to spam than it would to useful content.

  5. If reducing the value of something is theft, I should have my neighbour thrown in jail for not cutting his lawn, thus decreasing the value of my home. And no wonder so many companies feel that they have the right to get the government step in to stop others competing with them !

    I mentioned p2p distribution in my comment as a possible counter-argument, and I\’m quite happy to concede that giving away copies on that scale may be harmful (the only academic study to date says not, but that is only one study).

    Personally, I\’d prefer to live in a society where we don\’t have to surrender our cellphones as we enter the cinema, even if it *does* mean that some movies don\’t get made.

  6. Mark
    I never said reducing the value of something is theft. I said stealing is theft. And when one copies a copyrighted work without permission, they are stealing some exclusivity from the copyright holder (by the very definition of exclusive).

    Exclusivity is what gives Copyright its usefulness. It has absolutely nothing to do with monetary value.

  7. Darryl Moore says:

    A different copyright paradigm
    Mark, you still haven’t made the paradigm shift to a world where we are all publishers. Also your post implies that the alternative to strict copyright legislation is the complete absence of copyright.

    (Sorry folks this is a long post. Victoria Cross to anyone who actually finished it)

    You say that “camcording for reasons other than commercial distribution is harmful” and you talk about the value of excusivity, yet every example you give ultimately resolves to financial consequences. Big companies putting little ones out of business, and incentive for authors to produce work. You do not give any examples which do NOT involve money in the end, to back up your argument.

    Also you talk about publishers as though they are required to produce work. For the time being they are certainly more convenient for books, but movies, music, and ebooks (which I expect to replace conventional books soon), have no need of a publisher.

    You are quite right about the sheer volume of work on the Internet, and how most of it will be garbage. This is especially true in a world without copyright or with a more limited kind of copyright. If it is easy to copy other peoples work (both technically and legally) it will be easy to produce derived works, and that will produce a lot of stuff. But this a good thing. It means we will have choices. We do not need publishers to tell us what is good or bad. That was a consequence of the paradigm we are leaving, and good riddance.

    In a world where everybody has the technical power to copy and create, we will get much more creativity if we have the legal framework in place that will actually allow them to do so. I agree that you want to maintain financial incentives, however there are many other avenues for that outside of regulating private copying and derived works.

    In terms of this issue of camcording; well it will be very hard to make a good quality cam anonymously in a theater for a long time yet. This will keep anything which might be able to compete with what is in the theater out of the same market. In the longer term, there will be evolving business models. Embedded commercials, government subsidies, sub-licensing of paraphernalia, other sponsors, etc.. I don’t know what will ultimately prevail, but my point is that creativity will never shrivel up and die. Even in the total absence of copyright, when the tools are available to all, there will still be a goodly (if that’s a word) amount. With a little copyright, that amount and quality can be greatly increased. But with anything close to the draconian copyright laws we have now, creativity will again be suffocated. Only now instead of an over abundance of poor quality we will be stuck with a small abundance because only the big guys will be in a legal position to produce it.

    As Howard Knopf says. “Copyright is good. Excess in copyright is not.” What we have now is a great excess of copyright. The question is how do we define an appropriate amount of copyright. I contend that that line is drawn where you PUBLICLY distribute copyrighted or derived works, AND do so for financial gain OR negatively affecting distribution terms of the original copyrighted work. This could be normal financial renumeration in the case of standard commercial works or other performance terms in the case of open source or creative commons works.

    Examples of the net result of this paradigm follow:

    1) camcording in theaters would be legal except when the result is to be commercialized. (status quo) (Theater company could still give you the boot though!)
    2) cable companies and radio stations would not pay for their content. (They actually add value to what they use!)
    3) just about anything created and posted on YouTube is legal. Not likely to be negative affects on the works people use as a base for their creations.
    4) you would be free as a private citizen to create anything based on previous works as long as you weren’t making money on it. (It is not likely, that a derived work would take attention away from the source more than it brings attention to it) Only if you want to commercialise it would you be forced to negotiate with hte original copyright holder.

    Some current business models would not work, but many still would and others would be discovered, and there would not be undue burden upon users and artists as there is now.

  8. Mark
    First of all, how is anyone supposed to deduce intent to commercialize before the fact? After the fact is too late, the damage is done.

    Second of all, if it were legal for non-commercial purposes, exclusivity would still be lost. For example, take GNU licensed software. For people that don’t understand what that means, GNU licensed software is absolutely free, including source code, for anyone to copy, modify, and distribute, *AS LONG AS* they do not further limit other people’s freedoms. Because it is protected by copyright law, derivative works are subject to those restrictions as well to the same extent that copyright can have jurisdiction over derivative works (one cannot copyright an idea, obviously… only the “artistic representation” of that idea). Now if the author of such an open-source application was not allowed to have jurisdiction over who could and who could not copy their work, all that would have to happen is for to somebody come along with a higher profile than the creator, make changes to the work and distribute it with some restrictions imposed that were not the intent of the original copyright holder, perhaps in closed-source format only, completely overruling the intent of the author and he could even get lost in obscurity — viewed as a copycat, rather than the originator. So really this has absolutely _NOTHING_ to do with financial gain. It simply has to do with exclusivity. For many people financial gain is the motivator, which is why most of my examples revolved around it. But it doesn’t necessarily have to be that way.

    Finally, you say that a derived work is not likely to take attention away from the source, but this is untrue. All that is required is for the publishers of the derived work to have a higher distribution bandwidth than the creator. One example I can think of right off the top of my head was in the Wizard of Oz, where in the original story the character Dorothy had silver slippers. This is how Frank Baum wrote it. When MGM was making the movie, they wanted to really show off the color, since it was so new at the time, so they altered the story slightly to make the slippers ruby red. That’s fine, because they made such a change with the permission of the holders of Baum’s estate. But today, the ruby slippers are _FAR_ more well known than Frank Baum’s original version in the eyes of the general public, simply because MGM had a higher distribution bandwidth than Baum did. If Baum had not been given credit for the original work, in all likelihood his name would have been completely lost to obscurity. Now what if a non-commercial movie of relatively decent quality were made and put up on Youtube of some other author’s work? Without any compensation whatsoever? How is that remotely fair? How is that in any way keeping with the intent and purpose of what copyright is supposed to provide?

    The bottom line, exclusivity on the rights granted by copyright are what give copyright its usefulness. It’s all very well and good to say that only commercial distribution should be limited, but even non-commercial distribution is harmful because it still takes away the exclusivity. The exclusivity is valuable to the creator of the work because other than possible financial gain, exclusivity is the only thing that the creator is supposed to be guaranteed to get out of having a copyright for its duration.

    Now that said, I do believe that the duration on copyrights until they expire and become public domain is too long as things sit right now, and they should be shortened. But that’s another argument altogether and I’d rather not get into it at the moment.

  9. Darryl Moore says:

    Of crimes, red herrings, and publicity
    Mark, allow me to address each of your points in turn.

    Regarding how “anyone supposed to deduce intent to commercialize before the fact”. Obviously you can’t, just as you can’t deduce someone is about to rob a bank until they actually do it. And, just as you can’t punish a future bank robber for the harm they might inflict, you also can’t punish a cammer because of the damage they MAY cause. Keep in mind also that no one has demonstrated that there even is any harm to these cams. To punish someone severely without demonstrating that, boarders on persecution rather than prosecution.

    Now with regard to your examples of non-commercial uses. In the case of GPL software and the paradigm I offer, the original creator would not be completely out of control. Sure derived works which are distributed without financial gain could ignore the license provisions, but so what. I think that is a reasonable limit on the powers of copyright. If the author of the derived work wanted to commercialize it in any way they would have to negotiate with the original author first. I think that is fair.

    With regard to derived works and their “ability to take attention away from the source”. Well I’m afraid you are just plain wrong. Let’s take your example of Wizard of Oz. Your point that more people think of red ruby slippers rather than silver slippers is true, but it is also wholly beside the point. The relevant question here should be do more people know about the original story (and slippers) than would otherwise, had the movie never been produced? The obvious answer is yes. The movie brought the story to many people who otherwise may never have seen the book. Many of those may have read the book afterwards as a result. Just as radio brings attention to music that might be missed and therefore raises its value, so too did the movie Wizard of Oz bring attention to Baum’s book, and therefore raise its value also. It would almost be equally reasonable to demand Baum pay the movie produces for this publicity as it is to demand that the movie produces pay Baum for the source material. The author is benefiting from someone else’s work. How is that fair?

    What give copyright it’s usefulness is its ability to encourage creativity. “exclusivity” as you like to say, is no more than another word for copyright. The correct amount of monopoly powers (as I like to say) is the absolute minimum that will still encourage a creative community. Any more and you begin to choke that same community.

    In your posts you talked about how important it is to protect “exclusivity” (aka monopoly, aka copyright) what you have yet to offer is what you think the limits of these powers should be. What do you think constitutes “fair use” for example? Do you even think we need “fair use” provisions in our copyright laws?

  10. Mark
    Yes, of course there should be limits. As I alluded to before, I think copyright durations are far too long. I believe that their duration should reflect a measure of practicality with respect to both the content itself and the medium on which it is put. The duration of copyrights on software, in particular, are _FAR_ too long. I think that copyrighted software that only works on hardware or on operating systems that are no longer commercially available should fall into the public domain within about 5 years or so of the system on which it operates no longer being available via normal channels. I also think that the copyrights on music and movies are too long… they shouldn\’t be any longer than 20 years from creation, IMO. After that, they should fall into public domain. And of course, I am highly opposed to the notion that copyright can be arbitrarily extended, as they have done in the USA.

    And we _DEFINITELY_ should have fair use provisions in our copyright laws. The existing copyright act covers it to some extent, but I do not believe it covers it adequately.

    For one thing, I believe that the private copying exemption to copyright infringement (outlined in section 80 of the Canadian Copyright act) should be extended to cover *ALL* copyrighted works, not just audio and musical works. Further, I think that the copyright act should be extended or altered to guarantee that any copy protection measures that a copyright holder may choose to implement are themselves ineligible to be protected by copyright, but may be protected as trade secrets. If a person chooses to bypass those measures in order to exercise his or her privileges of fair dealing or personal and private copying, that should be none of the copyright holder\’s concern except to the extent that trade secret infringement may apply (in which case, they could prosecute a person who had released the trade secret without authorization to the fullest extent that the law would permit, which could include incarceration). The reverse engineering of copyright protection measures by any person or corporation should NOT be considered a violation of copyright.

    Now that said, I also believe that recording a copyrighted work at any public performance of that work should automatically negate any notion of private copying that might otherwise render a particular copy exempt from copyright infringement. Thus doing so would only be legally permissible if one had authorization to record the work at the time. This would pretty much nail the people who record movies on their cell phones while in the theatre (and seriously, do you _REALLY_ think that if they got the whole thing that they wouldn\’t be giving it away to other people? I know that legally you can\’t presume guilt before it\’s proven, but come on… a person wearing a stocking on their head and holding a gun may not be out to rob anybody either, but that\’s not going to stop them from getting arrested for what by every outward appearance is still intent to commit a crime).

    Okay… that was my bad. I shouldn\’t compare copyright infringement to armed robbery. They are, of course, completely different things, and comparing them isn\’t logically helping my argument. I do, however, hope that the point I was trying is equally valid: that is, that deliberately choosing to do something that is going to cause one to appear as if they intend to commit a crime should be dealt with very nearly as severely as if they had actually already committed the crime. To that end, people recording movies on their cell phones in a theatre should not be prosecuted as if there were intent to COMMERCIALLY distribute, but still some intent to distribute (which is still an infringement and punishable by law, just not as severely).

  11. What did I miss ?

    No you didn\’t say the words \”reducing the value of something is theft\”, you said that people can \”steal exclusivity\” and that \”if enough exclusivity is removed from a copyright […] the copyright becomes useless and worthless\”. Then you talk about \”reduction in value\” while emphasizing that this isn\’t necessarily monetary value (I didn\’t specify monetary value either, BTW).

    I guess I\’m missing something, because you seem to say that making an unauthorised copy reduces the exclusivity, which reduces the value of the copyright, and you call this reduction of exclusivity \”theft\”, and I don\’t see the distinction between that and how I characterised your message, as the only harm of the reduced exclusivity seems to be the reduction in value of copyright.

  12. More confusion
    What’s the difference between making a private copy of a movie at home from the DVD and making a private copy of the same movie in the cinema with a camcorder ?

    I can see that maybe the rightsholders haven’t released a DVD when you make a copy in the cinema, but I don’t see how that justifies your desire that the former be legal and the latter illegal.

  13. Mark
    The value of copyright comes from its usefulness, not its monetary value. It is useful because it is supposed to be exclusive, and the creator of the work gets to, for a limited time, monopolistically decide who gets to copy his work and who does not. Why is that concept such a bad thing? Shouldn’t the creator of a work get _SOME_ sort of benefit for choosing to publish it in the first place? Considering that in exchange for a promise of exclusivity the author agrees to expose the work to the general public in the first place so that they can enjoy it, it seems like a pretty fair exchange if you ask me. Sure, without it, you’d still get people who would publish regardless of the exclusivity, but you’d still be taking away a lot of motivation to do it, and I see it as doing more harm than good, in the long run (commercials would be the only way that publishers could make money, so you’d see a heck of a lot more of them… probably even _DURING_ the movie. You can’t tell me that wouldn’t suck).

  14. Darryl Moore says:

    Hmm, it’s kinda’ grown into a manifest
    Mark. Regarding usefulness of copyright. I have no doubt it is useful. Few would argue otherwise, but I feel I must ask you who think copyright should be useful for? Who is it suppose to serve?

    If it is to be useful for the copyright holder, then no doubt you are right in all your words, and giving the copyright holder every possible exclusive monopoly power will allow him to extract the maximum value from his work.

    Note I am still a little confused by your assertion that a copyrights worth is in it\’s exclusivity, and that exclusivity is itself a virtue of copyright. Isn\’t its worth to the author in what he can do with that exclusivity?

    If, on the other hand, you believe copyright is to be useful for society, then allowing any copyright holder that same amount of power will not be good, as it will stifle the creativity of others. (Assuming that society\’s goal is in fact to maximize the production of creative works) The question in this case will be how little can we give copyright holders and still expect to get a reasonable creative return?

    Now consider please that just about all artists start out with little or no expectation of actually making money at their endeavour. Also consider that it is highly unlikely that any artist frets very much about what others might do with their work after they create it. Despite what your posts imply.

    Most artist, I expect are interested in two things, making some money if they can (note that this one is actually optional for artists, why do think they sign those contract with the record companies any way?) and spreading their creative works as far and wide as they can. The latter, I bet, is the primary motivator.

    So the question then becomes how do we best assist artists to make some dough (so they can afford to continue creating) and spread their creative works? Nothing in the answer to this question could possibly involve restricting other artists use of their work. This is especially true if the other artist himself is not making any money from the derived work.

    It does involve distribution of copies of the original work, and it does involve derived works when those derived works create revenue. But that is it.

    Now you may say, but the original artist created this work, and therefore it is his and he should get to control it. I say. WHY? There is no justification for this in terms of answering the above question. Again, who do we want copyright to serve? Also the original artist released this work into the community. Once release, these works become woven into the culture of our society. When this happens society, and every member there of, has a legitimate right to say that they have some ownership rights too.

    Regarding distribution and private copying. The problem here is that, the copyright holders, state granted, monopoly rights are brushing up next to my, generally considered, innate physical property rights. In this case, I believe anyway, that my right to do what I want with my property in the privacy of my home, takes precedence over all monopoly rights. This of course changes when I start entering transactions with other people because then it is no longer just me and I am infringing on legitimate monopoly rights. In the case of P2P, there is an additional problem, which is how do you control the medium? Unfortunately I do not think that you can without seriously infringing basic human rights. Therefore, you need either levies or simply learn to live with it. I am of the opinion here that, since levies cannot easily be made fair either to the artists or the users, and since there are so many other vehicles available to monetise artists creative works, that society does not need this one controlled and therefore (given all of the above ) we are better off to just leave it.

    Now allow me to address the last part of your post where you fret a lot about the commercials you foresee coming in the world I envision. You are still trying to apply current business models to a very new world. There are other models as well you know. The BBC is a currently day example. They have even started releasing much of their archives to British residence and given their blessing to create whatever derived works they want. We have the NFB, and CBC here in Canada as well. There is subscription cable television as well which with a few changes could adapt. There will always be sports TV and news which will be able to survive a world with free copying because their content is so time sensitive in the first place. Successful programs have other markets they can license into. And yes there will be embedded commercials to I\’m sure. I\’m also sure there would be a whole lot of other things we have not even thought of yet.

    So the bottom line is, who is copyright suppose to serve, and don\’t be so fearful that the market would not be able to adapt to a world with very much looser copyright laws. If you are, then you are buying into and helping the big media company\’s in their campaign of FUD.