This evening I participated in a lively, well-attended forum on copyright in Toronto. Hosted by MP Olivia Chow, the panel included MP Charlie Angus, Victoria Owen (representing the Canadian Library Association), Stephen Waddell (ACTRA), and Don Quarles (Songwriters). A streamed version of the event should soon be available here.
While the discussion covered a range of issues and featured some important revelations which I'll address soon in a separate post, I thought that I would post my opening remarks. I used as my starting point Clay Shirky's terrific post on the weekend about newspapers and applied some of his thoughts to Canadian copyright. My prepared remarks:
Last weekend, Clay Shirky, author of Here Comes Everybody, posted an exceptional piece on the future of newspapers. It deserves to be widely read, but I want to focus on a single paragraph. Shirky says:
"When someone demands to know how we are going to replace newspapers, they are really demanding to be told that we are not living through a revolution. They are demanding to be told that old systems won’t break before new systems are in place. They are demanding to be told that ancient social bargains aren’t in peril, that core institutions will be spared, that new methods of spreading information will improve previous practice rather than upending it. They are demanding to be lied to."
This last sentence really struck a chord with me because I believe there are Canadian copyright equivalents:
- When someone demands to be told that anti-circumvention legislation will address concerns over peer-to-peer file sharing, they are demanding to be lied to.
- When someone demands to be told that implementing DRM will reduce infringement, they are demanding to be lied to.
- When someone demands to be told that the current fair dealing provisions adequately addresses the needs of users and creators, they are demanding to be lied to.
- When someone demands to be told that it is the absence of C-61 style copyright reform that stands in the way of creators earning a better living than is now the case, they are demanding to be lied to.
- When someone demands to be told that the proliferation of user generated content and participation is nothing more than a blip that has no impact on cultural consumption, they are demanding to be lied to.
- When someone demands to be told that Canada is the piracy equivalent of China or Russia, they are demanding to be lied to.
- When someone demands to be told that an Internet exception will address their concerns around copyright in the classroom, they are demanding to be lied to.
- When someone demands to be told that opposition to DMCA-style legislation consists of nothing more than a few rabble-rousing infringers, they are demanding to be lied to.
We’ve spent the past few years demanding to be lied to.
The result was C-61, legislation that did little to address the concerns of either creators or users. Instead, we got unnecessarily restrictive anti-circumvention rules, gimmicky statutory damages reforms, and laughably limited fair dealing changes complete with references to VHS tapes and bans on cloud computing models. We’re left with Canadian cases such as the one in BC that says that there is no legal protection for parody and satire, an exception that many creators rely upon. We’re left with ongoing international pressure through the Anti-Counterfeiting Trade Agreement to establish these reforms through the backdoor.
So what do we need now?
There are two ways to tackle that question – either by pointing to specific reforms or discussing broader principles. On specific reforms, I raised 61 reforms to C-61 over the summer. Rather than going through all 61, I would instead come back to the "Fair Copyright Principles" that I posted over a year ago. They include seven specific reforms:
- Anti-circumvention provisions should be directly linked to copyright infringement. This is WIPO compliant, preserves balance, and removes the need for fights over exceptions.
- No ban on devices that can be used to circumvent a TPM. If we accept that circumvention is permissible in certain circumstances, must have access to the tools to circumvent.
- Expand the fair dealing provision by establishing "flexible fair dealing." I think this is cleanest and fairest way to address issues like parody, time shifting, and new innovation models.
- Establish a legal safe harbour for Internet intermediaries supported by a "notice and notice" takedown system. This system has proven to work well in Canada and avoids the problems associated with notice-and-takedown in the U.S.
- Modernize the backup copy provision. The same rationale that was applied to the fragility of computer software many years ago, applies today to other digital data.
- Rationalize the statutory damages provision. Should distinguish between commercial and non-commercial cases of infringement.
- Include actual distribution in the making available right. Should follow the U.S. trend toward demonstrating actual harm before awarding damages.
While we can debate these issues (and others), I think the bigger principles are in some ways more important. I have five:
- Reject C-61, not copyright reform. There is a need for copyright and for copyright reform. That said, if we get anti-circumvention provisions, they must preserve current balance and user rights. This is permitted under WIPO and need to take advantage of that flexibility.
- Shift away from special interest exceptions. We need to get away from approach of special interest lobbying for exceptions – better solution would be a more flexible fair dealing approach for the benefit of creators, users, and businesses.
- Transparent policymaking. The behind-the-scenes work on treaties like ACTA breeds skepticism. The absence of consultations or committee hearings on domestic reforms builds frustration. There is no better time to open things up – proper consultation domestically, open treaty negotiations internationally.
- Experimentation. We don’t know with certainty the "right" models for success. C-61 promoted a very specific model, one that has been shown largely to fail. We need government to promote policies that encourages different approaches – set the broad framework and let the market do the rest. I’m supportive conceptually of SAC proposal – I think some issues need work, but I think we need these proposals, rather than continued emphasis on one failed model.
- Copyright in Context. We need to put copyright in context. For creators and users alike, contract is often a bigger issue than legislated copyright rules. We should be honest about copyright’s importance and its limits. Further, within the legislative context, copyright should be viewed as just one piece in a broader digital agenda issue. Net neutrality, broadcast, spectrum issues, consumer protection, privacy are all part of that bigger issue. We need to address copyright within that broader context so that we establish rules that are not instantly outdated.