Fair is Fair: Fix Fair Dealing Say Library, Education, Creator, and Consumer Groups

More than 25 library, education, creator, and consumer groups have issued a public letter calling on Industry Minister Tony Clement and Canadian Heritage Minister James Moore to adopt a flexible fair dealing approach.  The letter argues for a "such as" approach to fair dealing by making the current list of fair dealing categories illustrative rather than exhaustive.  The group points to three arguments – flexible fair dealing advances the balanced objectives of the Copyright Act, is consistent with Canadian values of fairness, and is consistent with international law.  It concludes:

We ask that you amend fair dealing to embrace Canadian values of fairness so that fair dealing applies to all dealings that are fair. No single change to Canada’s Copyright Act could do more to address its long-recognized short-comings in a technologically neutral way. The change we ask for is simple and equitable: what’s fair is fair, and should also be legal.

Among the more than two dozen signatories include the Alliance for Equality of Blind Canadians, Appropriation Art, Canadian Alliance of Student Associations, Canadian Association of University Teachers, Canadian Federation for the Humanities and Social Sciences, Canadian Federation of Students, Canadian Library Association, Canadian Museums Association, Documentary Organization of Canada, Public Interest Advocacy Centre, and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.


  1. A decent proposal
    My main question is, “what exactly is fair?”. That is a nasty one as it varies from person to person.

    For instance, let’s look at our progressive income tax rates. Depending on whom you ask, that is fair or it is unfair. In my experience, the people that consider it fair are those that are paying at the lower rates, while those that pay the higher rates consider it unfair.

    Is fairness equal treatment before the law? In that case, the progressive tax rates could be considered to be unfair, as they treat people of different income levels differently.

  2. pat donovan says:

    I’d love to see this too but have NO hope in the cureent gov’t passing up an opportunity to collect money for their friends.

    A faint hope of not being found guilty of being able to commit the crime (ie, future possible infringements, p2p, etc) is stretching it.

    my suggestions are alone the lines of having the whole industry shot at sunrise and their estates sued for deflamation, trademark infringement, hate crimes, libel and imitating fox news.


  3. RE: Anon-K
    “My main question is, “what exactly is fair?”. That is a nasty one as it varies from person to person”

    At the very least, I would consider the videos on YouTube that remix copyrighted footage are clearly fair dealing/fair use for one.

  4. strunk&white says:

    So, Dr. Geist, you have a commenter here calling for violence against identifiable individuals. Just an FYI.

  5. Copyright Brickbats says:

    Troll Bait
    It’s called Hyperbole. For a guy named after a style book you sure lack it. Are you really an Astroturfer? Cause if you are the copycartel sure ain’t getting its money’s worth.

    No wonder they’re going the way of the dodo.

  6. strunk&white says:

    Ah, another day, another reasonable response to reasoned discussion. What would a day look like if it didn’t include being called a troll? I wonder.

  7. strunk&white says:

    Wow, Angus right now taking it to Geist on the iPod levy at the Commons Heritage Committee. You can listen live at the Parliamentary website.

  8. @s&w: “What would a day look like if it didn’t include being called a troll?”

    If you don’t like being called a troll, how about not acting like a troll? It’s that simple. It’s a simple syllogism, really: stop acting like a troll => people stop calling you a troll.

    As for “So, Dr. Geist, you have a commenter here calling for violence against identifiable individuals. Just an FYI.”…:) Where shall I start?:)

    So, I see that you pretend to be against violence but at the same time you support the copyright cartel which intimidates regular folk for doing things that come natural to them and which, on the grand scale of things, is no better or gentler than Mexican drug cartels when it comes to imposing their will. I won’t call you a troll, but I am calling you a hypocrite.

  9. strunk&white says:

    Dr. Geist, well argued on the use of iPods for private copying of purchased CDs, but what about the use of iPods for private copying of borrowed CDs? I think it is that potential sales loss that Angus was getting at.

  10. strunk&white says:

    hmmm, that last comment appears out of context — an earlier one informing folks that Geist is right now before the Commons Heritage Ctte is being held for moderation.

  11. strunk&white says:

    I realize the error of my ways
    I have come to realize that using a grammar manual as my pseudonym might imply that I know something about grammar.

    Now that I’ve done my research on style and learned what hyperbole is I would like to apologize to Dr. Geist for asking him to censor Pat Donovan’s post.

  12. @Eric L.
    You’ve sort of proven my point. That you consider it to be fair use does not necessarily mean that someone else considers it to be fair use; for instance the original rights holder, in particular if the work is used in a manner which the rights holder is not fond of or presents them in an uncomplimentary manner.

    Perhaps my concern is related to the use of the term “fairness” rather than “fair use”. “Fair use”, in the sense of copyright law, uses the term fair in one connotation (acceptable use for lack of a better phrase at this point), while the phrase “Canadian values of fairness” uses it in another connotation, being closer to the concepts of “justice” and “equality”.

  13. strunk&white says:

    Confessions of an astroturfer
    You know it’s really awful having an opinion to sell and no one actually wants to listen to my bought and paid for opinion. You know it was such a great idea, to try and stem corporate losses by bringing the artist into it.

    Ya those guys that make publishers all the money, the ones we never consider unless it comes to stuff like this.

    What would happen if we lost control over distribution of their products?

    Oh yeah we’d become irrelevant. quick let’s bring them on board before we damage this beyond repair.

  14. Captain Hook says:

    There is almost as much hyperbole around here, as there is merde.

  15. strunk&white says:

    okay, well, that last post was not me, in case anyone was wondering. Very helpful to reasoned discussion, though.

    Anyway, I have NOT asked Geist to censor anyone. Just to be clear, I do not believe in censorship, but I do know that Geist has had concerns in the past with hateful speech on his blog. I imagined that he would still be concerned. I see no-one else commenting here is concerned, but that’s on y’all.

    There is a difference between hyperbole and threats, and the lines between those things are not always clear. I would not advise being similarly hyperbolic at a border crossing, for instance.

    Hate speech is a tricky legal matter — The Agenda had a great discussion about it recently, I think. I would normally say “leave that to the courts to decide.” On the other hand, I also think blogs retain an element of private space despite being so public, and if Geist wants to remove anyone from “his house” for hateful, violent speech, I’m not going to protest.

    On the other hand, in case anyone’s wondering, I think the protesters the other evening would have done more for their cause if they’d let Ann Coulter speak at the U of O. While I personally find her opinions sensationalistic and self-serving, and I am often offended by what she says, I think she should not be prevented from speaking at a public university, or anywhere for that matter. See how subtle all this can be?

    Trevor, I will leave it up to your goofy pirate confrere to argue definitions of hypocrisy with you, and instead just point out that I believe litigational chill and/or bullying of any kind is a destructive force in our society. I do not support any cartel. I do have personal opinions about the ethical practices around copyright, and those opinions generally favour established rightsholders, just as my views on physical property generally favour the owners of that property.

    Here’s an example — do I think the estate of a dead writer should have the right to try and prevent scholarship on that writer without compensation to the estate? Yes, I do believe they should have the right to try.

    Should they succeed? — no, fair dealing should allow for lots of scholarship.

  16. strunk&white says:

    “There is almost as much hyperbole around here, as there is merde.”

    Nonsense, just reasoned discourse about publishers rights to make laws. 😛

  17. Anonymous Coward says:

    Only publishers have rights. The public? Not so much.

  18. Anon-K, I think you’ve hit the nail on the head. While I’m certainly not against the concept of “fair use” or “expanded fair dealing” or “flexible fair dealing”, what is “fair” or not would be determined by the courts, by applying the 6 factor test for fair dealing developed by the Supreme Court in the CCH v. LSUC decision. So to determine whether something was fair or not, one would have to talk to a lawyer who, based on the current state of the law, would probably say “it depends” or “maybe” (even in the US, which has had decades of jurisprudence defining the scope and contours of fair use, whether a use is fair or not can be very uncertain…and US case law does not apply in Canada, so we’d be starting virtually from scratch here). The only way to know for certain if a given use or dealing was “fair” or not would be to take it to the courts and get a judgement. So it seems to me that introducing such a measure would (a) introduce considerable uncertainty into Canadian copyright law (which is already plenty uncertain), (b) encourage MORE copyright litigation in Canada as legal disputes erupt over what is “fair” or not and parties go to court, and (c) as a result, copyright lawyers would be the primary beneficiaries.

    This is not to say we shouldn’t consider expanding fair dealing…I’m just very skeptical that it is the panacea that many make it out to be.

  19. strunk&white says:

    I absolutely love how I’m accused of censoring someone while simultaneously having my own voice stifled behind intentional noise. You folks sure do believe in free speech.

    Anyway, Dr, Geist, FYI on the “packrat” fellow above calling for folks to be shot.

  20. strunk&white says:

    Things I learned in PR 101
    “Most astroturfing is black propaganda in that the identity of the source is falsified. However, the ostensible source of the evidence planted is usually not a grassroots organization”

  21. Captain Hook says:

    “On the other hand, in case anyone’s wondering, I think the protesters the other evening would have done more for their cause if they’d let Ann Coulter speak at the U of O. While I personally find her opinions sensationalistic and self-serving, and I am often offended by what she says, I think she should not be prevented from speaking at a public university, or anywhere for that matter. See how subtle all this can be?”

    Oh, I think most people here would agree with your point here whitey. Why do think no one has called for your removal yet?

  22. strunk&white says:

    Right, instead they just pretend to be me to stop me from talking. I see the difference. Nothing hypocritical there.

  23. Captain Hook says:

    Teh heh, well, I did say MOST. I mean come on, its not like you really wanted to have a serious discussion anyway. If you did, you certainly wouldn’t have jumped into the thread with such a trollish statement in the first place. You would have ignored the temptation to ridicule and… you know…. said something intelligent instead.

  24. strunk&white says:

    Pretending to be a civilian is so much fun!
    That way I don’t have to tell anyone I’m representing vested interests!

    See mate, I’m not censoring you, I’m bullying you there’s a difference.

  25. Chris Brand says:

    It’s not that black-and-white
    as s&w tries to make out. I don’t think you help your cause by lumping everyone who disagrees with you together. And yes, in any public space you’re going to get some people saying stupid stuff and causing trouble.

    Personally, I agree with your point about Ann Coulter, agree with you that suggesting that people be shot is going too far, and even agree with you that the current private copying regime, which says that it’s legal to copy a CD that you’ve borrowed, is problematic.

    I also do try to understand your position, and actually seek out creative types in a variety of industries in order to understand theirs, too. I suspect that I could do a reasonable job of advocating for your position, should I want to do so. I don’t agree with (most of) it, but I do think I understand it. If I’m right, then the fundamental disagreement is that you believe copyright is a sort of “natural right”, very similar to property rights, in which case it follows that it should be pretty much absolute. You don’t see that copyrights conflict with freedom of expression, and you don’t believe that they are, as our friends south of the border would say “to promote the progress of science and the useful arts” (i.e. a means to an end, rather than an end in themselves). As such, every time the ratchet has moved to increase the scope and duration of copyright, you see this as rectifying an injustice, and any movement in the other direction would be a backwards step. Am I close ?

    I don’t think you help your cause by :
    1. resorting to ridicule, name-calling and hyperbole rather than reasoned discussion (and yes, I agree that there is too much of all of that on both sides).
    2. not recognising that a lack of willingness to compromise drives people to more extreme positions (for example, people feeling that “if copyright law makes it illegal to use my VCR, then the law should be scrapped”). Fair dealing goes a long way to making copyright law “feel reasonable”, and “make sense” to people who aren’t IP lawyers, and thus encourages respect for the Act as a whole.
    3. aligning your own position with that of the intermediaries. Let’s face it, they have more lobbying power than you, and historically the vast majority of the changes that they’ve campaigned for have worked out to their benefit and very rarely to yours (despite their “for the sake of the artists” rhetoric). I believe that this is actually closer to a three-sided debate than two, and that many of the things that there’s potentially a lot of scope for agreement between people on the “users” side and the “creators”, whereas the intermediaries are fighting to screw everyone else over.

  26. strunk&white says:

    So, then, Hook, you think pat donovan is here to have an intelligent conversation? I don’t follow. How about your first comment in this thread? Contributing?

  27. Captain Hook says:

    LOL, I like your coffee mug. It suits you.

    No I don’t think pat donovan is looking to have a serious conversation. Certainly not as serious as some might prefer. However I also don’t see him pulling a Rodney Dangerfield and complaining that no one give him enough respect either.

    Actually I thought my first comment was pretty witty. It made a comment on both the quantity of hyperbole, and it’s quality, while pulling in a reference from our previous thread at the same time. So yeah, giving what there was to compare it too, it contributed quite a lot!

  28. strunk&white says:


    I appreciate your attempt to bridge the divide — I really do — but I can’t say I recognize much of myself in your description of my position. I don’t think copyright is a natural right as you seem to define it. I know the history of copyright. I get how relatively young it is, but I see great inherent value in it and in the concept of intellectual property. I don’t believe in absolutes — not even for property rights. In fact I think absolutism around property is a harmful position, as evidenced by the guns-as-personal-property rhetoric of the NRA. In fact, I’d say there’s more absolutism about property rights on the copyleft side than on mine — “I bought the CD and I can do what I want with it ’cause it’s my property.”

    I believe in balance and moderation in all things. I obviously disagree with Geist and many here on where the elusive copyright “balance” is, but I think I’ve demonstrated again and again that balance is part of my argument — see above re: dead authors and scholarship.

    Again, I think much of the abolitionist talk that slips in here whenever I show up illustrates where any lack of “balance” might lie in the opposing positions. Look how often and how quickly I am called a troll and a shill for industry.

    Look at my question above to Geist about iPods and music copies from borrowed CDs. He appeared before the Commons Heritage Committee today to discuss balanced and reasoned laws and practice, but in a discussion about the iPod levy he somehow forgot to mention that iPods can and are regularly used to copy music that is NOT bought. Come on — did the CRC in E-Commerce Law not realize that iPods can do this? Where is the balance in that discussion? This is my point, and the reason I engage in discussions here.

    You want balance, you need someone who is really on the other side. I spend my life surrounded by real people whose livelihoods depend on a cultural marketplace. Flying on faith that changes to existing laws will not destroy that marketplace is not really an option for real people. Real people need real assurances.

    As to your numbered points:

    1. I mirror the methods I see here. I also happen to think I do a hell of a lot less of that stuff than gets thrown my way.

    2. Fair dealing already exists in Canada. Define it better so new tech practices make sense and aren’t scary for people? Sure. Expand it to the point where entire royalty and revenue streams under established rights are eliminated? — I don’t see a balance there.

    3. I think your description of the history of “intermediaries” is simplistic. There are disputes between artists and their producer/publishers. There are also examples of artists being taken advantage of, and there are examples of great cooperation and mutual benefit — I gave one yesterday (the publisher in London). Don’t fall for the simplistic rhetoric. It goes nowhere near a balanced solution.

  29. Fairdealer says:

    You want fair dealing?
    Outlaw lobbying in Canada. Rearrange campaign funding legislation so that no individuals or corporations can have an undue effect on our elected representatives. Ensure that there is a *legnthy* period of time post-service in which an elected representative can not serve as a board member or similar over-the-top position on any company.

    While we’re at it, ensure that all public e-mail/lettermail/etc. traffic between elected representatives and any corporation be made public, and stays this way.

    Fair dealing is when your government works to represent the people who elected it, not corporate interests.

    In the particular case of copyrightsholders, until we start seeing concessions from them, there’s no reason the populace should be continually asked to give, give, give. Let’s see copyright pared to 20 years and set in stone for eternity. Once we get this far, then there is a reasonable case to be made that during that 20 years copyrightsholders should have some pretty exclusive and all-encompassing rights. This leaves ordinary Canadians able to enjoy their culture without worry, while still giving copyrightsholders enough time to reap monetary value from the content created.

    Now, I accept that to say Canadian’s shouldn’t be paying for the intellectual property they consume is a non-starter. To say that Canadians should be paying over and over for the same intellectual property is similarly so. Like it or not, the reality is that Canadians have less disposable income every year, less job security, and thus less potential money to spend on things like entertainment, software, etc. We have reached a point where the copyrightsholders simply can’t expect to keep raking in ever-increasing amounts from our populace…there isn’t anything left to spare.

    You can’t get blood from a stone; even with life + eternity copyrights and the most vicious pack of bloodthirsty lawyers on the planet. We don’t have anything more to give.

  30. Fairdealer says:

    A note:
    My above comment is made as a writer who is dating an actor. I to depend on the proceeds of the monetization of copyright; but current legislation is flat out broken. Nothing exists to help those who actually create or consume the content, merely those who “own” it. There is talk a couple posts up of “balance.”

    Until that “balance” is actually righted in law, I doubt the passionate fundamentalism of either side of this debate will ever cease. Ordinary people and content creators are tired of getting a raw deal; the content “owners” have too much to protect.

  31. strunk&white says:

    Loves a good discourse or not.
    I don’t feel the arguments about intermediaries are over simplified at all. The intermediaries (holy euphemism at its best) have one mission in all of this and that’s to retain control over distribution.

    Copyright for 75 years after the death of the author? Penalties greater than actual property values? Statutory damages in the $1000’s per song?

    None of these “damages” go to the artist and none of this contributes to the benefit of society.

  32. @strunk&white
    “You want balance, you need someone who is really on the other side. I spend my life surrounded by real people whose livelihoods depend on a cultural marketplace. Flying on faith that changes to existing laws will not destroy that marketplace is not really an option for real people. Real people need real assurances.”

    You also need to have someone that is willing to listen and recognize there is a serious element to the opposing side. That is one area you fail pretty regularly. When someone disagrees with you, you should not simply relegate their position to a “pose”. If you don’t take them seriously, neither will they take you seriously. Eventually your postings are labled as simply trolling material.

    I suspect you perceive yourself as being in a special or privileged position because of your constant interaction with “people whose livelihoods depend on a cultural marketplace”. You are not unique in such a position, nor even unique among posters (infrequent and regular) here. Perhaps the difference lies in that these other posters also interact with many “average people” on a daily basis as well.

  33. strunk&white says:

    They see me Trollin’ , They Hatin’. . . commenter’s trying to catch me postin’ vested interest spin.

  34. strunk&white says:

    copyrighted works
    Careful that melody could be copyrighted by a RIAA artist and you haven’t applied for sync rights.

  35. pat donovan says:

    don’t waste time on flame wars. ACTRA is applied wholesale slaugther of rights.

    surprising. i would’ve expected the troller to more put out at spelling mistakes than content.

    and ‘the whole industry being shot at sunrise’.. regardless… is hardly a person.
    corperate mass murder, maybe, but not violence against a person.

    why did you waste any time on this (idi*t? (ah, sorry, no flaming. person of insuf. intell)
    but thanks.

    back to outrage at this latest indignity, please.


  36. strunk&white says:

    Yes, I’m special and privileged because I am an artist and know other artists, who are all well above average. I have never met a real person. What are real people like?

    C’mon oldguy, enough of the false populism. It degrades the whole discussion — and you know, this discussion started at such a high grade. It may be attractive to frame copyright reform as a struggle between a pampered elite and the abused masses, but that’s an empty shell of rhetoric. Professional artists pay their bills with as much difficulty as the next person. They watch TV and use cell phones, and pay their taxes.

    How many times do I have to say that we are all consumers AND creators? Copyright is not someone else’s right, some easily demonized special interest’s private territory. The law protects everyone’s original creative expression equally. Hell, it doesn’t even have to be particularly good or convincing expression.

    Some “regular person’s” unreadable and unpublishable sci-fi epic about a comical pirate enjoys exactly as much protection under copyright as a contemporary classic penned by one of my incredibly important artist colleagues. What could be more egalitarian than that?

  37. Fairdealer says:

    Content creators are regular people.

    Content owners are not. You are failing to understand the distinction.

  38. strunk&white says:

    Fairdealer — you mean the distinction between me and me. If your argument is with large rightsholding companies, don’t throw your own rights away to spite them. Insist on keeping your rights and go it alone.

    Me, I like my publisher. He’s a regular guy, the son of the company’s founder. He has a little daughter.

  39. “It may be attractive to frame copyright reform as a struggle between a pampered elite and the abused masses, but that’s an empty shell of rhetoric”

    First off, I have never framed copyright reform in this fashion. It’s typical of you to paint me with the same brush as the more extreme comments. You claim to be a mirror, but such is impossible with the diverse participants here. It’s only the perception that you see everyone else as the “same” that allows you to consider yourself as a mirror to anything. You show nothing but disdain to any points that disagree with yours.
    I’d like to ask what parts of any viewpoints that oppose yours, you do NOT consider as rhetoric or a pose? That might help at least me understand your views.

    Earlier, Chris proposed a description of what he thought your views were like. From my perspective (and probably many others that attempt to take you seriously) he was pretty close. If you don’t recognize yourself in the description, you need to look into perception management. Because that’s how you present yourself.
    If you are really participating here because you want your viewpoint considered, you need to present yourself clear enough that people CAN accurately elucidate what your views are. As it is, you end up looking like a shifting troll. Carefully note I didn’t call you a troll now, I stated you are giving a convincing impression of one. Perception again.. Only you can change that..

    “How many times do I have to say that we are all consumers AND creators?”

    And how many times do so many of us have to say we know this? How many of us have copyrighted works and *still* have views that disagree with yours? As a copyright holder myself, you are doing a lousy job of presenting *my* viewpoint. In fact you don’t appear to see where my viewpoint has any validity. Nor other copyright holders that participate here. Don’t you realize you *are* arguing with copyright holders, the same as yourself? Some of us who depend on copyright protection as well?

    You present yourself as representing a larger group. Please define this group. It certainly isn’t “all artists and creators”, because many are already here. You certainly don’t represent mine. Perhaps a subset? Clearly define this subset.

  40. Fairdealer says:

    My argument is with anyone who thinks that copyright has any reason to be extended past 20 years. Knowledge and culture belong to the people, not to a person. You are not more important than all of us. Neither am I. We all deserve to receive benefit for our labours; but there is a huge difference between that concept and the infinite extension of copyright for no purpose beyond that of sheer greed.

    The mere fact that copyright was able to be extended this long; that our country is involved in secret meetings like ACTA to which even our own elected representatives aren’t party…it’s a stunning example of how corrupt our society has become. At the head of that pack are lawyers and lobbyists; but they work on behalf of corporations. In the context of this argument, it is “Big Content.”

    I am all for helping the content creators see benefit; hell, I’m one of them. Yet I see no need, reason or purpose behind what has happened in the past 75 years with regards to the removal of rights from the creators, and their subsequent concentration in rightsholding corporations. Nor do I see why tese corporations should have ever been allowed to amass the political power they quite obviously have; enough to change the laws of many nations against the interests of the citizens that those laws are there to serve.

    If you aren’t a shill for Big Content sit, then you are a fool. You are willing to give away all our rights; mine, yours and every other citizen of this country to a corrupt cartel in exchange for a bent copper.

    As one content creator to another: I hope you chose on that copper sir. There aren’t bloody many more where it came from.

  41. @strunk&white
    “Me, I like my publisher. He’s a regular guy”

    Ahh.. Nothing wrong with that of course, but it does help define your views, and which subset of artists and creators you claim to be representative of. It’s possibly the same kind of subset you also claim to “spend my life surrounded by”..

    Thanks.. Every little bit of insight helps me understand your real viewpoint.

  42. Copyright – then and now
    Possibly the first copyright act:

    Worth reading. This act came about because of a new invention called the printing press. It made “copying” a much easier action than at anytime in previous history. Government had to really think about what was appropriate for authors and what was appropriate for society. But notice the balance between society and authors/publishers written into the act.

    For a 14 year copyright term (and possible 14 year extension), there were obligations on the part of the author/publisher as well.

    – registration fees
    – price gouging penalties
    – free copies to libraries (educational libraries too)
    – guaranteed availability

    All in all, a pretty fair balance between authors, publishers, and society – for the times. There was nothing in the act about making notes from a (free!) library book. Nor even quoting it verbatim in a public square.

    Contrast with the state we are in today (never mind tomorrow!). Somehow we have gone from a 14 year term to a lifetime plus 50/70 year term, while losing all the obligations the authors and publishers had to society. What happened?

    We have now entered into another transformative age, the digital age. Pretty well anyone can “make a copy” for effectively free. In fact, the digital age requires a user to technically “make a copy” to do anything reasonable with the material. Technology had made it far easier for the reader to take a whole copy with them, than to take selected notes. But current copyright law also makes that technically illegal.

    300 years ago the only way you could make a “copy” was a hefty investment. It made sense to create copyright law around the idea of “making a copy”. The concept of the average reader “making a copy” was unthinkable. Copyright law didn’t even address the possibility. But you look at the spirit of copyright 300 years ago, you might get a feeling for what kind of measures it might have considered appropriate.

    It’s time to step back and completely rethink copyright law. Get back to the balance envisioned 300 years ago. Privilege, and obligations to maintain that privilege. Modernized for the digital age.

  43. Laurel L. Russwurm says:

    “The law protects everyone’s original creative expression equally. ”

    One of my biggest beefs with copyright is that so many creative people have had their copyright wrested from them in whole or in part by duress. It is the “right holders” who do not actually create anything that are driving copyright into the abyss. Copyright law as it exists today is actually harmful to creators.

    I too am a writer, but I am aware enough to know that all IP is a remix in some respect. As this film illustrates:

    I disagree with fairdealer though, 20 years would not be the optimal term for copyright. In today’s world, the creative work will make the lions’ share of the profit in 5 years, at which point the IP should go directly into the public domain. I think 20 years is too long. I actually think 2 years would be optimal, but living in the real world, I can live with 5. Copyright should not be transferable. And copyright should NEVER outlive the creator.

  44. Laurel L. Russwurm says:

    excellent article
    Ooops… forgot to thank oldguy for a really good link.

  45. A view not considered?
    Here are 2 components of copyright I see:

    – Reproducing / reusing a given work and putting it under your own name. This is dead freaking wrong imo, and should never occur no longer how long ago the work was created.

    – Taking a given work and making it freely available, while giving due credit to the original creator. This is badly needed in the current system… it happens too far down the line at a point where the work could no longer be available because mr. “rightsholder” decided it wouldn’t be profitable to do ANYTHING with it anymore (not even put in the effort of releasing to public domain, which from what I hear requires steps to do)

    Are both of these aspects being discussed when we’re talking copyright? Or is the first one covered by a completely different law?

  46. Fairdealer says:

    @Laurel L. Russwurm
    5 Years copyright I could live with. Two is a little short. (At least for authors.) The reason I chose 20 is to acknowledge the reality that most copyright is held by corporations. The reality is that we need corporate investment for many types of works; film and television being the big ones. They flat out won’t invest if there is no profit in it, and 20 years gives them a chance at large profits. They can milk the public for quite a bit of money…but those works will then return to the public for enjoyment, remixing, extension and general enhancement of creativity easily within an average lifetime.

    In essence, 20 years is a good horizon for remakes. You can milk Battlestar Gallactica for everything it’s worth, and then the copyright expires. After that, someone can pick up the IP and remake it, hopefully doing a better job and getting a whole new opportunity to milk money from the public with that IP.

    This gives corporations the hope they can continue with the obscene profits they make, thus they will continue to invest in content creation. If they don’t reinvest in a given property then it is still in the public domain, and we can all enjoy it.

    If I could, I’d set regulations so that corporations couldn’t own copyright; it had to be owned by individuals or a collective organisation representing all individuals working on a given project. Corporations could have exclusivity agreements with individuals or creators’ collectives, but could never themselves own copyright. I realise that in a country as corrupt as our this will never happen. It would be nice, but I still chalk it up next to “a political party that would actually increase regulation of banks and utilities, or help the old, the sick and poor so all of society can benefit from increased productivity.”

    It’s a shame emigrating to the EU is so hard.

  47. strunk&white says:

    oldguy, I don’t claim to represent anyone but me, no matter what other’s here want to assume about me. That I know many, many other people like me who hold very similar opinions about their rights under copyright law does not mean I speak for them. They are quite capable of speaking for themselves.

    Statute of Anne? Really? The first printing presses? So, everything else about the way our creative sector works has changed drastically in the last 300 years, but we need to take copyright back to the Statute of Anne? Please stop trying to teach me the history of copyright.

    The arguments that come at me here are inflexibly defined by a pre-determined anti-corporate political stance. Copyright wrested from you by duress? You’re not mad at a law that gives you rights, your mad at being small in a big world. That’s an entirely different issue. Where is the logic in saying “I don’t want all these rights because if I have them some bully is just going to take them from me.”? Laurel, are you also mad at Google for tramplig on your rights in the service of their (coporate, for-profit) universal library project? I hope so.

    Anyway, for some much need perspective on the real world of professional cultural creation, here’s a pretty good article:

    I’m done for the day. Too busy with professional creation.

  48. I don’t think that copyright needs to be shortened to five years. The same net effect can be achieved by extending fair dealing to include the copying of any work that has been abandoned by the owner of its copyright for more than five years (that is, no avenue exists for the general public to otherwise obtain newly made authorized copies of the work).

  49. @Mark
    That is true, and I agree 100%, but sadly it would be incredibly difficult to prove.

    “That’s not true, I was still selling it in the backalley of 112 main st of Toronto! There was still a legitimate avenue for the general public to obtain it!” For example.

  50. Fairdealer says:

    So you are a corporate shill!

    Thought as much. And you’re right; we are mad about being small in a big world. It’s hard enough to compete with seven billion other people. We shouldn’t have to protect ourselves form organisations and entities several orders of magnitude more powerful than us.

    That’s why we have a democratically elected government! Or wait…that’s only what we’re told. That government was bought and paid for decades ago. Angry about corporates? ****ed rights! Corporations should never have more power than the citizens. The whole system, top to bottom, is hopeless and completely broken.

    That some people drink the koolaid is sad, but ultimately the minority should not be able to remove the rights from the majority. (Not without a much better reason than “greed and profit!”)

    And yes I’m angry at Google; but for far more than just htier book registry. Their even increasing collection of information about you, me, and everyone is more than a little creepy. Not only do they know what I search, read, buy, what websites I go do, what map locations I look up, who my friends are and more; they are looking to get their mitts on my medical data too. Soon enough, they’ll buy up someone like ufile and suddenly they know literally everything there is to know about you. With the current crop of people in charge; that’s maybe not a terrible thing…they’ll make cool programs to do cool things with that information. Google’s a publicly traded corporation however, and their replacements won’t be fluffy and nice.

    The copyright lobby is a wonderful example of how corrupt our governments really are; how long then before it is law that insurance companies must get a look at htat data in order to deny coverage to people as efficiently as possible? Or peace officers in order to hunt down people who might have been friends with someone accused of dissidence? What about employers? Should they get access to this information in order to deny people jobs? (You are more of a risk of taking mat leave/having a heart attack/knowing the wrong people/etc.)

    Sure, you now think I have my tinfoil hat firmly in place; but it’s all symptomatic one of the other. If we don’t push back against corporate power over our governing bodies at every turn; we’ll soon find that the citizens have as little power to demand regulation of the kinds of uber-databases Google has as we do against the copyright lobby. We already lost the fight to demand regulation of the banks, the utilities, and lobbyists in general.

    So strunk&white, I can’t believe you would stand up for these large, manipulative corporations rather than your fellow citizens. Mad about being a small fry in a large world? Terrified is more like it. Seems to me a few hundred years ago something similar (taxation without representation) prompted revolutions south of us. Now I’m not someone who believes in the modern tea-party movement, but that idea does stick in my head. I do feel like I am being taxed, not just by my governments but by many and varied corporations with government sanctioned monopolies, without any form of representation or consent.

    I will never support the corporates sir, and I find it appalling you do.

  51. Anonymous Coward says:

    In the future, most culture will be created by robots and artificially-evolved algorithms. True story.

  52. Re: Anonymous Coward
    “In the future, most culture will be created by robots and artificially-evolved algorithms. True story.”

    I wouldn’t doubt it. I think they found the “patterns” for popular songs now. They mentioned that on a music documentary starring Sting.

    Of course, the distributors will continue to defend the rights of the robot “artists”.

  53. RE: Eric L.
    That is, “defend” the rights of the robot “artists”.

  54. Copyright terms
    @Laurel and @Fairdealer

    Recognizing that there are some cases where really long terms can be valuable, we could get even more creative with terms. How about a variable registration fee/tax that is based on an “assessment” of the value? Copyright holders place their own assessment on the value and the fee/tax is based on that value. The funds from this then go into purchasing the lowest valued material (at assessed value) and placed into the public domain. So we could have:

    5 years automatic.
    Assessed value registration forever afterwards.

    There are some interesting dynamics that could come out of this. If it is assessed too low, it could be “purchased” and placed in the public domain out of fee/tax funds. Assess high and pay a whopping annual fee/tax to keep the registration.
    There could even be a “tax credit” for an amount of free copies that are given away to society (libraries, public, etc). This would allow copyright holders to maintain their copyright with a high assessment value, while freely giving away the material.

    Lots of fine tuning and detail fiddling. But something along this line might be a better “balance” between society and copyright holders. The system is designed to move material into the public domain, but based on the copyright holder’s own perception of it’s “value”.

    I haven’t even considered the side effects from this, like having an assessed value already available for copyright infringement cases.

  55. @strunk&white
    “So, everything else about the way our creative sector works has changed drastically in the last 300 years, but we need to take copyright back to the Statute of Anne? Please stop trying to teach me the history of copyright.”

    As I clearly stated, it is the *balance* they built into the system that we need to recover, and then modernize for the digital age.

    I wouldn’t even try to teach you the history of copyright, but it looks like you need to consider the lessons history can teach us. For an artistic type, you seem to be overly literal. No imagination, no “feel” for the subject and the times.

  56. Chris Brand says:

    One very good point
    is that copyright treats all creative works equally, regardless of any intent by the creator. This is one of the reasons why copyright has moved from the corporate world into people’s homes.

    Giving me all these rights in this post is one of the things that makes copyright law ridiculous – I don’t want them, I don’t need them, and I’ll never exercise them (and the argument that “you can always give them up” doesn’t fly because in order to do that I’d need to know that I have them in the first place). It leads to a world where we break copyright law all the time – forwarding an email, for example. And where some people will find themselves in court for things that feel perfectly reasonable.

    The one thing I notice about the Statute of Anne is that it was a strictly commercial law. It didn’t affect readers, except indirectly, because the things it regulated were all things that only people involved in the book *business* would ever do.

    Business laws are very different than laws that affect everyone for good reason – businesses can and should expect to hire lawyers to advise them on the legal issues that affect their business. Laws that affect everybody are generally designed to be embodiments of “common sense” partly because we don’t expect everyone to hire a lawyer before doing anything. The very idea that “forwarding an email” or “using my VCR to record a TV program” is something that is affected by an obscure corner of the law that not even every lawyer understands is ridiculous.

    The real problem is that as technology advanced so that the things covered by the Copyright Act became doable by people for non-commercial purposes, this was not considered to be a problem with copyright law and fixed at the time. Over time, of course, it’s gotten worse and worse. Of course this is partly because, as a commercial law, the only people involved with figuring out how it should evolve were the businesses (with a few of those, like the educational institutions and public libraries, advocating the “general public” viewpoint).

    Oh, and one very brief reply to a specific point – yes, of course my one-paragraph “description of the history of ‘intermediaries’ is simplistic”. I like to think that I write fairly well, but I’m not good enough to characterise the different positions in the copyright debate accurately in a sentence or two 🙂

  57. Darryl Moore says:

    I’d love to see a registration system for copyright and fees to go along with it. That is what we have for both trademarks and patents, so I don’t understand why copyright gets away without it. I’d love to hear from a supporter of the current system why they think copyright should not require registration, other than ‘Berne requires it’. An explanation like that would only lend support to the argument for scapping Berne. And therein lies the problem. Berne is THE major stumbling block to any sort of meaningful copyright reform.

    You can spend all the time you want coming up with ways to fine tune things, but until you get the major players in this debate to agree that Berne is untenable in the new digital environment and requires a major overhaul (good luck with that), we simply are not going to get a reasonable copyright system. The solution to this problem does not exist.

  58. One very good point


    You are quite right that the original laws were formulated for business activities. The kinds of activities they controlled could only be done by businesses at the time. The idea that an average person could “make a copy” was never even considered in the act.
    Even as recently as 40-50 years ago the idea that the general public could afford to engage in “making a copy” was outrageous. Things have really changed in the last 30 years. Photocopiers for the masses, tape recorders, digital works and digital transmission and digital recording. Like it or not, the scope of activities covered by copyright, as recently as 40 years ago, can now be done by anyone. Easily and as a normal, unthinking part of day to day activities.

    So, going back to the original spirit and ideals of copyright laws, how do we update them to make them relevant in the digital age? Do we keep them focused on actions, or move them into purely into “intentions”? Or do we do something totally radical? I don’t have the answers, but I am thinking..

    What most seem to agree on, is that the current laws no longer reflect reality. They are irrelevant in today’s world. They won’t be relevant until they are completely reconsidered and rewritten.

  59. Revisiting Berne

    Yes, Berne needs to be updated. This is the kind of international negotiation that should be happening for forums such as ACTA.

    In fact, this is the kind of thing that *should* have been on the negotiating table for ACTA, or they should have avoided anything relating to copyright. In any event, ACTA has garnered enough attention worldwide, and raised awareness enough that this topic might possibly be placed on an international negotiation agenda, sometime relatively soon. I don’t think there is anyone that would disagree that we live in a far different world, as activities relate to copyright law, than we did 40 years ago.

    It’s actually the kind of topic I would like to see Canada bring up at the negotiation table. Open negotiations, so the world can see.

  60. @Laurel
    “forgot to thank oldguy for a really good link”

    Darryl Moore pointed me to this link in an earlier article. He deserves the thanks.

  61. @strunk&white
    “That I know many, many other people like me who hold very similar opinions about their rights under copyright law does not mean I speak for them. They are quite capable of speaking for themselves.”

    Why not invite them to participate here? Perhaps they will have a different way of expressing those “similar opinions”, ways that might be more effective than yours.

  62. Darryl Moore says:

    Thank Google

  63. Fairdealer says:

    This is…
    ….relevant to your interests:

  64. Captain Hook says:
    Arrrr. Aye me maties. I vote with me wallet too, by keepin’ it in me pocket.


  65. Fairdealer says:

    I’ll not pirate…
    …but I won’t buy any content from a corporate either. This is my vote. From my hand to that of the artist; nothing else.

  66. strunk&white says:

    So, you don’t watch any mainstream movies on DVD? Either of you? Or is that “from my hand to that of the artist; nothing else, unless I can cut both the artist and the media company out of the loop and just watch pirated content.”?

    Let me know when you can, ’cause I have to report back to my corporate masters about my secret mission here.

  67. Anonymous Coward says:

    You’re not very good at making arguments, are you? Perhaps you should just stick to writing fiction?

  68. Fairdealer says:

    Mainstream movies on DVD? No. I ceased my subscription to cable television in the early aughties, and have never regretted this decision. To a large extent, I’ve cut movies and TV shows from my life. There are exceptions; I am not a saint, and thus my adherence even to my own ideals in imperfect. I do very occasionally attend a movie theatre when part of a outing with a large group of friends. I do rent the occasional DVD from blockbuster; and my girlfriend buys the odd one from the “bargain bin” at blockbuster as well. Understand that this consumption of media is however virtually non-existent compared to ten years ago. Our household income has tripled over that same period of time, as we ceased being students and instead took on “real jobs.” What we spend on content has not decreased; it has in fact increased a great deal! It is simply where we choose to source our entertainment from that has been altered.

    Instead of the corporate-held items, I’ve taken a renewed interest in novels. I have also learned to appreciate certain examples of excellent internet journalism, and most especially live theatre. I also enjoy live music performances, several of the smaller venues are quite excellent, and often the band in question will have their CDs for sale on location.

    While this may seem “odd,” or “fringe,” my personal experiences say this is otherwise. While the evidence is admittedly anecdotal, I know of only one individual amongst several dozen in my age group (25-35) that currently pays for cable. I know several who have similarly ceased consuming large corporate content, though many have different reasons than my own. In general, the move away from “Big Content” seems to be happening for a number of different reasons, and is something I heartily encourage. I can only hope it picks up steam, letting the large corporate content holders starve and die off naturally.

    I should also point out that of the people my age that I know well, less than three percent of them pirate content any more. (Many used to, especially in their college days.) Due to some interesting copyright threads on other websites I have recently been involved in, I had conducted a poll amongst those I knew; that two percent figure was three people of one hundred and eleven that still actively pirated content.

    You can read this as you may, and attempt to pain me as a pro-pirate individual if you wish; the truth is quite the opposite. I am in fact pro “little guy.” Copyright negotiations should consider the rights of artists and individual citizens. They need not and should not consider large corporates at all. Corporations are supposed to be opportunistic; they will fill any niche available. There is no incentive for society to protect their interests; as society changes and adapts so to much the corporations that feed off of it.

    Instead we have been growing into a culture of corporatism whereby the large copyright holding corporations are allowed to set the regulations about their own industry. This is no different than when we allowed the banks to right their own regulations in the nineties and the aughties. It is no different than allowing utilities companies to write energy regulation in California. You do not let the wolves write regulation on access to the sheep pen. Vilify me for those beliefs all you want, but you will be unable to convince me otherwise, and I will continue to put all of my sizable annual entertainment investment directly into the hands of the artists.

  69. strunk&white says:


    Why do you imagine I would vilify you for trying to put money in the hands of artists? There is nothing in what you’ve just written that I find either unusual or threatening. I think you may have mistakenly bought the party line in these threads that I or anyone else expressing a pro-copyright opinion must be a shill for big business.

    Anyway, glad to hear you don’t pirate.
    I encourage you to not have cable television — what do I care? Me, I like the convenience of watching cable television, mainly because I love to watch out-of-market baseball. It is not the be all and end all of my entertainment experience, but it’s in the mix. I know I could stream baseball on my laptop for less, but it is less enjoyable for me that way, so I don’t.

    I encourage you to read novels (you will find, however, that many of these are in fact published by corporations). Live music, etc. Great. If what you say about active piracy is true (pardon me if I doubt it), that’s terrific — my personal attraction to reasoned ethical standards would prefer a decline in piracy to be the result of people realizing it is wrong to take what doesn’t belong to them rather than from a kneejerk anti-corporatism, but okay, whatever. I guess when you describe your ideals in terms of whether or not you watch TV or go to movies, then there’s a bit of a gulf of understanding between us. For me, that stuff is entertainment, not ideals, and I like being able to make that distinction.

    I would caution you about extrapolating from your social circle to a larger trend. The age group you mention looks fully engaged in corporate culture from where I sit, and fully engaged in the best possible way — dynamically changing practices and models, while very intelligently refusing to give up existing rights for content creators.

    I have been well through the whole “corporations are inherently evil” argument in my personal and professional life. You’re welcome to it, but it does little for me. To me it’s about as accurate and useful as the weird anti-Americanism that crops up in this debate from time to time. It paints you into a corner — Google is about as big a corporation as you’ll find these days, and I’m guessing you use their product every day.

  70. Fairdealer says:

    You’d guess wrong. Google are one of the most terrifying things every to happen to our society. The amount of information they collect and hold on you…it’s mind boggling. Not only do they know who your friends are, what you search for, where you work and what you look up at work…they are trying to get “Google Health” put in place in most countries. They’ll know your complete medical history and all it takes is them purchasing something like ufile to get a complete knowledge of your taxes. This corporation is only a couple of years from knowing more about you than your spouse, your government and possibly even yourself.

    With the current crop of people in charge, this is maybe not something to be worried about. Sergey Brin and Larry Page seem like good guys! Naive, and bad with people, but good guys. Now isn’t later though, and Google is a publicly traded company. The monstrosity these men are building in order to serve us ads has is sleepwalking into Gattaca. How soon before insurance companies demand access to this information in order to deny coverage? How soon before it is tied to national ID databases or no-fly lists? How soon before employers are given access to pre-vet candidates? Power corrupts; and Google’s databases represent an awful lot of power.

    So no, I don’t use Google. When and where I absolutely can’t get away from it, I have a specially configured virtual machine that is painstakingly constructed in such a way that Google couldn’t track me or identify me if they had a hundred years to try. (I am a computer nerd by trade.)

    You can enjoy your corporations all you want, sir; I’ll never trust anything or anyone that has all the rights of a citizen but none of the responsibilities. When you can get away with anything; you don’t think twice about trying. You talk about knee-jerk anti-corporatism. I certainly hope it’s more than that. I hope it’s the start of a revolution; even if not in my time, I hope our society wakes up and takes to the streets. The extant wealth gap can’t be allowed to continue, and neither can the social power gap.

    Once, a long time ago people had guts. They stood up for what they believed in, sacrificed for their ideals. They stood up to a monarchy and changed the world. First France, then the US, and quickly it spread. Well I believe in something sir; I believe that we shouldn’t “leave people behind.” I believe in helping those less fortunate, in spreading the wealth at least enough that everyone has the basic necessities of life. I believe in competition and a free market, but in caps controls and levelling restrictions on those that amass too much power. I believe that life is a constant balancing act; the rules of which need to be constantly reviewed and tweaked for the times. I believe corruption is the greatest of all possible “sins,” and that all societies must guard against it in every way possible. I am willing to “sacrifice,” to alter my behaviour and vote with my time, money and effort to support my beliefs. I choose to lead by example, and while I can’t save the world, nor inspire it single-handedly, I hope I am simply one amongst many who are willing to make these choices. Call that knee-jerk anti-corporatism if you wish. I call it a philosophy.

  71. Fairdealer says:

    Also: to adress another comment you made…

    Corporations are not inherently evil. A society that doesn’t regulate them is. Corporations on their own don’t pose a threat to society; it is only when they start organising and running around in packs that they become dangerous. If not allowed to form cartels and pressure groups, to exchange key staff and otherwise organise then corporations are fantastic. They compete against each other, innovate and advance technology and culture all at the same time.

    That all falls down when we naively believe that left alone this is what corporations do. It simply isn’t in the best interests of corporations to do any of that. Corporations when left to their own devices organise into packs, and run around kicking the crap out of any little guys they find. They run roughshod over consumers and laws and set up every possible barrier to entry in the market they possibly can. They keep new players out while consolidating their position, forming a monopoly or cartel while trying to get laws passed to not only deregulate their activities but, if at all possible, to mandate that “the people” are actually forced to buy their product. If they can’t mandate people being forced to buy their product, they will mandate levees and fees on anything and everything that is payable only to them, (preferably with zero accountability or tracking.) Hell, left unchecked packs of corporations will even convince governments to invade sovereign countries on the flimsiest of pretexts.

    If you want that world; if this is what you stand for, then I pity you. Copyrightsholder companies may not be Haliburton, or Telecoms monopolies, but they aren’t saints either. They’ve done some deplorable things, and they’ve organised to change laws and run roughshod over the rights of ordinary citizens. They are (at least in Canada,) amongst the greatest violators of copyrights themselves!

    You can try to dismiss my beliefs, and attempt to spin things such that what I believe is childish or poorly thought out. I believe this to be far from the truth. I’ve been a couple of decades in developing this belief, and it is not only carefully considered…it is backed by a mountain of evidence.

  72. strunk&white says:


    Again, I’m confused as to why you are angry with me.

    Except for the fever with which you say it, I wouldn’t want to dismiss what you say. I bet our disagreement is a question of scale. Who wants deregulated corporations, or deregulated anything for that matter?

    Well, a lot of folks here want a deregulated Internet, I think. At least they want regulations that are so weak and ineffective they can do nothing in the face of organized defiance.

    Are you a character in a Cory Doctorow novel? A specially constructed virtual machine to keep you out of Google’s digital clutches? Wow. I bow to you, sir.

    My argument here has never changed, but maybe you haven’t heard it before since you seem kind of new. The digital future is here already. There is no stopping digital content delivery and all of the inherent fantasticness of the Internet — there is an immense positivity potential just ahead of it. We can enter that potential with fewer individual IP rights, or more. That’s the choice we are tasked with making.

    I get that you hate how corporations can be bullies on IP. In my world that fight is between individual writers and huge media congloms. I’m with the individual writers on that one (surprise!). But that does NOT mean I think it’s cool to steal content from a huge media conglom — because the same laws that protect their content protect mine.

    That’s it. Have whatever long-developed political philosophy you want, and I’ll have mine. They’ll run down the same paths here and there, and often diverge.

  73. Anonymous Coward says:

    “But that does NOT mean I think it’s cool to steal content from a huge media conglom — because the same laws that protect their content protect mine.”

    Infringe on your copyright. “I think it’s cool to infringe copyrighted content.”


    Everybody under 30 already does that, every day. Good luck in the future.

  74. Fairdealer says:

    I am not angry with you. I simply feel you are misguided. I can’t understand how the eternal extension of copyright benefits anyone except the large content mega-corporations. It’s certainly not “cool” to steal content, but I am totally okay with rewriting the extant set of IP laws to take into consideration the needs of the content /creators/ and those of /citizens/.

    As to being a character in a Cory Doctorow novel; it’s really not all that abnormal. Google was the company I based my secure VM design on, simply because they are the worst offender. Anything designed to thwart them will thwart anyone else that happens to wish to track me.

    You talk about entering the digital era with “fewer IP rights, or more.” This is where everything falls down. It isn’t about “fewer or more.” It’s about /properly balanced/ IP rights. It’s about creating a society where the needs of content creators and of regular citizens are both taken into account. Not one where regular citizens are simply walking wallets. I’m sorry you aren’t able to take that away from my posts.

  75. Captain Hook says:

    My rights or yours?
    The problem with whitey is that he likes to frame the issue as if it is a question of having more or fewer rights. Who wouldn’t want more rights eh? The problem is that he is missing the entire other side of the equation. For every single right granted through copyright, another right has been scarified somewhere else. Whitey cannot see the other side of the equation and he will never admit there there are other rights at play here. Frankly, yeah, I do want to keep my rights. But the rights I am trying want to protect are competing with the rights that whitey wants to protect.

  76. Anonymous Coward says:

    Intellectual Monopoly
    My right to privacy trumps your fight on piracy. True story.

  77. Robert Viera says:

    Changes to Criminal Code Regulations
    Has anyone noticed this?

    2010-0394 2010-03-25
    Criminal Code
    Regulations Amending the Regulations Excluding Certain Indictable Offences from the Definition of¨”Designated Offence”
    Regulations Amending the REGULATIONS EXCLUDING CERTAIN INDICTABLE OFFENCES FROM THE DEFINITION OF ‘DESIGNATED OFFENCE’ by removing the Copyright Act from the list of statutes that are excluded from the definition of “designated offence” in relation to the application of the “proceeds of crime” provisions of the Criminal Code in order to allow such proceeds to fall within the ambit of the Criminal Code’s proceeds of crime regime. This will improve the ability of law enforcement agencies to enforce the Copyright Act by permitting the seizure, restraint and confiscation of proceeds derived from the commission of copyright-related offences and will complement existing enforcement strategies to combat organized crime and copyright piracy.
    Registration: SOR/2010-0074 Publication Date: 2010-04-14

  78. strunk&white says:


    Have I asked for the eternal extension of copyright? I missed that part.

    I am trying to protect rights that I already have, as both creator and consumer. It’s a baby and bathwater situation as I see it. There’s lots of room for reform, and I prefer a society in which all laws and regulations are open for constant scrutiny and negotiation. But I don’t believe in change for change’s sake. I believe in smart, pragmatic change backed by sound reasoning not rooted in inflexible partisan politics.

    It’s interesting to me that you would choose to come to this particular site to advance an anti-corporate agenda, because I often think of Geist as the corporation’s best friend. Dismantle fair dealing the way he advises, and the first ones through the gate to get at all that suddenly free “property” will be those best positioned to do so — the corporations. I’m pretty sure he’s not unaware of that fact, considering he has stated he thinks Google’s landgrab on the world’s books constitutes Fair Use. Who is guiding the misguided? Did you read Geist’s defence of as a corporate player in Canada’s environmentally sensitive bookselling landscape?

    If nothing else, don’t depend on Cap’n Hook to define my position, viewpoint, issue-framing or knowledge of the sides in this argument for you. Based on long experience shaking my head at his profound ignorance, I’m pretty sure he hasn’t a clue about any of it.

    I’m a writer. Writers depend on both sides of the copyright coin, and they will fight for both with equal passion. I get your point about balance. I agree with it. My counterpoint is that when you have an unbalanced scale, you can achieve balance by taking weight away from one side, or adding weight to the other. All I’m saying is, here is a perfect opportunity to achieve better balance by adding rights, not taking any away.

    I don’t speak for anyone but myself, but I would guess the professional creative community in this country would be happy to sit down and discuss new user rights, privileges and definitions. They just want some assurance that while they are sitting at the table in good faith, there isn’t some unthinking pretend-pirate looting their house.

    The sooner user-advocates give people like Hook their walking papers, the sooner everyone gets taken more seriously.

  79. Fairdealer says:

    I am not trying to advance an anti-corporate agenda. I simply don’t think corporations need consideration /at all/ in intellectual property laws. Understand me; corporations are a good thing. Their existence advances our society in many ways.

    Where I draw the line is at corporate interests surpassing those of citizens. A group of corporations are good; they infight and compete…the profit motive drives innovation. When they get organised and start working together then they have shifted into a world where /preventing/ innovation is now their main motive. New ideas and competition can’t be allowed; it would threaten what they have built.

    This is why I believe that corporate considerations need to be cut right out of intellectual property debates. Creators and citizens are the ones to worry about; let the corporations adapt or die, as new niches become available to them.

    A corporation should have to live by the motto “innovate or die.” Citizens should not Giving “more rights” to content /owners/ does not necessarily benefit content /creators./ very rarely does it benefit ordinary citizens. What I advocate is a complete tear up and review of extant law with and idea to /balance./ You know, the needs of the creators and of the citizens being taken into equal consideration.

    We then roll out these rules, and if the corporations with vested interests in preventing change don’t like it…tough. They can adapt or die. There will always be a role for corporations in the content chain; they simply will be forced to find a new niche.

    A small handful of independent labels and rightsholding groups have done exactly this; they have on their own taken an approach to balancing the rights of the creators with those of the public at large, and manage to extract a profit in the meantime. I have nothing but respect for these organisations. They had to /innovate and compete/ to distinguish themselves and they face unbelievable financial and legal pressure from the megacorps for their brazen attempts to do so.

    I am not anti-corporate in the sense that “all corporations are evil.” I am anti-corporate in the sense that “corporations should not have the rights of citizens, nor even be allowed to organise in such a fashion that their lobby/pressure groups post a threat to the rights of citizens.”

    as to Dr. Geist’s defence of Amazon; I completely support it! Extant booksellers in this country have grown indolent and lazy. That a big player is shaking things up is fantastic. Remember that “big corporation” does not mean “bad corporation.” It is most often the case that this is true, but not always. I can think of several examples or large corporations that simply refuse to take part in the kind of shenanigans that I abhor. I won’t say Amazon is a saint, but for now at least; they innovate.

    This is more than I can say for any but a handful of the smallest “rightsholding companies” over the past few decades. CETA and ACTA are right up there with “deregulate the banking industry” or “let the utilities companies write their own regulations.” It’s time to kick the extant set of sows away from the trough and to the curb. Let a new generation do new things within the boundaries of the real world; not try to cling desperately to the past. It’s time to tear up intellectual property rights and rewrite a completely new set; balanced, and for the 21st century.

  80. strunk&white says:

    Well, other than the whole “scrap everything and start fresh” thing…

    I’m not sure why we should scrap IP laws, while allowing big corps like Amazon unregulated access to our cultural marketplace. And big corps like Google unregulated access to content I know, you don’t lie Google). It’s kind of hard to figure out the players you like and dislike in all this. You seem a bit oddly selective about the practices you disdain. It’s pretty easy to call mall independent booksellers lazy when they are being priced out of the cultural landscape by a massive, predatory corporate competitor bent on cornering the market. Not sure I’ve ever met a “lazy” independent bookseller.

    I say regulate everyone, even users, or succumb to anarchy.

    I will say I admire the subtlety of your dislike for corporations and their lobbyists. It is miles ahead of the usual hamfisted approach I run into. That said, I don’t support the idea that corporate lobbying is a threat to the rights of ordinary citizens. Taken to an extreme, it could, but we are nowhere near that extreme. I feel I have as much access to the political process as any corporation. More in fact, because I can vote. Lobbies have their place, and every individual has the responsibility to be vigilant in pressing her own opinion as well. If every citizen bothered to engage, I doubt one would perceive any imbalance at all. I don’t blame lobbyists for knowing the right numbers to call. I applaud them, and then I make my own phone calls.

    Anyway, you make a strong case. I don’t buy it (at least not all of it), but it’s well argued.

  81. Fairdealer says:

    I am going to split this into two parts, sir.

    I don’t know where you find your booksellers, but in Edmonton our “independent” ones appear to be doing just fine. The only ones who feel threatened by Amazon are the Chapters/Indigo/Coles/Smithbooks type chains. They are terrified! The small local stores ’round here have a devoutly loyal customer base and seem to have weathered the storm better than the megaliths.

    Amazon isn’t going to rape our “cultural heritage.” There will be just as much Canadian content (if not more) available for consumption because of them. It’s the chapters/indigo/etc. stores that pack away Canadian authors into the darkest corners of the store, and give them the minimum possible shelf space. These big book stores are the ones who then put up gigantic signs promoting the latest pap churned out by some talentless hack writing to a formula. Not only could computers probably puke out better books than half the crap I’ve seen on the “bestseller” list, I have my doubts about the authors passing a Turing test! (I swear, we are only a few decades away from having robots produce all of our content at this rate. How plugged in do you have to be to write the next “survivor?”)

    I agree with your regulate everyone approach, but I simply don’t see why corporations should get any consideration. You regulate content owners and consumers, ensuring their rights are fairly balanced. You then let the corporations find a niche within the laws, or die gasping.

    Do I dislike Google? Yes. I can’t agree with Dr. Giest about Google Books at all. Google landgrab is a great idea in principle; if only it wasn’t a corporate interest controlling it. A government agency controlling that registry and setting prices? I’ll take that. Even a “writer’s guild” or “guild of writer’s guilds.” The only reason that it’s even necessary is the ridiculous length of copyright. If copyright were twenty years, then frankly the public could wait that twenty years before those “orphaned works” were indexed and made public. Do I have any problem with making out-of-copyright works public? No; in fact I adore the Gutenberg project because it is works like this with enrich out culture by ensuring we never forget our past.

  82. Fairdealer says:

    Where you and I seem to fall apart is that I sense you feel is the “right” of the creator to control his works forever, and to reap the benefits from that for as long as possible. As a writer, I have to say the concept is appealing…but as a citizen of humanity I also must say that all creative works belong to the people. So I believe in a balance; the ability for content creators to earn a decent living off of decent labours, but an unequivocal and inextensible copyright absolutely anchored in stone at twenty years. This ensures that we can enjoy our cultural heritage, allow content creators to earn a living…but ensure that there is always incentive for those same content creators to create more. The only way this could ever be possible is to completely rewrite our IP laws, and build in safeguards against lobby interests for the future.

    Who do I like in all of this? Anyone who actually works for a living. Not the indolent who seek to live high off what they did decades ago, but those who struggle, create, innovate and dream. To my mind we much shape our laws and our very culture to encourage these traits; while standing fast with every defence possible against those whose interests are to prevent it.

    Or to put it less poetically, I don’t see an individual as more important than the whole. I support anyone and anything who not only believes in the greatest good for the greatest number, but actively works towards it.

  83. strunk&white says:


    On bookselling, can we get rid of the rhetorical language like “rape.” I try not to use it, and I wish others wouldn’t. I’m not talking rape of culture, I’m talking real economic and social outcomes. Since the advent of big box foreign partnership bookselling in Canada, this country has experienced a net loss of small independent local booksellers in the hundreds. No-one questions Amazon’s model in terms of the “availability” of Canadian titles. You can absolutely find more titles online than in a confined physical store. The problem is with promotion and publication encouragement. Local sellers actively promote a balance of local interest titles and bestsellers; and without that dedicated work publication of Canadian titles becomes increasingly uneconomical. I’m not counselling a blinkered retreat into the past, but rather a regulated, Canadian advance into the future.

    Let me quickly quote Roy MacSkimming (who knows a thing or two about books in Canada, having written the official history of the biz):

    “Abandoning the book industry to the free play of market forces would result in Wal-Martization, the law of lowest cost, lowest common denominator. This would be portrayed as a victory for the consumer but would, in fact, be the very opposite. Readers would be able to buy all the imported bestsellers they wanted, very cheaply, but would be deprived of the current rich choice of Canadian and international titles.

    And if the domestic publishing and bookselling sectors were decimated, there would be little incentive for foreign multinationals to assume their role by publishing and selling a wide range of Canadian authors. It simply wouldn’t fit their business model.

    The losers would be our writers and our readers – our country. Canadians would go from being owners of their own literary house to mere renters. And why would the government allow that? Everyone knows that, once the family home and furniture and silverware are sold, you can’t get ’em back.”

    On copyright… again, I don’t think creators have a right of control “forever.” But I do think the economic reality for professional creators is more complicated than any fixed term can address. Much professional content success is delayed — works are revisited, rediscovered and repopularized after long periods of dormancy.

    I also question the rhetoric around public domain and copyright. “All creative works belong to the people.” This statement is true whether a work is within its copyright-protected period or not. What stops anyone from enjoying a copyright protected work, from criticizing it, from using fair dealing portions of it? I can honestly say I have never, ever felt unduly restricted by the copyright protection on another creative work, and I’m a writer who researches, uses ideas from, and quotes other works all the time. The only time I ever even notice copyright is when there’s a pricetag involved. To get the latest Adam Gopnick on my iPhone, I need to pay. To get a copy of Last of the Mohicans, I can go to Gutenberg.

    I will say I feel very strongly about a creator’s right to bequeath copyright ownership in their estate. Our society allows this transfer of wealth for all other property. I don’t see any good argument why we shouldn’t allow it for intellectual property. I find your description of artists making money off past work as “indolent” really weird. If people still want to buy Philip Roth’s early work, why shouldn’t he make money from that? He is still writing great new stuff, but why should he be cut off from the revenue flow on his early work? And if he is cut off, who should get that revenue?

  84. Anonymous Coward says:

    Intellectual Monopoly
    Intellectual property is nothing like real property. Real property cannot be infinitely reproduced. Yet.

  85. Captain Hook says:

    Copyright Terms (again)
    Whitey, you say you do not “think creators have a right of control “forever.””, yet every one of your statements that follow suggest you do.

    “Much professional content success is delayed — works are revisited, rediscovered and repopularized after long periods of dormancy.”

    Yes, so? If this happens within the span of copyright protection then the author benefits. If it is outside that scope then he does not.

    “I feel very strongly about a creator’s right to bequeath copyright ownership in their estate.”

    Of course, but obviously only for the term of copyright. The question of course is should the copyright clock start ticking at the moment of death or at the moment of publication?

    “why should he be cut off from the revenue flow on his early work? And if he is cut off, who should get that revenue?”

    The only answer to this would naturally be that the copyright of the early works has expired. At least if we had a reasonable copyright term from date of publication anyway.

    Seriously, I would love to have an honest conversation with you regarding reasonable terms for copyright. Other than you don’t want to see authors lose any rights they already have, we know nothing about your stand on copyright terms. Would you see them lengthened? Would you consider making it from the date of publication if in exchange they were lengthened. What about requiring registration? At least after a short grace period of 5-10 years. What is your thought regarding the EU pushing Canada to extend copyright to 70 years? What about shorter terms for software?

    I know you are an author and I know you know and work with a lot of authors. Terms are one of the serious issues that I have with copyright, and I am very interested in the view of terms from your community.


  86. Fairdealer says:

    I agree with you about “big box” stores. The disparity in “advertising content” is one of the reasons I loathe chapters/indigo/etc. I just don’t see that with Amazon. Amazon’s “advertising” of other works is contextual. If I look up a Canadian author, it will tell me to buy other things by that author, or books in a similar vein. Maybe I’m dense, but I fail to see how Amazon does anything to harm the availability or promotion of Canadian content.

    Will Amazon kill local book stores? Honestly, I doubt it. Amazon will damage the megaliths; they play in the same ballpark. The local bookstores that have survived Chapters/Indigo/Etc. won’t be having problems with Amazon.

    Would I have prevented Chapters from entering the Canadian market? Or the gobbling up of Coles, Smithbooks etc? Heck yeah! That particular transaction did huge damage to the Canadian book scene. The thing is…the damage is done. The die-off and “walmartisation” of books is over. Amazon is frankly a friendlier “giant corporate bookseller” than Chapters/Indigo/etc. I realise that’s a shocking statement, how could I possibly make it? Well it goes back to how Amazon advertises to me. I walk into a Chapters/Indigo/etc. and all I see are the “top 40,” and posters for the latest regurgitated formulaic pap. I go to Amazon, and it learns my preferences; it shows me what others who have bought the same book I did bought, books by the same author…insanely enough it all seems relevant to me. (Parse that through the fact that I hate people tracking me.)

    Amazon entering the Canadian market at a time before the walmartization of books occurred would have been a cause for concern. Now…they aren’t going to eat Audrey’s lunch. They are going to make Chapters/Indigo/etc. cry. I’m perfectly okay with that. Nothing about Amazon’s existence should have any more impact on our authors or publishing industry than Chapters/Indigo/etc. have already had.

    The kindle and like devices might decimate traditional publishers, but I am strangely okay with this. Self-publishing via e-book stores and cutting out the middle man is something I am seriously considering; I have to see a convincing business case for traditional book publishing versus self e-book publishing. You talk about regulating our way into the future…this is a great example. We shouldn’t regulate that “traditional book publishing must have priority over e-book publishing” unless a series of cogent reasons exist. Preserving a business model “because this is how it has always been” just isn’t a good enough reason. (Google “appeal to tradition.”) Book publishers might offer services that make it worthwhile for authors to go that route; but we needn’t legislate such. If they publishers can’t adapt, they should be allowed to die off.

    Note this isn’t advocating piracy, but simply basking in the fact that hey; maybe we can just cut the middle man right out. I’m cool with this, and don’t understand why it’s a problem.

    As to copyright; Captain Hook’s questions for you seem valid. I’ve ranted my ideology on it enough, I’d love to have your thoughts clearly and concisely laid out.

  87. strunk&white says:


    I’ll respond with more detail on copyright terms when I get a chance — in the middle of an immediate freedom of expression crisis:

  88. Fairdealer says:

    There’s one thing we can agree on.

    Censorship. *sigh*

  89. strunk&white says:

    Quickly then, on copyright terms.

    I think the principle of “who made it, owns it” is extremely important for intellectual property – Anonymous Coward, clearly I do not come from the school of “intellectual property is not real property,” and unapologetically so (I prefer to talk about pragmatic reality, rather than theory).

    Let’s ignore the marketplace for the moment – at the level of intellectual freedom this principle is crucial. There was a story awhile back about e-textbooks being made so that they could be “edited” by whomever happened to be teaching them. Part of the open education movement. Great – except, I imagine, when someone “edits” unscrupulously, to change scientific facts or authorial opinion. A line must be drawn between “fair dealing” use of expression for educational purposes and wholesale disrespect for the ownership of that expression.

    For the dangers of unscrupulous editing look back to the Reuters complaint against CanWest in 2004:

    For me, the key phrase in this story is:

    “If they want to put their own judgment into it, they’re free to do that, but then they shouldn’t say that it’s by a Reuters reporter,” said Schlesinger.

    And that phrase illustrates an important intersection between copyright ownership and intellectual freedom, I think. Since copyright protects expression, not ideas, and since expression is often inextricably linked to the individual, then we MUST respect the ownership of expression in order to protect its freedom.

    Most of what I’m talking about falls into the area of moral rights, and perhaps given the example of CanWest/Reuters we can agree that moral rights should be limited by no term. “Own what you say,” should be without a time limit, since it really has no effect on public domain use.

    On the commercial side, I think a set term that includes the original creator’s ability to bequeath the value of her intellectual property is a reasonable bargain society makes to economically encourage creation. I also don’t think it’s at all burdensome as long as users understand and insist upon their fair dealing rights. Where these fair dealing rights intersect with technological controls, there’s some negotiation to do, but I see that as solvable without histrionics or without the need to break those controls – regulation should do the trick (of course, at present, the emotions have been encouraged to run so high on that issue that regulation cannot be reasonably negotiated).

    I see room to change the concept of a set term to one of individual extendable terms beyond a set period if and when continued commercial value is expected. Then we could get into an extension taxation discussion – very interesting for all parties. But I still think the original creator should be privileged as part of that original bargain. JK Rowling and her family should be able to commercially benefit from Harry Potter as long as people keep buying it.

    If folks want to start cutting finer slices and say “what about re-use beyond fair dealing?”, I think there’s room for discussion about additional user rights that occupy a territory separate from either moral rights or extended commercial rights. Say, after a fixed period, certain specific re-use rights (beyond fair dealing) kick in under the public domain, whether or not commercial rights have been extended. Just an idea I have noodling.

    On the other hand, I think a requirement for original registration of copyright is wrongheaded. This takes us back to freedom of expression. There must at least be an original term during which expression is protected whether the original creator has even thought to protect it or not. That combats potential profiteering of naïve creation by unscrupulous actors (if anyone would like to insert the word “corporation” here, feel free.

    That’s me, as briefly as possible while staying accurate, on terms.

  90. Anonymous Coward says:

    Intellectual Monopoly
    Copyright will be rendered obsolete in the near future. Good luck.