Digital Kayak

Seeking Balance in Canadian Copyright Law

We need a new copyright model. Artists, musicians, film-makers, all deserve to be compensated for their work, but the public's rights must also be respected.

By Adrian Duyzer
Published August 20, 2009

Canadian copyright law is currently the subject of public consultations. The last time the government tried to introduce a copyright bill was in 2008 with Bill C-61, which would have been disastrous for Canadians had it passed. Fortunately, it died on the order paper when the government was dissolved.

The Conservatives are taking another crack at it now, but this time they are consulting the public before they introduce a bill. Of course, the public doesn't just mean ordinary Canadians. It also means powerful lobbies representing the music and movie industries and the organizations that launder policy for them, producing reports that are outdated, false and even outright plagiarized.

The positions of these lobbies have coalesced. They are advocating for a "three strikes" policy that would revoke Internet access for users alleged to have engaged in copyright infringement; legislation to prevent people from picking digital locks (defeating DRM); a policy called "notice and takedown" that means a copyright holder can allege a service provider is hosting copyrighted material which forces them to take it down; limited fair dealing provisions; and other restrictive policies.

These organizations want you to think that copyright exists simply to protect the rights of creators. That common perception is not true.

Piracy and Preservation

For centuries, the only way books could be distributed was by the painstaking effort of scribes. Before the 13th century, most books were produced by monks. During the 12th and 13th centuries, secular scribes began copying books for commercial purposes.

Scribes had a demanding task. The only way to copy books was by hand, letter by letter. Scribes needed to be highly educated and extremely dedicated. Their task was technically challenging and morally perilous: the duplication of holy books required rigorous attention to accuracy, because putting words in God's mouth was not taken lightly.

The labour of scribes is the reason we are still able to read books that were written thousands of years ago. The works of Homer, Plato and Sophocles, the Bible, histories of the Roman and other empires, have all come to us by way of their efforts.

If scribes existed today, however, we'd have a different name for them. We'd call them pirates.

The Copyright Bargain

The word pirate has lost much of its sting in the modern era because of fictional characters. There's a certain romance associated with pirates, until you're confronted with their brutal reality, which is a lot more like the coast of Somalia than the deck of Captain Jack Sparrow's ship.

In the sixteenth and seventeenth centuries, authors started using the word pirates to refer to the publishers of unauthorized copies of their works. Their frustration with these copies was not always rooted in economics. Martin Luther was mostly concerned about the veracity of the copies: "[these] thievish pirate printers handle our work faithlessly. Because in their hunger for money they do not worry themselves about whether one of their pirated texts is correct or erroneous."

When today's copyright lobby uses this term their rationale is simple: people who copy are pirates, hijackers, and thieves, so they have no rights. That means the only side whose rights matter in the relationship between content producers and the public is the side of the content producers.

That's a distorted view of copyright. The Statute of Anne, enacted in Britain in 1710, is the first full-fledged copyright law (Canada's copyright law was based on the British Copyright Act of 1911, the third successor to the Statute of Anne).

Its two reasons for existence: the prevention of the ruin of authors because of unauthorized copying of their works, and "the Encouragement of Learned Men to Compose and Write useful Books". Why encourage the writing of useful books? Because useful books are good for society.

The US constitution provides for a copyright system in Article I, Section 8, where it claims the right of the state "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". In a court case decided in 1932 (Fox Film v. Doyal), the US Supreme Court ruled that "The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors."

In other words, when the US Constitution speaks of progress in "science and useful arts", it does so to enrich society.

So the intent of copyright was never to simply reflect the wishes of content creators. There's a balance here, which forms the basis of the copyright bargain. In order to encourage authors to publish new material, the government has bargained away our right to copy works. But how fair is this bargain?

Copyright Should Serve Public Interest

In Canada, the law is already stacked heavily in favour of copyright holders. Copyright holders hold exclusive rights to publication, presentation and adaptation into other works: virtually any substantial use of the work at all. And copyright lasts a long time: the author's life plus 50 years.

The public, on the other hand, gets some rights under the principle of fair dealing (fair use in the US). This allows for news reporting, reviews, private study, educational use, research and criticism. In Canada, many of the activities allowed under American fair use provisions are not legal, including parody, reverse engineering, and time-shifting (that's right, what you do with your DVR/PVR is not technically legal).

Richard Stallman argues in Misinterpreting Copyright, "If copyright is a bargain made on behalf of the public, it should serve the public interest above all. The government's duty when selling the public's freedom is to sell only what it must, and sell it as dearly as possible."

Will the Conservative government drive a hard bargain on behalf of Canadians?

New Copyright Model Needed

Right now, the copyright lobby is urging the Canadian government to pass harsher laws, laws that if passed will undoubtedly have serious consequences for the unlucky few who are singled out from millions of Canadians for prosecution.

They are doing so because their industry is undergoing major structural changes that they are helpless to prevent. The entire business model of record labels has been turned on its head. Artists that used to be reliant on record labels for distribution can use the Internet instead (Radiohead and Nine Inch Nails are notable examples).

File sharing is incredibly widespread. According to the Electronic Frontier Foundation (EFF), 60 million Americans have used file sharing, more than voted for Barack Obama. This is not a phenomenon that can be stopped.

What we need is a new model. Artists, musicians, film-makers, all deserve to be compensated for their work. The public's rights must also be respected. The situation cries out for a creative resolution that fairly balances the rights of both sides in the copyright bargain without criminalizing file-sharers (or revoking their Internet access on the basis of allegations).

Other models do exist. The EFF has proposed a system called voluntary collective licensing, the same system that "brought broadcast radio in from the copyright cold in the first half of the 20th century":

Songwriters originally viewed radio exactly the way the music industry today views KaZaA users - as pirates. After trying to sue radio out of existence, the songwriters ultimately got together to form ASCAP (and later BMI and SESAC). Radio stations interested in broadcasting music stepped up, paid a fee, and in return got to play whatever music they liked, using whatever equipment worked best. Today, the performing-rights societies ASCAP and BMI collect money and pay out millions annually to their artists. Even though these collecting societies get a fair bit of criticism, there's no question that the system that has evolved for radio is preferable to one based on trying to sue radio out of existence one broadcaster at a time.

[...]

The same thing could happen today for file-sharing: Copyright holders could get together to offer their music in a "blanket license" - easy-to-pay, all-you-can-eat, music buffet. We could get there without the need for changes to copyright law and with minimal government intervention.

This may not be the best system, but it demonstrates that there are creative solutions to this dilemma, including some that haven't even been dreamed up yet. I think we can develop a made-in-Canada approach that benefits everyone, not just corporations clinging to an outdated business model.

Your Chance to Speak Out

The copyright consultations end on September 13, which means there is not a lot of time left for you to tell the government what you want from new copyright legislation. All you have to do is visit the website and answer a few questions in an email.

For an example submission, check out Michael Geist's submission on speakoutoncopyright.ca (the entire site is an excellent resource). When I send my submission, I'll post it here as well.

Adrian Duyzer is an entrepreneur, business owner, and Associate Editor of Raise the Hammer. He lives in downtown Hamilton with his family. On Twitter: adriandz

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By JWilbur (registered) | Posted August 20, 2009 at 14:02:43

This is a good article with great information and a valid perspective. This is an issue that we should be concerned about however everyone should understand that this Government consultation is going to die again with the coming dissolution of Parliament.

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By arienc (registered) | Posted August 20, 2009 at 15:08:43

Great to gain a better understanding of the history of copyright, how it has evolved from a model based on betterment for society as a whole to today's model, based on protecting the profits of a representative of the creator of works.

Society is better off when creators can earn a living and have some protection from having their works duplicated without authorization. But how much protection is optimal?

Remember that one of the largest corporations in the world - Microsoft, owes much of its success to underground public copying of their MS DOS and Windows operating systems, and later their Office software, so much that large numbers of people could use, become familiar with their software, and make it the standard used in business and government operations. How many potential Microsofts would expanding copyright legislation prevent?

I think a reasonable look at copyright would establish up front as part of the implied contract, when a purchaser pays for a work, whether it be digital or physical, what rights come with that work.

If I own a particular digital file, then format-shifting, place-shifting, making backup copies, re-selling or passing on the data to my heirs must all be considered within my rights as a purchaser. Without those rights, licenced media has much less value than physical and should be priced accordingly.

If, however all I own is a physical product, then I have fair use rights to use that physical product however I see fit, including copying, lending, re-selling, etc.

The problem is, the media companies want rules that give them the best of both worlds...e.g. if physical media breaks or becomes obsolete, you have to pay again, if you want to listen to a song on both an iPod and a CD player, pay again. It's about what's good for the media intermediary...not the creator, not the user and not for society.

As a society, the sharing of information and culture has always been present. With technology this has exploded to the point where one can share more information than they could ever personally experience. Which leaves those people and industries that once profited from controlling the flow of that information needing to adapt. The genie is not going to go back in the bottle, no matter how draconian the law becomes.

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By arienc (registered) | Posted August 20, 2009 at 15:08:57

Great to gain a better understanding of the history of copyright, how it has evolved from a model based on betterment for society as a whole to today's model, based on protecting the profits of a representative of the creator of works.

Society is better off when creators can earn a living and have some protection from having their works duplicated without authorization. But how much protection is optimal?

Remember that one of the largest corporations in the world - Microsoft, owes much of its success to underground public copying of their MS DOS and Windows operating systems, and later their Office software, so much that large numbers of people could use, become familiar with their software, and make it the standard used in business and government operations. How many potential Microsofts would expanding copyright legislation prevent?

I think a reasonable look at copyright would establish up front as part of the implied contract, when a purchaser pays for a work, whether it be digital or physical, what rights come with that work.

If I own a particular digital file, then format-shifting, place-shifting, making backup copies, re-selling or passing on the data to my heirs must all be considered within my rights as a purchaser. Without those rights, licenced media has much less value than physical and should be priced accordingly.

If, however all I own is a physical product, then I have fair use rights to use that physical product however I see fit, including copying, lending, re-selling, etc.

The problem is, the media companies want rules that give them the best of both worlds...e.g. if physical media breaks or becomes obsolete, you have to pay again, if you want to listen to a song on both an iPod and a CD player, pay again. It's about what's good for the media intermediary...not the creator, not the user and not for society.

As a society, the sharing of information and culture has always been present. With technology this has exploded to the point where one can share more information than they could ever personally experience. Which leaves those people and industries that once profited from controlling the flow of that information needing to adapt. The genie is not going to go back in the bottle, no matter how draconian the law becomes.

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By kat (anonymous) | Posted August 20, 2009 at 16:39:41

First off--good article. It does not pander to one side or the other.

I think a greatest misconception concerning downloading and filesharing is that it is assumed that those involved in these activities do not respect the artists or their hard work. In my experience, this is not true. Many people do believe that an artist should get recognition for their work, and they do respect the creative process, and believe the the arts are a job, albeit a very fun and seemingly glamourous job. I also believe, however, that the line of contention is drawn when one considers the salaries of the artists and the record companies, and their anger over the loss of income seems laughable to the ordinary working person, and their demands for harsh treatment makes people more determined to download. Like any other job, artists and record companies must accept that technology is going to create hazards for their chosen careers, and they must be prepared to adapt to that.

Music and media, in some form or another, have always been an important part of any society. In our age, one can easily gain media from many parts of the world, creating more of a global society. That same media can also be used to alert people to the problems that some in that society face. It is extremely important that the citizens of any given society have easy access to their global society, without fear of harsh reprisals from a minority of people, despite the fact that that minority holds the majority of the wealth in the society. Allowing access to media downloading can help ensure a better participation in future society.

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By UrbanRenaissance (registered) | Posted August 21, 2009 at 08:25:06

Excerpt from a June 13th New York Times article about Canadian music piracy. (with a twist ending!)

" "Canadian Pirates" is what the music dealers call publishing houses across the line who are flooding this country, they say, with spurious editions of the latest copy-righted popular songs. They use the mails to reach purchasers, so members of the American Music Publishers' Association assert, and as a result the legitimate music publishing business of the United States has fallen off 50 percent."

What's the twist you ask? Well that article was written June 13, 1897 and is about Canadian piracy of sheet music. Replace "the mails" with BitTorrent and "American Music Publishers' Association" with the RIAA and it starts to sound pretty familiar.

The recording industry survived sheet music piracy in the 1890's, it survived home taping in the 1980's and it survived all the people selling their old vinyl, 8 tracks and cassettes at garage sales and flea markets in between. I have no doubt that it will survive the MP3 as well.

Media companies will adapt their business models to change with the times, granted the times are a changing a hell of a lot faster than they used to, and some companies will fail because of it but eventually a steady state will develop. (Personally if I were a label exec, I'd start setting my company up as more of an events promoter and make the bulk of my money from unpirateable concerts and merchandise and use the music as more of a promotional tool.)

Here's a link to the full article for anyone interested: http://www.bestactever.com/wp-content/up...

And this goes to the full page (this article is 5th from the left): http://page.archive.nytimes.com/1897/06/...

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By synxer (registered) | Posted August 21, 2009 at 14:58:05

Until there is reform in advertising, reform in copyright won't settle well with the majority. The 2 industries need/depend on each other.

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By MartyMel (anonymous) | Posted August 21, 2009 at 22:49:43

A couple of things jumped out at me in reading some of the commentary here.


Kat, I thought your comment about respecting the artists and their hard work was very nice... and then you disappointed me. You refer to the salaries of the artists (I will let the record companies speak for themselves) and seem to indicate that you have a problem with them making so much money. First, artists really don't make salaries, they are paid royalties and fees in a free-market system that is simplicity in itself. If you write or perform something that has no emotional connection with your potential audience, you earn absolutely nothing even though you might spent years creating your work during which time you also earned nothing. Bummer! If in the rare case - and believe me in the whole scheme of things the cases are rare - you create something that moves millions of people and really impacts their lives, you become rich. It's an amazing system. It's the one we all live under in Canada. Ask the conservative government. If you are telling me that you believe that there should be a limit on what everyone in our society is allowed to earn, that's cool too. I just don't think you'd get very many people agreeing with you. Most people get up every morning and go to their job convinced that they are worth more than they are being paid and dream of one day moving up the pay scale ladder as high a their talents can take them. The inference that creators are in some other weird category is silly.

My favourite though was the suggestion by UrbanRenaissance that music should be simply used as a promotional tool. Where do I start? Music has never been so highly valued by all of humanity than it is today. This is the reason that suddenly copyright has become sexy. I mean copyright for god's sake, the simple premise that your ideas and songs and compositions are worth something and, for a limited period of time, you should be able to make a living for yourself, your family and your heirs just like any other person. Okay, so you want to use music as a promotional tool. Okay, we live in a society where everyone is to be treated equally. Talk to the lawyers, who are getting rich off of this copyright debate - lawyers don't get this passionate about things for the most part unless there's some sort of vested interest involved for themselves or their clients. Let's make the suggestion to their sorority/fraternity that instead of paying the $400 to $1000 an hour for their legal opinions, they will have to go out and do speaking engagements, put their name on T-shirts, coffee mugs and the like to make their money. How silly that sounds. Well that's what you are suggesting for music creators.

As in any free market system, if the music is too expensive for everyone, then it will go away. If you want to start an online radio station and your complaint is it's going to cost too much for you to be in business. Then don't be in business. That's the way it works in the rest of society, why is music held to another standard? I actually heard someone from radio, who pay next to nothing for the content that has made them trillions of dollars over the years, say they don't need music. Fine, get it off the station. Boy, when asked to pay, there are so many people who suddenly don't think music has any value and you wonder what the debate is about in the first place. Simply don't bother with music. If it has no value, what do you care? Watch sports on television or a movie... oh, that's right, they want you to pay for that too. Well, then go down to your favourite restaurant... oops, that's not going to be free. Forget the restaurant then. I hear sitting at home in silence and meditating makes the time go by... but it's time so much better spent with your favourite songs on in the background.

And for those who continue to make the inference that music creators are greedy and think of nothing but the money, you need to look at some of the contracts these idiots have signed over the years. Most of them are into the art and not the money man and, as is their nature, also into lending their talents to more charity works than to their own careers in many cases. While this copyright debate goes on, there is a Canadian artist by the name of Liam Titcomb, who is busking from coast-to-coast across Canada this summer for Warchild. He is but one example.

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By Mindful (anonymous) | Posted August 22, 2009 at 08:30:10

How can the work of a Master sculptor who has created a single object over 6 months using learned hand-skills acquired over a period of 30 years EQUAL a digital photographer who shoots 200 pics in an afternoon, uploads & modifies them with a variety of different softwares thru his computer & then sends them to a stock agency by dawn? These two 'artistic' activities are just not EQUAL.

Likewise, how can the work of an academic scholar who spends 2-3 years of solitary world-gathering research EQUAL the writing of software developer who builds on the back of readily available existing code to create a new app?

Alternatively, how can the work of a composer of 2 hour orchestral work that involves performance skills & years of musical education EQUAL a 2 minute 'mesh up' pop song that heavily 'borrows' from OTHER creators and is synthesized thru computer software?

It is high time that the DEFINITION of 'creator' be re-examined.

It has been my suggestion within the Copyright Forum that those who MAKE 'stand-alone' objects that are not 'replicated' by DATA technology ought to have their Copy Rights entrenched & strengthened during their lifetime (including the 50 term after their death). Conversely, digital 'creators' who are DEPENDENT on that actual DATA of someone else's software to manifest either 'photos' and/or 'code' be 're-assigned' a very limited term 'protection' that better reflects the instantaneous replicating properties of data.

Also, 'Fair Use' should MEAN that. FAIR use, not 'exploitive' or 'transformative' that deliberately modifies the efforts of someone else WITHOUT THEIR PERMISSION. If anyone uses someone else's WORK for their own COMMERCIAL use they ought to PAY for it, whether in the 'name' of 'parody' or not. Consider if YOU were the one that someone else USED to PROFIT OFF.

As an example, right now Diane Thorneycroft is 'showing' at the McMicheal Gallery. She's set up plastic dolls and trinkets in front of the works of many of the Group of 7, taken photos of them, and now CLAIMS the 'images' as her own. That's not 'fair use', that's called 'rip off'. Would she DO THIS if any of those artists were LIVING? This isn't 'creative art', it's just sophmoric expropriation.

Note: she got $80G from the Canada Council to do this. Unfortunately, that kind of federal government 'sanction' severely undercuts the GENUINE nature of 'Fair Use'. It emboldens 'pirates' & 'copyists' to TAKE MORE that does NOT 'belong' to them. Be vigilant about this. UNDERSTAND & USE 'fair use' appropriately. Please don't WRECK IT for everyone else so that the Law MUST become more severe and restrictive to PROTECT the works of original 'creators'.

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By Tammany (anonymous) | Posted August 26, 2009 at 12:21:43

For a contemporary Canadian conceptual "artist", Thorneycroft's work is surprisingly clever ... and even refreshingly funny. That being said, from an aesthetically conservative perspective, it is not really art - it is just clever, superficial parody. That doesn't mean that it's a "rip off" per se. While Group of Seven Akward Moments obviously couldn't exist without the eponymous paintings, the exhibition is in itself a separate text (although to call it an independent one would be an illogical stretch); it is not simply a "replica". This means that, regardless of its merits as you see them, it does likely deserve some sort of intellectual property status.

I sympathize with the view that works which are essentially derivative of other existing works do not, from a moral standpoint, deserve the same level of protection at law. Likewise, I find the idea of varying levels of protection for different types of works (e.g. "stand alone" versus "derivative") intriguing, and it is an issue often raised by students of intellectual property law. But I think the general consensus is that such a legal regime would be a nightmare to implement effectively. Trying to set reasonable thresholds to distinguish between derivative from "stand alone" works, and from there to distinguish as between different degrees of derivativeness, etc. would be maddening ... There's really no such thing as a "stand alone" text anyway (anyone remember Northrop Frye?).

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