faircopyright.ca

I’m keynoting a forum in Halifax on Tuesday night with a talk about why the fair copyright and digital rights movements are important for girls and grandmas as much as computer geeks and DJs. Also on the program are experts speaking about privacy, net neutrality, DRM, and the digital divide. This is a grassroots response to the Ministers’ invitation-only forum during the copyright consultation, and it promises to be lively!

Screeching in at the last minute, here’s what I sent to Ottawa:

I am pleased to have the opportunity to follow up on the comments I made at the Gatineau Round Table on 29 July 2009.

On that occasion I gave each of the ministers a copy of my book, written with Sam Trosow, Canadian Copyright: A Citizen’s Guide (Between the Lines, 2007). In many ways I see that book as an answer to the five questions you have posed: I hope you find it useful. The last chapter in particular focuses on policy and legislative imperatives. But here I offer a few more direct answers to your questions.

How do Canada’s copyright laws affect you? How should existing laws be modernized?

Canada’s copyright laws affect me profoundly. As a teacher of literature and culture — of “works” in the terms of the Act — everything I teach is either under copyright or in the public domain. My students pay for access to it via their tuition, at the bookstore, at the copy shop, or via university licenses. As a scholar and writer, I also depend on copyright. Together with some government support, it is what enables my publishers to be able to afford to publish my books. Copyright gives me fair dealing rights so I can quote from and critique the work of others. It gives me moral rights to prevent misattribution. As a musician, I play and listen to music from both the public domain and living composers. As a parent, I watch my children devour copyrighted and public domain stories and images, and learn to create their own. And finally, as a citizen more generally, I benefit from copyright insofar as it may incentivize creativity and facilitate the next generation of expression and innovation, and I am limited by it insofar as it may impede my ability to engage with the culture and public discourse around me.

Nonetheless, I often think that we exaggerate the role of copyright within the creative process. A programmer doesn’t sweat over lines of code because of copyright. A drummer doesn’t play a Keith Moon solo 137 times because of copyright. Copyright may lie on the horizon as an underpinning for hopes of fame and fortune, but in the first instance, creators create because they want to. Creators need the freedom to tinker, dismantle, reconstruct, study, and play without the law intruding. Imitation and appropriation is part of that process. As the philosopher and linguist Mikhail Bakhtin said, “the word in language is half someone else’s.” Fear of copyright infringement, or imposition of unreasonable permission costs or paperwork, should not be getting in the way of thinkers, doers, students, librarians, or teachers. That’s why users’ rights are so important. Copyright is most importantly a way of ordering the market stage of the creative cycle. It is essential in that role — but if it intrudes too far into the stages of inception and reception, it will fail or backfire. The Supreme Court said as much in the Théberge case (2002): “once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it. Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”
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OK, I’m not so up-to-date on my Walmart news, but the courts haven’t ruled on this one yet, and as Nathalie Des Rosiers explains, it’s a good (or rather bad) example of abuse of trademark and copyright to limit Canadians’ freedom of speech. Walmart is seeking an injunction to quash the website walmartworkerscanada.ca, apparently because the use of the word (is it a word?) Walmart is trademark infringement. They want to stop all parody as well: union organizers are “not to use the expression “Get Respect. Live Better,” or any other expression which constitutes a play on Wal-Mart’s slogan and trademark SAVE MONEY. LIVE BETTER, in any form or format in any media.” We’ll have to watch the court decision on this: the situation is reminiscent of the Michelin v. CAW case in 1996, where the CAW was prevented from using the Michelin Man in union organizing posters. In the wake of the Supreme Court case in CCH v. LSUC (2004), Michelin is not now generally considered good law, but lower courts still seem prone to follow it (see my post of 27 December 2008 on the still pending Vancouver Sun parody case). Des Rosier argues that “the federal government must review its legislation and clearly protect parody, satire and political speech,” noting that “the review of the Copyright Act announced for this fall represents such an occasion.” Indeed, we may not be able to depend on the courts on this issue, and it’s another example that shows the need for a more open-ended understanding of fair dealing.

Almost at the end of the Gatineau copyright consultation in July there was a strange moment when Graham Henderson of the Canadian Recording Industry Association seemed to reveal he’d been deaf to everything around him for the previous few hours or years. Addressing the effects of implementing the WIPO treaties, he said, “We heard somebody say that it would usher in a police state. We’ve heard people say that iPods will be seized at the border. We’ve heard people say that innovation will collapse in this country.” But as the transcripts show, users’ rights advocates at the Gatineau round table were resoundingly moderate and careful (see Jeremy DeBeer’s comments for an admirable example). Apparently Henderson hadn’t been able to hear anything for the previous two hours, not to mention the previous several years, in which we’ve seen many measured critiques of wanton copyright expansionism in the United States and other countries. Seven years ago, our own Supreme Court started talking about the necessity of users’ rights to innovation. But Henderson had his own soundtrack running.

The recording industry needs to invent hysterical users’ rights advocates in order to normalize its own extreme positions on DRM, licensing, ISP liability, and so on. At the Gatineau round table, Henderson’s response to his hallucinated hysteria was to suggest that we not only implement WIPO but go “way beyond” it. Who’s extreme here?

Now, following the Toronto round table, we see an even more bizarre episode of the music industry missing out on the world around it. It seems the head of the Canadian branch of the American Federation of Musicians has just become aware of the NDP policy on copyright — a policy that since the election of musician Charlie Angus to Parliament five years ago has emphasized the rights of musicians and listeners rather than the demands of the music industry. The AFM’s Alan Willaert said:

I am shocked that both Chow and Charlie Angus are allowed to openly depart from party policy and directive, obviously just to shamelessly buy votes among young people and academics. We intend on taking the NDP to task over this, and will accept nothing less than a retraction of Ms Chow’s statements and an apology.

Shocked indeed. Where has this guy been? What kind of a Union man is he to swallow the industry line on copyright? Isn’t he worried about permanent hearing loss if he keeps that Celine cranked up so loud? Louder, it seems, than those dangerous “young people,” who take their earbuds out from time to time.

As Chair of the Copyright Committee of the Canadian Federation for the Humanities and Social Sciences, I drafted a Call for Action for practitioners in these areas to contribute to the government copyright consultation. That might mean you! The deadline is impending: 13 September. For commentary on the document, see here.

At times, I thought the copyright roundtable in Gatineau yesterday was a bit dull. Then I would stop myself and think how remarkable it was that calls for amplification of fair dealing could seem dull! Imagine: most of the people around the table were calling for this! That’s a remarkable sea change in itself, whether or not the government heeds it. Thinking back to earlier consultations, I also appreciated the presence of both ministers, Industry and Canadian Heritage, in the room together. That is what it will take behind the scenes for legislation to emerge, and it was nice to see the joint venture, however fraught or delicate, publicly manifested.

One of the darker moments in my view was when Roanie Levy of Access Copyright argued for “smart exceptions” that would evaporate if a license were available. It will be very important for those concerned about users’ rights to convince the government of the principle of users’ rights: cheap fair dealing is not fair dealing. Fair dealing is a deep part of copyright DNA and the established practice of creative communities. It enables freedom of expression, research, and innovation. It is not for sale. Furthermore, licensing everything that walks will put Canada at a competitive disadvantage to its trading partners. Licensing can certainly be useful, but only in conjunction with fair dealing, never as its replacement.

Here’s what I said in my allotted three minutes:

I’m an English professor at Queen’s University, and the coauthor, with Sam Trosow, of Canadian Copyright: A Citizen’s Guide. I have run the blog faircopyright.ca since 2003. I serve as the Chair of the Copyright Committee of the Canadian Federation for the Humanities and Social Sciences.

One of my main research projects at the moment is a study of the daily newspaper in New York City in the 1830s and 1840s. This was a revolutionary time in the business. In 1833, Benjamin Day started selling his New York Sun for a penny, and the older papers, selling for six cents, cried foul. Before long, many of them folded, others changed, and the penny paper became the norm, making news accessible to pretty much everybody. Strikingly, papers of all sorts in this period feature far more borrowed material than original material. None of the articles were copyrighted; no money changed hands; nobody complained. In fact postal regulations and pricing were designed to facilitate newspaper exchanges and thereby enable the information dissemination necessary for a rapidly developing economy and democracy; editors wrote openly about waiting with their scissors for the next mails. In other words, the multimillion dollar American newspaper industry depended, in its origins, on lack of copyright regulation—it was subtended instead by particular postal laws, and by a system of norms and practices amongst editors about when and how cutting and pasting was OK. I should say that British politicians, publishers, and authors were not so happy about US copyright ways, but the US chose not to heed their protests until the very end of the nineteenth century, always keeping its own national interests clearly in view.

I take you to the 1830s US not because the situation is identical to our own. But it does show that copyright is one of many tools available to make cultural industries work. In times of change, increased copyright regulation may or may not be the best way to go. Bowing to foreign pressures may or may not be the best way to go.

Turning to today’s possibilities for copyright reform in Canada, I contend that any changes to the law must be made in the spirit of balance between owners’ rights and users’ rights, and in the context of other policy options for supporting innovation. Reforms, if any, need to address our specifically Canadian cultural and economic contexts. And they must be drafted in a way that ordinary people can understand and respect.

I don’t have time to pursue all the dimensions of achieving such goals, so I will focus on fair dealing. Together, Sections 3 (Owners’ Rights) and 29 (Fair Dealing) make copyright make sense. Fair dealing is also the mechanism that makes copyright constitutional: otherwise it would impede freedom of expression. We can use it to call people to account, in the category of criticism, or assess the validity or value of others’ work, in the category of review. We can use it to facilitate the flow of information, in the news reporting category. And we can use it to ground our own innovation and allow others to validate our claims, in the categories of research and private study. We often need to quote others, because hearsay will not do. Thus fair dealing lets creators do their work and strengthens their owners’ rights by increasing the legitimacy of copyright as a whole. And it is a modest provision, not a free ride: the Supreme Court has laid out several tests for fairness; there’s nothing automatic or wild-eyed about it.

Some of the basics I am looking for in copyright reform:
1. Add the words “such as” before the list of fair dealing categories so that, for example, artists can make better use of it;
2. Incorporate in some version the fair dealing tests laid out in CCH;
3. Never allow DRM to override fair dealing or access to the public domain;
4. Avoid picky exceptions for specific uses, instead letting fair dealing do the work.

Exceptions in Bill C-61 for digital interlibrary loan and educational internet use were perversely constraining ways of letting people do what the law and established practice already permits. The provisions were, frankly, worse than useless because they promoted the view that all rights belong to owners unless otherwise stated. That’s not how the Act works: it enumerates specific rights in Section 3. Once again, it’s always a policy decision what to do with rights enabled or created by new technologies.

In closing: copyright may seem like a cost-effective way for the government to support innovation and the arts. You don’t have to spend money on it, it might appear. Let the market do it. License it all. However, this path only rewards creativity with immediate commercial value, and it increases the cost of education and libraries. Our trade partners are not doing this. Shouldn’t we think twice? Is this good fiscal policy? Here too, a strong conception of fair dealing is key.

I’m very pleased to see the government going ahead with copyright consultations. I like the several levels of consultation, from casual conversations on five topics, to more formal submission of briefs from organizations and experts, to roundtables, to town halls. I see this as a great opportunity to ‘level the playing field’ between the big lobbyists and the range of Canadians with concerns about this area of law and policy. Only up since yesterday, the site already bears a number of thoughtful comments.

A few concerns and hopes:

•Corporate copyright owners & their organizations may well bring up ideas they didn’t see in C-61. They may want term extension, for example, or Notice & Takedown. It’ll be important not to relax: none of those expansionist ideas have truly been laid to rest.

•All the same, let’s not devote all our energy to shooting down industry interests. Let’s talk about what we need from copyright, in an affirmative way. I hope that the idea of flexible fair dealing is promoted often (that is, taking the CCH case to heart, and adding a “such as” clause to section 29). And there are lots of opportunities here for people to give examples. Librarians, writers, doc filmmakers, and teachers, particularly, need to tell it like it is. If you don’t know a lot about the law, explain what you think would be a manageable and fair way of doing things. Why is your work important, and what would enable it? Copyright does, after all, purport to be an incentive.

•I hope that those arguing for consumers’ or users’ rights take creators’ rights seriously, and don’t project an excessive sense of entitlement.

•Beyond DRM and fair dealing, the two big issues on many of our minds (one badly handled and the other ignored by C-61), let’s not forget about other issues such as orphan works, sanctions for misuse of copyright, ISP liability, moral rights, modification of statutory damages, and crown copyright.

I had thought of other things to do with my summer, but still I look forward to these discussions! Canada is so lucky we didn’t pass term extension or DRM protection in 1998 as the US did: we can be smarter now.

Oh, and if you read this and are thinking, what’s she talking about? What’s Notice & Takedown? What’s fair dealing? What’s DRM? — send me an email and I’ll direct you to some resources. I promise, all this can be made to make sense!!

The Open Access journal Culture Machine has published my review of the NFB doc RiP: A Remix Manifesto. Read why I have serious reservations!

Concordia students Amit Kehar, Brian Tassilo, and Nick von Roretz made this short documentary for which they asked me, amongst others, to imagine where we would have been had C-61 passed. I think it’s a nice job!

Fascinating story at the Columbia Journalism Review on Carl Malamud, a muckraker trying to convince Barack Obama to give him the historied position of Public Printer. If he were head of the Government Printing Office, he would stream video of committee hearings, digitize the entire holdings of the National Archives and all government-made photographs and films, and otherwise bring dispersal of government materials and resources into the digital age. He’s been at this for some time on his own dime, prying databases, regulations, and court rulings out of governments across the US on the grounds that they are public domain and ought to come back to those who paid for them.

Malamud’s active campaign for the job is partly of interest to Canadians because its logic wouldn’t apply in Canada: our government-generated materials are not public domain but are owned by the Crown. The Queen’s Printer here has made various moves towards new publication strategies, but the titles “Queen’s Printer” and “Public Printer” do signal fundamentally different masters, don’t they? The Queen’s Printer can share information and resources if it suits the Queen. Now isn’t that… quaint.