Copyright Consultation
I recently drafted and sent in a letter to the Canadian Copyright Consultation (and cc’d it to my MP). I drew heavily on Michael Geist’s Speak Out on Copyright website and his Short Answer. (Because I agree with him, not because I am lazy or intellectually bankrupt. *wink*)
Please send your own comments in – you have another 4 weeks or so!
First of all, I want to thank you for asking for this consultation. It is a big step forward from accepting input only from industry lobbyists and ending up with something like the misguided C-61. My hope is that you will actually listen to the many voices of the public who have made submissions and table a balanced bill in the end.
In response to the five key questions you raise, I will address them in the three themes I read from them: why copyright matters, which particular reforms I feel would best foster innovation, creativity, and competition, and how to ensure that these reforms stay relevant.
Why does copyright matter?
Copyright, in the digital age, touches all of us in multiple ways. For myself, like most of us, I am a prolific consumer of culture – I listen to music, watch movies and shorts, and read blogs and news sites. And like many of us, especially the younger generation, I am also a creator – I blog about life, medicine, and culture as I see it. I write poetry and short stories. I author presentations to educate medical learners and my peers. I am also a bit of a technology afficionado, buying up the latest electronic gadgets from cell phones to media centres for my TV.
Copyright touches on all of these activities in profound ways, some obvious, and some less so. On the positive side, it lets creators profit from their works, or more amateur creators like myself post our products on the public Internet with some assurance that others cannot simply steal them and put their name to it or profit from it without license. Increasingly, however, existing copyright law is becoming more and more of a hindrance to the activities outlined above. Legally, I cannot transfer a DVD or Blu-Ray movie I purchased to a portable device, or a backup medium to protect it from my children’s curious and inadvertently destructive hands. I cannot record a television program to a DVR for later viewing. Music, I can transfer, but only thanks to a narrow exception that is confusing (does it authorize p2p downloading for private use or not?) – and why should music be treated differently than video, or software, or news?
More insidiously, Canadian law blocks creators I admire from producing the documentary visions they see, thanks to the copyright lock-down of our culture. It blocks them from re-imagining classical tales, or juxtaposing pop culture to create parodies that amuse and enlighten. And when I create presentations, the law’s complexity makes me always uncertain about what I can legally show or distribute to my students, and have to worry about my ISP taking the information down without warning, or worse yet, defending against a copyright infringement suit and fearing thousands in damages.
Furthermore, reforms pushed for by certain groups would restrict things even further. Anti-circumvention measures threaten to eliminate even the limited fair dealing we enjoy in Canada; it threatens to eliminate my ability to tinker with gadgets I purchase and own (for example, unlocking a cellular phone) if my tinkering even threatens to create innovations that might dam some corporate income stream.
Which reforms to implement?
The ultimate purpose of copyright is to encourage the production and dissemination of creative works. It is a testament to the potential of digital technology that despite the threats and limitations of copyright, we are living in an age where there is so much creativity available to the world, and unlike the aberration of the last century, every citizen can easily become a creator and participant in art and culture. Canada needs to preserve and expand this participatory culture, and resist the push by last century’s incumbents to suppress the technology and return to a “professionally” produced consumer culture.
I believe C-61 headed the wrong way in this on a number of levels. C-61 would have made the majority of the population into copyright criminals, and hobbled modern technology and innovation. As other commentators in this consultation have stated, Canada should focus less on ‘copy’ right, since everything we do in the digital space requires ‘copies’ and more on ‘distribution’ rights, and to do this in a way that is fair and just (i.e. no action in unproven cases).
How do I feel the above could be achieved?
- Expanded Fair Dealing – to include activities already done and thought to be appropriate, such as time, format and device-shifting of content, as well as parody and satire. These examples should be demonstrative instead of exhaustive in the legislation to allow flexibility in the future.
- Limited anti-circumvention legislation – ideally, this should not even be implemented, as many have pointed out. They do little to protect the copyright interests of authors and distributors, but are very good at limiting innovation and competition in the marketplace. They are called for by WIPO, but those treaties are already antiquated and we have no legal obligation to ratify. However, if Canada does wish to ratify, then it must be done in a way to link anti-circumvention penalties to actual infringement, and the tools to circumvent must be legal, to avoid the embarrassing catch-22 of the DMCA (Circumvention is legal in certain cases but the tools to do so are illegal no matter what, so for example the disabled cannot cirumvent to read text aloud).
- Reasonable Penalties for Infringement – minimum statutory damages for non-commercial infringement need to be abolished. Why is the penalty for shoplifting a CD (which creates losses for the storeowner, distributor, etc) much, much less than for illegally copying an album online? Additionally, Canada should not implement a ‘three (unproven) strikes and no Internet’ regime. The Internet is essential today for public participation; unproven allegations of infringement carrying any penalty defies ‘innocent until proven guilty’; cutting one off from an essential tool furthermore is cruel and unusual.
- Notice and notice – notice and takedown as in the US has been used as a tool of censorship, and flies in the face of the rights of all people to be presumed innocent until proven guilty. An allegation of copyright infringement should be passed onto the user by the ISPs, and it is up to the user to respond and be liable for their actions.
- Protect the Public Domain – The creative works of today are derived from what came before. Unfortunately, more and more countries are increasing the length of copyright. This creates the ‘orphan works’ problem and really limits the ability of creators to re-imagine classics. Canada should not increase the length of copyright protection. It should also abolish Crown Copyright and put all publicly funded and created works in the public domain for citizens to use freely.
How to remain relevant?
Finally, how can Copyright reforms remain relevant? Primarily by not including technology-specific language in the bill. C-61 was obsolete before it was even drafted, referring to technologies such as the VCR that have been obsolete for years. The legislation should spell out principles (who can distribute works and how, commercial vs. non-commercial use) and not pick specific technologies (DRM, which is falling out of favour, or network PVRs).
As mentioned previously, reforms such as fair dealing need to be flexible – examples written in legislation need to be descriptive, not exhaustive. Any bill should be drafted with the copyright balance in mind – creators’ and distributor’s rights need to be addressed, but user’s rights, and the rights of creators to re-use, and re-imagine others’ material need to be protected also. This was highlighted by the Supreme Court of Canada in 2002.
On a more pragmatic basis, any law written must, in a democratic nation, be thought of as just and proper by the population. Otherwise, the law will be ignored (unless harsh and unreasonable punishments are created – is that a road we wish to go down?).
Over 150 years ago, in the US, Thomas Babington Macaulay gave some speeches in the House of Commons against extending the length of copyright (which at that time was a mere 14 years). One of his arguments was that people in general had respect for authors and publishers; and reviled the ‘pirate publishers’ who stole the author’s livelihood. He warned that with copyright extension, this opinion would shift, and the people would grow to consider the avaricious ‘legal’ publishers as the pirates, and would work against them, benefiting no one – not the authors, not the publishers, and not the ‘pirates’. In the light of public opinion today, it is hard to argue with him.
To promote innovation and the creation of more works, and allow compensation for artists, the answer is not to impose yet more restrictive laws, and further copyright extensions. Canada needs to create a balanced law that acknowledges as legal the fair dealing its citizens are already engaging in, sets clear guidelines for what is and is not an infringement on creator’s rights, and propose just and fair punishments for proven violations.
Sincerely,
DancingSamurai
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