[N.B. This essay was written on 30 August 2009, in response to viewing the entire Toronto town hall meeting as part of this summer's copyright consultation that solicited views from across the country, ostensibly to feed into forthcoming copyright law.

A video of the town hall proceedings is available on YouTube in 15 parts, starting here.]

I’ve spent far too much time this evening watching the Canadian copyright consultation that took place in Toronto earlier in August. Two hours of a stacked town hall (mainly industry folks — I think there were three Warner Music and at least two Sony people that got up to speak) and what did we hear? A lot of well-spoken comments, many that were essentially the same, and some poorly spoken ones too, from most sides in the debate.

What points stood out most loudly to me? (note that these are all paraphrased)

# “Artists deserve to get paid.”
# “Our [music company] budgets are getting smaller, we now have to turn down acts, my friends are losing their jobs.”
# “Artists make on average 20% less than the average Canadian.”
# “We [as content/culture industry employees] are taxpayers, we reinvest in the Canadian economy, our families are supported by copyright.”
# “The law is so bad in Canada that my friends have had to leave the country to have a chance at becoming successful artists.”

Or, if I may summarize with a bit of tongue in my cheek: “My business model is failing, and i don’t deserve it; bail me out.”

As for prescriptions to solve the problems noted above, the following also stood out:

# “Expanded collective licensing”
# “Levies on all blank media, including iPods, Hard Drives, etc”
# “Levies on bandwidth/internet connections”

And so it dawned on me that this debate isn’t about TPMs or DRM. It’s not about term extensions or implementing WIPO, or even about expanding fair dealing. No, as the final speaker of the evening (unfortunately very ineloquently) put it, this debate is about entitlement, or feelings thereof.

While the complaints and descriptions certainly outweighed the prescriptions mentioned above, this made one thing clear to me, and that this has been, and perhaps essentially is at its core, a debate about how (ostensibly Canadian) culture should be promoted and paid for in Canada. It seems to me that the pro-strong-reform (and to a lesser extent the pro-levy) camp believes that the current business model, where consumers are pricetakers of whatever content makes it out of major music production companies, is the one that should remain and be entrenched in the new law. Particularly galling to me is the idea that collective licensing and levies are an acceptable solution to the consumer copying problem, which penalizes non-copying uses of the media in question (e.g. computer data on CDs) and socializes the culture industry, disabling the market from choosing winners and losers through online transactions.

I’m still fascinated and a little awe-struck by so many of the presenters who felt that Canadians owed it to them to buy CDs and other cultural products so that they get paid a fair wage. I can’t be sure, but it seems the implicit argument behind this goes something like this (I have no misconceptions that this is actually a sound deductive argument):

1) Cultural work is good for all Canadians
2) Cultural works cost money to pay the author to produce
THEREFORE, 3) Canadians should pay the authors of cultural works
4) I am a producer of cultural works
THEREFORE, 5) I deserve to get paid by Canadians

What seems to be missing in all of this is, given that we operate in a relatively free market, is the presence or absence of consumer demand. If I write (what in my mind is) my magnum opus, but the Canadian public disagrees for whatever reason (whether it be distaste, poor marketing, ignorance, or rough economic times) do I still deserve to get paid? Again, the presumption of consumer demand is a hallmark of old business models. The Ministry of Canadian Heritage (or anyone else) is not holding a gun to the heads of would-be artists or others in the industry and forcing them to remain working as poor, exploited artists because they must make this sacrifice for the good of all Canadians — that is their choice (more on the benefits to all Canadians of artists making the choice to remain artists in a moment).

I do not argue that the production of cultural work is good for Canadians — indeed, this is supposed to be the core of the copyright bargain: Canadians gives a creator limited monopoly rights to their work in exchange for producing the work in the first place. I will admit that this does overlook a couple of realities: 1) that there are (arguably decreasing) costs of creating and disseminating your cultural work, and that 2) the mass market is probably a poor judge of what is a good non-pop-cultural work. That artists decide to take the risk of being artists and letting the market judge their economic success and reputation instead of opting for safer alternatives suggests that their motivation at least partially intrinsic, and copyright makes hope of future remuneration at least a dim glow at the end of the tunnel. But what if we wanted to make it easier? Or what of those other competent creators that choose not to create because other jobs are more stable? This is where Canadians could decide to fund the creation of culture, but in a more transparent way than entrenching or socializing current business models would provide.

How could you further facilitate or incentivize the creation of culture? The government could simply tax or take some of it’s existing tax revenue and use it to fund the creation of culture, through organizations similar to the ones that exist today (Canadian Television Fund, etc.). [Some kind of loan-with-forgiveness system might also work?] Funding could be allocated competitively, but via a different set of criteria than immediate market success. This mechanism wouldn’t always pick future winners, but it would promise a supply of cultural works different, and perhaps more complete, that if picked by the “fickle” market on its own. By disentangling the issue of copyright law from the issue of paying for the creation of culture works in Canada, the Canadian government could engage first in the debate of how we want our copyright laws to incentivize creation and protect creator rights, and second, whether we as a country feel it beneficial to fund the creation of culture (and how much we should fund). While I’m not a fan of big government, this is a more appealing situation to me than entrenching business models and allowing those running businesses under said models to be the arbiters of what becomes popular and is remembered as “Canadian” culture.

I thought the best presentation of the meeting was made by Blaise Alleyne. You can see what he said on YouTube here. He speaks about this expectation of payment and incentives, crown copyright, copyright term extension, extended fair dealing, and taking a technology-neutral approach. He sums it up by saying “Copyright shouldn’t provide a specific business model. It should provide tools that creators can use to incentivize them to create. But if the public can’t use that creation, there’s no point in copyrighting it in the first place.” This was a very refreshing and honest perspective, especially in contrast to extreme, disingenuous, and self-serving views like that of (second-last) speaker 143.

It looks as though the EU, ten years later, may be headed towards legislation similar to the United States’ “Sonny Bono” Copyright Term Extension Act.

The apparent impetus in the EU is that the the back catalogue of (particularly British artists’) recordings from the 50s and 60s will soon enter the public domain after its 50-year copyright expires, which leads to statements like this from Roger Daltry of The Who: “Thousands of musicians have no pensions and rely on royalties to support themselves.”

(Let’s not get started on the average lifestyle/spending habits of pop/rock stars.)

This same line is being used by a commissioner for trade in the EU who has been fielding interviews. Apparently copyright now is supposed to guarantee you income for the rest of your life? Not good, especially from the civil servants.

The end result of new legislation could be harmonization with the extended terms in the U.S. and other jurisdictions: life of the author + 70 years, or 95 years from publication (or 120 years from creation, whichever is less) for corporate-authored works.

It looks like this debate has already played out in the UK, according to Lessig, but luckily they made the right decision. The issue will now be taken up by the EU when the French assume its presidency in the summer. Should be interesting to see if anything comes of this — hopefully not perpetual copyright.

In Addition: Ars Technica has some more editorialized coverage, including discussion of the fact that musicians implicitly agreed to this 50 year coverage back when they went into the studio, and seemed to think that it was worth their while at the time.

At issue is the lack of implementation of stricter and more modern (read US-like) copyright laws (including DMCA-like implementation of the WIPO treaties, a “notice-and-takedown” ISP liability safe harbour provision, “clarification” of the private copying exception — which makes downloading technically legal in Canada, and increased statutory penalties for copyright infringers), as well as stronger enforcement efforts domestically and at the border.

All of the doom and gloom in this report indeed makes it seem like Canada was lumped in with Russia and China for good reason — we should start hoisting the skull and bones instead.

Ah, but take this report with quite a bit of salt.

Nancy Segal from Foreign Affair and International Trade had this to say in a parliamentary committee meeting:

In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It’s driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

I also recognize that the U.S. industry likes to compare anyone they have a problem with, concerning their IPR regime, to China and the other big violators, but we’re not on the same scale. This is not the same thing. If you aren’t on the watch list in some way, shape, or form, you may not be of importance. Most countries with significant commercial dealings are on the watch list.

A very thorough analysis of the IIPA report and its relation to Canada was blogged by William Patry. It’s a must read to gain a more balanced understanding of the the IIPA’s watchlist process, as well as where we actually stand from a copyright lawyer’s perspective (not a trade lobby group’s perspective). Indeed, Patry (to be clear, an American copyright lawyer) has this to say:

…[P]iracy (even as IIPA defines it), has existed for millennia, and the tools used to combat it have been traditional copyright rights and remedies. On this (and many other scores), Canada’s law is exemplary. I have not seen any proof that the U.S. TPM laws have led to a decrease in piracy within the U.S….

With all this salt required, you might want to make a big margarita… It would certainly make reading the IIPA’s report more pleasant.

A direct link will be added when available; in the mean time,
Check out the article on the The Manitoban Online, or read on:

FIGHT FOR YOUR (COPY)RIGHT | Protecting Canadians right to media content

Did you know that it’s illegal to rip your own (legally purchased) CDs to your IPod in Canada? That’s right—it’s copyright infringement. Welcome to the sometimes-strange and complicated world of Canadian copyright law.

Copyright is set to become more complicated still if certain industries and lobby groups succeed in influencing the federal government’s copyright reform bill that will likely be tabled shortly after Parliament resumes on Jan. 28. All signs point to a copyright act that will cater to the demands of large content owners: music, movie, and publishing companies otherwise known collectively as “Big Content,” while criminalizing common activities and allowing consumer interests to be trampled in the name of anti-piracy.

It is expected that the big changes to the Copyright Act will be related to technologies that Big Content believes are the major cause of piracy and lost revenues. From photocopiers and VCRs to iPods and BitTorrent, technology has made it easier to use content, exercise fair dealing rights (“fair use” is the American equivalent), and to infringe copyright. To guard against infringement (and fair dealing), Big Content companies have taken a two-pronged approach: adding digital locks (digital rights management, or DRM) to their content and lobbying for laws to make it illegal to circumvent these locks.

These digital locks are objectionable in their own right because they allow Big Content to dictate terms of use for digital content that would be unreasonable for their real-world counterparts. For example, can you imagine not being able to sell or lend a book or CD after buying it? However, when coupled with legislation that outlaws the circumvention of these locks for any purpose, a very troublesome situation arises. Suddenly, even if a user is able to bypass the locks protecting content and intends to for legitimate purposes only, they are legally barred from doing so. It doesn’t matter if they wish to exercise their fair-dealing rights on protected content or if they need to access the locked content they purchased after the holder of the “keys” has gone out of business—all of these activities become illegal.

Such Draconian legislation would certainly upset the balance of rights that is central to copyright law in Canada. While some creators and most Big Content companies and lobby groups believe that protection of their economic interests is the sole purpose of copyright, others (including the Canadian Supreme Court) view copyright as a balance of rights: creators should have the right to compensation for creating new content (a public good), but the public should have the right to reasonably use this content that becomes part of our collective culture. Any new copyright law must maintain this balance.

We can learn about the effects of unbalanced copyright law by observing the nearly 10 years of experience of the United States with their Digital Millennium Copyright Act (DMCA). Introduced to support content industries in the face of new technology, the DMCA has been ineffective in curbing piracy, yet has restricted user rights, allowed abuse by monopolistic content owners, and enabled ridiculous legal judgments against individuals downloading a CD’s worth of songs—all features that we should be loath to import into Canada’s copyright act. Instead, we must call for fair copyright law that addresses copyright problems while maintaining the balance between owner and user rights.

And what about that illegal music ripped from your CDs to your IPod? You probably won’t ever be arrested because of it, but it highlights the other side of fair copyright: the need for copyright changes to legalize clearly reasonable activity. There are a number of areas in the current Copyright Act that should be adjusted to provide exceptions for reasonable activity in our increasingly digital culture. Again, we must call upon our government to address these areas to ensure that copyright law is fair and accommodating of common consumer activities.

So, what can you do to ensure that Canada adopts fair and balanced copyright law? You need to let your government know that fair copyright is important to you. Start by joining Fair Copyright for Canada (Faircopyrightforcanada.ca), a group of citizens from all areas of society that oppose restrictive copyright law and support fair copyright for all Canadians. This national group and its local chapters are leading the charge against the anticipated copyright changes. They can help you take action to let the government know about the need for fair copyright, including writing, e-mailing, and meeting with your member of parliament, as well as encouraging others to learn more and speak out against unbalanced copyright law.

Canadians cannot remain idle and ignore copyright as another inconsequential law being tinkered with by bureaucrats in Ottawa. Copyright plays a fundamental role in how we interact with the elements that make up our collective culture, such as music, artwork, photographs, video, film, and written works. We must stand up for fair copyright law that maintains a balance between owner and user rights. Otherwise, we risk allowing Big Content to dictate how, and at what cost, we may access the content that defines our culture.

Steve Woodrow is the Fair Copyright for Canada Winnipeg Chapter organizer and an engineering graduate.

Join the group if you want to get involved in taking action locally.

Michael Tyas created this great video of us explaining why we are concerned about copyright in Canada:

Friday, January 4, 2008

Dear Mr. Woodrow:

As your Member of Parliament, I want to thank you for your correspondence sharing your concerns about the forthcoming copyright reform bill highlighted in the 2007 Speech from the Throne.

Our government knows it must quickly move forward with the reform of copyright legislation. Copyright reform is complex and the government wants to strike the right balance. Industry Canada and Canadian Heritage have taken into account the concerns of interested parties and we want to ensure that every aspect of reforming the legislation will be properly analyzed.

We have looked closely at measures taken by other countries and will determine if they are suitable for Canada. A bill will be introduced when the Minister is satisfied it strikes the right balance between creators and consumer.

I would be pleased to meet with you to discuss your concerns shortly after the New Year. Please feel free to contact my Administrative Assistant, Debbie at 984-6322, and she will set up a meeting.

Sincerely,

Joy Smith, MP
Kildonan-St. Paul
Manitoba Caucus Chair

It sounded rather familiar, and a bit of Googling turned up this letter from Gary Schellenberger, another CPC MP.

So, while I’m happy I did get a letter back, I’m disappointed (but not surprised) that the sentences were taken from a CPC-approved form letter, and that it contains the same gobbledygook that Jim Prentice has been throwing around. For example:

“Our government knows it must quickly move forward with the reform of copyright legislation.”
This one is my favorite. It doesn’t make any sense. The only parties I can think of that are demanding quick action are the CRIA, etc. and their American counterparts…?

“Industry Canada and Canadian Heritage have taken into account the concerns of interested parties and we want to ensure that every aspect of reforming the legislation will be properly analyzed.”
I haven’t done any original research on this, but from what I’ve read from Michael Geist and others, the last time consultation occurred was in the early 2000s and was later used in preparation for the failed Bill C-60 from our last Liberal government. That was back before the iTunes Music Store, and back before all of the major music companies started dropping DRM.

“We have looked closely at measures taken by other countries and will determine if they are suitable for Canada.”
Heaven help us if they’ve looked to our southern neighbors (or their ambassador) or any other country that has implemented the WIPO treaties and has a life+70 copyright term. Maybe they could look to Israel? It might have a few problems, but it’s certainly better than the DMCA.

I hope to take my MP up on her offer of a meeting. The only problem is that I don’t think we’ll have anything constructive to talk about until the bill is tabled. Any thoughts?

## ADDRESS ##
## REMOVED ##

7 December 2007

Ms. Joy Smith, M.P.
House of Commons
Parliament Buildings
Ottawa, ON K1A 0A6

Dear Ms. Smith:

My name is Stephen Woodrow. I have lived in your riding for 23 years, and hold a B.Sc. in Computer Engineering from the University of Manitoba. I am writing to you let you know that I am deeply concerned about the forthcoming copyright reform bill announced in the most recent throne speech. I have two primary concerns regarding the forthcoming bill and the approach taken in bringing it before the House of Commons.

1. Openness and Consultation With Stakeholders and All Canadians
While the prospect of a copyright reform bill was announced in the throne speech, the government has since been uncommunicative about the contents of this bill. Despite growing public concern regarding the bill, the Minister of Industry has declined to discuss the issue with the CBC and other media outlets. I find this behavior unacceptable from a minister introducing legislation in the name of all Canadians.

Also, it is not apparent that any effort has been made to consult with the various stakeholders affected by copyright legislation, or to allow all Canadians to voice their opinion on this matter, as has typically occurred leading up to previous Canadian copyright reform proposals. This approach makes me very uneasy about the openness of our government to its citizens, as well as how accurately the forthcoming bill will reflect the interests and needs of all Canadians.

2. Ratification of World Intellectual Property Organization (WIPO) treaties
The Minister of Heritage has stated that they are working to bring Canadian copyright policy into conformance with WIPO treaties, and the forthcoming bill will presumably be the instrument for conformance. This concerns me for a number of reasons. First, the WIPO treaties proposed for ratification contain a number of provisions that would prevent Canadians from exercising their fair dealing rights in legitimate circumstances. Such provisions would have a chilling effect on research and criticism, stifle competition and innovation, and criminalize the behavior of ordinary, productive, and otherwise law-abiding Canadians. For these reasons alone, I believe these treaties should not be ratified.

Further, the United States has nearly ten years of experience in implementing the WIPO treaties through their Digital Millennium Copyright Act (DMCA). This experience has shown that the DMCA restricts end-users rights and allows for abuse of DMCA provisions by monopolistic content owners, again to the detriment of user rights. The Supreme Court of Canada affirmed in a 2004 ruling that the balance of owners’ and users’ interests is an essential part of the Copyright Act. By ratifying the WIPO treaties through this forthcoming bill, the essential balance of owners’ and users’ rights would be severely upset.

Thank you for taking the time to read my letter. I sincerely hope that you and the other members of our government take action to increase the openness of the copyright reform process, consult all Canadians on this matter, and reject legislation that upsets Canada’s balanced approach to copyright. The freedom of Canadians to equitably create and enjoy the content that comprises our nation’s unique and cherished culture depends on it.

Would you be willing to meet with me and other members of your riding to discuss this further?

Sincerely,

Stephen Woodrow

Please consider writing your MP (paper is better than email if you can — it’s harder to ignore). This is the most important thing you can do.

Mailing Tips:

• Mail your letter for free by sending it to Parliament. Be sure to include “M.P.” after their name on the envelope.
• Use this tool to figure out who your MP is and their parliamentary address.
• For what it’s worth, be sure to put your return address on the envelope — I’ve heard this can affect the priority of handling your mail based on whether or not you appear to be from the MP’s riding.

Once you’ve done this, consider another one of the 30 things you can do, as suggested by Michael Geist.

And stay informed. Join the facebook group or read Geist’s website for all the latest.

Edited to add additional note about return addresses in “Mailing Tips” above.

From all that I’ve read about the execution of the DMCA, I hope that our own government takes a more reasoned and balanced approach in modifying and extending our existing copyright laws. Between the reduction of practical fair use “rights”, the abuse of takedown notices, and litigation for (in my opinion) excessive damages (successfully obtaining judgment for hundreds of thousands of dollars for downloading a album or two worth of songs), the DMCA has some serious problems and upsets the balance between the rights of content producers and content consumers.

As fairly recently affirmed in Canada (and very recently discussed here), the rights provided by the “fair dealing” exception in the Copyright Act are part of maintaining this balance of rights between producers and consumers. As Chief Justice McLachlin noted, “[i]n order to maintain the proper balance between the rights of a copyright owner and users’ interests, [the fair dealing exception] must not be interpreted restrictively.” So let us hope that this concept of balance is in our policymakers’ and MPs’ minds as they work on this bill. And let us be prepared to stand up for our fair dealing rights if such balance is not achieved in the proposed bill. Otherwise, we might end up with our own DMCA-esque law that caters to content providers without upholding the rights of consumers to use content in a fair and reasonable fashion.