Celebrate Copyright day by recognizing greatest threats

April 23'rd is WorldBook and Copyright Day, organized by UNESCO and celebratedsince 1995. This is a good day to become aware of the threats toCopyright so that we can better protect Copyright from them.

I believe, as many others do,that Copyright has its justifications in the United Nations UniversalDeclaration of Human Rights, specifically the balancebetween the relevant interests articulated in Article 27.

  1. Everyone has the right freelyto participate in the cultural life of the community, to enjoy thearts and to share in scientific advancement and its benefits.
  2. Everyone has the right to theprotection of the moral and material interests resulting from anyscientific, literary or artistic production of which he is theauthor.

The threats to Copyright comefrom many fronts. While some lobbiests claim that copyrightinfringement by private citizens is the greatest threat, I willsuggest that many of the proposed “solutions” to reducecopyright infringement are far greater threats. Copyright and otherexclusive rights have two parts, and not only do these proposalsattack the ability of citizens to participate in (not just consume)culture, they also threaten the moral and material interests ofactual authors. There are a few example issues worth highlighting.

DigitalRestrictions/Rights Management

(See also: Copyright:locks, levies or lawsuits? Part1: locks)

By far the greatest threat tocopyright comes in the form of DRM which seeks not to protectcopyright, but to replace it. The type of DRM I speak of is a set oftwo locks: one lock on content which seeks to make it only accessibleby “authorized” brands of access devices, and a lock ondevices such that it is the manufacturer and not the owner thatcontrols the device. Rather than copyright law seeking to mirrorthe balance articulated in article 27, DRM uses technologicalmeasures to enforce one-sided contracts that remove any balance. Atthe same time the locks on content threaten economic rights by beinganti-competitive, and the locks on devices effectively revoketangible property rights through a back-door.

While proponents oflegalization and legal protection of DRM claim it will increase therevenues of creators, objective analysis suggests exactly theopposite.

The lock on the content makesthe content less valuable to the customer, and thus reduces sales aswell as putting downward pricing pressure. There are many times whenI am very interested in purchasing content, but it is restrictionssuch as these are what stand in the way.

This restriction is becomingless and less of an issue over time as more copyright holders areavoiding locking their content with these types of anti-competitivelocks. In the case of music I can subscribe to eMusic (DRM-freemusic and audio books, 2'nd largest online music store) and access awide variety of music, just not the music controlled by the majorlabels as they have opted to not accept my money.

The non-owner locks on thedevices, like any other attack on tangible property rights, will havemany implications. These devices are “owned” not only byaudiences of digital content, but also creators, so it is both of therelevant constituencies in copyright that are negatively affected bynon-owner locks. The very ability of creators to create in the firstplace, leave alone be able to reach audiences and get paid, isthreatened.

While there is no credibleevidence to suggest DRM increases revenues to creators, there isconsiderable evidence to suggest that it reduces revenues.


This is not so much a directthreat to Copyright itself, but a threat to the material interests ofauthors. This threat may easily have a greater impact than copyrightinfringement.

In the past our communicationstechnology was limited, and a distribution model was set up thatinvolved shipping (with actual seafaring ships) physical items whichhad the copyrighted works stored on them (books, etc). In this erait made sense to have different publishers that were dedicated topublishing works in specific countries, and to need to build thesecountry-specific relationships.

We now live in the age of theInternet where geography is (or should be) less relevant, and thesehistorical and excessively complex arrangements are costing creatorsmoney.

I recently downloaded theAudio Book for “The Year of the Flood” by Margaret Atwoodfrom eMusic.com (DRM-free music and audio-book store) and loved it. Iwanted to then download “Oryx and Crake” which had someoverlapping characters, only to be told that it was unavailable inCanada.

Yes, some of a Canadian authors worksavailable in the USA but not in Canada. Atwood and/or her publisherunderstood the value of having the audio-books be technology brandneutral (AKA: DRM-free, available on eMusic), but not the value ofactually accepting money from Canadians. This is also not all booksby this author, but some.

Imposingcopyright collectives in inappropriate avenues

See also: Analyzingwhen copyright levies are a good idea, and when they are a very badidea.

One topic that is hot inOttawa these days is the modification of the Private Copying regimefor recorded audio (Section 80 through 88 of the Canadian Copyrightact) to clearly apply to devices which can store recorded audio andnot only traditional audio recording media (such as blank CDs andtapes).

While I am not a fan of thisregime I consider it to be a far better choice than legalization andlegal protection of non-owner locks on devices or anti-competitivelocks on content. If forced to choose between locks and levies, Iwill easily advocate for levies.

That said, I believe thisinappropriate use of levies takes money out of the pockets of therelevant copyright holders.

The ideal situation is ifcopyright holders were willing to offer their works for sale in amanner that was considered valuable to their customers. I suspectthat if analyzed we would find that the vast majority of worksinfringed online are not reasonably available to pay for (DRM,regional restrictions, or just not offered at all).

When levies are applied as anattempt to get paid for bad behavior, it backfires. The more visiblethe Private Copying levy becomes, the more people will cease payingfor music in traditional ways as they will feel that they havealready paid for that music. The larger the levy becomes, the morepeople will try to circumvent the levy by importing from othercountries of finding storage mechanisms that are not levied. Ratherthan getting composers and musicians paid, we simply end up in acat-and-mouse game where music fans (and others) get increasinglyupset at the music industry.

Yesterday I saw a tweetfrom Heritage Minister James Moore that said, ” Musicindustry rejects NDP/Bloc iPod tax at Heritage Committee”. This suggests that the Minister doesn't know the difference betweenthe music industry and the recording industry. Without understandingthis difference, major mistakes will be made.

The music industry a centuryago was made up of composers, and performers were considered trainedmonkeys no more relevant to the music industry than music fans aretoday. Then along came a group of people considered “pirates”,what we now call the recording industry, that allowed audio to berecorded or otherwise automatically produced (player pianos/etc). Together with performers the makers of sound recordings lobbied tonot only have their recording activities legalized, but to becomecopyright holders under the Copyright Act. This is now called”neighbouring rights”.

Since the equipment to recordand distribute recordings was expensive, the recording industrybecame a specialized banking industry for composers/performers, andquickly came to dominate the music industry. Now that the equipmentis cheap we are in critical need to refocus the industry such thatcomposers and performers have their rightful control over the musicindustry, and “makers” (record labels) become the hiredhelp.

The recording industry doesn'tlike the private copying regime for obvious reasons: It putscomposers and neighbouring rights holders on equal footing, where therecord labels only get a cut of the neighboring rights component. This is very different than other revenue systems where the labelstake the largest cut, leaving little for composers and performers. While I don't think the current revenue distribution model used bythe CPCC is fair (radio airplay and soundscan sales inadequateproxies for popularity), it is still more reasonable than the sharesof revenue when the labels are allowed to be in charge.

The proposal from theSongwriters Association of Canada, and endorsed by many performers,is to have a voluntary levy that ISP customers pay that go towardsmusic. I believe that unlike having a mandatory levy on devices, avoluntary levy attached to the Internet would not only providerevenue to musicians but would also not cause people to stoppurchasing music through traditional retail channels. I wouldconsider this a win-win situation, and even though I get my musicfrom eMusic I would quite likely pay towards the ISP levy anyway. It would also be a no-brainier to be paid for any parent who wantedto stay out of the courts for any music related youthfulindiscretions of their children.

I really believe what ishappening with the current outdated structure of the music industryis a much greater influence on the revenue of the primary creators(composers and performers) than anything remotely relating tocopyright infringement. It should also not be surprising that Ibelieve that the solutions being promoted by the recording industry(locks and lawsuits against other intermediaries) will greatly harmthe moral and material interests of these primary creators.

Russell McOrmond is a self employed consultant,policy coordinator for CLUE:Canada's Association for Free/Libre and Open Source Software,co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for DigitalCopyright Canada.

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