My written submission to the 2009 copyright consultation

This afternoon I sent in my submission to the consultation. Today is September 11′th, and Sunday September 13′th is the last day make your voice heard in the 2009 copyright consultation.

There are so many more things I would like to say on copyright, butat 8 pages I felt it was already pretty long. I have given severalpresentations lasting an hour for what amounts to a single clause inthe 1996 WIPO treaties. The format of this consultation doesn’t allowus the ability to discuss at this level of detail, but only verybroadly. While this series of blog posts about the 2009 consultationis primarily motivated to encourage people to participate in theconsultation, it also allowed me to say more things that would havebeen reasonable to include in my written submission.

Since today is September 11′th, I was contemplating writing aboutthe security implications of locks on devices where the owners are notgiven the keys. I believe this issue was summarised back in 2005 by Stewart Baker,the first Assistant Secretary (acting as Under Secretary-equivalent)for Policy at the United States Department of Homeland Security underthe Presidency of George W. Bush. At an event that includedrepresentatives from the Recording Industry Association of America(RIAA) as well as Microsoft, he had the following to say:

“I wanted to raise one point of caution as we go forward, because weare also responsible for maintaining the security of the informationinfrastructure of the United States and making sure peoples’ [and]businesses’ computers are secure. … There’s been a lot of publicityrecently about tactics used in pursuing protection for music and DVDCDs in which questions have been raised about whether the protectionmeasures install hidden files on peoples’ computers that even thesystem administrators can’t find.”

It’s very important to remember that it’s your intellectual property — it’s not your computer.And in the pursuit of protection of intellectual property, it’simportant not to defeat or undermine the security measures that peopleneed to adopt in these days.”

I’m not going to be as extreme as some of those in the copyrightindustries by suggesting that “if you promote or use DRM then theterrorists win”, but I think the critical point is still quite clear :-)

I will instead republish the discussion part of my submission. Itstarted with a preamble about two extremes in the debate that issimilar to what I wrote in this blog on September 6,and I end the submission with a series of bullets on specific reforms Iwould like to see as well as those I feel Canada should reject.

It is the middle where I would like to see discussion in thecomments. Please also feel free to take any part of any of mysubmissions or postings to include in your own submission.

There are two extreme views that were often articulated that can notbe reconciled: that any unauthorized usage (commercial or otherwise) ofa copyrighted work is analogous to “theft” vs. the suggestion copyrightholders shouldn’t need permission or payment (non-commercial orotherwise).

One extreme: claims that Copyright infringement is analogous “theft”

I have written a longer essay called the Jefferson Debate on the problems with the analogy of copyright infringement to “theft”,or of otherwise comparing intangible knowledge with physical/tangibleproperty. It needs to be understood that as a worst case scenario,copyright infringement is an unlawful reduction of the value of acopyright. The comparison to “theft” is invalid as the actual thingthat could be claimed to be “owned”, the copyright, is still held bythe copyright holder. The other is that knowledge, different thantangible goods, has a zero marginal cost to the producer. Infringementdoes not cause direct financial loss, only the potential or theoreticalloss of additional revenue.

The comparison is also harmful to the interests of copyright holdersas it limits their thinking on ways to be compensated for theircreativity. Thinking of infringement as “theft” leads copyright holdersto want to exert more “control” over their creativity. Control andcompensation are not the same thing, and in what I believe is themajority of cases an increase in control over what copyright holdersalready have under Canadian law will reduce compensation.

Some representatives of copyright holders recognise this flawedthinking. In 2007 Jeff Raikes, then President of the Microsoft BusinessDivision , said “If they’re going to pirate somebody, we want it to be us rather than somebody else”.This is a recognition that while being directly compensated for a useof a copyrighted work is ideal, that infringement is better for thecopyright holder than people switching to alternatives.

You will never hear a manufacturer or reseller of a tangible goodsay “If you are going to steal from someone, we want it to be us ratherthan someone else”. The reason is simple: intangible zero-marginal costknowledge is nothing like non-zero marginal cost tangible goods, andcopyright infringement is nothing like “theft”. All our conversationsabout modernizing our copyright law must start from this basicunderstanding.

Invalid Statistics

The comparison to “theft” brings people to incorrectly believe thatany unauthorized usage represents a loss to the specific copyrightholder, leading to statistics that are not helpful for understandingreality or better compensating creators.

One of the most interesting examples also comes from the software sector. The self-called “Canadian Alliance Against Software Theft”,the Canadian branding of the Business Software Alliance, commissions ayearly study from IDC called “The Global Software Piracy Study”. Themethodology they disclose in the report to justify the alleged lossesto their members from software copyright infringement has many seriousflaws.

Their study uses indirect methods to estimate the amount ofcopyright infringement. They take the number of computers which ship ina region and multiply that by their “wishful thinking” demand for theirmember software. They subtract from this the actual shipments of theirsoftware, as well as their “wishful thinking” demand for competingFree/Libre and Open Source Software (FLOSS). The remainder is declared their estimate of infringed software.

Think for a moment about what Jeff Raikes said, putting this in thecontext of this methodology. An organization made up of members thatsee people switching to alternatives as a greater threat than copyrightinfringement is going to over-estimate the demand for their ownsoftware, and under-estimate the demand for those alternatives. IDC iswell known for under-estimating the demand for FLOSS in themarketplace, often using pre-installed software as a primary measure.FLOSS has a royalty price of zero, and can be legally shared andinstalled on multiple computers royalty-free. This has meant that mostFLOSS is installed after the purchase of the hardware, rather thanpre-installed.

The BSA/IDC study then goes further. They start with the invalidpresumption that every infringing copy was a lost sale for theirmembers. As Jeff Raikes suggested, there is a third option of peopleswitching to alternatives (legal or otherwise), as well as people notusing that type of software at all. People taking the option ofinfringing BSA member software is actually more harmful to theinterests of those offering the alternatives. It is hard for legallyfree FLOSS to compete with illegally free BSA member software, and allthis illegally free software usage closes the various commercialsupport markets that these software alternatives depend on. While Ibelieve there are commercial losses caused by people using illegallyfree software, it is quite likely these losses are felt more by competitors than the specific copyright holders.

The BSA/IDC study goes further into secondary markets, such asretail. The problem with claiming that using illegally free softwarehurts retail markets is that another trend, switching from the sale ofshrink-wrap software to legal software downloads and software as aservice, is nearly equivalent. The trend in the productivity softwaremarketplace is away from selling boxes in retail outlets, and retailersthat were partly dependent on this revenue will need to switch to otherrevenue sources. This downward trend for retailers cannot be attributedto software copyright infringement. The same can be said of the retailsales taxes and other alleged losses in secondary markets.

One of the most interesting (comical?) claims the BSA/IDC studymakes is at the country level, confusing a correlation with a causalrelationship. They note that in more financially wealthy countries thatsoftware copyright infringement is lower than in poorer countries. Theythen make the amusing suggestion that it is the lower infringement thatmakes the country more wealthy, rather than the far more likelysuggestion that those with less money are more likely to infringecopyright. In countries where software licenses cost many months (orsometimes years) wages, the only options are infringement, usinglegally free alternatives, or doing without the software – paying theroyalty fees requested by BSA members is simply not possible for whatis easily the majority of the worlds population.

Similarly amusing studies with similar methodologies come from othercopyright sectors. The self-called International Intellectual PropertyAlliance (IIPA) is made up of seven member associations: theAssociation of American Publishers (AAP), the Business SoftwareAlliance (BSA), the Entertainment Software Association (ESA), theIndependent Film & Television Alliance (IFTA), the Motion PictureAssociation of America (MPAA), the National Music Publishers’Association (NMPA) and the Recording Industry Association of America(RIAA). Similar studies to the BSA are pooled by the IIPA to makeclaims about how these copyright sectors are affected by copyrightinfringement. These questionable studies then form the basis of other“studies”, such as the one that the Conference Board of Canada withdrewafter it was disclosed that it was plagiarized from the IIPA.

No matter which specific copyright sector study you look closely atyou will see similar claims: that in markets being transformed by newtechnology that any observable negative impacts are attributed tocopyright infringement rather than legal competition, and that anyinfringement represents a lost sale to the copyright holder.

Other extreme: No compensation for creators

I strongly believe creators should be compensated for theircreativity. Not all of this compensation comes in the form of money ascan be seen in the various sharing based creative communities, andthese other forms of compensation that motivate creators must also beprotected. If we don’t protect the moral and material interests ofcreators, as articulated in article 27 of the UN’s Universal Declaration of Human Rights , we as a society will be poorer.

I have heard the sentiment that creators don’t need to becompensated expressed a number of times over the last near-decade Ihave been active in this area of policy. It comes in the form of abroad suggestion that copyright should be abolished, as well as theform of a copyright exemption for the specific activities that theindividual is carrying out (unauthorized P2P, educational institutions,etc). While some copyright holders abuse the term “thieves” to discusspeople who have this belief, I do not agree with their suggestion thatthere is some sort of moral decay being demonstrated.

We need to ask ourselves how Canada can have many grocery storeswith “self serve” checkouts where possibly poor and starving people canbe trusted with goods that costs the store money to replace, while morewealthy Canadians with access to computers supposedly can’t be trustedwith some music, movies, television or software.

Why are we seeing less respect for the fundamentals of copyright?

At the Montreal town hall, photographer André Cornellier told partof the story. At a copyright conference, likely one of the CopyCamp’sthat we both attended, he was talking to someone who thought all usesof creative works should be free. André then asked him what he would doif some of his own work had was taken by some big corporation who madea large profit without offering him anything. This young person saidthey would sue, at which point André asked what law he would use to suegiven this person had already asked that any uses of copyrighted worksbe allowed without permission or payment.

I say that this is only part of the story, because I believe thisstory is a symptom and not the cause. We have created an environmentwhere a vast majority of citizens think of themselves as passiveconsumers of culture rather than active participants. This environmentis perpetuated by the same people who then complain when passiveconsumers are unable to put themselves into the shoes of creators inorder to protect our common interests.

Mr Cornellier’s own copyright proposals are an example of theproblem. He appears upset that professional photographers aren’tgranted first copyright in some extremely obscure situations such ascommissioned photography (similar to “work for hire” in many ways,where employers rather than creators hold copyright) as well asphotography when the photographer is using someone else’s equipment. Hesuggests that his proposals will offer professional photographers the“same copyright” as everyone else.

Photography is an exceptional area for a number of reasons. Unlikeaudio recordings where the performances of subjects have their owncopyright, the subjects of photographs are not granted any copyrightrelated rights (note: privacy and publicity rights are separatenon-copyright related rights that should be protected). While sound andvideo recordings are quickly catching up, photography is an activitythat is dominated by amateur and automated (surveillance, etc) ratherthan professional or artistic activities. Mr. Cornellier’s proposalsseek to treat photography as if is were only or even primarily aprofessional activity, which is entirely inappropriate. Theseinappropriate proposals make that vast majority of photographers feelas if they were outsiders, which will inevitably be harmful to Mr.Cornellier’s own interests.

I believe it is critical for the future of Canadian creativity thatwe have Copyright law which enables active participation in culture,not passive consumption. This will mean putting a priority onclarification and simplification of copyright law such that it can berespected and seen as respectable by average citizens.

Most of the revisions to the Canadian copyright act since we createdour own separate from British law in 1921 have been done in the contextwhere the technology involved was expensive, and the activities whichcopyright regulated were commercial in nature. Modern technology haschanged this, and we appear to have two very different directions wecan take.


  • Adopt the direction articulated in 1995 as part of the USA’s National Information Infrastructure (NII) Task force. The idea was to lock down communications technologies such that it would be large corporations, rather than private citizens/creators, that were ultimately in control of this technology. The NII implementation bill was policy laundered though WIPO and a watered down version became the 1996 WIPO Internet treaties.
  • Clarify copyright to handle commercial and non-commercial/personal activities as separate, with the parts that apply to non-commercial activity being clear enough to be understandable by the people that it regulates. Protect the rights of technology owners to be in control of their own technology, rejecting business models which seek to infringe on these property rights.

I have been a strong opponent of the NII policy direction, which waspassed as the USA’s Digital Millennium Copyright Act (DMCA) in 1998. Ibelieve this will ultimately be disastrous to the interests of Canadiancreators. We need to take the opposite approach and try to transfersome of the control currently exerted by large content industryintermediaries and put that control back into the hands of creators (asit relates to their creativity) and average citizens (as it relates tothe technology which they own). The more citizens consider themselvesparticipants in culture, and the more the law allows and encouragesthem to be participants, the more they will respect the moral andmaterial rights of fellow cultural participants. The suggestion thatfellow creators should not be compensated for their creativity willfade into a memory as we turn our minds to finding better and betterways to achieve both full participation and fair compensation.

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 Digital Copyright Canada.

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