Recognizing a policy problem doesn’t suggest agreement on solutions

A few hours after posting my article on the content industry vs content delivery providers I was sent a link to an article titled “Raging Grannies demonstrate for fair contracts for freelancers” by its author, journalist Shannon Lee Mannion. The contracts that the big media companies are asking freelance journalists to sign are getting worse and worse all the time. I feel really bad about this situation, and I do anything I can in my policy work to help improve the situation for authors — especially freelance creators given I am one myself with my self-employed business.

I am left with mixed feelings, however, because I believe that the organizations that should be helping authors — organizations like the Professional Writers Association of Canada (PWAC), The Writers Union, and other members of the Creators Copyright Coalition and DAMIC — have been promoting policies which will have the effect of protecting or worsening the market conditions that enabled these bad contracts in the first place.

This issue is one of those examples I brought up in yesterday’s article where a solution to an edge case ends up making the situation worse. Authors publishing through traditional media have been forced to sign “take it or leave it” contracts which force them to waive their moral rights to attribution and integrity. The “solution” to this problem included in the Platform Statement from the Creators Copyright Coalition (CCC) is to suggest that “Moral rights should be inalienable, unwaivable, and unassignable”. In other words, to solve this specific situation they want to revoke the rights of all authors from being able to make their own choices.

The obvious answer for the media companies will be to no longer hire freelancers, and instead only use the works of employees since copyright names the employer the first owner of copyright. This will essentially wipe out the option for authors to be freelancers, an important employment option that many of us use and believe should be protected (and promoted!).

If CCC/DAMIC then try to lobby for changes to the Canadian copyright act to name the human author as the first holder of copyright (something I happen to agree with for different reasons), the only way this will be accepted by parliament (who will be lobbied by the far more politically and economically powerful employers) is if employment contracts can include an automatic transfer of copyright and waiving of moral rights. In the end, the more CCC/DAMIC lobby in this direction, the worse the situation will get.

Methods of production such as Peer Production work on a very different premise than the narrow subset of creator options that CCC is concerned with. Rather than focusing solely on the interests of an individual author, you focus on protecting the rights of the peers as a whole. Since this needs to include protecting peers from any specific individual author, the moral right of integrity must be able to be waived so that a single peer could not hold an entire collectively created work hostage. In fact, the whole concept of the right of integrity does not make sense in a peer production context.

There are a large number of articles on the Creators Copyright Coalition website that are of the same style. Any method of production, distribution, funding or licensing that is different than their own preferences is questioned and challenged, pitting the CCC against the interests of a growing number of authors who are trying to leverage these alternative methods.

On the CCC front page you can see questioning of the use of Creative Commons licensed music by the CBC Spark show, an attempt to inspire fear, uncertainty and doubt (FUD) about the use of Creative Commons licensed music. In this case this licensing model has been explained during the show as being the only music licensing model that allows them to publish as a podcast the identical show as went over-air. Depending on the specific license chosen, composers and performers get paid for the over-air use just like any other music (through the collectives), and the license specifically indicates that the non-commercial distribution over the Internet (the podcast) is legally royalty-free.

The Creators Copyright Coalition “solution” to any issue like this is compulsory collective licensing for all types of works under the copyright act, imposing royalty fees negotiated at the Copyright Board on everyone. As discussed in the article yesterday, for creativity that lends itself towards peer production and peer distribution this wipes out the viability of this method of production, distribution and funding. Given this conflict with the interests of creators has been discussed many times with members of the CCC, I am often left wondering if wiping out competitors is part of the goal of their platform rather than only an unintended consequence.

As you go through a list of the platform statements you will find their views on ISP liability (they believe that ISPs should be mandated to be gatekeepers, as well as being levied) and their views on Digital Rights Management (they believe hardware manufacturers should be liable for infringing abuses of hardware by their owners, as well as being levied). Overall you will find policy which will have the ultimate effect of reducing competition and increasing media concentration through government mandated increased control by communications networks and communications hardware manufacturers. If the direction proposed in the CCC platform is followed by the government it will make the media concentration problem far worse than anything that has ever been possible in the past.

I believe the only way to solve the contracting problems that freelancers are having is to have a competitive marketplace that allows those freelancers to simply switch to a publisher with better contracting, allowing that publisher to have better articles and thus grow greater audiences. Given this I believe that any policy that increases concentration or reduces competition can only make contracts for authors worse. It is frustrating to have to always note that the organizations making this situation worse includes the associations and unions who claim to be representing the interests of authors.

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