Celebrate Copyright day by recognizing greatest threats

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

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

The threats to Copyright come from many fronts. While some lobbiests claim that copyright infringement by private citizens is the greatest threat, I will suggest that many of the proposed "solutions" to reduce copyright infringement are far greater threats. Copyright and other exclusive rights have two parts, and not only do these proposals attack the ability of citizens to participate in (not just consume) culture, they also threaten the moral and material interests of actual authors. There are a few example issues worth highlighting.

Digital Restrictions/Rights Management

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

By far the greatest threat to copyright comes in the form of DRM which seeks not to protect copyright, but to replace it. The type of DRM I speak of is a set of two locks: one lock on content which seeks to make it only accessible by "authorized" brands of access devices, and a lock on devices such that it is the manufacturer and not the owner that controls the device. Rather than copyright law seeking to mirror the balance articulated in article 27, DRM uses technological measures to enforce one-sided contracts that remove any balance. At the same time the locks on content threaten economic rights by being anti-competitive, and the locks on devices effectively revoke tangible property rights through a back-door.

While proponents of legalization and legal protection of DRM claim it will increase the revenues of creators, objective analysis suggests exactly the opposite.

The lock on the content makes the content less valuable to the customer, and thus reduces sales as well as putting downward pricing pressure. There are many times when I am very interested in purchasing content, but it is restrictions such as these are what stand in the way.

This restriction is becoming less and less of an issue over time as more copyright holders are avoiding locking their content with these types of anti-competitive locks. In the case of music I can subscribe to eMusic (DRM-free music and audio books, 2'nd largest online music store) and access a wide variety of music, just not the music controlled by the major labels as they have opted to not accept my money.

The non-owner locks on the devices, like any other attack on tangible property rights, will have many implications. These devices are "owned" not only by audiences of digital content, but also creators, so it is both of the relevant constituencies in copyright that are negatively affected by non-owner locks. The very ability of creators to create in the first place, leave alone be able to reach audiences and get paid, is threatened.

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

Geographic restrictions

This is not so much a direct threat to Copyright itself, but a threat to the material interests of authors. This threat may easily have a greater impact than copyright infringement.

In the past our communications technology was limited, and a distribution model was set up that involved shipping (with actual seafaring ships) physical items which had the copyrighted works stored on them (books, etc). In this era it made sense to have different publishers that were dedicated to publishing works in specific countries, and to need to build these country-specific relationships.

We now live in the age of the Internet where geography is (or should be) less relevant, and these historical and excessively complex arrangements are costing creators money.

I recently downloaded the Audio Book for "The Year of the Flood" by Margaret Atwood from eMusic.com (DRM-free music and audio-book store) and loved it. I wanted to then download "Oryx and Crake" which had some overlapping characters, only to be told that it was unavailable in Canada.

Yes, some of a Canadian authors works available in the USA but not in Canada. Atwood and/or her publisher understood the value of having the audio-books be technology brand neutral (AKA: DRM-free, available on eMusic), but not the value of actually accepting money from Canadians. This is also not all books by this author, but some.

Imposing copyright collectives in inappropriate avenues

See also: Analyzing when copyright levies are a good idea, and when they are a very bad idea.

One topic that is hot in Ottawa these days is the modification of the Private Copying regime for recorded audio (Section 80 through 88 of the Canadian Copyright act) to clearly apply to devices which can store recorded audio and not only traditional audio recording media (such as blank CDs and tapes).

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

That said, I believe this inappropriate use of levies takes money out of the pockets of the relevant copyright holders.

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

When levies are applied as an attempt to get paid for bad behavior, it backfires. The more visible the Private Copying levy becomes, the more people will cease paying for music in traditional ways as they will feel that they have already paid for that music. The larger the levy becomes, the more people will try to circumvent the levy by importing from other countries of finding storage mechanisms that are not levied. Rather than getting composers and musicians paid, we simply end up in a cat-and-mouse game where music fans (and others) get increasingly upset at the music industry.

Yesterday I saw a tweet from Heritage Minister James Moore that said, " Music industry rejects NDP/Bloc iPod tax at Heritage Committee". This suggests that the Minister doesn't know the difference between the music industry and the recording industry. Without understanding this difference, major mistakes will be made.

The music industry a century ago was made up of composers, and performers were considered trained monkeys no more relevant to the music industry than music fans are today. Then along came a group of people considered "pirates", what we now call the recording industry, that allowed audio to be recorded or otherwise automatically produced (player pianos/etc). Together with performers the makers of sound recordings lobbied to not only have their recording activities legalized, but to become copyright holders under the Copyright Act. This is now called "neighbouring rights".

Since the equipment to record and distribute recordings was expensive, the recording industry became a specialized banking industry for composers/performers, and quickly came to dominate the music industry. Now that the equipment is cheap we are in critical need to refocus the industry such that composers and performers have their rightful control over the music industry, and "makers" (record labels) become the hired help.

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

The proposal from the Songwriters Association of Canada, and endorsed by many performers, is to have a voluntary levy that ISP customers pay that go towards music. I believe that unlike having a mandatory levy on devices, a voluntary levy attached to the Internet would not only provide revenue to musicians but would also not cause people to stop purchasing music through traditional retail channels. I would consider this a win-win situation, and even though I get my music from 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 wanted to stay out of the courts for any music related youthful indiscretions of their children.

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

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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.