The May 17′th issue of the Globe and Mail features an article by John Degen titled Who needs copyright, anyway?
He suggests that the panic about copyright from all sides of the debate
is false, and talks about his own transition from being one of those
fighting the CopyFight to someone who is now releasing his book
royalty-free (and DRM-free) on the Internet.
One comment stuck with me in the essay, which is that copyright
critics often comment on his BLOG in what seem like attacks. The reason
why this is the case should be taken as a compliment by John. He gets
the bulk of the commentary not because he is seen as the strongest
“enemy” of those who see copyright differently, but because he is one
of the few people seen to be on a given “side” of the debate that is
willing to have open dialog with the public.
As the executive director of the Professional Writers Association of Canada (PWAC), John will have been part of the dialogue towards forming The Platform Statement from the Creators Copyright Coalition.
Given John has not suggested disagreement with any of the statements,
and has in fact defended the platform on his (and this) BLOG, I think
it is appropriate to continue to ask why he supports these policies.
This platform is in strong contrast with his Globe and Mail essay, and
it might be that John isn’t as supportive of one or the other as we
might presume without asking.
So I will ask. Below is the long list of specific recommendations
from the platform and a quick note as to whether I support or oppose
the recommendation and why. If John could do the same, this would go a
long way to clarifying our respective positions on this topic.
The following is quite long and will unfortunately seem like insider
conversation. I am trying to summarize my position and make this as
small as I can, and to do so will require that I not offer details to a
level that would be useful to someone new to the debates. Please do not
feel shy to hit ‘reply’ and ask questions or offer your own commentary
to any of these proposals.
1. The CCC asks that the Copyright Act be amended to strengthen
and extend moral rights. These are rights that should allow creators to
maintain respect for their work and their name. Moral rights should be
unwaivable, inalienable and unassignable. Additionally, as well as
being transferable only on death either to any person named by will or
to an heir by intestate succession, moral rights should be perpetual.
Russell: I strongly disagree.
Making moral rights unwaivable would reduce clarity in peer
production situations where the group needs to be protected from the
individual participant. More important to this constituency, it would
force media companies to resort to “Work for hire” situations and no
longer hire freelancers in order to obtain any certainty about what can
be done with the creativity they are paying for. Given that it was
protecting the rights of freelancers that this policy was proposed, I
believe it will backfire with nasty consequences.
My recommendation would be very different, which would be to clarify
that the different components of moral rights be able to be waived
independently in narrow situations. For instance, the waiver of the
right of integrity for people who are using the work under the terms of
a Creative Commons license should not suggest that moral rights were
waived in other scenarios. There is currently a lack of clarity on how
the law would be interpreted.
2. The CCC asks the Government of Canada to incorporate the provisions of the WIPO Copyright Treaty (WCT) into Canadian law.
Russell: While there are parts of the WCT that are relatively
harmless, with many of the provisions already part of Canadian law,
there are articles that have considerable uncertainty as to their
meaning. The most commonly lobbied meaning of some of these clauses are
dangerous to the majority of creators and the general public (legal
protection for technical measures, rights management information, and
“making available” are the three most controversial).
Nobody from the CCC community has explained to me what they believe
of these treaties would be beneficial to their members. When I ask I am
given scenarios that are either clearly protected under current
Canadian copyright law (IE: Unauthorized P2P), or which have harmful
consequences that CCC members haven’t adequately analysed.
3. The CCC recommends that the system of exceptions for all forms of ephemeral recordings or transfer of format not be extended.
Russell: Disagree. I believe that time, space and device shifting
should be clearly outside of the regulation of copyright. I believe
this should be the case whether the person using the technology is a
commercial entity or a private citizen. All the creativity in question
is already being paid for (when original copies are purchased, or when
the work is communicated to the public by telecommunications), so this
is a clear case of double or triple dipping. This hinders technological
efficiency, and ephemeral recordings should not require permission or
payment.
4. The CCC asks that Section 3(1) of the Copyright Act be amended
to provide that copyright in a work means “the sole right to produce or
reproduce the work or any substantial part thereof in any material form
whatever, to transfer the work or any substantial part thereof to another medium,
to perform the work or any substantial part thereof in public, or, if
the work is unpublished, to publish the work or any substantial part
thereof …”
Section l3(4) of the Copyright Act should have a corresponding
modification to read : “The owner of the copyright in any work may
assign the right, either wholly or partially, and either generally or
subject to limitations relating to territory, medium transfer,
sector of the market or other limitations relating to the scope of the
assignment, and either for the whole term of the copyright or for other
part thereof, and may grant any interest in the right by licence, but
no assignment or grant is valid unless it is in writing signed by the
owner of the right in respect of which the assignment or grant is made,
or by the owner’s duly authorized agent.”
Russell: This is the CCC’s answer to Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34.
While this is intended to focus on the situation where a painting or
other visual art is transferred to another physical medium, the
proposed change is so broad as to infringe upon technological issues
such as time, space, device and format shifting.
While I can agree with the CCC that the Théberge case relied too
much on a literal Anglo-American meaning of the word “copy” in
copyright (The original meaning was more a synonym for manuscript, and
wasn’t intended to refer to the mechanical act), I believe this change
will create more uncertaintly rather than providing clarity.
Much of the objection related to the author not receiving
compensation for the increased value in a work that would then be
resold. It may be that the better solution surrounds the question of droit de suite. (See Recommendation 9)
5. The CCC recommends that section 29 of the Copyright Act, which
concerns fair dealing, be reformulated in order to specify clearly that
fair dealing for the purpose of private study or research does not
infringe copyright provided that it is not for commercial purposes and
is accompanied by sufficient acknowledgment.
Russell: Disagree for a number of reasons.
There is considerable confusion generally about the meaning of
“commercial purposes”. It often comes down to questions around whether
it is the specific activity that is commercial, or is it the entity
that is commercial. While the copyright act historically only dealt
with activities, all the various institutional exceptions have created
uncertainty. Educational institutions have made this situation worse by
lobbying for royalty-free exceptions on the inputs to the institutions,
but wanting royalty-bearing exclusive rights on the outputs.
This confusion about whether it is the ‘entity’ or the ‘activity’
also leads people to believe that royalty-free uses by non-commercial
entities is “private” use. As soon as something is communicated to the
public by telecommunications, how can it be considered private? An
example is people who inconceivably believe that broadcasting the full
text of a newspaper article in a publicly archived mailing list is
somehow “private study”.
I believe in a very different direction which is to adopt a living
Fair Use regime similar to many of our trading partners. Our current
limited enumerated Fair Dealings regime has already had a hard time
keeping up with the times, and using a general rule would keep Canadian
Copyright more modern than trying to specify details. I also believe
there would be benefit to moving away from focuses on institutions to
focusing on activities, revoking institutional exceptions while we
adopt our living Fair Use regime.
6. The CCC recommends the expansion of the private copying regime
to include all categories of work covered by the Copyright Act.
Russell: Strongly opposed, as discussed numerous times on this BLOG. See: Analyzing when copyright levies are a good idea, and when they are a very bad idea.
7. The CCC asks that the government oblige publicly funded
exhibitors to comply with the exhibition right as provided for in the
Copyright Act, and pay visual and media artists for all uses of their
work.
Russell: Agree.
There is a general feeling by those exhibiting art that doing so is
marketing for the artist. I disagree with presumptions such as this,
and believe that it should be up to the individual artist and not an
exhibitor, the government, or creator groups to impose a business model
on the artist. For some artists their business model will not involve
selling their art at all, but instead charge for exhibition.
8. The CCC asks that paragraph 3(1)(g) of the Copyright Act be
modified to extend the exhibition right to all visual works that are
not in the public domain.
Russell: Disagree.
It is interesting that no explanatory text is offered for this. The
current 3(1)(g) reads, “to present at a public exhibition, for a
purpose other than sale or hire, an artistic work created after June 7,
1988, other than a map, chart or plan”.
Is the opposition to a transitional period (something common in the
act) where only new creative works after 1988 are included, or is the
problem that maps, charts or plans are not included?
There is a growing need in Copyright to not treat all types of works
as the same. Some creativity has value for what they are (art,
entertainment, etc), and other creativity has value for the function
they offer (software, educational and scientific material, and here I
would include maps, charts and plans). These different types of
creativity often have different methods of production, distribution and
funding that work best for them, and have very different types of uses
which are reasonable to consider “Fair Uses”.
9. The CCC asks that the Copyright Act be amended to include a droit de suite
that would be a non-transferable and inalienable right in the original
artwork giving the creator an economic interest in successive re-sales
of the work concerned.
Russell: Sitting on the fence. I won’t be lobbying for this, but generally agree.
This is a hard one for me, and I would need to see the specific
wording to avoid unintended consequences. There is just something
different in my mind around the “First Sale” concept when we are
talking about a mass reproduced item (Where I believe the copyright
holder should have no say in resale, donations or disposal, but still
have a say on communication to the public or distribution of copies),
and situations where there is an original artwork being sold that is
not mass reproduced.
In the case of an original artwork, droit de suite becomes similar to copyright restricting unauthorized/uncompensated copies for works that are mass produced.
10. The CCC asks that in all cases copyright be accorded to
photographers, printmakers and portrait artists, and that all
reproduction of these works require a licence from the creator.
Russell: Partially agree, but mostly disagree.
This is often bundled up with a number of recommendations around
photography where those commissioning the photograph, or those who own
the equipment, are currently considered the first holder of copyright.
I wrote about some of my concerns in The Durga Puja picture that may never again be possible.
The problem with this recommendation is that it makes the rule based
on the exception. The vast majority of photography is amateur in
nature, and the rules should make sense for amateurs first. The
situation where someone asks a stranger to take a photograph on a
camera not owned by the stranger is easily far more common than the odd
situation where a professional freelance photographer (someone not
already under “work for hire”) is not using their own equipment. Having
the owner of the equipment be the first holder of copyright deals with
an important common-place situation.
I would be far more comfortable with these related changes if they
were accompanied by a clarification on the term of copyright to a fixed
number of years. For the vast majority of photographs there is no
possible way to ever determine who the photographer is, but there is
often a way to determine when the photograph was taken (based on how
long you have possessed it, or based on the contents).
I have also been lead to believe that these provisions are primarily
being pushed by photographers involved with collective societies who
are pushing to have the collectives receive money in that majority
situation where the copyright holder in unable to be determined. While
this would be lucrative for these collectives, it is simply bad public
policy.
11. The CCC asks that any future specification in the Copyright
Act respect the general attribution rules that make creators the
primary rights holders of the audiovisual work. Assigning authorship of
the work, in whole or in part, to the producer is contrary to the
spirit of the Act.
Russell: Large collaborative works often have one entity which is
able to act as the “Copyright holder” for the collective. Trying to
make business decisions based on constant negotiation with every
creator (possibly hundreds for a motion picture) would make most of
these projects impractical.
Software also has hundreds of contributors to most works. The
problem is “solved” in the software world in two ways: common public
licensing (Free/Libre and Open Source Software) and “work for hire”
situations where the creator never receives any copyright related
rights at all.
While I understand the motivation of creators to get royalties they
can negotiate rather than residuals which are often imposed (and
limited), I believe the ultimate outcome of this type of policy would
be to reduce (not increase) the rewards to the relevant creators.
Like the moral rights proposal, the likely outcome would be
increased “work for hire” situations where creators retain absolutely
no copyright related rights at all in more situations.
12. The CCC asks that Section 29.5(a) be struck from the
Copyright Act so that playwrights and other authors may regain their
right to receive fair remuneration when their works are performed by
students in educational institutions in the context of pedagogical
activities.
Russell: Fence sitting
I’m not sure what the possible benefit would be for members of the
CCC. It isn’t like Canadian society will magically come out of a fog
and educational funding increased to compensate CCC members. The
realistic outcome of this type of policy would be for students to
perform plays specifically authored and appropriately royalty-free
licensed for educational institutions, or plays already in the public
domain.
It is an unfortunate situation that we need to feel thankful that
plays are part of school at all at this point given the focus of some
on so-called “core subjects” (language, math, sciences, tech). Many
schools already risk loosing subjects like music entirely.
13. The CCC asks that Section 32.2(1)(d) be struck from the
Copyright Act so that authors of literary and dramatic texts may
receive fair remuneration when a substantial part of their work is read
or recited on stage.
Russell: Talk about obscurity. The argument here is about the
subjective difference, if one really exists, between a “reasonable
extract” and a “substantial part”.
32.2(1)(d) currently states that it is not an infringement of
copyright “(d) for any person to read or recite in public a reasonable
extract from a published work;”. Anything that is below a “substantial
part” is not infringement, and anything above a “reasonable extract”
would be.
These types of excessively obscure arguments about the meanings of
words and phrases in the current Copyright Act is why I strongly
support “Clarification and simplification of the act” (The last
recommendation from the Section 92 report), as well as moving from our
current “Fair Dealings” regime to a living “Fair Use” regime.
We need more caselaw before these obscure phrases have any meaning,
but at least with a living Fair Use regime the judges will feel
justified in doing what they do well which is to contemplate and author
formula for making these types of decisions. The status-quo is a mess,
and this specific recommendation does nothing to clarify the situation.
14. The CCC asks the government to:
- recognize in the wording of the Act that ISPs share in the
responsibility for the content of the transmissions that customers
circulate on their networks;
- ensure that this responsibility be conveyed through the
recognition of shared liability for copyright infringement when an ISP
neglects to withdraw illegal content after being advised of its
presence by the copyright holder;
- specify that ISPs must not undertake, directly or
indirectly, any activity that approves, sanctions, allows, favours, or
encourages an activity involving telecommunication to the public or
reproduction of content without appropriate compensation to
creators/copyright owners;
- adopt the “notice and takedown” procedure advocated by the Standing Committee on Canadian Heritage;
- limit the concept of “Internet service provider” to
entities whose commercial activity is the provision of Internet
services; and
- provide conditions for notices, and serious penalties
for notice misuse to avoid any legal intimidation of fair-dealing uses
by rights holders.
Russell: This is a mixed bag of concepts, a tiny bit I agree with but most of which I strongly disagree with.
Much of this recommendation is based on a fundamental
misunderstanding of what an “ISP” is. There is a belief that an ISP is
just like a broadcaster or a telecom company, which is of course what
companies like Bell and Rogers have been promoting. What the CCC
doesn’t seem to realize is that they are playing into the hands of Bell
and Rogers which are companies in the two sectors (phone and cable
companies) which least want the Internet to exist. Not only should we
not be mandating this level of liability, but we should be legally
barring providers of Internet services from the inspection and
manipulation of content suggested. This is a key part of the “Net
Neutrality” debate which is a far greater threat to the members of the
CCC than *ANY* amount of copyright infringement could be.
Given this, I agree with the suggestion that the concept of
“Internet Service Provider” be limited to activities related to the
provision of “Internet service”, with an adequate definition of
“Internet”. As with my objection to institutional exceptions, I believe
that regulations should relate to the specific activity and not the
entity given many companies offer services across a wide number of
businesses types.
The Internet was conceived as an end-to-end network
where the intelligence was at the endpoints and the network itself was
dumb. When a network is configured to be a dumb network, then it is not
reasonable to expect the provider to be aware of or liable for any
activity over that network.
ISP’s are the only entities that have a database to connect Internet
addresses to customers, and thus should be expected to be messengers in
a “Notice and Notice” regime to convey well formed notices on to their
customers.
When the network is configured to be a smart network, with the
provider offering services closer to that of a cable company or
“broadcaster”, then the network provider should be held liable in a way
similar to that of a cable company or other broadcast undertaking.
This would ultimate mean that phone companies like Bell and cable
companies like Rogers would be liable for their not-quite-Internet
services, but proper ISPs operating an end-to-end network would not be
liable. True ISPs would be neutral common carriers of data as well as
legal messengers to their customers.
15. The CCC recommends that further changes to improve the
general licensing system and facilitate collective administration be
applied, and that this system be preferred over one which would have
the effect of maintaining and extending the current system of
exceptions.
Russell: Disagree.
I realize that Collective Societies are part of the CCC, but the
language is itself confusing. If we are talking about extended or
compulsory licensing we are talking about an exception to copyright.
What is being suggested here is that when there is an exception to
copyright it should be a royalty-bearing exception to copyright that
sends money to Collective Societies rather than a royalty-free
exception to copyright.
16. The CCC asks the Government of Canada to adopt a system of
extended collective licensing that covers all works except those
explicitly withdrawn.
Ditto for objection to recommendation 6.
I also find it ironic that they would effectively be creating a
‘registration system’ for those to register the copyright of works that
they wish to retain copyright and not be drawn into this exception to
copyright. While it would be nice to believe that this would be a
willingness on the part of the CCC to adopt a copyright registration
and renewal system, this unfortunately appears to be more of a money
grab by the collective societies from creators and the public.
While I’m all for a registration system, I believe that the default
for copyrighted works not registered after a grace period (say 7 or 10
years) would be for there to be no copyright, not for collective
societies to step in and collect on behalf of authors who don’t
register (and thus couldn’t collect on the royalties anyway, given
registering with a collective is still registering). While lucrative
for the collective societies which represent a narrow set of business
model interests for a subset of creators, this is simply bad public
policy.
17. The CCC asks that:
- performers be accorded a full and complete right of
reproduction, and that this right extend to all performances not in the
public domain, and
- section 17 of the Act be repealed.
Russell: Disagree.
In many ways this is a repeat of what was discussed with recommendation 11.
The confusion here is that most of section 17 refers to a right of
remuneration (AKA: a compulsory collective licensing system) for a
performers performance included within a cinematographic work. I find
this recommendation against collective licensing out of place in a
platform that largely recommends replacing copyright related
requirements for permission (and associated freedoms in diverse
contracts) with extended/compulsory collective licensing.
18. The CCC recommends that:
- the private copying regime and its remuneration system be
extended to include audiovisual works and their constituent
performances;
- the law clearly indicate that the private copying regime can be applied to all technologies that permit private copying; and,
- the current private copying system be maintained until
the possibility of making unauthorized copies is effectively
eradicated, or otherwise monetized.
Russell: I agree with the first recommendation, and detail the reasons why in Analyzing when copyright levies are a good idea, and when they are a very bad idea.
I disagree with the second, as I don’t believe that levies should be
applied to general purpose technology, but to specific media or
specific activities.
Neither component of the last part of this recommendation makes any sense.
The technology to record, edit, and distribute original creativity
is the identical technology used to make/distribute “unauthorized”
copies. The simple fact is that creativity and copyright infringement
are the identical technological acts, and there is no way (outside of
science fiction plots or “magic”) to differentiate in technology.
Whether something is infringement or not is something that will
always be a matter of law, not a legitimate mater of technology. Any
technology provider suggesting otherwise is actually acting dishonestly
and trying to transfer the regulation that currently exists in
copyright law into privately enforced rules of the technology providers
own choosing. Either they are trying to dupe creators into a nasty
power grab, or they are offering snake-oil. Either way, creators need
to reject this dangerous misinformation from these technology providers.
The comment of “otherwise monetized” relates to the economic
discussions I offered in my “Analyzing” article. There are times when
there is a legitimate market failure where the exception to copyright
known as a “compulsory license” (Levies) is the only reasonable answer.
If these specific activities were being “otherwise monetized” there
would be no market failure, and then the suggestion of compulsory
licensing should be rejected for that activity.
This interpretation of this suggestion is, however, in direct
conflict with recommendation 6 which suggests that the private copying
regime be extended to all creative works, regardless of whether there
is a market failure at all (IE: whether the relevant activities are
already “otherwise monetized”).
19. The CCC asks the Government of Canada to incorporate the
provisions of the WIPO Performances and Phonograms Treaty (WPPT) into
Canadian law, and to ensure that the rights accorded performers cover
all performances not in the public domain.
Russell: Ditto commentary from recommendation 2. The WPPT includes
all the controversial and undefined aspects of the WCT, as well as
additional clauses that are specific to these neighbouring rights
holders.
20. The CCC recommends the repeal of section 68.1(1)(a)(i) of the
Copyright Act, which provides for the payment of a sum as low as $100
per year on the first $1.25 million of broadcasters’ annual advertising
revenues.
Russell: Disagree
Radio and television stations had a small yearly fee that they would
pay rather than a percentage on the first $1.25 million of advertising
revenues. There is also a provision, “(b) community systems shall pay
royalties of $100 in respect of each year”. This section was
specifically titled “Special and transitional royalty rates”.
I happen to agree with retaining these types of special royalty
rates. Community systems, small commercial stations, amateur podcasters
and other such entities should have a simple fixed rate which does not
require them to spend more money than they possibly have to negotiate
at the Copyright board, or file a level of paperwork that is not
warranted.
21. The CCC asks the Government of Canada to provide performing
artists with moral rights in all their performances, including existing
performances, and that these be inalienable, unwaivable and
unassignable.
Russell: Ditto for my objection to recommendation 1.
22. The CCC asks that transitional measures be included which
will prohibit the possibility of any grant, waiver or assignment before
the new provisions come into force.
Russell: Disagree.
The CCC are fighting a never-ending battle the way they are headed.
They ask for changes which are fully expected to cause a change to the
marketplace to the detriment of CCC members in the future. They try to
hold onto works which were created before the change as their “reward”
for this round. They then go into negotiations the next time with yet
another proposal which will in the end harm their membership.
Ultimately we need to be making proposals that will benefit both
creators, as well as society as a whole which benefits from this
creativity. This backward-facing ratcheting has been going on for far
too long already.
23. The CCC recommends the regime provided for in Section 32.5 of
the Copyright Act be replaced by a notification system more suitable to
Canada.
Russell: Disagree.
CCC members want activities carried out before we adopted
neighbouring rights as part of our ratification of the Rome Convention
to be fully retroactive. This is related to my objection to
recommendation 8, where there is a need for there to be a transition
period for some major changes to our Copyright Act. Suggesting that a
new right only apply to activities (or even works) created after the
date that the new right is created is reasonable. It may be appropriate
to eradicate this type of transition in a hundred years (after all
legacy copyright has expired, which could be 50 years if performances
and broadcasters retain a fixed 50 year copyright), but given we only
ratified the Rome Convention in 1998 it seems far too soon.
Part of the assumption of this recommendation is that we are talking
only about verbatim copies being made of communicated works. I believe
we need to better consider the situation where an existing
collaborative work involving inputs from many different copyright
holders from a variety of countries (with a variety of changing
copyright regimes) needs to be considered. Should a larger
International project incorporating a component of a Canadian
performance or broadcast no longer be able to be sold because of
changes in Canadian law? I don’t think there is an obvious answer in
every case, and I believe this issue needs appropriate study including
a greater variety of stakeholders than exists within the CCC.
—
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.