On October 1’st I was invited by the Waterloo Public Interest Research Group (WPIRG) and the Waterloo Students for the Information Commons (WSIC) to the University of Waterloo to give a talk on Copyright and Bill C-61.
The outline for this message is the same as for the talk: some
copyright history, what has recently changed, what would be a good
policy response, and what has the actual response been. I’ll then end
talking about the current federal general election.
The slides for the talk are available online.
Copyright was invented after the advent of the printing press
(Johann Gutenberg in ca. 1439, Charles II of England passed the
Licensing Act of 1662, British Statute of Anne (1710) suggested rights
of the author). The importance here is not the dates to remind us how
long we have had copyright, but to remember that copyright is a
response to the invention of a technology.
In a submission to a United States congressional hearing in 1906, composer John Philip Sousa argued:
“These talking machines are going to ruin the artistic
development of music in this country. When I was a boy…in front of
every house in the summer evenings, you would find young people
together singing the songs of the day or old songs. Today you hear
these infernal machines going night and day. We will not have a vocal
cord left. The vocal cord will be eliminated by a process of evolution,
as was the tail of man when he came from the ape.”
This language should sound familiar to us, as the copyright holders
of the day often talk in apocalyptic language about the harm that some
new technology will bring to them, their form of creativity, to society
or even to our species.
Since most composers were not willing to give permission to record,
many governments stepped in with a “compulsory licensing” system. Under
compulsory licensing a composition could be recorded without
permission, as long as a government set royalty rate was paid to
composer. Canada had such a system in the past, but it is no longer
needed as composers license their works. (See: Copyright: locks, levies, lawsuits or licensing? Part 2: levies for the extended version of this theme)
Jack Joseph Valenti, president of the MPAA, told a congressional panel in 1982: “I
say to you that the VCR is to the American film producer and the
American public as the Boston strangler is to the woman home alone.”
The court response to this technology, in a case called the Sony Betamax case (Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984))
clarified that time shifting is Fair Use in the United States. It is
uncertain how this type of case would happen in Canada given our Fair
Dealings regime is far less protective of users’ and follow-on
creators’ rights, and less adaptable for the courts to offer fairness.
Current copyright law was set up for a time when capital costs meant
that the only people who could infringe copyright were commercial
entities. We now live in a time when this technology is so expensive
that the average citizen in most countries are able to afford.
We also have the situation where many of the incumbent copyright
holders are refusing to license socially beneficial uses, including
non-commercial sharing via P2P or non-commercial mashups on sites such
as YouTube. (See also: Where is that “buy me now” button for Copyright?)
What would a historically consistent response from the government look like?
The government would make use of compulsory licensing as well as
expanding Fair Dealings towards US-style Fair Use to enable these
socially beneficial uses which current copyright holders are refusing.
Canada really needs to modernize our Copyright Act to allow it to be
dynamic enough to be fair as new technologies are quickly being
introduced. We should adopt a living Fair Use regime, and further
clarify that private time, device, and format shifting are fair,
including “truly private” copying of multimedia.
There are many non-commercial but public uses which should be paid
for. This is where we can adopt compulsory licensing for on-demand and
P2P, as has been proposed by the Songwriters Association of Canada. We
should also use compulsory licenses for mashups, user enhanced content
(YouTube), etc
What has the actual Canadian government response been so far?
The Conservative Bill C-61 carved performers and makers out of the
existing section 19 compulsory licensing for on-demand communication.
While we should be introducing more compulsory licenses in situations
where permission isn’t being granted to be historically consistent, we
now have the situation where the new technology requires permission
(online downloads, P2P, etc) while the old technology (radio) does not.
The Conservative Bill C-61 and the Liberal bill C-60 added legal
protection for so-called “technological measures” which lock down
content and devices against interests of the owners of the technology.
Bill C-61 even added clarity to clarity to Fair Dealings that
technological measures and contracts trump fair dealings in many cases,
which is the opposite to US DMCA which clarified that TMs do no remove
Fair Use. (See also: Canadians fed US-style copyright legislation? I wish! )
In my talk I did my “There are 4 things in my hands” tool for understanding technological measures. I direct people to http://flora.ca/ppr to read a document on that topic.
I asked how we got here, and what we are doing wrong? The shortform
is that while new technologies introduced new stakeholders to the
copyright debate, governments in recent decades have only been
consulting with the incumbent copyright holders (and a few long-time
institutional users like schools and libraries). This has meant that
governments have been “representing” industries, rather than citizens.
This brings us directly into the 2008 federal election, and one of
the times that there are politicians from most of the major parties
trying to get in touch with you.
I sent questions to all the candidates in the 3 ridings closest to
the University of Waterloo. As I am writing this message today I have
received replies from three campaigns.
- Kitchener - Waterloo Green Party candidate Cathy MacLellan replied
on the day of the talk, and decided to attend the talk. I gave her some
time to offer the Green Party position on copyright.
- Len Carter, president of the Kitchener Conestoga NDP Federal
Riding Association offered me a fairly cryptic response on behalf of
his candidate, Rod McNeils. I offered some details on why I didn’t
learn much from their response in an article for p2pnet titled It’s the candidates, not the parties.
- Linette Keller, CEO for the Kitchener-Centre Green Party
Electoral District Association, replied suggesting that candidates for
a given party likely have similar views. I sent her a link to It’s the candidates, not the parties.
Copyright has been less visible of an issue this election than it
was in the 2006 election when it was the Liberal Bill C-60 that we were
thankful died on the order paper. While there are some candidates I
will be writing about this week, it really is up to individual
Canadians to talk to the candidates in their riding to find out which
ones have some technology and/or technology law background. It would
also be helpful if people who are speaking to their candidates hit
reply to this article and told everyone what they have learned.
The way parliament works, there will a committee of approximately 12
people which will study this issue when a bill is tabled. The members
are allocated to parties in proportion to the number of members for
that party in the house of commons. We need to try to ensure that a
majority of the members of the committee are fairly well informed
and/or experienced with modern technology, and do not see it as a
threat.
In my speech at the University of Waterloo, I said we really need to
have at least one Charlie Angus type person in every party, and that
this would be far better than to have a single party that dominated
this area of policy. While I have been able to identify a few people in
the NDP and Green Party that would (if elected) be an asset in that
committee, I need everyone’s help to find similar people in the
Conservatives, Liberals and Bloc.
I am aware of the views of David McGuinty, my own incumbent Liberal
candidate in Ottawa South. He has been very helpful to me in trying to
reach other elected MPs, but as environment critic for the Liberals
this is not his speciality. It is highly unlikely he will be in the
committee studying the next version of “An Act To Amend the Copyright
Act”.
—
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.