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, but
at 8 pages I felt it was already pretty long. I have given several
presentations lasting an hour for what amounts to a single clause in
the 1996 WIPO treaties. The format of this consultation doesn’t allow
us the ability to discuss at this level of detail, but only very
broadly. While this series of blog posts about the 2009 consultation
is primarily motivated to encourage people to participate in the
consultation, it also allowed me to say more things that would have
been reasonable to include in my written submission.
Since today is September 11′th, I was contemplating writing about
the security implications of locks on devices where the owners are not
given 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 under
the Presidency of George W. Bush. At an event that included
representatives 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 we
are also responsible for maintaining the security of the information
infrastructure of the United States and making sure peoples’ [and]
businesses’ computers are secure. … There’s been a lot of publicity
recently about tactics used in pursuing protection for music and DVD
CDs in which questions have been raised about whether the protection
measures install hidden files on peoples’ computers that even the
system 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’s
important not to defeat or undermine the security measures that people
need to adopt in these days.”
I’m not going to be as extreme as some of those in the copyright
industries by suggesting that “if you promote or use DRM then the
terrorists win”, but I think the critical point is still quite clear ![:-)]()
I will instead republish the discussion part of my submission. It
started with a preamble about two extremes in the debate that is
similar to what I wrote in this blog on September 6,
and I end the submission with a series of bullets on specific reforms I
would like to see as well as those I feel Canada should reject.
It is the middle where I would like to see discussion in the
comments. Please also feel free to take any part of any of my
submissions or postings to include in your own submission.
There are two extreme views that were often articulated that can not
be reconciled: that any unauthorized usage (commercial or otherwise) of
a copyrighted work is analogous to “theft” vs. the suggestion copyright
holders shouldn’t need permission or payment (non-commercial or
otherwise).
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/tangible
property. It needs to be understood that as a worst case scenario,
copyright infringement is an unlawful reduction of the value of a
copyright. The comparison to “theft” is invalid as the actual thing
that could be claimed to be “owned”, the copyright, is still held by
the copyright holder. The other is that knowledge, different than
tangible goods, has a zero marginal cost to the producer. Infringement
does not cause direct financial loss, only the potential or theoretical
loss of additional revenue.
The comparison is also harmful to the interests of copyright holders
as it limits their thinking on ways to be compensated for their
creativity. Thinking of infringement as “theft” leads copyright holders
to want to exert more “control” over their creativity. Control and
compensation are not the same thing, and in what I believe is the
majority of cases an increase in control over what copyright holders
already have under Canadian law will reduce compensation.
Some representatives of copyright holders recognise this flawed
thinking. In 2007 Jeff Raikes, then President of the Microsoft Business
Division , 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 use
of a copyrighted work is ideal, that infringement is better for the
copyright holder than people switching to alternatives.
You will never hear a manufacturer or reseller of a tangible good
say “If you are going to steal from someone, we want it to be us rather
than someone else”. The reason is simple: intangible zero-marginal cost
knowledge is nothing like non-zero marginal cost tangible goods, and
copyright infringement is nothing like “theft”. All our conversations
about modernizing our copyright law must start from this basic
understanding.
Invalid Statistics
The comparison to “theft” brings people to incorrectly believe that
any unauthorized usage represents a loss to the specific copyright
holder, leading to statistics that are not helpful for understanding
reality 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 a
yearly study from IDC called “The Global Software Piracy Study”. The
methodology they disclose in the report to justify the alleged losses
to their members from software copyright infringement has many serious
flaws.
Their study uses indirect methods to estimate the amount of
copyright infringement. They take the number of computers which ship in
a region and multiply that by their “wishful thinking” demand for their
member software. They subtract from this the actual shipments of their
software, as well as their “wishful thinking” demand for competing
Free/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 the
context of this methodology. An organization made up of members that
see people switching to alternatives as a greater threat than copyright
infringement is going to over-estimate the demand for their own
software, and under-estimate the demand for those alternatives. IDC is
well known for under-estimating the demand for FLOSS in the
marketplace, often using pre-installed software as a primary measure.
FLOSS has a royalty price of zero, and can be legally shared and
installed on multiple computers royalty-free. This has meant that most
FLOSS is installed after the purchase of the hardware, rather than
pre-installed.
The BSA/IDC study then goes further. They start with the invalid
presumption that every infringing copy was a lost sale for their
members. As Jeff Raikes suggested, there is a third option of people
switching to alternatives (legal or otherwise), as well as people not
using that type of software at all. People taking the option of
infringing BSA member software is actually more harmful to the
interests of those offering the alternatives. It is hard for legally
free FLOSS to compete with illegally free BSA member software, and all
this illegally free software usage closes the various commercial
support markets that these software alternatives depend on. While I
believe there are commercial losses caused by people using illegally
free 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 as
retail. The problem with claiming that using illegally free software
hurts retail markets is that another trend, switching from the sale of
shrink-wrap software to legal software downloads and software as a
service, is nearly equivalent. The trend in the productivity software
marketplace is away from selling boxes in retail outlets, and retailers
that were partly dependent on this revenue will need to switch to other
revenue sources. This downward trend for retailers cannot be attributed
to software copyright infringement. The same can be said of the retail
sales taxes and other alleged losses in secondary markets.
One of the most interesting (comical?) claims the BSA/IDC study
makes is at the country level, confusing a correlation with a causal
relationship. They note that in more financially wealthy countries that
software copyright infringement is lower than in poorer countries. They
then make the amusing suggestion that it is the lower infringement that
makes the country more wealthy, rather than the far more likely
suggestion that those with less money are more likely to infringe
copyright. In countries where software licenses cost many months (or
sometimes years) wages, the only options are infringement, using
legally free alternatives, or doing without the software - paying the
royalty fees requested by BSA members is simply not possible for what
is easily the majority of the worlds population.
Similarly amusing studies with similar methodologies come from other
copyright sectors. The self-called International Intellectual Property
Alliance (IIPA) is made up of seven member associations: the
Association of American Publishers (AAP), the Business Software
Alliance (BSA), the Entertainment Software Association (ESA), the
Independent Film & Television Alliance (IFTA), the Motion Picture
Association 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 make
claims about how these copyright sectors are affected by copyright
infringement. These questionable studies then form the basis of other
“studies”, such as the one that the Conference Board of Canada withdrew
after it was disclosed that it was plagiarized from the IIPA.
No matter which specific copyright sector study you look closely at
you will see similar claims: that in markets being transformed by new
technology that any observable negative impacts are attributed to
copyright infringement rather than legal competition, and that any
infringement represents a lost sale to the copyright holder.
Other extreme: No compensation for creators
I strongly believe creators should be compensated for their
creativity. Not all of this compensation comes in the form of money as
can be seen in the various sharing based creative communities, and
these other forms of compensation that motivate creators must also be
protected. If we don’t protect the moral and material interests of
creators, 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 be
compensated expressed a number of times over the last near-decade I
have been active in this area of policy. It comes in the form of a
broad suggestion that copyright should be abolished, as well as the
form of a copyright exemption for the specific activities that the
individual is carrying out (unauthorized P2P, educational institutions,
etc). While some copyright holders abuse the term “thieves” to discuss
people who have this belief, I do not agree with their suggestion that
there is some sort of moral decay being demonstrated.
We need to ask ourselves how Canada can have many grocery stores
with “self serve” checkouts where possibly poor and starving people can
be trusted with goods that costs the store money to replace, while more
wealthy Canadians with access to computers supposedly can’t be trusted
with 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 part
of the story. At a copyright conference, likely one of the CopyCamp’s
that we both attended, he was talking to someone who thought all uses
of creative works should be free. André then asked him what he would do
if some of his own work had was taken by some big corporation who made
a large profit without offering him anything. This young person said
they would sue, at which point André asked what law he would use to sue
given this person had already asked that any uses of copyrighted works
be allowed without permission or payment.
I say that this is only part of the story, because I believe this
story is a symptom and not the cause. We have created an environment
where a vast majority of citizens think of themselves as passive
consumers of culture rather than active participants. This environment
is perpetuated by the same people who then complain when passive
consumers are unable to put themselves into the shoes of creators in
order to protect our common interests.
Mr Cornellier’s own copyright proposals are an example of the
problem. He appears upset that professional photographers aren’t
granted first copyright in some extremely obscure situations such as
commissioned photography (similar to “work for hire” in many ways,
where employers rather than creators hold copyright) as well as
photography when the photographer is using someone else’s equipment. He
suggests that his proposals will offer professional photographers the
“same copyright” as everyone else.
Photography is an exceptional area for a number of reasons. Unlike
audio recordings where the performances of subjects have their own
copyright, the subjects of photographs are not granted any copyright
related rights (note: privacy and publicity rights are separate
non-copyright related rights that should be protected). While sound and
video recordings are quickly catching up, photography is an activity
that is dominated by amateur and automated (surveillance, etc) rather
than professional or artistic activities. Mr. Cornellier’s proposals
seek to treat photography as if is were only or even primarily a
professional activity, which is entirely inappropriate. These
inappropriate proposals make that vast majority of photographers feel
as 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 that
we have Copyright law which enables active participation in culture,
not passive consumption. This will mean putting a priority on
clarification and simplification of copyright law such that it can be
respected and seen as respectable by average citizens.
Most of the revisions to the Canadian copyright act since we created
our own separate from British law in 1921 have been done in the context
where the technology involved was expensive, and the activities which
copyright regulated were commercial in nature. Modern technology has
changed this, and we appear to have two very different directions we
can 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 was
passed as the USA’s Digital Millennium Copyright Act (DMCA) in 1998. I
believe this will ultimately be disastrous to the interests of Canadian
creators. We need to take the opposite approach and try to transfer
some of the control currently exerted by large content industry
intermediaries and put that control back into the hands of creators (as
it relates to their creativity) and average citizens (as it relates to
the technology which they own). The more citizens consider themselves
participants in culture, and the more the law allows and encourages
them to be participants, the more they will respect the moral and
material rights of fellow cultural participants. The suggestion that
fellow creators should not be compensated for their creativity will
fade into a memory as we turn our minds to finding better and better
ways 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.
