Clarity would go a long way to calm CopyFight.

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 debateis false, and talks about his own transition from being one of thosefighting the CopyFight to someone who is now releasing his bookroyalty-free (and DRM-free) on the Internet.

One comment stuck with me in the essay, which is that copyrightcritics often comment on his BLOG in what seem like attacks. The reasonwhy this is the case should be taken as a compliment by John. He getsthe bulk of the commentary not because he is seen as the strongest“enemy” of those who see copyright differently, but because he is oneof the few people seen to be on a given “side” of the debate that iswilling 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 thinkit is appropriate to continue to ask why he supports these policies.This platform is in strong contrast with his Globe and Mail essay, andit might be that John isn’t as supportive of one or the other as wemight presume without asking.

So I will ask. Below is the long list of specific recommendationsfrom the platform and a quick note as to whether I support or opposethe recommendation and why. If John could do the same, this would go along way to clarifying our respective positions on this topic.

The following is quite long and will unfortunately seem like insiderconversation. I am trying to summarize my position and make this assmall as I can, and to do so will require that I not offer details to alevel that would be useful to someone new to the debates. Please do notfeel shy to hit ‘reply’ and ask questions or offer your own commentaryto any of these proposals.

1. The CCC asks that the Copyright Act be amended to strengthenand extend moral rights. These are rights that should allow creators tomaintain respect for their work and their name. Moral rights should beunwaivable, inalienable and unassignable. Additionally, as well asbeing transferable only on death either to any person named by will orto an heir by intestate succession, moral rights should be perpetual.

Russell: I strongly disagree.

Making moral rights unwaivable would reduce clarity in peerproduction situations where the group needs to be protected from theindividual participant. More important to this constituency, it wouldforce media companies to resort to “Work for hire” situations and nolonger hire freelancers in order to obtain any certainty about what canbe done with the creativity they are paying for. Given that it wasprotecting the rights of freelancers that this policy was proposed, Ibelieve it will backfire with nasty consequences.

My recommendation would be very different, which would be to clarifythat the different components of moral rights be able to be waivedindependently in narrow situations. For instance, the waiver of theright of integrity for people who are using the work under the terms ofa Creative Commons license should not suggest that moral rights werewaived in other scenarios. There is currently a lack of clarity on howthe 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 relativelyharmless, with many of the provisions already part of Canadian law,there are articles that have considerable uncertainty as to theirmeaning. The most commonly lobbied meaning of some of these clauses aredangerous to the majority of creators and the general public (legalprotection 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 believeof these treaties would be beneficial to their members. When I ask I amgiven scenarios that are either clearly protected under currentCanadian copyright law (IE: Unauthorized P2P), or which have harmfulconsequences 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 shiftingshould be clearly outside of the regulation of copyright. I believethis should be the case whether the person using the technology is acommercial entity or a private citizen. All the creativity in questionis already being paid for (when original copies are purchased, or whenthe work is communicated to the public by telecommunications), so thisis a clear case of double or triple dipping. This hinders technologicalefficiency, and ephemeral recordings should not require permission orpayment.

4. The CCC asks that Section 3(1) of the Copyright Act be amendedto provide that copyright in a work means “the sole right to produce orreproduce the work or any substantial part thereof in any material formwhatever, to transfer the work or any substantial part thereof to another medium,to perform the work or any substantial part thereof in public, or, ifthe work is unpublished, to publish the work or any substantial partthereof …”
Section l3(4) of the Copyright Act should have a correspondingmodification to read : “The owner of the copyright in any work mayassign the right, either wholly or partially, and either generally orsubject to limitations relating to territory, medium transfer,sector of the market or other limitations relating to the scope of theassignment, and either for the whole term of the copyright or for otherpart thereof, and may grant any interest in the right by licence, butno assignment or grant is valid unless it is in writing signed by theowner 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 orother visual art is transferred to another physical medium, theproposed change is so broad as to infringe upon technological issuessuch as time, space, device and format shifting.

While I can agree with the CCC that the Théberge case relied toomuch on a literal Anglo-American meaning of the word “copy” incopyright (The original meaning was more a synonym for manuscript, andwasn’t intended to refer to the mechanical act), I believe this changewill create more uncertaintly rather than providing clarity.

Much of the objection related to the author not receivingcompensation for the increased value in a work that would then beresold. 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, whichconcerns fair dealing, be reformulated in order to specify clearly thatfair dealing for the purpose of private study or research does notinfringe copyright provided that it is not for commercial purposes andis 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 whetherit is the specific activity that is commercial, or is it the entitythat is commercial. While the copyright act historically only dealtwith activities, all the various institutional exceptions have createduncertainty. Educational institutions have made this situation worse bylobbying 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-commercialentities is “private” use. As soon as something is communicated to thepublic by telecommunications, how can it be considered private? Anexample is people who inconceivably believe that broadcasting the fulltext of a newspaper article in a publicly archived mailing list issomehow “private study”.

I believe in a very different direction which is to adopt a livingFair Use regime similar to many of our trading partners. Our currentlimited enumerated Fair Dealings regime has already had a hard timekeeping up with the times, and using a general rule would keep CanadianCopyright more modern than trying to specify details. I also believethere would be benefit to moving away from focuses on institutions tofocusing on activities, revoking institutional exceptions while weadopt our living Fair Use regime.

6. The CCC recommends the expansion of the private copying regimeto 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 fundedexhibitors to comply with the exhibition right as provided for in theCopyright Act, and pay visual and media artists for all uses of theirwork.

Russell: Agree.

There is a general feeling by those exhibiting art that doing so ismarketing for the artist. I disagree with presumptions such as this,and believe that it should be up to the individual artist and not anexhibitor, the government, or creator groups to impose a business modelon the artist. For some artists their business model will not involveselling their art at all, but instead charge for exhibition.

8. The CCC asks that paragraph 3(1)(g) of the Copyright Act bemodified to extend the exhibition right to all visual works that arenot in the public domain.

Russell: Disagree.

It is interesting that no explanatory text is offered for this. Thecurrent 3(1)(g) reads, “to present at a public exhibition, for apurpose 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 theact) where only new creative works after 1988 are included, or is theproblem that maps, charts or plans are not included?

There is a growing need in Copyright to not treat all types of worksas the same. Some creativity has value for what they are (art,entertainment, etc), and other creativity has value for the functionthey offer (software, educational and scientific material, and here Iwould include maps, charts and plans). These different types ofcreativity often have different methods of production, distribution andfunding that work best for them, and have very different types of useswhich are reasonable to consider “Fair Uses”.

9. The CCC asks that the Copyright Act be amended to include a droit de suitethat would be a non-transferable and inalienable right in the originalartwork giving the creator an economic interest in successive re-salesof 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 specificwording to avoid unintended consequences. There is just somethingdifferent in my mind around the “First Sale” concept when we aretalking about a mass reproduced item (Where I believe the copyrightholder should have no say in resale, donations or disposal, but stillhave a say on communication to the public or distribution of copies),and situations where there is an original artwork being sold that isnot 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 tophotographers, printmakers and portrait artists, and that allreproduction 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 aroundphotography where those commissioning the photograph, or those who ownthe 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 basedon the exception. The vast majority of photography is amateur innature, and the rules should make sense for amateurs first. Thesituation where someone asks a stranger to take a photograph on acamera not owned by the stranger is easily far more common than the oddsituation where a professional freelance photographer (someone notalready under “work for hire”) is not using their own equipment. Havingthe owner of the equipment be the first holder of copyright deals withan important common-place situation.

I would be far more comfortable with these related changes if theywere accompanied by a clarification on the term of copyright to a fixednumber of years. For the vast majority of photographs there is nopossible way to ever determine who the photographer is, but there isoften a way to determine when the photograph was taken (based on howlong you have possessed it, or based on the contents).

I have also been lead to believe that these provisions are primarilybeing pushed by photographers involved with collective societies whoare pushing to have the collectives receive money in that majoritysituation where the copyright holder in unable to be determined. Whilethis would be lucrative for these collectives, it is simply bad publicpolicy.

11. The CCC asks that any future specification in the CopyrightAct respect the general attribution rules that make creators theprimary rights holders of the audiovisual work. Assigning authorship ofthe work, in whole or in part, to the producer is contrary to thespirit of the Act.

Russell: Large collaborative works often have one entity which isable to act as the “Copyright holder” for the collective. Trying tomake business decisions based on constant negotiation with everycreator (possibly hundreds for a motion picture) would make most ofthese projects impractical.

Software also has hundreds of contributors to most works. Theproblem is “solved” in the software world in two ways: common publiclicensing (Free/Libre and Open Source Software) and “work for hire”situations where the creator never receives any copyright relatedrights at all.

While I understand the motivation of creators to get royalties theycan negotiate rather than residuals which are often imposed (andlimited), I believe the ultimate outcome of this type of policy wouldbe to reduce (not increase) the rewards to the relevant creators.

Like the moral rights proposal, the likely outcome would beincreased “work for hire” situations where creators retain absolutelyno copyright related rights at all in more situations.

12. The CCC asks that Section 29.5(a) be struck from theCopyright Act so that playwrights and other authors may regain theirright to receive fair remuneration when their works are performed bystudents in educational institutions in the context of pedagogicalactivities.

Russell: Fence sitting

I’m not sure what the possible benefit would be for members of theCCC. It isn’t like Canadian society will magically come out of a fogand educational funding increased to compensate CCC members. Therealistic outcome of this type of policy would be for students toperform plays specifically authored and appropriately royalty-freelicensed for educational institutions, or plays already in the publicdomain.

It is an unfortunate situation that we need to feel thankful thatplays are part of school at all at this point given the focus of someon so-called “core subjects” (language, math, sciences, tech). Manyschools already risk loosing subjects like music entirely.

13. The CCC asks that Section 32.2(1)(d) be struck from theCopyright Act so that authors of literary and dramatic texts mayreceive fair remuneration when a substantial part of their work is reador recited on stage.

Russell: Talk about obscurity. The argument here is about thesubjective difference, if one really exists, between a “reasonableextract” and a “substantial part”.

32.2(1)(d) currently states that it is not an infringement ofcopyright “(d) for any person to read or recite in public a reasonableextract from a published work;”. Anything that is below a “substantialpart” is not infringement, and anything above a “reasonable extract”would be.

These types of excessively obscure arguments about the meanings ofwords and phrases in the current Copyright Act is why I stronglysupport “Clarification and simplification of the act” (The lastrecommendation from the Section 92 report), as well as moving from ourcurrent “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 feeljustified in doing what they do well which is to contemplate and authorformula 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 fundamentalmisunderstanding of what an “ISP” is. There is a belief that an ISP isjust like a broadcaster or a telecom company, which is of course whatcompanies like Bell and Rogers have been promoting. What the CCCdoesn’t seem to realize is that they are playing into the hands of Belland Rogers which are companies in the two sectors (phone and cablecompanies) which least want the Internet to exist. Not only should wenot be mandating this level of liability, but we should be legallybarring providers of Internet services from the inspection andmanipulation of content suggested. This is a key part of the “NetNeutrality” debate which is a far greater threat to the members of theCCC 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 theprovision of “Internet service”, with an adequate definition of“Internet”. As with my objection to institutional exceptions, I believethat regulations should relate to the specific activity and not theentity given many companies offer services across a wide number ofbusinesses types.

The Internet was conceived as an end-to-end networkwhere the intelligence was at the endpoints and the network itself wasdumb. When a network is configured to be a dumb network, then it is notreasonable to expect the provider to be aware of or liable for anyactivity over that network.

ISP’s are the only entities that have a database to connect Internetaddresses to customers, and thus should be expected to be messengers ina “Notice and Notice” regime to convey well formed notices on to theircustomers.

When the network is configured to be a smart network, with theprovider offering services closer to that of a cable company or“broadcaster”, then the network provider should be held liable in a waysimilar to that of a cable company or other broadcast undertaking.

This would ultimate mean that phone companies like Bell and cablecompanies like Rogers would be liable for their not-quite-Internetservices, but proper ISPs operating an end-to-end network would not beliable. True ISPs would be neutral common carriers of data as well aslegal messengers to their customers.

15. The CCC recommends that further changes to improve thegeneral licensing system and facilitate collective administration beapplied, and that this system be preferred over one which would havethe effect of maintaining and extending the current system ofexceptions.

Russell: Disagree.

I realize that Collective Societies are part of the CCC, but thelanguage is itself confusing. If we are talking about extended orcompulsory licensing we are talking about an exception to copyright.What is being suggested here is that when there is an exception tocopyright it should be a royalty-bearing exception to copyright thatsends money to Collective Societies rather than a royalty-freeexception to copyright.

16. The CCC asks the Government of Canada to adopt a system ofextended collective licensing that covers all works except thoseexplicitly 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 thatthey wish to retain copyright and not be drawn into this exception tocopyright. While it would be nice to believe that this would be awillingness on the part of the CCC to adopt a copyright registrationand renewal system, this unfortunately appears to be more of a moneygrab by the collective societies from creators and the public.

While I’m all for a registration system, I believe that the defaultfor copyrighted works not registered after a grace period (say 7 or 10years) would be for there to be no copyright, not for collectivesocieties to step in and collect on behalf of authors who don’tregister (and thus couldn’t collect on the royalties anyway, givenregistering with a collective is still registering). While lucrativefor the collective societies which represent a narrow set of businessmodel interests for a subset of creators, this is simply bad publicpolicy.

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 ofremuneration (AKA: a compulsory collective licensing system) for aperformers performance included within a cinematographic work. I findthis recommendation against collective licensing out of place in aplatform that largely recommends replacing copyright relatedrequirements for permission (and associated freedoms in diversecontracts) 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 beapplied to general purpose technology, but to specific media orspecific activities.

Neither component of the last part of this recommendation makes any sense.

The technology to record, edit, and distribute original creativityis the identical technology used to make/distribute “unauthorized”copies. The simple fact is that creativity and copyright infringementare the identical technological acts, and there is no way (outside ofscience fiction plots or “magic”) to differentiate in technology.

Whether something is infringement or not is something that willalways be a matter of law, not a legitimate mater of technology. Anytechnology provider suggesting otherwise is actually acting dishonestlyand trying to transfer the regulation that currently exists incopyright law into privately enforced rules of the technology providersown choosing. Either they are trying to dupe creators into a nastypower grab, or they are offering snake-oil. Either way, creators needto reject this dangerous misinformation from these technology providers.

The comment of “otherwise monetized” relates to the economicdiscussions I offered in my “Analyzing” article. There are times whenthere is a legitimate market failure where the exception to copyrightknown as a “compulsory license” (Levies) is the only reasonable answer.If these specific activities were being “otherwise monetized” therewould be no market failure, and then the suggestion of compulsorylicensing should be rejected for that activity.

This interpretation of this suggestion is, however, in directconflict with recommendation 6 which suggests that the private copyingregime be extended to all creative works, regardless of whether thereis a market failure at all (IE: whether the relevant activities arealready “otherwise monetized”).

19. The CCC asks the Government of Canada to incorporate theprovisions of the WIPO Performances and Phonograms Treaty (WPPT) intoCanadian law, and to ensure that the rights accorded performers coverall performances not in the public domain.

Russell: Ditto commentary from recommendation 2. The WPPT includesall the controversial and undefined aspects of the WCT, as well asadditional clauses that are specific to these neighbouring rightsholders.

20. The CCC recommends the repeal of section 68.1(1)(a)(i) of theCopyright Act, which provides for the payment of a sum as low as $100per year on the first $1.25 million of broadcasters’ annual advertisingrevenues.

Russell: Disagree

Radio and television stations had a small yearly fee that they wouldpay rather than a percentage on the first $1.25 million of advertisingrevenues. There is also a provision, “(b) community systems shall payroyalties of $100 in respect of each year”. This section wasspecifically titled “Special and transitional royalty rates”.

I happen to agree with retaining these types of special royaltyrates. Community systems, small commercial stations, amateur podcastersand other such entities should have a simple fixed rate which does notrequire them to spend more money than they possibly have to negotiateat the Copyright board, or file a level of paperwork that is notwarranted.

21. The CCC asks the Government of Canada to provide performingartists with moral rights in all their performances, including existingperformances, and that these be inalienable, unwaivable andunassignable.

Russell: Ditto for my objection to recommendation 1.

22. The CCC asks that transitional measures be included whichwill prohibit the possibility of any grant, waiver or assignment beforethe 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 themarketplace to the detriment of CCC members in the future. They try tohold onto works which were created before the change as their “reward”for this round. They then go into negotiations the next time with yetanother proposal which will in the end harm their membership.

Ultimately we need to be making proposals that will benefit bothcreators, as well as society as a whole which benefits from thiscreativity. This backward-facing ratcheting has been going on for fartoo long already.

23. The CCC recommends the regime provided for in Section 32.5 ofthe Copyright Act be replaced by a notification system more suitable toCanada.

Russell: Disagree.

CCC members want activities carried out before we adoptedneighbouring rights as part of our ratification of the Rome Conventionto be fully retroactive. This is related to my objection torecommendation 8, where there is a need for there to be a transitionperiod for some major changes to our Copyright Act. Suggesting that anew right only apply to activities (or even works) created after thedate that the new right is created is reasonable. It may be appropriateto eradicate this type of transition in a hundred years (after alllegacy copyright has expired, which could be 50 years if performancesand broadcasters retain a fixed 50 year copyright), but given we onlyratified the Rome Convention in 1998 it seems far too soon.

Part of the assumption of this recommendation is that we are talkingonly about verbatim copies being made of communicated works. I believewe need to better consider the situation where an existingcollaborative work involving inputs from many different copyrightholders from a variety of countries (with a variety of changingcopyright regimes) needs to be considered. Should a largerInternational project incorporating a component of a Canadianperformance or broadcast no longer be able to be sold because ofchanges in Canadian law? I don’t think there is an obvious answer inevery case, and I believe this issue needs appropriate study includinga 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.

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