Copyright past, copyright present, copyright future, and election 2008

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: somecopyright history, what has recently changed, what would be a goodpolicy response, and what has the actual response been. I’ll then endtalking 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 theLicensing Act of 1662, British Statute of Anne (1710) suggested rightsof the author). The importance here is not the dates to remind us howlong we have had copyright, but to remember that copyright is aresponse 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 artisticdevelopment of music in this country. When I was a boy…in front ofevery house in the summer evenings, you would find young peopletogether singing the songs of the day or old songs. Today you hearthese infernal machines going night and day. We will not have a vocalcord 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 holdersof the day often talk in apocalyptic language about the harm that somenew technology will bring to them, their form of creativity, to societyor even to our species.

Since most composers were not willing to give permission to record,many governments stepped in with a “compulsory licensing” system. Undercompulsory licensing a composition could be recorded withoutpermission, as long as a government set royalty rate was paid tocomposer. Canada had such a system in the past, but it is no longerneeded 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: “Isay to you that the VCR is to the American film producer and theAmerican 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 isuncertain how this type of case would happen in Canada given our FairDealings regime is far less protective of users’ and follow-oncreators’ rights, and less adaptable for the courts to offer fairness.

Current copyright law was set up for a time when capital costs meantthat the only people who could infringe copyright were commercialentities. We now live in a time when this technology is so expensivethat the average citizen in most countries are able to afford.

We also have the situation where many of the incumbent copyrightholders are refusing to license socially beneficial uses, includingnon-commercial sharing via P2P or non-commercial mashups on sites suchas 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 asexpanding Fair Dealings towards US-style Fair Use to enable thesesocially beneficial uses which current copyright holders are refusing.

Canada really needs to modernize our Copyright Act to allow it to bedynamic enough to be fair as new technologies are quickly beingintroduced. We should adopt a living Fair Use regime, and furtherclarify 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 paidfor. This is where we can adopt compulsory licensing for on-demand andP2P, as has been proposed by the Songwriters Association of Canada. Weshould 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 theexisting section 19 compulsory licensing for on-demand communication.While we should be introducing more compulsory licenses in situationswhere permission isn’t being granted to be historically consistent, wenow 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 legalprotection for so-called “technological measures” which lock downcontent and devices against interests of the owners of the technology.

Bill C-61 even added clarity to clarity to Fair Dealings thattechnological measures and contracts trump fair dealings in many cases,which is the opposite to US DMCA which clarified that TMs do no removeFair 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 to read a document on that topic.

I asked how we got here, and what we are doing wrong? The shortformis that while new technologies introduced new stakeholders to thecopyright debate, governments in recent decades have only beenconsulting with the incumbent copyright holders (and a few long-timeinstitutional users like schools and libraries). This has meant thatgovernments have been “representing” industries, rather than citizens.

This brings us directly into the 2008 federal election, and one ofthe times that there are politicians from most of the major partiestrying to get in touch with you.

I sent questions to all the candidates in the 3 ridings closest tothe University of Waterloo. As I am writing this message today I havereceived 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 itwas in the 2006 election when it was the Liberal Bill C-60 that we werethankful died on the order paper. While there are some candidates Iwill be writing about this week, it really is up to individualCanadians to talk to the candidates in their riding to find out whichones have some technology and/or technology law background. It wouldalso be helpful if people who are speaking to their candidates hitreply to this article and told everyone what they have learned.

The way parliament works, there will a committee of approximately 12people which will study this issue when a bill is tabled. The membersare allocated to parties in proportion to the number of members forthat party in the house of commons. We need to try to ensure that amajority of the members of the committee are fairly well informedand/or experienced with modern technology, and do not see it as athreat.

In my speech at the University of Waterloo, I said we really need tohave at least one Charlie Angus type person in every party, and thatthis would be far better than to have a single party that dominatedthis area of policy. While I have been able to identify a few people inthe NDP and Green Party that would (if elected) be an asset in thatcommittee, I need everyone’s help to find similar people in theConservatives, Liberals and Bloc.

I am aware of the views of David McGuinty, my own incumbent Liberalcandidate in Ottawa South. He has been very helpful to me in trying toreach other elected MPs, but as environment critic for the Liberalsthis is not his speciality. It is highly unlikely he will be in thecommittee studying the next version of “An Act To Amend the CopyrightAct”.

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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