Welcoming new MPs to a historically consistent Digital Copyright

After the Tuesday election I read how parliament didn’t change much. A few parties lost seats, and some gained. When authoring a tool to automatically scrape a list of winning candidates I found something interesting. If I asked for the MP Information for a candidate who had not yet been an MP I got a blank page, making it easy to create a flag that lists the first time MPs. There are 66 rookie MPs (approximately 21%), and if you are a constituent of one of these MPs you may want to write to them and introduce them to historical consistent Digital Copyright.

The longer-term MPs will have been hammered with a narrow message about what is happening in copyright. According to the entertainment industry, new technology has allowed private citizens to infringe copyright in new ways. This new technology allows for perfect digital duplication, and the ability to share with an ease that changed a difference in amount of infringement to a difference in kind. They have a solution, which is to try to lock up this technology such that they (through contracts with device manufacturers) are in control of this technology.

I believe what has happened is quite different, and that the history of copyright law offers a very different approach.

Modern technology has lowered the costs of recording, editing, reproducing and distributing content. The industry that was formed to finance these historical high costs are slowly declining in each creative sector, allowing creators more control over their creativity. Creators are offered a much lower financial barrier to entry, and are increasingly skipping the traditional intermediaries to reach audiences.

Creators are making more money and reaching better audiences, while the historical intermediaries and methods of distribution are in the decline.

Traditional content distribution networks are frightened of these changes. There is still a high demand for more traditionally produced content, but because of fear of the unknown the copyright holders are largely not offering their works in ways that their potential customers want them.

While audiences want digital content offered unbundled (IE: without subscribing to a speciality channel or cable/satellite TV at all, without having to buy the whole album), copyright holders fight unbundling. While more music is available today on a per-track basis, very few television shows can be subscribed to directly from their producers. Audiences want digital content in a file format that is interoperable with all their devices so that they can purchase once, and use anywhere. Copyright holders are instead offering content, when they offer it at all, specifically targeted to specific brands of specific devices.

Citizens want to participate in culture, which includes remixes of commercial culture. Rather than openly licensing these uses in a way that would pay creators, intermediaries have thus far tried to stop this behaviour and has refused to accept money.

History has seen this type of problem before. When the technology to record music came along, composers rejected the behaviour and tried to shut it down. Their rhetoric went so far as to claim that this technology would cause humans to lose our vocal chords. Governments stepped in and used compulsory licensing which said that composers couldn’t refuse, and that people who recorded music had to pay composers a government set royalty rate.

When VCR’s came around, the movie industry claimed it would be their death — comparing the technology to the Boston strangler. The US courts stepped in and clarified that time shifting television programs was Fair Use under their law.

Canada should look towards a historically consistent response to the current changes in technology. For things such as YouTube and P2P of entertainment (music, movies, television, etc), the right short-term answer is compulsory licenses. We have used this in many places in the past, including legalizing commercial radio and cable/satellite television. We need to ensure that it is reasonable for average citizens, but this is the right place to be looking.

For things such as device compatibility, we should be looking to modernizing our limited Fair Dealings into a living Fair Use regime. This should clarify that time, device and format shifting is exempted from copyright for legally acquired content. Copyright holders who license their works for the home market should not have the ability to use technological measures or contracts to deny the right of their audiences to access this legally acquired content on the devices of their own choosing, at a time of their own choosing.

This historically consistent recommendation for modernizing copyright is in fact the opposite direction to what the WIPO treaties, Bill C-60 and Bill C-61 suggested. This is because these treaties and bills were authored by “consulting” only the very special interest groups who see the problems different than the rest of society.

Could you imagine if the composers had won the political battles a hundred years ago? There would be no recorded music and no radio. Composers would still be selling sheet music, but I doubt the lucrative entertainment industry we see today could have existed. They gained financially despite what they were demanding of government at the time. We need to do the same thing today and protect the entertainment industry from its greatest threat: itself.

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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