Clarity would go a long way to calm CopyFight.
(First published on IT World Canada blog)
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 debate is false, and talks about his own transition from being one of those fighting the CopyFight to someone who is now releasing his book royalty-free (and DRM-free) on the Internet.
One comment stuck with me in the essay, which is that copyright critics often comment on his BLOG in what seem like attacks. The reason why this is the case should be taken as a compliment by John. He gets the bulk of the commentary not because he is seen as the strongest “enemy” of those who see copyright differently, but because he is one of the few people seen to be on a given “side” of the debate that is willing 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 think it is appropriate to continue to ask why he supports these policies. This platform is in strong contrast with his Globe and Mail essay, and it might be that John isn’t as supportive of one or the other as we might presume without asking.
So I will ask. Below is the long list of specific recommendations from the platform and a quick note as to whether I support or oppose the recommendation and why. If John could do the same, this would go a long way to clarifying our respective positions on this topic.
The following is quite long and will unfortunately seem like insider conversation. I am trying to summarize my position and make this as small as I can, and to do so will require that I not offer details to a level that would be useful to someone new to the debates. Please do not feel shy to hit ‘reply’ and ask questions or offer your own commentary to any of these proposals.
1. The CCC asks that the Copyright Act be amended to strengthen and extend moral rights. These are rights that should allow creators to maintain respect for their work and their name. Moral rights should be unwaivable, inalienable and unassignable. Additionally, as well as being transferable only on death either to any person named by will or to an heir by intestate succession, moral rights should be perpetual.
Russell: I strongly disagree.
Making moral rights unwaivable would reduce clarity in peer production situations where the group needs to be protected from the individual participant. More important to this constituency, it would force media companies to resort to “Work for hire” situations and no longer hire freelancers in order to obtain any certainty about what can be done with the creativity they are paying for. Given that it was protecting the rights of freelancers that this policy was proposed, I believe it will backfire with nasty consequences.
My recommendation would be very different, which would be to clarify that the different components of moral rights be able to be waived independently in narrow situations. For instance, the waiver of the right of integrity for people who are using the work under the terms of a Creative Commons license should not suggest that moral rights were waived in other scenarios. There is currently a lack of clarity on how the 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 relatively harmless, with many of the provisions already part of Canadian law, there are articles that have considerable uncertainty as to their meaning. The most commonly lobbied meaning of some of these clauses are dangerous to the majority of creators and the general public (legal protection 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 believe of these treaties would be beneficial to their members. When I ask I am given scenarios that are either clearly protected under current Canadian copyright law (IE: Unauthorized P2P), or which have harmful consequences 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 shifting should be clearly outside of the regulation of copyright. I believe this should be the case whether the person using the technology is a commercial entity or a private citizen. All the creativity in question is already being paid for (when original copies are purchased, or when the work is communicated to the public by telecommunications), so this is a clear case of double or triple dipping. This hinders technological efficiency, and ephemeral recordings should not require permission or payment.
4. The CCC asks that Section 3(1) of the Copyright Act be amended to provide that copyright in a work means “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to transfer the work or any substantial part thereof to another medium, to perform the work or any substantial part thereof in public, or, if the work is unpublished, to publish the work or any substantial part thereof …”
Section l3(4) of the Copyright Act should have a corresponding modification to read : “The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium transfer, sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner 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 or other visual art is transferred to another physical medium, the proposed change is so broad as to infringe upon technological issues such as time, space, device and format shifting.
While I can agree with the CCC that the Théberge case relied too much on a literal Anglo-American meaning of the word “copy” in copyright (The original meaning was more a synonym for manuscript, and wasn’t intended to refer to the mechanical act), I believe this change will create more uncertaintly rather than providing clarity.
Much of the objection related to the author not receiving compensation for the increased value in a work that would then be resold. 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, which concerns fair dealing, be reformulated in order to specify clearly that fair dealing for the purpose of private study or research does not infringe copyright provided that it is not for commercial purposes and is 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 whether it is the specific activity that is commercial, or is it the entity that is commercial. While the copyright act historically only dealt with activities, all the various institutional exceptions have created uncertainty. Educational institutions have made this situation worse by lobbying 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-commercial entities is “private” use. As soon as something is communicated to the public by telecommunications, how can it be considered private? An example is people who inconceivably believe that broadcasting the full text of a newspaper article in a publicly archived mailing list is somehow “private study”.
I believe in a very different direction which is to adopt a living Fair Use regime similar to many of our trading partners. Our current limited enumerated Fair Dealings regime has already had a hard time keeping up with the times, and using a general rule would keep Canadian Copyright more modern than trying to specify details. I also believe there would be benefit to moving away from focuses on institutions to focusing on activities, revoking institutional exceptions while we adopt our living Fair Use regime.
6. The CCC recommends the expansion of the private copying regime to 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 funded exhibitors to comply with the exhibition right as provided for in the Copyright Act, and pay visual and media artists for all uses of their work.
Russell: Agree.
There is a general feeling by those exhibiting art that doing so is marketing for the artist. I disagree with presumptions such as this, and believe that it should be up to the individual artist and not an exhibitor, the government, or creator groups to impose a business model on the artist. For some artists their business model will not involve selling their art at all, but instead charge for exhibition.
8. The CCC asks that paragraph 3(1)(g) of the Copyright Act be modified to extend the exhibition right to all visual works that are not in the public domain.
Russell: Disagree.
It is interesting that no explanatory text is offered for this. The current 3(1)(g) reads, “to present at a public exhibition, for a purpose 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 the act) where only new creative works after 1988 are included, or is the problem that maps, charts or plans are not included?
There is a growing need in Copyright to not treat all types of works as the same. Some creativity has value for what they are (art, entertainment, etc), and other creativity has value for the function they offer (software, educational and scientific material, and here I would include maps, charts and plans). These different types of creativity often have different methods of production, distribution and funding that work best for them, and have very different types of uses which are reasonable to consider “Fair Uses”.
9. The CCC asks that the Copyright Act be amended to include a droit de suite that would be a non-transferable and inalienable right in the original artwork giving the creator an economic interest in successive re-sales of 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 specific wording to avoid unintended consequences. There is just something different in my mind around the “First Sale” concept when we are talking about a mass reproduced item (Where I believe the copyright holder should have no say in resale, donations or disposal, but still have a say on communication to the public or distribution of copies), and situations where there is an original artwork being sold that is not 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 to photographers, printmakers and portrait artists, and that all reproduction 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 around photography where those commissioning the photograph, or those who own the 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 based on the exception. The vast majority of photography is amateur in nature, and the rules should make sense for amateurs first. The situation where someone asks a stranger to take a photograph on a camera not owned by the stranger is easily far more common than the odd situation where a professional freelance photographer (someone not already under “work for hire”) is not using their own equipment. Having the owner of the equipment be the first holder of copyright deals with an important common-place situation.
I would be far more comfortable with these related changes if they were accompanied by a clarification on the term of copyright to a fixed number of years. For the vast majority of photographs there is no possible way to ever determine who the photographer is, but there is often a way to determine when the photograph was taken (based on how long you have possessed it, or based on the contents).
I have also been lead to believe that these provisions are primarily being pushed by photographers involved with collective societies who are pushing to have the collectives receive money in that majority situation where the copyright holder in unable to be determined. While this would be lucrative for these collectives, it is simply bad public policy.
11. The CCC asks that any future specification in the Copyright Act respect the general attribution rules that make creators the primary rights holders of the audiovisual work. Assigning authorship of the work, in whole or in part, to the producer is contrary to the spirit of the Act.
Russell: Large collaborative works often have one entity which is able to act as the “Copyright holder” for the collective. Trying to make business decisions based on constant negotiation with every creator (possibly hundreds for a motion picture) would make most of these projects impractical.
Software also has hundreds of contributors to most works. The problem is “solved” in the software world in two ways: common public licensing (Free/Libre and Open Source Software) and “work for hire” situations where the creator never receives any copyright related rights at all.
While I understand the motivation of creators to get royalties they can negotiate rather than residuals which are often imposed (and limited), I believe the ultimate outcome of this type of policy would be to reduce (not increase) the rewards to the relevant creators.
Like the moral rights proposal, the likely outcome would be increased “work for hire” situations where creators retain absolutely no copyright related rights at all in more situations.
12. The CCC asks that Section 29.5(a) be struck from the Copyright Act so that playwrights and other authors may regain their right to receive fair remuneration when their works are performed by students in educational institutions in the context of pedagogical activities.
Russell: Fence sitting
I’m not sure what the possible benefit would be for members of the CCC. It isn’t like Canadian society will magically come out of a fog and educational funding increased to compensate CCC members. The realistic outcome of this type of policy would be for students to perform plays specifically authored and appropriately royalty-free licensed for educational institutions, or plays already in the public domain.
It is an unfortunate situation that we need to feel thankful that plays are part of school at all at this point given the focus of some on so-called “core subjects” (language, math, sciences, tech). Many schools already risk loosing subjects like music entirely.
13. The CCC asks that Section 32.2(1)(d) be struck from the Copyright Act so that authors of literary and dramatic texts may receive fair remuneration when a substantial part of their work is read or recited on stage.
Russell: Talk about obscurity. The argument here is about the subjective difference, if one really exists, between a “reasonable extract” and a “substantial part”.
32.2(1)(d) currently states that it is not an infringement of copyright “(d) for any person to read or recite in public a reasonable extract from a published work;”. Anything that is below a “substantial part” is not infringement, and anything above a “reasonable extract” would be.
These types of excessively obscure arguments about the meanings of words and phrases in the current Copyright Act is why I strongly support “Clarification and simplification of the act” (The last recommendation from the Section 92 report), as well as moving from our current “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 feel justified in doing what they do well which is to contemplate and author formula 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 fundamental misunderstanding of what an “ISP” is. There is a belief that an ISP is just like a broadcaster or a telecom company, which is of course what companies like Bell and Rogers have been promoting. What the CCC doesn’t seem to realize is that they are playing into the hands of Bell and Rogers which are companies in the two sectors (phone and cable companies) which least want the Internet to exist. Not only should we not be mandating this level of liability, but we should be legally barring providers of Internet services from the inspection and manipulation of content suggested. This is a key part of the “Net Neutrality” debate which is a far greater threat to the members of the CCC 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 the provision of “Internet service”, with an adequate definition of “Internet”. As with my objection to institutional exceptions, I believe that regulations should relate to the specific activity and not the entity given many companies offer services across a wide number of businesses types.
The Internet was conceived as an end-to-end network where the intelligence was at the endpoints and the network itself was dumb. When a network is configured to be a dumb network, then it is not reasonable to expect the provider to be aware of or liable for any activity over that network.
ISP’s are the only entities that have a database to connect Internet addresses to customers, and thus should be expected to be messengers in a “Notice and Notice” regime to convey well formed notices on to their customers.
When the network is configured to be a smart network, with the provider offering services closer to that of a cable company or “broadcaster”, then the network provider should be held liable in a way similar to that of a cable company or other broadcast undertaking.
This would ultimate mean that phone companies like Bell and cable companies like Rogers would be liable for their not-quite-Internet services, but proper ISPs operating an end-to-end network would not be liable. True ISPs would be neutral common carriers of data as well as legal messengers to their customers.
15. The CCC recommends that further changes to improve the general licensing system and facilitate collective administration be applied, and that this system be preferred over one which would have the effect of maintaining and extending the current system of exceptions.
Russell: Disagree.
I realize that Collective Societies are part of the CCC, but the language is itself confusing. If we are talking about extended or compulsory licensing we are talking about an exception to copyright. What is being suggested here is that when there is an exception to copyright it should be a royalty-bearing exception to copyright that sends money to Collective Societies rather than a royalty-free exception to copyright.
16. The CCC asks the Government of Canada to adopt a system of extended collective licensing that covers all works except those explicitly 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 that they wish to retain copyright and not be drawn into this exception to copyright. While it would be nice to believe that this would be a willingness on the part of the CCC to adopt a copyright registration and renewal system, this unfortunately appears to be more of a money grab by the collective societies from creators and the public.
While I’m all for a registration system, I believe that the default for copyrighted works not registered after a grace period (say 7 or 10 years) would be for there to be no copyright, not for collective societies to step in and collect on behalf of authors who don’t register (and thus couldn’t collect on the royalties anyway, given registering with a collective is still registering). While lucrative for the collective societies which represent a narrow set of business model interests for a subset of creators, this is simply bad public policy.
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 of remuneration (AKA: a compulsory collective licensing system) for a performers performance included within a cinematographic work. I find this recommendation against collective licensing out of place in a platform that largely recommends replacing copyright related requirements for permission (and associated freedoms in diverse contracts) 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 be applied to general purpose technology, but to specific media or specific activities.
Neither component of the last part of this recommendation makes any sense.
The technology to record, edit, and distribute original creativity is the identical technology used to make/distribute “unauthorized” copies. The simple fact is that creativity and copyright infringement are the identical technological acts, and there is no way (outside of science fiction plots or “magic”) to differentiate in technology.
Whether something is infringement or not is something that will always be a matter of law, not a legitimate mater of technology. Any technology provider suggesting otherwise is actually acting dishonestly and trying to transfer the regulation that currently exists in copyright law into privately enforced rules of the technology providers own choosing. Either they are trying to dupe creators into a nasty power grab, or they are offering snake-oil. Either way, creators need to reject this dangerous misinformation from these technology providers.
The comment of “otherwise monetized” relates to the economic discussions I offered in my “Analyzing” article. There are times when there is a legitimate market failure where the exception to copyright known as a “compulsory license” (Levies) is the only reasonable answer. If these specific activities were being “otherwise monetized” there would be no market failure, and then the suggestion of compulsory licensing should be rejected for that activity.
This interpretation of this suggestion is, however, in direct conflict with recommendation 6 which suggests that the private copying regime be extended to all creative works, regardless of whether there is a market failure at all (IE: whether the relevant activities are already “otherwise monetized”).
19. The CCC asks the Government of Canada to incorporate the provisions of the WIPO Performances and Phonograms Treaty (WPPT) into Canadian law, and to ensure that the rights accorded performers cover all performances not in the public domain.
Russell: Ditto commentary from recommendation 2. The WPPT includes all the controversial and undefined aspects of the WCT, as well as additional clauses that are specific to these neighbouring rights holders.
20. The CCC recommends the repeal of section 68.1(1)(a)(i) of the Copyright Act, which provides for the payment of a sum as low as $100 per year on the first $1.25 million of broadcasters’ annual advertising revenues.
Russell: Disagree
Radio and television stations had a small yearly fee that they would pay rather than a percentage on the first $1.25 million of advertising revenues. There is also a provision, “(b) community systems shall pay royalties of $100 in respect of each year”. This section was specifically titled “Special and transitional royalty rates”.
I happen to agree with retaining these types of special royalty rates. Community systems, small commercial stations, amateur podcasters and other such entities should have a simple fixed rate which does not require them to spend more money than they possibly have to negotiate at the Copyright board, or file a level of paperwork that is not warranted.
21. The CCC asks the Government of Canada to provide performing artists with moral rights in all their performances, including existing performances, and that these be inalienable, unwaivable and unassignable.
Russell: Ditto for my objection to recommendation 1.
22. The CCC asks that transitional measures be included which will prohibit the possibility of any grant, waiver or assignment before the 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 the marketplace to the detriment of CCC members in the future. They try to hold onto works which were created before the change as their “reward” for this round. They then go into negotiations the next time with yet another proposal which will in the end harm their membership.
Ultimately we need to be making proposals that will benefit both creators, as well as society as a whole which benefits from this creativity. This backward-facing ratcheting has been going on for far too long already.
23. The CCC recommends the regime provided for in Section 32.5 of the Copyright Act be replaced by a notification system more suitable to Canada.
Russell: Disagree.
CCC members want activities carried out before we adopted neighbouring rights as part of our ratification of the Rome Convention to be fully retroactive. This is related to my objection to recommendation 8, where there is a need for there to be a transition period for some major changes to our Copyright Act. Suggesting that a new right only apply to activities (or even works) created after the date that the new right is created is reasonable. It may be appropriate to eradicate this type of transition in a hundred years (after all legacy copyright has expired, which could be 50 years if performances and broadcasters retain a fixed 50 year copyright), but given we only ratified the Rome Convention in 1998 it seems far too soon.
Part of the assumption of this recommendation is that we are talking only about verbatim copies being made of communicated works. I believe we need to better consider the situation where an existing collaborative work involving inputs from many different copyright holders from a variety of countries (with a variety of changing copyright regimes) needs to be considered. Should a larger International project incorporating a component of a Canadian performance or broadcast no longer be able to be sold because of changes in Canadian law? I don’t think there is an obvious answer in every case, and I believe this issue needs appropriate study including a greater variety of stakeholders than exists within the CCC.