Is there a copy left vs copy right?

(First published on IT World Canada blog)

When I first heard a group outside ofthe Free/Libre and Open Source Software (FLOSS) or Creative Commons movement use the word “CopyLeft”, I thought they were simply using the term incorrectly. (See: Independent authors just wanting a little respect… from fellow creators andcollective societies from 2006)

In the FLOSS movement it means something similar to ShareAlike with Creative Commons: the license says the copyrighted work can be freely shared (without additional permission/payment) as long as any derivatives are equally shared. The licensing model is not opposed to copyright in any way, and focuses on material rewards in the form of additional creative works rather than royalties.

I continue to hear the term ”copy left” used, sometimes by those who consider it a positive term, but more often by people who are trying to use the term in a derogatory manner. In this context the term is not being used to reference to a licensing model, but a political philosophy.

This suggests that the term ”copy left” references a liberal creators' rights philosophy, and the “copy right” refers to a conservative creators' rights philosophy. It is only a coincidence that those on the “copy left” also support CopyLeft style licensing.

One thing I have noticed is that in politics one isn't necessarily conservative or liberal in all areas of their lives. I consider myself a social liberal, but fiscal conservative. On environmental policy I consider myself a conservationist, which could be considered a form of conservative compared to a person who is liberal and thinks that the resources of the planet are infinite.

In order to be as unbiased as possible in finding meaning in the terms copy left and copy right, I think a encyclopedia definition is a good start. Wikipedia:Conservatism “Conservatism (Latin:conservare, “to preserve”) is apolitical and social philosophy that promotes the maintenance of traditional institutions and opposes rapid change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism and seek a return to “the way things were”. Wikipedia:Liberalism Liberalism (from the Latin liberalis, “of freedom”) is the belief in the importance of liberty and equality. Liberals espouse a wide array of views depending on their understanding of these principles, but most liberals support such fundamental ideas as constitutions, liberal democracy, free and fair elections, human rights, capitalism, free trade, and the separation of church and state.

So a conservative creators' rights advocate would be one trying to maintain traditional publishing and distribution institutions, and oppose to embracing the rapid changes in business models and methods of communication that is sparked by new communications technology.

A liberal creators' rights advocate would be uninterested in maintaining traditional methods of production, distribution and funding of creativity, but would be espousing a full spectrum of methods.

With this as a context, many of the conversations I have had over the past 9 years that I have been involved in copyright policy start to make sense. While any individual creator may position themselves anywhere on that political spectrum, understanding that spectrum helps to make sense why two individuals fighting for creators' rights may find themselves disagreeing with each other more than they disagree with someone who isn't fighting for creators' rights.

(Note: Apologies to the users' rights advocates who may be reading this. As I am a creators' rights advocate, this is my focus. A similar analysis can be done with users' rights advocates, with some of the educational community focused on education institutional exceptions fitting closer into the conservatism definition).

So, what am I? Anyone who has read articles I have written would know I am a liberal creators'rights advocate. I hadn't realized this until recently as I thought the term “copy left” was being used in a derogatory way by fellow creators' rights advocates, but I now feel proud to be saying this.

I believe in a full spectrum of methods of production, distribution and funding of creativity that includes historical institutions, but that is no longer dominated by them. In some cases, such as the major label recording industry, major broadcasters/BDU's, and major software manufacturers, I am rooting for what I hope will be an inevitably fade from their historical dominance. I consider this to be a positive evolution that will mean better material and moral rewards for individual creators, who will finally after so long be able to make their own decisions and choose their own destinies.

None of the policy proposals I have made for copyright would remove traditional options from those creators who wish to chose those options. I wish that all creators could agree to policies that would allow all of us to co-exist and become successful using a full spectrum of options.

I recognize that there are other creators, often closely associated with long standing creator groups, that strongly disagree with this viewpoint. Like other political philosophies that have a spectrum of beliefs, those with opposing beliefs will tend to have opposing policy proposals or even different criteria for success. I would consider it a failure of copyright reform if what it did was protect the incumbent institutions from change, rather than protecting the interests of a wider range of creators.

With these tools in hand, we can go through some sample organizations and see where their policies and talking points put them on that political scale. Please beaware that individuals within these organizations may have different or even incompatible political philosophies from the executive, so I can only speak about the people claiming to be spokespersons or the official policy of the organizations.

FairCopyright For Canada

Liberal: While my impression is that the most active participants in thisgroup are creators' rights advocates, they are liberal enough to havecreators and non-creators all together discussing in the same group.

CLUE: Canada's Association for Open Source

Liberal: Like Fair Copyright for Canada, this group is a mixture of people whoconsider themselves primarily authors of software and those who arestrictly software users. What brings them together is an interest inthe usage of software that uses liberal licensing terms.

Canadian Music Creators Coalition

Center-left: While they advocate for stronger composer and performer collectivesocieties, including more compulsory licensing schemes, they alsootherwise endorse a full spectrum of options outside of thoseactivities covered by the compulsory licensing.

Creators'Copyright Coalition

Conservative: All it takes is a quick look at the articles on their site to seethat they are focused on maintaining existing institutions andbusiness methods. The individuals I hear using the term “copyleft” to refer to some “other” tend to be activemembers of this coalition, so I can only assume that they would behappy to be acknowledged to be creators' rights conservatives.

Canadian Recording Industry Association

Conservative, by requirement: I don't believe that CRIA has a choice but to promote conservative copyright values as they are one of those traditional institutions that is under radical change. (See bottom of: Differentiating allies and opponents in the Copyright debate) Clearly in order for them to survive they need to somehow return things to “theway they were”. I think they have picked bad allies in this, but that is unimportant for trying to place them on a policy spectrum.

Balanced Copyright for Canada

Conservative:While we are only slowly learning who is behind this group, theirpolicy proposals are clearly conservative in nature. It is alsoimportant to recognize that many individuals who have been seen asspokespersons for the Creators' Copyright Coalition have endorsed theviews of this group, further suggesting they are pushing compatibleconservative creators' rights values

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There are some individuals worth noting.

While on a scale from a copyright minimalist to copyright maximalist I would put Michael Geist in the centre, on this scale I would put him more center-left. He recognizes a full spectrum of creators, but is not as quick as others to dismiss the relevance of some of the traditional institutions. He has been instrumental in convincing me to no longer reject WIPO as an institution, and to instead look at ways that existing treaties can be interpreted more centrist, and a possible future WIPO that itself becomes more centrist. Maybe over time Mr. Geist will continue to move me closer to the center-left.

Interestingly, some conservative creators' rights advocates do not even recognize Michael Geist as a creators rights advocate as he is a lawyer. (His book ignored) These same people will recognize and promote lawyers such as James Gannon or Barry Sookman whose clients and policies are clearly conservative.

When I first met him years ago I would have put John Degen, then head of the Professional Writers Association in Canada, on the center-right. I believe over time (and whenever a bill is tabled) he tends to focus on more conservative creators'rights views. There has been quite a bit of heated discussions between him and people associated with Fair Copyright for Canada and its chapters. In various discussions he has been quick to label anyone even slightly to the left of his views as representing the ”copy left”, and I always get the feeling the term is intended to be derogatory.

Highly successful Canadian science fiction author and creators' rights activist Cory Doctorow is on the center-left-left. While he still makes sure he keeps his publisher in business, he is one of the most cited examples in fiction literature of someone being financially successful using more liberal licensing models and promoting a full spectrum of options to fellow authors.

Rocker MP Charlie Angus is clearly center-left, focused on independent creators while also promoting institutions like composer and performer collective societies (including tabling a bill to extend the private copying levy to devices). From the conversations I have had with other composers and performers over the years, I believe his views represent a majority of composers and performers. These views are often in obvious conflict with those expressed by the recording industry, the other of the 3 copyright holding groups in the music business.

Charlie Angus is the current Heritage critic for the NDP. The past Heritage critic of the NDP, Wendy Lill, was one of the most conservative creators' rights MPs I've run into.

As Heritage Ministers I would put both James Moore and past Minister Sheila Copps on the conservative side. The fact that one was a Liberal cabinet minister and the other a Conservative cabinet minister doesn't matter. It appears to be considered part of the mandate of a Heritage minister to protect existing institutions, including protecting them from competition from creators exploring new ideas.

I do not believe that conservative vs. liberal creators' rights policies map into the Conservative vs. Liberal vs. NDP parties. My impression is that current Industry Minister Tony Clement is center-right, far closer to Michael Geist than to people like John Degen, James Moore or myself.

Some example policies?

I believe that traditional copyright itself is centrist in nature, not giving specific favour to traditional institutions or to new entrants exploring new ideas. I don't, however, believe that all of C-32 fits within traditional copyright.

CollectiveSocieties? While the language may seem left-of-center from traditional politics, I think that the basic concept of collective societies would be center-right. Where things sway from the center is when we diverge from voluntary licensing schemes. When collective licenses are voluntary to both creators and audiences, these entities provide a valuable catalogue licensing model that makes licensing easier for everyone involved. When collective licensing becomes mandatory to either creators or audiences, then they become an institution that removes rather than grants creator choice and slides to the right. One of the issues where I argued strongly with people associated with Access Copyright, a collective society for written works, was on an extended or compulsory licensing scheme for educational works which would effectively rule out any alternative funding models for educational works.

Access Control TPMs in Copyright? I really don't know where to fit this. It is a radical change to the contours that copyright law has had for hundreds of years, given Copyright never before contemplated the concept of ”access”. Once copyright regulates access, it makes the existing list of activities regulated by copyright largely redundant. The concept of access had always been left outside of copyright to other non-copyright areas of law. It is also questionable whether copyright law protecting access controls is compatible with the Canadian Constitution given access control should be recognized as more of a provincial (e-commerce, contract, property) issue, not federal copyright. Looking towards things like the constitution and traditional definitions of Copyright may be something you would expect a conservative to be saying, but it has been the “copy left” that has been opposed to access controls being added to copyright, and the “copy right” has been active proponents.

It may be that since TPM policy rightfully falls outside of copyright policy and into other areas of law, that the copy right vs copy left political dynamic cannot be mapped. This may be yet another warning about this area of policy, and why TPM policy should be added to the right laws and not to copyright law at all.

I invite people to think about other policies and where they may fit. Sometimes it will help make sense out of some of the policy debates between creators' rights advocates. Sometimes it may expose a policy where there may be some other dynamic happening that isn't consistent with those political values.

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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.