Exposing the extremists in the Canadian copyright debate

As an author in the copyright debate I believe it is important to expose some of the extreme positions that exist, to try to convince Canadians and our government to find a more reasonable middle-ground. We are bombarded by media reports about the "harm" of those who copy or redistribute works in ways that infringe copyright, but I believe the other extreme represents a far greater threat to authors' rights. The other side of the debate we don't see accurately reported are those who want to "maximize" copyright in ways that will only benefit past creators and incumbent (often foreign) corporate copyright holders, and who want to remove freedom of choice from authors and audiences about competing methods of production, distribution and funding of creativity.

Reading chapter one of "In the Public Interest: The Future of Canadian Copyright Law" I read a quote from Roanie Levy, then director of Legal Affairs and Government Relations for Access Copyright.

"[p]hotographers and freelance writers will have websites that they will use to expose their works. They want it to be publicly accessed as widely as possible. They don't want to put TPM, they don't want to put password protection, because that would limit access and that is not what they want." (Remarks by Roanie Levy, Standing Committee on Canadian Heritage, 37th Parliament, 2nd Session, Evidence (29 October 2003)

Lets translate what he is saying.

He believes that copyright holders should not be able to use simple technology to indicate whether the material is royalty-free or not. The Internet has inexpensive ways to indicate whether material costs money (technical measures such as passwords) or whether some minimum is offered royalty-free (no membership/password/etc). He believes that audiences should be given no choice about accessing materials which cost money, meaning that Access Copyright will be in the pockets of all Canadians whether they want them there or not.

I have a hard time differentiating this dishonest behaviour from "pick pocketing" or other forms of theft, given the only choice that audiences seem to be given is whether they go onto the Internet or not. This is like blaming the victim of a "pick pocket" by suggesting that their alternative was to not go out in public.

Internet-era authors seem to need to clarify the obvious, which is that it is not reasonable to expect to collect royalties from audiences that are by definition unknown in the "no membership required" parts of the Internet. We also seem to need to educate older authors about the methods of indicating their choices from the full spectrum of production, distribution and funding that the Internet helps facilitate. The problem is that far too many older authors are content with the way things used to be in older media such as publisher-centric publishing or broadcasting, and seem to be fearful or otherwise uninterested in learning about new media opportunities.

One way to explain the understood minimum authorization on the "no membership required" part of the Internet is to reference the closest Creative Commons license, which is the Attribution-NonCommercial-NoDerivs 2.0 Canada license. This means that royalty-free copying and distribution is authorized, as long as it is clear where the material came from (no hiding the source in any way), that no money is being charged (you can't just publish it in your own book), and no changes are made. This is the minimum, and if anything more is authorized then a copyright license is needed, preferably accompanied by "computer code" like the Creative Commons licenses so that searching for more liberally distributed works can be automated.

David Fewer, legal council for the Canadian Canadian Internet Policy and Public Interest Clinic (CIPPIC), explains the issue in this way:

"We don't disagree with the premise, here - copyright holders shouldn't be forced to give away their work for free. But nothing about the Internet forces a copyright holder to give away content for free. If a publisher doesn't want Canadians to read a work without paying for it, then that publisher should restrict access to the work through secure payment tools. That's the beauty of the 'net - it already gives copyright holders all the tools they need to protect themselves."

I wrote in an earlier article titled "Excess Copyright? Towards a full spectrum of business models for published works" why it should be understood as common sense that there is an implied license that covers this minimum. If we were to assume otherwise we would have to assume that services such as Google and Archive.org are "pirates", rather than an important, desirable, and well-understood features of the TPM/password free parts of the Internet.

The anti-author extremes are not limited to dishonest campaigns against the full spectrum of choice available on the Internet. While the limited scope and term of copyright is necessary to protect the rights of future authors and the public interest, an Access Copyright board member named Christopher Moore , who claims to be a representative of creators rather than publishers, attacked the whole concept of fair dealings on his website.

Pass the word: Canadians deserve a Copyright Act based on principles of copyright, not on shopping lists of special conditions for special groups. That, and a Copyright Act without exemptions. Now that we have a comprehensive network of copyright collectives, legislated exemptions for use of copyright are unnecessary, because collectives can provide users access to anything they need under fair, efficient, and negotiable conditions. Exemptions simply undermine the smooth working of copyright systems. They encourage costly battles that make copyright too expensive to administer. (http://www.christophermoore.ca/accesscopyright , accessed October 5, 2005)

It is in fact section 29.1 of the copyright act, fair dealing for the purpose of criticism or review, which allows me to quote from his website. Allowing me this type of quoting does not diminish his authors rights in any way, but is a protection of my rights as an author. In Mr. Moore's world I would only have been able to quote if I paid him money (or more precisely, Access Copyright), meaning that being an author would only be possible for the already rich. While this may seem a satisfactory situation for authors who are near the end of their careers and have the tunnel vision to only be concerned about extracting rents on past creativity, it is an offensive situation for younger authors who need to have their right to participate in culture protected from this extremism.

It is interesting that Mr. Moore claims that copyright reform should not be a shopping list of special conditions for special groups, given that Access Copyright is one of the most extreme special interest groups in the debate. Copyright is an exclusive right granted to the author to do certain things, including to right to sell, collect royalties, license under a full spectrum of options, or entirely give-up these rights. What Access Copyright is asking for is an exception to that general rule in the form of a government imposed statutory royalty-collecting license which allows them to remove freedom of choice from authors and audiences.

Pass the word: Canadians deserve a Copyright Act based on the principles of copyright, not on shopping lists of special conditions for special groups such as collective societies who are only administrative bodies for a very narrow business model option. Canadian law must protect a full spectrum of methods of creation, distribution and funding for authors, including options that are competitive to those of collective societies. Audiences should have choices in a free market, allowing the market rather than the government to decide business models that will be successful. Expensive lawyers and complex legalistic agreements should not be necessary where cheaper "implied licenses" or easier to understand technological ways to indicate the authors intent exist. The limits to the scope and term of copyright are necessary to protect the ability of future creators to build on the past without excessive control by past creators, as well as to allow audiences the ability to access works under fair terms that make copyright reasonable and easier to understand and respect.