Anti-copyright: a rebel sell?

This BLOG posting on This Magazine by John Degen opens a bit of debate between some of the "creators of the past" and the creators who are trying to build on that past.

I would welcome an open discussion with John Degen, if he is honestly interested. We can discuss some of the advantages of using business models that don't ever charge per-copy royalties at all. It will also be interesting to explain why someone who has licensed their work royalty-free under a Creative Commons license would then not want a royalty-collecting agency to be collecting royalties for these same works.

There is now a feature article on p2pnet that forms part of this conversation.

See also: Slyck

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Copyright Advocates - All the Same?

I too have invited John D to debate the issues. Personally, I keep getting proven that all Copyright advocates are out there for a fast buck and try and keep any form of art as a commodity. I keep trying to find exceptions and I'm actually trying to get evidence that proves this wrong.

I admit that Graham Henderson is merely an extreme to the debate, but he seems to be someone some people either agree 100% or not at all (at least, this has been my experience)

But yeah, I hope this opens up a sensible debate, but judging by your second comment on the posting on the other site, it doesn't exactly look like light at the end of the tunnel. :(


Anti-pro copyright advocates?

I'm not comfortable with this pro-vs-anti copyright type of language. I'm not anti-copyright, even though an Ottawa Citizen article in 2002 used that as the headline.

When compared to those who believe "if some copyright is good, more is better" I seem anti-copyright. To those who want copyright to just go away, I seem strongly pro-copyright.

I believe that copyright is to creativity like water is to humans; too little and you dehydrate and die, too much and you drown and die.

John Degen seems to believe creators are dehydrated, and I believe creators are drowning. Unfortunately the debate is not yet at the maturity to allow John and I to discuss the issues as his community is still of the mistaken belief that we want creators to die.

John Degen and I both want to retain our control over our creativity, but have very different ideas of how to achieve this. He calls what I do "giving away" as I don't charge per-copy royalties. I call what he does "giving away" as he gives up his control to a statistically driven bureaucracy (Access Copyright, Copyright Board, etc) which works well for the "superstars" but screws most creators.

Neither John Degen or I are "anti-Copyright", if you ignore his unfounded accusations for the moment. We are both trying to make a living at our creativity, and at least one of us is fighting for the right of authors and their audiences to have a full spectrum of choices of methods of production, distribution and funding.

Free/Libre and Open Source Software (FLOSS) consultant.

re: Anti-pro copyright advocates?

Hmm, perhapse I look at this whole thing from a different angle then. It's probably in part what I've been exposed to.

I personally look at the negative consequences tightening copyright has had on average consumers in the US and how there are advocates who wish to push Canada down that same road. I really dislike copyright holders simply suing fans for making a copy of something for personal use.

Perhapse what I've seen with Bill C-60 and Bill C-74 was what irked me the most. I will admit, though, that I know less about Access Copyright then I should.

I also think that because of changes in technology, what copyright should have done is change accordingly to addapt to the changing climate of distribution (namely digital distribution) Instead, it seems to have been modified to resist the changes and this is where everything broke down. It also signalled the acceleration of the trend of copyright and copyleft.

It is my knowledge that the original intent (and I think it is a good one) of copyright was to protect creators from people who make a copy of the work and sell it without compensating the original creator. Copyleft has provided the same protection, but it has updated copyright to what I think it should be today, not what it is. The only reason Copyright isn't where it should be today is because large corporations knew that the internet can replace what they are known for doing well (that is broadcasting and advertising) and they have utilised the billions they've earned over the years to change the laws to suit their interests.

I haven't studied the publishing area of these issues quite as much, but it is my understanding that they have been more lenient towards these sorts of changes compared to the Big Four music industry (plus, it's easier for authors to make money off of books then it is for musicians to earn money off of albums)

Different intermediaries are different... More on collectives...

While Access Copyright is an intermediary, just like a publisher, record label, broadcaster or a library, each of these intermediaries have their own traits and their own (and sometimes incompatable) policy proposals.

The major labels want to be able to control the method of communication between the performers and your ears, being able to explore business models that extend copyright far beyond "public performance" or mechanical copies into being able to meter, monitor and control the activities of citizens that were never before regulated by copyright. This is extremism beyond extremism.

Access Copyright (previously known as CANCOPY) is different, and is what is known as a "collective society" (See a list of Collective Societies via the Copyright Board of Canada).

You'll notice the Canadian Private Copying Collective in there, which is the collective that receives the levies on blank audio recording media. It is because of this levy that unauthorized private copying (regardless of source) is legal in Canada, which was one of the claimed reasons why CRIA lost their discovery case against the 29 filesharers. The biggest barrier was a lack of evidence, but the judges also mentioned the effects of the private copying regime on these cases -- only uploading/sharing needs authorization, not downloading resulting only in private copies.

Collective societies don't want to stop you from making copies, or require that you ask permission first: they just want to somehow track and tack a royalty fee (levy, tarrif, etc) onto any copying.

In the case of the music industry they wanted to tack a levy onto every Internet account to pay for music that is distributed online (Search for Tariff 22), although I suspect that if they were successful it would have meant even more problems with trying to then sue people for unauthorized sharing if that sharing was already paid for by a levy (which would indemnify the person sharing from a lawsuit).

There are a wide variety of different licensing models that collectives administrate, but most involve some "estimate" of how much copying is done by a specific customer which comes out to some fee they have to pay. There is then some sort of "statistic" (lies, damned lies and statistics) to figure out what works are most popular. The collective then uses this fuzzy numbers to try to get money from customers, through a bureaucracy, with some money going to "copyright holders".

Most collectives can only license works where the copyright holder has authorized them to do so (they are a member), which is often called a "repertoire collective". There is also the concept of an "extended" or "statutory" license where a collective is allowed (by the government) to collect "on behalf of" authors who have not authorized them to do so, meaning that they can authorize uses for an entire class of works without anyone having to ask permission of any copyright holder. Radio broadcast works this way where a playlist is submitted and a fee is paid, but the radio station never needed to ask permission from anyone to broadcast the music. The same for cable television which pay a government set fee and don't need permission. (there are many more examples).

While Access Copyright started as a 50/50 type of thing between authors and publishers, and its board is still made up of an equal mixture of people who claim to represent each group, I'm told that over 75% of the money going through the collective is publishers -- primarily educational publishers. With these statistics and the money comes power, and while none of them seem to want to say it publicly I've been told many times "off the record" that the author members of Access Copyright are not happy with the situation.

I have to admit to not understanding some of the lobbying work. I was recently in a debate with an Access Copyright lawyer and she kept referring to Bill C-60 as "our bill". This made no sense to me as C-60 had very little in it that would benefit a collective society, with many components of it promoting more private licensing systems which would remove the very justification for a collective society.

Bill C-60 also made copyright more complex and expensive to navigate, meaning that there would be less copying going on and thus less that Access Copyright could claim a right to collect a levy from. Are the Access Copyright lawyers really advocating positions that benefit the members of Access Copyright? I know I'm not convinced.

Lobbying, etc.

Well, all I know is that when a government is in session, the following steps occur:
1. Rich corporation wants laws
2. Rich corporation hires lobbyist
3. Lobbyist brings laws to Sussex Drive
4. ????
5. Money exchange's hands behind closed doors
6. ????
7. Bill get's tabled by governing party

That's about the extent of my knowledge is for lobbying.

As far as tracking copies and tacking a levvy on an item, it is my knowledge that Sony BMG was caught in Canada on multiple counts (4 so far) and each lawsuit cites a breach in privacy from the SunnComm technology (ok, spyware, let's be honest). I have a feeling it's not quite the same thing though. Either way, the publishers seem to be freeloading on content creators and they were recently denied from being able to just get a lot more of the rest of the pie.

Truly, the concerns boil down to the creators vs. publishers and the publishers simply get more and more by claiming that they represent the concerns of the creators when they really are just superimposing their own concerns over the creators to get what they want.

Still, with Bill C-60, it was no longer just creators getting the short end of the stick, but also the customers.

It is interesting to know that the Discovery case did involve the blank media levvy. One must wonder how many times the industry will keep getting compensated. What if all creators jumped ship and immedietly got CC licences for all their work, abandoning the big four all together (somehow all getting out of their contracts, etc)? They'd essentially still have the blank media levvy which has returns that would keep any medium-sized buisness afloat - essentially, they get paid for nothing. It probably won't happen, but it's an interesting idea.

Creators vs. Publishers

We agree that this is the problem.

In my case I am lobbying to ensure that creators are able to "skip the intermediaries", and are generally in control of what intermediaries -- if any -- are between them and their audiences.

The older groups calling themselves "creator" groups tend to include the publishers/labels/etc as being "on their side", with this leading to these legacy groups advocating for positions which help the publishers at the expense of both creators and their audiences.

The big question is: How do we get these groups to modernize to realize that the interests of these intermediaries are not compatible with their own interests.

We have to be careful, as you can see the frustration that John Degen feels. He seems genuinely confused as to why people lump his subset of the creator community in with the likes of Sony and their illegal SpyWare/Rootkits/etc. This is despite the fact that when it comes to government lobbying these groups are clearly standing alongside the mega-media content-industry corporations they are rightfully accused of being very similar to.

Note: The fact that "consumers" are under attack is nothing new. Each new "right" that authors/publishers/etc have received has been expropriated from the general public. What is interesting is that authors/creators/etc are lobbying alongside the very intermediary interests that are by far the largest reason why they receive so little monetary and other rewards for their creativity.

Free/Libre and Open Source Software (FLOSS) consultant.

Ongoing thread...

I just posted the following to the ongoing discussion. I'm copying it here so it is archived.

(Wow, these are getting longer and longer)

You have an implicit trust of the people who run these groups, and an implicit mis-trust of other people -- myself included. It interests me to know why you have these trusts if you have not on your own analysed what each is advocating?

I do not "walk it alone", and my creative work is primarily done in large multinational collaborative communities. It was this growing community that drew me into collaborative creativity back in 1992, and while I am self employed I nearly always work in large teams to provide solutions to my clients.

I realized I needed to be directly involved in copyright revision in 2001 with the possibility that Canada might import the anti new-media-creator "DMCA" type of legislation. I then looked around at the existing Canadian groups that stated they were "representing creators". Not only did I not see them as representing my interests, but I found that the policies that they were advocating would hurt my business far more than any amount of copyright infringement ever could.

I am an activist for collaborative creativity (peer production) and collaborative distribution (peer production). In the words of Sam Bulte I am a "pro-USER zealot", using the copyright meaning of the phrase "users' rights" which is primarily follow-on creator' rights.

I don't think the word "lobbiest" is a bad word if people are open and honest about who they are representing. I am likely to soon be hired officially as a lobbiest for organization called CLUE. It was previously an acronym that had the word "Linux" and "User" in it, but it is moving to becoming a Free/Libre and Open Source Software (FLOSS) education and advocacy group. I'm co-coordinator of (Getting Open Source Logic INto Governments). I am also a member of the EFF which helps protect my creative and publishing rights, as well as a supporter of Online Rights Canada. While not a group, The Digital Copyright Canada forum has also been actively supporting the community, with the most active members being collaborative authors, since we launched in 2001.

None of the groups I am involved with claim in their name that they represent an entire sector that they don't. We don't call ourselves the "Software Authors Copyright", the "Software Creators' Rights Alliance", and in doing so we don't in our very name give the finger to any software creators who have different ideas.

One of the things that has caused delay for us is that groups that by their name and claims should be representing us have no room for us, forcing us to create our own groups that then try to broaden the debate to be more inclusive.

You said: "through Access Copyright, we don't want to collect royalties for your work and distribute them elsewhere"

This is what an "extended license" or "statutory license" means. It means that a collective is able to collect royalties and authorize uses for works outside of their repertoire (IE: for creators who are not members of the collective) for uses of a class of work. Authors no longer have the ability to negotiate their own licenses with clients, and the collective will collect money from their potential clients for uses, and the author is left only with a "take the cheque from the collective or get nothing" choice.

In fact, when some Access Copyright people promote the organization (again, avoiding naming names) they talk in terms of being an "indemnification agency". They indemnify their customers such as the educational community from any lawsuits from authors, meaning that I could not sue someone for using one of my works in a way that violates the terms of my license if they have paid Access Copyright (or a similar collective who benefits from a "statutory" or "extended" license).

Are you suggesting that you disagree when a collective society collects royalty payments outside of their repertoire, for works of creators who are not members and who did not authorize Access Copyright to offer "licenses"? If so, then please talk to other AC members about this as this is the primary basis of the disagreement between different parts of the creator community on the so-called "Educational use of the Internet" debate.

In this specific case Access Copyright is trying to impose a levy on the use of any work that does not have a complex legalistic lawyer-authored (and often only lawyer readable) license agreement indicating that it is royalty-free.

Your example you wanted me to work with has built into it basic assumptions about how you want to be paid. You have chosen your business model, which is a model where you get paid "per copy". If "per copy" is what you want to charge then you are stuck with few choices: negotiate contracts as an individual, or go with a collective where you don't have to do much paperwork and hopefully just "show up in the statistics".

To understand the alternatives you have to be looking at an actual alternative. My 95% solution is one example among many. Whether I am authoring software, training or other presentation, or any other literary work, I primarily use the same model. A customer comes to me with something they want to be authored. I start with the public pool of publicly licensed works (FLOSS for software, Creative Commons with commercial derivatives allowed for other works I need to modify, etc) which might solve 95% of the problem. I will then get paid *ONCE* a fee to complete the remaining 5%. The flat-fee or hourly rate for my work is negotiated ahead of time, with full payment usually on delivery of that first copy. The results will be available not only to the customer to make as many copies as they want, but also other people in my market to build upon as part of the 95% of some solution their customer wants.

In order for me to get adequately paid for that 5% I rely on the fact that most customers will benefit from no longer having to count or pay for copies. There is no transaction costs, which is one of the reasons I believe all micro-payment systems for collecting royalties will fail. For most works that are not of a large size the cost to administer the micro-payment system is far larger than the cost of the work. They can also share the knowledge with sister organizations, something that works well with NGOs where I can often get a number of clients to collaborate on the payment of my work.

If a collective society is already levying a potential customer, and their levy will not decrease if I offer them royalty-free license, then the possibility of me getting paid goes out the door and the project is no longer possible. This is the same problem for most Open Access environments, where collectives are eating up all the funding for these projects and standing in the way of the best solution to the "copyright infringement" problem : pay once and never charge per-copy.

You said: "The professor prints off his download, makes 37 copies and distributes them at the next class as a reading assignment. Is that not clearly a commercial use?"

Most lawyer believe that the supreme court clearly indicated that a teacher, librarian, or other such person can "step into the shoes" of their patrons and students. If it is fair-use (or licensed) for each of those 37 students to download and print their own paper copies, then it is also fair-use for the teacher to make 37 copies to hand out to those same students.

I fully support the supreme court on this.

If you wish to charge students per copy (or teachers on behalf of those students) then you can do so on the Internet, but not on the "no membership required" part. In this case you need to have a "membership required" service where the members then obey the terms of service. If the terms of service say that each copy has a cost, whether electronic or a physical printout, then that is a contracting issue between the service provider and the member.

This is not reasonable to charge royalties from the "no membership required" part where is is quite reasonable to fully expect that if you can anonymously "browse" the page then you can anonymously "print" it. If 37 students in a classroom can anonymously print something, then the teacher (or librarian, or..) can "stand in their shoes" and print for them.

Suggesting that royalties should be able to be collected on the anonymous "no membership required" part of the Internet goes back to the whole question of imposing the "one true business model" on everyone. There are very clear technical and legal ways to indicate when royalties are expected, and putting material in the publics face in a way that they legitimately believe it is "free to access" and then charge them is not socially acceptable and should not be supported in the law.

On the Internet accessing and making a copy is the same thing, at least according to the lawyers who consider private copies to be copies regulated by copyright. Some form of unregulated "private copying" of all digital works must be assumed in order for digital copyright to function at all similar to the anlog world where we did not suggest that the author had the right to "authorize" whether the person used eye-glasses or not (reflections, modifications of the image in-transit from the page to the retina, etc, etc).

This legalistic confusion is one of the many reasons why we as creators and our audiences should not be allowing the lawyers (whether Access Copyright lawyers or CIPPIC lawyers) a free-ride to claim to be "representing" us . With few exceptions (and I have met many of these wonderful exceptions) the legal community has not been advocating copyright policy that is able to be respected, meaning there is a growing amount of unintended infringement caused by the fact that it is nearly impossible for the vast majority of people (including many lawyers) to know when an activity is infringing or not.
Copyright that requires a team of lawyers to navigate and benefit from is clearly not copyright in the interests of creators or users -- the only relevant parties in the copyright debate.

Sam Bulte...

How fitting would it be to label the whole Sam Bulte incident as:
"Sam Bulte - The Advocate That Launched a Million Blog Postings"?