The two branches of the creators' rights movement.

As an independent author of software and non-software literary works, it should be obvious that I come at issues of copyright from a creators' rights point of view. The problem is that there are two very different, and often opposed, interpretation of these rights from within the creator community.
I believe that one of the best articulations of creators rights comes from the United Nations Declaration of Human Rights, article 27 which has two parts:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2)Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Creators need a balance between the right to create and the right to receive rewards from past creativity, with the only beneficiaries of an over-protection of the second part being non-creator copyright holders (media and content intermediary corporations).

Unfortunately, it is these copyright holding intermediaries who have thus far dominated the debate, along with specific "creator" organizations which seem to be under the impression that their ability to receive material rewards from their creativity is tied to the interests of these intermediaries. While we have treaties such as those at WIPO which seek to harmonize the protection of the second part, we do not have any treaties which adequately protect the first part.

While a balance is ideal, looking at extremes helps put things in context. If we protected the first part without protecting the second, we would still have vibrant creativity but this creativity would either be amateur or motivated other than through copyright protection.

The business models that I use currently would still work, making use of trade secret law to protect my work until someone has paid me for that "first copy". With most of my material interests satisfied, it is really my moral rights that I would be concerned with. I am dependant on people knowing what I have done in the past in order to convince them to hire me in the future.

If we protected the second part without protecting the first, we would have companies charging fees for existing creativity. Past copyright holders, most likely only corporations over time, would not have any motivation to authorize new creators to build on the past, and thus there would not likely be any new creativity.

Of those two extremes, I believe that would rather give up copyright entirely than give up the right to build on the past and create new works.

Creators are also divided on which of these two parts of their rights is under the greatest threat. When I look at many of the current proposals to amend copyright in favour of the incumbent non-creator copyright holders, I see this as a great threat to my ability to participate in culture. I also look at the over-centralization of existing media and content companies, something PWAC seems to be aware of, I see there being a need to reduce the excessive power that these companies have -- with recent copyright proposals only solidifying this power.

When we discuss things such as DRM and the A-Hole debate (closing the so-called "Analog Hole"), we are effectively taking out of the hands of private citizen the tools to produce, edit, distribute and playback creativity. I can think of no possible thing, real or imagined, that could ever be a greater threat to creators' rights!

There was recently a discussion started by John Degen, Executive Director for the Professional Writers Association of Canada (formerly the Periodical Writers Association of Canada). While this is a group that promotes the interests of freelance authors, their past submissions to the government on copyright policy are largely opposed to my own submissions.

John labelled those who disagree with their policy proposals the "copyleft" crowd, suggesting that we are someone opposed to creators' rights. The reality is that we are equally creators fighting to protect creators' rights, but disagree strongly on what the greatest threats are to these rights and thus what proposals will help rather than hinder us.

To see the differences of direction, you can compare the PWAC submission to the 2001 copyright consultation with my own submissions. PWAC also signed on to the join Copyright Coalition of Creators and Producers submission.
Here are some key areas of disagreement.

  • Technical Measures: PWAC supports legal protection for technical measures used by "copyright holders" (really their electronic publishers), and I am firmly opposed. As detailed in other articles, technical measures are not capable of protecting copyright, but can enforce contracts in technology for those who are willing to obey copyright. A contract can be legally enforceable, legally unenforceable, or even illegal, with technical measures already being abused to obscure unenforceable or illegal contracts.

While PWAC expresses concern about the imbalance between the negotiating power of freelancers and the larger media companies, they seem to be unaware of the far greater imbalance that DRM will create. In a world with fully deployed DRM, independent publication will not be possible and the only way to reach larger audiences is to accept whatever handout the DRM-controlling electronic publishers offer.

More critical to my own business is the fact that technical measures which presume that the owner of the computer is the attacker are fundamentally incompatible with Free/Libre and Open Source Software. FLOSS protects the owners right to run, copy, distribute, study, change and improve the software, and can not implement any technology that tries to take control of a computer away from its owner.

Legal protection for technical measures is a threat to my ability to make money with my creativity, and in my opinion is a threat that far exceeds the theoretical harm that other authors may feel from online copyright infringement.

  • Compulsory licenses: PWAC supports compulsory licensing schemes, while I support granting authors the freedom to choose between a full spectrum of methods of production, distribution and funding of creativity. While I support voluntary licensing schemes, where both the author and the potential customer are able to choose to negotiate with a collective society, I oppose the situation where the government steps in and imposes this on authors.
  • For both my software and non-software literary works I use alternatives to royalty-collection to pay for the work. I get paid up-front once for my value-add to the existing publicly licensed (FLOSS, creative commons) or public domain works, with the results of my work also being publicly licensed. When a collective is imposed on my potential customers, my ability to negotiate a fair rate for that up-front fee (with the assumption that they would have royalty-free use after) is eradicated.

  • Making available: PWAC supports the creation of an additional layer of copyright, while I only support making available if it is a replacement to the existing regulation of copies. PWAC seems to believe that this additional right would result in an additional revenue stream for writers, where I believe that adding new rights only complicates copyright, and that the primary beneficiaries of increasing complexity of copyright is lawyers and not authors.
  • PWAC seems to believe that this new right will benefit them in contact negotiations with existing publishers. I don't see how this is possible, and any changes to the copyright act will swifly cause changes in the contracts with publishers, with this right signed over to the publishers in the same way that existing rights are signed over.

    I believe that the only way that existing publishers will ever offer fair terms with freelancers is if there is massive competition with alternative methods of distribution. PWAC should be actively promoting and supporting, not seeking to cripple, alternative methods of production, distribution and funding.

  • Increases in statutory damages: PWAC recommend increases in statutory damages, while I believe that statutory damages are already excessive. We need to differentiate commercial copyright infringement (IE: copyright infringement by companies such as current intermediaries or other authors), and de-minimus non-commercial copyright infringement such as unauthorized sharing by private citizens.
  • When a commercial company with access to legal help infringes copyright it is a different situation from when a private citizen infringes copyright. The copyright act is already excessively complex, with copyright lawyers often disagreeing on the interpretation. Until and unless copyright is radically simplified, it is not reasonable for private citizens to understand how to obey it.

    PWAC believes that copyright holders should be able to sue in a Canadian court, regardless of where a contract or copyright violation may have occurred. I am curious if believe that freelance journalists who write about or republish controversial cartoons depicting Mohamed should be extradited to stand trial in the middle-east? Copyright is and should remain a domestic policy issue, and if an alleged infringement happens in a foreign country it should be obvious that a copyright holder should need to enforce the law as it exists in that foreign country, in the courts of that foreign country.

  • Claim and censor: PWAC supports a "notice and take down" system, and even then does not want to absolve this intermediary from any liability. I believe that only the copyright infringer, the individual/company who authorizes a work to be published online, should be liable for any infringement. While ISPs should be compelled to acts as a communication intermediary in situations where the publisher is not already known to the alleged copyright holder, such as in a "notice and notice" system, intermediaries such as ISPs should be understood as (and be legally required to act as) a common carrier.