CBC Spark: Fan fiction, the "remix culture", and the entirely new copyright debate

This week's episode of Spark includes a short interview with Daniel Gervais on the legal implications of fan fiction and remix culture. Nora also lets us know that the next episode of Search Engine will be dedicated to the topic of Copyright.

As I have heard him say in the past, Mr. Gervais gets at the core of the current copyright debate which is that copyright law for hundreds of years only regulated industrial activities. Since the mid 1990's we now have a situation where private citizens can afford to own their own tools capable of producing and distributing content. This means we have an entirely new set of questions society needs to address.

Where do you stand on these critical questions? Should copyright law protect industrial producers from competition from individuals? Should this technology be taken out of the hands of private citizens, with any technology that allows owner control or has "user serviceable parts" made illegal?

Ask those people who are supportive of ratifying the 1996 Internet treaties whether this is really what they are intending to do. Should Canada go back to WIPO with an entirely different vision, one which sees new technology being in the hands of private citizens as an asset rather than a threat? Should Canada not only never ratify the 1996 WIPO Internet treaties, but should our negotiators be tasked with pushing a new treaty that would reverse the harm of that treaty and head in an opposite direction?

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Personally, it seems that

Personally, it seems that one of the problems we're facing is that technology and society are moving too fast for traditional processes for policy change. It's unfortunate that Parliament was handling the introduction of the bill the way it did (although it shows they may be a bit out of touch with the very people they're supposed to be representing).

10 years is a long time in computer terms, but let's not throw out the baby with the bathwater with the WCT. Parts of it need much work, but it's about more than just TPMs ;)

I see no baby in the WCT or WPPT!

I am very curious. You have seen my summary of the WIPO Internet treaties. What in it do you think is a "baby"? All I see is dirt, nothing of value to creators.

You can't pick-and-choose articles with treaty ratification. If there is *anything* good in the WCT (which I haven't seen), then that policy can be implemented separately. We still need to reject the WCT (IE: never ratify it) if there is a single thing in the treaty we disagree with.

By the way, there is a difference between being slow, and running backwards. Canada having a 1997 Copyright act in 2007 isn't that bad. Canada implementing the WCT and WPPT with the goal of heading us back towards 1987 or 1957 is a problem.

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

Dirt vs soil

But your concerns seem to be its impact on private, non-commercial activities, not public, commercial activities. This is about implementing the WCT in a way that allows creators adequate protection of their works from being exploited and users sufficient protection to access and use the works. Although I share your concerns that the folks in government are probably not proposing a balanced change to copyright, I don't think it's impossible.

Re: photography. I totally agree that there are issues with non-commercial photography (stock photography and things like family snapshots) and identifying photographers. We need to find a way around those issues without keeping commercial photographers from having the same rights as other visual artists. And the problem of identifying photographers is a social and administrative one, not one of copyright itself.

Re: TPMs. From talking to other creators, I can confidently say that none of us (that I know of) want the draconian copyright doomsday that users are lobbying to prevent. Creators want their work to be accessible and to access the works of others--- but creators also need reasonable protection of their copyright. Frankly, I think it's a matter of implementation into business models, not one of copyright. I recognize that there are flaws in TPM technology, but aside from rootkits *cough*Sony*cough*, don't we want those flaws to allow us to access works for legal and legitimate purposes? Many of the complaints I've heard about TPMs are in how the technology is being used by companies disseminating work, not in what the actual creators want policed. The interests of the creators and the disseminators are not always the same, and the creators should not be punished for what the disseminators have been doing.

Are you confusing "copyright" with "WCT"

Copyright is about the things you mention. The WCT is about specific proposed changes.

Photographers largely already have the same rights as other visual artists. The commissioned photography section is really the only area of difference, given visual artists don't have 'film' which can be owned by someone else (The Niagara falls picture scenario, which we must deal with outside of the false "same copyright" rhetoric!).

I'm not opposed to getting rid of the commissioned photography aspect of copyright, but this is entirely separate from any question of WIPO Internet treaty ratification.

The logic behind any treaty is this: If there is any single thing in it that you don't like, then you have to reject treaty ratification. Article 22, the "No Reservations to the Treaty" clause, makes this explicit. Ratification means legal obligation to implement every aspect of the treaty, with the ability of other countries to sue you for not complying as much as other treaty members want you to.

It is quite possible that a "not that bad" bill can be passed, and Canada ratifies these two treaties, only to be brought to a tribunal by the USA in the future for not implementing the treaties the way they (the -- um -- authors) understood them.

Canada is quite free to independently modify our own legislation based on ideas we think are good (IE: clarifying liability for on-demand communications to the public by telecommunications). Rejecting WIPO treaty ratification does not mean we reject all the concepts within them, just that we reject any concept within them.

"but creators also need reasonable protection of their copyright"

I agree, but that is a matter of law, not of technology. The controversial abuses of technology we are opposed to do not offer additional protection to creators. In fact, it provides additional incentives for people to infringe your rights, and directly infringes your ability to control the tools necessary to create and distribute your own works.

While there are ways that technology can help copyright holders, the anti-circumvention concept has become synonymous with the two-locks of DRM (A lock on content which is anti-competitive, and a lock on devices which is anti-property/privacy/etc). The only way we can avoid this problem is to not mention technical measures in the copyright act at all, and instead protect the legitimate uses of technology that happen to be generic enough that they are not only useful for copyright holders.

As an example, contracts are provincial jurisdiction (As are most of what is called paracopyright, making anti-circumvention a constitution question). We need to enhance provincial law to adequately protect digitally encoded and digitally signed contracts.

We also need to clarify questions around encryption keys. There are many times as part of a contract or license with you I give you a decryption key to use. If you share that key with others there need to be clear legal consequences for you, above and beyond any additional laws (privacy, copyright, trade secret, etc) that you may be enabling the other people to violate.

None of this requires WIPO Internet treaty ratification, and in fact properly protecting these rights is easiest if we don't ratify given the harmful unintended consequences of these mis-designed treaties.

"I recognize that there are flaws in TPM technology, but aside from rootkits *cough*Sony*cough*, don't we want those flaws to allow us to access works for legal and legitimate purposes?"

You are going to need to translate this to English. I have no idea what you are trying to say here.

TPMs, as they have been understood in the context of the WIPO Internet treaties, does not allow us to access more works. These TPMs restrict access, not enable access. The claims to the contrary are simply distractions by special interests who do not have the interests of creators in mind.

I realize that there are some copyright holders claiming that they won't make their works available publicly without these abuses of TPMs. Our answer must be: so don't make them available -- that should be your legally protected choice. These copyright holders will need to get over their fears of modern communications technology on their own, and recognize that the new digital marketplace isn't as scary as they have been told. Eventually they will either make their work available legitimately, or they won't make much money at all.

They should have, and already do have, the tools to sue people who make their works available without their permission.

There are some copyright holders (Lobbiests for CRIA like Barry Sookman) who claim that these abuses of TPMs enable new business models, but these business models are built upon violating competition law and infringing IT property rights, an intangible form of 'theft'. These "new business models" should not be legalized or legally protected.

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

I shouldn't try to post things at 6am...

Yes, I always forget about that pesky Article 22. Formal ratification process aside, I would say that the biggest thing from the treaty that needs more work are 11 & 12.

"Rejecting WIPO treaty ratification does not mean we reject all the concepts within them, just that we reject any concept within them."

Agreed. However, from the user discussions I've seen on the issue, not everyone is treating the treaty that way.

Re: "I recognize that there are flaws in TPM technology, but aside from rootkits *cough*Sony*cough*, don't we want those flaws to allow us to access works for legal and legitimate purposes?"

Sorry...it was very early in the morning and I forget that you're not a mind-reader ;). I was speaking to the fact that TPM technology is not foolproof, and that it digital locks are often hackable.

Personally, I would love to get a group of creators together with a group of techies and get all this hashed out. It seems we're attacking the issue from two sides and that we should be able to meet somewhere in the middle.

On flaws in TPMs

I think that's why C-60 was generally regarded as "not too bad", because it criminalised breaking TPMs only for the purposes of infringement (all from memory, I'm afraid). As opposed to the DMCA, which seems to criminalise even talking about how to break TPMs, regardless of intent.

There are many problems with TPMs as a concept, though, regardless of whether they actually work. For example:
- they are used to restrict competition (try switching to an iPod after buying content for your Zune for a year)
- they are used to assert rights not granted by the Copyright Act (e.g. "the right to decide which devices you can use to enjoy the content you bought")
- they usually interfere with my tangible property (I want to play the DVDs I bought in Europe on my Canadian DVD player)
- they make it harder for people to exercise those vital "fair dealing" exceptions (e.g. blind people using screen readers for e-books, people wanting to use excerpts from DVDs for commentary, etc)
- they can cause things you thought you bought to disappear altogether (e.g. Google video)

Some of these are why you see people arguing for "protection from TPMs".

Of course the C-60 approach, while "not too bad" is also pointless. If you only criminalise breaking TPMs for the purposes of infringement, the infringement would already be illegal anyway - do we really need to be able to say that people are guilty of two things ?

TPMs are strong when used correctly, weak when used incorrectly.

Sorry...it was very early in the morning and I forget that you're not a mind-reader ;). I was speaking to the fact that TPM technology is not foolproof, and that it digital locks are often hackable.

Please don't equate the effectiveness of an abuse of a TPM with the effectiveness of a proper TPM. When used correctly, for instance, modern cryptography is very strong: you really do need the decryption key to unlock the content. Brute force attacks are always possible, if you are willing to run massive computers for decades.

When you try to use this identical strong technology in a "DRM" it will by definition be weak, with circumvention happening in minutes to days.

The reason? In order for content to be useful to an audience you need to distribute both the encrypted content and devices which contain the keys into peoples private homes. It will always be easy for a technologically literate person to extract those keys, unlock the content, and then work with the content as if the "DRM" never existed.

This is not a flaw in TPMs, but a fundamental flaw in the concept of "DRM" -- and one that can never be solved. The snake-oil salesman promoting DRM know this and have ulterior motives (creation of a platform monopoly). They are selling their wares to people who aren't technologically literate enough to know that "DRM" can never be effective at its alleged goal.

The only way the technies and non-techie creators can ever come together is if the whole concept of "DRM" (The two locks form we are opposing) is dropped entirely. There is no possible middle-ground that involves circumventing competition policy and property/privacy/etc rights for the sake of a lack of technological knowledge on the part of those creators asking for "DRM".

Any real policy needs to be based on science, not science fiction.

As mentioned, there are legal tools at a provincial level (e-Commerce, contract law, etc are provincial jurisdiction in Canada) which would be helpful to anyone conducting business online (including copyright holders). This is where the conversations need to happen, so that we can offer effective tools (technical and legal) to fellow copyright holders, rather than them continuing to be confused by snake-oil salespeople pushing things that are always ineffective.

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