*Existing* Copyright protects writers' livelihoods, so why the call for radical change?

The following was submitted as a reply to Copyright protects writers' livelihoods, by John Degen.

John Degen is correct that any discussion of changes to Canadian copyright brings out the usual suspects. I am a software author who has spent much of my volunteer time since the 2001 copyright consultations talking with fellow independent creators about the direction of proposed legislative changes, and a very different direction that would be beneficial for creators.

John suggests that current Copyright law doesn't address modern issues, and in some ways we agree. The most recent major overhaul of Canadian copyright was in 1997 with Bill C-32, tabled by then Heritage Minister Sheila Copps. In December 1997 she signed the highly controversial WIPO Internet treaties to indicate interest, but clarified at the time with bureaucrats that signing would not create any obligations for Canada.

It was very appropriate for the Government to wait and analyze these treaties, unlike the United States which rushed to pass their Digital Millennium Copyright Act (DMCA) in 1998.

The underlying policy of the WIPO Internet treaties was written in 1995, at a time when the Internet and other modern communications tools were very new. They were written primarily by established industry interests in the United States who saw emerging technology as a threat to their business models, and thus wanted to try to keep the genie in the bottle. The most controversial aspect of this policy, called anti-circumvention or legal protection for technical protection measures (TPMs, or "DRM") can be summarized easily: if modern communications technology can be abused to infringe copyright, then private citizens should not be allowed to own and control them.

This is not a modernization of copyright, but policy aimed at slowing down modernization. It is backward-facing, not forward facing. All creators and other Canadians should be opposing this policy direction. Anyone who recognizes the social and economic benefits of modern technology should be spending any time they can in friendly conversation with people who fear new technology, whether that be politicians, policy makers, fellow creators, or other Canadians.

It is my understanding that John is not supportive of that backward policy direction. This should cause us to ask exactly what his concerns are. His article offers a list of various commercial and non-commercial unauthorized uses of his work. While the tone of his article might suggest otherwise, these are all unauthorized uses which are already infringing under the current Copyright act. No changes are required to "modernize" the act to deal with these issues.

Copyright is not criminal, but civil law. This means that the parties whose rights have been infringed must launch their own lawsuits against those who infringe their rights. Making more activities into infringements can not help any creator who is unwilling, or for some reason unable (high costs of litigation), to enforce their existing rights. I have suggested to John more than once that a service that should be offered by PWAC would be professional legal services, a form of legal aid designed by and for professional writers such that writers without financial resources would be able to enforce their existing rights, offline and online.

John is rightfully worried that various institutions, such as educational institutions, want to get an exemption from copyright. I am in full agreement with John on this, and believe that the proposal from the Council of Ministers of Education (CMEC), as well as the counter-proposal from Access Copyright (which PWAC is a member of), would be extremely harmful to the interests of authors of works intended to be used by the educational community.

There is clarification needed in Canadian Copyright law, and it would be appropriate for Canada to adopt a more robust Fair Use regime like the United States rather than our currently limited and confusing Fair Dealing regime. This would deal with most of the legitimate concerns of the educational community, and is not likely what John is concerned about.

Both creators and audiences for creativity need to explore new business models, as John suggests. We should not be allowing the government to force a business model onto educational material, which is what CMEC and Access Copyright are asking for. Governments have a very poor track record at picking business models, and this type of a proposal will greatly harm all our interests. Educators who feel that current business models are too costly should realize that there are less costly alternatives, and that they should be adopting these models rather than asking for an unnecessary and extremely harmful institutional exception to Copyright.

Russell McOrmond is a software author, internet consultant, and new media activist. He is the coordinator for Digital-Copyright.ca , policy Coordinator for CLUE: Canada's Associon for Open Source, and co-coordinator for GOSLING: Getting Open Source Logic INto Governments. http://flora.ca/

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Business models

New business models is certainly a necessity now that everything is changing so quickly and new methods of distribution are available. From what I've seen through newspapers, it seems that the compensation of creators (most recently, writers of news articles and tv shows) for work distributed in a new outlet (which also brings new revenue) is but an afterthought. It seems to be difficult to secure this type of compensation if we're falling back on a copyright Act which wasn't written to handle these new concepts of distribution.

I'm still very new to all this policy work *smile*, but it looks like we need not merely a change to the verbose and concept of copyrights but the administration and practise of it. With people (creators and users alike) seemingly taking extreme positions to be heard, we may be making things much more difficult for ourselves than they need to be.

And it's a funny thing you should mention creators' groups offering legal services. CARFAC Ontario actually offers a free legal clinic for members, and has for a while now.

Full disclosure: I'm currently on the board of CARFAC Ontario, but the opinions expressed above are my own. Keep an eye on the CARFAC Ontario website for the upcoming press release for their official thoughts on copyright.

Copyright or business methods

it looks like we need not merely a change to the verbose and concept of copyrights but the administration and practise of it.

I guess I disagree and suggest that the administration and practice, issues largely outside of Copyright law itself, is where the problems are that we need to address first : before we make changes to copyright.

One of the reasons many of us oppose making copyright "stronger" is because this has been demonstrated to only transfer more control over creativity to the existing copyright intermediaries. This has been at the expense of both creators and their audiences. Separating the debate into creators, intermediaries and audiences was in fact where I started in this debate back in 2001.

I think changing the Copyright act is premature, until we understand that the changes need to enable creators to regain control over their creativity. Exploring new methods of production, distribution and funding includes skipping current intermediaries, which is why this creative freedom is strongly opposed by the incumbent intermediaries.

The current direction of copyright revision is backwards. Changes to copyright should enable creators and their to choose which intermediaries they employ, and not allow it to be the intermediaries who decide which creators to employ.


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

Chicken & egg

I guess we may throw ourselves into a chicken and egg discussion on administration & practise and Copyright law!

How?

I don't think that is the case. While we are headed in the wrong direction of imposing business models (IE: the CMEC/Access Copyright nastiness), current copyright law is flexible enough to enable a wide spectrum of business models. It really is a matter of individual creators forming new creator groups to enable them to skip the legacy associations/unions/groups which are removing choices.


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