Thoughts on C-32 committee meeting 18

Today had a mixture of witnesses. In the morning there were 4 people representing CMRRA-SODRAC Inc, a collective representing composers and their publishers when dealing with mechanical reproductions. Marian Hebb is with Artists' Legal Advice Services, and author Margaret Atwood was on teleconference from Dubai, United Arab Emirates.

The focus of the CMRRA-SODRAC presentation was on the mechanical ephemeral rights issue, which I wrote about in my thoughts for meeting 16.

In theory CMRRA-SODRAC represents composers and their publishers, but as an outsider it seems as if there is a growing problem being exposed by these debates. It really looks like a situation where the same copyright holder is wanting to get paid multiple times for essentially the same thing: the ability to broadcast music over the air. There is excessive focus on a technical detail that an internal process technically involves a "copy" and thus permission and/or payment should be required.

It turns out that there are two different collective societies representing the same creators but for different copyright regulated activities (creation of mechanical copies vs. communication by telecommunications). CMRRA is tunnel-vision focused on the internals at a radio station because they are separate from SOCAN which licenses the performance and communication by telecommunications (radio broadcast) right.

I think that the interests of some collectives will increasingly come in conflict with the interests of creators. It all comes down to bureaucratic structures that have been built up over years, and which stand in the way of moving forward with new structures that better serve the needs of creators and their fans/customers.

I think we have all seen bureaucracies that have come to serve their own interests over the interests of those they were created to serve. I believe that this is starting to be seen with some collective societies.

I didn't have a chance to hear Ms. Hebb's introductory remarks, and am looking forward to reading the transcript. I respect what she is trying to do, and believe that creators need as much legal advise as they can get in as accessible a method as possible. Many issues which creators believe exist within the copyright act come down to misunderstandings. While our Copyright Act badly needs modernisation that focuses on clarification and simplification (IE: the opposite direction to C-32), low-cost and sometimes free legal services offer some needed help.

I also feel I will need to read the transcript from the afternoon session before offering any comments. The speakers were quite often speaking very quickly in French, and I am pretty sure that as amazing as translation services are at the House of Commons that some of what they were saying got lost in translation.

There were some interesting exchanges, such as when Georges Azzaria suggested that the Supreme Court went way to far on the CCH decision in articulating exceptions to copyright as users rights. He may have used much stronger words, and the Conservatives took him on because of this, but I will wait to get a better translation.

The most interesting part of the day for me was the discussion initiated by Margaret Atwood. It was first from her intervention at the committee, and then it continued later when she continued commentary and conversation on twitter.

The focus of her presentation was on exceptions to copyright, further focused on education exceptions. For those that didn't hear it, she posted some thoughts and her speaking notes to her blog.

In short, she was suggesting that education exceptions to copyright area a removal of property without the consent of its owner. I am a fan of Ms. Atwood's writing, but on this I can't disagree more.

What you own with copyright is the copyright. Copyright is a series of activities which require the permission of the copyright holder, with some exceptions: the royalty-bearing exceptions we call compulsory licenses (levies), and the royalty-free exceptions we call fair dealings in Canada (fair use in other countries).

When someone does something not regulated by copyright, does something that is an exception to copyright, or infringes copyright, it doesn't change the status of who the copyright holder is. The person that was the copyright holder before is still the copyright holder.

In the worst case scenario copyright infringement can lower the value of the property, but it is simply wrong to suggest that there is any removal of property. On twitter Jason J Kee used the phrase "unjust enrichment", which I would agree with in specific examples of commercial or large scale infringements (ISOhunt, where I agree with court documents which suggest they are authorising activities -- a section 3 listed regulated activity).

Regardless of what we would call the wide range of examples of infringement, they are not any of "1. Theft. 2. Expropriation, which does however include some payment. 3. Confiscation, as from criminals. 4. Requisition, as in a war".

All of that is political rhetoric aimed at trying to inflate the alleged harm to the rights-holder from infringement. Ms. Atwood's presentation was even worse as we weren't even talking about infringement, but a minor change to the categories of activities that can be called fair dealings. All of this sound and fury was about adding the word "education" to fair dealings.

It is frustrating to hear this abuse of language as, at the end of the day, I agree with the intent of Ms. Atwoods presentation. In my own FAQ I wrote:

I consider education institutional exceptions to copyright to be a government program, paid for on the backs of copyright holders, masquerading as copyright. Public education programs should be paid for out of general tax revenue, and managed by provincial governments. Inadequate funding for educational resources is an educational sector issue, has market based solutions (IE: Open Access publication), and is not a "Copyright" issue.

I am very uncomfortable with having special rules that apply to educational institutions. This feels like mis-education to me, and harms our children's ability to interact in a lawful matter outside of that classroom and later in life. I consider copyright rules that are focused on institutions rather than students to be harmful to students.

I believe the solution is to change the law such that copyright works the same inside the classroom as it does in the student's home.

To accomplish this I believe we need to ensure that teachers can step into the shoes of students, and do on their behalf things which the students would legally be able to do on their own: nothing more, and nothing less. I believe the language the USA uses of "teaching (including multiple copies for classroom use)" being added to fair dealings would accomplish that goal.

When it comes to C-32, I agree with the intent of the addition of adding "education, parody or satire" to section 29. It may be that the word "education" is causing concern and we should use the term "teaching", but I still agree with the intent.

I do not believe those who claim that adding either word will cause harm to the interests of creators. It will add necessary clarity to relationships that at sometimes can be strained because of the abusive language used by some participants (educational institutions, CMEC, Access Copyright, the "theft is theft" rhetorical crowd, etc).

One of the things I don't agree with in C-32 are the education institutional exceptions being added to section 30. I believe that having copyright operate radically different in educational institutions than in the home is harmful to our children, not just copyright holders.

In the case of rights holders, there is money being proposed to be taken away in ways that are simply not fair. It is these sections, not the fair dealing sections, which creators should be upset about. If educational institutions wish to make use of copyrighted works in these scenarios, they should have to obtain licensing in the same way that people outside of these institutions have to.

How much money educational institutions have is not relevant: Copyright is the wrong place to be incorporating a government funding program, including one that allegedly benefits provincial educational institutions. If they don't have the money to pay for specific works, they should be pursuing alternative licensing arrangements for alternative works.

I suspect at a higher level Ms. Atwood and I would agree. With all due respect to her, I believe stretching a property analogy to the level she did makes a mockery of a policy debate we should be taking far more seriously.

(See also: Rethinking out loud about Margaret Atwood)

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I think that the interests

I think that the interests of some collectives will increasingly come in conflict with the interests of creators.

No shit Sherlock. The collectives in many ways are a worse problem for the artists then the corporations. That's because the collectives, like SOCAN, have managed to get their functions written into law. Because artists are by definition unorganized, it becomes almost impossible for them to get rid of a collective that no longer benefits them.

And of course these collectives waste artists money on lobbying politicians, to ensure that the artists can't get rid of them.

In short, she was suggesting that education exceptions to copyright area a removal of property without the consent of its owner. I am a fan of Ms. Atwood's writing, but on this I can't disagree more.

A big problem is that most artists, Margaret Attwood included, don't really understand Copyright. There are good reasons for this. Historically copyright was designed to benefit the printers guild, and later extended to the recording labels, motion picture companies, software companies, etc.

Because copyright was never intended to benefit the independent artist (indeed the concept of independent artist is relatively recent - most artists were historically supported by rich patrons) the law is written in such a way as to be unintelligible to artists. Misnomers are common. Even people like ourselves, who've studied copyright closely, probably misunderstand parts of the law.

As you said, the law need to be simplified.

And as I've argued many times, copyright needs to be remade into something that is held only by the living being who creates the work, or their heir.