Friday, September 11, 2009

Copyright Consultation Submission

MS-Word 2007 http://www.downes.ca/files/Copyright Consultation Submission.docx
MS-Word 1997 http://www.downes.ca/files/Copyright Consultation Submission.doc
PDF http://www.downes.ca/files/Copyright Consultation Submission.pdf


My name is Stephen Downes. I am a senior research officer with the Learning and Collaborative Technologies Group at the National Research Council. For the last fifteen years I have worked as in the field of online learning at NRC, Athabasca University, Assiniboine Community College and the University of Alberta. My submission is based on my personal experiences as a student, and later, an instructor in Canada's educational system, and as an expert in the fields of education and technology. Additional background and credentials may be found at my website, http://www.downes.ca

I have a background not only as a researcher, not only as a student and instructor, but also in policy and administration. I covered access issues as a student journalist, and later, was president of the Graduate Students Association, serving on the University of Alberta's Board of Governors for two years. In addition, I also served on Athabasca University's Governing Council. I have stat on academic councils at Alberta, Athabasca, and Assiniboine Community College. I have developed and delivered online courses and programs, written educational software, and author one of the world's most widely read newsletters in the field, OLDaily.

My involvement with copyright is directly related to my work as an author and a researcher in the field of online learning. Copyright issues pose probably the greatest challenge to the provision of learning online and to the improvement of access to educational opportunities for all Canadians. Academic institutions and their staff are not only one of the greatest consumers of copyright materials, they are also among the largest producers of such materials as well. It is an ongoing challenge to find ways not only to provide access to learning materials, but to do so in a sustainable manner.

Underlying Principles

Before addressing the questions specifically put to Canadians in this consultation exercise, I would like to outline what I think ought to be the principles underlying copyright and related legislation in Canada.

We understand, I believe, that the purpose of copyright is in part personal and in part social. On the personal side, it is the intent of copyright legislation to protect the interests of people who create original works of art and literature, to ensure that they receive fair compensation for their work, and are not deprived of the opportunity to earn a livelihood through their work. And on the social side, it is the intent of copyright legislation to foster the creation of original work, to engender the creativity that forms the foundation of economic and cultural activity in society.

As both creators of content and the societies they live in have an interest in protecting the rights of content creators, both content creators and society as a whole have an interest in protecting the rights of people who use that content. The interest of society in fostering the creation of content exists only to the degree members of society are able to access and use that content. And the protection of the author who creates content extends to the ability of the author to acquire and reuse content. For neither author nor content user lives in isolation: we all build on each other's work, and all interact in a national conversation which must, if it is to exist at all, include mechanisms for content to flow freely.

Additionally, it is important, I think, to ensure that the application of copyright legislation applies strictly and solely to those objectives outlined above. The creation of copyright legislation that is too wide, or two narrow, in scope, may result in the use of that legislation for purposes other than the protection of an author's interests or the fostering of more creativity in society. It is not the purpose of copyright to protect specific pecuniary interests, to protect specific business models, to substitute for the regulation of criticism, parody or reference.

No person, I think, disagrees with the fundamental principle copyright, that the creator of an original work obtains, by virtue of that creative act, certain rights and protections regarding that particular work. But such rights and protections are limited. The creation of original work can occur only within a social content, only through the re-use of existing words, concepts, images or artifacts, and is therefore the originality in any given work is limited to that part actually created by the author, and is not to be used as a mechanism to extend the author's other rights and privileges in society, nor to facilitate, through the process of creation, the ownership of ideas, concepts, words or images, that already exist in society.

The intent of copyright is to protect and encourage the act of creation, and not to facilitate a process of appropriation of pre-existing goods.

How Copyright Affects Me

As mentioned above, my interest in copyright relates to my interest in education and in the process of academic teaching and research generally. It relates to my interests as a student, who would like to benefit from the promises of a quality education, to my interests as a teacher, who would like to be able to present students with the best and most authoritative educational content, and to my interests as a writer and researcher, who would like to benefit from my creative activities and original creations.

A person cannot learn in isolation. He or she needs not only a society within which to learn and a field of study to learn about, but also creative content of some form or another in order to facilitate learning. In traditional learning, this content consists of books and lectures. But in less traditional forms of learning, such as self-learning, it may include a wide range of teaching materials, conversations with cohorts, interaction with other materials, and participation in a content-laden milieu generally.

In short, without access to this content, in one form or another, there is no learning. This is a situation I found myself in earlier in my life, as an adult student attempting to complete my diploma at night school in Ottawa, or later as a provisional student at the University of Calgary attempting to earn my first degree. To make my way in life, I needed to access an education, but the alternatives for me were limited, and expensive. To this day, at the age of 50, I still owe money on my student loans. And with the costs to society in supporting high school and university access increasing every year, this is a situation which is not improving, but only getting worse.

In my work since then I have attempted to devise and support mechanisms using new technology in order to help someone without access to high school or university facilitate and support his or her own education, whether this be by a limited access to the system supplemented by self-study, or whether it be by means of a completely autonomous form of learning. In these efforts I have found the single greatest impediment to be copyright law.

The impact of laws intended to protect one form of content - that content produced by an author and distributed for compensation by a publisher - impact all forms of content. My desire, for example, to distribute my own work freely and openly is hampered by such laws, not because I am attempting to violate such laws, but because I must incur substantial overhead created by such laws, from the need to pay for digital rights management or access control technology, to the risk of responding to lawsuits or legal actions intended to prevent the distribution of a competitive product.

Indeed, for me, perhaps the greatest impact of copyright law has been the imposition of what amounts to a commercial logic on my own personal and non-commercial activities. It has always been, for example, my right as an owner of something to share it with my friends; this was a right granted by the doctrine of first sale, and it essentially granted that what I bought and paid for was mine to do with as I please. Now it might be one thing if I wished to set up some commercial activity revolving around the distribution of copyright material, but this is not the case. The trend in discussions of copyright has been to collapse this distinction, to treat every activity of mine, commercial or otherwise, as though it were a commercial activity.

We need to support the capacity of people to act privately, charitably, or educationally without creating a presupposition that all such acts are at the same time instances of acting commercially. As an individual, I am quite happy to let the commercial sector operate according to its own laws and assumptions, but I wish to preserve the right to conduct my life outside that sector. If I don't use commercial product, and don't engage in commercial activity, then I should not be governed by commercial law, and not subject to the same sort of risk and liabilities as a commercial entity.

This position, to me, makes intuitive sense. If I'm just talking with my friends, I should be able to use trademarked terms like Coca Cola or Aspirin with impunity. I should be able to repeat a phrase I read from a book, or describe the action I saw at the baseball game. If it's just me in my living room, I should be able to play my DVD or the hockey game and invite my friends. If I am not charging any money, I should be able to loan a book to a friend, share a recipe, or exchange photographs of the Eiffel Tower. It doesn't matter where these activities take place, whether they are at home or in my personal web space. It's not commercial, it's personal and private, educational or non-profit, and it should be exempt from the strict domain of copyright legislation.

Modernizing Copyright Laws

Since copyright law was last considered, a technological revolution has taken place. Applications and capacities that were formally available only to professionals are now in the hands of individuals. We have advanced from the era of vinyl albums, newspapers and Polaroid photos to MP3 audio, personal web sites and photo albums on Flickr. A single person, someone like Craig Newmark, for example, can with a simple computer application undermine an entire sector his Craigslist application provides online for free classified advertisements that people use to support the entire newspaper industry.

This is not illegal; it is to be celebrated. There is nothing which protects the right of newspapers to be the sole purveyors of classified advertisements. Newmark may have brought an entire industry to its knees, but it was through a process of invention, not appropriation. The same has been true of industries throughout history. Nobody today seeks to protect the horseshoe industry from cars, the ice industry from refrigerators or the passenger steamship industry from airplanes.

It should therefore be understood, and regarded as a principle, that the new inventions are not the same thing as that which they replaced. An MP3 recording is not the same thing as a vinyl album, a personal blog is not the same thing as a newspaper, and a digital photo is not the same thing as a Polaroid. These entities are new creations, and have properties and characteristics in their own right, and not as a consequence of the properties and characteristics of the entities they displace.

Why is this important? It is because, for example, 'publishing a blog' is not the same as 'publishing a newspaper'. The former is a personal act of content recording and sharing, an act that is, for the most part, educational and non-commercial. The latter is a commercial act, an endeavour to earn money by the reproduction of original content. So there can be differences between an original activity and its online replacement. This is true for any online activity. Online learning may replace classroom learning, for example, but it's not the same as classroom learning. Online video may replace television, but it's not the same as television.

Therefore, the modernization of copyright law cannot be and should not be the mere application of law that existed in the previous domain to activity that occurs in the replacement domain.

Take online video sharing and television broadcasting, for example. In the case of television, content is regulated by the CRTC, and (among other provisions) there is a requirement that a certain amount of Canadian content be broadcast. It would not make sense, and is cer4tainly not automatically true, that Canadian content provisions ought to apply to online video sharing activities. Despite superficial similarities, and despite the fact that the one is replacing the other, the same law does not obviously apply to the new technology.

In applying copyright legislation to new technology, therefore, the principle of transference of existing law from the old domain to the new domain cannot be applied. It must be recognized that the new technology is a new creation, and therefore, any new legislation applied to that technology ought to be applied strictly and solely on the basis of its own merits. And these merits, in turn, must be based on the underlying principles of copyright legislation: to protect the interests of the content creator, and to foster creative activities in society.

In the first case, we must allow that the needs of the content creator may be protected in new ways. The copyright levy applied to blank media is an innovative example of this principle. With new recordable media, such as cassette tapes, becoming widespread, it was recognized that content creators could be compensated just as effectively by applying a levy on blank media, as by applying royalties to content sales. A levy on blank media recognized a fundamental property of blank media, and that is, that people would use it to record content. Rather than attempting to prohibit such activities, the legislation proposed to allow them, and focus on protecting author interests. There is no reason why similar provisions cannot be taken in the case of digital media. If we understand that, just as the act of copying is inherent in blank media, the act of publishing is inherent in digital media, then an act that seeks to reward content contributors, rather than prohibit publishing, would be more appropriate.

And in the second case, it must be understood that new technology may lower the barrier to content creation, and therefore, that the need to compensate content creators to the same extent is no longer necessary. Take photography, for example. Today, a digital camera and free Flickr account replace thousands of dollars of photography equipment and even more in development and photo editing gear. The barrier to creating high quality photographs has been lowered a hundredfold, a thousand-fold. It follows, therefore, that society does not need the same degree of stimulus in order to encourage the creation of new photographic works.

We live in an era of proliferation of original content from all sectors of society. The need to foster the creation of such content may, in some cases, be hampered by a rigid application of copyright law, rather than enhanced by it. A requirement, for example, that any person viewing Flickr pay the photographer (or obtain a distinct license waiving the requirement) would be unreasonable. A person creating original text, or photographs, or other content, must realize that the value and the uniqueness of this content is not the same as it was even ten years ago, and that therefore the interest in society of protecting this content, and ensuring financial reward, is correspondingly less.

In a world characterized by a massive and freely shared proliferation of content, the need for restrictive laws intended to encourage the creation of content is correspondingly lower. Copyright legislation ought to apply to those areas in which creativity is scarce, not abundant. Copyright law should certainly not be extended to incorporate new types of content (such as, say, recipes, or fashion ideas) which are already abundant, and which show no signs of becoming scarce.

Unless there is a direct reference to the scarcity of creativity in an area, vigorous copyright protection in that area cannot be justified, for there is no need to promote creativity, and there is no inherent value in the creation to protect.

Withstanding the Test of Time

It seems likely that technology will continue to change, probably at an even more accelerated pace, and that therefore copyright legislation that refers to specific technologies or specific activities will tend to fall out of date and irrelevant or worse.

Moreover, there is additionally the danger, suggested in the formulation of this discussion point, that existing Canadian values and interests may be threatened by outdated and inflexible copyright legislation.

The discussion point, however, begs the question: what constitutes Canadian values and interests. Even a document such as the Charter of Rights and Freedoms constitutes only a partial declaration. The interests and values of Canadians are not represented in any legislation, in any body of writing, but rather, in the acts and activities of Canadians themselves.

And if anything resembling this statement is true, then it must be conceded, that the interests and values of Canadians include massive sharing and creation of content in all forms and across all media. Any legislation passed regarding copyright cannot merely represent the interests of a specific lobby, or even an external lobby, against the day-to-day activities and beliefs of Canadians. If the outcome of a law in Canada is (as it was in the U.S.) that the greater proportion of the population becomes criminals, then it is manifest that such a law does not represent the values and interests of Canadians.

That said, Canadians, through successive elections and legislation through 140 years, have represented their will to live in a constitutional democracy, one where the guiding principle of law is justice as fairness, where inherent in justice is the agreement of those governed in a system of law that applies to all, equally, across the land, of fundamental rights and privileges, and not merely those enshrined and not just law but also those enshrined in action, in the fundamental freedoms characteristic of a democracy, of speech, of association, of thought and belief, of the press, but also the right to an education, to safety and security of person and property, to health and health care, to support and freedom from destitution, want, poverty and starvation.

The values and interests of Canadians, in other words, are not primary economic and commercial; indeed, they are probably as far from economic and commercial as one can get. I think that, while Canadians recognize and respect the need for and desirability of, economic and commercial activity, they understand this to be the means of obtaining a just and satisfying social order, and not the ends or objectives of one.

That said, it follows that the creation of copyright legislation that will stand the test of time and preserve the values and interests of Canadians ought to satisfy the following criteria:

First, the legislation ought to be based in the purpose, not the application, of copyright. While the execution of copyright may require some enabling legislation in order to clarify process and meaning, such legislation ought to be, and to be seen as being, subservient to the legislation expressing purpose and intent. In particular, it must be stressed in this legislation that the intent is to protect some particular rights of content creators (and not to grant a wide array of unrestricted rights), and that the purpose of the legislation is to promote creativity.

Second, this statement of purpose and intent is sometimes expressed by other writers as being a balance between the interests of content creators and the interests of consumers. While the principle of balance is a valuable one, it must be recognized that the over-riding principle is not to create balance, but rather, that balance is a way of achieving the over-riding principle. This is important because, in some cases, the balance is shifted. When the value of content changes, and therefore, the economic interest of the creator changes, then the balance changes. And when the barriers to creativity change, and when therefore the need to foster creation changes, then the balance also changes. We would not create legislation requiring a special levy on cars in order to balance their use with the interests of horseshoe makers. Balance is, and must be, subservient to the underlying principles of copyright legislation.

Third, copyright legislation itself exacts a price, creating a need for legislation and enforcement, and a risk of infringement and sanction, and therefore must be weighed against other social goods in society, widely construed. For example, the principle that copyright ought to promote creativity does not mean the need to promote creativity at any price. These other social goods ought to be construed widely, as including not merely the rights and responsibilities enshrined in law, but the wider social good as instantiated in the acts and beliefs of Canadians. Enabling legislation, especially, ought to be framed in such a way so as to maximize contributions to the public good, widely construed, and to minimize harms.

Fourth, copyright legislation must be clear and easily comprehended by all Canadians, so that it is apparent to them whether or not the law accords with their wishes as a society, and respects Canadian rights and interests, and so Canadians can tell using the clarity of common sense rather than the concision of legal assistance whether or not they are in compliance with, or in breach of, the legislation.

Fifth, clarity is not the same as precise definition, and legislators should resist the urge to be specific and narrow in their definition of the terms and statements of the legislation. The more rigid the definitions employed by the legislation, the more terms their definitions must contain, and the less common-sense and comprehensible the legislation. It is more important to allow for discretion and latitude, especially with respect to protection of the social good or Canadian values and interests, than to narrow the definition in law.

Sixth, the nature of sanctions and penalties, should any be deemed necessary, should be such as to reduce the risk of private, accidental or innocent violation, and focused specifically against deliberate and commercial violation. It should not be possible to financially ruin a person, or create a criminal record, out of private and innocent blog posts, application usage, or normal day-to-day practice in one's personal and professional lives. The risks inherent in copyright violation ought to be such that, only deliberate or fraudulent violation should merit penalty at all, or at the very least, penalty of any significant size. And such should be the case both in civil and criminal law.

It may be argued, "the law is the law", and so the scale, method or intent of the violation should not matter. However, if there is no difference between innocent action and deliberate violation, then there is no reason for a person to do anything other than deliberate violation. Consider the case of Pirate Bay or Joel Tenenbaum: these are people who, on realizing they would face the same sanction no matter what their intent, opted to deliberately and flagrantly violate copyright. Punishing the innocent creates criminals.

Seventh, and in a related point, there ought to be fairness of process and right of defense against accusations of copyright violations. The cases we have seen recently, where large corporations employ lawyers and the possibility of significant penalty, and in all cases significant legal expense, to undertake legally dubious action against people who are unable to mount a defense, ought to offend any person with a belief in the principle of justice as fairness and in the right to equality and the possibility of a defense before the law. Massive legal actions, either civil or criminal, ought to be prohibited, and the question of a wanton and deliberate violation of copyright referred to an enforcement agency, such as the police, rather left to the agency of the aggrieved party.

This is necessary for two reasons. The first, and most obvious, is that a person has the right to representation, and to a fair hearing, in matters before the courts initiated by government entities, such as the police, and thus, fairness of trial, even in cases of wanton disregard for copyright, is more likely. But secondly, less apparently, but perhaps even more significantly, it must be possible to launch a defense of one's copyright, to enforce one's copyright, without resorting to expensive civil proceedings. We do not require the victim of a robbery to sue the robber - and, indeed, we discourage vigilante resolution of such cases - and the same ought to be the case for copyright.

This will be a very difficult task, as it is not easy to provide fairness before the courts, and minimization of risk for the innocent, without at the same time imposing on them significant legal and other costs.

But if so, then, in the principle of justice as fairness, the presumption of validity of claim (that is, the presumption of innocence in a defense, the presumption of violation in an action) must lie with the least advantaged of the litigants (call this the 'presumption for the least advantaged'). The capacity of a large company, or a government agency, to bring considerable resources to bear in an effort to make their case, must weight against them, and create a presumption in favour of the other litigant. Poverty is the best defense a copier has that he or she has not created a commercial enterprise out of it, or that a content creator has that he or she has not seen the profits from the creation; wealth is, by contrast, evidence that no harm has occurred.

Incentive to Create

From the days of the Statute of Anne, copyright legislation has had as its foundation the desire of society for foster innovation and creativity. It is not enough, in other words, simply to protect the interests of rights-holders, but also, to create an environment which will, by ensuring some return on investments in training and creativity, foster the production of new and original material.

This principle is often described as creating an 'incentive to create'. The idea is that, without the protections created by legislation, a person would not find it worthwhile to spend the time to create original and creative work that is valued by society. The incentive can be viewed as primarily (but not entirely) a financial incentive. The reasoning typically expressed is that artists should be paid for their work, that they deserve fair compensation.

Nobody denies that artists should be compensated for their work. But inherent in the concept of the artist is the idea that the work being compensated should be both scarce and valuable, and that it should represent some significant effort on the part of the artist, either through the training and practice necessary to acquire a skill, or a persistence and craft required to produce the work itself.

Society, for example, has no interest in subsidizing the creation of children's crayon drawings. Nor does it see the value in underwriting the neighbourhood gossip, painting the house, mowing the lawn, or any of a million other common and mundane acts of creativity. It is not necessary, nor desirable, to provide incentives to people to create things they would create anyways, things that anyone can create, or things that are not worth creating.

To be sure, this is a judgement call, but the notion that every act of creativity merits and deserves the full protection of the law is manifestly nonsensical. It seems that, at a minimum, a creation is worth protecting if, and only if, other things being equal, it would have some monetary value. This condition provides a simple and intuitive test that determines what should be protected:

First, if a creative work is being offered for sale, and sold, for financial compensation, then it has monetary value, and merits the protection of copyright legislation; and

Second, if a creative work is being offered for free, and is taken by a second party and in some way used to create or generate revenue (either by being sold, or by advertising something being sold, or in some other manner raising revenue), then it has monetary value, and merits the protection of copyright.

This is an important test because it not only speaks to whether or not a work has monetary value, it also helps reasonably assess the amount of that value. A song, for example, is worth 99 cents a copy if, and only if, it actually sells for 99 cents. And the cumulative value of sales of that song amounts only to the number of copies of that song, other things being equal, would have been sold.

We must in our discussions avoid the tendency, so common (and so natural) from the perspective of artists and publishers, to overvalue the work being protected, and therefore, to overstate the need for protection, and more, to overstate the need for penalties and compensation for copyright violations.

Creating Actual Value

In addition to these considerations, we need also in order to justify legislation be able to show that the protections being proposed actually provide the desired financial return, and hence, incentive. This is not a trivial requirement. It is been asserted by many that original creations that are not protected by copyright can return as much, if not more, revenue to the creator as creations that are protected. The distribution - permitted or otherwise - of copyright material enables the artist to either sell more copies of the work, or to attract more revenues to other activities, such as concerts or public lectures.

It may be said that it ought to be up to the creator of the work whether or not it may be copied and distributed. But this is not an inherent right, rather, it is a right granted by the state as a form of protection in order to encourage creativity, and it ought therefore to be contingent upon actually encouraging creativity. We can grant that an artist may have a prima facie right to control distribution of his or her works, but also that they are not in a position to claim damages if their income has actually increased as a result of the unauthorized distribution of those works.

Encouraging creativity, in other words, requires that the artist be able to show harm to his or her income, and that this harm be a direct result of the copying, and not as a result of the mundane nature of the creation.

This criterion also plays a significant role in determining the nature and extent of copyright. It stretches one's credulity, for example, to say that on one hand the legislation is required to encourage creativity, and on the other, that protection ought to continue to exist almost a century after the death of the artist. Though the principle is not based on simple cause and effect, we nonetheless want to point out that no incentive will be sufficient to induce an artist to create a new work 90 years after his death.

The interpretation of the premise of 'incentive to create', and consequent extension of the terms of copyright, have been premised on the idea that any incentive to create justifies the existence of legislation to protect that incentive, with the result that very minor incentives, such as provision for the income of one's grandchildren, now factor into the contemplation of copyright terms.

Such incentives, however, ought not be viewed in isolation. For concordant with any extension of a copyright term is a cost to society as a whole, a cost it pays in order to obtain from it the benefit of newly created works, a cost in the form of limited access to and use of the created work. Such a cost can be significant, especially as after a certain time creative works become a part of our culture, with references to and uses of everything from Mickey Mouse to 'Happy Birthday' common and everyday occurrences. When we must pay to use, and to reuse, core elements of our culture, then we must be sure that the value returned for such payment is substantial, and in such a calculation the incentive created must equal the cost that results.

It is not even remotely clear that society obtains sufficient benefit to justify significant extension of the term of copyright. This is especially the case when, from a Canadian perspective, these copyrights are held by agencies outside the country. Every Canadian child sings 'Happy Birthday', it is embedded in our culture, but to record such an event, a Canadian filmmaker must pay a royalty to a foreign rights holder.

For the application of copyright to a creative work, the work must stand the test of novelty. The work must be relatively recent, relatively new. This becomes even more important when ideas and concepts permeate society at an ever more rapid pace. It's ironic - when it took a long time for a song or a piece of writing to circulate through society, the term of copyright was short. Now that something can be on everyone's lips in a matter of days, the term has been extended to almost a century.

In a rapidly accelerated information society, terms of copyright should not be extended, they should be shortened. The incentive to create exists only to the point that a work, concept or idea reaches ubiquity; at any point after this time, we continue to pay a cost, but are no longer receiving a benefit. There is no reason to extend a copyright beyond a person's lifetime; indeed, there is no need to extend copyright beyond a few years, such as the 14 years traditionally observed.

Comparison With Alternatives

With respect to the fostering of innovation and creativity, it should be noted that copyright legislation is only one of many mechanisms available for this purpose. Indeed, for most people in the world, innovation and creativity persist even though no protection in copyright exists at all. People performing work for hire, for example, surrender their copyright as a condition of employment. Carpenters and trades people surrender copyright through sale of services rather than product. Friends and neighbours who decorate their houses, paint murals, create gardens, and engage in many more such acts, do so only to make their homes and communities more pleasant.

If we recognize that the awarding of a copyright is not free, but rather, a form of subsidy in which society grants a limited monopoly to an artist in exchanged for a hoped-for increase in productivity in that sector, then we can reasonably begin to compare copyright directly with these other forms of incentive and stimulation. Government can pay for the creation of original works directly, for example - and, indeed, does so through agencies such as the National Film Board or the National Research Council, the Canada Council, and numerous other agencies, grant programs, tax credits and incentives. Governments have a wide range of incentives to create and distribute information, from the need to educate the population to provide safety advice to promote and advance the culture.

Similar incentives exist in the private sector. Companies create and distribute advertising material, advocacy literature, media and other studies, guides and help sheets, product comparison reports, and much more. In no cases do the artists creating such work retain the copyright, and yet, they are compensated for their work. Incentives for the private production of material include everything from advertising to public information and public safety to philanthropy.

Copyright legislation, in other words, must not merely create an incentive. It must be a more effective way of creating an incentive than other alternatives. Copyright legislation creates significant overhead, a class of criminal legislation, and increased risk and deterrence, enforcement and litigation costs, and other encumbrances on society. It is a heavy-handed solution to a problem that might be much more simply and cheaply solved with a funding program.

To speak of a particular example with which I am familiar, take, for example, the production of educational materials. The single greatest cost facing people who wish to offer learning opportunities online (such as, say, M.I.T.'s Open CourseWare) is the cost of clearing copyright. Educators must negotiate a maze of conflicting licenses, incompatible access provisions and technologies, and assume substantial risk of litigation. How much easier would it be to have existing employees who are already creating these materials to offer them free online to all Canadians instead of free to publishers?

In the field of educational materials, at least, copyright protections for content providers have not produced innovation and creativity; they have created a crisis. The costs of educational materials continue to increase far beyond the students' capacity to pay, and at the lower grades materials costs continue to create a greater and greater burden on the taxpayer.

Other submissions will to this consultation process will have called for an elimination of Crown Copyright. This is a good place to echo such a call, in the context of a clear justification for such an action. The elimination of Crown Copyright allows educational institutions to begin immediately to take advantage of the many resources produced in the day-to-day activities of government, and to potentially benefit from a constructive effort to produce learning and educational materials that may be used by all students and teachers without fear of violating copyright or the expense of copying with increasingly onerous and expensive conditions of access.

Minimizing the Cost

One final matter under the heading of innovation and creativity needs to be considered, and that is the question of the disincentive copyright creates.

The requirements of complying with copyright law, especially when this law extends into wider and wider realms of activity, permeating not only commercial activity, but even private correspondences and creative activities, creates a significant overhead that must be borne by anyone wishing to engage in a creative activity.

This is especially the case because, as noted above, no creative act occurs in isolation. Creativity and innovation is largely a process of reuse and repurposing, of (as Newton famously said) "standing on the shoulders of giants." The writer rarely invents many new words in his work, but rather, reuses those that have already been created. The artist copies scenes, or imagines scenes compiled from his own memories, or his own understanding from the sciences of nature, biology and physics. Common themes, or tropes, can be found throughout literature, film and theatre.

The greater the constraint on reuse and repurposing, the greater the cost of compliance with copyright, and hence, the greater the disincentive created by copyright. Indeed, it is arguable that the intent of copyright was never to restrict and discourage this sort of reuse, but rather, to protect only exact copies of the works being protected. This original intent, however, is under significant stress, as copyright is interpreted (at least by the owners) as protection against any sort of use, mention, reference, or reconsideration not only of the actual instance of a work but also of the concept or idea expressed in the work.

In law, in Canada, there exists the provision of fair dealing, which is intended to protect those uses of a work that are not simple copies of the work for commercial gain, and to enable reuse of concepts or ideas, extraction of excerpts, especially for academic, critical or satirical purposes, and the like.

These provisions need to be clearly enacted in law, and not represented as exceptions to copyright protection, but rather, as forms of protection that are not granted to rights holders. Specifically, it ought to be clear in law that it is the obligation of the rights holder to show that a use of the material is not covered under a provision of fair dealing, rather than the obligation of the other party to show that it is. In other words, a prima facie defense of 'fair dealing' ought to be sufficient under law absent significant and compelling evidence to the contrary.

American law invokes four major principles of fair use, which are applicable in the Canadian context:
1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.
These principles, liberally interpreted (as has not always been the case in American jurisprudence) offer a reasonable characterization of the rights not granted to copyright holders.

The first principle requires that the work in some way be transformed. This principle is invoked to support the parody, satire or criticism of the work. It should not be necessary that the text be changed in order to constitute a transformative use. Criticism, through extensive citation, needs to be permitted, and constitutes a transformation of the intent of the work. In short, copyright needs to be understood as protecting works as they were created, but to allow that new works can be created out of old works.

The second principle requires in essence that the work being protected be creative. Thus we hear argued (though this position has been challenged recently) that data cannot be copyrighted. It is important to preserve this provision. In particular, we need to explicitly recognize that all creative work builds on something else, and this includes the present work that has been copyrighted. Copyright should not extend to the entire work being protected, but rather, only that part of the work that is an original creation. Copyright law must not be used to enable the expropriation or mining out of the public domain pre-existing facts, data, contents, words, ideas, or anything else.

The third principle preserves the principle of reference. This is an essential principle in academia, as it is necessary to create something new by not only building upon, but also by citing and quoting segments of the copyright work. It is also a principle employed in the arts, where something created by one person is taken, in part, to be built upon as part of another creation.

Finally, fourth, as mentioned above, there must be some actual harm created by the use. Such allegations are by definition counterfactual, as they appeal to revenues that would have occurred had the alleged infringement not occurred. It is necessary that such counterfactuals be supported in fact, and not speculation, that (for example) potential sales lost express what would have been actual sales, and not simply a tabulation based on number of copies made. After all, the number of people who use a product when it is free always exceeds the number of people who would use a product when it is offered for a price.

Ownership and Rights to Access

In Canadian law, there ought to be a fifth principle of fair dealing, which expresses the right of a purchaser to retain ownership of, and use of, something he or she has purchased. This is especially the case if the value of the purchased product is substantial.

Consider, for example, a music library consisting of 5,000 songs - the content of a typical iPod, for example. At the current market price of $0.99 a song, this represents an investment of almost $5,000. Such an investment might be typical of a lifetime's accumulation of music by an average listener. An iPod, however, valued at about $300, has a lifetime that can be measured in months. To cite my own case, since I began listening to digital music around the year 2000, I have owned a Creative Zen, an iRiver, two iPod nanos and three iPod classics. Each of these has, for one reason or another, failed. In each case, I reloaded my music collection onto the new device from my backup files on my computer or directly from CD.

It is not reasonable to expect people to reacquire their music collection each time they acquire a new playing device. Such a policy would mean that my $5,000 music collection actually cost me $35,000. It is hard to justify such an additional expense, multiplied by the Canadian population, under the aegis of fostering creativity and innovation. It would be (far) cheaper to simply have the Canadian government pay musicians directly and collect their salaries in taxes.

In today's electronic age, people who would once have had one content device - a book, say, or a record player - now own numerous playback devices, media in multiple formats, and devices that are almost disposable in nature. The concept of the ownership of 'a copy' of a work must be interpreted to mean, not one copy per device, but rather, one copy per person. Owning a copy of a work, if it is to preserve any meaningful sense of ownership, must include the right to move that copy from one device to another, from one format to another, and to keep multiple instances of the copy in order to ensure its integrity.

Finally, in a matter related to ownership, is the existence and proliferation of what have come to be known as 'digital locks'. Under other copyright legislation, specifically, the American DMCA, and the Canadian Bill C-61, it becomes a crime to break such digital locks.

This is a provision that offends sensibilities. No person would be allowed to sell you a vacuum cleaner with the provision that, under penalty of law, you are not allowed to open the case. If you have bought and paid for a vacuum cleaner, there is no sense to be made of the concept of unauthorized access to that vacuum cleaner.

The intent of digital locks is to prevent infringements of the rights holder's copyright, and specifically, to prevent illegal copying and sharing of the contents of the file. However, the very fact that it is a lock means that it prevents a wide range of legal activities, and in particular, prevents you from exercising rights you have as not simply as an owner of the content, but as a user of the content (in other words, the provisions of fair dealing are not contingent on ownership, but rather, may be exercised by any person with access to the content).

Insofar as it is necessary to have a provision protecting digital locks - indeed, if such a provision is necessary at all - it ought to prohibit only illegal uses of the content, and not legal uses. No penalty exists under law for breaking into locked buildings that you already own, or removing a lock improperly placed barring access to a public space such as a road or a park. Nor should the circumvention of digital locks for legal purposes be illegal.

Other writers will have listed the exceptions that should exist in anti-circumvention legislation. I hold the opposite view. Such legislation ought specifically to enumerate the cases in which it applied. It should state for example, that it is illegal to circumvent a digital lock in order to make counterfeit copies, or in order to view private use data, and the like.

It is important that this applies not only to the action of circumvention of digital locks, but also to devices or software that can be used to circumvent locks. Again, it would be absurd to make wire-cutters illegal on the ground that they can be used to steal bicycles, and indeed, their use to break locks is illegal only if the intent is, in fact, to steal the bicycle. Similarly, the same logic ought to apply to software that opens digital locks.

This morning, for example, prior to finishing this article, I had to download and install a tool called chkrootkit on my web server, because I feared that a person had hacked my computer and installed a rootkit, which would have allowed the hacker full access to my web server, passwords, and confidential data. In fact, chkrootkit detected an intrusion, which I repaired. To do so, however, it had to cut through digital locks the hacker had installed on my machine. It would be absurd to make my actions of this morning illegal, absurd to make it illegal to prevent a hacker from attacking my own web server. Intent matters, and law that ignores intent is law that protects criminals.

There should be no need for special provisions for digital locks. Some people can sell locks, other people can sell lock-cutters, and the use of either depends on the legality of the intent and not the specific action of creating, or breaking, a lock.

Competition and Investment
We have heard a great deal above about the need to create incentives for innovation and creativity, and the need to understand that such incentives have a cost, and must return an investment on that cost, and moreover, offer a higher rate of return than less costly (and less intrusive) measures.

This section, though, deals more specific with Canada's relation to the rest of the world, and specifically, "to have a modern copyright framework that strengthens Canada's global competitive position and allows us to attract tourists, talent, investments and high-paying jobs to Canada."

My own experience in the field of research and development is that strong IP protection, including copyright, tends to protect the "haves", at the expense of the "have-nots". That nations with an already accumulated base of IP tend to stress protection, and countries without such a base, and without a capacity to produce one, tend to stress less stringent protections.

My observation is that Canada falls into the latter category. A simple company like IBM or Microsoft will outproduce all of Canada in patents, while major corporations like Disney or Universal produce more copyright content that the entire Canadian publishing industry.

In that context, it seems folly to protect their interests, at the expense of ours.

Again, it is a question of balance. These companies, and these countries, invest in this country, help foster innovation here, and create value. Each movie shot in Toronto or Vancouver, no matter where the copyright lies, results in value for Canadians. Such agencies require as a condition for their participation in the Canadian economy certain protections, which create a certain cost to Canadian artists and industries, and we must balance the protections being requested against the revenues being generated, not just in the short term, but through the life of the copyright.

It is desirable to harmonize Canadian copyright legislation with the rest of the world, if only to remove the potential of a foreign industry to lobby for special consideration, but there is not unanimity in the rest of the world, nor is the status of the rest of the world likely to remain static. China, for example, can be expected to shift its stance toward greater and greater protection as it accumulates a larger share of IP. We should attempt to take advantage of China's interests now, in order to protect our own interests later.

Canada will never be a primary producer of copyright content, and should be wary of the promises made by content producers in support of more stringent copyright legislation. Our interests align more readily with smaller nations and developing nations, with, in other words, major consumers of copyright content, rather than producers of copyright content. To pretend that greater protection will grow our industry to a greater status is a mistake; greater protection merely entrenches the status of (foreign) incumbents, and prevents Canadian industry from leveraging work done in other jurisdictions.

Unfortunately, I share with many Canadians the belief that the financial interests of these foreign content producers are well-represented on Parliament Hill, and that their campaign contributions on occasion speak louder than the national interest in MPs' offices. I hope that this is not one of those cases.

Digital Economy

I consider the fundamental principle that will support of a digital economy (other than the question of incentives, discussed at length above), to be the principle of fairness.

What does this entail? Some basic considerations appear especially relevant:

First, people should not be punished for innocent acts. This principle applies above, in the use of circumvention for legal purposes, such as accessing your own content. But in general, copyright provisions ought not to attack practices, but harms.

Second, people should not be responsible for the actions of others. It is unreasonable to gold someone to account for behaviour they have no control over (or no control without significant expense and inconvenience).

Third, people should have the right to due process, and specifically, to respond to accusations and to be free of penalty until the accusations have been proven. This should be evident and apparent, but we have seen in recent years an increase in penalties taken - such as removal from search engines, or take-downs of websites - based on accusations rather than due process.

The instantiation of these principles yields the following recommendations:

Safe Harbour: there should be a "safe harbour" for Internet intermediaries supported by a "notice and notice" takedown system. As Michael Geist writes, "The creation of a legal safe harbour that protects Internet intermediaries from liability for the actions of their users is critically important to foster a robust and vibrant online world. Indeed, without such protections, intermediaries (which include Internet service providers, search engines, video sites, blog hosts, and individual bloggers) frequently remove legitimate content in the face of legal threats. Canadian law should include an explicit safe harbour that insulates intermediaries from liability where they follow a prescribed model that balances the interests of users and content owners. The ideal Canadian model would be a 'notice and notice' system that has been used successfully for many years on an informal basis."

This is a principle that protects the carriers of content from the implications of the content of that content. It is not reasonable to hold the telephone company responsible for subversive phone calls or the post office responsible for the transport of illegal artifacts. Compliance with such legislation would bankrupt the phone company or the post office. In a similar manner, it is not reasonable to hold internet service providers liable for the actions of their users.

Safe harbour ought to expent to search engines. The provider of a search engine should not be held liable for the actions of a person to whom the search engine links (nor would we convict the phone company because the phone book contained a listing to the local bookie).

Inducement: there should be no penalty, or provision in law, regarding an 'inducement to breach copyright'. Such legislation is dangerous, because it opens people to prosecution based on what could happen or what could be done with content, applications or services they provide.

Reject a Three-Strikes System: quoting Michael Geist again: "Several countries have begun to consider establishing a "three-strikes and you're out system" that removes Internet access based on unproven allegations of infringement. Attempts at three-strikes systems have struck out in virtually every country where they have been raised. Internet access is far too important to establish a system that would cut off access based on unproven allegations of infringement. The proposals raise a host of due process and constitutional concerns and should be rejected as a possible alternative for Canada."

No Exception for Education

Any proposed 'exception for education' should be rejected. Such proposals treat 'education' to be strictly and solely the domain of educational institutions. However, increasingly, people want to use internet technologies to support their own learning informally.

An 'exception for education' creates a cost that must be borne by self-learners that need not be paid by educational institutions. This entrenches the position of institutions charging tuition in exchange for privileged access and use of copyright content, without essentially improving access to education.

Contract and Copyright

To quote Michael Geist: "The use of contractual terms to effectively void privacy protection or basic copyright user rights has become all too common with cases such as the Sony rootkit providing a classic example of how contractual terms that quash important legal rights are buried beneath the 'I agree' button.

Governments are understandably loath to intervene in privately negotiated contracts. However, not every contract or contractual term is enforceable - there are certain terms (and certain contracts) which run counter to important public policy goals that will often be rendered unenforceable by a sympathetic court. On this particular issue, we should not wait for the courts to intervene. Rather, Canada should identify the core protections and policies that underlie the copyright balance and establish rules that prohibit attempts to 'contract out' of such terms."

In other words, it should be understood as a fundamental principle that the rights of Canadians are not for sale, and cannot be abridged merely through a simple contract or sale. The wording of 'click-through' licenses and 'terms of use' should not be sufficient to extinguish rights inherent under fair dealing provisions.

1 comment:

  1. Stephen,
    I like your philosophical and oh so practical logic you argue here. Sometimes I want to distribute my work free of charge, other times I would like to make some money, so I need copyright that will work in both cases. I am still trying to figure out how to get authoritative non-digital works into the digital domain and allow my students to use them without fear of being sued for copyright infringement. Why make a person pay for 300 pages, when you only want 10-20.
    Second, if I publish something for free, I do not want someone else using that idea or even quote and then try to make money off of my idea. My idea or quote should have the same "free copyright" I place on it. Digitally, we can do this, simultaneously indicating which part of a work is "commercial" versus which part is "free" (XML tagging). It annoys me that the thesis I provided to the National Library of Canada for free was microfiched in 1999, and now UMI charges $39 for my thesis and I do not get a cent. Yes, UMI can charge for processing, materials and make a profit, but why can't I get something out of it? I also did not get a cent out of the previous model whereby the Library of Canada did all the work, but that was OK because the government was not trying to make money off of me and I wanted my work to be shared among anyone that was interested. In fact, under the old model, my thesis cost less much less and was therefore, more accessible. And since public money largely paid for the research, it makes sense that if be cheaper and more freely available than a "commercial" model.
    Some editing comments:
    1. Typo: "now" instead of "not" in "professionals are not in the hands of individuals."
    2. I would hyperlink a reference to Craig Newmark as I am not familiar with the situation you describe.

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