Digital Kayak Seeking Balance in Canadian Copyright Law We need a new copyright model. Artists, musicians, film-makers, all deserve to be compensated for their work, but the public's rights must also be respected. By Adrian Duyzer

Published August 20, 2009

Canadian copyright law is currently the subject of public consultations. The last time the government tried to introduce a copyright bill was in 2008 with Bill C-61, which would have been disastrous for Canadians had it passed. Fortunately, it died on the order paper when the government was dissolved.

The Conservatives are taking another crack at it now, but this time they are consulting the public before they introduce a bill. Of course, the public doesn't just mean ordinary Canadians. It also means powerful lobbies representing the music and movie industries and the organizations that launder policy for them, producing reports that are outdated, false and even outright plagiarized.

The positions of these lobbies have coalesced. They are advocating for a "three strikes" policy that would revoke Internet access for users alleged to have engaged in copyright infringement; legislation to prevent people from picking digital locks (defeating DRM); a policy called "notice and takedown" that means a copyright holder can allege a service provider is hosting copyrighted material which forces them to take it down; limited fair dealing provisions; and other restrictive policies.

These organizations want you to think that copyright exists simply to protect the rights of creators. That common perception is not true.

Piracy and Preservation

For centuries, the only way books could be distributed was by the painstaking effort of scribes. Before the 13th century, most books were produced by monks. During the 12th and 13th centuries, secular scribes began copying books for commercial purposes.

Scribes had a demanding task. The only way to copy books was by hand, letter by letter. Scribes needed to be highly educated and extremely dedicated. Their task was technically challenging and morally perilous: the duplication of holy books required rigorous attention to accuracy, because putting words in God's mouth was not taken lightly.

The labour of scribes is the reason we are still able to read books that were written thousands of years ago. The works of Homer, Plato and Sophocles, the Bible, histories of the Roman and other empires, have all come to us by way of their efforts.

If scribes existed today, however, we'd have a different name for them. We'd call them pirates.

The Copyright Bargain

The word pirate has lost much of its sting in the modern era because of fictional characters. There's a certain romance associated with pirates, until you're confronted with their brutal reality, which is a lot more like the coast of Somalia than the deck of Captain Jack Sparrow's ship.

In the sixteenth and seventeenth centuries, authors started using the word pirates to refer to the publishers of unauthorized copies of their works. Their frustration with these copies was not always rooted in economics. Martin Luther was mostly concerned about the veracity of the copies: "[these] thievish pirate printers handle our work faithlessly. Because in their hunger for money they do not worry themselves about whether one of their pirated texts is correct or erroneous."

When today's copyright lobby uses this term their rationale is simple: people who copy are pirates, hijackers, and thieves, so they have no rights. That means the only side whose rights matter in the relationship between content producers and the public is the side of the content producers.

That's a distorted view of copyright. The Statute of Anne, enacted in Britain in 1710, is the first full-fledged copyright law (Canada's copyright law was based on the British Copyright Act of 1911, the third successor to the Statute of Anne).

Its two reasons for existence: the prevention of the ruin of authors because of unauthorized copying of their works, and "the Encouragement of Learned Men to Compose and Write useful Books". Why encourage the writing of useful books? Because useful books are good for society.

The US constitution provides for a copyright system in Article I, Section 8, where it claims the right of the state "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". In a court case decided in 1932 (Fox Film v. Doyal), the US Supreme Court ruled that "The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors."

In other words, when the US Constitution speaks of progress in "science and useful arts", it does so to enrich society.

So the intent of copyright was never to simply reflect the wishes of content creators. There's a balance here, which forms the basis of the copyright bargain. In order to encourage authors to publish new material, the government has bargained away our right to copy works. But how fair is this bargain?

Copyright Should Serve Public Interest

In Canada, the law is already stacked heavily in favour of copyright holders. Copyright holders hold exclusive rights to publication, presentation and adaptation into other works: virtually any substantial use of the work at all. And copyright lasts a long time: the author's life plus 50 years.

The public, on the other hand, gets some rights under the principle of fair dealing (fair use in the US). This allows for news reporting, reviews, private study, educational use, research and criticism. In Canada, many of the activities allowed under American fair use provisions are not legal, including parody, reverse engineering, and time-shifting (that's right, what you do with your DVR/PVR is not technically legal).

Richard Stallman argues in Misinterpreting Copyright, "If copyright is a bargain made on behalf of the public, it should serve the public interest above all. The government's duty when selling the public's freedom is to sell only what it must, and sell it as dearly as possible."

Will the Conservative government drive a hard bargain on behalf of Canadians?

New Copyright Model Needed

Right now, the copyright lobby is urging the Canadian government to pass harsher laws, laws that if passed will undoubtedly have serious consequences for the unlucky few who are singled out from millions of Canadians for prosecution.

They are doing so because their industry is undergoing major structural changes that they are helpless to prevent. The entire business model of record labels has been turned on its head. Artists that used to be reliant on record labels for distribution can use the Internet instead (Radiohead and Nine Inch Nails are notable examples).

File sharing is incredibly widespread. According to the Electronic Frontier Foundation (EFF), 60 million Americans have used file sharing, more than voted for Barack Obama. This is not a phenomenon that can be stopped.

What we need is a new model. Artists, musicians, film-makers, all deserve to be compensated for their work. The public's rights must also be respected. The situation cries out for a creative resolution that fairly balances the rights of both sides in the copyright bargain without criminalizing file-sharers (or revoking their Internet access on the basis of allegations).

Other models do exist. The EFF has proposed a system called voluntary collective licensing, the same system that "brought broadcast radio in from the copyright cold in the first half of the 20th century":

Songwriters originally viewed radio exactly the way the music industry today views KaZaA users - as pirates. After trying to sue radio out of existence, the songwriters ultimately got together to form ASCAP (and later BMI and SESAC). Radio stations interested in broadcasting music stepped up, paid a fee, and in return got to play whatever music they liked, using whatever equipment worked best. Today, the performing-rights societies ASCAP and BMI collect money and pay out millions annually to their artists. Even though these collecting societies get a fair bit of criticism, there's no question that the system that has evolved for radio is preferable to one based on trying to sue radio out of existence one broadcaster at a time. [...] The same thing could happen today for file-sharing: Copyright holders could get together to offer their music in a "blanket license" - easy-to-pay, all-you-can-eat, music buffet. We could get there without the need for changes to copyright law and with minimal government intervention.

This may not be the best system, but it demonstrates that there are creative solutions to this dilemma, including some that haven't even been dreamed up yet. I think we can develop a made-in-Canada approach that benefits everyone, not just corporations clinging to an outdated business model.

Your Chance to Speak Out

The copyright consultations end on September 13, which means there is not a lot of time left for you to tell the government what you want from new copyright legislation. All you have to do is visit the website and answer a few questions in an email.

For an example submission, check out Michael Geist's submission on speakoutoncopyright.ca (the entire site is an excellent resource). When I send my submission, I'll post it here as well.

Adrian Duyzer is an entrepreneur, business owner, and Associate Editor of Raise the Hammer. He lives in downtown Hamilton with his family. On Twitter: adriandz

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