we're all right Jack!

(earnings for Geist, Trosow & Katz from the Ontario public compensation list. Earnings for Knopf estimated by averaging the previous three. Earnings for Cdn. artists based on 2009 Hill Strategies study)

Canada's copyright licensing agency, Access Copyright (of which I am a creator affiliate), has just this week concluded a licensing agreement with two of our largest, most-populated universities. When the University of Toronto and the University of Western Ontario agreed to a new license allowing broad use (in both print and digital formats) of Access Copyright's vast repertoire of works for the reasonable fee of $27.50 per student, they essentially declared a belief that publicly available Canadian content has real value in their classrooms.

One might think that such a declaration shouldn't ever be necessary. After all, who would argue that publicly available Canadian content had no value in Canadian post-secondary classrooms?

Free culture, that's who.

Since the negotiation and signing of this agreement (and it was a negotiation - AC asked for $45 per student, and agreed to $27.50 per student) the Free Culture Strategy Office (FCSO) has been in a right panic. You could hear the sound of heads banging on desks as soon as the agreement was made public on Tuesday. So, in some sort of order:

1.  Always classy fair-dealing expansionist, Howard Knopf, raised the specter of national socialism when he labeled the agreement a capitulation by the two universities.

2.  University of Western Ontario Associate Professor Sam Trosow (one of the architects of the Access Copyright opt-out movement) repeated the c-word on his own blog, taking a broad swipe at his own employer for focusing on rebranding when presumably they should have been focusing on not paying artists. Trosow's blog posting is essentially a copy of Knopf's. That's just how these guys roll.

3.  University of Ottawa law professor, Michael Geist, has so far not expressed his obvious exasperation with the agreement, choosing instead to feign objectivity and leave the public teeth-gnashing to his fellow free-culturists. But let history not forget, Geist was calling for the end of Access Copyright licensing more loudly and more harshly than anyone.

4.  Yesterday, University of Toronto law professor Ariel Katz joined the grief parade, following Trosow's example and publicly attacking his own employer for agreeing to pay a license fee to Canadian creators. He went so far as to suggest that by signing the agreement, U of T is somehow participating in the suppression of learning:

"...UofT lost an opportunity to stand up, show leadership, and ensure that copyright law will be used for the encouragement of learning and not for suppressing it."

The suppression of learning?

The attack on Access Copyright's licensing at Canadian universities was complex and deeply ideology-driven, but the free culture circus show was always careful to keep price and the suffering student front and centre.

The wailing we hear now from free culture proves their resistance had nothing to do with the price or the students. This was about inflexible ideology and wanting a win at all costs.

UofT and Western bargained in good faith for a repertoire of established value, and reduced the fee from $45 to $27.50. In announcing the agreement, both institutions highlighted the value being presented to their students. There's only one way you could see this as capitulation, and that's if you would only be happy with no license at all. Tens of millions of dollars for creators come out of this development, all of which would simply vanish if Katz's fair dealing muscle-growth were to be taken seriously.

The great victory for Canada's creators this week has little to do with an agreement that was all but inevitable - no, the great victory is that free culture has dropped its friendly mask once and for all.

We hear all the time "Sure I believe artists should be paid, but..."

Well, no more Mr. Katz, Mr. Geist, Mr. Trosow and Mr. Knopf. Skip the friendly opening clause. Canada's artists don't believe you anymore.

We're all right Jack!

As you can see from the bar-graph above, the combined annual earnings for the four* wise men of free culture and fair dealing in education are better than half a million dollars. That such comfortable members of the academic and legal professions can stomach their own advocacy against copyright payment to artists (average annual earnings at about $23,500) can only be the result of ideological blindness. These fellows are so deep into their theories, they can't see the reality in front of them.

Canadian universities use the Access Copyright repertoire. That repertoire is not free. The price Canada's artists ask is fair.

Full stop.

For those unfamiliar with the turn of phrase in my title, here's a succinct explanation from the urban dictionary:

"I'm all right Jack! - Narrow-focus, narrow-gauge pseudo-Darwinian selfishness glorified as a sensible philosophy of society and life."

 
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* I don't actually know Howard Knopf's annual earnings, as they are not publicly disclosed. Therefore I have generously allowed him the average of his fellows.

getting down to business

Last evening, at York University's fantastic Schulich School of Business in downtown Toronto I gave an hour-long presentation on Canadian copyright reform and the attack on the cultural industries by free-culture theorists. It was a summary of the history of reform attempts over the last decade, and a reiteration of some of the basic concepts behind the fight that don't always reach the layperson.

I am, of course, a layperson myself (not being a lawyer); but I hope I'm an informed layperson, since copyright and the fight to bring Canada's Copyright Act up to digital speed has been a focus of my professional work for twenty years at least. The class was full of future arts managers (maybe... you know, if there's still a cultural industry for them to graduate into) who listened with great interest, and asked penetrating questions. Every time I give one of these presentations, I'm reminded that copyright is both more complex and far more simple than it can appear, and that when folks are presented with the realities of the topic, as opposed to theory, they tend to get it.

Today, university students across Canada are marching in their respective cities, voicing their concerns about the rising cost of education and the very design of post-secondary schooling. As they do so, no doubt Canada's free culture activists will try to whisper in their ears, telling them that copyright is one of the major factors in their rising costs. After all, didn't the University of Toronto and the University of Western Ontario just agree to a new $27.50 per student fee for the use of copyright-protected materials in their classrooms?

Reality, as opposed to theory:

As I've shown in past postings on this blog, the license fees for blanket copyright clearance in Canada's universities and colleges represents a minuscule fraction of the budgets of our schools. Think of it this way: for every $100 a student (or a student's parent) pays for university tuition, about 12 cents would go to a licensing arrangement such as the one signed by U of T and Western this week.

By contrast, $56 out of the $100 in tuition fees would go to paying staff and faculty salaries.*

So, 12 cents to those creating a large portion of the educational resources, 56 dollars to those delivering the resources.

Follow the money:

There is consternation in Canada's free culture community today because of the license-signing by U of T and Western. Lawyer, Howard Knopf has dramatically labeled the signing a "capitulation" to Access Copyright. This wording pulls back the curtain on how free culture really views professional cultural creators. By creating culture, we are somehow attacking it.

Western professor and prominent free culturist Sam Trosow also strikes a mournful tone when he notes that his own employer has set back the free culture agenda:

"...the UWO/UofT abandonment of the opposition to the tariff could substantially undermine ongoing efforts of other institutions and educational groups who are objecting to the proposed tariff at the Copyright Board..."

And, interestingly, Canada's head free-culturist, University of Ottawa law professor Michael Geist has stayed mostly silent on the topic of the license agreement, pointing instead to his colleagues' blogs for commentary. This is a bit odd, since Geist is widely regarded as the energetic force behind the recent attack on Access Copyright and, indeed, the very concept of collective licensing in the educational environment.

Since this is a day for examining the money in education, it's probably worth noting that both Trosow and Geist make base salaries large enough to place them on Ontario's publicly available compensation list. Geist appears to be making close to $135,000 a year, while Trosow clocks in at a more modest $118,000.

(click on the images above to enlarge)

You won't find too many, if any, working professional artists on the same list, or even in the same salary bracket in Ontario. The average earnings for a working artist in Canada have most recently been calculated** at $23,500 per annum.

Am I saying our professors, administrators and other educators are not worth the portion of the budget they represent? No, I'm not. I think Canada has some of the best post-secondary educators in the world and they deserve to be paid well.

Canada also has some of the world's most talented cultural creators, and they also deserve their place within the educational pie chart, however small a place that may be.

*Numbers based on previous calculation comparing proposed $45 per student copyright tariff and the 2007 University of Ottawa budget.


**Artist earnings drawn from a 2009 Hill Strategies Report.

 
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a whiff of spring

Toronto is in the midst of a midwinter thaw today, and so too it seems are the copyright wars. The end of January brings all sorts of news of respect for artists, respect for the truth and respect for changing business models.

Last night I listened to a podcast of NPR's Talk of the Nation, which included a piece on How Online Paywalls are Changing Journalism. This story contained the welcome news from The New York Times that its much-maligned (by free-culture activists) new subscription/paywall structure is, in fact, working. Not only is it working, but its structure is being emulated by other newspapers

Critics have said NYT's online subscription (I am one of its subscribers) would simply not work with today's Internet. For instance, famed new media prognosticator, Cory Doctorow suggested the NYT's model was not viable and that potentially paying customers would be turned off by its complexity. He even offered to bet a testicle (someone else's testicle, it should be noted) that no-one would be able to keep track of their own NYT linking behaviours well enough to find value in the subscription.

Similarly classy predictions can be found across the web, almost all of them containing that endearing free-culture message that anyone who wants folks to pay for content on the Internet is just plain stupid.

Stupid like a fox, it seems. The NPR discussion included input from both Clay Shirky,  associate professor in the Interactive Telecommunications Program at NYU, author and Denise Warren, senior vice president and chief advertising officer at the New York Times Media Group, general manager for NYTimes.com. It seems the NYT has hit upon an NPR-style supporter model that is attracting both loyal, paying customers and advertisers who want to get some of that loyalty action for themselves.

Alright, so we've fixed newspapers, now what?

Ah, educational licensing. Canadian free-culture activists took a big swipe at Access Copyright last summer, agitating for a boycott of collective licensing in the post-secondary context, using misleading math around the price of new licenses, and irresponsibly endangering the quality of education for tens of thousands of undergrads across the country.

Yesterday, two of the largest and most respected universities in Canada officially opted out of the proposed licensing boycott and signed good-faith agreements with Access Copyright, the licensing agency representing tens of thousands of Canadian creators. A joint press release went out yesterday from AC and the universities. As a graduate (twice!) from the University of Toronto, I am very happy indeed to know my alma mater chooses to bargain in good faith and work hard to respect copyright. I believe I will walk down to campus after posting this and hug a librarian.

"This agreement gives us a convenient, comprehensive way to share content digitally and in paper form from a repertoire of millions of publications,” said Janice Deakin, Provost and Vice‐President (Academic) at Western. “The backdating of the agreement gives us peace of mind by covering past digital uses that may have exposed the university and the indemnity provision increases the university’s legal protection against copyright infringement.”

Western and UofT will each pay Access Copyright a royalty of $27.50 per full‐time equivalent student annually. This royalty includes what used to be a separate 10 cents per page royalty for coursepack copying, so there will no longer be a separate royalty for such copying. The new royalty is substantially below the amount initially sought by Access Copyright in its Tariff application before the Copyright Board.

And finally, respect for accurate reporting.

The online journal ars technica has not been the best friend of professional artists and the cultural industries in this protracted battle for copyright reform, but it seems even they could no longer stomach the willful exaggeration and misinformation campaigns of free culture. Yesterday, ars technica took the Internet to task for inaccuracies in its attack on the Anti Counterfeiting Trade Agreement ACTA), one of a host of international agreements that, like the American SOPA and PIPA laws, free culture hopes to hobble by scaring the wits out of naive Internet users. Have a look at this, fairly typical, video attack on ACTA:



If you then read the ars technica article you see that it addresses each of the video's scariest claims about ACTA and shows how they are not just inaccurate, but often just plain false. Yet it is negative campaigning like this video that is used by free culture theorists to whip up anger and send young people into the streets in the false belief that their freedoms are under threat (remember the claims that SOPA would shut down YouTube? Same idea) . ars technica references this exact video, saying:

...the video itself is full of erroneous claims. The video has been embedded by outlets that should know better, like The Atlantic, and it has been viewed half a million times.

What's that delicate scent in the air? Why, it's the delightful aroma of reality. Can a true copyright spring be far off?


 
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how your kids were taught to hate SOPA

Post-blackout analysis continues today with a general recognition that US legislators have been scared away from legislating, and a new approach to attacking the problem of online piracy will have to be designed.

You can see this as something anywhere on the spectrum from great victory for grassroots democracy to needless waste of time and legislative effort. My view should be apparent.

Before I leave the topic for now, though, there is one aspect of the this blackout story that continues to nag.

How the message was spread that SOPA and PIPA were apparently so threatening to humankind.

Google and Wikipedia, among a number of other prominent web-based companies (mostly for-profit... mostly for obscene levels of profit), have permanently handed in their neutrality cards and made it perfectly clear that they will do everything in their power to influence your political opinions.

Fair enough for Google, I suppose. I don't know anyone outside the free-culture fanatics club who still believes Google has only our best interests at heart. How Wikipedians deal with their own suddenly unmasked bias will be interesting to watch. If Stephen Colbert has not yet coined the term factiness, I offer it to him free of charge.

Very sadly, the popular teaching site Khan Academy also got into the act on Wednesday. Who does not love the idea of  Khan's short, engaging, simplifying video lessons for kids and adult learners on subjects as broad as simple arithmetics to advanced physics? During the blackout, we learned that Khan had uploaded a special lesson on SOPA. I encourage everyone to go watch it here - but as you watch it, I would ask that you apply as fine a legal filter as you can muster. To me, there is something simply horrifying in the lack of legal nuance on display in Khan's anti-SOPA lesson -- and let's not fool ourselves, this is not a lesson about specific legislation; it is teaching against specific legislation that reflects an undisclosed worldview.

Khan very engagingly draws out a diagram of how SOPA is intended to work. He then goes into the language of the proposed bill to show fearful consequences. Those consequences, he emphasizes again and again could be as bad as someone shutting down YouTube or Facebook or any other prominent American site "on a whim."

Here's how he does it. Have a look at the legislative language quoted below, especially the words in red text:

(1) DEDICATED TO THEFT OF U.S. PROPERTY- An `Internet site is dedicated to theft of U.S. property' if--

(i) the U.S.-directed site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates--

As though breaking down the reasoning behind 2 + 2 = 4, Khan explains that since YouTube and Facebook can be seen as sometimes enabling or facilitating copyright infringement, they would qualify as "dedicated to theft of U.S. property," and QED they could be shut down ... on a whim.

Teach your children well.

Let's look at that wording again with a slightly different emphasis:

(i) the U.S.-directed site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates--

Who believes YouTube or Facebook are primarily designed or operated for the purpose of, have only limited purpose or use other than, or are marketed by their operators to steal U.S. property? Raise your hands.

I thought not.

Shameful. 

Now, none of these examples of naked bias are particularly bad developments in my view. I hope everyone learns a lot from what has happened this week. I hope high school students everywhere now realize they need to ruthlessly question everything they read on Wikipedia and everything they watch on Khan Academy. I hope web searchers wonder how Google might just be filtering search results before they click I'm Feeling Lucky.

SOPA is dead, for now, and new legislation will have to be designed. In the meantime, I hope more folks start wondering just how much of that scary SOPA story we were told this week was actually true.

 
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you may just have become a gadget

There will be a lot of digital ink spilled analyzing yesterday's SOPA/PIPA website blackout protests. I made my own opinion clear, I hope, in yesterday's posting.

As I take a quick look around the web this morning, I see prominent members of the free culture movement crowing about a great victory. People noticed we were gone; that means they agree with us!

Okay.

I think the actual response will be far more nuanced and considered, and will be analyzed over a much longer period of time than half a day.... but that's me, a hopeless optimist for clear thinking.

Happy free culture commenters are already starting to think of January 18, 2012 as the day everything changed, the day new media permanently arm-wrestled control from old media - a sort of Emancipation Day.

If emancipation suddenly means that we all push the buttons we're told to push when we're told to push them, then I suppose those commenters are right. Wikipedia, Google, Reddit and a host of other "new media" powers told the world to jump yesterday, and a large part of the world asked "how high would you like us to jump, sirs?"

Me, I have always thought the old media/new media dichotomy was false.

The danger of so called "old" media was always that by its very structure it might act as a gatekeeper to real understanding. It might mistakenly or intentionally mislead, falsify or corrupt. Yesterday showed that so called "new" media carries the exact same danger.

The blackout was not about educating an uneducated public by giving them enough information so they could make up their own minds; it was about carefully curating the message (oh, Marshall McLuhan, where are you when we need you?), about directing people to one prescribed conclusion. Interestingly, while new media shuttered itself yesterday, they turned to old media to push their message. I heard many a technologist on radio and television last night repeating the standard buggy-whip talking points. That this curation of the message was run primarily by a supposedly neutral search engine and a supposedly neutral encyclopedia is, to me, deeply unsettling.

Newspapers and network television were never about mindlessly accepting what was presented to us without independent discussion, challenge and the hard work of making up our own minds. They could and sometimes they did drive opinion, but it was always up to us whether or not the media had the power to do so. Passive acceptance of the message is a choice.

It remains a choice even now, the day after that remarkable display of groupthink power that was Emancipation Day.

I don't think there's a sharper mind thinking about the Internet and the supposed old media/new media split than Jaron Lanier. Author of You are Not  a Gadget, inventor of virtual reality and researcher at Microsoft, Mr. Lanier walks his own path. He has alienated himself from many of his Silicon Valley friends by determinedly not drinking the Kool Aid (TM) of forced free culture.

In his op-ed in the New York Times yesterday, Lanier takes his friends to task. He argues that those who spread the false alarm about free speech yesterday regularly chill criticism and dissenting opinion within their own sector, and instead of fighting to secure a truly open Internet, they are actually fighting for the so called "free" territory they land-grabbed and intend to hold forever. The victory they are crowing about today is not a victory for you and me (especially if you clicked their links and made their threatening phone calls to legislators yesterday).

Mr. Lanier spoke in Toronto last year. That's him at the top of this posting, signing the print on paper book I bought from him. I recommend folks read You Are Not a Gadget.

Then read lots of other stuff, and make up your own minds. Or better yet, do whatever the hell you want to do. That's what real emancipation is all about.

 
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