Thursday, October 09, 2014

poking holes in Canadian copyright now more popular than hockey

the attack ad exception... for freedom!

Yesterday, I was asked for comment on this story about how Canada's governing party intends to introduce a new copyright exception allowing political parties the freedom to use proprietary news content in their political advertising without having to seek permission or pay for the use.

Canada's governing party of the day is Conservative, meaning, of course, they fall to the right of centre on the Canadian political spectrum. It might seem relatively clear cut that this story is about that spectrum, and that it is the conservatism of the government that inspires them to try this gambit of freeloading on the good work of Canada's news-gatherers.  Not so.

This story is actually about a pervasive and pernicious exception culture. Exception culture has rendered worldwide copyright laws pointlessly complex and almost entirely impotent. These days, any well-organized campaign of cheap populism can pry yet another hole through the fence protecting cultural production and free speech.  Exception culture, in my experience, holds no particular party allegiance, and has champions across the political spectrum around the globe.

So, here's my comment on yesterday's news:
A copyright exception for political use of news content is a terrible idea, completely unnecessary for principled political activity in Canada. The timing of this proposed exception suggests it is almost certainly a backhanded attempt to force the acceptance of a certain brand of sleazy yet highly effective attack advertisement onto Canada's public and private broadcasters before the next federal election in 2015. Broadcasters, the legal owners of the news content they have gathered and produced, have previously refused permission for these kinds of uses, and/or refused to air such ads. This proposed exception, in combination with certain election laws, would strip Canadians of their democratic right of refusal.

But, I'm not done yet:

Exception culture has overtaken Canada's public sphere. We all know the existence of Canadian Netflix has something to do with important territorial rights of cultural producers, right? Right. And yet how many Canadians use virtual private networks (VPNs) to circumvent those licensing arrangements and access American Netflix streams?  Predictably, this infringement on Canadian rightsholders is dismissed by Canada's consumer activists in the name of... freedom.

If this new political exception is forced into law by our majority government, I will not be the least bit surprised to see parties of all stripes taking advantage of it. And, I predict they will justify their behaviour with populist rhetoric about shared culture, freedom of access, and the public good.

That very same populist rhetoric was used to introduce Canada's disastrous new educational fair dealing exception - overbroad interpretations of which are currently costing the country's cultural workers tens of millions of dollars (annually), while doing nothing to reduce student costs or increase educational materials budgets. Educational fair dealing was introduced  by this same Conservative government, but the exception had many political champions on the left as well. For Canada's cultural workers, to hear some of Canada's most prominent social-democratic voices speak loudly in favour of weakening our industrial rights was a bitter betrayal.
This may be a very narrow exception aimed at news content, but it opens the door to all sorts of other "free" political use of created content - songs used in campaigns without permission, for instance. That's how exception culture works - one exception to established rights (however limited or controlled) inspires another exception, and then another, and then another, with the end result being copyright becomes more exception than right. And while we often think our own proposed exception is only intended for good purposes, self-interest turns us blind to the next perceived "public good" in follow-on exceptions. Thus educators who strongly support educational fair dealing because they want free access very quickly find themselves fighting interpretations of that exception that would see others get free access to their own lesson-planning and classroom work.
The border between copyright and freedom of expression becomes very squishy at this point. If the right of ownership over created content is endlessly undermined by ever new and frivolous exceptions, we will eventually cross the line between true freedom of expression and coerced cooperation. Unpermitted political access and use looks an awful lot like forced political endorsement. Has our exception culture reached the point where our most personally held views can be stripped from our created work and used against our own interests? Sadly, it has. I have no doubt prominent social democrats, educators, library workers and student activists will speak out loudly and angrily against this proposed political trespass. Ironically, they tore down the very barricade they will be trying to defend.

Crafting an effective political message may not always be easy, but it is also not impossible to do without free access to someone else's property. If you find it impossible, maybe you're just not doing politics right. The same can, and should, be said about entertaining ourselves with digital culture, educating others, and building highly profitable information databases online. None of these activities actually require free access. They're just less work with free access. Please, can we dispense with the Tom Sawyer populism? You do your work; I'll do mine. Maybe together we can get this fence back in shape.

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Wednesday, August 27, 2014

you say you want a revolution? who's going to pay for it?

Recent Questions About Open Access Apply Equally to Copyright Exceptions

It's a long standing false conclusion that those who expect to be paid for their work in research, writing and publishing are somehow against greater access to the information contained within their works. Everyone from commercial authors to scientists are regularly accused of being elitist and trying to protect their turf at the expense of a broadly shared knowledge. The image most often used to make these attacks is one of a lock or chain.

Perfectly reasonable digital rights management systems, subscription paywalls, embargoed content within mostly free publications, author actions to oppose free-for-all scanning of in-copyright books by unbelievably wealthy and powerful search engine companies, even perfectly affordable collective licensing agreements intended to pay creators for the industrial copying of their work have variously and unfairly been portrayed as keeping universal knowledge chained up and locked away from the very people it could help.

Nowhere has this disingenuous gambit produced more immediate and damaging effects than in Canada, where the domestic publishing industry, both commercial and scholarly, and the already precarious profession of authorship have suffered an immediate and precipitous decline in earned royalties because educational lobbyists with an eye only to administrative budgets let loose a flood of restricted access fear-mongering, complete with lock and chain imagery, and convinced legislators to dilute copyright law. If we don't get an educational free ride for the millions of pages of copying we do, the argument went, our students will not be able to access all of those pages - they will be locked away from them, and kept, as well, from all of the wonderful digital innovations in pedagogy.

To support their arguments, educational lobbyists pointed often to the growing trend of Open Access scholarly publication. So much of the stuff we want to copy is already free anyway, they suggested, and since we'll likely be using more and more of the free stuff, we really shouldn't have to pay for anything we copy. Open Access became such a trendy catch-phrase and pseudo-philosophy in the last half-decade there have even been attempts to require its use by law. In 2013, the White House Office of Science and Technology released a directive requiring broad open access to the results of all federally funded research. The thinking there was, the taxpayer paid for the research, therefore the taxpayer should have free access to the paper that came from the research. Otherwise locks, chains, gates, deadbolts, etc. and anon. The problem is research, writing, publication and distribution are discrete activities all generating expenses, while the directive only provides funding for the research part.

Of course, anyone voicing any concern whatsoever about Open Access - like, for instance, who the heck is going to pay for all this writing, publication and distribution if the law requires it be given away? - is labelled anti-access. But that has not stopped one highly placed member of the American scientific community from speaking out and asking the hard questions about Open Access.

In an article for the US political journal, The Hill, entitled "What happens when you take something of value and give it away?", Gordon L. Nelson, president of the Council of Scientific Society Presidents, wonders if those drawing up open access directives really had all the facts in front of them when they made those directives. He calls for a "transparent, evidence-based process" that takes into account a host of variables having to do with how much things actually cost, who is expected to invest, and who can best afford to invest. This article is followed up by an interview with Nelson on the blog, The Scholarly Kitchen, entitled Public Access Policies, Open Access, and the Viability of Scientific Societies.

Some excellent quotes from Dr. Nelson:
"Frankly, I am unclear what the public access challenge is. Who does not have access? I am not at a large university. I have always been able to get papers I needed over the years. I've published some 200 papers, plus chapters and books."
"To mount a journal is not free. Publication costs are significant, including hardware, software, management of the peer review process, editorial work and oversight, database maintenance, printing, archiving, distribution and storage."
Let me just jump in here and note Nelson did not include writing as one of the costs in all this. That is, presumably, because he is an academic and the academic economy for writing is very different from the commercial one (academics are paid for their research and writing as part of their salary - tenured salary often). For commercial publication where much, and often all, of the up-front risk and cost of the writing work is borne by the writer, the costs of writing must be factored in.
"Immediate open access publishing requires authors... to pay publication fees on the order of $1500 to $3000 per paper. In disciplines where that has not been the norm, where are researchers to get that money?"
Is Nelson suggesting we throw locks onto scientific knowledge? Does he want to chain students away from learning? Of course he doesn't. He simply wants scholarly publication to remain viable, even profitable, so that it can continue to advance knowledge and to subsidize conferences and symposia where even more learning is done.

The same concerns must be applied to the Canadian writing and publishing sectors. The changes to copyright law that have so damaged a crucial industry were made, I would argue, somewhat outside an evidence-based process, at least not one in which the evidence was particularly reliable.

I want to be perfectly clear here and state that I don't blame Canadian legislators for the changes to the Canadian Copyright Act. I watched the public consultations very closely, even participated in them. Legislators were told in public testimony that the proposed changes would not damage existing collective licensing agreements. We were all assured a free ride was not what was being requested. Some of us did not believe a lot of the testimony; it seemed, at best, overly optimistic. But those who did believe it acted in good faith. They will, hopefully, continue to act in good faith and recognize the unintended consequences that have most definitely occurred.

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Thank you, as always, to magazine guru D.B. Scott for pointing me toward Nelson's article.

The image of the lock above was taken in my very own office by my very own iPhone.

Friday, August 08, 2014

a variety of thoughts on Hachette/Amazon... and on ebook royalties

Yesterday, after a hell of a lot of careful analysis, discussion, debate and argument among our volunteer leadership, I had a staff member press publish on The Writers' Union of Canada's public statement about the ongoing, and increasingly nasty dispute between publishing giant Hachette Book Group and online retailing giant The disagreement between these two companies is in its fourth (fifth?) month right now, and several new salvos of ammunition will fly tomorrow when an ad hoc group of 900 or so international authors publishes an ad in the New York Times calling for peace.

Quite predictably, I arrived at the office this morning to find criticism of the TWUC statement in my e-mail in-box. Also quite predictably, that criticism came from every conceivable direction. TWUC had been too hard on Amazon and/or Hachette. TWUC had been nowhere near hard enough on Amazon and/or Hachette. TWUC had given independent booksellers a free ride. TWUC favours traditionally published authors over self-published authors. Vice-versa. Etc.

I also found praise in my in-box, but you know how it is... one little blemish can define the whole apple.

This posting is not a complaint. I like blemishes on my apples (means they're real). My mind was clear when I signed the contract for this job. I knew what I was getting into. I chose this industry for my career BECAUSE it is an industry of ideas, of thinking (careful and otherwise), of opinions (both the half- and fully-cooked variety) well-constructed and firmly issued. That's how real people operate and, for the time being anyway, this is an industry of real people.

I believe strongly in the TWUC statement because it focuses on a call for decent behaviour in the marketplace (from all players), the value (rather than the price) of books and authorship, and a fact-based understanding of a changing business. It's very easy to see this issue split between two opposing sides, and I think it would be very easy to pick one or the other side and splash around madly in the rhetoric of that particular camp. TWUC created its own side, the side it believes it is asked to represent. The fact that many folks within and without TWUC feel uncomfortable with this or that aspect of the statement tells me we got the words in it just.. about.. absolutely.. correct.

The Amazon/Hachette fight also gave TWUC the opportunity to focus on some math it has been doing about author royalties on ebooks. Considering the long history of publishing and bookselling, the market for ebooks is still in its infancy, which means that the hard costs for ebook production and distribution are perhaps not fully fleshed out. Certainly an author puts in just as much personal investment of money and time into writing a book whether it ends up on paper, pixel or both.

I love that the self-publishing universe is expanding, I love that many authors are making big bucks in that universe, and I'm dedicated to helping TWUC's self-publishing members with their careers as best I can. All that said, I believe in the ongoing value of traditional publishing - the real value, the numbers value. When I sign with a traditional publisher (as I have), I am relieved to not have to do the work they have agreed to do, and I want to feel the business deal we strike for that work is fair for both of us. So, I do the math. At the moment, my math is telling me that a 25% author royalty on ebooks is too low.

I'd love to hear what others think of the math, and I'm pretty sure that means I will hear folks tell me it's wrong for one reason or another.* Okay. The royalty math page on the TWUC website, like the public statement about Hachette/Amazon, is about discussion and dialogue.

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*The numbers for the royalty math presentation do not come out of thin air, btw. We consulted widely across the industry on this. 

Tuesday, July 15, 2014

anti-spam law to make life better with its smile

Barry Sookman is a highly respected practicing lawyer, educator and commentator. He is unquestionably Canada's leading expert in copyright, intellectual property, computer, Internet, and e-commerce law. Sookman and his firm, McCarthy T├ętrault, have been on top of Canada's Anti-SPAM debacle from day one, providing invaluable legal analysis for Canada's not-for-profit community about how to attempt to be compliant with what appears to be, by nearly all accounts, a misguided and ultimately ineffectual legal overreach in the name of "consumer protection." You must read his latest in-depth analysis of the CASL saga, in which he absolutely undresses one of CASL's greatest defenders.

The introduction of the new Anti-SPAM law, known as CASL, is the reason you (if you're a Canadian) received all those somewhat desperate "Let's Keep in Touch" e-mails from various charities, advocacy groups, cultural businesses and not-for-profits at the end of June. Maybe you didn't notice those messages because maybe they went into the spam-filter on your e-mail server, as they did for many. Yes, the approaching anti-spam deadline resulted in... spam.

Why? Because, all those very good, dedicated, already overworked professionals were scrambling for some sort of due diligence in order to not run afoul of the law by inadvertently sending an electronic message that could be interpreted as "commercial" in nature. They suddenly needed your express consent to keep trying to communicate their message, their mission, their passion. A law purportedly aimed at herbal Viagra peddlers and those con artists who fill your in-box with worrisome link come-ons and Nigerian money transfer offers was making its first real impact (and possibly its only impact) on well-meaning folks who are instead actually trying to do some good in this world. I personally spent about twenty hours in meetings trying to figure how my own organization could keep doing business honourably and effectively and, frankly, I'm still not sure if we're doing everything absolutely correctly.

By the way, if you want to unsubscribe from this blog posting, please click here. Or, just stop reading and don't visit this blog again. You have personal agency. I encourage you to use it!

Would some sort of legal remedy for uninvited herbal Viagra messaging and illegitimate lottery-win phishers be welcome? I suppose. Does anyone really believe CASL is anything like that remedy? At best, CASL was an earnest, well-meaning try by the federal government - and good on them for trying. There's no real shame in admitting it didn't work as planned. Look, no-one enjoys genuine e-mail SPAM. I hate the stuff - but look at this tiny yet representative sample of what has appeared in my own SPAM filter since the July 1st CASL deadline that promised the end of all this stuff:

"Last Day! - LV bags 6O-8O% 0FF" 
"My dear Jack, I am easygoing, realistic, humorous, clean-cut, kind and affectionate. I have a good taste. I am fond of traveling, listening to music, cooking and going to the gym.
I like everything beatiful and try to make my life beautiful. I will make your life brighter and better with my smile..."
"Which diet suits you BEST for controlling blood sugar"

I don't know what an LV bag is; my name is not Jack; and you can bet if I ever did send out a commercial message with a question in the subject line, it would be properly punctuated!

As Barry Sookman points out in his excellent blog posting, the new law is now, rather sadly, being touted as a "privacy law in disguise." I saw that claim online last week, which prompted me to tweet this:

Canada's anti-spam law really a privacy law in disguise... because, um, the best laws are "in disguise"?

Here's hoping Canada's anti-spam law story is not over, that we discard what doesn't work and fix only that which is actually broken. Let's save the disguises for Halloween.

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Photo of a smiling Barry Sookman courtesy Barry Sookman.

Tuesday, June 03, 2014

UBC accused of trying to appropriate intellectual property... by its own faculty

A while back, I pointed out why I thought college and university instructors should be very worried about their administrations' increasing insistence on free copying to keep down their (already small) materials budgets. In my opinion, faculty are being left in the legal wind, forced to follow copying guidelines that have no real legal foundation.

Earlier than that, I noted that the Supreme Court of Canada seemed to have drastically reduced the concept of "teaching". Whereas we previously understood that a teacher was a highly trained professional who combined a thoughtful pedagogy, advanced empathy, an impressive work ethic and an abundance of volunteering, the SCC seemingly reduced the profession to s/he who hands out copies of written material to students. I warned that this looked to me like a gloomy portent for teachers going forward, especially in contract negotiation. The Supreme Court washed the instruction part right out of the profession of teaching, as well as the individualism.

It is a commonly understood trait of chickens that they do come home to roost, and it sure looks like the chickens of free culture are no longer satisfied with what they can peck from writers outside the academy. They are roosting, and pecking, on faculty. Last October, the University of British Columbia Faculty Association sent an e-mail to the university's legal counsel expressing deep concern about a new policy mandating that faculty share their personal intellectual property with the wider university community.
"...we strongly object to any policy that mandates, overtly or by inference, that faculty provide others, including the University itself, open access to their intellectual property. Such a policy is not only contrary to the fundamental tenets of the academy, but it is an attack on academic freedom and the legal and customary control faculty members have over the fruits of their intellectual labour."
That is a beautifully written objection. I agree with it wholeheartedly. The UBCFA further argues that the pressure to give up their IP rights may actually "lead to less sharing and innovation" by faculty. Again, I agree, and I imagine most if not all professional writers in Canada would as well, whether they are connected to a university or not.

The UBCFA went so far as to file a grievance on the issue, and to send notice to the administration that, pending the outcome of the grievance, "Teaching Materials may not be used by the University or by other UBC Instructors as contemplated in Policy 81, in the absence of express permission from individual faculty members to do so." The administration was quick to flatly deny the UBCFA this demand.

Coming to the defence of its members at UBC, the Canadian Association of University Teachers (CAUT) sent a strongly worded notice to UBC President Stephen J. Toope that CAUT intends to "censure the University of British Columbia at its next meeting in November 2014" unless UBC stops appropriating faculty intellectual property.

I have no idea what is entailed in an official censure of a university by the CAUT, but it doesn't sound pleasant. On the other hand, this is where this whole story gets weird for me. I have always believed writers and teachers (and students and librarians) are actually on the same side in intellectual property disputes with educational institutions. IP rights are the individual rights of everyone, and when one group's IP is appropriated, everyone's is. But that has not always been the opinion of the good folks at CAUT.

When Access Copyright launched its entirely justifiable lawsuit against York University, claiming York had overstepped with claims of fair dealing for massive, industrial, course pack copying of writers' work, CAUT was one of the first groups out of the gate to denounce the legal action, calling it "hopeless" and insisting that collective licensing (which is essentially a legal sibling to the collective bargaining teachers' unions do) is "obsolete."

That CAUT is now insisting on protecting the intellectual property rights of its members (many of whom are also Canadian authors whose non-academic work continues to be appropriated by fair dealing overreach) seems strangely inconsistent. Only some of their members' intellectual property rights are worth protecting?

I believe all of their rights are worth protecting, as does The Writers' Union of Canada, which has always publicly supported teachers, librarians and students in their own disputes with administration. Whenever I speak with groups of individual instructors, students or library workers, they completely agree that IP rights are tied to employment and fair pay rights. I'm going to take it as a hopeful sign that the teaching associations seem to be coming around on that point as well.

(image courtesy the UBCFA website)

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