Tuesday, February 05, 2008

lock up the artists, but first overthrow them

Hey, I see an act to amend the copyright act is on the order paper for Parliament today. So, I didn't miss much on my week away from the wars. That's good, because I've had a shocking realization.

I spent most of last week across the border in the United States, researching and writing a novel partly set there. Buffalo, NY -- is there a prettier city between Lake Erie and Lake Ontario? I don't think so.

Still, I had not realized just how horrible a toll the American Digital Millenium Copyright Act (DMCA) has taken on that country. Last Wednesday, the streets of Buffalo flooded with water and ice jams from the Niagara River, decades old pine trees fell all over the city, power lines collapsed leaving tens of thousands without electricity on one of the coldest days of the year. What caused all this? The DMCA. It must have, yeah, since it's the symbol of all that is evil and corporate in the world these days.

I had hoped for calmer rhetoric on my return. Oh well. Now I just hope Prentice's Act today does not contain the letters DMC and A in that order, because I don't think I can spend another day dodging power lines and trees.

So, what in the rhetoric saddens me today? I'll focus on two things:

First The Council of Ministers of Education, Canada (CMEC) released a statement on what they'd like to see in the Copyright Act. This is their right, and strangely, I feel no need to question whether or not CMEC truly represents to folks they claim to represent in this statement. I'm pretty sure they do represent the majority opinion in their sector. Hell some of what they say represents my opinion well, and I disagree with them.

Take this part, for instance (the first sentence):

In the federal government’s attempt to modernize our country’s copyright laws, it must address the educational use of the Internet.

Couldn't agree more. Yay CMEC. Unfortunately, after that, it gets a bit murky:

Teachers, students, and schools — elementary, secondary, colleges, and universities — need an amendment to the Copyright Act allowing them to use material on the Internet that is publicly available for anyone to use, without being afraid they are breaking the law.

The problem with this statement is that it's not true. No amendment is necessary. Teachers, students and schools have all sorts of existing provisions under copyright for use of material on the Internet. In this way, they are no different from any other citizen, including artists, who all enjoy the same provisions. Furthermore, when educational institutions sign license agreements with copyright collectives like Access Copyright, they then also gain the right for use above and beyond the standard provisions -- commercial use, such as planned curriculum, is completey covered by a simple and affordable license that guarantees the creators of the work are paid for that use. Keep in mind, students pay a tuition fee (or taxes through their parents in the case of K-12) for these materials, and teachers are paid to deliver them. The licensing and delivery structure already exists. No amendments are necessary. All that is required is that CMEC agree that part of their educational budgets should go to paying original creators for the planned classroom use of their work.

They clearly do not agree on that point, since they propose that any creator who does not want their work used without compensation by the educational sector, should lock it away from the public on the Internet or exempt it from use in schools:

rights holders can opt out of the amendment by using passwords or technology that limits access or use of the Internet material. Rights holders can also opt out by informing Internet users that the material cannot be used for educational purposes.

CMEC writes books, magazines, and even e-mail messages, are automatically protected by copyright by the simple acting (sic) of creating them as though this is a bad or restrictive thing. Me, I celebrate the "automatic" nature of copyright as an important individual right in our society. Planned educational use of anything -- blackboards, teachers, chairs, carpeting, and yes, unlocked material on the Internet, should be paid use. Rather than expecting professional artists and creators to subsidize educational budgets, we should all be asking for government to give our educational system higher budgets. On the Parent Council at my kids' school, I raise the budget point all the time. You should too.

My second concern today is that the CCC statement, researched and written in good faith by duly constituted and governed professional associations of professional artists is being attacked not just on the merits of its recommendations, which would be a valid and "fair" attack. Instead, for some reason I simply can't fathom, the "fair-minded" rhetoricians who disagree with the CCC are questioning that group's authority to speak for its members, and in one really quite low and disturbing swipe, it is suggested that presumably enlightened artists storm the Parliaments of these groups and overthrow them in the name of "fairness."

If you are in this sector, you are likely a member of one or more of these groups. They are doing this lobbying in your name. Ideal would be if the members of these associations took over the executives to ensure that they lobbied for more forward-facing policies that embraced rather than tried to harm new media.

Interestingly, it is the members of these organizations who currently populate their executives. Merely suggesting otherwise don't make it so.

40,000 Facebook clickers = an authoritative and clear-headed protest movement.

Groups representing upwards of 100,000 working, professional artists who have a real economic interest in copyright reform = a cabal of evildoers performing evil in their members' names.

You know who I blame for this nasty political turn in the argument? The DMCA.

15 comments:

Chris Brand said...

Welcome back, John.

I happen to agree with you (which is always nice) that the CMEC proposal is completely unnecessary.

I'm surprised that you object to the idea that rightsholders who aren't intending to give their work away for free should use some form of password protection or the like if they put that work online. I really don't understand the reasoning here. Why would you set things up so that it can be downloaded without payment if you're intent is to ask for payment ?

I've always thought of it as like those newspaper boxes by train stations. There are two kinds - ones where you have to put money in the slot to open them and ones where you don't. The people who use them rely on whoever fills them up putting the right newspapers in the right kind of boxes - if they put a newspaper in one of the "please take one" boxes, they are saying "please take one". The internet is exactly the same. It has a mechanism where you allow anyone to access a file and a mechanism where you impose some sort of restriction (be it "pay me", "only for people who agree to some kind of license", "only for my friends" or whatever). Users rely on server owners to allow access to files in the appropriate way.

Finally, there's the practical side - how would I know that you wanted payment for me to read your blog ? If you say so on the page I want to read, I've already downloaded it by the time I see that. If you say it on a different page, I might not download that page before the one you want to be paid for. Either way would end up as a trap - "you donwloaded this page, so now you have to pay me $XXX".

Chris Brand said...

"Rather than expecting professional artists and creators to subsidize educational budgets, we should all be asking for government to give our educational system higher budgets."

To my mind, it would be perfectly reasonable for the government, when deciding to give an author a monopoly, to restrict that monopoly to situations where the money won't come out of the public purse.

But I recognise that that's not the way you think of copyrights.

John said...

You see, it kind of baffles me when proponents of "fair" copyright say things that make me wonder if we are actually talking about copyright at all.

You ask:

"Why would you set things up so that it can be downloaded without payment if you're intent is to ask for payment ?"

... as though a paywall, or digital lock, is needed to keep people from taking things that don't belong to them. How many things are wrong with what you've said? Well, everything.

I don't need a technological lock on my work on the Internet because I have a legal lock. It's called copyright. No-one has to wonder if they can "use" my work for free, because copyright provides them with all sorts of free access to my work. Should they want to then extend their use of my work into some commercial endeavour, let's say education that students must pay for and others are paid to provide, then copyright points them in the direction of license agreements that will work for them. What surrounds all of this very good behaviour between creator and user is the concept of respect for someone's work.

Since you brought up the newspaper box analogy, which is one of my favorites, let's talk about it. By your logic in this analogy, the only thing stopping someone from taking the non-free newspaper is a physcal lock and a request for money. I say what should stop someone from taking the non-free newspaper is their understanding that it is a non-free newspaper, and their respect for the work the writers and publishers put into it, and should be compensated for.

There's really no great mystery or confusion involved. Let's say there's no lock on a Toronto Star box. Oh, I'm confused -- is the Toronto Star giving away their newspaper? Can I take one copy and then make thousands of other copies and share them with friends I've never met? That MUST be what it means.

Anyone who pretends to be confused by the rules and best practices here is perhaps being just a little bit faux-naive. No?

I haven't even addressed the fact that the "fair" crowd wants the breaking of locks to be legal, which would make a lock kind of pointless anyway, wouldn't it?

The question "how would I know that you wanted payment for me to read your blog?" isn't real, is it?

First of all, I'm talking about commercial use of my writing, not the reading of it. Let's go all the way back to copyright=oxygen. The work is on the Internet free to be read, not free to be re-used. I think even super-enlightened Cory Doctorow would be uncomfortable with unpaid commercial re-use.

Now, if what you meant was "how would I know you wanted to have a say over re-use," then the answer is simpe. You'd know that because you would understand the principle of copyright, and you'd have respect for my rights -- and not just my rights as a professional creator, but my rights as a fellow citizen. All citizens have their creative work protected by copyright.

As to the government restricting my copyright where public money is involved, how fantastic is that? I hope they intend to restrict payment to Dr. Geist for his publicly-funded research as well. For that matter, why should any good or service come out of the public purse? If the government wants it for something, they should just be able to take it. You "fair" guys are really going down an interesting path now.

Anonymous said...

The Toronto Star?? They give away thousands of free copies everyday. Just go on any UofT campus and pick up a free copy.

Chris Brand said...

If it helps, don't think of it as "taking things that don't belong to them", but as "taking things that are given to them", because that file didn't just magically appear online - you put it there.

It's a shame that you wrote off the most important point with this :
"The question "how would I know that you wanted payment for me to read your blog?" isn't real, is it? "

Yes, it's completely real (did you actually read that paragraph ?). Your blog and your book (assuming you were to post it online) are both just files on the internet. What is it that tells me that you intend me to download one for free and not the other, if you make them both available for download without any kind of password protection or similar ?

Note that I'm not disputing that you have the right to choose whether to make it available for free or not. I just want to know how you're going to tell me what you've chosen if you're not going to use the Internet the way it was designed.

If you were to leave a pile of copies of your books lying around by the side of the road, how would I know whether you wanted payment for them ? Most likely I'd go by custom - if it's left by the side of the road for any length of time, it's probably not wanted by the owner. The same as if you put copies of your newspaper in one of the "please take one" boxes.

"Can I take one copy and then make thousands of other copies and share them with friends I've never met? That MUST be what it means." - come on, John, you don't need to stoop to trying to put those words in my mouth. I've never said anything like that.

John said...

Chris,

What is it in the words commercial re-use that you are having trouble grasping?

What I write on my blog is free to you to read. If I load my whole novel, same thing. Don't take it and re-purpose it as content you will use commercially.

Do you think this stuff doesn't happen? I deal with it once a week or more at PWAC. Complaints from professional writers whose copyright protected work has been taken from an online source -- say a freely available newspaper article -- and then repurposed onto a website as content meant to draw eyes for advertisers. No compensation for the writer. And while Russell believes we writers are unwilling to enforce our rights in such a situation, he's wrong. We try as best we can. But it sure doesn't help the situation when people go around advocating that anything available and unlocked on the Internet is "free."

The pile of books example again ignores the fact that you are talking about a physical object while I am talking about a text -- an expression, an arrangement, a performance. I give my books away a lot -- a surprising amount, really, considering how much it cost me in time and training and dedication to write the damn things -- but I do not give my text away, even when the book in question is in digital form. The text belongs to me, under copyright, for a limited time.

No? Not making it through the wall?

And to anonymous -- so, because the Star gives away loss leader copies here and there, does that give you the right to take a copy of the Star from your local convenience store? I mean, why would they ever offer it for free if their intent is to ask for payment? That must mean you can take it. Go ahead.

John said...

I note that in some recent writing, Russell also disagrees with CMEC, and makes the reading/re-using distinction using, in typical Russell form, many, many more words:

http://blogs.itworldcanada.com/insights/2008/02/04/technical-protection-measures-tpms-and-educational-use-of-the-internet/

I'll say this to Russell if he's trolling around, I don't think too many behind the CCC statement would object at all to a longer in-depth "official" defining of terms to make sure our disagreements are not being caused by the terminology problems you outline in that article. I certainly wouldn't object. But don't expect much budging from this side if we have to go down the "the Internet changes all the rules, and therefore you need to lose some of your rights" road. That is, in my mind, what the CMEC statement says.

The creators I know are more than willing to make adjustments to legal language to make sure others can get in the tent and be properly addressed by copyright, but we're not willing to see our economic rights seriously eroded in the name of a brave new world.

Anonymous said...

No, the point was asking if the Star was giving away free papers. I just stated that yes they are. Everyday since I've been at the University, anywhere you go you can get a free Toronto Star. It's not a "lose leader". I can grab as many as I want and hand them out to whoever I want and yet, across the steet the convenience store offers the same paper for a price and sells them with no problem. Funny, I can also pick up the phone and read everything in the Star to anyone I wish, so I guess I could take one paper and "offer" it with anyone.

John said...

And, I also want to recognize I have come late to the CMEC discussion -- creative work getting in the way of fighting for my creative work>

Chris Moore and Julianna Yau have great responses as well. Of course, Howard Knopf also disagrees, but in very Dirty Harry, lawyerly way. And I'm not sure he understands the concepts of text and curriculum in the same way I do.

John said...

And thank you to anonymous for illustrating exactly why the "fair" copyright campaign is doing wonders to advance people's understanding of what copyright means. Russell talks about the legal language and lawyers confusing the issue?

Yikes.

Yes, publishers like the Star are taking advantage of all sorts of creative business models. Their rights under copyright do not change. Your, and my, responsibility to respect copyright also does not change.

Enjoy university. Do lots of reading. There's never enough time for it later on.

Chris Brand said...

We're obviously talking past each other here somehow, although I can't for the life of me see how.

So I'm going to try and make this very simple by turning it into one question :
If I find some text online, put there by the author, how am I supposed to know what they are willing to allow me to do with it without payment, what they want payment for, and what they won't allow me to do under any circumstances ?

And yes, let's take your blog as an example - there's no copyright notice and no license on the page with this posting. It's clearly still under copyright, because there is a date, but that's all I know...

Chris Brand said...

"I hope they intend to restrict payment to Dr. Geist for his publicly-funded research as well."

Are you talking about something like Open Access ? Good intro here :
http://www.michaelgeist.ca/content/view/2362/159/

Russell McOrmond said...

"Anyone who pretends to be confused by the rules and best practices here is perhaps being just a little bit faux-naive. No?"

Yes, you are, but may actually not be aware of it.

"suggested that presumably enlightened artists storm the Parliaments of these groups and overthrow them"


I think that people who jointly have a background in technology and are writers, performers, and other types of creators which make up the CCC have a duty to get more active in these associations. It is clear that there is no interest in accepting the offers of help from the technical community that have been very vocally extended in Canada for the past 6 years.


While I am not questioning the current executives best intentions to help the interests of authors, the lack of technological awareness (including the rules and best practices, as you yourself mention) has caused the group to be asking for things which are harmful to the best interests of its own membership.

It is not that you didn't consider the interests of software authors or others in the IT sector that concerns me the most. It is that the proposals that I've seen from the CCC will harm professional writers, artists, composers -- the very people that make up the CCC.

Russell McOrmond said...

John,

My messages are long to try to avoid confusion. The shorter messages seem to just generate more text as people talk past each other -- as is already happening in this forum.

"the Internet changes all the rules, and therefore you need to lose some of your rights"

You are going to be stuck with this as long as some people try to suggest that the Internet changes nothing, and that creators are not allowed to gain any benefits from new technologies.

The Internet provides additional options to creators that never existed before. It doesn't subtract old methods, just adds new ones in a platform that can support a full spectrum of options.

If you want to dispute that, then skip the rest of the message as we have no foundation on which to build.

These new options include new methods of production, distribution and funding. This doesn't mean that creators loose rights, but in fact that they gain. Established methods of production, distribution and funding may loose prominence -- and that shouldn't be seen as a bad thing for creators, even though it might be bad for those methods (IE: including collective societies which represent specific methods).

In order for a full spectrum of options to exist, the choices made by the author need to be documented. In the case of the Internet, that means machine-readable documentation, not just human readable (or lawyer-readable) in the form of a text license agreement.

That is all that we are asking -- not that any rights be removed, and not that anything be "locked up" (Whatever that term means for you -- clearly not the same as what it means to me), but that creators provide adequate documentation such that a full spectrum of choices for fellow authors can be expressed.

Russell McOrmond said...

"We're obviously talking past each other here somehow, although I can't for the life of me see how."

I re-read the thread again, and I believe the issue comes down to 'use' vs 're-use'.

If the language that John used was more clear, we might have all figured out that we largely agree earlier.

First we have John dismissing the damage caused by the US DMCA with software developers being arrested and security researchers self-censoring critical research and having to sepnd a third of their time with lawyers. We are all, even in Canada, less secure than we would if the US didn't have a DMCA holding back important technology. I simply don't believe John has any clue into the effects of this law: the real harmful effects, or the fictitious benefits.

Then we have the startling/offensive suggestion that "Planned educational use of anything -- blackboards, teachers, chairs, carpeting, and yes, unlocked material on the Internet, should be paid use".

Had the he phrase "derivative use" been used, then there would have been far less confusion. While I may be considered too wordy, I find it interesting that far more was typed because critical words were missing in the original article.