Sunday, November 14, 2010

the phantom compromise

Last week, I posted about the continued nastiness of the attack against professional creators and their representative groups, associations and collectives by certain consumer advocates. I pointed readers to crusading journalist Jesse Brown's interview with consumer advocate Michael Geist, how they dismissed creators speaking out on copyright as the "spokespuppets" of "big media" and their "astroturfing" groups, and how both Geist and Brown agree that two time Governor General Award winner Nino Ricci published "lies" and "propaganda" when he expressed his personal concerns about potential damage to collective licencing under C-32.

None of this should be a surprise to anyone who has followed the Canadian copyfight even over the last year. Me, I've been personally involved in defending creator copyright much longer than a year. I've been watching the dismissal of creator concerns, the snide labeling of professional creators as elitists, and the outright attacks on genuine creator concerns escalate for a decade now. And so it's reached this point, where a prominent professor and a prominent journalist can tweet that Nino Ricci is a liar - not that he's incorrect about something; not that he might be expressing a bias for his own concerns over others'; no, that he writes lies and propaganda.

Lies and propaganda?


In my earlier posting I also noted the strange concurrence of this latest vicious swipe at professional creation and Michael Geist's sudden desire to seek "compromise" as the special C-32 parliamentary committee goes about considering amendments before what now looks to be the inevitable passage of the bill. My understanding of compromise involves good faith on both sides, and considering how creators are being treated in these final stages of C-32 discussion, I'm just not feeling the goodness.

Educational Fair Dealing

In a posting to his blog on August 24th, entitled Writers Groups Attack Fair Dealing Reform in Copyright Bill, Professor Geist implied that writers groups "are against fairness and balance in copyright." He dismissed the concerns of a coalition of writer groups representing thousands of professional creators in this country, and their request for clear legislative guidance within the bill as "fearmongering." Those are not exactly the kind of accusations one would expect from someone seeking compromise. Geist has repeated this attack just today, calling a recent brief by the writers' coalition "misleading and inaccurate."

As I understand them, the writers coalition concerns about an educational fair dealing category focus on a request for clarity to avoid unintended consequences and litigation required to define the territory of "fair." These are, I think, also Mr. Ricci's concerns. Writers want to make sure that including education as a fair dealing category without specific definition will not drive education from established collective licensing on the belief that much if not all of their content uses would be considered fair. Professor Geist's suggested "compromise" on this issue seems to indicate such fears are unwarranted. In fact, in today's attack on writers groups, the professor insists that fears of broad interpretation of the fair dealing category are false.

Why would writers be worrying about their collective licences?

Over five years ago, in August 2005, Professor Geist published a column titled The Coming Battle Over Education and Copyright, in which he advised the federal government to "prod Canada's universities to adopt a more aggressive approach in the use of copyrighted works." According to the 2005 version of Dr. Geist:

"Today Canadian universities spend millions in copyright licenses that are arguably unnecessary. This expenditure effectively represents a subsidy to Canadian publishers from taxpayers as well as from students who are facing escalating tuition fees at a time that they can scarcely cover their monthly rent."

"Rather than focusing on their rights, Canadian universities rely heavily on guidelines from Access Copyright and Copibec, the copyright collectives that are the direct beneficiaries of the questionable university copyright licenses."

And most importantly for this discussion, he suggests universities should:

"highlight fair dealing, the staple provision that provides students and educators with broad rights to use copyrighted works."

Of course, the 2010 version of Michael Geist is also openly campaigning against Access Copyright licencing in universities, but he's changed tack and is now suggesting the licences are invalid because of skyrocketing prices (an unsupported claim) and a loss of value within the licence (a second unsupported claim).

Strangely, in 2010, we do not hear from Geist that fair dealing will provide broad rights for educational use; we hear assurances of the opposite. The six-part fairness test exists, and should assure writers and other creators that their rights will be respected (as long as we can afford to sue for them).

And those are strange assurances indeed, considering what others on the user rights side (a side informed by Geist's incessant campaigning against established professional creators) have been saying.

In an official objection to the K-12 Access Copyright tariff, the provincial ministers of education expressed the belief that:

"most, if not all, photocopying in schools is fair dealing."

This opinion is clearly shared by the Canadian Federation of Students who published a membership advisory for all members (post-sec students across the country). In it, they describe the educational fair dealing category as a specific "exemption," that would"

"allow for the use of copyrighted articles in course packs and other educational materials as fair dealing."

This would, the students tell themselves:

"dramatically reduce the cost of educational materials, in some cases by as much as 80%."

Most revealing, I think is the government's own wording around introduction of the educational category. On the website introducing the bill, they say that extending fair dealing to include education:

"will reduce administrative and financial costs for users of copyrighted materials that enrich the educational environment."

But, crucially, they also say:

"The new bill enables the use of copyrighted materials for the purpose of education, provided the use is "fair" (i.e., it does not harm the market for a work)."

I think we will see through committee discussion and various amendment suggestions that a reduction of costs (in some cases by 80%?) that doesn't harm an existing market for a work is a phantom compromise. It bears repeating that a copyright licence (at 2010 pricing, including all digital uses) for all of Canada's post-secondary institutions represents less than 1% of just one university's budget. If education is increasingly expensive, it is not the creators of educational materials, nor their copyright collectives, that are making it so.

Let's be absolutely clear about what's going on here -- writers and other creators fear for their rights under an expanded and ill-defined fair dealing because the loudest user rights voices, led by Michael Geist, have convinced us we should be fearful. Is it any wonder when Professor Geist offers a compromise, writers reach for their pockets to make sure nothing's gone missing?

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25 comments:

Darryl said...

"It bears repeating that a copyright licence (at 2010 pricing, including all digital uses) for all of Canada's post-secondary institutions represents less than 1% of just one university's budget."

Actually John, no it doesn't. Why do you keep coming back to this red herring? Even if copyright licences were less than 0.00000001% of a Universities budget, it would still be too much if what was being purchased were not worth that much.

The critical equation is what is being purchased for that money. Is the licence worth $45/student? Answer that!

And.

Can you honestly say that Geist's "Phantom compromise" is really any worse than the writers' coalition who are now saying they want to simply remove all these fair dealing categories? What happened to the legislative guidance they were asking for?

Perhaps what we are really looking at is a hardening of positions as the legislation rounds the corner into the home stretch.

Crockett said...

John, for all your talk of clear legislative guidance and compromise the recent letter from writers groups outlining their position on C-32 seems to be more of a cut and gut approach to fair dealing along with citations of obvious worst case scenarios. Don't you ever get tired of the hyperbole not just from the 'enemies' camp but also your own?

Your assertion that the 'attacks' by consumer advocate groups is getting nasty may have some merit in regards to the language being used, passions do flare. On the other hand there are far more insidious forms of 'nastiness' such as the hypocrisy of blaming others for behavior you participate in yourself, or attempting to quash debate all together by limiting the participants [for example AC's attempt to limit other views being presented at the copyright board).

Everyone needs to pause and take a good long look at themselves for any lumber that may be lodged lodged in their corneas.

John said...

Look fellas (Darryl and Crockett),

My main point with the posting is to make note of what I see as the gigantic hypocrisy of Geist offering compromise as though he is genuinely being generous. The attack on creator rights has been relentless and exhausting, and I see no actual compromise on the table. The bill as written offers nothing in return to creators for the rights they are being asked to give up.

What's worse, the educational exception will not address the main "concern" it is intended to (see my pull quotes). Is the cost to students of a post-sec education about to go down because education is now a fair dealing? In what fantasy land? So, we take income from Canadian writers in order to benefit university admin budgets? Why?

The writers coalition has taken time to fully consider the bill, to seek legal opinion about potential unintended consequences; and has responded in a reasonable, responsible manner with a detailed submission on amendments.

They are a group in line to be most negatively affected by overly broad exceptions. They have a right to voice their concerns. The user side certainly doesn't shy from attacking them, and it is an attack based on theoretical ideology launched from a position of economic privilege. There is nothing theoretical about writers' royalties. They may be small, but they are very real and absolutely necessary.

Say what you want about all the favorite hobby horses of the user rights side - the CRIAs and RIAAs and hollywood lobbyists... the writers coalition are one of those things. When you attack them, you are attacking workers, labourers.

John said...

Correction.

Hmmm, clearly I meant the writers coalition is NOT one of those things.

Must have been the back medication. I slipped a disc trying to shovel Geist's compromise off the table to where it belongs.

Chris A said...

I'd say most of the "reasonable" responses are nothing more than looking at the worst situation to try and make their position look better rather than try to actually look at the bill to tweak it what they feel is a more balanced approach.

John, people are as tired of the content creator rhetoric as you are of the pro-consumer rhetoric. If you guys don't want to come to a reasonable solution that respects everyone, then there is no point in either side discussing anything.

Gruesome said...

All or nothing eh John
Personally in the case where tpm's override fair use, those instance of fair use should be removed from the bill. Then we can be rid of the "phantom fair use" that was obviously put in the bill just to put some kind of consumer friendly face on it.
As far as your quotes, they are not rulings on anything, just people expressing opinions no matter how flawed.
I'm not really against removing education from fair dealing as long as Universities (after doing a cost benefit analysis that you suggested on Mr Geist's site) can walk away and choose other avenues for course material such as direct licensing or subscription to digital catalogs.
At least they have some choice.

The Mad Hatter said...

John, John, John,

First off, most of the noise being made against the Fair Dealing proposal appears to be from the publishers, i.e. the people speaking out appear to work for publishers when you Google them.

Second, why would you be against a university using it's money wisely? Talk to me. I'm a conservative. Have been for a long time. I'm against waste by public institutions, whether they are educational, or governmental.

Last, and off-topic, did you hear that Access Copyright has dumped McCarthy Tetrault? Or maybe it's McCarthy Tetraut who dumped Access Copyright. Whichever it was, a new law firm is representing Access Copyright, and since you don't normally change law firms in the middle of a negotiation unless there's a damned good reason, something big is going on.

Wayne

Gruesome said...

James Moore seems to be getting it,
"When I buy a movie, I've paid for the movie. To ask me to pay for it a second time through another device - and to assume that I'm doing illegal copying, to assume that I'm being a pirate, to assume that I'm thieving from people because I happen to own an MP3 player or a BluRay player or a laptop, I think treats consumers unfairly. "
Are you getting it yet John?

John said...

Gruesome,

Is the question do I agree with everything James Moore says about C-32? Then the answer is no, I don't.

I do however agree that time, format and device shifting have become standard practices because of changing technology, and as such they are increasingly a consumer expectation and demand. That's all good.

My disagreement would be around what is fair and unfair. These new expectations shift the much ballyhooed "balance" of copyright dramatically to the user side. Where's the balancing compensatory mechanism for rightsholders?

I mean, I thought we all wanted balance, no?

My question in response would be, when you've paid for a DVD of a movie, do you now have the right to all subsequent releases of that movie? Clearly not. Why then would we expect new consumer practice to "fairly" make an end run around potential markets without compensation?

How about James Moore's position on TPM protection? Does it give you the same warm feeling?

This is somewhat complex stuff, G. Try to keep up.

Chris A said...

Well, John, as you are so keen on pointing out, we bought a copy. That copy we can use however we want, sort of giving the copy of the copy away. If you want a release a new copy, then we have to buy that. It's not as much of a problem as you think it is.

Chris A said...

You can't fight consumer expectations John. If you make a law that doesn't reflect consumer expectations, that law is never going to work.

And no, I don't particularly feel sorry for industry people who can't figure out ways to survive in the new world. While I think you should get paid for your work, you need to look for new ways rather than try to make is so that your artificially propped up (through things like things like levies). Because even if you do get the law passed in a way that makes it so creators are super protected, people are going to find other things if they don't like what your selling. The world has changed, and will continue to change. Trying to stop that or hold it back via legislation is not going to work.

John said...

Chris,

It's sort of hard to tell what you're getting at in these two comments, but I'll try to respond.

I like format, device and time shifting. I do it all the time. Shock and surprise. I also feel that my respect for the creators who made the content extends to my willingness to enter into a levy structure to make sure they are compensated.

As a consumer, my expectation is that creators will be well compensated, and jerks who don't compensate them will be discouraged from ruining the culture I enjoy.

Who is fighting consumer expectations or new models or technologies? Where's the logic in these accusations? How do you think movies get onto Netflix, or 3D televisions? Creators and rightsholders aren't fighting expectations -- we're forming them.

I simply want laws in place that protect creators and rightsholders while they meet (and exceed) the consumer expectations they've formed, invent new models and make full use of new technology.

Glad to see you finally understand that what you've bought is a copy. Step one complete.

Step two: think for yourself instead of waiting to hear what Michael Geist thinks about everything.

Oh, snap.

Chris A said...

*chuckle* I find it highly amusing that you don't think my opinion is my own.

I'll just copy and paste my views on levies though, which have existed since the stupid blank Cd levy went in place long before I even heard about Dr. Giest.

"The problem I have with levies is I don't think that content creators should get paid because I want to buy a CD (other storage medium) to make a backup of my computer before a reinstall. Nor do I think that they should get paid because the phone I happen to get can play MP3s, when I don't use it for that. Levies on ISPs I dislike for the same reasons. Levies don't work because they don't reflect how things are used."

BTW, the logic from the accusation simply comes from the over protection of digital locks. There's no reason to protect digital locks at because the copyright law already protects creators from having their work used in illegal ways. So the reason for digital locks really has to be to try and control how consumers use the things they buy because there's no other logical reason for them to exist.

Now as I've said, I'm find with some DRM. Steam is a perfect example of how DRM is actually beneficial to the creator and the consumer without being overly problematic to either party. So if you, as a creator, want to use DRM, then go ahead. They should just not be protected by law at all, but due to the short sightedness of some lobby groups, we have to have some protection. C-32 just goes too far.

I've also always understood that I've bought a copy of the original work. But that copy is mine, and as long as I don't try to profit from it or give it away to other people, I see no reason why the creators should care about how I'm using it that they need some of the new consumer fair dealing provisions removed at all. I should not need to buy a digital version of a movie I have the DVD of because I should be able to make a copy of the DVD to my computer. And no, levies should not be used to cover this.

If levies are the only way that Canadian content will survive, then to be perfectly blunt, it shouldn't.

Chris A said...

Curious question though. If we do happen to get a levy stuck on ISPs, does that mean I can download everything without having to buy it? I mean, I am funding the creator through the levy, so does that make all downloading legal in Canada then?

Just curious what your view is.

Gruesome said...

John , it's you who is not keeping up, the issue is the same. No the user does not have the right to any new upcoming version of the movie , what does that have to do with TPM?
You just like to confuse the issue.
If it's fair tpm's shouldn't matter.
AS far as Balance go I would think hitting pirate sites would be the goal to bring balance from a creator standpoint.
What balance id there in this bill that gives industries tpm protections and creators weak copyright enforcement.
TPM's are just another way to put your hand in consumers pockets multiple times for the same exact copy of what they already paid for.
Shame on double dipping

John said...

Chris A.,

More confusion and conflation. There sure is a lot of that going around today.

A question in response to your question. Does the levy on cassette tapes and CDs make it legal for you to copy unpurchased content onto the tapes and CDs?

Well, no. You are conflating a levy designed to compensate for certain projected uses with basic copyright protection. These are two different things.

Anonymous said...

I gladly play $.99 or so for "very talented" artist whose music I love. Furthermore, I despise music thieves and all their repugnant flatulent dribble. For one, the major label artist works very hard to do what they do and are extremely punctual in all their affairs. They perform at the highest level where the average Joe has no business being near, yet alone listened to. Second, they deserve what they get per the fact of their colossal talent deems it worthy. Try writing a song that competes at this level, then an album, and would you want to give it away. I bet not. While you're at it show up to work tomorrow and demand not getting paid. Super fun for all. Why is one commenting to these sentiments here. It's always worth repeating.

Crockett said...

John, do you ever wonder what the motivation is of some of the people who are so adamant about stronger copyright at the expense of consumer rights? Do they just decide not listen when people explain to them them that stronger copyright will do nothing to fix infringement issues or the disconnect that the public feels? Do they even care? How hard is it to understand if you try to dictate the terms to those you are trying to entice that they will want to have little to do with you? Do Artists not want to be appreciated and respected? Then why do they let their gate keepers create such animosity with their audience in the pursuit of maximum profits. Is it worth it?

I really have to wonder because there seems to be a real disconnect between those who are the gate keepers of the media and the consumers themselves. There is much angst from those in the creative community who feel their livelihood is being stolen by thieves who care nothing about them. Well there are some like that out there, but there the majority are I think just regular people who feel they are being robbed by the same gate keepers who keep whispering tales in their client's ears.

I believe that people at their core are basically fair, if they feel they are being treated fairly themselves. Artists have a reasonable grievance against those who take and give nothing back, and rightly so as they are leeches. Is all file sharing bad? Probably not, at least not to the degree that they are led to believe by the gate keepers who's main concern is their share of the profits. Through their campaign to maintain control, they have achieved an atmosphere of animosity that keeps them in driver's seat but alienates the very people artists want to reach and connect with .. their fans.

It really is insidious and sad, and in the long run bound to fail. I believe there is great opportunity for artists today who could use the freedom from control to reach out to fans on a more personal and organic level. Open performances, viral marketing, social networking ... if you connect with your fans then you have a customer for life. How people interact and the activities they participate in is changing at an alarming rate. The gate keepers will tell you that 'lost profits' are due to those rotten pirates and if you only scream louder about it then some white knights will come along and fix it all for you with a wave of a legislative wand. It's just what it sounds like ... a fairy tale.

Artists need to wean themselves from the old tired gate keepers who's main concern is likely self preservation and a return the good ol' days. Not gonna happen. We live in a changing world, a much more connected, aware and media rich world than the last generation. It's different and needs different solutions that seem to escape the old generation of gate keepers still in power. Just listen to dinosaurs like Gene Simmons to see the mind set that must fade away.

I really feel for artists and creators. They are being fed so much misinformation by those who don't want their gravy train to end. Honestly, I fail to understand the loyalty they have for those who purport to speak for them, when they have often not acted in their best interest. The millions in unpaid royalties, the minuscule percentages they actually do pass on to the creators and the behavior that disenfranchises their customers ... what gives?

Is it the fear of the unknown to step outside the covering of big brother? I can understand that, change can be scary ... it can also be the genesis of great things. I really do hope that more artists and creators are able to use the freedom of the information age we live in to gain a greater audience, have a more intimate relationship with their fans and have a greater reward for their talents, both monetarily and professionally.

Sincerely,

A fair use advocate who is not a pirate and actually cares about the well being of the artistic community.

Crockett said...

John, do you ever wonder what the motivation is of some of the people who are so adamant about stronger copyright at the expense of consumer rights? Do they just decide not listen when people explain to them them that stronger copyright will do nothing to fix infringement issues or the disconnect that the public feels? Do they even care? How hard is it to understand if you try to dictate the terms to those you are trying to entice that they will want to have little to do with you? Do Artists not want to be appreciated and respected? Then why do they let their gate keepers create such animosity with their audience in the pursuit of maximum profits. Is it worth it?

I really have to wonder because there seems to be a real disconnect between those who are the gate keepers of the media and the consumers themselves. There is much angst from those in the creative community who feel their livelihood is being stolen by thieves who care nothing about them. Well there are some like that out there, but there the majority are I think just regular people who feel they are being robbed by the same gate keepers who keep whispering tales in their client's ears.

I believe that people at their core are basically fair, if they feel they are being treated fairly themselves. Artists have a reasonable grievance against those who take and give nothing back, and rightly so as they are leeches. Is all file sharing bad? Probably not, at least not to the degree that they are led to believe by the gate keepers who's main concern is their share of the profits. Through their campaign to maintain control, they have achieved an atmosphere of animosity that keeps them in driver's seat but alienates the very people artists want to reach and connect with .. their fans.

Crockett said...

John, sorry about the double post. The first attempt said it could not parse the submission because of the length, but it showed up eventually anyways.

Chris A said...

"More confusion and conflation. There sure is a lot of that going around today."

Yeah you do have a tendency to do that by half answering questions with other questions.

"A question in response to your question. Does the levy on cassette tapes and CDs make it legal for you to copy unpurchased content onto the tapes and CDs?"

In the eyes of many people it does, so if you want to fight an uphill battle against consumer expectation you are of course completely free to. Good luck though.

"Well, no. You are conflating a levy designed to compensate for certain projected uses with basic copyright protection. These are two different things."

How are they two different things? From my point of view, they are much the same thing the law is suppose to protect you from those uses and give you a way to make money. If the project use is not in the law as something that;s legal, then the main question have is why? Unless you assume that people are going to do illegal things, there's no reason at all for a levy to exist since the projected sue should be a part of copyright in the first place if it's projected.

Plus that doesn't really address the main problem I have with levies in the first place as I outlined.

Chris A said...

Just so you know John, if something like a levy must exist, this idea (http://www.digital-copyright.ca/node/5250) is by far better than just slapping an extra fee on to things I buy.

Lee Fox said...

A couple of things...

Firstly, how do these people get away with being labeled as 'consumer advocates'? Aren't they more accurately described as 'anti-creator activists'?

Secondly, I see somebody mentioned that they bought a movie. Wow! That's quite an investment. After all, most mainstream movies cost many millions of dollars to make and distribute.

Oh, they didn't actually buy a movie?

They purchased a license to use the selected content in the form it was provided in?

Ah, I understand now.

Cheers,

Lee Fox

Gruesome said...

Lee
"I see somebody mentioned that they bought a movie. Wow! That's quite an investment."
well done, alienate the people that support creators...
Cheers

Crockett said...

"Firstly, how do these people get away with being labeled as 'consumer advocates'? Aren't they more accurately described as 'anti-creator activists'?"

Yes Lee, all we want to do is download everything for free until all artists starve and the world is a better place for it [sarcasm by the way]

Actually I suggest you take the time to actually investigate and understand what 'consumer activists' are proposing and you might realize that they are in many ways more pro-creator than the organizations that purport to represent you.

I would like to see creators ..
- keeping a much greater share of the profits for their work
- have more creative control
- have a more symbiotic relationship with their fans
- not be represented by organizations that do more harm than good by creating a hostile environment for people who would like to support your work.

Chew on that for a while and then come back, we'll talk.