It was undoubtedly a very enlightening afternoon for many on the committee who, to that point, might have been excused for thinking Michael Geist's views stand unchallenged. Neither Giuseppina D'Agostino nor Barry Sookman have anywhere near the access to popular media that Dr. Geist does, but a Parliamentary committee room is a remarkably equalizing forum, especially when MPs ask questions in good faith and demand good faith answers.
So it was that Dr. Geist was forced to concede that, yes indeed, creators will lose income with the inclusion of education as a fair dealing category. This point was made undeniable with D'Agostino's insistence that the bill contains many unintended consequences for creators, and Mr. Sookman's authoritative assertion that it is "unquestionably true" the bill as written will cost creators.
Nevertheless, Dr. Geist went to great pains to repeat his claims that the existence of education as a fair dealing category is not something creators should worry about -- all educational uses will still have to pass the established six-part test for fairness.
Thanks to Ms. D'Agostino for adroitly pointing out that it will, of course, be creators who foot the bill to insist on this six-part test in costly litigation, and that far more clarity is needed before such a broad term as education is given its own category under the law.
I've shown elsewhere that any assurances from Dr. Geist about educational fair dealing not being free dealing (as he likes to say -- it's a catchy term, and he does like catchy) sound quite hollow to creators. After all, this is the man who wrote in 2005 that fair dealing is "the staple provision that provides students and educators with broad rights to use copyrighted works," and that "Canadian universities spend millions in copyright licenses that are arguably unnecessary." This is also the man who is currently leading a campaign to have Canadian universities walk away from collective licensing of creator content in part because students can
"copy independent materials for research purposes, or make copies for private study purposes. None of this requires an additional licence."The millions Geist refers to are collected on behalf of thousands of working Canadian creators, and they are collected as payment for actual use in Canadian classrooms -- classrooms to which students are admitted only after they pay tuition. No one would reasonably argue that a student not paying tuition is exercising a "fair" use of a professor's teaching skill, expertise and time; yet that is exactly what is being argued about creator content.
Referring to statutory damage limitations yesterday, Dr. Geist insisted that the $5000 maximum still represents an "awful lot of money" to the average Canadian.
I agree, $5000 is an awful lot of money, and over $20 million in lost revenue is considerably more. The average Canadian creator can ill afford to lose this income, or to sue every time her work is used without a licence.
41 comments:
Right John. And as you know, individual creators won't even know about abuses under the proposed new Fair Dealing exceptions, let alone be able to mount court cases, which would be taken to the Supreme Court if recent behaviour by the Canadian post-sec admin community is anything to go by.
I want Dr. D'Agostino attending a sick bill before Dr. Geist, thank you very much.
John, I think we agree that there needs to be greater clarification on determining what is fair use in C-32. Do you think that putting the six part test determined by the supreme court into bill C-32 would decrease the need for litigation, or act as a guiding principle if such actually went to court? If not, then what language would you recommend should be included?
I'm glad to hear that you consider $5000 to be a lot of money. I found it quite surprising that Mr. Sookman would make the assertion that this is just 'pocket change' to the average Canadian (that's 1/4 of years salary to the average Artist for instance).
I ask you who would think to themselves "Oh, now I can download all those wonderful Hollywood sequels and Brittney Spear pop songs to my library and all I have to do is write a cheque to a lawyer for $5000. What an investment!". Does Sookman or the CRIA really conceive of a sea of lemmings trampling over each other $5K in hand to glut themselves on digital nirvana?
On the other hand, will multi-million dollar damages or disconnecting people from the digital world bring infringement to a halt? It hasn't worked in France with the most draconian laws around, why would it work here?
John, I do not wish anyone to be struggling in making a living, Artists included. Unrealistic hyperbole on the part of Mr. Sookman though is neither helpful nor as impressive to the committee as I think you hope. I found Prof. D'Agostino well spoken and I agree with quite a few points she made. As for Geist, you have already stated your views, but I think he spoke well. For the record though, I do not nessasarily agree with everything he says but he does represent the views of a large portion of Canadians.
John you and I may not agree on how to get there, but I think creators actually will have a brighter future ahead once adjustments to the new economic and technological realties are made. It is likely going to be painful for everyone in the mid term, which is unfortunate.
John, everyone's views must be heard; yours, mine, Sandys, Geists, Sookmans ... it's from cooperative efforts that workable solutions are born. But to succeed we must be clear and honest, avoiding manipulative language (from everyone) that only clouds the issues that needs to be solved.
Putting aside for a moment the intentional half-truths elsewhere in your post, I assume you agree it is a matter of settled fact that barely any of the money raked in by Canada’s dozens of copyright collectives ever trickles down to “creators.” The “millions” creators would “lose” from the addition of the single word “education” (but not, curiously, the word “parody”) are almost completely a moot point, except inasmuch as claimed defenders of creators are in fact defenders of intermediaries in actual practice.
D'Agostino's insistence that the bill contains many unintended consequences for creators
D'Agostino is wrong. Those consequences were intended, which is why the large media companies pushed to have them included in the bill. Once they were in the bill, then the peons in the cultural communities would back the media companies in asking for something stricter.
Yes, I'm a cynical old bastard.
Wayne
I'm curious to know how much of that $5000 actually makes it back to the songwriter. If the litigation is undertaken by a collective, I'm curious to know how the funds are correctly delivered to the "deserving" party. Transparency on this topic would be beneficial in determining the efficacy of suing your fans.
Mr. Clark,
I am good and tired of your nasty interventions on this blog. Show us all where I have used half-truths. When I write something here or anywhere, I do so with a clear conscience.
Put up or shut up for good.
And to your other ridiculous "fact," it's only settled in your fevered imagination.
I cashed my latest Access Copyright cheque the other day, as did thousands of other creators across the country. Many more can expect eve more money to "trickle" to them through their "evil" intermediaries, since that is often part of contract agreements in Canadian writing and publishing.
I suppose a professional creator would know that settled fact.
John, thanks for taking a stand for creators and providing such a concise summary of the witnesses. The fact of the matter is that it's NOT fair dealing if it's eroding creators' income. And it's not fair to educators and students to have fewer educational material produced because creators have no financial incentive to produce them.
I can definitely understand the concern, particularly regarding course packs, considering some of the comments coming out of academia. I know of at least one instance in which an instructor has "not told" his students to go photocopy 5 chapters out of a book. Of course, this book is only available on loan from the library for 1 hour. And is required for the final project in the course.
On the other hand, I don't think publishers are helping when they're doing their very best to screw students out of as much money as they can. Because instructors rarely concern themselves with the price of text books, book are already astronomically priced.
I'm currently in a battle with the department to stop the introduction of online only content. Which means forcing students to buy new books (rather than used) every semester. Surprise, surprise, its for a book that is being published by a faculty member.
Not to mention the story that just came out about Access Copyright demanding a tenfold increase from institutions.
I don't know what the solution is. But there is definitely plenty of animosity on both sides. I don't think it helps that the industry sends a registered lobbyist to pretend to be disinterested party. But certainly Dr. Geist would do well to be a little less disingenuous.
John, I apologize for the length of this post, but you recently said I was naive in my views of copyright issues so I though expanding on my positions would be informative.
Most of the people I know who care about this issue really are supportive of creators but not so much the content holders. I would think there are some organizations/individuals who are really working for the benefit of the creators but there are also a lot of industry players who are much more interested in the next financial quarterly report for the stockholders and how to squeeze as much life out of creators in that pursuit.
On the consumer side there are those of us who enjoy music, books, video & art realize that creators are valuable and need to be paid just like anyone else if we are going to continue enjoying their works. Then there are those who choose to file share willy nilly without putting anything back into the system, they are both immature in their world view and thoughtless in their actions.
That is four major 'groups' that exist in today's digital media environment, two proactive and two predatory. In a perfect world it would be the simple solution to get rid of the two latter groups, but alas a perfect world we do not inhabit.
Solutions are thus hard to come by, but just for fun if I was king of the world what would I do?
#1) Support Canadian Artists and Creators - Sometimes it is hard to define exactly what Canadian culture is but we do have innovative and talented people that reflect our views and values. Personally I think we should be supporting those people to help them succeed. Now there are some who say they should stand on their own two feet but the economics of the real world, in regards to small players like Canada, does not quite work that way. Besides, there are a lot of industries that rely on government regulation and subsidies, just look at the price of dairy in Canada. The USA also heavily subsidizes it's farmers.
Anyways, Canadian Artists are a national resource and I am OK with offering them some direct financial support through programs and direct payments to be competitive but I am not interested in padding Lady Gaga's well .. anything, with global levies.
#2) Discourage Infringement - There is no doubt that copyright infringement does have an impact on artists. The type and degree of that impact is a topic of debate as studies bounce somewhere between devastating and slightly beneficial. There is a lot of rhetoric from both camps as well such as 'a download = a lost sale' or 'I'm just trying before I buy' both positions are to some degree false and self serving. Where I think things have gone off track is in the remedies that have been put forward.
In this regard I am highly critical of such organizations such as the RIAA and other 'professional representative groups' who have taken a shock and awe approach to the problem. To continue the metaphor in fighting the 'insurgents' they have embittered the 'civilians'. The insurgents (mindless downloader's) you will never win over but the average media consumer is quite willing to act fairly if they feel they are being treated the same. The 'war footing' of the media industry though has pushed the allegiances of many towards the enemy camp.
So what is the solution? Well, I think the 'building bridges and schools' approach would be more successful. In this regard I would limit TPM to rental/subscription models and offer full fair use rights such as format/time shifting & backups on purchased media. Infringement where the infringer is making a monetary gain would need to be compensated or prosecuted.
#4) Protect Creators - Finally it is not all about protecting the consumers, Artists too need to be treated fairly. One area that needs to be looked at more closely is the contracts the industry forces on creators. If fair uses (shifting/backup NOT sharing) were worked into the initial prices of media then a larger compensation share passed onto the creator would solve two problems at once.
Personally I would be happy to pay a slight premium for up front fair use if I knew the remuneration for that was going back to the artist instead of the shareholders. In the case of iTunes and digital music the market, along with the industry clout of Apple, forced the removal of DRM from their products. Unfortunately for the creators, the price point of $0.99 was already set in the minds of the public and I suspect the contracts already were in place. There is still time on other media such as video, books etc. to negotiate a better deal before the inevitable shedding of DRM on those formats as well.
If industry is not willing to go down this road then there are emerging technologies and models that could enable creators to distribute their own works and keep a larger share of the profits. This I think is a real possibility and should be a threat and leverage to creators to leverage a better deal out of the traditional publishers. Personally, I see this model as the future and of great benefit to the well being of artists, but in the least it should be pushing for change to the Artists' benefit.
I'd be interested to get some feedback John on these thoughts. I do not claim to be an expert but I do hope for a better deal for Artists and consumers both.
And in slightly out of numerical order (whoops) ...
#3) Protect Consumers - The large amount of infringement that occurs is in part due to mindless greed on some people's part but for others it is a result of product dissatisfaction and a feeling of being 'gouged'. The content industry in it's pursuit of profits would like to monetize as many different streams of media use as possible. They are a business and so that is their obvious purpose and desire. The problem is when cost fixing is brought in the form of government legislation of business models that the public is already rejecting. This creates a skewed and unfair landscape that leads purchasers to feel less 'guilt' about their behavior and justification for infringements. It also has the unfortunate and serious side effect of creating a disrespectful attitude towards the very concept of copyright as it is seen as a tool for the elite and of little benefit to the public.
So what is the solution? I think there needs to be more accountability to the content industry. In Brazil for instance, it is a criminal offense for industry to limit fair use, how's that for turning the tables? Both public commercial infringement, and industry abuses must be opposed to enable balanced fairness.
Crockett,
I've had a note from Blogger, and they say they're running out of letters, so if you could use fewer words in your comments that would be better.
Also, I guess I've never mentioned my rule about cross-posting here and at Geist's site. I'm all for recycling, but just adding my name to something you've written elsewhere dioes not really feel to me like engagement.
On to your - many - points:
I reject the idea that the producer/righstholder class in culture is predatory. That is a misreading of the actual relationships in my sector, and I'm afraid it's a common misreading based on populist politics and rhetoric. Undoubtedly there are predatory individuals in culture, but they are the exception not the rule.
cont'd
I really don't think the same can be honestly stated about consumer practice in cultural consumption over the past decade. High prices, lawsuits, DRM -- these are all after-the-fact rationalizations for a pretty sad pile-on to suddenly free content once file-sharing became easy. A forthright discussion of copyright would take that point as settled.
Public funding for the arts is a wonderful thing. It should continue and be increased. But it is not a substitute for fair royalty payments based on use. From the unknown to the Gaga, if the content is used, the creator should be paid.
Your "building bridges and schools" analogy is not offensive, but it does seem odd to me that you are advocating for things that are already happening. Cultural creators, to begin with, are probably the most generous group with their time and product. If not, they are certainly as generous as any other group. Despite this generosity, rampant infringement continues.
Whether filesharing is harmful or helpful to certain cultural products is a side point and irrelevant to the central discussion. Infringement is counter to the polite agreement creators make with society when they release their work. It's wrong. Filesharing without consent is wrong. There is no justification.
Since it is wrong, and illegal, there is absolutely no reason why copyright holders should not have the option to sue with prejudice to protect their rights. However you may personally feel about RIAA, they had the right to sue. Blaming those lawsuits retroactively for the disrespect of copyright is an extremely twisted form of victim blaming.
Meanwhile, RIAA has softened their perfectly justifiable tactics, iTunes songs have no TPMs and many more cultural content producers and creators are working out new permissions and privileges for consumers. There is simply no need to remove or weaken the important rights of these stakeholders to provide something for consumers that is either here already or on the way.
Obviously in this discussion I prioritize protecting creators and their partners. I don't think we do that by removing existing rights and saying "let's do something else for them instead." The premium deals you describe are a possible solution, but they already exist and do not need to be legislated - in fact, legislating them would harm creators.
I am not against protecting consumers. I am a consumer and I hate being ripped off. But I also make it my business to understand what I'm buying and manage my expectations properly. Ifr something seems not worth it or too expensive, I don't buy. As a consumer, I protect myself from bad actors in the marketplace.
In terms of fair dealing, we might just be at odds. I don't think anything currently in fair dealing guarantees consumers unlimited access to creative content. I've said a million times, when you buy a DVD you are not buying a movie; you are buying a copy of a movie.
We can help protect consumers from their own unrealistic expectations by spreading that fact around a little more, instead of conflating types of ownership. "I bought it, I own it" has limitations in the world of creative content. That's just a copyfact. The law says to creators "You made it, you own it," and that copyfact does not change on the sale of copies.
Now please. Two sentence responses only.
@Jason
I would imagine that each collective has its own rules for distribution of damages that may be awarded in a court proceeding. In certain instances, a creator collective may have the resources to pursue copyright infringement where its individual creator members simply don’t. It’s one of the strengths of collectives. However, the reality – and Geist’s did not mention it in his ‘$5000 is an awful lot of money’ commentary at the Committee – is that it is highly unlikely that any individual rights-holder or collective would pursue an all-in $5000 statutory damage award in light of the costs associated with litigation. And bear in mind $5000 would be the maximum a court could grant if the Bill were to become law. The proposal to reduce the statutory damage range to between $100 and a maximum of $5,000 for all works and all infringements for “non-commercial purposes” only serves to weaken copyright collaterally.
I think this proposal stands to hurt the ‘little-guy’ copyright holder more than it would the Disneys of the world. In any event, it has little to do with preventing disproportionate statutory damages awards. Query how many times a Canadian court has made such disproportionate award against a person who infringed copyright for a non-commercial purpose. I believe the answer is zero.
Suing customers in Canada would probably be the worst move the content industry could make. It will reinforce the perception that it is American big business who is running the show. It will have the absolute opposite consequences intended. France, with the harshest IP penalty laws on the planet, has seen an INCREASE in infringement since it's law were enacted.
I don't say this so infringers can have a free ride, just a warning that this is not a wise remedy.
Whoops, that was more than two sentences wasn't it? 0_o
I'll try not to drain the orthography bin next time.
John, my posts were were written on your site first, with you in mind, then cross posted to Geist's site.
It sounds like we do have some common ground here, and I acknowledge your point that some of the things I suggested are being implemented in some sectors.
On the topic of disrespect for copyright, that is really a chicken and the egg dilemma. It is true infringement took off when file sharing became easier but was that explosion the seed of disrespect or a consequence of it, or both?
Regardless of the blame one thing is evident, it exists. Now the question is how to fix it? Will harsher deterrents do the trick? That has not be the case in other parts of the world it has been tried, I fail to see why it would be different here.
I can understand the anger and desire to punish those who's behavior is hurting your industry. But if cooler heads can prevail and energy is instead put towards generating good will, positive PR and creating increased value then that will be of more benefit to your bottom lines.
The sad but still relevant fact is the public, having it's own parallel distribution system, has the upper hand in this battle. Technological or legislative efforts are unlikely to succeed as enforcement is near impossible.
Therefore it is incumbent on the creative industry, for it's own well being and survival, to court the public rather than trying to regulate it.
I have made some suggestions to those ends in my previous posts, but other solutions or enticements may work better. But what has to happen first is a cognitive shift on both the part of industry and the public to do things differently. Things just continuing down the current road does not look to get any better for anyone.
If the consumer doesn't respect the law, then there is no way that they law will ever work. This is the very crucial things that a lot of the creators (or at least those who propose to represent them) do not seem to get.
I've said similar things to this before, but Pandora's box is open, and you are not going to get it closed by legislation.
What is copyright and is their any ownership?
Copyright is a set of exclusive rights granted(notice the word granted) by the law to the author or creator of an original work, including the right to copy, distribute and adapt the work. Exceptions and limitations to these rights strive to balance the public interest in the wide distribution of the material produced and to encourage creativity. Exceptions include fair dealing and fair use, and such use does not require the permission of the copyright owner.
Copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others.
Copyright does not protect ideas, only their expression or fixation. Copyright protection applies for a specific period of time, after which the work is said to enter the public domain.
In discussing copyright there seems to be much inference that it is more than this.
And obviously some wish it were more.
So it comes to this, does it, Gruesome?
I could have written that last comment by cobbling together bits and pieces from the wikipedia pages for Lessig and Doctorow.
Thank goodness the committee is hearing from thinkers, and not just from repeaters.
John,
That's why I dropped Blogger for Word Press. While I don't agree with many of your opinions, if you decide to migrate, I would be happy to help you make the switch.
Wayne
Wayne,
A very sporting offer.
I'm a bit confused about what you mean. Why did you drop Blogger for Wordpress? Would Wordpress stop Gruesome from writing wholly unoriginal comments?
So John, does the fact that what Gruesome says is pretty much common knowledge, lessen its value?
Given the prevalence of legal protection for DRM in this bill which subverts important aspects of copyright, I think what Gruesome says bares repeating. Loudly and frequently.
I would also suggest that the majority of what you say about copyright is hardly original either.
BTW, you could also have read the same perspective in the Supreme Court CCHC decision, the US Court of Appeals on jail breaking, and the US constitution itself. Not an original perspective by any means, but certainly not one which Minister Moore has heard enough.
@John "We can help protect consumers from their own unrealistic expectations by spreading that fact around a little more, instead of conflating types of ownership. "I bought it, I own it" has limitations in the world of creative content."
I do not think that is possible at this point John. Consumer expectations have shifted and jelled to the point that trying to turn back the clock would be a misapplication of effort.
I could be proved wrong in this. but I expect it is the content industry that is going to have to blink first. It may not be all bad, remember how the VCR was going to be the death of the industry? How many billions has that generated? Shifting technology and consumer expectations need not be the dire ends envisioned. The smart players will be the ones ready to move into the cracks created by this technological shift.
Don't get me wrong John, I believe in copyright and the benefits it brings. And yes it will evolve but that evolution should always reflect a balance between creators and society as a whole.
I don't understand your references but I understand you'd like to see this balance become more one-sided. Not suprising most people act out of their own Interest.
Once again you attack without logic or argument
Good
Darryl,
Are you saying "What is copyright and is their any ownership?" is common knowledge?
I thought it was a grammatically incorrect open-ended question that Gruesome attempted to answer with non-specifics, mixing different national treatments and ultimately leading to no conclusion of value.
Of course, I put a premium on originality. I'm aware you think differently.
Crockett,
You need to have more faith in the value of truth and reality. Remember how post-modernism was going to permanently replace the fixtures of modernism? Maybe you don't. But I do, and of course, it didn't.
What happened instead was that people were informed by the theory, some folks got real famous spreading that theory around over the course of a decade and half, and then people went back to writing and enjoying the literature they'd always enjoyed and wishing the post-modernists would stop taking themselves so seriously.
Free culture, and its need to break down the doors of copyright are on the same path.
One man's opinion.
OK, I see, almost too pathetic to respond but here goes, never read anything on copyright from lesig or Doctorow, I have read about 6 books all of which are now burried in boxes, Copyright Law from a Canadian citizens perspective; Copyright Law History, language theory and I can't remember.
Wait let me guess your response, I'm reading the wrong books
John I'm sure you can point to something on the extreme right.
Barry's book perhaps? I can't afford that one
I just put it out there because your own talk of copyright is filled with more hyperbolie than fact. I'm sorry about the grammar but I'm not a writer and certainly not as creative as you.
While we debate post-modernism why not throw in some Antidisestablishmentarianism just for fun?
John, just for the record I am not advocating "free culture", I think I've said a number of times I would like to see Artists have an increase in renumeration for their works.
My point is the current copyright system was not designed with the reality of an unregulated public distribution system in mind, and I'm not sure it can just be patched up piecemeal. It may take some, I hate to use the term, "radical" solutions.
I would prefer to see a cooperative intelligent approach rather than the reactionary mess we find ourselves in today. Either way, piecemeal or comprehensive, changes are obviously needed and time will tell what the eventual solutions will be.
John likes to try and marginalize those that offer true balance because they're a threat to his extreme right view on copyright.
When I think of the decisions that need to be made on copyright and updating it for now and the future, I look on it's intended purpose and try to figure out how to maintain that.
Who undermines copyright?
Those that advocate for free and those that advocate diminishing fair use.
Copyright is a public trust
John,
Behind in my reading. Re Post-Modernism, it didn't die, it was subsumed. It's influence shows up in a lot of modern novels.
Wayne
Gruesome,
All of the books on copyright are wrong, from one point of view or another.
FYI, what John (and Access Copyright) is really concerned about is OpenCourseware.
Wayne
Wayne,
Please let me express my own worries, concerns and opinions.
OpenCourseware is one proprietary model for online content delivery developed by MIT (among others, I believe). I feel no threat from them whatsoever. As I state in a more recent comment section, my "concern" is that creators maintain the controls over their work currently granted by copyright.
If the broad educational community wants to adopt services like OpenCourseware, they are free to make that choice.
This kind of service is NOT new, btw. It is simply a digital re-invention of the old scanned book microfilm subscription services that swept through libraries, colleges and universities in the late 20th century, promising to reviolutionize content delivery for the modern era. Whatever happened to those microiflms, anyway?
But since we're talking about it, let's examine OpenCourseware. I naturally looked into a literature course... 21L.471 Major English Novels as taught in Spring 2004. The reading list is as one might expect - mostly public domain works from the 18th, 19th, and early 20th centuries. Only one work, a novel by Rushdie, is still covered by active copyright.
Students have the choice of downloading a Project Gutenberg text file of all of the novels except the Rushdie. They are also given the choice of buying the texts online. That purchase option is always and only at Amazon.com. Why? Because Amazon has a private deal with OpenCourseware, kicking back 10% of the purchase price through their link. You can see how this whole "open" thing is really threatening corporate culture.
There are also links to online readings that are, presumably, all freely available on the web, and therefore unlicenced for use in Opencourseware (likely under a fair use claim). These assigned readings lean very heavily on wikipedia entries, infoplease.com (All the Knowledge You Need), and something called Sparknotes, a web-based Cliffnotes like service that clearly sells student eyes to corporate advertisers such as... you guessed it Amazon, Barnes and Noble and Zellers.
I feel great about where fair dealing for education is taking us.
Hah. I've still got microfiche, and a viewer in my basement. While they may not have taken off in the academic world, they were widely used in business (I picked mine up when a company I was working for died).
Have you looked at the license that MIT is using?
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