With the return of the federal copyright modernization bill (Bill C-11) the sound bites and fevered rhetoric in the copyright debate have started flying again. It can all get quite confusing, and for professional creators, publishers, producers and other rightsholders the idea of joining the public debate can be very intimidating.
As I’ve documented on this blog, the opponents of copyright do not treat professional content creation with much respect. Nasty personal attacks, highly politicized accusations of corporate greed or totalitarian control, and just plain old haranguing are commonplace when an artist or cultural professional insists on strong copyright. Who wants to be seen as a jailer of culture, someone who sues and imprisons fans? And who wants to be followed around Twitter, Facebook or even one’s own personal blog by tireless free-culture fanboys intent on drowning out the voices of professional culture.
Anticipating this ramp-up of nastiness, I prepared a quick do and don’t fact sheet for anyone concerned about their copyright and thinking about the new bill. I realize there are a range of opinions on all these points, but this is my opinion. Please note that I am not an intellectual property lawyer (though I have had lunch with many of these fine folks). I’m just a writer… standing in front of a reader… asking her to respect my rights.
Do and Don't:
Do support fair dealing – The fair dealing provision in Canadian copyright law is absolutely necessary. It allows us to interact with the copyright-protected work of others freely enough to encourage the continual growth and revitalization of culture. Fair dealing allows us to research, to study, to quote, to pay homage to, and now (though I’ve always insisted on this myself) to engage in parody and/or satire without obtaining the permission of a copyright holder. These are all genuinely good things that build our collective culture.
Don’t assume that if some fair dealing is good, more fair dealing will be great – The pressure is on by so called user-rights activists to endlessly expand the fair dealing provision within the Copyright Act. More pernicious than just the adding of new categories to fair dealing (see C-11’s new “Education” category) is the free-culture movement’s desire to take logical, established category definitions and make them so vague (again, see “Education”) that just about any use will fall under them. Fair Dealing was designed as a necessarily limited provision for use. If we remove the limits, we terminally weaken copyright. I am hoping for clarifying amendments in the fair dealing section of C-11.
Do share – The Internet’s impact on the sharing of culture is indisputable. Never has it been easier for creators and cultural professionals to get their work out there and gather audience and/or readers around it. I think we should all be experimenting as boldly and fearlessly as we can with new business models for cultural distribution, but always with a firm grasp on our rights.
Don’t confuse actual sharing with forced-sharing (also known as taking) – Any three-year old knows the difference between wanting to share and being forced to share. Free-culture businesses such as Google and YouTube are making billions of dollars selling advertising on top of freely shared content. Fair enough. But when the sharing is forced (Google Books, YouTube “mash-ups” that go far beyond fair dealing) then copyright has been ignored. Don’t give in to this often intentional conflation.
Do love schools and libraries – the cultural sector has always been and should always be the strongest supporters of and partners with education and libraries. I recommend all creators and cultural professionals volunteer their time and content as much as they can in both libraries and schools.
Don’t let this love turn you into a content doormat – Sometimes love hurts. Such is the case right now when a Canadian cultural collective (Access Copyright) finds itself having to fight the misguided free-culture impulses of some of our traditional partners. This goes back to the difference between sharing and taking. The universities and colleges currently refusing to negotiate with Access Copyright want to continue to use Canadian creative content without having to pay for it. This is not about a fantastic professor you know inviting you to speak in her classroom and not having the budget to pay you; this is about extraordinarily well-financed post-secondary institutions wanting to cut collective licensing out of their expense lines altogether.
Do know the difference between an original and a copy – It sounds a bit silly, I know, but the ease with which the digital realm can make perfect copies of most creative content has confused a lot of good folks. Here’s the example I always use.
When you buy a DVD of Cool Hand Luke (one of my favorites) you are not buying the movie Cool Hand Luke. You are buying a DVD. In other words, you are buying a copy, not the original. The original of Cool Hand Luke would almost certainly be more expensive than the $12.99 you paid for the DVD copy, because the original contains all the rights purchases from all the artists who worked on the film, and all the licensing rights for the term of copyright.
The DVD does not contain those things. Instead it contains a copy of the movie for which you are purchasing necessarily limited rights. Quite often, whether you like it or not, you are not buying the right to move that copy of Cool Hand Luke from one format to another (also known as copying). This limitation can and probably will change as formats become more flexible and format-shifting less complicated, but as more rights get bundled into a copy-purchase the bundling must be done on the rightsholder’s terms.
Do support rights management, whether you choose to use it or not – Digital Rights Management (DRM) is exactly what it sounds like, a tool to manage creator rights across digital platforms. Since digital rights management is applied to copies of works and not to the original work itself (remember that important distinction) it is essentially a No Trespassing sign keeping specific creator rights reserved for the original. The breaking of digital rights management tools should be as illegal, therefore, as intentional trespass on private property.
Don’t buy the prison and chain imagery - Those who would have you believe that DRM is a “digital lock” are either mistakenly or intentionally conflating originals and copies. The idea that DRM on an e-book could keep another writer from exercising her fair dealing rights to study, research or quote from the work in that e-book is as absurd as saying a physical book’s binding and copyright page stops her from reading or taking notes. With DRM, the copy may be managed but the work still exists for fair dealing uses. And besides, if we weaken the cultural industry’s control over their intellectual property we reduce the available business models for them, and therefore reduce actual consumer choices. There can be no Netflix without legal protection for rights management.
Do boldly go – Creators and cultural workers should experiment broadly with technology and new platforms for creative works. Read a book on an iPhone to see what that’s like, write a book on an iPhone (actually, I’ve tried that – no fun at all). Learn where workflows and formats and distribution channels are going. Why am I even telling you this? Cultural creators lead the rest of the world in this kind of thing. But as you boldly go into the digital universe, keep your rights as creators and producers. I have yet to discover a new technology that required me to give up my rights in order to use it.
Don’t let anyone tell you “you just don’t understand the technology” – This is the big free-culture talking point – digital culture is just flat out different from that old-school culture you remember, and the new technology simply requires that copyright not be so demanding. Take this to the extreme edge of free culture and you hear that copyright will break the Internet. Arguing against this line of thinking, I’ve often been labeled a “creator of the past.” Okay, so let me use some language of the past – Balderdash! There is nothing in the functioning of the Internet (or your smart phone) so mysterious and new that you have to give up your fundamental rights as a creator. The plumbers of the intertubes are some smart folks. They can figure out copyright, given the proper incentives.
Do embrace openness – Like the word sharing, the word open is getting a lot of play in free-culture circles. Open access, when respectfully designed, allows free and unrestricted access to creative content for either select groups (students of a specific university) or for the whole darn world. Openness is the impulse behind blogging, behind free public performance and wiki-knowledge tools. Unquestionably, openness makes the world a better place.
Don’t buy into enforced openness – As with forced sharing, enforced openness is a bit oxymoronic. Just the other day, Princeton University passed a new Open Access Policy that, among other things “gives the University a nonexclusive right to make available copies of scholarly articles written by its faculty.” Couched in terms of generosity and convenience, the policy forcefully removes the rights of individual creators for the “greater good” of openness. In the FAQ about the policy, Princeton happily admits it is removing a right from its faculty, but assures them it will be better for them in the long run. How…. open?
Do love your fans – This is an easy one. Anyone who’s received a flattering e-mail about their book, article, issue, movie, song or performance knows that there really is no cultural production without a receptive audience. Cherish that relationship.
Don’t let a thief call himself a fan – Fans respect the rights of the creators whose work they admire. Enough said.