Thursday, October 09, 2014

poking holes in Canadian copyright now more popular than hockey

the attack ad exception... for freedom!

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

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

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

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

But, I'm not done yet:

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

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

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

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

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