BCCLA response

I have received the following letter from the British Columbia Civil Liberties Association in response to my open letter. I'm out of the fray briefly on a writing sabbatical but, in the interest of timeliness, I will load the letter here and leave it to commenters to shake out the meaning of it all. I'll comment more fully later, but I will say I'm immediately a bit confused by the reframing of my own points in this response. I have no idea what the "other concerns" are that BCCLA has farmed from this blog, or why someone would do such a thing in response to a letter:

August 8, 2008

Dear Mr. Degen,

Re: BCCLA’s position on Bill C-61 – Copyright Reform

Thank you for your letter dated August 7, 2008 regarding our recently adopted position paper on Bill C-61. You describe your missive as an open letter that you will be publishing on your blog (www.johndegen.com). In visiting your blog, I have learned of some other concerns that you have regarding this position paper and I am pleased to have the opportunity to address those matters as well.

Firstly, I would like to clarify that the BCCLA’s Position on Bill C-61 is entirely independent of Fair Copyright For Canada (“FCFC”) and determined solely by our Board of Directors. We have no affiliation with FCFC. Additionally, although we find ourselves in agreement with many of the positions taken by Dr. Michael Geist and welcome opportunities for collaborative efforts on civil liberties matters, we have not in fact collaborated with Dr. Geist on Bill C-61.

As you know, Greg McMullen and Chris Brand wrote our position paper. They were invited to a recent Board meeting by one of our Board members and asked to give a presentation on Bill C-61. We frequently invite people with expertise in particular topics to address our Board and write papers for our consideration. It was my request that they provide a written summary of their presentation points in the form of a draft position paper to be debated by the Board. This document was approved as an Association position with various amendments from the Board. As we would like to recognize the efforts of volunteers who write position papers for us, we acknowledged Mr. McMullen and Mr. Brand as the authors of the paper and they chose to cite their affiliation with the FCFC.

For more than four decades, the BCCLA has developed positions on various pieces of proposed legislation. This is not, as you have described our efforts to date on Bill C-61, an “interruption” of important democratic processes. Indeed, it is full participation in the democratic process as we contribute to the public debate and, frequently, make submissions to Parliamentary Committees. The crucial Committee process relies entirely on interested citizens bringing their considered positions forward. We are not, as you put it, “prejudging” Bill C-61. The bill exists and the time to develop a position is now, not after the opportunity to make a submission to the Committee is lost.

As you note, our position paper deals primarily with the issue of digital rights management (DRM). You say that you feel that this matter does require clarification and that this should be an important aspect of the legislative process to come. We do not appear to disagree on this point. Our role is to make legislators and the public aware of the civil liberties concerns about DRM as it appears to be envisioned by Bill C-61. It is not clear to me that you have substantive opposition to what we have set out as our concerns. You say that the current exceptions to copyright, such as fair use, are very important civil liberties worthy of protection. In stating that we are being insufficiently attentive to authors’ rights I gather that you feel that our opposition to Bill C-61 amounts to supporting a substantial broadening of these exemptions. Rather, our position is that the bill impermissibly narrows, or makes practically impossible, these crucial exceptions.

To clarify, we have not taken a position opposing copyright nor opposing copyright reform. Rather we believe that Bill C-61 does not represent an appropriate balancing of rights and constitutes an unacceptable abrogation of privacy and expressive rights.

We have amended positions in the past and are always prepared to learn more about any given subject. If there are specific, substantive objections that you have to any of the points we make in our position paper, we would be happy to consider them.

We would welcome your posting this letter on your blog as our reply to your open letter.

Yours truly,



Micheal Vonn
Policy Director
British Columbia Civil Liberties Association

cc. Greg McMullen
Chris Brand
Michael Geist

open letter

Yesterday afternoon, I sent this open letter to the British Columbia Civil Liberties Association, and copied it to the Canadian Civil Liberties Association. This is the full letter as sent, but I have removed personal info for BCCLA contacts (you can look them up yourself):

Dear ____,

I am writing with concern over the BCCLA’s recently adopted position paper on Bill C-61, the federal government’s Act to Amend the Copyright Act. I feel the paper is unbalanced and prejudiced against the rights of creators and copyright holders in the consideration of digital copyright matters. Furthermore, I worry that the BCCLA has been hasty in adopting the opinion of only one side of what is essentially a three-way discussion. The fullness of creator concerns is missing from your adopted position.

Copyright reform is a complex topic that has caused a great deal of confusion and inspired an unfortunate amount of misinformation in the public discussion. The most simplistic interpretation of the issue frames reform as a fight between powerful and domineering corporate interests and the ‘little guy’ consumer. While this characterization is one element of the broader reform picture, it does not represent a comprehensive understanding of what is at stake – especially from a civil liberties perspective.

The individual citizen’s relationship to copyright law is not as either creator or user. It is as both, simultaneously and often with little obvious distinction. The already present exceptions to copyright (fair dealing, personal use, private study) are very important civil liberties that must be protected. They are the very foundations of our free press, our freedom of expression and our freedom of education.

But these civil liberties are necessarily tied to the equally important civil liberty of personal ownership and control over one’s own creativity. When individuals lose significant care and control over their creative works, either through state intervention or unchecked consumerism, creative freedom itself is threatened. It is for this reason, presumably, that the United Nations linked these two important rights under Article 27 of their Universal Declaration of Human Rights:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

The Fair Copyright for Canada position paper your organization has adopted focuses on the issue of digital locks (TPMs and/or DRM) as it appears in the tabled Bill C-61. I do not believe the full effect of the digital lock provisions in
C-61 has been sufficiently clarified by the Bill as written, and I agree with your position that we all need clarification about how digital locks would work in relation to existing user rights and exceptions. I think this will be an important focus of the Parliamentary debate, committee discussion and amendment process.

On the other hand, originating as it does from a recognized consumer lobby group whose very public aim is to see Bill C-61 defeated, I feel your position contributes to a prejudging and interruption of these important democratic processes. At the very least, a civil libertarian position needs to balance the now standard attacks on corporate excess with recognition that the vast majority of rights holders under copyright are individual citizens protecting their personal creativity.

I respectfully request the BCCLA consider a special review of its adopted position on Bill C-61.

Sincerely,


John Degen, novelist

Disclosure: I also work as the Executive Director for the Professional Writers Association of Canada (PWAC), and am a proud participant in the Creator’s Copyright Coalition and a creator affiliate at Access Copyright, Canada’s copyright licensing agency. In my professional capacity with PWAC, I regularly advocate for the professional writer position on copyright against both corporate and consumer excess. This letter contains my personal opinion only, and should not be considered the official opinion of any of the groups mentioned.

cc: The Canadian Civil Liberties Association

This is an open letter, and will be published on my writing blog at www.johndegen.com after being sent to the parties addressed.