set rhetoric to stun

(image of the Kremlin courtesy the Swedish National Heritage Board)

I've often pointed out how anti-copyright rhetoric favours gun, jail cell and shackle imagery. If one were to only casually follow the argument against strong copyright, it would be easy to conclude that corporations are plotting to use copyright and IP laws to bring about a world domination plan Doctor Evil would envy. And since some corporations undoubtedly already own remote island testing facilities, we're probably more than halfway there.

A lot of folks in the cultural community (who have also been asking for strong copyright protection, btw) react understandably poorly to these analogical predictions. After all, who enjoys being accused of nefarious plotting to subjugate the world's populace? Not me.

But, if the last ten years of political history have taught us anything, it's that fear-mongering works. So don't expect any dialing down of anti-copyright rhetoric anytime soon, certainly not with imminent committee hearings on the Canadian copyright reform legislation, and the conclusion of anti-counterfeiting treaty negotiations (not to mention the recent Access Copyright educational levy hearing in front of the Copyright Board).

Consumer advocate Michael Geist is Canada's (perhaps the world's) leader in scary copyright campfire stories, and this week has been a banner one for the University of Ottawa law professor. In a Toronto Star column timed to hit parents and students in the back to school haze, he attempts to terrify us all with visions of "a massive increase over current fees," as a result of the proposed Access Copyright tariff. In classic circular argumentation Geist points out there "seems to be a growing sense that many faculties and courses make very little use of the [Access Copyright] licence." He fails to mention, however, that the "growing sense" was planted, watered and fertilized by Geist himself on his own blog.

Geist is aware Access Copyright has stated openly they only wish to licence actual uses uncovered by individual licencing, and that the collective of writers, visual artists and publishers will be challenged by the copyright board to provide adequate proof of those uses - in other words, that a system is already in place to protect students from unfair costs as cultural workers seek payment for the use of their work by universities.

He is also aware that his very own university could pay the licence for every single one of its students with a tiny fraction of one percent of its annual budget without ever having to pass the cost on to those students or their parents. He is aware of these things; yet his column still raises the specter of unmanageable student loans and unreasonable cost increases.

I remember marching alongside my profs and their teaching assistants when they hit the picket lines to demand fair pay increases. Ask me how it feels now to have a prominent professor campaigning against a fair increase for cultural workers.

How does it feel?

Well, I'll tell you -- it doesn't feel nearly as bad as having that same professor imply that support for strong copyright and intellectual property enforcement will almost certainly lead to authoritarian suppression of dissent. Not only am I trying to stiff poor students (like my own kids -- what kind of monster am I?), but apparently I am also in league with Russian autocrats who will use any excuse to shut down NGOs who criticize the government.

Here's Geist's latest, fellow cultural workers. Read it and feel very, very guilty, because you love government repression of the masses:

How IP Enforcement Can Be Used To Suppress Dissent

Of course, writers, publishers and corporate copyright-holders actually hate this kind of oppression so much we volunteer time and money in organizations like PEN Canada to work against it. Geist knows that as well, but don't count on hearing about PEN Canada around the Geist campfire.

lessons in headline writing

Earlier in the month, a coalition of writer groups in Canada wrote a joint letter to federal Ministers Moore and Clement (Heritage and Industry, respectively) requesting "clear legislative guidance" on a proposed amendment to the Copyright Act that appears in Bill C-32 , the much-talked-about Act to Amend the Copyright Act.

The letter opens with praise:

On behalf of all professional writers in Canada we want to thank you for beginning the process of amending our copyright legislation for the digital environment. We recognize this process as an absolute necessity if Canada is to fulfill her role as a leader in the context of the growing global knowledge economy.

It continues with a request for clarity and an offer to open dialogue around the inclusion of the word "education" in the the fair dealing section of the Act. The intent is to make sure C-32 provides "clear, predictable and fair rules," which is one of the stated aims of the Bill.

The letter closes with gratitude:

"We thank you for your express willingness to amend C-32 and we will be presenting a comprehensive position that includes specific measures we hope will receive the support of your government."

It is signed by elected representatives of:

The Canadian Authors Association;
The League of Canadian Poets;
The Literary Translators' Association of Canada;
The Playwrights Guild of Canada;
The Professional Writers Association of Canada; and
The Writers' Union of Canada

All told, these groups represent over 4,600 working creative professionals in Canada, all of whom have chosen to join their industry associations and participate in the grassroots democratic processes that lead to policy statements such as this letter.

The tone of the letter is considered and reasonable; and it is absent any panic or dire warnings. It's surprising, then, that this is the same letter consumer advocate Michael Geist blasts as "fear mongering" on his blog, under the headline:

"Writers Groups Attack Fair Dealing Reform in Copyright Bill"

Geist criticizes the letter for inaccuracy and chides the creator groups involved for seeing uncertainty in the new amendment where there is none. He concludes with this remarkable back-handed accusation:

"If the writers groups are against fairness and balance in copyright, they should say so, rather than trumpeting misleading claims about the effects of the fair dealing reforms."

4,600 concerned Canadian writers against fairness and balance in copyright? Because they ask for "clear legislative guidance"?

What an astounding and nakedly biased charge from the Canada Research Chair in Internet and E-Commerce Law, whose stated research goal is "seeking to reach a better understanding of how the various stakeholders can effectively co-exist and how a traditional governance system of checks and balances can be replicated in the on-line environment."

If you've read Dr. Geist's blog for as long as I have, you might be a bit less surprised by all of this. Another recent headline is just as provocative:

"Access Copyright's 1300% Tariff Increase - Deadline to Object is August 11, 2010"

... and just as misleading. Subsequent discussion of the tariff referred to in that posting has revealed claims of a 1300% increase are wildly inaccurate, yet that headline and all related claims remain uncorrected.

Geist's sensational jab at thousands of Canadian writers is all very confusing, since encouraging Canadian citizens to express their opinions on copyright specifics has seemingly been the professor's full-time job for the last five years. I guess some opinions are to be encouraged more than others.

In related news:

Harry Potter Books Spark Rise in Satanism Among Children!

Martians Land in Grover's Mill, New Jersey!

Law Professor Opposed to Clear Legislative Guidance!

massaging the message

One of the things I find most interesting about the copyright debate is seeing my position(s) defined for me by others. I read an awful lot of assertions like Degen believes such and such, and he's wrong because...

Recently, I've learned from others that I fully support Bill C-32, that I favour a late 20th Century model of creator’s rights, that I want content locked up against fair dealing, that I support censorship, and so on. Step into this debate and you could spend so much time defending yourself from ridiculous assertions, your actual opinion may never be heard.

Which, I guess, is the point.

So, yesterday I reported about Access Copyright's legal victory at the Federal Court of Appeal, and about their concern that this win for creators could be cancelled out by ill-defined changes to copyright law. I wrote "the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use."

Bill C-32, the federal government's Act to Amend the Copyright Act does indeed contain new educational exceptions, and they are not defined as clearly as many creator groups, Access Copyright and I would prefer. If interpreted in an overly broad manner, they could provide a legal leg-up for the kind of tariff challenge Access Copyright has just finished defending. I am certainly not the only one who thinks this way. Lawyer and publishing consultant, Gary Rodrigues, writes:

"Based on an amended Copyright Act, the Ministers of Education might ask for a review [of] the new tariff before it is fully implemented."

I have mentioned my own concern about overly broad interpetation, informally, to both federal ministers responsible for C-32 (on Twitter!) and have been reasonably assured definitions will tighten up through committee work. I think that would be a great outcome, and I have hope that this recent Court of Appeal ruling will help with the tightening process.

Today, I am informed by the prominent consumer advocate, Michael Geist, that my concerns about an overly broad exception to copyright "bear little relation to reality," and that the recent Court of Appeal ruling proves I'm worrying for nothing. Well... good, then. I hope Dr. Geist advocates strongly for that interpretation at the C-32 committee.

But wait, I'm mistaken -- Dr. Geist actually wrote "fears that the extension of categories will wipe out all revenues bear little relation to reality." I see the problem. When I wrote the introduction of an overly broad exception to copyright for educational use, Dr. Geist read the extension of fair dealing categories.

Of course these two things are NOT the same, nor did I ever mean for them to be. I have called for better definition around fair dealing for a long time (in my copyright consultation submission, for instance), and am happy to talk about category extension - I think parody, for instance, is an important freedom. Yet somehow, I find myself prominently advocating a position I do not hold on this country's central site for consumer-focused copyright discussion. And this... let's call it a misunderstanding... is, I guess, how the copyright debate maintains its momentum.

Meanwhile, three comments into the discussion of my newfound opinion on Dr. Geist's blog, we find this gem:

"I just don't get the need to be compensated for ones work being used to teach kids or others. If I had a school teacher pick up my work and use it to teach kids about the world I'd be more then happy to see my work get used for free. Why the hell could you not want that?"

Clearly, concerns about overly broad exceptions to copyright are completely unfounded. I will stop worrying.

words and their power

Over the past couple of weeks I have found myself fielding seemingly endless challenges and insults on Twitter, Facebook and various other places both online and off, as I voiced my incredulity at being censored by a copyright discussion group whose stated purpose is to promote “fairness” in the copyright reform debate.

As a longtime professional writer who has been active in freedom of expression advocacy for longer even than I have been working in the free expression biz, I take the removal of my words and voice from public discussion very seriously indeed. And because I am so protective of my own right to speak, I tend to be just as protective of everyone else’s right to speak as well.

While serving in various official functions with organizations devoted to free expression, I have delved deep into the ugliness and violence of human speech, including definitions, official and otherwise, of hate-speech. I feel it is my responsibility to always remind myself that words have immense power to do harm; and at the same time, I insistently seek a balance that reduces the risk of harm, without reducing free speech. This is by no means an easy balance to find or maintain.

I enjoy a good round of Internet trench warfare myself, and I’m certainly not above throwing a strong jab here and there (especially a witty one); but I find the instant hyperbolic extremism of much web-chat to be distressing and almost always unhelpful. Such an instance has recently arisen in the comments section of my blog. A commenter, voicing support for my position against the censorship practiced by The Fair Copyright for Canada York Region chapter included a disparagement against Dr. Michael Geist that wounded him personally.

While I have not removed the comment from my stream, I regret that Dr. Geist was so deeply offended in what I consider to be “my house” on the Internet. I apologize to him for the personal discomfort he has suffered, and I would like to stress here that I prefer all comments, but most especially those in support of my positions to take the high road on personal attacks. It is for that very reason that I often focus my own criticism on the ill-defined and easy anti-corporate, anti-American, anti-Conservative hyperbole of much of the copyleft chatter.

In his brilliant manifesto, You Are Not A Gadget, silicon valley pioneer Jaron Lanier dissects the ugly behaviors of much online chat, the “pack dynamics,” “drive-by anonymity” or what in an earlier posting I called a nasty pile-on energy.

Lanier writes:

“The Internet has come to be saturated with an ideology of violation.”


Why I Don’t Remove Comments, as a Rule

Over the five or so years I have been operating a public blog at johndegen.com, I have never removed a legitimate comment from my comment stream. As I often discuss copyright here, my blog can at times receive a large number of comments, and many of them… well, most of them, are less than complimentary to my thoughts and positions on creator copyright issues. A good number of them are, in my opinion, rude, insulting, unnecessarily confrontational and intentionally provocative. Yet, they all stand.

For a short period of time, I used the Blogger.com technology to actively moderate the comments in an attempt to avoid commercial comment SPAM, but found, especially during heated discussion that it provided me with too-tempting a power to control the conversation. I want no part of that temptation. Instead, I moderate by challenging and discussing the various comments, and by making my opinion clear about as many as possible, but certainly all of the truly despicable ones. This involves a serious time commitment, for which I receive some grief from my close family. “Why do you bother? They will never change their minds,” is a common refrain in the Degen household. My answer is always the same. “I’m not trying to change their minds; I’m trying to keep my own points clear and visible despite the flying mud.”


On Censorship

Since complaining about being censored by FCFC-YR, the most disturbing (to me) comments I’ve received have been along the lines of – being kicked out of a web-chat forum is not censorship – real censorship is only done by those in authority, like the government.

I disagree – while I think being booted from FCFC-YR may not have done much at all to keep me from talking about copyright in other places, it was the very definition of censorship. And since making the decision to remove me and my written posts from the group site, FCFC-YR has made various attempts to explain and excuse their actions, as though they too could see that a good-faith line had been crossed.

I was initially told that posts I’d made were not consistent with the group’s principles. No examples were given. I was then told that I had personally attacked group members, including Dr. Geist. No examples were given. Then it was explained that writings on my own blog presented a danger to group members, opening them up to attacks because their personal information was available on the group site. Finally, well after the fact, the reasoning was changed once again, and I am out of the group because I do not currently live in York Region (FYI – I grew up in York Region, maintain close family connections there, and consider myself both well-acquainted with and invested in the region).

I will continue to argue that all of these reasons are false and completely without merit, and I am personally insulted by the continued suggestion that my views on copyright represent some sort of physical danger to those with differing opinions. Despite being a very public voice in the copyright debate, I have never once felt personally threatened by those who oppose my views, though I have often sensed attempts to intimidate me. I believe I was removed from the group for two simple reasons – to suppress my views within the group, and to discourage me from continuing to advocate for artists rights under copyright.

To quote from The Book and Periodical Council’s Freedom of Expression Committee:

The freedom to choose what we read does not, however, include the freedom to choose for others. We accept that courts alone have the authority to restrict reading material, a prerogative that cannot be delegated or appropriated. Prior restraint demeans individual responsibility; it is anathema to freedom and democracy.

… we abhor arbitrary interpretations of the law and other attempts to limit freedom of expression. We recognize court judgments; otherwise, we oppose the detention, seizure, destruction, or banning of books and periodicals – indeed, any effort to deny, repress, or sanitize. Censorship does not protect society; it smothers creativity and precludes open debate of controversial issues.

I am aware that I have many other avenues for expressing my views on copyright, including this blog and even on the main group page for FCFC (though I can’t say I feel particularly confident about speaking my mind over there these days). I continue to be distressed and really quite shocked that no-one on the user-rights advocacy side has taken a prominent public position against the actions of FCFC-YR, since I feel censorship demeans us all, no matter our feelings about intellectual property laws and practices.

Clearly something has occurred within the FCFC community, because the administrator who banned me from his group has recently resigned his position, taking pains to make his own rather insulting and personal attacks against both me and Dr. Geist on his way out. I would like to think FCFC has made some sort of official policy declaration against the practice of arbitrary membership-banning and comment removal, but the issue remains unfortunately shrouded behind ideological positioning.

All that said, I want to reiterate that anyone and everyone is welcome to read my blog and to express their own views in my comments sections regardless of their ideological nearness to or distance from my own expressed views. I am aware that many other blogs practice a form of sliding-scale censorship in order to discourage anonymous comments, nasty personal attacks and threatening behavior, but I don’t want to adopt such a policy for my own very personal reasons. I don't judge others with clear and defined comment rules and strict removal-style moderation; I just walk a different path.

I therefore ask you all to please respect the ground rules. Of course, I expect comments such as Degen must not be taking his meds, you’re a troll, are you bi-polar, or something? or Get a life, man to continue, but let’s try to at least keep it above the belt and think before hitting the Submit button.

attack of the tweets - "Fairness" strikes back

While police cars burned on the streets of downtown Toronto, and innocent, peaceful protesters were used as shields and camoflage by a small group of pointless troublemakers, I spent the G20 weekend looking after my kids in Etobicoke. Every once in a while, I’d gaze east across Humber Bay toward downtown for any distant signs of the violence I was following mainly through the tweets of friends and colleagues in the crowds.

And at the same time, I found myself being used and abused by online "protesters" with as much legitimate complaint against me as those stomping and incinerating cars on Queen Street have against my city.

As reported in my last blog posting, I was talking copyright on Twitter with a bunch of folks the other night, when we were all interrupted by an administrator at the Fair Copyright for Canada facebook empire who informed us that my membership in one of the chapters there had been revoked for “attacking FCFC principles and [Michael] Geist.”

Having reported on being censored for “remarks… not consistent w/ FCFC principles” and “extremist views,” I then found myself on the receiving end of an entirely new round of criticism -- I can only figure because I dared to tell folks that I had been banned and censored for my insistence on protecting artist rights in the copyright reform process.

To their credit, some of the copyleft(ish) commenters dominating the comment streams at artist-friendly Balanced Copyright for Canada expressed their discomfort with my having been banned on their home turf. After all, no-one was banning them from Balanced Copyright for views inconsistent with Balanced Copyright principles. I tip my hat to them. That’s what reasoned debate should be about.

As well, the founder of Fair Copyright for Canada, Michael Geist, paid a visit to my own comment stream to first take a jab at a few IP and entertainment lawyers, and then to disavow any control over the censorship decision, and (finally) to register his disagreement with it. It remains unclear whether or not he intends to do anything about censorship within the group he founded, continues to oversee, and references regularly in his public advocacy for consumers.

Meanwhile, back on Twitter where all this began some days back, I was mobbed by a steady stream of vitriol, which I can only assume is some form of organized damage control from the copyleft(ish) FCFC camp. Blame the victim seems to be to the theme. I tried to dutifully retweet the nastier bits, so folks could see what was happening, but let me requote some of them here:

“@jkdegen I am blaming you for belittling the concept of #censorship by abusing the word!”

“@jkdegen do you troll and smear everyone who disagree's (sic) with your points of view?”

“@jkdegen you can't tell #censorship from a manager/proprietor asking you to leave?”

“@jkdegen As you continue to misuse the word #censorship , you only help clarify why you were removed from that forum”

“@jkdegen You are actively supporting this decision to ban you, through your actions on this over the past few days”

And if the tweet-attack is not clear enough, the admin of the FCFC chapter, from which I and all my apparently offensive, Geist-smearing remarks were removed, has posted an official explanation for censoring me on his own blog. Apparently, it became vitally important to silence my voice within the group because some other writing I had done on my own blog was somehow physically endangering other members of the group and - I’m not making this up - the public at large. And, I quote:

"I took an administrative decision at the time to ban Mr. Degen from FCFC York Region due to not only the attacks he presented on Geist but the public voice of this debate as well. I was not sure at this point how these attacks by creator groups were being conducted, and if those in my group would be targeted next by Mr. Degen in an attempt to discredit the Fair Copyright for Canada Movement and had to act based on the risk already posed to the public voice on this matter by Mr. Degen and others."

Beware of the vicious, attacking artist! Other than linking to one of my earlier blog postings (in which I make no personal attacks), the administrator provides no examples of me personally attacking anyone. I know why. I discuss copyright; I don't make personal attacks.

A couple of final notes on this:

Many of the angry tweets directed at me CCed both Tony Clement and James Moore, the two federal ministers responsible for the copyright reform Bill C32. I assume this was an attempt by FCFC to save face in front of the people who will lead the debate on C32 when Parliament resumes. I’m guessing both Clement and Moore were too busy with the G20 to even notice yet another flood of angry anti-C32 tweets to their mobiles, but if they did I welcome their comments on FCFC’s official censorship explanation.

And finally, other than the quick check-in on my comment stream days ago, and despite the fact that Michael Geist was also CCed on some of the tweets, we have all heard nothing publicly from Geist on this official explanation from Fair Copyright for Canada. As much as he tried to distance himself from the decision in my comment stream, he IS the founder of the group from which all the chapters sprang; he does reference the membership numbers over there (now minus one) in his consumer advocacy; and he does continue to happily stand as their presumptive leader on copyright reform. Dr. Geist has taken time out of his busy schedule to report on "13 mostly teenage protesters demonstrat[ing] against proposed anti-piracy legislation" in Calgary, but has written nothing about ongoing censorship within his own group.

UPDATE: I have just noticed that Michael Geist does address this issue on the Fair Copyright for Canada Facebook page, where he responds to a member question about my being censored with this:

"Not on this group. According to the group admin, the York Region group dropped him from that group due to personal attacks."

Again, no examples of personal attacks; and, really, a disturbingly casual response to censorship within the movement.

Heritage Minister James Moore took a lot of heat the other day for remarks he made about “radical extremists” on the fringe of the copyright debate. Michael Geist accused Moore of referring to anyone with any opposition or amendment suggestions for C32. I have amendment suggestions for C32, and I am quite sure Minister Moore was not calling me an extremist.

I would suggest that perhaps radical extremists are those who think burning police cars and destroying private property are valid political protest. As well, surely, there is something radically extreme about blatant censorship, and its apologists.

how fair is Fair? how balanced is Balanced?

Recent media reports are indicating the copyright debate has turned ugly. The controversy centers on a speech given Tuesday by Heritage Minister James Moore in which he discussed the federal government’s copyright reform Bill C-32. C-32 was introduced recently, and will be discussed by a special Parliamentary committee once all the MPs are back from their summer break. Widely reported are Moore’s comments near the end of the speech in which he warns of those opposed to all copyright reform entirely and, in fact, all copyright. The speech is on video at various locations. You can see it here (part one) and here (part two).

For me, any claims that the debate is turning ugly are about seven years behind the times. That’s just for me. There are many other professional creators who have been arguing their rights under copyright for a lot longer than I have. The debate turned ugly for me, in 2003, the first time someone accused me (and by extension all professional artists) of being greedy, privileged and disrespectful to the rights of consumers (“maybe if you wrote something worth reading, people would want to pay for it”, etc.).

Those attacks happened immediately after my very first public comment on copyright. I had barely put my own words down on paper, and someone had already angrily, self-righteously pigeonholed me – greedy, out-of-touch, privileged artist that I am.*

Consumer advocate and occasional law professor, Michael Geist, is having a great time right now claiming Minister Moore’s more pointed comments – about those “who pretend to be experts, who the media all cite” – were aimed squarely at him, and that Moore has dismissed any and all criticism of the proposed Bill C-32. From Geist’s many blog postings on the Minister’s remarks:

“I'm under no illusion here. Yesterday, I asked in a post who Moore's "radical extremists" are. The video suggests that he thinks it is me and the thousands of other Canadians who have argued for fair copyright…”

Of course, Michael Geist is free to see himself in whatever shiny, reflective surface onto which his eyes fall, but I think it’s far more likely that Minister Moore was making reference to the many and very active copyright abolitionists who follow Geist’s every blog posting with an endless stream of anti-corporate, anti-American, often anti-artist invective.

Go ahead, have a read of any representative sampling of Geist’s comment stream (if you have some time on your hands, scroll up some 700 or so comments from here). Notice how anyone with an opinion not consistent with established and approved copyleft principles is almost immediately labeled a troll or a corporate shill and very aggressively discouraged from further conversation. There is a mob-like, pile-on energy at work over there that is mildly intimidating at its most benign, and downright terrifying at its extremes.

And this energy is not restricted to Geist’s only occasionally moderated comments stream (Geist does enter into discussion on the comment streams, but as far as I can tell only to personally answer critics, not to discourage the nastiness of his acolytes).

Now have a look at the Balanced Copyright Facebook page. Balanced Copyright for Canada is an advocacy group unashamedly representing professional cultural workers on the industry side. After Dr. Geist called them The Copyright Lobby's Astroturf Campaign in Support of C-32, many of his blog-followers made their way over to the Balanced Copyright Facebook page to pile on to the comment streams there and make now familiar accusations of corporate interest and dishonest messaging.

The gist of complaint against the group seems to be that they cannot possibly stand for balance in copyright, since they originate from only one side of the debate (the corporate side). I leave it to others to tease out the logic in that accusation, because I have yet to find it. The balance I’m familiar with requires two sides acting in concert to come to an agreement. If only one side is allowed to comment, there is no balance.

Of course, on the other side of the street from Balanced Copyright for Canada is Fair Copyright for Canada, a much older Facebook group from which many of Balanced Copyright’s loudest critics seem to originate. Fair Copyright was started by, yes, Michael Geist a couple of years back when the copyright reform bill of the day was called C-61, not C-32. I can make the happy claim of being one of the very first members of Fair Copyright.** I like fairness. I think artists should be treated fairly in copyright reform. I am also a member of Balanced Copyright for Canada. To me, these two concepts - fairness and balance - should not be the exclusive property of Fox News… they should belong to all citizens.

Fair is foul and foul is fair, apparently. Last night, while discussing copyright with various folks on Twitter, I was informed that my membership in Fair Copyright for Canada (York Region Chapter) had been revoked. To quote the tweet***:

“@jkdegen was booted from FCFC -YR after several attacks on FCFC from his extremist views.” And it didn’t stop there. The Fair Copyright representative added: “His remarks in group not consistent w/ FCFC principles” AND “He's been attacking FCFC principles and Geist.”

Well… wow. My extremist views can be boiled down to this consistent message – Copyright should protect the rights of artists. As we reform copyright for the digital age, let’s make sure we don’t harm the artists it was intended to protect.

You know, fairness, balance.

I continue to comment on the Balanced Copyright for Canada group, and I suppose I would over at Fair Copyright for Canada, if they chose to allow me to do so.
____

*In the course of my copy-debating over the years I have been called:

greedy, out-of-touch, a non-techie who doesn’t understand software, a copyright maximalist, all sorts of variations of stupid, a “creator of the past,” a corporate shill, a corporate apologist, in the pockets of corporations, a non-Canadian, a spammer, a troll, in it for the money, cowardly, blind, a control-freak, someone who wants to sue fans, grandmothers, teenagers and little children, someone who hates the blind… you get the picture.

My favorite attack came last week, when someone on Twitter informed me that I am too old to understand where copyright needs to go – this polite person had actually Googled me and looked up my birthdate, quoting it back to me as though I wasn’t aware of it (born two years before the Leafs last Stanley Cup win… how could I forget?). He then said something like “It’s too bad we will lose good**** writers like @jkdegen…”

Um, when will we lose me? Why will we lose me? I know I’m ancient and all, but…


**I was also one of the first season ticket holders for the Toronto FC MLS team. I’m a bit of an early-adopter that way, though I did wait for over a year to buy an iPhone.


***Quoting a tweet; is that a twuote?


****He may have actually said “great writers like @jkdegen,” but besides being greedy and out-of-touch, I’m modest.

Re-doing the math (please show your work)

Last summer, after the copyright reform bill C-61 died on the order paper in Parliament, the federal government held a number of public town halls and roundtables to discuss ongoing copyright reform and the possibility of changes to Canada’s Copyright Act. These discussions were recorded and a robust debate that had previously been taking place mostly online spilled over into the physical world. Present at these events were Industry Minister Tony Clement and Heritage Minister James Moore – their federal ministries will be responsible for writing any new legislation.

The consultation also provided an online forum for submissions from the general public. Anyone interested in copyright reform for the digital age could submit their opinion to the government. I submitted my opinion last September. You can still read it on the consultation website.

The decision to provide an online tool was great for accessibility, and was presumably informed by the fact that the copyright debate had recently shown some impressive penetration into the Canadian psyche. Consumer advocate Michael Geist had encouraged the explosive growth of the public discussion by creating a Facebook group, Fair Copyright for Canada, claiming 83,893 members (today; although, I believe it once topped out at over 90,000 members). Geist also created a special website – Speak Out on Copyright – to encourage more submissions to the consultation. The website also provided handy answers to the government’s questions, based on Geist’s own opinions. With such an effective consumer lobby mechanism in place, the government could be excused for expecting their online consultation might attract somewhere close to 80,000 submissions on this hot topic.

In the end, the numbers were far more modest. By Michael Geist’s own count there were just over 8,300 submissions (or roughly one-tenth of the expected potential). Mr. Geist did a quick analysis of the submissions, and came to a persuasive conclusion – “the overwhelming majority reject[ed] Bill C-61 (6138 submissions against, 54 in support), while thousands called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules.” In other words, the vast majority of the submissions were very closely aligned to Geist’s own “short answer” section on his Speak Out website.

Case closed, it would seem. Given the opportunity for informed Canadians to give their opinion on the specifics of copyright, we seem to agree with Michael Geist.

On the other hand, a closer analysis of the consultation results and numbers suggests a very different result.

Technology lawyer Richard C. Owens has taken a closer look, and published his findings in a publicly available paper called Noises Heard: Canada’s Recent Online Copyright Consultation Process. You can find a short intro to the paper here and the full document as a PDF can be linked to from the intro.

Owens pulls the consultation apart submission by submission, and includes analysis of uniqueness, potential bias and issues of submission verification. Most concerning for everyone involved is his finding that "70% of the total submissions were “form letters” originating from a single little-known group of modchip distributors – the Canadian Coalition for Electronic Rights (CCER) – that had its form letter extensively circulated internationally on BitTorrent related sites. As a result, it appears that many of the submissions were not even made by Canadians”.

Owens’ paper concludes:

“If the aim of the Consultation was to canvass public opinion and discern trends, it failed.”…

“An online public consultation on a highly technical and complex area of law might provide some degree of useful context, but by and large it can accomplish little that will be of direct application. Much more useful is to solicit the opinions of the members of the communities that are truly informed. In Canada, that is certainly a large enough population to yield a great many useful submissions. Ministers Moore and Clement are strong ministers and they need the support of the best and most rigorous processes. In fact, Minister Clement has recently called for further consultation on Canada’s digital economy strategy. Let’s be sure that our next consultation is more fruitful.”

Owens’ rigorous analysis was published yesterday. Today, the Canadian Coalition for Electronic Rights has posted a response to Owens on their website (not entirely off-topic, the CCER website lists no less than 5 Michael Geist-related websites in their short “Resources” section). CCER accuses Owens of “hitting the panic switch” in a “tirade” designed to “discredit and silence the voice of thousands of Canadians who made submissions to the 2009 public consultations on copyright.”

Rather than “gaming” the consultation with form letters, the CCER claims they were seeking to “help those Canadian’s who wanted to have their voices heard but were reluctant to do so because they feared that alone they could not effectively articulate their ideas and desires for future of Canadian copyright.”

Michael Geist has also responded very quickly on his blog:

“Given that the copyright consultation attracted greater participation than virtually any government consultation effort in recent memory, it is hard to see how it can be deemed a failure from a participation and public opinion perspective.“

On the issue of form letters, Geist takes an interesting tack. I’m paraphrasing, but it’s something like… form letters may carry less weight, but both sides used them; and of the less-weighty submissions, the anti-C-61 ones were less-weightier.

The comments section on Geist’s blog goes even further in criticizing Owens’ article, labeling him a corporate shill, a vulture, and making reference to German fascism in the 1930s. Please note, Geist does not moderate the comments on his blog, and the opinions of those commenting on his blog should not in any way be seen as approved by Geist.

The debate, briefly made corporeal in town halls across the country, has returned to its online roots. Sigh. One thing I’m sure of in all this. I did not use a form letter to write my submission and, as an independent professional artist, I look forward to the next opportunity to discuss this issue with lawmakers.

UPDATE:

Globe & Mail coverage of the form letter story.

IP, Innovation and Culture blog accuses CCER of subverting democracy.
Music • Technology • Policy blog analyzes the controversy in extreme detail.

IP lawyer Barry Sookman blogs about the Owens' article and related controversy.

view from a grassy knoll

While still involved in the ongoing struggle for copyright reform in this country, I have tried over the last year to keep out of the often ridiculous "copyfight" -- a debate by blog and comment that seems to have no end, and will surely one day outpace frame-by-frame Zapruder analysis for the "least likely to find agreement" award.

I have submitted my personal opinion on copyright reform to the federal government as part of their extensive and laudable public consultation process (and I'm assured my submission will eventually show up on the website). I also initially signed up for the Toronto Town Hall meeting last week, but decided in the end not to go as I needed to travel for work that same evening. Toronto's a big town full of adults who work as professional creators and others who know what they want from technology. Often, these are the same people, and they have subtle enough thinking to have looked at the issue from many perspectives. I was confident Toronto would manage a healthy public debate between professional creators and consumer-rights advocates. So, I hit the road for Sudbury, and looked forward to reading about the Town Hall online the next day.

You will be able to view the transcript from the Toronto Town Hall at the federal consultation site as soon as they load it with the rest of them. There have been eleven consultations in total across the country, and all have been transcribed. This is the very definition of an open, freely available public consultation on legislative change -- something everyone in this debate has been calling for in one way or another for close to a decade. No-one could possibly fault the process, could they?

They could. Here's what I read when I called up consumer advocate Michael Geist's blog on Friday morning, somewhere near the big nickel:

"it wasn't really a copyright townhall in the sense of bringing the community together to talk copyright in an open and balanced manner. Instead, the music industry stacked the room to such a degree that little else was discussed... This was not a real townhall that brought together differing views, but rather an all-out effort by the industry to scoop up the available seats, guarantee themselves a dominant voice, and exclude many alternative voices in the process... Now is the time for Canadians - many of whom could not get a seat at the townhall since it was filled by industry reps just days after the consultation launch - to speak out. "

Read through the many comments following Geist's post and you'll get a sense of just how far reasoned debate can depart from the main highway.

Anyone showing up at that meeting with a strong copyright perspective is dismissed as "industry" and part of "an entertainment cartel" -- as though being a worker in the cultural industries is in itself evil and disruptive of fair discourse. As well, one speaker who claimed to be a pirate and spoke out against copyright in what might be described as an unfocused manner is accused of being "paid by industry to do this."

I'm happy those whose livelihoods depend on strong copyright laws mobilized for their cause and showed the colours last Thursday. I'm proud of the cultural sector for representing. In my experience, it's never easy to get a wide-ranging group of artists to gather in the same room for any reason, since the business of art making can be isolating and distancing. To me it means something very important about this issue when cultural workers come out in force to discuss it.

And presumably it also means something when those arguing an alternate position decide not to show up to an open and public consultation, not to air their views and opinions in the same room with the real people most affected by those views and opinions. Given the very opportunity they have been demanding for years now, the copyfighters stayed home and now fill their blogs with conspiracy theory speculation about why they were shut out of the process. I shook my head all the way to Sault Ste. Marie last Friday, and I'm shaking it still.

To be clear -- anyone with an interest in this discussion was invited to sign up for a seat at the Town Hall. It was restricted only by the size of the room, and from what I hear it was a pretty big room. Sign up was as simple as filling out an online form and seats remained available for days after the hall doors were opened. Those who did not show up, like me, were not shut out; instead, they made a conscious decision not to show up. I'm happy with my decision, but clearly now the copyfighters must deal with some personal regret.

At least those charged with bringing in new legislation have heard someone speak out on this issue. If it was mostly professional creators, I suppose that's because professional creators have the most invested.

return of the pledge -- explaining democracy

In previous posts and comments, I have expressed my discomfort with the idea of asking politicians to "pledge"... well, anything beyond allegiance to the Queen. This came out of Michael Geist's original copyright pledge which had to do, I believe, with keeping any politician accepting campaign contributions by way of copyright-dependent industries from having anything to do with legislating copyright.

Anyway, the whole thing reminded me of certain pledges that show up in US politics from time to time -- "I pledge to never raise taxes. Please vote for me." That kind of thing. How's that working out for the US, by the way?

Michael Geist is at it again. He's recently published his Copyright Pledge - 2008 Election Edition, in which he asks voters to try and get candidates to "sign on to" a pledge that, among other things, appears to privilege user rights in the copyright debate.

To me these types of pre-election, pre-Parliamentary binding promises feel anti-democratic, and thanks to a keen-eyed commenter on Geist's blog, I now understand why they feel this way to me. Because they are anti-democratic. So anti-democratic, in fact, that they are expressly forbidden under Canadian law. Section 550 of the Elections Act reads:

550. No candidate shall sign a written document presented by way of demand or claim made on him or her by any person or association of persons, between the issue of the writ and polling day, if the document requires the candidate to follow a course of action that will prevent him or her from exercising freedom of action in Parliament, if elected, or to resign as a member if called on to do so by any person or association of persons.

UPDATE: Michael Geist has posted a disclaimer on his blog explaining the pledge's compliance with the Elections Act. You can find the revised posting at the link above, or see Dr. Geist's response to me in the comments section for this posting.

FURTHER UPDATE: Boing Boing linked to Geist's pledge with the headline Canadians: ask your candidates to take the copyright pledge! They seem to have interpreted it as a pledge for individuals, which we now know it is not. I am attempting to engage with the Boing Boing audience in their comments section, but am having a bit of trouble getting my points and links past a moderator. Meanwhile, the author of that Boing Boing post, Cory Doctorow, enjoys unmoderated access to my comments section.

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

holy astroturf Batman, whatever happened to disclosure!?

Professor Michael Geist, founder and administrator of the Facebook group Fair Copyright for Canada, a consumer advocacy lobby opposed to the new federal copyright reform legislation, reports today on his blog that the BC Civil Liberties Association "has adopted a position paper on C-61, warning of its effects on freedom of speech and privacy."

Geist, a noted academic, fails to mention what you only find out when you reach the end of the 5-page position paper, which is that it was written by "Fair Copyright for Canada: Vancouver Chapter."

Dude (sad shaking of the head).

This copyfight just gets deeper and deeper into the artificial muck beneath the grassroots field turf, doesn't it?

The paper itself is not entirely inaccurate, though it could use a serious copy edit (several references to the United Sates lead a parade of grammatical issues). On the other hand, it is one-sided in its strong focus on user rights over the rights of professional creators and copyright holders -- but I've become kind of accustomed to that being the initial stance for anyone new to the discussion. The four conclusions and recommendations the BCCLA have "adopted" start with the statement: "In its current form Bill C-61 is fatally flawed..." I don't even necessarily disagree with the rest of the conclusions or recommendations in the paper. I think they are good, debatable points that should be addressed in the committee process leading to the amendment and passing (or not passing) of Bill C-61.

I think the BCCLA does outstanding and necessary legal work. Clearly, though, they need to sharpen up their advocacy adoption policies. I consider my limited rights of ownership and control over my own personal creative works to be very important civil liberties. I would expect an organization like BCCLA to take them into consideration before adopting policy that ignores them.

grandmother jailed for...

In the posting below, I go after the tired copyfighter rhetoric that results in almost every discussion of digital copyright eventually making reference to some poor guild of buggy whip manufacturers who saw their business decimated with the introduction of the motorized carriage (no whips required). I happen to know that Phineas J. Snide, owner of the Acme Buggy Whip company was so upset by the crumbling future for his business that he attempted to shoot himself. A whip-man, he was a terrible shot with a gun. The bullet missed his temple, smashed through his window and into the ground outside his rural Texas home, rupturing an oil deposit that made him one of the earliest multi-millionaires of the newfound auto industry. Let's leave the buggy whippers to rest. They did okay, and managed to even stay in the personal transportation encouragement business.

As we head into another blissful summer long weekend, I am wondering about another popular rhetorical figure of the copyfight -- that grandmother jailed for the illegal downloading performed on her computer by her grandkids. I hear about her all the time -- how the American DMCA encourages the jailing of teenagers and grandmothers, and how Canada's Bill C-61 will do the same (Canadian grandmothers, boo!). Apparently, this grandmother paid her ISP bill, which made her the person of record on the offending computer, so when the big bad RIAA (Recording Industry Association of America) was looking for their next victim, she was it.

Who is this grandmother? What's her name? Is she in jail?

I did a whole bunch of research googling to find out, but so far I have come up with not much at all. In the process, I discovered that lots of grandmothers do all sorts of nasty things, and go to jail for doing them. Apparently, being generation one of three is NOT always a motivation for exceptional behaviour.

Please, if you know the grandmother in question, or of her, I'd be very interested in learning her full story. My comment stream is open to you.

I happen to agree that paying an ISP bill is not a nasty thing, and I also agree that certain corporate copyright holders have taken really incorrigible legal missteps in their attempts to protect the value of the intellectual property they own. In my google travels, I note several recent (recent? 2005? does that count as recent?) US legal decisions that have tempered the legal dangers everyone seems to be so afraid of from the DMCA (and by extension -- thank you Michael Geist -- from C-61).

Is there a DMCA grandmother Gitmo? And if so, is it so secret that even Google can't find it? Considering Google knows what flowers my girlfriend grows in her garden, I just assumed they knew everything.

reason, despite differences of opinion

Thanks to one of the evil emissaries of American imperialism for calling my attention to this op-ed by Mike Warkentin in Winnipeg's Uptown magazine. Those emissaries... so helpful.

I'll call your attention first to this quote from Mark:

"I, too, hope Bill C-61 dies a quick death and is replaced by something less likely to be abused by corporations..."

because, obviously, here is where Mark and I part ways. I'm just not sure killing legislation is the path to better laws. I'm hoping for vibrant discussion and a healthy amendment process -- you know, governing. But I don't fault Mark at all for his opinion, which is intelligently and wittily expressed; I simply disagree with it.

Where Mark and I walk the same track is outlined in the rest of his article -- specifically in his dismay about the loud and emotional protest surrounding this bill. Like so:

"While I agree that Bill C-61 is a dud, I'm amazed that average Canadians are currently calling for changes in government with French Revolution language simply because someone might stop them from jogging to the new Madonna album.

Really? That's what we're worried about in Canada? That's our greatest challenge as a nation?

I'd suggest Canada has bigger problems that would benefit from a little activism and public outrage, but perhaps dead soldiers in Afghanistan aren't as important as that new JT track. Maybe concerns about greenhouse-gas emissions should take a seat behind the guy watching a ripped episode of Family Guy on a flight to Toronto. And maybe our Aboriginal issues just don't matter so long as we can use YouTube to watch scenes of Adam Beach on Law and Order: SVU.

Call me a cynic, but I think it's a sad sign of the times that some truly momentous legislation goes unchallenged while citizens threaten to revolt on Facebook over DVDs."

And yes, I'm just going to go ahead and take credit for the French Revolution meme that appears in the above quote. I took a lot of heat over my description of Dr. Geist as a red-sashed revolutionary leading his people to the barricades (He's calling our leader a pirate! Keelhaul him!). I'm glad to see, at least, that somebody got the reference.

market me this

Negative reaction to the introduction of Bill C-61 has been a fascinating exercise in hyperbole, panic and outright paranoia. Check out this posting on Michael Geist's blog for links, mostly to those folks agreeing with him, but not always.

I've been reading comment streams endlessly, and it amazes me how completely anti-Americanism has become the central focus of this issue. Despite a decade-long process involving endless public discussion between Canadians who genuinely disagree on the policy directions here -- in straight numbers you have the now close to 50,000 consumers on Geist's Facebook group versus over 100,000 professional creators and many others whose livelihoods depend on strong intellectual property protections. And let me qualify my "versus."

Anyone willing to dig into the heart of this discussion will soon see that these are not two bristling camps separated by a wide moat filled with alligators. The actual discussions and disagreements are complex, detailed and unpredictable, with folks moving back and forth between the two territories as though they were separated only by a friendly and cooperative border -- like, for instance, the border between Canada and the US. I am one of Geist's 50,000 and I regularly disagree with him, as I do right now.

Yet the leaders of the protest side of the discussion continue to sell their argument with the rhetoric of comic-book style revolution and resistance, which of course feeds the comments streams and heightens the paranoia. I suppose one can't resist evil without first casting someone in the role of evil-doer. Yeah, you see where I'm going with this. Aren't we all just a little bit tired of the encouragement to make our policy decisions based on fear? For all the Bush- and Harper-bashing going on in this debate right now, the anti-C-61ers actually remind me most strongly of kool-aid drinking neocons bent on saving the world from nuance.

I'll end this posting with a question -- a genuine, non-partisan musing on where we are and where we might go:

Bill C-61 has a lot to say about digital locks and their circumvention. There is a whole segment of society -- the open access folks -- who think digital locks are the way of the past, who wish we could all just get along without having to lock our stuff up all the time. More often than not, I find myself hanging out with the free access folks -- if you haven't downloaded my freely accessible novel yet, please do so here -- because I can see that a trend toward mutual respect between creator and consumer is making digital locks unnecessary.

My response to laws protecting locks is to think "Okay, fair enough -- but I probably just won't buy locked stuff. Either that, or I will demand that the value I get from the product is greater than the inconvenience of the lock." I make free consumer decisions about these kinds of things and, more and more, so do a lot of folks. Here's the question -- if the market is encouraging the voluntary removal of unnecessary locks, then what difference does it make if we have a law protecting necessary locks?

Please try to answer the question without using the term "police state."

is it time to come in from the cold?

Today in the Hill Times, copyright critic and University of Ottawa law professor Michael Geist lays out five copyright myths in need of a good debunking. As I worked my way through the article, I became more and more excited at the possibility that Dr. Geist would make it through the whole thing without a single reference to the Canadian version of that American law I have pledged never to mention again. You know what I'm talking about. Is it possible Dr. Geist also took the pledge?

Maybe. While Myth #5 does reference the US copyright law, and sort of implies Canada might follow it despite an "emerging copyright consensus" (that ignores the published concerns of 100,000 professional creators -- just a side note), Dr. Geist never actually employs the term I have come to despise.

I'm going to go ahead and assume this is a coded back-channel message through the wall, indicating the thaw has begun and we are about to experience the Prague Spring of respect for creator copyright.

Are we nearing the end of the copyright cold war? Stay tuned.

an education in educational use

Sifting through all the copyright commentary out there on the net, I came across an account of Dr. Michael Geist's recent presentation at the University of Calgary. A video interview of Geist in Calgary is available on the Fair Copyright Facebook group, and some net sources, probably his own website included, have his entire talk on video or audio file. Go wild.

Me, I'm a reader, so I dug into the blogs and came up with this very interesting account and analysis from one D'Arcy Norman, who appears to be a thoughtful and committed advocate for open source/open content. Mr. Norman attended the Geist presentation, and has complimentary things to say about it. And then he relates an anecdote about listening to others interpret what they've heard. He writes:

Walking back from the presentation, chatting with two unnamed faculty members. They were saying how eye-opening the session was, and how they had no idea that Fair Dealing was as useful and potentially as flexible as it sounds like it is. How great, that they can go ahead and scan books as PDF and post them in their courses in Blackboard.

Scan entire books as PDF, and then use them as unlicensed course material for tuition-paying students in a publicly funded institution? Is this a potential new practice Michael Geist is advocating for under expanded fair dealing? I can't imagine it is. Does it sound fair to anyone out there?

Norman goes on to register his own extreme discomfort with what he was hearing. His perspective is totally open content, which is not always my own, but I think our core values in this discussion are the same:

First and foremost, we need to model ethical and appropriate use of copyrighted materials. Hiding copyright infringements behind the Blackboard login is not good enough. You have to realize that you’re modeling this infringement for your students to see. “It’s OK to infringe on copyright, because The Man can’t see, right?” “uh… if Dr. Whatsisname could do it, why can’t I?”

Norman sends his readers to the University of Calgary's copyright policy for classroom use, which in itself is an education.

Under Print Materials that need to be scanned, they have this:

Discretion must be used in deciding what amount of a work can be copied as a fair dealing.

Ordinarily requests to use one article from an issue of a journal; one chapter from a book; or no more than 10% of a collective work such as an anthology will be recognized as a fair dealing.

... which clearly does not recognize a fair dealing that would allow unlicensed PDFs of entire books. Yet under Digital Material, the policy states it will allow use if:

- The material is available on the open Web, and the Library can provide a link to it.

... which sounds to me like the University of Calgary has an acting Publicly Available Material exception already in place. Note there is no mention of the copyright status of the material on the open Web, only that it is available.

So, a physical book that anyone can take out of any library cannot be scanned and used digitally in its entirety because of a recognized limitation under fair dealing. That same book available on the Internet (just as it is in a library), yet still protected by the same copyright law that determined UoC's fair dealing policy, is suddenly fair game as publicly available material.

So much respect for working creators as long as they kill trees; so little respect as soon as they hit the web.

time to refocus

I've had some interesting phone calls and e-mails in past days that suggest to me some folks in Ottawa have begun to take a longer look at the professional creator position on copyright. As a key stakeholder in copyright, creators are happy when our concerns are not summarily dismissed.

We'll no doubt go into all this in even greater detail in coming weeks, as it looks again like no bill is on the way in the immediate future. To those relatively new to this process of copyright reform, "no new bill" is also known as "just another day." Before we do advance the discussion, I wonder if it's possible for us to pull back and redefine one fairly important thing.

When I call for a bill, I'm calling for a bill. Not a law, and certainly not "the Canadian DMCA," whatever the heck that's supposed to be. It has become very tiring discussing copyright reform in very public places, calling (in fact) for greater public discussion with less rhetoric, and then always being expected to support some entirely fictional rhetorical position. Hey, you're that guy who's in favour of the Canadian DMCA!

Really? Am I? Because I thought I was in favour of strong and essential copyright protection for professional creators. That's why I belong to the Creators Copyright Coalition, and that's why I'm asking for a table to sit down at so I can defend the professional creator position.

Here's a comment I read on Michael Geist's blog, from the ubiquitous "anonymous":

... who is left out there in favour of a Canadian DMCA? American lobbies, CRIA, 100,000 fundamentalists, John and .... anybody else?

And here's Michael Geist himself commenting on the stalled legislative process:

"Rumours tonight indicate that the government has again decided to delay introducing the Canadian DMCA."

Dr. Geist is fond of asking politicians to take pledges. I think such pledges are kind of silly, and even potentially destructive to true democracy. I prefer to allow my legislators the freedom to make mistakes, but ask them to try hard not to. But here's a pledge I support. I hereby pledge never to use the term Canadian DMCA again in this or any other discussion. It's an easy pledge for me to take, because I despise the term and feel it has no meaning or bearing on this discussion.

I don't expect anyone else to take this pledge, but those who do win my everlasting respect.

Welcome to Deadwood -- leave your guns and politics at the bar

For over a year now, I've been trying to work out the politics of the current copyright fight. Specifically, what do your views on copyright say about your political leanings? It should be no surprise to anyone deep in this discussion that there is no easy answer to that question. This posting will not even try for an answer, but I will do some, hopefully, interesting analysis of the rhetoric. Interesting for me, anyway. It's my blog after all.

So let's start with some political disclosure -- not that long ago I made a speech at an NDP nomination meeting in the Etobicoke Lakeshore riding. My main goal there was to stimulate the federal election campaign in my own neighbourhood and make sure the parachuting Michael Ignatieff was not simply handed the Parliamentary seat. Nothing personal, Mr. Ignatieff. There was a very real risk that I would actually win the nomination and have to run as an NDP candidate against Ignatieff. I didn't particularly want to be a candidate, for all sorts of good, personal reasons, but it was a risk I was willing to take for the cause of democratic process. So that's me. Solid NDP and Liberal roots. Do Charlie Angus (NDP critic on copyright reform) and I agree on copyright? Still to be determined, but I can't say much for the NDP's politicking on the "made in the U.S.A copyright legislation" so far. Ugh, grandstanding.

Last week, I found myself writing a blog posting partly in defense of Conservative Industry Minister Jim Prentice -- also, in my opinion, for the cause of democratic process. Alright then.

Today, the Financial Post has published an article labeling Dr. Michael Geist's movement The Telecom Trotskyites -- this criticism seemingly based on the nearness of the word commons to communism. That suggests, of course, that the good (or bad, depending on your own leanings) lefty position on copyright is for "fair" copyright, as defined by the anti-Canadian DMCA message of recent days. The good lefty online journal rabble.ca seems to support this leftish lean -- see Wayne Macphail's piece on copyright, previously blogged about here. Certainly, Macphail's piece, and much of the rhetoric on the Fair Copyright Facebook Group wall contains that key element of good Canadian leftyness -- anti-Americanism. American copyright, stay away from me -- Macphail's title plays on (thanks to fair dealing) the old Guess Who song American Woman (side point -- hasn't Randy Bachman been in actual legal disputes to reasonably protect his own copyright?). Michael Geist, just last night on Strombo, suggested that Canadian copyright lobbyists are mere mouthpieces for American corporations.

Okay, so where are we now? Good lefties in Canada are against American-style aggressive copyright and American corporations, and are for "fair" copyright (as yet to be defined).

Except, the good lefty online journal Straight Goods picked up some of my blog writing in support of strong copyright for artists and professional creators, suggesting they might just think a bit differently from their fellow lefties over at rabble.

As well, part of the current "fair" copyright push is the position that Canada should adopt the American bundle of access and use provisions called Fair Use over Canada's existing bundle called Fair Dealing -- so the anti-American stick is one that apparently only swings in one direction. The American model is unconscionably evil, except when we really like it.

It gets weirder, and ever more muddled.

Good lefty, Charlie Angus posted the file sharing proposal of the Songwriters Association of Canada onto the Facebook group Fair Copyright for Canada. This proposal's preface runs like this:

The plan we propose would not change or interfere with the way Canadians receive their music. No one would be sued for the online sharing of songs. On the contrary, the sharing of music on Peer-to-Peer networks and similar technologies would become perfectly legal. In addition, Music Publishers and Record Labels would be fairly compensated for the crucial role they play in supporting Canadian music creators.

I believe Angus posted this proposal hoping to find some middle ground. He is, after all, a songwriter himself and has made income from the copyright on his songs. For the record, I love his songs. And how did the proposal fare in the group? Well, there was some support, but there were also some less than enthusiastic responses, and the logic in those responses has bearing on this discussion. One response in particular likens the proposal to a music tax, and the commenter complains that he does not use enough music to justify paying the tax. I've heard the same argument against the blank media levy -- I don't rip music onto my CDs, so why should I pay a levy for uses I will not take advantage of? Now, there are all sorts of ways I disagree with that logic, but that's not the point.

The point is -- where else on the political spectrum do we see this kind of anti-taxation, I-only-want-to-pay-for-what-I-use sort of logic? Well, um, here in fact (the US Republican Party). Why should I pay such high property tax in Toronto if I don't choose to use the schools, transit or community service? I should only pay for what I use? User payments... user payments... where have I heard that before? Oh yeah, here (Mike Harris' Common Sense Revolution).

With this in mind, I can't help noticing as well that one of the main thrusts in this current struggle is consumer rights. I've bought something; I should be able to do with it what I like. Trotskyites for the consumer? Wha?

The anti-DRM and anti-TPM thrust is really about individual property rights. Both good lefties and good righties believe that no one should be able to come into your home and put a lock on your stuff. But shouldn't both left and right also oppose someone breaking your own personal locks and taking your stuff? I would hope so.

Overwhelmingly, despite the rampant anti-Americanism and the appeal to "the commons," the recent "fair" copyright protest, to me, resembles the "We the people..." and "pursuit of happiness" appeal to unfettered individual freedom rooted in the beginnings of the United States of America. There it is before us, an endless online vista and we are individuals in a vast untapped continent of common wealth. Do we dump all our iPods in the harbour -- sorry, harbor -- and throw off the shackles of the old world?

Okay, then what? Well, then, perhaps we will all live in the beautiful little town of Deadwood, without all those annoying laws and taxes and limits on our individual freedoms. Yeah... Deadwood. Good times.

Happy Holidays all! My blogging will be sporadic for awhile as I reflect on peace and goodwill toward all mankind.

PS -- I note that Michael Geist has posted today clearly in support of a Royal Commission or some such. I recognize that he has said it before, but it is worth having a look at his posting just to see all those names aligned together on this call. Well done.

Maybe Christmas, he thought, means a little bit more.

poet with control issues

The great and wise bookninja.com has posted about a recent call and answer on copyright in the Brit press. Poet Wendy Cope says keep yer digital fingers off my work, and book blogger Oliver Burkeman responds with oh, Wendy, join the 21st century.

I, of course, say they're both right. And as evidence, I offer these passages with which I agree:

Cope:

...it's true that there are poets who are happy to see their work anywhere and everywhere, just for the sake of the attention. But for those of us who make a little bit of money from royalties and permission fees, and depend on that income, it's different. Free publicity has no value if all that happens is that even more people download your poems from the internet without paying for them.

Burkeman:

Personally, I'm sceptical about anti-copyright absolutists who argue that an entire internet economy of free content could thrive solely on the basis of income from advertising and other ancillary sources. But some creators of content are certainly managing to make money this way ...

It might or might not work. But all the evidence of the online era suggests that getting tough on copyright infringement and trying to build legal walls in cyberspace certainly doesn't work. Above all, it just seems highly unlikely that the healthy future of poetry rests in trying to stifle and suppress, rather than to encourage, the centuries-old urge to share lines of verse that move or delight us.

Now if only Michael Geist would combine these two completely valid, though seemingly opposed viewpoints into a ten second soundbite, we'd be rocking.