Thursday, September 03, 2009

my copyright submission

As mentioned in the previous post, I have taken advantage of the federal government's enlightened public consultations on copyright reform to register my opinion at their online submission site. When I posted this morning, my submission was still being processed by the giant government supercomputers.

It is now online at this link.

And for those who find following links tiresome and old fashioned, here's the text:


I am a professional writer. For over twenty years I have made or supplemented my income writing for magazines and newspapers. I have written for most of the major dailies in Canada, and a number of our most prominent magazines. I have been shortlisted for National Magazine Awards on three different occasions.

I am a published poet. My work has appeared in some of the best Canadian literary magazines including The Fiddlehead, Taddle Creek and The Walrus, and has been published internationally. I have published two collections of poetry, both of which received excellent reviews in the Canadian literary press.

I am a novelist. My first novel, The Uninvited Guest, was shortlisted for the Amazon First Novel Award in 2006 and is still selling well. I am completing a new collection of poetry and a new novel.

As well, I am the Literature Officer for the Ontario Arts Council, administering grant support to this province's literary book publishers, cultural magazine publishers, literary festivals and reading series, and professional creative writers and literary performers.

I have been a magazine publisher, a staff writer and the head of a national association for professional writers. I have a unique perspective on the impact of copyright on the practice and livelihood of Canada's cultural workers, especially in writing and publishing.

In 2008, I wrote an op-ed article for The Globe and Mail entitled Who Needs Copyright Anyway? In the article, I announced my intention to experiment with the free book business model and subsequently offered an electronic version of The Uninvited Guest as a free PDF download from my personal website. Those who took the time to read the article carefully would have noticed the answer to the rhetorical Who needs copyright? is… me, and all professional writers like me. Without the limited rights granted to me by the Copyright Act, I would have had no legal basis for making the decision to give my work away for free, and I would have no legal basis to make the decision to stop the free giveaway, which I have recently done.

Consultation Questions:

1. How do Canada's copyright laws affect you? How should existing laws be modernized?

Canada's Copyright Act is the key piece of legislation allowing me to work as a professional writer. It grants me a time-limited monopoly over the product of my intellectual labours. This makes it possible for me to offer that intellectual property for sale or contracted use, thereby creating a business model for me as an independent cultural producer. It also gives me the right to define usage, within reason, and allows me to transfer this right to my publishing partners. The Copyright Act defines rights that become part of the contractual negotiation between writers and publishers. Finally, through its fair dealing provision the Canadian Copyright Act provides (or should provide) definition for many of the best practices involved in research, writing and the creation of new work based on existing work.

I believe there is some room for improving the Act, especially in order to better and more fully define fair dealing. The fair dealing provision is the target of much criticism these days, mainly because users do not have knowledge of, or confidence in the various permissions provided by this provision. A clear listing and definition of permissions under fair dealing would assure new creators of what they can and cannot do in borrowing from or building upon existing works, and would also help to decrease the likelihood of frivolous, punitive and chilling litigation around permissions.

Finally, I believe the Act can and should be clarified around consumer expectations for use of intellectual property. It is vitally important the Act draw a necessary distinction between the concepts of text and execution, or between intellectual property and purchased property. Much of the current criticism aimed at the Copyright Act, and even at the very idea of copyright conflates these two discrete concepts. The purchase of a specific execution of a text — a book, an e-book, a sound recording, a digital file, etc. — is not (and never has been) the same as the purchase of the foundational intellectual property (or text) for that specific execution.

In other words, buying or downloading a copy of the latest Margaret Atwood novel does not make the purchaser a part-owner of Margaret Atwood's packet of rights under copyright for that novel. A copy is not original, no matter how "perfect" it is made by new technology, and therefore the purchaser of a copy should have no expectation that all rights adhering to the original also adhere to the copy.

I believe a feature of Ms. Atwood's packet of rights under copyright is, and should be, the limited right to make decisions about how the work can be used by consumers — specifically, the right to place certain reasonable limitations on borrowing and/or lending, the right to limit resale numbers, and the right to limit levels of creative re-use for derivative purposes. These rights are already in use and accepted, even by institutions such as the Creative Commons. In fact, they form much of the logic behind Creative Commons licensing. Nevertheless, consumer advocacy groups continue to conflate what has been purchased with the unsold rights of the maker.

2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

I am certain it is impossible to anticipate all the potential changes to how Canadians will continue to create, disseminate, purchase and use intellectual property and its various products, and so it is only by applying a very Canadian respect for fairness that we can strengthen the Copyright Act. It is not by accident that key provisions in the act are labeled fair dealing. One of our core values demands that we approach and exercise our various rights and privileges in society with an overarching sense of fairness to others.

For instance, Canadians who manage to obtain a driver's licence understand they have as much right as any other licenced driver to take to the public roads and highways. Yet we also accept that driving is a very limited right; so limited in fact we actually consider it a mere privilege – one quite strictly policed for fairness to others. As a society we consider it unfair to endanger the safety, lives and/or property of others by driving under the influence of drugs or alcohol or by using excessive speed. Despite the fact that most modern cars give us the option and ability to travel at 200 kilometers an hour or more, we accept as fair a maximum speed limit of 100 kilometers an hour. Of course, on most major highways in Canada, the actual average maximum speed might very well be anywhere between 100 and 120 kilometers an hour. Be that as it may, we as a society accept the sometimes unhappy intersection of common practice and law. No one ticketed for going 110 kilometers an hour would reasonably expect to not have to pay that fine. Why? Because we look at the larger fairness picture and accept the speed limit, even if we sometimes wish we could go just a little bit faster.

The larger fairness picture should make the Copyright Act relatively immune to changes in practice around the purchase and/or use of intellectual property products. In the 2004 Tariff 22 case, the Supreme Court of Canada stated the following:

"The capacity of the Internet to disseminate 'works of the arts and intellect' is one of the great innovations of the information age. Its use should be facilitated rather than discouraged, but this should not be done unfairly at the expense of those who created the works of arts and intellect in the first place."

Our Supreme Court recognizes the overarching demand for fairness to the artist in the Copyright Act. Our legislators should continue to recognize it as well.

3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

Very little change to the current law is necessary. I have mentioned clarifying the fair dealing provision, but beyond that I'm not sure the current law needs new features as much as it needs to be better understood and interpreted by our changing society.

Here I return to the analogy of speed limits. If we introduced a travel technology allowing us to greatly increase our speeds without reducing safety, we might decide as a society to increase the maximum speed limit — but would we discard the overarching demand for fairness that speed limits represent? I hope we would not.

Because we now have technology that allows consumers greater access to intellectual property, this does not mean we should allow that technology to define us away from our concept of fairness. Where new media imposes unfair outcomes on the artists who create original Canadian intellectual property, those outcomes must be restricted through legislation. So, illegal file-sharing must remain illegal (no matter how easy or fun it may be) because it damages or destroys an artist's ability to exercise necessary control over her intellectual property.

I believe competition is impossible and investment unlikely without a level playing field. One levels the playing field, and keeps it level, with strong laws fairly interpreted.

Calls to weaken or eliminate copyright law fail to properly anticipate the disastrous effect on professional cultural practice of such a decision. New technologies are encouraging a number of exciting new business models, and consumer choice is helping the marketplace define which of those models are best for both buyer and seller. This process is well underway and has required no change to existing laws.

In the case of copyright reform, the law and the marketplace intersect importantly at the question of ownership. It is often asserted that a digital copy of a work is radically different from a physical copy in that the transfer of a digital copy from user to user does not diminish the number of copies available. Sharing a digital song or digital book is not the same as sharing a physical book or a record album since both users end up with a near perfect copy of the work after the sharing is complete. There follows the argument that sharing a musician's song over the Internet does not take anything away from the musician, since the musician retains her own original copy to do with what she will.

This is a cute but ultimately deceptive redefining of what it is a professional artist does when offering artwork in the marketplace. Since the birth of the modern music recording industry all sales of songs have been, essentially, sales of media and permission for limited use. Buying a vinyl album has never, in my recollection, entitled the consumer to offer that album for commercial public performance, just as the rental agreement for a film on DVD does not include the right to offer a screening of that film for an admission fee, or to make endless copies of the DVD in order to share the movie with friends. In fact, these things are explicitly denied the consumer, whether or not the consumer chooses to be aware of that fact. The same restrictions on purchased use apply, and should continue to apply, for digital product no matter the available technology or original purchase price. Removal of the right to reasonably restrict certain uses even after purchase will, I believe, mean the end of professional art making, because it will make any real ownership of the work impossible.

As an arts funder, I am only too aware of how vital to creation is full-time, professional focus on one's art. In my job, I administer hundreds of grants per year designed to buy professional artists time away from other work in order to make their art on a full-time basis. The people of Ontario, through the agency of the Ontario Arts Council, are investors in the creation of art. The return on that investment is a vibrant cultural sector bearing measurable social and economic rewards.

I cannot imagine a society in which, having agreed to fund artists for a brief period so they can produce a work of art, we then deny them the right to own and control that work. As it stands, art-making is economically difficult and risky. Without strong copyright it becomes, in my opinion, virtually impossible in any real economic sense. And when the professional artists make no professional art, we lose that cultural vibrancy and its attendant benefits.

4. What kinds of changes would best position Canada as a leader in the global, digital economy?

Many of Canada's global partners are waiting for Canada to complete its ratification of international treaties concerning intellectual property and copyright. I believe Canada has always led through reasoned and negotiated partnership efforts. Historically, we are not a maverick nation, and I see no need to change that tradition for the sake of dubious consumer freedoms.

Canada should continue to work with its global partners and fellow treaty signatories in the ongoing process of copyright interpretation for the digital age.

Thank you for the opportunity to express my views.

John Degen,

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Anonymous said...
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Finn Harvor said...

Keep fighting the good fight. The digital revolution will be a lot less painful for creators if authors know their copyright is protected.

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