Friday, October 15, 2010

some questions answered

The following interview was published yesterday in the latest issue of MusicTechPolicy Monthly, the monthly newsletter of the Music Tech Policy blog out of Los Angeles.


Canadian Author John Degen: MTP's Chris Castle Interviews Canadian writer John Degen on craft and copyright

John's perspective is particularly relevant as the Canadian Parliament is currently debating a major overhaul to Canada's copyright laws which could have a profound effect on both non-Canadians and Canadians online.

Chris Castle: You're a novelist, poet and what I would call an activist for author's rights. Let's talk about the writing first. One writer once said that the way he got ideas for novels was by keeping a meticulous journal - then one day he started lying in his journal and before long he was writing his next novel. What's your approach?

John Degen: You left out a couple of jobs there. I also work full time for the Ontario Arts Council, administering grants to writers and publishers; and I'm the father of twin boys. My approach to writing these days is mostly to observe other people doing it and feel very jealous that I can't. That said, I have a new novel on the go and a collection of poems nearing completion. The work for these is done in time stolen from my family, so it's slow going.

The novel is the result of one moment in time. In the summer of 1994, I was walking on a leafy residential street in the embassy district of Bucharest, Romania. This was just 4 and half years out of the revolution of Christmas 1989, when Ceausescu and his wife were both executed. There were still battle scars all over the city, and as I walked I counted the unrepaired bullet holes in the stone walls and stucco houses.

I turned a corner still daydreaming, and almost banged right into two young soldiers guarding an embassy gate. I swear, they looked like they were no older than seventeen -- kids, playing soldier in oversized uniforms and hats. Except the machine guns they had strapped over their shoulders were unmistakably real, and I think I startled them. I remember staring at their fingers, which tapped nervously at the trigger guards. When I looked in their eyes, I saw they were staring at my hands as well. I was returning from the market, and I had a litre bottle of beer in each fist. All at once, the three of us were laughing.

I've been noodling that moment for 16 years. Stay tuned.

Castle: Are there particular writers who influenced you starting out and do they still resonate with you?

Degen: How does one answer that question without sounding pretentious? The truth is I'm not a very critical reader. I read for enjoyment; and if I learn craft from what I read it's accidental. If I could write a few sentences like Graham Greene, or one plot like Raymond Chandler, I'd be very happy indeed.

Castle: The "hero archetype" and "hero's journey" are common themes we hear about in screenwriting, and sometimes I think they are inextricably connected to Red Sonya, Hobbits and Harry Potter. Are these models inescapable?

Degen: You know how you can tell they're inescapable? Even those attempting to subvert them wind up simply interpreting them from their own perspective. The hero's journey, I think, is just another way of saying "life," and there's really no escaping that archetype. The trick to using that archetype to make fine art is to be so subtle and nuanced about the journey it almost never starts. The trick to making a lot of money from the archetype is to write about hobbits and wizards. Combine those two tricks, and people's heads explode.

Castle: Recording artists are often told that they don't need record companies any more in the digital era. Are authors being told that they don't need book publishers and what's your view?

Degen: Well, there's no shortage of free advice for how creative professionals should be running their businesses and lives these days; but in my experience little of it takes into account the realities of professional creation. There are the rare instances of self-published work reaching a large readership and even winning prizes, but going it completely alone as an author remains the exception to the rule.

Publishers are certainly under pressure to adapt to a changing marketplace - the e-book market being the most volatile determinant right now - but the necessary work publishers do in developing authors and their texts must not be undervalued.

Because of my work, I know thousands of authors at all levels of craft and career development, and I don't know if I've ever heard one say he or she would prefer to not have a publisher. Even Cory Doctorow and Michael Geist - two fellows who generate a lot of discussion about the great democratizing effects of digital technology and the fall of the traditional middlemen - even they have very traditional publishers for their books.

Castle: You are Canadian, and I noticed that Canadian authors have filed statements with the court opposing the proposed Google Books settlement. Do you have a point of view about the settlement?

Degen: I celebrated the fact of the Google settlement because I'm a sucker for a David and Goliath type victory. Here we had one of the world's most powerful corporations making private deals with some of the worlds most prestigious and influential libraries in a massive digitization effort that was celebrated by many as an unquestionable boon to humankind. It seemed unstoppable, despite the fact that no-one had asked the rightsholders for permission.

And yet a bunch of tiny authors and publishers managed to make the giant step back. They forced an implicit admission that something about the project did not, in fact, smell like roses. That aspect of the Google Books story was good news.

The legal mess that followed, I leave to the lawyers and judges to figure out. Canadians understandably have a thing about dictating our own terms, so I think it's perfectly reasonable that an American settlement's universality would be questioned here.

Castle: Canada has a very sensible orphan works law, which applies only to music. It seems that Google has a greater interest in what they call "orphan works" than authors do. Is the orphan works issue one of concern to you?

Degen: Of concern to me personally as an author? Not in the least. I write original works, and I'm confident in my application of fair dealing (Canada's version of fair use). I am not one who looks at the public domain and sees vast tracts of legally untouchable material because it might qualify as orphaned work.

I understand the concern about orphan work theoretically, but to me that is the problem with a great deal of the worry and panic around copyright - it's based in theory and not practice. Has there ever been a comprehensive survey of working professional creators to determine just how perilous is the problem of orphan works?

What's more, I have a hard time believing current technology can be used to track and store the purchasing preferences of every human on the planet, but that same technology can't figure out how to track down copyright holders.

Castle: Canada seems to have many more organizations devoted to protecting, encouraging and funding Canadian culture than we are used to in the US, starting with the Heritage Ministry. Is that just the perception?

Degen: This is the old elephant and mouse problem. Tiny little Canadian culture beds down happily each night beside the largest, heaviest and loudest culture in the world (I say that with love - who doesn't love an elephant?).

Our bookstores are full of your books, our movie houses are full of your films, even many of our most popular homemade televisions shows are just Canadian versions of your most popular shows. The cultural product we create that is truly "Canadian" can be pretty hard to spot beside the elephant, and an elephant can do an awful lot of damage to a mouse without even trying. Think of the protection, encouragement and funding of culture in Canada as an invisible elephant-proof forcefield.

Castle: Canada is considering a new Canadian copyright law (Bill C-32) including new rules for works on the Internet regardless of national origin. These new rules affect artists both inside and outside Canada. What's your view of the new law and do author groups have any particular recommendations for amendments?

Degen: Bill C-32 looks to be going to Parliamentary committee in November, at which time our law-makers will likely call witnesses to discuss the proposed changes to copyright law. I expect creator groups will appeal to the committee to introduce a number of amendments aimed at pulling back what looks to be a pretty dramatic pendulum swing in the direction of consumer permissions.

A bunch of new exceptions are included in the bill, including a vaguely written exception for educational use (currently educational institutions in Canada license use with copyright collectives). In my opinion, the general vagueness of the new exceptions is a real problem for creators and copyright holders, endangering established rights and business models. In the current climate of widespread disrespect for and misunderstanding of copyright, I don't know if large-scale users need more encouragement to disregard the ownership of original works.

Castle: There are a number of organizations in Canada that have formed around opposition or support for a new Canadian copyright law. I noticed recently that you have resigned your membership in "Fair Copyright for Canada" which is associated with Michael Geist, a leading voice for consumers on the international stage and one of the vocal opponents of the Anticounterfeiting Trade Agreement. What prompted you to join the "Fair Copyright for Canada" group and what prompted you to resign?

Degen: The copyright debate in Canada is plagued by imprecision and vagueness, much of it designed to create confusion around the real issues. Michael Geist created the Fair Copyright for Canada group on Facebook, spread panic about digital locks and an invasion of American corporate lobbyists, and then benefited from the one-click slacktivism that Malcolm Gladwell recently criticized in The New Yorker (Small Change: Why the revolution will not be tweeted).

Tens of thousands of Canadian Facebookers joined the FCFC group, and I'm convinced they did so out of an undefined notion that fairness is a good thing and if the Americans are attacking us again (remember 1812!) we must resist.

What that group never actually became was a respected forum for unbiased, non-partisan discussion of just what "fair" might mean in copyright. Instead, it remains just one more web-based platform for Michael Geist to cross-post his blogsinuations.

I was one of the very first members of FCFC, and I stuck it out as long as no alternative existed. I posted and commented frequently, giving the professional creator perspective and questioning some of the received wisdom of the copyleft; and for my troubles I was abused, threatened, maligned, insulted and called every name in the book including, shudder, a lawyer. Once, I was even intentionally censored - posts and comments of mine were removed from the site and my membership in one of the FCFC chapters was revoked. The official explanation was that I was making statements "inconsistent with the principles of Fair Copyright." How fair is that?

Anyway, a new group has recently formed, Balanced Copyright for Canada, which is a collection of creative industry professionals intent on actually discussing the issues. They don't censor or abuse dissenting voices. They engage with them, because it's actually in their interest if people understand the complexities of copyright. And they don't pad their membership through panic. So, I moved my discussion time over there.

By the way, almost on the very day Balanced Copyright launched, Michael Geist wrote a blog post calling it "The Copyright Lobby's Astroturf Campaign in Support of C-32." Never mind that the group is composed of real people with real concerns; never mind that the discussion is decidedly not in support of the bill as written; and never mind that Geist himself has since expressed strong support for the bill. All's "fair" in the copyfight, apparently.


John's most recent book is The Uninvited Guest, available through Book People and through Nightwood Editions. Visit John's blog at

Chris Castle is Managing Partner of Christian L. Castle, Attorneys with offices in Los Angeles and San Francisco.


Chris A said...

Digital locks, as they are now, is the biggest problem with C-32. I can understand some of the concern with some of the new fair dealings provisions (which I happen to think should be vague for the protection of the creators, not for the protection of the consumer) because they remove all fair dealings right where they exist.

As for the American corporations, yeah they are lobbying for C-32 to look a certain way, they've been doing that since C-61.

Anonymous said...

You know, if you actually put your efforts around policies the public would support, maybe you wouldn't feel so abused.

In my opinion, some of what was said in this article basically fortifies MP's positions against some of the policies you support John. You further politically isolated yourself and your friends here.

The war your side has chosen is not with the "copyleft" "Geist" or "consumers" but with the public that decides the fate of public policy and law. We live in a democracy, we don't support fascist policies or politics. That's not what Canadians have chosen.

If the public doesn't want the policy you've chosen, why continue to try and push it through? What I have never understood is why some of you think you have more influence over our MP's than the voice of the Canadian people on whole? "Consumers" and "Users" make up the vast majority of Canadian citizens. I don't know any Canadian that's not a consumer, and over 80% + of us are net "users". You might want to remember this.

John said...

Jason K,

I am not at war with anyone, and I find your insistent characterization of my politics as fascist to be extremely unhelpful.

Anonymous said...

I'm sorry you feel that way, but to me a life is more valuable than a paycheck.

John said...

You know what, Jason, your link didn't come through all the way. Here's a shortened version:

I think everyone should go and read your blog posting.

If I follow the logic, you think graduated response penalties for deliberate online infringement and commercial piracy are bad for society because it will make it difficult for our own and foreign national security agencies to spy on us.

Please explain why people who break the law should not face gradually increasing penalties. Break the traffic laws enough and, eventually, the privilege of driving is taken away from you.

If you are saying you think Internet connection is so essential to modern living that disconnection should be an absolute last case punishment, then I think you'll find many strong copyright advocates, like myself, completely agree with you.

Why is it only the scare-tactic scenarios of the copyleft that we're allowed to discuss around graduated response -- 3 strikes and you're out, no evidence required, entire families removed from access, etc. I am not for any drastic, unfair attacks on ordinary consumers. I'm an ordinary consumer myself.

I simply think that intellectual property ownership is a fundamental right (and the UN agrees with me, btw). I think without true, robust IP ownership rights we put at risk our freedom of expression. And, I think our fundamental rights should be vigorously protected by law, and that those who willfully and maliciously attack them should be punished under that law.

I think reasonable, responsible citizens will not run afoul of a graduated response law, in the same way most reasonable, responsible citizens tend to keep driving.

I understand you think my beliefs make me a fascist, but I can honestly say I have no idea how you come to that conclusion, and it doesn't get any less offensive no matter how often you repeat it.

Anonymous said...

You can't defend a policy such as the graduated response which its very nature is against our fundamental rights no matter how you sugar coat it. Taking away a fundamental right in democracy in favour of corporate interests as a “deterrent” is by definition an example of fascist ideology.

"I think reasonable, responsible citizens will not run afoul of a graduated response law, in the same way most reasonable, responsible citizens tend to keep driving."

Those that are following the technical side of these copyright wars for the past decade very much disagree with you on this, which include the NSA, MI5, and MI6. Personally I would rather go with their thoughts on this, than the thoughts of industry and creators who quite obviously still have trouble grasping the technical side of the internet (DPI has already been defeated), and understanding the culture that resides on it. That same misunderstanding came from industry 10 years ago when industry started suing fans down south. Do you really want to risk lives on taking the position of industry which has yet to be right on any deterrent over the past decade? As a Canadian, life is more important to me.

Recommended viewing:

Anonymous said...

I'm in agreement with you that copyright should be a fundimental right of creators, but I think the rest of the civilized world including the UN expect that right to be balanced with fundimental freedoms of society, in which the graduated response threatens regardless of due process.

The taking away of a fundemental freedom based on corporate interests is a far worse crime on the values society holds, than those that seek to infringe on copyright. Quite simply put, there will never be an agrument in my view that could justify any support for such a policy.

We are also in a state of war. We have been since 2001. Making any job of protecting Canadians and our troops potentially harder than it already is due to corporate interests is in my view not acceptable.

Crockett said...

John, I fail to see how painting those in favor of consumer rights as being unreasonable while praising the efforts of those promoting creator rights substantiates your point of valued discussion? One's own point of view is not always preeminent. Forgetting that turns debates into lectures.

“Why was I born with such contemporaries?” ... Oscar Wilde

John said...

Took a break for a while to do a bit of my own writing. Creators have to cerate, after all.

I'd ask the critics here - Chris A, Crockett and Jason K - to take a step back and ask just who it is in this conversation advocating an extreme position.

I reject the suggestion that I'm calling for the removal of a fundamental freedom to satisfy corporate interests. I have never advocated for anything other than the individual rights of individual creators (and I believe we are all individual creators). Where my individual rights align with corporate interests has nothing to do with me or my positions. I have no strong feelings for or against corporations.

Nor do I proclaim anything against the average consumer. I am the average consumer. My personal positions in the copyfight have nothing to do with "fans" or consumers. They have to do with intentional, organized and malicious piracy.

What I find absolutely baffling are copyfight positions that fail to make such a distinction. It is my ongoing problem with the copyleft, which I find to be all about "consumer rights" and not at all about responsibilities.

One can defend fair dealing - as I regularly do - free expression - as I have my entire professional career - and the public domain (to which I regularly contribute) AND say that piracy should be punished.

If you can't see such distinctions, you really have no place in this discussion. There are plenty of places online where you will not be challenged to look more closely. I encourage you to enjoy those other places.

John said...

Here's an example of what I mean when I talk about the copyleft's unwillingness to make distinctions:

Why spread inaccuracies about Bill C-32 and TPMs? Do I want blind people locked out of access? Of course not, but say anything in defence of the idea of TPM protection under the law and you want blind people to suffer.

This unchecked, inaccurate and blatantly dishonest demonization of the real concerns of copyright holders is shameful.

Anonymous said...

Sounds like to me Degen you are having quite the problems coming to terms with the policy you support. It is what it is John, you can't justify it, most importantly I don't blame you for taking the position you have. I blame you and other creators for not taking any stand on your own principles with respect to our constitution. That’s what saddens me here. You're in conflict with those principles if you support the graduated response no matter how you phrase it to yourself and others.

I’ve spent way too much time commenting here. My views on the graduated response will not change regardless. It is a fascist policy John, and you and others still have time to distance yourself before it becomes a very public debate in committee and nationally regardless of what camp you put me or others in. Don’t let those calling for this policy drag you down with them.

This will be my last comment on this blog.

Anonymous said...

One last note here. Above all I do respect you as a creator John. From working within the creative industries myself, and as a creator one thing I found to be constant among this group, and that's a respect for human rights, and freedoms.

This is something that is also constant within Canadian society, and you have to be a complete idiot to believe that the general Canadian population can be sold or swindled on giving away those rights in pursuit of copyright. If you believe this, then you’re out of touch with the society you belong to. You yourself can't even defend the Graduated Response. All your doing is deflecting attacks on this policy, something that can't be done in committee.

Anyways John, good luck to you, Once these copyright wars as you call them are over, I'll bring the beer, and introduce you to a new medium. By then from the looks of this and short sightedness on both sides, we'll be very old men. Cheers!

John said...

Honestly Jason, I have no idea what you're talking about. I have no wish to justify any policy. I believe in respect for individual rights, and respect for laws and law-making.

Free expression is, like everything else, not free. It involves a lot of hard work to negotiate the lines between swinging fists and static noses. As a writer, my tendency is to lean heavily to the side of unrestricted expression, but I fail to see how illegal downloading is "expression," and I would expect any Canadian graduated response law to carry weighty responsibilities for due process. I trust Canada.

I continue to be baffled by your extreme response to the idea of instituting punishments within the due process of the law. As a society we do that all the time. To say that illegal downloading should not be punished is to say you do not believe it should be illegal. That's a very different thing from disagreeing on the type of punishment. If no graduated response, how would you punish illegal downloaders?

Criticisms of various graduated response models for punishing illegal downloading focus on the extreme possibilities of the punishment being abused and due process not being followed. I think it's ridiculous that any advocate of strong copyright even has to respond to such notions, since it's NOT what's being suggested.

However, the standard approach to copyright criticism these days is to express outrage at extreme possibilities -- grandmothers will be put in jail for what their grandkids do on their computers! -- rather than to rationally and reasonably discuss the very real outcomes and solutions being sought.

All that said, I respect and honour your decision to not comment here anymore. I wish you continued good health.

Gruesome said...

So frame a graduated response argument that wouldn't be unconstitutional. I've tried and can't.
I have no problem punishing continued infringers, but I think we need to look at a speeding fine type approach.
Removal from the internet can't be on the table.
If you move infringement from civil law and people can use the legal system in the same way as a fighting a speeding ticket than at least you know justice is more likely
The problem with tpm's that I have is that they only affect consumers.
Their is no protection out there currently that pirates have not managed to thwart.
So if the tpm portion of the bill is not aimed at consumers, and we know it is because they won't even allow it to be broken for purposes apparently allowed, then who is it aimed at?
I'd be willing to give a lot to creators in protections and aid in fighting pirates, I just can't understand why the tpm portion seems aimed directly at consumers who pay us to create, it seems insane.

Gruesome said...

So frame a graduated response argument that wouldn't be unconstitutional. I've tried and can't.
I have no problem punishing continued infringers, but I think we need to look at a speeding fine type approach.
Removal from the internet can't be on the table.
If you move infringement from civil law and people can use the legal system in the same way as a fighting a speeding ticket than at least you know justice is more likely
The problem with tpm's that I have is that they only affect consumers.
Their is no protection out there currently that pirates have not managed to thwart.
So if the tpm portion of the bill is not aimed at consumers, and we know it is because they won't even allow it to be broken for purposes apparently allowed, then who is it aimed at?
I'd be willing to give a lot to creators in protections and aid in fighting pirates, I just can't understand why the tpm portion seems aimed directly at consumers who pay us to create, it seems insane.

Gruesome said...

sorry about the double post, had an error on the first and it made it seem as though it didn't go through