Friday, November 26, 2010

what's behind door number three?

It's been a very busy week, what with the beginning of hearings by the C-32 Committee up in Ottawa. I've just realized I haven't yet addressed Michael Geist's third "compromise" suggestion.

So what exactly is behind door number three. Is it the big money; or is it a goat?

In his original posting waving the flag of compromise, the famed consumer advocate invites cultural industries to... um, compromise on TPM protection; and also to accept his assurances we are worrying unnecessarily about vague redefinitions of fair dealing. I've recently looked up the word compromise and it still does not mean capitulation, so I'm glad the C-32 Committee is getting advice from a broader field of comment.

Dr. Geist included a third compromise suggestion, and it is one that hits very close to home with me. In considering the calls to extend the private copying levy to include all the various new ways of copying and storing content, we are offered the strangest compromise yet. Geist writes:
"...a compromise may lie in identifying alternative mechanisms for providing financial supportive to Canadian creators...Rather than expanding the levy, the government could commit to continued full program funding for the next five years."

By full program funding, Geist means arts grants - public funding for the creation, production and performance of art.

Well, John, you work in public funding. You provide grants to artists. How could you be opposed to such a suggestion?

I'm not. A commitment to full program funding is a wonderful thing. I'm certainly committed to it in my very limited capacity to control such things; but someone please explain to me how two completely different things can magically be replaced by just one of those things?
I see you have an apple and an orange there. Here's what we'll do - I'll take the apple from you; but, to make it up to you, I'm going to let you keep the orange. Even better, I'm also going to assure you I won't take any of that orange from you for the next five minutes.

Some compromise.

I've struggled a bit with how to express my total dismay at this little game of Let's Make a Deal™ that Canadian artists are suddenly being asked to play. So, thanks to Denis McGrath, for helping to clear and focus my thoughts. McGrath, a TV writer, blogger and Writers Guild of Canada member had this to say in a recent comment exchange with a persistent and uncompromising user rights advocate (emphasis mine):
"Geist — who has the bulliest of bully pulpits on this issue with his academic tenure, blog, and regular column, admitted to me awhile ago that he hadn’t considered the artist in the equation enough. He’s attempted to since remedy this through a few columns and alternate solutions that aren’t really workable from the WGC’s [Writer's Guild of Canada] point of view. We’ve said as much to him, and I’ve said that to him privately. I understand his objections to levies, and agree that they’re imperfect solutions. I just don’t think they’re as imperfect as doing nothing — which will be the current state of C32 — or his proposals, which are half baked at best and politically just as poisonous as levies at worst."

That's a damning admission from the man who purports at all times to be seeking fairness and balance in copyright. One whole side of the equation... yeah, I haven't given it a lot of thought.

In other words... behind door number three? A goat.

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Gruesome said...

It's hard to imagine the levy ever becoming part of this bill.
James Moore seems to have dug his heels in on this one, although Clement seems to be more open and reasonable.
But Moore seems to be in the driver seat on this.
Personally I'm not in favor of a Levy.
I use very little of my storage devices for media other than my own. Actually as a photographer I would end up paying other artists to do my own work. I have a hard time reconciling that.
On top of which the music I downloaded from Itunes and paid for I now have to pay for again with a levy on my Ipod.
Given that there is little in this bill that helps the music industry something more needs to be done.
But there has to be a better way.
This whole bill seems to be about replacing copyright with tpm's which leaves the music industry out in the cold... unfortunately.

Unknown said...

I'd rather expand the levy, however I'd take it away from the current collection societies.

DMc said...

Thanks for your writing on this, john. For the record, here's a point I made in a private exchange with Geist today:

"I wonder whether, instead of the extension of fair dealing to
education, whether you would have accepted an increase in grants for
educational institutions to offset the costs of paying something to
artists for ancillary uses? If it's good enough for artists, why
shouldn't it be good enough for the educational community? I'm sure
there's a very good reason why you think that wouldn't work."

Haven't heard another word.

Crockett said...

Behind door #4 ...

I still wonder why we need levies at all, why not just include the extra few percentage that a levy would generate in the initial purchase price instead, then allow fair user rights such as backup and shifting. Then there is no need for TPM, litigation costs, PR campaigns at all.

I would think the distributors might even be able to absorb this cost and not have to pass it onto the creator. I would think the return in greater sales/less infringement would offset the costs.

The creator would get his correct share as it would be passed on directly from the initial sale. No need for collective overhead costs or complex share formulas.

Still make infringement for non fair uses illegal and liable. TPM is not a real world impediment to pirates anyways so relying on them for that purpose is ineffective & unreasonable.

What do you think John, is this a workable solution?

Sandy Crawley said...


Nice idea if there were a way to distinguish between the works that succeed or fail in the marketplace. It seems as if you think that future markets in the digital realm should work exactly as the traditional one in physical objects. But creators are looking to IMPROVE compensation levels since they don't have to underwrite production costs in the digital context. I'm sure you know that the traditional model favours manufacturing and distribution over creation.

Crockett said...

Hi Sandy,

I'm not sure what you mean when you say distinguishing between those who succeed and fail in the marketplace. If the extra percentage is added at the time of sale then that the amount the artist receives is linear to the sales, as it should be.

As for artists improving their compensation levels, you are certainly preaching to the choir there! The main thrust of my blogging over the past years has been to try and convince artists that they are generally being taken to the cleaners by their distribution contracts and the 'professional' organizations who disenfranchise customers through draconian tactics designed to maintain their control.

Artists would be much better to leverage new technology, say so long to the old guard & go their own way.

Both creators and consumers would get along much better if they just both bury the hatchet and give a little. The 'war' manufactured by big media is mainly a distraction to keep the soldiers in line. Change in media use and expectations is already here. The sooner all parties adjust and work towards equitable solutions the better off we will all be.

John said...


Why do you assume creators are not already deeply involved in improving compensation? What do you think Sandy does all day every day? He's the Executive Director of the Professional Writers Association of Canada, which negotiates, advocates and helps to litigate for better compensation, when it's not providing professional development so that members can "adjust and work toward equitable solutions."

Seriously, you need to stop lecturing artists on what they should do and pay attention to what they are doing.

It's really sadly naive to assume the worst about traditional distribution contracts and professional associations. When you talk about ditching the old guard you seem to have no concept of the complexity of such relationships, and the proven and unchallenged advantages to real, professional artists.

I'd as soon discard a traditional publisher as ditch my traditional doctor for a faith healer.

Crockett said...

Yes John, AC is doing just a bang up job of alienating it's customers. I wonder how many writers are pleased with that performance? And, before you say it's all Geist's fault consider AC's initial overreach and then the attempt to disenfranchise objectors.

And the RIAA is, of course, a much adored organization. I know scores of people who will not touch a product with their logo on it.

How many people rip (or worse pirate) their MPAA DVDs just to get rid of all the forced advertising before the movie starts?

It really is time for fresh thinking and possibly new players without the taint of the old. I do not say this just to be negative, but to be realistic. There really is not much love out there for the 'old guard'.

If they can really reinvent themselves and better serve their clients, then great! If not then step aside. Think of the Artists!

Crockett said...

John, I must admit that I do not have your level of experience with professional artist organizations. But I do think I have a fairly good grasp on the consumer's side. I understand that you too are a consumer of media but you must admit that probably you are not of the same world view as the average Canadian in that regard.

It really is ugly out there. Yes, artists have a real beef with 'pirates', and rightly so, it's unfair and hurtful how some people behave. The response from the industry though has been a shock and awe campaign that has turned many of the 'civilians' against you.

Now I may not be a lawyer, or an executive director, but I think I have a pulse of the public. The best tactic IMO for the media industry is to build roads instead of dropping bombs.

The insane continuing lawsuits (by lawyers now charged with fraud). The victim mentality pleas, when all most people see are the mansions and yachts (not realistic for the majority of artists, but that's what the industry portrays as it's stars). The unrealistic restrictions on activities that people already participate in and expect (I am not including file sharing in that).

John the industry has a massive PR problem and they are handling it badly. Do artists have grievances with the public, yes they do. Do the public have grievances with artists (or at least their reps), yes they do.

The thing is it's the artists who are trying to sell a product to the public so it is in their best interest to build those bridges. That's not happening, and needs to change, for their sake.

I really do care about the well being of the artistic community John. I hope you can at least accept some of what I am saying as sincere and consider it.

Take care.