Wednesday, February 09, 2011

37,000 lawyers walk into a bar...

The Canadian Bar Association, representing 37,000 jurists across the country has weighed into the C-32 submission pool with a terrific survey of the issues and varying legal opinions around the Copyright Modernization Bill.

The CBA's Copyright Working Group has done a pretty good job of standing on neutral ground and presenting the spectrum of legal opinion around C-32, something that has been sorely lacking in the ongoing debate.

They even provide handy tables of opinion divided into Owner/Creator Perspective and User Perspective - though this is my one small quibble with the submission. As I've mentioned in the past, I think the creator/user divide is a false dichotomy created by those who would like to co-opt "the public interest" to give their own ideological stance a populist appearance.

Most of the user perspectives expressed in the CBA document are actually industrial-user perspectives, and that's a very important distinction to keep in mind while you read the submission. I am both a creator and an individual user of copyright-protected material, and little of what I see on the so-called user perspective side speaks to my experience or concerns.

For instance, the opinion table for education as fair dealing contains this user perspective:
The educational exception may reduce administrative and financial costs for educational institutions, allowing institutions to invest more in teaching and students, rather than in administrative costs.

As happy as I am to once again see the link between educational fair dealing and cost-savings for universities baldly and forthrightly stated, I'm not sure it's in my individual user's interest to have universities save a bunch of money at creators' expense, since the passing on of those savings to students is by no means guaranteed (or even, really, promised), and the full negative effects on Canadian curriculum creation are not even raised, let alone considered.

My individual-user's perspective includes those concerns, while the post-secondary sector's industrial-user perspective understandably does not, focused as it has shown itself to be on cost savings.

Strangely, I've had some free-culture cheerleaders reference this submission to me over the past couple of days, as if the CBA has somehow come out against the creator side on copyright. To them I say - read the submission (the actual document; not just Michael Geist's weird interpretation of it as somehow exonerating anti-copyright positions).

I'm pleased with what I read, and I think both the owner/creator and industrial-user sides are well represented in the opinion tables. What remains is for legislators to understand what actual individual users need or want.

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(logo courtesy the CBA)


Crockett said...

John, I ask you once again to define your label of a "free culture" activist and what such a person in your mind represents.

Again, such labels are an old and poorly used tactic to smear a group of varying opinions into a minimized homogeny.


John said...


Feeling zinged in the pompoms?

I did actually explain my terminology to you before, so let me just quote myself (with proper reference):

"The free culture crowd to which I refer is the vocal minority standing behind professor Michael Geist's highly politicized advocacy on copyright."

- John Degen, comments section for thinking culture on the blog.

If that don't float yer boat, here's a fuller explanation:

The free culture cheerleaders are, I think, a very easily defined and discernable group of activists schooled late in copyright by the theoretical off-shoot of the academy growing from Lawrence Lessig's 2004 book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity .

There is a fairly accurate definition of the free culture crowd on wikipedia (where else?) under the term free culture movement. I would add to that definition the fact that almost, nay every single, free culture cheerleader I've ever experienced on this blog and others carries a fatal misunderstanding of the difference between "a copy of a thing" and "the thing itself."

To illustrate my point, not a single free culture cheerleader (FCC, for short) who says to me, "when I buy a movie, I can do whatever I want with it" has ever actually bought a movie.

Movies cost hundreds of millions of dollars to buy. What the FCCs mean is "when I buy a media- or platform-limited copy of a movie, I can do whatever I want with that single media- or platform-limited copy in its physical form."

I can understand why FCCs don't make that distinction. The accurate declaration -- rooted in reality -- is much harder to say.

Crockett said...

John, as I have said to you before also, you are welcome to you opinion. I actually greatly appreciate it. It is a showcase for the utopian copyright mindset you live in. Most of the rest of the world lives in a less complex place where the public drives the marketplace not where business dictates the terms.

If you have not noticed, as evidenced by the UBB debacle, the public is just plain tired of being fleeced and literally isn't going to take it lying down anymore. The Internet has brought us many chages, some good & others questionable but I think one of the best is giving a collective voice to the formally lonely individual.

Now as you say, one click activism is not a replacement for thoughtful debate, but it has become a catalyst for such. We are now in a new world where former relationships between the public and business is undergoing silent renegotiations. This is being played out in various ways and at different levels. Some are taking a stand through engaging in public debate while others are acting out from a sense of frustration and skirting around the perceived unfair impediments.

There is room in the world for John Degens and Micheal Giests to frame the debate and inevitable changes to come. So I say to you John ... Go team go!

Sandy Crawley said...

It is fun (maybe I should get a life) keeping up with the Degen/Crockett chronicles. On the subject of this post, the CBA document, I think of it as a kind of thermometer on where the legal community (outside Quebec where there is a greater understanding of the relationship between creativity, culture and economics) is divided. The committee that wrote the CBA brief has reps from the "Free culture" side (well, not quite because no lawyer would actually buy in to that dystopian vision) and certainly from the creators' collectives side (that I unabashedly support).

Crockett said...

Hi Sandy,

I'm glad I can in some part brighten your day. I was serious in my final remark that I do appreciate the extreme views of both John and Michael. I am somewhere in between, though probably further to the right ( or is it the left?). I even do not have much of an issue with Creator's collectives, dare I even day it, with Access Copyright. I do think though that in their latest attempts they put in too big an ask and were caught by the backlash. Further, their attempts to shut out input and debate worsened matters. It seems, especially in regards to media, that people are becoming much more aware of the former 'behind closed doors' dealings. Rightly or not, the publics perception must be much more taken into account than in times past. Business, if nothing else, should be making PR a much bigger factor in their planning. This us a lesson the content industry is learning but unfortunately at a pace too slow.