Friday, March 11, 2011

blame the artist, reprise

Free Culture belligerence takes aim at a Canadian literary legend.

It's hard to imagine a more respected and honoured analytical and literary mind in Canada than the one housed in the venerable head of Margaret Atwood. One only need look at the current and continuing economic crisis for proof of her skill at grasping and explaining complex issues. A number of years back, while the rest of the world shuffled blindly toward the economic precipice, Ms. Atwood was busy writing her brilliant Massey Lecture series, Payback: Debt and the Shadow Side of Wealth in which she pretty much predicted everything that has happened since.

But it seems even Margaret Atwood can't catch a break when it comes to standing up for her rights as a professional artist reliant on copyright to protect the obvious value of her intellectual property. According to her blog at Ms. Atwood was invited to appear before the Special Commons Committee on C-32 and graciously accepted the invitation, despite being in Dubai at the time. She arranged for a video conference link on her side of the world (where it was around 8 p.m. in the evening) and delivered a prepared statement on a witness panel that included Marian Hebb from the Artists' Legal Advice Services and four representatives from the Canadian Musical Reproduction Rights Agency.

When the time came for questions from the committee members, Ms. Atwood found herself berated, interrupted and, I would have to think, insulted by one Member of Parliament who took exception to her definition of fair dealing.

What was her definition?

"Number one, it is fair; and number two it means that some form of dealing is taking place between two sides who reach an agreement -- that's what fair dealing means to the ordinary person."

I'm not going to name the MP* who engaged so rudely with Ms. Atwood - calling her worries about loss of educational revenue for authors "outrageous" and suggesting she would have a better understanding of the issues if she would just read Michael Geist's blog. I won't name the MP because I prefer to keep the debate around this issue outside the arena of political gamesmanship. For that kind of commentary, may I suggest folks read the aforementioned Professor Geist who makes a habit of personal attacks against politicians who dare to disagree with his theories.

Last year we witnessed a shameful attack on two-time Governor General's Award winner Nino Ricci by both Geist and crusading free culture journalist Jesse Brown (who, strangely, does not work for a free culture broadcaster). Brown claimed Ricci writes lies and propaganda, and Geist happily retweeted the calumny to his followers.

This attack was then repeated by free culture copyfighter Cory Doctorow against Ricci and several other Canadian authors who dared to speak about their rights in a Writers Union video.

If those blame the artist moments were not bad enough, we now have the embarrassing spectacle of the most recognizable and respected Canadian cultural figure on the planet being treated like she knows nothing about the reality she has been living and working in for half a century now. To make matters worse, this attack took place on Parliament Hill. Truly the lowest of the low points so far in this ongoing debate.

In a related post today on her blog, Ms. Atwood responds to the MP's insistence that no-one could possibly interpret fair dealing as meaning artists no longer have to be paid for educational use:

In a government fact sheet on Bill C-32, entitled What the New Copyright Modernization Act Means for Teachers, the Government emphasizes that fair dealing for the purpose of education will be an “important” change to the Copyright Act and that “Extending this provision to education will reduce the administrative and financial costs for users of copyrighted materials that enrich the educational environment.”

“Administrative costs” means tracking the use of copied material, I can only suppose. “Financial costs” means paying for it. If the government doesn’t mean that, what in stars DOES it mean?

I would add to this by pointing out (as I have many times before) that prominent advocates for educational fair dealing have advised often in the past that a broad interpretation of such a category would absolutely result in both free use of copyright-protected material and a consequent loss of licensing revenue to creators. They chose not to repeat those claims in testimony to the committee, but their past advocacy is on the record and publicly available.

Finally, the attacking MP's source material for his own understanding of fair dealing, a blog posting by Michael Geist, has been thoroughly discredited by authoritative members of the legal profession. In fact, much of what Michael Geist has to say about copyright meets regular and authoritative rebuttal from those with an actual working knowledge of the law.

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*I'm not trying to be dramatically mysterious here. I just despise the political mud-slinging that has characterized so much of the debate from the free culture side. The exchange between Atwood and the MP has been fairly widely reported.

(images of Margaret Atwood courtesy the Parliamentary website)


Crockett said...

Hi John,

There does seem to be a lot of bluster and grandstanding on the hill lately. There is also a variety of misinformned opinions from many of the C-32 commitee members on both sides of the spectrum. Seems scoring political points is trumping finding solutions to this very important area of issues.

While you are right to site Sookman & Gannon as authoritative, it is a far reach to beleive they are impartial, having been retained by the recording and creative industries. Yet their voices, along with Geist's and others are needed to frame the debate on our digital future.

Sandy Crawley said...

@ Crockett.

Yes, Sookman and Gannon have been of service to the creative industries. But I don't believe that impugns their knowledge of the law in question. Their questioning of the opinions of consumer advocate Geist, too often put forward as fact, underpins one of the concerns that the creators organizations and leaders such as Ms. Atwood keep coming back to: the ambiguities in C-32 can only mean years if not decades of costly litigation. Maybe you think that is the way the "industries" work, but for creators we really don't want to be spending our earnings in court.


I must thank you again for your observation of the debate, creating the links, and your invitation to engage the issues with an honest analysis, free of rancor, and to think about the outcomes. It is interesting to me that proponents of free culture shun that locution . The free culture chanting for the need to sacrifice (confiscate, expropriate or steal as Atwood nailed it) the property rights of creators in order to enable innovation is redolent of the hymns to free market forces as the sole answer to economic development questions that preceded in public discourse the recent crisis of capital. Ideology gets so old. Sometimes it better to think.

Crockett said...


RE: Sookman & Gannon.

I did not, as you suggest, question their knowledge rather I acknowledged it.

Realistically though in regards to subjects that are in debate and flux, such as copyright and fair use, it is difficult to divorce your opinions from your own interests. Especially when those interests are paying a large part of your bills or are part of your stature.

I include John, Prof. Geist, myself and I would suggest even you Sandy in this 'truism'.

There is little that is all right or completely wrong in this debate, rather a tussle of competing interets.

Crockett said...

For example ... one of John's links to the "thoroughly discredited" [no rancor here] opinion of his favorite dart board target Micheal Geist by none other than James Gannon has these lines ...

"Graham Henderson of CRIA who says that the widespread usage of illegal file-sharing programs is the major deterrent for legal streaming music services in Canada."

This is just inane, does Henderson not know that that there is widespread usage of file sharing programs everywhere in the world, including the United States that has many innovative streaming services? The spread between us and the USA is a few percentage points, hardly the main deterrent he suggests. But then spin is spin.

I do not discount that there is spin from all quarters, what gets under my skin is the over-posturing of the victim all the while trying to hit that bulls-eye.

Gruesome said...

I listened to Ms Atwood intently and came to the conclusion that she has honest concerns with #c32, stating at one point that c32 should not be passed in it's current form, something I am in complete agreement with. The problem because when she openly admits she doesn't understand the bill. It was also evident that she had only a rudimentary understanding of copyright. It's one thing to ask an author or creator to testify and another to expect them to fully understand legal wording of copyright law.
I blame the committee for asking questions of that are not well suited to witness. And I am not suggesting that creators shouldn't testify.
It's interesting that if a esteemed author doesn't uderstand copyright law, how are average Canadians to understand it.
Seems to support those that believe copyright should be simpler.

Gruesome said...

John not mentioning the mp's name was a classy move, of course you didn't make it hard to find out.
Do you you really see Dean Del Mastro as a "Free Culture" proponent?
Time and again these hearings come down to the educational fair dealing and the various interpretations of it.
How is any progress supposed to be made when no one can agree on what it means.
I submit that the the exception be clarified expressly for these hearings and that clarity be put into the bill.
Any question asked about educational fair dealing must be preceded with a clearly defined meaning and answers must be given in that context.
At this point educational fair dealing just seems a waste of time that everyone is frustrated with.

Anonymous said...

Re: Lack of innovative streaming services in Canada.

Slightly OT so I'll keep it short, but wasn't it Pandora that said that the main obstacle to setting up here was licensing issues, not copyright infringement issues?

There are *many* market conditions that make Canada an *ahem* interesting place to do business.

John said...

I won't speak for Graham Henderson as he is an excellent speaker himself and more aware of the realities of professional musicians than anyone I've ever met.

OTOH, I did hear Mr. Henderson on a panel yesterday morning at a CRIA event (during Canadian Music Week). The panel discussed the continuing problem of piracy, and the ad services that support and encourage infringing activity.

The room was filled with professional musicians and filmmakers. I don't know where I've seen more piercings and tattoos in one place -- and you thought all CRIA events were filled with suits, didn't you?

The concerns expressed from working artists (and supported by Mr. Henderson and CRIA, btw) were the same -- "we want to create our own avenues for digital delivery, but the pirates got their first, they will undercut everything we do, and when you can find a Google ad on a pirate site it doesn't help at all."

Pandora's concern is more about not wanting to pay licensing rates. It's a rate negotiation tactic. I think the voices of the artists carry more weight here.

Crockett said...

John, I have to agree with you on the issue of piracy. People making ad revenue on their sites on the backs of creator's works is theft. Such individuals should be censured and fined.

Of course you would expect me to say that someone making a backup or shifting of material they have purchased [for personal use only] is not theft .. so I will ;)

I found it interesting your comment "we want to create our own avenues for digital delivery, but the pirates got their first". This is certainly true but the industry exacerbated the situation by not moving faster to counter with products and services the public desired.

Of course hindsight is 20/20 so one can't put too much emphasis on that, but the delay I think has been a disservice to artists. I believe the most effective solution today is to focus on competing (and yes you can compete with free - see itunes) rather than litigating, at least against the individual consumer.

So no John, I don't blame the Artists. In the somewhat likely event of C-32 dying on the paper this Spring, it's my hope that all sides can work together more cooperatively on our whole digital economy future. [crosses fingers]

Glen said...

Del Mastro tells Atwood that it is outrageous to suggest that educators would breach copywright law if there's no enforcement. That's as outrageous as suggesting some drivers will break the speed limit if police stop handing out tickets. Truth is, most writers have a hard time making a living from creating works that everyone enjoys. They need all the royalties they can get.

Gruesome said...

Glen, my question on enforcement is how is copyright enforced today and how will that change with a change of copyright?

Anonymous said...


John said...

Yes, anonymous braveheart,

Trust Howard Knopf to take Margaret Atwood literally and Thomas Jefferson figuratively -- and to be wrong in both attempts.

Given that Mr. Knopf is one of the advocates who has for years advised educators that fair dealing already gives them the right to most classroom use, trying to encourage them not to engage with a collective licensing structure he finds offensive, there is little surprise in finding he disagrees with Ms. Atwood on the relative "fairness" of a new fair dealing category.

That neither he nor the MP in question grasp the subtlety, and wit, of Ms. Atwood's response to the obnoxious demand for a definition is unfortunate, but also not all that surprising.

What does rather astonish me is that Knopf would quote Thomas Jefferson's insistence that ideas cannot be owned as property. Since copyright has absolutely nothing to do with ideas, but rather recognizes ownership rights over expression as distinct from the underlying ideas within that expression makes me rather nervous for the man's clients. One would hope a legal professional specializing in copyright law would have known that basic fact.


Darryl said...

Hey John, I am curious about what part of what Ms. Atwood said, that you consider figurative.

I certainly do not think it is your first quote. On her own blog she says in yet another entry "Removing authors' copyright for "education" without compensation or choice would not be "fair dealing." It is not fair (why only authors?) and it is not dealing (it takes two to deal). " which really seems to suggest that she truly sees fair dealing as something which has to be negotiated, rather than an inherent user right.

This does not even touch on the point that subtlety and wit, especially that which appears so hard to grasp, hardly seems the most appropriate mechanism to get ones point across when developing legislation. I think you give Ms Atwood too much credit.

I found this quote on her site interesting as well. "If the law goes through as proposed, it will be up to the authors to monitor the educational institutions, then take them to court if they err." Do you suppose that she believes that this isn't already the case? The truer statement of course is it IS up to the authors (or their agents) to monitor the educational institutions, then take them to court if they err."

Laurel L. Russwurm said...

It's awfully nice of you to attribute the images you used:

(images of Margaret Atwood courtesy the Parliamentary website)

These images are protected by Crown Copyright. The only way you can legally use them is under fair dealing. But if you use fair dealing, it means somebody isn't getting paid. For shame!

Anonymous said...

Re: Pandora


"Pandora's concern is more about not wanting to pay licensing rates. It's a rate negotiation tactic. I think the voices of the artists carry more weight here."

Even in light of that... negotiating with rights society does not mean piracy prevented us from launching in Canada.


John said...

Ms. Russwurm,

I'm confident in my application of the fair dealing provision. As I've said many, many times (to those with open ears), I believe the existing fair dealing provision is essential to the craft and business of writing. Professional writers understand that, and respect it.

I think you might be confusing a principled use of fair dealing with the very unprincipled attempt to expand the provision's boundaries for the purpose of further enriching institutional adminsitration budgets. For this condition, I prescribe a full dose of Copyright Board reasoning.


I'm not sure I understand why I need to care what Pandora's reasons were not. I believe the industry's claim is that the continued existence of successful and relatively unchallenged piracy sites are a serious stumbling block to the domestic development of legitimate delivery sites.

Anonymous said...


"I'm not sure I understand why I need to care what Pandora's reasons were not. I believe the industry's claim is that the continued existence of successful and relatively unchallenged piracy sites are a serious stumbling block to the domestic development of legitimate delivery sites."

Simply put the industry's claims are false. Pandora's refusal to come here isn't based on the threat of Piracy, it's based on the fact that they don't feel they can do business here due to high costs.

Therefore we can assess that *costs* are also an obstacle to proper streaming services being set up in Canada, and that blaming Piracy alone isn't the whole truth.

Anyways you can have your blog back now, and I apologize for fixating on an off topic tidbit.