Wednesday, June 27, 2012

copyright reform in the Senate

Yesterday, I had a marathon day of copyright talk. I was on a plane to Ottawa at 7:30 in the morning, on Parliament Hill in the Senate Committee on Banking, Trade and Commerce by 9 a.m., presenting to that same committee and answering their questions between 10 and 11 a.m., listening to other presentations in the afternoon, and then back in Toronto by 4 p.m. The Canadian Senate is currently doing  a marvelous job of re-examining all the issues that went into the creation of Bill C-11, the Copyright Modernization Act, recently passed by Parliament.

Witnesses to Parliamentary and Senate committees are generally given five minutes to present their opinions which, of course, is not very much time at all to summarize a concept as complex and divisive as copyright reform. I chose in my presentation to describe how I as a professional writer view copyright, and to focus on what I see as the most dangerous and destructive of the recent changes to copyright that were included in the Bill. To be clear, and I do mention this in my talk, I think the government did a wonderful job stickhandling this bill through development, consultation and debate. They are to be congratulated for succeeding at completing a round of copyright reform where many governments before them failed.

You can see the full round of testimony and Q&A on the Parliamentary website at this link I recommend especially that you also watch the presentation by Music Canada president, Graham Henderson (known to his friends as Mr. Margo Timmins). Mr. Henderson's talk about the effect of piracy and copyright reform delay on Canada's musicians shows just how crucial strong and flexible copyright laws are. My own testimony begins at the 1hr 19m mark of the broadcast, with plenty of Q&A interplay starting again at the  1hr 36m 45sec mark and beyond.

 Here is a transcript of my opening remarks to the Committee yesterday:

Good morning. I want to thank you, Senator Gerstein, and the other members of the committee for inviting me here to present to you today. I am honoured to share my perspective.

My name is John Degen, and I am a professional writer. I have worked for well over two decades now as a publisher, an editor, a freelance journalist, a technical writer, head of a national arts service organization, and chair of various boards of directors in the sector

My current day job is as the Literature Officer for the Ontario Arts Council, but I am presenting here today first and foremost as an individual writer of Canadian literature. I have published two books of poetry, countless newspaper and magazine articles, and one novel. I’ve been shortlisted for and received numerous awards for my writing. I am this close to completing my second novel and another collection of poems, and I would really, really like there to be a workable copyright structure in place for these works when they arrive in the world.

Far too much of what we hear about copyright these days references the so-called “users”, but there are no greater users of copyright-protected material than writers and publishers, and our user rights are tied very closely to our rights as creators.

Copyright has never once gotten in my way or impeded my work as a user. During university, I used the fair-dealing exception for my own research and private study, and I continue to actively quote and reference the copyright-protected works of others in my own work with absolutely no concern or confusion about where the legal lines are or how far across them I may venture.

We are all creators, and everyone has creator rights under copyright. We must not mistakenly rob our creator selves to make things a little bit cheaper for our consumer selves. Change the balance of copyright, and we rob everyone in order to reward a privileged minority of consumers.

The process of copyright reform in Canada over the past decade has been painfully slow and often interrupted, mostly because of the incessant delay and confusion tactics of those who object to the very idea of copyright protection. I congratulate the government for weathering the free culture storm and actually getting legislation this far. That in itself is a significant accomplishment.

That said, I worry about the excessive focus on exceptions that characterizes this bill. Too many exceptions to the law and it becomes more exception than law.

I think of copyright law as a fence – a pretty, nicely constructed, non-threatening fence. And a fence is a structure designed to define property. A fence is not, in fact, a series of holes through which folks can figure out ways to trespass on property. By concentrating too much on the holes, and how one might use them to trespass, C-11 risks making the pretty fence of copyright completely irrelevant.

I don’t have much time, so I’d like to concentrate on one gaping hole in the fence. The new fair dealing category of education. This is an entirely unnecessary change. As I have said, existing fair dealing categories of research and private study have served Canadian students perfectly well for many decades. There is no problem that needs fixing with a new exception.

Where copying in education goes beyond those categories – and years of photocopied works in coursepacks tells us that educational copying very often exceeds those existing categories - we have an affordable collective licensing system in place to make sure creators are paid royalties for educational copying.

You have no doubt been told that the new educational fair dealing category will not damage that collective licensing structure – and I have the feeling you will hear that again here today - but it already has damaged collective licensing. A number of post-secondary institutions have already withdrawn from collective licensing and have specifically cited C-11’s new exceptions as the reason for doing so. This licensing structure represents tens of millions of dollars per year for Canadian writers and publishers. It is payment for actual copying beyond current fair dealing. If the educational category stays in C-11, we already know the result of that new dealing, and it is decidedly not fair.

The educational exception is extremely short-sighted. The very same students who, we are told, need to not pay for educational copying over the four years of their degree program will eventually need to be paid for their own creative work… for the rest of their lives. As I have said, we are robbing our creative selves to temporarily please our consuming selves.

If I could request one thing from this chamber in passing this bill it would be this: remove the short-sighted and completely unnecessary educational exception. Our copyright fence has enough holes in it.

Thank you for your time and attention.
The Senators around the committee table were a universally interested and focused group. I have nothing but respect and praise for the work done by the Chamber of sober second thought. After the cameras went off, I had many an impromptu question and answer session with committee members who needed further clarity on aspects of copyright law and current practice. Well done Canadian democracy!

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Elizabeth Windsor said...

Very interesting discussion--thanks for the post. I was thinking about Ms. Noel's comment about "winners and losers." She seems to indicate that strong, comprehensive copyright would lead to artists as winners and consumers as losers. I guess I wonder if strong copyright can also lead to winners all around--isn't the fact that a consumer has access to an artistic product winning? Is "losing" equated to "paying" in Ms. Noel's argument?

Sandy Crawley said...

Good point Elizabeth. The bald inaccuracy of the MEC counsel's premise: that C-11 provides clarity was the first thing that evoked intemperate impulses in my normally courtly speech. Then the suggestion that without the exception for education students and teachers would not be able to exploit digital technologies without fear of infringement ignored the reality that John had noted moments before: that there is a perfectly legal and affordable license available to free them up.