Canadian Copyright

This posting comes about three weeks too late.  On September 13, the Canadian government closed submissions for its consultation on reforming copyright law in Canada.  I have been extremely busy with this issue in my official role as faculty member at TWU, but I also had personal beliefs on the issue, so finally the day before, I wrote up my response and posted it.  I put it here so you can see (I had hoped to use it to encourage others to write, but obviously, I was too late).  Please be aware that this does not necessarily reflect TWU's official position on copyright--it's my personal take.

Here's my official submission (warts and all--I never had time to edit for grammar and spelling errors, etc.):

My name is Kevin Schut.  I am a resident of Abbotsford, BC, and I’m an Associate Professor at Trinity Western University in Langley, BC, teaching and publishing on Media Studies in the department of Communications.  I am not writing here as an official representative of my institution, but because of my career, I have had significant opportunities to study and consider copyright.  I believe we are at a unique moment in the history of communication and I believe the Canadian government has an important opportunity right now to properly equip Canadian education, commerce and culture for the digital era.

Many people in our culture have forgotten the relatively recent nature of copyright and its initial purpose.  Before 1600, nobody ever saw the need to prohibit copying for commercial purposes.  The development of the printing press in the mid-1400s, however, allowed authors and publishers to develop new revenue streams previously unavailable.  Copyright prevented a competitor from profiting from someone else’s investment in a manuscript.  Early proponents of copyright and patent law, however, did not necessarily see copyright as an inherent social good—in fact, many saw it as a necessary evil.  Enlightenment philosophes valued the free flow of ideas, and believed intellectual property law stymied the social progress encouraged by sharing.  However, they grudgingly assented to copyright provisions because properly managed, this kind of law could encourage creativity and innovation by offering financial incentive and support for artists, writers and inventors.  (For a well-educated, readable discussion of all this, see James Boyle’s The Public Domain: Enclosing the Commons of the Mind, available for free at http://www.thepublicdomain.org/download/.)

In short, copyright was a response to a particular cultural and (more importantly) technological set of conditions—conditions that are fundamentally different today.  In the past, the creation of copies of books or songs or films was a business investment, because producing and distributing them required significant amounts of money.  Today, digital media and the Internet allow everyone to be a printer, everyone to be music label.  As the cost barrier to copying has disappeared, content industries have tried to erect technological barriers.  But the last three decades have clearly taught that any software protection can be broken sooner or later.  In addition, all the old format distinctions are starting to disappear: when everything is digital, the difference between an interactive book and a website and a video game is starting to become very fuzzy.  We need a new kind of copyright for a new technological and cultural situation.

My main areas of concern in the current round of copyright discussions fall into three categories: commerce and consumer issues; cultural issues; and educational issues.  To start with, I believe current copyright law must adapt to new commercial and consumer realities.  Many content industries, whose models for business arose under different technological circumstances, have insisted that legislation validate and protect the use of technological protections measures (TPMs).  This is a mistake.  It is clearly wrong to allow a business to sell copies of a movie that another company made unless the copy-maker returns a fair fee to the movie-maker.  But protecting TPMs does not actually prevent this situation.  Anyone looking to make illicit profits can find ways to break the TPMs. 

The only person inconvenienced by TPMs is the honest consumer.  In a world of digital media, people who purchase copies of movies, music, and games for personal use have reasonable and justifiable grounds for making further copies of their media products.  For one thing, copies break or get degraded, and making back-ups should be legitimate.  Products often drop off the market, meaning consumers have a hard time finding reasonably-priced replacements for products they properly purchased in the past.  For another thing, consumers should have the right to move a legitimately-purchased product from one device to another.  New media forms often obsolesce old ones, leaving legitimate collections useless.  In addition, in a digital age, the difference between a DVD and an iPod video is practically meaningless.  Ultimately, why should consumers pay for the same thing twice?  And yet, protecting TPMs allows content producers to hamper all these legitimate copying activities—assuming the consumer is honest enough to not go looking for widely available software.

The fact is that industries asking the government for protection of TPMs is the same as asking for artificial life support for an outdated business model.  There is no question that the current technological conditions are killing the established culture industries.  It will be harder to support blockbuster movie production with its huge budgets if it is easy to distribute bootlegged copies of movies on the Internet.  The illusion that many content industries are chasing, however, is that providing protection to TPMs will allow that model of business to continue.  We have seen the copyright experiment over the last decade in the United States and it is clear that draconian punishment for file-sharing and circumvention of TPMs has not stopped the destruction of the old way of producing and distributing entertainment. 

I sympathize with workers in the established culture industries: this is not an easy transition.  But asking for legal protection of TPMs is the equivalent of auto workers asking the government to ban the introduction of robotic manufacturing equipment.  The advanced mechanization of car manufacturing in the 60s, 70s and 80s was very disruptive, even painful, but the government did not stop this industrial shift.  It is not up to the government to determine business models that will work.  The fact is that as technology changes, businesses will need to change with it.  But make no mistake: if blockbuster movie or game or television production scales back (I highly doubt any of this will die altogether), something else will take its place.  People will always produce popular art, and others will find ways to make that profitable.

Note that I am arguing against the protection of TPMs the Copyright Act.  I am not arguing for the abolition of copyright.  The boundaries of legitimate and illegitimate commerce need regulation.  I simply believe that TPMs cause more commercial and consumer problems than they fix.

The second set of issues that concern me are cultural in nature.  Content producers often argue that copyright is a way to legitimate their control over what they have created.  I certainly agree with this to an extent.  The argument, however, is often taken too far.  Until the creation of copyright the notion that authors or artists owned their creations was foreign to most cultures.  Again, copyright was a concession made in order to spur creativity and innovation, not something created to lock down the use of art: creators are granted copyright in order to help culture.  The fact is, there are legitimate cultural reasons for suspending the normal operation of copyright in certain circumstances.  If we cannot critique or review or study art without fear of a lawsuit, copyright is not helping Canadian culture.  In short, we need a robust definition of fair dealing in order to benefit Canada.

In fact, no matter how creative movie-makers, game producers, radio documentary directors and novelists are, they are never truly original.  All commercial culture rests on a bedrock of non-commercial culture.  Artists of all sorts need a robust public domain and extensive fair dealing rights if they wish to continue to be creative.  Try to imagine the blockbuster 1990s that revived the Disney animation studios without the public domain: no Little Mermaid, no Aladdin, no Beauty and the Beast, no Hercules, etc.  This may seem like a very commercial example, but the same holds for more elitist art.  If creators cannot cite or use images, expressions and sound from other works of art, new art dies.  We all borrow from our language, history and cultural traditions—nobody creates out of nothing.  It should not be illegal for artists to be conscious and purposeful about this borrowing.

The final set of issues is the one closest to my profession and daily experience: the challenge of providing education in light of current copyright law.  It is a given in Canada that education should serve to enrich our culture, provide skilled workers, and help develop good citizens.  In short, the primary purpose of our schools is to serve our society.  Part of being an effective educator is learning to communicate effectively.  Since today’s culture uses a diversity of media, teachers are starting to do the same in their classrooms—and researchers are doing the same in their private study.

The current Copyright Act, however, makes it almost impossible for teachers to either use multimedia resources to their full potential or to stay within the bounds of the law.  The educational provisions of today’s law is inconsistent, complicated and full of gray areas—and frequently unhealthily restrictive.  Recorded audio, for example, is legal to use in a wide variety of educational settings, while video is not.  The provisions governing the uses of recorded television broadcasts are quite complicated, and there are virtually no guidelines for the use of websites.  Teachers are generally very busy professionals, focused on their subject material and the wellbeing of their students.  Most do not have the time to become copyright experts in their limited spare time.  In addition, the current media environment forces teachers interested in cultural currency to make constant decisions about the legality of the material they work with.  If a science teacher, for example, wants to use snippets of web-accessible video, audio or text on a daily basis in the classroom, an evaluation of copyright status should, under the current legal setting, occur with each.

In practice, this means one of two things.  Some teachers, who are reasonably well-educated on copyright and are conscientious about following rules, severely self-censor their use of media so as to avoid making any mistakes.  Based on my conversations with them, however, I believe many more teachers effectively ignore copyright either because they do not understand it or because they believe their service of the public good overrides the requirements of copyright law.  The problem of self-censorship hurts the full development of education.  The violation of copyright is a time bomb waiting to go off in a court room.

The United States has a far more progressive legal tradition of protecting educational use of copyright material.  American courts’ interpretations of fair use do not distinguish between private research (which is also reasonably well-protected by fair dealing in Canada) and teaching (which is not protected by fair dealing).  Canada would by no means be contravening international precedent if it sought to simplify the regulations governing educational use of copyright material and give broader exemptions to Canadian educators.

Many of the proposals and discussion surrounding copyright reform have mentioned the use of the Internet in Canadian education.  This is certainly a positive development, but it doesn’t go far enough.  In a digital culture, the distinctions between media are rapidly disappearing.  It makes little sense to have one set of laws governing the use of recorded audio and another governing the use of video and yet another governing the use of the Internet.  Part of proper copyright reform, then, would be to not only make the use of copyright material easier for teachers, but also to eliminate the distinction between different types of media.  Fair dealing should be defined by intention, not by technology.  It almost goes without saying, then, that allowing TPMs to restrict educational material is inconsistent, as it undercuts the intention of fair dealing. 

Whatever restrictions are placed upon schools’ use of copyright material, they should be simple, they should not be stringent, and they should be relatively easy to comply with.  Asking online educators to delete lesson plans after the completion of a course is not feasible (and almost impossible to enforce, to boot).  Requiring librarians to avoid the use of cost-cutting digital technologies for the transfer of documents is expensive, difficult and possibly ineffective.  Making teachers track down production houses or distributors to pay royalties for a broadcast from the night before is ridiculous.  The law should reflect the purpose of copyright: it is a dispensation we grant creators in order to benefit society.  Education is not commerce and it operates in order to benefit society.  The impact of copyright in this sphere should thus be quite minimal.

 

In light of the points of above, I would like to suggest the following specific reforms for the new Copyright Act of Canada:

 

1. Maintain (that is, do not reduce) current fair dealing protection of use of copyright materials for the purpose of research, criticism and review.

2. Treat all media the same for classroom purposes, and cover all with healthy fair dealing provisions.  Teachers need to use more than print, and the use of other media should be easy and inexpensive: schools in Canada are largely publicly funded, and costly levies essentially take money from Canadian taxpayers to fund commercial interests.

3. Protect creative non-commercial re-use of copyright materials.  Today’s artists mash-up and remix old materials to create new art—truly new.  As I noted above, while more traditional creators view their work as original, they are in fact doing much the same thing: drawing on the culture that went before them.

4. Allow format and time shifting without provisions that make them destroy copies.  If a consumer purchases something, they should be able to do what they want with it if their use is personal.  It is unfair and unrealistic in light of current technology to essentially ask the consumer to pay for the same thing over and over again if they want to do something else with it.

5. Do not lengthen the period of copyright.  Shorter would be better, but is probably not possible given WIPO obligations.  Creators do not create because they want their heirs to benefit from their works for fifty years after the creator dies.  Long copyrights deprive culture of material it needs to grow.

6. Abolish crown copyright.  The government is a servant of the people of Canada.  Non-confidential government publications and other creations belong to the people of Canada.

7. Above all, do not allow technological protection measures to trump fair dealing.  If the use of copyright material is fair dealing, then it is fair dealing.  Technology should not change its status as fair dealing.  This should apply to consumers, creators, and educators.

Thank you for the opportunity to contribute to this important process.

 

Sincerely,

 

Kevin Schut, PhD

Last updated Sep. 21st, 2009 at 5:00pm by Kevin Schut