New Copyright Bill coming to Canada soon...

Michael Geist, a prominent Canadian activist on copyright and related communication laws and policies is reporting (here, here, and here) that the Canadian government is working on new Copyright legislation that it hopes to release in mid-June.  Unfortunately, in spite of the overwhelming public support for a law with an emphasis on flexible fair dealing (Geist has a breakdown here, and further discussion here), the rumour is that James Moore, the cabinet minister in charge of this piece of legislation, has opted for something like the first Conservative proposal (Bill C-61), which was like the U.S. DMCA, but worse.

Does that intro sound like a bunch of gibberish to you?  Here's the deal: Canada's quite possibly going to try to pass a law that will make it illegal for you to transfer your legally-purchased DVD onto your iPod and illegal to make a back-up of software discs you've legally purchased.  Now at this point, nothing's for sure--Geist's rumours might be wrong.  But in the meantime, we have quite a few things to talk about.  I was in a conversation with someone via email this week, and the question they asked (roughly) was this: who cares?  Shouldn't people be allowed to charge for stuff they make?

Geist has a consumer-oriented response to that here.  But I'm more narrowly concerned with education (you can see my submission to the Canadian Copyright consultation here).  So here's the response I gave (with some small editing):

Nobody’s advocating a situation where everyone in the world gets whatever they want whenever they want it for free.  Whilst I personally have some problems with the concept of intellectual property in a sort of idealist sense, I recognize it has some benefits, and whether I thought this or not, the pragmatist recognizes that such opinions are irrelevant.

What Geist and others allied with him are advocating for is a far greater degree of flexibility for fair dealing.  Fair dealing does not mean free for whoever whenever.  It means reasonable exceptions to normal operation of copyright for socially-sanctioned purposes.  We already cover personal research, review, and critique.  Fair use in the U.S., however, includes all kinds of educational use.  That’s not unlimited fair use.  You can excerpt reasonable amounts of books or videos or whatever and not have to pay any royalties.  This would make our jobs as educators far, far easier.  And it doesn’t seem to be bankrupting anyone in the U.S.  Seriously, the feature film license we pay thousands for each year?  You’re telling me that 20th Century Fox is going bankrupt if I don’t pay for that 5 minute clip of a movie I show in my COMM theory class?  I’d say textbook publishers are in a different category, but reasonable excerpts are not the same thing as copying whole books.  I’ll return to this point below, though.

The other thing that Geist and others are emphasizing is the fact that copyright and fair dealing should not be tied to technology.  Technological delivery of material constantly shift, so law that is tied to specific technologies will be outdated before long.  Why should recorded music, print and video all be treated differently, as they are now (in Canada)?  But the bigger technological issue is Technological Protection Measures (TPMs) and the DMCA-style anti-circumvention provisions.  C-61 said you couldn’t break TPMs no way, no how for no reason (pretty much like the DMCA in the U.S., as I understand it).  But that means you can trump fair dealing.  If something is socially sanctioned as fair dealing it should be fair dealing, fair dealing, fair dealing.  I shouldn’t be able to trump important rights just because I can put a little piece of software on something.

A final point that people objected to in C-61 was the ridiculous complexity of the proposed law.  We hire people at the University to do copyright negotiation for a living because it's complex enough that we can't expect teachers to understand it all.  When I have to check 12 conditions in order to verify whether I can show a website in my class or not, that’s ridiculous.  Teachers aren’t lawyers and can’t be.  It’s reasonable to expect businesses to follow laws like that perhaps, but not teachers.  Education is a different category of use.

And that’s the main point to me.  You need to go back to the purpose of copyright.  It’s a dispensation society gives to creators in order to encourage creativity.  It is not an inherent right in the same sense as freedom of speech.  It’s a new social creation (only goes back to the 1600s, and only in the West) that most early commentators viewed as a necessary evil, and it has always been about doing the minimum (copyright protection) necessary in order to serve society (as we believe that creative commerce serves society).  The upshot of all this is that when copyright harms society, it needs to be curtailed.  We believe that critique is an essential social good, so when copyright harms that, we say copyright must be limited.  Education is a social benefit.  When copyright unnecessarily hinders education, it must be curtailed.  Note I’m not saying eliminated.  I’m saying curtailed.  We are not asking for the abolition of copyright, but reasonable fair dealing provisions, fair dealing provisions that benefit all educational activities.

Now to be fair, the Geist leak does not really say anything about fair dealing for education.  But there are reasons to suggest we’re in trouble.  First of all, the educational provisions in C-61 were very limited and complicated.  Second, the anti-circumvention provisions basically meant that any benefit that educational institutions got were basically neutered.  And it sounds like we’re getting C-61 redux, at least in terms of the anti-circumvention stuff.  It just doesn’t bode well.

<extended aside> The irony with all of this is that the DMCA has been a massive failure in the U.S. and we’re now about to institute a clone here.  The fact is that our current technological environment (and the associated consumer behaviour) is killing the old business models built around the old copyright regime.  Digital locks don’t work, and never have.  All the DMCA does is inconvenience scrupulously honest and well-educated consumers—who are now definitely in the minority.  Many media corporations have recognized this and are often starting to drop TPMs on their wares.  The problem with C-61 was that it was trying to artificially keep alive a failing business model from a different technological era.  When mass media production and distribution required massive outlay of capital (you couldn’t just buy a printing press or TV studio for each house!) the complicated and restrictive rules of copyright made sense—and it generally served society.  But now consumers who can’t afford lawyers are producers, creator and distributors just as powerful as the old businesses.  TPMs aren’t going to save content creators, so they’d best get busy finding new ways to make money (and they have, to be honest; there are increasing number of content providers that leverage some form of free distribution to make money).  However, you don’t have to agree with any of this to agree with my other points above.</end extended aside>

A postscript: we don’t need to be in lock-step with the U.S. on copyright (although I’d like to have their fair use provisions for education!)—every country can implement WIPO provisions in their own way.  There’s a fair amount of int’l variation on anti-circumvention, for example.  It wouldn’t be out of line to say that fair dealing trumps anti-circumvention provisions (at least, that’s what Geist argues).

Last updated May 11th, 2010 at 4:54pm by Kevin Schut