Copy Bunny Conga Line

One area, however, where I think the media companies may have more reason for optimism with streaming than Doctorow believes is with video. Music and video may diverge more strongly in regards to streaming than in other aspects of digital distribution. While storage is getting cheaper every day, high definition video remains relatively sizeable, and generally there is not as much repetition as with music, decreasing the inherent inefficiency of streaming.

You say that now. When Napster first hit the Net it was said that while music was readily available, movies were safe from copying because of their relatively large size.

And in the 1990s when the photographers were all up in arms about pictures getting copied, it was said that other arts (like music and film) were safe from copying because of their relatively large size.

And in the days of the BBS when people were swapping highly compressed GIFs it was said that full colour pictures were safe from copying because of their relatively large size.

And when home taping was killing music, it was thought that movies were safe from copying, not because of their relatively large size, but because the technology to copy movies cost tens of thousands of dollars and was available only to studios.

The only reason that hi-def movies aren’t being downloaded or streamed^[1] is because North American service providers offer such miserable bandwidth to the consumer. Hi-def will succumb to swapping, sharing and copying as soon as the ISPs realize they can make a buck by providing the bandwidth to do so.

Next, it’ll be complete libraries of music that get compiled and copied. Then the complete catalogs of the studios. “Have you copied Warner Brother’s holdings yet?” “Got ’em, but I’ll swap you Sony for Disney”.

Soon, everyone will have everything. That’ll put an end to file copying.

[1] From the “I Told You So” department: I originally wrote this as a comment on “Why Streaming is not the Answer” in 2009. A quick search of ISOHunt or TorrIndex shows that the relatively large size (10s to 100s of Gigabytes) of hi-def files isn’t slowing down file copying at all.

Jesse Brown’s Search Engine, Podcast #35: The Charlie Angus Interview

Jesse Brown has another great Search Engine interview on copyright, this time with Charlie Angus. Search Engine is released with a Creative Commons Attribution-Noncommercial- Share Alike 2.5 Canada License, so I can post this transcript which is released under the same license (and that won’t hurt Jesse’s feelings).

You can Listen to the podcast while you read the transcript.

[00:00] [theme music]

[00:15] Jesse Brown: Charlie Angus, as many of you know, is the NDP Member of Parliament who’s been the sole voice of reason in Parliament on digital issues. He’s the NDP’s copyright critic, and he’s really the only guy who’s asking tough question, loud questions, and the right questions when Jim Prentice tabled Bill C61 a couple of years back, and since then he’s been the only guy in Parliament trying to shed some
light on the ongoing secret ACTA negotiations. None of this, however, has gotten Charlie Angus a whole lot of press outside of, uh, geeky press like this. What has gotten Charlie Angus in the papers, nationally, in a big way, is a recent Private Member’s Bill he just introduced that proposes to extend the blank media levy to MP3 players. Which means that the tax we pay every time we buy a blank CD or mini-disk as we do all the time these days, would, under Angus’s
proposal, be extended to MP3 players like iPods. The media is calling it the iTax and Charlie Angus’s opponents, notably Heritage Minister James Moore, have seized upon it. And Charlie Angus has been taking something of a beating for putting forth a piece of legislation that his critcs say could result in a 75 dollar tax fee for consumers any time they buy
anything from an MP3 player to a laptop.

[01:34] Now, the outrage over the iTax has obscured another piece of legislation that Charlie Angus has introduced. It is a proposal to extend the notion of Fair Dealing in Canada, a principle you’ve heard a lot about on this program. Of course, in the States they have Fair Use exceptions which govern the circumstances in which copyright doesn’t apply. We have Fair Dealing here in Canada, it’s much more restrictive, and it’s one of the chief things that copyright reform activists have been asking for. Well, Charlie Angus has introduced a proposal to do so. But it isn’t something we’ve heard much about. I recently had a chance to correct that, and to get some clarity on this so-called iTax when I interviewed Charlie Angus in person in Toronto. Here’s how that sounded.

[02:16] [music fades]

[02:19] JB: Hi Charlie.

[02:20] Charlie Angus: Hi, how are you?

[02:22] JB: Pretty good. So explain to me the iTax.

[02:25] CA: Well, this has been a classic Canadian compromise for some time, something that the major, you know, CRIA, major record labels have never really liked. But, it was a recognition that, listen, people are copying music all the time. How do we find a monetizing stream? So, back
in the nineties they decided that for every cassette people bought, fifteen, twenty cents would go to an artists’ fund. That was included in the CDs because people were burning lots of CDs, but nobody is using those technologies any more. So the question is, where do we go to next level? I actually decided to bring this motion forward not so much because I’m interested in the technicalities of a levy or not, but because what’s missing from the conversation on copyright is two
important issues. One is, how are we going to access works, that’s the Fair Dealing, and how are we going to compensate artists? Up ’til now the debate has been lock down or the libertarian digital new world where everything should be free, but lost among those two poles is the issue that music is being copied, art is being traded, and nobody’s getting paid. So either we lock down and litigate, or we have to start looking at means to compensate. So I decided I would kick the ball up the field and see what happened.

[03:42] JB: And I guess we should frame it all with that in mind because this is a Private Member’s Bill and it’s unlikely this is going to become law. But this is a proposal you put forth and you say that it’s been missing from the conversation this question of compensation but in fact, this levy has existed, as you say, on things like blank CDs for ten years, 180 million dollars I think is the figure that’s been collected for artists. So this isn’t a new idea, you’re talking about extending it away from these CDs that nobody uses any more to things like iPods. So, what would it cost if this went through? I mean this is what you’re proposing, so what would it cost for a 64 Gigabyte iPod which is what they’re selling now.

[04:13] CA: Well, this is a very interesting thing. James Moore was out with his Twitter account immediately denouncing this killer tax, we’ll fight the tax to the death, and you know, no taxation without digital representation, or some, some crazy talk. And they threw out this figure of 75 dollars. What was brought before the copyright board in 2005 was anywhere from two dollars for small MP3 player might hold five, six hundred songs, a thousand songs, up to about 20 dollars. So that’s the realm of what’s out there. I think, when you talk about monetizing, finding a monetizing model that works, at the end of the day there’s going to be that tipping point. The consumers aren’t going to pay an extraordinary amount to access their music. But if it’s a reasonable fee, if it’s a fee you don’t really notice on top of it, I think it goes to the areas where we need to start looking at, so the levy already exists, and it has been in place. It’s been part of Canadian copyright law for some time. So I figured, well, rather than trying to invent a new form of compensation there’s one out there, let’s get the discussion on compensation going by saying we’re going to need to update this or it’s going to fall by the wayside.

[05:22] JB: OK, but just to get the brass tacks of this, uh, they are bandying about figures like 75 dollars, and then if it is based on the Gigabyte storage of the device, we’re talking about, we’re in an era now where they’re making 100 dollar drives that can hold a Terabyte of data. So if the levy is tied to the storage space we’re, we could get up there into the hundreds for this levy. But you’re saying it’s not. You’re saying we’re talking about a maximum 20 dollars.

[05:44] CA: This is, this is what was brought forward. And again, these are the fights that go back to the copyright board. Um, the 75 dollar figure is the one the Tories have been bandying about, it wasn’t in any of the proposals previously, uh, so we were, we were looking in the area two to 20 dollars. But again, we gotta get to the bigger issue. It’s all well and good to say we’re going to have access, it’s all well and good for the lobbyist to demand lockdown, but it’s not realistic. So how are we going to find a new way forward. And I think that’t the conversation we could have in Canada. We could actually move towards a progressive copyright model where we’re not suing single moms for their homes. But if we’re not suing single moms for their homes we have to find some other sources of revenue to compensate for the music that’s being traded.

[06:30] JB: But this isn’t an abstract converstation. We have the
example of the last ten years of the CD blank media copying levy to look at. And how successful do you feel that has been in compensating artists for their work as basically trying to find a way to make up for whatever revenue is lost in lost CD sales?

[06:47] CA: Well, to be quite clear, nothing is going to make up for the loss of the immense music that’s been trafficked. But it never was intended in the original levy was to say, listen, a part of the stream we will compensate for. And I think the artists have recognized and, and you know, a lot of Canadian bands are really into the new digital models that are out there, but I’ve been speaking to them about the levy, and they said, listen, you know, it’s not perfect, but we’re starting count more and more on this revenue because what else we have? We’re down to T-shirt sales to keep going in some areas.

[07:20] JB: The CPCC has said before that artists need this to survive and this has been one of the biggest sources of their revenue. Howard Knopf had a look at the numbers, and he broke it down and estimated that if every artist who got something out of this got an equal amount, the average is something like 160 dollars a year. But of course, they don’t all get an equal amount. It’s based on sales figures, and it’s based on FM radio play. So you find a situation where a band like U2 might actually do very well from this blank media levy, but a band like your old band, who might get more play on college radio and the sales are being done through little shops that don’t necessarily make a dent in the soundscape, that don’t even get counted, so it’s an odd situation where it’s entirely possible that a band like yours might have gotten 80 bucks a year, and Canadians are paying Dave Matthews very time they buy a blank CD.

[08:09] CA: Well, I think the reality with copyright is, the people who have hit songs have always done well. People who’ve had number one songs can build a home with it. And the rest of us continue to struggle in grimy bars. That’s the reality of copyright. It’s not a socialist utopian system. But I can tell you from having tried to feed my family on copyright, and it is pretty damn hard to feed a bunch of kids on, on opyright cheques. You know, artists rely on a variety of streams, the SOCAN stream, radio play, does, does the levy need to be more accountable? Perhaps, but even when you’re talking about artists who might get fifteen hundred dollars from that levy, that can make the difference between going back to the studio or not going back to the studio. That’s how enuous we are right now for so many Canadian artists in, in the music business.

[08:58] JB: Here’s a problem that a lot of people have with this. There’s an assumption that is made that music copying is what this is going to be used for. I have used mini-disks for years. That’s what we used when we went on the field to do radio work. We go through these things like crazy. And every time I bought a mini-disk I was paying, I don’t know, 25 or 28 cents, a lot of which went to, you know, Bono. Canadians I think really care about this basic concept of fairness. And in an era where devices are not so specific as that I think people just have a basic problem with the assumption that they’re going to be using any media to copy music when they may not be using it for that at all.

[09:32] CA: Well, one of the funny things that’s happened over the last week is I never met so many digital virgins in my life. Oh, I’ve never done that. Never me. I’ve got people telling me I don’t use my MP3 player to listen to copyrighted music, I listen to other things. It’s like well, what, I wonder which, I’d love to find out what you’re listening to if you’re not listening to copyrighted music. The reality of the levy is to say, listen, it’s not about every single copy is, is covering off the loss of a song. It’s saying here’s probably the only place we can find a revenue stream. It’s a small revenue stream, but everybody trades music. I trade music, my kids trade music, I buy music, I trade copies with my kids, my friends, it’s going on. So when the last week I’ve had everyone e-mailing me, Facebooking me, saying I’ve never traded songs so I shouldn’t have to pay, well, sort of like, there’s a friend artist said to me the other day, said well, I know people who don’t have kids they still have to pay into the public education system. Either we’re going to create a system that tries to find a means to compensate for the music, or we’re going to go to the U.S. model, or the European model of lockdown and litigation, and I don’t think that those are progressive models, so I think a couple of bucks on my iPod might be a good solution. It might, there might be a better solution out there, but we need to start having that conversation. And we need to have it now.

[10:52] JB: Are those the only two options? I mean, that conversation, how do musicians get paid is being had by no-one more passionately than musicians who are finding all kinds of creative ways to get paid in this new paradigm. I guess what I’m asking is, is this a problem that government can fix? I mean, we’re, we’re taking about a, such a fast moving area with technology, I think we’re only a year or two away from a point where it’s not even going to be about solid state hard drives in our pockets, but you know, your storage is going to be in the cloud, and your device is going to get it through the Internet, so you know, taxing a storage device won’t even make sense in a matter of months, potentially.

[11:25] CA: Well, I, again, I made the decision to raise issue of the levy because I think the bigger philosophical discussion has to happen. And people are looking to government to make legislative changes that could have profound implications, and I find everybody on all sides of the copyright debate tend to speak in apocalyptic language, and everybody on the other side is either the evil corporate enemy, or the evil bandit thieves, some third-world booty criminal bazaar. None of that I think at this point is helpful. I’m hoping we’re ready to have the adult conversation on copyright and you’re right, technology is changing a lot. If we brought copyright legislation in five years ago I think, I know the push for politicians was to try and pretend this was 1996 and push back the clock. Clock’s not going back. Is the levy a stop-gap measure? Probably is. But we’re not having the conversation about how artists should be paid. I know artists who are doing phenomenally creative stuff, Canadian artists perhaps more than any other group of musicians in the world, I think, have taken the Internet by force because our markets are small, because it’s so hard to travel. I mean I’ve travelled between Winnipeg and Regina and Calgary, and know how hard it is to maintain those markets. But that being said, it doesn’t compensate for the loss of music when you put twenty or thirty thousand dollars into a recording and people are making copies, you should be able to get your share.

[12:49] JB: We may never agree on this, but the idea that when an industry shift and things move around they’re not going to compensate exactly. The new ways of making money are not going to immediately compensate for what was lost. I think traditionally they’ve ususally ultimately exceeded the old way, in terms of opportunities that technology has brought out, what VHS brought to the movie inudstry. But in the short termpeople suffer, and it seems like you’re suggesting a greater role for government and creating a stop-gap measure to ameliorate that suffering.

[13:16] CA: People are looking to government right now to update our copyright legislation, and people are suggesting a lockdown, they’re suggesting searching your iPod at the airports, they’re suggesting forcing your ISP to snoop on you so that whatever you download you get the three strikes provision and you’re out. That’s where we’re going unless we can begin to say, no, the role of government is to find a way to allow access but if we’re allowing access we’re also going to have to allow something for copyrighted works. And as you said in terms of the uh, short term business models change, and I’m fully aware of what the roller piano did, and how it was a threat to musicians, and how the record player was a threat to musicians, and then radio was a threat to the record companies, I mean we went on and on and on, and each time we change. But we’re not in a short period, we’re in a very long dramatic transformation of every level of industry and the reality is, and musicians fully know this more than anyone, they’re never going to be compensated fully for what’s going on out there. They’re not expecting to be. But they’re saying there has to be some revenue stream so it’s either on the levy, it’s either going to be in, in the form of something else, or it’s giong to be in the form of the coporate, uh, lockdown, and I don’t want to go down that road.

[14:30] JB: I guess one concern I have is that, uh, like you’ve said a couple of times, the bigger question is what we’re going to do with copyright on a larger scale in this county. And I think there are some problems with the fairness of this levy, and I hope they don’t obscure whatever, uh, argument for common sense is being made in that larger question. Let’s, let’s, let’s talk about that larger question, let’s talk about Fair Dealing itself. We cover all aspects of copyright reform on this show. The parody exception is of particular interest to me, andjust bring listeners up to speed on this, Fair Use in the United States, of course, allows for exceptions to copyright when you’re making fun of stuff. And Jon Stewart can play clips of what’s happening in the Senate if he’s making fun of it. We have an exception under Fair Dealing in Canada for news coverage and criticism. We don’t have one for parody, for satire. Is that covered in this new approach to Fair Dealing that you’re proposing?

[15:22] CA: Well, the uh, the changes actually sort of broaden it so that there’s the principle of Fair Dealing because that, it’s been recognized by the Supreme Court, as the user has a right to Fair Dealing but right now it’s on a case by case basis. You have to prove it every time. We actually have in the Copyright Act of Canada 1997 that they made it legal to write on an easel with a marker if you were in a classroom. And it’s actually says that.

[15:49] JB: And they say we’re lax on copyright, that has to be written down.

[15:51] CA: I, I think we show how just, uh, retentive we are on them. Again, the Fair Dealing motion, I wasn’t too concerned about exactly how the wording was going to be. I looked around for what good models were out there, and it’s general to allow for criticism, to allow for research, to allow for parody, because tying it with the levy is to say, listen, on the last few rounds of copyright you guys have missed
out key elements, so here we are, I’m putting it out, here’s the flag, everyone can start shooting at it now. But we need to have the Fair Dealing discussion at the same time we’re talking about compensation.

[16:22] JB: Let’s talk about Minister Moore and Minister Clement. You’re the NDP’s copyright critic, so it’s your job to critise the Conservative’s approach to copyright. There is a conception, and, you know, I feel that these guys get it more than the last guy. And that we’re better off with Moore and Clement than we were were with Prentice. Do you agree?

[16:46] CA: Well, I mean, Jim Prentice is from my home town, so I have to always say something nice about him, but, um, Bill C61 was a dog’s breakfast of trying to find rules and exemptions and it was all again making the digital lock sacrosanct so you could not under any circumstance break a digital lock. I find that the Tories live in a nuance-free zone. They’re either really tough on crime, or their new thing is they’re tax fighters. So it depends on what hat they’re wearing. So the last time they were wearing the hat it was tough on crime. We’ve got to stop these kids from breaking in and stealing little old ladies’ cassettes. [laughs] Digital product. What I find funny with Clement and Moore this last week, um, in terms of the response to me, was I found it was a little juvenile. I mean, here I am in the fourth party putting out a Private Member’s Bill that everybody knows isn’t going to be debated, and there’s Jimmy with his tweet saying death to taxes, we’ll fight taxes, and uh, and I was thinking this is amazing in a way, uh, he probably inadvertently went further than the Pirate Party in Sweden has ever gone in that copyright is a tax that has to be fought to the death. So I don’t know if he thought that through, but it’s uh, again I’m encouraging Tony and James to have a, let’s put down the Tory rhetoric and war machine for a second and discuss the issue.

[18:06] JB: I don’t mean to keep harping on this, but didn’t you handthem that one? I mean, that’s a crowd pleaser every time, you know. That they’re the guys that are trying to stop the, the NDP from taxing your iPod. In all of your criticism of them up to date you’ve got to be the guy arguing common sense and appealing in that basic level to kind of, you know, Joe Public, and, and, you know, you kind of gave them like a freebie, I think there’s a reason why they seized upon that bill of yours.

[18:28] CA: Well, I actually think it was dumbing it down to an even lower level than we’ve been in the past, where I mean, I’ve alwaysspoken about the need to represent the public interest. But when the Conservatives are saying, listen, we already have government programs for artists, so we’re not going to, we hate taxes. Are they saying that because we have the Canada Council means you can do whatever you want, downloading whatever you, you think. I mean, that’s, that’s a very libertarian argument that the Conservatives on the other hand with their tough on crime approach wouldn’t support. And so sure, they want to get the one up on me, but it’s not the level of debate we need on this. We’ve got to get serious about this. I’d like to sit down with Tony Clement, sat down with him a number of times, talked about copyright, but I want to know that at the end of the day they’re looking at the big picture and I’m never convinced with these guys that they are, but I’m always optimistic that somebody after all these years is going to see common sense and figure we’ve got to start moving forward instead of trying to go back.

[19:30] JB: Do they get it, at least? I mean, it seemed like Minister Prentice when he was in charge of this didn’t have a basic understanding of the technology itself. And Moore has, has made a big show of putting an iPod on his web page and he tweets and, uh, he seems to be advertising the fact that they are much more digitally literate than their predecessor. Do you get that sense?

[19:48] CA: Well, I mean they’re, they’re certainly putting on a big show. I mean, James is the iPod minister, he’s the guy who can say everything he knows about the world in 140 characters. So that’s, that apparently makes you on Parliament Hill really hot and smart. But at the same time we have the government over in Seoul negotiating on ACTA, provisions that would completely undermine Canada’s right to establish new copyrights. So what is it, boys? Are you guys out there with your 10,000 songs on your iPods fighting for digital rights and death to taxes, or are you over in the ACTA negotiations, supporting some very regressive moves that could really undermine the depth, development digital economy. I’d like them to come clean with this, and say where they’re going in terms of digital planning and where they’re going to go with legislation.

[20:34] JB: Is it possible they don’t even know? Is it possible that while they were trying to kind of push forward the ball on copyright and take these consultations into a new bill, that the whole question got swiped from them by ACTA and, I guess, handed over to Peter van Loan?

[20:47] CA: I think very my, my real concern is that there are two plays going on, as you point out. One is they, they realize that bill C61 they were way off base, nobody bought into Bill C61. It was DOA the day it was announced. So they went and they did this slap-dash tour across Canada and they heard people are active, people are passionate, everybody’s involved in copyright. So they’ve been working on how to make these provisions. My sense is they’re probably going to cool down a bit on the digital locks. Uh, there may be something in there for FairDealing. I don’t know what they’re going to do in terms of notice and notice, or notice and takedown. But, the PMO has another agenda as well, which is, we have to look very close to their U.S. allies, and the U.S. trade lobby puts enormous pressure on countries. Especially Canada, because they see us as the fifty-first state, to fall in line with the DMCA style legislation. So, I feel there is a bit of a schizophrenic movement, and I don’t think the Conservatives are really sure yet where they’re going to come down. The bill’s supposed to come down this, before summer, but I’ve heard that so many times that I’ll, I’ll believe it when I see it.

[21:50] JB: And, where do you think ACTA is going? I mean, just this week the entire document was leaked, it’s funny how they’re trying to lock down the world’s digital usage and they can’t lock down their own legislation. Are the fears about this justified? Is this going to be something Canada signs and if Canada signs it, is it going to get ratified into law?

[21:09] CA: I’m very disturbed about ACTA because I feel if you’re going to negotiate international treaties like WIPO you have to have the NGOs there, you have to have transparency. How many rounds of ACTA have we gone through and they’ve tried to keep it from being transparent? Whenever you’re hiding something, whenever you’re doing it behind closed doors, that tells you, the public, that they’re people who are goes behind closed doors means do not want to be seen. And I think it’s the U.S. entertainment lobby is driving this, they’re trying to get as far as they can before they get smoked out. I love what the European activists called it, the, the vampire solution, that is, we start to shine light on them until wither up and they all have to crawl back to their corporate holes. But there are a number of very disturbing potential provisions in ACTA and it would have profound implications for Canada’s training abilities if the Europeans sign on to something, the Americans sign on to something, and we’re trying to chart our own way. They can put enormous pressure on us at that point. That being said, I think ACTA has hit a few serious holes and, um, I feel the more the public get involved, the more ACTA is either going to have to change or it’s going to be made irrelevant.

[23:18] JB: Charlie Angus, thank you for finding the time to talk to me today.

[23:21] CA: Thanks a lot for having me on.

[23:22] [theme music]

[23:25] JB: Search Engine is produced by me, and a community of listeners who are fully aware of what the roller piano did. E-mail me with freelance pitches and story tips at jesse@jessebrown.ca. The show’s log is at tvo.org/searchengine and I’m on Twitter @jessebrown. This show is released with a Creative Commons license so you don’t need a parody exemption to make fun of it, but you will be hurting my feelings. Quick note about the video podcast I keep promising you. It’s done! It’s been done for a while. I think it’s our best one yet. But there are some editorial complications and I’m doing everything I can to get it online as soon as I can. The next audio podcast will be up first thing Tuesday morning.

[24:10] [music fades]

[24:16] [end]

Here is my submission to the Canadian Copyright Consultations.

Submissions have to be submitted by Sunday,13 September — that’s tomorrow as I write this.

I declare this text to be in the public domain — feel free to cut, copy, paste, use, re-use, recycle, reduce, or expand as you see fit, no attribution necessary. Just get your submission in!

–Bob.

Author: Bob Jonkman
E-mail: bjonkman@sobac.com

To:
info@copyrightconsultation.gc.ca

CC:
The Hon. James Moore, MP, Minister of Canadian Heritage
The Hon. Tony Clement, MP, Minister of Industry
The Hon. Harold Albrecht, MP
submissions@faircopy.ca

1. How do Canada’s copyright laws affect you? How should existing laws be modernized?

My name is Bob Jonkman. I am a software author and technical writer, and make use of copyrighted material in my work — reference documents, purchased commercial software, free Open Source software, and freely available software with various license restrictions. I am married to a television screenwriter, my sister is a journalist, my father-in-law is a musician and song writer, and my brothers- and sisters-in-law are fine artists, musicians, and authors. Copyright law affects me and my family in how we earn our livings at work, and how we entertain ourselves at home.

I am not a lawyer, or an expert on copyright and intellectual property law. As a technologist, I have been following the copyright arguments online, and feel qualified only to comment on how copyright should work with technology, and how technology affects the way copyright can work.

2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time

3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?

5. What kinds of changes would best position Canada as a leader in the global, digital economy?

The last four discussion points are very interrelated, and rather than repeat myself for each point I’d like to answer these questions for each aspect of copyright law that concerns me. Overall, I favour shorter copyright terms, no criminalisation for non-commercial infringement, no criminalisation of circumvention of technical protection measures, and no media levies. At the same time I think there can be a strong copyright law that favours creators and content owners, while not adversely affecting Canadians buying or using copyrighted material.

Length of Copyright: Less copyright is good copyright. With current terms extending fifty years after the author’s death, most works are obsolete by the time they fall into the public domain. This is especially true for technical documentation and software, where the effective usefulness may be measured in months rather than years. I would be in favour of a copyright term of 20 years, measured from the time of the creation of the work, but not to exceed the life of the author. An estate should have no copyright over a deceased author’s work — copyright is a right to exclusive copying, not a right to eternal income.

Copyright Registry: It is difficult to determine if a work is under copyright if the author is not known. With a copyright registry there is a clear and definitive determination whether a work is under copyright — if it is not registered or the registration has expired, the work is in the Public Domain. The National Library of Canada already collects all works of Canadian authors (and composers and musicians), and would make a good repository for a copyright registry. Registering copyright should be done at no cost to the author, to avoid disenfranchising the less wealthy. I realize that a copyright registry is not a popular option, and may not follow international guidelines, but here Canada has a means to create a unique solution for Canadians.

Crown Copyright: There should be no Crown Copyright. The Government of Canada and the provinces produce many good, important works, which should be placed immediately in the Public Domain. These works are produced with tax dollars, so, in effect, Canadian citizens are already the owners of these works. While purchasing government publications at the government bookstores may offset printing costs, reproducing them electronically and making them available on Web sites incurs no additional costs. With free distribution those government publications are no longer available only to those with disposable income. From the technology perspective, once government data is freely available many new online services can be created (eg. Geospatial data for mapping applications), which are now restricted by Crown copyright.

Fair Use, Parody, Satire, Criticism: The Canadian Fair Dealing exceptions to copyright are too restrictive. This makes it impossible to provide commentary or criticism in context, or any parody or satire on a work at all. Copyright law should have clear language to allow educational excerpts for parody and satire, and quoting for criticism. Educational institutions should have broad exemptions to be able to quote from copyrighted works where that work is under study, but not for freely copying reference materials. Open Source or Open Documentation licences for reference material is a good alternative, and those works can still be covered by copyright.

Format Shifting, Time Shifting, Location Shifting, Personal Use: Activities such as copying a CD to an MP3 player, recording a TV show for viewing at another time, or uploading purchased music to an Internet service to make it available to the purchaser anywhere online are all taken for granted by Canadians in the age of computers. There needs to be clear language in copyright law that making a copy for personal use is completely legal. That creating backup copies of software, digitital media or works stored in electronic formats for personal use is legal. That changing the format from text to speech or braille is legal. With clear legal standing, many new online services can be created, which today are avoided because of their potential illegality (eg. An online service which lets me pick up my digital TV subscription anywhere online, or online personal backup repositories).

Digital Rights Management (DRM), Technical Protection Measures (TPM): The circumvention of DRM and TPM must not be illegal, and the tools to perform circumvention must not be illegal, and the dissemination of knowledge to circumvent must not be illegal. The "Content Industry" tries to protect its copyright by making it difficult to make copies. Sadly for them, this is always ineffective. Even when circumvention of DRM and TPM is itself made illegal, the people who make illegal copies have no qualms about illegal circumvention either. The only harm is to people who purchase media with DRM or TPM, who are prevented from exercising their personal use rights for format shifting or time shifting. The company that holds the keys to DRM is above the law, and can remove legally purchased material by revoking the keys. I don’t advocate making DRM or TPM illegal — let those who want to apply DRM and TPM to their material do so. Their competitors who publish material without DRM will quickly out-sell them.

Lawsuits by Big Media: It seems to me that the "Content Industry" is driving much of the efforts to change copyright law. As prominent Canadian lawyers like Howard Knopf have noted, Canadian copyright law is plenty strong already. Content distributors (not authors, musicians or filmmakers) are abusing copyright law as a revenue source — it is far more lucrative to threaten and settle for thousands of dollars, or to sue and be awarded millions of dollars, than it is to actually create content. Copyright law must clearly state that commercial infringement is a criminal act, but non-commercial, personal infringement (where there is no financial gain) is not. Canadians should not live in fear of criminalisation merely for listening to music, or letting customers in the waiting room listen to music. Companies should be liable for frivolous lawsuits — making a false claim of infringement should incur far heavier penalties than those of the alleged infringement.

Making Available: It is not a crime for me to leave my bicycle unlocked — the criminal is the one who steals it, locked or not. By the same token, making copyrighted material available should not be illegal, but infringement of copyrighted content should be (with appropriate penalties depending on whether such infringement is commercial or non-commercial).

Carrier Liability: It is easier to identify the service provider hosting infringing content than the person who puts it there. Carriers should not be held liable for the actions of their customers — to use the bicycle analogy again, the parking facility is not responsible for the bike theft.

Three Strikes, Graduated Response, Notice and Takedown, Notice and Notice: It is easy to identify the Internet Service Provider hosting infringing content, but ISPs must not be put in the position of enforcers. If there is evidence of infringement then there are already mechanism in Canadian law to stop it. The law must clearly state that accusations by the "Content Industry" without proof will not result in denial of Internet service for Canadians. The content industry can report infringement to law enforcement authorities, just like any other infringing activity is dealt with in other venues. Internet service is too important to Canadians to allow the content industry to arbitrarily cut it off. Notice and Notice would be a polite way to inform someone of possible infringement, and is the right Canadian thing to do.

Of course, if Making Available is no longer an infringement of copyright, then there is no need for Carrier Liability, Three Strikes, or Notice of any kind.

Media Levies, ISP Levies: There should be no levies on media at all, nor should Internet Service Providers be required to collect levies. As technology progresses, more and more material will be available digitally. It seemed to be a good idea in 1996 to collect a music levy on CDs to offset the cost of music infringement. Unfortunately, the media on which the music levy is applied can be used for many other purposes — data storage, movies, games, software, coasters. The media levy is improperly collected more often than not. And levies cannot cover all the content available — today movies, books, newspapers and games are all available digitally too, and there are many more media capable of holding digital content: portable hard drives, solid state thumbdrives, iPods, cameras, phones and Blackberries. The amount of digital content will only increase, and new digital media will be invented. New Creative Content licenses on content are also becoming popular, which the creators explicitly want to be free. Paradoxically, collecting a levy is both overly broad and inadequate at the same time.

Secretive international agreements, eg. ACTA: Open government is good government. Inviting Canadians to submit their thoughts on copyright has sparked a national interest in the process of lawmaking, and the workings of Canadian parliament in general. Canadians have been given a direct, effective voice in how their country is governed, a textbook example of participatory democracy. Unfortunately, at the same time Canada is participating in the Anti-Counterfeiting Trade Agreements talks, which threaten to undermine all the work being done on copyright reform. Not only are Canadian citizens themselves excluded from these talks, it seems foreign interests will be dictating how Canada should form its copyright, trademark and other laws. Please ensure that any negotiations of this type are publicly reported, and that Canadians’ views on copyright are represented. If Canada can participate in these negotiations only with the condition of secrecy, then decline to participate. As these copyright consultation submissions show, Canadians are perfectly capable of designing their own copyright law.

Thank you,

–Bob Jonkman.

[Added 8 October 2009: It seems my copyright submission was posted on the Copyright Consultations web site on 2 October 2009]

Because Pigs Like Music Too

Every article I’ve read suggests that this is something that either should be, or shouldn’t be illegal, but that either way bopaboo is going to get their pants sued off by Big Media. The problem is that they all view the music files as a tangible good, as a property that doesn’t even belong to the person who possesses the item.

bopaboo is going about it all wrong too. Rather than focussing on the buying and selling of the files, they should be viewed as a service for getting money into the pockets of the musicians. Income brokers, if you will.

Some of us really do want to pay the artists whose music we listen to. But for the most part, individuals have no easy way of doing that directly. The traditional way is by buying a CD, for which the payment eventually works its way back through the distribution chain, the CD manufacturers and Big Media’s deep pockets, eventually paying the artist a few pennies. And that only works if the CD is available in stores, still in the catalogues, and not choked to death by DRM.

bopaboo can bypass all that.

For example, Bruce Houghton tells us that he sold a file, bought another, and then sold it again all in the space of a few seconds. This is great! Every transaction that’s made on bopaboo should result in more money in the pockets of the musicians.

Not only is it a direct way of paying musicians, it’s a lot greener than driving to the record store, buying a piece of plastic (that’s stored in a plastic container wrapped in plastic, and probably carried home in a plastic bag). It’s faster to get the music on your digital media player, since the files from bopaboo are already in digital format. Since bopaboo is planning on watermarking files to avoid duplicate uploads, hopefully they’ll complete all metadata too, so that any purchased files will be more complete and accurate than anything that can be downloaded from the P2P networks.

Four value-adds for the price of one digital file. Too bad the bopaboo Vice President of Marketing isn’t pushing that a little harder.

–Bob.

Update 6 November 2011: Bostinnovation reports an upstart new company, ReDigi claims to be the world’s first online marketplace for used digital music. Sorry, ReDigi, you’re only three years late to the game.

Because Pigs Like Music Too by left-hand is used under a CC BY-ND 2.0 Generic license.