Canadian law professor Stephen Waddams, in a well-regarded book about how we think about law, wrote that when a dispute arises about intangibles, such as copyrighted works, information, or… time,

“[T]he claimant is always eager to categorize the claim as proprietary. Thus, the conduct of the defendant is apt to be described by claimants as piracy, highway robbery, and brazen theft. This is rhetoric: the taking of a photograph, the re-broadcasting of television signals, the use of confidential information, or the copying of a design cannot, in fact or law, be piracy, robbery (on or off the highway), or theft, and if it were any of these things, the rhetoric would be unnecessary…

[...] Describing someone as a thief or trespasser is a metaphoric step in gaining property rights, and not the result of having a property right in the first place. If one already had a property right, the property owner would sue for violation of that right and would not have to strut around… blaring loudly about “piracy.”

[...]

Copyright owners [describe] their right as “intellectual property.” The purpose of advocating something as a property right is to take it outside of the need for any empirical, social justification. As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified. Those who own property rights are entitled to hunt down unauthorized users as free-riders, as criminals, as a threat to polite society just as surely as who break into our homes and steal our cars.

Copyright law isn’t about theft and clearly fenced-off property. It’s a set of social relationships between creators and the public, granting creators certain exclusive rights, for a limited time, for the benefit of everyone. Abusing the theft metaphor shifts the focus away from the fundamentals of copyright, making it difficult to have any sort of meaningful or fruitful discussion about copyright.

I think it’s possible to present an informed and intellectually honest case for stricter copyright laws, but table-thumping about how copying is stealing is neither of those things.

The post was in response to table-thumping by some members of the community that, “there’s no grey area, it’s theft,” and that “it is now completely possible for ISPs to identify and eliminate illegal file sharing.” It could be interesting if those folks show up in the comments…

When I tell someone that all of my recordings are downloadable for free, I’m often asked, “but… how will you make money?”

“Well,” I’ll respond, “since it doesn’t cost me anything, I may as well let people share and listen to my music so that they might connect with it and become interested in the associated scarcities—physical goods, the creation of new music, authenticity, personalization, live performances, etc… It makes more sense to charge for the scarce things than for the abundant. People need to hear and like music before they’re willing to buy, so I want people to download it.”

“Okay,” a musician might respond, “and you still have royalties and licensing.”

The fun begins: “Er… no, actually, my music is available royalty-free, even for commercial use.”

“Huh?”

“Yep,” I’ll continue. “There are only two requirements: attribution, and that derivative works remain under the same licence. Otherwise, people are free to do what they want.”

At this point, the person I’m talking to is either incredibly curious, or convinced that I’m certifiably insane.

Why on earth would I do this?

Copyright Conundrum

Copyright is supposed to provide an incentive for authors to create because we, as a society, see a benefit in more works being created. However, it’s been radically expanded in both depth and breadth. Unlike the original 14-year terms, copyright now extends well beyond the author’s death; works used to enter the public domain within a few decades, but now it takes a few generations. Also, it used to be that copyright only regulated large corporations—you needed a printing press or a broadcast tower to trigger the law—but now it affects the everyday activities of anyone with a computer.

It’s become an astonishingly unprecedented restriction on our culture. Can you imagine if Shakespeare had to negotiate licensing agreements for each of the stories he repurposed? Yet, some seek to criminalize sharing and we must hire lawyers to get permission just to build on the culture around us. We must pay [PDF] for the privilege of dancing to copyrighted music. James Boyle, author of The Public Domain, said that “we are the first generation to deny our own culture to ourselves.” Society has become too focused on the unnatural notion of “intellectual property.”

20th-century culture was largely passive and read-only—a broadcast culture. But it’s wonderful and natural that we seek to reinterpret and build upon the culture we find around us, and it’s exciting that digital technology makes it easier. Creation is a fundamentally social act—not a solitary one—and its social dimension is something to be celebrated; it’s a beautiful expression of our humanity. I embrace an active culture with which we all have the freedom to engage… but current copyright law makes that illegal. James Boyle also points out that “no work created during your lifetime will, without conscious action by its creator, become available for you to build upon.”

As a creator, I’ve taken that conscious action to set my work free.

Free Culture

I use a Creative Commons (CC) Attribution-Share Alike (BY-SA) licence for all of my music and writing (including this post). CC BY-SA is a free licence—not free as in price, but free as in freedom. A free culture is the opposite of a permission culture: anyone has the freedom to use, share, remix, cover, rewrite or adapt my music.

Now, “remix” can be a funny word for songwriters. For some, the immediate word association is “techno,” but derivative works can include music videos, films, new songs, covers, as well as recordings that are “remixed” in the strict technical sense. I can also take freely licensed photos from Flickr to use as artwork for my songs. “Free culture” isn’t about quirky viral videos and the responses they inspire, but the broad spectrum of possibilities when freedom and collaboration can scale. Using a free licence opens up new potential for creating art and connecting with fans by removing the legal barriers to artistic freedom and widespread collaboration.

Commercial Use

Free licences allow commercial use: my music can be sold—by me, or anyone else—and I’ve waived the right to collect royalties. This was by far the biggest hurdle.

Most CC licences aren’t free. I initially used a Noncommercial (NC) licence with my band back in 2005—that seemed like a no-brainer at the time—but I later became convinced of the problems with NC restrictions. For example, NC restrictions limit derivative works to the realm of the hobbyist; once money enters the equation, NC licences still present a permission culture (hence their non-free status). Plus, NC restrictions rule out many basic uses you might want to allow: a blog with ads or a non-profit fundraiser could both qualify as commercial, and a remix of your own NC music by someone else is off-limits to you commercially. NC restrictions don’t allow a free culture to flourish… but, they do leave the door open for music licensing opportunities.

Giving up the prospect of royalties and licensing was hard. Ultimately, I decided that free culture and new media were more important for me. Copyright restrictions apply to bloggers and webcasters as well as radio stations, and SOCAN collects from large corporate radio, but also from kids’ gymnastic clubs and buskers. I’d rather focus on free culture and the Internet as a passion and competitive edge than be confined by a read-only, broadcast-based permission model. Royalties make as much sense on the Internet as they would in a conversation; it’s not broadcast, it’s a communications medium. I’ve decided to go the free culture route with the Internet in mind, even if it means no royalties from traditional mediums.

Exploitation

CC BY-SA is a “copyleft” licence—meaning, all rights reversed; it imposes a copyright restriction against restricting people: all derivative works must be released under the same licence. Someone is free to include my music in a video and sell it, but the derivative work must also be BY-SA, so I’d be able to profit from the derivative in the same way that people can profit from my original. It’s mutually beneficial. (If someone wanted to use my work without “sharing alike,” e.g. a TV show, with many other rights holders involved, that’s one case where traditional licensing is still an option.)

In terms of someone else just selling my stuff (e.g. CDs with my music), I’ve come to view that as an opportunity rather than a liability. If Sony wanted to distribute my music, with no cost or contract on my part… who am I to complain? They’d be helping me. CC BY-SA filmmaker, Nina Paley, argues that when others make money off your content, it’s free market research. “If any [competitors] do exceptionally well, I’ll know what merch I should be selling,” she says. Paley uses the Creator-Endorsed Mark to signal to consumers which distributors are actually sharing profits with her. Brad Sucks, a Canadian BY-SA musician, has also found ways to profit while allowing commercial use.

If you’re focused on innovating and monetizing real scarcities, allowing commercial use simply presents new opportunities.

Moving Forward

Licensing my music freely was a huge decision, and I’ve only scratched the surface of my reasoning here. I may have closed many doors, but I’m excited about the doors I’ve opened. This approach isn’t going to work for everyone, but with artists like Nina Paley and Brad Sucks paving the way, I’m committed to exploring how it can work for my music.

Read the comments on Roots Music Canada

It’s just that I’m so incredibly excited and energized right now. I’m starting to move on a variety of really cool projects and endeavours.

A little over a year ago, I claimed I was about to “up the diversity” on this blog. Better late than never. Here’s me committing to actually begin talking about a Catholic case for free culture. I have been giving it a lot of thought and making lots of notes, but I just need to get over the urge to write an essay instead of blog post so that I can start getting the ideas out.

The other theme I hope to explore in depth is the full potential of a true free culture approach to transform music. I’ve had some fascinating conversations with Nathan Simpson, Roman Verzub, Matt York and Josh Newman, and I’ve been putting the pieces in place at blaise.ca/music to start turning some of these ideas into action. I plan to expand on this at length in future posts.

I feel like these two ideas will be prominent themes in much of what I do in the next few years, and beyond.

Then, there’s the work I’ve been doing on the Drupal Creative Commons module and, more recently, the new Creative Commons Canada website (hope to have something to show soon…), among many of the other cool things I get to do through Alleyne Inc. My band is showing signs of life again, and I’ve been gigging on violin. I’ve also been part of a great team with the University of Toronto Students for Life, and I’ll be putting on another pops concert with the Hart House Chamber Strings in February. The day after that, I’m headed to Philadelphia for a week-long immersion course with one of the leading scholars on the Theology of the Body.

Oh, and I’m getting married next summer.

I’m hitting the release candidate stage for version 1.0 of my life. And there are a lot of things I’m going to create.

This is as close to pregnant as I’ll ever get.

I am teeming with desire, overflowing with a yearning to release this energy, to create something beautiful. So overwhelmingly fertile, I strive for that moment of giving birth in beauty. Overcome by the potential for real unity, I move forward with purpose and resolve, with being and intention, in search of the complete, of an expression of a truly generative love.

This is creativity. This is sex. This is beauty.

More to come…

We were just talking about how SOCAN, the Canadian copyright collection society, was going after gymnastics clubs for kids using music in their practice routines. Now they’re getting some well-deserved attention for other antics. Michael Geist explains how SOCAN tried to keep its submission to the government copyright consultation secret. The organization apparently requested that its submission not be posted online, even though that was part of the consultation process. The government made it available anyways, but only by email upon request. Of course, it’s now available online elsewhere [PDF].

SOCAN’s recommendations aren’t surprising. They call for a making available right (article 22 of the submission), a broadening of the private copying levy (article 30), anti-circumvention provisions (55-56), notice-and-takedown (59), copyright term extension (60), and no further exceptions to copyright (34, 48). But rather than outright declaring war on consumers, they copy the language (poorly) of those seeking more effective copyright reform. For example, they claim that the “rights of users and creators” are already “balanced” because “the Copyright Board of Canada provides a fair mechanism to set the royalty” (45) — someone had better tell the gymnastic clubs! Another great example: They want to expand the private copying tax levy to digital audio players so that it’s “technologically neutral.” (11) No word on when they’ll want it to apply to hard drives in general. SOCAN also repeats the ridiculous argument from the Toronto copyright townhall that “unwarranted” fair dealing provisions would mean asking creators to “work for nothing:”

Copyright amendments must not set up unwarranted exemptions, or otherwise limit the copyright royalties paid… If you deprive SOCAN’s members of copyright royalties, you are basically asking over 35,000 Canadian individuals to take risks and work for nothing. That’s not realistic, and it’s not fair. (34-35)

It’s just laughable to suggest that more flexible fair dealing (i.e., something like the American concept of fair use) would mean artists not getting paid. Do artists “work for nothing” in the U.S.? Though, it should be no surprise from an organization that claims that, if you use a Creative Commons license, you “won’t get paid” and your work may become devalued. To a collection society, getting paid can only mean royalties, and the value of music can only mean… well, royalties.

Best of all, they seem nervous about Industry Minister Tony Clement, who’s given some indication that he wants to craft forward thinking policies. SOCAN recommends that the Standing Committee on Canadian Heritage have sole responsibility for copyright reform (article 66). The Heritage committee is involved in the process, but as Geist points out, this recommendation betrays some discomfort with Clement and the Industry Committee, since the Copyright Act clearly grants the Minister of Industry responsibility for copyright. So, first, we get a laundry list of maximalist demands using the language of “balanced” copyright reform, then a suggestion to ignore the Copyright Act and exclude the ministry they’re not comfortable with (you know, the one focusing on the economic concerns) from having any responsibility in reform? No wonder they wanted to keep the submission secret.

Read the comments on Techdirt.

Free Doesn’t Mean Devalued:

The concept of zero took ages for societies to recognize, let alone understand. Mike has explained before how it’s been a stumbling block in economics for some libertarian and “free market” types more recently. People who think about economics in terms of scarcity get upset when abundance pushes price down towards zero, as if the economic equation were broken. But if you flip the equation and think of it as a cost of zero, you realize that the trick is to use as much of those abundant goods as possible, adding value to complementary scarcities for which you can charge. Zero doesn’t break economics, it just requires a different approach.

But artists and other creators hit a different stumbling block than libertarians (libertarian artists aside…). Zero is a problem because they feel like their art is worthless; they aren’t hung up on scarcity, they’re hung up on “devaluation.” We’ve heard it from journalists. I hear it most often from fellow songwriters. The economic theory makes them feel as though their work is just viewed as some sort of cheap commodity. The thing is, value and price are not the same. Price is monetary value, but value is so much more than money. Price is what gets driven down to marginal cost, but value factors into the demand side of the equation. Expensive things aren’t necessarily valuable, and valuable things aren’t necessarily expensive. I value oxygen a lot, but it seems silly to pay for the air I breathe each minute, given the abundant supply.

More importantly, songwriters who get hung up on “devaluation” confuse recordings with music. They equate the two. A recording is not the song, it’s just an instance of it, and a digital audio file is just an instance of the recording. Equating these reduces music to recordings to files. As important as recordings are, there’s so much more to music. When you think of a song, do you think of the recording, or a memory you had connecting with the music? Do you think of the file and how much it cost, or the emotions, people and experiences that the music conjures up? The recordings are just a means through which we experience the music. Songwriters (of all people!) should know that the value in music is so much more than the price of a recording. It’s not devaluing music to give it away for free, but it can increase its value by allowing more people to connect with it, to know, love and understand it — to value it. It’s through that experience that music is valued, not price!

Ironically, the underlying concern ends up being economic — how will we make money? A price of zero for digital audio files doesn’t mean that no one values the songwriting profession, or that no one is willing to spend money on music and keep songwriters in business. Sharing digital audio files makes the music more valuable and leads to more opportunities for monetization. When you give music away and connect with an audience, the opportunity for monetization is in the associated scarcities — access, containers, community, merchandise, relationships, unique goods, the creation of new music, etc. — by giving people a reason to buy. Getting hung up on “devaluation” is a distraction from the opportunity — the necessity — to experiment with new business models.

So, can we please stop complaining that free means devalued?

Check out the lively discussion in the comments. Also, usually I’m pretty obsessive with backlinks, but somehow I missed an obvious post worth a link: Free Doesn’t Mean Unpaid

Mike Masnick questions the word “balance” in the copyright debate:

I’ve long thought that balance is the wrong way to look at it. The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the [benefits of the] creation of content is maximized. As such, there shouldn’t be a question of balance, because the ideal situation where content is maximized should make everyone better off. Talking about balance is figuring out how both sides should compromise to meet in the middle. Talking about maximizing content creation, on the other hand, is talking about ways to improve the marketplace of options for everyone.

He links to a paper by Abraham Drassinower of the U of T Law School arguing that balance is the wrong way to view copyright policy. “Balance” as a concept in copyright suggests that the law is designed to reward a content creator for their labour (the “sweat of the brow” argument), Drassinower argues, though Masnick has to tease out the main point: “Balance” falsely implies that this is a zero sum game, when “the goal of copyright should be maximizing the [benefits of the] creation of content overall, such that everyone is better off.”

I’m sold. I tried to use this point at the Toronto Copyright Townhall and in my submission to the consultation.

But, if not balance, then what?

Words like “balance” are used often to make sure that the interests of the public aren’t forgotten in the face of copyright holders’ interests. I strongly support the group, Fair Copyright for Canada, but “fair” has similar problems to “balance.” What words might serve to include the public interest without suggesting a zero sum game? Mike described it as “maximizing [the benefits of] content creation,” but that seems more useful in explanation than at the sound bite stage.

What about “calibrate?” I notice that Mike used the word in a subsequent post on why morality isn’t relevant in copyright: “A properly calibrated system is one where there’s the greatest overall economic good and everyone has the greatest opportunity to benefit” (strongly related — if it’s an economic question rather than a moral one, rights holders interests are not necessarily opposed to the public interest). “Calibrate” seems like the most accurate word. It doesn’t directly conjure up the notion of the public interest, but it does so indirectly by suggesting an approach that’s about more than “protection.” But it’s too technical for a mainstream audience.

Is there a more accessible synonym for “calibrate?” Optimize? It works, but “optimizing copyright law” seems a bit too vague, and doesn’t really capture the non-zero sum game and the public interest. Thesaurus.com doesn’t help much either.

So what else? I’m not sure. I like “calibrate,” but it won’t work with all audiences. “Optimize” is nice to use in passing to reinforce the point, but it doesn’t introduce it. “Balance” and “fair” are still useful for drawing attention to the interests beyond that of rights holders, but I won’t offer those terms without a caveat or disclaimer.

Other suggestions?

This comic, like all comics, consists of written and drawn elements. The written element, the story, will be somewhat guided by my hand as the author. Mostly though, it will be the result of zillions and trillions of books, movies, videogames, TV shows, albums, magazines, websites, and other comics entering my brain, being processed and compiled by the unusual factory within, and emerging the other side transformed into what you see here. On the surface it may look like I’m “writing” the comic, in the traditional sense, but I make no effort to hide the fact that I’m really just manipulating, mutating, repurposing, and reinterpreting the countless stories that have come before mine. Hopefully I can reorganize the impossibly cluttered contents of the Culture Sponge I call a brain into a finished product that is interesting, exciting, fun to read, challenging at times, will make people think, and most importantly, will trick people into thinking that these were all my ideas.

Outstanding. Webcomics, music, writing, even software applications — every creator builds on the works of others. How’s that for recognizing it upfront? (Lest anyone jump on the last line, it’s a joke!)

Now, Pat, how about dropping the “no derivatives” and switching to a Share-Alike licence, like you mentioned?

Mike Masnick does a great job of explaining why some libertarian and “free market” types freak out when they see a zero dollar price tag. The concept of zero took ages for societies to even recognize, nevermind understand. It’s not a number, but the absence of a number. A stumbling block for mathematics and physics in the past, it’s now misunderstood in some economic circles. Economics is often defined by scarcity, but with digital goods and “intellectual property,” we have an infinite supply — abundance instead of scarcity. Prices gets pushed towards marginal cost in a competitive market, and these “infinite” goods have a marginal cost of zero… so that’s where the price gets pushed. This upsets some people, as if it were a “divide by zero” type error that breaks the equation.

But a lack of scarcity isn’t a problem. Instead of thinking of it as forcing a price of zero, you “flip the equation” and think of it as being a cost of zero. If something can be reproduced for free, the trick is to use as much of it as possible — give it away, leverage the abundance to add value to other complementary scarce goods. Zero doesn’t break economics, it just requires a different approach. (This is all just a condensed version of Mike’s post.)

Songwriters, however, hit a different stumbling block than libertarians (songwriting libertarians aside…). Zero is a problem because they feel like their music is worthless; they aren’t hung up on scarcity, they’re hung up on “devaluation.” A lot of artistic types hear the economic theory and feel as though their work is just viewed as some sort of cheap commodity.

The thing is, value and price are not the same. Price is monetary value, but value is so much more than money. Price is what gets driven down to marginal cost, but value factors into the demand side of the equation. An expensive thing isn’t necessarily a valuable thing, and something that’s available for free isn’t necessarily without value. I value oxygen a lot, but it seems silly to pay for the air I breathe each minute, given the abundant supply.

More importantly though, songwriters who get hung up on “devaluation” confuse recordings with music. They equate the two. A recording is not the song, it’s just an instance of it, and a digital audio file is just an instance of the recording. Equating these reduces music to recordings, to files. As important as recordings are, there’s so much more to music. When you think of a song, do you think of the recording, or a memory you had connecting with the music? Do you think of the file and how much it cost, or the emotions, people and experiences that the music conjures up?

When I listen to Reflection, I am in Rosedale Valley, running a cross country practice in Grade 11 with a friend, as the meaning of the final verse hit me in all its pain and glory. When I listen to Dispatch live albums, I’m at the Hatch Shell in Boston, or Madison Square Gardens, at one of the reunion concerts. When I listen to the Good Lovelies, I’m in Ottawa at the OCFF conference in a packed hotel room full of folk musicians listening to a raw, passionate acoustic performance. You don’t connect with the files, you connect with the music. The recordings are just a means through which we experience the music.

I would hope that songwriters, of all people, could realize that the value in music is so much more than the price of a recording. It’s not devaluing music to give away your music for free, but rather increasing its value by allowing more people to connect with it, to know, love and understand it — to value it. It’s through that experience that music is valued, not price!

Furthermore, a price of zero for digital music doesn’t mean that no one values the profession, or that no one is willing to spend money on music and keep songwriters in business. When you give music away and connect with fans, the business opportunity is to monetize the associated scarcities — access, containers, community, merchandise, relationships, unique goods, the creation of new music, etc. — by giving fans a reason to buy.

Music still has value, and there are still plenty of ways to monetize it. Getting hung up about “devaluation” is a distraction from the opportunity and the need to experiment with these new business models. Recognizing that digital recordings are an infinite good and giving them away for free only makes the music more valuable, and only leads to more opportunities for monetization.

So, can we please stop complaining that freeing up music devalues it?

Copyright matters to me for a variety of reasons. I’m a musician, writer and programming. I was recently a student at the University of Toronto. I’m a consumer, a computer user. In my work and leisure I interact with the Copyright Act in hundreds of ways each day.

Copyright is a set of social relationships, an incentive that the government provides to creators on behalf of the public, for the benefit of all (including creators). Talk about balance can be misleading, if we consider it a zero sum game. In reality, with the right approach to copyright law, everyone should be better off (like any good economic transaction) — creators for having tools available which they can use to earn an income, the public for having more works created.

Copyright isn’t inherently good. It’s not simply, “the more copyright, the better.” The right approach to copyright depends on keeping these broader goals and interests in mind.

Some specific suggestions:

1. Abolish Crown Copyright.

The government doesn’t need to hold copyright on the works it creates. The government already has an incentive to create those works. It’s called an election.

2. Don’t extend copyright any further.

Copyright term should not be extended. There are already legitimate questions as to whether it is too long in many respects now. That’s a discussion and debate for another time. For now, we should commit to not extending it any further.

3. Flexible fair dealing.

Simply adding the words “such as” to the Copyright Act, making the categories of fair dealing non-exhaustive, would be a huge step forward. The Supreme Court has already ruled that fair dealing should be interpreted broadly, and this would allow for things like parody or satire under fair dealing, making the law in tune with how many creators operate in this country already.

4. Technology Neutral Approach.

Don’t ban specific tools or technologies. I use peer-to-peer file sharing technologies to access and distribute materials — both music and software — released under free licences, like the GNU GPL or the Creative Commons Attribution Share-Alike licence. There are artists and creators who use these technologies to legitimately distribute their works and reach a wider audience (even the CBC has distributed content through BitTorrent). If the record and movie industry had their way, technologies like the VCR would illegal. Clearly, these technologies can prove to be useful to both creators and the public over time, and can create new business opportunities as well.

Any changes to copyright law should focus on the act of infringement, rather than banning tools which may or may not be used to infringe copyright.

5. Any anti-circumvention laws should be tied to actual infringement.

There are plenty of problems with anti-circumvention laws, but if we are going to introduce them in Canada, they must be tied to actual infringement of copyright. Breaking a digital lock for an activity that would otherwise not be considered an infringement of copyright should not be an infringement of copyright. I need to break digital locks to access materials all the time. For example, I’m a GNU/Linux user, and I need to circumvent the digital lock inherent in the DVD format just to watch a movie on my computer.

Don’t ban circumvention tools — there are plenty of legitimate uses, and plenty of uses for them within the realm of fair dealing. Any anti-circumvention restrictions should be tied explicitly to acts of infringement.

6. Don’t implement an ISP levy.

I’m a member of the Songwriters Association of Canada. They do great work for Canadian songwriters. But don’t implement their proposal to “monetize file sharing.” It’s untenable and undesirable on a variety of levels: what if someone doesn’t download unauthorized content? what about movies, poetry, newspapers, and other content that’s shared online? how would money be distributed fairly (the internet is much different than radio, with a long tail of artists producing content)?

Plus, artists are already monetizing file sharing. Artists and companies are doing it right now. Canadian songwriter and musician Brad Turcotte, for example, uses the promotion he gets through Frostwire (a peer-to-peer file sharing application) to connect with fans, grow his audience so that he can book shows and sell merchandise.

Also, why would we increase the cost of connecting to the internet in a country that already suffers from limited broadband competition, and when broadband penetration is another important technological concern?

7. Don’t extend the levy to digital audio players.

Many creator groups have called for the levy to be extended to digital audio players. That would be a huge mistake, and it would be in direct contradiction to “withstanding the test of time.”

For example, the proposed levy on digital audio players in 2002 was $21/GB. That would make a levy on an 120 GB iPod today $2520! Certainly, the Canadian Private Copying Collective could lower the cost over time, but that would likely be in reaction to an increased absurdity. Adding a levy on digital audio players would discourage investment in that sort of technology in Canada, and inhibit the ability of Canadian creators to offer new business models (if it’s less affordable for Canadian consumers to acquire digital audio players, how are Canadian artists supposed to implement digital business models?).

Also, the digital audio player space is rapidly converging with other areas of computing. With Android devices and iPhones, the distinction between digital audio players and cell phones is quickly becoming a thing of the past, and netbooks and tablet computers are rapidly blurring the lines between mobile and laptop computing. To imposed a levy on “digital audio players” — whatever that will include 5 years from now — would be extremely short-sighted from the perspective of encouraging innovation and investment in new technologies in Canada, and all the new business opportunities which can be had from their widespread adoption.

8. Don’t legislate business models.

On that note, as a broader point, the Copyright Act should not legislate specific business models. Copyright can provide tools for creators to build a business model on, but, for example, in the area of music, much success in the digital environment has been had by ignoring rights granted by copyright (e.g. letting fans distribute music or remix it), rather than following the route copyright law would suggest (e.g. excluding others from those rights).

In order to foster innovation and creativity, the Copyright Act must not stand as a barrier to new ways of doing business and to new business models in the digital era. We don’t yet know what sort of system will support artists going forward. Rather than trying to build one into the law, the law should enabled creators and entrepreneurs to experiment with new business models suited for a digital environment — whether that means providing tools, or simply getting out of the way. A copyright law that is too prescriptive, with too many restrictions and too many assumptions about a particular business model (e.g. selling copies) runs the risk of impeding innovative business models that may take a different approach.