T-minus 17.5 hours until marriage…

(We’ve got some other good videos on YouTube too.)

Details on the July 11th showcase are available on the the events calendar I’ve been hacking together recently, and the full Mariposa schedule has details on the other folk goodness happening throughout that weekend.

Fair Dealing—There’s An Exception For That

The current Canadian concept of fair dealing is more limited that the American doctrine of fair use. The Supreme Court has repeatedly ruled that it should be interpreted broadly, but present law restricts fair dealing to just five categories—research, private study, criticism, news reporting, and review. NDP Member of Parliament Charlie Angus had tabled a private member’s bill to introduce flexible fair dealing back in March, but with Moore’s vision winning out over Clement’s, Bill C-32 rejects flexible fair dealing.

But, it does contain a host of new exceptions for parody and satire, education, time shifting, formating shifting, and backup copies. There’s even a new “Non-Commercial User-generated Content” exception (29.21), which would legalize mashups and remixes under certain circumstances.

While the litany of exceptions fails to introduce real flexibility into the law for new innovations, Michael Geist—leading critic of the last, failed copyright bill—still describes this as “a pretty good compromise.” There are those who strongly oppose the uncertainty that comes with flexibility, so maybe the “there’s an exception for that” approach is the best we can hope for right now.

Though not perfect, it’s still a positive development, and definitely an improvement on the past.

Other Good Compromises

Geist notes two other good compromises. As with the last two copyright bills, C-32 would implement a notice-and-notice system for Internet Service Providers to handle copyright infringement allegations, rather than the guilty-until-proven-innocent American notice-and-takedown system, or the insanely disproportionate three-accusations-and-you’re-kicked-off-the-internet approach. Also, a change to the statutory damages provision would finally distinguish between large scale counterfeiting and non-commercial infringement, limiting the latter between $100-$5000 instead of the current $20,000 maximum. While $5000 per infringement is still pretty ridiculous, cutting the maximum down by 75% for non-commercial infringement would be a positive development.

The Downright Terrible: Digital Lock Provisions Undo The Exceptions

The huge loophole in this bill is the approach to anti-circumvention provisions, which would make it illegal to break a digital lock even if what you are doing is otherwise non-infringing. It’s important to understand how this massively undermines any good which might come from additional fair dealing exceptions: if there’s a digital lock, the exceptions are meaningless. Bill C-32′s rigid digital lock provisions undo the exceptions.

• Want to make a backup copy? There’s an exception for that… unless there’s a digital lock!
• Want to transfer songs to your iPod? There’s an exception for that… unless there’s a digital lock!
• Want to make use of copyrighted content in the classroom? There’s an exception for that… unless there’s a digital lock!
• Want to remix Louis Armstrong with death metal? There’s an exception for that… unless there’s a digital lock!

This has to change. More importantly, it doesn’t have to be this way. Submissions to last summer’s consultation were overwhelmingly opposed to this approach. Other countries have met their international obligations with anti-circumvention provisions that are actually linked to copyright infringement (e.g. New Zealand‘s passed law, India‘s proposed law). With a flexible anti-circumvention provision, the exceptions would apply to digital locks too.

Why should companies be able to rewrite copyright law and trump exceptions simply because they slap a digital lock onto something? If there’s a backup exception, there should be a backup exception. If there’s allowance for parody and satire, no digital lock should be able to take that away. And what’s the use of a format shifting exception if digital locks will force you to repurchase your content to stay legal anyways?

Canada needs to have a flexible anti-circumvention approach that is actually linked to infringement, or none of the compromises in this bill even matter.

Other Nasty Things

There’s an inducement clause (27 (2.3)) which would make it illegal to provide a service online “that a person knows or should have known is designed primarily to enable acts of copyright infringement.” Would the Internet-equivalent of a VCR pass that test? What about BitTorrent? Both technologies can be used to enable acts of copyright infringement, but they also have legitimate uses. How the “primary use” is determined could have significant implications here.

The time shifting provision (29.23) warrants further review, as it contains a variety of conditions under which you can record a program for later viewing. For example, the bill would require that you “keep the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time”—seemingly, a requirement to get rid of recordings once you’ve listened to/watched them.

Also, library provisions allowing for distribution are subject to digital locks, and contain a requirement for copies to be destroyed within five days.

There are lots of details like this in this bill that require further study, and most likely revision.

The Strategy: Let’s Make Some Noise

The Conservatives are seeking support on this bill from the Liberals. Liberal Industry critic, MP Marc Garneau, is keen to work with the government to introduce a new law, and is open to the possibility of summer hearings to get it passed. But Clement told the CBC, “I’m not coming down from the mountain with this chiselled in stone… we could seek some consensus and there could be some positive amendments to this bill.”

When I met with my MP, Liberal Joe Volpe, over Bill C-61 in the summer of 2008, his main question to me was whether to scrap the bill or to fix it. Critically, We must let our MPs know—especially the Liberals—which compromises are acceptable, and which undermine the entire copyright bargain. Flexible fair dealing would have been better than a litany of exceptions, but that compromise could work. However, allowing digital locks to undo those exceptions is simply unacceptable.

Conclusion

Politics is the art of the possible, a complex art of balance between ideals and interests. This bill isn’t perfect, but there is a push from both sides of the floor to get it passed. There are a lot of good compromises, but whether or not the bad provisions get fixed could have huge implications on Canadian culture, technology and business in the years to come. Make your voice heard.

Credit: mgifford [CC BY-SA]

Last month, NDP MP (and former member of the Grievous Angels) Charlie Angus shook up Canada’s copyright debate by proposing two reforms. Angus was outspoken against the government’s last copyright bill, but he’s attracted criticism from all sides with this latest move. But that was basically his goal—more debate on copyright reform. For musicians and other copyright holders dealing with shifts in technology, this debate is a crucial one

Flexible Fair Dealing

Fair dealing permits the use of copyrighted works for certain purposes without permission. Currently, there are only five categories that qualify: research, private study, criticism, review, and news reporting. Noticeably absent are things like parody, sampling, time or format shifting, etc. However, the Supreme Court ruled that “[fair dealing] must not be interpreted restrictively” and introduced six factors to consider. Angus’ motion (M-105) would add the words “such as” to make the list of fair dealing categories illustrative rather than exhaustive, and it would put those six factors right into the act.

Flexible fair dealing has been called for by many groups, but others still characterize it as the “legalization of theft”. Nevermind that copyright infringement isn’t theft, but American law has long since had a similar principle in the doctrine of fair use—initially common law, but incorporated in the U.S. Copyright Act of 1976, much like Angus proposes for Canada. Fair dealing/use isn’t “theft,” but part of the copyright bargain.

Flexible fair dealing would help to future-proof copyright law by accommodating new technologies, practices, and forms of expression. Fair dealing isn’t free dealing either, since the factual tests of fairness must still be met, but the worry expressed by creator groups is that it will affect royalties—hence, Angus’ other proposal.

Expanding the Levy

Angus’ private members’ bill (Bill C-499) would expand the levy on blank media (such as CDs) to include potentially any “audio recording device,” defined as:

a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings, excluding any prescribed kind of recording device

Yet, dedicated digital audio players are quickly being replaced by multi-purpose mobile computers. Should the levy apply to iPhones as well as iPods? This definition could potentially include Blackberry, Android and even laptop or desktop computers as well. This has attracted criticism from many, including Industry Minister Tony Clement and Canadian Heritage Minister James Moore, the cabinet ministers responsible for copyright. Beyond the wide spectrum of devices, what about the variety of works? What about movies, TV shows, electronic books, and other copyrighted works that are increasingly available on electronic devices?

This reform is short-sighted. The initial levy proposed for digital audio players in 2002 (struck down by the courts—hence a bill to make it legal) was $21/GB, which would leave a 120 GB iPod (less than $300 today) with a $2520 tax. How much would this levy be, and how long until that amount becomes absurd? Of course, the levies could be lowered (though, the CD levy has increased…), but imagine how quickly legislators would adapt, compared to the effect on consumers, innovation, culture and the music business in the meantime.

The “Nuance-Free” Zone

Angus criticizes the Tories for living in a “nuance-free zone,” either being “tough on crime” (Bill C-61) or “fighting against taxes” (Moore’s comments on Bill C-499). Yet, Angus has his own two-dimensional approach to copyright. He claims,

“There are only two possible options for protecting artistic property: either you lock down and sue or you compensate.”

Angus seems to conflate two separate issues—fair dealing and remuneration. It’s as if he thinks that the levy would justify—even pay for—more flexible fair dealing. Fair dealing isn’t something to be purchased; the Supreme Court affirms it as a “user’s right.” Likewise, the compensation problem would still exist even if flexible fair dealing was already around (see: the U.S. and fair use). This isn’t about crime/tax reduction, but it isn’t about “compensation for access” either. It’s about adapting copyright law to a world where copying is the norm.

Business models based on selling and restricting copies are struggling because the Internet is a copying machine, while those who are successful aren’t relying on copyright. Leveraging technology and consumer behaviour is an alternative to litigation, locks and levies, and effective copyright reform should enable that. This bill would just set up toll booths on computers. An iTax won’t solve anyone’s problems.

What’s Next?

Private members’ bills rarely become law, and the Tories plan to table new copyright legislation this Spring. The levy expansion has been rejected by Clement and Moore, though they haven’t taken sides on flexible fair dealing. Angus wanted to kick-start the next round of conversation, and that he did. Now it’s the government’s turn.

Read the comments at RootsMusic.ca

This is a bit of a personal ramble.

Gerald Klickstein had a great post on the Music Think Tank blog about avoiding avoidance:

Do you ever dodge your creative work? Say, your practice time arrives, and you race off to do some chore. It might be a chore that you detest, but now it calls to you. Then, instead of refining your music, you start cleaning the house or doing whatever. [...]

When we practice, write, or otherwise innovate, we stretch our limits. We strive.

But striving takes us into the unknown, and that brings uncertainty. [...] If the uncertainty of creating unsettles us, then, to escape the discomfort, we might seek refuge in a mindless task: “This really needs doing,” we’ll congratulate ourselves as we reach for the mop.

So true. I set aside afternoons to work on my music, but often end up catching up on email, cleaning, doing laundry, or running errands. It’s so easy to avoid that difficult creative work.

Klickstein has a solution:

First we have to notice an avoidant thought before we fall under its spell. Next we must act to do what we intend. [...] As I see it, we’re all going to have avoidant thoughts, so we need to keep countermoves handy. Here’s my anti-avoidance formula:

Counter Avoidance

1. Notice an avoidant thought.
2. Dispute it. (Laugh at yourself or just say “no.”)
3. Replace it with an affirmation: “Music feeds my soul.”
4. Act with full intention.

It’s great advice, but I still find myself struggling. I have so many distractions that aren’t just chores or busywork. I spent a lot of my “music” time in the fall revamping my website, which is important for my music, but it isn’t my music. Also, there’s always the temptation to put more hours in to my other jobs, especially when I have clients waiting on me; it’s hard to spend an afternoon focused on songwriting when I have a separate deadline with a client bearing down on me. And, lately, I’m spending a lot of time on music, but not my music; I’m writing arrangements for the Hart House Chamber Strings pops concert, which is an amazing opportunity for me to write arrangements and work with some of my favourite local artists, but only a small percentage of the concert involves my songs. Even when I work on music, it’s not always my own.

Then, there’s the issue of multiple creative endeavours. I’m a songwriter, but I also try to set aside time for writing (like this) and for programming. It’s easy for one of these activities to overshadow the others.

I defer to Adam Singer, someone whose several steps ahead down a road I’d like to travel:

By day I work for one of the top search/social marketing firms globally. At night I keep this marketing/media/PR blog and participate in industry conversations around the web. I also write music. In between all of that I read 1-2 two non-fiction/sociology books and some 300 blogs monthly (I’m a knowledge-junkie). I also don’t do any of these things halfway, they are not fleeting interests – I’m fully committed.

[...] It took me years to develop the self-discipline necessary to split time across interests and get fulfilling results in all of them.

Today I thought I would share the process I took to get to the point of balancing multiple pursuits. If you also have multiple interests and are frustrated you’re not able to devote enough time to them, this might help.

He lists 10 pieces of advice (I’m just listing the titles, but you can read the post for more detailed descriptions.)

1. Internalize what outcomes you want from each interest first
2. Define what specific activities support your desired outcome from that interest
3. Remove everything else

It’s an ongoing process, but I’m inspired by the steps I’ve made in the past few years in narrowing down the sorts of things I want to accomplish in different areas. The picture is constant evolving, and becoming clearer. One of my goals going forward is to speak more publicly about the things I’m working on.

It is a challenge to remove everything else though. I have a hard time saying no to many things (e.g. I need to do less Windows tech support…).

4. Automate or outsource all collateral activities

I lot of the time I’ve spent working my website, or figuring out 64 Studio factors into this… At times it feels like I’m spending so much time not making music, but I’ve been streamlining my process of recording and sharing recordings, which is essential going forward.

5. Your career should be an interest

Check.

6. Learn to ignore others who tell you to focus on one thing

This is incredibly encouraging. One of the common sayings that haunts me is “jack of all trades, master of none.” (I prefer “master of some.”) Sometimes, I feel like I’m spreading myself too thin, trying to be too many things. There is a way.

7. Focus time where your mind is naturally drawn during free time

This is also encouraging, given the variety of my pursuits… but, I think it’s also essential to make sure there is time set aside for each activity in the long run. While it makes sense, on a micro-level, to focus where the inspiration and motivation is present, on the macro-level I’m still trying to find the best way to make sure that none of my interests are neglected for too long. That’s the real challenge.

8. Learn patience and dedication
9. Be grounded in reality, realize life is short

Sound, but basic advice.

10. Remember that focusing on one and only thing is mentally limiting

I don’t need to be reminded of this. Some people have one thing that they can do well and focus on, but I’ve always had multiple passions.

About 10 years ago, I remember my mom sitting me down for one of those overly-concerned parental talks. “It’s great that you’re so passionate about music and computers,” she said, “but… you need other interests too, you need to be balanced.” After listing off a variety of other hobbies at the time (basketball, skiing, cross country—just in the athletics department), I reassured her that I was interested in a healthy balance of things—and that I just really enjoyed music and working with computers.

That was Grade 7. Five years later, applying to universities, I was looking at music and computer science/engineering programs. I ended up choosing computer science at U of T, not just for the program (which is fantastic), but because it allowed me maximum freedom to study other things as well; music and engineering programs offered very few electives. I began thinking I’d do a music minor, but ended up choosing English instead. Last June, I graduated with a major in computer science, and minors in English and philosophy (as I like to say: Plato, Python and Shakespeare).

And now, I’m continue to work part-time at Alleyne Inc., while the rest of my time is spent on music and writing. (I’m also doing a couple graduate-level credits in theology this Spring, but not quite sure where that will lead…)

For me, it would be extremely mentally limiting to focus on just one thing.

The challenge, moving forward, is to find balance between multiple creative interests, avoiding avoidance and narrowing in on my creative goals.

Rambling out loud like this will likely be part of the process…

Honestly, I still have trouble convincing myself that the push by the record industry to implement a three-strikes-and-you’re-out (that is, three-accusations-and-you’re-kicked-offline-for-a-year) system is actually happening, that grown men and women running companies claim—with a straight face—that this will save failing business models. It’s just so ridiculous. But the IFPI’s recent claims that it can surgically remove one person from the Internet without affecting the rest of a household have got me thinking about mobile data. Cellular providers are becoming Internet Service Providers. Would three accusations of unauthorized file sharing cut you off from mobile data too? What’s to stop someone from getting a 3G USB stick to connect to the Internet? Either the record industry is that much more ridiculous and they’re also taking on mobile carriers, or there’s another giant loophole in an already insane plan.

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…

I’ve been in love with Robyn Dell’Unto from the moment I first heard her voice, and it’s been almost two years now since we became friends and she first introduced me as her secret weapon.

This past Thursday, we had the opportunity to perform at the Niagara Falls New Year’s Eve party on the main stage. Though our set was cut short, it was a fantastic experience. We made it onto the Global TV national broadcast for about a minute, and I’ve stumbled upon some great photos taken by Ed McAskill (including some outstanding shots of me).

Robyn has been taking off recently, getting signed with Orange Lounge and having her music featured on CBC’s Being Erica season finale and other TV shows. She’s started work on her first full-length album, and it’s only going to get more exciting from here… I hope she remembers me when she’s famous!

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