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Tagged: politics

Canadian Telcos Appoint Ex-Cabinet Ministers To Their Boards

This post originally appeared on Techdirt.

Two of Canada’s big three telcos have recently appointed former cabinet ministers of the ruling party’s government to their respective boards. A few weeks ago, Bell appointed Jim Prentice, who was responsible for telecom policy and regulating companies like Bell while serving as Minister of Industry in 2007-2008. Then, while former cabinet minister Stockwell Day’s new “government relations” not-a-lobbying-firm has raised concerns about loopholes in lobbying laws, this past weekend Telus named Day to its board. (How long until Rogers aligns with industry standards and finds an ex-minister of their own?) OpenMedia.ca decried both appointments as examples of big telecom “cozying up to the government,” but journalist Peter Nowak argues it’s the system’s fault: “Lobbying is so pervasive and deeply integrated” into the system that the only way to deal with it seems to be to “fight fire with fire,” as even new wireless carriers have quickly learned — i.e. don’t hate the players, hate the game.

Neither Prentice nor Day will be lobbyists, but it seems obvious that their knowledge of government is being sought for the purposes of lobbying. In the broadband space, Bell has been butting heads with the government and regulators over issues like wholesale usage-based billing. In the wireless space, the next spectrum auction is approaching and incumbents want to avoid a repeat of the last auction, where 40% of the spectrum was reserved for new entrants and the government forced incumbents to offer roaming agreements — rules ironically set by Bell’s new board member, Jim Prentice.

Are these appointments examples of regulatory capture? It might appear that way. It’s certainly a case of telcos gearing up for a heavy round of lobbying that’s unlikely to favor consumers, but it’s hardly a case of blatant revolving doors. Day was not actually responsible for telecom policy, and Prentice was behind rules that angered incumbents. If the government favors incumbents in the next spectrum auction or backs down on wholesale usage-based billing, that would be a different story, but Canadian incumbents are scrambling because they’ve lost some big battles. This isn’t so much a cause for deep concern as it is a challenge to those who favor more competition in Canada to keep pressing the government to follow through on what it’s started.

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Ontario Premier Says Cellphones Could Be Useful In The Classroom

This post originally appeared on Techdirt.

With schools, cell phones and a politician in the same headline, you’d think the story would be about another attempt to ban technology, but in Ontario, Premier Dalton McGuinty is telling schools to be open to uses for cellphones in the classroom.

McGuinty, who won’t even let his ministers keep the devices during cabinet meetings, said he understands they can be a major distraction, but there is a “right way” to use them in class.

“Telephones and BlackBerrys and the like are conduits for information today, and one of the things we want to do is to be well-informed,” he said. “And it’s something that we should be looking at in our schools.

The issue came up in light of the Toronto District School Board rethinking its blanket ban, and “exploring ways to make [mobile devices] more acceptable.”

Political opponents are already mocking McGuinty, and his government does have a really mixed track record on technology… but the comments here are actually quite reasonable. There’s room between the “discipline theater” approach of a total ban and the teacher’s nightmare scenario of a total free-for-all. A good acceptable use policy would attempt to reduce distractions while not precluding ways in which mobile technology can be helpful in the classroom.

I attended a strict private high school in Toronto from 2001-2005, and we had a blanket ban on electronic devices… but teachers were smart enough to know when it made sense to ignore the ban. I used my PDA to take notes and manage homework in every class, and another student in my year often used a tablet computer. The ban was eventually lifted after I graduated, acknowledging the fact that more and more students were using laptops and mobile devices in ways that helped them learn, while I’m sure they still have a no nonsense policy for students goofing off or distracting others. Rules are needed to minimize bad uses, but that shouldn’t prevent people from exploring good uses.

So, good for McGuinty for recognizing that we’re better off exploring applications for mobile technology in the classroom than simply trying to ban it.

Read the comments on Techdirt.

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New Canadian Copyright Bill C-32: The Good, The Bad, The Ugly, And What To Do About It

As expected, the Canadian government tabled a new copyright bill today. Despite the consultation last summer, rumour has it that Canadian Heritage Minister James Moore and Industry Minister Tony Clement—the two cabinet ministers responsible for copyright (who seemed to understand the new opportunities technology presents)—couldn’t come to an agreement, and the Prime Minister’s Office sided with Moore’s more hard-line approach. Yet, it appears Clement’s influence was not lost. The proposed legislation, Bill C-32, actually contains many good provisions… but strict digital lock restrictions threaten to undo them all.

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.

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Charlie Angus brings copyright reform back into the spotlight

This post originally appeared at RootsMusic.ca

NDP MP Charlie Angus
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

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SOCAN Tries To Keep Its Copyright Consultation Submission Offline And Secret, But Fails

This post originally appeared on Techdirt.

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.

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Is There A Better Word Than “Balance” In The Copyright Debate?

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?

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Copyright Consultation Submission

I submitted the following to the Canadian Copyright Consultation, a little hastily as midnight approached on the initial deadline. It’s built off the same notes I used to speak from at the townhall.


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.

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Canadian Human Rights Tribunal Declares Internet Hate Speech Law Unconstitutional

This post originally appeared on Techdirt.

The Canadian Human Rights Tribunal has refused to enforce a controversial internet hate speech law, claiming that it’s unconstitutional. The tribunal adjudicator, Athanasios Hadjis, expressed worry back in March about the “chilling effects” that Section 13 of the Canada Human Rights Act would have on the internet. In his ruling Wednesday, he decided that the restriction imposed by Section 13 “is not a reasonable limit” within the meaning of the Canadian Charter of Rights and Freedoms, and thus, unconstitutional. Since the tribunal isn’t a real court, it can’t actually strike down the law, so Hadjis just refused to impose any penalty.

Section 13 prohibits the repeated communication of “any matter that is likely to expose a person or persons to hatred or contempt” via telephone or — since 2001 anti-terrorism measures — the internet. The section is quite controversial; neither truth nor intent are a defense, and it’s not part of the criminal code, so it tends to become a vehicle for cases that wouldn’t stand a chance in a real court. Last fall, an independent review commissioned by the Canadian Human Rights Commission itself called for Section 13 to be repealed (an epic whitewash fail), and some politicians have begun to ask for the same. For serious issues, there are other hate speech provisions in the criminal code with real defenses, handled in real courts. Section 13 makes it too easy for someone to be “dragged through the process,” as Hadjis puts it.

Not only is the section controversial, but its application to the web has been clumsy at best. Hadjis said, when applied to speech online, “suddenly, the chilling effect catches not only individuals who set up telephone messages… but just about everyone who posts anything on the internet.” Hadjis notes that telephone hate messages tend to be overt, while opinions on the internet include many borderline cases. Part of the problem is that there are no safe harbors in Canadian law (or “safe harbours,” as we Canadians would call them). Hadjis was concerned that website owners could be charged under Section 13 for user comments on message boards and blog posts. While this particular website owner doesn’t seem like all that nice of a guy (to be charitable…), twisting the law to make a site owner responsible for user posts would have set a terrible precedent. Hadjis, thankfully, had the common sense to avoid that error. Hopefully Section 13 is repealed soon, and other tribunal adjudicators take note of Hadjis’ ruling in the meantime.

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Toronto Copyright Townhall: Canadian Record Industry Mobilizes In Panic, Everyone Loses Out

This post originally appeared on Techdirt.

Last Thursday, I attended the Canadian Copyright Consultation Toronto Town Hall (video). Despite the stated intention of soliciting a “breadth of perspectives,” the record industry dominated the event. Michael Geist described it as the “Toronto Music Industry Town Hall” and a local publication called it the “town hall that didn’t invite the town”. Tickets were limited and speakers chosen by lottery, yet half the speakers were from the entertainment industry — collection societies, record labels, industry lawyers. Twice as many industry representatives spoke as artists or creators. There was the odd librarian, student or programmer (and I had a chance to speak), but otherwise the participants seemed so skewed towards the same perspective that one person greeted the audience, “hello, music industry,” and some non-industry (though admittedly not very eloquent) speakers were heckled towards the end. When asked afterwards about the strong music industry presence, the Minister who ran the town hall joked, “I guess they had the night off.” There are lots of questions about the sincerity and efficacy of the consultations (though, also some indication that the government might take the time to try and get things right), but what was most disappointing, albeit least surprising, was what the entertainment industry actually had to say.

Most industry speakers presented emotional pleas, with little in the way of serious suggestions. They focused on a “right to get paid” and “fair compensation” (without talk of providing a reason to buy), while Canada was portrayed as a “lawless society,” rampant with property “theft” and hostile to “legitimate” business (despite evidence to the contrary). A writer stunningly declared that “[more flexible] fair dealing would be a disaster for creators,” while SOCAN claimed that adding “unwarranted” fair dealing provisions would be asking creators “work for nothing” (even though flexible fair dealing would be a lot like fair use in the US — hardly a disaster). The President of Warner Music Canada talked about disappearing jobs, and many industry employees painted a dire picture of colleagues and artists struggling to make ends meet (with little mention of any success stories). Yet, when the occasional concrete recommendation was made, it was to implement a notice-and-takedown system (ripe for abuse), extend the “you must be a criminal” tax blank media levy to digital audio players (an idea that’s been struck down twice), or enshrine an inducement doctrine into law — extreme measures which have provided little solace to failing businesses elsewhere.

It wasn’t argument. It was the language of moral panics.

The Canadian record industry was demanding to be lied to, to be told that more restrictive copyright laws will save their business. Though fewer and fewer people can convincingly tell the lie, they seemed perfectly capable of convincing each other that restrictive copyright legislation might somehow stop the market from changing (even with a decade of hindsight on the DMCA). It’s tragic, because hard working people who love music and love working for artists are losing their jobs, but the industry continues to block the sort of innovations that could provide it with a way forward. A lawyer described the music industry as a “copyright industry,” even though most artists and companies who are figuring out how to make money in the digital economy are successful despite copyright — not because of it.

Artist voices were few (nevermind consumer voices), which is disappointing because many Canadian creator groups are adopting more forward thinking approaches, proposing solutions that don’t involve criminalizing common consumer behaviour. Now… most creators echoed the industry in supporting the levy and its expansion to digital audio players and even ISPs, and some asked for new royalties and more collective licensing, but that’s much better than demanding stricter laws and enforcement mechanisms. The problem remains though, that although collective licensing may be a move in the right direction, short-term revenue from additional royalties and levies also increases barriers to innovation, making it harder for new sustainable long-term business models to emerge. Artists and creators need to find a way to earn money that’s based on a solid economic ground, instead of depending on levies that can quickly become absurd. That’s where the record industry should be able to help them out.

Artists and creators need to be able to experiment with new business models, but the copyright crutch gets in the way. They turn to levies and licensing because they can’t imagine how else to make money, but successes have been outside of the copyright system. Canada needs innovative companies to help artists and creators find digital business models, not to chase fictive legislative solutions. If the Canadian record industry isn’t willing to help creators with what’s next, they need to clear out of the way.

Read the comments on Techdirt.

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My Comments at the Copyright Consultation Toronto Town Hall

Thursday night, I had a chance to speak at the government’s Copyright Consultation Toronto Townhall. I’ll post more detailed thoughts shortly, but in the meantime, Nick Dynice was kind enough to upload a video of my comments to YouTube.

I wasn’t expecting a chance to speak and hadn’t prepared much, but my name came up in the lottery in the last half hour or so. I’m not particularly happy with how I spoke — some parts felt awkward, and I had to cut other points due to time — but I’m glad could provide a different perspective compared to the ~80% of speakers who were folks from the music industry arguing for some combination of locks, levies and legislative responses to their business model problems.

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