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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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Copyright Infringement and the Theft Metaphor

I’ve got a new post up at Roots Music Canada, why copyright infringement isn’t theft, which draws on William Patry’s book, Moral Panics and the Copyright Wars, to explain that theft is a poor metaphor for copyright infringement.

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

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