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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