a2f2a

“The thing I’m afraid of is an expansion of one problem we already have – when someone is uploading, that someone is said to be operating ‘outside’ of the permission needed to be ‘distributing’ that file.

“As long as this condition exists, and someone has ‘rights’ attached to it, this will still ‘criminalize’ filesharing in a venue that demands that all uploads be accounted for. Any ‘rights’ holder that doesn’t share our thinking (and you know there are many) will claim that there’s all this ‘unauthorized distribution’ going on over BitTorrent.

“Get enough of them together, and they could ‘legally’ claim that BitTorrent should be shut down.”

Not only BitTorrent.

The words are Devil’s Advocate’s and that’s where things rest in Britain as the failing Labour government struggles desperately to force home its Digital Economy bill.

As it stands, it would give purely commercial entertainment companies the power to use a law they created to whip consumers into  compliance with self-serving business dictates.

It would be enforced under the  Three Strikes component of ACTA with ISPs compelled to actively work against customers alleged by entertainment interests to be improperly sharing copyrighted music online.

Supposed transgressors would be warned twice and then thrown off the internet.

A legitimate point of “compromise”

ACTA is short for Anti-Counterfeiting Trade Agreement, a cynical, corporate entertainment industry-friendly ‘initiative’ cooked up by the corporate entertainment industry.

DA’s observation is quoted in an a2f2a post which includes a request for a2f2a members to consider completing an Agree or Disagree form on whether or not they believe a paper offering thoughts on the copyright dilemma from IP lawyer and author Bennett Lincoff might provide a legitimate point of “compromise”. [Ten people have so far taken part, seven agreeing, two saying No, and one passing.]

Billy Bragg might then take Bennett’s paper to the to the board of the featured Artists’ Coalition to ask  the board, on behalf of a2f2a members, to revisit their decision to support the Three Strikes bill currently being debated by UK peers.

In the same post the UK Pirate Party’s John Barron wrote: “I can almost accept the Lincoff paper as a starting point for further discussion,” but the “showstopper” for him was the question raised by DA.

“It’s a very significant element, and one where I can’t yet imagine a ‘compromise’ that would make sense and still include that,” he said.

‘ … ensuring that people can’t steal music and remain anonymous … ‘

In Canada it isn’t against the law to download music as long as it’s for personal use.

In 2004 the then Big 5 record labels, Universal Music (France), Warner Music (US), EMI (Britain), Sony Music (Japan) and Bertelsmann’s BMG (Germany),  continued to accelerate their attempts to gain control of the way, and by whom, music is distributed online by labelling anyone who shared music a ‘criminal’ and ‘thief’.

This included children as young as 10.

The labels had instructed their CRIA (Canadian Recording Industry Association of America) to get a court order to force five Canadian ISPs to hand over the names of 29 people the labels claimed were “each illegally distributing hundreds if not thousands of music copyright files to millions of strangers”.

On March 15, “We are confident that the court will require internet service providers to disclose the identities of alleged digital music infringers,” said CRIA general counsel Richard Pfohl. “The approach we have taken protects Canadians’ privacy rights while ensuring that people can’t steal music and remain anonymous.”

However, in a milestone decision Canadian justice Konrad von Finckenstein ruled putting music into a computer directory that might be shared remotely by someone else doesn’t constitute copyright infringement under Canadian law.

“No evidence was presented that the alleged infringers either distributed or authorised the reproduction of sound recordings,” said von Finckenstein, who now heads up the CRTC. “They merely placed personal copies into their shared directories which were accessible by other computer user(s) via a P2P service.”

Click here for a .pdf of the Canadian decision.

Combining the best of both worlds

Bennett’s paper came as a submission to last year’s Canadian copyright consultation, a Canadian government project inviting thoughts on copyright reform.

Now, however, in his comment post, John Barron cites another submission, this time from Todd Howe, a Canadian IT professional.

Of it, “I have to say I do prefer Todd Howe’s proposal suggested by John Barron … to Lincoff’s in its current incarnation,” says Monkey D. Luffy. “Maybe we can combine the best of both worlds, looking at Lincoff’s payment ideas for commercial use, while striking all Lincoff’s provisions for non profit private use? This proposal … makes much more sense to me as a statement of principle that would be more acceptable, while not going into such specific detail as the Lincoff proposals.”

It’s probably time for another, very short, internal poll on Monkey’s suggestion. I’ve already demonstrated how inept I am at constructing polls.    So maybe someone else would like to put it together. A free survey form allowing an unlimited number of responses over a two-week period can be found here.

Click here to read Bennett’s thoughts in full.

Below is Todd’s paper, also in full >>>

Copyright Consultation Submission

My name is Todd Howe. I’m drafting my submission to the Consultation today in my capacity as a private citizen. Though I am employed in the lower tiers of the telecommunications industry and have taken an active interest in issues of copyright and privacy, I have no direct economic interest in the outcome of this consultation process other than that shared in common by all Canadians. Without prejudging the difficult work the consultation now has before it in finding an equitable synthesis of the many views it has received, I would urge the ministry to consider this factor carefully during its deliberations: the starting point of native impartiality which the many ordinary Canadians involved in this process bring to the table.

I am grateful for this opportunity to present my views to the Consultation. On my view this process, enabled as it is by the unique ability of our age to rapidly collate and disseminate information, is one of the most important innovations in Canadian public policy in recent memory and I would encourage the government of Canada to continue in this vein as we move towards the desired reformation of copyright law. I believe it is, in fact, ultimately illustrative of the correct approach to take in enabling Canadians to interact with their own culture – an open and fair one.

Why does copyright matter? (How do Canada’s copyright laws affect you?)

There’s little doubt that issues of copyright have become increasingly important to Canadians in a way that the original framers of copyright law could never have imagined. It is now possible, thanks to technology, to divorce the content of a creative work from its physical manifestation, to abstract it away from books and journals and recordings and performances.

I would like to suggest that, in principle at least, this process has only one precedent in our history as a species, and that is the oral tradition – which of course predated any form of physical transcription and which continues to exist today. This simple, human process by which we relate news to our neighbours, whistle a popular tune whilst walking down the street, or read aloud to one another accomplishes, on a smaller scale, the same sort of symbol-reproduction enabled by the digital realm. Before the scriptorium, before the invention of movable type, before the cassette, our minds were the original means of reproduction and dissemination of information. Like a sort of mental lithography, we have always possessed the native ability to peel away a token of some original experience and transmit it to our neighbours via language.

Reproduction, then, is at the heart of communication and I believe this is why the framers of our Constitution enshrined the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” as an inviolable right under Article 2(b). We are fortunate to live in a state that recognizes these rights and in the present context I believe this is vital since the history of technology tracks a progression towards removing physical resistance to the storage and flow of information. This, naturally, has positive consequences for the individual’s ability to communicate, to understand the broadest context of world events, and to participate in public dialogue.

Of course, this all takes place within an external economic context, and I wouldn’t suggest that we lose sight of this, but I want to stress that with the advent of the Internet, it is as though information has undergone a phase change. Like ice to water, and water to vapour, information has evaporated. It may now exist in this highly lubricated realm, a place that, as it becomes increasingly reproducible, increasingly has no place, and within this realm its supply has so outstripped external physical demand that information’s price is rapidly approaching zero.

Unless we make the decision to impose onerous restrictions on the architecture of the Internet itself, this progression is a linear one, and in my opinion is an emergent property of our nature as human beings. We move within this symbolic medium of information and culture, it informs and expands our views, and we create more and more of it as time goes by. It has become more of an ecology than an economy, though there are important similarities between these concepts, and similarly to the economy of commodities, we are poorer and less free if these flows are unnaturally restricted. Although we have the ability to manipulate markets, this is in most (if not all) cases highly inadvisable. If we accept the idea that economies are an emergent property of our natural interactions, then we must largely adapt to their conditions rather than the other way round. If this means that the price of information (when divorced from physical media) must collapse, then so be it.

This is the viewpoint I wish to bring to the table, and the specific way in which I will frame the remainder of my response: the creation of the digital realm, in my opinion, has created something like a vast shared memory, a resource that is both intimately personal and radically collective. It is no more subject to the laws of commodities than one’s memories of an experience can be. All forms of information have been absorbed into what we call our culture. Copyright law affects me by imposing external conditions on world culture. Unless handled very carefully, we run the risk of creating injustices of the quality experienced during book burnings, the banning of native traditions and languages, and religious proscriptions on certain ‘heretical’ thoughts. And what is thought, other than a series of symbols processed by a mind?

If the Internet is a new type of global memory, inappropriate restrictions could very well convert it into a mechanism for the destruction of thought and culture not dissimilar to George Orwell’s famous description of a ‘memory hole’.

How to remain relevant? (How should existing laws be modernized? How should copyright changes be made in order to withstand the test of time?)

So much for principle. Pragmatic concerns must be addressed, of course – though our minds spend an increasing amount of time in the ‘cloud’ of global information technology, we still stand upon the ground. I would not suggest any fundamental dichotomy between these realms, but there are differences.

In reaching for new ways to formulate copyright law, I will largely defer here to the framework established by Professor Michael Geist – any new legal regime must strive for balance between the rights of the creator and the user, it must be technologically neutral, it must strive for simplification and clarity, and it must embody enough flexibility to adapt to changing technological, and thus economic, conditions.

To this, however, I would add an important caveat. To truly ‘withstand the test of time’ copyright law absolutely must not attempt to hold back the tide of the information revolution no matter how much the beneficiaries of the old order may protest. We simply can’t protect the market of the candle makers once the lightbulb has come on the scene, nor should we. I do not believe that it is possible for any copyright law to remain relevant if it does not acknowledge and accept the most important consequence of this sea-change – the collapsing price of information as information.

Thus, I would suggest that ideally, Professor Geist’s suggestion of the scope of copyright law should in fact be restricted solely to the commercial distribution of physical media. This would greatly simplify the task of crafting new copyright law and, though the suggestion may appear shocking, it is the logical conclusion of the ideas developed above. If we were to apply copyright law exclusively to the problem of counterfeit product, we would in one stroke satisfy the four conditions Professor Geist calls for.

First, this would strike an objective balance between creator’s rights and user’s rights. In the physical realm, we have a right to dispense of the values we have created through our labour. Copyright, patent, and similar law, in my understanding, was developed in order to give the creator of a new idea a head start in the market, to encourage the requisite effort, investment, and innovation by making it more likely that a return of some sort will be realized. We brand the products we create because we wish to capitalize on the reputation we establish in the market. In the realm of culture, however, I would suggest that reputation is the only objective limiting factor. If we counterfeit, we commit the injustice of fraud by misrepresenting the provenance of our product, of stealing time from its creator, and they deserve monetary compensation. If we plagiarize, we commit a similar injustice of misrepresentation but the coin here is exclusively moral rather than economic. What we owe the creator of an intellectual work is citation and recognition.

This idea easily meets the second, third, and fourth conditions of the need to maintain relevance by creating a clear distinction between the commercial physical embodiment of an idea or a work, and non-physical and non-commercial distribution modes. It’s simple, clear, easy to enforce without creating the kind of massive intrusions on privacy being suggested by other national jurisdictions, and it’s certainly flexible enough to deal with the changing environments created by cultural and technological transformation when the problem itself collapses.

I believe the problems were are grappling with today are nothing more than an artifact of a misunderstanding of the nature of information, a misunderstanding we ignore at our peril. As many artists and creators are discovering, there is an important linkage between the realm of idea and the realm of distribution – marketing. It becomes, then, a problem of finding new ways to entice people to purchase physical transcriptions of ideas by adding value to their product, whether it be a boxed set or a performance. However the ideas that inhere within these products, when subjected to lossless reproduction, are their gift to the body of human knowledge. For law to remain relevant, we need to realize that though the labour of an artist may be great, ‘intellectual property’ is a myth. Once an idea is created, it slips from our fingers for the same reasons that a physicist will never own the second law of thermodynamics, Ohm’s law, or any other nonmaterial product of labour.

If we value intellectual creation, as even the most prolific young consumers of ‘pirated’ media must admit upon reflection, then it becomes a moral and cultural problem of ensuring the respect exists to drive reward. And despite the protest of media interests, there is data available to indicate that such a culture has already taken shape as reproduction drives reputation and purchase of product, though the precise patterns of usage may change in unpredictable ways.

What to do? (How to foster innovation and creativity? How to foster competition and investment? How to position Canada as a global leader in the digital economy?)

I have avoided addressing the existence of current international law (eg; WIPO and the distressingly exclusionary ACTA) until this point for the simple reason that I find much of it to be wrongheaded. However, it may be relevant to quote the Berne Convention’s three-step test here:

“Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.”

The test here turns on the inclusion of terms such as ‘normal’ and ‘legitimate’, and are open to a wide variety of interpretation. I would interpret it in the sense outlined above – non-physical and non-commercial uses fall completely outside of its scope. This test actually makes a lot of sense to me because at the time it was written, it really only applied to questions of counterfeit and physical, commercial right.

It is my belief that a laissez-faire approach to non-commercial usage would in fact foster the outcomes desired. But to see this, it depends on where one places the boundaries of concepts such as ‘innovation’ and ‘competition’.

Under the system I’m suggesting, it’s undeniable that there would be structural changes in the media industry as progress towards a freer regime of information and culture erodes many of the implicit or explicit monopolies previously it has previously enjoyed. But it’s also hard to deny that this would be a net benefit to Canadian interests seen as a whole.

How could innovation and creativity possibly not be fostered by giving every Canadian freer access to their culture, to use and manipulate and amplify our values? How could competition and investment possibly tear itself away from a population steeped in a culture of expanded awareness? Is this not a better outcome for Canada than a geography punctuated by illumined centres of learning and priviledge surrounded by dark provincial backwaters? If Canada wishes to become a leader in the global digital economy it must embrace it rather than resisting its conclusions.

I think in this situation, which we might refer to as a radically expanded knowledge economy, there is still plenty of opportunity to get paid. I don’t see the need to rush into any further systems of international legal integration, and particularly not when the outcomes are being decided behind closed doors, as is demonstrably the case with ACTA. This can only undermine Canadian sovereignty and our right to decide our own future.

“I believe that the abolition of non-commercial copyright provisions lights the way forward for Canada,” says Todd, adding:

“I do not believe that a serious concern exists that people will stop writing novels or creating culture or engaging in intellectual innovation. This is a part of who we are, and we engage in these activities for many reasons. Some economic interests may lose some of their control over the flow of ideas – this is to be lauded as a great improvement for Canadians. If an interim fund were to be created or sustained, as many such funds already exist to fund innovation in Canada, I would not protest too loudly. I may suggest they be given an appropriate sunset clause as the emerging market forces show the way forward.

“But in the end I believe most of the impetus behind the drive to copyright reformation is about maintaining crumbling monopolies as the world changes around us.”

Stay tuned.

Jon Newton