johndegen.com

getting down to business

2012-02-01T12:24:00.000-05:00

Last evening, at York University's fantastic Schulich School of Business in downtown Toronto I gave an hour-long presentation on Canadian copyright reform and the attack on the cultural industries by free-culture theorists. It was a summary of the history of reform attempts over the last decade, and a reiteration of some of the basic concepts behind the fight that don't always reach the layperson.

I am, of course, a layperson myself (not being a lawyer); but I hope I'm an informed layperson, since copyright and the fight to bring Canada's Copyright Act up to digital speed has been a focus of my professional work for twenty years at least. The class was full of future arts managers (maybe... you know, if there's still a cultural industry for them to graduate into) who listened with great interest, and asked penetrating questions. Every time I give one of these presentations, I'm reminded that copyright is both more complex and far more simple than it can appear, and that when folks are presented with the realities of the topic, as opposed to theory, they tend to get it.

Today, university students across Canada are marching in their respective cities, voicing their concerns about the rising cost of education and the very design of post-secondary schooling. As they do so, no doubt Canada's free culture activists will try to whisper in their ears, telling them that copyright is one of the major factors in their rising costs. After all, didn't the University of Toronto and the University of Western Ontario just agree to a new $27.50 per student fee for the use of copyright-protected materials in their classrooms?

Reality, as opposed to theory:

As I've shown in past postings on this blog, the license fees for blanket copyright clearance in Canada's universities and colleges represents a minuscule fraction of the budgets of our schools. Think of it this way: for every $100 a student (or a student's parent) pays for university tuition, about 12 cents would go to a licensing arrangement such as the one signed by U of T and Western this week.

By contrast, $56 out of the $100 in tuition fees would go to paying staff and faculty salaries.*

So, 12 cents to those creating a large portion of the educational resources, 56 dollars to those delivering the resources.

Follow the money:

There is consternation in Canada's free culture community today because of the license-signing by U of T and Western. Lawyer, Howard Knopf has dramatically labeled the signing a "capitulation" to Access Copyright. This wording pulls back the curtain on how free culture really views professional cultural creators. By creating culture, we are somehow attacking it.

Western professor and prominent free culturist Sam Trosow also strikes a mournful tone when he notes that his own employer has set back the free culture agenda:

"...the UWO/UofT abandonment of the opposition to the tariff could substantially undermine ongoing efforts of other institutions and educational groups who are objecting to the proposed tariff at the Copyright Board..."

And, interestingly, Canada's head free-culturist, University of Ottawa law professor Michael Geist has stayed mostly silent on the topic of the license agreement, pointing instead to his colleagues' blogs for commentary. This is a bit odd, since Geist is widely regarded as the energetic force behind the recent attack on Access Copyright and, indeed, the very concept of collective licensing in the educational environment.

Since this is a day for examining the money in education, it's probably worth noting that both Trosow and Geist make base salaries large enough to place them on Ontario's publicly available compensation list. Geist appears to be making close to $135,000 a year, while Trosow clocks in at a more modest $118,000.

(click on the images above to enlarge)

You won't find too many, if any, working professional artists on the same list, or even in the same salary bracket in Ontario. The average earnings for a working artist in Canada have most recently been calculated** at $23,500 per annum.

Am I saying our professors, administrators and other educators are not worth the portion of the budget they represent? No, I'm not. I think Canada has some of the best post-secondary educators in the world and they deserve to be paid well.

Canada also has some of the world's most talented cultural creators, and they also deserve their place within the educational pie chart, however small a place that may be.

*Numbers based on previous calculation comparing proposed $45 per student copyright tariff and the 2007 University of Ottawa budget.

**Artist earnings drawn from a 2009 Hill Strategies Report.

a whiff of spring

2012-01-31T12:55:00.001-05:00

Toronto is in the midst of a midwinter thaw today, and so too it seems are the copyright wars. The end of January brings all sorts of news of respect for artists, respect for the truth and respect for changing business models.

Last night I listened to a podcast of NPR's Talk of the Nation, which included a piece on How Online Paywalls are Changing Journalism. This story contained the welcome news from The New York Times that its much-maligned (by free-culture activists) new subscription/paywall structure is, in fact, working. Not only is it working, but its structure is being emulated by other newspapers

Critics have said NYT's online subscription (I am one of its subscribers) would simply not work with today's Internet. For instance, famed new media prognosticator, Cory Doctorow suggested the NYT's model was not viable and that potentially paying customers would be turned off by its complexity. He even offered to bet a testicle (someone else's testicle, it should be noted) that no-one would be able to keep track of their own NYT linking behaviours well enough to find value in the subscription.

Similarly classy predictions can be found across the web, almost all of them containing that endearing free-culture message that anyone who wants folks to pay for content on the Internet is just plain stupid.

Stupid like a fox, it seems. The NPR discussion included input from both Clay Shirky, associate professor in the Interactive Telecommunications Program at NYU, author and Denise Warren, senior vice president and chief advertising officer at the New York Times Media Group, general manager for NYTimes.com. It seems the NYT has hit upon an NPR-style supporter model that is attracting both loyal, paying customers and advertisers who want to get some of that loyalty action for themselves.

Alright, so we've fixed newspapers, now what?

Ah, educational licensing. Canadian free-culture activists took a big swipe at Access Copyright last summer, agitating for a boycott of collective licensing in the post-secondary context, using misleading math around the price of new licenses, and irresponsibly endangering the quality of education for tens of thousands of undergrads across the country.

Yesterday, two of the largest and most respected universities in Canada officially opted out of the proposed licensing boycott and signed good-faith agreements with Access Copyright, the licensing agency representing tens of thousands of Canadian creators. A joint press release went out yesterday from AC and the universities. As a graduate (twice!) from the University of Toronto, I am very happy indeed to know my alma mater chooses to bargain in good faith and work hard to respect copyright. I believe I will walk down to campus after posting this and hug a librarian.

"This agreement gives us a convenient, comprehensive way to share content digitally and in paper form from a repertoire of millions of publications,” said Janice Deakin, Provost and Vice‐President (Academic) at Western. “The backdating of the agreement gives us peace of mind by covering past digital uses that may have exposed the university and the indemnity provision increases the university’s legal protection against copyright infringement.”

Western and UofT will each pay Access Copyright a royalty of $27.50 per full‐time equivalent student annually. This royalty includes what used to be a separate 10 cents per page royalty for coursepack copying, so there will no longer be a separate royalty for such copying. The new royalty is substantially below the amount initially sought by Access Copyright in its Tariff application before the Copyright Board.

And finally, respect for accurate reporting.

The online journal ars technica has not been the best friend of professional artists and the cultural industries in this protracted battle for copyright reform, but it seems even they could no longer stomach the willful exaggeration and misinformation campaigns of free culture. Yesterday, ars technica took the Internet to task for inaccuracies in its attack on the Anti Counterfeiting Trade Agreement ACTA), one of a host of international agreements that, like the American SOPA and PIPA laws, free culture hopes to hobble by scaring the wits out of naive Internet users. Have a look at this, fairly typical, video attack on ACTA:

If you then read the ars technica article you see that it addresses each of the video's scariest claims about ACTA and shows how they are not just inaccurate, but often just plain false. Yet it is negative campaigning like this video that is used by free culture theorists to whip up anger and send young people into the streets in the false belief that their freedoms are under threat (remember the claims that SOPA would shut down YouTube? Same idea) . ars technica references this exact video, saying:

...the video itself is full of erroneous claims. The video has been embedded by outlets that should know better, like The Atlantic, and it has been viewed half a million times.

What's that delicate scent in the air? Why, it's the delightful aroma of reality. Can a true copyright spring be far off?

how your kids were taught to hate SOPA

2012-01-20T12:38:00.000-05:00

Post-blackout analysis continues today with a general recognition that US legislators have been scared away from legislating, and a new approach to attacking the problem of online piracy will have to be designed.

You can see this as something anywhere on the spectrum from great victory for grassroots democracy to needless waste of time and legislative effort. My view should be apparent.

Before I leave the topic for now, though, there is one aspect of the this blackout story that continues to nag.

How the message was spread that SOPA and PIPA were apparently so threatening to humankind.

Google and Wikipedia, among a number of other prominent web-based companies (mostly for-profit... mostly for obscene levels of profit), have permanently handed in their neutrality cards and made it perfectly clear that they will do everything in their power to influence your political opinions.

Fair enough for Google, I suppose. I don't know anyone outside the free-culture fanatics club who still believes Google has only our best interests at heart. How Wikipedians deal with their own suddenly unmasked bias will be interesting to watch. If Stephen Colbert has not yet coined the term factiness, I offer it to him free of charge.

Very sadly, the popular teaching site Khan Academy also got into the act on Wednesday. Who does not love the idea of Khan's short, engaging, simplifying video lessons for kids and adult learners on subjects as broad as simple arithmetics to advanced physics? During the blackout, we learned that Khan had uploaded a special lesson on SOPA. I encourage everyone to go watch it here - but as you watch it, I would ask that you apply as fine a legal filter as you can muster. To me, there is something simply horrifying in the lack of legal nuance on display in Khan's anti-SOPA lesson -- and let's not fool ourselves, this is not a lesson about specific legislation; it is teaching against specific legislation that reflects an undisclosed worldview.

Khan very engagingly draws out a diagram of how SOPA is intended to work. He then goes into the language of the proposed bill to show fearful consequences. Those consequences, he emphasizes again and again could be as bad as someone shutting down YouTube or Facebook or any other prominent American site "on a whim."

Here's how he does it. Have a look at the legislative language quoted below, especially the words in red text:

(1) DEDICATED TO THEFT OF U.S. PROPERTY- An `Internet site is dedicated to theft of U.S. property' if--

(i) the U.S.-directed site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates--

As though breaking down the reasoning behind 2 + 2 = 4, Khan explains that since YouTube and Facebook can be seen as sometimes enabling or facilitating copyright infringement, they would qualify as "dedicated to theft of U.S. property," and QED they could be shut down ... on a whim.

Teach your children well.

Let's look at that wording again with a slightly different emphasis:

(i) the U.S.-directed site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates--

Who believes YouTube or Facebook are primarily designed or operated for the purpose of, have only limited purpose or use other than, or are marketed by their operators to steal U.S. property? Raise your hands.

I thought not.

Shameful.

Now, none of these examples of naked bias are particularly bad developments in my view. I hope everyone learns a lot from what has happened this week. I hope high school students everywhere now realize they need to ruthlessly question everything they read on Wikipedia and everything they watch on Khan Academy. I hope web searchers wonder how Google might just be filtering search results before they click I'm Feeling Lucky.

SOPA is dead, for now, and new legislation will have to be designed. In the meantime, I hope more folks start wondering just how much of that scary SOPA story we were told this week was actually true.

you may just have become a gadget

2012-01-19T12:05:00.001-05:00

There will be a lot of digital ink spilled analyzing yesterday's SOPA/PIPA website blackout protests. I made my own opinion clear, I hope, in yesterday's posting.

As I take a quick look around the web this morning, I see prominent members of the free culture movement crowing about a great victory. People noticed we were gone; that means they agree with us!

Okay.

I think the actual response will be far more nuanced and considered, and will be analyzed over a much longer period of time than half a day.... but that's me, a hopeless optimist for clear thinking.

Happy free culture commenters are already starting to think of January 18, 2012 as the day everything changed, the day new media permanently arm-wrestled control from old media - a sort of Emancipation Day.

If emancipation suddenly means that we all push the buttons we're told to push when we're told to push them, then I suppose those commenters are right. Wikipedia, Google, Reddit and a host of other "new media" powers told the world to jump yesterday, and a large part of the world asked "how high would you like us to jump, sirs?"

Me, I have always thought the old media/new media dichotomy was false.

The danger of so called "old" media was always that by its very structure it might act as a gatekeeper to real understanding. It might mistakenly or intentionally mislead, falsify or corrupt. Yesterday showed that so called "new" media carries the exact same danger.

The blackout was not about educating an uneducated public by giving them enough information so they could make up their own minds; it was about carefully curating the message (oh, Marshall McLuhan, where are you when we need you?), about directing people to one prescribed conclusion. Interestingly, while new media shuttered itself yesterday, they turned to old media to push their message. I heard many a technologist on radio and television last night repeating the standard buggy-whip talking points. That this curation of the message was run primarily by a supposedly neutral search engine and a supposedly neutral encyclopedia is, to me, deeply unsettling.

Newspapers and network television were never about mindlessly accepting what was presented to us without independent discussion, challenge and the hard work of making up our own minds. They could and sometimes they did drive opinion, but it was always up to us whether or not the media had the power to do so. Passive acceptance of the message is a choice.

It remains a choice even now, the day after that remarkable display of groupthink power that was Emancipation Day.

I don't think there's a sharper mind thinking about the Internet and the supposed old media/new media split than Jaron Lanier. Author of You are Not a Gadget, inventor of virtual reality and researcher at Microsoft, Mr. Lanier walks his own path. He has alienated himself from many of his Silicon Valley friends by determinedly not drinking the Kool Aid (TM) of forced free culture.

In his op-ed in the New York Times yesterday, Lanier takes his friends to task. He argues that those who spread the false alarm about free speech yesterday regularly chill criticism and dissenting opinion within their own sector, and instead of fighting to secure a truly open Internet, they are actually fighting for the so called "free" territory they land-grabbed and intend to hold forever. The victory they are crowing about today is not a victory for you and me (especially if you clicked their links and made their threatening phone calls to legislators yesterday).

Mr. Lanier spoke in Toronto last year. That's him at the top of this posting, signing the print on paper book I bought from him. I recommend folks read You Are Not a Gadget.

Then read lots of other stuff, and make up your own minds. Or better yet, do whatever the hell you want to do. That's what real emancipation is all about.

and there was light... and it was good

2012-01-18T12:45:00.002-05:00

For the next 24 hours, I am protesting ridiculous alarmism by reading verified facts in a book, with a light on.

This morning, I gave a brief talk about copyright reform to the staff at the Etobicoke School of the Arts. I did not refuse to give the talk. I did not cover my mouth with duct tape, or demand that all the lights and my Powerpoint (TM) presentation be turned off. Unlike the large tech firms and free culture activists who have decided to take their ball and go home today, I actually engaged with people who were very likely to disagree with a lot of what I had to say.

We talked about Bill C-11, Canada's Copyright Modernization Act, we talked about DRM and pirate sites. We also discussed the current Stop Online Piracy Act and the Protect IP Act, two pieces of American legislation that free-culturists unsurprisingly believe will destroy the Internet and lead to widespread censorship without due process. We agreed, disagreed, agreed to disagree; then we checked each other's sleeves for hidden knives* and went about our day.

*If you're wondering about that reference, check Wikipedia for "history of the handshake"... oh, never mind.

There are all sorts of things I find disturbing about this Internet blackout protest from free culture. To begin with, I'm hearing an awful lot of lip-service today about piracy being bad and everyone agreeing on that, but...

Does everyone agree that piracy is bad?

I've spent over a decade of my professional life arguing for artists' rights on the Internet, and I think I've only heard the words "piracy is bad" with any sincerity from people in my profession. Most of the time what I hear from free culturists is that piracy is good, that it helps to build my audience in places that can't easily access my work, that in the long run it will mean more money for me. Why are these folks suddenly starting their highly publicized protest with 'piracy is bad" if they don't actually believe it? Why aren't they telling a suddenly wider audience their real opinions on piracy? Where's the sincerity? You know, I'd like to link to a lot more examples of free culturists advocating these new business models - like Cory Doctorow telling publishers and writers we should thank Google for taking our work without permission - but so many of them have gone dark it's hard to find the examples I know are out there. How convenient.

Besides, there should be no "but" after the words "piracy is bad." At least not until something is actually done about it, until we stop aggregators like Google from scanning books without permission, or from making huge ad revenues on sites that profit from stolen movies and music. Otherwise we're just swimming in hypocrisy. Piracy is bad, but we're just going to keep profiting from it.

Oh, Wikipedia. Maybe you should just stay dark.

The case of Wikipedia is more disturbing still. If my kids are going to be using a free online encyclopedia to help them with their homework, I would really like that encyclopedia to be neutral to a fault, so that my kids can examine verifiable facts, and make up their own minds how they feel about things.

Wikipedia has worked so hard in the past to address concerns about biased, politically slanted entries on its site. By taking this public stand, and by essentially holding their primary audience (schoolkids) hostage, and using their influence to send young minds into a protest they might not fully understand, Wikipedia has abdicated its responsibility as an educational source. Tomorrow, when Wikipedia turns the lights back on, and folks look up SOPA and PIPA to find out what happened, does anyone believe there will be a balanced, unbiased Wikipedia entry on the subject? How unbelievably sad.

Don't even get me started on the Canadian academic sites that have gone black today.

If you're genuinely worried about the potential for censorship and a lack of due process in the SOPA and PIPA legislations, don't go dark, don't stop talking for a day. Let in the light, all the light, the righteous light that shines on both the real fears and the alarmist, made-up ones. Your silence is only helping those who profit from artist-destroying piracy hide behind a black screen of ignorance and deception.

Feel free to use my declaration at the top of this posting on your Twitter and Facebook status updates - free of charge.

UPDATE: After considerable pressure on Facebook from a respected member of the CanLit community, I am including some relevant links here to information about SOPA and PIPA so you all can go and make up your own minds on it. Debating SOPA/PIPA was not my intent with this posting, but it seems to be the day for it, so here goes.

1. Apparently you can still reach the SOPA and PIPA pages on Wikipedia, though I've read them and I continue to worry about neutrality. Apparently you can still use Wikipedia if you quickly hit the ESC key before the blackout screen attacks (not sure how this is supposed to make me respect the blackout more, but there it is). The SOPA/PIPA pages are here and here. Most blacked out sites also have links to articles they think you should read. You can't discuss those articles on the blacked out sites, but you can go and read them.

2. In the comment section of the New York Times, a Wikipedia contributor has resigned, saying this (on his own Wikipedia page):

The blackout of the English Wikipedia destroys forever the concept of its political and geographic neutrality. It means rather than an open group of international contributors, uniting solely around their commitment to writing an encyclopedia, with nothing else implied, Wikipedia is, through what can only be described as an Internet moral panic, now associated with a particular political position in a particular nation. While many, possibly most, Wikipedians may happen to hold this political position in common, it ought to have been irrelevant to editing here. Now it is not; a precedent has been set and something important has died.

3. For more on the disingenuousness of much of the criticism of this legislation, I refer you here.

4. For an interesting take on the protest from a VIMEO video blogger who also happens to express her own opinions on piracy, see here.

5. For many links showing support for SOPA, go here.

To be clear, I only support legislation that contains due process. Lack of due process is a standard free-culture bomb to throw at most Internet regulatory proposals. No blackout protester has shown me a lack of due process in these bills, though the accusation is made.

real cultural damage, and the phantom kind

2012-01-12T14:47:00.002-05:00

(Pratt Library at U of T - will copyright shut it down forever?)

Regular readers of this blog will be familiar with the free culture movement's habit of creating false problems having to do with copyright, using fake math in their attempts to discredit copyright, and imagining phantom damage to culture because of copyright. The latest contribution to the panic-fest can be found over at the centre of the Canadian free-cultureverse, michaelgeist.ca.

University of Ottawa law professor Michael Geist is making one of his infamous calls for public outrage about the possibility, perhaps, maybe sometime in the future, that the government would consider, maybe, increasing the term of copyright from Life of the author + 50 years to the new international standard of Life of the author + 70 years. Judging by the good doctor's level of concern, such a change would likely mean the end of Canadian culture as we know it.

Geist lists a number of iconic Canadian writers (A.M. Klein, E.J. Pratt, Gabrielle Roy, Hugh Garner, etc.) and then claims that an extended copyright term on their work would have a significant impact on Canadian culture and history. He doesn't spell out exactly what that impact on Canadian culture would be, other than the fact that the works of these authors would continue to belong to their rights holders (generally the family members and heirs of the writers in question).

Just imagine... the sons, daughters and grandkids of important Canadian writers continuing to own the works their parents and grandparents bequeathed to them. It's like some sort of totalitarian nightmare, isn't it?

Geist goes on to claim that a term extension

"would have a dramatic negative effect on access to Canadian literature and history. Looking ahead, the likes of Margaret Laurence and Robertson Davies would be similarly delayed for 20 years."

Delayed? Delayed from what, exactly?

I did a quick search of every one of the authors mentioned in Geist's posting, all those who will soon feel this "dramatic negative effect" from having their copyright (maybe) extended. Every single author currently has books available through amazon.com, many in e-book editions. What's more, most if not all are also widely available through Canadian and international library collections. I can walk a block from where I'm writing this blog posting - to the E.J. Pratt Library at the University of Toronto (see above) - and almost certainly find original works by all of these authors and significant critical texts related to them. The suggestion that Canadian culture is about to be robbed, and Canadian citizens denied access to the works of these authors because of so insignificant a thing as a term-length for copyright is laughably absurd.

Who (if anyone) will suffer under an extended term?

Well, as I pointed out in an earlier posting, the folks most concerned about copyright terms and getting as many works outside of copyright as soon as possible are not the everyday consumers and culturally-minded Canadians Geist purports to speak for. No, those most looking forward to E.J. Pratt et al losing their copyright protection are the giant, multinational content aggregators like Google who want to suck up as much digitized content as possible without the hassle and bother of dealing with copyright licensing or permissions, so that they can continue to make gazillions of dollars selling advertising on top of other people's "free" content.

Real Cultural Damage

It should be noted here that Geist's blog posting looks quite different today than it did when he first published it on Monday. That's because many (though not all) of the spelling and grammar errors in the original posting have since been corrected (after prompting from me).

I wouldn't have bothered to help out, but the idea that Gabrielle Roy layed the foundation for the Quiet Revolution was just too disturbing to me. I know that Quebec Premier Jean Lesage was quite the looker, but is there any evidence to prompt such a scandalous assertion about him and Mme. Roy* from the heart of the University of Ottawa? This is just the kind of clumsy English-Canadian slight that could encourage another round of separatist activism.

These necessary corrections to Geist's writing are what the free culture folks call "crowd-sourcing." Crowd-sourcing means other people work so that Geist's words actually make some kind of sense on the page, and he continues to draw his impressive salary as a Canada Research Chair.

Now I ask you, what causes more actual damage to Canadian culture...

a multinational corporation like Google having to seek permission from (and perhaps pay royalties to) Canadian writers when it uses Canadian content in its privately-held, for-profit aggregation business; or a high-profile professor (at one of our most important universities) with questionable writing skills and/or an all too tenuous grasp on Canadian history?

As always, genuine, respectful, insightful comments and questions from real people continue to be welcome.

* By the way, anyone wondering whether or not Gabrielle Roy will remain available to Canadians need only check out a Canadian $20 bill. Mme. Roy is quoted on our money, asking "could we ever know each other in the slightest without the arts?"

(Photo of E.J. Pratt Library sign courtesy me and my little camera.)

false problems and bourgeois tragedies

2011-12-23T13:04:00.000-05:00

I took an early winter holiday to the great American northwest, enjoying lots of fog and espresso all along the Puget Sound and in downtown Seattle. As a result, I missed (blissfully, joyfully missed) most of the latest round in the ongoing Canadian copyright reform tussle, including a two day argument-marathon before the Supreme Court of Canada on December 6-7. I am really just now settling in to reacquaint myself with the issue.

Copyright? What's copyright?

Well, according to some in the growing field of quasi-legal populist theorizing, copyright is that inconvenient and potentially evil thing what stands between the innocent, interested student and her education. Having been thoroughly schooled in his own various interventions at the Copyright Board (and the Supreme Court?), law professor Ariel Katz takes to his blog instead, continuing to insist that without a fair dealing category, broadly interpreted, education will be terribly hobbled and free speech assaulted in classrooms across our fair land.

In both Fair Dealing, Copyright and the Haggadah, and Access? Copyright! Professor Katz indulges in the classic free culture gambit of introducing a false problem and then claiming that only a substantial weakening of creator rights will solve that problem.

The False Problem

In his attempt to explain free culture through sacred text, Professor Katz insists that recent Copyright Board decisions would force teachers to treat students differently according to their individual levels of interest and ability to request information. Anyone even vaguely familiar with the reality of public education in Canada knows that teaching inconsistency and the importance of student engagement have been the norm forever and have nothing to do with copyright. Still, Katz tries to blame copyright and a too narrow interpretation of fair dealing.

It's an interesting approach, though fatally constructed on a fallacy... that being some mythical link between the ability to educate and the ability to obtain educational materials outside copyright licensing requirements. Free culture advocates love to paint copyright as an iron curtain that shuts out users and imprisons true creativity, but such an image has no relation to how our free and open society actually uses created materials.

Copyright cannot stop a teacher from teaching. It cannot stop a student from learning. If a teacher (or a school, or an educational industry) refuses to deal in good faith with copyright, pay reasonable license fees and compensate creators for their work, that is not something imposed on them, that is a choice they are making.

Katz repeats this logical misstep in Access? Copyright! where he also tries to show how copyright law will stifle free speech within the classroom. Defining the simple licensing requirements for educational use as a "veto power" over education, Katz presents the nightmare scenario of a teacher unable to discuss or criticize a newspaper op-ed because she cannot distribute free copies of that op-ed to her students.

"I can't have this thing because it's not free" is what my lovely wife calls a bourgeois tragedy. We should remove the rights of artists, other creators and a vital segment of Canada's cultural economy because a school refuses to license 30 copies of a newspaper op-ed for their students? Really?

At most, we're talking about $3.00 for this hypothetical lesson that somehow can't happen because of copyright. If our educational system cannot spend $3.00 to teach 30 students something important, we have far bigger problems than copyright to deal with.

To blame copyright for the refusal of educators to do their jobs within the law is so diabolically illogical it frightens me to think such an idea is housed at the University of Toronto (where Professor Katz teaches). U of T remains one of great institutions of learning in this country. It is my alma mater, and I'm extremely proud to say it is one of the universities in Canada that continues to deal in good faith with my copyright collective.

Stop in the Name of Love (and copyright)

Thankfully, there are the Supremes. Back in early December, Canada's Supreme Court justices had little patience for such weakly constructed arguments. From the very first submission in the recent SCC appeal hearing on a K-12 educational tariff, the Supremes were looking decidedly quizzical and concerned, wondering why educators would claim fair dealing for insubstantial copying, and forcing education's counsel to admit that tens of millions of dollars of substantial copying were actually in dispute.

After years of slippery rhetoric from those arguing against collective licensing of copyright-protected works in schools, I can tell you it was unbelievably refreshing to watch that particular spin crash to the floor of the Supreme Court.

You can see the full appeal arguments before the Supreme Court in this archived webcast - warning, not for those interested in actually being entertained; only the copyright-geekiest will enjoy.

*(image of the Honourable Mr. Justice Marshall Rothstein courtesy the SCC webcast; image of fog in the beautiful trees of Puget Sound courtesy me and my little camera)

the free culture sustainability myth, part 2

2011-12-08T10:25:00.001-05:00

There is a video of fantasy and graphic-fiction author Neil Gaiman currently circulating among the acolytes of online free culture. It appears to have been produced by the Open Rights Group, an organization dedicated to protecting individual rights online, for which Gaiman is himself a patron. In the video, Gaiman discusses the beneficial effect so-called piracy has had on the market for his books, opening up foreign readerships and spreading his name and reputation widely. The author celebrates traditional notions of sharing and lending books, and expresses his own certainty that more readers discover their favorite authors by borrowing books than by buying them.

You can see Gaiman's video discussion here.

I don't necessarily disagree with anything Gaiman has to say in the video. In fact, my own experience of free digital download showed a similar unscientific trending toward greater audience and sales (albeit on a much smaller scale). Still, I do wonder if there isn't more to be heard from this very established author on the topic of traditional copyright. Specifically, I wonder... does this video show an author who is convinced enough by the notions of free culture and "sharing" to move into the always-free-digital, self-publication model discussed in my last posting?

Very, very doubtful.

Gaiman is currently enjoying a successful and lucrative career in traditional publishing with one of the world's largest English-language houses, HarperCollins. The "free" novel he references in the video, American Gods, is not available for free download, and is rather traditionally protected by his publishers with an all rights reserved copyright declaration, as are all the books listed on Gaiman's website. Readers can read the first chapter of that novel on Gaiman's website here. Time-limited free-distribution is not groundbreaking or particularly new, and the free sample chapter is a marketing strategy as old as the hills. Neither of these tactics are intended to excuse or encourage actual piracy.

In the video Gaiman expresses the belief that pirated free copies out there on the Internet do not represent lost sales. I think it's true that not every "shared" pirate copy can be counted as a lost sale, but I'm pretty sure an always-free model counts against sales at a certain point. Not only is that just common sense, but the numbers in Cory Doctorow's free-digital experiment definitely point to a plateau effect for the fan building encouraged by free-digital.

Of course, if piracy really had no negative effect on book sales and only expanded the paid market for an author, one would expect Gaiman's publisher to encourage it.

They do not.

In fact, HarperCollins is so protective of copyright they found themselves the target of free culture criticism when they suggested that libraries should have to repurchase e-book licenses after a certain number of borrowings from their collection.

Gaiman himself has a history of copyright litigation documented in detail on his wikipedia page. As far as I can tell, rights to his intellectual property and the sale of copies of that IP represent the business of being Neil Gaiman.

So, what of the pirates then?

Authors like Doctorow and Gaiman have bought themselves a lot of love from the free culture crowd with bold public statements blurring the lines between genuine sharing and outright piracy. At the same time, they benefit immensely from traditional publishing models and the hard slog of cultural workers within copyright-dependent industries. It's a neat parlour trick, but I imagine it leaves a pretty sour taste in the mouths of those battling to preserve traditional publishing in the face of rising piracy.

with a lot of help - is free culture proving to be economically unsustainable?

2011-12-02T10:56:00.001-05:00

Cory Doctorow's much-publicized experiment in self-publishing and free digital distribution netted the bestselling science fiction author just a little over $17,000 in the nine months since the launch of his short story collection With a Little Help.

Now, $17,000 is an amount of money at which no self-respecting author should turn up her nose, but does Doctorow's experiment suggest self-publishing and free digital download is as promising an avenue for authors as so much of the recent hype suggests. I'm really not sure.

Let's review:

Looking at his website, Doctorow has at least 13 books to his name, with more on the way. He's won numerous awards, and has been a New York Times bestseller in the traditional publishing world. Here's a short bit of the bio for him from a new book called The Great Big Beautiful Tomorrow:

"Cory Doctorow burst on the SF scene in 2000 like a rocket, inspiring awe in readers (and envy in other writers) with his bestselling novels and stories, which he insisted on giving away via Creative Commons. Meanwhile, as coeditor of the wildly popular Boing Boing, he became the radical new voice of the Web, boldly arguing for internet freedom from corporate control."

Anybody who has ever read a Doctorow posting on Boing Boing (considered the most popular blog on the web) is familiar with his relentless self-promotion of both his writing and speaking engagements. Doctorow travels the world as a paid lecturer, spreading the gospel of free culture and digital anti-corporatism. His speaking fee for a single event is reportedly as high as $25,000, and he draws crowds. I once went to see him speak at a library branch in Toronto on a cold, rainy night, and I literally could not get in the door because of all the fans who had come out.

If that's not enough to exhaust you, Doctorow also writes a regular column for Britain's The Guardian newspaper, and lists The New York Times, Publishers Weekly and Wired as other regular writing venues. The self-publishing experiment referred to above is, in fact, being performed for his column in Publishers Weekly.

In short, Doctorow has built himself a career, a network of professional connections, and a fan-base any professional writer would envy.

With a Little Help was launched as a free e-book, free audio-book, Print on Demand trade book ($16 price point), and premium hard cover edition ($250 price point). Doctorow created a donations channel toward the free downloads, and presented fans with the opportunity to have a new story written on commission for $10,000 (he described this offer as "underpriced"). Recent PW columns detailing the experiment document just how much help the author turned self-publisher has received from his traditional publisher, bookstore owners, librarians and his editor at Publishers Weekly. So, here's my question...

Shouldn't this book have made more?

Am I the only person who thinks Doctorow should be raking in significantly more that $17,000 from With a Little Help?

I believe in building and maintaining as diverse an eco-system as possible for writing and publishing. I may have disagreed publicly with Doctorow many times (over his positions and tactics in the copyright reform debate), but I would dearly love for him to have made 10 times what he has from this book because that would mean he'd proven there's a viable new market strategy for the legions of other professional writers trying to make their way in the world.

With Doctorow's overflowing rooms full of devoted fans all over the world, his endless sources of free promotion, his network of expertise and assistance, if he can't make a serious go of self-publishing, who can?

Ontario's public arts funding... for the win

2011-11-17T10:41:00.001-05:00

This past Tuesday, I was privileged to attend the award announcements for the 75th anniversary Governor General's Literary Awards. The GG's, administered by the Canada Council for the Arts, awards close to $450,000 in prize money and gifts to a diverse list of Canadian books each year.

Back in the day (before I was an arts funder) I used to study award announcements hoping to find those authors I most admired, and to make a winter reading list. Nowadays, I also apply a different lens. As I sat in the audience on Tuesday, I made a mental note of each winner with a history at the Ontario Arts Council.* After the first few wins, I began to lose count.

Counting authors, illustrators and publishers (winning publishers receive a small cash award to help with promoting the winning book) on the final English language list, there were 14 possible "wins" for the OAC at this year's GG ceremony.

OAC has a direct funding history with 10 out of the 14.

This is marvelous national recognition for both the peerless Ontario writing and publishing community, and the public arts funding that supports and nurtures it.

Congratulations to all the winners of this year's GG Literary Awards, and a great big Ontario Arts Council shout out to:

Christopher Moore

Tundra Books

Phil Hall

BookThug

House of Anansi Press

Erin Shields

Playwrights Canada Press

Charles Foran

Cybèle Young

Kids Can Press

*My office at the Ontario Arts Council deals only with English-language books, writers and publishers. A separate office, the Franco-Ontarian Arts Office supports the French-language literary sector.

should we move from copyright to workright?

2011-11-14T16:07:00.001-05:00

One of the more frustrating experiences a copyright defender can have these days is talking to a technology-focused person about copying. Copyright doesn't work with digital technology, we're told, because every interaction between technology and content involves some sort of copying. You can't access a web page without your computer making a copy of it; you can't receive an e-mail without making a copy of it; etc.

I have always made the distinction between what I call the incidental copying of certain technological functions and the intentional copying involved in either permitted or infringing uses of content. What's more, I've always thought my distinction made a lot of sense; and yet, I'm still regularly confronted with the same technology can't work with copyright canards. This focus on copying in the copyright discussion leads inevitably to one of free culture's favorite logical constructs, that copyright will break the internet. Please see my last post for thoughts on that.

Equally frustrating for those favouring strong copyright is the need to conceive of one's copyright-protected works within the language of property, as in intellectual property. Now, I certainly understand how the IP I produce is like property, especially when my ability to sell my IP brings in revenue, much in the same way that selling other kinds of property does. Still, the term intellectual property invites all sorts of confusing conflations with physical property. The if I bought it, it's mine and I can do whatever I want with it school of copyfighting is born of these conflations. So, someone who has paid $9.99 for a DVD copy of a film feels perfectly justified ripping that film from its media and uploading it widely across the Internet as though he were the actual owner of the film itself.

Intentional confusions over the meaning of words are at the heart of so many disagreements around free culture. How many times have I been challenged by a free culture true-believer on the concept of sharing, and the meaning of being a creator. How could sharing ever be a bad thing, and since when does artistic creation have anything to do with money? Well, I answer, sharing is a bad thing when what you're sharing doesn't belong to you (also known as stealing) or when you are forcing someone to share something they don't want to share (also known as bullying); and artistic creation has a lot to do with money when it's what you do for a living.

So, the copyright wars are as much about intentional confusion of terminology as they are about bad-faith theorizing about free culture.

Enter Abraham Drassinower, Associate Professor and Chair in Legal, Ethical and Cultural Implications of Technological Innovation in the University of Toronto Faculty of Law. Prof. Drassinower has recently published a paper that challenges us to reconsider some of the basic terminology of copyright, creative works and ownership.

Drassinower's paper is pretty heady stuff, drawing on Immanuel Kant no less and offering a compelling solution to the problems that arise when technology and copyright intersect. You can download a copy of "Copyright Infringement as Compelled Speech" here, and it will be published in New Frontiers in the Philosophy of Intellectual Property next year from Cambridge University Press (edited by Annabelle Lever).

Drassinower's main thrust is an attempt to move from thinking of a work as a thing that must be protected (as property is protected) to conceiving of a work as an act. As he writes:

"at issue is the 'work' not as a noun but as a verb... Copyright infringement is less a matter of disposing of an object than of repeating or reproducing an act of authorship without authorization."

Furthermore, a creative work is a special kind of act - the act of speaking one's mind. To think of it this way puts a fascinating new spin on just what it means to infringe the copyright of such a work/act.

"I want to argue that unauthorized publication amounts to forcing another to speak. Unauthorized publication is wrongful because it is compelled speech."

At one talk I gave about a year ago, I was challenged to defend my use of the word theft when describing copyright infringement. My response was that infringement may not always be, technically, theft under the law, but it almost always feels like theft to the author. Drassinower has put his Kantian finger on another one of those visceral descriptors for what it feels like to have one's copyright violated. It feels like being forced to speak.

I want to immediately apply this new lens to the current debate over educational use of copyright-protected material. Canadian creators are very concerned about a vague inclusion of "Education" as a category under fair dealing, feeling that it will open the door (a door already half-pried open by colleges and universities themselves) to widespread unauthorized use of creative works in the classroom. What such an outcome would feel like, I suggest, is being forced by law to teach with no expectation of compensation. We would be compelled to speak our work over and over again.

Drassinower's paper concludes with the idea that this concept of compelled speech is "a viable alternative... to the concept of reproduction as the axis around which copyright law must function."

If that's so, maybe we need to rename the whole law.

Workright?

is it even possible to break the Internet?

2011-11-04T12:14:00.000-04:00

Over at the Copyhype blog this week, Terry Hart has written a comprehensive, fascinating and funny survey of "the sky is falling!" rhetoric about regulation's effect on our much beloved interwebs. It seems whenever any government grapples with the complexity of protecting intellectual property rights in the digital realm someone, somewhere predicts an end-times kind of doom.

As the US Congress introduces the new Stop Online Piracy Act (SOPA), Hart has found a whole new batch of free culture panic. See the whole Copyhype article here:

Dispatches from the SOPAcolypse

And here are some of my favorite bits:

Hart quotes famed copyfighter (and lover of criticism) Cory Doctorow proclaiming that SOPA "might be the worst-ever copyright proposal in US legislative history," and then goes on to show that Doctorow has declared many copyright regulatory acts to be the worst ever. Copying one's own hyperbole is clearly not a regulated act in Doctorow's world.

Hart then sources the origins of the famous, free culture "this law will break the Internet" meme. It lies, unsurprisingly, in the copyleft primordial goop of Lawrence Lessig who literally wrote the book on Free Culture theory. Apparently, Hollywood has been trying to break the Internet for years now.

Wasn't the Digital Millennium Copyright Act (DMCA) also supposed to break the Internet? Hart looks back at a number of panicked prognostications from when the DMCA was just a little old Bill in 1998, and then notes that on its tenth anniversary the DMCA was hailed by Wired Magazine as the Law That Saved the Web.

Anyway, if Hollywood really wanted to break the Internet, couldn't they simply ask it to compute to the last digit the value of Pi? That oughtta do it.

opted out of a copyright tariff? how's that workin' out for you?

2011-11-02T17:03:00.001-04:00

Near the end of last summer, I published an op-ed in the Globe & Mail pointing out potential difficulties facing university faculty and students as a result of their school opting out of a new interim copyright tariff.

Quick flashback:

There has been a respectful collective licensing arrangement for educational use in place in Canada for decades, primarily through Access Copyright.

This system has provided broad access to teachers and students to Canadian content, and important revenues to Canadian creators and publishers.

Access Copyright licenses have been print-focused, as has been educational use, but educational use is becoming more and more digital.

Access Copyright attempted to negotiate new license arrangements with universities and colleges covering new and increased uses in the digital environment.

Free culture theorists advised that schools opt out of collective licensing and depend instead on fair dealing to cover most digital uses.

Universities refused to negotiate new licenses, forcing Access Copyright to apply for a Copyright Board tariff.

The Board imposed an interim tariff to cover ongoing uses while the new tariff is designed.

A number of universities and colleges announced their intention to work outside the tariff, claiming they could provide the same access to teachers and students without AC clearances.

One of the more prominent of the opting out universities was Toronto's York University. They announced new copyright guidelines for staff early in 2011. These directives contained some troubling details, such as a requirement that staff essentially spy on each other and on students to police copyright on campus, and the very real possibility that materials would be denied faculty if clearances outside Access Copyright were not readily available. I wrote about York's new guidelines here.

Well, it's November already, which means faculty and students have been dealing with the post opt-out reality for nearly a full semester. How are things going over at York University? Is it all sunshine and rainbows as the free culture folks promised, or is it more along the lines of my predictions in the Globe?

As it happens, the York University Faculty Association has been wondering the same thing, so they put out a call for responses to the new regime. Here's a short sampling of the summarized responses, publicly available on the YUFA website:

rumours of students spying on faculty and classmates re: potential copyright infringement

fear of persons other than faculty, TAs, and students enrolled in a course being enabled to enter a course website searching for possibly infringing items

lack of notice concerning new requirements: faculty member placed course-kit order as usual by mid-Summer and was never notified that the copies would be late: as of 3 October, still had no commitment from Bookstore that items would even be available by mid-October

inordinate delays in processing faculty permission requests e.g., request for permission placed with Bookstore 2 August; after repeated queries and promises, items not made available by Bookstore until 3 October: detailed email paper trail documents delays

faculty now required to seek permission repeatedly as permission might not be granted from year to year

faculty report that articles included in past course kits were denied permission this year

students have directed anger concerning delays at faculty members

insufficient numbers of copies have been made available by Bookstore (e.g., 120 copies for a class of 200)

insufficient lead time for students to prepare for their midterm test and their proposals for the major semester project

inordinate increase in the price of course kits, which is no longer printed on the kit: e.g., although containing fewer items than last year, a course kit’s price has increased from $57.00 to $87.00, i.e., by more than 50%; in another instance, from $54.00 to $99.00, i.e., almost an additional 100%, for a smaller group of readings

concern about cost of legal representation in the event that a faculty member is sued for copyright infringement

Higher costs, decreased access, growing anger and fear.

If I were a student (or the parent of a student) paying for an education at York University or any of the other tariff-ignoring schools, I'd be wondering about the actual value of the education I've bought.

how engaged are we, exactly?

2011-11-02T11:05:00.000-04:00

I've mentioned a couple of times now the Ontario Arts Council's recently released report on arts engagement in Ontario. It is a statistical analysis by the research firm WolfBrown, based on a commissioned Ipsos Reid survey of 1,594 Ontarians (interviewed by telephone) of just how, how much, and how frequently we engage with the cultural arts in the course of our lives.

The study also records our own ranking of the importance of this engagement to us - a measure the survey report calls salience. As a new lens for observing the cultural sector in which I've been working for my entire professional life, I find this report endlessly fascinating and encouraging.

Most gratifying, of course, is the key finding, which shows "the multifaceted and pervasive nature of arts engagement throughout Ontario." With engagement percentages at 99% and 98% for some activities, it's clear that the professional arts are woven into this province's* cultural DNA.

Less clear is what we as professional artists and arts presenters can do with the information this report presents to us. For instance, another of the key findings has to do with location of arts engagement, and it shows rather convincingly that Ontarians do most of their engaging with the arts in their own homes. What does this finding mean for those arts presentations that traditionally require people to leave their homes, art forms like theatre and dance. Do we fight Ontario's nesting tendency around the arts, or do we embrace it and try to work with it?

The report also raises interesting questions about the relationships between professional and amateur arts practices, and the effect of "popular culture" presentation on what might be considered the more "traditional" arts. What exactly does the soaring popularity of television shows like So You Think You Can Dance, Canada mean for professional dance artists and presenters?

We at the Ontario Arts Council have been talking about this report with our artistic communities since its release, and we'll likely be talking about it for years to come. I welcome personal observations here as well. The full report is at this link, and a summary is here. As well, you can watch the full (almost two-hour long) presentation of the findings by Alan Brown (partner at WolfBrown), just by clicking play on the embedded video above.

Tell me what you think. If you're not a cultural worker, what does this study tell you about your own engagement with culture? If you are a cultural worker, what does it suggest to you about your practice and your audience?

As always... genuine, respectful, insightful comments and questions from real people are welcome.

*For non-Ontarian readers of this blog, some context - Ontario is Canada's most populous province and second-largest geographically (I travel throughout Ontario regularly - it's huge!). According to recent government analysis, "Ontario’s population is projected to experience healthy growth over the next 26 years, rising 34.4 per cent, or over 4.5 million, from an estimated 13.2 million on July 1, 2010 to 17.7 million by July 1, 2036." Watch the fabulous Molly Johnson sing Ontario's praises here.

where are all those mashers and mixers we keep hearing about?

2011-10-31T17:44:00.001-04:00

More reading please, we're Ontarian

As mentioned in an earlier post, my employer, the Ontario Arts Council, recently commissioned a study on arts engagement in this extremely artistically-active province. The full report on the study can be found on the OAC website at this link, and I will be pulling out bits and pieces of the data as they catch my eye, to discuss them here.

I've already noted how well reading in general fared in the survey both in overall participation and frequency. It also does extremely well in terms of salience, which is the survey analyst's term for the relative importance placed on the activity by those participating in it. In fact, page 31 of the report notes:

"Reading in general exhibits the highest frequency and salience index scores overall."

In Ontario at least, it would appear that people gravitate to reading as their most-favoured form of arts engagement. It warms the heart of an old Literature Officer, it does.

Somewhat less engaging for Ontarians, it seems, is the artistic practice of writing. In fact, reading and writing present almost inverse numbers on the various engagement measures. So, while only 6% of respondents indicated they never read generally in newspaper or magazines, fully 95% say they never take writing lessons. While only 12% indicate they never read paperback or hardcover books for enjoyment, 83% say they never write fiction, short stories or poetry. By comparison, practices like music and visual arts show greater engagement in the actual doing of the art.

Hello? Remixers? Anybody out there?

Something else that jumps out at me across the disciplines is the engagement with art through technology, specifically online. Despite all the industry buzz around e-books, the OAC study shows only 26% of respondents indicating any frequency in enjoying their reading electronically. Compare that to the 56% of respondents who indicate frequency in listening to music online and the 54% who like to download and organize their music into playlists. And even with music showing higher digital engagement than books (which is to be expected, I think), it still surprises me to see only roughly half the respondents accessing music online. It seems new technology's grasp on cultural enjoyment is not as all-pervasive as we might be tempted to believe.

Which leads me to the result that really has me shaking my head. Page 36 of the report shows a brief analysis of the frequency of other online activities. Here are the results:

46% of respondents indicated they use the Internet to view art online, such as paintings, sculpture or photography;

16% of respondents indicated they share something online that they created themselves such as music, artwork, or stories, and;

only 12% of respondents indicated they take things they find online, like songs, text or images, and remix them into their own artistic creation.

I think I've been involved in the copyright reform discussion for too long, because that last statistic is a shocker to me. So much of the reform debate revolves around a commonly-held belief that technology has changed everything about how we appreciate and make art, and that a sharing, mashing-up and remixing culture is the new normal. Canada's new Copyright Modernization Bill (C-11), currently going before committee in Parliament, even contains a controversial User Generated Content amendment that promises to protect the public's right to take things we find online (like songs, text, film or images) and remix them into our own artistic creations.

Opponents of the UGC exception point out that it represents a dramatic appropriation of intellectual property rights from original creators, and they wonder why it's necessary when common practice has always permitted generous "remixing" of content without a special exception. With only 12% of the population indicating any frequency at all in this practice (half of that being only once a year), do we really need a whole new exception. Is digital remix culture more flash than reality?*

* I have edited this last paragraph after discussion with one of my commenters. If digital remixing is the child of traditional reference, commentary and homage (and I believe it is) then our common practice of permitting these "uses" despite copyright protection should be enough, and dramatic new exceptions with potentially undesirable consequences for rightsholders are unnecessary.

NatPo's editorial on copyright is... well... a copy

2011-10-28T11:21:00.000-04:00

On Thursday October 27th, Canada's National Post newspaper published a masthead editorial expressing some commonly held (though inaccurate) free culture complaints against Canada's Copyright Modernization Bill C-11. That a print-based newspaper would choose to launch an attack against "established old-media players" in the cultural economy is a bit baffling in itself, but what struck me as most odd about this editorial was just how familiar it all sounded.

Hadn't I read this somewhere else... just recently?

Well, no, I hadn't read it somewhere else; I'd read it in the National Post... on Wednesday, October 26th.

On Wednesday, the Post published an op-ed from one of its staffers, Jesse Kline, entitled "Jesse Kline on copyright reform and the case of the illicit t-shirts." The very next day, Kline's article was reprinted almost word for word as an original masthead editorial in the same paper.

See the image above for my quick, highlighter-aided comparison study of the two articles. There are no less that 24 sentences that are wholly or partially in common between the two "original" pieces.

I also note that Canada's most vocal free culture cheerleader, Dr. Michael Geist, happily posted links to both articles on his blog, apparently missing the fact that he too was repeating himself.

Where does lazy free culture thinking and a disrespect for originality take culture? See for yourself.

No wait. What I meant to say was... Where does lazy free culture thinking and a disrespect for originality take culture? See for yourself.

P.S. I sincerely hope Mr. Kline was paid twice for his work this week. Otherwise, he has a pretty strong case for a plagiarism claim.

internet comments and free expression

2011-10-27T11:49:00.000-04:00

After many years of allowing each and every comment to remain on my personal blog, I have decided to change that beloved policy.

It pains me to do this, most especially because I've had my own comments tampered with on certain high profile free culture sites, like those edited by Cory Doctorow and Michael Geist, and I've been very critical of this activity when it's happened. I believe it's a common, ugly feature of free culture debate that reasonable commenters are immediately attacked, insulted and hounded in order to shut down good-faith discussion. When that doesn't work, the perceived enemies of free culture are simply silenced by having their comments removed, or worse, by having repeated nonsensical comments made in their name by folks who are not them.

All that history notwithstanding, I've decided that several of my regular critics are well past their best-before dates in terms of good faith behaviour here in my personal little apartment on the Internet. Let me be as clear as I can about this - the fellows calling themselves Darryl, Gruesome, Crockett and Pieter have painted for me as detailed a picture as they ever will of their views on copyright, as well as their opinions of me personally, my blog, my thoughts on free culture, my debating style and my psychological health. I believe I simply don't need to hear anything else from any of them in order to expand my understanding of the issues with which I regularly engage here.

As guests in my apartment, they are no longer welcome. I have been as clear as I can be about asking them to change their behaviour. Where they have not, I simply no longer allow their comments. This morning, I have had to remove a number of comments as two of these fellows persist in trying to use my intellectual space for their silly games. This has prompted me to turn on comment moderation.

I want to stress that I'm not trying to stop these people from speaking their minds on copyright, and my commitment to broad freedom of expression remains. I'm saying I've heard enough of these particular loud and obnoxious voices in my own space, and I'm demanding they take those voices elsewhere. Last week, I attended a conference on copyright reform that featured refreshingly respectful and reasoned discussion, using real facts and real-world scenarios. As a result, I simply no longer have the patience for the blather, intentional misinterpretation and just plain ignorance that so much free culture activism features.

I can tell from my web-stats and from private feedback that the copyright thoughts I post on this personal blog are widely read by people who are central to the positive evolution of copyright in the digital age. Professional artists, academics, theorists, policy-makers, etc. are regular visitors here. I also know that all these folks do their truly impactful discussion at levels higher than a blog comments section, and so that is where I will focus all of my copyright energies now.

Genuine, respectful, insightful comments and questions from real people continue to be welcome.

What we talk about when we talk about public domain

2011-10-25T17:13:00.004-04:00

The IP Osgoode conference I attended in Ottawa last week was a welcome reality-tonic after a few years of hyper-sensationalist theoretical copyright panic in Canada. It was so refreshing to hear discussion about intellectual property that didn’t instantly fly off to the absurd edge of reason.

In the spirit of thinking real thoughts about real copyright, I thought it might be interesting to take another look at a concept that gets a lot of play in free-culture rhetoric – the public domain. Think of this posting as a follow-up to my earlier Copyright Reform 101 for the Cultural Sector.

What is the public domain?

The common understanding of public domain is of an abstract realm containing all the expressions of ideas and information that are not currently protected by a copyright term. The term public domain sounds like a place - like physical space - and I’m guessing that’s because it is a concept borrowed from the physical realm, just as so much of the thinking having to do with intellectual property is borrowed from the world of physical property.

In the world of physical space – look away from your computer screen for a second… that world – the public domain might be any space around us that we cannot completely reserve for ourselves alone. It contains all of the things that are our common property. Streets, sidewalks, parks, transit systems, public wildernesses. It is not possible for someone to set up gate on a public sidewalk and decide to let only certain people walk through it. Similarly one cannot choose the spot in the park with the best view of the pond and build a house on it, as that would be taking what is public and making it private. In the theory of public space, everyone gets to use the sidewalk and the park equally.

The public domain of intellectual property is a bit like that. At least that’s how many folks picture it, as a large public park filled with cultural works that everyone gets to share equally. And that’s why free-culture advocates are so protective of their own concept of the public domain. If each cultural work in the public domain is an individual flower in the park, then someone demanding copyright protection over one of those works looks a bit like stealing flowers from the park. And without those particular flowers, the public domain is diminished.

Is it really that simple?

Well, no. Public space in both the physical and abstract spheres cannot be understood in such exclusive terms. It is, in fact, possible to license public space for private uses, and there are certain limitations placed on the license. If someone books a soccer field in a public park for their kids’ tournament, does that mean there will never be a soccer field there again? Obviously not, and neither does it mean that no-one else is allowed to come and enjoy the tournament, though there will almost certainly be rules about who can be on the field during game play. As a happy, functioning society, we all accept these rules and limitations on our public space.

Similarly, even without copyright you can actually take a part of the public domain and declare it as your own. That’s what folks do when they take an unprotected story (a fairy tale, for instance) and publish a new edition of it. It is even possible (and is common practice) to then charge people to buy that new edition. As with the soccer field, does the existence of a copyrighted new expression of a “publically owned” story mean that story has been ripped from our culture like stolen flowers from a garden? Of course not.

Okay, but doesn’t copyright on original works somehow threaten the public domain?

This is a question suggested by all the free-culture panic over copyright term extensions. Recently, European copyright for performers and producers was extended from 50 years to 70 years, bringing it closer to the term for original authors, which stands at the life of the author plus 70 years.* Those opposed to such extensions criticized Europe for stealing from the commonly owned culture, because works whose copyright had lapsed were suddenly re-protected and therefore were not freely available in the public domain.

But, since when do we define our commonly owned culture as only that which we may all economically exploit? When I see a great movie or read a great book, must I wait until its copyright protection has lapsed before I recommend it to a friend or have a discussion about it in a classroom? Again, of course not.

Our common culture is both the public domain of unprotected works and those works that continue to have protection. What’s more, I’d be willing to bet that at any given moment in the past hundred years our common culture would be better represented by contemporary works under copyright protection than by the works in the public domain. People like new things. We may cherish old ideas, themes and even stories, but we want them to reflect in some way our contemporary reality. Copyright provides incentive for folks to continue to interpret contemporary reality with new works.

World renowned tenor Plácido Domingo welcomed the European term extension, making much the same point about strengthening our common culture I've just made:

"The decision to extend the term of protection for recordings in Europe is great news for performing artists. Artists at the start of their careers will benefit from an increased pool of revenue that will be available to invest in new talent. Established artists can benefit from their work throughout their lifetimes. This is especially important today when licensed digital services make music widely available online."

So, does copyright protection steal from the public domain? No, by expanding and strengthening our common culture copyright makes the public domain more relevant, richer and over time, ever larger.

Who is most concerned about the public domain?

Well, everyone should be concerned about it, since it is all of ours equally.

But these days, those most concerned with the public domain are…? Any guesses? Artists? Librarians? Teachers? Students? Kids who want to remix movies so that famous actors are saying funny things?

Wrong on all counts.

Certainly all those folks have concerns, but the folks most concerned with the public domain right now are extremely wealthy, privately-held, for-profit corporations who want to make a tonne of money from the “free” works in the public domain. Businesses like Google and Facebook and YouTube look at this vast parkland of collectively owned expression and they don’t see a garden – they see a content mine.

The keynote speaker at last week’s copyright conference, Dr. Silke von Lewinski warned that many of today’s free-culture alarmists spreading panic about copyright protection and the public domain are actually fronting for these free-content business interests. I think that’s true, but I think it’s also true that the panic has been contagious.

I invite artists, librarians, teachers, students and all regular individuals to question and re-examine what they’ve been hearing lately about threats to the public domain. Have we ever lived in a time of richer, more plentiful cultural expression? The public gardens are full and no-one is taking them away. We can afford to carefully license these spaces – in fact, it is the careful licensing and use of culture that gives us such a strong sense of collective ownership and pride about our culture.

Public park image courtesy... me! High Park is so lovely in the spring. Thank goodness for the regulated licensing of parts of it that helps to maintain the park for all of us.

*(thanks to commenter Pieter Hulshoff for the correction here)

copyright reality lands in Ottawa

2011-10-21T19:31:00.000-04:00

I'm in Ottawa to take in some of the Ottawa International Writers Festival, but since Bill C-11 is right now being debated on the Hill, copyright continues to be an important focus for me in this great cultural city.

So it is that I found myself spending the entire day today at the IP Osgoode copyright conference, Can Canada Learn Anything From Europe? at the Ottawa Convention Centre (photo above, from my Blackberry), and may I just say that it was an unbelievably refreshing experience to hear real-world copyright issues being discussed east of Parliament Hill.

There is plenty of real-world copyright in the Ottawa air right now as Parliament debates a good-faith bill in true democratic fashion, but walk a few blocks away from the Peace Tower (just over the canal) and things can often get quite, um... speculative and unreal. This conference was like sinking into a warm bath after years out in the Ottawa copyright winter.

Thanks to IP Osgoode's Director, Professor Giuseppina D’Agostino, who oversaw the organization of a truly informative and engaging program of international copyright experts. Really, the intellectual property pedigree in the room was kind of over-the-top. This conference certainly establishes IP Osgoode as Canada's intellectual centre for copyright discussion.

The morning began with a big-picture review of European Union copyright legal activity from Dr. Silke von Lewinski of the Max Planck Institute for IP and Competition Law in Munich. Ms. von Lewinski set the tone for the day, I think, with a gentle swipe at "academic excitement" over TPM protections that are "not reflected in the real world." Considering the local "academic" who was sitting about thirty feet from her as she spoke, I think the only possible interpretation of that comment can be... in your face.

Are you beginning to see how something as geeky as copyright can actually be kind of fun and exciting when you get right into it?

Other contributors included former World Intellectual Property Organization (WIPO) Assistant Director General, Dr. Mihály Ficsor , and UNESCO consultant and President of the Association Littéraire et Artistique Internationale (ALAI), Professor Victor Nabhan (oh, the irony - a visiting professor at Ottawa U).

I'd go through the rest of the program point by point but the Ottawa night and the writer's festival (real-world cultural engagement) beckons. Anyone interested can get full conference materials directly from the IP Osgoode website, starting tomorrow (I believe).

I'll spend a bit of time digesting everything I learned today, and I'll likely work it into my next blog posts. But I can't finish right now without reference to one central message from today. This morning, there was a prolonged discussion about the sensationalist rhetoric and unhelpful analogies that can so often distort real-world copyright discussions. One speaker referred to this as pre-loading the dice in favour of one side or another.

Well, in a full day discussion that included many, many mentions of Technological Protection Measures (TPMs) and Digital Rights Management (DRM), I'm pretty sure I never once heard anyone use the term "digital locks."

Score one for cutting through sensationalist rhetoric.

the results are in, and... we are engaged

2011-10-14T17:06:00.000-04:00

Yesterday The Ontario Arts Council released its Ontario Arts Engagement Study, a survey and report commissioned from research firm WolfBrown.

Obviously, I'll be studying this report in detail and commenting on the findings in both my work and on this personal blog. I'll start by noting a couple of quick findings that jump off the page and make folks in the OAC Literature Office* very excited indeed:

The report finds that "with respect to individual activities, overall frequency of participation is highest for ‘reading articles in newspapers or magazines’ (94%), ‘watching movies on a computer, TV or DVD’ (94%), ‘listening to music on a local radio station’ (90%), ‘reading paperback or hard cover books for enjoyment’ (88%)..."

Magazines and books holding their own against film and music? The numbers don't lie.

In fact, of the top ten most prevalent arts-related activities in the province that also show high frequency rates (once a week as opposed to once a year) reading in books and magazines occupy two of the top four rankings. This province loves us some reading!

Data for the study was collected through a series of 1,594 telephone interviews of Ontarians in all parts of the province. The interviews were conducted by Ipsos Reid this past May and June.

You can find the full report on the OAC website here, and a summary here.

*For those unaware, I run the Literature Office at the Ontario Arts Council. That's my day job.

when is a lock not a lock?

2011-10-12T13:07:00.000-04:00

There's a lot of panicked talk in the free-culture world about Canada's new Bill C-11 and its legal protection for technological protection measures (TPMs) and digital rights management (DRM). Somehow, the most vocal opponents of creator copyright have convinced teacher, library, student and even civil liberty advocacy groups that "digital locks" are about to imprison our culture, censor us, and take away our ability to access and use creative material.

Canada's free-culture commando, law-professor Michael Geist, has been loading his blog recently with carefully culled and meticulously edited statements from various groups worried about the TPM protections under C-11. That these complaints against TPMs are almost word-for-word quotations from the past writings of Michael Geist himself is no coincidence. Geist's sensationalist claims about existing copyright mechanisms, his coining of the term "digital locks," and his populist (and highly political) campaigning on behalf of consumers are all very quotable. Accurate? Not so much. But Geist isn't the first fellow to use highly quotable inaccuracies to muddy the waters around artists' rights.*

Viewed from the perspective of a professional artist, this collection of lockdown worries is a very strange response to Bill C-11, since the legislation actually greatly expands the freedom users have with works they've legally accessed. The bill contains a host of new provisions that broadens existing fair dealing. In fact, users are feeling so free right now that a bunch of universities and colleges in the country (some of the biggest "users" there are) have decided they don't have to license publicly available material through copyright collectives anymore.

Locks, really?

Consider the quaint little lock on a child's diary? Like the tiny padlocks on suitcases or the hook-and-eye locks on gates, diary locks are ridiculously bad at providing security in the face of a determined trespasser.

Now consider TPMs and DRM. Copyright holders sometimes use these to manage access, and control copy permissions for creative works in the digital environment. They are technological solutions to technological problems imposed on creators wishing to work professionally online. They can be as simple as the password you use to enter into your e-mail provider, or as complicated as the code that allows you to view publicly available text on the Internet but not use your computer's copy and paste function on that text. They also - according to all technical experts - are completely inept at stopping the determined hacker from breaking the code and either accessing the material or copying it (or both).

Vocal opponents of these protection measures are fond of calling them "digital locks" (thanks, Professor Geist), but as working locks they're about as daunting as a piece of tape. We are told again and again there isn't a digital lock that can't be broken. Ironically it's very often the same folks complaining about our use of TPMs who tell us they don't work.

So, why do we bother with TPMs?

Well, why do we bother with diary, luggage or gate locks? None of them work very well. All of them can be broken with little to no effort. As serious efforts at security, TPMs are... well... lame. But ask any kid whose little brother has broken into her diary why that useless little lock is there, and you begin to understand why we use these things. They're not really locks at all - they're declarations of private property.

Artists and our industry partners need to be able to declare when access is permitted, and when it is restricted. Furthermore, we need to be able to declare when copying is permitted and when it's restricted. These actions are key to the exercise of an essential human right, one recognized by the United Nations and detailed in its Universal Declaration of Human Rights.

We declare our right to private intellectual property in many ways - most often with a simple © or a Creative Commons alternative. And we also recognize that a copyright declaration requires the force of law behind it to have any hope of setting a behavioural standard. Even Creative Commons licences are legal documents.

The same goes for TPMs and all digital rights management systems (DRM). Without the force of law protecting an artist's choices about her own work, there are simply no fair, effective choices. We'd all like to think our brothers won't read our diaries (and most of the time we're right), but that's not really the world we live in, is it? Especially not on the Internet.

What are we worried about?

The main worry, expressed over and over again by those quoting Geist is that new and established user provisions within the Copyright Act (e.g. fair dealing) would be "trumped" by TPM protection.

I use fair dealing all the time - quoting and taking extensive notes from others' work as I create my own work. Would a TPM stop me from doing that now that C-11 is here? I can't see how.

Let's say I download a new book to my Kobo e-reader. Will Kobo's proprietary DRM and TPMs stop me from exercising my fair dealing right to quote from that work or to copy portions for my own private use? Not at all, because I own one of these:

and one of these:

Using my beautiful LAMY Safari fountain pen, I copy fair dealing portions of any e-text into my beautiful Moleskine notebook, and no big, scary digital lock can stop me from doing so. No laws broken, all rights respected.

Now, I'm not (just) trying to be clever here. I recognize there are some forms of creative expression more dependent on digital technology for the creation part (digital film-making, for instance), but I don't recall the fair dealing provision ever stipulating that copyright owners must provide perfect copies in the exact format requested for those users wishing to exercise fair dealing. Fair dealing is not free delivery -- there is some work involved. The idea that, as a user, I must be able to copy and paste from the Kobo electronic file rather than do the work of making my own notes is a bit, well, entitled, isn't it?

I just want to assure Canada's students, teachers, librarians and civil libertarians that I - as both user and creator - intend to continue exercising fair dealing no matter how TPMed or DRMed is the content I legally access. I'm not worried, and I really think everyone else should re-examine their own worries.

Worries, Re-examined:

Folks worried about legal-protection for TPMs can start their healthy re-examination of this issue by breaking the Michael Geist habit. The crusading professor is not the only legal mind at work on copyright in Canada, and neither is he even close to the authoritative word on this subject.

IP Osgoode is the blog site for Osgoode Hall's Intellectual Property Law and Technology Program. With the release of C-11, IP Osgoode republished this examination of the previous copyright bill's identical TPM protections:

Acting as the Fulcrum between Owners’ and Users’ Rights

Similarly, the Entertainment and Media Law Signal had this interesting analysis of the so called "digital lock" protections:

A Practical Solution on Digital Locks?

Finally, two of the keenest minds on copyright in Canada question the very idea that C-11 contains blanket protection for TPMs and DRM. Barry Sookman and James Gannon provide detailed analysis of the new copyright bill and the TPM protections it includes.

James Gannon - TPMs: A comprehensive guide for Canadian copyright law

Barry Sookman - Some observations on Bill C-11

Sookman (who is himself often quoted by Geist) makes no bones about his opinion of the free-culture academic in his analysis:

Opponents of legal protection for TPMs — such as Michael Geist — have made inaccurate statements about the legal protection for TPMs. Michael Geist’s relentless misinformation campaign against them makes it difficult and confusing for many Canadians to form informed views about the Bill’s TPM provisions.

* Terry Hart over at the Copyhype blog has an excellent posting showing how many of the anti-copyright arguments of today are just copies of the attacks against artists by past new-technologists trying to expropriate property.

Lock image by Carlos Luz on Flickr, licensed with a Creative Commons Attribution 2.0 Generic license.

I'm not orphaned yet!

2011-10-06T12:18:00.000-04:00

In a lovely Monty Pythonesque moment of irony, the author of one of the University of Michigan's so-called "orphaned" works has poked his head up and declared himself alive and completely findable. J. R. Salamanca, American author of Lilith has personally joined a lawsuit launched against the U of M's HathiTrust by the American Author's Guild. Also joining the suit today is The Writers' Union of Canada.

You can read all about The Writers' Union decision to join the suit in their press release here.

Here are a few choice quotes for those in a hurry:

The defendant universities have pooled the unauthorized scans of an estimated 7 million copyright-protected books, the rights to which are held by authors worldwide, into an online repository called HathiTrust. In June, the University of Michigan, which oversees HathiTrust, announced plans to permit unlimited downloads by its students and faculty members of "orphaned" books (some consider works whose rights-owners cannot be found after a diligent search to be "orphans").

After a quick Google search, the Author's Guild was able to find a number of the so-called "orphans" who were about to have their property expropriated by the HathiTrust, including Mr. Salamanca.

"How is it they couldn't find Jack Salamanca?" asked literary agent John White, who has represented the author for more than ten years. "He's a bestselling novelist, he's lived in suburban Maryland for decades, he's in the University of Maryland's current online catalog as an emeritus professor, and he signed an e-book agreement for "Lilith" four weeks ago. It boggles the mind."

"These are major, well-funded U.S. research institutions capable of great things," said Greg Hollingshead, Chair of The Writers' Union of Canada. "They could have found most of these authors had they cared to, but it seems they didn't. They just wanted to release e-books for free. They don't take literary property rights seriously, so why should any of us trust their security measures? If they're hacked, and digital files of 40,000 Canadian books are released, how are Canadian authors ever again to receive significant revenues from those works?"

Here in Canada, we are often told by the advocates of broad free use of copyrighted materials at universities that our established collective licensing system is too expensive and too difficult to implement. Now we cultural workers are also, apparently, too difficult to find... even when we live right next door.

Bring out yer dead!

Copyright Reform 101 for the Cultural Sector

2011-09-30T12:37:00.001-04:00

©...

With the return of the federal copyright modernization bill (Bill C-11) the sound bites and fevered rhetoric in the copyright debate have started flying again. It can all get quite confusing, and for professional creators, publishers, producers and other rightsholders the idea of joining the public debate can be very intimidating.

As I’ve documented on this blog, the opponents of copyright do not treat professional content creation with much respect. Nasty personal attacks, highly politicized accusations of corporate greed or totalitarian control, and just plain old haranguing are commonplace when an artist or cultural professional insists on strong copyright. Who wants to be seen as a jailer of culture, someone who sues and imprisons fans? And who wants to be followed around Twitter, Facebook or even one’s own personal blog by tireless free-culture fanboys intent on drowning out the voices of professional culture.

Anticipating this ramp-up of nastiness, I prepared a quick do and don’t fact sheet for anyone concerned about their copyright and thinking about the new bill. I realize there are a range of opinions on all these points, but this is my opinion. Please note that I am not an intellectual property lawyer (though I have had lunch with many of these fine folks). I’m just a writer… standing in front of a reader… asking her to respect my rights.

Do and Don't:

Do support fair dealing – The fair dealing provision in Canadian copyright law is absolutely necessary. It allows us to interact with the copyright-protected work of others freely enough to encourage the continual growth and revitalization of culture. Fair dealing allows us to research, to study, to quote, to pay homage to, and now (though I’ve always insisted on this myself) to engage in parody and/or satire without obtaining the permission of a copyright holder. These are all genuinely good things that build our collective culture.

Don’t assume that if some fair dealing is good, more fair dealing will be great – The pressure is on by so called user-rights activists to endlessly expand the fair dealing provision within the Copyright Act. More pernicious than just the adding of new categories to fair dealing (see C-11’s new “Education” category) is the free-culture movement’s desire to take logical, established category definitions and make them so vague (again, see “Education”) that just about any use will fall under them. Fair Dealing was designed as a necessarily limited provision for use. If we remove the limits, we terminally weaken copyright. I am hoping for clarifying amendments in the fair dealing section of C-11.

Do share – The Internet’s impact on the sharing of culture is indisputable. Never has it been easier for creators and cultural professionals to get their work out there and gather audience and/or readers around it. I think we should all be experimenting as boldly and fearlessly as we can with new business models for cultural distribution, but always with a firm grasp on our rights.

Don’t confuse actual sharing with forced-sharing (also known as taking) – Any three-year old knows the difference between wanting to share and being forced to share. Free-culture businesses such as Google and YouTube are making billions of dollars selling advertising on top of freely shared content. Fair enough. But when the sharing is forced (Google Books, YouTube “mash-ups” that go far beyond fair dealing) then copyright has been ignored. Don’t give in to this often intentional conflation.

Do love schools and libraries – the cultural sector has always been and should always be the strongest supporters of and partners with education and libraries. I recommend all creators and cultural professionals volunteer their time and content as much as they can in both libraries and schools.

Don’t let this love turn you into a content doormat – Sometimes love hurts. Such is the case right now when a Canadian cultural collective (Access Copyright) finds itself having to fight the misguided free-culture impulses of some of our traditional partners. This goes back to the difference between sharing and taking. The universities and colleges currently refusing to negotiate with Access Copyright want to continue to use Canadian creative content without having to pay for it. This is not about a fantastic professor you know inviting you to speak in her classroom and not having the budget to pay you; this is about extraordinarily well-financed post-secondary institutions wanting to cut collective licensing out of their expense lines altogether.

Do know the difference between an original and a copy – It sounds a bit silly, I know, but the ease with which the digital realm can make perfect copies of most creative content has confused a lot of good folks. Here’s the example I always use.

When you buy a DVD of Cool Hand Luke (one of my favorites) you are not buying the movie Cool Hand Luke. You are buying a DVD. In other words, you are buying a copy, not the original. The original of Cool Hand Luke would almost certainly be more expensive than the $12.99 you paid for the DVD copy, because the original contains all the rights purchases from all the artists who worked on the film, and all the licensing rights for the term of copyright.

The DVD does not contain those things. Instead it contains a copy of the movie for which you are purchasing necessarily limited rights. Quite often, whether you like it or not, you are not buying the right to move that copy of Cool Hand Luke from one format to another (also known as copying). This limitation can and probably will change as formats become more flexible and format-shifting less complicated, but as more rights get bundled into a copy-purchase the bundling must be done on the rightsholder’s terms.

Don’t let free culture erase the important distinction between originals and copies - As much as we all enjoy the incredible convenience of digital media, we need to let the industry that fuels it (professional content creation) negotiate their own terms of use for their product. As anyone in culture knows, rights are part of the economy of our sector. Free culture may want to disguise copying under the happier term “use,” but if the “use” assumes one of your rights, you’ve lost something important.

Do support rights management, whether you choose to use it or not – Digital Rights Management (DRM) is exactly what it sounds like, a tool to manage creator rights across digital platforms. Since digital rights management is applied to copies of works and not to the original work itself (remember that important distinction) it is essentially a No Trespassing sign keeping specific creator rights reserved for the original. The breaking of digital rights management tools should be as illegal, therefore, as intentional trespass on private property.

Don’t buy the prison and chain imagery - Those who would have you believe that DRM is a “digital lock” are either mistakenly or intentionally conflating originals and copies. The idea that DRM on an e-book could keep another writer from exercising her fair dealing rights to study, research or quote from the work in that e-book is as absurd as saying a physical book’s binding and copyright page stops her from reading or taking notes. With DRM, the copy may be managed but the work still exists for fair dealing uses. And besides, if we weaken the cultural industry’s control over their intellectual property we reduce the available business models for them, and therefore reduce actual consumer choices. There can be no Netflix without legal protection for rights management.

Do boldly go – Creators and cultural workers should experiment broadly with technology and new platforms for creative works. Read a book on an iPhone to see what that’s like, write a book on an iPhone (actually, I’ve tried that – no fun at all). Learn where workflows and formats and distribution channels are going. Why am I even telling you this? Cultural creators lead the rest of the world in this kind of thing. But as you boldly go into the digital universe, keep your rights as creators and producers. I have yet to discover a new technology that required me to give up my rights in order to use it.

Don’t let anyone tell you “you just don’t understand the technology” – This is the big free-culture talking point – digital culture is just flat out different from that old-school culture you remember, and the new technology simply requires that copyright not be so demanding. Take this to the extreme edge of free culture and you hear that copyright will break the Internet. Arguing against this line of thinking, I’ve often been labeled a “creator of the past.” Okay, so let me use some language of the past – Balderdash! There is nothing in the functioning of the Internet (or your smart phone) so mysterious and new that you have to give up your fundamental rights as a creator. The plumbers of the intertubes are some smart folks. They can figure out copyright, given the proper incentives.

Do embrace openness – Like the word sharing, the word open is getting a lot of play in free-culture circles. Open access, when respectfully designed, allows free and unrestricted access to creative content for either select groups (students of a specific university) or for the whole darn world. Openness is the impulse behind blogging, behind free public performance and wiki-knowledge tools. Unquestionably, openness makes the world a better place.

Don’t buy into enforced openness – As with forced sharing, enforced openness is a bit oxymoronic. Just the other day, Princeton University passed a new Open Access Policy that, among other things “gives the University a nonexclusive right to make available copies of scholarly articles written by its faculty.” Couched in terms of generosity and convenience, the policy forcefully removes the rights of individual creators for the “greater good” of openness. In the FAQ about the policy, Princeton happily admits it is removing a right from its faculty, but assures them it will be better for them in the long run. How…. open?

Do love your fans – This is an easy one. Anyone who’s received a flattering e-mail about their book, article, issue, movie, song or performance knows that there really is no cultural production without a receptive audience. Cherish that relationship.

Don’t let a thief call himself a fan – Fans respect the rights of the creators whose work they admire. Enough said.

board sends tariff objectors back to copyright school, part two

2011-09-27T20:30:00.000-04:00

Last March, Canada's Copyright Board brought a judgment on the validity of objections to the Access Copyright Interim Tariff for post-secondary educational institutions. An organized cadre of free-culture lobbyists had flooded the CB with written objections to a perfectly fair tariff.

It's worth remembering that the interim tariff was put in place only when the good-faith license proposals of Canada's copyright licensing agency were ignored and avoided by many in Canada's university and college sector, leaving Canada's creators, publishers and copyright holders with no protection for their intellectual property and Canada's students and professors liable for any incidental infringements.

Instead of negotiating price and access, many universities chose to follow the siren call of free culture and hope that changes to the fair dealing provision would give them a broad exception from license payments for publicly available material.

The judgment of the copyright board was unequivocal. The objections of the free-culture crowd were, well, ridiculous. You can read all about that judgment in my earlier blog posting here.

You'd think the kind of public embarrassment that comes with having one's core arguments so completely undressed by an authoritative body would make the free-culture folks a bit skittish about going back to the Copyright Board with more complaints on the same subject. You'd think.

Last week, the Copyright Board released its latest decision about the latest objections from the free-culture folks claiming to represent the best interests of our country's educational system. The verdict? Wrong again. You can see the full text of the latest Copyright Board decision on their website.

Quick summary:

Universities who have opted out of the interim tariff actually need to keep using the material in the Access Copyright repertoire. They objected, somewhat bizarrely, to the Board that they needed to license the material per-clearance rather than just paying the perfectly reasonable tariff for blanket clearance - a plan that would certainly cause more administrative headaches and quite possibly even cost more.

As ridiculous as that probably sounds to you, dear reader, that's exactly how ridiculous it is, according to the Copyright Board's decision. Here's a few quotes from the Access Copyright press release on the decision:

The Board said post-secondary institutions cannot claim on the one hand that their needs of the materials in the Access Copyright repertoire are so “marginal” as not to require the Access Copyright tariff, while arguing at the same time that the same materials are so “critically important” that they need generous access to transactional licences.

"We cannot be ‘marginal’ and ‘critically important’ at the same time. It’s either one or the other,” Ms. Cavan said. “Last year, over 100 million pages were copied from over 120,000 titles into coursepacks alone. And that’s just the tip of the iceberg.”

Access Copyright represents over 10,000 Canadian creators and publishers.

rest in peace Charles Oberdorf

2011-09-21T00:27:00.000-04:00

There's a wonderful remembrance in the Globe and Mail of Canadian magazine writer, editor, television producer and teacher Charles Oberdorf, who died last Friday after a decade-long struggle with COPD.

I didn't get a chance to speak to Mr. Oberdorf enough, but I was privileged to be in the room with him for many meetings during my own magazine years. I saw him last at the National Magazine Awards, where he took the stage, trailing an oxygen tank, to receive a lifetime achievement award. That was years ago and even though he was clearly not doing well, he held the audience with his words. The cultural sector is poorer for his absence.

I am not a giant d*****-bag

2011-09-20T17:45:00.001-04:00

Just a quick follow-up to my last posting about free culture bullies and their less than exemplary behaviour online.

This past weekend I received an e-mail from Erin Finlay, Legal Counsel and Manager of Legal Services for Access Copyright, the Canadian Copyright Licensing Agency with the above title as subject line. Ms. Finlay had read my last posting and could relate. You see, last week, she had responded to a CTV reporter covering the story of Canadian universities restricting the use of Canadian content in their classrooms in order to avoid paying a tariff. Her quote appeared in the CTV story online, setting Ms. Finlay up as the latest target of anonymous free-culture rage.

A pseudonymous blogger named mrlemurboy made this very public claim about Ms. Finlay:

"Erin, and the rest of the folks at Access Copyright are giant douche-bags. Yes, that’s right, douche-bags! I may even go so far as to say slimy douche-bags."

Though it seems ridiculously unnecessary, I'd like to inform the Internet that Erin Finlay is NOT a giant d*****-bag. Rather, she is a very nice law-talking person with a passion for singing. Erin has managed to combine her interests in both the law and the arts, and works very hard for the protection of Canada's professional creators.

Thanks Erin.

As for mrlemurboy, please get your facts straight before reaching into the free-culture can o' nasty. Things you got wrong:

Access Copyright has a Monopoly on copyright for educational institutions

Capitalizing and bolding the word monopoly does not make it an accurate description. Canadian educational institutions have many options for obtaining copyright protected materials. If they want the materials represented by Access Copyright, they should deal with Access Copyright. That's not a monopoly, it's a repertoire.

Access Copyright wants to increase what it charges by 1300%

The 1300% figure lemurboy quotes is so wrong not even moderately well-informed free-culture advocates try to quote it anymore (except when they think it might fool someone). Maureen Cavan, Access Copyright's Executive Director battles the free-culture misinformation on pricing in a recent letter to the editor, where she writes:

"Previously, students had to pay anything from $3.38 to over $200 per year in royalties. This included a flat fee plus 10 cents per page when protected works were included in coursepacks. That easily adds up. We have offered instead to blend the flat fee and the per page fee into one. Students would no longer pay the per page fee each time they buy a coursepack. The proposed tariff also includes digital scanning and posting, a growing practice not currently paid for.

While we suggested an upper limit of $45 per student, the actual rate will be decided by the Copyright Board, an independent arbitrator that will make its own value assessment based on facts presented by us and the educational institutions themselves. Pending that, no institution is facing a sudden cost spike. It is disingenuous to suggest otherwise."

if free culture is going to be so great, why are bullies in charge of it?

2011-09-13T20:58:00.000-04:00

Helienne Lindvall is a hard-working musician with a major label career. She's also a writer of note, a Swede transplanted to New York and then London whose arts journalism is published at home in the Guardian and as far off as The Australian. She knows just how rewarding, exciting and precarious it can be as a professional artist and "content creator" in today's global digital tsunami zone. When she speaks about professional creation, folks should listen.

Unfortunately for her, when Helienne does speak about professional creation she occasionally rubs free-culture ideologues the wrong way. All her talk about respecting intellectual property, not infringing copyright and paying for music makes the FC boys angry - and when they get angry, they become bullies.

In her first column for The Australian, Lindvall relates how some of her past opinions have resulted in extended bully-sessions from the mostly anonymous free culture crowd:

...the anonymous abuse I received went to such disturbing lengths that I became so stressed, worried and afraid (I received death threats on Twitter) that I considered never again speaking out. When an indie label who spoke up in my defence had its website attacked and disabled, I felt I didn't have the strength to fight this battle on my own.

I recall a Lindvall column in which she marveled at the fact that a few famous free culture advocates get paid quite handsome sums to fly first class around the world and lecture the rest of us creative schlubs about how we should be working for free. It was funny, thought-provoking and spot-on in its criticism... and boy, did it make some folks mad. Prominent science-fiction writer and outspoken critic of traditional copyright-related industries, Cory Doctorow was one of the well-paid media gurus on which Lindvall focused. She referenced a conference organizer who'd contacted Doctorow's booking agent and was quoted his speaking fee. Lindvall mentioned that rather impressive fee in her article.

Doctorow responded immediately in her comment section (his is the fifteenth comment, with many to follow) with a slew of forceful denials about his earnings from speaking fees. He listed all the pro-bono events he spoke at in the previous six months to show just how little he'd made, and only later did he admit that, yes, his booking fee for professional gigs is actually pretty close to what Lindvall had originally reported. Yes, he does fly first class, Doctorow admitted, but only because of a medical condition. Then, in what is still (to date) the most bizarre piece of online bullying I've ever seen, Doctorow uploaded an MRI image of his... well... of his groin. With the naughty bits blacked out, he titled the photo "My hips, for Helienne."

You can't make this stuff up, folks. It's all right there for anyone to see in the comments at the link above.

Let's put aside the strangeness of someone feeling they have to prove how little they make as some sort of character reference, how in hell does expressing a public opinion about professional creation warrant Lindvall's aforementioned Twitter badgering, death threats, and the flashing of a groinal MRI in her face?

It's not for nothing I ask this question. Over the last week, I drove a couple thousand kilometers around Ontario's northeastern regions, meeting professional (and non-professional) writers, visual artists and festival organizers to talk about arts funding. It was an invigorating, educational, geographically beautiful journey - the kind of business trip that reminds me just how rewarding it is to work in the cultural sector. Such good people, such interesting conversation.

Yet the whole time I was on my mini-tour of the near north's professional creators, I trailed a cloud of Twitter complainers (one of my friends compared it to Pigpen's cloud of dust from the Peanuts cartoons). I'd be sitting in meetings, talking with artists, and I'd feel my Blackberry buzz against my leg again and again, signaling yet another attack on my opinion in the ongoing copyright debate. As you may know, I have often commented publicly on copyright, most recently with an opinion piece in the Globe & Mail defending a tariff on educational use of copyright-protected materials. As with Lindvall, my public opinions attracted vicious and increasingly weird attacks.

There are 73 comments* following my Globe piece and all but a few are clearly from the educational lobby on the other side of the issue (many from commenters who frequent this very blog, pestering my every thought with their denial), and a great many of them have that particular free-culture flair - "The dying wheeze of yesterday's man" is my favorite (it's almost poetic). As with Lindvall, nothing I say in response to the attacks seems to make any difference. Using facts certainly has no effect.

As the situation stands, speaking forcefully in favour of creator copyright these days puts one on the free-culture hit list. Folks you've never heard of will suddenly find you on Twitter and pester you ceaselessly (they really seem to have NOTHING else to do with their time).I sometimes wonder why more artists don't speak out on this issue, but I know the answer. Who wants to be the target of that incessant negativity?

If you make too many waves for the free culture folks then maybe, like Lindvall and me, you'll even get a visit from Cory Doctorow himself. Doctorow dipped into my Twitter battle to belittle my suggestion that he and other prominent critics might actually want to meet with the Canadian copyright collective (Access Copyright) and work for positive change, rather than constantly sniping at them from afar. How could he meet with AC, he sneered, since he lives in England?*

And then - again bizarrely - he claimed he'd already met with the Access Copyright Executive Director:

@doctorow: Oh, and there was the whole day I took off work to meet with the execdir in London

The suggestion being that Doctorow had generously given of his valuable time to talk over copyright with Access Copyright, and found them inflexible and unmovable - just another failed business model in the great free-cultural revolution.

Funny thing about that all day meeting in London - it never happened. I'm good friends with the Executive Director of Access Copyright, and I definitely would have remembered her telling me she had a daylong session with Doctorow. So, I asked her about it.

Never. Happened.

When I mentioned to Doctorow he might not be... um... presenting an accurate history, I was immediately called a troll (Doctorow didn't call me a troll - that was one of his protectors - but he helpfully explained to me that I get called a troll "because of your tone is so often meanspirited" (sic)). Doctorow then dismissed me:

@doctorow: In any event, I'm done with this. I don't find discussion w you productive

I guess not. When it becomes clear to everyone involved that the loudest critics of Access Copyright and professional creation in Canada aren't really on top of their own factual claims, how productive could their arguments be?

* I later discovered that when Doctorow made this remark, he was tweeting from... Toronto. He is speaking about copyright and totalitarianism tomorrow evening at the Art Gallery of Ontario, about a ten minute walk from the office of Maureen Cavan, Access Copyright's Executive Director.

** Interestingly, while those professional creators in support of my views stay away from the comment pile-on, they did share my article 45 times on Twitter and 150 times on Facebook. I like to think of them as the silent majority.

image courtesy Helienne Lindvall's website

free culture's funny new math

2011-08-25T09:56:00.014-04:00

45 is much, much larger than 175.

I know, that sentence above looks kind of... funny. How could the number 45 be larger than the number 175? In what crazy, backwards, upside-down world would anyone think that?

Well, this is the dawn of free culture, which brings with it many promising New Business Models and apparently some pretty new math as well. As schools around the country get ready to welcome record numbers of new students, it's a good time to have a look at the math they're using.

Free Culture Math:

For months now, we've been hearing from the champions of free culture that Canada's post-secondary educational institutions (colleges and universities) cannot possibly afford a copyright licence fee that at its maximum could be calculated as $45 per full time student.

Real Math:

Considering the other costs that go into a post-secondary education (tuition, student fees, housing, supplies, technology, transportation) $45 per year is actually quite small, and considering that number would cover hundreds of thousands of individual copyright clearances for students and professors every year, it actually looks like a bargain by traditional math standards. As well, doing some real math, I've previously noted that just one randomly selected university could reasonably afford to pay the entire tariff for every student in the country, without touching any of their currently identifiable expense lines.

The real balance sheets of real universities show the real truth that this tariff is entirely affordable. But no, we have been told again and again that $45 per student is simply unsupportable. 45, apparently, is a very large number.

What does that $45 represent? Well, it's the absolute maximum amount the Copyright Board of Canada might impose on universities and colleges in a tariff for ongoing use of the vast and ever-growing collection of materials represented exclusively by Access Copyright, the Canadian Copyright Licensing Agency. It represents content, and free culture math tells us that any number attached to content is too big a number.

Free Culture Math:

Except for 175 - that's a very small number. Last week, the free culture cruise director, Michael Geist, tweeted a blog posting by fellow academic Blayne Haggart that claims to outline the "low stakes" for professional artists in the current fight over collective licensing at Canada's colleges and universities. Quoting one discontented writer unhappy with his licensing royalty, Haggart concludes that a baseline annual payment of $175 per creator is "not very much." Says Haggart:

"In terms of policy battles, this doesn’t look like the type of hill worth fighting for. If you’re a writer."

Real Math:

My cheque from Access Copyright last year was much larger than $175. The math Haggart depends on to quote $175 as a "baseline" is the same funny math Geist earlier used to completely misread Access Copyright's balance sheet in their last annual report. It also only takes into account the repertoire payment to creators, which is not the only way creators are paid copyright royalties.

But okay, let's go with $175. Using real math, I could take my baseline copyright royalties, pay the tariff for both of my kids and still have $85 in my pocket. I don't know what that looks like to the free culture folks, but to a professional artist struggling in the real economy that looks like real income.

One last bit of Free Culture Math:

What number is the post-sec community proposing instead of $45 per student?

Well, the schools refusing to pay the interim tariff are essentially proposing $0. Real math seems to work for them, because paying nothing for access to a vast repertoire of Canadian content will always be cheaper than paying anything.

And maybe there's a new math upside for artists. While creators might get only a portion of the $45, they're guaranteed 100% of the $0.

Jesse Hirsh on course pack copyright

2011-08-24T10:31:00.003-04:00

Call for strong digital copyright and eventually someone will tell you that "you just don't understand the technology." That's one of the standard, head-patting dismissals free culture tries on artists. Poor dopey artists, if you only understood computers you'd see what a great tool they are for promoting your work, and you wouldn't be so scared of them.

CBC Radio One technology columnist Jesse Hirsh understands technology. Yesterday he was interviewed on Toronto's Metro Morning show about the issue of digital course packs and copyright. Hear the full interview at this link:

Course Pack Copyright

A highlight:

JESSE HIRSH: ...the digital platform allows the course packs go digital but not the regulatory regime that guarantees people will get paid. The Copyright Board of Canada has presented a tariff that would act as an interim. But over 30 Canadian Universities are saying: “Forget about it. We’re going to ignore your tariff. We’re going outside of the system”, partly as a pressure to sort of say: “Look we want something that benefits us more.” But it also is a kind of civil disobedience that will basically allow them to save costs by not paying for the content that they distribute….

MATT GALLOWAY: And for the students what does it mean for them?

JESSE HIRSH: If they see their universities and the main authority in their lives, professors, defy copyright law... So it’s really not a good situation, not for authors or publishers, not really for students and researchers. It’s why we need a system that’s legal that allows people to share knowledge openly but still allow the producers to get paid.

Thanks to Barry Sookman for the tip, and the transcription.

death of books, part 346

2011-08-23T14:56:00.006-04:00

Someone at the office asked me if I was going to the latest Future/Death of the Book panel discussion somewhere in Toronto at sometime. Instead of screaming and running away, which is what I really wanted to do, I just ruefully shook my head and said "I can only only go to about twenty of those a year, and then I get tired."

When did CBC anchor guy Evan Solomon publish his novel, Crossing the Distance? I'm thinking it was around 1999 - five years after my first e-mail address, and 'round about the time someone first said the word "Google" to me. I interviewed Solomon about his novel (whenever it was), and somehow we got into a discussion about the future/death of the book. It was a popular discussion topic among publishing types even way back then in the last century. Solomon said something that has always stuck with me, and he was probably quoting someone else. He said, "the book is a great technology."

I repeat that line to myself from time to time. The book is a great technology. It used to be a calming mantra, but now more and more I find myself adding the word dammit! to the end of it. It's no longer something we booky types need to say to ourselves to help us get to sleep at night. Now, it's a campaign slogan - maybe an emergency campaign slogan.

I could go on and on, explaining what I mean but, luckily for all of us, novelist Ewan Morrison has done all the going on and on for me:

Are books dead, and can authors survive?

This is an important rumination, so I implore you not to run away screaming. Along with Jaron Lanier's mighty You Are Not A Gadget - a roundhouse manifesto right in the face of free culture - this is the most compelling call to protect the economy of cultural production I've read.

Here are a few "free" samples:

The digital revolution will not emancipate writers or open up a new era of creativity, it will mean that writers offer up their work for next to nothing or for free. Writing, as a profession, will cease to exist.

These digital providers are not in any way concerned with or interested in content, or what used to be called "culture". To them culture is merely generic content; it is a free service that is provided in the selling of customers to advertisers. Ideally for service providers, the customers will even provide the culture themselves, for free. And this is what we do when we write blogs, or free ebooks or upload films of ourselves, at no cost.

Morrison dissects the rationale behind casual piracy perfectly. It is so subtle, yet so pernicious, it seems almost unstoppable. Almost. What can stop it, according to Morrison? Only our desire to see it stopped:

All that is clear is that for authors and publishers to abandon each other only accelerates the race towards free content. Authors must respect and demand the work of good editors and support the publishing industry, precisely by resisting the temptation to "go it alone" in the long tail. In return, publishing houses must take the risk on the long term; supporting writers over years and books, it is only then that books of the standard we have seen in the last half-century can continue to come into being.

RIP Jack Layton

2011-08-22T10:09:00.004-04:00

I've met with Jack Layton on arts policy matters a number of times, and always found him to be a passionately interested person. We did not always agree when we talked, but that matters far less than honest listening, which Jack excelled at.

As I think back this morning to our discussions, none stands out more than a dinner conversation I had with Olivia Chow and Jack (at a THIS magazine sponsored book launch years ago) in which Jack told the table every thing he knew about the Chanterelle mushroom. He knew a lot about the Chanterelle.

There is nothing more interesting than an honest politician not talking about politics. I will miss Jack Layton.

(image of Jack Layton courtesy ndp.ca, poster of Jack Layton's words courtesy Stuart Thursby)

is Canadian content being intentionally shunned in Canada's universities?

2011-08-17T08:59:00.003-04:00

This morning in the Globe and Mail, I argue yes, it is:

Heading Back to School? Hope You've Memorized the Copyright Act.

(image courtesy The Globe and Mail)

academic restrictions in the news

2011-08-02T16:04:00.004-04:00

(logo courtesy cbc.ca)

The proponents of free culture are spending the summer nudging Canada's post-secondary institutions to "opt-out" of an interim Copyright Board tariff designed to extend previous Access Copyright agreements with universities and colleges while a new price structure for new uses and greater digital delivery is worked out at the negotiating table.

So far, free culture cheerleaders Howard Knopf and Michael Geist have compiled a list of about 26 schools (out of roughly 2000 in Canada) who have pre-empted negotiation and decided to see if they can manage to provide a high-quality Canadian education without collective licensing for the materials Access Copyright represents (most publicly available materials by Canada's professional writers, publishers and visual artists) leaning instead on their own definition of fair dealing and somewhat mysterious substitute materials, much of which will be sourced in the United States.

In past blog postings, I've pointed to declarations by opting out universities such as Toronto's York University and the University of Saskatchewan suggesting these schools intend to actively restrict the choice of materials used in the classroom by their professors and students. I continue to wonder how students and teacher associations can stand for this kind of interference with academic freedom, but so far not a peep from either about these new restrictions.

Someone's starting to take notice, though. In the last week, both CBC.ca and MetroNews have published reports about restrictions on academic freedom, and the ongoing uncertainty over cost in the decision by the University of Calgary to refuse the Copyright Board's tariff terms.

This quote from the Metronews article spells out the dilemma in which U of C students (and those of 25 or so other schools) will find themselves:

U of C business student Justin Fisher was concerned after learning about the new copyright restrictions.

“When you are writing a paper, you want to find as many resources and references as possible,” he said.

And very telling indeed, for those who have long followed the free-culture attack on collective licensing in Canada, is this little slip of the tongue from U of C Chief Librarian Tom Hickerson in the CBC.ca story:

"...a rumoured change coming to federal copyright legislation could ease the growing burden on universities."

What rumoured change to copyright legislation is going to make life without an Access Copyright license or tariff easier for universities?

Could Hickerson be referring to an expansion of fair dealing to cover educational uses? That doesn't seem possible because when Canadian writers and publishers have publicly worried that just such an expansion would destroy fair collective licensing in Canada, we've been told by educators and free-culture cheerleaders that nothing could be further from the truth.

Hickerson's assertion in the CBC story suggests educational institutions are just waiting for new legislation so they can start claiming all educational uses as fair dealing, and that the worries of Canada's cultural creators are well-grounded indeed.

of libraries and writers (and rights)

2011-07-27T09:56:00.006-04:00

(image courtesy ourpubliclibrary.to)

We Love Our Libraries

Margaret Atwood's Twitter influence is legendary. The super-popular Canadian author wields immense power in her tweeting thumbs, and can draw the eyes of close to 230,000 direct followers and an untold number of others depending on the retweets she inspires. I've seen the greatness that is Tweetwood up close, when a generous retweet by her about one of my copyright postings brought ridiculous traffic to this blog, blowing the analytics charts all out of proportion for a couple of days. I can look back on my traffic timeline now and say "oh yeah, that's when Ms. Atwood came for a visit."

This week, Toronto's mayoral family is learning a thing or two about both Twitter and Margaret Atwood. The story of the Ford brothers and the potential closing of Toronto Public Library branches has been widely reported and doesn't need repeating here.

What I want to stress about this story is that when a Canadian library system finds itself in the cross hairs, endangered by the populist mania for showy cost-cutting no matter the cultural damage, it is a Canadian author who raises her voice in protest and brings the issue some much-needed perspective and attention. To see the discussion inspired by Ms. Atwood's advocacy on behalf of libraries, see her Twitter feed @MargaretAtwood, or the comment sections below the media reports (the Toronto Star story has close to 400 comments already -- for a story about libraries!).

They're Just Not That Into Us

Canadian writers and cultural workers are tireless supporters of the public library system, and of the fabulous work of public, school and university librarians. We consider library workers to be our partners in culture. I can say without exaggeration that I likely would not have become a writer if there had not been a marvelous public library in Aurora, Ontario when I was growing up, and fabulous school libraries in my elementary and secondary schools.

And that's why it continues to be depressing to me and to many other Canadian writers - Ms. Atwood included (I imagine) - that the Canadian Library Association, an essential organization that has done so much good for Canadian culture, has allowed itself to be aligned with a free-culture movement intent on harming Canadian writers by weakening and even removing our rights of ownership over our own intellectual property. The CLA's recent Call to Action on Copyright contains so much Geistian free-culture rhetoric and user-right focus (including sections on ISP liability and "digital locks") it may as well have been written by the relentless free-culture campaigner himself (and maybe it was).

Quoting the controversial CCH Canadian Ltd. v. Law Society of Upper Canada Supreme Court decision, the CLA clearly places the desires of users above the existing rights of creators. They also support the massive expansion of educational fair dealing that, despite not yet being in force, has inspired many universities to test the waters in avoiding payment to creators for use of their work in the classroom.

Considering how strongly and passionately Canadian writers stand behind our public library systems, it's painful to see our partners in culture flap in the populist free-culture winds and advocate against our rights. Are front line library workers aware of just how far their association has gone to alienate Canadian writers from the library system, despite our continued and unwavering support of libraries?

Where's Your Free Culture Now?

I just quickly checked Michael Geist's blog. As I suspected... not one word about the proposed cuts to Canadian libraries. He's too busy preparing a FAQ for Canadian universities on how to stop paying Canadian writers through our national copyright tariff. Fascinating stuff -- it includes directions on how to end-run around Canadian copyright by getting materials from the States, and how to find "suitable replacements" for Canadian works.

WWMAD? (What Would Margaret Atwood Do?)

respect the copyright of Canadian artists? don't apply to USask

2011-07-03T09:01:00.003-04:00

The University of Saskatchewan, influenced by dogged anti-copyright rhetoric within the Canadian post-secondary educational sector, has announced their intention to opt-out of an interim tariff that would allow them broad and continued use of Canadian publicly available material for use in the classroom. The announcement of their decision can be found here.

There is a lot that is disturbing in this announcement for Canadian artists, since the interim tariff covers the work we have out there in the world, in both physical and digital form. This announcement is, in effect, stating USask's intentions to never again allow use of our work within their classrooms (beyond small sampling that would be covered by fair dealing). In other words, students at one of Canada's universities will be severely restricted in their use of specific Canadian subject matter. Even if a professor feels she absolutely must use material covered by the tariff, she will not be allowed to.

Why? I'd like to think it has to do with money, because that would be the simplest answer. But I've done the math (many times), and I know that Canadian universities currently spend a fraction of 1% of their annual budgets on copyright clearance through this Canadian tariff. In fact, these modest and reasonable clearance amounts usually make it into the mix of fees individual students pay on top of their tuition, so the effect on university budgets is null.

No, the attack on Canadian created content in Canadian post-secondary schools is being launched by ideologues, not accountants. The same folks who have for years now been advising that most classroom use of publicly available Canadian work could be interpreted as fair dealing and that current copyright licences are "arguably unnecessary" have convinced a smattering of university administrations to opt out of paying for this content.

It's easy to see what the great free-culture opt-out will mean for Canadian artists. Our work will now be shut out of classrooms (and the brains of Canadian students). But what does the opt-out look like on the ground at USask? That's the scariest question.

From the USask announcement:

Our copyright agreement with Access Copyright—an organization that oversees the process of copyright clearance, payment and licensing—will end August 31, 2011.

Course materials for the 2011/12 terms (i.e. course packs, handouts, etc.) need to be printed before August 31, 2011.

In other words, we're going to stop paying for this stuff before the fall term, so if you want it for the fall term, copy it now. Stockpiling copies of Canadian content for one last go in the classroom? Is this really in the spirit of respecting copyright?

Worse yet:

Deans, directors and department heads should keep the Access Copyright situation in mind when hiring new instructors and making appointments, in particular with appointments close to the start of the new school year that will require course materials to be assembled quickly.

Are you applying to work at USask, and do you intend to use the work of Canadian artists in your teaching? Good luck to you.

Go Huskies! Just make sure you don't teach anything about huskies, written by a Canadian.

open letter

2011-06-18T10:23:00.004-04:00

An open letter to Canada’s writers and publishers:

You may or may not be aware that motions have been passed at two recent Annual General Meetings (The Writers Union of Canada and The League of Canadian Poets) questioning the fairness for writers of Access Copyright’s distribution policies and procedures. The original motion passed at TWUC’s AGM calls for “an operational separation of creators’ and publishers’ interests in collective licensing,” and directs TWUC’s National Council to investigate “how a significant reform of collective licensing in Canada can be brought about at the earliest possible moment.”

I agree with Don Meredith of the Outdoor Writers of Canada who has publicly questioned the timing of these motions. Federal copyright reform legislation is pending, and an aggressive ideological attack against the very idea of collective licensing of copyright has been launched by a small yet influential group within Canada’s post-secondary educational community, led by free-culture theorist Michael Geist. Dividing the attention and resources of a collective front in the face of such a belligerent attack on writers’ rights seems at best absurd, at worst self-destructive.

I also question the tactic of introducing motions from the floor at AGMs without fully preparing the membership by way of an honest and relevant presentation of fact. That seems – frankly – sneaky and dishonest. I am also deeply disturbed that Michael Geist seems to have been better prepared for the introduction of these motions than were the very members of the organizations involved. It seems clear Michael Geist was fed information about these motions before they were even introduced. His response has been a flurry of public attacks on collective licensing in general and Access Copyright specifically, all of them short on facts and long on hyperbole.

If we're all to have a good-faith discussion of fact, surreptitious policy hijacking and attempts to publicly embarrass our own collective are a very poor start to the process. I think it’s important for everyone to lay their cards on the table openly and honestly.

I am not onside with the criticism of Access Copyright represented by these motions. In fact, I strongly disagree with many of the “recognized facts” presented, and think the idea of an operational separation from or at Access Copyright is both unnecessary and ultimately destructive to the collective power of the cultural sector in Canada.

Having heard a number of presentations by Chris Moore, DC Reid and Cathy Ford on this subject over a number of years, I find their argument for a distribution remake and an operational separation between creators and publishers entirely unconvincing.

I wish to make two main points:

1. I sympathize with any writer’s frustration at not receiving a very large slice of the cultural revenue pie. I am a magazine writer, a novelist and a poet. I administered PWAC’s 2006 industry survey that showed just how small the average writer’s take home packet is. I get it. We are all very poorly compensated.

2. On the other hand, while I may personally want more money, I only want more of the money I myself have earned through my creative work. That is why for years with PWAC I focused on the ongoing files of "raising the rates" and "protecting rights under contract." The complaints presented by Ford, Moore and Reid seem to me to fly in the face of that latter concern, which is the strangest of ironies.

When I'm wearing my professional writer hat (I have other hats), I think of publishers as my partners in both business and culture. I have deep respect for the written contract, and feel that as writers we need to take greater responsibility for those contracts, and make them the proving ground for our incomes. We have only the value we sign our names to, whether we like that fact or not. If we want more, we must insist on more before we sign.

A very wise citizen of the cultural sector, D.B. Scott, was recently presented with the Foundation Award for Outstanding Achievement at the National Magazine Awards. In his acceptance speech, he included a call for all in the magazine sector to take another look at how we treat each other:
“In their own, long-term best interests, publishers and editors need to re-examine the way in which they treat and compensate the creators of the content upon which their magazines depend. And freelancers need to remember that everything is negotiable, but they have to speak up forcefully on their own behalf. I realize there is no line item in magazine budgets that is labeled “respect,” but respect costs nothing and lubricates magazine relationships.”

I suggest D.B. Scott’s words apply outside magazines, in fact to all the creators and publishers who make up Canada’s copyright collective. Respect is the key word as we go forward; yet the tenor of the recent attacks against Access Copyright has been disrespectful in the extreme.

Access Copyright’s distribution splits were worked out in good faith by writers and publishers many years ago in the true spirit of collective interest. To me, they seem infinitely fair. In many instances, writers get the lion’s share of the royalty split. In fact, because publisher royalties flow to writers as well, through contractual agreements, there is a compelling argument to be made that writers benefit from both sides of the so-called writer/publisher divide at AC.

All of that is not to say occasional re-examination of agreements is not called for. I welcome honest investigation and discussion; but I also think Canada’s writers (and publishers) would do better for themselves right now by directing their attention to rates and contracts, and by speaking out loudly in support of their rights under copyright.

By no means are raising rates or improving contracts easy projects. We certainly don’t make the projects any easier by distracting ourselves from their central importance, by alienating our partners, by attacking those who toil on our behalf through our collectives and associations, or by encouraging disrespect for our rights among those with an interest in removing them.

Thank you for your attention to my opinions on this issue.

John Degen

Disclosure:

I am a creator affiliate of Access Copyright, receiving royalties from work I have published. I am also the former Executive Director of the Professional Writers Association of Canada, former Chair of the Book and Periodical Council, former Communications Manager at Magazines Canada, and former member of both The Writers Union of Canada and The League of Canadian Poets. Currently, I am the Literature Officer at the Ontario Arts Council. To avoid conflict of interest in that role, I do not publish my creative work with any publisher funded by my office and have resigned all my professional memberships. I have written this letter from my position as an independent Canadian writer, and not as a representative of the OAC. The opinions expressed in this letter are my own.

the Straight Goods on CAUT

2011-05-26T10:02:00.007-04:00

(image courtesy Straight Goods News)

Straight Goods News, Canada's alternative online news source, has republished my earlier posting about the new Canadian Association of University Teachers "guidelines" to expanded fair dealing in the classroom.

CAUT copyright guidelines: Responsibility for policing copyright lands on professors and teachers.

Rather predictably, one of the CAUT's professional officers, Paul Jones, has immediately commented on the article, attacking me as detached from reality, delusional and offensive, and labeling me a copyright extremist.

Bizarrely, Mr. Jones then bemoans the lack of nuance in copyright modernization discussion and debate. Of course, this is what I've come to expect after over a decade in this debate.

Sure, Mr. Degen, you delusional extremist, we'd love to sit down at a table and discuss why you should give up more of your rights -- if only you had a hold on reality. Please join us for nuanced discussion, though we doubt you're capable of it you offensive hyperbolist.

And so, I wonder aloud again - are Canada's teachers and professors really satisfied with this kind of representation from their professional association? CAUT appears to be intentionally alienating itself from Canada's professional artists and creators - Mr. Jones takes a broad swipe at Canada's publishing industry in his comment, as well.

Let's be clear - it's not me being attacked by CAUT. It's the very idea of Canadian writers and publishers enjoying robust protection for their creative work that is under attack. We're talking about folks like Margaret Atwood - maybe the most fair-minded, rational, nuanced thinker CanLit has ever produced - Nino Ricci and... well, name your favorite Canadian author.

I encourage any CAUT member to link to the Straight Goods article and send it out widely on the CAUT listserv or discussion forum. I think the grassroots members of that association need to better understand the path they're being led down in the name of saving money for their administrations.

And they need to ask themselves -- why is my professional association, the folks who are supposed to represent me in labour negotiations with the administration, suddenly taking the administration's side and agreeing to download legal liability to me?

Blonk in Ottawa

2011-05-18T09:49:00.003-04:00

(image courtesy Jaap Blonk and the AB Series)

Oh, I'm angry with my calendar right now. If I could be in Ottawa next week for the AB Series special night at the National Arts Centre then that's exactly where I would be. I can't; I won't, and five straight days of rain couldn't make me feel worse about the situation.

The AB Series is Ottawa's reading series for performance, sound and experimental poetry. Organized and hosted by Ottawa sound poet Max Middle, AB has incredible reach into the sometimes mysterious international scene for truly avant garde poetics. Next Wednesday, they are presenting a fourth stage performance at the NAC by Dutch musician and sound performer Jaap Blonk. Blonk will perform his latest work, a live version of Antonin Artaud's To Have Done With the Judgement of God (translated by Clayton Eshleman). This performance of Artaud was originally commissioned by BBC Radio and premiered in London late last year. Blonk’s creates variations on Artaud's sound poetry in a unique, original homage.

The opening act for the evening features a group of talented Ottawa poets and performers (Christine McNair, Sean Moreland, Glenn Nuotio, Carmel Purkis, Sandra Ridley and Grant Wilkins) in a collective/joint performance, which has them reading, reconfiguring and responding to artist Michèle Provost’s exhibition, playlist

For those unfamiliar with sound or performance poetry, here's a great introduction. Jaap Blonk performing some of the ursonate by Kurt Schwitters. I've seen Canadian poet Christian Bök perform Schwitters' work on many occasions, and he's excellent in his own right, but there's something about the combination of Schwitters' germanic nonsense sonate and Blonk's Dutch accent that is too compelling - softer and more playful than Bök's full-on attack.

If you're in or around Ottawa next week, may I make a recommendation?

Disclosure: The AB Series received funding in 2010/11 through the Ontario Arts Council's Literary Festivals and Organizations program, which I administer in the OAC's literature office. Funding in the program is recommended by a five-person advisory committee.

Don’t worry; it’s probably not illegal… very much… we think

2011-05-11T11:36:00.009-04:00

(CAUT logo courtesy the CAUT website)

The Canadian Association of University Teachers (CAUT), a prominent lobby group in the campaign to remove an effective collective licensing right from Canada’s professional writers and other artists, has published an astonishingly irresponsible document purporting to provide authoritative guidelines to copyright and fair dealing practice within Canadian classrooms.

The CAUT Guidelines for the Use of Copyrighted Material has little to say about the rights of professional creators to benefit from the use of their works. It doesn’t really mention key details like existing collective licensing arrangements and tariffs that would allow university administrations to acquire affordable, hassle-free access to any amount of any material their teachers wish to use in the classroom.

Indeed, the “guidelines for use” define copyright primarily as a collection of user permissions teachers might be able to depend on to avoid collective licensing or tariff obligations. In other words, the CAUT publication is little more than an instruction booklet on how to help university administrations not pay for content. Here’s all the stuff you can use without permission or payment – use that stuff only please, because, um, it’s your right to do so.

Not surprisingly, the guidelines make direct reference to one Supreme Court of Canada decision (CCH Canadian Limited v. Law Society of Upper Canada) in an attempt to show how broad and flexible the Canadian fair dealing provision can be for educators. They even go so far as to spell out all six parts of the SCC’s “fairness test” found in that highly controversial decision. Should teachers be satisfied in just knowing the six-part fairness test exists? No, according to CAUT:

“It is essential that members of the educational community understand and be able to apply these criteria.”

Yes, teachers and professors, we know you’re very busy imparting knowledge and teaching at the highest professional level, but if you don’t mind we need you to also memorize a Supreme Court decision and be ready at any moment to apply it through a complex six-part legal construct so we can save a few bucks. Oh, and if you get it wrong, we all get sued.

Alright, let’s all get out there and teach!

You’d think if teachers are being asked to play this game of legal roulette, they’d be given some authoritative rules to follow; yet CAUT’s guidelines are full of these vague gems of encouragement:

“Making a single copy of a work is likely to be fair… Making an electronic copy of an optional or supplementary reading is likely to be fair.. etc.”

Likely to be fair? Thanks. I feel “likely” to be not sued.

My own confidential sources deep within the bunkers of post-secondary education tell me of frighteningly militant instructional meetings in which administration representatives direct faculty on how best to avoid the use of collective license and/or tariff materials – essentially downloading the responsibility for not being sued over copyright infringement to the individual classroom level.

Really? This is what we want our teachers to be worrying about and concentrating on while they try to educate the next generation of Canada’s knowledge workers?

That CAUT is even participating in this process of cost- and responsibility-download onto its members shows a depressing absence of leadership within the association. CAUT should be demanding less exposure to potential liability for its members, not happily agreeing to lock them outside in a legal blizzard.

Even worse, CAUT does little to hide its ideological motivation in publishing these guidelines at this exact moment. In one of its many “cautions” to teachers, they explain:

"CAUTION – The CCH decision specifically indicates that copying is more likely to be fair if it conforms to existing custom and practice within an institution or community. Educators currently exercise their fair dealing rights in a robust manner and this document, developed in consultation with the academic community, reflects existing practice."

In other words, CAUT wants teachers to push the boundaries of what is “likely” fair in order to establish these “likely” practices as “existing custom.” There’s probably a legal term for this tactic, and it’s probably not very complimentary. I think the plain language term for it is squatting. I know I’m trespassing on your property, but if I sit here long enough it’ll seem like I belong here.*

The current educational tariff negotiation is, at its core, a labour dispute. On one side, “workers” (Canada’s writers, professional creators and copyright holders) are demanding fair pay for the work they provide for use in the classroom. On the other side, the “bosses” (Canada’s post-secondary educational administrations) are hoping to get a great deal of that work for no cost whatsoever. Ideally, labour disputes are moments for fair-minded and good-faith negotiation. Such a disingenuous campaign of inaccuracy and intentional trespass for the sake of brinkmanship shows no faith at all and lives deep within the territory of unfairness.

Caught in the middle are the teachers and their students, who just want to be able to use professionally created work in the classroom without having to obtain a law degree first. And because the CAUT has clearly been taken over by a small group of free-culture theorists, teachers now have nowhere to turn for help.

I think it’s time for Canada’s teachers and professors to demand better leadership from both their administrations and their professional association. It is absurd and needlessly contentious to encourage educators to push legal boundaries in their classrooms as a test-case for fair dealing expansion. Teachers are being bullied to put their own professional ethics aside. My hope is they recognize the danger to which they’re being exposed in the name of ideology, that they push back at their administrations and regain control over their own association.

If not, who will be showing up to defend a teacher in court the first time s/he gets the six-part fairness test wrong?

*Ironically, the CAUT’s insistence on an existing culture of robust fair dealing within the classroom is in direct contradiction to the educational lobby’s (which includes CAUT) equally strong insistence that they need a special educational category of fair dealing. During the recent C-32 Copyright Modernization hearings in Ottawa, we saw representative after representative (often the same free-culture bulldog) claiming teachers needed greater freedom of use in the classroom. Well, which is it – is there a custom of free use, or is there a need for it? CAUT clearly wants it both ways.

the (Canadian) cure for writer's block

2011-05-10T11:59:00.005-04:00

One of these days, I will be able to carve out a three month chunk of time between husbanding, fathering, arts-funding, kid-taxiing and volunteer coaching, and once again put writing first. It's been a couple of decades since I had that luxury, but I keep a candle in the window. One of these days.

And when that time comes, I will be applying to spend my writing time at the Berton House Retreat in Dawson City, Yukon. Could there be a better place to shelve all the excuses for not writing than the remote, extremely northerly childhood home of Canada's most prolific writer?

Until I manage to get my life in order for an application to this incredibly generous retreat, you should apply.

Applications are now being accepted. Get on it!

(all Berton House images courtesy The Writers' Trust of Canada)

copyright foundation supports arts orgs and artists

2011-05-03T20:53:00.006-04:00

(Captain Copyright image courtesy Access Copyright -- I miss you, oh Captain, my Captain)

Access Copyright, Canada's copyright licensing agency has awarded $100,000 to Canadian artists and arts organizations through the Access Copyright Foundation. The foundation exists thanks to an initial $3 million grant from the licensing agency. The money for the foundation comes directly from copyright licensing revenue, and will be topped up annually with 1.5% of the agency's licensing revenues.

Some of the projects on the initial recipient list:

Owlkids Canada -- $7,000 for research on ways to engage reluctant readers.

Editors’ Association of Canada -- $5,000 for an online guide to editing Canadian English.

University of British Columbia Press -- $5,000 for an Aboriginal-language Web portal.

Thanks Captain Copyright! You do good work.

Of course, ideological opponents of collective licensing will still attack Access Copyright for daring to collect valid licensing revenue and distributing it responsibly. I wonder what those folks have against university presses, kids' books and quality editing?

what me, a gadget?

2011-05-02T20:34:00.003-04:00

(photo of Jaron Lanier courtesy me and Jaron Lanier)

Last Thursday, I had the very great pleasure of attending a talk by tech theorists Jaron Lanier and Tim Wu at the Rotman School of Management at the University of Toronto (my alma mater). A couple of pretty smart dudes, Wu and Lanier.

Wu, a Columbia professor, Internet-regulation employee of Barack Obama, and coiner of the term "net-neutrality" has written The Master Switch, which I've just now begun reading -- a narrative history of communications monopolies and oligopolies, that is refreshingly agnostic (at least at the beginning) about the big players in today's communications revolution. I understand Wu grew up (in Toronto) as a classmate and Dungeons and Dragons opponent of prominent copyfighter Cory Doctorow, but I'm choosing to not hold that against him since, in his talk last week, he showed a far greater subtlety of thought than I've ever witnessed from his childhood friend.

Lanier's book, You Are Not a Gadget, is already part of my digital-age favorites library. The fantastically freaky Lanier is a Silicon Valley original, the inventor of virtual reality technology and a friend/gadfly to the biggest of the tech players of today. He's on a first name basis with Sergey and Larry at Google, but these days he probably isn't invited to all of the Singularity Now! parties in northern California because his book is a scorching indictment of some of the lazy philosophizing that threatens to ruin cultural production in the name of consumer "freedom."

The event was too short by half. I think I'd enjoy challenging Mr. Wu on some of his thinking about the future of the Internet, but with Lanier I'd love to just sit and listen. One of the standard criticisms of copyright defenders these days is that we "just don't understand the technology." Well, Lanier invented the damn technology, so good luck tagging him with that one.

One effect of the so-called free way of thinking is that it could eventually force anyone who wants to survive on the basis of mental activity (other than cloud tending) to enter into some sort of legal or political fortress - or become a pet of a wealthy patron - in order to be protected from the rapacious hive mind. What free really means is that artists, musicians, writers and filmmakers will have to cloak themselves within stodgy institutions.

We forget what a wonder, what a breath of fresh air it has been to have creative people make their way in the world of commerce instead of patronage. Patrons gave us Bach and Michelangelo, but it's unlikely patrons would have given us Nabokov, the Beatles, or Stanley Kubrick.

'nuff said.

you may ask yourself ... why copyright?

2011-04-19T13:13:00.006-04:00

(image courtesy davidbyrne.com)

In the concert movie, Stop Making Sense, Talking Heads frontman David Byrne wears a very large white suit on stage. That suit is now in the Rock and Roll Hall of Fame and Museum in Cleveland, Ohio, and stands as an iconic image of 80's rock.

David Byrne likes big suits; what's more, he's capable of launching big suits against folks who don't respect his copyright, folks like former Republican governor of Florida, Charlie Crist. Crist apparently used the 1985 Talking Heads song "Road to Nowhere" in a 2010 Senate campaign ad. Byrne objected to the unpermitted use of his song, and made no bones about suing Crist for $1 million.

In a web-journal entry about the lawsuit, Byrne says:

"It turns out I am one of the few artists who has the bucks and (guts) to challenge such usage. Other artists may actually have the anger but not want to take the time and risk the legal bills."

As part of the undisclosed settlement to the lawsuit, Charlie Crist agreed to record an apology to David Byrne on YouTube. You can see it below:

Byrne's lawyer, Lawrence Iser, released this statement on resolution of the suit:

“If a politician wants to use a popular song to generate interest and excitement or popular appeal, he or she must obtain a license to use the song. There is no difference between selling cars or toothpaste and selling a political candidate, and the law doesn't provide a free pass to persons running for office. We are hopeful that given the recent examples of the cases filed by Jackson Browne, Don Henley, and now David Byrne, politicians will obtain all necessary licenses before doing this in the next election cycle.”

Byrne's brave stand against unauthorized use of his work illustrates two things, I think.

First of all -- as Byrne himself alluded to -- it's difficult for artists to police unauthorized use for themselves. Had Byrne not the wealth and resources to launch this lawsuit, the use may have gone unchallenged. Byrne had to retain counsel and travel to Tampa, Florida to make his stand, all of which costs more time and money than the average artist can spare.

Secondly, this lawsuit shows that protecting one's copyright is not always about money. While Byrne put a price on the infringement, his original objection was to the fact that his work was being distorted in the campaign advertising. Part of the reason artists expect secondary users to obtain a licence for use is so that they can examine the nature of the use and feel comfortable about it.

Crist did not give Byrne that opportunity. As his apology shows, he was wrong to do so.

the Bank of Gannon

2011-04-15T13:10:00.005-04:00

I've always suspected that practicing law is a licence to print money, but I used to think that was just an expression. Of course, that was before the Internet showed us all the copy has just as much value as the original and needs to be recopied and spread around as freely as possible to help build our exciting new culture.

James Gannon is an IP lawyer at the influential law firm of McCarthy Tétrault in Toronto. His personal blog has been the site of some of the most meticulous and sharp-minded research and analysis of the ongoing (some might say "never-ending" -- some others might say "depressingly relentless") copyright reform process and the various new free culture theories gumming up the works for real world cultural workers.

Today, in a cheeky little blog post -- How I Learned to Stop Worrying and Love the Copy -- Gannon skewers several of the most popular free culture canards such as ...

the problem with copyright is legacy businesses clinging to obsolete models instead of embracing the digital age;

there's a moral and ethical difference between illicit personal use and illicit commercial use;

the big corporations deserve to have their copies stolen because they make too much money anyway;

and, of course, copy-protection can't work anyway, so why bother even trying.

For some reason, a lot of otherwise clear-thinking folk have no problem applying free culture logic to the original work of artists and cultural creators; and do so regularly to justify behind-closed-door online behaviours they'd be ashamed to repeat in public, in the physical world of real life. Someone who would never even think of walking out of a bookstore with a copy of a book they hadn't paid for will happily download a pirated e-copy of that same book. Simply insert the appropriate free culture rationalization, and it's all good.

Gannon's Swiftian modest proposal for his new personal "copying" practice asks us to consider what might happen if the same "logical" rationalizations used for content piracy were applied to paper money.

When I start making my own copies of Canadian bills, it’s going to be strictly for my own personal use. Buying gas and groceries, paying bills, a nice restaurant or two maybe. Perhaps I’d share the bills with a few friends or family, but I definitely wouldn’t be producing counterfeit bills on a commercial scale with the intent of re-selling them. That would be wrong and hurtful to the economy...
... What if I want to film a movie and need some fake money for a mob scene? As long as I can think of one legal example where I would want to copy bank bills, then there is no justification for the use of technological measures to stop me from doing so.

Thank James Gannon -- an hilarious end to a crazy week.

(image courtesy kevindooley on flickr, under an Attribution 2.0 Generic (CC BY 2.0) licence)

the changing book

2011-04-14T14:05:00.002-04:00

(North York Central Library)

Because this week has not been crazy-busy enough, I will be on a panel discussion this evening to talk about... what else?... writing, publishing and that whole new media thing you may have heard of.

The Changing Book will be hosted by Toronto Public Library Writer in Residence Elizabeth Ruth and will feature novelist Susan Swan; novelist Sarah Sheard; HarperCollins Canada Representative, Deanna McFadden and little ol' me (novelist, poet, public servant). Should be a good talk.

6:30 to 8:30 at the North York Central Library right there by Mel Lastman Square. Where?

There:

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poetry the way it's meant to be enjoyed

2011-04-13T11:24:00.007-04:00

Last night I had the privilege and the very great pleasure to be a judge for the Poetry In Voice/Les voix de la poesie finals at the Young Centre for the Performing Arts in Toronto. The evening was hosted by Soulpepper Theatre's Albert Schultz, and featured poetry recitations by twelve brilliant high school finalists from around Ontario.

Each finalist came prepared to recite (from memory) three poems from the Poetry in Voice online anthology of classic verse, and were judged on physical presence, voice and articulation, appropriateness of dramatization, level of difficulty, evidence of understanding, overall performance and accuracy.

Congratulations to Grade 12 student Jonathan Welstead from Upper Canada College in Toronto who is the inaugural winner of Poetry in Voice after expertly reciting To a Mouse*, by Robert Burns; The Windhover, by Gerard Manley Hopkins and Preludes, by T.S. Eliot, three poems that pretty much go off the charts for degree of difficulty.

(Jonathan Welstead, Albert Schultz and Scott Griffin, after the judges made their final decision)

I was the English language accuracy judge, which meant that I sat in the third row of the theatre and followed the text carefully to make sure the students read every single word in the proper order. My OAC colleague, Franco-Ontarian Arts Officer Claudette Jaiko acted as the French language accuracy judge. The panel of celebrity performance judges included Karine Glorieux, Dennis Lee, Karen Solie, Robert Lalonde, Diana Leblanc and Élise Turcotte.

I would say it was more terrifying for me than for the kids, but that's impossible. These students had to stand alone on a spotlit stage in front of a packed theatre containing their parents, teachers and classmates, a row of judges, and for good measure Scott Griffin, Margaret Atwood and most of the rest of the Griffin Poetry Trust smiling at them from the front row. They then had to recite and dramatize the likes of T.S. Eliot, Guillaume Apollinaire, Robbie Burns and Edna St. Vincent Millay. Not your average school night.

Scott Griffin is, of course, the man behind this exquisite student-torturing competition; he of the Griffin Poetry Prize and House of Anansi Press. Mr. Griffin's great passion for poetry has brought new life to verse-appreciation in Canada, and he shows no signs of stopping. Poetry in Voice is set to expand into a national competition within two years -- so parents of high school students can soon expect to hear a lot more rhyming and emoting in their homes.

The competition is lovingly administered by three Griffin Trust employees, Francophone Director Sepideh Anvar, Managing Director June Dickenson, and Toronto poet and Creative Director Damian Rogers. I remember talking to Damian Rogers when this competition was just a seed she carried around in her pocket. Look at your flower now, Ms. Rogers. Well done.

* A special shout out to Jonathan Welstead's grandmother, whom I met after the competition. As soon as she began to speak it was clear to me who had been coaching Welstead the Younger on his Robbie Burns Scot's accent and pronunciation. Imagine... he did'na miss a word:
Wee, sleeket, cowran, tim’rous beastie,

O, what a panic’s in thy breastie!

Thou need na start awa sae hasty,

Wi’ bickerin brattle!

I wad be laith to rin an’ chase thee...

Happy Birthday Public Lending Right

2011-04-05T12:59:00.004-04:00

"25 years of the Public Lending Right Commission
– for all of us: authors and readers."

Why, I remember when the PLR was just a little kid -- now look at it.

free culture? -- sure, but say good-bye to academic freedom

2011-03-25T16:56:00.007-04:00

York University to profs:

We'll tell you what you can copy and teach!

Canada's Copyright Modernization Bill C-32 sank to its death with the good ship Parliament today, and with it went the ill-conceived and poorly defined expanded fair dealing provision that resulted in so much controversy in front of the committee.

Luckily for educators, the Copyright Board approved an interim tariff request by Access Copyright, Canada's Copyright Licensing Agency -- I say luckily despite the fact that many in the educational community strongly objected to the interim tariff request. Those objections were summarily and somewhat embarrassingly dismissed by the Board, and, again luckily, now Canada's educators can continue to copy widely from the AC repertoire without fear of infringing the rights of Canada's professional creators -- and for the bargain price of exactly what they had always been paying, plus they get digital use thrown in as well.

You'd think that result would make Canada's universities sigh with relief. I thought so, and had a quick look at some university websites to see what they might be saying about the handy, ridiculously affordable new tariff.

To my surprise, the very first site I searched, Toronto's own York University, treated the interim tariff not as a helpful stepping stone to further negotiation with creators, but as an exit strategy into what they call their "transition to a copying regime outside of Access Copyright." What regime might that be? Well, it appears to have a whole lot to do with... you guessed it... fair dealing.

York's academic staff are advised the university will opt out of the interim tariff beginning Fall/Winter 2011-2012, but that the tariff provides them with covering protection to continue copying the AC repertoire until that time.

In the meantime, and presumably after opt-out, staff are required to follow the university's new fair dealing guidelines, which include the following two paragraphs:

9. University staff shall use reasonable efforts to guard against systematic, cumulative copying from the same work which in total exceeds the portion of the work that may be copied pursuant to these guidelines and to ensure that the number of copies made complies with this policy. If university staff suspects that a student, other staff member or faculty member is engaged in systematic, cumulative copying, the matter must be referred to the university staff member responsible for administering this policy or his or her delegate for review, and any further requests from that student, staff member or faculty member for a copy may be refused.

10. Requests for the making of copies which fall outside these copying guidelines and requests for making of copies of unpublished works may be referred to the university staff member responsible for administering this policy or to his or her delegate for evaluation. A determination will be made as to whether the proposed copies are permissible in all the circumstances relating to the requests and may ultimately be refused.

This is, well, astonishing.

As I read these two sections together with the intention of opting out of Access Copyright licensing, York University's administration is stating flat out they require academic staff to police their fellows and students to make sure they copy no more than is allowed under fair dealing. As well, they advise that requests to copy more may be refused.

It seems indisputable at this point the move away from collective licensing -- encouraged by prominent free culture theorists like Michael Geist -- has as a primary motive the saving of copyright licensing fees (otherwise, why so strongly advise that only free copying be done?). This motive is so strong, in fact, that the administration appears willing to interfere with and/or restrict the academic freedom of its professors to use what they consider to be the best materials for teaching their students.

These policies, publicly available on the York University website, contradict directly the testimony of educational representatives at yesterday's final Bill C-32 committee hearing. Those representatives claimed over and over again, under questioning from concerned MPs, that their desire for an expanded fair dealing exception for education had nothing to do with not paying Access Copyright licences, and would in no way restrict the material being used by teachers and professors.

Is it any wonder professional creators like Margaret Atwood and Nino Ricci worry about the appropriation of creator's rights under expanded fair dealing? Now, apparently, we have to start worrying about the rights of professors and students to even use our work in the face of unconscionably restrictive administration policies.

Free culture, indeed. Free, as in you may freely use only what we tell you to freely use.

who's failing whom?

2011-03-23T13:47:00.008-04:00

Last week, crusading tech journalist Jesse Brown published a column with Toronto Life magazine in which he boasted about being a "thief." Brown accesses creative content (television shows and movies) by doing an end run around the copyright holders of that content, despite the fact that much of what he wants to see is perfectly available to him in Canada -- 30 Rock, one of the examples he uses in his article is even available free at the CityTV website.

What cheap, piratical satisfaction Brown gets from stealing copyrighted material is a mystery to me, but his column helped to refocus the debate about whether or not copyright infringement is theft. I think most reasonable people would say it is theft (and sleep well at night knowing Margaret Atwood agrees with us); free culture folks say it, technically, isn't theft... except one of free culture's most vocal defenders, Jesse Brown, proudly calls it theft and vows to keep doing it.

Crusading free culture academic, Michael Geist, joined the twitter conversation around Brown's article only to accuse Brown's detractors of being corporate astroturfers. I made a direct appeal to the good doctor to spell out how he feels about Brown's illegal downloading behaviours. Geist declined to answer despite numerous prompts. Does the Canada Research Chair in Internet and E-commerce Law agree with his friend Jesse Brown that what he boasts of doing is theft, and does he approve of it? We may never know.

But today we did learn that - theft or not - Dr. Geist does not believe Brown's behaviour is particularly Brown's fault. According to Geist, piracy is not a legal failure; it's a market failure. We shouldn't blame Brown for stealing 30 Rock. We should blame 30 Rock for not creating a market that would make itself more available to Brown (let's just ignore that whole free-at-the-CityTV-website detail).

If we follow Geist's argument, any time the market does provide the content in a simple and affordable and convenient way, there will be no large-scale pirating of that material. The folks at the New York Times better hope so, because the tech world has already cracked their paywall (even before the official launch) and is gleefully letting everyone else know how to get Times content without paying for it.

Sure, the Times is the newspaper of record for much of the English speaking world, it has some of the best writers on staff and in print, it's maybe the most recognizable and valuable media brand on the planet, and it's been providing hassle-free online content as long as most folks have been reading news online. Sure, their paywall design is relatively unobstructive, inviting, sharing, and affordable. Sure, their product is, without question, worth the price of a couple pints of beer per month. All that being true and undisputed, I think we can still expect the New York Times to be blamed by Geist and his free culture followers for failing to provide a reasonable market to media consumers and therefore causing its own piracy headaches.

(logo courtesy The New York Times)

board sends tariff objectors back to copyright school

2011-03-17T11:29:00.015-04:00

I spent some entertaining hours last evening with one eye on the Leafs game (Stanley's comin' home!) and the other reading the Copyright Board of Canada's 50-page decision in the matter of an interim tariff filed by Access Copyright.

That's right, my existence is one of neverending romance and excitement.

Anyhoo, for those with actual lives let me remind you what the interim tariff is all about.

Background:

Access Copyright is Canada's Copyright Licensing Agency, a not-for-profit collective made up of creator and publisher affiliates all of whom allow Access Copyright to licence the use of their work to governments, corporations and educational institutions.

Simply put, instead of trying to find the copyright holder, seek permission and pay each time a school uses Canadian copyright-protected material, they sign one licence and pay per-use based on tracking and reporting over a set period of time. A massive administrative simplification and savings, and a fair revenue stream directed at Canada's deserving creators and publishers. Win, win!

Access Copyright has had uninterrupted licensing agreements with Canada's post-secondary education sector (universities and colleges, primarily) since 1994. The most recent licenses were designed to expire in 2007, and were extended by mutual agreement twice, ending finally in December of 2010. The licenses address the use of AC's repertoire -- actual created works by actual creators and publishers, actually used in the course of paid education delivery -- in coursepacks (those strikingly ugly collections of bound photocopies many professors prefer over standard textbooks) or in what is called "general use" (individual photocopied handouts to students relevant to a particular class or topic of instruction).

None of these uses, by the way, are currently considered "fair" under Canadian fair dealing, and so remain uses that must be compensated for by the user.

This all sounds great -- so, why a tariff all of a sudden?

Great question. Something happened between the signing of the last licences (in 2003) and the expiration of the extensions at the end of last year. Post-secondary institutions that were once willing partners in licensing somehow developed the idea that paying for the use of Access Copyright's repertoire was unnecessary, unfair, inconvenient and/or too expensive.

Access approached their formerly willing partners to renew licences, and to update the usage lists and prices based on increased usage, cost of living changes, and -- very importantly -- new digital uses of the same repertoire. For the most part, the educational institutions said no.

Why would they say no?

Another good question. I have no real idea why they would say no. The price - though increased - remains ridiculously reasonable (less than 0.2% of total budget for one of these institutions for near limitless use of content). The repertoire is as relevant today as it was, presumably, in 2009 when those institutions last agreed to extend their licences. And there has been no change in anyone's understanding of what is and isn't permitted as a "fair" educational use under fair dealing.

Wait a minute, back up. What was that last one?

Oh, that's right, fair dealing. In 2005, just two years into a four year agreement, prominent free culture theorist Michael Geist advocated to his educational colleagues that:

"Canadian universities spend millions in copyright licenses that are arguably unnecessary. This expenditure effectively represents a subsidy to Canadian publishers from taxpayers as well as from students who are facing escalating tuition fees at a time that they can scarcely cover their monthly rent."

He then suggested that universities should:

"highlight fair dealing, the staple provision that provides students and educators with broad rights to use copyrighted works."

Geist is certainly not the only free culture theorist nudging Canadian education away from licensing copyright-protected uses of AC's repertoire, but he's the most active and unrelenting in the campaign. And it's been a remarkably effective campaign. Not only have most post-secondary institutions in Canada foregone new AC licensing, but a brand new category of fair dealing, covering the vague and ill-defined area of "education" has been inserted into Bill C-32, the Copyright Modernization Act currently before Parliament.

I mean, why bother to sign licences if the "experts" are telling you they are "unnecessary."

Which brings us back to the interim tariff.

Finding current licence partners unresponsive despite continued and new uses of the repertoire, Access Copyright did the only thing they could do -- they appealed to the Copyright Board of Canada for a tariff to replace the licences. Naturally, under the continued tutelage of Michael Geist, a number of post-secondary interests objected to the tariff.

It gets a bit legalish here, so bear with me.

The Copyright Board agreed to consider both the tariff and the objections, but since that would take quite a bit of time they have also recently agreed to grant AC an interim tariff protecting the status quo of their former licences while the larger decision is made. There were objections to that idea as well, and the document I was reading last night while the Leafs tamed the Hurricanes (3-1 on another impressive showing by the rookie netminder, James Reimer) was the Board's response to those objections.

It should be noted that despite recent claims to the contrary by free culture advocates the very logic about fair dealing removing the need for licensing leaked into the objections to the tariff encouraged by Michael Geist. From the report:

"Some Objectors also raised the possibility that Bill C-32, if adopted, may change radically the extent of uses for which the Institutions require a licence."

There's only one word for it... schooled.

I've been publicly wondering for a few days now about the sudden silence in the free culture camp, but it has all come clear. I don't know how anyone could read this response to their objections without feeling the sting of total rejection. I read the Board's explanation of its decision as an unequivocal rebuke to the faulty logic and bully tactics of Canada's most vocal free culture advocates. And I'm not sure how it could possibly be interpreted any other way.

I only hope it is increasingly clear to Canada's post-secondary education and library sectors that they've been led down a highly theoretical garden path of free culture at the cost of a lot of goodwill and good faith agreement with their traditional partners -- Canada's creators and publishers -- not to mention the cost of a lot of time, effort and resources better spent, well, educating.

The language in the report is absolutely damning (emphasis in quotes is mine):

"[objections] concerning whether the Board can or should issue an interim decision in this instance misrepresent either the nature of the regime pursuant to which the Board operates or the facts that are relevant to the case."

"The onus is on users to determine whether a contemplated use requires a licence and if so, to seek the copyright owner and ask for permission before any such use. Much of what the Objectors advanced seems to disregard this principle."

"Most Objectors sought to equate any interim decision of the Board in general, and an interim tariff in particular, with an injunction. This is simply wrong."

"To a large extent, this assumption is based on the incorrect proposition that the relationship between copyright owner and user is purely contractual."

"Professor Katz argued that the power to make interim decisions is limited to issues that are necessary and inexorably linked to the exercise of the Board’s function. This proposition misapplies a decision of the Federal Court of Appeal..."

"...in any event, it takes two to tango. In this case the Institutions have refused to even walk to the dance floor."

I could go on and on, but I know you all want to read the document for yourself. There is one final point in the decision I'd like to highlight. Some objectors tried to sell the idea that no tariff was necessary because AC could still sue any institution that used its repertoire without permission or payment. The Board concluded that this was not a valid argument since the mere existence of legal recourse is not enough to fill a legal void created by the loss of licensing.

Heads up to the MP's studying Bill C-32. The mere existence of the Supreme Court's six-part fairness test will not be enough to fill the legal void caused by the extension of fair dealing to education.

define outrageous

2011-03-14T16:54:00.009-04:00

Last week, Margaret Atwood was challenged on Parliament Hill to define fair dealing. When her definition and explanation included worries that an expansion of fair dealing would amount to theft from artists, she was told her comments were "outrageous."

On the weekend, educational fair dealing advocate Howard Knopf used his blog to lecture Ms. Atwood about copyright infringement and theft. Knopf is a lawyer, specializing in copyright. He has appeared twice (so far) in front of the C-32 Committee. I have four times in the pool.

According to Knopf:

Ms. Atwood still doesn’t "get" certain basic facts about law and economics. Stealing cars or diamond rings gives the thief additional tangible possessions and deprives the owner of these possessions.

This is the beginning of the standard free culture canard about copyright infringement not depriving the creator of their creation. If I illegally download a copy of The Year of the Flood, Ms. Atwood still owns the original. Nothing of substance has been taken; therefore it can't be theft.

I believe a six year-old child can see the flaw in that logic. In fact, I've tested this out on six year-olds, showing them how if I don't put allowance money in their piggy bank one week despite their having earned it, they still have all the money that was originally in there -- therefore nothing is stolen. "See," I say, "it's like an egg management fee."

Still, we hear all the time that piracy is not theft. This point usually comes to us in the voice of comic-book guy from the Simpsons -- "erm, I think you will find that the legal definition of theft does not apply, strictly speaking, to the act of copyright infringement" -- but it's a relentless comic book guy assault.

Except today a very prominent pirate, TVO tech journalist Jesse Brown, has called what he does to obtain content "stealing" and has gone to great lengths to justify his thievery with all the standard anti-corporate favorites from free culture theory. I don't really want to steal; Rogers and Bell make me steal with their high prices and terrible customer service. Or, as Brown puts it:

It’s a no-brainer. I’d rather be a thief than a sucker.

Read the whole Toronto Life piece:

Honour Among Thieves

And by all means follow the comment stream for an interesting plot development. Many early commenters disagree with Brown's take on piracy as a mechanism for encouraging better telecom. They make legitimate rebuttals and express genuine dismay with Brown's rationalizations. A bit later in the stream we see a sudden wave of comments accusing those earlier commenters of being corporate astroturfers, linking to a tweet by law professor and free culture theorist Micheal Geist showing a creator-friendly website informing its followers of Brown's article.

Brown and Geist have played this game before, tag-tweeting novelist Nino Ricci with accusations of propagandizing. The irony here, of course, is that they rallied a flock of true believers to blame creators for being rallied. You can't make this stuff up.

But let's not lose sight of what's been said today. Jesse Brown has dropped the twin free culture mottos - "Stealing is wrong, but piracy isn't stealing" - "I believe creators should be paid for their work" - stepped from behind the mask and said, flat out, I steal creative content and I think I'm right to do so.

This is new, and extremely revealing. I've listened to a lot of bafflegab and flim flam from the free culture camp over the last decade, but I've never heard anyone just come right out with it like Brown did today. I'm tempted to admire him (but for all that astroturfing nonsense he pulls to avoid engaging with those who disagree with him).

I guess all that's left is for Brown's friends to back him up on his statement.

How about it Dr. Geist? You helped your buddy Jesse out today by releasing your hounds on the dissenters. I guess that means you think, like Jesse does, that content piracy is stealing, and that stealing is okay.

I'll wait to hear differently.

good evening, Zagreb!

2011-03-12T09:59:00.003-05:00

My delightful Canadian publisher, Nightwood Editions, sent along some great news this week.

Edicije Božičević, a publisher in Zagreb, Croatia has bought the rights to my novel, The Uninvited Guest. They are translating it into Croatian and will release it (I think) next year. I visited Zagreb, briefly, in 1987. Looks like it's time to go back.

For those who don't know, The Uninvited Guest is my first novel (others on the way), and it was shortlisted for the Amazon.ca First Novel Award in Canada. From the promo:

Some people win games, some achieve success; most people don’t. Failure is a guest no one invites, yet it shows up almost everywhere. The gifts it brings are easy to overlook.

The Uninvited Guest is a whirlwind ride featuring Romanian hockey superstars growing up in Montreal, Danish prostitutes working in Sweden, Russian mobsters, the perils of parking in Penetanguishene, and how not to die if you want to make it home on time.

And a couple of reviews:

"Satisfying and resonant... John Degen has written a very fine book--rarely is an uninvited guest so enjoyable."

- Steven Galloway, The Globe and Mail

"The Uninvited Guest offers a fictional and philosophical lens on a wide range of subjects from the lives of professional hockey players to the keepers of the Cup to Eastern European history to storytelling, and blurs the whole spectrum together in a finale full of love, community and companionship."

- Igor Larionov, three-time winner of the Stanley Cup

blame the artist, reprise

2011-03-11T11:47:00.011-05:00

Free Culture belligerence takes aim at a Canadian literary legend.

It's hard to imagine a more respected and honoured analytical and literary mind in Canada than the one housed in the venerable head of Margaret Atwood. One only need look at the current and continuing economic crisis for proof of her skill at grasping and explaining complex issues. A number of years back, while the rest of the world shuffled blindly toward the economic precipice, Ms. Atwood was busy writing her brilliant Massey Lecture series, Payback: Debt and the Shadow Side of Wealth in which she pretty much predicted everything that has happened since.

But it seems even Margaret Atwood can't catch a break when it comes to standing up for her rights as a professional artist reliant on copyright to protect the obvious value of her intellectual property. According to her blog at yearoftheflood.com Ms. Atwood was invited to appear before the Special Commons Committee on C-32 and graciously accepted the invitation, despite being in Dubai at the time. She arranged for a video conference link on her side of the world (where it was around 8 p.m. in the evening) and delivered a prepared statement on a witness panel that included Marian Hebb from the Artists' Legal Advice Services and four representatives from the Canadian Musical Reproduction Rights Agency.

When the time came for questions from the committee members, Ms. Atwood found herself berated, interrupted and, I would have to think, insulted by one Member of Parliament who took exception to her definition of fair dealing.

What was her definition?

"Number one, it is fair; and number two it means that some form of dealing is taking place between two sides who reach an agreement -- that's what fair dealing means to the ordinary person."

I'm not going to name the MP* who engaged so rudely with Ms. Atwood - calling her worries about loss of educational revenue for authors "outrageous" and suggesting she would have a better understanding of the issues if she would just read Michael Geist's blog. I won't name the MP because I prefer to keep the debate around this issue outside the arena of political gamesmanship. For that kind of commentary, may I suggest folks read the aforementioned Professor Geist who makes a habit of personal attacks against politicians who dare to disagree with his theories.

Last year we witnessed a shameful attack on two-time Governor General's Award winner Nino Ricci by both Geist and crusading free culture journalist Jesse Brown (who, strangely, does not work for a free culture broadcaster). Brown claimed Ricci writes lies and propaganda, and Geist happily retweeted the calumny to his followers.

This attack was then repeated by free culture copyfighter Cory Doctorow against Ricci and several other Canadian authors who dared to speak about their rights in a Writers Union video.

If those blame the artist moments were not bad enough, we now have the embarrassing spectacle of the most recognizable and respected Canadian cultural figure on the planet being treated like she knows nothing about the reality she has been living and working in for half a century now. To make matters worse, this attack took place on Parliament Hill. Truly the lowest of the low points so far in this ongoing debate.

In a related post today on her blog, Ms. Atwood responds to the MP's insistence that no-one could possibly interpret fair dealing as meaning artists no longer have to be paid for educational use:

In a government fact sheet on Bill C-32, entitled What the New Copyright Modernization Act Means for Teachers, the Government emphasizes that fair dealing for the purpose of education will be an “important” change to the Copyright Act and that “Extending this provision to education will reduce the administrative and financial costs for users of copyrighted materials that enrich the educational environment.”

“Administrative costs” means tracking the use of copied material, I can only suppose. “Financial costs” means paying for it. If the government doesn’t mean that, what in stars DOES it mean?

I would add to this by pointing out (as I have many times before) that prominent advocates for educational fair dealing have advised often in the past that a broad interpretation of such a category would absolutely result in both free use of copyright-protected material and a consequent loss of licensing revenue to creators. They chose not to repeat those claims in testimony to the committee, but their past advocacy is on the record and publicly available.

Finally, the attacking MP's source material for his own understanding of fair dealing, a blog posting by Michael Geist, has been thoroughly discredited by authoritative members of the legal profession. In fact, much of what Michael Geist has to say about copyright meets regular and authoritative rebuttal from those with an actual working knowledge of the law.

*I'm not trying to be dramatically mysterious here. I just despise the political mud-slinging that has characterized so much of the debate from the free culture side. The exchange between Atwood and the MP has been fairly widely reported.

(images of Margaret Atwood courtesy the Parliamentary website)

the tuition/copyright connection - privatization?

2011-03-03T09:53:00.006-05:00

Is a privatization agenda driving copyright advocacy in post-secondary education?

A coincidental juxtaposition of two stories in my in-box this morning has perhaps shed some light on the campaign by certain prominent educational spokespeople to have a broad and vaguely worded exception included in the copyright modernization bill currently before Parliament.

Firstly, the Innovation Law Blog out of the University of Toronto reports on a talk given to U of T's Technology and Intellectual Property (TIP) Group by Roanie Levy. Levy is General Counsel and Director of Policy and External Affairs for Access Copyright, a collective representing writers, publishers and visual artists. In her talk, Levy outlined the dangers to this constituency of a too-broad educational exception in Bill C-32. I quote:

Levy argued that the exception for education is so broad that they could indeed undermine the legitimate interests of the rights holder, thus preventing the normal exploitation of the work and creating problems under [the] Berne [Convention].

Levy further pointed out that the crux of the tension lay with the question of whether the scope of fair dealing under C-32 is oriented around payment or access—or, more specifically, whether it is about simplifying the process of accessing works for educational purposes, or allowing for broad access, but with payment required in compensation for said access. Levy argued that access with payment is a viable alternative and one that should be pursued under copyright reform provisions, going forward, instead of the broad provisions that are currently being adopted.

Note the explicit connection between access and payment.

I have argued extensively that much of the current campaigning for a broad educational fair dealing category and interpretation is aimed less at increasing access than at decreasing, if not eliminating, payment. Those who deny this cost-reduction connection today have previously advised that with a broad interpretation of educational fair dealing much licensing cost could be eliminated.

The argument for cost-savings on the backs of rightsholders usually references the poor students. I have shown a number of times that copyright licensing as currently structured and even with proposed increases is exceedingly affordable for Canadian universities and should not represent a burden to individual students. In fact, one large Canadian university could pay the licensing fee for every post-sec student in Canada with little to no pain at the bottom line. And since universities continue to charge ever-increasing tuition to students attending and graduating from their programs, education is unquestionably a commercial use where copyright is concerned.

This week we learn of one Canadian university that is actually being fined for increasing tuition fees beyond provincially mandated standards – a 900% increase, it seems. From the Toronto Star:

The Quebec government’s punishment of McGill University comes amid an increasingly heated debate about tuition fees — which are lower in that province than anywhere else in the country.

Education Minister Line Beauchamp says the government will penalize McGill for imposing fee hikes that go well beyond the provincial limit of $1,673 per semester.
The Montreal university began charging $29,500 in tuition for its MBA program this year.

The Canadian Press digs deeper into the story:

In order to charge the higher rates, McGill has given up the public funding it receives for the MBA program. The move follows a similar one by Queen's University, which privatized its MBA program in the 1990s, allowing it to set tuition rates higher than provincial limits. Several other MBA programs, including those at the universities of Toronto and Western Ontario, have since followed suit.

Is the trend of privatization in Canadian post-secondary education driving the cost-savings agenda around educational fair dealing? I think it’s a fair question that deserves careful consideration by the C-32 Committee currently studying the bill and its many new exceptions. After all, if privatization leads naturally to 900% tuition hikes, wouldn’t it stand to reason private programs will look for any cost-savings they can find?

good things grow

2011-02-28T10:56:00.005-05:00

If the Oscar hosting didn't put you into a premature slumber last night, you may have noticed the commercial spot above flashing past a couple of times.

Congrats to the OAC's sibling agency, the Ontario Media Development Corporation, for showcasing the very successful business of Ontario art during one of the biggest shows of the television year.

Naturally, my favorite parts are the book and magazine covers flying out of the frame, most of which have benefited from strategic and focused funding from both the OMDC and my office at the OAC.

And the return on that investment is immense. As the OMDC notes on the book publishing page, the Ontario book publishing industry alone generates over $1 billion annually, while the magazine industry accounts for 9,000 jobs in the province and $388 million annually in salaries and benefits.

free as in reading

2011-02-24T10:23:00.005-05:00

Last night, the Book and Periodical Council held a Freedom to Read Week event at the Gladstone Hotel in Toronto. Who Decides What Our Children Will Read featured the thoughts and reminiscences of a panel of Canadian freedom of expression fighters.

Patsy Aldana, publisher of Groundwood Books and recent Member of the Order of Canada, Peggy Thomas, Librarian and Library Service Manager at the Toronto Public Library, David Booth, Professor Emeritus in the Curriculum, Teaching and Learning Department in the OISE at the University of Toronto, and 14-year old Eve Freedman, an Ontario student and past winner of The Writers' Union of Canada (TWUC)’s Freedom to Read Award each presented their experiences fighting book bans and censorship. Ken Setterington, an author and the former Children and Youth Advocate at the Toronto Public Library moderated the discussion expertly.

An extra treat on the evening was watching John Ralston Saul receive this year's TWUC Freedom to Read Award. Mr. Ralston Saul attended with his partner, former Governor General, Adrienne Clarkson, and his acceptance speech was filled with anecdotes from his experiences as the current President of International PEN.

fantastic, frozen copyright time out

2011-02-22T18:36:00.002-05:00

For those of you who may wonder "how can anyone think or talk about copyright as much as this guy does?" -- I can't, at least not without going a bit crazy. So, what do I do to get away from all the squabbling and name-calling? I walk out into the middle of a frozen lake.

Enjoy:

This one reveals my deep-seated geekiness for all things fish-hutty:

And this one could be a visual metaphor for what happens to a country plagued by copyright misinformation... no, wait, forget it. Just breathe. Just breathe in that clean cold air:

are some goods gooder than others?

2011-02-22T17:24:00.004-05:00

Last week's video message from The Writers Union of Canada (TWUC) had quite an impact on the copyright debate in the country, in that it got an often reticent writing community to start discussing the issue in some detail.

Of note is a discussion started over at the BookMadam & Associates blog when blogger and Y/A author Jill Murray announced that she wants schools to use her books for free. Since the video was warning about a potential loss of educational licensing rights and revenue for authors, Murray's less than enthusiastic review of TWUC's message attracted a lot of attention. I mean a LOT of attention. The last count I saw had about 4000 sets of eyes on the blog posting and subsequent comment conversation.

The result? Undecided. I count myself among the writers (and commenters) who would like to assure Jill Murray that she can give her work away to anyone anytime she wants, and I will not try to stop her. My enduring concern is that the rest of Canada's writers receive the same consideration and they too are not forced to give up a business model (collective licensing) they want to use.

I also continue to be concerned that the legitimate concerns of TWUC and many (I would have to say the great majority) of professional writers in Canada not be misunderstood as some sort of attack against teachers and educators. So much of the comment surrounding this video assumed that writers were angry at teachers and trying to keep them from the content that will help them teach. As I said in one of my many comments about the video -- how does noting that teachers get paid for their work constitute an attack against teachers?

The "writers are fighting teachers" meme was accelerated by Cory Doctorow's post on Boing Boing claiming the Canadian copyright collecting society uses lies to pit creators against schools.

Doctorow's nasty swipe at Access Copyright is predicated on the idea that the writers in the TWUC video want to deny teachers and other educators fair dealing access to copyright-protected material. That certainly sounds bad.

Except that's not at all what's happening. Teachers have access to the exact same fair-dealing provisions that everyone else in Canada enjoys, and I don't know of a single writer who wants to take those provisions away from them -- in the same way I don't know a single writer who wants to stop Jill Murray from doing whatever she wants with her books.

The proposed fair-dealing category is not about extending rights to teachers they currently don't have, it's about increasing the industrial education sector's leverage in their claims against collective licensing. Let me say that another way - this is not about individual writers denying individual teachers easy access to their work; it's about huge university administrations not wanting to pay (as much, or at all) for the content they use to teach tuition-paying students.

Anyway, I was pretty sure I had that right last week when I entered the fray and challenged Doctorow on his facts. It's awfully nice to see some very authoritative legal opinion backs me up on this. Today on IP lawyer Barry Sookman's blog, fellow IP legal expert Dan Glover has spelled it all out better than I ever could:

What is truly at issue in this debate over C-32 is whether it makes sense to introduce a new allowable purpose of great potential breadth, thus asking one public good (publishing) to deeply subsidize another (education), when other economic inputs into the school system (energy, labour, supplies) face no such challenge.

Writers and publishers good; education gooder? Surely there's a better solution.

not free as in beer; free as in STFU Degen!

2011-02-16T23:32:00.007-05:00

So, the other day I posted about The Writers' Union of Canada's great video on YouTube warning about potential damage to professional writing and publishing in Canada if Bill C-32 (Canada's Copyright Modernization Act) passes unamended.

In my posting I predicted a nasty backlash from the free culture crowd. "Immediate and vitriolic criticism" is how I put it. And so it goes. The video went out early Tuesday morning, and the first bile was vented before noon. Check my previous posting for examples, or just go check the YouTube location of the video in the link above.

One of the quickest commenters was self-styled copyfighter Cory Doctorow. Mr. Doctorow is a very successful sci-fi and Y/A novelist, who has a side career lecturing every other writer about free culture.

I engaged with Cory on YouTube, because it was clear to me that he was labouring under a misunderstanding about the video and the opinions expressed therein. Specifically, I questioned Cory on his understanding of Canadian copyright law and the fair dealing provision.

Here's Doctorow on the subject:

"...educators should -- along with journalists and critics -- be allowed to quote "non-significant" portions of creative works without permission. I learned to write in the Canadian school system from teachers who felt free to use handouts with brief quotes, without paying a license. Why should I get paid for what I got for free?"

And here's my response:

"collective licensing is not about brief quotes -- it's about large-scale copying for industrial use. Educators ALREADY have the exact same fair dealing rights as the rest of us where quoting is concerned."

Soon after this point in the discussion, Doctorow bowed out. I thought maybe he'd gone away to do some reading on actual copyright law, but a tweet from Michael Geist later in the day pointed me to a posting on Boing Boing where Doctorow ramped up his attack on Canadian writers, calling us and our copyright collective liars for daring to understand fair dealing better than he does. You can see that posting here:

Canadian copyright collecting society uses lies to pit creators against schools

It seemed to me this posting depended on the same fatal misunderstanding of fair dealing to make its execrable points about Canadian writers, so I commented to that effect. A subsequent commenter accused me of intentionally confusing the issue and suggested the collective I belong to is "parasitic." I attempted to correct the facts there as well.

Today, I've noticed two things. First, parts of one of my comments on Boing Boing have been "disemvoweled" -- all the vowels have been removed from the words to make them near impossible to read with any comfort. Also my years-old Boing Boing account has suddenly been canceled. I can no longer comment as myself on Boing Boing.

Free culture loves to make the point that they mean free as in speech, not free as in beer. I see now what this means is that the speech that is free is Mr. Doctorow's, while mine is attacked, censored and denied.

BTW, all credit to Boing Boing -- they are honest about their disrespect for comments. Their comment policy states:

"Offensive, inappropriate, or just plain annoying comments may be deleted or disemvoweled."

I guess I offended Mr. Doctorow. Interestingly, their comment policy also states that they want:

"Factual corrections! We make mistakes, we fix 'em."

Since the bulk of my comment was a factual correction, I do expect to see Boing Boing's correction about Canadian fair dealing any minute now.

Aaaany minute now.

Here's my Boing Boing comment, with all the vowels attached (the revoweled sections are in italics):

@Mikael,

The confusion you're experiencing is the result of facts colliding with your ideological worldview. I'm sure it's hard cutting through all the talking points coming from the free culture epicenter - are you also on Geist's mailing list, or does he just feed Cory?

The fact is, you and Cory both are just flat-out wrong about how fair dealing works in Canadian classrooms. There isn't a teacher or professor in the land who is restricted from exercising the right to quote, or any other fair dealing right enjoyed by the rest of us Canadian citizens. Wrong is what you are. How else can I say it?

But I want to thank you for, perhaps unintentionally, making the connection between the expanded fair dealing Geist is campaigning for (which would be a significant and costly change in the balance of copyright in Canada) and getting universities and school boards out of their collective license responsibilities. Canadian writers have received a lot of condescending pats on the head from the free culture advocates. "Don't worry, there's still the six-part test set out by the Supreme Court. No-one's trying to deep-six your rights or destroy your established licensing structures."

Except that's exactly what is being attempted, and you have just admitted it. No fair dealing right allows for the massive, industrial copying of large sections of published works into coursepacks. Yet as course materials move from physical to digital packaging, the free culture lobby is trying to argue that somehow the exact same actual use of the exact same material will suddenly be fair. The record of this advice from Geist and others is public and goes back at least half a decade.

To the anonymous Canadian writer, I'm not sure how anyone could think that noting the fact that a teacher or janitor is paid for their work constitutes an "attack" on those professions. Then again, when the full influence of the Boing Boing authority calls it an attack, I can see a lot of folks buying that line.

Oh, and Happy Freedom to Read Week next week, everyone. Especially you, Mr. Doctorow!

standing up to the free culture bullies

2011-02-14T10:45:00.013-05:00

Check out this timely and important video message from some of Canada's most passionate (and successful) literary artists:

Once again disproving the myth that professional artists aren't open to new models and new technology, The Writers Union of Canada has turned to YouTube to get out their message about necessary amendments to Bill C-32, Canada's copyright modernization act.

Not surprisingly, the five prominent Canadian writers featured in the video -- Nino Ricci, Erna Paris, Alan Cumyn, Susan Swan and Sandra Campbell -- focus on the reform bill's ill-conceived educational fair-dealing category. This one element of C-32 has proven most worrisome for the professional writing community because of its vague and contentious promise to exempt from licensing much if not all classroom use of copyright-protected materials.

And, of course, writers and their copyright collectives have good reason to be concerned that an educational category of fair dealing would be broadly interpreted as permission for all classroom use. After all, prominent advocates for the education sector have said as much. In fact, many who counsel the education community on copyright have advised that the current fair dealing categories of research and private study should cover most classroom use.

I expect this video to receive immediate and vitriolic criticism from the free culture theorists pushing for a broad educational exception. We've seen already how ugly the attack on professional creation can be. Making much the same point in the Globe & Mail as he does in this video, Nino Ricci was called a liar and a propagandist by prominent free culturists. When the Writers' Union (among other creator groups) expressed these same concerns in a submission to government, Michael Geist accused them of fear-mongering.

Bravo to five brave leaders in Canada's literary community. Knowing full well the free culture agitators will rally a mob to fling insults and shout them down, they nevertheless speak out loudly and confidently for their rights. And bravo to the Writers' Union for producing the video.

UPDATE: As predicted, the nasty comment campaign has begun at the TWUC video's YouTube location. Here are some sample quotes:

"Writers who don't adapt to digital copy realities are destined to end up like movie and music cartels." -- emperorinsaino

"...this just sounds like more propaganda from an industry in decline." --arjenkamphuis

"This video's alarmist rhetoric is totally disconnected from the text of the bill and is a really misguided attack on education." -- corydoctorow

"This video is high on trying to scare people and low on accurate information. Please stop using such propaganda and misinformation... What's more valuable, the education and future of the country, or what's in your pocket?" -- veraciousful

Yes indeed -- you can count on the free culture folks to get the troops out as soon as artists start talking about their rights.

balanced concerns?

2011-02-10T17:48:00.007-05:00

Thursday, the special C-32 Committee charged with seeking balance in the Copyright Modernization Act was itself questioned about a perceived lack of balance. Before the first witness of the day spoke, MP Carole Lavallée complained to the Chair, Gordon Brown, about a distinctly unbalanced presentation schedule.

The Canadian Civil Liberties Association, represented by Nathalie Des Rosiers and Howard P. Knopf, both of whom had previously testified before the committee were given the full first hour of the schedule to present similar testimony to what they had already brought.

Given the presence of Knopf, an outspoken educational fair-dealing advocate and critic of collective societies, it is accurate to say the first hour was given to a single and previously heard user-perspective group, while the remainder of the committee's time was divided between three separate creator-perspective groups, each with their own unique concerns and each being given their one and only opportunity to speak to the committee.

Ms. Lavallée's concerns have merit, I think. In the very same early exchange, Gordon Brown noted that close to 170 witnesses remain on the schedule and that it is unlikely the committee will get a chance to see them all. Given that fact, it seems a strange waste of the committee's time to see the same witnesses with the same testimony twice.

I appreciate that the Clerk of the Committee has a very difficult job in this instance, but I think it behooves all members (and staff) to be more aware of perspective-balance. The clerk's explanation that the CCLA's submission would be more broad than that of the three creator groups, could be interpreted as prejudgment of testimony not yet heard by the committee. I am, in general, very pleased with the attention the C-32 committee is giving to its complicated subject-matter, and I would not want any perception of prejudgment to creep in and poison the well for either creators or users.

To be clear, I don't think this was the case on Thursday. I think what happened was an honest misstep - but a disturbing misstep nevertheless. Howard Knopf has now been given two opportunities to present his extremely one-sided opinions of collective societies in front of the committee. On the see-saw of copyright testimony, he is sort of like the bully who pushes someone out of line so he can have a second crack at knocking off the kid in the opposing seat. Not exactly good schoolyard behaviour; but then, we've come to expect that from the more vocal free culture advocates in this debate.

On a much more positive note, the Professional Writers Association of Canada (PWAC) presented, in my very biased opinion, some of the most clear, levelheaded and culturally intelligent testimony the committee has seen. In the spirit of full disclosure, let me inform those who don't already know that I was Executive Director of PWAC for five years of the last decade.

Above, you see Alexander (Sandy) Crawley, Executive Director of the Professional Writers Association of Canada presenting PWAC's testimony in front of the C-32 Committee on Thursday afternoon. Video of his full testimony can be still seen on the committee website.

He covered a lot of ground, but returned again and again to a very plainspoken declaration that stands, I think, for all professional creators in Canada. Professional writers are already discovering and inventing new business models to help lead Canada's knowledge economy. Contrary to what the most outspoken free-culturists say about us, we are not living in the past, trying to return everyone to dead technologies and business arrangements. Instead we intend to be the leaders in all of this, but we can't very well lead if ill-conceived copyright reforms cut our hamstrings.

I think Crawley's finest moment came under questioning from NDP copyright critic Charlie Angus. Angus, a musician and former small magazine publisher seemed to be trying to draw Crawley into his own ideological attack on "big" corporate media. This is not a foreign ideology to freelance writers or most professional creators, but neither is it particularly helpful to professional creators in this discussion, and Crawley refused to bite the hook.

Many writers and artists are willing business partners with corporate media clients. Big media is a large and very important market for the cultural economy. And besides, in copyright it's not just big media who are rightsholders. We are all rightsholders. Weaken the rightsholder side and you just make it that much easier for free culture bullies to knock us all off the seesaw.

37,000 lawyers walk into a bar...

2011-02-09T16:37:00.009-05:00

The Canadian Bar Association, representing 37,000 jurists across the country has weighed into the C-32 submission pool with a terrific survey of the issues and varying legal opinions around the Copyright Modernization Bill.

The CBA's Copyright Working Group has done a pretty good job of standing on neutral ground and presenting the spectrum of legal opinion around C-32, something that has been sorely lacking in the ongoing debate.

They even provide handy tables of opinion divided into Owner/Creator Perspective and User Perspective - though this is my one small quibble with the submission. As I've mentioned in the past, I think the creator/user divide is a false dichotomy created by those who would like to co-opt "the public interest" to give their own ideological stance a populist appearance.

Most of the user perspectives expressed in the CBA document are actually industrial-user perspectives, and that's a very important distinction to keep in mind while you read the submission. I am both a creator and an individual user of copyright-protected material, and little of what I see on the so-called user perspective side speaks to my experience or concerns.

For instance, the opinion table for education as fair dealing contains this user perspective:

The educational exception may reduce administrative and financial costs for educational institutions, allowing institutions to invest more in teaching and students, rather than in administrative costs.

As happy as I am to once again see the link between educational fair dealing and cost-savings for universities baldly and forthrightly stated, I'm not sure it's in my individual user's interest to have universities save a bunch of money at creators' expense, since the passing on of those savings to students is by no means guaranteed (or even, really, promised), and the full negative effects on Canadian curriculum creation are not even raised, let alone considered.

My individual-user's perspective includes those concerns, while the post-secondary sector's industrial-user perspective understandably does not, focused as it has shown itself to be on cost savings.

Strangely, I've had some free-culture cheerleaders reference this submission to me over the past couple of days, as if the CBA has somehow come out against the creator side on copyright. To them I say - read the submission (the actual document; not just Michael Geist's weird interpretation of it as somehow exonerating anti-copyright positions).

I'm pleased with what I read, and I think both the owner/creator and industrial-user sides are well represented in the opinion tables. What remains is for legislators to understand what actual individual users need or want.

(logo courtesy the CBA)

the collective voice of creation

2011-02-03T14:13:00.004-05:00

This morning in Ottawa an unprecedented coalition of Canadian cultural organizations released a joint statement calling for targeted amendments to Bill C-32, the federal government's Copyright Modernization Act (currently at a special legislative committee after passing Second Reading).

The statement contains 9 warnings about Bill C-32 as it is currently written:

C-32 may be toxic to Canada's digital economy;

C-32 can destroy markets for artistic and cultural works;

C-32 expropriates without compensation;

C-32 streams revenues away from creators;

C-32 expropriates music owners' rights;

C-32 rewards infringement;

C-32 turns copyright upside-down;

C-32 makes Canada a safe haven for pirates; and

C-32 thwarts new business models.

Full details can be found at this website; but for me what's even more important than the statement itself is what it represents.

Canada's many overburdened cultural associations and organizations have worked incredibly hard on producing a statement that represents the entire sector as broadly as is possible in a very complex and often misunderstood policy discussion. The statement is endorsed by almost 90 separate organizations representing in total over 600,000 working Canadian artists and professional cultural creators.

So often in the copyright debate, you will hear free culture activists claiming to speak for Canada's creators. Undoubtedly, there are many individual voices in Canada's cultural sector, and they do not always agree. In fact, not always agreeing might be considered a prerequisite for the creative life. That's why a joint statement like this, incorporating the collective opinion of over half a million Canadian creative professionals is so remarkable.

Can it be disputed that this is the voice of Canada's creators? I don't think so.

thinking culture

2011-01-26T15:22:00.008-05:00

Last evening, I participated in a very civil debate on copyright reform and Bill C-32, hosted by the Canadian Conference of the Arts as part of their new Thinking Culture series. It took place, believe it or not, on the campus of the University of Ottawa, also known as the self-appointed centre of Canada's free culture movement. Believe me, when I was invited to speak at U of O, I fully expected the room to be weighted heavily with folks who wanted to challenge and dismiss everything I had to say in defence of creator rights around the new fair dealing category for education. I mean, Michael Geist's office is steps from the building where the debate took place.

Here's a photo of the debate room, taken from the panel table well before the event (the room did eventually fill). I love this shot because here we are debating the merits and flaws of a government bill, and there's the government just a couple of blocks away, doing exactly the same. Yay democracy!

The debate featured:

Roanie Levy - General Counsel and Director, Policy and External Affairs, Access Copyright

John Degen - Poet and novelist, Literature Officer for the Ontario Arts Council (that's me)

J. Aidan O'Neill - Partner, Fasken Martineau DuMoulin LLP

Spencer Keys - Government Relations Officer, Canadian Alliance of Student Associations

.. and for the most part it was a a fun and interesting talk with very little (if any) acrimony, although Aidan O'Neill did mention my mother at one point and there could have been a throw down.

I focused my talk on the strange campaign to add "education" as a fair dealing category based on the costs it would save for Canada's overburdened post-secondary students. I brought some hand-drawn charts with me (coloured by my own little students -- my kids in grade three), showing that the actual numbers represent a minuscule extra charge per student when compared to the rest of the expense lines in their budget. The charts also showed that universities need not pass copyright licensing costs on to their students, since they represent an even tinier portion of their yearly budgets.

For me, the highlight of the evening was Roanie Levy putting into words what I have been thinking for many years. It seems some of the more extreme advocates on the user side are trying a little sleight of hand in which they insert new freedoms into C-32 under the umbrella of a very benign-sounding fair dealing in order to finally get what Canada's courts and copyright board have consistently denied them... the freedom to broadly interpret what happens in the classroom as almost entirely fair dealing. I'm pretty sure I didn't hear a strong denial on that point from either Aidan O'Neill or Spencer Keys (not that they themselves are sneaky advocates, but they were in the unenviable position of having to answer for some of the more extreme rhetoric on the user side).

All in all, a very positive evening. I finished up my own long day of arts work with a visit to the Tree Reading Series, which featured excellent readings by Dean Steadman and Canada's latest Parliamentary Poet Laureate, Pierre Desruisseaux (as well as a marvelous translation reading of some of Desruisseaux's work by a University of Ottawa grad student studying him). Then it was on to a local watering hole where I was hosted by some of the city's most exciting and interesting poets -- Tree organizer Rod Peterson, Pearl Pirie, the everpresent rob mclennan, sound poet Max Middle and new acquaintances Sandra Ridley and Christine McNair. There was one other fellow there, but I'm sorry to say I have totally blanked on his name (help me out rob).

The rest of the Tree line-up for the winter and spring is excellent, so anyone passing through (or living in) Ottawa on a Tuesday evening should check them out at the Arts Court at 2 Daly Avenue. Max Middle's AB Series is also well worth a visit. Ottawa is poetry-hot right now.

today in school, I learned that I'm an "extortionist"

2011-01-21T12:16:00.016-05:00

Have you seen the commercial where the guy drops his smart phone in the urinal and then reaches in to retrieve it? Right now, I'm the incredulous guy standing at the next urinal, watching in utter dismay.

Really?

I have just finished reading a book review over at the Canadian Association of University Teacher's website, and I feel an overwhelming need to wash my hands... and eyes, my computer and, frankly, my diplomas.

Everything I've previously written about a very organized creator-unfriendly campaign from one corner of the educational sector (see my last posting for a comprehensive listing of links) has made me just a wee bit queasy with myself, because I've liked and admired almost every university professor who ever taught me. This makes my current state of respect-withdrawal rather painful.

So, some quick details:

The book review is of Professor Michael Geist's recent speed-edited collection of essays on Bill C-32 "From ‘Radical Extremism’to ‘Balanced Copyright’: Canadian Copyright and the Digital Agenda." This is the volume you can see Prof. Geist waving about in his commercial, I mean testimony, before the C-32 Committee.

One could be forgiven, I think, for expecting some sort of critical engagement with the text in a book review, especially in an academic context. Oh well. The CAUT review, written by York University music prof Jay Rahn fills the space below a jpeg of the book's cover with little more than the all too familiar attack on professional content creators. I quote:

"University and college teachers might assume the bill’s addition of “education” to the list of fair-dealing exceptions provides a carte-blanche privilege to copy copyrighted works willy-nilly. Indeed, propaganda efforts of lobby groups funded by multinational publishers have already spread this misinformation throughout Canada in op-ed pieces in large-circulation newspapers."

...Notwithstanding the misinformation campaigns of publishers and what some have termed the “copyright-collective industry,” which includes staffers and hired-gun lawyers who propose tariffs at the Copyright Board, whether or not Bill C-32 passes in its present form might well be of little direct consequence to teaching at Canadian universities.

It's important to understand that CAUT and much of Canada's post-secondary education system are currently in a tariff dispute with Access Copyright, Canada's Copyright Licensing Agency. This dispute is rather like a collective bargaining negotiation with Access Copyright representing the workers and CAUT et al representing the bosses.

As a non-staffer or hired-gun lawyer of the "copyright-collective industry," who regularly speaks out for strong creator copyright protection, all I can say is... really?

It gets worse:

Why would CAUT publish such a one-sided, unbalanced non-review promoting a highly politicized view of copyright reform? Do they have a stated position on copyright reform in Canada?

Well, look at that, yes they do:

CAUT's Copyright Consultation Submission

You can see that submission, and a great deal more of CAUT's policy statements on copyright and intellectual property on the CAUT website. Those materials include a 2006 podcast of, yes, Professor Michael Geist addressing a CAUT conference on copyright in Ottawa. In this address, Geist makes fun of CanCopy (now Access Copyright) on his way to proposing "a new vision for copyright" and states that "CAUT is in a great position to be one of the leaders in that regard."

Let me quote briefly from the CAUT submission:

"CAUT therefore recommends that the Act’s fair dealing provisions be amended to state “Fair dealing for purposes such as research, private study, criticism, review or news reporting does not infringe copyright” and to enumerate the fair-dealing factors described in the CCH case (again as non-exclusive factors). The important inclusion of the words “such as” would reflect the view that the categories are no longer rigid, limited and exclusive, but are better understood as broad and open-ended,"

Anyone following the copyright debate will recognize that recommendation as one of Michael Geist's own recommendations. He has long advocated that Canada "expand the current list of fair dealing exceptions by making it illustrative rather than exhaustive."

And worse:

But what really makes me want to go and have a shower is the complete lack of disclosure by CAUT, Professor Rahn and Prof. Geist (who has gleefully tweeted about the review today). I mean, an attack on "propaganda" and "hired-gun lawyers" should, at the very least, let the reader know of the complex network of interests behind that attack. Something... anything... maybe a little paragraph at the end pointing out that just about everyone involved in that academic book review is pretty much holding hands.

For instance, one of the essayists in Geist's book is Sam Trosow, another professor deeply involved in CAUT's IP policy making. Professor Trosow has filed at least one affidavit in support of CAUT's interventions against Access Copyright in tariff disputes. In fact, Geist, Trosow and fellow anti-AC crusader Howard Knopf are the principal sources for CAUT's recent IP Advisory on C-32. I'll go out on a limb and guess that both Trosow and Geist actually had a hand in writing CAUT's Copyright Consultation Submission.

Another of Geist's recent essayists is fellow University of Ottawa professor Elizabeth Judge. Prof. Judge also contributed to Geist's earlier copyright volume In the Public Interest: The Future of Canadian Copyright Law, as did Sam Trosow. Interestingly, Professor Judge also sits on the four-person Working Group on Copyright for the Canadian Federation for the Humanities and Social Sciences; a working group chaired by none other than the author of the book review, Professor Jay Rahn.

Sad to say, I and my fellow professional creators are getting very used to some of the dirty tricks and nasty attacks in this collective bargaining moment. We're used to being called shills for the entertainment industry, lobbyists (said with a sneer), members of the copyright cartel, astroturfers, propagandists, liars, jailers, confiscators, extortionists* and a whole host of other nasty names. I'm even getting used to the fact that many of these attacks come straight from a university I paid good money to attend.

But, can y'all do us a solid and - at least - take off the masks before you bludgeon us.

* I picked up this nice one today, on the blog of Athabaska University assistant prof of literary studies Mark A. McCutcheon - thanks Professor McCutcheon! Does that make you an assistant prof of "extortion" studies?

real world "dealings" in real world education

2011-01-19T09:59:00.010-05:00

(image of a key witness selling used cars to the C-32 Committee courtesy the Parliamentary website)

As the special Parliamentary committee on copyright reform works its way through the list of witnesses commenting on Bill C-32, we continue to hear a lot of determined advocacy from the free culture crowd about the educational fair dealing category.

As I've noted elsewhere (here, here, here, here, here, here... aaand here) most of this lobbying comes from organized educational interests with an eye on budget savings. The savings, of course, will come at the expense of professional Canadian artists and other creators who currently enjoy straightforward protection of their work and a licensing structure that makes classroom use seamless and trouble free (for a reasonable price).

Anyone who doubts that creators will lose revenue with this change should listen to the testimony of free culture's self-appointed Canadian guru, Dr. Michael Geist who, when asked a straight yes or no question, was forced to admit to the Parliamentary committee that creators would foot the bill for education. You can see that testimony online at this link, (skip ahead to around the 24:30 mark to see Dr. Geist challenged on the point of lost revenues under educational fair dealing). He tries to equivocate, but ultimately can't. You will also see the other two witnesses, both professional IP lawyers (Giuseppina D'Agostino and Barry Sookman), making unequivocal statements about creators losing revenue.

Interestingly, since that testimony, Dr. Geist has been all about "compromise" in copyright reform and especially on the topic of educational fair dealing. Of course, a Geistian compromise on educational fair dealing STILL involves broad new freedoms for those very organized educational interests, and STILL involves considerable lost revenues for creators. Don't try to find those admissions in the good doctor's latest compromise posting. It seems when he's not facing a panel of demanding public officials, Geist keeps his cards close to his chest.

Tell you what, we'll ignore all your objections and just go ahead with the deal as I originally described it.

Frankly, I've been offered better compromises on a used car lot.

What gets ignored in much of this educational sector lobbying are the real world uses of created content, real world uses that could all quite easily be covered by an affordable licence.

The other day, I received a note from the Playwright's Guild of Canada (real professional creators making real content used in real educational settings). In it, they outlined their own objections to a new educational exception. The note contained this real world story:

Over the holidays I ran into a friend who teaches at a local university. He is the author of a number of excellent textbooks on subjects related to democracy and social justice. We began to talk about Bill C-32, specifically about the extension of “fair dealing” to “education” – likely to provide a huge “educational” exemption from copyright. I felt depressed that so many educational institutions support this flawed legislation. It’s a Bill that, among its many flaws, will very likely destroy the copyright collectives which administer the right to use our work in schools.

Our conversation led my friend to tell me a story about his reality as a teacher. Early in the fall semester he asked one of his classes how many of his students had purchased the course textbook. Only three of the 150 students in the class put up their hands. So he asked another question, “How many students have access to the text from other sources?” Most of the students raised their hands. Someone had been good-hearted enough to scan the entire book and put it up online. I asked him what he did. He shrugged and told me he asked them if they were paying to download the files. They said, “No, the download was free.” No one was profiting from the theft but nevertheless a serious theft had occurred. He felt powerless to do much about it.

Three textbooks were sold, 147 stolen and a professor who writes textbooks on civic responsibility feels powerless to do anything about it, quite depressing.

I hear stories like this all the time. In fact, I am married to a university professor who shares my horror at the real world copyright infringement she witnesses as a matter of course in her job. The free culture crowd does not speak for that civics professor, and neither does it speak for my wife and the vast majority of her colleagues with whom she's discussed this issue. REAL educators want the creators of their educational materials fairly treated under the law and by their educational institutions.

Is it all about the money? Well, no, it's about the fact that the cold comfort on copyright reform, and the bafflegab about fair dealing is actually coming from the places we normally trust to seek truth and model ethical behaviour. The slick used car compromise to Canadian creators is being offered in the guise of scholarship.

It's enough to make one head for a church -- where one might just find some real world discussion about real world copyright concerns:

Why is it so important for churches and church leaders to adhere to the Canadian Copyright Law? Aside from protecting the rights of the artist, it becomes an issue of hypocrisy. If we wish to speak ethically about the world then we simply must comply with the laws and not circumvent them when it becomes burdensome.

...The longer that the church compromises copyright law the more damage is done to our reputation. We begin to lose our credibility to speak ethically to a society, about how we ought to be as a people, a culture and civilization.

-- Marty Levesque, from the Rogue Preacher Blog

UPDATE: For the benefit of the usual deniers in my comment section, here's another story from that PGC note on educational fair dealing:

Yesterday my niece, who’s in first year drama at another university, dropped by to talk to me about one of her new courses, Script Analysis. She showed me the list of books she’s having to buy, starting with Sophocles and ending with Judith Thompson. Most of the plays were all in the public domain and available very inexpensively. The few contemporary works were selling for less than $15 each. At the bottom of the list there was a note. I quote, “Instead of creating a course pack for the course (in the interest of saving you money and a great deal of paper), supplementary readings for it will be scanned electronically and made available via the Internet.”