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My copyright reform letter:
Does copyright really need any reform in Canada?
I challenge the government that perhaps very little reform in the direction the government plans to go (based on Bill C-61) is actually needed. I say this because I am convinced that any new features of a copyright bill that try to take new technologies into account will be rendered obsolete by the time they are passed. I would agree however, that copyright reform which makes copyright law less restrictive in Canada and more accommodating to current and future realities is preferred. But I have little faith that this will happen.
What is motivating copyright reform?
What are the driving factors that have led to the government's desire to reform copyright? Canada's obligation to WIPO? We have not met our WIPO obligations since 1996, when they were signed. What effect has this had on Canada? I haven't seen any. I challenge anyone to explain to Canadians what the ramifications are of not fully ratifying the WIPO treaty. Who is insisting that we ratify it? The US? The entertainment industry? Who are they to dictate our sovereign national policies? I predict that we could carry on having never ratified the terms of WIPO indefinitely and nothing would ever come of it except for some incoherent lobbying and sabre-rattling. But I have little faith that we would have the courage to ignore WIPO or whomever is forcing us to ratify it.
The entertainment industry has too much influence
Much of what I am about to say is generalization, but I feel strongly that the entertainment industry are the masters of their own demise. A history lesson is required here, but in short, their decades-old business model depends to this day on finding, producing, promoting and distributing talent and content. When these tasks had to be done by specialists in a domain under their complete control, the business model was sound. But today, those tasks can be done by anyone. Thanks to technology, artists can produce their own content without assistance from the entertainment industry. Thanks to the internet, these same artists can promote and distribute their own material without assistance from the entertainment industry. Meanwhile, the entertainment industry has lost its monopoly on (especially) the role of distribution and it sees a direct threat from technology and the internet. So what has it done? Adapted to and embraced the new reality? No. It chooses instead to fight to put restrictions on the technology itself. It chooses to maintain the status quo. It chooses to threaten to sue their own customers. Think about that for a moment. It chooses to place restrictions on media. It chooses to enlist the help of government in prolonging an antiquated business model and it appears that governments are willing to accommodate them. The artists themselves aren't even siding with the entertainment industry anymore as they see the industry speaking 'on behalf of artists' but seeing little benefit from any initiative the industry has undertaken. So why is the government siding with them? Why does the entertainment industry seem to have so much influence on government? What makes their content so special that it has to be protected so much, consumers' rights be damned? Why is it necessary for copyrights to be extended beyond the lifetimes of the original artists? Imagine if patents lasted as long as copyrights.
Copying stifles innovation? How quickly we forget history.
The entertainment industry argue that copyright in the digital age must become more restrictive to foster innovation. What they forget to tell you is that art has always been influenced by previous art. Artists have always been inspired by or paid hommage to previous creators and the entertainment industry's biggest successes were based on borrowed ideas. Now that their ideas are at risk of being used much more easily thanks to technology, they are scared. But in the end it all boils down to money. Technology is diluting their intellectual property value and instead of being reasonable, the entertainment industry will only be happy (it seems) if restrictions actually stifle innovation. Don't take my word for it — study the history of the expiration of copyright on Mickey Mouse for an insight into the greed that has become entrenched in the entertainment industry and the collusion of government to side with them.
They lie to try to prove their point and the lying is no longer confined to the industry
The entertainment industry try to convince government and the public at large that they are hurting financially and that the hurt is directly related to internet file sharing. Their own studies show that sales slumps are directly tied to file sharing. Yet independent studies don't agree at all. In fact, independent studies have shown that the biggest sharers of files are also the biggest buyers of content. The US have recently accused Canada of being one of the worst 'pirates' in the world, but the figures fall flat when scrutinized. Did our government challenge those figures and show Canadians that the accusations were false? No. They seem to prefer to protect the lie. Then the Conference Board of Canada is caught promulgating falsehoods about the state of copyright in Canada based on figures produced by the entertainment industry's own lobbyists in the US and trying to pass it off as official research. Luckily, we have some very sharp people in this country who saw past the deception right away. Did anything come of this blatant deception? No. How could that be? Does the government wish to construct ever more fantastic yet completely false sets of evidence to support new, restrictive measures in copyright reform? Only one example of file sharing being demonstrated in a positive light is the release of the band Radiohead's last album, In Rainbows. They made the entire album available to the world for whatever they wanted to pay — nothing if one so chose, for many weeks via the internet. They then released the album the traditional way and still made millions, much to the chagrin of the entertainment industry.
Complex copyright law cannot keep pace with technology
Something that I think the government really needs to be aware of is the fact that technology no longer moves at the same pace as it did decades ago. The rate of change, innovation and adaptation is moving so fast as to render any technological restriction obsolete within days. The '3 Strikes' law being studied in France hasn't even been passed into law and yet patches are already available for wifi routers to randomly hop between wifi networks to prevent the monitoring of wireless internet connections. If lawmakers don't know what that means, then how can we be confident they're creating viable legislation if you don't even understand the technology and its capabilities? It has been suggested that even if we permanently shut down the internet (something the entertainment industry would drool over), sharing would still take place via the swapping of portable media and massive digital storage devices. When computers come equipped with hard drives big enough to store every song every recorded (that time is closer than most people realize), we won't need the internet for file sharing anymore. How will copyright law handle that eventuality? It cannot.
Don't pretend to do us any favours
In the last attempt to introduce copyright reform legislation, the government was quick to brag about including measures aimed at protecting consumers' rights. For example, consumers would still maintain the right to make personal copies of their own, legally purchased content for personal use. Until you read the fine print. It's only allowable unless it circumvents any type of digital lock (or DRM). All commercial movies on DVD have a digital lock. So what the consumer realizes is that they in fact have no right to copy any movie on DVD. But thanks anyway. The entertainment industry has admitted many times that if they had their way, consumers of their content would be required to purchase quantities of each piece of content for every separate use of that content. So if you wanted to be able to listen to an album of music on your home stereo, your computer, your mp3 player and your car stereo, they want payment for 4 uses. Imagine how people would react if the publishers of cookbooks only allowed you to use the recipe once, then pay again if you wanted subsequent uses and made it illegal to share the cookbook with other people. Let's be fair. Format shifting is a reasonable right for consumers and it should be allowed in any new copyright law, no matter how loudly the entertainment industry protests.
Speaking of locks
Anyone who has done any research on the digital locks the entertainment industry employs on music, movies, electronic books, etc. has seen overwhelming evidence that these measures are a nightmare. They prevent consumers from doing things with legally owned content that most consumers feel are reasonable acts. Worse, when these locks are no longer managed correctly, or abandoned altogether, consumers are left holding content that no longer works, with no recourse. I would prefer that our government come to the realization that digital locks are bad for the consumer and would outlaw them in any new legislation, not support their enforcement. These locks extend beyond content and onto the technology itself. In Canada, you cannot use a cell phone from one mobile phone provider on another service without breaking the lock. Legislation proposed earlier (Bill C-61) would have made breaking those locks illegal. Yet in Europe, consumers swap providers using a single phone all the time to enjoy the benefits of competition in the marketplace.
Copyright reform must empower educational institutions
As an educator, I was appalled by the measures put forth in Bill C-61. DRM is not and never will be a viable method of restricting loaned educational material, nor should educational resource material ever be restricted. Librarians have spoken out very loudly against some of the measures in Bill C-61 and I completely agree we were headed in the wrong direction. Who exactly dreamed up these schemes? It certainly wasn't people from education or people grounded in the real world.
Peer to peer getting a bad rap
Peer to peer (P2P) file sharing technology has finally crept into the spotlight. Thanks to an effective campaign by the entertainment industry, P2P has gotten a very bad rap. Ask a layperson on the street and if they know about P2P, they're likely to suggest that it is only used for illegal purposes. Those in the know realize that this is not true. Whole new online business models have blossomed thanks to this efficient technology and I hope the government bears this in mind while crafting any new copyright law. As it applies to the questionably illegal sharing of copyrighted content, the entertainment industry has not learned its lesson with regards to distribution mechanisms. The entertainment industry still relies on the expensive, inefficient model of physical media sold in box stores to distribute their content, even after the mainstream public has demonstrated that the best and easiest way to distribute content is in digital form. Since the industry already gets a media levy to allow for the private copying of content in Canada, it makes me wonder if the industry should just lobby for a separate levy on ISP fees to allow for en masse sharing of all content, since this seems to be what most consumers want in the first place. The freedom to get what they want, when they want it. A service that neither the entertainment industry nor the mainstream content providers (Cable TV, radio, etc.) seem to do a very good job of providing.
Fair dealing in jeopardy
There currently exists a part of copyright law in Canada that allows for fair dealing. Fair dealing is a user right that allows for the use or reproduction of a portion of copyrighted work for private study, research, criticism, review, or news reporting. Yet there are endless accounts of ordinary citizens being bullied by the entertainment industry on video hosting sites like YouTube, where if a member of the entertainment industry accuses anything hosted online of infringing copyright, YouTube automatically takes the content down, even if the material is actually being used under the terms of fair dealing. This is partly due to the robotic nature with which infringements are sought out. Content may not actually be infringing, but if the entertainment industry's automated searches find anything resembling their content — they order it taken down. Due to strong-arm tactics by the entertainment industry and the capitulation of YouTube, the innocent are presumed guilty unless they prove otherwise. Content can even be removed when those who are not even the copyright owners of content demand a take down. It's yet another example of 'shoot first, asks questions later — preferably never' type of mentality propagated by the entertainment industry. Even though mechanisms exist to challenge inappropriate take-downs, what chance does the average consumer really have against such a machine? If due process were allowed to reign in these matters and consumers didn't fear the entertainment industry and their massive legal muscle, most of these incidents would never happen. But once again, government does not seem to want to challenge the entertainment industry's stranglehold on creativity. Why?
The copyright culture has become so prevalent in our society now that it is even being quoted in matters having nothing to do with copyright. Just the other day, someone in the UK was accused of violating copyright by the police. This accusation was for posting a photo-radar photo of someone supposedly caught speeding, for the purposes of showcasing how inaccurate their methods were. There is no such thing as copyright on a photo-radar photograph, yet the police bandied the term about as a means of intimidation.
In conclusion, I do not support any government action that gives more to the entertainment industry and takes away from the citizens of Canada. The entertainment industry has extended an antiquated business model well beyond its intended life and usefulness and now that it is in its final death throes, they are banking that the only group of people ignorant enough to prop them up a little bit longer before the consumer finds other alternatives is.... government. When you begin drafting new copyright legislation, bear in mind that the people who really need protection are consumers. I believe that is the role of government, is it not? Copyright law needs to embrace technology and the digital realm, not shackle it and turn ordinary consumers into criminals.