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Renowned US Copyright Scholar Raymond Nimmer published a post on his blog today that it extremely relevant to this discussion. While I strongly encourage anyone interested to read the entire post (linked below), I excerpted some of the most pertinent passages below:
It is fair to say that, while the user generated content machines (such as U-Tube) thrive, many commercial content producers are struggling. Clearly, the user-generated content sites document that if one gives content or the ability to distribute it away free, there will be takers and the site may become immensely profitable. But - what if a content owner desires to charge for content? Are current laws and business practices adequate to support that choice?
Should we care? Yes.
While valuable works are produced by individuals not seeking to commercialize their work, other important information projects only occur where substantial financial support or commercial benefits exist or can be realistically sought. Intellectual property law must support both and the range of options in between, but it is too often easy to ignore one of these models in policy discussions.
Some of the economic stress of the content industries is attributable to the inevitable adjustments caused by new technology and social expectations. Thus, a business model that assumes that a content producer or publisher can charge high prices for copies faces the likelihood of greater seepage (piracy) in a digital world than in a plastic world. But while many in the public are comfortable copying commercial content created by others, most do not do so without authorization. One role of law and its enforcement, of course, is to shape and influence expectations about complying with the norms set out in law. The business model may remain viable if relatively effective technology controls become acceptable in modern markets or if social expectations change to reduce or cabin in piracy at a level that is sustainable and whose costs are covered by sale or license fees generally. But the greater digital seepage means that the economics and scale have changed; this heightens, rather than reduces, the need for and the character of supportive laws for the content producer.
Unless properly adapted, modern copyright and related law may not support content industries even remotely of the scope and depth of those that historically have existed.
It may seem odd to be discussing a risk of failure in content industries at a time when the Internet created a huge upsurge in the amount of information available. But the reason lies in large part in the provenance and character of information. A difference exists between content generated and published without review by individuals, and content generated by concerted research or creative effort of financed groups of professionals. The motion picture "Wizard of Oz" may not be perfect, but the quality of that product differs from the video on U-Tube by Joe Smith who filmed himself eating pizza. Many studio products, of course, are not well done, while many individual products are excellent, but one does not have to denigrate the work by Joe Smith to recognize that society is the loser if his content becomes the sole entertainment content available. If these types of content reside on a continuum, however, the problems of law sustaining the content development reside closer to the "Wizard of Oz", while the explosion of information on the Internet lies closer to the Joe Smith video. Law should provide a basis that promises to sustain both the commercialization model and a model in which the content developer gives her product freely to the public. It is with reference to professional or commercial content that the incentive structure of traditional intellectual property law has its greatest bite, and it is here that the Internet and other digital systems have their most potentially disruptive impact. …
We are where we are today in terms of intellectual property policy and its impact on the content industries in part because of an on-going conflict between groups that, respectively, seek enhancement or protection of property rights, and those who would prefer a diminishing role for intellectual property (especially for copyright) in digital environments. One theme frequently cited by the latter group argues that "information wants to be free" and that to the extent that commercial incentives or profit online are desired, they should be sought in ancillary ways, such as through advertising revenue, while the information itself is made freely available. The difficulty is that this business model has largely been a failure and those who have been able to follow it tend to be content "aggregators" or providers of other services, not content creators or publishers. They survive and thrive, rightly or wrongly, by collating the work of others (often obtained for free). But in a world of limited or no profit for newspapers or other content-providers, who will be left to create that content? …
There are, of course, many other issues regarding the impact of digital technologies on content creators and providers. But the basic issue in reference to law and legal policy involves a need to develop a balance in intellectual property law that preserves what we have … and that supports realistic business models for those industries. To do so requires a shoring up of property law and judicial interpretations of existing law that support, rather than a continued erosion of the position of content developers and providers. In doing this, the interests of individuals and companies who create content they do not desire to commercialize also need to be protected, but this does not support widespread, substantial copying of the work of others or relying on that work to develop a commercial enterprise profitable for the aggregator or other commercial entity.
canadada [2009-08-10 03:00] Comment ID: 1464 Reply to: 1457
Have you read/reviewed the Terms of the Google Settlement? Quite the piece of work. You're kind of 'damned if you do & damned if you don't'.
Google, Yahoo, AOL and other search engines are essentially American 'distributors' of global 'content'. And, 'American 'Law', it seems, is increasingly backing them up.
What hope does a professional 'author' stand against Google? I would say none.
Even so, Eric Zohn, an attorney in business affairs at William Morris Endeavor, one of the largest entertainment agencies, is advising clients in the literary department, to opt OUT of 'registering' their work with Google because OTHERWISE "Google is free to SELL YOUR BOOK unless you expressly tell them NOT to." The terms of the agreement call for authors and publishers TO SPLIT 63 percent of any revenue that Google generates. Meaning, Google takes 37%, - Nice. The publisher & author get 31.5%.
The settlement, of a lawsuit brought by publisher and authors who argued that Google was violating their copyright by scanning books in libraries [without consent or compensation], would give Google THE RIGHT not only to digitize library books, but also sell them either as PART OF DATABASES or INDIVIDUALLY.
[my emphasis in caps]
(Marginally Paraphrased from New York Times, August 7th, 2009, "William Morris Advises Clients to Say No to Google Settlement".)
So, from my p.o.v., for authors, it's either a rock or a hard place …
And, for the record, I opted IN.
canadada [2009-08-10 08:33] Comment ID: 1468 Reply to: 1464
From alansmurray's twitter posts of today (Wall Street Journal) …
"Relief for backpacks: Textbooks coming to the iPhone. http://bit.ly/l9LqV " - from the link - "A provider of subscription e-textbooks for college students is making its 7,000-plus titles accessible on Apple Inc.'s iPhone and iPod Touch as interest heats up in the digital-textbook arena."
There is NO WAY this can be 'monetized' and/or 'monitored' in my opinion.
All digital data, regardless of content, once 'on-line', can & will go with the wind … Any attempts to 'harness' that will be futile. Only the VERY VERY BIG players, like GOOGLE, (and Apple) MAY funnel it. But even then, with 'piracy' such that it is, INTERNATIONALLY, ALL content is up for grabs …
Mixed metaphors - but I hope you get what I'm seeing & saying.
canadada [2009-08-12 08:39] Comment ID: 1549 Reply to: 1468
p.p.s. Since 1995, musicians via SOCAN have been attempting to 'moneitize' use & users over the internet, this resulted in Tariff 22 which has been 'appealed' and challenged and modified - (and will likely continue to be 'challenged' & 'modified' … ), see:
It seems somewhat ironiic to me that while the courts slog it out, the internet just keeps on somewhat impervious …
FairUseInCanada [2009-08-10 15:51] Comment ID: 1482 Reply to: 1457
Let me look at this discussion somewhat naively, as an average connoisseur of books, movies, and music since this author claims to be an expert on the matter. By the way, the correct spelling of the service in question is YouTube, not U-Tube.
Even though I strongly agree that content creators deserve protection of their earnings, some are quite more protected than others. I own a great library of books, both fiction and non-fiction, that I started amassing back in University. And, it saddens me every time when I see a great literary piece sold for drastically bargain prices, at times less than a price of a Starbucks coffee that I drink at Chapters while browsing the books. And unlike some of the younger generations (I am in my 30s), I still enjoy good-quality paper, well-illustrated cover, and as a collector, a privilege of owning a personal hardcover copy (if available). However, even though the ability to very easily photocopy a book has existed long before digital media, I do not recall seeing any threating warnings of any of the books telling me that "if I dare copy or share this work with others, the copyright police will come and arrest me". Interesting, eh?
At the same time, I own a large collection of DVD movies and music CDs, many of them box sets, where some movie collections (like television series) cost more than $100 CDN a piece - significantly more than those bargain books mentioned above. In spite of this outrageous cost - the cost of blank media and the related marketing material is insignificant, unlike the cost of high quality paper used for printing hardcover books - on every single disc of each and every collection, when the disc is inserted, I have to tolerate and watch the unskippable threat from the content distributor. The threat concerns me having virtually no rights in regard to this product, even though I paid a great amount to own it and add it to my collection. The warning threatens me with severe punishment including reporting me to federal police if I "dare" copy and share some the material that I allegedly "only licensed". I have no illusion that I own and I know that I have only licensed the books in my library, but I never feel sour and disgusted with the way I was treated by authors and publishers - I thoroughly enjoy the book-buying experience. On the contrary, I do feel quite sour after purchasing a movie or music disc (music discs now come with similar printed warnings) and being threatened with "repercussions" as a paying customer. I am also aware of movie and music industry despicable effort to legally threaten (and bankrupt) average people who dared to share movies and music via Internet for absolutely no profit. To speak frankly, I thought that protection schemes were outlawed decades ago but in the case of movie and music industries, we still tolerate this attitude. Why?
So simply seeing this as an average Canadian connoisseur of books, movies, and music, I feel that our authors and writers need more rights and privileges in this process to earn their living, and that we have given great and possibly too many liberties and protections to movie and music distributors. And, instead of protecting the authors from "the evil public", they should instead be protected from publishers (e.g., given more mandatory rights when it comes to redistribution of their work) and various copyright organizations that claim to "protect writers interests", where in reality those organizations protect only themselves and their existence.
MatthewSherrard [2009-08-15 13:59] Comment ID: 1673 Reply to: 1457
You just "stole" his essay.
Secondly, I made it through two "U-Tubes" (It's YOUTube.) and him writing off YouTube as entirely "Joe eating pizza" (There's actually quite a bit of very novel, very entertaining creative content.) before I stopped reading. He announces himself a dinosaur who can't even be [edited by moderator] enough to check his sources.
deanoz [2009-08-16 15:32] Comment ID: 1699 Reply to: 1457
We certainly appreciate your professional opinion on the matter at hand regarding IP, development, distribution, copyright and protection. However, from a point of view of artisan creation in a country such as Canada, there are a varietly of Security issues that have been created as a result of insufficient abilities to follow through with Laws and their enforcement. My personal situation involves SONY BMG ZOMBA, and the assumption, production, and distribution of my creation. My SOCAN registry predates the artist that suggests the authenticity of their supposed creation, I have letters of acknowledgement from Bruce Scavuzzo pointing fingers at Eric Levine and label ZOMBA, I have Gary Wade Leak head legal counsel for SONY admitting to having my song before a musicologist, and I have CIPO (Canadian Intellectual Property Organization) officer Andre Trembley informing me that I am responsible for policing my own Intellectual Properties". What therefore I ask is the need for organizations such as SOCAN, CIPO, WIPO? when there is no actual power of enforcement, or investigative ability even to follow up on allegations of IP infringement by either individuals or corporations at large. We can agree at least that growing marijuana, processing marijuana, and distributing marijuana is an illegal way of creting commerce, however against the law and enforcement of the law is where the problem exists, Canada is the largest grower and distributor of this illegal substance. Fraud of any sort is illegal, however bringing those who engage in this activity on Canadian soil to justice is more than a fifteen year process with a very small harvest or track record of actual time served to those who choose this way of commerce. Lastly, with regards to the Library of Commerce and the registry of IP in my opinion needs to be explored from a Canadian point of view. We have been accepting in Brantford ON. that Alexander Graham Bell invented the telephone since registry in 1864, however the Americans do not recognize AGB as the authentic inventor of the said IP and infact suggest that the ownership of this IP is Antonio Maruchi. How ironic this becomes in tax collecting and contributions to Heritage initiatives, answering questions in public school forums? If Canada is seen as an illequipped, predictable inc. body, I don't believe that spending more money on discovering what the future holds is pointing to a profitable and secure future for creators of IP. I further believe that there are many inventors and creative beings who have realized this travesty, and are simply sitting on the IP of the future, while waiting out the digital era storm.
webmadman [2009-08-19 14:49] Comment ID: 1844 Reply to: 1699
Well, they got a long wait ahead of them, meanwhile someone else will step up and do it for them- take your ball and go home, we didn't want it anyway!
Posts on these forums are not an official submission in the Copyright Consultations cycle. They are part of a great debate but will be more effective if submitted through appropriate channels. Hence, if you have like myself only posted on the forums and have not made an official submission (e.g., following this URL: http://copyright.econsultation.ca/topics-sujets/show-montrer/18), please make sure that your words and comments go into the official submissions.
You can alternatively (or in addition to) print and mail your comments to your local MP. Unless our voices are heard and heard in strong numbers, we really cannot expect to see our feedback have strong enough impact on the copyright reform.
Devil's Advocate here: -
Who OWNS the Copyright to this site?
1. The Government?
(Didn't they hire Nic?)
2. Nik Nanos?
(Isn't this his business's software app & presumably 'patented/copyright' 'concept'?)
3. Or do we, the contributors?
(Are not MY words my OWN -? And, as taxpayers, do we not 'own' this government 'data', presuming that it does fall under 'Crown Copyright'?)
Why, and/or, why not.
Perhaps Nik will enlighten us at the end of the forum …