I went out to see Michael Geist talk at the WISE Hall in Vancouver last night. He’s incredibly articulate and has a great grasp on the wide variety of issues that modern copyright reform lays at the feet of citizens. I especially appreciated his focus on the protection of the freedom of citizens within the new digital paradigm.
He also reminded me that I hadn’t yet posted my submission to the Canadian Copyright Consultation.
My submission is not as well-ordered as I’d like and a bit ranty, but I still feel it gets most of my point across. Essentially I believe that copyright law must fully respect citizens rights to use and participate in the culture we experience in real-time and should only be designed to protect creators against commercial infringement. Anything more is a cap on freedom of expression and will harm the many to benefit the few. Overly stifling and unenforceable copyright laws will actually provide a disincentive to create as well as having deleterious effects on democracy as a whole.
Here is my submission in its entirety:
Hello,
My name is Sean Hill and I am a Canadian citizen by birth. I currently work in the retail banking sector and am a content producer in my own time. The views expressed in this submission are wholly my own.
Canada’s copyright laws affect me as both a producer and receiver of Canadian culture. On the producer side I have been an actor, writer, and computer programmer. As a receiver I enjoy all that our culture has to offer including theatre, dance, and video games, as well as recorded movies, music, and print, in both their analog and digital formats. The line between producer and receiver has also largely been blurred in my online activity where cooperative participation is often the norm. I read AND edit Wikipedia articles.
As a cultural participant I come in contact with a high volume of information every day, much of it within the realm of copyrighted material and much of it not. I am affected by this information and contextualize it against my own experience. What I take in often comes out, sometimes close to the form it went in and sometimes dramatically altered. When someone tells me a story at work I may tell it to a friend in an abridged version later. Copyright law has the capability of limiting or allowing what I may express and how I may do so.
It is telling of our approach to copyright law that it is handled by Industry Canada. I see and frame my own interests in copyright more as a citizen than as an industrial creator or as a consumer. My rights to make use of my cultural environment are the rights of a citizen and not of a consumer. As such the law should relate primarily to industrial or commercial creators and users of content and should protect private use.
The value inherent in information is directly related to how accessible it is, not how much of it is produced or how much is earned in the process of creating or selling access to it. Accessibility allows for cultural dialogue and ultimately fosters ideas and innovation through refinement.
Innovation begins with individuals and in order to innovate, individuals need access. Commercial interests always come later. Copyright law should make a clear distinction between commercial and personal copying. There should be no barrier to an individual taking content and manipulating it to explore or to facilitate self expression. As long as that work is not released commercially it should fall within fair-dealing. This will allow artists to create on every level.
It is not the case that all copyrightable material is produced for a directly economic motive. A vast amount of material is posted online every day with no claim for payment or permission required, much of it containing pieces of other works.
There needs to be an efficient, extra-legislative system for seeking out and securing rights and locating examples of commercial usage so that commercial creators can mitigate risk. This system needs to be thin in the middle to ensure that money spent is going where it belongs. The system cannot be replaced with a lazy attempt to legislate an artificial market by criminalizing normal behaviour.
Here are some specific issues that I feel need to be addressed:
Language
——–
Copyright law needs to be explainable in simple terms and understandable. The language of the law should reflect reality and not outmoded analogs. Misleading terms like intellectual property and consumer should be avoided. Language is a core part of the public misunderstanding of what copyright is and what it protects. We need an inspired linguistic renaissance from our copyright leaders and legislators. This demands a profound and insightful examination of exactly what we’re talking about and the direction we’re going.It is a mistake to use the term consumer for any cultural participant. Consumption indicates the using up of some product, but cultural messages embedded in media suffer no such effect. Something that can be used many times is not consumed, and while the media may be destroyed, the message lives on and can usually be copied verbatim quite easily and effectively.
There is no intellectual property that can be owned or stolen. It just doesn’t happen and it is a grand mistake to couch it in these terms. It is plainly obvious that when a digital file is copied there is nothing stolen and telling people so will always cause confusion.
There are no content owners because content is not property. There are content producers and copyright holders. Copyright is not a statement of ownership in the content, it is a grant of exclusive rights to reproduce the content within certain contexts.
Unless clear and adequate messages are communicated to the public, there will never be a clear understanding of what copyright is and why it is important.
Fair Dealing
————
Copyright law also needs to be believable. Fair dealing encapsulates the crux of a citizens rights to fully engage their culture as they move through it and it moves through them. We are all subject to massive and growing levels of cultural stimulus and we have a right to manage it for our benefit and to avoid being overwhelmed.We also each have an innate sense of what is fair and acceptable with our own possessions. If I have content on one media it is fair and acceptable to transfer the content to some other media or to make multiple copies for my own convenience. It is fair and acceptable for me to share with others to have combined cultural experiences and to give an indication of how I identify myself. It is fair and acceptable for me to alter the content for storage, compatibility, study, self expression, and other uses, and also to share with others in the above mentioned fashion. This is an incomplete list.
It is not fair for me to pass it off as something I created wholly on my own or to profit on a commercial scale from reproducing it without permission.
People have a right to shape their own cultural experience as surely as they have a right to shorten the legs on pants they buy. Memory and experience are the forgotten copies in this discussion. We identify deeply with these mental artifacts. They are ours in a profoundly human and fundamental way. Personal expression, based on our experience and self-identification, is a human right.
Creators deposit culture with us, sometimes not even of our own choosing. We should not be seen as banks for them to extract interest from as they see fit. Creators themselves benefit from having a fair ground to draw their own inspiration from. It is short-sighted for anyone to see a large economic payoff as compensating adequately for losing this ground.
This is how copyright needs to be defined around public citizens. Our rights need to be idealized and defined first and foremost. The rights of the copyright holder then need to be contextualized around public rights without infringing. Fair dealing needs to enshrine the idea that the public holds an interest in cultural content and certain copying rights in any work. Infringement can run both ways.
Three Strikes
————-
Three strikes laws are an incredibly destructive measure. They are disproportionate to the action and miss the point. To industrial interests they may seem like a good idea simply because they might solve the problem of some infringement. This is entirely cynical and neglects the point that infringement has nothing to do with the Internet or any other specific technology. Would we enact a telecommunications law that imposed 3 strikes against phone privileges for committing telephone fraud? How about 3 strikes against auto or road usage for driving a getaway car?Using the Internet is becoming more and more central to our lives with no sign of abating. How can we seriously debate the idea of moving things like voting and civic participation online while simultaneously talking about banning people from network access? The Internet is a general communications medium and the transfer of copyrighted material is a fraction of what even an infringer will use it for. The concept of 3 strikes is basely undemocratic and damaging to the idea of civil society.
The concept of access severance should be left out of the legislation completely.
TPM
—
There should be no law specifically prohibiting the circumvention of TPMs. To put it plainly, if there is a clear definition of what is infringing and what is not, then there is no problem with the breaking of digital locks. If I am infringing on a copyright, I should be punishable for that and that alone. More to the point, if the law gives me certain rights and then prohibits me from breaking a TPM, my rights mean nothing.There is no need to ensconce any protection for TPMs within the legislation.
Notice and Take down
——————-
This is another draconian measure that should be avoided at all costs. If content producers wish to be partners with the public in the Canadian cultural experience, they’re going to have to do so as equals. If I am accused of infringement, I expect to be notified and provided with proof of copyright and the opportunity to respond. The argument of time-sensitivity goes both ways and should fall in favour of public resolution without hesitation. Freedom of expression can be as time-sensitive as economic production can be but is much more important to a functioning democracy. If notice has been received regarding particular content, there could be a requirement to flag the content as having a copyright claim against it.In the event of massive economic loss due to malicious infringement as can happen with an early release of some media, the infringer’s liability should be considered sufficient. Our country cannot afford to run a democratic deficit to subsidize content producers.
All intermediaries should be provided with a safe harbour status depending on a functioning notice and notice system.
Future-proofing
—————
We need to take care to produce laws that will last and be relevant in the years ahead. Many of the digital tools we use today were unknown or nonexistent a decade ago. New applications are being created daily while old ones fall into archive or vanish entirely. Indeed, many of the tools we use today show major weaknesses and design flaws and we should expect them to be revamped or replaced eventually.As a computer programmer I understand how fluid and dynamic the digital platform is at a low level. All computer applications and the files and locations they access and manipulate are virtual and can take on essentially any shape the developer can dream of. To legislate around specific technologies, methods, formats, distribution methods, or even media is a recipe for a short-lived law.
Any long lasting copyright law will be technology neutral, method neutral, format neutral, distribution neutral, and media neutral.
To that end copyright law should begin with a wide and general description of the rights that apply to content and creators.
Specifics and exceptions should be avoided to the greatest extent possible. If a large number of exceptions seem required then the law is likely not general enough in its descriptions.A quick conclusion
——————Beyond political censorship, copyright law rarely had to worry about private usage because the costs of copying placed it beyond the private arena. Now, with the advent of digital technology, the public is feeling its rights of free expression being squeezed again. As a result, there is a concerted effort to frame citizens as consumers in the realm of culture. If we buy this jingle we will be selling short our children’s legacy to see themselves as full participants and creators in their own culture.
Copyright law seems necessary at this point as we try to assimilate and internalize the concept of value as it pertains to information. Ideally culture would be accessible to all who are influenced by it and artists would be supported adequately by society as a whole. In the interim, balanced legislation will recognize the right of the author to profit economically without barring those affected by the work from using it personally. It is a mistake to see the fair dealing rights of the public as infringing on the economic opportunity. Where there is a fair dealing right there is no economic opportunity.
There are more than enough examples of creators using the new digital paradigm to make money without limiting citizens usage, expression, and enjoyment. The law should define public rights and then lay out creators rights to profit around those.
Sincerely,
Sean Hill
My name is Sean Hill and I am a Canadian citizen by birth. I currently work in the retail banking sector and am a content producer in my own time. The views expressed in this submission are wholly my own.
Canada’s copyright laws affect me as both a producer and receiver of Canadian culture. On the producer side I have been an actor, writer, and computer programmer. As a receiver I enjoy all that our culture has to offer including theatre, dance, and video games, as well as recorded movies, music, and print, in both their analog and digital formats. The line between producer and receiver has also largely been blurred in my online activity where cooperative participation is often the norm. I read AND edit Wikipedia articles.
As a cultural participant I come in contact with a high volume of information every day, much of it within the realm of copyrighted material and much of it not. I am affected by this information and contextualize it against my own experience. What I take in often comes out, sometimes close to the form it went in and sometimes dramatically altered. When someone tells me a story at work I may tell it to a friend in an abridged version later. Copyright law has the capability of limiting or allowing what I may express and how I may do so.
It is telling of our approach to copyright law that it is handled by Industry Canada. I see and frame my own interests in copyright more as a citizen than as an industrial creator or as a consumer. My rights to make use of my cultural environment are the rights of a citizen and not of a consumer. As such the law should relate primarily to industrial or commercial creators and users of content and should protect private use.
The value inherent in information is directly related to how accessible it is, not how much of it is produced or how much is earned in the process of creating or selling access to it. Accessibility allows for cultural dialogue and ultimately fosters ideas and innovation through refinement.
Innovation begins with individuals and in order to innovate, individuals need access. Commercial interests always come later. Copyright law should make a clear distinction between commercial and personal copying. There should be no barrier to an individual taking content and manipulating it to explore or to facilitate self expression. As long as that work is not released commercially it should fall within fair-dealing. This will allow artists to create on every level.
It is not the case that all copyrightable material is produced for a directly economic motive. A vast amount of material is posted online every day with no claim for payment or permission required, much of it containing pieces of other works.
There needs to be an efficient, extra-legislative system for seeking out and securing rights and locating examples of commercial usage so that commercial creators can mitigate risk. This system needs to be thin in the middle to ensure that money spent is going where it belongs. The system cannot be replaced with a lazy attempt to legislate an artificial market by criminalizing normal behaviour.
Here are some specific issues that I feel need to be addressed:
Language
——–
Copyright law needs to be explainable in simple terms and understandable. The language of the law should reflect reality and not outmoded analogs. Misleading terms like intellectual property and consumer should be avoided. Language is a core part of the public misunderstanding of what copyright is and what it protects. We need an inspired linguistic renaissance from our copyright leaders and legislators. This demands a profound and insightful examination of exactly what we’re talking about and the direction we’re going.
It is a mistake to use the term consumer for any cultural participant. Consumption indicates the using up of some product, but cultural messages embedded in media suffer no such effect. Something that can be used many times is not consumed, and while the media may be destroyed, the message lives on and can usually be copied verbatim quite easily and effectively.
There is no intellectual property that can be owned or stolen. It just doesn’t happen and it is a grand mistake to couch it in these terms. It is plainly obvious that when a digital file is copied there is nothing stolen and telling people so will always cause confusion.
There are no content owners because content is not property. There are content producers and copyright holders. Copyright is not a statement of ownership in the content, it is a grant of exclusive rights to reproduce the content within certain contexts.
Unless clear and adequate messages are communicated to the public, there will never be a clear understanding of what copyright is and why it is important.
Fair Dealing
————
Copyright law also needs to be believable. Fair dealing encapsulates the crux of a citizens rights to fully engage their culture as they move through it and it moves through them. We are all subject to massive and growing levels of cultural stimulus and we have a right to manage it for our benefit and to avoid being overwhelmed.
We also each have an innate sense of what is fair and acceptable with our own possessions. If I have content on one media it is fair and acceptable to transfer the content to some other media or to make multiple copies for my own convenience. It is fair and acceptable for me to share with others to have combined cultural experiences and to give an indication of how I identify myself. It is fair and acceptable for me to alter the content for storage, compatibility, study, self expression, and other uses, and also to share with others in the above mentioned fashion. This is an incomplete list.
It is not fair for me to pass it off as something I created wholly on my own or to profit on a commercial scale from reproducing it without permission.
People have a right to shape their own cultural experience as surely as they have a right to shorten the legs on pants they buy. Memory and experience are the forgotten copies in this discussion. We identify deeply with these mental artifacts. They are ours in a profoundly human and fundamental way. Personal expression, based on our experience and self-identification, is a human right.
Creators deposit culture with us, sometimes not even of our own choosing. We should not be seen as banks for them to extract interest from as they see fit. Creators themselves benefit from having a fair ground to draw their own inspiration from. It is short-sighted for anyone to see a large economic payoff as compensating adequately for losing this ground.
This is how copyright needs to be defined around public citizens. Our rights need to be idealized and defined first and foremost. The rights of the copyright holder then need to be contextualized around public rights without infringing. Fair dealing needs to enshrine the idea that the public holds an interest in cultural content and certain copying rights in any work. Infringement can run both ways.
Three Strikes
————-
Three strikes laws are an incredibly destructive measure. They are disproportionate to the action and miss the point. To industrial interests they may seem like a good idea simply because they might solve the problem of some infringement. This is entirely cynical and neglects the point that infringement has nothing to do with the Internet or any other specific technology. Would we enact a telecommunications law that imposed 3 strikes against phone privileges for committing telephone fraud? How about 3 strikes against auto or road usage for driving a getaway car?
Using the Internet is becoming more and more central to our lives with no sign of abating. How can we seriously debate the idea of moving things like voting and civic participation online while simultaneously talking about banning people from network access? The Internet is a general communications medium and the transfer of copyrighted material is a fraction of what even an infringer will use it for. The concept of 3 strikes is basely undemocratic and damaging to the idea of civil society.
The concept of access severance should be left out of the legislation completely.
TPM
—
There should be no law specifically prohibiting the circumvention of TPMs. To put it plainly, if there is a clear definition of what is infringing and what is not, then there is no problem with the breaking of digital locks. If I am infringing on a copyright, I should be punishable for that and that alone. More to the point, if the law gives me certain rights and then prohibits me from breaking a TPM, my rights mean nothing.
There is no need to ensconce any protection for TPMs within the legislation.
Notice and Take down
——————-
This is another draconian measure that should be avoided at all costs. If content producers wish to be partners with the public in the Canadian cultural experience, they’re going to have to do so as equals. If I am accused of infringement, I expect to be notified and provided with proof of copyright and the opportunity to respond. The argument of time-sensitivity goes both ways and should fall in favour of public resolution without hesitation. Freedom of expression can be as time-sensitive as economic production can be but is much more important to a functioning democracy. If notice has been received regarding particular content, there could be a requirement to flag the content as having a copyright claim against it.
In the event of massive economic loss due to malicious infringement as can happen with an early release of some media, the infringer’s liability should be considered sufficient. Our country cannot afford to run a democratic deficit to subsidize content producers.
All intermediaries should be provided with a safe harbour status depending on a functioning notice and notice system.
Future-proofing
—————
We need to take care to produce laws that will last and be relevant in the years ahead. Many of the digital tools we use today were unknown or nonexistent a decade ago. New applications are being created daily while old ones fall into archive or vanish entirely. Indeed, many of the tools we use today show major weaknesses and design flaws and we should expect them to be revamped or replaced eventually.
As a computer programmer I understand how fluid and dynamic the digital platform is at a low level. All computer applications and the files and locations they access and manipulate are virtual and can take on essentially any shape the developer can dream of. To legislate around specific technologies, methods, formats, distribution methods, or even media is a recipe for a short-lived law.
Any long lasting copyright law will be technology neutral, method neutral, format neutral, distribution neutral, and media neutral.
To that end copyright law should begin with a wide and general description of the rights that apply to content and creators.
Specifics and exceptions should be avoided to the greatest extent possible. If a large number of exceptions seem required then the law is likely not general enough in its descriptions.
A quick conclusion
——————
Beyond political censorship, copyright law rarely had to worry about private usage because the costs of copying placed it beyond the private arena. Now, with the advent of digital technology, the public is feeling its rights of free expression being squeezed again. As a result, there is a concerted effort to frame citizens as consumers in the realm of culture. If we buy this jingle we will be selling short our children’s legacy to see themselves as full participants and creators in their own culture.
Copyright law seems necessary at this point as we try to assimilate and internalize the concept of value as it pertains to information. Ideally culture would be accessible to all who are influenced by it and artists would be supported adequately by society as a whole. In the interim, balanced legislation will recognize the right of the author to profit economically without barring those affected by the work from using it personally. It is a mistake to see the fair dealing rights of the public as infringing on the economic opportunity. Where there is a fair dealing right there is no economic opportunity.
There are more than enough examples of creators using the new digital paradigm to make money without limiting citizens usage, expression, and enjoyment. The law should define public rights and then lay out creators rights to profit around those.
Sincerely,
Sean Hill
Tags: competition, consumerism, copyright, internet, law, michael geist, philosophy, politics, technology
