2009 Copyright Consultation Submission
Authors:
Brady C. (York)
Zachary D. (Ryerson)
Fenwick M. (Ryerson)
Paul V. (Ryerson)
To: info@copyrightconsultation.gc.ca
CC: submissions@faircopy.ca
We are a group of Canadian graduate-student researchers from Toronto active in the study of digital media and user-generated content. As such, our comments below are based on our familiarity with the debates and literature surrounding culture, new media and intellectual property rights, as well as our first hand research and teaching experiences. We feel Canadian copyright reform is an important issue with political ramifications affecting the rights of citizens, creators, and producers, thus also affecting the general function of our contemporary culture. We support public consultation on this matter and hope our responses are given due consideration.
1. How do Canada’s copyright laws affect you? How should existing laws be modernized?
Before addressing how copyright affects us specifically, we feel it is necessary to address how the law affects the whole of Canadian culture. Copyright, given its application to the practices and artifacts that define contemporary culture, has increasingly recognizable effects on the everyday lives of all Canadians. Indeed, it shapes our experiences of creating, consuming, managing and sharing the pictures, music, videos, and stories we use to define ourselves and our relationships to others, as well as to the wider society of which we are a part. Thus, our conception of copyright is one that recognizes the rights of citizens – the users and consumers of cultural work – as equal in value to the rights of that work’s creators or publishers. It is clear that the consuming public is increasingly a creative force itself, both taking in and adding to cultural work in the course of ordinary consuming activities. Any reforming of Canada’s copyright law needs to reflect this reality. Additionally, because of this far-reaching influence of copyright law, including into private cultural activities, any copyright reform needs to work in combination with Canadian values, including but not limited to our legislated rights of privacy, rights of consumer protection, and freedoms of expression and creative thought.
More specifically, we are affected by copyright as part of the Canadian education system. We feel the unconstrained right to access and employ materials of learning (chiefly, academic texts, journals, tools of research gathering and research results) is foundational to socially responsible, peer-reviewed scholarship. Thus, any copyright reform affecting education and research should emphasis universal open access of students, researchers, teachers and education professionals to such materials, as well as reasonable accommodations for non-professionals and hobby researchers.
2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time
Changes to copyright should honour Canada’s common law history and allow legal practice to grow organically and prevent excessive litigation. Copyright law should be flexible and open enough to allow for future technological advancement and cultural evolution. The statute should not need to change every time advancements in technology or norms of cultural practice do. In order for any reforms to remain relevant over time and applicable to the cultural behavior of Canadian citizens, they need to be based in Canadian cultural practice, not tied to specific technologies (thus the law should be technology neutral and should leave room for interpretive flexibility should the future demand it).
Canada is a country of combined influences – it is a place that finds its identity in the repurposing the different cultures from which it emerged, as well as the cultures most prominently affecting its contemporary being. Copyright reform should reflect this Canadian reality by not harshly punishing those who want to repurpose different cultural materials in a similar manner. The law must respect that consumption of any work protected by copyright is rarely limited to an expected use practice. As stated above, people use and re-use the artifacts that circulate in our culture in varying ways – and always have. Any copyright reform therefore needs to take into account practices of user modification of copyrighted works, such as mash-ups and remixes, popular especially among young Canadians. These are creative cultural practices that matter and should be recognized through adaptive and flexible legislation. Demonizing such practices is not productive, and further marginalizing Canadians by prohibiting new forms of expression will have negative effects both on our culture and our economy. Corporate innovators are increasingly aware that letting new authors and recursive publics repurpose and modify content is a viable business model. Given that creative work and innovation do not take place in a vacuum, allowances have to be made for the recombination and modification, reuse and repurposing of content in Canada. In effect alternative interpretations of copyright are needed to create a ‘grey area’ for derivative creativity and innovation, be they open source, peer to peer, or based on new types of rights licensing and ‘copyleft’ practices.
3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?
Canadian culture has always been referential to other cultures, and as Canada grows increasingly multicultural this trend will continue. Likewise, with our widely-dispersed population, communications technology is central to Canadian unity. More stringent copyright policy is ineffective in achieving its goals of protecting the rights of creators and copyright holders in this context. Culture by its nature is always a work in progress and is never “finished” so copyright law in Canada has to leave room for future creativity. Canada should avoid emulating the United States where non-commercial copyright infringement is considered a criminal activity, largely as a result of corporate lobbying. Personal use and minor infringements that are mundane should not be lumped in with large scale commercial infringement such as selling illegally copied DVDs. This point requires emphasis for two reasons: first, Canada is always influenced by US policy; and second, many Canadians, especially young Canadians, frequently download and share pop cultural content alongside (and not necessarily at the expense of) other more traditional cultural consumption habits, reducing the suspected harm such practices have on creative industries [1].
There have been a number of instances of publishers using so-called technological protection mechanisms (TPMs or DRM) which remotely access foreign providers of copyrighted material. This behaviour puts Canadians’ privacy at risk. As part of the policy and legislation that will set the standards that become the norm for technology users in the future, copyright must not serve as an incentive for such breaches of privacy.
We propose that the scope of fair dealing (which currently includes research, private study, criticism, review and news reporting) be extended to explicitly include parody and satire. Rather than treat the exceptions as an exhaustive list, the list should be open-ended, allowing room for change in the future. This more flexible approach is in keeping with common law practice and would allow for new forms of speech and new technocultural practices to be handled without the need for new legislation on a recurring short-term basis. Additionally, we propose that Canada adopt a “notice and notice” rather than “notice and takedown” approach towards suspected copyright infringements or suspected breeches of fair dealing. Notice and notice avoids many of the problematic aspects of notice and takedown. For instance, American-style notice and takedown has serious privacy and free speech implications. Notice and notice is more in tune with Canadian values and current industry practice.
We suggest also that the length of the copyright term of protection, currently life of the author plus 50 years, is too long, such that it actually provides a disincentive to creativity. Under no circumstances does it make sense to extend copyright term lengths, and we would prefer to see them decreased. There is no cultural justification for indefinite extensions of protection of cultural works, in fact there is every likelihood that shorter terms could stimulate innovation and liven our historical relation to culture, creating more numerous and frequent economies of creative work. The history of cultural work is a history of recreating and reinterpreting the past within the culture of the present. That it takes 3-4 generations for a work to fall into the public domain denies that history. We suggest shorter term lengths while acknowledging that Canada is under international pressure and tied to international agreements, but we believe that the debate nonetheless needs to be broadened and copyright term extensions cannot continue to be granted endlessly.
4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?
International policy needs local articulation, and we need a made-in-Canada solution. Culture extends across borders and Canada is tied in to WIPO and other forums in a way that challenges our ability to create the culture and innovation that we need to thrive. Ratifying the 1996 WIPO treaties may not be the right answer. The Government refers to ratification as meeting our international obligations, but shows an inconsistency by refusing to ratify other international agreements we have previously been party to, such as the Kyoto Protocol on emissions, while arguing that we should respect WIPO.
The case for ratifying WIPO hasn’t been convincingly made, and the detriments are significant and need to be discussed. Indeed, there is very little evidence that the American ratification of the WIPO treaties in their Digital Millennium Copyright Act has been beneficial to creators, citizens or corporations in the USA. Representatives of the creative industries are having difficulty adjusting to the changes taking place in culture more widely and in particular to the ways that people enjoy and share creative content digitally. Innovative ways of enjoying content are not by default detrimental to copyright holders and this point needs to be accounted for in any new legislation. The point is not to undermine copyright holders, but rather to open space for recognition of new cultural practices and norms around the enjoyment, usage, creation and circulation of content.
We urge the Government to rethink ratification of the existing treaties.
We oppose the establishment via copyright legislation of a new “resale right” over the existing first sale norm, as proposed by Canadian Artists Representation (CARFAC) [2] especially on private sales or past the lifetime of the author. Such a regime would be difficult to enforce and runs the risk of expanding into all areas of the economy without proper checks and balances. It breaks with long established traditions of reselling and used goods that function well and are a sound basis of our economy, and would act as a private tax on sales. A broad resale right would undermine our system of property and increase the scope of copyright drastically. Copyright is intended to regulate the reproduction (whether mechanically or in the form of a performance) of a protected work, and not activities where no reproduction has occurred.
5. What kinds of changes would best position Canada as a leader in the global, digital economy?
This question reflects how the debate has been framed primarily in economic terms and has failed to take account of culture as something that is reluctant to be owned. We are not opposed to Canada’s creative industries, but we are seeking a solution to copyright problems that balances their interests against those of the current and future public. Not doing so means taking the act of cultural production and treating it solely as profit generating activity rather than as cultural activity that has roots far older in human experience than our current arrangements of economic exchange. Intellectual properties, far more than simply business tools, take on cultural lives and meanings for those who consume them, share them, add to them, and redistribute them – not recognizing this is a fundamental problem in conversations about copyright reform. Not recognizing exchange economies, pastiche, and sampling as normal cultural activity limits creativity and prioritizes economic activity that goes against a substantial history of how human beings interact with each others’ cultural output. Several hundred years of copyright has not prevented such human practices, nor will any changes made to Canada’s current copyright system. Therefore, any harsh reforms that deny the history of culture legislated now will prove detrimental to Canadians in the long run and are destined to fail.
We are in favour of fair copyright in Canada based on the suggestions outlined above. Canada needs a law that enables innovation by leaving room for change. Legislating old business models and locking down content will serve only to stifle Canadian innovation and creativity.
References
[1]: Masnick, Michael. “Yet Another Study Shows File Sharers Buy More Media”. Techdirt. http://www.techdirt.com/articles/20090828/0444096038.shtml
[2]: McIntyre, Julie. “Resale right would benefit Canada’s visual artists”. straight.com. http://www.straight.com/article-254939/julie-mcintyre-resale-right-would-benefit-canadas-visual-artists