Copyright or Wrong?

"With advances in information and communications technology such as the Internet, copyright protection is no longer relevant or necessary."

This is the question presented to Susan Crean and Russell McOrmond at the first rabble rumble http://www.rabble.ca/rumble/

We wrote articles replying to that statement, then rebuttals to each others articles, and then there was a live debate at Ryberson University in Toronto. We jointly authored the quick introduction to copyright to avoid repeating any of those ideas in our own articles.

When: noon–2 p.m. EST, October 29, 2002
Where: Online ... and room A250, Jorgenson Hall, Ryerson University, Toronto

This streaming broadcast is over, but you can now download audio/video archives. Broadcast live on October 29 from Ryerson University, this debate was co-sponsored by the CAW-Sam Gindin Chair in Social Justice and Democracy and the Ryerson School of Journalism. It was the first in a series of Gindin Debates.

Speakers:

Quick Introduction to Copyright




Copyright is thought of as having two constituencies, authors and consumers or users. It is more correct to say there are three: authors, producers and users.

Author is the term used in the Copyright Act to refer to creators of original material in all genres — music, visual art, writing etc. The producer/publisher is the middle man, typically a company or corporation, which publishes, presents, and/or distributes the creator's work to the public. Users, of course, are those who consumer the work, who acquire it to read, to listen to, or to use it in the creation of another work.

Copyright may sound like a law providing rights to the public to make copies of artists' work, but it is actually a law concerning the right of creator's to protect their creations and benefit from their exploitation. However, in the name of balance, the Act also sets out some provisions in the public interest. Prime among these is the stipulation that the term of copyright last for a definitive period of time after which the all works falls into the public domain.

There are two broad categories of rights under copyright: economic rights and moral rights. Moral rights refer to the right of the creators to protect the integrity of their work, to be credited (or not) with its creation, and to decide when and how first publication of their work will take place. Moral rights are unalienable. They cannot be assigned, though they can be waived. They refer to the fact that artistic work is actually the expression of the personality of the creator, that his or her reputation is implicated. The line between economic rights and moral rights is not always easy to determine, and are sometimes the subject of court cases.


Further reading on the language used in discussions of Copyright and other Intellectual Property law can be found at:






pro

The United Nations Declaration of Human Rights (UNDHR), article 27(2): "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."

Like most creators, I agree with this declaration — I just have a different take on what "moral and material interest" are. I believe these creators' rights need to be balanced against, or made consistent with, more critical communications rights.

What I primarily create are electronic communications tools. I work towards the liberating aspects of Free Software (sometimes called Open Source) and the Internet. I can't agree with creators who appear to believe that restricting private, not-for-profit communication between citizens is warranted. And in order to preserve citizens' communications rights, electronic communications tools must always be in the control of, well, citizens, — not a third party, whether that be a government or a creator of a work.

With newer communications tools, such as the Internet, it is possible to forge new relationships between creators and their audiences, new ways to make a living as a creator. It is these we must explore.

Here's why — article 19, UNDHR: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

As far as I'm concerned, this right suggests that any hardware assistance for communications – whether it's eye-glasses, VCRs or personal computers, should be under the control of the citizen, and no one else.

Much media attention is focussed on claims involving copyright violations by citizens using the Internet. (This discussion was particularly intense when tools such as Napster were shut down.) It shouldn't be surprising considering the business models mainstream media are dependent upon – those that prioritize profit over the interests of the public.

Even now, publishers are creating tools to limit and control citizens' ability to seek, receive and impart information freely, under the unassuming moniker Digital Rights Management (DRM). In order to gain the control they're after, many basic features of personal computers need to somehow be disabled.

While these companies should be free to create such technologies, citizens should also be given the right to circumvent them for lawful purposes. We have started to see legislation that removes the right of citizens to circumvent these technologies. It's exactly the kind of thing that we need to prevent. Opposing the copyright rights publishers have gained for themselves and clarifying creators' and citizens' rights in our modern media environment would be a great start.

After all, our right to be in control of electronic communications equipment is a prerequisite to our right to, "without interference, seek, receive and impart information and ideas through any media." These rights should not be considered optional, nor should certain misinterpretations of authors' rights be allowed to trump critical communications rights.

Only once we've agreed on the communications rights granted under article 19 can we discuss authors' rights. It is easiest to start with material interests, often called economic rights.

Economic rights provide tools to ensure that creators receive adequate compensation from any commercialization of their works, but these tools should not be limited to any single business model as they primarily are today. The ability to control the communication of a work, including within a non-commercial setting, is thought of as a right by many creators, but it is simply a business model. Restricting the private, not-for-profit communication of information is simply one way (among many) that money can be made.

We need to look at copyright protections as laws that limit the basic rights of the public to seek, receive and impart information. In order to be justified, this limiting must serve the public interest. Sure, it's of benefit to society to provide incentives to creators. And these incentives need to be sufficient to enable creators to continue their craft. But they should not be extended beyond what is necessary — especially outside of commercial communications.

That's why, in the all-important court of public opinion, many consider it justified civil disobedience to cause any and all harm to copyright holders.

As we advance our communications technologies, dominant business models will need to change. This change should not be seen as a threat to creators but as an opportunity. Electronic communications tools can radically reduce the communications costs between creators and their audiences, reducing the role of the traditional producer/publisher, and thus allowing for closer relationships with audiences. (Think self-publishing.)

The options available to a creator will be different for each type of creator. Those of us who author computer software have a solution available to us with Free Software. Free Software business models do not rely on economic privileges that harm the interests of users, and they do not have complex or questionably legal End User License Agreements. Free Software license agreements offer new rights to users, and new responsibilities to creators of derivative works. (To understand Free Software, think of the word free as in freedom, not as in zero cost.)

There are many ways in which one can make money around something that is unrestricted. Free Software businesses are customer-centric, providing solutions that customers need. Software may be produced as a side-effect of providing a solution, but the software is not sold as a product. These businesses can offer solutions for a lower cost to clients since they do not need to re-invent (or buy) the wheel but can, instead, make use of all the freely available infrastructure on which solutions can be built.

Businesses that sell software as a manufactured product tend to become centralized, vendor-centric/-dependent and, often, too politically and economically powerful.

With musicians, public performances are sometimes promoted as advertisements for record sales. Imagine if the non-commercial, private communication of music were instead considered advertisement for public performances and other merchandise. Music fans will always exist and want to connect with the musicians. Evidence suggests that fans will still purchase music commercially even if the same music is available for free online.

It would be impossible for any single creator to offer advice to all other creators. (One of the critical problems with copyright law is that it treats all creators and all works under copyright as equivalent.) But one generalization that can be made is that the interests of publishers are not the interests of creators. While publishers have been seen as having interests compatible with those of creators, advances in communications technology can and should reduce the roll of the producer/publisher. Why go through a middleman if you don't have to?

This scares producer/publishers. In 1982, we had Motion Picture Association of America head Jack Valenti saying to U.S. Congress, "The VCR is to the American film producer and the American public as the Boston Strangler is to the woman alone." More recently we have Jamie Kellner, CEO of Turner Broadcasting, suggesting that anyone who does not watch television commercials is stealing the shows they watch.

"I guess there's a certain amount of tolerance for going to the bathroom," he generously relents.

For the sake large, centralized media companies that are trying to control private, not-for-profit communication of works as a way to make money, basic communications rights of citizens have come under attack. When citizens try to protect their rights – like by using tools such as Napster, for example — creators get caught in the crossfire.

Creators have some hard choices to make. They can align themselves with the entertainment/publishing industries and other traditional producers, or they can align themselves with their audiences. The latter will win them the admiration of their fans; the former, hostility, not only for themselves but for copyright in general.

After all, copyright needs to be respected by citizens to have any meaning. A closer relationship and compromise between citizens and creators will foster respect for copyright. Treating citizens as criminals will only harm the interests of all creators.

I recommend another option, that creators do as Free Software creators have done and seek out business models that build friendly relationships with their audiences. This change may not be easy, but it is necessary – and possible.


Russell McOrmond is a self-employed Internet consultant — http://www.flora.ca. As a volunteer, he hosts the FLORA.org Community Web networking service at http://www.flora.org/. See http://weblog.flora.ca/ for his announcements, activities, and opinions.




con

Copyright protection is no longer necessary — the statement suggests that copyright is a matter of choice. In fact, copyright exists the moment a work is created, no matter what anyone says. Unlike other kinds of intellectual property, such as patents and trademarks, you do not have to apply for it from an office in Ottawa. Copyright exists as a function of the fact that you exist and have created something.

Of course, copyright can be assigned. It can also be licensed, which is the usual way artistic and intellectual work is produced and distributed to the public. However, the only way for copyright to cease to exist is for the creator to renounce it. And the simple way of doing that is to refuse to take credit in the first place. However, the most common way individuals cede their copyright is by the terms of their employment. The people working for Nortel, or Microsoft, or the Globe and Mail, for example, do not retain rights to their work.

You may have noticed something by now: the corporate producers that have come to dominate cultural industries are not themselves creators of intellectual property. They acquire it in order to manage or exploit it; often to use it in the creation of another work of art (a musical score for a film, for example). But while Time/Warner, EMI, Berttlesman and CanWest Global may all be copyright owners, they are not the authors of the work they own the rights to.

So my question is — who's talking in this statement? If technology could, this might be a claim it would make. The chain of thought would run thus: With electronics and the Internet it is now possible to transmit copyright material across national borders in immaterial form. As copyright regimes are nationally based and enforced, they are out of place in the new environment. And considering how easily information can be now disseminated, copyright restrictions would seem to impede the flow.

By any standard of logic, though, it is a huge leap from here to the conclusion that copyright isn't necessary. Turning the Internet into a copyright-free zone would mean a great deal more than just free access to whatever's passing through the system. No one's intellectual work would be safe from misappropriation. The moral rights of all individual creators would be wiped out. As a result, there would be nothing to prevent someone from putting words in your mouth, or from using your images to promote causes you don't subscribe to, or from using your work in their own without credit. They could even make money on it.

Consider this: The history of wealth in Western culture begins with land, real property. This was acquired though inheritance and conquest, a kind of wealth that was the prerogative of the aristocracy. Kings, princes and popes. In the last century, new wealth was generated most significantly through manufacturing. Factories and mills produced the middle class. But, still, relatively few people were owners.

In our time, it just so happens that the prime source of new wealth is intellectual property. And this is the one kind of property anyone can make. Copyright has already produced the phenomenon of teenage dot.com millionaires. But rock stars have been around for decades. So have novelists, and movie actors and painters who made vast fortunes from their "IP" (art, as it was once called) despite beginnings on the wrong side of the tracks, without education or privilege.

In whose interest, then, might I ask, would it be for copyright to disappear? My guess is the middlemen — producers, publishers and distributors. They would continue to control access to the market, and they would find it easier than ever to pick up new talent cheap. This presumes that Wall Street and Jack Valenti would find a way to stay in business without copyright law, of course. (And it assumes that it is unlikely that Americans would willingly wipe out the assets of their largest export industry.)

Are you surprised to know that there is a huge international debate going on about how creators's rights are being disposed of? In Britain, creators have banded together to expose the way contracts are being used as a means of fleecing artists of income as well as actual rights. In international trade circles, the Americans have been promoting a "for hire" approach whereby creators' rights transfer automatically to producers upon acceptance of any payment. Most countries oppose this approach, but, nevertheless, this was the issue that scuttled the effort two years ago to establish an international protocol on the audio/visual rights of performers.

Having said all this, I'll now concede that some of those railing against copyright make important arguments. They see the abolition of copyright as a way of removing the Internet from the clutches of commercialization. Some even see it as the antidote to the power of the "consciousness industries," the entertainment and media complex that effectively "owns" culture. The jig was up with Napster and No Logo. Kids discovered just how cheap it is to burn a CD, and thus how huge the profit margins of the recording companies are.

Because creators are both contributors to and connoisseurs of the art they practise, they straddle both sides of the copyright debate. Their interests lie both with the individual rights protected and with the public freedoms defended. Artists are among the first to benefit from access to the storehouse of human knowledge. They depend on it directly. Like librarians and teachers, they worry about the draining of the public domain. They see how information that used to be free is being privatized in databanks, how rich men like Bill Gates are speculating in the digital rights to works of art in museums and art galleries hoping to score profits in the e-world of the future.

About the statement? You could say it smacks of technological determinism. You could say it supposes the answer to the abuses of corporate rich guys is go out and to cancel the human rights* of creators. You could say it misunderstands the true value of copyright, seeing it only as an impediment to the flow of communication, instead of the one thing that actually keeps it honest.


*The UN Declaration of Human Rights Article 27(2) "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."

Susan Crean is a writer and cultural critic, a contributing editor of This and Geist magazine. Her most recent book, The Laughing One was nominated for a Governor General's Award for non-fiction and won the Hubert Evans Prize for Non-Fiction. She is the co-chair, with Michel Beauchemin of Montreal, of the Creators' Rights Alliance/Alliance pour les droits des createurs which was founded last May and represents Canada's 140,000 creators.


rebuttal

Since copyright is a matter of legislation, all components should be a matter of public debate. Some of the features that Susan attributed to the copyright act, such as someone attempting to put words in her mouth, are part of tort law (defamation, slander). The concept of protection from plagiarism, and any other moral rights which society is in agreement on, would appear in other laws if the Canadian Copyright Act did not exist. How copyright is treated by a creator is also a matter of choice under contract law.

The term "intellectual property" tries to draw an analogy between intellectual works and physical property. The problem is that intellectual works and property are more different than similar. My home page features a quotation from Thomas Jefferson that rejects the analogy of ideas to property, offering many of the differences. Susan suggests one when she writes, "this is the one kind of property anyone can make." The similarities tend to relate to issues associated with the accumulation of property and power, not ways in which copyright benefits society.

When citizens disagree with copyright, it tends to be about the economic rights and the power being accumulated by intermediaries. Susan and I both identified middlemen as the largest source of friction, but the law largely doesn't differentiate between creator and non-creator copyright holders.

Historically, copyright was a monopoly granted to owners of printing presses in exchange for them acting as censors. This changed over time to being a temporary monopoly granted to creators as an incentive to create. Recent extensions to copyright are being lobbied for, and primarily benefit, intermediaries.

The Internet may represent a technological change as important to human communications as the printing press. So let's not make the same mistake twice. Copyright should clarify and offer rights to citizens and creators, with citizens' rights coming first in any conflict. We should offer no rights to any intermediaries other than what is temporarily granted by citizens and creators.


rebuttal

Russell makes the case for the Internet as a common carrier, claiming that efforts to enforce copyright in cyberspace constitute interference with private, "not-for-profit" communication.

But in what way is the Web like the telephone? How private is it as a means of communication? Is a meeting of a thousand people a private event, for example? If admission is by invitation only, and if those present refuse to talk about it afterwards, perhaps. But this is hardly the definition of the Web. To the artist whose work is circulated by e-mail, the experience still adds up to being published.

My point is not semantic. It is meant to illuminate the flaw in the argument. For the fact of the Internet’s freeness means some creator’s work is devalued on contact; it can obliterate entire markets. Russell suggests the expectation of remuneration for reproduction of one’s work is simply one business model. He invites artists to find another way to fund their habit.

He offers the "loss leader" approach, which has worked for some musicians and seems to favour indie groups. One has to wonder, though, how it could work for artists who aren’t performers and don’t want to sell access to their person as part of the exchange between creator and audience.

One thing is true — all creators want their work to be read, seen, heard and talked about. We are, in fact, access sluts. Controlling use of our work has to do with tracking public response, not restricting it.

Russell suggests creators should align themselves with audiences against greedy producers. He has a point. But what is actually needed is for audiences (and cultural policy chiefs like Sheila Copps) to take creators’ rights seriously and not just for gratis.

The system needs re-balancing and refocussing on the relationship between audience and creator, that is certainly true. Too much power has accrued to the middlemen. And it is time for creators and citizens to reclaim it.