Looking to the past to learn about the present

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This work is copyright 2004 and licensed under a Creative Commons License.

March 30, 2004, Russell McOrmond1

Dear Susan,

This is my third letter to you since starting to read your book The Laughing One. The first was after my trip to Montreal where I thanked you for extending my journey to other places (Vancouver Island, specifically Ucluelet and Victoria) and to other times (1800's and 1900's). My second letter I posted publicly as I noticed some similarities in one part of your book and what I was thinking about with Lawrence Lessig's latest book2.

This is a new experience for me to be reading a book given to me by the author, a person I already met and consider a friend. As I read you words I imagine you speaking them out loud, and it feels quite personal. I have a desire to talk with you as you (on paper) speak to me about your "Journey to Emily Carr", which is serving as an important journey for me as well. Please let me know if it is appropriate for me to be writing these letters to you, copying them to others who may also enjoy this journey.

I bought Lessig's book last night3, and glancing at the table of contents I note that he first talks about "piracy". This might be a very interesting topic for us to explore as well. From the perspective of some of the extremists of the permission culture, I am a pirate writing to a pirate about her writings about a pirate. In a very thought provoking part of your book you wrote:

From Carr's notes for the "Lecture on Totems" she presented to the public, it is clear that she wanted to counter such convictions and was conscious that her depiction of Indian country differed from the norm. She spoke of the people she met as individuals and recounted her experience with them in positive terms, although her interactions with Native peoples were not clear of misunderstandings. She was, for instance, accused of stealing poles by painting them and asked to leave two villages.4

Near the very end of chapter 2 is the following:

Carr was speaking through a tradition that was already well established by 1928 – the tradition of White people writing about Native peoples, representing their ideas, telling their stories, and speaking for them on the one hand, using their technology and exploiting their art on the other. It started with Captain Cook, continued with the missionaries, the Indian agents, the anthropologists, and the journalists, and carries on today. This was done without a second thought in Emily Carr's time, but cannot be in ours.5

This makes me want to ask the question; what do you feel is the right thing to do in our time?

I suspect I am in the majority in our time that would have a hard time considering the idea that painting or taking a photograph of a totem pole as a form of theft, any more than it is hard to think of a picture capturing the soul. If I were doing this work for commercial purposes, creating art solely for its resale value, it may be reasonable for me contemplate sharing some of those proceeds with the original creator, but otherwise?

Our culture is full of images. I have spoken with documentary film artists who talk about the crippling effects of our growing permission culture to their craft. At any point in time you can take a few moments of film by doing a 360degree turn around you and spend a year trying to get copyright, trademark, and other clearances from all of the claimed owners of things which come into audio or visual range. Where some may see this as reasonable in order to "protect" the rights of past creativity, I see this only in a light similar to Lessig's recollection of American law holding that a property owner presumptively owned not just the surface of his land, but all the land below, down to the center of the earth, and all the space above, to "an indefinite extent, upwards."6

Far from being a debate about creators' rights vs some "Other", this becomes a question of a balance of rights between the creators of the present and the creators of the past. I have noticed that the groups you have worked with thus far such as the Writers Union and the Creators' Rights Alliance focus their time on protecting past creativity. This goes as far as the Writers Union recently speaking in favor of taking works out of the public domain for the benefit of the heirs to long-dead creators7.

My perspective appears very different. I spend more of my time worried about the creators of the present and the various ways which a "permission culture" may slow or even halt the ever changing expression of culture. I am on the side of Lessig when he writes:

A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a “permission culture”—a culture in which creators get to create only with the permission of the powerful, or of creators from the past.8

As a member of the Writers Union9 I am wondering if you could explain to me what you understand of the justification for their recent activities. I see the heirs of Lucy Maud Montgomery to be the perfect Canadian example of a powerful voice for creators of the past, and a far greater threat to the rights of creators of the present than anything that a mere private (non-commercial) copyright infringer could ever represent. We see lawsuits against the so-called "piracy" of otherwise law-abiding Canadian citizens sharing music non-commercially with each other on the Internet, but we see very little about what I see as the far greater "piracy" against the public domain proposed in the name of creators that appears supported by the Writers Union.

I only recently joined the Canadian copyright reform movement in the summer of 2001 with that round of the copyright consultations10. My worry then, and still my primary concern now, is the attempt by big media and certain software vendors to take full technical and legal control of Information and Communications Technology (ICT) away from creative citizens and their audiences. I felt very early that in order to stop this extreme attack against communications rights, cultural rights and creators rights11, I needed to connect with other creators so we could join together. While I found you and the Creators' Rights Alliance (CRA), a quick look on the website shows that many of the human rights I am concerned with are missing12. Where the CRA focuses on past creativity by focusing only on one small aspect of creators' rights, I focus on a need for balance between all of these rights as the only way to truly protect creators' rights.

How can we, those representing creators of the past and those representing creators of the present, come together? Here we stand at the present able to look into the past and think about a question that is just as relevant today, and will be in the future, as it was then. Do you feel that Emily Carr was wrong to paint what she saw in her time? If the permission culture had started early, and Emily and all our ancestors needed permission from the "owners" of all the land, objects and people who were subjects of her paintings, would either of us be in a position a hundred years later to even have this conversation? Where will be find balance?

Thank you, and I hope you will write back soon. If we don't talk about these issues now and possibly articulate a shared message to parliaments, we may not have the communications means to do so in the future.

1Full contact information for Russell McOrmond can be found on his work website at http://www.flora.ca/ (Accessed March 30, 2004)

2This letter was titled "Crean and Lessig: Creators more similar than different?" http://www.digital-copyright.ca/discuss/2540 (Accessed March 30, 2004)
I was told by friends that longer letters like that were too large for email, which is why this letter is being posted as a page on my website.

3While the book is available on-line for free, I find paper just too convenient to pass up. It was worth the $37 Canadian.

4Crean, Susan 2001, "The Laughing One: A Journey to Emily Carr", p145.

5Ibid 4 at p178.

6Lessig, Lawrence 2004-03-25, "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity"
Hardcover | 5.00 x 7.51 in | 348 pages | ISBN 1594200068 | 25 Mar 2004 | The Penguin Press. Story is found in the introduction.
http://www.free-culture.cc/ (Accessed March 30, 2004)

7A March 26 letter written by Wallace J.McLean quotes a speech in the Senate indicated that the Writers Union was trying take works that had entered the public domain and re-apply copyright to them http://www.digital-copyright.ca/discuss/2525 (Accessed March 30, 2004) Wallace had on January 1, 2004 invited us all to join him in celebrating a "Happy Public Domain Day!" http://www.digital-copyright.ca/discuss/2219 (Accessed March 30, 2004)

8Ibid 6

9Page about Susan Crean on the Writers Union Website http://www.writersunion.ca/c/crean.htm (Accessed March 30, 2004)

10A bit of a history of events from August 2001 to October 2003 was included in my submission to Heritage Committee http://www.flora.ca/copyright2003/ (Accessed March 30, 2004)

11Communications rights are discussed in article 19 of the United Nations Universal Declaration of Human Rights. Cultural rights are article 27(1) and creators' rights are article 27(2). http://www.un.org/Overview/rights.html (Accessed March 30, 2004)

12The Creators Rights Alliance mentions only article 27(2) in their mission statement http://www.cra-adc.ca/mission_e.html (Accessed March 30, 2004)