New generation of independent creativity

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

April 20, 2004, Russell McOrmond1

Dear Susan,

Thank you for your letter from March 31, 20042. Since my birthday was March 31, 1968, it was fitting to be thinking of my own growing up as a creative participant in Canadian culture on that day. It is great to have your book3 as a way to launch this topic. You ask me what side Emily Carr would be on, and I would like to give a bit of my own history as background to my answer.

Standing on the shoulders of giants

On my on-line resume4 I give 1983, aged 15, as the earliest date I was involved with electronic communications. I was introduced to computers in grade 8 two years earlier.

Like many youth of my generation I shared many files using computers. We were all creators then, sharing the creations we had written and building on each other's ideas. It never occurred to me that anyone should be paid for this communication. Sharing computing knowledge and software among creators was commonplace. It was a practice that predated the separate distribution of computer software and computer hardware.

As I grew up I thought more about creativity and what I would do for a living. While I knew I would be involved commercially in creating and supporting software, it never occurred to me to charge royalty fees5 as a business model. Royalty fees would limit the ability of other people to build on my creativity, and limit my ability to build on theirs.

In 19926 I was introduced to the Free Software7 movement, where software was viewed as something to be legally and freely shared with everyone. I realized I had found other like-minded people. These people found a way to create and distribute software in ways that was royalty-free, and yet could be (and was often) commercially supported. A well documented, practical social and political philosophy supported this. It included the users' freedom to run, copy, distribute, study, change and improve the software8.

This was a group of software creators trying to protect their creative rights in a way that also created and protected freedoms for users of their software. They recognized something that I had felt and practiced for years: the creators and users of software were not different groups of people.

Like many forms of human creativity, software is incremental. It is an understatement to say that "we stand on the shoulders of giants". It was understood by those in the Free Software movement that there was a need to create software in ways that treated creators and users more as equals. Todays users could very likely be tomorrows creators.

Just as the best way to learn to write novels is to read many novels written by others, the same is true of software. We need to read the source code of other software creators to understand it. We need to be able to discuss the software freely with other software creators and users, including the original author. The Free Software movement facilitated this critical learning and creativity environment, and actively encouraged software practitioners – new and seasoned – to share knowledge.

The popular alternative model of software development and distribution, what I call "software manufacturing"9, opposed this type of open creativity. Some in this movement disagree that software should be thought of as a part of cultural creation like writing. Software "manufacturers" treat code as private industrial property that is not shared or communicated.

I see software as a form of technical knowledge that instructs a machine, a sort of instruction manual. Software "manufacturers" saw software as being a type of machine, subject to laws such as patent laws that relate to the inventing and manufacturing of machines10.

In charging royalty fees they were also keeping their source code hidden and not available for unrestricted public peer review, dissection, discussion, and distribution. They were harming some of the most important features of what I felt was the culture of independent creativity I grew up with and wanted to defend.

While the Free Software movement was growing in the 1990's with the growth of the Internet11, it was not well enough understood by employers to be able to work exclusively in this field. My solution was to become self employed and start my own company in 1995. I did not seriously consider the idea of being employed by creating software in the "software manufacturing" sector or be paid for through royalties. I believed this business model had far more disadvantages than advantages. By this point in my life I respected creators rights, but had no sympathy for royalty-based commercial software companies and what I saw as their self-inflicted "software piracy"12.

Today it is hard to read any technology media without reading about Free/Libre and Open Source Software (FLOSS13) such as Linux that is radically changing the software industry. While Linux gets much of the media spotlight with its relatively small market share, software projects such as Apache serves up more than 67%14 of the websites on the Internet. As with other critical Internet infrastructure software, Apache is by far the market leader.

I can go into details later about my own business and how I make money15, but my main point was to introduce someone who grew up and work using different creative methods. This form of creativity has been called "commons-based peer production"16 , and emphasizes the need for creators and their audiences to be peers in a process, and for there to be a commons of existing knowledge to build upon.

Emily Carr and the Ancient Canadians

I only know Emily Carr through your book, and I have only read up to chapter 4. The Emily Carr I have been reading about seemed to think of first nations peoples17 as ancient Canadians, and a culture that was dieing out. There was an interest to document native art, but not to find ways for models of creativity between European settlers and natives to co-exist or be compatible in any way. You spoke of Emily Carr asking permission to paint totem poles when the artist was around, but was not concerned about this request for acceptance when the native creator was not available. Where much of white culture was fascinated by native creators of the past, there seemed to be a skepticism of any value in new native creativity. Thus far in the book I do not see Emily Carr working to protect new native creativity, just document the past.

If I were to take Emily Carr's advise and translate it to my personal experience it would suggest that I reject the rights of creators who wish to get paid through royalty payments. While I would never claim that there is a direct analogy with the differences between White and native creators, I still grew up and exist in a different creative environment than those who seek royalty payments. In the past I believed that we as a society would all be better off if legislation did not support that form of business model for creativity. In talking with other people of my generation or younger I have found that I was not alone in that thinking.

I have more recently come to believe that there may be considerable room for compromise and co-existence. Existing copyright law has already been used by our movement to protect our creativity and business models, just as copyright is used to protect royalty-based business models. There are also hybrid business models that mix royalty-bearing and royalty-free business models. There is no reason we can not ensure that changes to copyright are business model neutral, and take independent and alternative methods of creativity into consideration.

As someone involved in discussions around Traditional Knowledge (TK) I suspect you may be very supportive of this. I suspect there are ways to be inclusive of TK in our analysis as well. You may remember at the Creator's Rights Alliance AGM last year18 someone mentioning that the concept of copyleft19 from our community may be an appropriate model to discuss in the context of TK. The more I lean about TK the more I believe that there is room for creating policy which allows for creative methodology neutrality rather than continuing down our current cultural policy path of imposing ideas from certain industry associations onto all creativity.

I became involved in copyright reform in 2001 specifically because I saw an increasing amount of changes worldwide to copyright which rejected business model and creative methodology neutrality. Many of these reforms were imposing very limited business models, going so far as to be willing to hand over control of Information and Communications Technologies (ICT), required for much of modern creativity and expression, to monopolist software firms and media companies20.

What about my heirs?

Creators who see royalty payments as the only way they get paid are often concerned about the ability of their children to inherit their copyright in order to continue to receive royalty payments. I have read discussions about the term of copyright that suggested that as people live longer that the term of copyright should increase, such that copyright royalty payments would last for two generations or more.

From my own experience I believe it is far more likely that my children are going to be creators and live off of their own creativity, not mine. My legacy should not only be beneficial for my own offspring, but the new generation of creators that will hopefully build upon my creativity. I see extensions of the term of copyright and the weakening of fair dealings to be harmful to my heirs. I see copyright as a balance not only of the rights of creators and their audiences21, but also a balance of the rights of past creators and future creators.

I do not view copyright or any other intangibles as a form of property that can be compared to tangible property like a house. Governments may grant temporary monopolies to intangibles like the expression of an idea (copyright) for public policy purposes, and you may own the rights associated with that monopoly. I believe there is considerable confusion around the phrase "intellectual property", with this confusion being abused by certain lobbiests to convince governments to impose business models and limits on cultural communities on creativity.

Where you differentiate heirs from other non-creator copyright holders such as corporations, I do not. The same justification that grants heirs financial benefit from the creativity of others is used to justify regimes such as "work for hire"22 in the USA which I consider to be an inappropriate copyright grab away from creators by corporations.

I believe that copyright should have a term that is from the date of publication of the work, not the death of the creator. I am not comfortable with society receiving benefit, the start of the countdown for a work to enter the public domain, from the death of a creator. In the case of unpublished works the term should extend for a for a limited time from the death of the creator. I see this not only as a way to ensure rewards for heirs if they choose to publish, but more importantly as a way for follow-on creators to have certainty of when a work entered into the public domain.

While I believe that heirs should be able to inherit material rights if a creator dies before the end of the term of copyright, just as a corporation may sell off intangible assets if they are closing the corporation, I do not believe that the passing of copyright to heirs should be thought of as the justification for term extensions.

You mention a contract dispute between two non-creator copyright holders when mentioning the heirs of Lucy Maud Montgomery and Sullivan entertainment23. While I may be more sympathetic to one side in this contract dispute, I have a hard time understanding how this relates to modifications to the copyright act. We are talking about an extreme situation of taking works that are currently in the public domain and re-applying copyright to them. While I believe that parliament should have the power to increase and decrease the term of copyright to meet public policy needs, I believe it is a very dangerous precedent to encourage parliament to take works out of the public domain.

This does not in any way make me supportive of Sullivan Entertainment. It is important to remember that there is often more that two sides of any debate. The Writers Union has supported term extensions and taking works out of the public domain as a matter of principle, just as I oppose term extensions and taking works out of the public domain as a matter of principle. I still need to be convinced that the activities of the Writers Union were in the interests of writers.

I am open to a possible exception to my general opposition to taking works out of the public domain. Currently the works we are discussing under TK are considered by our copyright act to be in the public domain. It may be that copyright is an inappropriate regime to discuss these works. If this is the case works currently considered in the public domain under copyright may have some sui generis form of protection created for them. Depending on the nature of this protection I may be a supporter24.

Creators getting tarred with the same brush

You expressed a frustration that creators are getting tarred with the same brush as corporations. From my outside view looking into groups like the Creators' Rights Alliance (CRA) and the Writers Union I can understand the confusion. While I know you personally and know that your interest in protecting the rights of creators is genuine, the activities of these groups allow for legitimate skepticism. When I first heard of the CRA it was with their support of bringing USA's DMCA25 style legislation into Canada, something that I see as opposed to the rights of creators. I wondered how the CRA came to talk of itself as representing Canadian creators.

I am wondering what you believe you are doing to differentiate your views from those of non-creator copyright holders such as corporations? What do you feel differentiates the views of CRA and the Writers Union from those of the various intermediary industrial associations?

Rather that discussing the types of works that you as a writer and I as a software creator work on, it may be useful to talk about a different creator community. This will make things seem less divisive or personal, and we can get back to our specific fields of creativity after exploring others.

The Juno Weekend Scandal

Last year we were participant at the Ministers Forum on Copyright26 as two of 30 Canadian creators. This event was hosted on the weekend of the Junos, and many of the other creators were musicians. Not being a musician I asked what the musicians thought about the Private Copying regime27 which made private distribution of music legal in exchange for a levy on blank media. I suggested that this would make unauthorized P2P (peer-to-peer) distribution of their music free and legal. The larger and more visible the levy became the more it would discourage Canadians from paying for music in other ways such as such as buying CDs.

At the time the Heritage Minister, Sheila Copps, claimed that this was not the case. She went so far far as to suggest that some of my ideas were ludicrous. Since then both the Copyright Board and Justice Konrad von Finckenstein28 have agreed with my interpretation of the law.

Some musicians and big labels continue to blame unauthorized non-commercial peer-to-peer (P2P) music distribution for lost sales. They are asking for quick action from a government which seems willing. The problem is that if policy makers do not realize that past rushes to regulate and tax new electronic communications media is a partial source of current problems, how likely is it that they will come up with better solutions? Albert Einstein once said that you can't solve problems with the same mindset that created them, and I do not see evidence that traditional creator groups, intermediaries or governments have changed their mindset.

This is not just governments listening to non-creator lobby groups, but creators working with non-creators trying to push radical changes to the copyright act. I include the CRA in this given I have yet to see any public documentation of a change from their past support of DMCA-style legislation29.

On the other side are independent creators, including musicians and labels like Neil Leyton of Fading Ways Music. I quoted Neil in my March 1 press release talking about how creative licensing would help creativity, with aggressive litigation against customers harming it30.

Is unauthorized non-commercial P2P music distribution harmful?

I am largely dismissive of the recording industry when it claims harm from unauthorized non-commercial citizen-to-citizen (peer-to-peer, or P2P) music distribution. I see little credible evidence of financial harm at all. The following is my informal analysis in bullet form, based on some rough estimates I have seen in various places.

When I add all of these things together the only conclusion I can come to is that unauthorized P2P music distribution is free advertising. People must be listening to music on-line, finding out about artists or titles that they would normally not hear about, and buying more music. Far from unauthorized P2P harming the music industry, I only see evidence that it is an important factor keeping the industry going.

I am not the only person skeptical of the claims of harm. A new study by two researchers at Harvard Business School and the University of North Carolina, Chapel Hill, finds that sharing digital music files has no effect on CD sales34. While I believe that creators authorizing P2P distribution35 is helpful for lesser known artists, this study confirmed that P2P distribution served as advertising for the top titles.

I saw a CBC documentary called "Rhyme Pays"36 which talked about embedding advertising within music and music videos. It is hard to understand how that industry could ever claim that they are being economically harmed by having these songs distributed for free. Normally a marketing company has to pay the distributor, and yet in this case they are claiming that a non-commercial distributor is committing a crime by not paying.

Respect for copyright and creators' rights harmed

While there may not be economic harm to the recording industry from unauthorized P2P distribution, I do believe there is other harm. The private copying regime legalized and legitimized not paying musicians for music, something that will increasingly confuse the average citizen and harm any respect that Canadians might have for creators' rights in copyright.

We want citizens to ask themselves if the creator is paid when they enjoy our works. Currently people believe that musicians are getting paid by the levy collected on blank media that is given to the Canadian Private Copying Collective37. While I can see how super-stars and the labels that own them are beneficiaries of this system, I do not see how the vast majority of musicians will benefit. They are harmed by people believing that musicians are already paid through the levy, and yet won't see much if any of that money. It will probably take many years for the Canadian music industry to recover from the harm caused by the private copying regime, even if it were repealed this year.

The business models of the recording industry seems counter to the interests of musicians. While expenses to the recording industry are per-artist, per-recording, or per-video, their revenues are per-copy. The formula to maximize profit is simple: minimize the number of artists and titles, and try to maximize the revenue from remaining artists. While this helps the few super-stars promoted by this industry, it harms the vast majority of Canadian musicians. It is important to realize that not only is the recording industry not a proxy for the interests of musicians, but that the interests of musicians and the recording industry are often incompatible.

Protecting interests of all creators, not interests of intermediaries

It seems that the worst thing that can happen to creators is that they get what they are asking for. Musicians wanted to get compensated for P2P distribution because they were lead to believe it was harming them. The fix to this problem resulted in money going through the Canadian Private Copying Collective to the big labels for super-star musicians, but the result for most musicians was harm. There is now pressure to ratify the WIPO treaties which will yet again benefit the big labels and other intermediaries, but represent harm to the vast majority of Canadian creators.

How can we turn this situation around? Far too many creators continue to align themselves with industrial associations and intermediaries. With independent creativity that is possible with new electronic media, the possibility exists to cut out these intermediaries in many cases. This puts their interests and the interests of many creators directly in conflict.

If traditional creator groups are to protect creators' rights, they have a long way to go to articulating how they are different from the industries that audiences and new creators are appropriately rebelling against. Organizations like the Creators' Rights Alliance still have much to do to convince creators like myself that they are working to protect our rights.

Is it possible for different creators to work together to help governments create policy that is business-model neutral, and allows for independent creativity?

1Full contact information for Russell McOrmond can be found on his work website at (Accessed March 30, 2004)
I would like to thank Ian Allan who helped with editing (Accessed April 20, 2004)

2An index of letters can be found at (Accessed April 10, 2004)

3I am reading Susan Crean's book: "The Laughing One: A Journey to Emily Carr" (Accessed April 10, 2004)

4Page listing work experience is at (Accessed April 6, 2004)

5In some articles the term "monopoly rent seeking" is used which sounds more accurate, but not as commonly used.

6It is interesting how many things seem archived forever. One of my first questions to the GNU project newsgroup, gnu.misc.discuss , is still available on-line via Google Groups at (Accessed April 6, 2004)
While this is great for archival and research purposes, it is a bit embarrassing to read 12 years later that it was a confusion about copyright and the public domain that I was asking for clarification on.

7When I use the term Free Software I am using it as defined by the Free Software Foundation. There are other related terms I use, so I offer a page that references explanations and definitions at (Accessed April 6, 2004)

8The Free Software Definition (Accessed April 6, 2004) includes:

``Free software'' is a matter of liberty, not price. To understand the concept, you should think of ``free'' as in ``free speech,'' not as in ``free beer.''

Free software is a matter of the users' freedom to run, copy, distribute, study, change and improve the software.

9The term "software manufacturing" is used to discuss software which uses creation, distribution and business models similar to those in the manufacturing sector. Other people use the term "proprietary software". The problem with the term "proprietary software" is that it confuses people, including lawyers, into thinking that Free Software does not have owners. Free Software, except that which is in the public domain, is protected by copyright law the same as "software manufacturing" is. We just exercise our moral and material rights in ways different than the "software manufacturing" businesses.

10The Canadian Patent Act includes a definition of an invention as "any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter;"
Canadian Patent Act ( R.S. 1985, c. P-4 ) (Accessed April 19, 2004)
Outside of this letter, but I did a report for ICT branch of Industry Canada on Software Patents, and can discuss this in detail later if there is interest. (Accessed April 19, 2004)

11I see the Internet and the Free Software movement as co-dependent. Most of the core software that built the Internet was Free Software, and this enabled its quick growth. The Free Software

12I have written about the statistics used by the Canadian Alliance Against Software Theft (CAAST) which include people using alternatives as part of their infringement statistics. I have a number of articles on my weblog (Accessed April 10, 2004)

13Ibid 7

14Up to date statistics can be viewed via (Accessed April 6, 2004)

15At a recent public talk I introduced my business model informally under the name "software paralegal" (Accessed April 10, 2004)

16Yochai Benkler, "Coase's Penguin, or Linux and the Nature of the Firm" (Accessed April 6, 2004)

17I feel uncomfortable using the word "Indian" as my in-laws are from India, and this is not the type of Indian we are referring to.

18Creators' Rights Alliance AGM, May 22 2003. I wrote note that day at (Accessed April 10, 2004)

19Copyleft in software is a general method for making a program free software and requiring all modified and extended versions of the program to be free software as well. (Accessed April 10, 2004). The Creative Commons have a similar concept with "ShareAlike".

20This is the essence of "Legal protection for Technological Protection Measures" as discussed in the WIPO copyright treaties. This is claimed to be what the US government implemented with their 1998 Digital Millennium Copyright Act. In my mind the negative unintended consequences far exceed any theoretical benefits for creators and creativity. I wrote about this control in an article comparing the policies of past Heritage Minister Sheila Copps with digital entrepreneur Bob Young (Accesed April 6, 2004)

21Like the Creators' Alliance (Accessed April 6, 2004) I often reference the United Nations Universal Declaration of Human Rights (Accessed April 6, 2004) to explain my views on copyright. Unlike the CRA I fully recognize the required balance between article 19 (freedom of opinion and expression) and the entirety of article 27 (cultural and creators' rights), not just article 27(2).

22I wonder what your thoughts are on sections 13(2) "Engraving, photograph or portrait" and 13(3) "Work made in the course of employment" of the Canadian Copyright act, and whether clarity would be better served if both sections were removed from the act. Should creators always have first copyright for their creations, unless it is specifically signed away in an employment contract?

23The website for Sullivan Entertainment features many works of Lucy Maud Montgomery (Accessed April 6, 2004)

24We need to be careful to not forget new creativity even when discussing regimes to protect Traditional Knowledge. A question was brought up in the discussion group. If only a Native could claim that their art is based on traditional native techniques, would that also mean that a white rap artists couldn't claim to be a rap artist?

25Digital Millennium Copyright Act (DMCA). Some of the unintended consequences of this US legislation can be seen via (Accessed April 6, 2004)

26Minister's Forum on Copyright, April 4th, 2003 (Accessed April 6, 2004)

27Private Copying is Part VIII of the Canadian Copyright Act (Accessed April 6, 2004)

28This is in a case between CRIA members and a number of "John and Jane Doe" to discover the names from the Internet Service Providers of people using specific Internet addresses. The full decision can be read at (Accessed April 6, 2004). It specifically mentions the Section 80(1`) of the Copyright Act on private copying, suggesting in paragraph 25 that "Thus, downloading a song for personal use does not amount to infringement. See Copyright Board of Canada, Private Copying 2003-2004 decision, 12 December 2003 at page 20".

29Where the private copying regime legalized and legitimized not paying musicians for music distribution, there are proposed changes around the ratification of the WIPO copyright treaties which will be far more harmful to creators' rights. This will be an even more excessive form of regulation of communications media that will create many more unintended consequences.

30Ottawa – March 1, 2004 – FLORA Community Consulting wishes to announce the “Make it legal: don't litigate, use creative licensing” campaign to encourage software authors, musicians, and other creators of works of the mind to use Free/Libre and Open Source Software (FLOSS) and Creative Commons licensing. (Accessed April 20, 2004)

31"Missing RIAA figures shoot down 'piracy' canard" by Andrew Orlowski, Published Monday 16th December 2002 (Accessed April 10 2004). I have seen many other similar statistics since, but have not yet seen Canadian figures disclosed.

32I wrote an article "Piracy or Boycott: Can you tell the difference?" (Accessed April 6, 2004)

33The argument here is that the more time people spend talking on their cellphone, the less music they will feel the need to buy as their existing purchases will not go stale as quickly.

34"CD Sales Not Reduced by File Sharing, Say Researchers at Harvard Business School and University of North Carolina, Chapel Hill" (Accessed April 10, 2004)

35As one example, Fading Ways Music is making use of Creative Commons licenses to authorize their music being distributed non-commercially on P2P networks, CD sharing, or other such methods. Fading Ways was featured in my March 1, 2004 press release "Make it legal: don't litigate, use creative licensing" (Accessed April 10, 2004)

36CBC Marketplace (Accessed April 10, 2004) first aired on Tuesday, April 6, 2004.

37CPCC (Accessed April 10, 2004)