Copyright 2004, Russell McOrmond
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Many people are asking the question of whether Sheila Copps, current MP for Hamilton East with the Liberal party, would make a good member of the New Democratic Party if she is not able to receive the Liberal nomination for the new riding1. Sheila Copps was past Minister of Heritage and in that position I met with her because of my involvement with copyright reform2. I spoke with Minister Copps in person during the Ministers's Forum3 on Copyright on April 4th, 2003. To demonstrate a different way of looking at the same problems I will contrast past Minister Copps views on digital copyright issues with those of another Hamilton personality, Bob Young.
To offer my impression of Minister Copps I must first offer a little bit of background on some of the issues in copyright reform. In recent years there has been increased citizen access to Information and Communications Technology (ICT) ranging from audio/video recording devices, new electronic enhanced musical instruments, editing and communications equipment, and computer technology controlled by software. The 1990's saw the rapid growth of the Internet that put ever advancing communications tools in the hands of almost every creating person that allowed them to communicate very easily with audiences throughout the world.
While these new ICTs provided for new possibilities beyond the imagination just a generation ago, these new tools came with their downside. If a creator is able to take control of these tools to create and communicate their works easily, unauthorized persons could use the same tools to infringe the rights of these creators and illegally communicate these works as well. The case of Napster and the use of Peer-to-peer networks to communicate works without the permission of their creators, often incorrectly called 'sharing', made this issue very public.
Many people agreed that this was a problem that needed to be looked into, and for some this aspect of advances in communications tools seemed to be apocalyptic for creators' rights protected by copyright. Because it was digital technologies that made these new opportunities and issues surface, the term “digital copyright” is used to describe the debate around how to address these changes in copyright law.
Whenever there is a problem to be solved in law there are different political philosophies that apply. One political philosophy suggest that solutions to criminal activity require more policing, stricter laws, and larger punishments. Another political philosophy suggests we find the root causes of criminal behavior and find community based ways to reduce this behavior without resorting to strong policing tactics that often have unintended consequences. There are political philosophies which favor policy which supports big business over the interests of communities. These type of political philosophies play out in digital copyright reform, and I will demonstrate using “more policing” and “favor big business” examples.
In its simplest form, the thinking goes like this: if private citizens being able to control ICT allows them to infringe copyright and illegally distribute the works of others, then the solution is to take the control of ICT away from private citizens4.
In order to understand how this can be done you need to realize that there are at least 3 different constituencies in copyright: the creator who is a private citizen with creative talent, an audience made up of private citizens, and intermediaries that exist between the creators and their audiences. These intermediaries include many very different entities such as non-creator copyright holders (music labels, motion picture studios, software corporations), and creators/owners of communications tools and media (manufacturers of ICT tools, Internet Service Providers, Cable and satellite and other telecommunications companies).
Since creators and audiences are private citizens, and are often interchangeable depending on what type of work we are talking about, there is no way to give creators control over ICT tools without granting the same control to other private citizens. In effect what is being proposed with this solution is to take the control of ICT away from creators and their audiences and grant control (and thus ownership) of these tools to intermediaries. It would not be you as a private citizen that would own and control your VCR/camcorder, television, or home computer, it would be these intermediaries.
A simple thought experiment can demonstrate the problem with this solution. In 1982 in testimony to the United States House of Representatives on why the VCR should be illegal, Jack Valenti said, "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone"5. If Jack Valenti, president of the Motion Picture Association of America (MPAA), had been successful in convincing the United States to ban the VCR (and all derivative tools such as the camcorder and inexpensive video editing hardware/software), would the current visual arts community exist today? I suggest that creators of these types of works would at this point either be working for MPAA members, likely under even more oppressive "work for hire" situations than creators are subjected to today, or not working at all.
In it simplest form the thinking goes like this: assuming audiences are going to infringe copyright then make this infringement legal and just collect a levy that will be distributed to copyright holders as a replacement.
This sounds like a sensible solution until you see how things work in practice as we have experienced already in Canada with music under the Private Copying6 regime. Under this regime the creator loses their exclusive rights to a form of “compulsory licensing”. Where a creator is offered material rights in their works they have the opportunity to explore new business models, possibly even setting up more intimate relationships with their fans. With this compulsory licensing system they no longer have control over their material rights and have an intermediary administered royalty payment system imposed as a replacement.
The current system has many questions as to who receives the royalties. Since there is no way to directly determine what music private citizens are enjoying from this regime, proxies such as “radio airtime” and “record sales” are used to determine what artists receive in royalties from this system. These are two statistics that are already highly manipulated by the recording industry as part of their superstar system, and thus less famous musicians – the vast majority of musicians -- will receive nothing from this system.
There are also concerns about what would happen to other types of works if this style of regime was imposed on them. I have suggested that it would decimate the computer software sector if this type of regime were imposed on it7.
As with the question of control over ICT, this proposal favors the interests and business models of incumbent non-creator copyright holders over the interests of creators, creating further government mandated artificial dependencies on these intermediaries.
When we talk about the control of ICT tools we are really talking about software as what you can or can not do with an ICT tool is governed by policy encoded in software. It is in this sense that Lawrence Lessig8 suggested that “code is law”. What rights creators of software are given over their works ends up affecting what rights any other creator or citizen will have over ICT tools, so the nature of computer software is critical to understand for digital copyright.
As with the creation of any other policy we need to ask who is in control of the process of creating this policy. When talking about ICT tools the choice is between the vendors of the tools and the citizens who own and use those tools.
There are two very different ways of thinking about computer software that can be traced back to the formation of the software sector. Prior to the 1960's software was always bundled with hardware as part of an integrated device. You had a device that could do word processing, but it could not be easily reprogrammed to do other work. Hardware was obviously manufactured, distributed and sold on a per-unit basis and thus the bundle of hardware and software was marketed that way.
Some time around the 1960's the software sector formed with the separation of software from hardware. At this point two very different camps were formed. There were those who felt that software should be treated the same as hardware, with those in the "software manufacturing" movement relying almost entirely on business models and methodologies from the manufacturing sector. Software code is kept as secret as possible and the users of the software are legally disallowed from learning how the software works or modifying it to put the software under the control of the user. This subset of the software industry was very successful from the 1960's up to today.
Another group of people noticed that software, being intangible and naturally non-rivalrous, has very different attributes than hardware. They felt that there was no need to arbitrarily limit software and software business models to those from the manufacturing sector, and think of per-unit royalty payments as simply one business model among many.
Free/Libre and Open Source Software (FLOSS9) is software where the user has the freedom to run, copy, distribute, study, change and improve the software. Having this freedom also means that the user does not have to pay an additional fee to do any of these things. Because this software does not have a royalty fee, the incentive for private citizens to infringe copyright is gone and this business model ends up being a very effective means to almost completely stop software copyright infringement10.
While many people are paid to create FLOSS, the business models they use are not based on royalty fees. FLOSS creators come from all sectors of our economy including the public, private, volunteer and education sectors, and each has their own motivations and incentives to participate. Often the financial motivation is from the customer to save money by using modern software methodologies, rather than the motivation from a vendor being to make money on the “sale” of the software11.
Having all these freedoms in relation to the software also means that the ICT under the control of that software is under the control of the citizen. If they do not have the skills to modify the software themselves, they can hire someone to under their direction modify it for them – similar in concept to electing a representative to a democratic body rather than trying to directly help create public policy. If we think back to “code is law”, these freedoms map almost directly onto government transparency and accountability concepts such as “access to information” laws in democracies, as well as having independent media to report on what is happening in government.
While the debate on copyright reform is often characterized as a battle between copyright holders and copyright infringers, I believe that the two problems discussed earlier suggest that the real critical question is between creator copyright holders and non-creator copyright holders (a subset of intermediaries).
My first personal meeting with Sheila Copps was at the Ministers Forum on Copyright, and at this forum it became clear that Sheila Copps favors the interests of non-creator copyright holders. She supported laws granting further intermediary-control over ICT, going so far as to say that my interpretation of this area of public policy was “ludicrous” during this forum. This was the issue that brought our community out to the 2001 copyright reform consultations12, and it was an issue that Sheila quickly shut down during that forum.
Where it comes to the question of business models, she seems to consider the Private Copying regime which implements this replacement of creators' rights with a right of remuneration to be a personal success story.
When I tried to talk to her about about these issues she seemed entirely unaware of and uninterested in learning about Internet business models that skip intermediaries and give creators more control over the exploitation of their creative rights. She was unaware of FLOSS and/or "commons-based peer production"13. She seems to equate the special interests of the copyright-holding intermediaries with protecting the rights of creators, and sees the Internet only in the context of a threat to incumbent intermediaries rather than as a great opportunity for creator communities.
Excited about the Internet and emerging co-dependent FLOSS in the early 1990's, Robert co-founded Red Hat14 which helps advance and distributes a FLOSS operating system as well as many FLOSS applications. Documentation on their website suggest that they are a leader in Open Source software and that “what began as a better way to build software--openness, transparency, collaboration--soon shifted the balance of power in an entire industry”15.
Red Hat became a very successful company and at the IPO for its stock became the eighth-biggest gain for a U.S. stock in the first day of trading16. The ongoing success of Red Hat and other similar companies is proof that it is possible to make money in the software market without charging royalty payments, and without having exclusive control or copyright over the software which a company can market and support.
Understanding the business models that were at the heart of his success, he started to look at ways to help other creators in the way that Red Hat was helping software creators. He founded the Center for the Public Domain17 in 199918. In 2002 he founded Lulu.com19. Lulu is a marketplace for books, images, music and other creative works designed for creators to market their own works directly and skip many of the traditional intermediaries. Creators are encouraged to retain their own copyright on their works, rather than the tradition where the material rights for a work are signed away as part of the deal with the non-creator copyright holding intermediary.
In October 2003 Robert decided make use of his entrepreneurial success and give back to the hometown where he grew up by buying the Hamilton Tigercats20 and promoting Hamilton.
Where Sheila Copps often claims that she tries to speak for workers and is not beholden to large corporate interests, her actions on copyright reform suggest otherwise. Her response has primarily supported incumbent intermediary big business interests, largely ignoring the longer-term interests of creators and other citizens. When we look back on the history of copyright reform in Canada we may see the transition of the Liberal government that removed Sheila Copps as Heritage Minister as being a very important day in the protection of creators' rights.
Entrepreneur Robert Young has been a great success challenging the incumbent big business interests in a way that protects the rights of creators to determine their own destiny in a free market separate from the incumbent intermediaries.
In the new Hamilton riding people will be going to the polls soon. One of the candidates may be Sheila Copps, a candidate that electors should consider carefully. Had Sheila's policies on copyright been in place ten years ago, Robert Young's Internet business model would have been impossible. In Sheila's world, the Hamilton Tiger Cats could have become just a fading memory.
2My most recent submission to the government on Copyright Reform can be read at: http://www.flora.ca/copyright2003/ (accessed January 31, 2004) This document includes a table at the end which references other submission and activities in this area of policy since the summer of 2001.
3Information on the Heritage Minister's Forum on Copyright from April 4th, 2003, can be found at http://www.pch.gc.ca/progs/ac-ca/progs/pda-cpb/forum/index_e.cfm (accessed January 31, 2004)
4For those following the digital copyright reform process, the most recent incarnation of this problem policy is known as “Legal protection for Technological Protection Measures” and is an extreme interpretation of part of some WIPO treaties which Canada has signed onto. In the United States their implementation of this policy is known as the nasty part of the Digital Millennium Copyright Act http://www.eff.org/IP/DMCA/ (Accessed Feb 10, 2004)
before the subcommittee on courts, civil liberties, and the
administration of justice of the House of Representatives,
ninety-seventh congress, second session, on
H.R. 4783, H.R. 4794 H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705
HOME RECORDING OF COPYRIGHTED WORKS
APRIL 12, 13, 14, JUNE 24, AUGUST 11, SEPTEMBER 22 AND 23, 1982
http://cryptome.org/hrcw-hear.htm (accessed January 31, 2004)
6Part VIII of the Canadian Copyright Act concerns Private Copying http://www.digital-copyright.ca/copyright_jargon.shtml#privatecopying (accessed Feb 10, 2004)
7I wrote about the private copying regime in “Content industries on slippery slope with demand for blank media levy” which was published in the Feb 2, 2003 edition of Canadian New Media. http://www.flora.ca/cnm20030207.shtml (accessed February 2, 2004)
10I highlighted the idea of reduction of software copyright infringement in my most recent submission to the Heritage Committee http://www.flora.ca/copyright2003/section92.html#infringement (accessed February 10, 2004)
11There is a growing amount of analysis of software business models looking at demand-side analysis rather than supply-side vendor-centered analysis. Doc Searls, Senior Editor of Linux Journal, often writes about the concept of “the demand-side supplying itself” in his SuitWatch newsletter http://www.ssc.com/pipermail/suitwatch/ (accessed February 10, 2004). See his report on Macworld, "New Economy Hack: Turning Consumers Into Producers": http://linuxjournal.com/article.php?sid=7345
12The forum at http://www.digital-copyright.ca (accessed Feb 10, 2004) is a derivative of the forum we created at that time called “Canada DMCA Opponents” http://www.digital-copyright.ca/discuss/1 (accessed Feb 10, 2004).
term "commons-based peer production" was first introduced
by Yochai Benkler in his paper “Coase's Penguin, or Linux and
the Nature of the Firm“
(Accessed Feb 9, 2004)
Canadians wanting to learn more may want to participate in the iCommons Canada Project which is an initiative of the Canadian Internet Policy and Public Interest Clinic (CIPPIC) http://www.cippic.ca/icommons-canada (Accessed Feb 11, 2004). There is also a website being set up to run information campaigns aimed at politicians at http://www.peerproduction.org/ (Accessed Feb 11, 2004)
16August 11, 1999 entry at http://www.redhat.com/about/corporate/milestones.html (accessed Feb 10, 2004)
18Biography of Robert Young http://www.tigercats.on.ca/TigerCatsNews03/1007b.html (accessed Feb 10, 2004)
19Robert Young is a book author who publishes his book through Lulu.com http://www.lulu.com/browse/author_view.php?fAID=1016 (accessed Feb 10, 2004). You can also learn more about his thoughts on copyright by reading his Weblog http://www.lulu.com/journal/blog/1016?fTheme=community (accessed Feb 10, 2004)
Hat co-founder takes on Tiger-Cats CFL franchise
(accessed Feb 10, 2004) and
(accessed Feb 10, 2004)
Digital Entrepreneur Bob Young will be delivering a Keynote at Toronto Open Source Conference in May 2004.
http://osconf.kmdi.utoronto.ca/media.html#mar15 (accessed March 16, 2004)