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Bill C-61 isn’t great for producers either.

Yeah, you had to know this was coming.

So here’s the standard disclaimer – I make the entirety of my income off profits from the exploitation of copyrighted works. Far from being a piracy apologist, I believe content creators have the right to monetize their creations as much (or as little) as they like. I have walked into certain Toronto malls and seen, no hyperbole, an entire wall of near-professional quality Asian bootleg DVD’s of a film that I worked 60-hour weeks on for more than a year. I watched people (multiple) purchase said bootlegs, knowing that not a cent of that money was going to anyone who slaved with me on that film, (or the dozens of companies that put up serious money to make that film a reality). By all accounts I should be drinking the RIAA/MPAA Kool-aid and throwing a Jim Prentice party… but I’m not.

Because this bill is just bad policy for both consumers and content producers.


This is not a partisan politics issue. C-61 is better than C-60 (which was the Martin government’s stab at the same thing) – but “less crummy” is not really what I strive for in public policy. This is an issue that no government has seemed to be able to wrestle effectively. Frankly, most of my ongoing discomfort with the entire process stems from the perception that there has never been meaningful public consultation on what the government is trying to accomplish with these laws (if you ever want to see me really get worked up, ask me about Bev Oda’s mystifying 2006 speech on the goals of governmental copyright reform) – so we have to assume what appears to be the “face value” of the bill – that the government is simply bowing to American pressure to bring our laws more in-line with the DMCA (which, as I wrote about in November, is a flawed approach given how universally poorly those laws have performed for both consumers and rights holders in the US).

If you’re a little rusty on the specifics of C-61 v2.0 (and who could blame you) Eric March at TouchPodium has a much better summary from a consumer perspective than I could write. I’d instead prefer to focus on three of my personal beefs with this bill from a capitalist, merciless, “the-man”, content creator standpoint.

1. Limiting private, non-commercial usages of legally-purchased works enhances the power of the distributors and decreases the power of the content producers.

This is a little bit non-intuitive (even to other producers), but bear with me as, in my opinion, it is the most critical issue to protecting content creators as media distribution evolves into the direct digital distribution era.

Individuals are increasingly personalizing how they consume their media. I know people who only watch movies on their iPods while commuting, or off of their digital media home servers, on on laptops (I often rip DVD’s to my laptop for work travel, as my battery life lasts much longer watching a movie off hard drive instead of having to keep the disc drive spinning). At the same time I don’t see any of these individuals buying more media, or multiple copies of the same media (see the failure of UMD as one clear-cut example of this) – so an increase in audience platforms doesn’t necessarily equal an increase the entertainment market – it does, however fragment delivery systems (and who controls each system).

This is why I get frustrated when I read industry spokespeople – dollar signs in their eyes – raving with one breath about the increased profitability of certain arms of their media ventures, but then railing in the next about how “piracy” is decreasing their traditional revenue streams. New technologies may contribute to growing the industry, but they also reduce existing revenue streams… there isn’t a limitless amount of consumer money out there to tap. I’m sure we all know at least one individual (I know many) who have entirely given up going to theatres in lieu of watching DVD’s at home… let alone those who forgo movies and television entirely since “World of Warcraft” came out.

Now the inherent problem is that more and more of these “new” platforms have DRM inherently built into them. iTunes has Fairplay, Blu-Ray has AACS and BD+… etc, etc. Therefore, by restricting what consumers can do with their purchased media, the distributors who control these platforms also limit producers to how they can access these markets. It is not too hard to see a future where the only way to get content onto an iPod, or AppleTV is through iTunes (this situation exists already with videogame consoles, and cell phones – the only way producers can make their applications, games, or video content available to these audiences is through a proprietary distribution system controlled by the hardware manufacturer). Under this situation distribution channels would essentially be given a monopoly on certain audiences and producers would have no choice but to accept whatever terms these corporations impose.

Right now, as an independent producer, I can sell an unencrypted DVD copy for home use directly to end users. Under the current system, end users who ultimately want to watch that movie on iPods, or Laptop computers, or their playstation are free to buy it and convert it into whatever format they’re looking for – as long as it’s limited to non-commercial individual use (ie: the type of viewing one would expect from someone when you sell them a DVD).

What’s the similar parable under “new” technology? If my end user audience can’t re-purpose their video themselves, we’re not too far from the system the distributors want – which is one where they unconditionally control individual audiences and the only way for producers to access those potential customers is on whatever terms they wish. Copyright law can essentially become a tool to prevent content creator access to an audience, putting a brand new barrier into selling creative work AND the audience gets less total choice of what works they can support given their individual tastes in how they prefer to consume media. Creative barriers AND less choice?

Awesome.


2. All infringements are not the same.

On general principle I like the limitation of Statutory Damages in the new bill (unlike the US DMCA, C-61 puts limits that would hopefully curtail the kind of “fishing” lawsuits we saw early in the RIAA’s fight against end-users in the US). I don’t mind this at all – as I think their only real result of those actions have been to create an “us vs them” mentality with users, and allowed the industry bodies to delude themselves that a gradual decline in their industry was due entirely to piracy (when you can publically claim each song downloaded over the internet is costing $2,000 in revenue per occurance (which is just bad economic math), it becomes easy to scapegoat “technology” instead of having to recognize that your industry is going through a very complex economic transition, and that some of the fundamental assumptions that underly it haven’t been true since the 80s).

However I’d much rather see an amendment where a distinction is made between non-commercial and commercial infringement (ie: An end user downloading an album they haven’t paid for vs. an established pirate operation selling bootleg DVD’s at retail).

I believe (and I may elaborate in some later time) that the economic impact of the former is minimal because it has to be measured against the likely economic potential of that person as a non-infringer (which I’d argue, from experience, is almost negligible). However the latter are a serious problem and by making a bigger distinction it would be easier for the government to add some real teeth here.

As a producer I see a big difference in someone wanting to watch an episode of my show, that they don’t get in their country – or catching up on a network television series mid-season, or making a mix-tape for a friend, or (yes) even downloading and watching a movie that they have no intention of ever seeing in the theatre or buying… and someone making 100 copies of a film to sell on a street corner.

As long as the law takes a “all infringements are the same” approach – I think the government is, essentially, just perpetrating industry bogeymen.

3. Where’s the Fair Use?

This is where “copyright reform” always falls down in a big way. “Copyright Reform” has always been code for “Restricting usage”… which really isn’t the same thing at all.

There has never been a government body that’s taken a truly progressive look at copyright and said – along with restricting copyright to deal with the changing technology, we also need to look at the evolution of media and be equally progressive with where we need to relax copyright laws.

Where is the debate on a truly progressive approach to “fair use” (a concept which is nearly non-existent under Canadian law)? Where could there be better, clearer, protections for news, parody, academic study, commentary? Why isn’t the government at least discussing the fact that while new cultural product has a shorter commercial lifetime than ever before (and back-catalogue values are decreasing) it’s taking longer and longer for culturally significant work to enter the public domain?

Why are preservation societies unable to protect orphaned historic works because of fear of submarine rights-holder lawsuits?

I’m not saying I’m for or against any of these things (although I think Canada could actually become a world leader by looking into, say, a concept of a graduated public domain – and a completely fresh approach to “fair use”) – but any proposed copyright reform should be looking at the whole picture – not just the areas that some select industry and political interests are lobbying for.

In conclusion, this is a bill that’s clearly more thought out than it’s original form… and there’s a couple of things to like in it – but I think what the public deserves is actual progressive reform, and any bill with major problems from both a consumer and content creator perspective isn’t the place to start.

  • http://flora.ca/ Russell McOrmond

    Brad,

    I am a software author, and volunteer in a number of software related groups (See my website for details).

    My analysis has focused almost entirely on the anti-circumvention provisions where C-60 used the WIPO language of tieing circumvention to infringing activities, while C-61 used the NII/DMCA approach of anti-circumvention being only tied to activities not authorized by the copyright holder.

    I am curious why you think C-61 is mildly better than C-60, rather than the other way around.

    Is it because of the alleged reduction of statutory damages for “downloading”, an activity that nobody has ever wanted to sue for?

    In the USA the lawsuits are all about sharing (and odd legal interpretations of “making available” where no evidence of infringing activity is needed — such as downloading and analyzing the contents of the resulting file), not downloading, so we are in the same situation in Canada. The difference isn’t the law (The BMG case clearly stated that copyright holders don’t need C-61 to sue infringers, just evidence)

    Let me know your thoughts. I’ve blogged your article on my site if curious.
    http://www.digital-copyright.ca/node/4767

  • http://www.andrewcurrie.ca Andrew Currie

    Thanks for this… Consider it Dugg :-)

    http://tinyurl.com/5ftxxh

  • Brad

    Hi Russell,

    Thanks for the comment. I cut a bunch of stuff out for length and clarity, and so that is indeed a little bit of an obtuse statement. I think it originally read “nominally better”.

    The only point I have any strong feelings about is just to assure that I don’t think this is a partisan issue – no government to date deserves anything resembling kudos.

    You quite rightly guess that I’d prefer C-60’s circumvention language (I do – both as a consumer, and a pragmatist). It also should get credit for really putting the “notice and notice” system for ISP’s forward over the DCMA’s “notice and takedown” approach. Neither point is absolution though for the fact that C-60 was just badly written.

    It introduced a bunch of complicated clauses that really muddied the waters regarding schools, libraries, and their relationship to DRM, and it created a real legal gray area regarding digital photography ownership.

    At the same time, the bill did nothing to address penalties for knowing, commercial offenders (which ended up getting addressed in the criminal code instead).

    I believe some of major flaws got lip-service before or during the first reading, but I think at that time it was already pretty clear that C-60 was going to die on the docket.

  • http://www.tfpmusic.com Tim Harwill

    Hi Brad,

    I’m a songwriter, indie recording artist, and poet, and thus a creator of art and intellectual property. This certainly seems like a lot of apologizing and excuses being made when all that our government is trying to do is to stop people from stealing the legitimately owned products and output of artists and intellectual property owners.
    Incidentally, infringements are ‘all the same’, in the same way that it remains impossible to be a ‘little bit’ pregnant. As a creator of IP yourself I’d hope for better, but apologists and relativism being what they are today I suppose that would be asking too much.
    What comes next? Legalized piracy and the denial of all copyright to creators and the managers of content?
    Theft is theft.
    It ought to be stopped.
    If those responsible for the creation and management of art and IP don’t stand up and defend their rights, the world has demonstrated a committment to do everything within it’s power to take those rights away. Your words speak directly to this, as do the actions of those who have raised the current uproar against ANY and ALL forms of legislation here in Canada today.
    As such and as a producer of art and IP; and with the knowledge that Bill C-61 is plainly not perfect, it has and will continue to receive my whole hearted support.

  • http://flora.ca/ Russell McOrmond

    Tim said: “all that our government is trying to do is to stop people from stealing the legitimately owned products and output of artists and intellectual property owners.”

    Those who have read the bill don’t agree that this is what the government is doing. Even if this was their intention (and of that I’m not convinced), this would not be the effect of this legislation.

    It is simply wrong to believe that the large number of fellow creators who are opposed to this policy direction for Copyright are apologists for infringers. In my case I am a software author trying to protect my ability to author software and make a living doing so, something that Bill C-61 and similar legislation greatly threatens.

    As to the “stealing” part, I’ll just point you to http://www.digital-copyright.ca/Jefferson_Debate

  • http://flora.ca/ Russell McOrmond

    Brad,

    Agreed that no government thus far deserves a gold star.

    I think most of the politicians are oblivious to what is going on. The obvious infringement on Prentice’s own website http://www.digital-copyright.ca/node/4768 is quite typical as most politicians infringe copyright all the time like every other citizen. They don’t think it is a bad thing for their less-than-commercial usage They have been all too easily duped by the lobbiests into believing that this relatively harmless type of activity should be cracked down on rather than focusing on very harmful commercial infringers.

    Why there is this massive policy focus on the private activities of individual Canadians and yet little to nothing on the very public commercial infringement (I believe you wrote about the counterfeit DVD shops) just blows me away. I realize that it is more about the anti-competitive desires of old-media than reducing infringement, but few if any of the policy makers see this.

    I really have to wonder about those who are so angry that they feel absolute about infringement, and believe all forms of infringement is the same. An easy definition of innovation and creativity is the unauthorized enhancement of the past, so an absolute on “this is mine, mine, mine” would effectively kill future human creativity. This has always been an area of human thought and law that has required a recognition of shades of grey, with only a small amount of black and white.

    I’m not a fan of what is being done in the educational sector. The government is just listening to those that they believe represent the sector (provincial education ministers, institutional administration and educational publishers) who continue to ask for things which are both harmful to those operating within educational institutions, as well as those of us who are lifelong learners who aren’t ‘institutionalized’ ;-)

    While we have to treat this seriously just in case, I suspect C-61 is planned to die on the order paper as well before the next election.

    I sat in on a meeting with Pierre Poilievre (Nepean – Carleton, Parliamentary Secretary to the President of the Treasury Board) on Thursday and he seemed to be far more open to dialog and less partisan than I would expect if they were planning on quickly passing this bill.

    I’m hoping I’m right, and we will have more time to come together as creators to help draft policy that would actually be helpful to us as an increasingly important part of the post-industrial economy. Currently we are only seeing policy that would protect the old-economy intermediaries from legitimate new-economy/new-media competition.

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  • Brad

    @Tim Harwill,

    I don’t think I’m an apologist at all – I just would prefer to focus limited enforcement resources on the smallest percentage of cases (commercial infringers) who create the maximum amount of damages for the parties in my particular sector.

    Music is a bit of a different kettle of fish – especially as casual infringement has completely invalidated many of the business models that used to work in that space – but I make no apologies for those cases… I just don’t think they have the financial impact that many in the space think… the studio model for music has been essentially broken since the spread of cassette tapes in the 80s.

    Even if we agreed on “all infringement is equal” (which is just a provably false statement to levy against any aspect of criminal law… if that was true there would be absolutely no need for case law, or sentencing guidelines) we’d still probably be at odds that I don’ think this law helps in any substantial way to further the goals of enforcement.

    What it does do for many sectors (movies and software particularly) is handcuffs producers and end-users alike in ways I’m profoundly uncomfortable with.

  • http://www.tfpmusic.com Tim Harwill

    Hi Brad & Russell,

    While I appreciate the fact that you, like many, would seek to deny your status as apologists, you both continue to apologise! And while I do understand that both software and the hollywood film industry are unique and separate instances worthy of particular and significant consideration, they are no more worthy of copyright defence than the music and art produced each and every day by creators of those types here in Canada and elsewhere around the world. To consider that the wishes of those involved with the software development industry should be deserving of a separate and specific set of laws that would potentially invalidate the work of musicians, poets, and artists around the world is not only narrow minded but insensible. Thankfully, as we still cling to the shreds of democracy here in Canada, the single opinions of individuals matter little, and those who have sacrificed to acheive elected office will be responsible for the implementation of a law that the rest of us will be required to live with. It is my opinion that the new law, inspite of its’ many shortcomings and our many differences, will acheive the most good for the greatest number, and put an end to the ammoral thievery and despicable lack of ethics that Canadians have become know for around the world since the rise of the internet.
    Furthermore, it is useful to remind oneself that in Jeffersons’ day there was no thing such as software, making the attempt to wrap oneself in that flag not only a seriously long stretch, but intellectually weak. Similarly, your ‘opinions’ regarding the music business are exactly that, and as you provide no background of experience nor any data to corroborate your statements regarding that industry and/or that area of the copyright environment, they ought to be relegated to that status, not trotted out in defence of an already tenuous argument.
    Thankfully, the houses of parliament have yet to be completely overrun by software engineers, a fact that those of us who don’t write code for a living will remain eternally grateful for. Once again, democracy appears set to protect us from ourselves, and I for one am relieved that the good of the silent many will once again manage to outweight the good of the vociferous few with the passage into law of this highly controversial bill.
    Have I mentioned how much I love democracy? What a sweet and wonderful concept it truly is!
    Enjoy!

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  • http://edg@sasktel.net Concerned Citizen

    I am buyer of DVD s and online music. This whole thing going on in Canada is making me so sick I just want to sell my TV, stereo and move to the country and forget about all this BS. I think the Industry has placed the blame squarely on others as a scapegoat inflating profit loses instead of looking back at some of the mistakes they have made. Have they ever considered that some of the profit losses are their fault?
    Anyways the direction of the laws seems to lean towards monopoly and stripping privacy rights little by little so we don’t notice until it is too late and into law.
    Also by being an owner of many DRMs its a mistake and hastle I never want to deal with again. I now dont buy at online stores that include ultra restrictive DRM. In the end even BIll Gates (A media DRM platform distributor) makes a profit because everyone is forced to use Windows to read the DRM’s. To many flaws, I am for some updating but not as is. To many implications and ramifications that need further refining before becoming law.

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