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Posts from the ‘copyright reform’ Category

Usage Based Billing – The Elephant in the Muddy Waters in the Middle Ground

Oh Wikimedia Commons, is there any topic you don't have the perfect image for?

I got an e-mail from a friend (on his way to a Useage Based Billing consultation) yesterday curious as to what my thoughts were on the whole thing. I haven’t written anything about it at length (other than the odd tweet, mostly because my position generally falls outside both of the established “camps”, and when I have talked about it I generally found the discussion quickly deteriorated to me being asked to defend “the other side” and tenants I didn’t actually agree with.

Actually my biggest problem with the “debate” so far is that the two sides usually distill down to the arguments that “UBB is necessary” vs. “UBB is bad” and given that those aren’t actually mutually exclusive positions it’s frustrating to try and even define what the core issues are.

But in yesterdays exchange, I realized that I do have some thoughts which are a different viewpoint from most of what I’ve been seeing written – so if nothing else it might provide a different angle for people to contextualize their own positions – whatever they may be. Read more

C-61 II: The Empire Strikes Back

The Twitters lit up this morning when Michael Geist announced that the PMO has sided with a more-restrictive/DMCA-esque/C-61 redux approach to new copyright legislation that will be tabled within six weeks.

I have no doubt this is reliable information – but I’m not going to write about it at any length (or with any vitriol) until something is actually tabled. Arguing about a theoretical is almost as big a waste as summarily ignoring a year long national consultation process (zing!).

I don’t hold out any hope that I’ll be pleasantly surprised by the bill (In fact I mentioned several times in last summer’s posts on the copyright consultation that I suspected the real irony of the process was that everyone involved was going to be disappointed – but it’s hard to argue in detail against an unknown quantity.

Obviously, I stand by my longstanding argument that draconian end-user copyright restrictions will take a huge toll on independent content producers in the new media space. Given that it’s not exactly an industry secret, I’m still shocked at how few creators understand that content locks work two ways – preventing piracy (which they don’t do very well) and locking creators out from accessing platform-specific audiences.

I’ll obviously have more to say once the actual legislation comes down (supposedly June-ish).

CRTC Lobbies for Expanded Consumer Copyright Protection

Interesting story c/o Michael Geist that the CRTC filing to the Copyright consultation pretty much asks for the same private copyright concessions I think are a good idea for producers, primarily:

  • time shifting
  • format shifting
  • personal backup

Interesting read.

Cory Doctrow’s Consults on Canadian Copyright, Capice?

So apparently there’s this guy named Cory Doctrow who writes a lot about copyright?

Seriously Doctrow’s submission is fascinating reading as you would expect from a man whose introduction requires four paragraphs just to broach the governing bodies, institutions, universities, and organizations he’s lectured on copyright at.

Biggest shock in the article?

(boingboing.net) is a daily blog with more than 3,000,000 regular unique readers. It is a profitable business based on the creation and dissemination of copyrighted works, and it is hosted on Canadian servers at 151 Front Street in Toronto.

Really nice datacenter, but expensive.

(H/T some guy named Michael Geist)

Progressive Copyright: Aftermath – The Non-Fight

Wait, which one of us is the shirtless sailor in the hat?

Wait, which one of us is the shirtless sailor in the hat?

I just got a bizarre anonymous e-mail from someone who was (I think) interpreting yesterdays “Dead Things on Sticks” as if it was some kind of coded sub-textual-calling-out of everything I wrote on copyright last week.

Firstly, I’m entirely certain if Denis had issue with something I wrote he’d pretty much just say so without the need to concoct elaborate ruses. The man is a highly-skilled writer. Brevity, clarity, imagination and direct communication keep bread on his table. I am a producer, so bombast, wild speculation, and an unwavering belief in Platonic ideals are my stock in trade (the relative popularity of our blogs now starts to make sense).

Secondly, not only is Denis’ post not some “fatal” counter-argument to my posts, I actually agree with most of it.

I think the confusion stems from the fact that I am in favour of shorter copyright terms – which my e-mail author took as blanket support for the “fair copyright / copyfight” movement that Denis was taking issue with. While it’s true I’d like shorter default terms, I also posted that I have no issue with an indefinite copyright – as long as some regular action is required by the copyright holders after a period of time. I don’t even really care about the “fee” system. Make the renewal hitting a button on a website, or sending a post-card to the Library of Canada. I really don’t honestly care if Disney wants to keep Mickey Mouse out of the public domain forever – I care about the vastly larger library of abandoned work which is swept up in gradually increasing terms. Any of my arguments along this line strictly stem from a belief that if a copyright interest had to be actively protected after a period of time (like a trademark interest) no matter how nominally – that would allow almost 100% of creative works to enter the public domain sooner. That rare, profitable, exception? Stay under copyright forever, for all I care.

By the same token my belief in the importance of end-user format shifting doesn’t come from some grand notion that “information wants to be free” it comes from sheer terror of a possible future where there are eight layers of distribution gatekeeper between me and every delivery platform, each wanting a cut out of decreasing revenues.

Improving creator access to works of questionable copyright (or protecting parody or satire)? That’s not because of blind faith that some kind of sustainable free-content delivery model will be found… we just need to look harder – it comes from the fact that in certain situations content creators could have their ability to create strengthened in ways that wouldn’t change any other creators profitability – in whatever distribution model they wish.

None of this is to say that I disagree with some of the tenants of the “fair copyright” movement. Audiences are changing radically. Delivery mechanisms are changing radically. Creative media of all stripes has been very bad at figuring out what this means (because for the most part we want to be creating creative works, and we already do enough stuff in the day that is “not creating creative works”). But as Denis points out – the existing system still allows (some) of us to eat. The proposed system does not. It “may”, but that’s not a terribly compelling argument given the state of my credit card balance.

One last point where, I suspect, Denis and I agree completely is that this argument (while valuable, and nice to engage in) is mostly moot as the most likely bill will essentially be a coat of paint to address distributor interests and ignore both creator and audience issues in their entirely so everyone can go home unhappy.

Progressive Copyright: Part III – Remember when it was about creating content? No? Me neither.

original (uncensored) photograph by Trent McBride

original (uncensored) photograph by Trent McBride

So back in part one of this little jaunt into what a truly “progressive” copyright might actually look like, we looked at how the commercial landscape of media has changed, with (mostly) shorter commercial lifetimes for creative content. In part two we looked at how the audience and delivery mechanisms have changed, generally allowing direct access to a larger audience – but much more fragmented, and with the possibility for much more corporate gatekeeping. So the obvious concluding point is how creative content itself has changed – and how that could be reflected in truly progressive copyright reform.

To make grandiose statements about “the future of content creation” for any field, let alone all creative fields is a little bit above my pay-grade – so I’m going to try and stick to (banal) generalities – but I’m going somewhere – hang in there.

Across the board the following applies to creative content:

  • Technological advance is lowering the barrier to entry
  • Content creation is beoming smaller-scale and more mobile
  • Cross-discipline collaboration is increasing
  • Derivative works are far more common

Nothing earth-shaking there right? In fact you could probably say the same truths have always been applicable to any creative field. They would have applied to Film in the 1920s (or book publishing in the 1500s) as easily as the last decade. But the pace of change is accelerating. In the 80s and early 90s many people were still using the same post-production techniques (with physical film and magnetic tape) that had been used in film for over forty years. In the subsequent time that entire model has been discarded and replaced with a digital video and sound editing workflow – and in the last five years 2k (and now 4k) video and Digital Internegatives have again entirely revamped the concept of “highest quality”. At the same time mash-up, re-purposing, and commentary are far more common. From Mystery-Science Theatre, to the Daily Show, to Todd Haynes seminal “Superstar” – using (and abusing) media in different ways is far more extensive.

The picture I’m trying to paint here is that the landscape for creating content is radically different than it was even ten years ago – and obviously copyright legislation has not even come close to keeping up. Nor is anyone actually discussing how it could keep up given that the act of creating content is now so different. Given what we talked about in part 1 and 2 – why is it that the debate about copyright has been monopolized by distributor interests while creator interests have comparatively little voice? Here’s a couple creator-friendly ideas that would be truly “progressive”

1. Legal protection for Parody and Satire
There are a number of ways that Canada’s “fair dealing” allowances under copyright are far more restrictive than the US’s “fair use”. I was close to making this point “Completely overhaul “fair dealing”. Instead I decided to focus on the two biggest points in my personal hit list – that there’s absolutely no protection for Parody or Satire under Canadian law. While there’s no history of people being prosecuted because of this oversight why is no one talking about the fact that groundbreaking programming like “The Daily Show”, or mid-80s “Saturday Night Live”, or 70s “Mad” Magazine probably wouldn’t meet the letter of Canadian copyright law?

2. Clarification of “Public” Works
One of the biggest headaches for any artist is controlling what is actually “in the frame” and what isn’t. Back when all artists (photographers, musicians, filmmakers) had to work entirely in purpose-built studios it was very easy to control each individual element in a work, but now it is much more complex. I took a photograph out on the street the other day which contained (entirely outside of the subject of the photograph): a billboard, a streetcar, a graffiti mural, a bunch of concert fliers, a guy with a tattoo, someone walking a dog. Who has the copyright in the photograph? [Edit - this was badly stated, what I should have said is "How do I safely use this photograph as, or as part of, a creative work?" see the comments below ] While not the focus of my piece there are dozens of competing intellectual property interests in that photo from the big to the small. If that snapshot became particularly iconic (say like so) how long until all of those elements hinder its exploitation? The tattoo artist’s original design? The couture clothing on the passer-by? This may all seem pie-in-the-sky, but I’ve seen entire films derailed by (for example) a mural artist suddenly surfacing wanting to be paid for a work of theirs on a wall in the background of a shot on a public street… even the question of clearances for large crowds in documentaries is messy. What would be great is clear copyright wording that putting any work in a place generally accessible to the public limits your right to claim a copyright interest in a derivative work. [Edit - I think I also clarify this point better in the comments ] This is essentially how the law works with building architecture, thankfully, so that you don’t need approval from a litany of architects to take a photograph of, say, the New York skyline.

3. “Best Efforts” copyright clearance
This one’s a little radical – but I like it a lot. There is a wealth of material, still under copyright which is essentially abandoned and (because of those increasing terms) not entering the public domain. Wouldn’t it be progressive to set out some “best efforts” guidelines that – if followed, and no copyright holder can be found – would allow an artist to consider that work allowable for them to use? Now I’m not advocating for something willy-nilly, but rather if an artist makes a concerted effort to meet certain concrete guidelines (with appropriate backup to prove what legwork they put in) that would provide them some shelter from a future lawsuit. For example – there’s a song we really wanted to use in a show from a band that broke up. We managed to track down the distributor who suggested, in writing, that given everything he knew about the band that wouldn’t be a problem. We managed to track down most of the band, who were agreeable – but since nobody could locate the lead singer, we couldn’t use it. This one would take a little finessing but could be a major shift in the concept of copyright. Like my thoughts on term, I think that copyright should require some modicum of investment by the creator instead of being an automatic block on use by other creators. That investment could be as minor as being publicly listed in the phonebook, updating your author record with the Library of Canada, or having distributors and publishers have to publicly list a “contact person” when they go out of business.

So there’s just a number of ways that I would love to be discussing a national approach to copyright to solidify the footing for content creators. Unfortunately, as I discussed at the beginning of this series, I’m not terribly hopeful that we’re going to get anything more than the usual annual lip service to the same old distribution gripes – so in a few months we’ll be back talking about media taxes, term increases, consumer rights reductions, American style DMCA provisions and the like.

It’s hard to argue why the public should be passionate about copyright when the debate has been almost entirely steered into a corner that is of interest to such a small subset of (generally) corporate interests (and I don’t mean to imply that the distributors don’t have legitimate grievances… but that any sense of balance between creator and corporate interest has been lost).

Am I hopeful for whatever comes out of the copyright consultation? Not especially, but it would be great to be surprised. Now that would be progressive.

Progressive Copyright: Part II – Whose Content Is It?

photo credit: makelessnoise

photo credit: makelessnoise

So in part one of this three part series I wrote about how the commercial lifetime of content is shorter than ever before (awesome). Now lets look at the equivalent bummer on the consumer side; How content delivery formats are obsolete faster than ever.

This shouldn’t come as a surprise to anyone. Just look at recent history, the venerable VHS format had nearly a thirty year run before being deposed by the “next best thing” (to say nothing of vinyl records eight decade run as king-of-the-hill for audiophiles). DVD, on the other hand (while still going strong) is less than ten years old as a widespread commercial format. Poor old UMD barely lasted three years (as a movie format, I know it’s still hanging on, sort of, as a software format). Then we look to a myriad of digital codecs and wrappers all of which are constantly evolving. Heck even a set standard like “high definition television” can barely go a few years without changing (from >480i to 720p, to 1080i, to 1080p, to 2k, to 4k…).

All of this is to say that if I ever dug out my old Iomega Zip Drive and got it running (and could find a compatible computer with a SCSI port to connect it to, and an operating system that would recognize it) I’d STILL have a hard time finding a player to handle whatever variety of RealMedia was popular ten years ago.

Consumers have been very well served for years by the provisions in various copyright legislations that allow for making “backups for personal use” (or similar) of works they have legally purchased. While these clauses were initially put in because of the unreliability of new media formats (early tape-based media was really unreliable – they’d snap all the time, so you better make sure you made a dub of your wedding before you sit down to watch your irreplaceable cassette) they instead came to serve as proxies for protecting consumer interest in maintaining the ability to view and transfer legally purchased media.

So what would a truly progressive copyright legislation do to address this?


2. Enshrine the consumers right to transfer their interest in a work they have legally purchased to any format they choose (and are able) to.

This isn’t just semantics. The “Holy Grail” for many (short sighted) content producers is to sell consumers the same product as many times as possible (hey someone bought the Beatles on LP, 8-track, cassette, MD, CD, DVD 5.1, DVD 7.1, and Beatles: Rock Band…) but this is leading us to a very scary tipping point. As I wrote, extensively in relation to bill C-61 limiting private, non-commercial usages of legally-purchased works enhances the power of the distributors and decreases the power of the content producers. This creates a situation that encourages platforms to be more closed, creators to have far less say in how their work is distributed, and the majority of the profit goes to the gatekeepers who control access to audiences, not the actual copyright holder.

Plus this type of ecosystem would encourage the creation of formats, devices, and platforms that are similarly closed and controlled, because – hey – big bucks to be had.

The prime example I usually give to explain this point is that I can, currently, sell a DVD on my website and know that it’s going to be appealing to people with DVD players, computers, iPods, PSP’s, those cool Archos player-things… in short a huge percentage of the potential video-watching market.

If audiences are restricted to only view content on the format that I deliver it to them (DVD players), I now have to negotiate a litany of deals with a number of distributors if I want to reach a similar audience (except each of those gatekeepers will want a significant cut of revenue for the privilege of access to “their” audiences).

As a content producer, I’m profoundly unconformable with the latter scenario. I don’t want to <em>have</em> to do a deal with Microsoft to sell a video to someone with an XBox. I don’t want to have iTunes being the only allowable source of media for iPods. If future platforms close for consumers, they close for creators as well – likely permanently because there’s little interest in platform owners for doing “one-off” deals (talk to any band that’s ever tried to get a <em>single </em> album on iTunes directly – they have to go through aggregators who cut bulk deals – and take an additional profit share).

By the same token this is brutal environment for customers. Why should I buy *anything* when it’s likely the format or platform is going to be obsolete within a few years? When the PlayStation4 comes out, what happens to my “Rock Band” music?

While buying a DVD of a movie doesn’t give me the right to do whatever I want with it, is it unreasonable to think I should be able to privately watch that movie a few years later? And is it unreasonable to think that I might have to port that movie into a different format or platform than the one I originally purchased it for in order to do so?

So for truly progressive copyright legislation let’s actually call a spade a spade and put that in the law. No more arguing if ripping a DVD to an iPhone constitutes “making a backup” – go ahead and make sure the consumer right to migrate their data is clear. That may mean allowing circumventing copyright protection, provided that the intent isn’t to infringe. I know producers cringe at that but they’re not seeing the real boogeyman on the other side, which is that every controlled platform is one they can’t easily access. Without this protection “buying” legitimate product becomes, essentially, a longer-term rental – and far less desirable to consumers, creating a chilling effect on all legitimate media sales.

By the same token, allowing users the right to port their content encourages platform and device makers to embrace that portability. What are you going to buy – a future media player to which you can easily import your existing songs and movies, or one where you’ll have to re-buy everything in some weird proprietary format that probably won’t be around a year from now? Open formats also encourage legitimate purchases as an investment in a library that has more than a shelf-life of a few months or years.

This is a win/win for both content creators and content audiences – and ensures that both have can benefit as platforms, formats, and delivery mechanisms continue to evolve at a breakneck pace. Sounds progressive to me.

Tomorrow – Fair whatnow?

Progressive Copyright: Part I – Term Limits for Everyone

C is for cookie

C is for cookie

I’ve been staying out of most of the hubub surrounding the government’s copyright consultation partly because I’m trying to save energy for looking at actual proposed legislation (which is where the battle-lines will really matter), and partly because I’ve been busy. It’s not that I don’t appreciate the veneer of “public consultation” by the government in this go round… I’m just very, very, cynical given the last two attempts (to be fair, by two entirely different parties).

However, I do think it’s important for all Canadian’s to discuss what their ideal copyright approach looks like… and it does say “copyright” up there in the header so I’d be a hypocrite not to at least lay out some initial thoughts as we start this, likely, long process.

While I certainly have lots of thoughts about policy minutia (to WIPO, or not to WIPO… notice and notice vs. notice and takedown… etc) I think what I’d really want to focus on is the broad-strokes of three areas where copyright legislation could actually be “progressive”, and almost certainly won’t be. And this week I’ll look at each of them in turn.

First off, the standard disclaimer (which everyone ignored in the C-61 flamewars): I make the majority of my living from the exploitation of copyright works. Something north of 80%. And I spend most of my free time creating copyrighted works. I enjoy selling copyrighted works for money. Lots of money.

It’s not that I don’t enjoy being repeatedly called a piracy apologist, or whatever, but the fact that I’m entirely dependant on strong, enforceable, copyright to buy groceries isn’t exactly a big secret.

1. Reduction of overall copyright term

Yeah, I know this one isn’t going to make me many friends with the brotherhood of producers and distributors, but the dirty little secret of the industry is that in the vast majority of cases the exploitable commercial life of content is far shorter now than it has ever been.

Back when the groundwork for this magical concept of “copyright” was laid out, it took a long time to fully exploit a work. If you were an author, publishing a book globally could often take your lifetime (and beyond) as it involved negotiating deals with a litany of companies that controlled very small geographic territories. Film was no different – producers literally used to be able to throw a single print of their film in the trunk of a car and drive it from territory to territory showing their film at each in turn (heck even producers as recent as Uwe Boll and Warren Miller started this way). Once a country was tapped out, you could then go to the next country, and the next, and then rental video sales, and then home video sales, and finally television and library sales. It was a long process.

A digression – this is also why so many industries still have such archaic region controls. I remember visiting England in 1995 or so and the amount of films that were out in the UK, but not Canada was mind-boggling. I would have spent a small fortune on movies, if it were not for the pesky PAL format (which begat region-coded DVD’s).

The new reality however is that theatrical releases are often (close to) simultaneous. Non-US distributors often want to benefit from the massive PR machines of the US studios, and therefore want to release films as close to their US openings as possible. Similarly home video and television licensees also now want to get product to market as close to the theatrical window as possible. The constant influx of new movies and the move to “event” cinema (you don’t go “to the movies” you go “to see movie X”) means films are staying in theatres for shorter times (runs of five MONTHS or longer were possible in the 40s and 50s when popular films would play in a limited number of movie houses – currently there isn’t a single film in the top 10 box office who have been running for more than 5 weeks… and almost all films with more than a 15 week run are IMAX or 3D films which are the exception which proves the rule as there are so few of them, comparitively).

Even “library” sales (bulk distributor sales for things like discount DVD, Hulu, on-demand video, iTunes catalog titles…) are a fraction of what they once were, even if the overall sector is growing. Just to make up some numbers – If iTunes doubles the number of available movies – and profit increases 25% – each movie is making 40% less. And unless you have an infinite number of movies, the trend will just continue. Now add in there isn’t just more movies available on-line, but also on television, on pay-per-view, at retail, on specialty websites and the trend just gets worse. The “pervasive” video library (all films an individual consumer has access to, through all channels, in all media) is exponentially larger now than 10 years ago, and therefore the overall value of each has substantially decreased. This is kind of a “reverse long tail” situation. Certain, niche, works have much more access to audience than ever before, but the corrolary to that is an overall decrease in value of all individual films. The more titles available in *any* media in perpituity, the less likely you are to make any noticeable revenue off them.

So if you combine all of this into one package, you’re left with the result that the “commercial lifetime” of a creative work (and I have no reason to beleive that literature, music, and computer software don’t follow the same overall trends – if not the specific waypoints) is shorter than it’s ever been… and yet copyright terms continue to be lengthened as a nod to “progressiveness”.

The fact remains that lengthy copyright terms are in the best interests of a very small number of copyrighted works – the Disney’s, and “Harry Potters” and “Lord of the Rings” of the world – while for the vast, vast majority of copyrighted works the commercial potential of them are very short (there are, obviously exceptions – early works of artists who later gain notoriety are a prime exception, such as visual artists (painters, sculptors) – but in these cases there is also often physical scarcity of their works).

The unintended consequence of continually lengthening copyright is, of course, that works never enter the public domain. I’ve written before that a huge percentage of our cultural heritage (particularly film, radio, and television) are rotting away in storage because no one wants to take the risk of refurbishing them only to have “submarine” copyright holders surface. This has been especially troubling in the case of film restoration and archiving in the US.

It’s also ironic that as, culturally, we create more (and more interesting) ways to “mash up” and re-purpose existing media works, we’re making it harder to access the raw materials to do so (I’m going to talk about this a lot more in Part 3 of this series).

A truly progressive response to this global situation would actually be quite easy: Drastically reduce the standard period of copyright (I don’t think 15 years from date of release is out of line personally), but make copyright constantly renewable in 5 year increments thereafter for a nominal charge. In this way the valuable, corporate, properties such as Mikey Mouse, who still have exploitable value, can be protected (heck extend copyright indefinitely if the owner is willing to keep paying the renewal) while the vast majority of works enter the public domain much sooner than they otherwise would when they are, by all likelyhood, exploitable.

The huge growth of voluntary copyright licensing schemes such as Creative Commons shows that the creative sector can be educated in the value of voluntarily relaxing their copyright interest in the project (for both their good, and the broader public interest) so why not mirror that same growing principle in legislation?

Now THAT would be progressive.

Up Next: Consumer Rights in the 21st Century