Copyfight

Canada's copyright laws are about to be overhauled, and everyone has a different idea to balance commerce and creativity. The gloves are off

By Ivor Tossell

On Tuesday December 9th, 2008

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On a cold December day in 2007, federal Industry Minister Jim Prentice was hosting a holiday open house at his Calgary constituency office. Despite the festive season, Prentice found himself surrounded by about 60 parka-clad activists — reporters, cameras, and microphones in tow. Instead of holiday cheer, they came with questions about Bill C-61, a bill amending Canada’s copyright laws. It’s hardly an issue you’d expect to be the cause of civil unrest.

At Prentice’s pancake breakfast at the Calgary Stampede the next fall, the protesters were back. This time they had placards and T-shirts that read, “Bill C-61 makes everyone copyright criminals!” and “C-61 Anti-Competitive.” The protesters included software engineers, teachers, and dreadlocked university students — a few of them even lined up for pancakes.

Not long ago, a copyright protest would have seemed like a piece of absurdist parody (“Actuaries of the world, unite!”). But the federal government has made it clear that it intends to rewrite Canada’s creaky copyright laws, and in a world awash with media, everyone has something at stake. Creators want to be paid for their creativity, while consumers want to enjoy, share, and re-purpose it. Copyright has never been as clear as property rights, and deciding what’s legal hasn’t always been easy. In fact, it’s turned into a very public, very bitter tug-of-war — an out-and-out copyfight.

Copyright is all about copies: who’s allowed to make copies of a creative work, and who’s allowed to sell them. In Gutenberg’s day, making copies meant owning an expensive printing press and having access to distribution. Not anymore. In today’s digital world, the duplication of media is fast, free, and easy. In less than a decade, new technology and the Internet  haveupended entire industries (hello there, music and journalism), and the question of copyright has taken on a new urgency.

“You can think about copyright law like rules for other marketplaces, like the securities market or the business market,” says Barry Sookman, Co-Chair of the Technology Law Group and partner at McCarthy Tétrault. He has argued copyright cases before the Supreme Court and is a vigorous supporter of stronger copyright laws. Without clear laws, he argues, investors don’t invest, and creators have little incentive to create. According to Sookman, the net effect is a stunted culture. “If you don’t get anything produced in the first place, you don’t get to that second point of saying, my God, they’re being restricted.”

But technology’s effects on the copyright debate didn’t begin with the Internet. “This is an old, old song,” notes Howard Knopf, a lawyer and copyright commentator who practices with Macera & Jarzyna LLP. “The piano roll was going to put composers out of business. And then radio was going to put performing musicians out of business. Television was going to put talking films out of business. Believe it or not, there was an effort to stop the long-playing record.”

Rewriting Canada’s copyright laws is not just about preventing teenagers from downloading music or ripping movies to their iPods. It’s about how we protect and encourage creativity. But the answers are not easy.

Should copyright holders be able to sue those who violate copyright for huge statutory fines? South of the border, the Recording Industry Association of America (RIAA) has sued thousands of people for sharing music online. In Canada, media companies and distributors worry about lost revenues from file sharing, and warn that their industries will collapse without a real deterrent. Others believe that the model for traditional media sales has changed, that file sharing actually drives sales up, not down, and that the industry has to change to survive.

There is also a larger debate about creativity. “Copyright was intended as a replacement for patronage, where you only got to make art if you could convince some rich and powerful person to fund it,” says Cory Doctorow, co-author of BoingBoing.net, and an advocate for more open copyright legislation. “But as copyright’s monopoly on expression has grown ever more concentrated, we’ve come full circle to a system of patronage that puts four record companies in charge of several genres of music. This does not serve artists, creativity, or culture.”{mospagebreak}

Faced with the possibility of more restrictive copyright, Doctorow argues that more open copyright is vital to encourage artists to create. “Copyright is like salt: a little bit can make the stew, too much can ruin it,” he says. “Every author who relies on copyright to protect a work also relies on its absence when drawing on other works.”

There’s not much agreement on the way forward, and it’s not even clear who’s on which side. Most big media companies and creators’ associations want stronger copyright, but a number of Canada’s big-name musicians, like Sarah McLachlan and Sam Roberts, have thrown their support behind the Canadian Music Creators Coalition that advocates for fewer restrictions. And now many big online companies — including Google — have formed their own ad hoc alliance, also asking for more flexibility for consumers.

In 1998, the US tried to bring its copyright law into the Internet Age with the notorious Digital Millennium Copyright Act (DMCA). The DMCA provided the legal clarity that Canadian law still lacks, but 10 years later, its merits are still being hotly debated. Among other things, it has allowed the recording industry to sue file sharers by the thousands. The labels’ Canadian trade organization, the Canadian Recording Industry Association, declined to be interviewed for this story, but in the past it has demonstrated an eagerness to sue pirates. And that has some people nervous.

If one thing is certain, it’s that Canada’s copyright laws are about to change. In 1996, Canada signed an international treaty pledging to clarify copyright, but still hasn’t followed through (much to the chagrin of our trading partners to the south). The last time Canada fully overhauled its copyright law was in 1997, the same year when university students discovered the MP3. By 1999, they were using Napster to download millions of songs. Napster was shut down by court order only two years later for massive copyright violations, and in the years since, digital copyright in Canada has languished as a patchwork of old laws, minor amendments, and court rulings that fail to answer basic questions of what’s legal and what’s not. {mospagebreak}

When students arrive in Giuseppina D’Agostino’s class on intellectual property at Osgoode Hall, iPods in hand, she doesn’t detect much awareness of the applications of copyright. “They have no concept of what they can do with copyrighted work,” says the assistant professor, who has written extensively on the subject. “They think it’s all fair game. I don’t think that’s the way forward, I really don’t.”

D’Agostino echoes the voices of dozens of creators’ groups, worried about the emergence of a “free-everything” culture that assumes if something’s on the Internet, it’s free for the taking. The pervasiveness of that attitude can leave advocates for stronger copyright laws feeling like they’re fighting against culture itself.

“A smart approach to copyright law recognizes that copyright is key for allowing creative industries to flourish,” says Jacob Glick, Canada Policy Counsel for Google. “But it’s not a mutually exclusive distinction between users’ rights and content owners’ rights. Copyright doesn’t have to be a zero-sum game.”

For example, in 2006, Google acquired the video sharing website YouTube for $1.65 billion. YouTube has struggled with copyright issues as users often post content that incorporates copyrighted material. Now, rather than remove content that infringes on copyright, Google offers the rightful owners (read: major Hollywood studios and huge record labels) the opportunity to advertise beside the “offending” content.

“The whole culture of sampling, remix, and parody exists precisely because of exceptions and limitations to copyright,” says Glick. “The ability to use copyrighted works in news reports or in criticism exists because of limitations to copyright. Smart copyright tries to recognize the need to provide remuneration and business cases for creation, while encouraging mash-ups, remixes and parody and other cool stuff.”

“We ought to recognize that copyright is not the only incentive to creativity,” says Michael Geist, leaning over a table at a tiny, packed Second Cup on the University of Ottawa campus (“his second office,” noted a colleague).

Geist started speaking up on the subject 2001. At that time, DirecTV, an American satellite-TV operator, was fighting to stop Canadians from decrypting its signals. At a townhall-style hearing in Ottawa, DirecTV representatives were complaining that only a fraction of Canadian companies were complying with the takedown notices it was issuing, notices issued under US copyright law, not Canadian.

“They were really concerned that only a small percentage of Canadian providers were paying attention,” Geist says, radiating incredulity seven years after the fact. “I said, ‘I’m really concerned. A small percentage of Canadian providers are following US law here!’”

It’s this combination of home-and-native-land indignation, policy wonkishness, and outright persistence that’s made him one of the country’s biggest proponents of what you might call user-friendly copyright. At the age of 40, Geist is a syndicated columnist, a filmmaker, a prolific blogger and, with an active assist from famous bloggers like Doctorow, a minor Internet celebrity. He’s become a facilitator of public protest, a travelling lecturer, and the Canadian media’s go-to guy on copyright — much to the consternation of those who don’t share his views.

Geist isn’t a free-everything activist (of which there are plenty on the Internet). But he has argued loud and long that overprotection can be as dangerous and innovation-stifling as underprotection.

Geist argues that users’ rights to use copyrighted works for fair purposes shouldn’t be restricted by contracts or digital locks. His vision recognizes that, like it or not, users are increasingly becoming creators in their own rights. With the advent of “Web 2.0,” the technological barriers to accessing, altering, and rebroadcasting copyrighted material have evaporated. And, adds Geist, “what used to be a relatively small community of geeks became us. It became the Canadian public.”{mospagebreak}

It was Geist’s Fair Copyright for Canada Facebook group that coordinated that protest at Jim Prentice’s holiday party and the group has since grown to over 92,000 members — citizens who have become sensitive to the copyright issue by virtue of being in the thick of it.

But where Geist sees popular support, others see populist pandering. Indeed, the debate has become increasingly acrimonious within the copyright community, where everyone seems to believe that their vision of copyright is the one that’s truly “balanced.” On one hand, some in the user-centric copyright camp say there’s a chilling effect against anything that might make them sound anti-copyright, since at most IP firms, the fees are being paid by large content owners. On the other, lawyers who side with the entertainment companies get demonized, especially on the Internet, where they’re routinely painted as industry toadies.

“It’s the most emotional of areas,” says D’Agostino. “You see that in all parties that have a stake,  even among the academic community. If you’re not supporting the user, you’re ostracized.”

With both camps massing on the policy battlefield, the government’s plans are being hotly debated. In 2005, Paul Martin’s Liberal government introduced a copyright reform bill, which died on the order table, along with Martin’s minority government in November of that same year. Under Stephen Harper’s Conservative government, Prentice introduced Bill C-61 last June, which was panned by Geist and other advocates of more open copyright, but widely supported by the entertainment industry that, if anything, felt it didn’t go far enough. When a fall election was called, the bill met the same fate as its predecessor.

With the Tories re-elected, the process begins anew, as the Harper government has committed to reforming copyright law. Canada being what it is, the question on everyone’s lips is whether we’ll wind up with an American-style copyright regime. In some ways, we should be so lucky. American law provides much stronger provisions for “fair use,” allowing, for instance, the use of copyrighted clips for the purposes of parody, something Canadians can’t do. (Jon Stewart just couldn’t do “The Daily Show” in Canada.) The Conservatives’ initial copyright bill, however, didn’t include any provisions for parody.

As for the prospect of rampant lawsuits, it’s anyone’s guess. In the US, record labels have sought outlandish amounts to both punish file-sharers and make up for perceived lost revenues. The Tories’ first bill put an upper limit on statutory damages — the arbitrary fees set in cases of copyright infringement where it’s difficult to calculate the exact value of the damage at hand — but the rules were so complicated, even Prentice couldn’t explain them all when questioned in a live CBC radio interview.

Perhaps the most disconcerting outcome of stringent copyright legislation is the possibility that the law will fall out of sync with activities that many Canadians consider fair and harmless, like “unlocking” an iPhone, ripping a newly purchased DVD, or posting a tribute video of a favourite show to YouTube. “There are lots of laws like that, and they tend to put the law into disrepute,” notes Knopf. Digital life will go on, no matter what kind of copyright law gets passed. The question is whether it will go on thanks to that law — or despite it.


Illustration by Kagan McLeod