Laurel L. Russwurm's Free Culture Blog

a writer, the copyfight and internet freedom

Posts Tagged ‘USTR

C-11 ~ Copyright: Fallacy #2

with 7 comments

“Wasn’t the whole purpose of copyright to allow artists, musicians, and authors to make a living?”

@coyo

Well…. No.

Although the privilege of copyright was granted to writers (and later extended to other creators), they had a very limited ability to make copies.  A writer could copy the manuscript by hand and sell copies to anyone they met.  The printers had the expertise and the control of the expensive equipment, so right from the start the creators were disadvantaged, writers had no choice but to assign this “right” to the distributors.

Although the supposed justification for copyright is to allow creators to make a living, in practice the monopoly allowed the Stationers (or Booksellers, Printers, Publishers &tc.) to generate revenue and control publishing.  Copyright succeeded so well for so long by giving the appearance of existing to benefit the creators.   Creator support ensures that the market – the audience – honours copyright.

As time went on, creators wound up with ever decreasing power over this supposed privilege, while the distributors — now called publishers — accrued more and greater power, which they used to dictate terms to creators.  The problem was that printing was only part of it; the distribution network was the other side of the equation.

More and more of our cultural pursuits have come under the “protection” of copyright.   The music recording industry is the worst for creators, as many (most?) musicians were forced to give up their copyright in order to secure a recording contract.  For all but the biggest stars, the effect is to  thrust most recording artists into indentured servitude.   Because of this, more and more musicians choose the independence now possible with affordable recordings and Internet distribution.  Before the Internet, CRIA controlled the recording industry in Canada; but 30% of the Canadian Industry was independent by 2010. It isn’t piracy that threatens the legacy distributors, it’s competition.

In today’s Canada we also have a proliferation of copyright collectives which have devolved onto yet another “middleman” with a hand in the copyright till.

The only way for creators to access the funds owing them as a result of the copyright monopoly is by way of copyright collectives, which is why copyright collectives lobby for stronger, longer copyright.

Perhaps initially these collectives actually represented the interests of creators, but judging from the lobbying they engage in today, it seems pretty clear these collectives are primarily interested in their own needs.

Making it appear that copyright benefits the creators is a great way to have creators support

Both the technological revolution ushered in by plummeting copying costs and the Internet threaten the corporations and copyright collectives.   Corporate interests want to regain absolute control of their industries while copyright collectives want to regain absolute control of their respective workforce.  Both are threatened with obsolescence due to  rapid growth of independent creators that threaten the old fashioned business models.

In response to this threat both special interest groups have been lobbying governments around the world to use legislative means to turn back the hands of time.   Canada’s draft copyright legislation new copyright legislation will vest absolute power in Technological Protection Measures (TPMs) and give in to these demands with Bill C-11, which is ironically called “The Copyright Modernization Act.”

There is Still Time to Say “No”



[This is the second in my C-11 Copyright Series. Canada’s majority government is poised to pass Bill C-11, the co-called “Copyright Modernization Act” in spite of unprecedented Canadian opposition. The tragedy is most Canadians are unaware of copyright issues and don’t yet realize the growing impact it exerts over our daily lives.

This is the second in my C-11 Copyright Series:

Copyright Update: C-11 and ACTA

with 2 comments

Canadian DMCA logo

Fortunately Bill C-11 has not yet become law.

Yet.

Unfortunately it is only a matter of time before our majority government passes this misguided “copyright modernization” legislation currently called Bill C-11.

[This is the exact same law that was called Bill C-32 by the previous Conservative Government. Earlier incarnations were known as Bill C-61: An Act to amend the Copyright Act (by the Conservatives), and Bill C-60: An Act to amend the Copyright Act (by the Liberals).]

Although Canadians have mounted waves of opposition against each succeeding incarnation of a “Canadian DMCA,” both Liberal and Conservative Canadian Governments have attempted to pass copyright legislation that’s clearly against Canadian interests.   Initially there was only supposition that the various drafts of a “Canadian DMCA” were produced in response to American pressure.  After all, the USTR has been spreading misinformation about supposed Canadian piracy for years, in spite of the fact that the American DMCA has not stopped American digital piracy levels from being far higher than ours.   Thanks to Wikileaks it is no longer an unsubstantiated guess: the Canadian government wants only to pass a Copyright Law that will make the American Government happy.

Four different Canadian Governments led by our two traditional ruling parties have tried to accomplish this, the previous efforts failed due to a combination of opposition and politics.

But this time it is different: our majority Conservative Government can pass anything it likes.

The only possible way to stop it is for public outcry.  The problem is that most Canadians still don’t know this is happening or why it is important or what it will do.  The mainstream media coverage has not helped raise awareness because their corporate masters have a vested interest; after all, the MPAA and RIAA (through its branch plant formerly known as CRIA) have a very long reach.

TPM, DRM, Digital Locks

DRM technologies attempt to give control to the seller of digital content or devices after it has been given to a consumer. For digital content this means preventing the consumer access, denying the user the ability to copy the content or converting it to other formats. For devices this means restricting the consumers on what hardware can be used with the device or what software can be run on it.

Wikipedia: Digital rights management

The single reason that Bill C-11 will be so devastating is that it sets TPM (Technical Protection Measures) as the most powerful element of Canadian copyright law.   TPMs (also known as copy protection) are the main weapon used in the DRM (Digital Restrictions Management) arsenal, and are commonly referred to as “Digital Locks” in Canada.

Whatever you call it, it will be terrible for Canadians.   It won’t matter if a person has legally purchased a copy of an eBook,  game, a movie or music, if Canadians need to circumvent TPMs in order to read, play watch or listen to our own legal copies, we will be breaking the law.  If I want to watch a movie DVD on my Linux computer, I won’t be able to.  Linux users will be forced to switch to Apple or Windows operating systems of they want to watch their DVDs.  If I want to format shift any digital media I’ve purchased so that it will play on the device of my choosing, I won’t be able to without breaking the law.

Does this mean it will be illegal to have my printer’s ink cartridges refilled with off brand ink? Probably. I was foolish enough to buy a printer that has computer chips in its printer cartridges. The chip tells the printer not to work because a certain amount of ink has been used or the printer cartridge is too old. Bypassing that programming may well be considered circumvention of the manufacturer’s technical protection measures. After all, to be protected under the new Bill C-11 Copyright Law, TPMs won’t have to be tied to any actual copyright infringement or criminal wrongdoing.

This is not a good thing for consumers.

Once this law is passed, I imagine that it will be only a matter of time before every digital device and most software destined for the Canadian market will be tightly locked in DRM.  Further, as a self publishing Canadian writer, my further concern is also that digital locks may well be used to limit distribution of my own work.

Why did Canada sign ACTA?

The speed with which digital innovation and the Internet have set the world on end is unprecedented; even Malcolm Gladwell, one of Canada’s brightest sons doesn’t get it. So I’m inclined to think that the largest problems is that most of our government doesn’t understand the issues.

It is unreasonable to expect elected officials to understand everything. They are only human, after all, and so they can’t. What they must do, is to find out about each issue as it arises, and the fastest way to do this is to consult with the experts. The problem that has arisen is that the experts governments the world over rely on when forging laws to govern this new technology are the mainstream media. And the mainstream media has a clear and present interest in both copyright and and controlling technological innovation.

It is very possible that C-11 is intended as a law to allow Canadian compliance with the dreadful ACTA Trade Agreement.

The world wears Mouse ears and reads ACTA attacks Internet is the La Quadrature Du Net ACTA Logo

ACTA is one more offensive against the sharing of culture on the Internet. ACTA (Anti-Counterfeiting Trade Agreement) is an agreement secretly negotiated by a small “club” of like-minded countries (39 countries, including the 27 of the European Union, the United States, Japan, etc). Negotiated instead of being democratically debated, ACTA bypasses parliaments and international organizations to dictate a repressive logic dictated by the entertainment industries.

ACTA, a blueprint for laws such as SOPA and PIPA, would impose new criminal sanctions forcing Internet actors to monitor and censor online communications. It is thus a major threat to freedom of expression online and creates legal uncertainty for Internet companies. In the name of trademarks and patents, it would also hamper access to generic medicines in poor countries.”

La Quadrature Du Net

Although Canadian negotiators were included in the secret ACTA treaty negotiations, sitting members of parliament and the public were deliberately kept in the dark as to what ACTA was about. Although ACTA is supposed to stand for “Anti-Counterfeiting Trade Agrement” the prime reason for its secrecy was the copyright law provisions.

Among those who are aware of ACTA, its agenda is believed to be that of the American movie and music industries. These Industries have been investing unprecedented amounts of time and money in attempts to coerce sovereign nations around the world to enact copyright laws beneficial to their special interests.

In spite of the fact that the final round of ACTA negotiations failed to achieve consensus in the secret negotiations, some time later Canada went ahead and signed the treaty anyway. The European Parliament signed ACTA a few days after the SOPA protest, but it must pass a plenary vote this summer before it will be official.

Oh! Canada: Memo to World: Stop ACTA Now!

Stop The Canadian DMCA

NO Canadian DMCACopyright law has always been concerned with Intellectual Property, but Bill C-11 strays into the realm of physical property. A law that prevents citizens from making personal use of our own legally purchased media on the digital devices of our choices strays beyond the realm of intellectual into the realm of physical property. Making all circumvention illegal is equivalent to putting citizens in jail for breaking into our own home of we’ve inadvertently locked ourselves out.

Bill C-11 is *not* in the Canadian interest.

More information can be found in my Oh! Canada article
“Bill C-11 Backgrounder: A Brief History of the Canadian DMCA” and What to do about Bill C-11 ?

Technical Aspects: check Russell McOrmond’s Conservative Copyright Bill C-11

Legal Aspects: Michael Geist – latest post includes the video short Strombo’s Soapbox: My Take on Bill C-11

Bill C-11 Status

Keep up with the status of this problematic draft legislation by checking LEGISinfo.

“Inconstant Moon” update ~ CC by-nc-sa

with 5 comments

Inconstant Moon BANNER

Glyn Moody directed me to an article taking aim at non-commercial Creative Commons licenses, miscellaneous factZ: Creative Commons and the Commons.

Rufus Pollock makes some interesting arguments, and points out a possible problem in the Creative Commons organization: that it is an independent hierarchical organization, and unaccountable to anyone, really. Still, what was most ironic to me was his interest in removing data(base) material from the public domain (which impacts on his work) while advocating elimination of the noncommercial option from CC licenses (which impacts on mine).

my choice

As a writer about to self publish my first novel, I have considered carefully, and chosen to license it with a Creative Commons Attribution-Noncommercial-Share Alike 2.5 Canada, or CC by-nc-sa.

Creative Commons by-nc-sa button

This license allows any type of remix desired save commercial. I think all cultural material should be absolutely free for personal use.  Personal use must be sacrosanct for culture to grow.

Since I’ve been mulling over and learning about copyright over the past few years, I’ve become an advocate of free culture. I’ve learned a lot, beginning with the copyright consultation submissions made by thousands of Canadians (who were led to believe that the government was interested in what citizens felt to be important in any new copyright law*), and from reading, and having online discussions with many people.

challenging perceptions

Drew Roberts is a multi-disciplinary creator who passionately champions free culture, going so far as to publish his NaNoWriMo novels as he writes. His credo is “Free the Art and Free the Artists.” Although I admire his bravery, for myself, no one reads a word I write until I am satisfied with it. In his inimitable way, the eminently reasonable Drew has gently encouraged me to release Inconstant Moon without the non-commercial restriction.

I’ve also had discussions with copyright abolitionist Crosbie Fitch, who naturally looks askance at the very idea of self publishing, as he feels that all published art and creativity rightfully belongs to everyone, and should be firmly in the public domain. Not that he thinks artists should be denied the opportunity to make a living, just he thinks that they should be paid properly first, but once art is released into our culture, it should be free to copy.

Both Drew and Crosbie are highly intelligent, informed, committed and passionate about the issue, and I’ve learned a great deal from them both. But still, these are radical ideas. Change is difficult. It takes time for new ideas to be understood, and take root. So like many other independent creators today, I am feeling my way in an attempt to decide what combination works for me.

Yet I believe very strongly in the importance of the public domain and the commons.

I may at some point decide to venture the release of a novel without the noncommercial restriction, but not this time. The law of my land (Canada) places all IP under full copyright by default, and contrary to what our American neighbors contend with their absurd USTR propaganda, existing Canadian copyright law is both “stronger” and more restrictive than is good for our culture. Canadian culture is fighting its way to freedom from all the restrictions imposed by both corporate special interests and copyright collectives wanting to lock down our culture even further through the imposition of bad laws and DRM.

If creative commons licensing did not exist, the only choice available to me as a creator would be to publish my novel under full copyright restrictions. I don’t want that. But again, I am trying it on, seeing what’s what, whistling in the dark.

Creative commons double c enclosed in a circle, with black text at right reading Creative Commons and in red dot CA

Lately there has been talk floating around that Creative Commons licensing is too confusing. It is certainly more confusing than outright copyright abolition would be. Some people feel more strongly about various elements of Creative Commons licenses. Like Rufus Pollock, many people think that the Noncommercial restriction should be dropped altogether. Others, like @openuniverse, believe there is no place in the Creative Commons for a “no derivatives” restriction. Others feel share-alike is too restrictive.

Rufus suggests that since most Creative Commons licenses are designated noncommercial, we should be dropping it altogether. He thinks people are dazzled by the Creative Commons “brand” and thinks that it should all be perfectly interoperable. But what Rufus doesn’t look at is the only way for all IP to be perfectly interoperable is Crosbie’s way: through the abolition of all forms of copyright. Crosbie is perfectly correct: the only perfect cultural interoperability is to be found in the Public Domain. Because for some, even a compulsion to provide attribution is too onerous.

[I confess I am looking forward to sinking my teeth into Crosbie's "The 18th Century Overture · A Crescendo of Copyright, Natural Finale and Reprise" as soon as this novel distraction is in hand.]

Inconstant Moon Cover Art

The point is, it shouldn’t be up to Rufus or anyone else to tell me how I can or cannot release my own creative work.

Existing copyright has long since ceased to be beneficial to creators (if it ever really was). And it is because existing copyright law is both dictatorial and stifling that creators have begun to reject it. Creative Commons licensing offers a work-around that allows creators to get free of the yoke of copyright.

The reason Creative Commons is so successful is precisely because it offers all these choices. It is the variations in licensing that gives creators the confidence to release our work in this fashion, in the way in which we feel most comfortable, rather than allow the status quo of full copyright.

Something to remember is that once work is licensed, the license can only be altered to make the work more free. So in many ways, it seems more natural to begin with a more restrictive license. After all, it can always be lightened later.

As beneficial as I believe Creative Commons licensing to be, my concern is that restrictive license provisions will remain in place as long as the current copyright terms. Which can only be a disaster for the Public Domain.

And one of the most harmful aspects of existing copyright law is the ridiculous terms. It shouldn’t outlive the creator, nor should it be transferable, particularly to inhuman corporations. That’s a large part of why copyright has become such a problem today; corporate interests do not coincide with creator interests.

So I’ve decided to put my money where my mouth is. I really don’t know what will happen.

Although I believe it to be good, “Inconstant Moon” may or may not generate income.

Either way, it is my test case. Regardless of how well it does,

“Inconstant Moon” goes into the public domain 5 years after publication.

Creative Commons Zero or Public Domain logo

I want to do this for two reasons.

First: because I truly believe that a strong and healthy public domain is essential for all of our shared culture as human beings.

But my second reason for emancipating my work is far less altruistic: I want to give my creative works a fighting chance of surviving me.



* The later unveiling of Bill C-32 indicated a total disregard for the feedback provided by Canadians in the Copyright Consultation.

Image Credits
All Creative Commons logos licensed by Creative Commons with a Creative Commons Attribution 3.0 License

Inconstant Moon banner and cover art Creative Commons Attribution 3.0 Unported (CC BY 3.0) lothlaurien.ca

Canadian Copyright is a Canadian Affair

with 6 comments

Copyright symbol with maple leafIt seems that the pressure by the American copyright lobby to dictate Canadian Copyright law is again mounting.   Of course I’ve been trying to work on my novel and so didn’t realize this was happening.

My first inkling was a Michael Geist tweet:

michaelgeist EFF & PK warn against using USTR Special 301 process to sanction countries for not implementing ACTA http://bit.ly/cBtQvV

Nutshell: The United States Trade Representative (USTR) creates a “watch list” of countries who fail to provide “adequate and effective” protection of intellectual property rights or denial of “fair and equitable market access to U.S. persons who rely on intellectual property protection.”

The idea is that if you don’t play nice with American IP, all the other countries hear about it.

Apparently the very powerful American Copyright Lobby has a history of applying pressure to the USTR to include countries based on allegations rather than any proof, in an attempt to coerce countries like Canada to make or laws beneficial to these American corporations.

Public Knowledge and the Electronic Frontier Foundation submitted a joint comment to the USTR Consultation outlining many instances of the misapplication of these sanctions.

The American Trade Act defines “adequate and effective protection” as the refusal of the country to provide means under its laws for foreign nationals to exercise and enforce their IP rights.

It considers a country to have denied market access if its laws or regulations violate provisions of international agreements to which both the U.S. and that foreign country are parties or if the law or regulation constitutes a discriminatory non-tariff barrier.   Thus, a country should be considered to provide adequate and effective IP protection and fair and equitable market access for these purposes if it complies with its existing international obligations and provides foreign rights-holders with a means under its domestic law to enforce their rights or seek access to its markets.

Failure to sign international agreements does not per se mean the country has failed to provide adequate and effective protection for U.S. rights-holders’ intellectual property.   This is also consistent with the principle of national sovereignty, a foundational principle of the modern world order, which recognizes a country’s freedom to choose international instruments to which it will be bound.”

— COMMENTS of PUBLIC KNOWLEDGE and the
ELECTRONIC FRONTIER FOUNDATION
in the Matter of 2010 Special 301 Review:
Identification of Countries Under Section 182 of The Trade Act of 1974
http://bit.ly/cBtQvV

Reading through the PK and EFF comments all I can say is that I for one am very glad that they are out there working to protect the internet for all.

Michael Geist has often said that Canada already has very tough Intellectual Property law, and IP lawyer Howard Knopf tells us exactly why in his Excess Copyright blog post The “Annual 310 Show” – USTR Calls for Comment – 21 Reasons why Canadian Copyright Law is Already Stronger than U.S.A.’s

I made use of PK’s handy online form to submit my comments as a private Canadian citizen, and although it was a tad past the deadline, it was accepted. I thought it particularly important since our own Canadian Government elected not to make a submission.

I realize that our legislature is currently prorogued, but that isn’t slowing down Canadian participation in the ultra-secret A.C.T.A. trade negotiation. In fact, if Canada is singled out here by the USTR it would simply provide more leverage to coerce Canada into signing the A.C.T.A. agreement, no matter how dreadful.

RE: 2010 Special 301 Review
Docket Number USTR-2010-0003

Jennifer Choe Groves
Senior Director for Intellectual Property and
Innovation and Chair of the Special 301 Committee
Office of the United States Trade Representative
600 17th Street NW
Washington, DC 20508
Filed electronically via Regulations.gov

Dear Ms. Groves:

The United States Trade Representative (USTR) must not allow rights holders to use this proceeding to force sovereign nations to impose overzealous restrictions on their citizens and interfere with our civil liberties or diminish our global standing.

Whatever happened to the American spirit of liberty, and vaunted dedication to life, liberty and the pursuit of happiness?

The USTR must recognize the importance of balanced intellectual property law to innovation and free expression. The provision for innovation and free expression is necessary for culture to exist.

The USTR must demand rights holders support claims of infringement and loss with verifiable data following standards of proof and the rule of law.

Unsubstantiated accusations can be made in error, or just as easily made spuriously by entities who are not even the rights holders as a means of suppressing free speech.

The United States will lose global credibility by continuing ton this slippery slope.

The United States does not have the right to dictate Canada’s specific structure of domestic laws. Your rights holders’ demands for increasing criminal penalties, prison terms, fines, and liability have no place here as we have the sovereign right to determine our own limitations and exceptions to copyright.

Canadian Copyright law is robust, in many ways stronger than your own as explained in esteemed Canadian Intellectual Property lawyer Howard Knopf’s blog: http://excesscopyright.blogspot.com/2010/02/annual-301-parade-ustr-calls-for.html

As a Canadian Citizen and a writer I hope the USTR follows the law not the lobbyists.

Regards,
Laurel L. Russwurm

canadian flag

a sovereign nation

American Flag

follow the laws not the lobbyists

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