When the paywall “protected” Blacklock’s Reporter sued the Government of Canada for an alleged copyright violation, the court concluded:
 Any reporter with the barest understanding of copyright law could not have reasonably concluded that the Department’s limited use of the subject news articles represented a copyright infringement. Indeed, the fair dealing protection afforded by section 29 of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the acknowledged facts of this case that the litigation should never have been commenced let alone carried to trial.
“The Attorney General of Canada has achieved a clear victory against Blacklock’s Reporter in the latter’s attempt to collect damages of $17,209.10 based upon its supposed institutional subscription rate because a few public servants in the Department of Finance received, read and distributed two Blacklock’s articles about a file they were closely involved in that had been sent to them by a Blacklock’s subscriber.”
Copyright law in Canada is at minimum confusing to most non-lawyers, even those of us involved in content creation. As a self publishing author, and to some extent a citizen journalist, it is important that I have more than the barest understanding of copyright law. Like most self publishing bloggers lacking legal staff, I’d rather be writing than spending time in court, so when in doubt I’m inclined to self censor for my own protection, something known as copyright chill. Since I’ve been actively weighing copyright law as it applies to me and my own work (since Canada’s 2010 Copyright Consultation), I am always interested in how copyright issues play out.
So I was particularly curious about what Justice Robert Barnes described as the “obviously applicable” fair dealing protection.
(j) What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment;
In other words reading (or by extension viewing, or listening to) copyrighted material is allowed under Canada’s Fair Dealing provisions, even when such material is locked behind a paywall. Sharing such material is another matter. A large part of the reason the subscriber who shared the articles was not held liable seems to be Blacklock’s failure to adequately spell out in its terms of service what a subscription does or does not allow. Although the judgement draws attention to the fact:
(k) While the public interest is served by the vigilance of the press, copyright should not be a device that serves to protect the press from accountability for its errors and omissions. The Department had a legitimate interest in reading the articles with a view to holding Blacklock’s to account for its questionable reporting.
Although Mr. Knopf views this as a victory, from my perspective it’s not.
Although I am not a lawyer, there seems to be a suggestion that, had the TOS been worded differently, the subscriber’s decision to share the articles– in spite of holding the publisher to account– such an action may well have been construed as illegal copyright infringement, specifically circumventing Technical Protections Management (TPM). The plaintiff sought to make this latter argument, but the Judge didn’t allow it.
To my mind, the biggest problem with copyright law is the court system. Fighting a copyright claim in court wouldn’t only eat into an independent creator’s time, if it costs $115,702.30, $65,000 or even the two thousand dollar settlement the Government offered would be beyond the means of most.
It doesn’t matter whether a copyright infringement lawsuit has merit or is spurious. The Government of Canada may have the wherewithal to fight such matters in court, but this is hardly true for the vast majority of citizen journalists, self publishers or bloggers. Because copyright battles are fought through the legal system, creators, bloggers and self publishers are at an enormous disadvantage to large well funded multinationals or copyright trolls with predatory business models.
There are some websites I access that are partially locked behind paywalls, but publish some articles publicly. I decided a long time ago I don’t want to share links to sites that are locked behind paywalls, or even registration walls, because I don’t want to compel my readers to have to sacrifice their money or privacy to be informed. Because of this, I have made it a point not to subscribe to any paywalled site, simply to ensure I don’t share such links inadvertently. But now I am wondering, are subscribers aware that sharing information — perhaps even in a quotation — from such sites risks charges of copyright infringement? If so, it is surely a disincentive to subscriptions.
Even the most cursory study of history reveals that both of these state imposed monopolies have done more harm than good. How is it that we understand that monoplies are bad for us, yet swallow the idea they are somehow good when it comes to intellectual property?
For copyright, part of it is because the word itself implies it is a “right”, rather than a monopoly.
And the other part is the myth that copyright makes sure that creators get paid. Although some creators get paid nominal amounts sporadically, and a tiny percentage of star creators do well out of copyright, just enough goes to creators to help perpetuate the myth. The true beneficiaries are the few large powerful corporations that were built on the copyright monopoly, and, sadly, the copyright collectives. Although began with the best of intentions, today’s copyright collectives look out for their own interests first, before those of the creators they are supposed to safeguard.
Today the patent system is so corrupt we have had fire, the wheel, genetic material and mathematical equations “protected” by patents. Equally absurd, letters of the alphabet (R) and common words like face and book “protected” by trademark law (the third pillar of the IP Triumvirate).
The real purpose of patents and copyright is to establish and protect business monopoly, so businesses can make unreasonable profits, which can be achieved through stifling competitors who want to innovate. Thanks in no small part to today’s free press [the Internet], we are seeing more and more how effectively patents and copyright can be used to squelch innovation.
Corporate interests don’t *want* innovation unless they profit from it.
You know what they say, if you give a corporation a cookie . . .
Instead of just adding this to My Comments links I think it deserves a post of it’s own. I’ve no time to get into it further, as I’m working on self publishing my debut novel Inconstant Moon just now, but I know I will need to revisit copyright in depth as soon as IM is released, since Canada is looking at making our already dreadful copyright law worse, and I need to do my bit to try to stop it.
Seems I missed it last fall, but is still circulating online, so clearly it needs to be addressed. We need to stop the misinformation. I have already written a fair bit about copyright in this blog if you want more, but this is a capsule rebuttal to the piracy fallacy.
Piracy is a Red Herring
Used to be copyright was justified as an encouragement to creators to create more. The thing is the terms have become downright silly… extending copyright terms from fifty to seventy years after the death of the author is not going to encourage the author to create more. Once you’re dead that’s it. The current trend in ridiculous copyright laws don’t benefit the creators, but rather the corporations, who have never been particularly beneficial to creators. Corporations do NOT have the same objectives as creators.
The copyright maximalist contention that shared digital media is equivalent to lost sales is ludicrous.
I own thousands of books. Books that I read before purchasing. Either other people’s copies or library copies. I’ve read some terrible library books and not bought them because didn’t like them. I would NEVER have bought them. I only buy books I like. There are some books that I buy over and obver again so that I can give copies away. (I’m old enough to know I don’t always get copies I lend out back.) Sometimes I’ll take a flyer on writers I have come to like. Still, two consecutive turkeys and I’m done.
But I want the creators I like to make a living so they can continue to entertain me. I’ve read a lot of dogs to get to the point of knowing which writers I want to read. That’s right, dogs.
[No offense to dogs. Some of my best friends are dogs.]
All those terrible or merely mediocre books, or sometimes books that might have been alright had the advertising not misled me into thinking it would be something else. All those books that the publishers, the so-called ‘gatekeepers.’ have decided were worth printing… I despair when I think of all the books that have been or will be lost from the sum of human knowledge due to copyright. And all the books that were never shared because some idiot who had no idea decided it wasn’t worth printing. Just knowing how many unfortunate books I’ve read, I am certain that there are rather a lot of those.
The combination of digital technology and the Internet is win-win for both creators and audience. The only ones who suffer are the distributors who are trying to pretend that nothing has changed until legislation to turn back the hands of time can be imposed.
I’ve heard this over and over again, because it’s true:
As a writer, one of the people copyright law is supposed to serve, I’m concerned with effects of Bill C-32 on my ability to use technology to create and disseminate my work.
I was willing to trade my creative sovereignty for the opportunity to have my work produced and distributed on television when I was young, because it was the only game in town. That was then. Today, advances in digital technology and the Internet have made a host of new options available to creators. And even though Canada’s current copyright law is problematic, Creative Commons has introduced work-arounds which make it possible for creators to release our “Intellectual Property” as we see fit.
There is also no justification for the existence of Crown Copyright in a democracy. Why doesn’t Bill C-32 follow the good American copyright example of releasing of government funded work directly into the public domain (on the understanding that taxpayers have already paid for it)?
Culture grows through sharing. It used to be Canadians bemoaned the lack of a Canadian “identity.” This cultural void was certainly tied in to the limited exposure Canadians had to our own culture since a few corporations controlled all of our culture.
Today’s combination of hardware, software, media devices, and the Internet makes it possible for creators to create and distribute our work directly to our audience. The new technology has been an incredible boon to both creators and consumers.
The independent Canadian music industry is ushering in an incredible golden age, in spite of the CD levy which penalizes independent creators. Canadians are leading the world with Independent music production and distribution. And nobody is looking for a “Canadian Identity” anymore since Canadian culture is thriving– through sharing– on the Internet. For the first time in more than half a century, Canadian musicians don’t have to sign away the rights to their music to get recorded and distributed.
Special Interest Groups
The major record labels find this a problem because as more musicians choose independence, the established record industry loses market share. CRIA used to own 99% of the recording industry. Now they’re lucky if they have 70% of it.
It’s a challenge for corporations. Historically it would have led to corporate adaptation or demise. Today’s conglomerates have instead chosen to influence legal change.
But copyright law should not be employed to force creators into unsatisfactory arrangements in an attempt to prop up an industry unwilling to adapt.
What is Copyright Law Supposed to Do?
Isn’t copyright supposed to recognize and support the creator’s authorship?
Where did the idea that copyright law was somehow responsible for monetizing the ‘intellectual property’ industry came from? It makes no sense at all. Isn’t it customary for Industry to establish business practices through negotiations and contracts?
If we are to accept this as a valid premise, and proceed to impose Bill C-32 legislation that runs contrary to societal expectation, why stop there? Wouldn’t it be reasonable to apply the same thinking to all other Canadian business endeavors? Instead of contracts and negotiation, the government could legislate precise terms for all industries. The government could set the rates of pay for each job, define the responsibilities. Is that what we want? I suspect we don’t. Why is copyright treated this way?
The needs and best interests of corporations are almost always very different from the needs and best interests of human creators. Copyright should not be transferable, certainly not to corporations. At most, corporations should be limited to licensing copyright for a limited time. A great many of the current problems with copyright law are directly attributable to undue influence of corporations and copyright collectives. We have seen little or no input or consideration for the two most important copyright stakeholders: creators and citizens.
Like corporations, the interests of copyright collectives can differ from the interests of the people who are members. But if membership needs would be better served by removal/reduction of the collective, the existing collective will work to ensure continued existence, even if it is contrary to the best interests of the membership.
There has been copyright collective support for both the CD levy, as well as expansion of it, as well as opposition to the expansion of fair dealing in Bill C-32. That isn’t surprising because the collectives benefit financially from both of those misguided initiatives. That is my perspective as an independent writer, consumer and parent.
Technical Protection Measures, Digital Rights Management, Digital Locks
Regardless of what term you choose, digital locks should not fall under copyright jurisdiction for the simple reason that creators have no control over them.
As written in the current incarnation of Bill C-32, technical protection measures are the most important provision.
This effectively strips all authority from creators. Because creators– and most especially independent creators– don’t hold the keys to these locks.
As an independent writer I oppose digital locks that can be used against me.
Digital locks can be employed to prevent my utilization of digital media, devices or Internet protocols to distribute my work as I see fit.
The freedom technology has lately made available to creators will taken away by Bill C-32.
As a consumer I can’t support a law that allows digital locks to prevent citizens from legitimately using media and devices. It should be illegal for digital locks to impede access to digital material that is in the public domain.
Made In Canada?
Canadian cultural sovereignty should belong to creators, not corporations.
There have been some very persuasive arguments that Bill C32, like Bill C-60 and Bill C-61 before it, has been written to appease our American neighbors. In itself, sacrificing Canadian sovereignty to appease foreign interests would be problematic enough if Canadian copyright law were made to conform to the contours of the American DMCA.
Worse: Bill C-32’s digital locks go far beyond the terms of the American DMCA provisions, so it would not simply be a case of leveling the playing field, Bill C-32 as will effectively put Canadians at a distinct disadvantage.
Iceland is contemplating putting all Icelandic literature online to foster and spread their culture. I submit this would be a better model for copyright emulation than the American DMCA.
The American DMCA contains provisions for mandatory adjustment every three years, and over time it has in fact been lightened up as unintended consequences have been addressed. Yet Canada’s Bill C-32 simply contains a suggestion to look at it every five years. In terms of the speed of digital change, 5 year suggested revision term is horrendous. Bill C-32 would require annual review as a feature.
Copyright needs to be simple enough for all citizens to understand, because more and more people are participating in our shared culture. Many artists believe things must change. The existing law is too strong, but rushing to enact legislation as flawed as Bill C-32 because we are tired of copyright is not the answer.
There are many reasons to use Free-Libre Open Source software for our endeavors. Yet the primacy of digital locks will impede access to such software for all of us.
I want to be able to make my work freely available. My right to do so should not be sacrificed to special interests. Canadian copyright law must support all Canadian creators, even those of us who believe in the importance of sharing.
I cannot support Bill C-32 as it is.
Perhaps I could if you were to remove TPM/DRM/Digital locks altogether. Some people think amending the Bill to permit circumvention for lawful purposes would solve the problem. I disagree. I don’t think consumers should have to circumvent digital locks. If digital locks are applied, it must be up to the parties holding the keys to guarantee the locks will be opened for lawful purposes.
CC: The Right Honourable Stephen Harper email: Harper.S@parl.gc.ca
CC: The Honourable Tony Clement email: Clement.T@parl.gc.ca>
CC: The Honourable James Moore email: Moore.J@parl.gc.ca
CC: The Honourable Michael Ignatieff email: Ignatieff.M@parl.gc.ca
CC: Legislative Committee Members
(Charlie Angus email: Angus.C@parl.gc.ca , Sylvie Boucher email: Boucher.S@parl.gc.ca , Peter Braid email: Braid.P@parl.gc.ca , Gordon Brown email: Brown.G@parl.gc.ca , Serge Cardin email: Cardin.S@parl.gc.ca , Dean Del Mastro email: DelMastro.D@parl.gc.ca , Marc Garneau email: Garneau.M@parl.gc.ca , Daryl Kramp email: Kramp.D@parl.gc.ca , Mike Lake email: Lake.M@parl.gc.ca , Carole Lavallée email: Lavallee.C@parl.gc.ca,
Dan McTeague email: McTeague.D@parl.gc.ca and Pablo Rodriguez email: Rodriguez.P@parl.gc.ca )
CC: Harold Albrecht email: Albrecht.H@parl.gc.ca
[on May 21, 2010 I simul-posted an article about the Canadian Digital Economy Consultation in three of my blogs in hopes of encouraging participation in the consultation process. I felt this was necessary since thousands of Canadians were still so angry after participating in the Copyright Consultation only to be ignored by the Government. My direct participation was limited because I was getting my debut novel “Inconstant Moon” ready for publishing. I did manage a submission, but as I look at how the digEcon went I regret I was unable to participate more.
There are digEcon issues to write but what started as an Oh! Canada post grew too big (even for me). Instead I’m breaking it down into a three part series across my blogs. The first part is published here in the wind because this is where I generally look at copyright issues because they affect me as a content consumer and a writer. The second part will go into Oh! Canada and the final part into StopUBB. When all three are complete I’ll add link arrows.]
If you’ve followed the Canadian Copyright debacle you might want to skip the recap & go straight to the last paragraph.
The Canadian Government put on a Copyright Consultation last year, inviting Canadians to offer input on copyright so the government could take it into consideration when drafting new copyright law. Sounds good, eh? Democratic Government.
The copyright consultation wasn’t produced out of governmental good will. You have to look at the back story to “get it”.
The last time the Canadian Liberal Party was in power in a minority Government, they tabled a draft copyright law known as Bill C-60 back in 2005. Fortunately for Canada this law did not slip through. Once the contents of the draft legislation became known it was generally reviled by Canadians. We were quite fortunate that we had a minority government and that it folded before this bad law might have passed.
[Not because it was a good law, but because the worst part of our electoral system is that a so-called “majority party” can pass whatever legislation they like, even if the rest of the country is against it. Canada needs electoral reform (check out Fairvote Canada to get involved. But that’s another story.]
The subsequent minority government was formed by the Conservative Party of Canada. They tabled draft copyright legislation known as Bill C-61, which was also universally reviled. Again we were fortunate that we had a minority government and that it folded before this law might have passed.
Both of these efforts came under fire at least partially because they were handed down like tablets from “on high”.
There had been no discussion with or input from citizens.
More unusual, it appears that the rich and powerful corporate and collective stakeholders– the ones ordinarily be counted on to back the government up– had been left out of the process as well. Meaning there was essentially there was no support for either version of this legislation.
[The key question that has to be asked is “Why?”]
The ensuing election did not result in the Conservative Party majority they expected. After all, under Canada’s current electoral system, a majority government can pass any law it likes. So instead of just dusting off Bill C-61 and trying again, the pressure to “strengthen” Canadian copyright law led to the Conservative Government surprising us all with the announcement of a Canada wide “Copyright Consultation”.
Strategically this was brilliant: instead of trying to push essentially the same law through a second time, they gave Canadians a chance to be heard. Holy democracy Batman!
It didn’t quite come off without a hitch: the Copyright Consultation had a traveling ‘dog and pony show’ that raised more hackles than it calmed. Accusations of stacking the deck at the so-called ‘Town Hall’ meetings, citizens– including Canadian Federation of Students members and elected Member of Parliament Olivia Chow– were prevented from distributing copyright info flyers to people attending the “Town Hall” meetings. You can read about the whole gory extravaganza on Michael Geist‘s public service Speak out on Copyright site.
With such heavy handed efforts being made to control the outcome, it was actually quite depressing to sit down and write my own copyright consultation submission.
But it was important and so I did it.
Even though copyright law had already impacted on my life in many ways over the years as both a consumer and creator I’d never really thought about copyright before. I was actually surprised by all the things that bubbled up out of my life experience into my formal submission.
Over the months following the #copycon I’ve taken the time to read through some of the other submissions. I learned a great deal I did not know, and my opinion and feelings about copyright have been enriched by things I have read and learned. They are all still there online, ready to be read. Over eight thousand Canadians responded to the #copycon.
I have been amazed at the depth of thought, the intelligence, the innovation and creativity expressed by many of my fellow Canadians. I’ve learned so much. But even more, reading these submissions made me proud to be part of this great land. Almost all of the Canadians who made submissions firmly rejected anything like a DMCA style copyright law for Canada.
The Copyright Modernization Act
Perhaps change for the sake of change is a reasonable when you’re tired of your home decor, but it’s not a good reason to change law. Before making new copyright law, we must have a Canada wide consensus on the issues. What is copyright for?
What is reasonable to Canadians?
What is sharing?
Or personal use?
are we willing to lower previously accepted standards of evidence?
What kind of penalties are reasonable for non-commercial copyright infringements… in other words, should children who share music go to jail?
Intellectual Property is the most unnatural kind of law possible. Because it runs contrary to the natural inclinations of both creators and society it’s the kind of law that can’t simply be handed down by corporations and lawmakers. It must be an agreement between creators and society– that’s the balance that has to be achieved for it to work. The foundation has not been laid to allow for changing the copyright law we have now.
Changes being made to copyright law at the behest of corporate special interest groups in recent years have troubled me greatly, but they have been counter balanced by offering creators recourse to the marvelous Creative Commons Licensing. CC allows the creator to decide how copyright can best serve us in creation and distribution of our work. It has been excellent for our culture; the Canadian Arts are entering a golden age.
Yet this year the Government has just tabled “new” legislation called Bill C-32 “The Copyright Modernization Act.” Not the healthy balanced copyright law that most of us had hoped for, but rather the long dreaded Canadian DMCA. Thousands of Canadians, like myself, feel betrayed because our government totally ignored our input. Input that the Government asked for through the Copyright Consultation.
As it stands this legislation would remove copyright control from creators by making it subject to manufacturers DRM/TPM or “digital locks”. Digital locks of any kind shouldn’t even be part of the conversation about copyright.
As a creator, as a writer, this is horrifying. For hundreds of years copyright has existed with the intention of allowing content creators a means of making a living. And the very first content creators were writers. Copyright was made for us.
Canadian creators will lose our ability to control our work with Creative Commons Licensing if Bill C-32 is passed because digital locks will appear on all blank media and all media devices from e-readers to hard drives. Bill C-32 will give sole control of copyright to manufacturers.
So far this dreadful law has not passed.
There has been a big outcry. Many Canadians have been speaking out against it.
During this uproar, suddenly we have the announcement of a new initiative:
The Digital Economy Consultation
Many Canadians have viewed this with skepticism. Many intelligent, informed and thoughtful Canadians did not participate at all, wondering why they should bother when the Government won’t listen anyway? Isn’t this Digital Economy Consultation website just a sham?
A Digital Economy con? A way to deflect the criticism from Bill C-32?
I don’t think it matters. It is important to speak out even if they don’t listen.
The Copyright Consultation resulted in a volume of clearly Canadian work. Together the online #copycon submissions make up an online reference work that other Canadians can read online.
Canadians are smart. We can learn from each other even if this Government won’t. Some future Government may be clever enough to act on our ideas even if this Government will not. That’s why I wrote an article urging people to contribute to the digEcon and simulcast it across all my blogs. Yet for most of the consultation period I’ve been hard at work on my novel.
It wasn’t until quite late in the game I was able to spare the time for it, but I just managed it. I’m not entirely happy with what I submitted. But I was running on empty to make the deadline, and I did. It wasn’t as brilliant as I would have liked, but that’s life. I even had the better part of an hour before midnight, just in case there were technical difficulties.
When I went to make the submission I was surprised to see that the consultation period had been extended. Great. The extension meant that I could actually proof my submission and perhaps minimize the incidence of spelling mistakes and typographical errors. But why?
No explanation, just an extension. I wondered what that was about.
Looking back at the Copyright Consultation, there were so many people making eleventh hour submissions that the government granted a 24 hour “grace period”. They didn’t open that all up again, as they did here.
For the digEcon, they added four days. What an odd number. If they were going to extend it a useful amount, a month would have been good. And it wasn’t just submissions that were allowed over the four days, it was everything. Like voting on Idea Forum ideas. Keeping the Idea Forums open for a month might have been really productive. Just think of the collective brilliance that might have come out of that. But no, it was four days.
Not enough time to allow most ordinary Canadians enough time to create a submission or participate in the forums. So why did they do it?