When the paywall “protected” Blacklock’s Reporter sued the Government of Canada for an alleged copyright violation, the court concluded:
[8] 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.
“…the amount claimed by the Government, which was “$115,702.30, based on 70% of the actual value of professional hours expended in the defence of the claim and including disbursements of $7,020.98.”
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.
If you censor books for using words we would rather not hear, we’ll end up with a Pandora’s box of ‘bad’ words holding even greater power. I believe it is far better to expose ‘bad words” to the light of day, because shining a light on the bad ideas that are invariably behind the bad words diminishes their power.
Once upon a time my child’s elementary school wrestled with the issue of whether they ought to ban a book called “Harry Potter and the Philosopher’s Stone.” Which is why I went out and bought a copy. And then the rest of the series. Movies. Even going so far as to send away for the UK’s Royal Mail Harry Potter stamps…
Sometimes censorship is the most potent form of advertising.
An ongoing Twitter campaign called “Speak Loudly” attempts to raise awareness and prevent Laurie Halse Anderson’s novel “Speak” from being banned by people with good intentions.
If you censor books because of the ideas within, there is no way to challenge the idea. Instead of taking the opportunity to disprove it, or learn from it, or educate about it, you give the idea additional mystique.
The only way to guarantee free speech is to protect all speech.
Even speech we might not agree with.
The American Library Association lobbies against banning books.
The moment you start to ban bad books,
you place good books at risk.
But for one minute, let’s put all of that aside…. why on earth would any sane rational being even consider allowing any retail business to dictate our morality?
The Internet has changed the world faster than any other technological revolution in history.
corporate vs. creator copyright
When that obsolete stuff known as videotape was new, it, too, wreaked havoc. Suddenly movies and tv shows were being released on the new medium. But the big media companies felt no compulsion to actually share the new found wealth with the creators.
Some creators took issue with this, and fought it out in court. And courts duly ruled that creators were entitled to compensation from these new revenues.
Having written the music for the Disney classic “Lady and the Tramp,” Singer/songwriter Peggy Lee was at the forefront of the fight. Urban Legend has it the Disney company did not take the court decision very graciously and vowed not to release the popular children’s film again until after Peggy Lee’s death.
It doesn’t matter if the legend is true or not, it would be a reasonable business practice; a sound corporate strategy. Suppressing the work warns other would-be litigants about the economic risk of asserting their legal rights with the added bonus of imposition of artificial scarcity which inflates the value of the product when finally released.
To me it illustrates the difference between corporate and creator agendas, and in particular why corporations should never be allowed to hold copyright. Creative works of any kind, what human beings call art, are valued differently by human beings, while to a corporation, the only value of art is the bottom line.
enter the lawyers
Here in the Twenty First Century, Intellectual Property Law has become the “sexiest” area of the legal profession because it is both one of the most lucrative areas of law and the source of mind boggling power. IP law has been changing the world.
The primary changes to copyright and lawmaking have been driven by the big media interests.
Music, movies and television “rightsholders” have been driving the changes since those are some of the most lucrative forms of intellectual copyright product.
All the changes to Copyright Law over recent decades have been made to benefit corporations at the expense of both creators and culture; the rules of copyright have been quietly becoming madder and madder (as in the hatter).
writers and publishers
Ironically, although copyright began to provide incentive for the creation of literary works by making it possible for good writers make a living, the publishing industry has not been in the forefront of the current copyright war. The American book publishing industry was built on commercial piracy, more properly called bootlegging.
In the early days of twentieth century paperback novels sold for less than a dollar and writers were paid only a few pennies a word.
Nearing the end of the century I was surprised to learn that writers were still being paid mere pennies a word although paperback novels sold for upward of ten dollars.
The justification was always the great expense borne by the publisher. Printing and distribution costs rose with inflation while payment to the creators did not keep pace. Publishers impressed upon writers that demanding better pay would make books too expensive and lead to fewer books sold. Physical costs were tangible and so always managed to take precedent over the writer’s intangible creativity.
The 21st Century we have seen the introduction of ebooks. Digital books differ from physical books in one crucial way: they cost next to nothing to copy.
Yet customers have been conditioned to spend on the order of twenty dollars for a physical book. Naturally publishers have been happy to sell the average ebook in the ten dollar range. After set-up production costs are negligible, making the revenue stream approach 100% profit.
Amazingly, these same publishers begrudge any change in the royalty payments to the authors. Instead of sharing this good fortune with their writers, the golden egg laying geese of the publishing industry, most publishers have been trying on the same power grab movie companies tried with video: laying claim to legal rights they had not been granted.
One of the most compelling reasons I never seriously considered placing my novel with a traditional publishing house was the problem William Styron’s heirs had with the publisher.
Mr. Styron’s family believes it retains the rights, since the books were first published before e-books existed. Random House, Mr. Styron’s longtime publisher, says it owns those rights, and it is determined to secure its place — and continuing profits — in the Kindle era.
The discussions about the digital fate of Mr. Styron’s work are similar to the negotiations playing out across the book industry as publishers hustle to capture the rights to release e-book versions of so-called backlist books.
That was my tipping point. Would you trust this industry to do right by you? I wouldn’t. Given the choice, I’m not willing to hand over my creative work to traditional publishing. Particularly since this same digital revolution gives me choice: technology has made self publishing a valid and viable option.
The arrogance of publishers to assert claims to ebook rights by default– simply because they’d published traditional physical paper version– is ludicrous.
At issue is who holds digital rights in older titles published before the advent of ebooks. Publishers argue that the ebook rights belong to them, and authors and agents respond that, if not specifically granted, the digital rights remain with the author.
On Friday (June 23rd, 2010) the Wylie Agency shook the world
by taking a stand for authors and against the publishing houses. (And for themselves, never forget that. Wylie has launched a whole new business here; this may well be straying into anti-trust waters.)
This Literary Agency is setting up the Odessey Books imprint under which they will release older works as ebooks; specifically books whose digital rights have not been signed over to the physical publishers.
The publishers who believed themselves entitled to this copyright are of course greatly outraged that works they believed safely under their control has been snatched out from under them.
Odyssey certainly appears to already be a going concern, with a set of clean simple text based digital book covers for the classics they are releasing exclusively through Amazon’s Kindle for the first two years.
Good for Wylie, good for Odyssey.
From a consumer’s point of view I have reservations. I only looked at the pricing for one book, so the prices may vary, but I have to wonder how the ebook version of a books could cost more than the physical paperback version also sold through Amazon. Yes, the ebook version is sleek and lightweight, but the Kindle is after all a reader laden with DRM that I understand prevents copying for both format shifting and backups. In other words, the ten dollar ebook will be locked inside a brick if the Kindle breaks down or becomes obsolete. But that’s another story.
From an author’s point of view, there may be financial problems. Odyssey doesn’t seem to be offering authors such a great deal.
“Yes, there are costs of creating a digital version, but offering a 25, 30% royalty is insulting.”
It sounds to me that the Wylie Agency is stepping in and performing the service that that publishing houses should have performed for their clients. Adaptability is key to any business long term survival. The total control they have long held seems to have seduced the publishing industry in much the same way it has the recording and movie companies into believing that they deserve control of these copyrights.
this story can help start the copyright conversation
Technology has changed the world indescribably, and corporations have exerted untold amounts of pressure on lawmakers the world over to legislate anti-progress in the form of copyright laws and treaties.
The changes being made to the world in the name of copyright are still largely unnoticed by most people. Demographically young computer savvy people are among the most knowledgeable sector of society about these issues, but they are a minority. And the fact remains that the whole world NEEDS to be part of the conversation. Allowing corporate interests to control the conversation is increasingly leading to greater and greater imbalance.
copyright and the public domain
I’ve never understood how anyone besides the creator is entitled to the proceeds from copyright. License the work to the publisher sure, but giving them copyright? No legal system should ever have allowed this. Copyright was meant to encourage creation for the good of culture.
In the beginning there was the commons. Ownership of the songs and stories of belonged to everyone. Story tellers preserved and shaped the culture, and in return society made sure they could make living at it. Minstrels telling a good tale or singing a good song were fed. The introduction of the printing press changed things in that the words of the writers could now be spread and shared through this artificial means. Copyright is an artificial right assumed by society in an effort to encourage creators to continue to create by controlling the monetization of their work for a finite period of time. When the term was up, the work went into the public domain so that all of society could get the benefit.
tweets from ORGcon
The UK Nonpartisan Open Rights Group, working to fight the UK’s ill advised hastily passed Digital Economy Act, today held #ORGCon. Cory Doctorow tweeted highlights. Copyright and the Public Domain were central to the convention, and much of what @doctorow and other attendees shared online, particularly comments by keynote speaker James Boyle provide some powerful background for this article:
Copyright is no longer simply an area of special interest to publishers and writers. Changes being made in the name of copyright effect culture and the the way we access culture in every country of the world.
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.
Once upon a time my child’s elementary school wrestled with the issue of whether they ought to ban a book called “Harry Potter and the Philosopher’s Stone.” Which is why I went out and bought a copy. And then the rest of the series. Movies. Even going so far as to send away for the UK’s Royal Mail Harry Potter stamps…
Laurel's Free Culture Blog 
