Getting ready to debate Canadian copyright: Things to keep in mind

So Canada is going to be getting a new copyright bill, sooner rather than later. The cynic in me says that this only means that a federal election is also going be happening sooner rather than later. (My inner cynic also believes that the government is timing the release of the bill to cause as much havoc as possible with my dissertation.)

Still, I’ve been thinking about how to evaluate the bill if/when it gets to Parliament, particularly regarding the treatment of technological protection measures and ISP liability, which I’ve been focusing on in my dissertation work. There’s likely to be much more heat than light created once the bill hits the fan. After all, you have high financial stakes, and powerful, well-funded lobbies out to portray self-interest as the national interest. (In fairness, in some cases, this equivalence may hold. In some cases.)

There’s also the reality that copyright hits the emotional hot buttons of property and culture, with an assist to fears of American domination. Oh, and there’s the fact that journalists in general are lost at sea with such a needlessly complex topic.

So, to help my own thinking, I’ve come up with three issues and three questions that I hope will help me keep my eye on the ball while ignoring the self-serving and emotional rhetoric we’re going to be hearing a lot of over the coming months. If you find them useful, all the better.

1. Clarity: Are the provisions that directly affect consumers clear and easy to understand?
Copyright laws are notoriously complicated and contradictory. That was okay when it was a commercial law that mainly governed intra-industry disputes among businesses that could afford to throw money away on copyright lawyers. But now that copyright rules directly affect individuals, individual Canadians should be able to understand what they are allowed and not allowed to do. If the rules are too complex, that’ll be a huge strike against the bill. We need a consumer-friendly Copyright Act. If it exempts non-commercial activities, so much the better.

Here’s a quick test: After reading the legislation, are the conditions under which you can and cannot upload a song to a personal blog clear? (Right now, they’re not.)

2. Debate: Don’t listen to anyone who uses the word “pirate”

Rhetoric tends to muddy the waters of copyright debate. Most disturbing, for its tendency to shut down rational debate, is the accusation that someone is a "pirate" or that some activity is "piracy."

If you see or hear the word “pirate” or “piracy” in an article or interview about copyright, run away. Deployed by journalists and politicians, it demonstrates either laziness and a lack of understanding of what copyright is, and/or an unexplored bias in favour of a particular form of copyright.

If you hear it from a pundit or lobbyist, it demonstrates the same bias, an attempt to bypass rational discussion of the limits and utility of specific copyright rules by appealing to gut feelings about “property.” (And usually in support of a particular interest.) The implication is always the same. If you’re doing something I don’t like, you’re stealing something from me; or you don’t believe in property, so you must be a lefty pinko. Regardless, it’s a sure sign that the speaker or writer isn’t interested in a rational debate over the most socially useful construction of copyright.

Copyright law is about setting the lines that determine how and by whom creative works can be accessed and used. In other words, it's about how the state defines the specific property rules related to creative works. Except for the intangible nature of creative works, this is no different from how the state acts when creating any other property right.

Different people have different views about where these lines should be set. At the maximalist end, proponents of strong copyright argue that copyright ownership should resemble ownership of physical goods, like a house, providing a great deal of control to the copyright owner.

However, maximalist copyright control is not always best for society as a whole. All property rights are always set by the state and always contain limits. You may be allowed to own a gun (or maybe not), but you are not allowed to shoot your neighbour with it. And if you do shoot your neighbour, police can obtain a search warrant to enter your premises to look for the gun.

The state places limits on all forms of property because while well-defined property rights are socially useful for the construction of free markets, which themselves are socially useful, society is not served by absolute property rights. Absolute property rights themselves can lead to abuses, like being able to get away with the murder of your neighbour. Rather, limits on property rights themselves serve a socially useful purpose. For a less dramatic example, consider health regulations that limit what can be put in our food. The question becomes: where to draw the line? More property rights are not necessarily better.

As with physical property, so with intellectual property and copyright. Copyright is a temporary (typically life of the author plus 50 years) and limited (exceptions for educational purposes, for example) because without these limits, copyright would be socially destructive. To take an easy example, all creators (of songs, books, films or class lectures) stand on the shoulders of those who came before. It is not in society’s interest to give past creators or copyright owners (most economically important copyrights are controlled by non-creators) a veto over the production of future creators. Clearly, rights in creative works, if we believe them to serve a socially useful purpose, should be something less than absolute: the question is, how much less?

So, by all means, let’s discuss the actual benefits and harms that come from unauthorized downloading of songs, movies and books. Let’s talk about what rights consumers should have to do with the things that they purchase. (Interestingly, proponents of strong copyright rarely note that a fundamental cornerstone of property rights is that the seller typically has no rights over how a legitimate buyer uses “their” product.) But let's keep in mind the substantial benefits that come from a robust set of exceptions and limitations to copyright.

It actually turns out that the evidence, both empirical and theoretical, of the effects of copyright on cultural production and dissemination is much more ambiguous than slurs like “pirates!” and “piracy!” would lead one to believe. Furthermore, a recent study by the U.S. Government Accountability Office, casts doubt on the reliability of studies claiming losses due to counterfeiting and copyright violations. Moral of the story: always look at the study’s underlying assumptions, and who is funding the study.

The same rhetoric rule can be applied to anyone who asserts that they have a “right” to something. “Artists have a right to be paid for their work.” Sure, but how? And should the starving artist be treated the same as the global superstar? Empirically, only the biggest musical acts, for example, realize any significant income directly from copyright. As a heartless economist, I’d also point out that it’s socially inefficient to pay someone for something that they would have produced for free. Such as this blog posting, for example. And yet it’s covered by copyright, too.

Rights-talk doesn’t get us very far when trying to formulate public policy that affects many different interests. It just leads to a pissing match over which group has the bigger rights (creators? corporations? consumers? citizens?). Better to look at actual outcomes and try to satisfy as many people as possible.

Oh, and copyright? So not a left-right issue: both sides, at least in economics (which has much more to say about copyright than you’d think, given its relative absence from the debate), are equally hostile to it. On the left, certainly, you have the Marxist view that sees property itself as socially damaging. However, on the right, you’re just as likely to find those who see copyright as a government-enforced monopoly that restricts the marketplace, interferes with individual choice and gives far too much power to monopolistic corporate interests. In the middle, the honest, evidence-based debate is (or should be) over where to draw the lines; characterizing this line-drawing a left-right issue is just a cheap way to score rhetorical points.

3. Remember: Copyright is a means to an end, not an end in itself
At the end of the day, copyright is simply the means by which the government regulates the commercial market for creative works. While it has had the effect of privileging certain business models (hierarchical, top-down corporations whose existence depends on the artificial scarcity in copies created by copyright law) over others, the purpose of copyright is not to maintain these businesses.

Conservatives especially should see industry appeals for changes to copyright to protect specific businesses as appeals to protectionism that have nothing to do with the underlying purposes of copyright. So long as music, stories and essays continue to be created and distributed, in whatever form, it should not matter, from a creative, economic or societal perspective, if the record, publishing or movie industries as we know them change beyond recognition, all other things being equal.

Similarly, if stronger copyright law can be shown to provide society with a net benefit, it should not be opposed on narrow ideological grounds.

Three questions

When I'm evaluating whatever the government proposes, I'll be asking myself the following three questions:

• How will these changes to the Copyright Act affect the creation and distribution of creative works?
• How will these changes affect Canadians’ ability to innovate?
• How will these changes affect Canadians’ existing rights to use and access creative works?

These questions appeal to evidence over emotion, and to the needs of people (creators and citizens) on all sides of the debate. They are agnostic as to specific business models, without neglecting the fact that, in some cases, society’s and creators’ interests may best be served by supporting a particular old-media business model. They ignore where the proposals originated, be they from Canada, the United States, the movie industry, or elsewhere.

The coming debate over copyright is going to be filled with slurs, name-calling, emotionally charged rhetoric, and questionable evidence. This is par for the course, but it doesn’t have to be this way. It is possible to have a respectful, fact-based debate over copyright.

The cynic in me, however, says otherwise. It would be nice if, in the coming months, Canadians proved him wrong.