Blayne Haggart's Orangespace

The grass is greener...

2011-08-25T04:04:00.000-07:00

In an effort to make my blogging look somewhat more professional, I've decided to up and move to Wordpress. It seems to be a lot more flexible in allowing me to do things like post my CV, publications lists and so on, and to track the blog's traffic. I know you can do this on blogger (somehow), but I was never able to get that up and running easily here.

So, won't you please join me at www.blaynehaggart.com for some fascinatingly wonkish discussions about copyright, politics and whatever else I can think of.

Oh, and if anyone knows a straightforward way of redirecting people to the new site when they come across links to this one, I'd love to know. I'm trying a couple of things, but it's still a work in progress.

"Don’t let them tell you it can’t be done"

2011-08-22T17:15:00.000-07:00

Canadians today are rightly focusing today on Jack Layton's legacy of optimism and integrity, and his inspiring, transcendent and completely heartbreaking final letter to Canadians. His letter, which I find difficult to read straight through right now, cannot be praised highly enough. Its call to justice and service, and focus on creating a better future for all Canadians, convey a forward-looking sense of what it means to be Canadian better than pretty much anything I've read in my lifetime. We could all do a lot worse than to aspire to the goals and vision of Canada toward which Layton urges us here.

We Canadians have, I think, a tendency to treat our history lightly. I hope that this letter is remembered for decades to come. Fortunately, if my Facebook feed is anything to go by, we won't be forgetting it anytime soon.

For me, what I'll remember is Layton's willingness to stake out policy positions because they were
the correct policies, even if they were unpopular. The most obvious example of this was Layton's observation that negotiations with the Taliban in Afghanistan were inevitable. For that, he was labelled by Conservative MPs and other right-wing critics as "Taliban Jack," essentially calling him a traitor. Everyone might be calling him "Smiling Jack Layton" today, but Google hits for "Taliban Jack" Layton outnumber those for "Smiling Jack" Layton by 2 to 1.

Of course, it turned out he was right, as the Conservative government eventually acknowledged, in actions if not in words.

I also admired how he balanced principle with pragmatism. When he was president of the Federation of Canadian Municipalities, I saw his presentation to the House of Commons Finance Committee, for which I worked as an analyst. I had read about how, as a Toronto City councillor, he would deal with anyone to advance his (concrete) policy goals, but I remember being particularly impressed at how down-to-earth, reasonable and doable his policy objectives were. They responded to a pressing need (in this case housing) that would make life demonstrably better for disadvantaged Canadians.

And he was willing to do what it took to get policies enacted. As Toronto Councillor Norm Kelly commented, "I think Jack’s strength was if he couldn’t win you over on an issue 100 per cent, he would settle for 75 or 50 to advance the issue, and he’d do it with a smile."

With that combination of commitment to social justice, willingness to compromise and understanding of what really matters to Canadians, I was very happy when Layton ran for the NDP leadership, and even happier when he won. From my outsider's perspective, he set the NDP on exactly the right course needed to be relevant to the needs of Canadians in the 21st century.

In his final letter to Canadians, Layton urges all Canadians to "consider that we can be a better, fairer, more equal country by working together. Don’t let them tell you it can’t be done." Layton's life was a testament to this spirit. Now that he's gone, it falls to the rest of us to continue his work, no matter the odds.

The Sky Isn't Falling? Dwayne Winseck Gives Us Some Much-Needed Perspective on Canada's Media Economy

2011-08-20T16:57:00.000-07:00

I'm kind of awestruck by Dwayne Winseck's latest post, "The Growth of the Network Media Economy in Canada, 1984-2010." Maybe I'm reading the wrong people, but it has to be one of the most substantive blog posts I've ever come across. Read it for yourself, but basically Winseck has created a new dataset in order to estimate the size of the Canadian media economy. My work only focuses on a subset of that economy (copyright), but it's certainly true that Canadian communication policy seems to be driven more by anecdote and political argument than by what some might call "evidence." Winseck's findings themselves are pretty fascinating:

Canada has the ninth-largest "media economy" on the planet.
Far from decimatting the media economy, digital technologies have contributed to a boom in this sector.
Between 2000 and 2008, all parts of the media economy grew, except music and newspapers.
The picture looks bleakest for newspapers, but even here ad revenue and readership rose in 2010.
Even the (slight) decline in the music sector may not be that significant (in a policy sense), as production and distribution costs have also declined.

Putting it all into perspective:

This should serve as a bit of a reality check for those all-to-ready to accept that the television, music, newspaper, or book industries are teetering on the brink of calamity at the slightest whiff of troubles on the horizon, i.e. ‘cord cutting’, increased subscriptions to Netflix, or drop in advertising revenue. For two recent examples, see here and here. Just for the sake of argument, even if Netflix gets $8 per month for each of its million subscribers in Canada, that’s $96 million dollars a year in revenue, or .6 percent of the total for all segments of the television industry. Of course, that’s nice if you can get it, but it is a mere drop in the Canadian television bucket, and hardly worth revamping the rules for, as many entrenched interests would like the CRTC to do.

Indeed. Winseck's work won't banish interest-driven policy reform from the halls of government, but policymakers now have one less excuse for getting it wrong.

Low Stakes in the Access Copyright Fight: $175 per author per year

2011-08-20T16:36:00.000-07:00

DC Reid, over at Creators' Access Copyright, responds to John Degen's full-throated defence of Access Copyright (covered here and here), by reminding us what is at stake for creators in the whole Access Copyright-universities battle royale. In short, not very much. In numbers, a baseline payment of only $175 per author per year, or 10% of total revenue:

Writers get a small payment from the repertoire class. Last year the baseline was $175. That's all. This does not comprise meaningful income. 80% of writers got less than the previous year's baseline of $612, also a figure that does not comprise meaningful income.

In terms of policy battles, this doesn't look like the type of hill worth fighting for. If you're a writer.

Cutting Copyright's Red Tape

2011-08-17T19:17:00.000-07:00

One other thing: John Degen’s one-sided opinion piece (is that redundant?) inadvertently highlights the absolutely vital need for Canada’s Copyright Act to be simplified so that anybody can understand it.

As Degen points out, in the absence of a blanket licence, however arbitrarily applied, universities, professors and students have to deal with the letter of the law of the Copyright Act. That isn’t easy. I’ve talked about this with a couple of university prof friends, one of whom actually studies copyright policy, and they’re both at a loss to understand fully the guidelines that have been prepared by The Powers That Be at their particular universities.

That’s a huge problem – I’d go so far as to say that it’s the biggest problem facing copyright law today. A complicated copyright law may have made sense back when it was mainly a commercial law governing the content industries – lawyers gotta earn their pay, after all. But now that copyright law so directly affects the lives of individuals, students and teachers, it should be simple enough that anyone with a dollop of common sense can understand it – and agree with it.

After all, what copyright does isn’t that complicated: It sets the terms under which someone is allowed to cover whatever it is we decide should be covered by copyright law (books, musical performances, etc.). Its guiding principle is similarly straightforward: it has to encourage both the production of creative works and their dissemination.

The problem is, after decades of horsetrading, the principles of copyright have become tied up in a mess of red tape, and every new reform is a chance for groups to throw in a few more rules and exceptions.

It it wasn't clear before this Access Copyright debacle that Canadian copyright law was in desperate a rethink and a simplification, it is now. The Conservative government is likely going to take another kick at the copyright-reform can, sooner rather than later. Wouldn’t it be great if they used the opportunity to simplify the law so that students and teachers wouldn’t have to feel like they were risking a lawsuit every time they go to the library to study?

Access Copyright: The Globe and Mail's One-Sided Story

2011-08-17T19:08:00.000-07:00

I don’t quite know where to start with John Degen’s attack in the Globe and Mail on the decision of 26 educational institutions (and counting) to opt out of Access Copyright (which collects royalties for Canadian authors mainly from Canadian educational institutions, after taking a healthy cut for administrative purposes). It’s an opinion piece, and he’s expressing his own perspective as a writer (although he certainly doesn’t speak for all writers when he expresses his admiration for AC). But as someone who’s followed this issue for the past year, though not as in depth as some (Howard Knopf is the go-to guy for a blow-by-blow account of this unwinding debacle), I can’t say that I recognize the universities-want-to-stop-paying-writers picture that he paints.

Fair to say, I think, that the Access Copyright-universities battle royale is nowhere near as one-sided as Degen suggests.

What’s missing? A fair accounting would have mentioned that the interim tariff that AC was seeking would have sent university budgets skyrocketing. Knopf reports that the University of British Columbia from $650,000 per year to $2 million per year. That’s a pretty good reason to reconsider using Access Copyright.

I would’ve also expected to read that Access Copyright was seeking (according to the University of Northern British Columbia) to “identify provision of links to resources and displaying resources on computer screens as ‘copies’.” Oh, and to keep the system running, UNBC says “The new tariff would also require that UNBC provides Access Copyright with unrestricted access to University secure networks, systems and records (e-mails, etc.) to conduct annual surveys of copying activities undertaken by faculty, staff, and students. This particular term is not only extremely invasive and labour intensive but UNBC also considers this unacceptable. We cannot condone this level of intrusion into our operations” (emphasis rightly added by Knopf). Again, that doesn’t make Access Copyright look too good.

(I’d also throw in my own annoyance, as a research and a writer of sorts, that Access Copyright has been allowed effectively to define what is meant by fair dealing – copying about 10% of a work, IIRC. That’s an arbitrary choice reflected nowhere in the Copyright Act.)

As for Degen’s assertion that the decision of these universities (most of Canada’s largest) to withdraw from Access Copyright “represents an unprecedented attack on academic freedom” by banning “certain uses of certain Canadian works [i.e., those covered by Access Copyright] from campus,” two points. First, the actual size of AC’s repertoire is disputed (UNBC claims it’s quite small). So how much of a loss this is remains to be seen. Second, it's not like these materials aren't already available through other licences held by universities. And we still have a fair dealing exception in the Copyright Act. I’ll leave the explanation of how that works to Michael Geist (this also links to a good FAQ on what opting out means for universities). Nothing's been banned. Throwing language like that around doesn't do your argument any favours.

The biggest problem with Degen’s opinion piece isn’t really his fault. Obviously this is a high-stakes, emotionally charged issue that highlights the upheaval that digital technologies are causing in the publishing industry. As far as I can tell, the Globe and Mail has done little-to-no reporting on an issue that has the potential to add millions of dollars to already-stretched university budgets, increase tuition and disrupt the way that many Canadian writers get paid.

But instead of providing readers with reportage that can allow them to situate Degen (and Knopf, and Geist, and me), they just throw Degen’s opinion out there. That’s a highly irresponsible act of policy bomb throwing from Canada’s supposed paper of record.

Google and the evil that lobbyists do?

2011-08-15T23:35:00.000-07:00

I'm looking forward to reading Robert Levine's Free Ride: How the Internet Is Destroying the Culture Business and How the Culture Business Can Fight Back, although I'll probably wait until our library here at ANU orders it. At $28.95 for a digital download (only $5 less than the hardcover), no one will be able to accuse Levine or his publisher of looking for a free ride. They have, however, priced themselves out of my market (too-high prices, ironically, being one of the main causes of unauthorized downloads, according to the definitive survey on the subject).

In particular, I hope he goes into a lot of detail on Google's attempts to influence public policy, as Chris Castle's favourable review of Levine's book seems to suggest:

One of the truly significant themes in the book is how Levine has laid out in one place all the different ways that Google influences public policy around the world. This is done through his discussion of the execuprofs, groups like the EFF and Google’s massive contributions to Creative Commons, as well as a history of the YouTube case. I mean the Viacom case against Google–sorry. (Saying “the YouTube case” alone is like saying “my brother is in the Army, maybe you know him.”)

As someone whose whole dissertation essentially came down to studying what groups influence copyright policy in North America and how they do it, this really caught my eye. I'd certainly agree that Google is lobbying for their point of view, but I find it hard to get that worked up about it, especially once we put Google's actions in perspective.

First off, all interest groups lobby for their preferred policies. The most direct way to lobby for your policies in Washington is to hire lobbyists to provide Congresspeople with money and research that supports your cause. On Capitol Hill, the content industries are widely acknowledged as the reigning champs at influencing policy. They've been very successful at wielding arguments (and money) to support their position. As for Google, they're still new at this game (the company isn't even 10 years old), but learning fast. In the second quarter of 2011, Google spent US$2.06 million on lobbyists. That's a lot, but the Recording Industry of America, in the first quarter of 2011, spent pretty much the same: US$2.1 million.

Second, lobbying involves battling to frame the debate, and everybody does it. Against academics like Lawrence Lessig and lobby groups like the Electronic Frontier Foundation, you have well-established groups like the Motion Picture Association of America. Google's relationship with academics (imagine!) like Lessig and agitators (which I say with respect; agitators drive debates) like the EFF is dictated largely by their position as upstarts. They're trying to promote a view different from accepted Washington orthodoxy. Right now, the dominant view of copyright on Capitol Hill is very favourable to the cultural industries; the EFF/Lessig/Google Axis of Infringement faces an uphill battle. For example, the U.S. position in talks like the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership is very pro-stronger copyright and cultural industries.

So, sure, Google is flexing its economic muscles, but it's not like they're going up against underfunded ingenues. And it's certainly not like they're running the show.

When I see Google's attempts to influence the copyright debate in Washington and elsewhere, I see an upstart group attempting to break past several entrenched lobbies to promote its point of view. When I look at copyright policymaking, I see a process that continues to be dominated by cultural industries that have been "fight[ing] back" against technological change since the Clinton White House issued its National Information Infrastructure White Paper on Intellectual Property in 1995. In short, I see politics as usual.

And copyright is nothing if not political.

A few other thoughts:

I'll be very curious to see how Levine recommends that the culture business (by which he seems to mean the companies that publish and distribute books, music, etc., and not the creators themselves) "fight back." I think pretty much everyone would agree that what they've been doing for the past 15 or so years hasn't been very successful in terms of staving off economic contraction.
I also hope his book includes a discussion about how copyright (and all forms of cultural regulation) and technology favours certain types of creation over others (see, Beastie Boys, Paul's Boutique). In other words, that different types of cultural products get produced under different regimes is a fact of life.
In his Guardian column touting his book, Levine doesn't seem to differentiate between the cultural industries and actual creators. The cultural industries are a means to the end of helping creators publish and distribute their works, and while historically economies have scale have made them necessary for creators to get their stuff out there, the two sides often have conflicting interests. Similarly, the objective of copyright historically has been to promote the creation and dissemination of creative works, not to support a particular industrial model.
Does anybody know why Levine seems to have changed the title of his book from Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back? Calling someone a parasite (especially since many of these "parasites" are the culture industries' customers) is a pretty sure way to preempt a civil conversation.

In praise of evidence-based copyright policy

2011-08-03T16:21:00.000-07:00

When I started studying copyright policymaking several years ago, what surprised me most was the the almost complete lack of empirical evidence underlying both existing copyright law and copyright-reform proposals. I'm talking about impartial economic analyses of the effects of copyright. Read pretty much any report, from the U.S. White Paper that led to the Digital Millennium Copyright Act to the discussion papers that kicked off Canada's review of copyright policy back at the turn of the century and you'll find lots of talk about balancing interests and promoting growth, but very little in the way of quantification by disinterested sources of copyright's benefits and harms.

Sure, there are many thoughtful philosophical treatises evaluating the justness of copyright, and there are certainly plenty of reports filled with numbers produced by one side or another to justify a partisan position. But studies looking at the societal impacts of copyright? Not as many as there should be, and those that do exist never seem to find their way into government studies proposing copyright reform. The economist in me bristles at the fact.

Which is why it's so heartening to read today that the British government's intellectual-property reforms include a declaration that "evidence should drive future policy."

Be still my heart! For a debate that's been driven almost entirely by politics and lobbying for almost 300 years, this is a very welcome change of pace.

Glyn Moody highlights the good bits, including the following:

the Government will in future give limited weight in IP policy-making to evidence that is not sufficiently open and transparent in its approach and methodology, and we will make it clear where we are taking this view. IPO will set out guidance in Autumn 2011 on what constitutes open and transparent evidence, in line with professional practice. The Government is conscious that smaller businesses and organisations face particular challenges in assembling evidence and will assess their contributions sympathetically, with the same emphasis on transparency and openness.

Full report here. Anyway, read Glyn Moody's piece. I'll likely have more to say when the actual legislation is tabled. And it'll be interesting to compare the upcoming Canadian legislation to the principles spelled out by the Brits. But for now, three cheers for rational policymaking!

A Tale of Two Treaties

2011-07-25T17:35:00.000-07:00

Big(ish) copyright news out of Canada and Mexico that serves as a timely reminder of the central role of trade negotiations in promoting harmonized intellectual property laws. Canadian and European trade negotiators are apparently closing in on a comprehensive economic and trade agreement, which will include intellectual-property provisions. Michael Geist reports that negotiators remained stymied on the agreement’s IP chapter, including copyright-enforcement provisions that the Europeans would like to model on the Anti-Counterfeiting Trade Agreement (ACTA). Any changes will require legislative amendments.

The lack of progress on IP is not surprising. For an IP importer like Canada, increased protection and enforcement costs represent a pretty unambiguous drain on the Canadian economy and will likely result in higher prices, as the European Union itself concluded in a study on the potential effects of a Canada-EU trade agreement:

The Canadian trade balance would not necessarily benefit from IP provisions in CETA. Trade in specific goods, that are currently freely marketed and exported from Canada, could be adversely affected. For example, several Canadian companies brand and export their products with labels that could be considered as European geographical indications. These companies could lose market shares in domestic and foreign markets if they are forced to abandon their commercially significant labels. Conversely, it is unlikely that Canadian companies would significantly benefit from an increased protection of geographical indications in the European market. In sum, both Canadian exports and imports might be slightly and negatively impacted, but only in specific sectors.

The flip side of this is that Canadian negotiators may simply decide to trade off a bad deal on IP in exchange for perceived trade gains elsewhere. Given the way copyright has become politicized since the first time the Conservatives tried introducing a copyright-reform bill, this is a somewhat risky proposition. Then again, having a majority government makes passing such an agreement much, much, much easier than it would’ve been under a minority government.

The news from Canada makes what’s happening in Mexico even more interesting. While Canada is inching toward ACTA implementation, the Mexican Senate voted on July 20 not to ratify the ACTA (document is in Spanish, but there’s always Google Translate). Reasons cited include concerns about the lack of information provided to the Senate during the negotiations (illegal under Mexican law), the lack of due process under ACTA and the cost of requiring ISPs to monitor and enforce copyright infringement in a way that’s currently illegal under Mexican law and the Constitution, as well as other issues like net neutrality, censorship and privacy concerns. They also raise the concern that ACTA could lead to restrict both freedom and Internet usage, potentially broadening the “digital divide” and restricting the introduction of beneficial new technologies that would support the development of the information society (a key Mexican development goal).

As I noted earlier, many of these findings support the view that the Mexican telecommunications industry is making its voice heard, and that concerns about economic development have trumped the previously dominant view in the Mexican Senate regarding the need to increase copyright protection.

So, for the time being, anyway, ACTA is a dead letter in Mexico. (Though it could come back.)

The different approaches of the two countries serves as yet another reminder of the effectiveness of using trade agreements to force copyright reform in partner countries (next example: the Trans-Pacific Partnership talks, whose IP aspects have been described as "ACTA the sequel", only with a WTO-like enforcement mechanism). At the same time, however, Mexico’s current debate suggests the limit of this strategy. In situations where market access doesn’t exist as an incentive and where the domestic politics do not favour reform, it is much harder for one country to reform another’s copyright laws.

In other words, the Canada-EU trade talks allow the EU to link something Canada wants (market access) to something that the EU wants (Canadian IP reform along EU- and ACTA-friendly lines). Even though such reforms are not on their own beneficial to Canada for the reasons the EU report suggests above, there’s a pretty good chance they’ll happen, the result of a trade-off needed to get an agreement done.

In Mexico, no such linkage is happening, although it is part of the Trans-Pacific Partnership talks, along with the United States (Canada is not). And so ACTA is rejected, the victim of the mobilization of domestic constituencies.

Which brings us to the big question. Most major countries now have relatively open access to each other’s markets, so market-access is less of a problem for most countries than it was even two decades ago. Copyright laws, meanwhile, are regularly undermined by things like technological change. In a world where the IP powers can’t offer countries improved market access, but where they still want stronger copyright protection, how likely is continued copyright harmonization? If we want to predict the future, do we look to Mexico’s rejection of ACTA, or to the Canada-EU trade talks? Maybe I'm underestimating the appetite for more trade agreements?

The difficulty of looking inward

2011-07-23T18:41:00.000-07:00

Reactions to the horrifying bombing and shootings in Norway have demonstrated yet again how hard it is for us to acknowledge that our own societies might have their own dark side. This is nothing new: we all have the tendency to play up threats from without (Osama bin Laden) and play down threats from within (Timothy McVeigh).

Most obvious has been the kneejerk tendency to claim this was an act of Islamic terrorism. I first read about the attacks on my Facebook feed, where the New York Times’ Nicholas Kristof, without any evidence, wrote, “Looks like Al Qaeda.” The Atlantic’s James Fallows, Ta-Nehisi Coates and Steve Clemons also rightly take The Washington Post and writer Jennifer Rubin to task for writing the same thing in much more detail. Kristof, Rubin and the Post have yet to retract/apologize for what they wrote, although Kristof has since acknowledged on Facebook that the alleged murderer was actually a right-wing extremist.

That’s all par for the course. I think we all have a tendency to jump to conclusions. Rather, the more fascinating thing about people’s reactions is how the facts of the case – the suspect is a Norwegian (white!), Christian, right-wing extremist whose beliefs are more in line with Mark Steyn than bin Laden – are incorporated into the widespread belief that Islamic terrorists pose an existential threat to the West.

Case 1: James Fallows, who shares an email from a “Norwegian friend whom my wife and I have known since he came to the U.S. for graduate school in the 1970s.” This friend, whose letter is run without comment, suggests that “we are seeing is a mutation of Al Quaeda / Jihadist tactics, to domestic political action and the surprise is that it happened in peaceful Norway. (Yes, there was McVeigh and Oklahoma city, but it feels different, and maybe it is different just because it happened before 9/11).”

There’s a lot in here, though the letter is interesting more for what it tells us about how the writer perceives the world than what it says about the actual event.

Start with the assertion that we’re seeing a “mutation of Al Qaeda / Jihadist tactics to domestic political action.” Can we really call the bombing of government buildings and the mass murder civilians to make a political point “Jihadist tactics”? That countless groups throughout history have used such tactics to further domestic political aims suggest that he’s just plain wrong about the novelty of such attacks, in Europe if not in Norway.

Paul Wells links us to Dan Gardner, who reminds us that non-Islamic terror groups are much more active in Europe than Al Qaeda and its sympathizers.

The overwhelming majority of the [failed, foiled or successful terrorist] attacks [in Europe in 2009] - 237 of 294 – were carried out by separatist groups, such as the Basque ETA. A further 40 terrorists schemes were pinned on leftist and/or anarchist terrorists. Rightists were responsible for four attacks. Single-issue groups were behind two attacks, while responsibility for a further 10 was not clear.

Bombing government buildings and murdering civilians to make a political point, or the desire to do so, is a commonplace among extremist groups, including domestic groups. Full stop.

Which brings us to why, for this person, this attack “feels different” from “McVeigh and [the] Oklahoma City” bombing. It can’t be the facts of the case: McVeigh bombed a building and killed a lot of people, too. He, too, was a Christian, right-wing homegrown extremist. My guess is it feels different because of our very human tendency to attribute evil acts to outsiders.

His comments put me in mind of a Canadian friend, living in Japan, whose apartment was robbed. (Luckily, he had hidden his money in a copy of Marx’s Das Kapital, which the thieves for some reason left behind.) As I remember the story, the police were sure that foreigners were to blame: they were shocked when some Japanese kids confessed to the robbery.

To non-Japanese it’s neither surprising nor a sweeping indictment of their society that some Japanese kids were to blame for the break-in. No society is free of criminals, just as no society is free of violent racists. I’ve never been there, but I would be shocked if Norway were any different. Suggesting that this alleged murderer is “an individual host for the Al Qaeda gene” is akin to claiming he had been infected by some foreign virus, contaminating the otherwise-pure body politic of Norway.

I don’t know how helpful this line of thinking is, considering that domestic political violence is nothing new (Canada has experienced its share of "homegrown" terrorist bombings, from the 1970 October Crisis in Quebec and the 1985 Air India bombings to the more recent bombings of oil pipelines in Alberta). It may be easier – and in these nationalistic times, more popular – to condemn evil foreign influences, imagined or otherwise, than to confront “homegrown” problems. But the ability to do so is a sign of national strength, not weakness.

(And I haven’t even gotten into his suggestion that this might not have happened if there had been an ultra-right-wing party there to moderate the alleged attacker’s views, since the party would moderate its views in search of votes. Exactly how does that work in a system prone to coalition governments?)

My thoughts go out to Norway, and the families of the victims of this atrocity.

The "b" is for bargain!

2011-06-23T05:22:00.000-07:00

A small housekeeping note: I successfully defended my dissertation on May 26. It was accepted without revisions. Post-defence dinner at Town was excellent, as always. My wife, who's been in Australia since February working on her PhD, bought us a tasty bottle of Prosecco, which was enjoyed by all.

I will be posting a copy of the dissertation shortly. I might even write about the defence experience (very positive) at some point, but don't hold me to that. Thanks to everyone who supported me in my work over the past six years.

The Mexican vote against ACTA: A pretty big deal

2011-06-23T05:09:00.000-07:00

I don’t know what the Mexican Congress’ formal call for the Mexican Executive not to sign the Anti Counterfeiting Trade Agreement means for the future of ACTA in Mexico (Techdirt story here). However, it does seem to mark a sea change in Mexico’s treatment of copyright in general. As I discuss in my dissertation, in 2003 a nearly unanimous Congress extended the term of copyright to a world-leading life of the author plus one hundred years with only a cursory debate. Going from reflexively approving a huge strengthening in copyright law to calling for the rejection of the latest attempt to strengthen said law: that’s a pretty big change.

What’s going on? Based on my dissertation field work, two things, I think. First, the telecoms are pretty strong politically and economically in Mexico, and I’m pretty sure their goal is to minimize ACTA’s burden on their bottom line (ACTA being driven by the content industries and all). As I've noted elsewhere, even though telecoms were largely excluded from what were secret content-industry-driven negotiations, they are too powerful not to have a say when it comes time to actually implement ACTA into domestic law.

Second, and most interesting, the traditional rhetorical argument for stronger copyright in Mexico – that it’s needed to support the national culture – is running up against an equally powerful narrative: the need for economic development. Mexico’s current National Development Plan emphasizes the need for improved broadband penetration. Along those lines, COFETEL, Mexico’s telecoms regulator, the rough equivalent to the CRTC here in Canada, argued back in November that ACTA could worsen the digital divide. Its view was supported by the Senator Carlos Sotelo of the left-leaning Party of the Democratic Revolution (PRD). He said that Mexico needs a balanced copyright law that guarantees a universal right of broadband access.

As well, Senator María Beatriz Zavala Peniche of the centre-right National Action Party (PAN) emphasized that copyright law should support individuals’ rights to the dissemination of knowledge and the sharing of culture.

So what we have here are a powerful economic interest group (the telecoms) and a potent counter-narrative (economic development). Anyone interested in copyright reform should be paying very close attention to Mexico. It will be very interesting to see the extent to which this copyright-versus-development narrative takes hold, both in Mexico and abroad.

No free pony for you

2011-06-02T10:29:00.000-07:00

There are few things I love more in life than the music of Cracker and Camper van Beethoven. During a stint as the Arts editor at my undergrad student paper, I once drove our editor-in-chief half mad by commandeering the office stereo and playing Cracker's masterpiece Kerosene Hat nonstop for an entire month. (I also managed to get Cracker named the paper's official band, over the E-i-C's strenuous objections. Democracy's wonderful when you're good at vote counting and taking your opposition by surprise. Good times.)

So I couldn't help but link to Camper's announcement for their shows this weekend in California (they're also hosting a weekend festival in Virginia June 17 and 18) weekend shows. Especially since, as I'm sure you'll agree, it fits so well with much of what I cover here in the Orangespace.

Oh, and do pick up Cracker/CVB frontman's David Lowery's solo album. It's terrific.

Free Pony Giveaway. This weekend's shows
You realize I'm joking right? No free pony giveaway. I mean we were really ready to do it. Give away a free pony to everyone that came to this weekend's shows. But apparently there are problems with doing something like that. ASPCA and ASCAP both had a problem with pony giveaways. I mean I understand that the ASPCA having a problem with the free pony giveaway. But ASCAP?
Apparently The American Society of Composers and Publishers wants us to pay a performance royalty of 2 cents for every whinny that each "free" pony emits over it's estimated lifetime of 27 years. They have that calculated at approximately 571,590 whinnies per pony over it's lifetime. This comes to $11,431.80 for each pony. Given the fact that we are expecting over 250,000 people at each show this weekend this would come to a grand total of $8,573,850,000 (perhaps a little lower as people who attend more than one show might refuse a second or third free pony).
...
Some of you may be wondering exactly how did ASCAP come to control the rights to a pony's whinny? It's a long and interesting story. Apparently most pony's whinnies are more than 8 notes long. This means they can be copyrighted and "published" as a melody. It turns out that in the early 1990s when Michael Jackson bought the rights to The Beatles catalogue he also had a team of UCLA musicologists catalogue, notate and publish every known horse whinny including the rare greenlandic horse's "Ed McMahon" whinny. As this was a work "for hire" Michael Jackson's estate now controls the rights to every public performance of a horse whinny. Michael Jackson's estate then assigned these rights to ASCAP to administer.

Although your gift horse's whinny in your own home might seem like a private performance it is not! Because the horse was gifted to you at a public concert all subsequent whinnying is considered the "fruit" of the original public performance. This has been challenged twice in the US supreme court and each time the Supreme court upheld it in an 8-1 ruling. Justice Ginsburg dissented both times. (see The Osmonds vs Sony/ATV 1996 and Mattel vs Sony/ATV 2004).
...
**final note. That nearly soundless a-a-a-a-a-ack-ack ack that your cat makes while looking at birds through a window is also controlled by the Michael Jackson estate. Our attorneys have advised us not give away free kittens either.

The copyright hammer

2011-05-31T06:57:00.000-07:00

It might just be me, but I've noticed an increase (from about zero) in articles and reports on the way that copyright restricts people's access to information and cultural works, with sometimes negative consequences. This morning, I stumbled across a series of articles in the U.S. Chronicle of Higher Education, titled "The Copyright Rebellion." They tackle the crucial issue of how copyright law actually interferes with teachers' ability to teach and students' ability to learn by making it unaffordable for professors to place copyrighted works on their curricula, or for music students to play works by composers who have been dead for decades.

Highly recommended, and a good reminder that the purpose of copyright is to promote both creation and dissemination. While it deals with U.S. copyright law, and Canadian copyright law is somewhat different (fair use in the U.S., fair dealing in Canada, for example), the general principles do apply in both cases. Whether copyright actually does promote creation is an open issue for which the evidence isn't all that favourable, as I've noted before. But there's no question that it restricts dissemination, as these articles amply demonstrate.

Supreme Court Takes Up Scholars' Rights

Out of Fear, Colleges Lock Books and Images Away From Scholars

Pushing Back Against Legal Threats by Putting Fair Use Forward (also has a list of links to articles on copyright and fair use for academics and librarians)

What You Don't Know About Copyright, but Should (U.S. focus)

Election 2011: What did journalists bring to the table?

2011-05-01T06:14:00.000-07:00

Interesting conversation on CBC Radio’s The Sunday Edition on the media’s coverage of the election. What got me thinking was one of the panelists' contention that the skills reporters bring to the table may not be useful to voters deciding what to do on election day.

Reporters are rewarded for reporting novel facts – scoops – not providing information. For example, as one of the panelists pointed out, journalists and citizens look at leaders’ debates in different ways. Journalists report on them like a horse race – who won, who lost – while voters weigh the performance of the leaders and what they actually said. Facts and motion versus useable information.

So what does journalism contribute to a voter's decision? If you want to know where the parties stand on an issue, you can read their platforms online. If you want a feel for the leaders, you can watch the televised leaders’ debates. If you want to know where the parties stand in the polls, well, there are quite a few websites you can hunt down, including those of the pollsters themselves. Meanwhile, journalists are reporting on the same stuff that your average web-surfer can find in under two minutes.

We already have a one big piece of evidence that the media matter less in an election than one might think. The media as a whole only started covering the NDP in depth once it started rising in the polls. In other words, Canadians massively changed their opinions about the NDP largely absent substantial media coverage of the party.

Discussions about the future of journalism take for granted that journalists play an indispensable role in engaging citizens in the political process. The CBC conversation had me wondering if that’s not a bit wrong – that we as voters get only drabs of information as an unintended byproduct of reporters’ search for the novel and (often) trivial. Balance is of the "he said, she said" variety, often lacking historical and factual context – I'm thinking of the shameful lack of pushback on Stephen Harper's patently false vilification of a possible Liberal-NDP-Bloc coalition as unconstitutional in 2008. In other words, journalism as it is currently practiced in Canada may serve the democratic process not directly, but in spite of itself.

It’s at this point where most critics would call on the media to reform itself, to stop treating elections like a sporting event and start providing Canadians with more information. I’m not sure that such a change is possible. Maybe journalists are, by definition, fact chasers: pack animals, trained as generalists, hardwired to suss out novel facts no matter how trivial or irrelevant (I’m not going to bother linking to the latest media-perpetuated smear campaign against Jack Layton). If they can't change their spots (and, given that these complaints recur every time there's an election, I'm betting they can't), maybe we should stop expecting them to behave otherwise and focus on getting our information from other outlets.

Three reasons not to fear the NDP

2011-04-30T08:25:00.000-07:00

Like everyone else, the NDP’s surge caught me by surprise. At the outset of the campaign, I was predicting a Liberal minority government, with an outside chance of a Liberal majority. My sense was that Harper had only one card to play – fear of a Coalition – and this fear card would drive Canadians toward the alternative. I didn’t suspect the alternative would be the NDP.

Of course, I have no idea who will come out on top on Monday, but on the off chance that the NDP gets a sniff at government, I thought it might be useful to come up with a list of reasons why we don't necessarily have to fear the descent of a socialist horde. An NDP government (and, again, such a thing seems far, far from certain from the Saturday morning before the election) could govern poorly, sure. Inexperience could mess things up. But it would not be an unabashed disaster for Canada; life would go on as it has lo these many years.

Right on the big issues

The three biggest issues of the past several years were the Canadian mission in Afghanistan, the financial meltdown and the resulting, shall we say, economic hardships. In all three cases, the NDP had the soundest policies, and it would be nice to see this rewarded. On Afghanistan, the NDP has consistently advocated for Canada’s withdrawal from a war we have no hope of winning (with winning redefined every day) in a land we do not understand. The Harper government’s position on the war has been infinitely malleable, as has the Liberals’. At first, withdrawal was called “cut and run” and Jack Layton’s patriotism was questioned by the Conservatives (the shameful “Taliban Jack” insult). Then, it was on the table, and now I’m not sure what the Liberals or Conservatives see the end game as being.

On the financial meltdown and the recession, the NDP historically is a strong proponent of sound financial regulation, which is what saved our bacon while other countries’ financial sectors were getting trashed. And on the recession, of all the parties, the NDP is most open to the type of government stimulus spending that is necessary when private demand is in the tank.

A history of pragmatism

His time on Toronto City Council and as leader of the NDP has revealed Jack Layton to be a pragmatist. He will work with whomever he can to get something done. In a minority-government situation, this would translate into a functional minority Parliament, which would be cause for celebration in and of itself. It also means that Layton would likely focus on moving forward achievable policies, not pie-in-the-sky revolutionary changes. Canada will not become the Union of Canadian Socialist Provinces.

A more responsible party

For me, the main reason why giving the NDP some responsibility would be a good idea is that if absolute power corrupts absolutely, so does a lack of power. When you never have any responsibility, you can say anything you want, secure in the knowledge that it doesn’t really matter. The NDP's election of Layton, a man with practical governing experience, as leader was a step toward tempering ideals with experience. Placing NDP members in positions of power and influence would help the NDP to think about what their policies mean in terms of actually governing a country, and that can only be a good thing for the country as a whole.

So: right on the issues, a pragmatist at the helm, and the potential to allow a political party to mature. There’s your case for why you shouldn’t fear an NDP government.

Michael Ignatieff's failure

2011-04-30T08:13:00.000-07:00

I’d like to suggest an alternative explanation to the emerging consensus about why Michael Ignatieff and his Liberal party are polling so poorly among Canadians. This consensus, echoed by Irshad Manji, Jeremy Keehn and countless others, is that the Conservative attack machine has successfully tarred Ignatieff as a dilettante expat elite who’s too brilliant and accomplished and (therefore) out of touch with “ordinary Canadians.” He’s “too ambitious.” We Canadians, suffering from what Manji calls “petty parochialism,” can’t stand anyone who stands out, and so we attack them as un-Canadian and cut them down.

Here’s a better explanation that doesn't depend on warmed-over cultural and literary analysis: Michael Ignatieff, for all his achievements, is a not a very good politician.

The underlying assumption of all these cultural analyses is that anybody can be a politician, and that success in one field can translate into success into this one. Folks, it just ain’t so. You can be a brilliant economist or academic and be only an average politician. If academic and profesional smarts were enough to guarantee political success, John McCallum (former Dean of the Faculty of Arts at McGill and former Chief Economist of the Royal Bank of Canada) would be prime minister.

Being a politician is a specialized occupation that has a specific skill set: empathy, a strategic mind, and debating and speaking skills (just off the top of my head). Ignatieff does passably well at most of these, although his performance in the leaders’ debates suggests that being able to ask questions as a journalist or a professor does not necessarily translate well into a political debate.

Most of all, however, a successful politician has to understand what his or her constituents want and need, and this is where Ignatieff runs into trouble. I’m going to try to be very careful with what I say next, because it runs very close to the polemical Conservative attack on Ignatieff. Here goes:

The only way a politician can understand what his community (be it a city, riding, province or country) cares about, is to be enmeshed in the life of that community. The longer you’re immersed in your community, the easier it becomes to “read” it. Call it a type of learned intuition.

In my travels as an economist with various parliamentary committees and associations, I was always impressed by how MPs from all parties, of varying levels of ambition and capability, were always on top of the issues that they knew would be of greatest interest to their constituents. They knew how to talk about and to their constituents. We'd be at the WTO talking trade and they'd keep the conversation grounded. It’s a skill developed over years of living in their community, and years of thinking about and talking with people in the community.

I’d argue that this learned intuition is the mark of all successful politicians. With time, Michael Ignatieff has gotten better at it, good enough to be an okay retail politician. Ignatieff's tone-deafness was clear to all in 2009 when he waded into the debate over asbestos, prefacing his comments by saying, "I'm probably walking right off the cliff into some unexpected public policy bog of which I'm unaware." You don't say: the asbestos lobby, as he should have known, is strong in Quebec.

While this recent campaign has been free of these type of comments that painfully demonstrated that he was not sensitive to Canadians’ political sore spots, Ignatieff’s problem is that he’s not just applying for the job of politician; he’s applying for the job of top politician in Canada. That’s simply not a job that you can parachute into and expect to do well, no matter your bona fides in other fields. You have to be at the top of the game, which is politics and is (I repeat) a specialized field.

It’s the type of job you spend a lifetime preparing for, thinking about Canada and your vision of what it should be. Rather than consider Canada – and even Canada’s place in the world – Ignatieff’s intellectual development over the past 35-40 years has focused on other issues, like human rights and international relations.

I'm not saying that Michael Ignatieff doesn’t deserve to Prime Minister because he isn’t a real Canadian, which is what Manji thinks is the main knock against him. What I’m suggesting is that you can only be a successful politician if you’ve thought long and hard about issues of interest to your community, if you’ve dedicated yourself to listening to and working within and in your community. The higher you aim, the better your skills and learned intuition better be. And Ignatieff's skills – his learned intuition – are not good enough. Thomas Walkom made a similar point in 2009, comparing Ignatieff to John Turner, another guy who'd been out of the game too long.

Barack Obama’s a good example of what I’m talking about. Like Ignatieff (another smart cookie), Obama famously had very little experience in elected office before becoming president: a term as a state senator, most of a term as a U.S. senator. But as anyone who’s read his memoir, Dreams from My Father knows, Obama has spent his whole life reflecting on where he fits into U.S. society, and on the nature of that society. He worked as a community organizer. He was editor of the Harvard Law Review. These are all experiences that enmeshed Obama deeply into the political and cultural life of the United States.

Again, it’s not that Ignatieff is too ambitious and too worldly. It’s that he skipped the coursework and now wants a pass on the final exam. Even the most brilliant student can’t pull that off.

My sense, for what it’s worth, is that Canadians have picked up on Ignatieff’s lack of a politician’s understanding of Canada, which Conservatives have twisted into an accusation that Ignatieff is, somehow, not Canadian enough. As Irshad Manji notes, that’s absurd: Ignatieff is as Canadian as Stephen Harper, Jack Layton or (even!) Gilles Duceppe. But just because Ignatieff is a true Canadian doesn’t mean that he has the skills, including the learned intuition about Canada, that we should expect from someone who wants to be Prime Minister. If you don’t spend your life training for the top job in a G-8 country, why should we give it to you?

WikiLeaks cables: U.S. behind drive for Canadian copyright reform (who knew?)

2011-04-30T07:32:00.000-07:00

I see that WikiLeaks has finally released the cables from the U.S. embassy in Ottawa. They’ll make for some fine reading as I prepare for my thesis defence (May 26 at Carleton University, Loeb Building A631 at 2 pm – bring your friends!). For now, you can catch up with some analysis from Geist (here (main one), here, here, here, here, and here) and Techdirt. Zeropaid also has a nice opinion piece on the whole release (h/t Russell McOrmond).

I’m happy to note that the cables, at first glance, seem to corroborate my dissertation’s argument as it relates to Canada (summarized here), so that’s good. Two things stand out to me.

First, one of my dissertation’s main points is that the United States usually can only get its way on reforming another country’s copyright policies if it offers something that the other country wants. True enough, but as the cables also suggest, a country can attempt to use the offer of copyright reform to try to get the United States to move on an issue of interest to it. In one cable, Canada says that U.S. movement on regulatory cooperation as part of the Security and Prosperity Partnership of North America (SPP) was what it wanted in exchange for Canadian copyright reform.

These two points are mostly saying the same thing, but the second emphasizes that there can be a significant amount of give and take on such policy debates, even on an issue of great importance to the larger country. Whether it works or not is another issue (the U.S. here saw Canadian attempts to link copyright to an unrelated issue as a stalling tactic. That they would comment negatively on such a linkage also suggests that linkage remains the exception, not the rule, in Canada-U.S. relations).

Second, in reading these cables and others, I’m continually struck by how open the U.S. system of government is. I’d go so far as to say that the great value in the WikiLeaks cables isn’t in what they tell us about the United States, but what they tell us about our own, very secretive government. Going far afield of copyright, the Tunisian revolution was partly sparked by revelations not about what the United States was doing in Tunisia, but about what the Tunisian government was getting up to.

Copyright infringement and high prices

2011-03-07T16:09:00.000-08:00

Just a quick note to highlight the release of a new study, Media Piracy in Developing Countries. One of its main points seems to be that copyright infringement in these countries is largely driven by the high (monopoly) prices that companies charge for their wares in countries like Mexico, where almost half the population lives below the poverty line. I've only read the introduction and the Mexican case study (which has lots of good information on the Mexican informal sector in general and Tepito in particular), but seeing as just this morning I was hoping for more copyright scholarship focused on empirical issues, I can't wait to read the rest of the report. I'll even forgive their use of the word "piracy" in their title.

For the record, its case studies are South Africa, Russia, Brazil, Mexico, Bolivia and India. They also have a few chapters focused on more big-picture issues.

It also strikes me that the report, which was funded in part by Canada's International Development Research Council, is focused on the big picture:

we see little connection between these enforcement discussions [around copyright] and the larger problem of how to foster rich, accessible, legal cultural markets in developing countries—the problem that motivates much of our work.

This is exactly what we need: a greater focus on spurring cultural production, an openness to different ways of doing so, and less of a focus on copyright as an end unto itself.

The ideology of copyright

2011-03-07T06:15:00.000-08:00

Peter Nowak is currently running a series of posts offering predictions about the future of science and techology, including weather control (!). The whole series (actually, the entire blog) is worth reading, but today he has a post about the future of copyright, an issue of some interest to me. It's titled "2021: The move to worldwide copyright," but I wonder if a better title wouldn't be "The move to worldwide licensing." I'm pretty fixated on copyright these days, not so much on licensing, so I'd be happy to hear from anyone with an opinion on the subject. Any thoughts?

Anyway, I've posted a couple of lengthy comments there, including one in response to some typically insightful remarks by Russell McOrmond.

The comments allowed me to put to paper something I've been thinking about for a while: what would it take for people, companies and governments to move beyond a fixation on copyright toward a focus on what copyright is supposed to do, namely regulate the market in creative works. Competition, I think, isn't enough:

When it comes to copyright, we’re dealing with a centuries-old policy that is rooted in two core Western beliefs: property and the individual. The major international copyright institutions (WIPO, TRIPS, and now ACTA) are devoted to promoting copyright. It’s so deeply ingrained that people talk as if it’s an end unto itself, rather than one specific tool for regulating markets in creative works. Once people in power start talking about copyright as a tool that should be judged on its effects, then change will become more likely. My biggest hope for the copyright debate is that it will one day shift from the realm of philosophy and legal theory to that of empirical economics. I’m still waiting.

At this point in time, it’s quite obvious that publishers, the other content industries and content creators who profit from the current copyright system believe as a matter of faith that copying is stealing. Hence the lobbying and the legal battles. A decade of bad press and faltering business models haven’t changed that. As far as I can tell, there seems to be very little evidence to suggest that this will change anytime soon. It has nothing with anyone being stupid. One’s ideologies change very slowly, if at all, since they’re at the core of our self-perception. It’s not surprising that companies, run by humans, leave money on the table all the time and often commit what seems like suicide rather than change with the times. I’m not going to make any predictions, but I’d suggest that taking ideology into account may complicate the story.

Read the whole post here.

Perimeter Security: SPP, Take Two

2011-02-10T04:13:00.000-08:00

I’m in the midst of trying to finish my latest dissertation draft and get our house ready to go on the market – if anyone is interested in owning the former Ottawa residence of one of the creators of Coronation Street (for real), drop me a line – so I don’t have as much time as I’d like to comment on Friday’s Canada-U.S. declaration, “Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness.” But given that my dissertation is all about North American governance, I’d be remiss if I didn’t at least note that this agreement has the potential to radically reform North American relations.

A few preliminary notes:

1. In effect, this Declaration represents the streamlining of the ill-fated Security and Prosperity Partnership of North America (SPP). The dozens of working groups have been replaced by one (the Beyond the Border Working Group) and the laundry list of SPP projects has been pared down significantly.

Oh, and Mexico’s out entirely – how’s that for streamlining? From a regional-governance perspective, Mexico’s exclusion from this process is quite important: it suggests that “North America,” defined as Canada, the U.S. and Mexico, is at a crossroads. It could either represent a return to the pre-NAFTA world in which “North America” referred to Canada and the United States or, if Mexico and the United States reach a similar agreement, it would drive another stake into the notion that the three countries have a “trilaterial” relationship, rather than a “double-bilateral” one focused on the United States.

Either way, expect Canada to pay even less attention to Mexico than it has over the past decade.

2. Keep your eye on how the Working Group recommends that “threats” be identified and defined. My wife has been working on the issue of threat identification for the past several years (she just started a PhD on it too – can’t have too many doctors in the family), so I’m very conscious that threat identification is a political exercise. Issues, actions and people that are seen as “threats” vary over time and by country. Threat definition is not something that has ever, ever been left to policy wonks.

To see what I mean, ask yourself how the two countries might rank such possible threats as marijuana and the gun trade, and how they might differ on invasive body scanning at airports. Oh, and don’t forget about Cuba.

3. If you’re expecting this deal to finally guarantee Canada secure access to the U.S. market – and that’s what this deal is all about – I’d temper your hopes. The main threat to Canada’s access to the U.S. market is not U.S. perceptions that Canada is weak on terrorism (even though the 9/11 terrorists did not come through Canada), but that the two countries still have two separate systems of government, and that’s not going to change any time soon.

Congress still runs the show in the United States, as does Parliament in Canada. That’s all well and good, but it also means that there’s nothing stopping Congress from raising protectionist barriers to combat “foreign” threats (think softwood lumber) or raising barriers to entry (think Western Hemisphere Travel Initiative) when “domestic” interests are threatened. This Declaration does nothing to change this state of affairs.

Making predictions is a mug’s game, but I’d wager good money that the next time a 9/11-level cataclysm hits the United States, and whether or not Canadian policies actually contributed to the problem, all the people who supported a perimeter security concept as a way to guarantee Canadian access to the U.S. market (your Wendy Dobsons, your Michael Harts, your Derek Burneys) will be calling for even greater changes in order to finally – finally! – secure our access to the U.S. market.

Of course, that’s what the Canada-U.S. Free Trade Agreement was supposed to do. And NAFTA. And the SPP. And now this Declaration. Each approach repeats the mistake of the last: refusing to take seriously how the persistence of national governments affects the attempted creation of a single economic space. All the security-economic tradeoffs in the world can’t get around the fact that Congress and Parliament continue to make laws for their respective countries. And when push comes to shove, Congress will side with their constituents.

Oh, and given that security policies can never guarantee 100% security, there is a non-zero possibility of terrorists attacking the United States via Canada, even with a security perimeter. In that case, you can bet that this Declaration would do absolutely nothing to protect Canada, and we’d be back to square zero, having traded the ability to control our own borders for the illusion of U.S. market access.

4. Given my pessimism that these changes will do little to guarantee Canadian access to the U.S. market in the long term, especially in the event of a possible Canada-linked terrorist attack, I’ll be evaluating each proposal on their own merits. Finally fixing the Windsor-Detroit border crossing would be a good thing, for instance. Sharing information with the United States on how many times I enter and exit Canada, not so much. And there’s much, much more in there.

The key point, however, is that all of these issues are inherently political, and anyone who says that they’re not is either being disingenuous or should know better. Given that perimeter security is a U.S. demand, I’d be surprised if the United States adopted Canadian policies, rather than the other way around. Then again, it’s early days, and I’ve been wrong before.

5. And hey! I managed to discuss the Declaration without once using the word “sovereignty.” My one wish for the upcoming debate over perimeter security is that our politicians and journalists treat their constituents and readers with respect and actually discuss the content of the Declaration: who will be making decisions? What will they be deciding? Like “piracy” in the copyright debate, “sovereignty” is a loaded word that actually tells us very little about what’s actually going on.

Why the leak of the Pre-Budget Consultations report doesn't matter, except to the committee's researchers

2010-12-16T05:22:00.000-08:00

As someone who was involved in the House of Commons’ Finance Committee’s pre-budget consultations for several years, the leak of the committee’s draft recommendations by a, shall we say, opportunistic, Conservative staffer couldn’t help but catch my eye. While reports are focusing on the effect of the leaks on the political parties, let’s not forget the researchers who actually wrote the report.

The whole pre-budget consultations process is pretty intense. In the space of three months or less, the committee, aided by their tireless researchers and a committee clerk, hears from hundreds of witnesses in Ottawa and on the road. Researchers then have to take these hundred of submissions about every conceivable topic (seriously: we heard about every conceivable issue to which a dollar sign could conceivably be attached) and write a big honkin’ report that has to be translated, submitted to the committee for approval, edited and revised to reflect the will of the committee.

Writing the report and attending the meetings was actually a lot of fun, like getting your own personal annual update on the state of the Canadian economy. And I think that the reports did (and do) a fair job of accurately representing Canadians’ main economic concerns, which is what I think the Finance Committee always sets out to do.

But let’s not overstate the importance of the process. Far from being a crucial input into the making of the federal budget as the Globe and Mail’s breathless reporting suggests, the Finance Committee’s pre-budget consultations report is exactly as effective in influencing government policy as any other parliamentary committee report.* Which is: hardly at all.

For starters, the committee’s report is not binding on the government. There’s also the fact that the Finance Department and Finance Minister have been conducting their own pre-budget exercises for years (dating back to the Liberals, I believe). Between this duplication and the current government’s incessant appetite for polls (different in degree, not in kind, from its predecessors), I’d be surprised if the government learned anything new from the committee’s work. I’m also fairly certain that the overall thrust of the budget is not determined by the Finance Committee.

Oh, and then there’s the fact that when there’s a majority government, the government effectively controls the committee, so it’s not like anything embarrassing to the government would get into report anyway.

The report can be useful as a way for MPs to signal to the government what they feel are important issues, and specific recommendations may not be 100% in line with the government’s agenda, but I’d be very surprised if something that the government (read: Prime Minister) of the day really didn’t like would ever get into a pre-budget report. (I should say here that as a non-partisan staffer I was never privy to intra-party discussions. We simply followed the will of the chair and the committee.)

That such a potentially valuable annual exercise doesn’t contribute more to the federal budget is a sad reminder of the growing irrelevance of Parliament, and it’s something that Canadians should be concerned about. I also feel for the researchers who’ve been working 12-hour days for the past month only to see their work trashed by the inexcusable and offensive actions of a political staffer. But as far as any effect on the way that the budget is currently made, the cancellation of this year’s Finance Committee’s pre-budget report will hardly matter at all.

* The Globe article, as the Globe's Parliament Hill coverage tends to do, focuses exclusively on the horse race aspects of the report. From that perspective, sure, the cancellation of the budget robs parties of the chance to score political points based on the differences between the committee report and the eventual budget. Me, I'm more concerned with more boring stuff, like what's actually in the budget. Even if you care about the political horse race, based on what I wrote above I don't see how the report can really tie the Finance Minister's hands. The Conservatives control their own MPs and could easily dismiss any annoying opposition recommendations.

The Wikileaks dump: Kind of a big deal

2010-11-30T17:37:00.000-08:00

Four quick points about the Wikileaks document dump.

1. I think it’s a mistake to simply shrug off the leaks, as my good friend Erin at Media Souffle and many others have done. The conventional wisdom that’s emerged about the leaks – that they don’t tell us anything we don’t already know – misses the most interesting thing about the whole situation. Which is: even without access to insider views, academics and journalists (when they're speaking truth to power) have been providing us with a pretty good picture of how the political world works.

This is huge. I live in Ottawa, so I’ve had my share of conversations with people with security clearances who attempt to trump every argument with an infuriating, “If you only knew what I knew…” (infuriating military corollary: “If you’d seen what I’ve seen…”). Well, these releases actually prove that in 99 cases out of 100, we do know what you know. There’s a tendency, particularly in some parts of government, to fetishize “secret” information, merely because it’s classified, and to denigrate open-source information sources. These leaks are actually a good argument in favour of open-source research.

For us academics, most of whom don’t have access to this deep kind of insider information, this is fantastic news: it means that our theoretical models and information-gathering methods are actually providing us with a reasonably accurate picture of the way that the political world works.

And, of course, there is the one case out of 100 that actually does tell us something new. I, for one, had no idea that every country in the Middle East is pressuring the U.S. to attack Iran. I’d also argue that having proof that United States is spying at the United Nations, breaking formal international obligations, is a big deal. Saying that this isn’t a big surprise says more about our lowered expectations for the rule of law and what we consider appropriate behaviour than it does about the leaks themselves.

2. One of the reasons that these leaks didn’t tell us much that we couldn’t have inferred from paying attention to the world is that they came from the United States. One thing that stood out in my dissertation field work was how open U.S. government sources and lobbyists were in presenting their positions. Sure, they know that you might disagree with them, but they are more than willing to share their perspectives with you. With some notable exceptions, the Canadian government was much harder to deal with (Exhibit A: Three years and counting for the documents I requested under the 30-day Access to Information process).

I wonder if a document dump of Canadian cables would have been as shrug-worthy as the ones from the more-open U.S. government. Just sayin’.

3. I can't wait until the cables from the U.S. Embassy in Ottawa are released. It looks like some of them deal with Canadian copyright reform. Given the nightmarish experience I’ve had at the hands of the Canadian Access to Information process, I’m viewing this release as a form of karmic balancing. I may have to adjust my dissertation’s argument to account for this new information, but probably not (see point #1).

4. Does anyone else find all the angst about the loss of face in the international community bizarre? For all the advances of the past several hundred years (a United Nations, democratic countries around the world), our diplomacy hasn’t left the 18th century. It’s the 21st century, and everyone is acting like the United States is Glenn Close in Dangerous Liaisons (or, for the more camp-inclined among us, Sarah Michelle Gellar in Cruel Intentions). Which would make Julian Assange either John Malkovich or Ryan Phillippe:

Read it now! "From 'Radical Extremism' to 'Balanced Copyright': Canadian Copyright and the Digital Agenda"

2010-10-17T06:28:00.000-07:00

In what has to be some kind of land-speed record, From 'Radical Extremism' to 'Balanced Copyright': Canadian Copyright and the Digital Agenda is now available in a print edition ($65) and online (free, under a Creative Commons license). Did I mention that the entire thing came together in just over four months? And that all the chapters were refereed?

My contribution, "North American Digital Copyright, Regional Governance, and the Potential for Variation," is also available for download. It's all very exciting: there's nothing like having your first refereed contribution come out just as you're finishing the entire dissertation.

I haven't had a chance to read the other chapters yet, but if they come anywhere close to approaching the quality of the presentations made by several contributors at the book launch last Thursday, the whole book is going to be a vital contribution to the immediate political debate over Bill C-32 and the long-run academic debate over Canadian copyright.

Enjoy!

Book launch! From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda

2010-10-11T08:53:00.000-07:00

I've been quiet on the blog lately, distracted by paying work (not related to copyright), finishing up the dissertation and applying for postdocs and the like, but I couldn't let this pass without notice. Michael Geist has put together a ridiculously well-timed edited collection of essays on Canadian digital copyright, From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda, and yours truly has a chapter in it.

In it, I examine the potential for Canada, Mexico and the United States to implement autonomous copyright policies (specifically those related to the WIPO Internet treaties and the legal protection of technological protection measures). In a nutshell, I conclude that these countries' decisions around whether and how to implement are shaped mainly by domestic political, economic and institutional imperatives (e.g., which groups are invited to the negotiating table). In other words, even decisions to implement U.S.-style copyright laws in Canada or Mexico are rooted in domestic considerations.

My alternate pitch, to family and friends: It's basically my dissertation boiled down to 20 pages. So if you want to know how I've spent the past five-plus years but don't want to slog through the 300 closely argued pages of my dissertation, check it out!

This chapter is particularly exciting for me, as it represents my first substantial contribution to the academic literature. I've seen my name in print many times over the past 15 years, but seeing it in a book, surrounded by contributions from so many fantastically smart people, will be a highlight.

Even better: there's going to be a book launch, this Thursday afternoon (October 14) at 3:30 p.m. at the University of Ottawa (Room 12102, Desmarais Building, 55 Laurier Avenue East). I'll be on a panel, along with Michael Geist, Elizabeth Judge, Ian Kerr, David Lametti and Teresa Scassa, discussing our chapters. And there'll be a reception afterward! Feel free to stop by and say hi.

Access to Information by the Numbers (II)

2010-08-15T06:24:00.000-07:00

More success! Last week, after waiting almost three years, I finally received a response to my Access to Information request from Foreign Affairs and International Trade. A bit beyond the 30 calendar days that the request is supposed to take? Um, yeah.

Funny story, though. I made this request at the very beginning of my PhD research. So I guess it’s only fitting that it should show up in my mailbox – wait for it – the day before I completed a first draft of my entire dissertation.

The symmetry is enough to bring a tear to one’s eye, or a palm to one’s face.

It gets better! In the time it took me, a lowly PhD student, to travel to two countries, interview scores of people, and put together a three-hundred-page (sorry, dissertation committee: I know that’s a lot of reading) dissertation, they couldn’t even complete the entire request:

“We wish to advise you that we are presently undergoing consultations with other government institutions. Once the consultation process has been concluded, we will advise you accordingly.”

Really, they should just repeal the Access to Information Act: it would save taxpayers a bit of coin, and it would be more honest than the system they’re running now.

Quick update: For some reason, while reading through DFAIT's Access to Information response, this Simpsons moment sprang to mind. I have no idea why.

The Great Canadian Census Debate: The Economists Call It

2010-07-30T07:23:00.000-07:00

It looks like we can call it a day on the Great Canadian Mandatory Long-Form Census Debate: the economists have weighed in, and they think the government's wrong, wrong, wrong!

Today’s Globe and Mail reports that 76 percent of economists surveyed by the Canadian Association for Business Economics say that it’s a bad idea to scrap the long-form census. Out of 252 economists surveyed, only 14 thought that it was a good policy. Of course one of these 14 was the Fraser Institute’s Niels Veldhuis, who has demonstrated a less-than-encouraging understanding of statistical analysis in his creative defence of the government’s position (Check out Stephen Gordon's merciless takedown of the Fraser Institute).

Does this mean we can tentatively conclude that about five percent of economists don’t understand statistics? Or, as Gordon might put it, that they are not part of "the community of evidence-based policy analysts"?

But the truly bizarre finding from this poll? That 30 economists surveyed didn’t know whether or not scrapping the mandatory long-form census was a good idea.

Really? In a field that worships numbers and statistical analyses, in a debate that has galvanized the Canadian research community, 30 economists didn’t know whether scrapping the long-form census is a good idea or not? That’s 30 economists who either haven’t been paying attention to the policy-wonk equivalent of a monthlong Lollapalooza festival, or who can’t be bothered to recall their first-year stats training.

Can anyone explain this? Are we witnessing the birth of a new subfield of economics that rejects the possibility of knowledge through statistical analysis? (I hope so; a postmodern turn in economics would be great fun.) Were these 30 economists actually sociologists in disguise? Enquiring minds, etc., etc.

What the Census debacle can tell us about governmental accountability

2010-07-23T06:14:00.000-07:00

Jeffrey Simpson nails it today when he notes that the scrapping of the mandatory long-form census is a “temporary triumph over ideology.” (Well, one can hope that any such triumph would be temporary, but I’m feeling pessimistic today.)

This whole census mess raises another point that I haven’t seen discussed much. Namely, we’re about to find out what, if anything, can convince a Canadian government to change its mind on something.

Not just this government. The Harper Conservatives may be pushing the limits as to what is possible in our Parliamentary system (Exhibit A: choosing prorogation, rather than face a vote of confidence in the House), but they’re not breaking any laws. The powers that they’re using are available to any government, doubly so for a majority government. Custom and tradition are no match for someone with the ability and will to ruthlessly use the rules to their advantage.

On most issues, you can find reputable people supporting one side or the other (yes, even in copyright, despite the rhetoric). This census debate is different because of the nearly unprecedented diversity of voices opposing the decision: business groups and NGOs, provinces and territories, all statisticians, pretty much every economist and social scientist I can think of, Statistics Canada itself. All serious think tanks with even a basic understanding or respect for statistics and facts (which would exclude the Fraser Institute, based on the comment reported here, which would have gotten a failing grade in any introductory statistics course) are against the decision.

On the other side, you have Stephen Harper.

So, what might cause Harper to change his mind, especially if, as Simpson writes, this decision is based on ideology and not facts?

I can think of three things that could convince a government that prefers ideological arguments to rational, fact-based ones. (Hint: facts won’t do it.) The first is that the opposition could tie up any changes in committees, which are controlled by the opposition because they have the majority of seats in Parliament. Of course, all you have to do is introduce changes via regulation to get by that one, and that’s what we’ve seen here.

The second is a worry that the issue would hurt them in an general election. In theory, minority governments are susceptible to this type of pressure, but a vote of no confidence is like a nuclear bomb: the opposition can’t deploy it to thwart every thing they don’t like, and there’s always the possibility that that bomb might (pardon the pun) blow up in their faces if they lose the election. However, if all this unpleasantness rubs enough voters the wrong way, then the government might back down.

The third reason they might back down is if the party’s financial backers threaten to withdraw funding. However, I understand that the Conservative party’s funding now largely comes from individual donors. As a result, I think that any collapse in party revenues would be related to a drop in Conservative support.

Unlike the U.S. political system, which was designed to avoid concentrating excessive power in the hands of one person, the Canadian system has no such checks and balances. Previously, an independent public service was seen as a check on the government, as was the Governor General. But that’s tradition, not a hard and fast rule. At the end of the day, the only thing holding any Canadian government in check is fears about an upcoming election. If you’re the government, no fears = no worries.

What should give supporters of all parties pause is that these constraints will be much, much weaker for a majority government of any party: Liberals and New Democrats are no more or less virtuous than Conservatives. The farther you are from an election, the freer you are to do whatever you want, evidence and opposition be damned.

As someone who’s kind of a fan of popular control of one’s government, I find that even more worrying than the scrapping of the mandatory long-form census.

Post-script: As I write this, Donald Savoie is talking about this very issue on The Current (available here soonish). I’ll have to pick up his latest book when I finish my dissertation’s first draft.

What lobbyists do

2010-07-07T09:27:00.000-07:00

In addition to copyright, my academic work focuses on how policy is made in Canada, the United States and Mexico. Which is why I found this account of how the U.S. Chamber of Commerce operates, by James Verini in the Washington Monthly, so fascinating. It's a must-read for anyone interested in the nuts and bolts of how issues are lobbied, and worth thinking about when considering the Canadian Chamber of Commerce's work on copyright and intellectual property (anyone know of a similar story on the Canadian Chamber of Commerce?).

There's a lot in here, but check out the following:

I asked Donohue what, exactly, the Chamber does. “Two fundamental things,” he replied. “We’re advocates. Sure we do studies, sure we do events, sure we do meetings, sure we have all kinds of stuff, but we’re advocates.” And then he surprised me again with his candor. “The second thing we do is really more interesting,” he said. “We’re the reinsurance industry for individual industry associations and state chambers of commerce and people of that nature.” An example, said Donohue, was when Wall Street found itself on the defensive in opposing new banking regulations. “They can’t move forward, they can’t move back, or maybe they’re being overrun, and they’ll come to us and say, ‘Can we collect our reinsurance?’” he explained. “And then we build coalitions and go out and help them.”

h/t talkingpointsmemo.

Loreena McKennitt's argument from authority

2010-07-07T08:00:00.000-07:00

I’m in the home stretch of finishing a first draft of my dissertation – today I have to cut half of my closely argued, heavily cited justification for using historical institutionalism to theorize regional integration – so I don’t have a lot of time to spend on this. But I feel the need to weigh in on the Loreena McKennitt’s pro-copyright-reform op-ed that’s doing the rounds.

Geist and McOrmond have already addressed the substance of McKennitt’s argument. But what’s surprising is that there is so little to address. We have McKennitt, an accomplished musician, arguing that the Internet has made it harder for musicians to make a living, that the Internet is hurting industries that are dependent on the music industry, and that therefore we need copyright reform.

I’ve always been struck by the degree to which the copyright debate is driven by polemics, rather than empiricism, and McKennitt’s article does little to break this trend. The big hint that this is a polemic comes at the end, where McKennitt says that she welcomes “copyright reform legislation” without even talking about what, exactly, in Bill C-32 – the actual copyright reform legislation before Parliament – would support a “thriving creative environment where artists are paid and the communities where they live and work reap the rewards” (which sounds good to me).

No matter where you stand on copyright, it should be obvious to anyone that not all copyright laws are created equal. There is a difference between “copyright reform legislation” and “good copyright reform legislation,” even if “good” is in the eye of the beholder.

Yet McKennitt doesn’t tell the reader why (or even if) she likes this particular bill. Rather than engaging with critics on its substance, she relies exclusively on an argument from authority to dismiss “activists and academics” as using “crafted language” to attack artists with “so-called ‘user rights’.” Shades of James Moore’s “radical extremists” comment, and equally as helpful for Canadians wanting a substantive policy debate.

It also doesn’t help that McKennitt seems to be asking of copyright more than it can give. Copyright is supposed to maximize a) the creation; and b) the distribution of creative works. Because creative works are made from already-existing creative works, we have to ensure that copyright is not so restrictive as to limit future production. That’s it.

Justifying stronger copyright based on the wellbeing of popcorn sellers, HMV employees, “parts of the touring industry” and even artists’ quality of life (ask a garbage collector if their salary or hours are fair) serves only to confuse the issue. These activities matter to copyright only to the extent that they fulfill the end of maximizing the creation and distribution of creative works. If they do, then tell us why copyright is the best way to ensure that, say, sound engineers, get paid.

If these activities can be replaced without hindering creation or distribution (seriously: popcorn vendors?), then tell us why we should care. If they are valued for other reasons, then we can lobby our government to provide other means of support. The cultural industries are supported by much, much more than just copyright law.

I have no doubt that Ms. McKennitt is sincere in her views on the importance of copyright to both her livelihood and music production. But she’s not doing anyone, especially herself, any favours by not discussing the particulars of copyright law. As I’ve said before, make your case for particular changes. Show us how particular reforms will help improve the creation and distribution of creative works. Tell us why you think specific critiques of the bill are wrong.

But, please, don’t engage in ad hominem attacks while refusing to engage on the substance of the issue. As my favourite blogger, Ta-Nehisi Coates, put it yesterday:

Overheated invective offers your adversaries a way out. You may have the superior argument, but a string of ad hominem allows your opponents to change the subject, and reduces you in his or her eyes, and in the eyes of your unswayed audience.

This style of argument betrays a disrespect for people (including other musicians!) who happen to disagree with you, while giving your critics an excuse to dismiss your arguments entirely. If would be nice if the copyright debate could move beyond it.

Confessions of an agent of foreign influence

2010-07-06T06:21:00.000-07:00

I couldn’t agree more with beleagured Canadian Security Intelligence Service (CSIS) director Richard Fadden’s warning that agents of foreign influence walk among us.

We certainly must be vigilant that Canadians don’t betray their country by coming under the influence of a foreign power. Canadian decisions must be made by Canadians, for Canadians. The influence of foreigners must be avoided at all costs.

We have to clean house, and the best way to do so is to identify all those Canadians who have accepted money, goods or services from foreign powers. Hey, gift grabbers: those trips and cheques don’t come for free. Fadden's saying that foreign powers want something in exchange for their largesse, and he should know: he’s the highly respected head of a highly respected spy agency.

So, in the spirit of patriotism and to prove my loyalty to our Beloved Country, I welcome the opportunity to confess my sins.

I am an agent of foreign influence.

Over the past year, I have accepted money – thousands of pesos! – from the Government of Mexico to “study” in that foreign country. While there, I met with government and business officials who discussed with me how Foreign copyright works in Mexico. I now have in my head their thoughts about what copyright law should look like; I fear I will never again be able to think pure, Canadian thoughts about copyright.

And they didn’t just give me money. The Government of this Foreign Power provided me not just with a plane ticket (on Mexicana!) to get to Mexico, but paid for my return ticket to ease my re-entry into Canadian society. They even let me fly Air Canada, undoubtedly so as not to arouse suspicion.

If that weren’t enough, they also provided me with free access to their health-care system. And, as the capper to their plot to turn me against my Country, somehow the Mexican Government managed to structure my time there to make me think that Mexicans are a great bunch of folks who live in a fascinating country with a climate that will certainly tempt me to defect when the temperature in Ottawa (which I love with all my heart) hits -40 Celsius this February.

It gets worse.

I’m not working only for Mexico. I’ve also accepted gifts from the most powerful country in the world, the United States of America. Tempted by a professor who is doubtlessly a double agent for this most powerful of Foreign Powers, I applied for and won a U.S. scholarship to study in Washington, D.C., for a summer.

Even though my loyalty is for sale to anyone who can help me finish my dissertation, I was shocked by the brazenness of this program, which goes by the innocuous title of The Washington Center, and brings together students from across the U.S. and (horrors!) around the world! In thinly veiled indoctrination sessions featuring U.S. Administration officials, congressional representatives and other luminaries, these propaganda-mouthing Foreign Influences baldly claimed that the whole purpose of the Washington Center was to “build understanding” among “Americans” and “our friends from other countries.”

It was terrible. The Washington Center actually places students at the heart of the U.S. political system (they placed me at the very centre of power, the Library of Congress), where they “learn about U.S. democracy” (read: are infected with Foreign Ideas) and make contacts (read: meet their handlers for when they return home). One American woman claimed publicly – where was her shame? – that these internships created links between the U.S. and other countries. If, down the road, a U.S. representative had a problem with Canada, for example, she could contact her Canadian ex-intern, who would likely be in a position of influence, to get a better read on the Canadian situation.

Incitement to treason? Or definitely incitement to treason?

A reasonable, if unpatriotic, person might argue that these lines of communication work both ways, but let’s be honest: Canadians aren’t the type of people who try to influence other countries. It’s the outside world of Foreign Influences that is trying to influence us away from our True Canadian Way.

Copping to my treasonous ways isn’t enough. Richard Fadden didn’t have the stones to do more than cast suspicion on all B.C. provincial and municipal politicians in a way that makes it impossible to clear their names (though I’m betting that if your skin burns easily, Fadden wasn’t talking about you).

But have no doubt about the size of my stones. I’m not afraid to name names.

The rot of Foreign Influence runs deep in the Canadian government, and the name of the treasonous government organization at the heart of the conspiracy to turn decent, pure Canadians into Agents of Foreign Influence is a little-known government agency called…

International Scholarships.

Administered by Foreign Affairs and International Trade Canada (hey guys: you’re not fooling anyone by sticking “Canada” at the end of your name), International Scholarships’ Foreign Governments Awards Program puts unsuspecting Canadians under the thrall of such Foreign Countries as Russia and Norway!

It’s disgusting. For God’s sake, their website shamelessly boasts that they will put Canadians in touch with Foreign Governments offering Foreign Money to go to their Foreign Country and learn about their Foreign Ways. Oh, sure, International Scholarships also offer money to foreign students to come study in Canada, but that’s just so foreigners will be able to experience our character-building freezing winters and guileless ways. There’s nothing sinister about that.

Thank you, Richard Fadden, for helping me recognize the error of my ways. From this day forward, I will no longer accept money from Foreign Governments and will think only Canadian thoughts. I renounce my treasonous past and undertake to act only in the best interests of Canada, standing on guard against Foreign Influence, real and imagined, in defence of the ~~Land of the Brave and Home of the Free~~ True North Strong and Free.

Copyright as an instrument of industrial policy

2010-06-28T10:55:00.000-07:00

As Russell McOrmond says, "A great post by David Eaves about the myth that Bill C-32 supports market forces." I'd go farther: Eaves is actually pointing out that copyright itself doesn't support market forces:

I too believe that consumers should choose what they want. But if the Minister were a true free market advocate he wouldn't believe in copyright reform. Indeed, he wouldn't believe in copyright at all. In a true free market, there'd be no copyright legislation because the market would decide how to deal with intellectual property.

Eaves correctly points out that: "Copyright law exists in order to regulate and shape a market because we don't think market forces work. In short, the Minister's legislation is creating the marketplace."

Digressing from the debate over C-32 to look at the bigger picture:

One of the overlooked realities of this debate is that copyright (or, rather, the regulation of the creative marketplace) is the last bastion of respectable industrial policy. In a world in which governments have given up trying to "pick winners" and shape the marketplace, this is the one area in which governments continue explicitly to shape the market to favour certain businesses and business models over others.

(Why this is so is a topic for another time; in my dissertation, I'm focusing largely on the role of path dependence in the development of copyright.)

To a surprising extent, the copyright debate isn't even about ends or means; it's a debate that has focused on one particular means. When we talk, we talk about copyright (a tool) rather than the creative marketplace (the thing that the tool is regulating). Instead of having a debate over the best way to improve the production and dissemination of creative works, we have a debate over whether people are pro- or anti-copyright. Debating copyright is kind of like construction workers debating whether they're pro- or anti-hammer, when they should be talking about the best way to build a house.

In my more policy-wonk-y moments, I wonder how the copyright debate would unfold if copyright were treated as a form of commercial regulation, and as as one possible means to an end, rather than as an end (the end?) unto itself.

"Radical extremists" and the smearing of Michael Geist

2010-06-23T12:57:00.000-07:00

Note: I actually wrote most of this early last week, but never got around to posting it, what with the dissertation and all. Too bad, since in light of Heritage Minister James Moore’s recent comments about the opponents of Bill C-32, it’s pretty timely.

Onward!

True story: Back when I was deciding on a dissertation topic, I settled on digital copyright policy as a way to try to understand North American regional governance because I thought it would be a technical issue of little interest to most people.

Finished laughing yet?

But seriously: Over the past four years, I’ve learned differently, but I have to say, as someone who came to the issue from the outside, so to speak, I am routinely shocked by the vitriol and personal attacks that characterize parts of the copyright debate.

As a political scientist, it’s particularly interesting (if dispiriting) to observe the misleading, highly personal, borderline-unprofessional attacks that have been launched against Michael Geist. Russell McOrmond has a few other examples on hand.

(Disclosure: I interviewed Geist for my dissertation – it would be pretty hard to write about the politics of Canadian copyright without doing so – and one of his colleagues at the University of Ottawa is on my dissertation committee. I may also be contributing to a Geist-edited volume. In keeping with the spirit of this posting, though, I hope you'll critique my argument, not my affiliations.)

They’ve been nasty. In some circles, he has been referred to as “he who shall not be named” and worse. This fellow's colourful tale of an Industry Canada-Michael Geist-Pamela Samuelson (an American law professor) conspiracy to strip authors of their human rights, complete with an org chart describing the conspiracy is unhinged, to say the least. Throw in the Freemasons and you’d have a fair-to-middling Dan Brown novel.

(For anyone interested in an actual study of Canadian copyright-related decision making, check out Simon Doyle’s Prey to Thievery. It’s based on Access to Information requests and interviews with many of the principals involved in the run-up to Bill C-60, the Liberal’s 2005 attempt to implement Canada’s treaty obligations. Turns out that the civil servants at both Industry and Canadian Heritage had serious misgivings about adopting DMCA-style copyright amendments in 2005. The conspiracy widens!)

And now we have Canadian Heritage Minister’s James Moore’s thinly veiled ad hominem attack on Geist.

These denigrating attacks are noteworthy because, as a fair reading of Geist’s work demonstrates, he’s not exactly a radical. I understand radicals; being in university, I know radicals, and Geist ain’t one. A radical would be someone who calls for the elimination of copyright and Canada’s withdrawal from the Berne Convention and TRIPS (though even this position is theoretically and empirically defensible). They’re not the type of person who calls for public consultations, proposes amendments to legislation and works with the bureaucracy and government officials to promote his views.

If his methods don’t scream radical, neither do his actual policy positions.

Far from calling for the impoverishment of authors, the need to balance the legitimate interests of the many groups involved in copyright reform is a common theme throughout Geist’s voluminous writings. Geist argues that this balance has been tipped too far in favour of copyright owners (who are primarily publishers and distributors, not creators) at the expense of those who use creative works, either as an end product, or as an input to the creation of future creative works.

Those who claim to know what Geist really believes, evidence be damned, as Moore claims to in his speech, might want to recall how well all that soul-sensing worked out for George Dubya.

Geist's views are exactly as radical as the 1971 Economic Council of Canada report into copyright and intellectual property, which everybody interested in copyright should read, if only to mourn the extent to which the debate has deteriorated in the intervening four decades (annoyingly, it's not available online). The Economic Council argued that incentives to produce copyrightable works should not encourage either overproduction or overprotection.

That’s an economic-y way of saying pretty much the same thing as Geist: a good copyright law should provide incentives to create without tilting the playing field too much in favour of any one interest group.

Unsurprisingly, some copyright interests refuse to concede the point of Geist – and of the Economic Council of Canada, and of every copyright law that’s ever been written – that users’ rights are an intrinsic part of copyright law, not an addition. Copyright is about dissemination, not just protection. At some point, too much protection will hinder dissemination and access. Currently, protection (so goes Geist’s argument, and he’s not alone) is hindering dissemination and access. Simple as that.

So, if Geist isn’t a fire-breathing radical, why the hate? Two reasons, I’d argue:

1. It’s all about money, and it’s nothing new. Every time a technological change creates a new interest group, these new groups inevitably come into conflict with the entrenched interests that had previously divided the copyright money jar amongst themselves. A new player in town means another group whose interests will conflict with the material interests of the old-boys club. As you can imagine, this political fight can get rough. Previously, it was VCR manufacturers horning in on the action. Before that, photocopiers. Before that, the recording and motion picture industries. And before them, the makers of piano rolls.

You get the idea.

This time around, individuals as a group are one of the main threats to the status quo. Digital technology and the Internet have lowered the cost of production and distribution, making individuals competitive with the industrial giants that previously were essential to getting creative works to the masses. Despite the fact that copyright has always affected individuals, individual users previously had not been represented in the debate.

In Canada, Geist has emerged as this interest group’s most effective spokesperson.Thanks to social-network technology and some canny positioning by Geist, users are now at the table, and their (legitimate) interests unsurprisingly clash with those of some creators and publishers/distributors. Quick example: If users have the right to control what they do with their legally purchased digital works, then obviously the copyright owner doesn’t.

2. Geist is effective. If Geist just stuck to writing his Toronto Star column or took the traditional academic route of publishing in obscure journals, established copyright interests wouldn’t spare him more than a letter to the editor. Instead, he not only knows his topic, he has proven himself a canny political operative. He was the first person in Canada to use effectively social-networking sites like Facebook for political purposes. He also clearly is interested in achieving what's possible: unlike true radicals, he’s interested in compromise. Michael Geist is no Maude Barlow.

In a way, the anti-Geist vitriol is a tribute to the rising strength of this new copyright interest group: individual Canadians. Copyright is a high-stakes game, and people don’t waste their time attacking people and views that don’t matter.

The upshot of all this is that Geist has become a convenient lightening rod for those interested in dismissing critics’ views without engaging them. It’s a high-risk strategy. If voters buy the vilification of all those opposed to Bill C-32 as "radical extremists," then Geist’s critics can win the debate. But there's also the possibility that voters may ask if the bill's proponents are engaging in character assassination rather than rational policy debate because the proponents' actual arguments aren't that convincing.

Bill C-32: Copyright debate turns ugly. Again.

2010-06-23T07:17:00.000-07:00

And here I was hoping that we could debate Bill C-32 rationally, if not calmly. Instead, we have our Minister of Canadian Heritage characterizing critics of Bill C-32 as: “Those absolutists out there, who are babyish in their approach to copyright legislation,” and who really want to see copyright destroyed. Who calls on people to “Make sure that those voices who try to find technical, non-sensical, fear-mongering reasons to oppose copyright reform are confronted every step of the way and they are defeated.”

Let’s leave aside the fact that if there are technical problems with C-32, we should hope that Parliament would fix them. Let's be clear: Minister Moore's attempted framing of the copyright debate as a battle between those who believe in copyright and those who don't is absolute nonsense. Copyright legislation always involves reaching a compromise among very disparate groups. What we're seeing right now is a debate between these groups, all of which have much to win and lose.

It’s not as simple as users v. creators. Copyright has never been about only making sure creators get paid. More often than not, it’s been about ensuring publishers have an incentive to distribute creators’ works, a means to the end of ensuring that books, movies, music and so on get produced and distributed .

In addition to creators, distributors and publishers, who still play an important role in helping creators be heard, must get their due: your record companies, Hollywood, ISPs, book publishers, Apple, and so forth.

A good bill would also take into account the creators of tomorrow, who depend on easy access to existing works to create their own books and music. It would minimize the roadblocks to the creation of professors’ lesson plans, and make it as easy as possible for researchers and authors to get the books they need to conduct their research.

It would also ensure that no existing industry is protected from competition by a future, more efficient business model.

Of course, it must also take into account those individuals who listen to music, read books, use computer programs and watch movies. This is more than mere consumption: it is the very way in which we advance ourselves as a society. Anything that needlessly limits our access to information presents a fundamental problem for our society.

And, contrary to what Heritage Minister Moore suggests, it’s not as if there’s a whole lot of evidence that stronger copyright protection even encourages production. I hesitate to say this, because doing so is a one-way ticket out of the respectable policy debate, but it is a completely defensible position, both empirically and theoretically, that we’d be better off with no copyright, or a drastically different copyright regime. Opponents of this view have to (or should have to, I guess) address it through reasoned debate, not polemical assertions.

Given all these interests and legitimate conflicts, is it surprising that certain groups object to what’s in Bill C-32? Bill C-32 creates winners and losers. While I, as a creator and citizen, might object to the way Bill C-32 would override the limitations and exceptions that are integral to any copyright law by giving the final say on rights to whoever owns the digital lock on a work or device, I also know that there is a policy argument to be made for this view.

(The argument for the strong legal protection of Technological Protection Measures (TPMs) is as follows:

Canada’s treaty obligations require the imposition of “adequate legal protection and effective legal remedies” for the protection of TPMs.
These TPMs are needed in order to encourage the wide digital distribution of creative works: movies, music, video games, books.
Without this protection, Canada will enjoy a suboptimal level of digital production and distribution.
Since TPMs can be broken, often quite easily, we have to outlaw all tools that can break TPMs (adequate legal protection).
Finally, crucially, the social benefit from doing all this outweighs the social costs, such as the restriction of existing rights and allowing the owners of these digital locks, rather than copyright law, to set the terms on which people can access and use even works they have legally purchased.)

Heritage Minister Moore’s insulting comments represent an attempt to demonize and delegitimize those who have legitimate concerns with (and alternative proposals to) what he and Industry Minister Tony Clement have proposed. If you dismiss your critics, you don’t have to deal with their arguments.

I would hope that we, as Canadians, expect better from our government. If Moore believes in his legislation (and, as I indicated, there is a legitimate policy argument to be made for it), then he should have the confidence to defend it on its own terms. Explain to us why you think that Bill C-32’s approach to TPMs is better than the bill proposed by the Liberal government in 2005 (which would have made it a crime to break a lock only for the purposes of violating the underlying copyright).

Make the case. But, please, dial down the rhetoric, and start treating all your constituents with respect.

Access to Information by the Numbers

2010-06-14T07:20:00.000-07:00

Following up on a previous post:

Number of days it took to fulfill my request for information from the Privy Council Office for “records related to copyright law reform,” between June 1, 2005, and the date of the request (December 21, 2007): 830

Number of copyright bills that have been introduced since my initial request: 2

Number of pages finally received: 76

Number of pages completely redacted for reasons of international relations, federal-provincial affairs, government operations, solicitor-client privilege, and/or personal information: 27

Number of pages excluded because they were deemed not relevant: 8

Total number of pages with some kind of copyright-related information on them: 41

Total number of pages consisting mainly of articles that you could get in a couple of hours surfing the net: 21 (fully half of the non-redacted pages)

Total number of forwarded emails included in this package that contained only a (publicly available) media or newswire article: 3 (7 pages)

Total number of pages taken up by a 1995 statement by the Council of Ministers of Education, Canada, that is freely available on the Web: 14

Total number of pages of emails scheduling a 2007 Deputy Minister-level copyright meeting: 2

Number of pages included from a 2005 Media Analysis Report on the introduction of Bill C-60: 10

Of the seven journalists named in this Report as having written more than one article on copyright between April 16 and August 11, 2005, number whose names were not redacted (because doing so would reveal “personal information” – even though the articles are generally available): 0

Number of memos included in the package: 6

Number of memos whose subject line was not redacted: 0

Total amount by which the PCO’s work on this Access to Information request will improve Canadians’ understanding of how their government works, and what decisions are being taken in Canadians’ names: 0

Amount of time, in seconds, that I would recommend a PhD student spend on Access to Information requests, unless they have access to a ringer who does this kind of thing professionally: 0

No good deed goes unpunished

2010-06-08T16:18:00.000-07:00

Personally, if someone explained to me that they were late in replying to an offer of admission to a Masters program because, "I'm in rural Tanzania teaching kids to read and my Internet access is a bit spotty," I'd give them a scholarship, not put them on a waiting list.

But that's just me.

Canadian copyright: Room to maneuver?

2010-06-07T11:17:00.000-07:00

As I mentioned in my previous post, on Thursday I presented a paper – essentially my dissertation’s argument compressed into 25 pages – at the Canadian Political Science Association's annual conference. Great, insightful comments from our discussant, York University Professor Ricardo Grinspun. I was especially gratified by the interest in my paper from the audience. I still remember getting only one pity question (about Radiohead’s pay-what-you-want In Rainbows experiment) at my first-every conference presentation, three or four years ago to the Association for Canadian Studies in the United States. The lack of questions, I think, said more about my unfocused paper (one of my professors at Carleton believes that PhD students shouldn’t present anything until the end of their dissertation, and it’s not too hard to see why), but even negative feedback is better than indifference.

Prof. Grinspun’s main comment about my paper was about my conclusion – that Canada, Mexico and the U.S. retain significant policy autonomy with respect to copyright policy. Typically, the U.S. offers countries better access to its market in exchange for those countries implementing U.S.-style copyright reforms. Thing is, the NAFTA already guarantees Canada and Mexico this access. As a result, it’s harder for the U.S. to link copyright reform to anything, and so domestic factors become relatively more important than global or regional factors.

Grinspun correctly pointed out that regardless of this domestic autonomy, the reality is that the United States has defined (through its influence on the WIPO treaty process) the parameters of what we think of as digital-copyright reform (e.g., to include legal protection for digital locks and making available provisions). He suggested (and I’m paraphrasing quite a lot here) that the evidence seems to indicate that Canada and Mexico are moving toward a U.S.-style copyright regime, only at different speeds.

Certainly, Bill C-32, as it stands, gives the U.S. and the content industries pretty much everything they were looking for with respect to to the legal protection of technological protection measures (TPMs), although, interestingly, there is no “notice-and-takedown” regime for ISP liability in the bill. I think my response to Prof. Grinspun’s comments would emphasize the process, not the outcome. There is certainly a push toward U.S.-style copyright policy, from the U.S. itself as well as the content industries more generally. But there is no one-way street toward harmonization. Canada and Mexico have a choice in the matter.

If I had to boil down the paper to three points, it would be these:

The United States has set the parameters of what is considered to be legitimate debate when we talk about copyright reform. That was the point of the WIPO Internet treaties.
But: In the absence of strong regional governance of copyright and the ability of the United States to credibly link copyright reform with something the other two countries want*, Canada and Mexico retain significant policy autonomy. Whether they choose to exercise it is, of course, another question.
The decision to follow the U.S. lead or not is influenced significantly by domestic factors.

In Mexico, there will be a tendency to follow the U.S. on TPM protection because of the lack of strong civil-society involvement in digital-copyright issues, combined with the traditional Mexican view of copyright as a protection of authors to be maximized (user rights are very underdeveloped in Mexico).

In Canada, if my reading of the situation is correct, Bill C-61’s DMCA-like TPM provisions was at least partly the result of a political calculation that the United States need to be (or should be) satisfied by Canadian actions on this issue. In 2005, with Bill C-60, the Liberal government came to a different conclusion. (Domestic factors also matter here, as well: Bill C-32 wasn’t unveiled in the Montreal offices of U.S. multinational Electronic Arts for nothing: this bill is a huge win for the video-game industry.)

So, what does this mean for the debate over Bill C-32? First, it would be kind of silly to argue that the United States has had nothing to do with the TPM provisions in C-32; I hope nobody does. But (and I don’t think I’m talking semantics here) more important is the government perception of what the bill means for Canada-U.S. relations, and for specific sectors of Canadian industry.

Second, and related to the first point, Canadian governments have a lot of room to maneuver on the issue of TPMs, should they choose to use it. And there's room for lots of legitimate policy disagreement on whether or not Canada should have followed the U.S. lead on this issue.

* The U.S. isn't the only country that plays the copyright linkage game: In the ongoing Canada-EU trade negotiations, the EU is pushing for Canada to reform its copyright laws to make them more to the EU's liking; they seem to be quite happy with C-32. As always, the most effective pressure for Canadian copyright reform comes from abroad.

Shameless self-promotion and the future of journalism

2010-06-04T08:11:00.000-07:00

As you may have heard, yesterday I presented a paper on North American digital copyright policy at the Canadian Political Science Association annual conference. It's nice to be noticed, but boo to the NDP: the quote about the Americans deals with the Conservatives' 2008 bill, not the current bill. That kind of changes things, doesn't it? (It's almost as if the NDP researchers didn't read the paper, not even the section the quote comes from. If that's the case, I'm really, really hurt.)

I don't mind my research being used for partisan purposes, but at least get your facts straight, kids.

The NDP's sloppiness aside, I think the quote (taken in context, please) and paper speak for themselves (if they don't, feel free to ask: orangespaceb-at-gmail dot com), so the only thing I’ll say is that it’s great to see journalists like David Akin paying attention to what’s going on in academia. Off the top of my head, the Star’s Susan Delacourt and Macleans’ Paul Wells also deserve kudos in this area.

All you other journalists and newspapers: there’s gold in them thar academic papers! Many are based on in-depth primary research (i.e., interviews and document analyses) on issues of current interest (in Political Science, anyway; can’t speak to English Lit). With the ever-declining number of foreign correspondents and investigative journalists, it would be great to see Canadian newspapers start to pay more (i.e., any) attention to PhD students and recent grads. They’re experts in their subject area, and many are either conducting, or just returned from, field research all over the world. Done right, a smart newspaper could get some high-quality foreign reporting/investigative journalism on the cheap.

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

2010-04-20T10:58:00.000-07:00

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.

Canada's Access to Information Act leaves grad students out in the cold

2010-04-13T08:15:00.000-07:00

When I get back to Ottawa in a few weeks, I have waiting for me a package of documents I requested from the Privy Council Office (PCO) about Canada's attempts to implement the 1996 WIPO Internet treaties. I asked for them through Canada's Access to Information process at least two years ago (if I recall correctly; it's been so long that I figured that I wouldn't be getting anything from them before I graduated).

Why the delay? According to the Globe and Mail, reporting on a report from the Access to Information Commissioner:

The PCO receives a “D” ranking for posting some of the longest completion times in government. The council is also causing delays for access response times in other departments, which must seek PCO's advice on whether certain matters should be exempt as cabinet confidences.

This bottleneck is partly due to the fact that only four staff are assigned at PCO to manage the entire workload of deciding what is or is not a cabinet confidence.

At least I'm not alone.

Four staffers. It's almost as if the government and bureaucracy don't want to release any information. But that would be crazy talk.

As for what my wait got me, I'm not optimistic: My last information requests (they're all back in Ottawa, so I can't remember which departments were involved) got me a whole slew of press clippings and documents freely available on the government's websites.

There's a talent to filling out access requests to ensure that you get actual information in a timely(ish) manner. Simon Doyle got a fantastic book on the 2005 attempt to implement the WIPO Internet treaties out of his requests (I've used some of the files he received under the Access to Information Act, and his reporting will likely figure prominently in my Canadian case study), Michael Geist regularly finds some nice info, and Ken Rubin has made a career out of making access requests.

Each of these fellows, however, have one thing in common: they've been doing this for a long time. Doyle (whose book was based on his M.A. journalism thesis) was working as a reporter for the Hill Times, Geist has been following copyright and digital policy for over a decade as a professor at the University of Ottawa, and Rubin's name has been showing up in newspapers for as long as I can remember.

Graduate and doctoral students (a.k.a. the people who are supposed to be producing Canada's cutting-edge research) aren't so lucky. Not only are they new to the research game, the time-limited nature of their research (one-to-two years for a Master's student, three-to-four years for a PhD student) means that any information that they do get could easily show up after they've completed their degree.

And God forbid the researcher's request isn't sufficiently specific and has to re-file a request for the correct information. When a researcher has short timelines and a lot of balls in the air, the Access to Information process can be a one-shot proposition.

Either way, the government will have effectively waited out the scholar, making Access to Information requests an unreliable, if not completely useless, source for graduate and doctoral students. At least that's been my experience.

That the very people who think about how government does and should run are stymied and often kept completely from the information they need for sound analyses should concern anyone who likes intelligent policy and accountable government. There's something very wrong with Canada's Access to Information regime when finding out basic information about your democratically elected and accountable government is a talent and not a right.

Students and researchers: How useful has Canada's Access to Information regime been for your research? Have you found it as frustrating as me, or has it been a valuable source of information? Feel free to weigh in below.

Update, April 13, 2:26 p.m.: Ouch. I missed this chart, providing information-access grades for various government departments. None of the ones I've dealt with came off very well, except Industry (B, or "above average"): Privy Council Office (D, "below average"), Canadian Heritage (F, "unsatisfactory") and Foreign Affairs, which apparently broke their grading scheme (off chart, "red alert").

It looks like my big mistake was deciding to study something that touched on foreign affairs and the PCO, rather than, say Justice, and Citizenship and Immigration issues (both rated A, or "outstanding": congratulations to those responsible for doing a hard job so well). Of course, given the centralization of power in the hands of the prime minister, is there any federal-political subject of any importance that doesn't involve the PCO?

Mexico copyright reform: Well, that was quick

2010-04-06T18:25:00.000-07:00

Way back in November I blogged about the Coalición por el Acceso Legal a la Cultura (Coalition for Legal Access to Culture), which brought together industry and artists’ groups (actually, collection societies representing artists and various unions), the two big groups in Mexican copyright policy, to push for stronger copyright laws. I argued that this was a big deal, akin to labour and business groups getting together to argue joint positions on economic policy. While such cooperation and agreement among groups is not unusual in other countries, I was surprised by the extent to which the two sides, representing both foreign and domestic interests, seem to have fused their positions. With Mexican copyright’s two main stakeholders agreeing to try to agree, it seemed like stronger Mexican copyright laws were a good bet.

The coalition’s big demand was for authorities to be granted ex officio authority, that is, the right to make copyright-related arrests without waiting for a complaint from the party who’s copyright has been alleged to be violated. This, of course, would make it much easier and less expensive (that is, for the copyright owner) to actually enforce copyright.

Well, Alejandro at Bitácora de Darkness passes along the news that the Mexican Congress has approved amendments to Mexican copyright and intellectual property laws, as well as the Mexican penal code, to do just that, as well as increasing the fines for which violators are liable (El Universal story here). The reforms also (this is interesting) target consumers who knowingly buy bootlegged goods.

Five quick thoughts:

1. It’ll be interesting to see if the government actually uses these new powers. As anyone who’s ever been to Mexico knows, informal markets selling bootlegged goods are everywhere. Cracking down on them has the potential to create social unrest because: a) they employ a not-insignificant number of people in a country that doesn’t have the greatest track record of producing jobs; b) market runners, thanks to political and police corruption, have some pull in how laws get enforced, and can thus cause trouble; and c) in a country where almost half of the population lives below the official poverty line, authorized CDs and DVDs are unaffordable for your average consumer.

There's also the tiny problem of where the money is going to come from to enforce these laws: last I checked, the Mexican government had its hands full dealing with a drug war and the fallout from the global economic crisis.

2. These amendments support my contention (which will feature prominently in my dissertation) that copyright has yet to become a political issue in Mexico. Or, at the very least, consumer and user groups continue to have little or no influence on the making of Mexican copyright policy.

3. The copyright industries and allied groups seem to have had the field to themselves, as it were, on this one. It will be interesting to see what will happen when Mexico gets around to implementing rules on ISP liability, which will involve them dealing with Mexico's telecommunications industry and, therefore, the richest man in the world. That’ll be quite the heavyweight fight. (I'll also be watching to see the extent to which academics and civil society groups get involved.)

4. On a related note, these reforms seem to be more concerned with today's problem -- physical bootlegging -- than with the online future (I'm not really sure how the amendments will affect things like peer-to-peer, for example, where the suppliers are as likely to be in Sweden as Tepito). That's another reason it'll be fascinating to see how Mexico decides to deal with ISP liability and other digital issues. In the long run, that's where the copyright action will be.

5. At the rate the situation is developing in Mexico, my Mexican dissertation case study will probably be out of date before I defend the damn thing. When it comes to copyright reform, obviously no one ever thinks of the lowly researcher.

Get you ACTA text, right here!

2010-03-23T11:10:00.001-07:00

I'm editing one of my dissertation case studies so I don't have time to look at it right now, but, for your reading pleasure, here's a leaked copy of the text of the Anti-Counterfeiting Trade Agreement (ACTA), dated January 18 (h/t Geist).

Personally, I'm looking forward to never again writing the words "may contain" when talking about the ACTA.

Enjoy!

Everyone’s a Keynesian during a snowfall

2010-03-15T07:32:00.000-07:00

From the Globe and Mail’s Mark MacKinnon, visual evidence of how China is applying at least part of John Maynard Keynes’ advice about using government spending to stimulate the economy in a recession.

Says Keynes in the General Theory:

“To dig holes in the ground,” paid for out of savings, will increase, not only employment, but the real national dividend of useful goods and services. It is not reasonable, however, that a sensible community should be content to remain dependent on such fortuitous and often wasteful mitigations when once we understand the influences upon which effective demand depends.

Says Mark:

Because you wouldn't believe me if I said 10 people were shovelling a small play structure (it's snowing again in Beijing)

Globe and Mail: Almost understanding teh Interwebs (progress!)

2010-03-15T06:15:00.000-07:00

Credit where credit is due: After complaining a few weeks ago about Michael Valpy’s confusing story in the Globe and Mail on the political effects of Facebook, it’s nice to see Ivor Tossell’s spot-on critique of why Prime Minister Stephen Harper answering a few questions on YouTube is “not the future of democratic engagement” or “the evolution of social media,” no matter what the PMO says.

Too bad it’s paired with Roy MacGregor’s column, which is hugely enjoyable for its remarkable lack of self-awareness. His big concern is that, online:

what has come to matter more than anything else is the number of hits a certain story receives. The more hits means, in most cases, the larger the audience, and while reaching more readers and viewers is a good thing on one level, it is also a concern for those who believe journalism is about content and information more than reaction.

The potential result? A zero-sum, dystopian world in which quality journalism is strangled by the hobgoblins of celebrity gossip and partisan opinion masquerading as news. Because there's no way that both can exist together online.

He singles out the tendency of online writers to use “hot button” words in headlines or far up in the story (maybe in the first paragraph!) in order to attract readers.

Imagine that: publishers, editors and writers choosing stories, many of dubious social value, in which they think people are interested, and then packaging those stories and writing headlines in such a way as to grab potential readers’ attention.

Readers are invited to explain how this is any different from, I don't know, the workings of any general-interest newspaper ever.

(h/t: Susan Delacourt for pointing out the two columns.)

ACTA: History repeating itself?

2010-03-10T12:52:00.000-08:00

So the European Parliament has voted 663-13 against the Anti-Counterfeiting Trade Agreement (ACTA) (h/t BoingBoing). Could this be a turning point in the negotiations? The whole situation does seem to have some similarities to the French reticence that sunk the Multilateral Agreement on Investment over a decade ago. It’s interesting to note, however, that rather than calling for the cessation of negotiations, the European Parliament is calling for the agreement to respect existing EU law. Which means that we’ll probably end up with an ACTA, though (if the vote is effective in putting pressure on EU negotiators) one that's more modest and balanced than what U.S.-based interests have been hoping for.

Here’s a question I’ve been wondering about: if, as I’ve suggested previously, powerful interests will have to be served regardless of what’s in the final text, will ACTA's excessive secrecy have helped or hindered the interests of those countries and interests seeking much stronger copyright laws and enforcement?

On the upside, if you can pull it off, you have an agreement that proponents can use to legitimize changes in domestic law and regulations. And even if you can’t keep it completely secret, the process may put opponents at a disadvantage when it comes to negotiation and implementation.

On the downside, excessive secrecy allows opponents to question its legitimacy while letting people’s imaginations run wild about what could be in the treaty and whip up anti-ACTA support. One would imagine that this would be a not-insignificant political problem, even in the case of executive agreements (like ACTA) that do not require parliamentary approval and some of whose requirements may be implemented via regulation, not legislation. And, of course, there’s the whole democratic-governments-should-act-transparently-in-the-interests-of-their-voters thing and the nobody-likes-to-think-they're-being-played thing.

Just some thoughts. It’ll be interesting to see how this all plays out. To say the least.

ACTA: All Global Treaties are Local

2010-03-06T09:15:00.000-08:00

A nice reminder, courtesy of Michael Geist , that the battle over the Anti-Counterfeiting Trade Agreement (ACTA) is going to get messier the more that groups directly affected by but excluded from the talks are heard and, most importantly, are listened to.

From Mexico: President of the Senate Commission on Science and Technology, Senator Francisco Javier Castellón Fonseca, is calling for increased transparency in ACTA talks in order to understand their potential impact on digital copyright issues generally and Internet Service Providers specifically.

This is important for three reasons.

1. Politically, Senator Castellón Fonseca, represents the left-leaning PRD, which can be expected to champion individuals’ user rights. The PRD has 127 out of 500 seats in the Chamber of Deputies and 26 out of 129 Senate seats. In Mexico currently there are no organized consumer or users’ groups dealing with copyright issues; with a political champion, this could change, making ACTA implementation (to say nothing of other copyright reforms) more difficult.

2. Mexico may also be starting to consider the economic and technological effects of copyright, rather than simply its cultural aspects. The same Senator made remarks to this effect in 2008.

3. The Senate Commission on Science and Technology is responsible for ISP-related issues, and ISPs have a lot of clout in Mexican politics: Telmex has a virtual monopoly on Mexican Internet access and is owned by Carlos Slim, the third-richest man in the world, according to Forbes.

Simply put, so far as Internet access issues are concerned, all roads to Mexican copyright reform and ACTA implementation run through Telmex. That Mexican ISPs and the content businesses and groups have been trying unsuccessfully for a couple of years now to come to an agreement on ISP liability (Mexico currently has no laws dealing with this issue) tells me that Telmex’s interests do not align directly with those of the copyright owners that have been behind the treaty.

In a sense, it might not matter much for Mexico what the ACTA requires: if it doesn’t make Telmex happy, then implementation will be a long, long time coming. Negotiating a treaty in secret may help get something signed, but if powerful interests are not listened to, they will, in the end, make themselves heard.

News flash: Canadian broadband great, says paper owned by ISP

2010-03-06T07:59:00.000-08:00

I thought there was something off in the story in the Globe and Mail (a division of CTV Globemedia, owned in part by the same company that owns Sympatico) by Leonard Waverman and Kalyan Dasgupta about how Canadian broadband access isn’t as terrible relative to the rest of the world as OECD data and a recent U.S. Federal Communications Commission report makes it seem. (Yochai Benkler, the report's author, rebutted some of the criticisms four months ago.)

I’ve been looking at the same data they criticize. Yesterday, I finished a rough draft of my case study on the Mexican implementation of the WIPO Internet treaties. When I asked Mexican copyright experts (lawyers, government, industry folks) why the treaties had not yet been implemented fully, everyone pointed to low Internet penetration rates as being one of the main causes. Unauthorized downloads aren’t much of a problem when people aren’t online. It’s only been in the last couple of years, as Mexican Internet penetration rates have started to rise that groups like the International Intellectual Property Association (IIPA), a U.S.-based lobby group, have really begun to push for measures to combat unauthorized downloading (compare the language on “Internet piracy” in their 2009 and 2010 Mexico-related Special 301 filings with those of previous years).

Anyway. One of their first criticisms is that the data conflate household and business access, and when you include business broadband access, Canada fares much better, since proportionately more Canadians are employed by big businesses than elsewhere in the world.

I was pretty sure that the data I looked at didn’t do that. And, unfortunately for their argument, the OECD data actually don’t make such an elementary mistake. As Benkler and an eagle-eyed Globe commentator points out that the OECD actually does report a broadband access rate by household. And by that measure, as our intrepid commentator (Atreya) remarks, Canada is 7th and the U.S. 17th out of the 30 OECD countries (Mexico is in 29th place, just ahead of Turkey).

Last time I checked, ranking 7th in anything isn’t enough to let you brag that you’re leading the pack. Atreya also makes some good points about measuring download speeds, which I’ll leave to the experts to quibble about.

I’d add only two things.

1. Conflict of interest. Given that the Globe and Mail is owned in part by Bell Canada Enterprises (BCE), which also controls Bell Canada, which runs Sympatico, one of Canada’s two main Internet Service Providers, it’s shocking that this story ran without any kind of warning about the Globe’s conflict of interest. Absolutely shameful.

2. Where are the links? Since I’ve started writing this blog, I’ve been noticing how Canadian newspapers like the Ottawa Citizen, the Globe and Mail and the Toronto Star often don’t link to the reports and articles they cite. Even with columnists and reporters I trust, I want to verify what they’re talking about for myself. We’re far past the time when a newspaper could confer authority and legitimacy over everything in its pages by its name alone.

And when someone like me is able to find, in five minutes, a link to a four-month-old posting in which the author of the offending report rebuts the allegations put forward in this article (h/t Geist) and yet is not mentioned at all by the authors, it does nothing for the paper's credibility. And, no, calling it an opinion piece doesn't exempt the paper, editors and publishers from their journalistic responsibilities.

Note to publishers: these days, not linking to the documents you’re writing about is like writing an academic paper without providing footnotes.

It’s almost as if these companies don’t want to survive the transition to digitally delivered news.

Canada and the politics of ACTA implementation

2010-02-26T11:21:00.000-08:00

Nice post by Sara Bannerman about the potential effect of the Anti-Counterfeiting Trade Agreement (ACTA) on Canadian copyright reform. I think she has the issue mostly surrounded, and that possibility number three – a treaty will simply introduce another element into the basics of the current copyright debate – is most likely. As she writes, pro-ACTA groups will say Canada has an obligation to implement the treaty; anti-ACTA groups will say we don’t and that it’s illegitimate (an argument that grows stronger every day the text stays secret).

Sounds a bit like a continuation of the Canadian debate over the WIPO Internet treaties, doesn’t it?

But the really big question is, will the Canadian government implement the ACTA (assuming it signs on)? While my guess is as good as the next guy’s (depending on who the next guy is, I guess), it’s worth remembering that the fact that Canada signs a treaty doesn’t really mean that much in terms of whether or not Canada will actually change its laws. As Howard Knopf has written several times, and as Sara also notes, signing a treaty does not require its implementation. If it did, the U.S. and Canada would have been implementing their Kyoto-mandated greenhouse gas reductions for about a decade now.

Directly related to this point, Queen’s University International Relations professor Kim Nossal was in Mexico City this week for a lecture that dealt extensively with the myth of Canadian multilateralism. His point was a simple one: Canada, like pretty much every other country, follows its own conception of the national interest. Nossal remarked that in cases like Kyoto and the Law of the Sea, Canadian governments of all stripes have demonstrated the willingness to act unilaterally and to ignore treaty obligations when they thought that the costs of compliance were too high.

The same is true of the WIPO Internet treaties and will be true of ACTA. Any government – Conservative or Liberal or NDP – will consider the potential effects of the treaty on its political fortunes and (relatedly) on the economy. It will also consider its effects on its international relations. While each party may come to different conclusions about how exactly ACTA implementation will affect each of these factors, domestic politics and international relations will determine whether and how the treaties will get implemented. Furthermore, my hunch is that it is unlikely that the treaty in and of itself will alter anyone's conception of what is in their national or specific interest, if only because the legitimacy of the treaties can be so easily called into question by asking why they are being negotiated in secret outside the World Intellectual Property Organization, the World Trade Organization, UNESCO or any other copyright-related international institution.

In this sense, ACTA will do little but add another rhetorical tool into the arsenal of proponents and opponents.

To put it bluntly, it's all about pain and reward. Treaty opponents will seek to convince the government that implementing the treaties will hurt the government, politically or economically, and/or that non-implementation will help the government. That’s what the Fair Copyright for Canada and the Canadians Against Proroguing Parliament Facebook groups are all about.

Treaty proponents will try the opposite: arguing that implementation of the treaties will bring political and economic rewards, and that non-implementation will carry a cost.

Signing ACTA will only be the beginning (or continuation) of the debate. It all comes down to the politics, and it's way too early to guess how any of this will fall out. But arguments that Canada has an obligation of any kind (moral or otherwise) to implement a treaty it has signed should be seen for what they are: rhetorical exercises masking self-interest.

Understanding Facebook activism in two easy steps

2010-02-18T15:31:00.000-08:00

After reading Michael Valpy’s confusing article on the political effectiveness of Facebook in this morning’s Globe and Mail, I have to wonder if reporters will ever get their minds around exactly what Facebook is. Judging from Valpy’s interview with a pollster about how Canadians feel about Facebook’s effect on politics – not, note, what Facebook activism has actually accomplished – I fear our intrepid reporters will be misunderstanding Facebook for a long time to come.

Valpy and his source, pollster Nick Nanos, essentially rehash that old chestnut: what does it mean when a bunch of people join a Facebook group? This is the wrong question and misses almost all that makes Facebook and social-networking sites important. I’ll try to put this in more traditional terms.

Facebook is the telephone. It is a way for people to share opinions and to organize online and offline activity. If you remember that Facebook is only a tool, and a tool is only as effective as the people using it, the whole idea of social-networking platforms becomes much easier to understand. It also demonstrates the silliness of asking, as Nick Nanos does, whether Facebook can replace political parties. This is as absurd as asking if a fax machine (remember them?) could replace the Conservative Party of Canada. Facebook is a tool for communicating and lobbying, not governing.

Facebook groups are mailing lists. The power of mailing lists isn’t necessarily in how many people are on that list, but in the amount of money they are able to raise, the number of people they are able to deliver at election time, the number of protestors they’re able to mobilize for a rally. Again, their effectiveness will depend on the people using the lists.

Facebook and other social-networking platforms make it much, much easier for individuals to organize. Before Facebook, getting over 25,000 people out to protest, on a single day, across the second-largest country in the world, with only a couple of weeks of organizing, would have been a massively expensive and complex logistical undertaking (to those who downplay this remarkable accomplishment: try doing it yourself sometime). Most interestingly, Facebook makes it easy for this to happen with little central organization, beyond the original Facebook page.

While its decentralized, inexpensive nature make Facebook activism potentially much more effective for grassroots groups than more centralized forms of political activism, at the end of the day its effectiveness depends on the people involved. It’s still up to the people doing the organizing to make protests work.

So what do the numbers mean? Like everyone else, I don’t know how worried the Conservatives should be that over 225,000 people have joined the Canadians Against Proroguing Parliament Facebook group (I'd be a bit worried). I do know that, via Facebook, Canadians across the country were able to get 25,000 people into the streets to voice their displeasure with Stephen Harper’s suspension of Parliament. I do know that since December, Conservative support has dropped dramatically into a statistical dead heat with a Liberal party that could most charitably be described as “adrift.”

I also know that two years ago, tens of thousands of Canadians joined the Fair Copyright for Canada Facebook group, which they used to organize protests, including visits to MP’s offices, letter writing campaigns, and even showed up at the Industry minister’s riding’s Christmas party to call for public consultations to address copyright reform. I also know that these protests were at least partly responsible for delaying the introduction of a copyright bill long enough that it was killed when the Fall 2008 election was called. It also seems clear that the Summer 2009 public consultations into copyright reform (for which the Conservative government deserves praise) were at least partly the result of this public pressure.

From these two examples, it seems clear that joining a Facebook group does, in some cases, lead to political activism. To the extent that it facilitates this activism and makes people aware of the issues, it can have, as Nanos says, “political heft in (sic.) the ballot box.”

Look: Facebook is still relatively new. We need more research into the conditions under which joining a Facebook group leads to political activism (hmmmm, that would make a nice postdoc subject…). But it does happen. And I’m sure that some enterprising political aide or grad student can come up with a nifty formula that tells us how many voters are represented by each Facebook joiner. It’s not like there are no data on the subject: Facebook has been around for five years, and in Canada we have at least two, and probably more, examples of effective Facebook-based political campaigns.

Understanding the limits and possibilities of Facebook activism requires moving beyond a simplistic view of Facebook as a pseudo-pollster and toward a more nuanced understanding of how Facebook, as a communications tool, actually works.

Buy American: Surprise! No linkage!

2010-02-05T09:30:00.000-08:00

Since I mentioned it before, I thought it worth noting that Canada and the United States have reached a tentative deal on the “Buy American” stimulus package, in which Canadian suppliers are allowed to bid on contracts funded by what remains of the $US 787 billion in stimulus money. In exchange, Canadian provinces and (according to the government press release) “a number of municipalities” will be covered by the World Trade Organization’s Government Procurement Agreement. (The federal government is already covered by that agreement.) What this means is that American companies can now bid on government-procurement contracts in these provinces, territories and municipalities, and that Canadian companies will have access to government procurement contracts in 37 states, including New York, California, Texas and Pennsylvania. The provinces still have to sign off on the agreement.

Whether or not this is a good deal (of which more in a second), note that the agreement was reached without linking the issue (government procurement contracts) to any other separate issue (like copyright, for example). Which is what one would expect, given the complex nature of the Canada-U.S. relationship.

Is the deal itself a good one? Without a lot of digging (and I really do have to get back to writing my chapter on the Mexican implementation of the WIPO Internet treaties), it’s impossible to say. The fact that the press release, joint statement and the backgrounder on “Buy American” and the tentative agreement contain no numbers whatsoever (or useful links to where these numbers might be living) is, shall we say, less than helpful. They don’t even mention the size of the U.S. stimulus package. Not good.

There are a bunch of questions I hope the media and opposition politicians ask the government, for which the answers aren't immediately clear. (Hey, wouldn’t it be nice if Parliament were in session? Then the issue could be raised in Question Period and discussed in more depth in committee hearings. Ah, the good old days.)

Specifically, what were the government’s assumptions regarding:

How much of the remaining in stimulus funds would find its way to Canadian contractors (and, for that matter, how much is remaining). Obviously most won’t go to Canadians, so the direct benefit of this agreement is likely to be much lower than this headline number.
How much of the U.S. states’ government-procurement market would go to Canadian firms and workers?
How much of the $22-billion provincial and municipal government-procurement market would go to U.S. companies. (It would’ve been nice to mention the size of this market in the Backgrounder.)
The importance of government procurement for provincial and economic development.
How having more competitors for provincial and municipal contracts would affect the costs faced by provincial and municipal governments (presuming that more competition leads to lower prices).
Net employment, domestic economic activity and tax revenue, since the opening of this market could cut both ways (some effects will reduce employment, others increase it, everything else being equal).

As I said, without these basic facts, it's impossible to evaluate the agreement. I'm hoping that the fact that they weren't provided along with the announcement of this tentative deal was only an oversight. It would be nice to know that this government reached a deal that they believed made economic sense for Canada based on empirical evidence, not on some short-run political calculations. We’ve had enough of that lately.

Parliamentary Committees I: The (mostly) civilized polar opposite of Question Period

2010-01-31T09:18:00.000-08:00

Up front, I have to note that I worked as a committee staff member (specifically, I was an economist with the Parliamentary Research Branch of the Library of Parliament) from 1999 to 2005. In other words, I have no direct experience with the minority governments of Paul Martin and Stephen Harper. The fact that the dynamics of committees are different under a minority government – the government controls the chair but not a majority of committee members – and that the current government is actively working to undermine the committee process, means that some of my experiences will not be directly comparable to today’s situation.

That said, much of the mechanics of committee work remains unchanged. I hope that they will provide an overview of how committees work and a benchmark against which one can compare the current committee setup.

Onward, then…

If you’re fascinated by politics and interested in public policy, but would rather not outsource your higher brain functions to the Party, there is no better job in Ottawa than working for a parliamentary committee, which I did for six years. While Question Period is, unfortunately, the public face of Parliament, the actual legislative and public-policy work of Parliament happens in committees. It’s here that MPs and Senators study issues, hold hearings and review legislation. In order for any bill to get passed, be it new banking rules or anti-terrorism legislation, it has to be approved by the appropriate House and Senate committees, after hearing from witnesses and debating it (to what degree depends on the issue). As a non-partisan staff member, committee staffers have a front-row seat to the best show in town. As my old boss used to say, since you’re non-partisan, you get to be close enough to the action to see everything go down, but far enough away that when the bombs go off, you’re not hit by the shrapnel.

Interest groups – lobbyists, activists, think tanks and the like – pay attention to what’s going on in committees. And if these groups are paying attention, it probably means that the average citizen might be better served taking a gander at a boring regular committee meeting instead of being distracted by the freakshow that passes for Question Period.

While much of the lobbying that happens in Ottawa occurs behind the scenes, in meetings with civil servants and ministers, committee hearings offer Canadians the most transparent means of finding out who wants what and where the parties stand on various issues (for reasons I’ll got into in another post, committee members usually march in lockstep with the will of the party, which means the will of the Leader). Without committee hearings, we would be reduced to relying on unverifiable (and potentially untrustworthy) leaks to favoured journalists and press releases issued at the government’s discretion. In contrast, committee hearings on issues both profound and mundane give our elected representatives the chance to grill lobbyists and activists and to question the bureaucrats and ministers. And while committees don’t always get to the bottom of some issues, and while they can be thwarted when the members and parties do not act in good faith, they more often than not get the job done, away from the spotlight.

At their best, committees are dull and pedestrian and vitally important to the maintenance of our democracy. When it comes to recommending specific courses of action, you can be sure that MPs act like partisans – they do, after all, have very different, honestly held, views of what is best for Canada – but committee work (again, when everyone is working in good faith) also involves by necessity a degree of cooperation among the members of all parties. Committee chairs sometimes exert/abuse their power by ramming through certain things, and opposition members can be obstinate to the point of extreme annoyance, but at the end of the day everyone has to work together, requiring a certain base degree of civility.

In other words, it’s nothing at all like Question Period.

That’s the idealized version of committees, and it’s a credit to those involved that committees often (in my experience) live up to this ideal, usually when it involves what are seen as technical issues or in the rare case when all parties are in general agreement. In other cases, it’s been my experience that committee chairs often work to achieve some degree of consensus within their caucus and among opposition members, even if they don’t always get it.

There are problems as well, but not necessarily from the committee members themselves, most of whom are at the very least attentive to the concerns of their constituents. (I’m speaking of MPs. Senators aren't beholden to voters, and it often shows.) Instead, ever-increasing party control, the “friendly dictatorship” nature of majority governments, endemic understaffing and (under the current government) an active campaign to ensure that committees do not function well all prevent parliamentary committees from completely fulfilling their role as the public’s voice in the lawmaking process.

I’ll try to tackle those issues in later postings. Next up (tentatively, and hopefully within a week), a run-down of who’s actually on these committees.

The prorogation protests: What's next?

2010-01-24T10:24:00.000-08:00

Nice to see so many Canadians out on the streets in the depths of January to protest prorogation. With any luck, this strong turnout will finally put to rest the idea that Facebook-based protests are inconsequential “slacktivism.” Facebook is a tool, just like the telephone: what matters is how people use it. Check out www.noprorogue.ca and click on the Local Info links to see how organized and effective decentralized organizing can get.

Reading the reports from my tiny apartment in Mexico City, the thing that caught my attention (other than the numbers) was NDP leader Jack Layton’s reminder that the NDP has called for legislation that would require a Prime Minister to put the decision to suspend Parliament to a vote in the House of Commons. With such a bill in place, a minority government, like Stephen Harper’s Conservatives, would have had to respect the will of the majority of MPs (and Canadians) when it comes to proroguing Parliament. Which is what, ultimately, these protests are all about.

Even the Liberals, who actually stand to gain from Harper’s expansion of executive power as the only party with a realistic shot at replacing the Conservatives, are getting in on the action. Michael Ignatieff earlier this week suggested that the prorogation controversy was all about “character,” and that what mattered is that we elect people who won’t abuse the rules. Pretty surprising, given his background in political science, really. Now, according to the Toronto Star (linked above), the Liberals are making noises about supporting some rule changes.

Going forward, we should be able to gauge how seriously Stephen Harper takes the opposition to prorogation by whether a version of the NDP proposal becomes law after Parliament is unlocked in March. In Parliament, government legislation takes priority over private-members’ bills, so without government support it can be quite hard to get a bill though Parliament, majority or minority.

If the protesters who came out on Saturday want to capitalize on the momentum and organizations they've created, they could do much worse than working to get such a bill passed. It wouldn't solve all our problems or do anything to curb abuses by majority governments, but it would be a start.

On that note, I had hoped by now to have a first post up on Parliamentary committees and how they work, but life – in the form of my parents coming to town and me showing them around – intervened. I should have something by the end of this week. But if you want a sneak peek of my overarching point, it’s that we should focus more on the rules rather than the personalities. The problems that we’ve seen with Parliament under Liberal and Conservative governments are fundamentally a matter of bad rules, not bad characters.

Update: Chantal Hébert points out correctly that nothing short of amending the Constitution would completely tie the hands of the Governor General and the Prime Minister. She argues that, like the fixed-election-date law, "Layton's legislation would likely be no more binding on the prime minister (or the governor general)." That said, Hébert's analysis is too narrow. The NDP proposal can also be seen as an attempt, like the Facebook protests, to increase the political price to be paid for ignoring the will of Parliament when it comes to prorogation. Think of it as focusing on the spirit of the law, not just the letter. In politics, this can be often be more useful than a constitutional amendment as a restraint on politicians seeking re-election.

Facebook Activism, Redux

2010-01-07T07:16:00.000-08:00

The blogosphere and pundits are all atwitter over the Facebook group, Canadians Against Proroguing Parliament, trying to figure out what it means that over 80,000 people have signed up to this group in only a few days (it had only 20,000 members when I joined on Monday). Almost all of these comments have treated this group as if it were something novel.

It’s not, and the potential effectiveness of these groups has already been settled. Those of you interested in copyright might remember that in December 2007, a similar Facebook uprising panicked this same Conservative government was panicked into postponing its copyright reform legislation.

In Fall 2007, the Conservatives were preparing copyright legislation that would, among other things, implement what opponents have called, exaggerating somewhat, made-in-the-U.S. legislation. University of Ottawa Law professor Michael Geist starts up the Fair Copyright For Canada Facebook group to protest these measures and calling for public hearings into copyright reform. The group goes viral.

Based on Geist’s Facebook group’s suggestions, but with no central organization, members start sending letters to MPs and showing up at their offices. My favourite was the Kemptom Lam-organized meetup at then-Industry Minister Jim Prentice’s riding’s Christmas party, where they “respectfully” (as Lam told me) presented their concerns. Lam’s account of the party, and Facebook activism, here, is basically a how-to to use Facebook politically.

MPs, faced with actual live voters concerned about an esoteric issue like copyright, panic, since they (and the government) have no idea how deep this groundswell goes.

The government, facing tough votes on Afghanistan and still unsure of how weak the Liberal opposition is (eventual answer: quite), decides that discretion is the better part of valour and tables the legislation until June 2008. This delay is enough to sink the legislation permanently when an election is called a few months later. Furthermore, public hearings into copyright reform, the group’s main demand, were held in the summer of 2009.

The Great Copyright Facebook Uprising of 2007 succeeded in affecting government policy. Its success was due to several factors, some of which may be difficult to replicate this time around.

Who are these people? The first lesson from the copyright debate is that if people are signing up to support an issue that the week before they didn’t even know existed, then politicians should pay attention. That over 60,000 people are members of Canadians Against Proroguing Parliament demonstrates that Canadians, despite what MPs and pundits have claimed, are worried about what the suspension of Parliament means for our democracy. This is no small achievement.

What are their tactics?

Politicians are susceptible to old-school means of communication, like letters, meetings at MP’s offices, and protests. Facebook, as many have observed, is most potent as a means of organizing locally people who otherwise would never have been able to get together, while maintaining national linkages. This is exactly what happened with copyright. I would be surprised if the most active people on the Proroguing Parliament group didn’t know this and act accordingly.

The patronizing dismissal of these groups, in both cases, as unrepresentative of average Canadians is beside the point. Politics is a game of activists, and if people are concerned enough to visit their MP’s office, they’re probably concerned enough to vote. While MPs have yet to develop a rule of thumb like they have with snail mail as to the number of voters represented by every Facebook joiner, these joiners certainly represent voters. This alone makes Facebook groups important.

What are their goals?

The copyright activists were criticized for not being specific in their demands: after all, who could object to “fair” copyright? However, Geist’s call for “fair copyright” avoided a potential schism among copyright reformers by simply calling for Canadians to be heard in the debate. It also had the benefit of being realistic.

Calling on MPs to “get back to work,” especially in the middle of hard economic times, is a stroke of genius. It may not actually get MPs back to work, but if it makes it more politically difficult for a Prime Minister to prorogue Parliament in the future, then it will have done some real good for the country.

What are the ground rules?

This is likely to be the most difficult part for Canadians Against Proroguing Parliament to come to terms with and also shows the difference between protesting legislation and confronting institutional problems.

Copyright activists were able to delay the copyright legislation by taking advantage of the fact that, with a relatively weak minority government that depended on opposition members for support, MPs could be threatened with defeat should they defy the popular will.

Effective political pressure of the type deployed by copyright activists has a wonderful way of focusing a politician’s mind. While Conservative MPs are unlikely to be swayed by any current protests, the other parties may be tempted to score partisan points off Stephen Harper, portraying him as an undemocratic dictator-lite.

This will be useful as far as it goes, even if it leaves unaddressed the fundamental problem that our parliamentary rules allow any Prime Minister to ignore the will of Parliament; it’s just more obvious in a minority situation. Unfortunately, there still seems to be little appetite for real parliamentary or electoral reform, in the country and among the political parties.

Like those in the Fair Copyright for Canada Facebook group, Canadians Against Proroguing Parliament benefits from strong, passionate interest, and has the ability to translate this strength into on-the-ground pressure on MPs. Unlike the copyright fight, these newest Facebook activists have little leverage over Conservative MPs, and only superficial leverage over Liberals, who will benefit from Harper’s expansion of executive power once they return to the throne. As a result, they face an uphill battle to get Parliament to reconvene on January 25.

With luck, this current Facebook uprising will finally put to rest the question of whether Facebook groups can matter politically. Of course they can, but it depends on the skill of those using them. Canadians Against Proroguing Parliament have all the tools they need to be heard; all they have to do is use them. If they raise the political cost to future governments of suspending Parliament arbitrarily, they will have achieved something real.

The suspension of Parliament: What’s at stake, and an announcement

2010-01-05T19:04:00.000-08:00

It’s been heartening to see the beginnings of some grassroots opposition to Stephen Harper’s decision to suspend Parliament rather than face tough questions about Afghan detainees from the opposition. Hopefully, the 185,000-plus people signed up for the Facebook page Canadians Against Proroguing Parliament (disclosure: I’ve joined the group) will put the lie to the claim that Canadians don’t care about prorogation.

The most common criticism of these Facebook groups is that they’re all talk, no action, so it’ll be interesting to see what effect, if any, the protests scheduled for this Sunday have on the political process.

But, as Susan Delacourt asks: where will this influence have an effect?

To accomplish anything worthwhile, you have to go through the political parties. However, at the moment they don’t really see any problem with the current electoral system – and it’s important to remember that, as Donald Savoie points out in Lawrence Martin’s column this morning, this is a systemic problem, not a partisan one. Even if the opposition parties get on board with the protests – and dramatic shifts in public opinion have a way of focusing politicians’ minds – and the Conservatives “get back to work,” that will do nothing to fix the underlying problem that got us into this mess.

The key point is this: convention, respect for tradition and commonly held views of what is acceptable behavour are the only things that have ever kept any Prime Minister who commands support from his caucus (and his tools for maintaining this control are themselves quite vast) from attempting what this Prime Minister is well on his way toward getting away with. Unlike the U.S. system, the Canadian system of government is relatively unconstrained by formal checks and balances.

Heat v. Light

It’s very easy for debates like these to degenerate into fact-free partisan name-calling à la Globe and Mail comments sections. This is why I think it is important to stress that while Stephen Harper bears full responsibility for thumbing his nose at Parliament, which in our system represents the will of Canadians, I’m under no illusions that Michael Ignatieff or Jack Layton (were the NDP to become a credible alternative to form a government) would have acted much differently.

As my tiny contribution to the debate, rather than go on about how fascist the Conservatives are, how we should just throw the bums out or how all politicians are dishonest liars, I’m going to try something a little different. Since the problem is not with our politicians (surprise! They’re humans), but with what our parliamentary system permits them to do, I’m going to try to generate a bit of light by talking about Parliamentary committees.

Still awake? Great.

Committees are an absolutely crucial, if poorly understood, part of our political system. They provide the only way for our elected representatives to evaluate publicly laws and regulations that would otherwise be set exclusively by the governing party and the bureaucracy. Absent good faith, the committee process cannot function. This was a problem (though less so) under the Liberals and will only get worse over time, unless checked at the ballot box or through electoral or parliamentary reform.

As it has with Parliament itself, Harper’s Conservative government has worked to undermine parliamentary committee work, through Conservative MPs’ refusal to show up at key meetings and by working actively and systematically to thwart committee hearings. Examining how committees work will, I hope, shed some light on the larger problem of the increasing lack of accountability to parliament. Over the next few months I’ll discuss the reality that while the Conservatives’ actions are deplorable and, in some cases, more extreme than we have seen before, they are not without precedent.

As an economist with the Library of Parliament, I was a (non-partisan) staff member for several parliamentary committees, including the House Finance Committee and Senate Foreign Affairs Committee, from 1999-2005 (I was on an unpaid educational leave from the Library from 2005 to last March). It was a great job that gave me had a front-row seat to this key part of our lawmaking process.

I also hope that my discussion of the ins and outs of how parliamentary committees work, while not the most exciting topic in the blogosphere (Go Coco!), will be useful to anyone who wants to understand how our parliamentary system works, its benefits and drawbacks. Most of all, I hope that it will help contribute to a rational, respectful dialogue on how to reform our current political system.

This will be an irregular series, since I want to finish my dissertation before the end of the century. That said, how Canadian copyright policy is made is not completely unrelated to the quality of our parliamentary democracy.

First substantive post coming soon. Let’s see how this goes.

All Hail General Krull! (Canadian Friendly Dictator Edition)

2009-12-31T07:00:00.000-08:00

This post has nothing to do with copyright, but being a Canadian and a political scientist, I had to jot down my thoughts on Stephen Harper’s astonishing decision – and ability – to suspend Parliament for over two months.

Harper’s move to suspend Parliament on the flimsiest of excuses and for the second time in a year, as Andrew Coyne suggests, represents a worrying turning point in the history of Canadian democracy, but it’s one that’s been a long time coming. And while it’s tempting for partisans to frame this as the result of the authoritarian tendencies of a Conservative leader, it’s much bigger than that.

While Stephen Harper, who campaigned on a platform of greater accountability, should be held personally responsible for a government that has repeatedly mocked the concept, does anyone really think that the Liberal Jean Chrétien, who inspired Globe and Mail columnist Jeffrey Simpson to coin the phrase “The Friendly Dictatorship,” would have acted any differently? The only difference between Chrétien and Harper is circumstance: Chrétien headed a majority government, and thus controlled Parliament completely. He didn’t have to resort to blunt, thuggish measures like the suspension of Parliament because Parliament did his bidding. Harper doesn’t have that luxury, so he, as our current “Friendly Dictator,” is forced to take the low road in pursuit of total control over the federal government.

In other words, the problem is not just in our leaders, but in a political system that concentrates all power in the hands of one person. In the end, there are only two constraints on the power of the Prime Minister: the need to win re-election occasionally, and the need to retain the confidence of Parliament. This second constraint, however, was weakened almost irreparably last year when Stephen Harper managed to convince Canadians that coalition governments are somehow illegitimate, even though in the Westminster system – the Canadian form of government – nothing could be further from the truth.

As a result, the only way for Parliament to exert any influence at all is to force an election. Of course, when one party has a majority, that’s a non-starter. Even when there’s a minority government (like now), election threats are completely ineffective when your other main party doesn’t have the guts to call an election. And that’s assuming that the Prime Minister doesn’t simply suspend Parliament again to avoid any non-confidence votes.

My greatest fear is that we may have already missed our best possible opportunity to reform Parliament. In 2005, when the New Democratic Party held the balance of power in Parliament, they made their support for Paul Martin’s Liberal government contingent on the inclusion of some spending measures, now long forgotten, in the budget. Why they did not push for electoral reform –from which they would have benefitted, as a smaller party – is beyond me.

Now, things are worse. Electoral reform is nowhere on the political agenda. A Prime Minister who doesn’t even control a majority of seats in the House of Commons has demonstrated the ability to suspend Parliament at will. Coalition governments have been deligitimized. Future Prime Ministers – Liberal and Conservative – will take these facts and run with them.

The dismissal of Parliament should be a non-partisan issue that enrages all Canadians, regardless of political stripe. Today it’s a Conservative in power, and conservatives may be inclined to give Harper the benefit of the doubt (although his decision to prorogue Parliament also managed to further delay many law-and-order bills of interest to conservatives), but eventually the tide will turn.

As for me, I would rather Canada not be subject to the whims of any one person, Liberal or Conservative. One of the great benefits of democracy is that the presence of vigorous and effective opposition tends to moderate extreme political viewpoints, of all persuasions, while allowing for the pursuit of policies that satisfy the most people.

There is a sort of wisdom in this moderation. It’s a wisdom based on debate and compromise, eminently democratic and Canadian values. Unfortunately, since the time of Trudeau, Canada has been moving away from these values and sliding further toward not even rule by one party, but by one person. If Stephen Harper is allowed to get away with his disrespect of Parliament, and if Canadians do not work to get rid of the conditions that have allowed things to get this bad, all Canadians, Conservatives as well as Liberals, will regret it in the end.

The Value of Music, Beatles Edition

2009-12-15T11:16:00.000-08:00

For sale on the Mexico City Metro: Two hundred and thirty-seven Beatles MP3s on one CD-ROM for 10 pesos (about 95 cents Canadian). As someone who understands the importance of The Beatles to pop music but wouldn’t cross the street to hear one of their songs, that sounds about right. Maybe a bit too high. (I passed.)

It did make me wonder whether the prospective set of customers for a bootleg CD of The Beatles back catalogue overlap with those for a Beatles box set. How about with those for authorized MP3s, if they ever get around to releasing them? Not being a Beatles fan, I can't imagine purchasing any of them at any price, but given that unauthorized Beatles MP3s are surely available somewhere online already (not being a fan, I can’t be bothered to check), and that presumably anyone with an interest in The Bealtes would have already ripped their own CDs to their computer, what would motivate someone to wait years for the authorized MP3s?

Ten pesos is also an interesting price when you consider that those 10 pesos has to cover the costs of production (buying the blank CDs, and the computers to burn them) and distribution and labour costs (the network of hawkers selling the CDs) and still make a profit. Whoever sells these CDs must be making some money, since you can't go five minutes on the subway without being interrupted by a hawker pitching The Beatles or the Greatest Hits of the 80s or whatever.

By the way, I just purchased an e-book version of Landes and Posner's The Economic Structure of Intellectual Property Law from the Sony E-bookstore. For about $60. I leave the link between the Beatles and Landes and Posner as an exercise for the reader.

Why Buy American has nothing to do with Canadian copyright reform

2009-12-09T06:56:00.000-08:00

One of the fun things about doing a dissertation on copyright is that you can’t go a day without something interesting happening (unfortunately, this is also one of the annoying things when you’re trying to finish said dissertation).

Yesterday’s news had lobbyist Scotty Greenwood, of the Washington-based Canadian American Business Council, suggesting that Canada could get around the country’s exclusion from the Buy American program, which allows U.S. governments to favour U.S. suppliers, if the Canadian government addressed U.S. concerns on copyright. Howard Knopf was quick off the bat decrying this as a bad idea.

And it could be (it would depend on the net economic and social benefits of such a deal). However, thanks to the NAFTA and the decentralized nature of the American political system, this kind of quid pro quo is highly unlikely. Conservative Industry minister spokesperson Darren Cunningham gets it exactly right when, as the Globe’s Bill Curry reports, he “notes that state and municipal governments, which are the source of the tensions, are unlikely to share Washington’s level of interest when it comes to copyright policy.”

Happily, my dissertation is examining exactly this issue, specifically why Canada and Mexico have taken over 12 years and counting to implement the WIPO Internet Treaties despite constant pressure from the United States and its content industries to do so. The United States is without question the region’s superpower. But, despite the fact that copyright has been at the top of the American trade agenda throughout the Bush Jr. and now Obama regimes, Canada has proposed (and failed to pass, thanks to minority government-related election calls), first a 2005 bill (legislative summary) that didn’t do what the U.S. wanted, and then a 2008 bill (legislative summary) would have given the U.S. much, but not all, of what it wanted. (Mexico’s experience, which I’m currently researching, is somewhat different.)

While lobbyists like Greenwood can suggest that Canadian movement on issue X will yield American movement on issue Y (what political scientists call “linkage”), it’s actually really hard to link issues in Canada-U.S. relations, for two reasons.

First, as Cunningham suggests, unlike Canada’s, the U.S. political system is not concentrated in one person. Stephen Harper can make credible promises to link unrelated issues because he, for all intents and purposes, controls Parliament. Barack Obama can’t deliver in the same way, because he has to deal with a Congress that he does not control and whose interests may differ from his. The politics are much more complicated. A basic point, but one that politicians, journalists, lobbyists and we political scientists don’t always remember.

Second, there is currently no regional institutional framework to allow for the easy linking of issues. This is where the NAFTA comes in. The NAFTA sets baselines and rules governing North American economic activity, but it contains no way to modify (easily) these rules, meaning they’re essentially stuck in amber.

There’s a reason why the United States has incorporated successfully its demands on copyright protection into its trade agreements: they’re trading something the other guy wants (access to the U.S. market) for something that the U.S. wants (U.S.-style copyright laws). But because Canada and Mexico already have guaranteed access to the U.S. market, thanks to the NAFTA, the U.S. has relatively little to offer its trading partners. Somewhat ironically, the NAFTA has provided North America’s juniour partners with a not-insignificant degree of policy autonomy.

(Given the reality that copyright laws are changed regularly in response to technological developments, the American strategy of using trade agreements, which can’t be modified easily, to set other countries’ copyright laws may backfire in the long run.

On another point, the lack of issue linkage in the current Anti-Counterfeiting Trade Agreement is one of the more puzzling things about those negotiations. Given the secrecy surrounding the talks, it’s unclear even why countries like Canada are negotiating this agreement. But that’s a topic for another day.)

While the second point is a bit underappreciated (though Stephen Clarkson hypothesized it a few years ago, in a paper that kickstarted my own thinking on the issue), the first point is a cornerstone of the study of Canada-U.S. relations, since at least the publication of Keohane and Nye’s Power and Interdependence in the 1970s.

I’m not saying that linkage is either impossible or always undesirable. The moribund Security and Prosperity Partnership of North America provided a forum that allowed for policy linkages and may have provided an opportunity for the United States to exert pressure in 2008 to get what it wanted in what eventually became Bill C-61. Canada and Mexico may decide to implement U.S.-style copyright policies.

The two governments may attempt to link issues. But absent some kind of new regional institutional structure, or a new round of free-trade talks, any kind of Buy American-copyright linkage has the odds stacked against it.

In Mexico, creators and industry are getting together

2009-11-20T10:10:00.000-08:00

Very interesting news here in Mexico. El Universal and others (all sources are in Spanish) are reporting that over 30 copyright-related groups are coming together to form the Coalición por el acceso legal a la cultura (Coalition for legal access to culture). According to composer and coalition co-president Armando Manzanero (rough translation): “We are uniting so that no one steals a song, a book or a picture, so that everyone pays royalties to the artists.”

What’s most significant is that this coalition unites artists’ collective societies and unions with those on the corporate side, such as the Asociación Productora de Fonogramas (the only industry group mentioned by name in the articles, though I understand from people I’ve talked with that the coalition basically includes everyone traditionally involved in copyright). Furthermore, it has the blessing of the two main government oversight bodies, INDAUTOR and IMPI, as well as the head of the main congressional oversight committee, la Comisión de Cultura de la Cámara de Diputados, Kenia López.

Generally speaking, the coalition favours stronger copyright laws (and enforcement). Their initial projects include working toward a copyright levy and a regime for ISP liability, since right now there is no specific Mexican law governing ISP liability. I also understand that they are interested in getting the government to enforce their copyright laws by granting them ex officio authority, meaning that the government would not have to wait for an infringement complaint to take action against suspected infringers. (I think this is the big one, since it moves the onus for enforcement from the private sector to the public sector and, thus, the taxpayer.)

Getting Ready for the Future

This coalition comes in advance of what will likely be a major reform of Mexican copyright law in a few years’ time. The last major reform to the Mexican Ley Federal de Derecho de Autor was in 1997, mainly (but not completely) to implement Mexico’s obligations under the North American Free Trade Agreement; it was modified in 2003, notably to increase the standard copyright term to a world-leading life of the author plus 100 years (at the request of Mexican authors’ groups – not all copyright reforms are driven by American industry).

The upcoming legislative battle will likely pit coalition members against Mexican Internet Service Providers, with the coalition wanting the ISPs to undertake some form of policing of their networks and the ISPs trying to minimize their legal obligations. Having a coalition allows these disparate groups to work out their differences (and there will be differences) in private before dealing with the ISPs, and to present a unified front to the authorities, giving their conclusions a lot of weight.

Issue Framing

The coalition is also a savvy move in the battle for control of how the issue is framed. In countries like Canada and the United States, there is a growing appreciation that artists and distributors/producers sometimes have conflicting interests when it comes to copyright. It is no longer identified solely with authors, but rather as a commercial right whose benefits accrue mainly to large corporations. In contrast, the Mexican copyright discourse is still dominated by the Continental idea of copyright (or, rather, derecho de autor – author’s right) and is seen as a tool for the protection of the national culture (whereas in Canada, the claim that copyright serves mainly foreign, i.e., American, interests, has a lot of currency). This narrative is reinforced by the role of collective societies as providers of social programs to artists and as their main representatives in the legislative process. Having all these groups under one roof reinforces the idea of copyright as an author’s right, rather than as a commercial right.

Getting Ahead of the Public

The coalition is also getting ahead of another group that has proven increasingly vocal in places like Canada: the user community. While the past several years have seen an astonishing politicization of copyright in Canada, there is to date no evidence of a similar groundswell in Mexico. (According to one of my interview subjects, this book, released in July 2009, was intended partly as a way to kickstart a public debate over copyright in Mexico.)

Part of this lack of interest can be attributed to the low level of Internet penetration in Mexico. This won’t always be the case, however; as more Mexicans go online, they are likely to become more aware of how they are affected by copyright law. In the face of a well-organized coalition, it will be harder for consumers to organize effectively.

At a time when many folks in the blogosphere are focused on the (admittedly important) Anti-Counterfeiting Trade Agreement (which should be made public, if only to allow for reasoned debate on the issue), the creation of this coalition is a reminder that copyright law, at the end of the day, is made and shaped domestically, not just internationally, and that stronger copyright protection is not necessarily only an objective of the American copyright industries.

Tepito!

2009-11-18T06:06:00.000-08:00

As I mentioned above, I'm in Mexico to study Mexican copyright policy (I'm actually comparing the implementation of the WIPO Internet Treaties by Canada, the United States and Mexico to see what it can tell us about North American governance, but I'll save that for later). A few weeks ago, I went with my neighbour and his girlfriend to Tepito. If you're interested in copyright, then you've heard of Tepito. If you're a political junkie in Washington, you go to Capitol Hill; if you're into copyright, you gotta check out Tepito.

It's an infamous thorn in the side of the copyright industries and the Mexican government (Outside of copyright, it has a colourful history). The International Intellectual Property Alliance (IIPA) - the main lobby group for American copyright companies - claimed in 2008 that Tepito accounted for "65% of the pirate music product manufactured and distributed" in Mexico. Thanks to its deep connections with organized crime, it's also a no-go area for law enforcement.

Based on what I'd read about the place, I wouldn't have gone without my Mexican neighbour, but once there, it's an eye-opener (and it didn't feel too dangerous, but I may have been oblivious). That it's a veritable warren of stalls makes it familiar to anyone who's ever been to the night market in Chaing Mai, or countless other places throughout Asia and Latin America. I didn't see any CDs being burned, but I did see hundreds of DVD covers in the process of being prepared for assembly. Anyone who's interested in copyright and how it interacts with the real economy should definitely check it out.

Some thoughts and observations:

Free marketers would love Tepito. It's remarkably complex and has developed in the absence of government regulation. Many vendors specialize (some exclusively offered porn, Mexican movies, and arthouse flicks). They may also have overcome the quality problem associated with pirated materials. According to a professor I interviewed for my field research, many vendors offer you the opportunity to return the DVD if you're not satisfied with the quality. To me, this suggests that these vendors have developed roots in their community.

What's also interesting, for a lapsed economist, is the complementary (or symbiotic) economy that has developed around Tepito. Much (or most) of the stuff sold there may be stolen, but there are also a lot of vendors selling food (a lot of which looked quite tasty) and crafts. There is also a market (or more than one; I was unclear where Tepito ended and the others began) near Tepito; I'd bet that one depends on the other.

Price competition. Seeing the low prices for DVDs (three to five dollars Canadian) made me think that the really interesting question for copyright aficionados is not how to eliminate copyright violators, but why people still buy full-price CDs and DVDs and go to movies, when substitutes are available at a fraction of the price. Economically, it makes zero sense. I'd love to see any work that's been done on this (I've been too focused on the philosophy of copyright and the Internet treaties to be of much use here, unfortunately).

Full-price DVDs may be a status symbol: a form of conspicuous consumption unavailable to the majority of Mexicans, 50% of whom live below the poverty line. So what you have is two markets: the rich and the poor. The professor I mentioned earlier said he thought his students bought so much bootlegged material because while they've been trained to consume, being students, they lacked the means to buy authorized goods.

Extend this argument to the entire economy and you've got a situation in which an illegal market may not necessarily be a bad thing for the content industries. Cheap knockoffs may get people interested in consuming these status products; once they make enough money, they might switch to the more expensive legit (status) copies.

It also made me wonder what would happen if the copyright industries slashed their prices to compete with the bootleggers, and what the industry would look like at those prices. I'm going to have to do some hunting for papers on the economics of piracy. I'd love to know what their profit margins are.

Grist for a post-doc, maybe.

Availability. Contrary to what you read, you can't buy everything in Tepito. I looked high and low for a copy of Star Trek - for research purposes, of course - and I couldn't find a copy anywhere. I saw it on the streets for the first time two days ago. Wonder if they took any special precautions to keep it from leaking out.

The future. Mexican Internet penetration rates are still quite low. It would be interesting to come back in ten years and see if the commercial market for illicit CDs and DVDs had been replaced by non-commercial (potentially illicit, depending on what the law says at the time) file sharing by Net-savvy Mexicans. Tepito's days may be numbered, not by law enforcement, but by technology.

Killer swag

2009-11-10T17:46:00.000-08:00

Caught The Killers at the Palacio de los Deportes last Sunday, general admission, along with about 10,000 screaming Mexican fans. How good are The Killers live? Good enough that they can play "Somebody Told Me," their ridiculously catchy debut hit, only two songs into their 90-minute set and not have to worry about any post-hit letdown. I'm not the biggest Killers fan in the world and their albums are kind of uneven, but live? Wow. They're one of those bands that know how to play a stadium and don't shy away from the Rock Anthem (which, combined with pyrotechnics, is a thing of beauty to behold). If they ever manage to harness their talent for an entire album, they'll be unstoppable, live and on tape.

Almost as good was the variety of bootleg swag available outside the venue. I'm talking countless different T-shirt designs, glassware, posters, stickers, lighters: basically, if it was possible to stick a "Killers" logo on something, you could probably find it in one of the many stalls lining the route from the metro station to the stadium. Also saw some cops standing idly by, for what it's worth.

I've been to a few shows in the two months since I arrived in Mexico City, and the big shows usually have the same things for sale, only with a different logo. That said, every show so far has had some unique merchandise. There was nothing at The Killers show to match the pure awesomeness of the Depeche Mode T-Shirt featuring the band members, drawn Simpsons-style, trapped along with Homer Simpson in individual test-tube thingies while Kang and Kodos look on, slobbering. I regret few things in life; not buying that shirt is one of them.

The Killers show did, however, feature (and I don't think I'm imagining this) a Killers sleeping bag cover, which I didn't buy, and a Killers travel pillow, which I did.

Anyway, check it out: Killers bootleg swag (mug: 100 pesos, keychain: 30 pesos, pillow: 40 pesos, general admission ticket: 800 pesos. 12 pesos = C$1). If they'd had stuff like this for sale officially, I would have bought it.

(Mandatory IP question: why do people buy official concert T-shirts, especially when there are plenty of knock-offs available at a lower price? Quality? A desire to support the band? The designs are cooler? I'm guessing there's no one answer. If anyone wants to share, feel free.)

And, as an added bonus, some glassware from the Pet Shop Boys' concert here on October 1.

The paint started coming off before I got them home. Obviously, when it comes to bootleg merch, it's buyer beware.

The Leaked ACTA Documents: What Next?

2009-11-06T07:32:00.000-08:00

I had originally intended my first post to be more introductory (PhD student in political science at Carleton University in Ottawa, writing a dissertation on implementation of the World Intellectual Property Organization Internet treaties in Canada, the U.S. and Mexico, former economist and reporter, currently working out of Mexico City trying to finish my dissertation so I can rejoin the workforce), but instead I’m going to jump right into what I hope will be regular postings related mainly to my academic work: copyright policy and North American regional integration. Comments always welcome.

I’ve been experiencing a bit of déjà vu reading Michael Geist’s recent postings on the leaked Anti-Counterfeiting Trade Agreement (ACTA) which, despite its name, seems to have at least as much to do with copyright as counterfeiting (Geist has a link to a leaked description of the parts of ACTA related to ISP liability and technological protection measures). The secret negotiations among a group of (mostly) developed nations attempting to set a global standard that goes far beyond the existing international treaties, the leaks that have sparked outrage among activist groups, the negotiations outside the subject’s traditional fora: what we have here is practically a repeat of the Multilateral Agreement on Investment (MAI: OECD page; Wikipedia) in the late 1990s.

As a pup reporter for a small Toronto-based Catholic social-justice newspaper (how’re those for some loaded labels?), I filed many a story on the opposition to the MAI, and I remember how activists claimed victory when it was shelved. For those of you who don't recall the MAI, it was like the Battle of Seattle, only about global investment rules. Its defeat was seen as the first expression of what has come to be called global civil society.

For those concerned with the potentially harmful effects of an ACTA, which could include a three-strikes rule for repeat copyright infringers and a notice-and-takedown regime for ISPs, there are some important lessons to be learned from the MAI experience, the most obvious to me being:

Lesson #1: The negotiating forum matters. This is the big difference between the ACTA and the MAI. The MAI was negotiated under the aegis of the Organization for Economic Cooperation and Development. The OECD, and not the recently established WTO, was chosen as the negotiating body because it was felt that its limited, relatively homogenous membership (currently 30, mainly industrialized, countries) would make it easier to conclude an investment treaty. This treaty could then be presented to the rest of the world as a fait accompli without the bother of having to negotiate with countries whose interests may not be in sync with the richer OECD countries.

The one flaw in this plan was that the OECD was working under consensus rules: if one country objected, then the whole treaty would not proceed. Indeed, while activists can take a lot of the credit for the eventual demise of the MAI, it was actually the French government’s decision not to pursue the MAI that actually killed it but good.

The big question for ACTA opponents (and proponents, for that matter) is whether the talks are vulnerable to a country pulling a France before the end of negotiations next year. I don't know the answer to that question, mainly because (what with the secrecy and all) the terms under which the treaty is being negotiated are not readily available. But it would seem that so long as the United States, Japan and the European Union are on board (the U.S. isn't going anywhere; don't know about Japan or the EU), it doesn't matter if most other countries stay or go. If the United States can go into Iraq with Britain, Australia and Moldova as its main allies and call it a coalition, they could still negotiate a treaty with bit players and call it a new world standard.

So ACTA opponents will have to take into account the likely success of a treaty and plan accordingly. The basic strategy of the MAI protesters seems to remain valid here: international information coordination (the easy part) and domestic political pressure (the hard part). The real battle will probably take place country-by-country, first over whether to withdraw (Howard Knopf argues for walking away) and then over the treaty’s implementation.

While this likely will make the ACTA political debate different (and more difficult for opponents) than the MAI debate, the final outcome is not predetermined. Treaties can be modified before they are signed, and then they have to be implemented, and then enforced. As has been demonstrated by Canada’s inability to implement its obligations under the WIPO Internet treaties, and the U.S. refusal to implement the Kyoto Accord (which it signed), just because a country signs a treaty does not mean that it’s going to implement it.