Copyright as an instrument of industrial policy

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

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.

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

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

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?

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:

1. 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.
2. 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.
3. 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

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.