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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Three questions

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

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

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

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

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

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

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

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.