Sunday, February 7, 2016

Improper use of a "hackathon": software code to promote flaw in legal code

This is something I've observed before: an attempt to use software code to either route around or mask flaws in legal code.   As hard as it is for technical people to get politically involved and help fix legal code, it is far more likely to succeed than trying to route around the law with code.

While it is disheartening to see a technical community launch these projects, I wonder something fishy is going on when a legal community does as was done by IP Osgood with their Orphan Works Licensing Portal Hackathon. They suggest that "hackathons bring together smart people with lots of different expertise to tackle a big issue with intensity, energy and enthusiasm in a condensed period of time".  Even given this I suspect they weren't interested in participation from people who don't consider this to be a problem that could or should be solved with technology.

The bug

Potential solutions

Obviously if you see this as a legislative problem, writing software to make it easier for money to flow to a collective society rather than a creator won't be seen as a solution but a perpetuation of the problem.

Canadian Copyright Act Section 77

A shorter-term legislative change for Canada would be to repeal section 77 of the act, and to add clarity to section 29 (fair dealings). There has always been discussion about making "effect of the use upon the potential market" a primary consideration for determining fairness, which I have always taken to mean that a specific use of a work would be fair dealings if the copyright holder didn't offer licensing under reasonable terms.  In the case where there is no copyright holder around to offer a license, then it should be made clear no license is required.  This would provide the quickest and most cost effective solution to the orphan works problem, and would properly put the onus on copyright holders to make themselves and their licensing offerings more visible in order to create a marketplace that otherwise doesn't exist.

Collective societies have an obvious role, which would be to use some of the money they keep from copyright holders as "administrative fees" to create a database of authors and their works.  They would then do recruitment to join the collective to enable transactional licensing through them.  With such a searchable database and active recruitment which also serves as public education, works would no longer be orphaned.

Access Copyright, as one example, has taken the funds they have extracted based on section 77 and created an Access Copyright Foundation.  This foundation looks far more like an arts granting agency than something that legitimately should be part of a collective society.  A more appropriate use of money collected on the backs of orphaned works would have been to solve the orphaned works problem for literary works (What AC licenses -- they wouldn't be expected to solve the problem for music, etc).

Note: While I am a strong supporter of stable arts funding, I believe this should occur within the transparency and accountability requirements of a government agency and not through an unaccountable foundation created with funding from a flaw in Canadian law.

Berne Article 5

This is a subject that has received considerable discussion over the decades, but nearly all I've read take the position that this aspect of Berne can never be modernized.  Every WIPO treaty relating to copyright has been an amendment to Berne, and Berne itself has been modified many times, so if it is felt that a patch in the form of a treaty is required to solve this bug then it would be no harder to create and have ratified than any other WIPO treaty or any other change made to Berne.

I am of the opinion that Berne doesn't need to be modernized to handle this issue:  It is only interpretations that need to be modernized, and Berne never prohibited any and all types of formalities for the entire term of copyright.  Put in context it looks far more likely that subsection was a solution to requiring independent registration in every country rather than a prohibition on having a global copyright database that is maintained in coordination with each treaty country.

The first version of Berne was from 1886, a time that clearly pre-dates the modern technological era where we are globally creating billions of new works presumed to be regulated by copyright every second. Copyright is presumed to regulate everything we do with our modern technology, whether amateur or professional, and some claim even when automated such as CCT cameras.  The whole Monkey Selfie debate was sad that anyone thought copyright should regulate those photographs.  The reality is that the vast majority of copyright holders in the modern era don't even know they are copyright holders, and have no interest in licensing their works. In some fields like computer software we have already observed that most of the copyright holders for works greater than 21 years old have gone out of business and there is nobody that a license could be obtained from.

Along with the growth of technology which creates fixated works came a solution to the question of how to determine which works are regulated by copyright: searchable databases.   Compared to the problems in trying to locate copyright holders which the "orphan works" problem only exposes a small portion of, having copyright owners who care to be found provide and keep updated documentation on works, their creators (first holders of copyright), and contact information for their current owners, would be easy.

There is still a good reason to have a "no formalities" period.  Given that most works are created by amateurs who are generally unaware of how copyright relates to them, there should be a period to discover that some of their amateur works have economic value.  Many works will also be created in other countries, some of which won't be treaty countries, and these should enjoy some minimum term of copyright during which they can learn how to renew within the global database.  This also provides time for professional creators and/or their employers to maintain their databases, and allows copyright to regulate the period of time between when a work is first authored and when it might be publicly released.

It has been suggested a 7 year unregistered copyright term would be sufficient, after which registering in a database as part of a renewal process would be required to continue to use copyright regulations up to the maximum term.

This searchable database would solve so many problems with copyright law in the modern era.  If you already have access to a work you wish to use you would have a simple formula to follow:

1) Look up work in database
   a) If found and term not expired, use contact information for current owner to gain license (success!)
   b) If found but copyright term expired, no license required (public domain)
   c) If not found, enter information into database (required part of public records keeping), and determine if work has existed for at least 7 years
     i) If it is older than 7 years, no license required (public domain)
     ii) If it is younger than 7 years, you have some research to do as was the case before copyright modernization.

With this modernization there is only a tiny subset of works where determining if a license is required and obtaining a license is as hard as the problem is today.  This is a good compromise in keeping with the spirit of the "no formalities" requirement while actually modernizing copyright to deal with critical practical issues that could never have been imagined in 1886.


The record keeping part of (1)(c) in the process above can go a long way to helping build a complete database of valued works. Copyright holder activist groups can also monitor these filings and help encourage copyright holders they are aware of to renew their works and join collective societies in order to gain licensing fees.  This would be an effective replacement of section 77 of Canada's Copyright Act, keeping the record keeping value while providing more positive motivations to avoiding works ever being orphaned.

WIPO has their own take on Copyright Registration and Documentation Systems.  Given the current "no formalities" interpretations were really pushed in 1971 as part of the push with the USA finally joining Berne in 1989, we see additional proof that this issue is still open for discussion and can be modernized to take Information and Communications Technology into consideration.

Tuesday, December 29, 2015

Backward laws around technology ownership make self-driving cars more dangerous

Canadian born science fiction author Cory Doctorow writes many excellent articles which try to wake people up to the real technology debates we should be having, recently discussing self-driving cars.  He makes the appropriate link to what I call "dishonest relationship misinformation" (DRM), which some incorrectly call Digital Rights Management due to a confusion on how technology works (they believe it is the interests of copyright holders being protected, when it is the rights of technology owners being revoked).

I always like to extend the discussion beyond questions about whether owners should be treated as threats to asking why we can't move away from these unethical questions to making the obvious ethical choice.  We never need to treat owners in an unethical (even if temporarily legally protected) way if we clarified who owns what.

If a vehicle is owned by a taxi company or municipal transportation authority, it is obvious that its passengers should not be legally allowed to modify the vehicles software.  There is no moral issue here, and the passengers know they are passengers whether there is a human or computer driver.  If they don't trust the organization providing the transportation, they can change transportation methods and/or lobby government to provide adequate regulation of these industries. Governments can properly regulate these industries to ensure passenger and public safety, just as they always had in other transportation industries such as airlines that have had driving assist for a very long time. These devices can also be more easily secured from unauthorized remote control given there is no reason to try to hide unauthorized software from the devices owner. The law can provide owners incentives to secure this technology, rather than backward laws making it illegal for owners to secure their own technology.  Ownership is clear, security is clear, regulations are clear, and the passenger can clearly understand their relationship with the mode of transportation they have chosen.

If a car is sold to an individual, and yet a third party (whether government or the manufacturer) wants to retain control, then we get into the very dangerous territory that Cory is discussing.  Terrorists breaking into the security of (by law required to be insecure) vehicles and using those remotely controlled vehicles as part of an attack is an obvious scenario for self-driving vehicles.  While we won't be counting the costs in lives lost, this does not mean we should ignore other technology.   The devices we use to communicate must also be treated with respect, even when they are multi-purpose and can be used for banking transactions as well as watch movies.  The same clear ownership options exist with communications as well as transportation technology.

What the entertainment industry has been duped into asking for, the legal protection of device manufacturers retaining control over devices sold to individuals, has established costs to society that go well beyond the theoretical (and unproven, un-demonstrated) benefits that copyright holders believe it has.

I consider the moral question to be simple:  We must modernize laws to make it clearly illegal for someone other than the owner of a device to be in control of that device.

Whenever someone asks for something different you should be asking about the morality of that individual or industry given they had a moral choice to make, and yet decided to be promoting the immoral option.  There are reasons why the entertainment industry was lobbying against anti-malware lawsThose industries want to run software in a way that is undetected by the owner of the device in order to verify that their content is not being "stolen".  But, this is precisely what malware does when it it steals passwords.  There is no moral difference between the entertainment industry malware from that written by credit card thieves.

I discussed these pro-infringement organizations in my submission to the parliamentary committee studying Bill C-11

Only once we modernize the law to properly handle basic technology ownership can we rationally approach dilemmas such as the Trolley Problem.

Saturday, December 12, 2015

Trans-Pacific Partnership would lock Canada into Harper's mistakes

The following is the text of a letter sent to our Prime Minister, my local MP, and a few key ministers.

The Right Honourable Justin P. J. Trudeau, Prime Minister of Canada

Copies to:

David McGuinty, M.P., Ottawa South (my riding)

The Honourable Chrystia Freeland, Minister of International Trade (asking for feedback on TPP)

The Honourable Navdeep Singh Bains,  Minister of Innovation, Science and Economic Development (Non-owner locks on digital technology has great impact on this portfolio. Industry Minister listed as responsible for Copyright Act currently tainted with problematic policy)

The Honourable Kirsty Duncan,  Minister of Science (Support for problematic policy largely comes from science fiction belief of how technology works.  Policy needs scientific evidence based review)

Prime Minister Trudeau,

We met at your constituency office in July 2010, and you tweeted my summary of the meeting to your followers:

We discussed the then Harper Government copyright bill, with my emphasis being on the technological measures aspect of the Bill.   While I believe Harper made some serious mistakes in that part of the bill, I am writing you today to alert you to the fact that section article 18.68 of the Trans-Pacific Partnership would lock Canada into Harper's mistake.

When talking about technological measures, what people often call "digital locks", it is important to understand that there are two locks and not one.

A lock on copyrighted works, nearly always in the form of "encrypted media", cannot do much on its own. Contrary to the common science fiction belief, copyrighted works can not "come alive" and decide to do things (to be copied or not, to self destruct after rental period, etc).  What encrypted media can do is try to tie the decryption and use of the media to devices that are "authorized" by the copyright holder.  Rather than this being a copyright issue, this is a competition law issue (section 77 tied selling) which has all the economic and other harm that requires competition law.

The more critical issue is that, while there are legitimate business arrangements available, the only devices that ever get "authorized" are locked in a way that treats owners as an intruder.  In no other aspect of our lives do we allow third parties to lock owners out of their property, and this should be explicitly prohibited with digital technology.  Discussing copyright in this context is a distraction as the relevant issues include property rights, software transparency and software accountability.  When discussing this policy I would often mention privacy and other human rights infringing telecommunications equipment, medical devices, online banking and retail, and technology used for voting.  More recent issues to add to the list are driverless vehicles, drones, and the Volkswagen emissions scandal. There have been demonstrations of intruders remotely disabling a Jeep while it was on a highway.

Non-owner locks on devices also disallow owners installing software that would extend the useful life of hardware, allowing hardware vendors to force premature hardware upgrades, which has a great impact on the environment.

As more and more aspects of our lives, including basic issues such as transportation, communications, privacy and public safety, are intermediated by computers we must enact legislation that protects software transparency and accountability.  Technologies such as encrypted media abused to tie the ability to access creative works to non-owner locked devices must be legally prohibited, not legally protected as under Harper's bill C-11.  Non-owner locks on devices must be legally prohibited, as owners and others can't have unjustifiable barriers to doing independent software audits.

There is a shorter-term fix to Harper's mistake:  The WIPO treaties never required Canada to enact legislation against "access control" technological measures, but instead required "use control" where the prohibition against circumvention had a direct tie to copyright infringing activities.  This is as it was written in the Liberal Bill C-60, and must be the direction Canada moves.  Unfortunately the TPP calls for "access control" technological measures, which must be rejected.  Canada needs to be actively working with our trade partners to move away from any support for "access control" technological measures, aggressively rejecting claims from extremists who are opposed to (or deliberately oblivious to) technology ownership, software transparency and software accountability.

The technological measures section of the TPP is in addition to article 14.17 which opposes basic software transparency and accountability, and which Stewart Baker (first Assistant Secretary for Policy at the USA's Department of Homeland Security) also suggests is "a bad topic for a trade deal"

The Harper government's promotion of the TPP was simplistic: Free trade is good, this is free trade, so therefore it is good.   The policies I oppose will reduce competition, increase barriers to trade, and reduce accountability for government procurement -- all policies which have no business being included in something alleging to be a "free trade" agreement.

I live in Ottawa South, and work on Wellington Street close to your parliamentary offices.  I can be made available to any minister, member of your caucus, or their staff, to discuss this issue further.

Russell McOrmond
305 Southcrest Private,
Ottawa, ON
K1V 2B7
Mobile Phone: (613) 262-1237

Please share with your colleagues as this policy also has serious implications for other portfolios including Public Safety and Emergency Preparedness, Public Services and Procurement, Health, Transport, and National Defence.

Note: I quote Stewart Baker in the introduction page for the Petition to protect Information Technology property rights

Wednesday, October 21, 2015

A (non)Copyright question in a Canadian federal election 2015 quiz.

On Monday many co-workers were circulating around a links to political quizzes.  I was asked what I thought about one that included a copyright related question, and if I was happy that Copyright was considered important enough to be part of one of these quizzes.

I would have been excited, except that what I found was one of those non-copyright related issues which people commonly lump in with copyright law -- including governments who add these non-copyright related issues to copyright acts.

The issue is so-called "digital locks", which when applied to content in the form of encrypted media are a competition law issues (Tied selling) and when applied to devices and software is a property law issue (IE: non-owners applying locks to things they don't own).

The wording of the question and the available answers were:

Should the government allow digital publishers to place locks on their content (MP3s, etc)?

I of course clicked "Add your own stance" and said "No, these locks should be considered illegal tied selling under competition law.  There has been no proof that these technologies benefit the interests of artists."

  • I obviously disagree with the unjustified "Yes"
  • Saying "No" over-simplifies the question and allows the presumption in the question that this is an issue that only or even primarily affects "digital publishers" and thus they should be the only ones involved in decision.  The impact to software authors and hardware owners is far greater than the impact to "digital publishers" - and in all cases the impact is negative (Beneficiary is hardware vendors).
  • Statutory monopoly laws are a massive government intervention in the market, so the pseudo-libertarian folks can't have it both ways.  Other than those with an orthodox ideologically blinded view on statutory monopolies, most recognize a need to have anti-trust/competition and other laws balance the statutory monopolies granted by government in copyright, patent and related laws.
  • I have yet to see evidence that encrypted media (digital locks, access controls applied to multimedia files) protect rather than threaten artist's revenues.  Most analysis that claims benefit are based on incorrect understandings of how the technologies actually work, and thus lead to incorrect conclusions about the impact.

The Bill C-11 FAQ contains quite a bit of information on digital locks and the real-world issues around them (Rather than the Harry Potter fictional understanding most non-technical people have of digital locks).

Thursday, October 15, 2015

Why I don't consider what most call "strategic voting" to be strategic

When most people talk about voting strategically they mean voting for someone who they don't consider to be the most qualified candidate in order to keep someone they dislike the most out of power.

Being strategic to me would be to make voting decisions today that have a longer term goal in mind.  What most call "strategic voting" may superficially may feel like a consideration of the future, but I consider it to be short-term thinking.  Even if you only take the specific vote in front of you, you are voting for someone you consider to be a lesser candidate which means that the best case scenario for your strategy is a bad outcome.

Lets look at what we have seen in recent decades to see what some of the failures caused by some of these strategies.

After the Progressive Conservatives were reduced to two seats in the 1993 general elections, those who consider themselves to be conservative in some aspect of their political beliefs tried to regroup.  In the 1997 election the Reform and Progressive Conservative parties both ran, but of course under the antiquated First Past the Post electoral system they split votes from voters who might have more in common with either of those parties candidates than the candidate who won in their riding.  As is also typical of this disruptive electoral system, the PC party had nearly as many votes as the Reform party, but only ended up with 1/3 of the seats.

Rather than working with people across parties and non-partisans who wanted to modernize the electoral system, some conservatives decided to create a "united alternative" movement to create an alternative to the Liberal party who has predominantly been the beneficiary of this disruptive electoral system.  In the 2000 election the Reform party and some converts ran under the new name of the "Canadian Alliance", and they then progressed to what many consider to be a hostile takeover and eventual annexation of the federal Progressive Conservative party.  By the 2004 election the PC party was gone, with only the renamed "Canadian Alliance" now using the title "Conservative Party of Canada" remaining.

You might ask: who cares?  A party with "conservative" in the name, the Liberals and the NDP all existed prior to the 1993 election and do today.  The problem is that much was lost within the conservative movement when the new coalition party was created. There are noises about creating yet another "united alternative" with the only difference being it is from those who consider themselves to be from the left.  If we continue down this path, we will end up with Canada having a system as dysfunctional as that in the USA where fringe elements of society effectively define the two potential governing political parties where the vast majority of reasonable thinking moderates are ignored.

I consider the possibility of subjecting Canada to another "united alternative" movement to be worse than any electoral outcome.  One has been bad enough for Canada, and we should be looking for ways to gain sanity in our politics -- not make an already bad situation worse.

I personally felt the loss within the restructuring of conservatism in Canada.  I was not involved in politics until the 1990's while I at university.  Friends had introduced me to the NDP and Liberals, but I didn't see anything of myself in those parties.  I was introduced to the Green party by someone who articulated the vision of the German Green party, but in the Green Party I kept bumping up against what I felt were disenfranchised NDP supporters.

I became quite excited by the PC leadership race of David Orchard, and joined the PC party in 1998. Mr Orchard lost to Joe Clark who considered Mr Orchard and his supporters to be "tourists" in the party.  I didn't support Mr. Clark, didn't feel welcome in the PC party, and put my political support back behind the Green Party.  When I compared the 2000 platforms of the PC party under Clark and the Green Party there were enough similarities that I could easily have stayed with the PC party, an possibly even helped get a candidate elected in my riding.

What I saw in Clark's PC party, I see nearly the opposite in Harpers's "Conservative" party.

While there are many types of conservatism, and not all people who consider themselves conservative agree with each other, there are some core values that unite us.  One is a belief that the government should not intrude on the private lives of its citizens. On those rare occasions when some intrusion is necessary to protect life and property that this be done with full independent court oversight to monitor the government (often in the form of the police) to keep those intrusions to the minimum that is absolutely necessary.

You can see the feelings about this type of policy with the multi-election campaign about the "wasteful and ineffective long-gun registry". The Harper government eventually ended the campaign (err... registry) and included requirements that the police destroy all records from the registry.   This was one of those issues that could unite all types of conservatives, including those in urban settings who saw it as a "motherhood and apple pie" type issue that might not affect them, but just felt right.  It was treating private information from law abiding citizens in a way that it felt accusatory of those citizens.

Unfortunately what the Harper government did from a policy point of view was a dishonest slight of hand. While the data from the long-gun registry was kept in Canada and only available to law enforcement agencies, we have the Harper government ramming through Bill C-51 which shares a much broader amount of citizen's private information across many more government departments and "law" enforcement agencies. Coupled with Harper's massive push to cave in on the Trans-pacific partnership  (TPP), this boondoggle database about law abiding citizens can't even be guaranteed to be restricted to access regulated by Canadian law.  Add in Harper's disastrous economic policies based on gut feelings rather than evidence stifling Canada's high-tech sector, and we can pretty much guarantee even our health information will be stored only in foreign databases.

While Harpercrits (Harper devotees) claim the TPP is a "trade" agreement, trying to argue that past benefits from free trade will apply, it is really a reckless untested policy harmonization treaty that was authored at the request of a very few special interests at the expensive of the economy and the interests of citizens as a whole.

I will not be the only conservative minded person who feels this way about Steven Harpers failed and in most respects anti-conservative policies.   The problem is: under our current antiquated voting system, and with these big-tent parties ignoring the views of moderates, who are people to vote for?  Harpercrits can still drum up fear of the Liberals to effectively get votes from people who strongly disagree with them, thus freeing Harper to do anything he want no matter how opposed it is to core conservative values.

While I held my nose and voted for David McGuinty in my current riding of Ottawa South, their vote on Bill C-51 reminded me of all the things that I've always hated about the Liberals.  While Harper's big government manipulation of markets and intrusion in the private lives of law abiding citizens is out of place with a party calling themselves "Conservative", it is very consistent with the long-standing policies of the Liberal party. Bill C-51 is effectively the same intrusive thinking that went into the long-gun registry, only on massive amounts of steroids -- exponentially increased by the job, privacy and economy destroying TPP.

I still don't feel comfortable with the NDP on many levels (don't get me started about unions...), but under Tom Mulcair the party has shifted to the right a bit (some say they are to the right of the Liberals under Justin Trudeau).  They have also come out more strongly in favour of modernizing our electoral system, repealing Bill C-51, and rejecting the TPP : three core policies for me that I consider to have far more longer term implications than any single election.

So, what does strategic look like to me?   If the NDP were even on the map in Ottawa South, I  -- a past member of the Progressive Conservative party -- would have voted NDP.  Given this particular riding will be decided between the Liberals and the Harpercrits, I voted Green as there is no long-term strategically minded alternative to vote for.

Sunday, October 11, 2015

Harper locking Canada into failed Clinton-era policy at root of software-based corruption

Most people have heard about the emissions scandal where Volkswagen was caught hiding the fact that they were deliberately breaking the law.  This specific issue is minor when compared to the inevitable fatalities which will result from vehicles that allow remote control, or medical devices where the person whose life is being maintained by the technology aren't allowed to independently audit what and whose instructions it is obeying.

Harper amended the rules for a caretaker government this election so that his minister can continue pushing forward controversial policy which would lock Canadian law to disallow the required transparency and accountability of the very rules which govern everything from transportation and communications to medical devices and in some cases elections.

While the "copyright" aspects of the Trans-Pacific Partnership are being covered elsewhere, there are non-copyright aspects embedded in the leaked Intellectual Property Rights Chapter that regulate the general transparency and accountability of software.

Unlike the 1996 WIPO treaties which tie what are now called "use controls" to copyright infringing activities, article QQ.G.10: {Technological Protection Measures} of the TPP mandates legal protection of access controls.  The TPP is based on the USA's DMCA which is based on the failed Lehman report from 1995 during the Clinton administration. While Bill C-11 also protects access controls, this is a critical mistake by the Harper government that a future government will need to fix.  Harper is aggressively pushing Canada into the TPP which will require that a future government get permission from TPP "partners" to finally fix these problems.

Access controls are controversial for a number of important reasons:

  • Access controls and other non-owner locks on software and hardware reduces the transparency and accountability of the rules that govern these devices.  Technology owners are disallowed from making their own independent software choices, as well as doing their own or having trusted third parties do software audits.
  • Access controls applied to multimedia content (more commonly known as "encrypted media" outside of policy circles) are used to tie access to culture to specific brands of access technology, pretty much always technology where the hardware and software has non-owner locks to disable auditability.  This type of tied selling is known to be harmful to the economy (is included in most anti-trust or competition policy), but also impacts cultural rights embedded in the UN Universal Declaration of Human Rights.
  • These policies allegedly relating to "copyright" are being applied to technology which intermediates most aspects of our modern lives.  While there have been expensive court cases to create narrow exceptions for uses of devices unrelated to copyright, most businesses (and even fewer individuals) don't have the financial resources to fight court battles to protect basic property and other rights.  The harmful impacts to the economy go well beyond copyright related industries, and the harmful impacts extend to issues surrounding health and safety, privacy, and national security.
  • There has been no credible evidence to the claim that these controls reduce copyright infringement, and considerable evidence to suggest they induce infringement
  • Creators of cultural works are as dependent as audience are (if not more) on having control of their own technology, and thus these non-owner locks on technology harm creators' rights

The cost to taxpayors alone of Harper doubling-down on this failed policy cannot be understated.  As one small example, the Canadian Forces are hiring people to hack into vechicle control systems (See: Cyber Security of Automotive Systems (W7701-166085/A)) to do basic auditing, but given the illegitimate claims of exclusive rights this taxpayer funded audit will not likely be widely published. The only reason why taxpayers have to foot this bill, rather than the costs being distributed across other interested and skilled device owners is because of this Harper policy.

It is sad that Harper even promotes his reckless behavior during the election, trying to pull the wool over voters eyes by claiming the TPP is "trade" policy rather than the harmonization of non-trade related policies --- often untested policies, or where the policies were proven failures in countries where they were tested.

Harper suggests people should vote for him and his nominated candidates because of their record on the economy and on security. This policy is one example among many where Harpers record indicates failure.

Saturday, October 10, 2015

The federal election, partisanship, and copyright.

Advance polls are open for Canada's 42'nd general election.  Having been actively involved in previous elections I have been asked for my opinion about who they should vote for for those of us who consider authors' rights important.  I have spent a large portion of my life dedicated to this area of policy, especially between 2001 and 2012, meeting with sitting members of federal parliament, other politicians and other policy makers.

One thing I have observed is that while there is partisanship, it does not follow along political party lines.  It isn't possible for me to recommend any specific candidate based on their political party or the platform of a party, and you need to talk to the candidates to determine their partisanship.

As a creators' rights activist I don't concern myself with those few I have met over the years who oppose copyright.   The most important ideological separation is within those who strongly believe that creators have a right to moral and material rewards from their creativity, but that strongly disagree with each other in how to achieve that goal.

The simplest way to explain the difference is to call is orthodox vs evidence based policy making.

Orthodox Copyright

People who adhere to this belief system will agree with statements like, "if some copyright is good, more must be better".   They believe that increasing the breadth, strength and length of copyright will automatically increase the material and moral rewards to creators.

Superficially this is a very easy sell, and lends itself to easy soundbites and trivial analysis: No matter what the policy change is they can simply see if "copyright" is increasing and they can automatically come out in favor of it.   Even if something unrelated to copyright is called "copyright" they will also automatically come out in favor of it, regardless of any impact to creators.

Evidence-based Copyright

People who adhere to this belief system will agree with statements like,"Copyright is to creativity like water is to humans: too little and you dehydrate and die, too much and you drown and die".  They require economic and other analysis to determine the impact on creators of specific policy changes. They will recognize that one copyright holders interests are often in conflict with the rights of authors, and recognize that some policy changes can even be a transfer of rights from one copyright holding group to another.  They consider the idea that "more is better" to be naive at best, given specific policy changes which increase the breadth, strength and length of copyright have been well proven to decrease the material and moral rewards to authors.

This group has a much harder sell as it requires economic study and understanding of business, economics, and other disciplines which authors tend to want to let someone else worry about. Soundbites are rare, and even the simplest of policy changes require considerable understanding of market trends to understand the impact to authors.

Examples of copyright partisanship in federal political parties

The NDP offer the best example of how important the individual members of parliament are, more than what their party affiliation is.

From 2001 to 2004 the NDP Heritage Critic, and he person most involved in Copyright policy, was Wendy Lil.  She was a journalist, playwright, and writer who was extremely orthodox in her copyright views.  She showed no interest in discussing the economic and other analysis of policy proposals brought to her by fellow creators, but instead promoted policies which would have "grown" copyright in ways that would hurt most creators.

Ms. Lill retired and did not run in the 2004 election. Newly elected independent writer, broadcaster and musician Charlie Angus became the critic for copyright. He sat on the Heritage, C-32 and later C-11 committees.  Mr. Angus is an evidence-based copyright activist who closely listened to those of us who wanted to talk about economic analysis to benefit creators rather than only listening to or slinging harmful slogans.

As the NDP caucus grew after the last election the diversity grew.  There is a mixture of orthodox and evidence-based members, and I suspect there are some pretty interesting behind-the-scenes debates when policies impacting creators come up.

There is one external dynamic which impacts the NDP more than the other parties, and that is problems within many of the unions which allege to work in the interests of authors.  The executives of these unions have predominantly been made up of some of the more aggressive slogan-slinging orthodox adherents. While their easy sound bites make running for elections within the unions easier as they don't need to explain their positions, it has meant that most of these associations have been publicly advocating for policies which the evidence-based creators' rights activists believe are harmful.

The NDP as a party has long-standing ties with the labour movement, so when someone claiming to represent the interests of professional writers or from an authors union offers their partisan views they may blindly trust those views if they weren't already aware of the wider set of views in the creators' rights movement.

While the NDP is the best example given the complete flip that happened after the 2004 election, the same dynamic exists in the other parties.  I met with MPs from the other federal parties who were looking for economic analysis of policy proposals, and those who blindly trusted the slogans.

About the only party I had only a negative experience with was the Bloc who never showed interest in meeting with anyone living outside of Quebec.  The only MP from the Bloc I interacted much with was naive orthodox Carole LavallĂ©e who treated me as a hostile witness in the C-32 legislative committee.  I was trying to understand her "when have you stopped beating your wife" style of questioning through the simultaneous translator, but it was obvious that she has no interest in the evidence that various creators' rights advocates were bringing.  Fortunately the influence of the Bloc is dwindling, and it is even possible (crossing fingers) that this election may see them fade away entirely.

Exception to the general rule: Harper

Even if you find a great evidence-based policy person running for the "Conservative" party in your riding it won't likely matter.   Harper, not being a traditional conservative at all, likes to abuse the big hand of government to pick winners and losers in the marketplace.   While the copyright part of Bill C-11 was fairly balanced (the non-copyright part weren't), that balance has effectively been removed by Harper later.   He reduced the revenue of music composers by increasing the term of copyright for record labels as part of an omnibus budget, and he deputized Ed Fast to play Fast-and-loose with Canadian law and our economy in the Trans-Pacific Partnership in ways that will greatly harm authors (as well as most other Canadians in an agreement that will only increase Canada's trade/fiscal deficits and kill jobs).

As long as Harper retains tight control over the "united alternative" they remain a caucus of people whose leadership is not only uninterested but actively hostile towards evidence required to make good policy decisions.


See also: What will the future hold? Post your thoughts on the election!, written in 2006 during the 39th general election.