Thursday, June 25, 2015

Works of cultural industry are nothing like "Happy Meal" toys.

When discussing cultural policy you will sometimes bump into individuals who seek to diminish the value of culture by comparing it to consumer products.  To them, one creative work is no different than another.  To quote Mark H. Goldberg who consults to the telecommunications industry (including "regulatory and government relations") and organizes the Canadian Telecom Summit:
As an author (mostly of software) who recognizes the value of the creative works of others, and as an audience and sometimes major fan of creative works, it is an understatement to say I disagree with that attitude.

Creative works obviously have economic value, and we creators deserve to be materially rewarded for our contributions, but creative works have value far beyond economics.  Whether you are the author or a fan, these works are part of who you are -- part of your identity, personality, and how you see yourself in the world.  Anyone who knows me knows I am a big fan of Doctor Who, and that I quote from Monty Python skits or Rush lyrics to express ideas.   I am obviously not unique in this, and culture should always be recognized as having value within society far beyond economics, and that these works permeate and are part of authors and audiences.

I could go on, but I suspect my point is clear: The idea of comparing cultural works, such as video content, to a "Happy Meal toy" is offensive.

There is a practical reason why many people who represent the interests of intermediaries express this view.   If creative works remained a conversation between creators and their fans, then the control (and thus the bulk of the economic value) would stay within that conversation.  Contrary to the rhetoric you will hear from these intermediary representatives, fans want creators to get paid as they want those creators to have the ability to create more.   In my experience it is far more likely some artificial barrier created by an intermediary is in the way of that payment, rather than some desire for audiences to access without compensating creators.  I'm not saying that people not paying never happens, but that this is by far not the greatest barrier to authors receiving the material rewards they deserve.

What these intermediaries are doing is abusing the intimate relationship between creators and audiences for the private economic gain of that intermediary.  They exploit the ways in which cultural works are not like consumer products to the detriment of both creators and their audiences.  In my view some of these business practices go as far as interfering with both parts of Article 27 of the UN Universal Declaration of Human Rights:
Article 27.
  • (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
  • (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
This is the article that justifies copyright and patent law, and why there is a UN specialized agency currently called WIPO. While I believe this agency required major reform to respect and protect the entire article (and not primarily the economic interests of intermediaries), I strongly agree with this article and the need for national and international laws and agencies to protect it.


Mr. Goldberg was trying to justify on twitter one of these artificial barriers that reduces the ability of audiences to access creative works.  Specific companies within the broadcast, telecommunications, or consumer electronics industries want exclusive deals with content producers to tie the ability to legally access cultural works to the purchase of their products or services.  It is obvious why this scheme might be good for these intermediaries, but it should be equally obvious why it is bad for everyone else.

In this specific thread it was the inability of Canadians to legally access HBO video content near the time it is broadcast without paying for the services of a few select companies (Broadcast Distribution Undertakings - BDU's like Bell, Rogers, etc) who force bundles of expensive unrelated services (Cable/etc) that people otherwise don't want.   We are told we either have to financially support business practices we find offensive, not access the works, or be driven to infringing sources.  I believe these business practices induce copyright infringement as much if not more than services like ISOHunt or Pirate Bay, and as an author I consider it the responsibility of the government to step in and deal with this contributory infringement.

For the HBO shows I follow I wait months or years later until I'm finally allowed to buy the DVD. I would be happy to pay a $10/month monthly fee similar to what I pay for the much larger Netflix catalog to watch HBO shows in a more timely manner. I would still be buying most of the same DVDs as I enjoy having that catalog in my home. What we want is a Netflix-like service which is not tied to a specific Internet provider, brand of consumer electronics, or unrelated broadcast related service. While HBO is experimenting with this in the USA, exclusive deals with BDUs make it unlikely to happen any time soon in Canada without government intervention.

My strong desire to pay isn't the issue, and it is barriers created by intermediaries blocking my ability to pay.

Far from being a legitimate business practice, these exclusive deals are something that the CRTC, Competition Bureau, and Parliament should clarify as illegal.  Section 77 of Canada's Competition Act prohibits this style of activity, but unfortunately the bureau has largely left manipulating markets for creative works inadequately regulated.  While creative works are more deserving of protection than traditional products or services due to their additional importance to the cultural lives of Canadians, current interpretations of the Intellectual Property Enforcement Guidelines (IPEG - See my submission to the bureau) appear to discourage the bureau from adequately intervening.

At this time of rapid technological change, regulation against this tied selling is the most critical form of protection that the cultural sector requires.  Regulators need to get past thinking that CANCON style rules that only applied to broadcasting will be of any help (more likely a hindrance) as multimedia creators and audiences move past broadcasting as a primary distribution method.

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