Saturday, February 27, 2016

Denying access to non-Canadian Netflix is counterproductive to protecting creator and cultural rights

Canadian Netflix users have noticed that their cross-border access is being denied. Acccording to Michael Geist, when Heritage Canada official briefed their new minister about Copyright they listed "targeting copyright infringement that occurs on virtual private networks, and “hybrid” legal/illegal services that may be a reference to Canadians accessing U.S. Netflix."

While I agree that the use of VPNs to access content otherwise not available in Canada should be considered an emerging issue for the Heritage Minister, the policy proposals I would have are grounded in fairness created by balancing the relevant rights rather than pandering to special interests.

As I wrote earlier, I see copyright as an expression of the two parts of article 27 of the United Nations Universal Declaration of Human Rights which states:

(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.

While I'm aware some believe copyright should allow copyright holders to control any and all uses of a copyright work, I believe that this control should extend only as far as it furthers the rights expressed in article 27 -- and no further.  This means there should be no control when the material and moral interests of a creator is not being impacted, as well as there being no control when such control unduly restricts cultural rights.

I have suggested that expanding Canadian Fair Dealings would be appropriate as part of a solution to the  Orphan Works problem.   A generalization of the copyright modernization I would like to see would be something like.

Fair dealing for non-commercial uses of works not otherwise offered for license under reasonable terms is not an infringement of copyright.
This would be used in scenarios where there is no harm to an authors material interests as they have already chosen to not accept money.  Contrary to the "sky is falling" emotions I heard expressed during the copyright hearings, this refusal to accept money is far more common than fans refusing to pay when legitimate payment options are offered.  This is something that should be properly studied by Canadian government officials interested in creating policies to better protect the rights of Canadians, rather than accepting the chicken-little claims of special interest groups and their lobbyists.

While I believe it should be the right of  a copyright holder to not bother to offer a license, I don't believe they should then have the right to abuse copyright to sue or otherwise go after those who access the works anyway.  While I believe it is the right of a copyright holder to refuse our money, I don't believe it should be the right of anyone other that the copyright holder to choose to collect money which is why I would put the non-commercial use restriction.

The use of VPN technology to cross-border access content would fall under this required balance of rights.  We are discussing scenarios where copyright holders, either directly or indirectly through faulty grants of exclusive distribution rights, have opted to not make content available to Canadians through content distribution channels.  While I believe it is their right to not bother to collect money, I do not believe it is their right to claim that this cross-border activity is harmful or infringing, or to act in any way (political or technological) to block it.

Simply put, I believe it should be clearly a matter of fair dealings under Canadian law for Canadians to access content made legally available in countries other than Canada.  There is no harm to authors rights in allowing this, but there is harm to the cultural rights of Canadians to deny access.  This policy would provide additional incentives to copyright holders to increase access to creative works to Canadians, and incentives for them to accept money being offered to them.

There are changes to the law beyond copyright that should be considered.  If an author has transferred copyright and the new holder of copyright refuses to license the work for a maximum amount of time, copyright should revert back to the author (at least for all markets where the copyright holder has refused licensing).  If an exclusive license was granted to a distributor in a specific region and that distributor is not offering licenses in that region under reasonable terms, the exclusivity of the license should be considered void and the copyright holder should be protected in their right to shop elsewhere in that region for better distribution (without any financial harm to the copyright holder).

In general, the law should not be about granting control and denying access, but about creating any and all incentives and protections to facilitate markets which will allow material rewards to flow from fans of the works to authors.

The control we see in copyright should only be seen as a means to an end, and never as an end itself. Copyright law should protect the rights expressed in article 27 and never be allowed to be abused to infringe those rights.

Wednesday, February 24, 2016

Fair use, dealings, or duty: required fairness in copyright law

One of the other authors writing a series of articles for Fair Use/Fair Dealings week is Meera Nair via her Fair Duty blog.  The use of the word "duty" in the title is explained on her about page as "to make evident the duty of copyright holders to follow the law and not impede legitimate exceptions to the rights of control afforded by law. "

This will be a theme of my articles this week as well.  I am an author, part of the creator side of the copyright debate.  I spent a considerable part of my life, including attending and writing about most C-32/C-11 committee hearings, to all too often hear disrespect for the rights and interests of fellow authors from people alleging to represent us.

This fairness aspect of copyright law has been used to enable technology which specific politically powerful copyright holders would otherwise have tried to deny the existence of such as the VCR.  It should be obvious that the VCR and the various video capture, editing and distribution technologies that derived from it has enabled vast amounts of creativity.  This creativity would have been denied if it were not for US Fair Use being used to clarify the legality of the technology.  Much of the modern technology creators use today has been opposed by groups alleging to represent creators, with the fair use/dealings aspect of copyright law being as critical to protecting the interests of creators as the rest of copyright.

To hear educators spoken about by devotees of Access Copyright you would think all teachers are thieves. I had to endure a rant by one devotee when she visited me in my home, with my high-school biology teaching wife leaving the room because of how offensive the conversation had become.  The reality in educational copyright is very different than devotees of Access Copyright claim.

To hear some copyright holding intermediaries talking about the general pubic in copyright hearings you would think that there is society-wide moral decay of Sodom and Gomorrah proportions.  The reality is that much of what is claimed to be infringement by these lobbiests should be considered fair dealings for non-commercial purposes.  The roots of the discussed problems is not a matter of the morality of the general public, but outdated business and content distribution methods attempting to be enforced by these copyright holding intermediaries.   They are far more interested in society conforming to how they want creativity to be distributed and accessed than actually accepting the money of fans.

In my mind the justifications for copyright come from the two parts of article 27 of the United Nations Universal Declaration of Human Rights which states:

(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.
It is infuriating to see, but the over-reaching control attempted by some copyright holders seeks to deny both cultural and creators rights. While in copyright there are exceptions to every generalization, the fast majority of problems I saw with copyright were examples of attempts at over-reaching control by copyright holding intermediaries creating barriers to audiences and follow-on creators compensating creators.  There was this odd sense of entitlement from these intermediaries, believing that the law should enforce conformity rather than the law trying to protect the balance of rights expressed in UDHR article 27.

Discussing fair duty is very appropriate for this area of law, and is an area of law I have a number of suggestions for expansion to solve problems created by copyright holding intermediaries.

Tuesday, February 23, 2016

Fair Use/Fair Dealing Week

This week is Fair Use/Fair Dealing Week, with Canadians celebrating as well.

Understanding fair use/dealing is critical for understanding copyright.  To understand copyright it is best to think of the word "copy" as a synonym for the word "manuscript".  Copyright regulates a series of activities, only one of which is copying.  This series of activities are sometimes referred to as a bundle of rights.

While copyright might have originated with written text, copyright currently regulates activities relating to more than manuscripts and thus you will more often read the term "works".

Given copyright is about regulated activities, it makes sense to talk about exceptions to otherwise regulated activities using terms like "dealing" or "use".   Fair use/dealing discusses activities which might otherwise be copyright regulated activities, but where an exception is made for the purpose of ensuring copyright remains fair to all parties involved.

Understanding the need for fairness in copyright law is often missing in political debates.  As Lawrence Lessig once articulated, "Creativity and innovation always builds on the past.  The past always tries to control the creativity that builds upon it."  Anyone who has looked closely at fair use/dealings laws in their own country will notice that the vast majority of activities it is enabling are activities carried out by the next generation of creators.   In other words, fair use/dealings is a required exception to copyright in order to protect the rights of creators to create new works.

Section 29 of Canada's Copyright Act provides examples including research, private study, parody or satire, criticism or review, and news reporting which are all activities which creators must carry out in the creation of new works, and where it would not be fair or in the public interest if creators needed to get permission from past copyright holders to create.

A use/dealing being of a specific type is not what makes something fair, and it is the criteria for fairness that is the most important aspect of the exception.  In fact, more advanced copyright law such as used in the USA use the phrase "such as" for their list to make it clear that the list is an illustration and not intended to be a criteria for determining if a use is fair.  While there was an opportunity to modernize this section of Canada's copyright act with Bill C-11, and the issue was often discussed at hearings, the Harper Government unfortunately chose not to do so.

While the USA includes their criteria for fairness within their law (U.S. Code § 107), in Canada the criteria for fairness was unfortunately left out of the law and left to the courts to determine.  The 6 factors to determine fairness are set out in CCH Canadian Ltd. v. Law Society of Upper Canada

The following factors help determine whether a dealing is fair:  the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing, and the effect of the dealing on the work.

While it is true that some exceptions are used by audiences of works who will not be building new creative works, there are equally good public policy reasons for these exceptions when you look at specific examples. Fair Dealings does not allow people to get something for nothing, which would not be considered fair, but enables very specific examples of activities which shouldn't require permission from a copyright holder but are still one of the activities which copyright otherwise regulates.

Later in the week I will publish articles relating to one of the more hotly debated areas of fair dealing (education) as well as proposals where I believe Fair Dealing could be used to solve some of the more problematic  areas of copyright law.

Saturday, February 13, 2016

My comments on: Have Millennials Made Quitting More Common?

My comments on: Have Millennials Made Quitting More Common?

I'm not a Millennial, and nearing 50. I am one of those people who might be considered "disloyal" by those who presume blind loyalty to an employer is a positive trait in an employee.

I need to feel passionate about my work.  Paying the bills works for shorter term contracts, but if I'm going to be employed for any length of time I need to feel what I am doing is valuable beyond the salary.  Such a large part of our lives is spent at work, and I want work-life integration and not simply work-life balance.

I could be considered disloyal to one of my previous longer-term contracts because I believed that millions of dollars of taxpayer money was being wasted because government lawyers and other policy makers refused to make important data sets open access.  This was data that the government collected, and which Canadian farmers needed access to.  Inexpensive (some free-libre) technology tools to access the raw data exist for farmers to use, and all that was needed was to make the data sets open.  Instead, massive amounts of taxpayer money was being spent to create a website which offered restricted access to that data.   This included the large consulting fees I was being paid that was then marked up by 3 different intermediaries between me and the government. (Since the "accountability" brought in after the "sponsorship scandal", my observation has been that government waste has gone up rather than down).

I believe what my current employer is doing has very high social value and I feel pride in what the organization is trying to accomplish.  The salary is much lower than what was being extracted from taxpayers in that previous contract, but when I add the salary plus the pride it has almost always come out on top.  I have turned down multiple offers over the years to return to the previous position.

Where what some might consider disloyalty comes into my current position is that I'm not shy to express to others, including those above me in the organization chart, when I feel priorities aren't aligned or that the organization is being distracted by scope-creeping side-projects.  I have strong loyalty to the goals of the organization, but don't have blind loyalty to the hierarchy within the organization.

I started in my current position as a consultant just over 5 years ago (anniversary in January), and was converted from a consultant to staff in late August 2011.  Before that I was a self-employed consultant since 1995, where contacts that didn't reflect my values were short-term.  Will I celebrate 10 or more years at my current job? (there are people that have been here for over 37 years)  My core values have been consistent throughout my career, but I doubt it will be my personal values changing that would lead to a decision on my part to look elsewhere.

Are "Millennials" feeling similar, where they evaluate their employers as much as employers might evaluate them, and explore other career options when their evaluation of their employer falls short?  I started my self-employed business in 1995 because I was unhappy with a string of employers early in my career, and it would feel like a career setback to go back to consulting.

Note: I recently started participating more on LinkedIn .  I have found it interesting and flattering that recruiting calls,  emails and other contacts have increased. I was on to add recommendations and confirm skills of one of two colleagues that were recently laid off for budgetary reasons, and it was not at all an indication I'm planning on moving onward.

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.