Sunday, September 11, 2011

Why it is important to engage on creators' rights discussions

Just over a week ago, the Globe and Mail published an article by Kate Taylor that had the sensationalist headline "It’s writers v. professors in the latest war of words". I don't know if it was an editor that created the headline, but it is very misleading as the debate she wrote was more about the different views between different writers than about anyone else. The body of the article did suggest that, "The knowledge community is divided against itself".

She wrote about successful Canadian-born science-fiction writer Cory Doctorow, and how he believes that the radical changes proposed to how communications technology is owned an controlled can not rationally be justified by copyright. As a fellow person with a technical background, he understand how this technology works better than most writers.

When I explain the specific technology under debate I speak about how there are 4 classes of owners (not one), and two digital locks (not one). The 4 classes of owners are content copyright holders, owners of tangible media, software authors and owners of tangible computer hardware.

The most controversial of the two locks is the lock applied to hardware and/or software where the owner of the hardware is specifically denied the keys to what they own. Anyone who has a basic understanding of why we have property rights enshrined not only in domestic law, but the United Nations Universal Declaration of Human Rights, can see how denying owners the keys to the locks on what they own can have serious implications. Rather than protecting the rights of owners, the proposed laws specifically prohibit owners from changing the keys to the locks on what they own: making the protection of ones own property rights illegal.

From a narrow authors rights perspective, it should be obvious how their ability to use their own communications tools to create and distribute their own works is threatened by these non-owner locks. Even if we had no consideration for all the other rights threatened by these non-owner locks, we should be rejecting them as an attack on authors' rights.

The second lock is a lock on content which makes the content only interoperable with specific brands of non-owner locked hardware and software. This lock will either drive people to non-owner locked hardware, or drive people to accessing infringing material which is unlocked. Both of these alternatives are harmful to the interests of authors, so the legal protection of these anti-interoperability locks should be rejected as a threat to authors' rights.

Ms. Taylor was correct in identifying that there are writers who believe that these two types of locks are a threat to creators' right and other writes, and other writers who believe they will somehow help their interests. It is critical that those of us who understand that "copy control" is only a marketing term, not a real technology, to participate in discussions. Eventually more people will recognise that these types of locks represent a far greater threat to the interests of writers than any amount of copyright infringement.

While it is true that "users'-rights advocates" oppose anti-interoperability locks on content and non-owner locks on our computing hardware, there are also many writers and other creators that share this opposition. There are a few technology companies that might benefit from the anticompetitive impacts of these locks, but the vast majority of proponents are people inadvertently advocating for changes to the law which will harm their own interests.

One of the other issues mentioned by Ms. Taylor related to Access Copyright, which offers one of many options to the educational community to license educational content. This section was corrected by Paul Davidson, president of the Association of Universities and Colleges of Canada, in a later article in the Globe and Mail with the headline "Pirates of academe? We laugh".

This is a case of anticompetitive behaviour by Access Copyright. It would be as if Canadian Tire claimed "theft" if customers bought a product from Walmart instead. This type of behaviour from Access Copyright is unfortunately not new, and I have been exposed to many advocates for Access Copyright over the years who really think their customers (or in some cases colleagues) in the educational sector are immoral in some way. The more heated the rhetoric from Access Copyright devotees, the less interested their customers will become in paying them for the privilege of being insulted.

It isn't correct to suggest this is a matter of "universities playing hardball with textbook publishers and freelance writers." Access Copyright is a middle-man between writers and universities, and it is quite possible that the alternative licensing methods being explored by universities will be more lucrative for writers. Even for authors who are focused on royalties as a method of payment, Access Copyright's policies have become controversial (See the Creators' Access Copyright blog).

This is not to say that the educational sector is without its faults when it comes to educational copyright. While outside the scope of the current abusive debate, the Council of Ministers of Education did propose a carve-out of provincially chartered educational institutions from copyright. This is a very bad policy for a number of reasons I have outlined in the past. This policy mis-educates our children about how copyright works and would inevitably induce them to infringe outside the classroom. I consider education institutional exceptions to copyright to be a government program, paid for on the backs of copyright holders, masquerading as copyright. I consider it dishonest for provincial Ministers of Education to be proposing pick-pocketing authors, rather than ensuring adequate provincial funding for education.

Many of the problems with institution-specific exceptions to copyright also apply to the blanket licensing promoted by Access Copyright. Copyright is very complex, and if we are worried about students and teachers/professors inadvertently infringing copyright then we need to both clarify and simplify copyright (in future bills), as well a provide unbiased education on copyright to students. On both of these proposals Access Copyright has not been helpful, advocating for making copyright more complex in submissions on copyright reform, as well as providing inaccurate information on copyright (Example: Captain Copyright).

The provincial educational funding issues, educational institutional exceptions to copyright, and related controversies weren't mentioned in the article by Ms. Taylor, but did get discussed in the follow-up comments to the articles and on Twitter.

At least one person suggested on twitter a "Mortal Combat Style" fight between John Degen and myself. I don't enjoy the interactions with John which are an example of the heated discussion that Ms. Taylor was discussing. He starts his commentary on Ms. Taylor's article by suggesting that "ideologues have muddled the whole issue with scary half-truths about copyright and the future of culture". Rather than then talking about his own participation in the copyright debate that could easily be characterised that way, he tore into professional author Cory Doctorow. It shouldn't be surprising that conversations get heated when this is the starting point.

I believe Cory to be one of the most outspoken protector of the rights and interests of authors. He doesn't confuse expanding copyright with protecting authors' rights, given he understands that there can be both too much and too little copyright from the perspective of authors. It is unfortunate to see some people attack Cory, claiming they are doing so in the name of authors' rights. When this happens it is not Cory's qualifications as a creators' rights advocate that come into question, but whether the person attacking is either knowingly or inadvertently harming the interests of authors.

The other person that John referenced in his comment, but didn't name, is University of Ottawa law professor Michael Geist. The claim was that Mr. Geist has been "attacking Access Copyright at every turn", when in fact it has been devotees of Access Copyright who have been attacking Michael Geist at every turn. I've been at more than one conference where Geist was insultingly referred to as "he who shall not be named", embarrassingly making analogies between Mr. Geist as the villain in the Harry Potter stories.

Both Michael Geist and Cory Doctorow are moderates in the debate. They neither believe in maximising or minimising copyright, but striking the right balance between the interests of existing copyright holders, new creators, audiences of these works, and society as a whole. These moderates are attacked by both of the extremes: by people who disagree with their strong support of copyright as a tool to protect the rights and interests of authors, as well as those who falsely believe that "if some copyright is good, more must be better".

But... this is politics. One of the ways to make ones own more extreme position seem reasonable is to claim that moderates are radicals. The constant attack by some individuals of people like Cory Doctorow and Michael Geist is an unfortunate but understandable political ploy. Not only do we need to correct the record when these people post incorrect information about the impact of various policies, but we need to challenge them on their fictional misrepresentation of fellow rights activists.

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