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.

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