Rethink: Inheritance, debt, and world views

At the end of June I joined a twitter thread started by George Soros where he referenced a short podcast essay he made about rethinking debt.

 

Inheritance is also a key part of systemic racism, allowing those whose wealth was gained off the (often whipped) backs of others to be perpetuated intergenerationally.

So much of failed economic policy is tied to counterproductive cultural entitlements.

— Russell McOrmond (@russellmcormond) June 30, 2020

 

While the thread was short, it touched upon some interesting ideas I wanted to expand upon.

Read outside your echo chamber

One person suggested that my comment came from within an echo chamber. In fact, what I wrote is what it sounds like when someone of European descent (ancestors primarily indigenous to Ireland) finally exits the Eurocentric echo chamber.

Persons of European descent often imply that economic discussions are linear thinking between the theories of two Europeans: Scottish Adam Smith (Capitalism, 1700's) and German Karl Marx (Communism, 1800's).  If you question anything about current implementations of Capitalism, the dominant European economic thinking in the 1900's and thus far in the 2000's, you are then "accused" of being communist. The idea that we might be expressing concepts from world views that originated from outside of Europe doesn't occur to them.

Due to events in Canada earlier in the year (pre-COVID) involving indigenous land protection groups, and events during COVID-19, I have embarked on my own antiracism training. While I have been questioning some small aspects of dominant European thought throughout my life, I now have a better understanding of where these ideas came from and where some of the alternatives came from.

Government Debt

George Soros ideas are simple, and involve different instruments for global or domestic government debt.

Built into the Bretton Woods institutions (International Monetary Fund and World Bank) is economic policies mirroring a European world view, and debt from these institutions pretty much always come with an imposition of European economic policy within the borrowing countries.

The idea that capital accumulation should be individual, but debt shared (through government, or otherwise externalised) is European thinking that I don't subscribe to.

Inheritance

I believe we have all heard the phrase "We do not inherit the earth from our ancestors; we borrow it from our children". Some indigenous North Americans such as members of the Haudenosaunee Confederacy subscribe to the Seventh Generation Principle where decisions we make today should taken into consideration and result in a sustainable world seven generations into the future.

For as long as I can remember I have thought the same thing about capital itself: that we don't inherit it from our parents, but borrow it from the future. Understood this way, inheritance is yet another form of shared (via the future) debt that exists only to benefit historical individuals. The future is claimed to "owe" the beneficiaries of this inheritance even if they make no contribution to society themselves.

There are levels of capital accumulation that are near a subsistence level that don't qualify as debt, where there is no issue with passing on to the same people you would normally be a caregiver for in life. This is the type of wealth transfer to descendants that most individuals will be personally familiar with, and is not what I'm referring to.

Individuals manipulating public policy to generate public debt

When we have individuals accumulating capital that could allow families or whole communities or countries to subsist for many generations without further contribution then this is public debt for personal gain.

I have never believed that those currently in the top 1% of capital extraction actually "earned" that wealth based on the value of their contributions to society. I believe they extracted that capital and created that public debt through flawed public policy (said in another way, corruption).

Rather than applauding these individuals, such as George Soros, Bill Gates, or Warran Buffet, I consider their building and abusing public debt to be immoral. While some of these individuals wish to direct some of this wealth and influence towards policy goals of their choosing, this doesn't change the fact that these individuals are manipulating public policy based on the public debt they have created.

If you take a close look at those declared the "richest" people in the world, you might notice something in common.  They were all able to accumulate this personal monetary wealth based on government granted and/or protected monopolies.

Cory Doctorow wrote a book-sized essay he titled "How to Destroy Surveillance Capitalism" where he discussed one aspect of government protected monopolies.  Rather than understanding that the mere existence of a monopoly is economic and political harm, western governments have transformed into believing that the only possible type of harm is "consumer pricing".

From this Jeff Bezos (Amazon), Mark Zuckerberg (Facebook), Larry Page (Google), Elon Musk (Tesla), Sergey Brin (Google) were able to build upon the decades of monopolist public policies actively promoted by Bill Gates (Microsoft, pharmaceuticals), Steve Jobs, Larry Ellison (Oracle), and others in more traditional media and communications.  These are individuals who helped expand government granted monopolies (right-of-way wired communication monopolies, wireless spectrum monopolies, author monopolies, inventor monopolies, etc) into something that enables a small number of individuals to accumulate personal benefit at the expense of society as a whole.

Much of the current attempts by western governments to regulate "Big Tech" are doomed to fail as they narrowly focus on the harm made blatantly visible by specific individual monopolists, rather than recognizing that flawed government policies entirely created the problem if the first place. They insist on rearranging deck chairs on the Titanic rather than bothering to steer clear of the iceberg.

North American indigenous world views

Whether we call it Turtle Island or North America, there were people here for thousands of years before Europeans visited this land in the 1400's. While early interactions were civil, this relatively quickly changed to colonization and in the southern part conquest (what the settlers declared themselves to be the United States). While the European settlers in the North (what Europeans declared to be Canada) weren't as overt in their conquest, the ongoing violation of treaties suggests us northerners weren't that much better.  The official policy of the government of Canada has essentially been genocide of indigenous treaty partners.

 

As I'm learning in the Indigenous Canada course I'm taking, North American Indigenous world views and governance are very different from European. While there are differences throughout North America as there are in Europe, commonalities exist:

• Philosophy of interconnectedness and belonging
• Unity through collaboration
• Relationship with the land extending to environmental stewardship

 
Rather than the European focus on the individual, often to the exclusion of the group, indigenous North Americans believed each person should have accountability to the group for their own actions and words.

Rather than competition which is seen by Europeans as how to create growth opportunities, collaboration is the focus.  Each child, youth, adult and elder must have a role and each retain a responsibility to each other and to the community.
 

The European concept of "purchasing" and then "owning" land was inconceivable, and thus the perspectives of Europeans and North Americans on agreements and treaties were quite different.  Europeans believed in a concept of ownership (exclusivity without responsibility) of land, animals, people and ideas which was not shared by others. Indigenous North Americans believed in stewardship, a view I personally share.

The welfare of fellow citizens

With a pre-European North American world view, policies such as a Universal Basic Income would be obvious. As we all have responsibilities to each other, there would no longer be this push to have complex (expensive to administer) programs that seek to negatively stigmatize sharing as happens with most social welfare and other programs in North America today.

In a country where we recognized responsibility for each other, we would no longer be willing to sustain policies which enable so few individuals to extract so much wealth from the commons or the future.  Policies which create and sustain monopolies would no longer be supportable.

Land stewardship could replace land ownership, with the building up of public debt (as we see in the energy sector) being replaced with sustainable land and resource usage.

If we also replaced coercive justice with restorative justice, much of the problems with over-policing and the disconnect between policing and the communities would no longer exist.

 

I will never claim to have all the answers, but the most critical thing I have learned thus far this year is we all need to exit the Eurocentric echo chamber.

Decolonisation

I am a strong supporter of decolonisation. In this I'm not only referring to racist language used as part of colonizers treating the colonized as inferior, but to also visit whether precolonial world views, governance and laws should be readopted in countries such as Canada.

As I look at how Europeans and their colonies have addressed various crisis from the current pandemic to the global climate crisis, I have come to believe that European economic thought from the 1700's and 1800's has failed our species. We need to steer in a different direction if we are to have a sustainable future.

 

Sep 30 addition:

While transcribed in 1980 and posted online in 2011, the following speech by Russell Means is helpful to understand.

Revolution and American Indians: “Marxism is as Alien to My Culture as Capitalism”

Does public transit "prove" private vehicle ownership and driving is inappropriate?

If you haven't already read it, please read my earlier article where I discuss a layered model for road transportation, and I try to clarify that "technological protection measures" (TPMs) are actually a restriction on who is allowed to drive (IE: author software for), or choose drivers for, communications technology.  I strongly believe there are conversations that wouldn't even happen if we were talking about cars rather than computers.

Once you have a similar understanding of the communications technology being discussed, and the most appropriate transportation technology analogy, you can begin to see just how inappropriate some of the statements made about communications technology sound.

When I was a witness in front of the C-32 committee I gave a version of my "I'm holding up four things" talk I had already given in multiple settings (See: Protecting property rights in a digital world).  The intention is to clarify that when discussing TPMs there are potentially 4 things that have owners (the media, the copyrighted work stored on media, the access device, and the authors of the software on the device), and that focusing only on one of them (the non-software copyright owner) risks inducing infringement or effectively abolishing the property and other rights of the other 3 owners.

I am an example of someone who has all 4 ownership interests: I own media, I am a copyright holder for non-software works, I own devices, and I author software.


One of the most vocal opponents of my attempt to protect the rights of all 4 classes of owners owners is John Degen (See: Making a living as an author vs. off of authors.)  When he was a witness in front of the Senate committee studying the renumbered C-11 he discussed technology as well, but in a way that sounds quite silly for those of us who understand the technology and the relationship to creators.

Mr. Degen: This morning Mr. Henderson referenced a couple of times real world situations and a lot of the panic that goes into extreme situations that might happen. This is a Kobo eReader — not a commercial for Kobo — and I have a bunch of books on it. Let us say I was studying these books in a university environment. I have Moby Dick, that great Canadian classic up here. Let us say I was studying Moby Dick. On this piece of technology, Moby Dick is locked. It is within the Kobo propriety locked system. It cannot be transferred to a Kindle, for instance. They do that for definition within the marketplace. There are fears out there that were I to be studying in a classroom environment, the lock would impede my fair-dealing rights to research and private study. I get around that completely legally, and without breaking any locks, by using paper and a pen. I read what is on the electronic device and I make my notes for research and private studying. I am, in effect, copying what is in the text and I do that perfectly legally. That is more likely what will be happening in classrooms. The extreme fears about digital locks locking students away from information are completely unfounded.

If I provide a transportation technology translation of this intervention, you will see why what Mr Degen said makes no sense.

Fictional person: This morning people expressed panic about what might happen if individuals are no longer allowed to have the keys to the locks on their cars, choose drivers, or drive vehicles themselves.   I came to this committee this morning by OCTranspo.  This is a locked system where the vehicles are owned by the city, and the city employs all drivers.  There are other privately run systems such as Greyhound Canada, a subsidiary of British transport company FirstGroup, that owns the vehicles and hires all the drivers.   There are fears that if individuals couldn't drive vehicles or choose who drives their vehicles, that it would restrict their travel. The fact I got here by OCTranspo is proof this is not the case.  In fact, if these private and public sector transportation systems didn't exist I could have walked to the committee hearings. The extreme fears about non-owner locks on vehicles or prohibitions against choosing drivers or driving ones own vehicle are completely unfounded.

There are many reasons to be dismissive of what Mr Degen claims.

While he makes his living elsewhere (staff at Professional Writers Association and later Writers Union, and at the Ontario Arts Council when he spoke to committee), he is focused near exclusively on textual literary works.  His suggestion he could read the text on screen and do fair dealing research using pen and paper sounds as silly as someone suggesting all witnesses to all committees could have walked there.   While I live within walking distance of the federal parliament, most Canadians (including Mr. Degen) do not -- and while some creative works are only text, others are not.   His words were dismissive of the rights and interests of the vast majority of Canadian creators.  The Copyright Act regulates activities for works which are nothing at all like text literary works, and it is for these other works that many of the worst controversies arise.

Rather than a reason to dismiss concerns about technological measures, his comments are actually a reason to dismiss claims about the alleged effectiveness of technological measures at reducing copyright infringement.  For the works in which fair dealings research doesn't require unlocking, copyright infringement also doesn't require unlocking.  Someone who actually wanted to infringe the copyright on a textual work only has to re-type it.





Mr. Degen doesn't have an interest in driving his technology, or having any say into who does the driving.  I personally don't have a drivers license, but I still care about who is doing the driving when it comes to transportation technology. I think there is a big difference between a privately run transit system where a private corporation decides all the policy, and a publicly managed transit system.  I believe all passenger transportation systems, public or private, should be government regulated.  The fact Mr. Degen held up a device with unaccountable and non-transparent private policy suggests he might not even care about these important distinctions.


While it is his right to not care who controls technology, it is not valid for him to claim his lack of personal interest is a reason to dismiss other peoples interests or seek to diminish or abolish their rights.



What Mr. Degen describes is different than the OCTranspo example because passengers haven't been mislead to believe they own the bus.  In the case of the Kobo people are being dishonestly lead to believe they are "purchasing" something, but where they are not given the keys or allowed to change the locks on what they have been told they "own".  If this was an honest business relationship where the vendor wanted to retain control then they would have retained ownership, and Mr Degen's Kobo would have been rented.  There would have been a transparent rental agreement laying out all the conditions. Whether it is the enforceability of the rental agreements for things you don't own, or the legal protection of digital locks you apply to things you do own, it is dishonest and possibly unconstitutional to claim this is a matter of federal copyright law rather than provincial contract and property law.  Without clearly understanding the relationship is closer to a rental than purchase, privacy and other rights aren't being appropriately protected.  Far from being the subject matter of copyright law, technological measures are being abused to bypass many other laws and regulations.


The communications technology we are discussing is the same technology used to create and disseminate works.  Revoking the ability of owners to independently control or have a say in who controls their technology doesn't only impact audiences, but greatly impacts creators.   If some unaccountable and non-transparent third party has the ability to disallow in software (what controls the devices) specific creative works to be distributed, or even created in the first place, this can have a critical impact on culture.

This is why I believe that protecting technology property rights is a prerequisite for protecting creators' rights, and also why I consider those who are opponents to technology property rights to be opponents of creators' rights.

We wouldn't even be having this conversation if we were talking about cars rather than computers.  If Mr. Degen were talking about transportation technology he would have been appropriately laughed out of the committee.


I am a long time creators' rights advocate, focused on technology property rights. I believe fellow creators need to take a closer look at how communications technology works so that they can tell who are allies and who are opponents to protecting their rights.

Copyright Board, Copyright Collectives, and the myth that "Fair use decimated educational publishing in Canada”

(This is a letter in an ongoing dialog with a few members of federal parliament. This email was added to the list of submissions for the Copyright Board consultation.)

David McGuinty, my MP in Ottawa South,

David Graham, MP (Laurentides — Labelle),

The Honourable Mélanie Joly, Minister of Canadian Heritage,

The Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development,

Copyright Board Consultations

I would like to thank David McGuinty for forwarding the September 8, 2017 letter from Minister Joly. This was a response to my May 1, 2017 letter titled “Myth: Fair use decimated educational publishing in Canada”. My letter highlighting some of what might colloquially be referred to as “fake news” being spread globally, primarily sourced from Access Copyright, a Canadian Collective Society. The National Copyright Unit of Australia felt this myth spreading required a response^[1]

As this myth primarily relates to an ongoing dispute between a collective society and provincially funded educational institutions, it ties in directly with the current consultation on the Copyright Board of Canada^[2].

The consultation paper recognises that there has been an “explosive growth of media and related technologies worldwide”. This specific incarnation of the of the Copyright Board was created in 1989, the same year that development of HTTP, one of the key technologies underlying the World Wide Web, was initiated by Tim Berners-Lee at CERN.

We live in a world where advanced content recognition, search and online media distribution enables audiences to find and access any content that they want. Sometimes, when copyright owners allow, we are offered a variety of competing access and licensing services to choose from. Modern information and communications technologies have made redundant a sizeable portion of what the Copyright Board was historically envisioned to accomplish.

While the discussion paper suggests we can speed up processes at the board by “Reducing the Number of Matters Coming Before the Board Annually”, the paper does not discuss the need to reverse the historical proliferation of collective societies. At a time when many collectives should be recognised as decreasing in relevance, they continue to increase in political and economic influence.

I will use a few specific problematic areas to illustrate.

Orphaned Works

The incentives behind the current “Unlocatable Copyright Owners” regime administered by the copyright board are counterproductive. The purpose of the regime should be both to encourage copyright holders to be discoverable and negotiate licenses, as well as to provide copyright users protection from a previously hidden copyright holder who later surfaces. Creators, copyright holders, copyright intermediaries and commercial copyright users should all have economic incentives to make copyright holders discoverable.

Modern ICT has caused some technology vendors and governments to declare “privacy is dead”, so it is inconceivable that a copyright holder who wants to be found is unable to be found. Some responsibility should be presumed on anyone who wishes to harness the privileges which copyright offers.

• Creators, copyright owners, collective societies, or other intermediaries should never receive proceeds from the unlocatable copyright owners regime. Fees should be kept with the board to fund its own operations and support services to increase discoverability, with any surplus returned to general revenue. There should be a clear economic incentive for these groups to make all copyright holders more easily discoverable.
  
• Fees levied against commercial copyright users should be sufficiently higher than what would normally be offered by a copyright holder, to further encourage commercial users to help make copyright holders more easily discoverable.
  
• Fair Dealings should be clearly expanded to cover non-commercial uses of works for which licenses cannot be easily obtained, including for reasons of unlocatable copyright holders. There can’t be a negative impact on the market for a work when no such market exists.
  
• If a copyright owner is unlocatable, but the creator is locatable, then copyright should revert to the creator.
  
• Fees previously distributed to collective societies, but were never disbursed to later-located creators or copyright owners, should be returned to the copyright board.
  

It has been claimed that the “no formalities” requirement of the Berne convention prohibits mandating registration for exercise of any copyright related rights. The reality is that if a copyright owner wishes to get paid they must make themselves known to someone, so it is illogical to suggest that requiring copyright owners do something to make themselves discoverable is a “formality”.

What this failed regime has allowed is for entities like the Access Copyright Foundation to take money from the orphan works regime as well as other fees extracted from authors as excessive transaction fees by Access Copyright, and create their own unaccountable arts funding program^[3]. With this entity perceived as doing “good works”, the incentive to make copyright holders easily discoverable and able to receive greater direct payments for their works is diminished. This is a net-reduction in funding for authors, marketed as if it were a benefit to authors.

Educational use of copyrighted works

Nearly all uses of copyrighted works by provincially funded educational institutions is licensed with copyright owners, and not through collective societies. This includes the global growth of Open Access, as well as online databases offering subscription and/or transaction fees.

There is then a thin layer between where the use of a work is already licensed, and where the use of the work does not require a license, that is under dispute between collective societies and educational institutions. This is the dispute underlying the myth that fair dealings decimated educational publishing in Canada.

In this case the relevant parties are not educational institutions or collective societies, but provincial taxpayers and authors. I believe if provincial taxpayers were asked if they were willing to help fund creativity used in the classroom in this thin disputed area they would agree, as long as the funding was accountable and efficiently distributed. Unfortunately, with all the middle-men taking their cut (Access Copyright is said to take 30% for itself), the current regime is inappropriate.

We already have a model for a far more efficient regime active in Canada. The Public Lending Right (PLR)^[4] program funds authors directly for the lending of their works in libraries. This funding program is far superior to having this activity covered by the Copyright Act. It is better for taxpayers as the money more efficiently funds authors, rather than all the unnecessary intermediaries and all their lawyers. If applied to educational uses this would not only provide considerably more funds to authors, it would end the expensive decades-long disputes launched by unnecessary intermediaries in front of the copyright board.

The PLR is an example of using the right tool for the right job. There is a harmful misconception held by some policy makers that copyright is a valid substitute for stable arts funding.  Arts funding can be accountably targeted at creators, where the benefit of copyright tends to goes to unnecessary intermediaries -- or leaves the country entirely.

As well as initiating a Public Education Right (PER) funding program, copyright law should be amended to clarify as fair dealings the current thin disputed layer of uses.

This clarity should, however, have responsibilities attached to it. Some education institutions want to have their cake and eat ours too by having exceptions to copyright on their inputs, but royalty bearing on their outputs.  The ability of institutions to use any institutional exceptions to copyright, as well as what has been clarified under the PER regime, should be conditioned on the institution adopting an Open Access publishing regime at least on par with the Tri-Agency Open Access Policy on Publications^[5].

Lobbying by Collective Societies

Collective societies provide a specific financial service to copyright holders and copyright users. As noted by Copyright Board expert Howard Knopf, “Collectives are an exception from the basic antitrust and competition law abhorrence of price fixing and conspiracies”^[6] As such, they are not optional to copyright holders who want to get paid for some specific uses of their works. Given this, collectives should not ever be able to claim to politically “represent” repertoire members any more than a bank should be able to claim to politically “represent” me simply because I have a bank account.

Collectives have been allowed to present themselves as proxies for the interests of creators - even when they are lobbying government for policies which benefit collectives at the expense of creators.

The operation of collectives should be scrutinized far more closely by government. This should include disallowing collectives from disbursing funds for purposes other than payment to creators for uses of their works. They should not be allowed to directly lobby government or fund foundations. It should never be seen as their money to spend: if authors wish to fund such activities they can voluntarily do so with their own money, including through optional member funded associations. They should never essentially have their money be “taxed” by a collective society intermediary.

More money to authors, more efficient copyright board

With Access Copyright no longer initiating disputes, resource constraints on the Copyright Board will decrease considerably at the same time as we will see increased funding for authors.

While I used Access Copyright as an example, the same will be true of several other collective societies. Better harnessing of modern ICT and modernizing the outdated thinking in our Copyright Act will greatly reduce the number of collective societies still in operation.

There will always be a need for some small number of collective societies, and a need for the copyright board to impose rates when normal commercial negotiations fail, but we should be providing legal and economic incentives to ensure these exceptions become rare.

---

[1] Myth: Fair use decimated educational publishing in Canada http://www.smartcopying.edu.au/copyright-law-reform/fair-use/myth-fair-use-decimated-educational-publishing-in-canada

[2] https://www.canada.ca/en/innovation-science-economic-development/news/2017/08/consultations_launchedonreformingcopyrightboardofcanada.html

[3] http://acfoundation.ca/about-us/

[4] Public Lending Right program http://www.plr-dpp.ca/PLR/

[5] Tri-Agency Open Access Policy on Publications http://www.science.gc.ca/eic/site/063.nsf/eng/h_F6765465.html?OpenDocument

[6] Canadian Copyright Collectives and the Copyright Board: a snap shot in 2008 http://www.macerajarzyna.com/pages/publications/Knopf_Canadian_Copyright_Collectives_Copyright_Board_Feb2008.pdf

Is Contributory Infringement a more appropriate #DigiCanCon topic?

When I read the following tweets I became concerned that we might see a repeat with the current Canadian Content in a Digital World Consultations of what I saw in the 10+ years of copyright consultations and committee hearings (C-60, C-61, C-32)  that eventually lead to the passage of Bill C-11.

Lots of talk surrounding the importance of protecting #IntellectualProperty and #Copyright today! #digicancon https://t.co/mUoCZcXw1e

— Canadian Heritage (@CdnHeritage) October 11, 2016

#Copyright + #IntellectualProperty has to be respected – We need to educate the importance of paying for content at a young age. #digicancon

— Canadian Heritage (@CdnHeritage) October 11, 2016

This is similar to how ACRTA and the Writers Guild continuously and mistakenly suggest that a willingness on the part of audiences to pay is a primary or even important consideration when it comes to scenarios when people are not paying.

Educating people, young or otherwise, about the importance of paying for content is an irrelevant conversation when appropriate mechanisms to pay aren't offered.

Secondary Infringement

This got me thinking -- maybe there is an aspect of copyright law that is appropriate to be discussing, specifically policies targeted at those businesses which are the root cause of that potential infringement.

The idea of contributory or secondary infringement has been part of copyright law for quite some time (See section 27), with a new section on provision of services that "enable" infringement being added as part of Bill C-11.  The recent addition was a narrowing of a concept called "inducement" where those who were seen to be "inducing" people to infringe would be considered liable as contributors to that infringement.

This concept was narrowed to not go after those who induce infringement, but only unauthorized providers of services which enable access.  The reasons for this change was obvious to me, but not to the government: the entities most guilty of inducing Canadians to infringe copyright were many of the same people lobbying the government for even "stronger" copyright.

Las weekend I openly asked the question: Can Canadians stream TV without eventually going to unauthorized sources?

Whether I personally go to an unauthorized and/or infringing source to watch the missing episode is ultimately irrelevant.  This episode is unavailable for me to pay, so claiming it is a matter of price is nonsense as no price has been offered.  The only choices offered to me by the broadcasters are not watching the episode (and subsequent episodes this season) or to go to an unauthorized (and possibly infringing) source.

What is relevant is that even someone who has spent decades speaking with fellow authors about how we can receive better material and moral rewards for our creativity feels pressure to infringe copyright by failures of the business models of intermediaries.

Copyright should become a tool to go after those who are inducing the infringement.  In this case the perpetrator is Bell Canada, who through actions and inaction through their various subsidiaries is easily the greatest secondary infringer in Canada.  They are not so coincidentally the perpetrator in the example I gave in my posting.

Note: I'm aware that it is unlikely that the relevant copyright holders would go after these secondary infringers as they are blocked by a Stockholm Syndrome where they have far too much sympathy for those who are the largest cause of copyright infringement in Canada.  It might require that government agencies be able to step in and protect these interests, which includes the rights of Canadian audiences who both want to access content and be offered mechanisms to pay.

Broadcast Television and BDUs not a relevant market

Anyone who tries to tell me that I should just subscribe to a cable package and be happy about it must realize that what they are asking for is conformity and not compensation.

I consider BDU's to be an outdated method of watching scripted programming, and one that is in many ways incompatible with my livelihood.  Telling me I should just suck it up is rudely throwing money on the floor, from someone who thinks that the customer could never be right.  You lose all authority to be claiming that those who don't pay are somehow immoral, rather than your unwillingness to accept our money (or being apologists for secondary infringers) being the core problem.

There are practical business reasons why I'm uninterested in a BDU.

As a software author I depend on peoples ability to choose my software in order for me to get paid at all.  This makes attacks against software choice, not copyright infringement, the primary threat to my business interests.

In order for people to have software choice they need to not be forced into a narrow set of devices where the manufacturer imposes or filters what software is allowed to be used.  One of the ways that device choice has been greatly narrowed recently is through the tie between encrypted content and "authorized" devices that contain the decryption keys.  This tied selling between the ability to access content from "authorized" sources and specific brands of technology should be considered illegal under our Competition Act, but is currently presumed protected by the "technological measures" aspect of our Copyright Act.  While there has been no credible evidence to suggest this tied selling reduces rather than  incentivises copyright infringement, it does reduce software choice and infringes the rights of technology owners.


Television has been going backward in recent decades.  With analog OTA and cable the signalling was a vendor-neutral standard, allowing audiences to use access devices of their own choosing. Confusion around the digital transition was abused by BDUs where rather than using standard digital signalling as is used in other countries, the BDUs moved to using proprietary signalling requiring that people purchase or rent specific brands of technology authorized by the BDUs to access content. This alone makes BDUs an undesirable choice for me as a BDU subscription would be a payment to an industry that is promoting policies that if left unchecked will put me out of a job.

On top of the practical business reasons, there are also others.  I not only want to access scripted programming on the devices of my choosing, but I also want it to be at a time of my choosing.  Even if I had a legacy cable subscription I would only ever use the PVR function and never watch "live".  I am not a computer and am unwilling to have my life programmed by someone else.  I will watch programming when I am available to do so, not when someone at a broadcaster said I should watch it.

Cultural protectionism doesn't protect Canadian culture #DigiCanCon #BecauseIts2016

Since the 1950's there have been some Canadians who believe that in order to protect the culture of Canada we need to restrict Canadian's access to culture from outside of Canada.  Concepts such as CanCon has existed in positive forms such as government funding for Canadian creators, but has also existed in negative form such as restrictions on what Canadians can access of non-Canadian creativity.

While the restrictions may have made sense in the 1950's in a pre-Internet era, the restrictions simply don't make sense any more.  Like a number of other modernizations we have seen recently, the reasons why we should eradicate these restrictions comes down to that simple slogan: because it's 2016.

CanCon

We need to modernize how we think about CanCon, and who the target of regulations should be.

In a broadcast era we had the problem that there were intermediaries that programmed what people could see and when.  As it was not Canadians themselves that are making these choices, requiring that broadcasters not only offer Canadian creativity to Canadians as well as helping to fund it was and remains appropriate.  As broadcasting was limited in spectrum we were talking about substituting one thing for another, and the promotion of Canadian content required the demotion of non-Canadian content.  I continue to support a CanCon quota system for broadcasting, which like broadcasting itself is a legacy policy for a legacy content delivery platform.

With modern streaming services that limited bandwidth restriction doesn't exist.  A full catalogue of content can exist, domestic and foreign for every market, and it would then be citizens choosing to watch what they want.  In this scenario a quota system would be counter-productive, unless the distributor themselves became a barrier to access by not being willing to license and offer Canadian content to Canadian clients.

That does not suggest a free-for-all, just an appropriate directing of the regulation at the correct entity.  If a streaming service available to Canadians wishes to offer a full catalogue of Canadian content, but some third party is blocking licensing, then that third party should be the target of regulation.   If that means intervening in exclusive licenses in order to ensure that Canadian content is available to Canadians on the platforms and devices of their choosing, and at the same time as other Canadians, then that is an appropriate modernization of CanCon rules.

While the quota system of CanCon regulations was perceived of as a broadcast issue, broadcasting is increasingly a technology of the past.  We need to look towards other gatekeepers who restrict Canadian's access to Canadian creativity.   We need to recognize this applies far more to the limited shelves of companies like Walmart than it does Netflix.

Regional restrictions

For better or for worse, Canada is a free trade country.  That is, except when there is an often arbitrary and inconsistent exception. Access to creativity is one of those odd areas where there are inconsistencies as we are in a period of transition.

Region encoding is an example.

DVD's have a region code encoded in them, the theory being that a DVD released in one region of the world can only be played in that same region of the world.   Due to free trade rules this never worked, as it was always legal for Canadians to import both a DVD player from another region and DVDs released in that other region.  In fact, I have a DVD ROM drive set to region code 2 to allow me to access any European disks I have been interested in.

In 2001 I filed a complaint with the competition bureau about DVD CSS which was a system which allowed what I continue to believe is a cartel known as the DVD CCA which exists to tie the selling of DVD encoded content with "authorized" devices where that cartel can impose what features can exist on those devices.   In a phone call from the bureau I was told they did a "relevant market" analysis and found that there was no price issues with DVD players. He suggested that licensed DVD players would need to be expensive for there to be a competition issue. He also suggested that since most movies are released in DVD Region 1 (North America), that there was also no barrier to trade.

I continue to disagree with the department's evaluation and believe that region encoding and the tied selling between DVD players and DVD disks should be disallowed under competition law.  This encoding can't be used in countries like India where DVD players are purchased (often by relatives) from all over the world, and thus a DVD with any region restriction is likely to not work for a good percentage of the country.


Moving forward to 2015 and while the content delivery platforms have modernized, the government policies have not.  I say 2015 as that was when I heard that Department of Canadian Heritage officials wanted to target the use of virtual private networks (VPN) to bypass regional restrictions.

The delivery technology isn't DVDs, but streaming services like Netflix.  And unlike with DVDs we aren't in the same region as the United States, and a large percentage of Canadians are using technology to "cross boarder shop" to access content that is legally available in the United States but has some (many believe illegitimate) contractual restriction against accessing from Canada.

This is not copyright infringement any more than buying a DVD from a US rather than Canadian retailer isn't copyright infringement.  This is something I do every so often, buying DVD's from Amazon.com rather than Amazon.ca as the "Canadianized" versions of some titles have French content replacing specific DVD extras I'm interested in.   Since cross-boarder shopping is the norm with DVDs, there isn't content which is available in the USA where the rights-holder and/or distributor haven't bothered to also make available to Canadians.


If we are to take what the Competition Bureau said at face value, they would be appropriately regulating against these restrictions in streaming services.  Thus far they have remained silent.  The department of Canadian Heritage is pointing the opposite way, which is that rather than going after those who are denying Canadians access to culture they are contemplating legal protections for the perpetrators.

The federal government must reverse course on this.  They need to not only clarify that it is legally protected to use VPNs to bypass invalid region restrictions, but regulators must appropriately go after those attempting to restrict Canadians access to culture in the first place.  Because it's 2016, not 1956!

What is Canadian Culture, and who gets to decide?

While this might bother some people, Doctor Who (BBC, UK) and Star Trek (Paramount/CBS, USA) had (and continue to have) a much greater influence on who I am as a Canadian than Hockey Night in Canada.

There was also Star Lost (CTV, Canada) as a child, and more recently the Star Gate multi-series franchise (which I hope we haven't seen the last of) and the 2000's  Battlestar Galactica out of Vancouver Film Studios.  The 1996 Doctor Who: The movie was also filmed in Vancouver.

Even when Canadians are interacting with creativity from outside of Canada, or creativity that was created in Canada but given foreign branding, they are still Canadians.  Why do some people believe it is their right to choose what Canadians consider to be their culture?

With a small percentage of indigenous peoples as an exception, we are a nation made up of immigrants and their descendants. The influence of other countries on what it is to be Canadian doesn't stop when people set foot on Canadian soil.  This influence will be ongoing, and we will adopt parts into ourselves and then project that outward as our own culture.

Trying to apply a quota system beyond the narrow situations where it is not individual Canadians citizens that are deciding what they are accessing is in my mind a denial of who we are as a country, and how our culture is formed and continues to grow.

An earlier discussion paper from the Department of Heritage indicated that, "The way forward is not attempting to regulate content on the Internet, but focusing on how to best support Canada's creators and cultural entrepreneurs in creating great content and in competing globally for both Canadian and international audiences. "

A recent Globe and Mail article goes further to suggest that we will be going a different direction than restricting Canadians access to content.  If she follows through we will be subsidizing and promoting Canadian content, and taking the first step in trying to be "platform agnostic".  Hopefully that will include recognizing that Cable (BDUs) and modern streaming services aren't in the same market, and can't be seen as substitutions.

Will we finally let some of the outdated polices be a part of our heritage, rather than ongoing restrictions on our culture?

First look at Bell's CraveTV

While I am not a fan of Bell as a company or their harmful politics, I decided to give CraveTV as a technology a quick look given they un-tied it to their BDU and Internet services since I wrote about it in January.

Technology

The service works on few devices, nowhere near what is available for Netflix.

While their site listed Samsung SmartTV, the model I have appears to be too old for their immature app. This makes it unlikely my wife will be interested in watching video on CraveTV as she finds the other options far less convenient than just using the remote control that came with the TV -- there is so much from Netflix, YouTube, and Ted Talks that all work great on the SmartTV option to bother looking elsewhere.

My first successful try with CraveTV was with what I would most often be using, which is my Chromebook and Chromecast devices.  The website was sufficient, but not inspiring.  Their "My cravings" menu allowed you to play the next video in a series, but using that interface you couldn't pull up information about the shows like you can in the other listings or after a search.  There is no recommendation engine, rating system, or other features that really bring you the modern video watching experience.  It felt kinda flat like traditional broadcast TV, only with more of a PVR experience where you can watch when you want rather than only when someone else scheduled it.

The play/pause button is not well implemented with Chromecast.  While you can open a new video on the website it does not switch which video the Chromecast is playing, and it will leave you stuck in the previous title.  There is no "stop" button which disconnects from the previous video and allows you to play a new one -- you are stuck going to the cast tab and stop casting before you can cast the next episode or switch titles.

The app for Android worked similar to the site with the Chromebook, with my phone also able to control a Chromecast device.

I tried on my desktop.   On Chrome it brings up all the widgets as if it is going to play video, and even gives that little spinning circle that they display when they are filling buffers, but no video or audio ever plays.  No indication why is ever displayed.   The little Chromecast button sits in the bottom-right corner, and interestingly it will connect to the Chromecast and play the video.  Possibly useful if you wanted to use a laptop as a remote control to a Chromecast, but not very useful otherwise.

First attempt with Firefox displayed a suggestion that I install a non-existent upgrade to the Adobe Flash plug-in.  I am already running the latest that is available for my Ubuntu 14.04 desktop (version 11.2.202.577 as I write this).  Second attempt after upgrading every package that had an update didn't get that far, with the site displaying a connection problem : "It appears there was  problem completing your request.  Please refresh this page.".  The page I was trying to go to was http://www.cravetv.ca itself, so that is a pretty bad sign.  I exited the browser and tried again, and again got the claim that "To watch video, you need an Adobe Flash Player Update" with a link to the Adobe site that only confirms I'm on the latest.

General impressions is that this is a beta service that they are marketing as if they were ready for general audiences.  I hope they realize the immature level of their site and plan to invest in finishing it.  Even ignoring my political problems with Bell I would not recommend this service to less technical users who would be frustrated having to fiddle and do odd things to try to get the video going.  The site is workable for technically literate people who can work their way around bugs in beta websites.

This site is improvement over  Rogers on Demand Online from 2009 which implemented commercials so poorly as to make programming unwatchable.  Then again, that might only be because they aren't trying to put commercials into the stream.

Content

It is the content that made me look at CraveTV rather than Shomi.   I'm not interested in the regular "reality" TV, sitcoms, or excessively light drama that the lowest-common-denominator brought to broadcast television.  CraveTV has a number of titles that are more to my liking, the type of stuff that would normally be on Space.ca (about the only channel I miss from my Cable TV days) as well as titles from HBO (Although, no Game of Thrones or even True Blood for whatever reason).  12 titles went into the "My Cravings" listing pretty quickly, and even though I only started my free trial yesterday I've already watched several episodes of The Librarians and Penny Dreadful.

It is typical of Bell that they are relying on questionable legal/business tactics like exclusive regional licensing to force people to their services, rather than offering competitive services using technology that would be considered of "release" quality by modern Internet era companies.  The only reason I would use their service is to access content I'm not legally able to get elsewhere, and I expect I will always have to put up with technology from them that is generations behind what modern companies like Netflix are offering.   It is sad that HBO and other cable-era content companies like it see Netflix as a competitor and Bell as a partner, rather than the other way around. I think far more people would be paying to access that content if it were untied from lesser distribution services and providers.

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)?

Yes

No

Let the free market, instead of the government, decide

Yes, locks are critical to protecting artist's revenues

Add your own stance

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).

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.

More trivially obvious ways to reduce copyright infringement

Contrast the following DVD pre-releases:

Doctor Who: Series 9 Part 1
This title will be released on November 3, 2015.

Doctor Who is currently airing on Space television (Currently owned by Bell Media) on Saturdays, with the rest of the first half airing later this October - with the DVD of those episodes being made available the week after.  As someone who doesn't have cable and isn't a customer of a BDU for Internet, I can also watch the episodes the day after they air on cable streamed from the space.ca website.  Past seasons starting from 2005 through to last years's Christmas special are all available on Netflix.

Personal: I'm watching via the website each week, and will be purchasing the full season DVD when it is released.  If last year is any indication, it will be available in December prior to the airing of the Christmas special (which will be available early in the new year).

Game of Thrones: Season 5
This title will be released on March 15, 2016

Game of Thrones season 5 aired from April 12 to June 14, 2015. It is only available directly via HBO, in Canada exclusively licensed to HBO Canada, which is also owned by Bell Media.  It is not available unbundled from Cable or Satellite as a streaming service.

While I would have no idea why anyone would want to infringe copyright on modern Doctor Who given how readily available it is in a wide variety of legitimate formats, I fully understand why people would infringe the copyright of Game of Thrones.  In the case of Game of Thrones  you are forced to choose between 3 inappropriate options:

• Watch on Cable/Satellite : The tied selling of the Game of Thrones to an unrelated and unnecessary separate service (Cable or Satellite TV) is something that should be declared illegal under Canada's Competition Act.  If not, then it should be considered fair dealings under Copyright Law given under "effect of the market" fans aren't provided a legitimate market.
• Infringe copyright
• Wait nearly a full year after release, an illogical delay that can only be explained by HBO trying to drive people to the other two options. They may want to immorally force people to the tied selling, but just as legitimately are forcing people to copyright infringement.

Personal: I'm waiting for the DVD release, but will watch with someone else if they have acquired it via some other means.  I may not be willing to choose either of the first two options myself, but am willing to watch the show with someone else who has.

I know that orthodox copyright lobbiests try to paint a picture where innocent copyright holders are being attacked from all sides by the evil world, but reality is quite different.  The easiest way for copyright holders to reduce the vast majority of non-commercial copyright infringement is to stop the self-inflicted pain: business practises which induce fans of their works to infringe as legitimate methods to pay are not offered.

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:

@russellmcormond @RessyM @BenKlass there are lots of sources of video content. A specific show no different from a specific Happy Meal toy

— Mark Goldberg (@Mark_Goldberg) June 18, 2015

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.

Legitimacy of new TV options CraveTV (Bell) and Shomi (Rogers, Shaw)

As Shomi received a lot of advertising in recent months I have been asked my opinion on it. I'm known as someone who has strong opinions on digital content distribution, and as someone who is a subscriber to Netflix and not to any traditional BDU (Broadcast Distribution Undertaking, the term the CRTC uses to refer to Satellite, Cable, and related companies).

My shortest answer is to say these these services aren't new, nor are they in the same market as Netflix. These services are an add-on service for existing BDU customers (Must be Television customer for Bell, but can be existing TV or Internet customer for Rogers and Shaw), and not a service that is untied to the BDU.

Rogers launched Rogers On Demand Online back in 2009, and I tried it back then when I was still a Rogers cable customer. I could almost watch a movie on my desktop computer with it, but it didn't work on the various devices I had connected to my television. It was a poorly implemented technology which they likely upgraded a bit for the rebranding and new marketing as Shomi, but it isn't correct to claim it is a new service.

CraveTV may be a new brand for Bell, but it should remind us all of iCraveTV which was an online BDU competitor which the BDUs lobbied the government to wipe out. Given the corruption in various levels of government when it comes to BDUs, it wasn't surprising when Bill C-11 passed in 2002. This made illegal a series of companies that were offering services as legitimate as the services of BDUs, but offering it over the Internet in a way that was Internet provider neutral.

This should remind us that we would have had legitimate Made In Canada competitors long before Netflix launched in 2008. For all the flag waiving that the BDUs include in their anti-competitive lobbying, it is the BDUs that have been consistently in the way of new services being launched. Their policy against legitimate Internet distribution of multimedia content is one of the many policy reasons why I continue to refuse to be a BDU customer.

Back in 2012 I wrote two articles on my move away from legacy phone/cable companies and a submission to the CBC where they asked "What does "radio" and "television" mean to you?.

As an update I will list the legitimate sources of television content I currently use, and the illegitimate ones I do not.

Legitimate

• By far the most television content I watch is via NetFlix. This is a service that is neutral to the Internet provider I choose, and works on nearly all of the devices that I own (Samsung SmartTV, Boxee Box, Chomebook, Chromecast, Android tablets and smartphones, desktop computers running Linux)
  
• Next largest source is DVD, where the copyright holders are slowly getting better and releasing faster than they previously did. While some sources like HBO wait for 9+ months to release, others like the BBC will release seasons of shows less than 3 months after the series aires on television.
  
• There is some content I try to access on broadcaster sites such as Space.ca, but they are poorly implemented and work on few of the devices I own. In the case of Space they even have an Android app, but it is so slow that its unusable. I am able to watch on my old desktop computer in the basement, but that is so inconvenient that I only bother for one specific show (Doctor Who). Space is one of the better sites, with other Canadian broadcaster websites being even less useable.
  
• Over the Air -- we have ATSC digital tuners in our TVs, and I have an antenna for the TV upstairs. My wife sometimes watches this, but I find traditional broadcast television scheduling annoying. I have an ATSC tuner in one of my computers which I could program to record with PVR software, but I haven't found enough compelling content OTA to bother. This is available to watch breaking news if some event is happening I want to keep up on, which hasn't happened for me yet since I set this up in 2012.
  

Illegitimate

• Copyright infringing online sources -- I keep being reminded by family and friends that all the content I want to access is available online moments after it airs on television. While I haven't refused to watch content with them in their homes, I refuse this option myself.
  
• Traditional BDUs -- While I have friends and family who are subscribers to BDUs, and I don't refuse to watch content with them in their homes, I refuse this option myself. I consider the traditional BDUs to be opponents to Canadian Television, as well as being in a conflict of interest when it comes to the Internet. As policy opponents I refuse to pay them money (beyond what is mandated by corruption in government through monopolies in spectrum and last-mile wires), just as someone in the executive of the Conservative Party of Canada might refuse to make large political donations to the NDP and Liberals. (Actually, I suspect the Conservatives disagree with the Liberals and NDP on policy far less than I disagree with the BDUs, but that's a conversation to have over beer).
  
• Tied selling services such as Shomi and CraveTV -- these are services I believe should be considered illegal under section 77 of Canada's Competition Act. The type of market manipulation that Bell, Rogers and Shaw are engaged in is exactly the type of wealth destroying behaviour that the Competition Act was created to stop. Unfortunately I suspect that this extremely harmful illegitimate behaviour is less likely to be prosecuted than the (in my opinion orders of magnitude less harmful) copyright infringement option.
  

(Note: Also Posted to Digital Copyright Canada)

Update: I should have noted the announcement: HBO to offer streaming-only online option in 2015. Here is to hoping that my inevitable posting next January about this issue will include the fact I've had months of enjoyment of the HBO service.

Will you explain why DRM is bad?

I was asked on twitter to explain why DRM is bad.  Given I have spent more than a decade talking about this topic, you would think there is a simple twitter-length answer: but there isn't.


Whether you believe the acronym expands to Digital Rights Management, Digital Restrictions Management, or Dishonest Relationship Misinformation, it doesn't define a specific technology or technique.  The acronym is used to refer to non-controversial technologies such as databases describing content and eCommerce websites, to highly controversial things such as digital locks which lock out the owners of what is locked.


We can't entirely avoid using confusing terms, as people will immediately say "Aren't you talking about DRM" when you want to speak about specific harmful activities.  It is very useful to be clear whenever the time is available.


When some people are concerned about DRM they are concerned about the inability to loan electronic books, or to exercise their fair dealing rights.  While that is peripherally interesting to me, and I agree with some and disagree with other of these ideas, my main concern is impacts which are entirely outside of copyright.  I am happy to discuss (including in comments below, or on the Digital-copyright.ca site) copyright related topics, but for the purpose of this article I am going to talk about things which are unrelated to copyright.


The two techniques I have been fighting against are anti-interoperability locks on content, and non-owner locks on devices.


I believe it should be obvious why having a lock, digital or otherwise, which locks the owner out of what they own is wrong.  In our society most people have at least a minimum of respect for the concept of property rights, and believe that if locks exist it should be the owner that controls them.  Locks should certainly never be allowed to be abused to lock the owner out of what they own, and our laws should protect the owner against such scenarios.  I would be happy to discuss this more if people want, but I am honest in saying that I can't understand why people demonstrate such a lack of respect for or understanding why governments property rights in these discussions.


It shouldn't matter if what is locked is our homes, our cars, or our computers: we should never allow for digital exceptionalism where we ignore basic property rights if the property happens to be digital technology.


The anti-interoperability lock on content ties the ability to access the content to specific brands of devices.   This is harmful in a variety of ways, including being what I consider to be a textbook example of tied selling as described in section 77 of our competition act.   Governments have competition and anti-trust laws for a reason, and again we should not throw away this body of law simply because the tied selling includes something digital.


I don't believe that copyright holders should have the right to decide what brands of technology I use, or what features should exist in the technology that is created and sold.  That said, those who support this policy should recognize that in the vast majority of real-world scenarios it is not the copyright holder that controls the keys to these digital locks.  It is the vendor of the DRM system, a technology company, that controls the keys.  Any digital lock, analog or digital, protects the interests of the key-holder and not necessarily the owner.  I have observed many copyright holders switch their position from being in strong support of technological measures being added to copyright law to being strong opponents once they realized that they as copyright holders would not have the keys or any real-world control over these digital locks.


More important to me, these anti-interoperability locks tie people to non-owner locked devices, something I believe should be prohibited in law.  My primary issue in this debate is the protection of the tangible property rights of technology owners.  Even if it were copyright holders that held the keys to the digital locks on their content, and even if there was a shred of evidence that these locks reduced copyright infringement (most evidence suggests increases), I would still disagree that this justified the legalization of non-owner locks on our devices or anti-competitive behaviour that encouraged the use of non-owner locked devices.




While I believe that these two controversial locks should be prohibited in law,  Bill C-11 (and C-32 and C-61 before them) provide legal protection for them.   While these bills are called "An Act to amend the Copyright Act", the digital locks provisions are not related to the subject matter of copyright law.  In fact, these digital locks have been and will continue to be abused to circumvent the contours of existing laws including contract, e-commerce, property, competition, trade and even copyright.


We have a long way to go in this conversation.  In my mind anyone who respects contract, e-commerce, property, competition, trade, and/or copyright should be opposed to "technological measures" being added to the copyright act.  Legal protection for "technological measures" must be added to the correct law in order for them not to be abused to circumvent the law.


If a technical measure is protecting contracting terms, including a copyright license agreement, then the legal protection should be in provincial contract law.


If a technical measure is protecting electronic commerce, then the legal protection should be in provincial e-commerce law.


And so on...


Hope this helps, and sorry that there isn't a twitter-sized response to this question.  There is a lack of clarity in what the acronym means, which add to the confusion that most of the impacts of adding "technological measures" to copyright law have nothing to do with copyright.