Windows 10 the last desktop version of Windows? The future is unevenly distributed...

I was pointed to a Linux-centric article that included the following section which surprised the person who pointed it out:

Windows 10 will be the last desktop version of the operating system that once gave Microsoft dominance in the PC software market. After that, Windows will be offered on a subscription basis and run from the cloud, but this will not be a Microsoft-exclusive cloud. Internally, Windows will be virtualized within software containers running on Ubuntu.

I'd like to parse this quote a bit, and offer some of my own interpretation.

Last Desktop version

The inevitable disappearance of the desktop operating system has been discussed for decades.  It is really a poor fit for the modern era.  Unlike their more thin mobile counterparts, desktop operating systems really only work well if you have a systems administrator on-hand to handle issues ranging from malware to multi-application compatibility.  System administrators, on the other hand, really want to centrally manage these services so they don't have to spend large parts of their budgets going to each individual desktop to maintain them.  While there is software that attempts to help with this, none of those options can ever compare to running those applications in a server room (local to the office, or in some other server room in "the cloud"). In the server room it is also easier to manage hardware resources, virtualize applications into their own containers to avoid multi-application compatibility issues, and manage software testing and upgrades in a way that is transparent (and thus not disruptive) to users.

Far worse than the problems within medium and large businesses is people running desktop operating systems in small offices or homes that don't have a system administrator.  This why such a high percentage of desktop operating systems are infected by one thing or another -- or just generally not working as well as the hardware and software could work.  This has a high cost to society as a whole, given the harm from spam and malware distribution from this army of infected desktop operating is only surpassed by the fact that these remotely controlled clusters can be bought to be utilized for anything including cyber warfare/terrorism.

I've been looking forward to the death of the desktop operating system for decades, and that is both as a person who works in offices where people expect the IT staff to inappropriately spend a chunk of their budget on desktop support, or as someone constantly asked by less technical family members or friends for help.

It shouldn't surprise anyone that I purchased my wife, mother and my father-in-law each a Chromebook, and as quickly as I could upload all their old documents to a Google drive or put on a USB drive -- and gleefully tossed their old desktops in the trash.

I hope I also will see the eradication of desktop computers in my workplace as well, but that isn't something I have much influence on (even as "Lead Systems Engineer").

What I see in the future isn't less computers, but a recognition that we should be using the right computer and right operating system to fit the job.  The historical "one size fits all" approach that we saw in the desktop era always meant that the operating system used did the job at hand poorly compared to alternatives.

While it is possible that there may be a kernel that will dominate because it receives the most contributions and the most vetting (IE: The Linux kernel), I would consider it yet another market failure if the software stack on top of that remained as similar as we saw in the desktop era.

In my home I run CentOS and Ubuntu on the server, Ubuntu on my development workstation, and we have a variety of mobile devices running Android and ChromeOS.  We have entertainment devices running a variety of OS's (Android on Chromecast, Linux kernel+Boxee software on Boxee box, and a Samsung Smart TV).  While they may all have a linux kernel under the hood, the rest of the operating system built on top is not the same.   I would consider it a backward movement on the part of Google if they merged ChromeOS and Android into the same OS as these two classes of devices serve different purposes and the operating system should be more focused on each purpose.  And I have no interest in running Ubuntu or CentOS on my tablet or phone.

When Google announced ChromeOS they had Citrix there, with the suggestion being in those early days that desktop apps should be virtualized into the server infrastructure, with mobile/portable/disposable devices providing the user interface.

What this will mean is that applications previously run on desktops like office suites and image editing (Photoshop) will be run on servers (in office or in the "cloud") where the computing and system administrators are, and the mobile OS is the user interface only. The desktop application divisions of Adobe and Microsoft have already been moving this direction. The free trials from Google apps may last longer (including still being available free for Gmail users), but they are by no means the only alternative available.

This is also an obvious and long discussed solution to much of the software copyright infringement problem. If you don't distribute software to end users to run in their computers then you don't need to worry about them infringing copyright.   This not only suggests proprietary vendors moving more to the cloud, but that the devices that end users have in their hands will eventually be FLOSS-only.

Subscription?

This is also an inevitable modernization of how proprietary software development will be paid for.  It has never made sense to think of software as a product, as it is more of an ongoing conversation.  While you can buy snapshots of the conversation with a fixed fee, that isn't a useful thing to do when you need to at least keep up with the security patches part of the conversation even if you don't care about new features.

In the early days of computing the hardware advanced quickly as well, and thus people were buying a new computer every few years and thus was paying for new software as well.  Now that computers have reached beyond what the average user needs on their desk/lap there isn't a constant hardware upgrade stream to pay for the massive amount of work that goes into upgrading the software.  In fact, people are wanting to simplify the hardware that they carry with them and want to go mobile where the computing power (as well as battery power consumption) is decreasing rather than increasing.

Subscriptions are the obvious way to go, and this will be of great benefit to both vendors and consumers.

And if you don't want to pay a subscription fee, there will always be legally free FLOSS alternatives. Given software development and system administration time is also expensive this will have to be financed somehow (by someone) even if you never have to pay a software licensing fee again. 

Not be a Microsoft-exclusive cloud

This is also inevitable, and we shouldn't be making a big political deal out of it.  As Microsoft moves away from trying to squeeze percentages out of hardware purchases to being a services company their focus will transition to choosing the right tool for the job.  This will also be a transition away from some of their odd historical political rhetoric in opposition to FLOSS and Linux. Sometimes the right tool will be software from companies and/or open source communities they thought of as competitors in their previous market.

Microsoft's Azure Cloud Switch (ACS) is but one example of this. This isn't a server, desktop, or mobile operating system, but a specialized operating system for network switches built on the Linux kernel.  Using the Linux kernel just makes sense as they can leverage existing community software work, as well as contribute their own code to a community that will then help massively deploy ACS compatible devices.   It is a win-win for everyone involved.

Virtualized within software containers running on Ubuntu

This is the only part of the quote that I'm not convinced was articulated clearly.  Why bother with Ubuntu?   Ubuntu offers a good application server environment, and it works great for workstations, but why bother with the overhead of Ubuntu for a virtualization environment?   This may not be what is being presented in the article.  There may be some value in using the Debian packaging system and build environments, and then spin a virtualization focused distribution.  It might even make sense to build this as a fork of a tiny subset of packages from Ubuntu.  I just don't see using Ubuntu itself as being likely for a company that has the resources to do this right on their own.

Educational fair dealings battles: Educational Institutions

I discussed Collective Societies in the context of this issue in a previous article.  While I started with them, I don't fault them for the battles we keep seeing.  Those representing collectives are just trying to keep these entities alive in a changing marketplace where their value is diminishing.   While this transition is good for authors and users alike, and is one that we should be encouraging, it will eventually lead to some redundant collective societies closing.

The problem is that educational institutions have been propping up the legacy publishing methods that these collective societies are dependant on.  These publicly funded institutions have been throwing away taxpayer money at lawsuits and royalty fees which leave the sector (and often the country) rather than modernizing.

Educational Institutions

When you get past the superficial "authors vs teachers" rhetoric, you find a very different scenario. The most expensive collections of works fall into the category of non-fiction textbooks, journals, and other academic writings.  The primary authors as well as the primary users of the works are staff and students at educational institutions.  Students are mandated to publish works as part of their learning, and staff are told to publish or perish with career advancement often tied to published works. Textbooks, even for K12, are authored by educators, and reviewed by educators -- with some reviewers merely paid with pizza by publishers.

All of this work by staff and students then leaves the institution and is redistributed back to the educational sector by third party publishers who extract massive royalty fees along the way.  It is fees flowing to academic publishers that dominate collectives like Access Copyright, as well as dominating the fees that academic institutions have to pay to publishers in direct licensing fees.

An alternative funding model that has been growing is Open Access(OA) where royalties are no longer charged. This enables the educational sector to directly pay staff for their authorship, hire editors and other staff they may not have, with the results then available freely to the rest of the sector.   There are a growing number of OA journals worldwide, and the Canadian Association of Research Libraries provides information on ongoing development in Canada.

While the movement to OA is a win-win for the educational community which is the sector for both the majority of the authors and users, there has still been barriers to adoption.

One of the greatest barriers is a perception that historical reputation of some of the previously established journals and textbook publishers is somehow more important than dealing with the financial, political and legal problems created by propping up an outdated academic publishing model.  This problem is made worse by the fact that the departments promoting the established publishers have separate budgets than the libraries who are expected to pay for the expensive journals, or students who have to pay outrageous and unnecessary textbook fees.

We need a bundle of policy solutions to encourage the transition.

Taxpayers interests must be protected

In the "authors vs teachers" rhetoric an important fact is forgotten, which is that taxpayers are ultimately paying and their interests should be respected.

I have long believed that the results of publicly funded work should be publicly licensed.  For educational institutions I would tie part of their budgets to fund OA publishing.  OA publications are not only available royalty-free within the education sector, but outside as well allowing the fruits of the work partly funded by taxpayers to be available to taxpayers (and the public in general).

During a transition period this funding could be divided by academic department, such that additional funding would be made available to departments that shifted to OA early.  The funding would come from an expenditure-neutral shift in funding to the institution, so that in effect budgets would be reduced for those departments that had not yet moved to OA publishing and increased for those who had.

In a later part of the transition period this funding would then be assumed to be institution-wide, where part of the funding to the institution as a whole would be tied to a requirement that all departments had moved to OA publishing.  This would put additional pressure on laggard departments.

Overall the goal of the policy must be to mandate OA publishing for publicly funded institutions, so the end goal of the policy would be that no public funding would be available to institutions who were unwilling to transition from legacy royalty-based publishing models to OA publishing.

Fairness in Fair Dealings

It has never seemed fair to me that we should be treating educational institutions as if they were charities, and that somehow they should have royalty-free access to the works of the world and yet be able to charge (or allow third party publishers to charge) royalties for the outputs of the institutions.

I believe that one of the primary fairness criteria for educational fair dealings should be the licensing methods used for the outputs of the academic work.  If the results will be OA or released to the public domain, this would be weighed strongly towards fairness on the input.

I would further propose that after a transition period similar to the  funding proposal above that the specific educational institution copyright exceptions (sections 29.4-30.04) should only be available to institutions whose outputs have been primarily made available through public licensing.

Policy proposal for the remaining works

While nearly all the works used in an educational setting fall under direct licensing (royalty or publicly licensed) or fair dealings, there are still some works used which should be compensated but where direct licensing isn't available or isn't practical.  With educational sector created works handled through OA, there is also far more money available to compensate non-academic authors who have always been on the losing end of these debates.

Decades of taxpayer money wasted in the so-called "educational fair use" debate and never ending  lawsuits suggests that none of publishers, collectives, or educational institutions can be entrusted to provide fair compensation to those non-academic authors.

I believe an appropriate model to use is the Public Lending Right program that provides funding to authors for the use of their works in public libraries.  This is a program outside of copyright that is focused on authors rather than copyright holders.  The program to fund authors for uses of their works in publicly funded educational institutions should be funded from an expenditure shift from educational institutions.   Unlike what happens with collectives, the proceeds for this program should be accountably targeted to authors, with funding not accessible to intermediaries or their feuding lawyers.   This would provide far better funding to authors than the small amounts paid through collective societies, and be far more accountable to taxpayers who have ultimately been funding this nonsense debate.

Educational fair dealings battles: Collective Societies

Anyone who follows copyright in the news will have heard the epic battles around educational fair use.

To hear it from the perspective of those who represent collective societies it is a battle between starving artists on one hand and thieving big business educational institutions on the other.

To hear it from the perspective of educational institutions it is charities providing a public service trying to reduce costs to students and taxpayers any legitimate way they can.

The problem is that both of these perspectives are wrong.

This article is in two parts, with the second part addressing educational institutions.

Collective Societies

Collective societies don't "represent" creators, starving or otherwise.  They provide a specific business model service available to copyright holders, and compete in a marketplace that includes a wide variety of other business models available to copyright holders.

Collectives don't "represent" creators in the sense that an elected politician or union representative might claim to represent constituencies, any more than ScotiaBank can claim to "represent" me simply because I happen to be a customer of some of their financial services.

If a large number of home owners who had mortgages with Scotiabank decided to switch to BMO, Scotiabank would never be allowed to claim that there was a crisis in the mortgage business or home ownership, and lobby the government to try to force home owners to take out mortgages from Scotiabank.

This is essentially the argument that certain collective societies have been making for many years in Canada. Copyright holders and educational institutions have been migrating to directly licensing works through a wide variety of online services where there is a direct flow of money from the institutions to the copyright holders.

This is the reality of the marketplace today: the overwhelming majority of works used within an educational setting are directly licensed.  What remains to be sorted between collective licensing and fair dealings is decreasing in size all the time, and it is this modernization that bogus "studies" by PricewaterhouseCoopers failed to take into consideration.  The fact that revenues flowing through collectives has decreased is not an indication of a failure, but an indication of a successful ongoing transition to more direct licensing models.

Collective societies should have always been understood as a licensing model of last resort.  Authors licensing directly is ideal, and if that isn't possible then through a publisher or some other intermediary. Collectives are only needed when normal direct licensing options are somehow failing, and creating indirect licensing is the only remaining option.  Rather than copyright holders licensing directly they become members of collectives and receive payments based on very rough statistics about possible uses of their works.

With modern digital delivery mechanisms the costs of creating accurate statistics and offering transactional licensing has dramatically decreased, which means that the pre-digital collective management option will have diminishing value in the marketplace to either authors or users.

Collective management of copyright is nothing like collective bargaining

One of the more warped suggestions you will hear is that collective management is comparable to collective bargaining, and that collectives are simply representing their members like a union does in negotiating with the employers for better fees.   This claim is nonsense for many reasons.

The closest thing that authors have to an employer is the publishers, not the customers of the publishers. Workers at a Ford plant don't picket in front of the homes of car owners as a mechanism to get better wages, they picket in front of their place of employment trying to convince the employer to give them better wages.  While authors require this type of representation as the deals offered by many publishers are unfair to authors, collective societies aren't helpful in that scenario.

In the case of collectives like Access Copyright, the publishers (employers) already dominate the money flowing through them and as much as some collective devotees try to claim otherwise also control the organizations politically.   Normally a union isn't made up of a mixture of employees and employers, where the employers control the agenda -- so suggesting that a collective is like a union makes no sense.

As collectives exist in a competitive marketplace, and authors and users are switching to better licensing models, you will see collectives fighting against these competitive pressures.  An analogy might be having the employees and management of Ford picketing outside Chrysler headquarters complaining to Chrysler employees that Ford isn't getting paid because people are switching to purchasing Chrysler vehicles rather than Ford.  It is an odd mentality, and it violates much of what a union normally stands for as you have workers from one employer picketing against the workers from another employer, in solidarity with their management rather than their fellow workers.

Some oppose any form of fairness in copyright law

Of that diminishing proportion of works which are not available for direct licensing, we are left with sorting between those uses which should be considered fair dealing and uses where a royalty would be paid through a collective society.

As with the other aspects of this debate, the "sky is falling" rhetoric is false as the vast majority of uses we are discussing are legitimately fair dealings that would be recognized as fair by anyone who remotely believes that copyright law should have the concept of fairness within it.  The loudest people you will hear complaining about legitimate uses of fair dealings, even with the fairly conservative policies most educational institutions are using, are people opposed to their being any limits or exceptions to copyright at all.  These extremists should be recognized as outsiders from the core of the policy debate.   As discussed in earlier articles, they certainly don't represent the interests of authors who depend on these limitations and exceptions to create our own works which build on the past.

The blanket licensing problem

After we consider direct licensing and necessary limits and exceptions to copyright, there still remains an extremely small number of uses or works that are still worthy of consideration.

What educational institutions have been asking for is a mechanism to provide transactional licensing for those instances where a work that is used in an educational setting is not already available through direct licensing, and where the copyright holder is in the repertoire of a collective society.  As the marketplace advances these instances are becoming less common, but this service would still provide value to copyright holders and their potential customers.

Unfortunately some collective societies have been fighting against this eventuality for decades.  They want to offer blanket licensing (an expensive per-student price, regardless of what copyrighted works are ever used), and refuse to offer transactional licensing except to those institutions that already have a blanket licensing.

Like the frustration consumers have with other unfair bundles like much hated cable packages leading people to "cut the cord", this failure caused by collective societies are inducing more and more institutions to cease any type of licensing with the collectives.

I see this scenario as similar to what I have already written about the Orphan works and Netflix region restriction problems.  The general policy proposal was this:

Fair dealing for non-commercial uses of works not otherwise offered for license under reasonable terms is not an infringement of copyright.

The onus should be on the copyright holder to provide appropriate licensing options to educational institutions if they wish to get paid royalties.  If they refuse to offer direct licenses through the variety of existing mechanisms, and are only members of a collective society that is refusing transactional licenses, then they shouldn't expect much sympathy for their complaint that they aren't receiving royalties.  (Note: I offer a funding program suggestion in the second part)

Members of collective societies should be demanding that collectives provide transactional licenses, otherwise the copyright holders should form a competing collective to replace the failing one.  This has been discussed in the past, such as by a splinter group contemplating creating a Creators' Access Copyright as they recognized that Access Copyright primarily represented the (often competing) interests of (largely foreign) publishers.  While that group was drinking the same cool-aid that Access Copyright devotees are in opposing fairness in copyright law, they at least recognized one of the largest problems with Access Copyright: there are obvious conflicts of interests between authors and older business model dependent publishers.

Competing interests of authors and collectives

The politics of this situation is made more confusing because there are individuals that represent the interests of collective societies against competitors who allege to represent the interests of artists. You will see press releases coming from professional writers associations and unions echoing the false claims of collective societies.   I have never believed that these individuals represent the interests of artists but the increasingly conflicting interests of collective societies.

One of the best things that fellow members of the creators rights movement can do is distance themselves as much as possible from collective societies, their lawsuits, and their counter-productive political campaigns. If you are a member of a union or professional association whose leadership is parroting the rhetoric of a collective it is time to get together with other members and depose those with this conflict of interest.

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.

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

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

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

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

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

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

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

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

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

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

Fair Use/Fair Dealing Week

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

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

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

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

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

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

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

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

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

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


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

My comments on: Have Millennials Made Quitting More Common?

My comments on: Have Millennials Made Quitting More Common?

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

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

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

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

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

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

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


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