Wayne Borean
Published by Wayne Borean Publishing
Smashwords Edition
Copyright 2008-2011 by Wayne Borean
Creative Commons Attribution 2.5 Canada License
ISBN 978-0-9877226-4-5
Writer/Publisher
398 Alper Street
Richmond Hill, Ontario
Canada L4C 2Z4
Copyright Wars Volume 4
Copyright Wars is a collection of blog postings on Copyright from two of Wayne Borean’s blogs. The first series were from Cranky Old Nutcase, a blog on the free Blogspot platform that he originally started to practice writing skills. Later posts were on the Madhatter.ca website that he was given as a Christmas present.
They are being reprinted here partly for historical interest, and partly as a warning to artists. Politicians and industry are not working towards our best interests, and we must remain vigilant against them.
This book is dedicated to my senior editor, Sam Borean. Sam wasn’t human. He couldn’t talk, but his love was unstinting.
The first four books in the Copyright Wars series were written with Sammy cuddled up against me on the couch, or sometimes acting as a laptop desk.
Sam died when he saw a rabbit in late May of 2011, and in typical Beagle style, took off after it like a shot. We still don’t know where he managed to get out under the fence, just that he had to have gone under it, he was too short to have jumped it. He died when the rabbit he was chasing ran across a road, and Sammy followed. Beagles don’t understand the rules about looking before crossing the road.
Rest in peace Sam.
Sam Borean
Index
Balanced Copyright For Canada Website – Attack Of The Corporate Welfare Bums
The TPM Provisions in Bill C-32 Are Not In Compliance With The WIPO Internet Treaties
Corporate Copyright Scofflaws 0007 – Cooks Source Magazine Plagiarism Scandal
Corporate Copyright Scofflaws 0007A – Cooks Source Magazine Plagiarism Scandal Revisited
Conor Lenihan, Irish Politician Admits That He Is Bought And Paid For
Is There Some Reason That Barry Sookman Refuses To Quote The WIPO Treaty?
Evidence Based Legislation – Why The CRIA Doesn’t Want To Consider It
Software Licensing – Don’t Complain If You Don’t Like The License
Corporate Copyright Scofflaws 0009 – Pending List Action Settled
Barry Sookman Puts Foot In Mouth Again – Doesn’t Read Articles He Links To
The Sky Is Falling – Ticket Prices Go Up, Ticket Sales Go Down
Preface
I became involved in the Copyright discussion in Canada inadvertently. I’d made use of copyright as a software engineer, singer/songwriter, and writer, and also as one of the founding members of the FilKONtario music convention.
My wife is a singer/songwriter. My daughter is a professional photographer. One of my sons is a writer, who has written a series of television scripts. My mother-in-law is the Poet Laureate of the Temiskaming District. I know a lot of people who are either writers, poets, artists, photographers, singers, singer/songwriters, software engineers, videographers, and other creative types who rely heavily on copyright.
I have a strong reason to be interested in copyright. From this point on I’m going to use the term artist to cover everyone who produces works covered by copyright.
One problem is that none of the Federal parties, including the Conservatives, the New Democrats, the Liberals, the Bloc Quebecois, the Greens, or the Pirate Party, really has a damned clue about Copyright. Nor do they have a clue about what artists want. One of the best is the New Democrats. Charlie Angus, the NDP MP for Timmins, is a musician.
The Conservatives and Liberals suffer from a severe problem, none of the major players in either party is a professional artist. This is a problem that artists have contributed to, by not becoming politically involved.
Another problem is that we have a series of people who are lying by omission to the people of Canada. When a lawyer who is working for Music Canada has an opinion piece published in a major Canadian newspaper, and he doesn’t list his affiliation, he is lying to the public. I understand that his client might not want him to state the affiliation, and have no problem with that. However I think that if the client is unwilling to let the lawyer state the affiliation, than the lawyer should be required BY LAW TO REMAIN SILENT.
When I was able to discern a connection, and publish an article about it, this made me less than popular with Graham Henderson, the President of Music Canada, formerly known as the Canadian Recording Industry Association. Graham would rather that the connections of his pet lawyers back to Music Canada not be known.
Because the entire fuss about copyright law in Canada isn’t about benefitting the artists, and it never has been. It’s about benefiting a small number of off-shore corporations. These corporation do not have the best interests of Canada, Canadian artists, or Canadian culture in their aims. Instead they short term bottom-line considerations are their main consideration.
There’s nothing wrong with making money. Ask any artist. We love money. What’s wrong is lying to get it. That we don’t like.
Wayne Borean
August 31, 2011
An Explanation Of My Views On Copyright Part One
Posted on September 7, 2010 by Wayne Borean
Over on the Facebook Balanced Copyright Page, Sara Hutchenson said:
OK, Wayne, since you’re starting to become a regular visitor here, it’s time for you to start offering more than just boilerplate disagreement.
Why is it a “lousy view”? I know a lot of artists who would and do agree with that point of view: it’s not just a copy of file, it’s a piece of art. How about instead of throwing up links from other people, you start qualifying your remarks.
Facebook has it’s points, however the limitations of the platform make writing long answers difficult. Formatting is a nightmare, and it has issues with links. So I’m doing it here.
WARNING – this is a long one. I suggest that you get your beverage of choice now, before you read any further.
1) Acknowledgments
I would like to thank the following people, who all have helped shape my understanding of the situation, EVEN THOSE WHO I DISAGREE WITH. In fact I’ve learned more from those I disagree with, because I had to parse their claims and statements carefully to determine what they really meant. And quite frankly, me being me, I disagreed with everyone on one point or another. I apologize to any who I have missed.
Here they are in last name alphabetical order:
Steve Albini, Charlie Angus, Sanjeev Anirudh, Randy Bachman, Chet Baker, Steve Ballmer, Heather Borean, Vicky Borean, Ed Broadbent, Fred Brown, Chris Castle, Ben Challis, C. J. Cherryh, Tony Clement, Winston Churchill, Hugo Cox, Gary Cross, John Davidson-Kelly, Charlie Demerjian, Cory Doctorow, Sherman Dorn, John Dozier Jr., David Eaves, Alan Ellis, John Enser, Nora Ephron, Dr. Mihaly Ficsor, Leslie Fish, Eric Flint, J. D. Frazer, Neil Gaiman, James Gammon, Jane Garthson, Bill Gates, Michael Geist, Lynn Gold, Taunya Gren, Andrew Grygus, Patti Hall, Amanda Harcourt, Tom Harding, Orrin Hatch, Frank Hayes, Sally Headford, Don Henley, Shawn Henderson, Paul David Hewson, Pat (P.C.) Hodgell, Byron Holland, Tanya Huff, Janis Ian, Tom Jeffers, Steve Jobs, Brad Johnston, Pamela Jones, Jordin Kare, Desmond Kavanagh, Joseph Kesselman, Stephen Kinsella, Howard Knopf, Mercedes Lackey, Bob Laurent, Larry Lessig, Sebastian Lewis, Courtney Love, J. Spencer Love, Michael Lynton, Catherine MacDonald, Mike Madison, Kathy Mar, Ann Margetson, Mike Masnick, Victor Matysiak, Darl McBride, Russell McOrmond, Shirley Meier, John Mellencamp, Glyn Moody, James Moore, Brian Mulroney, Rupert Murdoch, Larry Niven, Ed O’Brien, Ciarán O’Riordan, Debbie Ohi, Stephen Oulton, Richard Owens, Nina Paley, Amanda Palmer, Jeremy Phillips, Gene Quinn, Tim Quirk, Patrick Ross, Laurel Russwurm, Robert Sawyer, Dr. Roy Schestowitz, Wouter Schilpzand, Ben Sheffner, Clay Shirky, Hanna Sköld, Tom Smith, Barry Sookman, Ken Starks, Robin Sutherland, Richard M. Stallman, Samuli Torssonen, Linus Torvalds, Sam Trosow, Pierre Elliot Trudeau, Mark Twain, David Weber, Rob Weir, Karen Wehrstein, and Mike Whitaker
Not all of the people above are public figures, so you may not recognize many of the names. Several (Winston Churchill and Mark Twain for example) are long dead. Some are politicians, some are writers, some are musicians, some are software engineers, some are all of the above or other things. If you want to look them up, I suggest you use Google.
2) Definitions
This is the difficult part. It is impossible to explicate an argument when two or more parties cannot agree on the meaning of the words being used. In many cases people have a less than clear understanding of what a word means. Many online sources are less than accurate in this regard as well. In English it is quite possible for a word to have multiple meanings. To take a section from Through the Looking Glass by Lewis Carroll:
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master that’s all.”
Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them—particularly verbs, they’re the proudest—adjectives you can do anything with, but not verbs—however, I can manage the whole lot! Impenetrability! That’s what I say!”
Since I don’t want you as confused as Alice, I need to tell you what I mean.
Canada – Unless otherwise mentioned, I am speaking of the situation in Canada. Links for definitions, and the text in italics is taken from Wikipedia.
Law is a system of rules, usually enforced through a set of institutions. Laws can shape or reflect politics, economics and society in numerous ways and serves as a primary social mediator of relations between people.
The second sentence is in many ways more important than the first. Most people think of law as immutable. This is wrong. Law is a constantly changing construct, which is used to shape society, rather as a gardener shapes a Bonsai tree.
For an example of shaping society, consider the difference in gun laws between the Canada and the United States. The difference is caused in part by a section of the United States Constitution, and also by a certain paranoia that many Americans seem to suffer from. The societal differences also cause technical differences, for example hospitals in the United States are far more experienced in handling gunshot wounds than Canadian hospitals. Whether this expertise is an advantage or not, depends upon the individual’s viewpoint.
In Canada laws are enacted by our elected (hired) representatives who are supposed to take our best interests in mind. When I use the word ‘our’, I mean the citizens of Canada. Corporations are technically supposed to have no input, as corporations are unable to vote, however there are certain rules which allow a corporation to have input, through the human who represents the corporation’s interest.
Some people in the United States believe that Special Interest Groups (which includes Corporations) have gained too much political power, and have corrupted the government. The situation is somewhat different in Canada, where political campaigns are partially government funded, however we have our problems too. In fact the new copyright act, Bill C-32 reads like it was partially written by industry representatives, and almost completely ignores the submissions of Canadians to the Copyright Consultation. Note that I predicted this turn of events back in April of this year.
Copyright is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or fixation. In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses which are covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others.
This is the general understanding of copyright that most people have. While it is partially correct, it is not complete. Let’s take a look at what is missing.
Historically copyright was first implemented to protect the printers, from each other in the sixteenth century, through the Licensing Act of 1662. The first legislation that we would consider a real Copyright law was enacted in England in 1709, and is known as the Statute of Anne. Again, quoting Wikipedia:
The origins of copyright law in most European countries lies in efforts by governments to regulate and control the output of printers. The technology of printing was invented and widely established in the 15th and 16th centuries. Before the printing press a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying out. Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information. While governments and church encouraged printing in many ways, which allowed the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licences to trade and produce books. The licenses typically gave printers the exclusive right to print particular works for a fixed period of years, and enabled the printer to prevent others from printing the same work during that period. The licenses could only grant rights to print in the territory of the state that had granted them, but they did usually prohibit the import of foreign printing.
In England the printers, known as stationers, formed a collective organisation, the Stationers’ Company. In the 16th century the Stationers’ Company was given the power to require all lawfully printed books to be entered into its register. Only members of the Stationers’ Company could enter books into the register. This meant that the Stationers’ Company achieved a dominant position over publishing in 17th century England (no equivalent arrangement formed in Scotland and Ireland). But the monopoly, granted to the Stationers’ Company through the Licensing Act 1662, came to an end when parliament decided to not renew the Act after it lapsed in May 1695.
The second paragraph is the important point. The printer’s collective, known as the Stationer’s Company wanted to prevent competition, by locking out new entrants into the business. If a printer is going to print a book, and his competitor prints the same book, the first printer isn’t going to sell as many copies. There was also a view at the time, that there weren’t enough talented writers to make more printers economically feasible. The stationers (or printers) wanted to avoid this. From one point of view, it was an anti-competitive act. From their point of view, it was a necessity, because of the high costs involved in setting up a plant to print in volume.
Curiously, Martin Luther stated in 1569 that ‘The multitude of books is a great evil. There is no measure of limit to this fever for writing; every one must be an author; some out of vanity, to acquire celebrity and raise up a name; others for the sake of mere gain.‘ Obviously Luther disagreed with the Stationer’s Company. So did Edgar Allen Poe, who in 1845 said ‘The enormous multiplication of books in every branch of knowledge is one of the greatest evils of this age; since it presents one of the most serious obstacles to the acquisition of correct information by throwing in the reader’s way piles of lumber in which he must painfully grope for the scraps of useful lumber.’
The Statute of Anne’s real title was ‘An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned,‘ and in the title of the act, Authors for the first time, not Printers are clearly mentioned. The final draft had the words ‘encouragement of learned men to compose and write useful books.’ So the final act was to encourage ‘learned people to write’, after all you wouldn’t want just anyone doing such a dangerous thing. It also incorporated a limited time of protection, to ensure that a writer would be encouraged to keep on writing, to ‘keep the wolves from the door.’ To keep earning, the writer had to keep writing. Parliament deliberately added the wording to limit the protection period, the original draft did not have a limit.
Copyright was later stretched to cover song lyrics, recorded music, computer programs, maps, dramatic works, paintings, photographs, and film productions, in a ‘One Size Fits All’ manner. Whether all of the above should be covered in exactly the same way, by the same legislation is under discussion. For example computer programs are generally not usable for long periods of time, while books are. Maps are also only useful for a limited time period, the town I grew up in has changed so much in the last fifty years, that a map from my youth would be worthless for practical purposes, however it is still under copyright.
Canadian Copyright Act of 1985 (Bill c-42) – The link is to the Department of Justice Website, where the entire act is online. As is common with legislation, the first several pages are filled with definitions (like this definition). This is the current act, and is the cause of much complaint, as it was designed at a time when reproduction and distribution were not easily accomplished.
The term Content Industry refers to everyone who produces content. What a wonderful, circular definition! In effect content means anything that is produced for enjoyment – games, music, videos, etc. About the only items that fall under copyright law that aren’t content are computer programs which are not games. A game is content. Microsoft Windows, Mac OSX, and your Office Suite software aren’t content.
This is the reason that the definitions section is so long. English is a very imprecise language in many ways. While this is a weakness, it’s also a strength, because it is so easy to add to it.
While the link leads to Wikipedia, this is my own explanation, because the one on Wikipedia is not inclusive. Defining the Music Industry is much like defining cyberspace. Certain parts of the music industry are highly visible, like the RIAA, the CRIA, and their member companies, who have been agitating for the new copyright bill, Bill C-32, or for something more stringent. These companies have functioned as part of the distributing and marketing arm the music industry for years. Financially they have been the largest segment of the industry, and are often talked about as if they are the entire industry.
Other parts are virtually invisible. People like Tom Smith, Leslie Fish, Kay Shapero, Jordin Kare, Mitchell Burnside-Clapp, etc., etc. don’t have distributing and marketing arm recording contracts, but are part of the music industry too.
There is also the major artists, like the Beatles, AC/DC, insert favorite act name here. While highly visible, and supposedly what the distributing and marketing arm exists to serve, they have little effective power, in most cases being forced to sign over creative control of their artistic endeavors to the distributing and marketing arm of the industry. Note that this is the only major creative industry with this requirement, thus my suggestion during the Canadian Copyright Consultation:
That Copyrighted should only be able to be held by a living being, specifically the producer of the work in question, or their heirs, that it can be leased to a corporate entity for a period of no more than 5 years, and that automatic renewal not be allowed.
I have been told that this part of my submission caused some upset to the RIAA/CRIA members. My later suggestion that copyright not be transferable, except as an inheritance after the death of the original creator is another one that they do not like at all.
Also included in the industry are the various methods of delivering music to the person who wants it, such as retail stores, online stores, concert promoters, event venues, ticket sales organizations, etc.
In the first paragraph I said that defining the industry is difficult. The reason for this is that we are currently going through a wave of Disruptive Technological Change. One example is recording equipment. Ten years ago the technology required to record music was still expensive. Today I own my own recording studio, and it was relatively inexpensive. In effect I am now a part of the distributing and marketing arm of the industry, whether the RIAA or CRIA wants me or not. The drop in costs to join various parts of the industry has dropped dramatically in recent years.
There are further disruptive changes going on, in effect, we have hit a Disruptive Technological Perfect Storm.
Like the Music Industry, the Publishing Industry is somewhat difficult to define, and for the same reasons. All of my comments for the Music Industry are also true for the Publishing Industry, with some modifications.
Like the Music Industry, the Film Industry is somewhat difficult to define, and for the same reasons. All of my comments for the Music Industry are also true for the Film Industry, with some modifications. While it is still referred to as the Film Industry, film is no longer used by most projects.
Like the Music Industry, the Theater Industry is somewhat difficult to define, and for the same reasons. All of my comments for the Music Industry are also true for the Theater Industry, with some modifications.
Like the Music Industry, the Software Industry is somewhat difficult to define, and for the same reasons. Most of my comments for the Music Industry are also true for the Software Industry, with one major difference. The cost to enter the Software Industry has historically been extremely low. While costs have risen in recent years, the rise has been related to incidentals, most specifically artwork in games. A comparison of a modern computer game like Starcraft II with a game from five years ago, shows that there is far greater detail on the screen in the newer product.
For an example of the low entry costs for the software industry, consider the game Myst. It was the product of two brothers, and became a bestseller.
For the purposes of this essay, Globalization is the process whereby goods, ideas, and concepts are spread over larger and larger geographical areas, to be precise, the effect of Disruptive Technological Change. The first wave of Globalization came with the invention of language by our ancestors in Africa. Yes Virginia, Language is a technology.
Language allowed communication of concepts to others, which was impossible before. Communication allowed one member of a tribe to communicate what he or she had learned to another member of the tribe, or a tribe to communicate what it had learned to another tribe.
Another wave of Globalization came with the invention of better sailing ships, which allowed regular trade over longer distances, and the colonization of new lands. A further wave came with the invention of the printing press, which lowered the cost of book ownership, as both Poe and Luther both bemoaned in the quotes above.
The common feature of each wave of Globalization is Disruption. We suspect that the invention of language allowed our ancestors to better survive and reproduce, because there is no species of homo that doesn’t use it. We know that better sailing technology caused disruptions in the countries that adopted it, if you read old accounts you will see complaints about the Nouveau Riche who made their fortunes with the new technology. We know that increased access to written matter enabled advances in education, and another new class of Nouveau Riche, and that it also enabled Science and the other Arts to grow.
There are many other examples of Globalization, such as the adoption of steam driven ships, and the improvements to those ships such as the adoption of the high pressure boiler, the turbine, and other systems, and later the replacement of steam with Diesel powered reciprocating engines. Each new change brought greater efficiency to the spread of goods and ideas. The Internet in it’s many forms, is just another example of Globalization, and possibly the most efficient one yet.
This term is a misnomer. It is an attempt to include Copyrights, Patents, and Trademarks under one heading. Another term commonly used is Intangible Property. The issue with attempting to link Copyrights, Patents, and Trademarks is that the three concepts serve widely different purposes, and are covered by widely differing legislation. The World Intellectual Property Organization is a United Nations agency which exists as ‘one of the 16 specialized agencies of the United Nations. WIPO was created in 1967 “to encourage creative activity, to promote the protection of intellectual property throughout the world.‘
The WIPO originally existed to convince the countries who are members of the United Nations to adopt ‘One Size Fits All’ Intellectual Property regimes, and was driven by Corporate Interests. This has changed recently, which is why the Anti-Counterfeiting Trade Agreement is being negotiated outside the WIPO.
The biggest problem in attempting to develop consistent worldwide laws in any field is that each country’s interests are different. One example is the United States, which has a well developed Film Industry. The Film Industry in the U.S. employs a lot of people, and earns a lot of money. Therefore the United States would like to develop stronger protection for this important domestic industry. This may not be in the interest of India, which has it’s own well developed Film Industry. Laws that benefit American Industry, may be damaging to Indian Industry (or the Canadian Film Industry for that matter).
A corporation is an institution that is granted a charter recognizing it as a separate legal entity having its own privileges, and liabilities distinct from those of its members.[1] There are many different forms of corporations, most of which are used to conduct business.
This is another definition that is true, but not complete. Corporations are not human. They therefore are not moral. Employees of corporations may be moral, or they may not be, just like anyone who you interact with. As an aside, I recommend the book Snakes In Suits for a rather interesting study of sociopaths in the corporate setting.
Whether or not individual employees are moral or not, as stated above, corporations are amoral. The only interest a corporation has is Profitability, which can lead to Profiteering. The actions of a corporation depend upon the ability, intelligence, foresight and judgment of management.
For example consider the three largest American automobile manufacturers. For years all three of them opposed in increase in the minimum fuel economy laws in the United States, which are known as the Corporate Average Fuel Economy regulations. This opposition is documented by congressional testimony by senior management from all three companies, and when recently the price per barrel of oil skyrocketed, they were unprepared for the fallout. When the oil price jump was followed by the economic meltdown, further depressing the sales of their products, two of the three had to file for bankruptcy to stay in business.
Management of a corporation is supposed to be responsible to the owners (shareholders in the case of publicly held companies, which all three of them were). By filing for Chapter 11 bankruptcy, Chrysler and General Motors destroyed their shareholders equity stake, causing huge loses of money. Losing your investments is not in the interest of shareholders, which is one of the reasons that the U.S. Government forced top level management to resign as part of the government bailout which kept the companies in business.
In theory corporations are supposed to be responsive to their customers. Under economic theory, if the corporation hurts the customer’s interests, the customer will act in their own self interest, and find another supplier of the good or service required. In some cases this is not possible because the good will only be available from one corporation, one example being a musician who is under contract. In other cases, the corporation may have managed to monopolize it’s market, such as Microsoft did in the United States, which lead to the United States Government charging the company under the Sherman Anti-Trust Act.
Consumer Protection Legislation is sometimes enacted by governments. Curiously companies almost always oppose such measures. By opposing these measures, the corporation is showing it’s lack of respect for it’s customers. Note that Anti-Trust legislation is technically not consumer protection legislation, as it also functions to protect other corporations from predatory practises.
Many of the companies involved in the various industries that use copyright law are publicly traded companies. They operate under a variety of management systems, and have shown a variety of coping mechanisms. In some cases, such as Apple Inc., the company appears to be consumer oriented. While Apple holds a majority share of the MP3 player market, the company is constantly evolving it’s product, adding capabilities and features which make the product more valuable to the consumer.
Other companies, and their trade associations, instead attempt to avoid change of any sort. To quote Jack Valenti, the past President of the Motion Picture Association of America, in his testimony to the U.S. Congress about Video Cassette Recorders:
I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.
The VCR was a typical disruptive technology. It allowed the consumer to watch what they wanted, when they wanted. It also opened up a market for low budget productions, as it was cheaper and simpler to produce. The later introduction of inexpensive camcorders opened this market up further, by lowering the costs of video production even more.
Jack Valenti was wrong. The VCR ended up being a huge boon to the industry, which soon relied upon sales of prerecorded tapes for much of it’s profits. The industry later switched to the Digital Video Disc standard, which offered even more advantages (more durable, smaller, better picture quality). DVD lowered the cost of entry into the market further. It is possible with relative inexpensive equipment to produce a feature length film, like Hanna Sköld’s Nasty Old People, and Nina Paley’s Sita Sings the Blues. Both can be legally downloaded from The Pirate Bay, both Hanna and Nina are using it as a distribution mechanism.
Every Disruptive Technology has caused a reaction like Jack Valenti’s by the Corporations involved. Artists have also fought these new means of production and/or distribution. In a submission to Congress about the new-fangled phonograph John Philip Sousa, the great American Composer and Conductor said:
These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.
In closing this section, there is this really neat online comic, which addressed the hypocrisy which one sometimes meets in dealing with Corporations
Corporate Hypocrisy
And yes, the MPAA, an organization which constantly complains that it’s losing money because of copyright infringement, was guilty of copyright infringement. One of the authors of the software had to use the Digital Millennium Copyright Act to force the MPAA into compliance. Isn’t that wonderful?
3) Boy Are You Long Winded
Yes, this is taking a long time. I hope that you did as I suggested, and got a beverage. The problem is of course, that I do not know what everyone who reads this will know and understand, so yes, the first part is boring. It’s also necessary.
The remainder of the article is in Part 2 – I’ve just found out that Word Press doesn’t like 9000 word posts
Regards
Wayne Borean
Tuesday September 7, 2010
An Explanation Of My Views On Copyright Part Two
Posted on September 7, 2010 by Wayne Borean
4) The Explanation
This is the fun part – I get to tell you my conclusions, and how I have reached them. I don’t expect everyone to agree with me. While I’m egotistical enough to believe that I’m always right, I’m smart enough to realize that many other people are just as egotistical as I am.
But here I have a chance to convince you, so here we go. Part of this may seem repetitive, but an argument is like a wall made of bricks. Without the ones at the bottom, the top collapses. I will provide links to material available on the internet, and also links to places where you can purchase materials that aren’t.
So, why do we have copyright?
The general explanation is that it protects creators. This is partially true, and quite frankly that it does so at all, even as imperfectly as it does is an accident. Copyright exists because a Corporate Lobby in England wanted protection. The original draft of the legislation was in effect a corporate wish list.
But the legislation changed. Most people have no idea what England was like in 1662 when the Licensing Act of 1662 was enacted. During that period of time, the nobility controlled a large portion of the country. One meaning of the word Privilege is:
the principle or condition of enjoying special rights or immunities
The Nobility was ‘Privileged’ under that definition. So were large trade groups, like the Stationers’ Company. And thereby hangs a tale. The original draft of the legislation that became the Statute of Anne became modified in Parliament. There is no documentation that I know of that explains why it was modified, but I can guess. Privilege. Someone who had interest in changes in the law, was able to convince enough members of Parliament that the changes were advantageous.
Possibly they pointed to the works of the great playwright William Shakespeare (1564-1616) as an example. Under the Licensing Act the printers could print and sell Shakespeare’s work without compensating the writer’s heirs. Of course under the Statute of Anne they could as well, since it would have been no longer protected.
In any case, someone got to the politicians, and made an argument that was convincing enough that changes were made. We can surmise that the Stationers’ Company was less than happy with the changes, after all, they now had to pay for the privilege of publishing a work, which they did not have to do before. This lead to another disruptive change – a class of professional (for pay) writers soon developed. Note that there is other legislation after the Statute of Anne that encouraged these changes, this is a simplified explanation.
From this point on I’m going to be skipping a variety of material, such as when exactly copyright was extended to cover the other materials it now covers. I’m less interested in the technical details, than I am in the sociological effects of copyright law.
The Statute of Anne was only effective in England, but other countries introduced their own copy control regimes. Many of these laws were implemented to control the output of printers and writers, so that ‘dangerous’ things wouldn’t be published. Often books had to be approved by official censors, whether political or religious. This has changed in most countries, though there are still some that try to limit expression. One historical example of the attempt to limit expression was the Soviet Union requiring the licensing of photocopiers.
An Artificial Construct
All laws are artificial constructs. In theory each law is supposed to benefit society. In practice each law limits the actions of a portion of society. Take for example the seat belt laws, which most jurisdictions now have. A requirement to wear a seat belt is an impingement of the right of the driver and his/her passengers to choose.
That seat belts save lives is generally not debated, almost everyone agrees that they do. They also reduce injuries in accidents. But should the government be able to tell you how to operate your motor vehicle?
The general consensus is yes. By reducing injuries and deaths, seat belt laws have reduced societal costs.
Property is an important concept in western societies. The ability to buy and sell is the basis of capitalism. Various laws and regulations often put limits on the ability to dispose of or purchase property, as anyone who has ever purchased a house will attest.
Intangible property is a relatively new concept, which did not exist prior to the adoption of copyright as a concept. While trademarks had been in use since Roman times, registered trademarks are a relatively recent concept.
In a discussion on patents one of the participants said:
At the same time – you do neglect the aspect of ownership in everything that you have said. I was just pointing that out (amazing how often I have to do that with the anti-software patent crowd – which reminds me, I am still waiting for some basic answers from you on the other thread).
Ah, yes, ownership. An interesting concept. The problem of course being how to define ownership. Consider J.K. Rowling – a couple of years ago she claimed that nothing had influenced her Harry Potter novels, and that she, and she alone owned all of the ideas and plots in them. But when the first one was published, myself, and thousands of others noted the similarities with Tom Brown’s School Days which was published in 1857, and is possibly the first boarding school novel. There are differences of course, Draco Mallfoy is a lot like Harry Flashman, but not the same. In one book the school game is cricket, in the other it’s quidditch.
So how do you determine who owns an idea? Can someone own an abstract (not physical) construct? For that matter, who owns air?
Why Does This Affect Copyright?
Simple. Copyright is an relatively recent artificial construct, which made an intangible idea into property. This happened as society was attempting to deal with a Disruptive Technology. It was also a response to a lowering of the high cost of making copies (previously scribes had hand copied manuscripts – which was extremely labor intensive). But the costs were still high, and the Stationers wanted to ensure that they would get a payback on their investment.
All laws are attempts by society to deal with a disruption of some sort. Seat belt laws were an attempt to deal with the rising death toll caused by the widespread adoption of motor vehicles. Copyright laws were an attempt to deal with the new fangled printing press. Gun laws are an attempt to deal with the urbanization of society. Owning and using a gun in the far north is one thing, owning and using a gun at Yonge and Queen in downtown Toronto is another.
Hacks of Copyright Law
There have been a variety of attempts to ‘hack’ copyright law to serve other purposes. The most famous is the General Public License, which was designed to ensure that computer code could not be made proprietary. To most artists this is a weird concept, however in the programming world it was extremely important. Prior to the GPL, it was possible for a company to take work that had been put into the public domain, use it in a product, and not give back the changes they had made.
The General Public License had a huge advantage both for the programmers working on the project, and for companies that used the project. Take IBM and Oracle for example. IBM employs programmers to work on the Linux kernel project (Linux is the basis of the Android phone software). Oracle does the same.
Why would they do this if they couldn’t keep what they’ve done? Simple. No one else can either. Any work that IBM does helps Oracle. Any work that Oracle does helps IBM. Without the enforced sharing requirement of the General Public, neither would benefit.
Note that this blog uses the Word Press software package, which is licensed using the General Public License. Curiously the blogs of Barry Sookman and James Gannon also use Word Press, even though both of them have declared in the past that ‘FREE’ is not a good thing.
The Creative Commons licenses are another attempt to hack copyright law. I use the Creative Commons Canada License 2.5 for all of the writing on this site. If you read it, you will note that you can copy or modify anything on this site, and publish yourself. My only requirement is attribution. In other words you must either list me as an author, or as a source.
The Internet is another disruptive technology. It has made communications easier and faster than ever before, but by doing this it has caused damage to a wide spectrum of existing systems. Consider the post office for example. I had to mail a letter today. It’s the first time I’ve mailed a letter in a long time. I’d forgotten how bad the glue on an envelope tastes.
It has also hurt brick and mortar stores. You can purchase nearly anything online, including Books (Indigo), computers, musical instruments, craft supplies, etc. A friend of mine who lives in Mississauga bought a harp – it was shipped to him from Pakistan and arrived in less than a week. I cannot think of a single musical instrument store in Southern Ontario that stocks harps.
Curiously neither the Music nor Film industries seem to be concerned about this.
And of course if you know where to look – or use a search engine – you can find just about every song or video you could want in electronic format somewhere, and download it without paying anything. Is this bad?
Yes and no. Let’s look at music first.
Above I mentioned that the music industry comprises of many diverse elements, and that the large associations only represent a small portion of the industry. The large corporations represented by the RIAA/CRIA are involved in promoting artists and distributing music. This they do by taking a large proportion of the money, as I wrote in a previous article, Corporate Copyright Scofflaws 0006 – The RIAA Member Companies. They have done this for a short period of time historically – the phonograph was invented in 1877. For all of human history prior to this, music could only be listened to live.
Due to the costs involved in a production run of phonograph records, the recording and distribution industry assumed a gatekeeper role. If an act was different, or didn’t fit a popular genre, they wouldn’t get a record deal. One act that was negatively affected was the Beatles, who were considered so strange that it took them a while to land a recording deal. Phonograph recordings are also commonly called records, or vinyl (from the vinyl material use to manufacture it).
Variations on the phonograph were in common use up until the 1980s, but other technologies had come into use. Reel to Reel tape recorders came into use in the 1940s, and offered a lower cost method of making small runs. An uncle of mine was fascinated with Eastern Religions, and ordered reel to reel tapes from India during the 1960s. Reel to Reel prerecorded tapes were more expensive than phonograph records, but unlike phonograph records it wasn’t necessary to print large quantities. If you had two machines, and a patch cord, you could set up in business yourself.
The later development of cassette tapes caused another change. Reel to Reel had never been able to attain widespread penetration of the market due to costs. The Compact Cassette system was far less expensive, and smaller. You could install a cassette player in a car, something that was not feasible with either phonographs or reel to reel players. The problems with cassettes was that you could also, HORROR of HORRORS record on them, giving birth to the mix tape culture. Curiously artists didn’t notice a decline in their revenues from this.
Cassette Tapes also dropped the cost of entry into the market for artists, and home recording by independent acts started to blossom. For example the band Boston has done all of their recording in a home built and designed studio, something that would not have been possible much earlier.
The adoption of the cassette also started the unraveling of the RIAA/CRIA member companies position as gatekeeper. Filk is one of many alternative music styles. Filk is not widely popular, very few Filk Albums were ever distributed on vinyl. The only two that I know of were recored by Leslie Fish and the Dehorn Crew. The first was Folk Songs for Folk Who Ain’t Even Been Yet in 1976, followed a couple of years later by Solar Sailors.
With the widespread adoption of cassette tapes, and the lowered cost to market entry, a wide variety of small Music labels sprang up, including Off-Centaur, Firebird, Wail Songs, and others, to record filk, music that the larger labels were not interested in. The same is true of other alternative music styles.
The next major disruption was caused by the Compact Disc format in 1981. Initially the RIAA/CRIA member companies considered Compact Discs not copyable, however they soon discovered that the continually declining price of computer technology meant that nearly every home with a computer could copy their own discs.
The Compact Disc also lowered production costs of the alternative labels, once again causing an expansion of the total number of companies producing recorded music. While this was occurring the large, mainstream industry was undergoing a series of mergers and acquisitions, which cut the competition to find new artists. This caused mainstream artists to look at the alternative labels, or at doing their own production work. It also caused a new business model to arise – the limited run pressing operation.
The internet is the latest, and most radical shift yet. In effect the huge costs that once justified the major labels existence have evaporated. The major labels aren’t happy with this change, as it affects their profitability. The same issue also affects other industries, like the film industry.
While this is bad for the major labels, the artists now have considerably more freedom than they ever had before. I know of a variety of acts who are using the internet to reach out to new fans, fans who they would never have been able to reach before. Acts who could have never made a living in music, are now doing so. An example is Tom Smith, ex-banker, now full time musician. Yes, Tom is a relatively small player, but he’s doing what he loves.
Is it bad that Tom can make a living using the Internet? To quote Michael Lynton of Sony Pictures, ‘I’m a guy who doesn’t see anything good having come from the Internet.’ I’m quite sure that Tom would disagree with him. So would Trent Reznor of Nine Inch Nails, who puts all of the band’s music up on it’s website as a free download. If you like it, you can order CDs and other things.
So there are advantages and disadvantages. Let’s go further.
The Question
As a society we have to ask ourselves a question. Do we want to lock ourselves into an outdated business model, or do we want to move forward? This isn’t solely about making money (though some people will tell that it is). But while it’s not wholly about money it is about money. As mentioned above, musicians generally don’t make any money from album sales through the major labels. For those who don’t believe that article, because I wrote it, I’m going to provide some extra links.
Record Labels Screwing Over Musicians Is Nothing New; The Buddy Holly Edition
The Problem With Music by Steve Albini
Lecture at Middle Tennesee State University, March 12, 2004 by Steve Albini
The Internet Debacle: An Alternative View by Janis Ian
My Hilarious Warner Bros. Royalty Statement by Tim Quirk
Pirated by iTunes, Artist Turns to BitTorrent
Record industry faces liability over ‘infringement’
Itunes Music Store – Facelift for a Corrupt Industry
Rip Offs – Article for both sides
Band Sues Record Label for Digital Music Distribution Ripoff
The Story of Be Bop Deluxe’s Bill Nelson and How His Record Label Ripped Him Off
C2M2 Music Rip Off Northwest Musicians
Q & A with Trent Reznor of Nine Inch Nails
For those who aren’t involved in the industry, yes, musicians do complain this much about their labels. Well no. Actually they complain more in private. So why do they sign with labels? Because for a long time, they had no choice if they wanted to get their music heard by more than their friends and family.
Are the labels really that bad? I don’t know. I’ve never had a recording industry contract. I can only go by what I’ve been told, most of which I was asked not to repeat. And what I’ve read. The stuff above is publicly documented. Sure, some of the court cases are still in process, and it’s always possible that the label will win. That is not the same as saying that they were in the right. For that matter they could be in the right, and still treating the musicians like dirt.
If you search, you’ll find the other side represented. The article written by Michael Geist was responded to by CRIA lawyer Barry Sookman, and Barry claims that what Michael wrote is wrong. Again, the case is still in process, may take years to complete, and Michael didn’t help by making a basic math mistake.
If you read the Amanda Palmer interview, yes, she complains about her label. She also mentions how she was still able to make money, by being creative. The point being, that the vast majority of artists make little or no money from their recording contracts. Industry reps may try to deny this, but it’s true. In this particular case, copyright is not serving the artists.
And of course the Big Four record labels aren’t Canadian. Canadian law is supposed, in theory, to be written for the benefit of Canadians. Bill C-32 appears to have been written for the benefit of the Big Four. How exactly this is in the best interests of Canadians, James Moore is not willing to state. In fact I’ll go so far as to state, that based on my conversations with him, that he doesn’t have a clue what he’s doing, at least in this case. He may be a perfectly nice guy, but having someone who appears to know so little about a subject writing legislation for it is problematical.
Similar legislation was introduced in the United States in 1998. The Digital Millennium Copyright Act has some of the same features as Bill C-32, though there are a lot of differences. The DMCA was supposedly written to bring copyright law in the United States into line with the 1996 WIPO Copyright Treaties, however it is a defective implementation (for example the WIPO treaties state that the choice of using DRM lies with the author, the DMCA doesn’t).
Much ink was wasted at the time that the DMCA was drafted claiming that it would ‘protect the artists.’ If you read the DMCA though it clearly is not aimed at protecting artists, instead it is aimed at protecting the Big Four labels. In simple terms, the legislators in the United States lied to the artists, and to their fans as to what the DMCA was designed to do, and what it could do.
So what do we need to do with our copyright law?
First, we have to realize that there is more than one problem in play. Some issues are:
Computers have made copying a trivial task, which destroys an older business model.
The internet has made distribution a trivial task, which destroys an older business model.
Copyright has to benefit the Canadian people as a whole.
The problems that artists are having are more due to consolidation (mergers) of the record labels than to copyright.
Copyright does need to be changed to acknowledge new technologies, but the WIPO Treaties are 14 years old, do not reflect the current situation, and therefore we should not ratify them
Copyright must handle for profit actions differently than not for profit actions.
Another issue is the CD Levy. A lot of independent artists I know get screwed by the CD Levy, because they can only afford short runs. Unless you are running 300 or more discs, it isn’t worth the time and effort to use the system to buy discs without paying the levy. This includes the vast majority of Canadian artists.
SOCAN is another problem. The way the law is written which caused the formation of SOCAN, it is impossible for an artist to opt out. Take for example a musician playing the bar scene. The musician can be using all of his or her own music, but SOCAN still collects, and no, the artist won’t get the money. It all goes to the big names.
Another part of the problem is the Canadian Content Regulations. Laurel Russwurm wrote three articles about this, which are here, here, and here. Laurel however missed a couple of points. Maybe she’s younger than I am, and doesn’t remember the debates, but I do. One of the reasons that the Canadian Content regulations were implemented was because of Payola. For those not familiar with the term it means:
Payola, in the music industry, is the illegal practice of payment or other inducement by record companies for the broadcast of recordings on music radio, in which the song is presented as being part of the normal day’s broadcast.
In effect, by ‘paying for playing’ as it is also known, the record companies used paid for airplay as part of their marketing system. This of course locked out the smaller labels, who were unable to pay, and was an anti-competitive act. By legislating Canadian Content, the government was able to lock out the larger foreign owned firms from a portion of the market. This allowed a variety of Canadian artists access to radio time that they would not have had otherwise.
The situation has gotten worse since that time. Because of mergers between record labels (also mentioned above), there are now four absolute behemoths. None of the Canadian owned labels has the money to compete.
Laurel has noted that many acts no longer use the Canadian Content label system on their work. I don’t know how accurate her report was about the reasons. Whether she is correct, or the artist didn’t know about the labeling system is immaterial. Part of the issue is that the current labeling system doesn’t function properly.
And now I’ve got to explain why it doesn’t function. The Canadian Content regulations cover four areas:
Artist – if the artist is Canadian – 25%
Songwriter – if the songwriter is Canadian – 25%
Recording Location – was the music recorded in Canada – 25%
Production Location – was the disc manufactured in Canada – 25%
So we have a situation, where a singer/songwriter wrote a song in Canada, recorded it in Canada, and manufactured it in Canada. 100% Canadian Content? Um, know. His songwriting partner is an American who lives in Canada. This happened to Bryan Adams. FAIL.
Or consider the hit movie Juno. Filmed in Canada, using Canadian talent, but financed by Americans, and the setting was supposed to be Minnesota. FAIL.
Or a Canadian singer/songwriter writes, and records their work in Canada, but uses a disc manufacturing operation in the United States. This happened to a friend of mine, who doesn’t want to be mentioned. FAIL.
One of the big issues hurting Canadian artists is a dysfunctional Canadian Content system. If you sneeze, it’s no longer 100% Canadian. Because of this I think that the Canadian Content rules need to be modified, preferably after a consultation which does not allow the corporations to file submissions. Corporations can’t vote. They shouldn’t be able to file submissions. Whatever rules we pick, have to be simple, and have to make sense. I know this will make Barry and James unhappy, but hey, I’ve been making them unhappy for a while, and I’m not going to stop now.
Second, the Canadian Content regulations require 35% of airtime be Canadian Content. Originally it was set at 25%, then raised to 30%, and finally to 35% in 1998. Is this enough? I don’t think so. I think that it should be 50%. There’s a lot of home grown talent who would love to do things, but can’t, often because as Laurel points out, the minimum is also the maximum. If you listen to the radio, and keep track, exactly 35% of what is played is Canadian Content. No more, no less. It’s the same on TV.
Newscasts, sports shows, etc. are considered Canadian Content. Should they be? What if the Toronto Maple Leafs are playing the Florida Panthers (and yes, I know that a lot of Canadians winter in Florida). What if the newscast is covering the American Presidential elections? What if…
In Closing
Canadian Copyright law does need to be updated for the Twenty-first Century. The problem is that the WIPO template that the government used is outdated, and does not fit Canadian interests. It is heavily slanted towards an older business model which is not functional in the present day, and does not protect artists. Four major issues are exceptionally important.
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