Pro-creator zealots

The Creator’s Copyright Coalition (note the singular) is a Canadian organization attempting to advance the position of the creator, as opposed to the user and also as opposed to the corporation or “rightsholder,” in copyright law. The impression they leave is one of annoyance that “users” have hijacked the discussion of copyright reform outside the realm of corporations. There is of course an acknowledgement here or there that creators are also users, but if push came to shove, the Coalition appears to believe that their members can and will side with one camp, not the other.

An expression of a hardass creator perspective can be found in John Lorinc’s article “Copyright Reform: The Neverending Story” (Quill & Quire, April 2005, not onliné).

[F]or several years now, the official line out of Ottawa is that copyright law must “balance” the rights of creators/producers against those of users…. Never once has the balance imperative been scrutinized as a valid organizing principle of copyright reform.

That’s because the Supremes issued a statement on the importance of balance, not the government. It would be open to scrutiny if the government altered the law to state, notwithstanding the ruling, that balance is not an organizing principle.

Instead, the government talks about the self-evident need for balance, as if it were some kind of readily determined end point…. [S]hould Candian playwrights subsidize the attainment of [the] cultural objective [of learning about and performing Canadian drama]? No. Yet that’s what exemptions propose[d]. Wouldn’t it be easier… to set up a Drama in Schools Fund…? One can make precisely the same arguments for exemptions for the perceptually impaired….

And Lorinc goes on to do more or less that in an (ill-copy-edited) report for the Coalition, Creators and Copyright in Canada (under “Exemptions”):

[T]here’s nothing to preclude collectives and users who require some kind of “discount” – e.g., those with perceptual disabilities – to work out an accommodation that achieves the same result, i.e., a voluntary licence with little or no fee.

A journalist and critic cites her strange experience with that particular exemption. She discovered one of her books had been made into a “talking book” when she heard the recorded version had been nominated for a literary award offered by the Canadian National Institute for the Blind. It was the first she’d heard of the translation into audio form. No one had asked her for permission, nor consulted with her on editorial issues such as the choice of narrator, biographical details, etc. In fact, she was told she needed the assent of the publisher to obtain a copy. This anecdote illustrates that an exemption – even a well-intentioned one – comes to be treated as more than just an economic benefit, and so encourages certain assumptions about what can be done with, and to, those copyright works subject to user-oriented provisions. “An exemption is not a license to take,” says the author, who is aware of other such cases.

Well, that comes across as rousing and outrageous, which was clearly the intent, but let’s unpack. We’ll start with the exemption itself (at §32[1]), which states:

1. It is not an infringement of copyright for a person, at the request of a person with a perceptual disability, or for a non-profit organization acting for his or her benefit, to

   1. make a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability;
   2. translate, adapt or reproduce in sign language a literary or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability; or
   3. perform in public a literary or dramatic work, other than a cinematographic work, in sign language, either live or in a format specially designed for persons with a perceptual disability.

2. Limitation: Subsection (1) does not authorize the making of a large-print book.

3. Limitation: Subsection (1) does not apply where the work or sound recording is commercially available in a format specially designed to meet the needs of any person referred to in that subsection….

So here we go.

• If you leave accessibility to a “voluntary licence,” then what you’re guaranteeing is continued inaccessibilty. If you wait for cheapskates and grumps to get around to accessibility, it’ll never happen. (The unnamed author here seems to be both.) The author’s Charter right to free expression in the original book does not trump the disabled person’s right to equal treatment on the basis of disability through provision of an alternate format. And in any event, turning down the creation of more of exactly the same speech, in the form of an alternate format of an existing work, barely constitutes free speech at all. The exemption does not force the provision of accessibility, which is merely authorized.
• The unnamed author seems to be under the misapprehension that copyright law gives her unfettered license to prevent copying that she doesn’t like. I certainly hope she didn’t use a Xerox machine to duplicate somebody else’s work during the research for her book.
• A talking book is not a translation. Copyright holders have the right to authorize translations, which are derivative works, under §3(1)(a). The counterexample here – and it is a curious one, apparently unique to Canada from what I have read – is sign-language interpretation, which really is a translation the author cannot prevent. (It is inapplicable in the current case.)
• The exemption indeed does not require anyone’s permission or notification. Noninfringing uses never do. You don’t need to advise people when you’re going to do something legal.
• No, you don’t get to choose the narrator. I view this as a weakness, but it isn’t the kind of thing you can put into a law. “Biographical details”? What is that all about? All they have the right to do is read (actually read and interpret) what’s already in the book. You don’t get to pad out the book post-facto.
• The owner of the copyright in the book owns the copyright in the alternate format. It is the author’s fault if she negotiated away the copyright of the book, even for otherwise-agreeable terms. This is the sort of thing that happens after you make a mistake like that. A strict reading of the exemption requires that the alternate format be limited to people with disabilities, but it does not actually say that providing it to a nondisabled person and/or the copyright holder is an infringement.
• This exemption certainly “is not a license to take.” Nothing was taken; making that claim is like telling us that downloading music is “stealing.” The author’s hardcopy book is unaffected in every respect. It continues to exist and continues to be on sale according to the publisher’s terms. The alternate format does not displace a sale or other legal usage of the hardcopy book because the disabled person cannot use or read it (QED). If the publisher or the author wished to preclude the use of the exemption, they could have put out their own commercial version. (Read the last section of the exemption.)
• Lorinc seems to be insinuating that producing a talking book violates the moral right of the author (“certain assumptions about what can be done with, and to, those copyright works” [emphasis added]). The creator has the ability to produce their own alternate-format version. If you don’t do that, somebody else can. It is a means of addressing market failure (your publisher didn’t pony up). It acknowledges the fact that physical media cannot be made intrinsically accessible for most people with perceptual disabilities without creating another artifact.

Now, if Lorinc or the Coalition or the unnamed malcontent journalist/author really want to go to town on the issue of alternate formats, here are some starting points:

• Blind consumer groups, chiefly the Alliance for Equality of Blind Canadians, were livid at proposals by the Canadian Library Association and other incumbents to almost completely centralize the production and distribution of alternate-format materials in the CNIB, a much-untrusted organization that strives to be a monopoly. (Some organization in Quebec would get the rights in that province. There’s always a sop to those passé two solitudes in proposals like this, in which it is taken as axiomatic that Toronto can never produce acceptable French.) The fix was in from the beginning in those “consultations,” based on the several documents I read.
• In a similar vein, the fix was in to limit government funding of alternate formats to nonprofits. This makes no sense whatsoever, but limiting the right to carry out production to nonprofits is already in the exemption, so at least there would be an attempt at consistency.
• People on the Blind Canadians mailing list regularly call not only for the repeal of the copyright exemption but for a law that would force all publishers to produce alternate formats for everything.
• The current exemption does not touch large-print books, because publishers have somehow managed not to be incompetent and have turned that into a viable market. You’ve really only got two options here:
  1. Accept that exemption to the exemption and STFU already about other alternate formats. Publishers can produce those anyway, and if they don’t, the exemption redresses the failure of the market to do so.
  2. Remove the exemption and leave everything up to production by publishers or licensed third parties.
• Did you know that producing captioned or described versions of audiovisual media is illegal without advance permission? (And did you know that voicing a sign-language alternate format and then captioning it are two acts of infringement?)

And incidentally, I am now in the third year of waiting for this vaunted CNIB to produce an alternate-format version of my book, which they admitted was the best-marked-up work they had ever received. They were also a bit surprised when I reminded them that I hold the copyright and that they could not prevent me from receiving a copy of the alternate format. (And heck, wasn’t the CNIB nominating one of its own productions for a talking-book award in the other writer’s case?)

In fact, the whole system’s broken. It just isn’t broken in the ways Lorinc or his unnamed author, who obviously aren’t even passingly familiar with the issues involved, seem to believe.