Notes from copyright conference

Today, I sat through a grueling and overly-warm but illuminating and enjoyable conference on copyright, specifically Canadian copyright issues as they pertain to music. The TIP Conference takes place each year; today it carried the title “Sound Bytes, Sound Rights: Canada at the Crossroads of Copyright Law.”

Whilst waiting in line, I saw the unmistakable visage of Michael Geist sweep into the room. As an acolyte of his Toronto Star columns, I later made sure to interrupt his setting up his PowerBook (reminding myself how much I hate it when people do that to me) to blurt “You’re Michael Geist! It’s like meeting the Beatles. I read your shit religiously!” He showed next to no reaction, and a couple of other attempts to chat during the rest of the day evinced palpable disinterest.

Sorry, Mike, but I’m a fan of yours even if the feeling ain’t mutual.

Later, to the audiencemembers seated around me, I proposed a (teetotaler) drinking game for utterances of “illegal downloading”: Raise one finger if you hear that by itself, two if it’s in the context of music. It only happened once!

En tout cas, my notes follow. Nothing is a direct quotation unless it’s surrounded by quotation marks or introduced as such; paraphrases that differ markedly from the speaker’s actual words are marked as such. I will expand these as other links become available. In theory, audio and video from the conference will be posted shortly. Not all questions and answers – not even all my questions and answers – are listed here. I will try to fix that in coming days. I’m just trying to get the basic notes up pronto.

Sound Bytes, Sound Rights: Canada at the Crossroads of Copyright Law

Notes by Joe Clark, 2005.02.11

George Vona opens. Laurence MacPhie gives a few remarks without identifying himself. Associate dean of law then delivers a word or two. Of Geist: I’d hear about a new case and wonder what Michael would have to say about it. I’d turn on the radio and there he’d be saying it. Later I’d be having dinner and there he is on TV saying it again. I move on to other things and the next day, there he is in the Toronto Star saying it again.

Michael Geist: “Canada’s Choice: Copyright Culture and the Internet”

“You’d think that we’re calling it today ‘outdated’ copyright law or ‘antiquated’ copyright law [as nearly everyone prefaces it]…. Another way to put it comes from a noted copyright scholar Tom Cochrane, who noted that ‘in 1908 this copyright law came into being. And it hasn’t been modernized.’ ” (Richard Pfohl of CRIA got up to the microphone later and complained at length that Geist misquoted him there and has done before.)

His Canadian copyright history lesson:

1886

Imported from England.

1906

Minor amendments.

1908

Another minor amendment.

1915

Infringement became a criminal offense.

1921

We got our own copyright law.

1923

Minor amendments.

1931

First moral-rights provision and first exception.

1935

Minor amendments.

1936

Copyright Appeal Board created.

1938, 1950, 1966–1967, 1967–1968, 1968, 1969, 1970, 1974, 1975, 1976, 1984

Minor housekeeping amendments.

1987

Import restrictions.

1988

Phase I of reform process, with explicit moral rights; adding industrial design, secondary infringement; exception for computer programs; Copyright Board of Canada created. Canada signed Free Trade Agreement; rebroadcasting became an infringement.

1990, 1992

Minor amendments.

1993

Extended protection; changed registration, among others.

1994

Added performers’ rights.

1995

Minor amendments.

1997

Phase II – private copying, exclusive book distributors, statutory damages, neighbouring rights, a few more exceptions.

1999, 2001, 2002

More amendments.

2002

New-media retransmitters excluded from retransmitter definition. Also in 2002, Théberge noted “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”

2004

Failed attempt to extend term of protection for deceased authors.

In last 18 years, there has been more copyright reform than in the last 120 years. “I think it is fair to say that we are in the midst of an 18-year copyright-reform process.” But not in the middle of it, as that would imply a 36-year process.

“Two roadmaps we can look to to get a sense of where it is we might be going”:

1. Section 92 report talked about short-, medium-, and long-term issues. Some medium-term issues have become short-term issues, “but I still think it provides a roadmap.” That’s for the next 18 years, he says.
2. For the next 18 months, the Standing Committee on Canadian Heritage published a report in May 2004. April 20, 2004, 9:15–12:00, the Committee dealt with WIPO issues. And used half-day sessions for each of many other topics, which, Geist implies, is laughably short for such complex issues. Three of their recommendations: WIPO ratification (recommended); ISP notice and takedown (recommended); extended licensing for Internet materials used for education.

WIPO ratification

Anticircumvention is the most notable component. He notes three layers of protection: Traditional copyright law; technologies like digital locks; and one more, anticircumvention layers that protect the technologies themselves. Region coding for DVDs and printer cartridges are examples. The potential is there for privacy invasions, since it becomes impossible in some cases to read anonymously. Security breaches in DRM are an issue. Adding legal protection to DRM has implications for free speech, as in Felten’s attempt to present or publish information on breaking DRM. Competition is a concern: Lexmark sued a company that manufactured generic printer cartridges. (Lexmark, Skylink, and Storagetek are Geist’s examples.) Fair-use and fair-dealing issues.

Notice and takedown

Geist quotes Richard Pfohl of CRIA as saying: “If we find out about this and send a notice to the ISP that this is happening, the ISP ought to kick that subscriber off the system.”

Pfohl later approached the microphone and vigorously denied making any such statements, and accused Geist of repeatedly misquoting him. The exact, unaltered words from the official transcript are: “As I mentioned, the peer-to-peer systems are engineered in a way to try to avoid holding the people who engineer them liable. We have to make sure these systems don’t slip through the cracks. People regularly take 1,000, 2,000, or 3,000 songs and offer them on a peer-to-peer service where they can be accessed globally by five million strangers. This is generally what happens on peer-to-peer services. I recommend that if we find out about this and send a notice to the ISP that this is happening, the ISP ought to kick that subscriber off the system. They can trace that subscriber and find out who that person is. They can find the equivalent of the actual truck that’s being used. If you can locate the truck relatively easily, that person ought to be kicked off the system, if they’re engaging in widespread infringement.”

There already is such a system for child pornography, Geist says, which requires a court order. The Committee essentially recommends a system that provides greater protection for songs than for child pornography.

CCH v. LSUC

“The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: ‘User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’ ” The Committee’s recommendation would hold that copyright owners must “explicitly consent” that material may be used without prior permission or payment.

So what to do? “In my ideal world, we do nothing…. In this case, nothing really is something. There’s 18 years of something.” We don’t need anticircumvention legislation, since the Copyright Act already forbids copying; TPMs already exist; and we already have a notice-and-takedown system; and we don’t need extended licensing, since people can agree themselves about compensation.

“So if we don’t do nothing, what then? I think then at least do no harm.” So, make sure any legislation does not apply to devices; must be tied to copyright infringement (“we shouldn’t be stopping things that are perfectly legal under our copyright system”); privacy and security protections (“in many instances, we don’t need protection for TPMs; we need protection from TPMs”); limitations for public-domain and government works; limitations for “the sight-impaired [sic], because if we stop their access, we create no access for an entire group in society”; full consumer disclosure about a product’s capabilities and limitations.

Notice and takedown: We need judicial involvement (“we can do it here too”). “For extended licensing, it is hard to come up with something that does not create harm. I think this is a harmful provision inherently.” But at least, we assume things are publicly available unless people take specific steps, like a notice or password.

“When I say ‘do no harm,’ I am saying ‘do not harm creators.’ ” Buy books, not licenses for books. Explore levies rather than lawsuits. “I certainly don’t believe the current system creates harm for the music industry, as many of you may know.”

CRIA’s member losses from 1993–2003 were $294 million, which they later said was undercounted. “But from a culture or copyright policy [standpoint], our concern is not the value paid at one step… it’s the value to Canadian artists.” Canadian artists account for 23% of the music market in Canada. 12% of the dollar value is the artist’s royalty. Hence $58.8 million a year × 23% × 12% = $1.6 million in artist royalties. “You can make that higher if you like. You can say we ought to be counting other types of things.”

The private-copying levy has generated $120 million over the last five years. It hasn’t all been paid out. DVD sales in that time have increased from zero to $105 million from 1999–2003 (just the shipment value). Today the largest seller of CDs is Wal-Mart, with a smaller catalogue. Prices have decreased 10%.

P2P systems were devised, but also iTunes, “which will sell about 50,000 songs during the course of my talk.” Today’s newspaper tells him that 47% of people surveyed have purchased songs on fee-based services, “and it coexists with peer-to-peer systems.”

• “ ‘Do no harm,’ frankly, is not a particularly saleable message.”
• We can, however, create a national digital library: Can a country digitize everything it has ever created? Essentially, yes. Google is doing something like that. Need not make all the material free, but public-domain and government works could be. Amazon does something similar to enable fair dealing already (my paraphrase).
• Government-funded research ought to be generally available, so that we wouldn’t have to pay to read research findings we’d already paid for.
• Alternative compensation systems.
• Pledge not to extend terms.
• Put the CBC under Creative Commons Canada, as the BBC wants to do.
• Take leadership in the A2K treaties (access to knowledge), so developing countries “don’t remain have-nots forever.”

“So we can do good things. In fact, we can do great things in this country.”

1987, “which was more than the start of the current round of copyright reform… was also the year that I left home for university.” On December 20, 2003, Gabrielle Hannah was born, his third child. When she goes to university in 18 years’ time, “what we don’t know is what the next 18 years will look like.” “We can do great things. We can also do great harm.” Historically, only stakeholders (or rightsholders) were consulted. “Suddenly we blink and it’s 18 years later… and we suddenly have all kinds of copyright… and all of this happened without anyone saying a word.” “I say to you that I will be silent no more. Indeed I hope that we will be silent no more.”

Q&A

I pointed out that the Canadian Creative Commons licenses are “perpetual and irrevocable,” which is not a wise model to follow in the CBC context. In particular, I said that the Creative Commons is a well-branded movement that makes bundles of rights easier to authorize, but doing so in perpetuity and irrevocably is usually too much. Geist agrees that Creative Commons has become a “shorthand” for bundles of rights and certainly agrees that something like CBC might require a customized agreement.

[I would link you to the CreativeCommons.ca licenses, but, weeks after I alerted the site owners to this fact, they are not available on their servers. Their own licenses 404! However, a PDF of a Word document – which itself 404s on that same Canadian page, but can be found at the U.S. site – lists differences between the U.S. and Canadian licenses and clearly states that “Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright)… Licence” and “the license licence granted here is perpetual (for the duration of the applicable copyright in the Work).” Irrevocability and perpetuity go hand-in-hand, but I made a mistake in my question when I stated that the licenses contain both words.]

“The Music Industry After BMG v. John Doe”

Paul Hoffert, Neil Leyton, Ronald Dimock, Barry Sookman
(the latter two were variously lawyers for BMG and the ISPs)

Hoffert

Made an off-colour joke: When he told some friends he would be appearing at the same conference as Michael Geist, his friends suggested he wear an explosive belt to the conference, presumably so he could blow himself, and Michael Geist, up. Hoffert said that, “not being of the Islamic faith,” there wasn’t anything in it for him in self-immolating, even if it took out Michael Geist.

Hoffert’s actual remarks, which start at 3:11 in the RealVideo feed, were as follows:

When some of my creative friends heard that I was coming here today and that Michael Geist would be here, they visited me and they offered me a lovely gift – it was a piece of wearing apparel. And I said, “Oh, that’s totally not necessary. What is it?” And they said, “Oh, it’s kind of a belt. And it has these, um, these explosives on it. And I said, “But I’m not of the Islamic faith and, um, there’s nothing in it for me if I self-emulate [sic] just to blow up Michael Geist.” And they said, “Well, you’re an old guy. You’ve already had your 15 minutes and all of that kind of stuff, and, you know, take one for the team.” Uh, anyway, I declined that particular offer, and I decided to be here as well.

He laments the fact that the audience already seems polarized. “There’s a fundamental problem when the lawyers start getting involved in what’s ethically right and what’s morally right and start driving those sorts of things.” Urged students here to “try to be open to the various sides of the issues.”

He gives an anecdote about the first time he learned about exemptions. “What’s an exemption? I gotta earn money” and “when I go to a bookstore there isn’t an exemption and I don’t get free books” because they’re educational. His friend told him the books he wrote were academic, not popular, justifying lower payments or none at all. Hoffert countered that his friend earned $100,000 a year from the university, whereas Hoffert didn’t have a job that would pay his rent (before joining York University, presumably).

“The Industrial Age was really a supplier-focused and a supplier-advantaged environment [that has now evolved] to an environment that is client-advantaged and client-focused.” “The fundamental issues are issues of society…. Generally speaking, the historical and prehistorical record is that societies support their creators in some way, either individually or collectively.” “We have to figure out how to pay the rent and to buy food and stuff like that.” The copyright system “allows for creators to just get by, more or less.” When technology comes along to threaten the ability for creators to earn a living, those arguments seem to be “absent of the fundamental principle of ‘How do people make a living to pay their rent?’ ” Such arguments cause creators “to get very nervous.”

“People in the industry side of it, not the creators, are really only interested in keeping their jobs… but the jobs that they have are necessary for us creators, in that we need to get our work out to lots of people.” The Web does allow creators to reach many people “directly,” but “it’s not a very good use of the expertise that we have for us to become marketing people and promo people and all the rest of it.”

Wants the market to ensure “that the entire supply chain of music content, if you will, evolves… perhaps radically, but that the end system is one in which there’s enough money to make it work.” He addresses complaints by people who never private-copy that they shouldn’t have to pay the CD levy as follows: “There’s not a checkbox that says ‘Do I watch television?’ ” when buying a box of cornflakes or a loaf of bread; the cost is embedded in the price (my paraphrase). “The price will not be presented to them where there’s a hammer at the back of their heads,” as it is today when people try to buy music, but there will be a system in place to ensure that creators make enough money.

Neil Leyton

Registered an objection to Hoffert’s off-colour joke (and he rolled his eyes immediately after Hoffert delivered it, too).

Fading Ways is his record label with 40 titles. It’s easier to export than to sell in Canada. “Maybe that can be explained by CRIA saying they have 95% of the Canadian market, and that’s probably true: They probably do have 95% of the Canadian market.” Indies are hurting in Canada, “not from the Internet, but from the monopoly” of major labels.

They use Creative Commons licenses in share samplers, “which basically allow our fans and our street teams to go out there and basically promote our music.” “Basically what the Commons Licenses, which cannot be dismissed with two loud swear words into a microphone” – as at another conference, he told me later, where somebody dismissed the licenses with “Fuck that!” – can do is to designate the terms of the license. In their case, designation of the creator and non-commercial copying, and also creation of derivative works (most artists chose share-alike license).

They’ve been doing it for about a year and are the only label doing so, to his knowledge. “It has increased our sales” and also concert attendance. “This, from a moneymaking perspective, makes a lot of sense to us.” Urges other labels to consider it. Thinks it’s “fine and great” to imagine fine-tuning the licenses if you’ve gone to law school; “if not, then Creative Commons is a great alternative.”

“The independent-record community” saw “a rise of record sales while Napster was around.” “The important thing to realize is that music fans that discover an artist they like – and this is a leap of faith for some – will go out and buy that record, no matter how many times they burn that record, no matter how many times they copy that record.” And they’ll tell all their friends about it.

That may not work for artists that might be called “entertainers” (“meaningful as opposed to disposable entertainment”).

“The message that you always hear is a regurgitation of a CRIA press release that always says the same thing…. Unfortunately, largely, from our perspective, it’s not true. It’s misleading to say to the Canadian public that losses are due to this one reason, peer-to-peer or downloading. It’s simply not the case for us – independent artists.”

“CRIA does not really represent Canadian artists,” instead “largely national and multinational business interests” that are, in essence, importers. “To read these press releases that claim to stand for Canadian artists is pretty offensive to me” and other indies.

Claims that Danko Jones was “coincidentally” dropped by Universal after giving an interview with the Sun in favour of downloading. “Invariably it’s the CRIA viewpoint that gets printed, because they have a lot more money to invest in PR efforts and in lobbying.”

Ronald Dimock

“I have a confession to make: I am an infringer of copyright of recorded music.” Has not uploaded, nor made copies “of U2’s latest release” and given them away to friends, but did it almost 40 years ago. In 1967, “20 years before Michael Geist left to go to university,” he tape-recorded two Beatles songs off WKBW radio. He made “clear, strong copies” of “Eleanor Rigby” and “Strawberry Fields,” which he then gave to a radio station, which blabbed about him on-air as “the Beatles Bootlegger. Needless to say, I have been clean ever since, and have devoted my life as a lawyer to stamp out copyright infringement.”

He didn’t think that was wrong, and believes many Kazaa users feel the same. The “mindset” hasn’t changed, just “the extent and ease of copying.” “Infringement of recorded music has become rampant and, in some artists’ views, a big problem.”

The Supremes “claimed to follow their earlier pronouncements to strike a fair balance” in the SOCAN case. It exonerated ISPs from caching music and acting as host servers “providing they stuck to that role of making the Internet a more efficient conduit for content, including music.” Also set criteria for who should pay for music played from a Web page or streamed. The Supremes said the use of the Internet should be facilitated. In the Robertson case, “that certainly will become an issue” if it reaches the Supremes. However, creators must not be treated “unfairly” in this facilitation.

Private Copying Collective case held that the blank-media levy was a levy and not a tax; annulled the zero-rating clause; and denied a levy on devices with hard drives (my paraphrase). The Collective has applied for leave to appeal with the Supremes, which they’ll probably be granted.

In BMG v. John Doe, “a decision by Justice von Dinckenstein [sic] of the Federal Court…. There were questions about the quality of the evidence and there were certainly questions about the meaning of the law.” He believes that the judge felt that “all recording artists looked like Marilyn Manson, behaved like Courtney Love, and [unintelligible] like Roseanne Barr.” The judge’s “failure to properly apply the rules of the Federal Court” concerning third-party provision of evidence, he says, will be brought up in appeal. He calls the judge “Justice von Dinckenstein” yet again.

Most important will be how the judge deals with submissions claiming errors in “Justice von Finckenstein’s [sic] interpretations regarding infringement” and “make clear that what is alleged to have been done is prima facie infringement” or at least “poses a case” of infringement, leading to revealing the identity of the users involved.

Mentions the case in Germany “of a little-known young artist who wrote a song about a crocodile” played in kindergartens across Munich. Some radio stations began to play it and it became a number-one hit before Christmas. “So there’s one example in how the Internet has aided musicians in bringing their work to the market that conventional top-of-the-mark artists do not have to worry about.”

He thinks it is necessary for the courts to decide if uploading is legal or not “as a final matter.” “This year, 2005, the courts will probably give the industry so-called help, help that was missing in the BMG case.”

Barry Sookman

“Let me say in the beginning that there is no place in academia for any reference to bombing threats…. ‘He’s not entitled to speak his views.’ In academia, you are absolutely entitled to speak your views. The role in academia for people who disagree is to get up and speak and to win your points not through rhetoric but through rational arguments.” “Along the way, I think Michael has stepped on a couple of toes, rubbed people the wrong way, and that’s because some people don’t agree with his views.”

The BMG case is a perfect law-school exam, and “a perfect legislative exam” for Heritage.

If Bittorrent alone accounts for 35% of all Internet traffic, then, for some reasoning I could not follow, he thinks “70%” of Internet traffic is “copying on a global scale – some of it legitimate, some of it not.”

There’s an “arms race” between makers of TPMs and those who wish to defeat them. This “tsunami of change is causing an enormous imbalance in the copyright system.”

Interests are both “normative, that is, what they think the law should be,” and also what the law actually is.

He claims that Justice McLachlin made a metaphoric statement about user rights, which has “imbued itself” into user consciousness. (He says the CCH ruling stated that fair dealing is a defense.)

He says content owners normatively claim that private copying can never really apply to downloading, particularly because it’s not on an “audio recording medium.” “Is sharing a thousand files with a million of your closest friends ‘private copying’?” They’ll also claim that downloading and even the BMG case itself show that a feeling has come into play that copying is OK.

A U.K case resulted in turning over alleged uploaders’ names. Since the U.K. had ratified WIPO, it wasn’t even an issue that the names could not be turned over.

“Pre-Théberge, it was pretty clear in Canadian copyright law that copying was infringement.” Post-Théberge, “there’s been a lot of talk about user entitlements and the public domain.” Are owners’ rights “actually being eclipsed” by public domain “in the discourse”? “I would ask the Lawrence Lessigs of the world: If everything is going to be in the public domain, who is going to create those works that everyone might share?) (Roughly four people applaud.)

He says we’re lagging in WIPO implementation. “Do ISPs have to go to the Supreme Court of Canada and spend hundreds of thousands of dollars to prove they don’t infringe when they cache? […] That’s what happens when you don’t legislate.”

Q&A

My question: Does the panel believe that downloading a song to a computer without any distribution is consistent with Section 80?

• Hoffert: “I think it’s OK.”
• Leyton: “What’s Section 80?” (That got a good laugh. I tried to play straight man and answer it. Luckily, my mike was turned off!) Shoplifting a CD is theft; copying is just copying.
• Dimock: That will be decided by the courts. His personal opinion is irrelevant.
• Sookman: It depends on how you download it and store it. If you burn it onto a CD (an audio recording medium), it is most likely covered by Section 80. A hard drive in an MP3 player, and almost certainly the hard drive in a computer, is not an audio recording medium and would probably not be allowable.

And additionally, Dimock strenuously denied uttering “von Dinckenstein.” “No, he didn’t” utter that remark, a woman said. “Perhaps it was a Freudian slip,” I replied.

Richard Pfohl from CRIA said that they do in fact represent independent labels. “It’s a bit of a cheap shot to refer to 95% of the music that’s bought in Canada as ‘disposable entertainment.’ ” “I didn’t say that.” (“Yes, you did,” a woman says in the audience.) Leyton: The Creative Commons license protects our fans for sharing it (my paraphrase) and “protects our fans from getting sued by you” (CRIA). “We’ll have to disagree on that because there is no party line and artists are not dropped for speaking their mind,” says Pfohl.

Sarmite Bulte: “Copyright and How It Is Working in the Current Environment of the Internet, Peer-to-Peer and Digital Copying”

(2005.02.11 13:25)  Copyright law “has indeed adjusted” to meet new technologies. “I am definitely not a copyright expert,” even though she was a lawyer for 20 years. “It reminded me too much of the Income Tax Act.”

For creation of economic wealth: “In recent years, the richest man on earth, Bill Gates, and the richest [author], J.K. Rowling, both rely on copyright” for their earnings. Some 6% of Canada’s GDP derives from copyright industries.

“As you all know, we live in the age of file-sharing, pirated DVDs and satellite-signal theft.”

Was “concerned” about “the repeated delays in implementing these two treaties.”

Thinks that those who argue that WIPO would threaten private copying were actually trying to oppose private copying itself, “but the committee was not fooled.”

Section 92 report: Response coming from the government by end March. Copyright bill later this spring.

(Speech ends 2005.02.11 13:53)

Robert Young: “Copyrights, Patents, and Trademarks Are Good Things, But, Like Vitamins, Too Much of a Good Thing Can Be Very Bad for You”

His goofy, aw-shucks schtick really does not work.

For most of the world, intellectual property is not property at all.

Pointed to a blank projection screen. “Here’s my first slide: Mickey Mouse.” But the projection screen is blank! Each of us can fill in the image of Mickey Mouse due to Disney’s decades of imprinting. “The key thing to remember about intellectual property is that it is the thing that we all use to do the next thing.” Second slide (again blank) is Steamboat Willie. “Again, I don’t need a slide: All of you know [the appearance of] Steamboat Willie.” And his third slide is a mouse. “Yet the real mouse up here is the inspiration behind Steamboat Willie and Steamboat Willie is the inspiration behind Mickey Mouse.”

“Intellectual property is not property. It is the knowledge around us.” “I can make a chair and give it to my kids, but I can’t come up with an idea for a song and give it to my kids.”

If Sonny Bono’s permanent copyright had been put into place, at some point in the future, every melody and harmony would have been copyrighted. At that point, there will be no such thing as a[n independent] songwriter; all of them will be working for “the Disney Company or Sony or whoever.”

If Canada really wishes to become “the innovation leader in 10 years, first, do no harm.” “We are now giving authors an incentive to write their next novel 50 years after they’re dead.”

Q&A

• Bob Young asks if there are any computer scientists or technically-trained people on Bulte’s committee. No; it’s an all-party committee, and they call in experts.
• Q. from CMRRA: It isn’t only the creator who stands to lose or gain from extension of copyright. “But somebody has to pay the bill for dinner…. Not every work is as simple, unique, or free-floating as a poem written down on parchment in ink…. [IP] generally requires substantial investment both to manufacture and distribute.” Reliance on the term of copyright “is not some form of infinite enrichment for the benefit of the creator”; “it’s the expectation of making those earnings in the long term that powers the making of these works of intellectual property available to us in the first time.” The case of open-source software is sui generis and could not be replicated in the artistic fields.
• Statement from another person: “Don’t put copyright in the hands of big business… put it in the hands of the people who create.”
• Sarmite Bulte: Exceptions are not the basis of good public policy. “The only time an exception is warranted is if there’s been a market failure.”
• Sunny Handa notes that “copyright” is an Anglo-American viewpoint that favours income maximization, while the French term droit d’auteur speaks of authors’ rights. In the Théberge case, four English judges fell on the copyright side while three French judges veered toward the authorial side. Sarmite says that, “from the Heritage side, you see it as the droit d’auteur,” while the Industry side “sees it from accessibility, gaining new audiences, all those sorts of things.”

William Fisher: “An Alternative Compensation System for the Entertainment Industry”

2005.02.11 15:38

(His slide’s title is actually “Legal Responses to the Crisis in the Entertainment Industry.”)

He’ll talk first about the utilitarian model of copyright, which strives to strike a balance between creation and dissemination of works. Then he’ll talk about the other two theories of intellectual property – labour (creators are naturally entitled to the fruits of their work) and personality (serving and protecting the special bond between artists and their creations).

Public goods can be made available to unlimited users (such usage is “nonrivalrous”) and it is difficult to exclude people from access to those goods if even one person has access (nonexculsive). But an inefficiently-low number of such works might be produced in this model.

The five responses to this problem are:

1. Government provides the good (e.g., armies)
2. Government subsidizes production (as by arts councils)
3. Government issues prizes after the fact, like rewards for atomic-energy inventions (and Audio Home Recording Act)
4. Government confers monopoly power on producers, as with IP rights
5. Government sometimes assists private parties in increasing excludability (as with abetting DRM)

In entertainment in the U.S., the dominant method is number 4 above.

What is the crisis that entertainment industries face? Mostly decline in revenue. But earlier global declines in sales resolved themselves.

See his site.

Permitting anyone to remix cultural works is opposed fiercely by film directors. “Semiotic democracy to them is a forefeiture of moral rights.”

“Canadian Copyright: Future Directions”

Graham Henderson, CRIA; Casey Chisick, U of T Law; William Fisher

Henderson: Aims “to raise the tone of the debate,” and air as many “constituency issues” as possible (as artists’, indies’; working with book-publishing societies). “I think it is very necessary to raise the tone. I’m not going to say it was bad today… but rightsholders today are very often subject to straw-man arguments.”

Copyright term: “Whatever dear old Sonny did or didn’t think about the idea of perpetual copyright, first of all, it would violate the U.S. Constitution – that’s my understanding of it – and second of all, it didn’t happen.” On Disney: It’s the whipping-mouse of every one of these meetings.” “They’ve got a reputation for being tough and they fiercely, fiercely protect their rights.” He Crackberried a Disney executive who flatly denied Robert Young’s contention that a nursery school would be prosecuted for drawing Mickey Mouse on the wall. Audience members disagreed (it’s possible in Australia, and “they can do it here,” said one person whom Henderson later named in an E-mail). “Well, they may be allowed to do it, but they haven’t done it,” Henderson said.

Version history

2005.02.11

Posted.

2005.02.12

Corrected copy errors; added links to citations and transcript excerpts.

2005.02.15

Added “coincidentally,” per Neil Leyton’s request.

2005.02.22

Added transcript of Paul Hoffert’s off-colour joke.