Posts tagged copyright

… in related news, Subway trademarks the word “The”

“If ‘footlong’ is a name that’s been associated with us, it would benefit them that we would take an action like this to protect the association.”

-Subway flack, on why they’re sending cease and desist letters to restaurants using the word “footlong” on their menu, (which Subway has applied for a trademark on).

Bonus PR-Speak Translation! “Our sandwiches suck, so any association with us will hurt your business.”

Bonus witty retort: “Maybe the [Metropolitan Transportation Authority] can issue a cease and desist over the word Subway. That would be great.”

My submission to the copyright consultation

I’ve made my views and the views of those I share available here: http://andrewmcintyre.ca/tag/copyright/

But I think the views of Dr. Meera Nair best summarize my own. http://andrewmcintyre.ca/2009/08/17/locking-copyright-fair-dealing-vs-digital-locks/

My position is simple: Digital locks are bad for Canada. They do not meet Minister Clement’s standard of “standing the test of time” and actually take away existing rights.

To summarize I will quote the relevant section of my blog post here:

Dr. Meera Nair had a very interesting response to a question I asked her about how digital locks – software that blocks users’ ability to copy files including Technonological Protection Measures, TPMs, and Digital Rights Management, DRM – reconcile with the fair dealing provision afforded by Canadian legislation and case law.  Dr. Nair explains on her blog “Fair Duty

Simply put, once a work is locked, it’s game over. Fair dealing is meaningless if you cannot access the material. Many individuals are anxious that IF Canadian law were to prohibit the circumvention of TPMs, such a prohibition should only apply to circumvention for infringing purposes. Meaning, if you circumvent a TPM for a noninfringing use, such as fair dealing, you will not run afoul of the law. Yet, there is a question of why permit the use of TPMs at all? TPMs take away existing rights available to Canadians. To limit access to published work is to deny fair dealing. Said another way, TPMs violate a structure of law that has been in place since the creation of copyright itself (nearly300 years) and present in Canadian law since its inception in 1924.

In other words, the very idea of companies or industry consortiums using digital locks to prevent people from making copies of works they’ve legally purchased runs counter to the notion of limitation in copyright law – which limits both creators and consumers -  as well as the existing provisions afforded by fair dealing under Canadian law.

Final Thoughts

I’m certain the word “balance” is almost losing its meaning after encountering it so many times in this consultation. I’m tired of it too.

In fact, we don’t need as much “balance” as most parties that invoke it are asking for. Adopting an overly-restrictive regime, that limits users rights, would be – in effect – criminalizing common behaviours of reasonable people.

You can make it easy for citizens to obey the law and create legislation that stands the test of time, while maintaining the incentive to create, by erring on the side of users.

Thank you,

Locking up our citizens

Anytime someone puts a lock on something you own, against your wishes, and doesn’t give you the key, they’re not doing it for your benefit.

Excerpted the DRM section of Cory Doctorow’s excellent submission to the Canadian copyright consultation.

Eventhough a Fall election will almost surely derail the Canadian copyright consultation process, it’s positive that the Canadian public is engaged and participating in this needed conversation.

Eventually, Canadian copyright law will be reformed. We need to make sure Canadians’ rights to use, modify and comment on copyrighted materials are not locked up when it happens.

Locking Copyright: Fair Dealing vs. Digital Locks

While the prospect of a federal election this Fall threatens to derail the entire process, the government’s copyright reform consultations are picking up speed and starting to capture some attention. I’ve followed the consultations closely. I read the crowd-aggregated news stories, Op-Eds and blog posts on twitter (at the hashtag #copycon), observed the Calgary roundtable and even watched the webcast of the Montreal townhall.

As noted in previous posts on this topic, I’ve been personally interested in copyright and internet law (and certainly copyright enforcement) since I downloaded my first MP3 thirteen years ago.  Recently, I’ve been fortunate to have the issue intersect with my professional life as well. At the PSE Partners conference last week, Dr. Meera Nair had a very interesting response to a question I asked her about how digital locks – software that blocks users’ ability to copy files including Technonological Protection Measures, TPMs, and Digital Rights Management, DRM – reconcile with the fair dealing provision afforded by Canadian legislation and case law.  Dr. Nair explains on her blog “Fair Duty

Simply put, once a work is locked, it’s game over. Fair dealing is meaningless if you cannot access the material. Many individuals are anxious that IF Canadian law were to prohibit the circumvention of TPMs, such a prohibition should only apply to circumvention for infringing purposes. Meaning, if you circumvent a TPM for a noninfringing use, such as fair dealing, you will not run afoul of the law. Yet, there is a question of why permit the use of TPMs at all? TPMs take away existing rights available to Canadians. To limit access to published work is to deny fair dealing. Said another way, TPMs violate a structure of law that has been in place since the creation of copyright itself (nearly300 years) and present in Canadian law since its inception in 1924.

In other words, the very idea of companies or industry consortiums using digital locks to prevent people from making copies of works they’ve legally purchased runs counter to the notion of limitation in copyright law – which limits both creators and consumers -  as well as the existing provisions afforded by fair dealing under Canadian law.

Sadly, in reading and listening to many of the remarks of industry stakeholders at the formal roundtables and the townhall, this unwarranted trampling of Canadian’ rights through the imposition of digital locks is being touted as the only way these industries can save themselves from the unwashed masses of file sharers. At least in the realm of music, this position is convieniently ignoring UK music industry economists’ admission that the music industry is growing.

In today’s Toronto Star, Michael Geist addresses the issue of creating longevity in any forthcoming adjustments to Canadian copyright law, and in doing so, establishes four principles to employ in the evaluation of proposed changes. Dr. Geist’s second point implicitly addresses the issue of digital locks by acknowledging the short comings of proprietary technological constraints.

First, copyright law should strive for balance between creator rights and users’ rights. If the law tilts too far in one direction, the other side is virtually guaranteed to put the issue of reform back on the table and the changes do not last.

Second, the law must be technologically neutral. Copyright has proven remarkably resilient over the decades in large measure because it states broad principles about the scope and limits of protection. If copyright veers too far toward specific technologies by mandating new protection for specific business models or technological innovations, those rules risk being overtaken as the technologies and marketplace evolve.

Third, the law should strive for simplification and clarity. Copyright may once have been a niche issue understood by a small number of experts, yet today it affects the daily lives of millions. If Canadians are to respect the law, they must first understand it. When Bill C-61 proposed a 12-part test to determine whether recording a television program was legal, it rendered the law far too complex for the average person.

Fourth, the law should embrace flexibility, which has allowed many copyright provisions to adapt to continually changing economic and technology environments. Flexibility requires a general-purpose law and ensures that it works for stakeholders across the spectrum, whether documentary filmmakers, musicians, teachers, researchers, businesses or consumers.

I’m hopeful that something reasonable will come out of these consultations but I also worry that the government is going to miss the mark and embrace the imposition of a copyright clampdown that either restricts established legal protections or turns regular Canadians into criminals.  You can do your part to make sure that doesn’t happen by making your voice heard.

Make your written submission right here: http://copyright.econsultation.ca/topics-sujets/show-montrer/18

Can’t put the toothpaste back in the tube(s)

I love the media. I love reading articles, watching clips, commenting on the stories I care about and sharing them with others.

I grew up reading The Leader Post and The Globe and Mail, listening to CBC Radio at breakfast and oscillating between the 6:00 nightly newscasts on CTV, Global and CBC.  After graduating from university,  I worked for a local Calgary magazine called Calgary Living and spent the last 2.5 years in the sausage factory netherworld between public relations and the news media at CNW Group – formerly Canada News Wire – the largest behind the scenes distributor of news releases and other assorted multimedia in Canada.

Over the last several years, my lifelong fascination with all things media began to intersect with another obsession of mine: the Internet.

I first logged on at my father’s office 15 years ago as a wide-eyed 12 year old boy, immediately recognizing how powerful it was.  I could instantly gain access to information on virtually any topic I desired.  I was an early, unashamed Internet addict, spending long hours at my parents’ offices after work hours until we finally got connected at home.

When I downloaded my first MP3 in 1996, I knew a fundamental shift was underway.  Before long I was a full blown copyright criminal; an accomplished music pirate with several thousand songs shared over a personal FTP server on my parents’ cable modem before I was even old enough to drive a car.  I was the first kid in high school to get a CD burner, because what good was all that music if you had to sit in front of your computer to hear it?  I even wrote a few ridiculous articles about burning CDs for MP3.com, (I lied about my age) when it was still the biggest aggregator of music piracy know-how on the net.

Before long, I fundamentally changed the way I consumed content. No longer hampered by the size of my allowance or my summer earnings, I became an aficionado of music.  I discovered bands I never would have come across were I relegated solely to to listening to radio stations and watching Much Music, (I remember when they actually played music videos most of the time).

I was empowered.  The cat was out of the bag. The toothpaste was out of the tube. I was never going back to the old way of doing things.

As it turns out, neither was anyone else. Napster, KaZaa and a litany of other defunct peer-to-peer (P2P) applications eventually gave rise to the mighty torrent.  The content expanded to anything that could be digitized. Books, TV shows, and  full movies, even perfect DVD copies, were suddenly up for grabs.

I remember a close friend’s glee when he downloaded every Beatles song, (studio recordings, b-sides and bootlegs) in one click in 2004.  Five years later, he still has all his favorites on his iPod.

Of course, the exponential growth of computer power, the Internet and the increase in the price-performance of digital technology (e.x. my cell phone is ten times more powerful than a computer purchased for $1000 10 years ago) was the great facilitator of this process.  It created opportunities for revolutionary technologies like the iPod.

The existing archaic copyright laws were no match for the world’s largest copying machine.

It took a while, but the open Internet I watched swallow the record industry as a teenager finally did the same with the media I grew up with. CanWest Global , the owners of The Leader Post and Global television, continues to teeter on the abyss of bankruptcy. CTVglobemedia, (owners of The Globe and Mail) isn’t faring well either. CBC, our publicly funded national broadcaster,  is facing similarly tough times eventhough advertising revenue is only a component of their bottom line.

Advertising, as the pillar of the broadcast media business model, is crumbling.

Over the last few years, I’ve watched the same Internet P2P technology take over the world of news.  Twitter is now my personal social newswire feed. I follow friends and leaders that share interesting content and share the best nuggets of content I find from all my sources with my own friends and followers across several social media platforms. Furthermore, I find myself taking pictures with the intention of sharing them and feeling inspired to write knowing that someone will actually read what I have to say.  The network of bloggers, professional journalists, academics, and new media professionals I follow provide me with a unique perspective that takes great effort to curate effectively. I use RSS, podcasts, blogs, twitter, along with many of the traditional media sources and networks to stay plugged in to the information world I’ve organized for myself.  Through these methods, I dramatically reduced the amount of advertising I am exposed to daily.

For the record, I am not against copyright laws. But I do think that the Internet and the democratization of technology are helping us recognize that laws of the 20th Century were overly skewed in one direction.

I  believe we need to work to strike the appropriate balance between user-rights and the rights of the content creator. We need professional journalists, musicians, actors, authors, artists, inventors, coders and engineers to have a resilient, vibrant democracy. To have these professionals, we need to find a way to ensure they are paid for their hard work and the intellectual property they produce. Yet, after I began studying copyright more carefully in the last year of my political science degree, I quickly recognized that all culture is derivative, in that it builds on previous work. We are all truly standing standing on the shoulders of giants. Furthermore, all of humanity’s future intellectual pursuits will continue to be derived from an understanding of the research and works created by others in the past.

Our system needs to balance the extremes of  “everything is free for the taking!” and “everything idea you see, hear or use is going to cost you!” to ensure we can pay the creators while leaving their content open to be used to create derivative works.

It is in this spirit that recommend my friend Duncan Kinney’s recent article “How hacker investors could save the media.” I love articles like this one that examine how the media must reinvent itself on the open web. Finding new, effective business models is crucial to ensuring we can continue to pay for the  journalists and media professionals necessary to hold the powerful accountable.  Duncan starts from the premise that these organizations must innovate or go extinct and derives a sensible investment strategy for these lumbering behemoths. While web 2.0 is  important and I am optimistic about our ability to open up government and hold our leaders accountable through technological innovation, Duncan rightly points out that in the interim large media organizations are still important because they “have the clout to get access, a legacy of fact-checking and the money to afford lawyers.”  I agree with him, these are not unimportant details.

If you want to learn more about these issues I highly recommend that you read Michael Geist’s blog, listen to TVO’s Search Engine and read anything you can get your hands on by Lawrence Lessig. And while you’re at it, go check out creativecommons.org

One thing is is certain. The toothpaste is out of the inter-tubes and we can’t put it back in.