Guest post by Jeremy Buhler, SLAIS LIBR 561 Information Policy Class 

“The Conservatives will introduce a copyright reform bill substantially similar to C-61.”  This statement was the largely unspoken subtext framing the small-group discussions on intellectual property at the 2008 BCLA Information Policy Conference.  Because the anticipated legislation is expected to be similar to C-61 the group spent most time discussing that bill, a retrospective exercise that was still useful to a novice like me.  Abstracting from the questions and concerns raised, there are at least three characteristics of C-61 that we should watch for and oppose in any descendent bill:

1. The bundling with provisions that do not belong in copyright legislation.  Think service bundling with lock-in.  C-61 covers DRM measures and educational licensing agreements in ways that limit existing rights and exceed Canada’s international copyright obligations.  The over-representation of these or any other issues should raise red flags: why is this here?

2. Emphasis on commercial rather than creative interests.  The copyright debate is sometimes framed as a compromise between creators and consumers.  In the past this may have been the case, but in C-61 the real compromise is between consumers and industry (publishers, content providers, copyright collectives, etc).  Pay close attention: will new legislation really support content creators or is talk about artists a smokescreen for bias toward industry?

3. Shifting responsibility from individuals to service providers.  Should libraries be required to ensure digital copies of copyrighted material self-destruct after 5 days?  Should ISP’s be responsible for the content posted or accessed by their customers?  We didn’t think so - individuals need to be accountable for their own actions.  Be on the lookout for any measure that forces service providers to double as law enforcers.

How should we respond to the threat of regressive copyright reform?  Group consensus was to “keep making noise.”  Last year’s successful opposition to Bill C-61 has established a viable resistance model, but I sensed a hint of complacency in our acceptance of old battle tactics. The campaign against C-61 was largely defensive, but until Son of C-61 rears its head we have a chance to make offensive, proactive “noise”.  Michael Geist’s copyright pledge may be a good lead to follow.

Guest post by Stephanie Kays, of the SLAIS LIBR 561 Information Policy class.

As not to reiterate too many of the issues Michael Geist discussed the night before, Paul Whitney’s talk aimed to contextualize Canada’s international copyright obligations. The significant treaties and areas of focus: the Berne Convention’s 3 Step Test and WIPO Treaty; and the World Trade Organization’s TRIPS Agreement.

Canadian copyright is based off the Berne Convention and the Berne three step test appears in all western copyright laws in some form or another, Whitney expressed. Basically, the three step test allows member countries to enact exceptions to exclusive rights to (1) certain special cases, so long as they do not (2) conflict with an normal exploitation of the work, and do not (3) unreasonably prejudice the legitimate interests of the rights holder. The three step test was remade in TRIPS, Whitney explained, but the difference is that Berne approaches copyright with the interests of the creators rights, while TRIPS takes the Berne concept and looks at it through the lens of trade. The TRIPS Agreement establishes a minimum level of IP protection that each government has to afford their fellow WTO members. The general rule of the Berne Convention that has been incorporated into the TRIPS Agreement provides a minimum allowance of life of the author +50 years. Canada is right on target with this minimum. Seems like a whole lot of copyright, right? Some countries have gone above and beyond. The United States and the European Union host a “TRIPS-Plus” approach, where the copyright lasts the life of the author +70 years.

In an interesting example of TRIPS-Plus, Whitney turned to author Kurt Vonegutt, who died in April of 2007. His last novel Timequake, was published in 1997. Under US copyright laws, this novel won’t hit the public domain until 2078, 88 years after the book was published. Considering this fact, it is easy to say that very few of the US works created in the last century are public today.

Canada is obliged to comply with the WIPO Treaty (adopted to deal with IT and internet related issues) and some argue that Canada is already in compliance, while others argue that Canadian copyright laws need to be revisited in light of new and ever evolving technologies. Whitney noted that the WIPO Treaty is a model law but that it was created without consultation, so this issue is also up for debate.

Guest post by Michael McCarthy, of the SLAIS LIBR 561 Information Policy class

With those words, Doyen of the Digital Domain, Michael Geist, flew into town last Thursday (October 23, 2008) and, among other things, explained how digital advocacy played a pivotal role in mobilizing Canadians against Bill C-61.

Geist began by reminding us how last October’s Throne Speech said that technology, and this copyright legislation, would “ensure a prosperous future.” It wasn’t an easy sell for the government. Within days, Geist had organized a Facebook campaign to mobilize opposition. Fair Copyright for Canada’s Facebook network grew from one hundred members on the first day to 92,322 today.

YouTube also played a starring role in the campaign. A competition was organized, the self-explanatory “C-61 in 60 Seconds.” (See the winning entry). Twitter, Google Earth, and a host of other web 2.0 networks meshed to galvanize the opposition. As Geist said, before the campaign, “People didn’t think these things affected them on a day to day basis.” (BTW, check out our local grassroots coalition partner, Vancouver Fair Copyright).

Canadians connected on this issue. Torontonians took to the streets in protest. Pancake Protesters showed up at the Calgary Stampede. Thousands of hard copy protest letters arrived on Parliament Hill. All of this seems, well, somewhat unCanadian in a country presumed to be apathetic on such issues. In retrospect, the opposition to C-61 seemed vaguely reminiscent of 1960s-style activism overlaid with the instantaneity of the Internet.

In some ways, C-61 served as a test case for how the Internet will play its role in the future of citizen engagement. Geist’s final slide read: “SILENT NO MORE.” Opposition to the proposed bill also seemed to tap into a latent nationalism: it was US vs. the U.S. Yet, the bigger question remains: Are we, in fact, already the “51^st State”?

Geist stated that the Conservative government “had a pretty clear media strategy,” and that they were confident On June 12^th when C-61 was introduced. They were also “very happy with the [media] coverage” (no surprise there). However, a week later, with the grassroots’ focus on individual rights, things started heading south for the bill.

A key point made was that it wasn’t until the grassroots had done the homework that the mainstream media took up the issue. This culminated in a Globe and Mail article, “Ottawa accused of caving in to Hollywood on Copyright.”

At this point in his presentation Geist asked: “How did copyright become cool?” In a classic understatement, Geist said “I certainly blogged about it.” Copyright became cool in no small way due to his effectiveness as a change agent. Geist reminded us that “This [copyright law] is driven by political choices, not policy choices.”

As Paul Whitney told our class during his visit on October 8^th, the CLA, due to differences of opinion within the association, doesn’t do enough on the issue. Michael Geist, on the other hand, can make a definitive statement. And he has. I can’t think of anyone who has done more to further debate on Canadian copyright law than Geist. In many ways, he is the public face of the issue. His 60-minute presentation took us on a whirlwind tour of Bill C-61’s convoluted history and ended on an upbeat prognosis for the future, at least as far a social networking and political change are concerned. I particular liked his take on what’s at stake here: “our digital future is about our creative future.”

Free Culture is an interesting Creative Commons licensed, game by Molleindustria where you fight to keep information in the commons.  Occasionally the evil copyright pac-man like mechanical villain swoops around the outside and gobbles up information. They describe this game as “a game about the struggle between free culture and copyright. Create and defend the common knowledge from the vectorial class. Liberate the passive consumers from the domain of the market.”

According to some commenters on the Creative Commons blog, it is possible to win. I am not that patient.  I found the same play too repetitive, but maybe that’s the point.  It’s a long, repetitive slog to keep information freely accessible for everyone.

I like the statement describing who Molleindustria is:

Molleindustria is an italian team of artists, designers and programmers that aims at starting a serious discussion about social and political implications of videogames. This will involve media activists, net-artists, habitual players and critics and detractors of videogames. We chose to start with online gaming in order to sidestep mainstream distribution channels and to overcome our lack of means. Using simple but sharp games we hope to give a starting point for a new generation of critical game developers and, above all, to experiment with practices that can be easily emulated and virally diffused.

This game is safe for work, but some of their other games, are likely not appropriate to play at work.

Thanks Jen Crothers for the tip!

Photo by Ian Muttoo

 Dear VANOC,

This trademark stuff is getting completely redonculous.  First, there was the broad and unnecessary legislation protecting the Olympic brand and trademarked words like 2010, winter and Olympics.  I can’t believe that this was passed into law!

Then there was the Denman St. Olympia Pizza debacle, where you bullied a pizza shop that had had the same name and signage for the last 15 years, long before Vancouver even had an Olympic twinkle in its eye.

Now, you have trademarked part of the national anthem of Canada.  I read today that you trademarked “With glowing hearts” from the English version and “Des plus brillants exploits”from the French, before announcing that these would be slogans that you will use to brand keychains, ads, and who knows what else.

It’s thoughtful and kinda sweet that you will allow Canadians to sing our anthem on the medal podium, in schools and at special events without suing us for infringing on your trademark.

Thanks,

Tara

Here’s some of the proposed penalties included in Bill C-61, the bill that contains proposed changes to Canadian copyright law:

• $500 per downloaded song
• No Fair Use rights for remix culture
• $20,000 for uploading content (like on Youtube)

If you too are a copyright criminal take your picture with this photo plate and upload it to the Open Source Cinema site. You could also include the photo with a letter to your MP saying this bill sucks.

Canada, the United States, the European Commission, and six other countries are secretly negotiating a trade agreement that could sacrifice fair dealing and privacy rights, violate civil liberties and the due process of law, and have a chilling effect on free speech, all in the name of strengthening intellectual property laws.

The Anti-Counterfeiting Trade Agreement is only getting attention now because a discussion paper with some details of the agreement was leaked to Wikileaks on Thursday. Since then, there have been two stories about ACTA on Slashdot and articles in a number of Canadian newspapers, including the Globe and Mail and various components of the Canwest empire.

Among other things, ACTA would:

• make infringement a criminal, rather than a civil matter (you can go to prison for trivial non-commercial infringement under ACTA);
• give border guards the authority to search your possessions for infringing content, and confiscate and destroy your laptop or iPod if they decide it has infringing content on it;
• require ISPs to spy on their customers’ online activities and block access to infringing content; and
• allow governments to share personal information about their citizens, evading domestic privacy laws.

These provisions are excessive. First of all, IP protections already quite strong, and existing agreements like TRIPS already cover the concerns ACTA is intended to address. Proponents of the new treaty have presented no evidence that it is necessary. The proposals stem from an unquestioned assumption that stronger IP rights are a good thing, despite vociferous objections from the library community, public interest groups, and ordinary people who feel that IP laws are already too harsh and unbalanced. Unsurprisingly, ACTA apparently makes no attempt to safeguard fair dealing or other end user rights — it’s all about defending the interests of intellectual property owners, with no recognition that copyright and similar laws are supposed to strike a balance between creators’ and users’ interests.

But it’s the new powers proposed to defend owners’ interests that are most alarming. Of particular concern is the plan to turn border guards and ISPs into copyright cops. Border guardsa and ISPs are not qualified to determine what qualifies as infringing content. Border guards in particular are paid to blindly enforce poorly designed rules (as anyone who’s had their toothpaste or hair gel confiscated at a security checkpoint can tell you). They are not IP experts, and no matter how well-trained they may be, they are not qualified to evaluate whether or not you have the right to have a copy of some song on your iPod.

The same is true of the ISPs, as we’ve seen over and over again in the years since the DMCA came into effect in the United States. ISPs have neither the time nor the expertise to judge infringement claims on their merits; as a result, they end up taking infringement claims at face value. In the US, where a notice-and-takedown system prevails, claims of copyright infringement are frequently abused to attack people exercising their free speech rights. The Chilling Effects Clearinghouse documents hundreds of these abuses. ACTA would only make the problem worse by expanding it to other countries — including Canada.

Underlying these concerns is the plain fact that the ACTA proposals would violate the due process of law. Border guards would be permitted to examine, seize, and destroy your property without judicial oversight or proof of guilt. ISPs could cut off your Internet access, not even because you’re a proven infringer, but because some random entity claims you’ve infringed their IP rights. That’s not how things are supposed to work in a democratic society.

But of course, there’s nothing democratic about ACTA. The agreement itself has been developed behind closed doors. It will likely be tabled for discussion at the upcoming G8 meeting this July, but so far no draft text has been released for public scrutiny. Civil society groups have been systematically excluded from the process of drafting the agreement (private industry lobby groups, by contrast, have apparently been involved from the beginning). There was a three-week consultation period in April, but if the government is only giving the public three weeks to respond to something, you can be sure they’re not particularly interested in what the public has to say. Organizations with limited resources, like BCLA, often can’t research the subject, draw up a response, and submit it within that period.

Even the structure of the agreement is anti-democratic. It’s being negotiated among powerful developed countries with strong intellectual property regimes. Developing countries, which have a very different IP agenda, have so far been excluded from the discussion. If ACTA is enacted, those countries will be forced to sign on, and are expressly forbidden from renegotiating the terms of the agreement when they do so.

ACTA is a bad piece of work. It’s unnecessary, unbalanced, and excessive; its development and proposed implementation are profoundly undemocratic; and it will seriously undermine fundamental rights and principles like privacy, free speech, and the due process of law — all in the service of narrow private interests. Librarians, and all Canadians, should oppose this alarming agreement.

UPDATE, May 30: Michael Geist reports that ACTA is “gaining steam, with a binding international agreement likely by the end of the year.”

I remember scratching my head, scrunching up my face, and muttering “I don’t get it” to myself when I first heard of Cory Doctorow making his books available for free download under a Creative Common’s license. He explains why he does this best in his own words:

I believe that we live in an era where anything that can be expressed as bits will be. I believe that bits exist to be copied. Therefore, I believe that any business-model that depends on your bits not being copied is just dumb, and that lawmakers who try to prop these up are like governments that sink fortunes into protecting people who insist on living on the sides of active volcanoes. Me, I’m looking to find ways to use copying to make more money and it’s working: enlisting my readers as evangelists for my work and giving them free ebooks to distribute sells more books. As Tim O’Reilly says, my problem isn’t piracy, it’s obscurity. Best of all, giving away ebooks gives me lots of key insights into how to make money without restricting the copying of bits. It’s a win-win situation.

Neil Gaiman will be doing a similar thing. Go and vote for what book you would like to access online for free.

Radiohead got a lot of press for releasing their newest album, In Rainbows, as a legal DRM-free download, allowing customers to decide how much they wanted to pay for it. This reminds me of the Australian restaurant, Lentil as anything, that allows customers to decide how much they want to pay for their meal.

Rhizome cafe in Vancouver has adopted this idea for a dish. Beside the box where you put your money is a description of the philosophy behind the lentils. There are a list of questions like: what is the value of eating in a place like Rhizome?, what is the value of the work that has gone into growing, transporting and preparing this dish, what is your economic situation? what does it feel like to participate in a system where food could be made available to everyone in a community?

I like Doctorow and Gaiman’s creativity in breaking from models that rely on DRM and exploring new distribution models. Who knows, I might even start reading science fiction.