A Call For Disclosure – Who Do The Professionals Represent And Why Are They Hiding The Connection?

As a writer and musician I’ve always been interested in copyright. It’s part and parcel of what I do. However until last summer I wasn’t involved in the discussion of where copyright in Canada should go. In fact you can blame my current high level of interest in copyright law on TorrentFreak.

On August 12, 2009, TorrentFreak published an article titled Prevent Canada from Becoming a Copyright Police State. I don’t remember how I found the article – it was linked to from a good many places. I do know that it got me thinking, and as usual, when I think about something, I research it. The end result was that I was one of the people who filed a submission with my opinions of where copyright law should go. Part of the responsibility of a citizen is to make his or her views known to the government, and I fulfilled my responsibility.

Now we’ve got a lawyer named Richard Owens who thinks my opinion doesn’t matter because I came to the consultation through TorrentFreak.

OK Richard – I’m calling you on this. I don’t think your opinion matters, because I believe you are representing an organization who has a vested interest in copyright law, and YOU HAVE NOT DISCLOSED THIS. I invite you, and the other professionals listed below to swear an affidavit stating who you are representing. If you do not do this, the only conclusion I can draw is that you are ashamed to declare your allegiance, and I will so write to the minister, and I will do that same for all of the others on this list:

Richard Owens

Michael Geist

Barry Sookman

Sam Trosow

Howard Knopf

Ben Sheffner

Wouter Schilpzand

Hugo Cox

Amanda Harcourt

Ben Challis

John Enser

John Davidson-Kelly

Tom Harding

Jeremy Phillips

John Dozier

James Gannon

Feel free to scan and upload PDF copies of your affidavits in the comments.

Wayne Borean

Tuesday April 20, 2010


17 thoughts on “A Call For Disclosure – Who Do The Professionals Represent And Why Are They Hiding The Connection?

  1. Interesting article. As a songwriter, I too have an interest in copyright. I took an interest in the three suggestions you made to the Copyright Consultations…..

    DRM…. I don’t know if it really lies within the realm of copyright law how one protects the mechanical rights…. Best tactic would be to not buy from a company using DRM, which is what I already do.

    Did you mean to say that copyright should be good for 25 years only? Currently, it’s good for the lifetime of the creator plus 25. If it was to change to only 25 years, there would be works I created that would already be public domain. The purpose of copyright is to give the artist the maximum benefit or profit from his/her work.

    I have nothing to say about the final point, because I have no exploited my work through third parties yet, so don’t have the background.

    The question of who the professionals represent is an easy one… They represent the one with the most money… or the most money at stake. With the rise of internet downloads, MP3 players, podcasts and the Creative Commons, music industry executives are worried that their huge profits are finally going to run dry. That has started the long trend towards suing music downloaders and pushing for copyright reform.

    The only ones set to benefit will be the big businesses.

    The current method of collecting payments through a performing rights organization for playing a song on the radio does not work for internet radio or podcasts. Most internet stations cannot afford the license fees… many work at a loss, just for the love of the medium. Radio stations, on the other hand are almost always run as money making operations and have the cash flow to pay the fees.

    I’ve been a supporter of the Creative Commons for several years now. I believe in making music freely available to low or no profit radio and podcasters… and licensing to commercial broadcasters for a nominal reimbursement.

    Think for a minute…. Of all the performers and bands you enjoy, how many of them did you first hear by listening to the radio? Is it not then reasonable to assume that the radio play contributed to the songs becoming popular and generating record or CD sales? Of course it is. Where would the Beatles be if they never got played on the radio?

    So it makes perfect sense…. As long as I provide you with content, it’s only reasonable that I share in a small part of your station’s profits. But if you can’t afford it, then that’s okay, because you’re providing me with valuable exposure…. which I’ll eventually be able to take to the bank.

    Of course, the music industry doesn’t see it this way… and their lawyers will use every tactic available to them to prevent our views from being heard.

    Sorry…. It seems my comment turned out to be longer than your original article.

    1. Bob,

      It’s fine if your comment is longer – it was an interesting read, and I agree with many of your points. As to the 25 year term limit, I think that for most works 25 years is more than sufficient, and there have been studies that have indicated that longer terms mean less creation, and copyright law is supposed to encourage creation.


    2. Bob,

      My understanding is that most works have little, if any, commercial value by the time they are 25 years old. Nevertheless, lack of copyright protection doesn’t mean you can’t make money off such works that are still commercially viable.

      There is this assumption among many people that copyright is required to make money from your creative works. But lack of copyright (or home cooking) doesn’t seem to slow down the restaurant world. The lack of copyright doesn’t seem to slow down the US fashion industry.

      1. Comparisons with restaurant/fashion aren’t perfect. Yes, they do incorporate some degree of intellectual property, but the fact that they’re partly in the physical world means they aren’t quite as subject to the risk of pirate copies.

        In fact, fashion _can_ sometimes be protected under either design patent (the equivalent of copyright for physical design) or trademark. But any fashion designer will tell you that cheap knock-offs for their latest trendsetter do cut into their sales; it’s only by appealing to the desire for “an original” (well, one of a limited edition, anyway) that they are able to maintain much more than sweatshop prices for the product itself. Fitting and advising services produce additional income, of course, and quality of manufacture is also involved.

        In the case of a high-end restaurant, those last items are the primary product. Restaurants which offer genuinely different recipes are rare; what you’re looking for is the best execution of the recipe (equivalent to fitting and manufacture), the best atmosphere, the best service… At the low end, you’re looking for best price that still delivers food you consider acceptable for that price, which is much more like the mass-market clothiers than like fashion.

        But once you step away from the physical, many of those factors don’t apply as directly. There’s very little quality difference between an authorized vs. pirated CD. A pirated program is the same bits as a legitimate copy. That removes some of the intrinsic value differences. Unfortunately, any sufficiently accurate playback is technically indistinguishable from copying… and the ease of copying causes some folks to ignore that it wasn’t so easy to create in the first place and that we need to pay the artists if we want them to create more.

        In an ideal world, voluntary payments would suffice. In this world, alas, public radio stations demonstrate that, given the option, there are a lot more consumers than supporters.

  2. Note that I have sent emails to all those who I have email addresses for, and I’m posting links on the blogs of all of the rest. If anyone has any suggestions of people that I should add to the list, please feel free to post them here.

    Some people, such as Corey Doctorow I didn’t list, because firstly they aren’t legal professionals, and secondly, they have been open about who they represent.


  3. My views as expressed on the 1709 copyright blog are mine and mine alone. I happen to be employed by Jetix Europe for a short fixed-term contract at present but they would probably be alarmed at some of the views I express. Since I only represent myself in my posts, I am representing myself as a human being first, someone who enjoys culture and computers second, then someone who creates (blogging, have written a novel, went to art school, amateur musician). My views probably don’t overlap much with yours though I have certainly learnt from your insights. Who do you represent?

    1. Hugo,

      Thank you for responding. I represent myself, plus a few unknown musicians who I do sound engineering for. Oh, and the Poet Laureate of the Temiskaming District, who happens to be my mother-in-law.


  4. PS I do not represent my wife (when has she ever trusted me to do anything?) but she is a singer-songwriter. Once lead singer for a band supporting David Bowie, she worked with a string of French household names. After a career break, here’s some new material:



    See what you think. All publishing and recording deals gratefully received. It ain’t easy breaking through in this business.

    1. Heh. My wife is a singer/songwriter/musician, and I’m her recording engineer.

      As to breaking through, I think it’s easier now than it ever has been. You don’t need a label anymore. Several of our friends are now making their living from music, where ten years ago they couldn’t have, because the options for getting your name out there just didn’t exist (YouTube being a good example). It’s still not easy, but nothing is easy that is worth doing.


      1. Given how difficult it is, I think it makes sense to try to explore every possible angle – including record deals and viral YouTube promotion.


  5. I’ve received an email back from John Enser. He decided to reply on the 1709 Copyright Blog. I’m going to quote one short part of his response:

    From this writer’s perspective, the answer is clear – under the ethics rules applicable to my profession, I can only disclose the names of my clients and the work I do for them with the consent of those clients.

    So we have a situation where you think it is right to blog an opinion, which may be influenced by your client (we are all, after all, influenced by each other every day), and not disclose it? I would think in such a case silence would be more appropriate.


  6. Just FWIW: If I remember correctly, copyright in the US *used* to be 25 years plus one 25-year renewal, or something of that sort. The relatively recent Sonny Bono/Disney copyright act revised that upward. The excuse given was that this reconciled it with EEUU copyright rules; I’m still not convinced that this was necessary or appropriate. (After all, patent law — which is copyright’s close cousin — still differs from country to country.)

    Remember, copyright has two purposes — one being to reward creativity, but the other being to encourage that creativity to be shared with others so it can spark further creativity. I do believe that the life-plus version stifles the latter without significantly enhancing the former in more than a trivial number of cases.

    The goal should be to establish a reasonable compromise between those conflicting goals, to yield the greatest net social benefit — fair income for creators and publishers, but also fair accessibility and versatility.

    You can’t copyright a set of chord changes. I’m beginning to think that, now that our ability to discover conflicts has forced us to face how common they are, you probably shouldn’t be able to copyright a basic melodic phrase, or rhythm, or lick either… or at least, not for long, and only under the same terms as patent, where discovery of “prior art” invalidates the claim. Combining those into a song is a different matter, just as one can copyright any collection independent of the copyright status of its contents… but the copyright applies to the composite, not to the components.

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