An Explanation Of My Views On Copyright Part One

Over on the Facebook Balanced Copyright Page, Sara Hutchenson said:

OK, Wayne, since you’re starting to become a regular visitor here, it’s time for you to start offering more than just boilerplate disagreement.

Why is it a “lousy view”? I know a lot of artists who would and do agree with that point of view: it’s not just a copy of file, it’s a piece of art. How about instead of throwing up links from other people, you start qualifying your remarks.

Facebook has it’s points, however the limitations of the platform make writing long answers difficult. Formatting is a nightmare, and it has issues with links. So I’m doing it here.

WARNING – this is a long one. I suggest that you get your beverage of choice now, before you read any further.

1) Acknowledgments

I would like to thank the following people, who all have helped shape my understanding of the situation, EVEN THOSE WHO I DISAGREE WITH. In fact I’ve learned more from those I disagree with, because I had to parse their claims and statements carefully to determine what they really meant. And quite frankly, me being me, I disagreed with everyone on one point or another. I apologize to any who I have missed.

Here they are in last name alphabetical order:

Steve Albini, Charlie Angus, Sanjeev Anirudh, Randy Bachman, Chet Baker, Steve Ballmer, Heather Borean, Vicky Borean, Ed Broadbent, Fred Brown, Chris Castle, Ben Challis, C. J. Cherryh, Tony Clement, Winston Churchill, Hugo Cox, Gary Cross, John Davidson-Kelly, Charlie Demerjian, Cory Doctorow, Sherman Dorn, John Dozier Jr., David Eaves, Alan Ellis, John Enser, Nora Ephron, Dr. Mihaly Ficsor, Leslie Fish, Eric Flint, J. D. Frazer, Neil Gaiman, James Gammon, Jane Garthson, Bill Gates, Michael Geist, Lynn Gold, Taunya Gren, Andrew Grygus, Patti Hall, Amanda Harcourt, Tom Harding, Orrin Hatch, Frank Hayes, Sally Headford, Don Henley, Shawn Henderson, Paul David Hewson, Pat (P.C.) Hodgell, Byron Holland, Tanya Huff, Janis Ian, Tom Jeffers, Steve Jobs, Brad Johnston, Pamela Jones, Jordin Kare, Desmond Kavanagh, Joseph Kesselman, Stephen Kinsella, Howard Knopf, Mercedes Lackey, Bob Laurent, Larry Lessig, Sebastian Lewis, Courtney Love, J. Spencer Love, Michael Lynton, Catherine MacDonald, Mike Madison, Kathy Mar, Ann Margetson, Mike Masnick, Victor Matysiak, Darl McBride, Russell McOrmond, Shirley Meier, John Mellencamp, Glyn Moody, James Moore, Brian Mulroney, Rupert Murdoch, Larry Niven, Ed O’Brien, Ciarán O’Riordan, Debbie Ohi, Stephen Oulton, Richard Owens, Nina Paley, Amanda Palmer, Jeremy Phillips, Gene Quinn, Tim Quirk, Patrick Ross, Laurel Russwurm, Robert Sawyer, Dr. Roy Schestowitz, Wouter Schilpzand, Ben Sheffner, Clay Shirky, Hanna Sköld, Tom Smith, Barry Sookman, Ken Starks, Robin Sutherland, Richard M. Stallman, Samuli Torssonen, Linus Torvalds, Sam Trosow, Pierre Elliot Trudeau, Mark Twain, David Weber, Rob Weir, Karen Wehrstein, and Mike Whitaker

Not all of the people above are public figures, so you may not recognize many of the names. Several (Winston Churchill and Mark Twain for example) are long dead. Some are politicians, some are writers, some are musicians, some are software engineers, some are all of the above or other things. If you want to look them up, I suggest you use Google.

2) Definitions

This is the difficult part. It is impossible to explicate an argument when two or more parties cannot agree on the meaning of the words being used. In many cases people have a less than clear understanding of what a word means. Many online sources are less than accurate in this regard as well. In English it is quite possible for a word to have multiple meanings. To take a section from Through the Looking Glass by Lewis Carroll:

“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master      that’s all.”
Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them—particularly verbs, they’re the proudest—adjectives you can do anything with, but not verbs—however, I can manage the whole lot! Impenetrability! That’s what I say!”

Since I don’t want you as confused as Alice, I need to tell you what I mean.

Canada – Unless otherwise mentioned, I am speaking of the situation in Canada. Links for definitions, and the text in italics is taken from Wikipedia.

Law

Law is a system of rules, usually enforced through a set of institutions. Laws can shape or reflect politics, economics and society in numerous ways and serves as a primary social mediator of relations between people.

The second sentence is in many ways more important than the first. Most people think of law as immutable. This is wrong. Law is a constantly changing construct, which is used to shape society, rather as a gardener shapes a Bonsai tree.

For an example of shaping society, consider the difference in gun laws between the Canada and the United States. The difference is caused in part by a section of the United States Constitution, and also by a certain paranoia that many Americans seem to suffer from. The societal differences also cause technical differences, for example hospitals in the United States are far more experienced in handling gunshot wounds than Canadian hospitals. Whether this expertise is an advantage or not, depends upon the individual’s viewpoint.

In Canada laws are enacted by our elected (hired) representatives who are supposed to take our best interests in mind. When I use the word ‘our’, I mean the citizens of Canada. Corporations are technically supposed to have no input, as corporations are unable to vote, however there are certain rules which allow a corporation to have input, through the human who represents the corporation’s interest.

Some people in the United States believe that Special Interest Groups (which includes Corporations) have gained too much political power, and have corrupted the government. The situation is somewhat different in Canada, where political campaigns are partially government funded, however we have our problems too. In fact the new copyright act, Bill C-32 reads like it was partially written by industry representatives, and almost completely ignores the submissions of Canadians to the Copyright Consultation. Note that I predicted this turn of events back in April of this year.

Copyright

Copyright is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or fixation. In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses which are covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others.

This is the general understanding of copyright that most people have. While it is partially correct, it is not complete. Let’s take a look at what is missing.

Historically copyright was first implemented to protect the printers, from each other in the sixteenth century, through the Licensing Act of 1662. The first legislation that we would consider a real Copyright law was enacted in England in 1709, and is known as the Statute of Anne. Again, quoting Wikipedia:

The origins of copyright law in most European countries lies in efforts by governments to regulate and control the output of printers. The technology of printing was invented and widely established in the 15th and 16th centuries. Before the printing press a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying out. Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information. While governments and church encouraged printing in many ways, which allowed the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licences to trade and produce books. The licenses typically gave printers the exclusive right to print particular works for a fixed period of years, and enabled the printer to prevent others from printing the same work during that period. The licenses could only grant rights to print in the territory of the state that had granted them, but they did usually prohibit the import of foreign printing.

In England the printers, known as stationers, formed a collective organisation, the Stationers’ Company. In the 16th century the Stationers’ Company was given the power to require all lawfully printed books to be entered into its register. Only members of the Stationers’ Company could enter books into the register. This meant that the Stationers’ Company achieved a dominant position over publishing in 17th century England (no equivalent arrangement formed in Scotland and Ireland). But the monopoly, granted to the Stationers’ Company through the Licensing Act 1662, came to an end when parliament decided to not renew the Act after it lapsed in May 1695.

The second paragraph is the important point. The printer’s collective, known as the Stationer’s Company wanted to prevent competition, by locking out new entrants into the business. If a printer is going to print a book, and his competitor prints the same book, the first printer isn’t going to sell as many copies. There was also a view at the time, that there weren’t enough talented writers to make more printers economically feasible. The stationers (or printers) wanted to avoid this. From one point of view, it was an anti-competitive act. From their point of view, it was a necessity, because of the high costs involved in setting up a plant to print in volume.

Curiously, Martin Luther stated in 1569 that ‘The multitude of books is a great evil. There is no measure of limit to this fever for writing; every one must be an author; some out of vanity, to acquire celebrity and raise up a name; others for the sake of mere gain.‘ Obviously Luther disagreed with the Stationer’s Company. So did Edgar Allen Poe, who in 1845 said ‘The enormous multiplication of books in every branch of knowledge is one of the greatest evils of this age; since it presents one of the most serious obstacles to the acquisition of correct information by throwing in the reader’s way piles of lumber in which he must painfully grope for the scraps of useful lumber.’

The Statute of Anne’s real title was ‘An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned,‘ and in the title of the act, Authors for the first time, not Printers are clearly mentioned. The final draft had the words ‘encouragement of learned men to compose and write useful books.’ So the final act was to encourage ‘learned people to write’, after all you wouldn’t want just anyone doing such a dangerous thing. It also incorporated a limited time of protection, to ensure that a writer would be encouraged to keep on writing, to ‘keep the wolves from the door.’ To keep earning, the writer had to keep writing. Parliament deliberately added the wording to limit the protection period, the original draft did not have a limit.

Copyright was later stretched to cover song lyrics, recorded music, computer programs, maps, dramatic works, paintings, photographs, and film productions, in a ‘One Size Fits All’ manner. Whether all of the above should be covered in exactly the same way, by the same legislation is under discussion. For example computer programs are generally not usable for long periods of time, while books are. Maps are also only useful for a limited time period, the town I grew up in has changed so much in the last fifty years, that a map from my youth would be worthless for practical purposes, however it is still under copyright.

Canadian Copyright Act of 1985 (Bill c-42) – The link is to the Department of Justice Website, where the entire act is online. As is common with legislation, the first several pages are filled with definitions (like this definition). This is the current act, and is the cause of much complaint, as it was designed at a time when reproduction and distribution were not easily accomplished.

The Content Industry

The term Content Industry refers to everyone who produces content. What a wonderful, circular definition! In effect content means anything that is produced for enjoyment – games, music, videos, etc. About the only items that fall under copyright law that aren’t content are computer programs which are not games. A game is content. Microsoft Windows, Mac OSX, and your Office Suite software aren’t content.

This is the reason that the definitions section is so long. English is a very imprecise language in many ways. While this is a weakness, it’s also a strength, because it is so easy to add to it.

The Music Industry

While the link leads to Wikipedia, this is my own explanation, because the one on Wikipedia is not inclusive. Defining the Music Industry is much like defining cyberspace. Certain parts of the music industry are highly visible, like the RIAA, the CRIA, and their member companies, who have been agitating for the new copyright bill, Bill C-32, or for something more stringent. These companies have functioned as part of the distributing and marketing arm the music industry for years. Financially they have been the largest segment of the industry, and are often talked about as if they are the entire industry.

Other parts are virtually invisible. People like Tom Smith, Leslie Fish, Kay Shapero, Jordin Kare, Mitchell Burnside-Clapp, etc., etc. don’t have distributing and marketing arm recording contracts, but are part of the music industry too.

There is also the major artists, like the Beatles, AC/DC, insert favorite act name here. While highly visible, and supposedly what the distributing and marketing arm exists to serve, they have little effective power, in most cases being forced to sign over creative control of their artistic endeavors to the distributing and marketing arm of the industry. Note that this is the only major creative industry with this requirement, thus my suggestion during the Canadian Copyright Consultation:

That Copyrighted should only be able to be held by a living being, specifically the producer of the work in question, or their heirs, that it can be leased to a corporate entity for a period of no more than 5 years, and that automatic renewal not be allowed.

I have been told that this part of my submission caused some upset to the RIAA/CRIA members. My later suggestion that copyright not be transferable, except as an inheritance after the death of the original creator is another one that they do not like at all.

Also included in the industry are the various methods of delivering music to the person who wants it, such as retail stores, online stores, concert promoters, event venues, ticket sales organizations, etc.

In the first paragraph I said that defining the industry is difficult. The reason for this is that we are currently going through a wave of Disruptive Technological Change. One example is recording equipment. Ten years ago the technology required to record music was still expensive. Today I own my own recording studio, and it was relatively inexpensive. In effect I am now a part of the distributing and marketing arm of the industry, whether the RIAA or CRIA wants me or not. The drop in costs to join various parts of the industry has dropped dramatically in recent years.

There are further disruptive changes going on, in effect, we have hit a Disruptive Technological Perfect Storm.

The Publishing Industry

Like the Music Industry, the Publishing Industry is somewhat difficult to define, and for the same reasons. All of my comments for the Music Industry are also true for the Publishing Industry, with some modifications.

The Film Industry

Like the Music Industry, the Film Industry is somewhat difficult to define, and for the same reasons. All of my comments for the Music Industry are also true for the Film Industry, with some modifications. While it is still referred to as the Film Industry, film is no longer used by most projects.

The Theater Industry

Like the Music Industry, the Theater Industry is somewhat difficult to define, and for the same reasons. All of my comments for the Music Industry are also true for the Theater Industry, with some modifications.

The Software Industry

Like the Music Industry, the Software Industry is somewhat difficult to define, and for the same reasons. Most of my comments for the Music Industry are also true for the Software Industry, with one major difference. The cost to enter the Software Industry has historically been extremely low. While costs have risen in recent years, the rise has been related to incidentals, most specifically artwork in games. A comparison of a modern computer game like Starcraft II with a game from five years ago, shows that there is far greater detail on the screen in the newer product.

For an example of the low entry costs for the software industry, consider the game Myst. It was the product of two brothers, and became a bestseller.

Globalization

For the purposes of this essay, Globalization is the process whereby goods, ideas, and concepts are spread over larger and larger geographical areas, to be precise, the effect of Disruptive Technological Change. The first wave of Globalization came with the invention of language by our ancestors in Africa. Yes Virginia, Language is a technology.

Language allowed communication of concepts to others, which was impossible before. Communication allowed one member of a tribe to communicate what he or she had learned to another member of the tribe, or a tribe to communicate what it had learned to another tribe.

Another wave of Globalization came with the invention of better sailing ships, which allowed regular trade over longer distances, and the colonization of new lands. A further wave came with the invention of the printing press, which lowered the cost of book ownership, as both Poe and Luther both bemoaned in the quotes above.

The common feature of each wave of Globalization is Disruption. We suspect that the invention of language allowed our ancestors to better survive and reproduce, because there is no species of homo that doesn’t use it. We know that better sailing technology caused disruptions in the countries that adopted it, if you read old accounts you will see complaints about the Nouveau Riche who made their fortunes with the new technology. We know that increased access to written matter enabled advances in education, and another new class of Nouveau Riche, and that it also enabled Science and the other Arts to grow.

There are many other examples of Globalization, such as the adoption of steam driven ships, and the improvements to those ships such as the adoption of the high pressure boiler, the turbine, and other systems, and later the replacement of steam with Diesel powered reciprocating engines. Each new change brought greater efficiency to the spread of goods and ideas. The Internet in it’s many forms, is just another example of Globalization, and possibly the most efficient one yet.

Intellectual Property

This term is a misnomer. It is an attempt to include Copyrights, Patents, and Trademarks under one heading. Another term commonly used is Intangible Property. The issue with attempting to link Copyrights, Patents, and Trademarks is that the three concepts serve widely different purposes, and are covered by widely differing legislation. The World Intellectual Property Organization is a United Nations agency which exists as ‘one of the 16 specialized agencies of the United Nations. WIPO was created in 1967 “to encourage creative activity, to promote the protection of intellectual property throughout the world.

The WIPO originally existed to convince the countries who are members of the United Nations to adopt ‘One Size Fits All’ Intellectual Property regimes, and was driven by Corporate Interests. This has changed recently, which is why the Anti-Counterfeiting Trade Agreement is being negotiated outside the WIPO.

The biggest problem in attempting to develop consistent worldwide laws in any field is that each country’s interests are different. One example is the United States, which has a well developed Film Industry. The Film Industry in the U.S. employs a lot of people, and earns a lot of money. Therefore the United States would like to develop stronger protection for this important domestic industry. This may not be in the interest of India, which has it’s own well developed Film Industry. Laws that benefit American Industry, may be damaging to Indian Industry (or the Canadian Film Industry for that matter).

Corporation

A corporation is an institution that is granted a charter recognizing it as a separate legal entity having its own privileges, and liabilities distinct from those of its members.[1] There are many different forms of corporations, most of which are used to conduct business.

This is another definition that is true, but not complete. Corporations are not human. They therefore are not moral. Employees of corporations may be moral, or they may not be, just like anyone who you interact with. As an aside, I recommend the book Snakes In Suits for a rather interesting study of sociopaths in the corporate setting.

Whether or not individual employees are moral or not, as stated above, corporations are amoral. The only interest a corporation has is Profitability, which can lead to Profiteering. The actions of a corporation depend upon the ability, intelligence, foresight and judgment of management.

For example consider the three largest American automobile manufacturers. For years all three of them opposed in increase in the minimum fuel economy laws in the United States, which are known as the Corporate Average Fuel Economy regulations. This opposition is documented by congressional testimony by senior management from all three companies, and when recently the price per barrel of oil skyrocketed, they were unprepared for the fallout. When the oil price jump was followed by the economic meltdown, further depressing the sales of their products, two of the three had to file for bankruptcy to stay in business.

Management of a corporation is supposed to be responsible to the owners (shareholders in the case of publicly held companies, which all three of them were). By filing for Chapter 11 bankruptcy, Chrysler and General Motors destroyed their shareholders equity stake, causing huge loses of money. Losing your investments is not in the interest of shareholders, which is one of the reasons that the U.S. Government forced top level management to resign as part of the government bailout which kept the companies in business.

In theory corporations are supposed to be responsive to their customers. Under economic theory, if the corporation hurts the customer’s interests, the customer will act in their own self interest, and find another supplier of the good or service required. In some cases this is not possible because the good will only be available from one corporation, one example being a musician who is under contract. In other cases, the corporation may have managed to monopolize it’s market, such as Microsoft did in the United States, which lead to the United States Government charging the company under the Sherman Anti-Trust Act.

Consumer Protection Legislation is sometimes enacted by governments. Curiously companies almost always oppose such measures. By opposing these measures, the corporation is showing it’s lack of respect for it’s customers. Note that Anti-Trust legislation is technically not consumer protection legislation, as it also functions to protect other corporations from predatory practises.

Many of the companies involved in the various industries that use copyright law are publicly traded companies. They operate under a variety of management systems, and have shown a variety of coping mechanisms. In some cases, such as Apple Inc., the company appears to be consumer oriented. While Apple holds a majority share of the MP3 player market, the company is constantly evolving it’s product, adding capabilities and features which make the product more valuable to the consumer.

Other companies, and their trade associations, instead attempt to avoid change of any sort. To quote Jack Valenti, the past President of the Motion Picture Association of America, in his testimony to the U.S. Congress about Video Cassette Recorders:

I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.

The VCR was a typical disruptive technology. It allowed the consumer to watch what they wanted, when they wanted. It also opened up a market for low budget productions, as it was cheaper and simpler to produce. The later introduction of inexpensive camcorders opened this market up further, by lowering the costs of video production even more.

Jack Valenti was wrong. The VCR ended up being a huge boon to the industry, which soon relied upon sales of prerecorded tapes for much of it’s profits. The industry later switched to the Digital Video Disc standard, which offered even more advantages (more durable, smaller, better picture quality). DVD lowered the cost of entry into the market further. It is possible with relative inexpensive equipment to produce a feature length film, like Hanna Sköld’s Nasty Old People, and Nina Paley’s Sita Sings the Blues. Both can be legally downloaded from The Pirate Bay, both Hanna and Nina are using it as a distribution mechanism.

Every Disruptive Technology has caused a reaction like Jack Valenti’s by the Corporations involved. Artists have also fought these new means of production and/or distribution. In a submission to Congress about the new-fangled phonograph John Philip Sousa, the great American Composer and Conductor said:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

In closing this section, there is this really neat online comic, which addressed the hypocrisy which one sometimes meets in dealing with Corporations

GPL Killed the MPAA Star
Corporate Hypocrisy

And yes, the MPAA, an organization which constantly complains that it’s losing money because of copyright infringement, was guilty of copyright infringement. One of the authors of the software had to use the Digital Millennium Copyright Act to force the MPAA into compliance. Isn’t that wonderful?

3) Boy Are You Long Winded

Yes, this is taking a long time. I hope that you did as I suggested, and got a beverage. The problem is of course, that I do not know what everyone who reads this will know and understand, so yes, the first part is boring. It’s also necessary.

The remainder of the article is in Part 2 – I’ve just found out that Word Press doesn’t like 9000 word posts 🙂

Regards

Wayne Borean

Tuesday September 7, 2010

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4 thoughts on “An Explanation Of My Views On Copyright Part One

  1. I have to tell you I was surprised & honored to be included in your acknowledgments. It’s gratifying to think some of my online writing has made sense; and it’s always difficult to know if the ideas get across.

    Your ideas certainly have. Although I’ve a bit of copyright grounding, I have to tell you your essay was anything but boring. Yes it’s long, but it’s a complex subject with a lot to assimilate. You’ve presented the background well, and in a highly entertaining fashion with an interesting selection of quotations. So far I’ve only had time to finish part one, but I’m looking forward to reading part two later today.

    There are so many misconceptions around the idea of copyright, which is why this is an especially important article. People first need to understand the background to be able to follow the copyright arguments, particularly as the legal changes being both contemplated and undertaken will have incredible consequences for us all. Well done.

      1. Why is that bad news? You’re doing a great job and I like reading.

        On the other hand as a blogger I can quite understand how dismaying wrestling a giant subject like that into submission. It can be daunting from the writing side. (My biggest problem at the moment is I seem short on reading time just now…. my brain is jello from working on a CC post I’ve been working on on and off over the last month. But in the words of the governor of California: “I’ll Be Back!”)

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