As the Canadian government prepares to reform copyright legislation in the next few weeks, the North American entertainment industry is in the midst of a civil war.
On one side, media lobby groups, typified by the Recording Industry Association of America, seek to protect the media industry's status quo. These groups wish to maintain tight control of the distribution of music and other intellectual property and address industry concerns about piracy of copyrighted materials on the Internet by advocating for increased scrutiny of digital information traffic. On the other, almost paradoxically, is a growing group of musicians, filmmakers and other content creators, along with academics and policy-makers. Spurred to fight by recent heavy-handed measures on the part of the music industry (copy-protection software built into CDs that made them incompatible with many CD players, or the $222,000 lawsuit against American Jammie Thomas for sharing 24 songs online) and citing the unprecedented success of more relaxed approaches to intellectual property in the digital realm (Radiohead’s decision to sell its new album online), they want to see the government embrace the notion that the digital shift is not all bad.
The Canadian copyright battle sparked last November when Industry Minister Jim Prentice was rumoured to be drafting a bill for a Conservative attempt at reform echoing that of the Liberal party's failed Bill C-60, introduced in 2005 and effectively abandoned when the party lost power. Both the new draft and C-60 were built to emulate much older American copyright reform — the Digital Millenium Copyright Act (DMCA) — and though C-60 died with relatively little clamour, Prentice's new bill arrived with a crash when it appeared briefly and suddenly in government proceedings and disappeared even quicker on Dec. 10, 2007. Longtime copyright reform critic Charlie Angus: “What, did [Minister Prentice] just discover Facebook this morning?”
The revolution, as it turns out, will be Facebook-ized. Prentice's bill failed to get its legs because of a widespread, remarkably active letter-writing campaign directed at Prentice and his fellow MPs, which started out as a Facebook group — Fair Copyright for Canada. The group was formed by Canada Research chair on Internet and e-commerce law Michael Geist (www.michaelgeistgeist.ca). Now populated by more than 40,000 members, the group united to send a clear message to the government that there are many Canadians who feel that a bill like Prentice's would be harmful to Canadians’ ability to access information in the digital age.
Forefront in the minds of the Facebook crowd, and the part of the bill that is likely to affect the largest segment of the population, is so-called “anti-circumvention” legislation. This area of the bill, which is spiritually in line with the DMCA and almost dogmatic of the American approach to copyright reform, deals with digital rights management (DRM). This is the consumer-paranoid technology implemented on many types of media to help circumvent the piracy that it tacitly assumes everyone is engaged in. DRM will be familiar to avid music fans as “the thing that stops CDs from playing in computers and even occasionally CD players” and “the thing that stops me from copying this iTunes Store song more than three times.” In technical terms, it refers to a spectrum of software whose purpose ranges from preventing copying of files (as with iTunes) to the reporting of personal information to a copyright owner about attempts by consumers to copy their product. DRM has fallen out of fashion with media producers in the U.S. and Canada after some notorious incidents in 2005, most notably the “rootkit” fiasco, in which record label Sony-BMG implemented a DRM program that installed itself on consumers' computers without warning in an effort to grab information about alleged infringement attempts. The software gained the attention of privacy advocates the U.S., who pointed out that it was dangerously close to violating American privacy rights, which caused the DRM methods as a whole to come under question. Despite this, Prentice's bill, under the “anti-circumvention” heading, still contains measures that at best can be seen as a tacit encouragement to continue using the DRM philosophy and, at worst, has far more resounding repercussions.
Fair Copyright for Canada was launched as an attempt by thousands of people who considered themselves stakeholders in the implementation of new copyright law to express their dissatisfaction that more interested parties weren't taken into account during the drafting process. Such parties included the Association of Universities and Colleges of Canada (AUCC), a group representing 92 Canadian universities and colleges; the Canadian Music Creator's Coalition, representing 194 Canadian bands; and even the privacy commissioner of Canada — leader of the government office responsible for overseeing the Canadian Privacy Act.
“The bill that Industry Minister Jim Prentice had in mind would have very negative consequences for consumer rights, for research, for privacy, for free speech and for the digital environment,” Geist says. “This is not a niche issue to be left for a few lobby groups. Rather, the law has a direct impact on the daily lives of millions of Canadians....
“The anti-circumvention legislation provisions would have a very damaging effect on our education system and on consumer personal property rights,” he warns. For instance, anti-circumvention, already implemented under the DMCA in the U.S., in one famous case allowed the movie studio Universal City Studios, Inc. to bring legal action against someone who merely posted a link to software that could decode one of its DRM measures.
Intended as a way of legally encoding the notion that DRM-protected material should stay protected, the anti-circumvention provisions state that once a product is “locked” using DRM or similar measures, it is illegal to “unlock” it for any but the intended purpose. What this means to media consumers is that any CD containing DRM measures will no longer be legally allowed to be ripped to a computer, iPod or other mp3 player. Also disallowed would be any attempt to discuss how such locks might, in theory, be broken. Considering the recent decline in usage of DRM, it may seem like the provision doesn't require as much attention as it has been receiving, but opponents to the bill cite ways in which it could ultimately be harmful. One such warning comes from the Digital Security Coalition — an advocacy group representing private Canadian firms in the digital security industry — in one of the many letters sent to Prentice through the Facebook letter-writing campaign. It warns that the structure of the proposed legislation, coupled with the way computer viruses are implemented, gives legal recourse for computer virus writers to stand up to anti-virus software companies. Viruses, which propagate through the Internet in their unreadable binary form, must be “decoded” to be effectively read and stopped. Under anti-circumvention, an unscrupulous virus-coder could level this against an anti-virus software company attempting to perform such a decoding, and claim it runs contrary to the right afforded to them as creators to have their work remain locked.
Though the Facebook letter-writers cited these potential negative consequences in their response to the proposal of the new bill, Geist makes it clear their intent is not to stifle copyright law reform entirely. “I think there is some value in reform,” he says. “While copyright has proven remarkably resilient over the years, there are elements in the law that are unduly constraining that may harm creativity, innovation and consumer rights.”
In fact, reform is something that some of the letter writers feel is overdue. The AUCC, for example, is looking for a resolution to negative ramifications from an earlier reform to the “fair dealing” provisions of the Copyright Act in 1997 that made it legally difficult for university libraries to produce copies of any academic writing for further study in any other format than paper. The law effectively ensured that collaborative academic efforts using any modern communication methods were nearly out of the question for a Canadian university.
The message that Fair Copyright for Canada is trying to promote is one of awareness in the reform procedure. It advises that Prentice would benefit from intensified discourse with communities that create and consume intellectual property. Average Internet surfers are one such community whose opinions on copyright reform have not been considered adequately. Many are familiar with the power of the Internet to reshape how people create and distribute media.
A much-publicized example is the online sale of Radiohead's new album, In Rainbows. The band made the inspired decision to let buyers download the album at whatever cost they saw fit. They did so as a proof of principle that digital distribution is not incompatible with the needs of artists. Front man Thom Yorke has said that the profit from the album’s online sales even trumped that of its physical release.
Geist points to a similarly inspiring example of the changing needs and expectations of creative and consumer communities alike — collaborative, open-licence digital projects. “I think the collaborative innovation that we've seen in recent years — whether for open-source, Wikipedia-like projects, etc. — provide a model that... will have a growing impact in the years to come.” He says.
The open-source software community is a quiet corner of the Internet that, since its inception, has been devoted to freely sharing expertise to write large programs with functionality to rival that of the software giants. The endeavour has recently gained much clout and produced many large-scale, well-known results. From the Firefox web browser (www.mozilla.com/firefox) to user-friendly, complete computer operating systems like Novell's Open SuSE (opensuse.org) and Canonical's Ubuntu (www.ubuntu.com), open-source is becoming much more accessible than when it was solely the domain of a small group of hardcore devotees arguing about the fine points of programming styles on Internet message boards. Ubuntu has become so popular that the computer hardware giant Dell has started offering it on its laptops as an opt-out option for users who don't want Microsoft's Windows Vista.
The success of open-source projects depends on the creative capital of the project being free for anyone interested in contributing to take, learn from, modify and eventually improve upon them. This is in defiance of the perspective that American media lobby groups take, that financial security in a creative project requires careful control of the content. The lobby groups are effectively the playground bullies that don't realize it’s sometimes more fun to share the ball. Canonical spokesperson Gerry Carr speculates on the strange dichotomy present between the music and open-source software industries.
“For 50 years the [music] industry has taken music from its communities, professionalized and internationalized it, but allowed participation only in allowing people to buy records or pay for tickets,” Carr says. “Having a locked format (vinyl/CD) that [is] difficult to replicate allowed for this and the super profits inherent in it. Technology has overtaken the industry, and so it needs to change how it participates... building up a band and putting out a half-decent record with a 500 per cent mark-up is no longer relevant. Mass participation is relevant. Making money in the right way is the key. People will pay where you add value....”
As the war rages on about how we should move media into the digital future, and as Prentice's December bill has returned to loom once again on the horizon (this time it may be tabled before the end of February), it is important to study just who and what is affected most by the introduction of new legislation. If we progress too quickly, collaborate too little on the drafting of new policy or make assumptions about who is the “bad guy,” we may wind up facing a situation similar to that faced by the Italian government, which, due to too little scrutiny, recently passed a bill accidentally legalizing music file-sharing networks.
Or, as Dr. Geist puts it, “...It isn't about free music. It's about freedom in the online environment.”
