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|Written by Alroy Fonseca|
|Monday, 31 December 2007 19:00|
The Harper government will soon introduce a Canadian version of the 1998 American Digital Millennium Copyright Act (DMCA), a restrictive copyright law intended to lock down electronic music. The upcoming bill is not entirely new; it appears to be based on some concepts found in Bill C-60, which was introduced by the preceding Liberal government, but never became law.
Michael Geist, the Canada Research Chair of Internet and E-Commerce at the University of Ottawa, was opposed to Bill C-60, and is opposed to the upcoming legislation as well, which is intended to bring Canada in conformity with the 1996 World Intellectual Property Organization Internet Treaties. He has written that “[t]here is every indication this legislation will be a complete sell-out to US government and lobbyist demands.”
Howard Knopf, a well-known Ottawa-based copyright lawyer, has also cautioned against the new bill, and highlighted two key issues. First, the bill will likely put “digital locks” on our computers and cell phones, so that music cannot be transferred from one device to another. Users of Apple’s iTunes music store know this well, as most music sold there cannot be transferred to another non-Apple music player, should one choose to switch to a different device in the future. Second, the bill will almost surely make it possible for the big record companies to sue individual Canadians for suspected file-sharing.
In the US, the DMCA has allowed record companies to sue kids and grandparents for copyright violations. In one well-publicized case, a 12-year old girl from a poor New York City neighbourhood was sued for $150,000 by the Recording Industry Association of America because she downloaded some movie theme songs. Clearly, Canadian internet users are concerned about the new powers that record labels will acquire with the forthcoming copyright law, and early indications, to which we will return, are that they will put up a hard fight to stop the bill in its tracks.
This battle unfolds in the midst of a strong developing trend, especially within ‘internet communities,’ away from the old, restrictive notions of copyright, which all too often have been abused by large corporations against the public interest, and towards open, shared information exchange.
The risk posed by restrictive copyright laws was well demonstrated in 2005, when the classic 1980s documentary series on the American Civil Rights movement, Eyes on the Prize, could no longer be distributed or broadcast because licenses on copyrighted news footage and music had expired and proved too expensive to renew.
Jon Else, a filmmaker who helped shoot the documentary, commented that the media archives, which “are now increasingly under corporate consolidation, see this [the licensing of historical media] as a ready source of income. It has turned our history into a commodity. They might as well be selling underwear or gasoline.” After news of the documentary’s demise caused an outrage, a private donation of $250,000 and a Ford Foundation grant of $600,000 allowed filmmakers to renew copyrighted footage and music used in the film. Nevertheless, this episode raises important questions about how much power the owner of copyrighted material should have over those who make use of it in subsequent works, especially when it is so valuable to the public interest.
Elsewhere, corporate copyright holders have been able to squeeze academic institutions for access to research literature. For example, the cost to universities of maintaining a comprehensive collection of journals has been increasing quickly – by about 175% between 1986 and 1999. As a result, increased library spending on journals has not translated into a proportional increase in titles acquired.
The main reason for this increase in cost is that major academic journals in lucrative fields like medicine have been acquired by commercial publishers such as Reed Elsevier, who then raise prices to increase profits. Yet, as science and technology journals become more expensive to acquire, libraries have less money to spend on journals in other areas. As a 2003 report by the Canadian Federation of Students warned: “This prevents acquisition growth in other fields, such as the humanities and social sciences, and even leads to subscription non-renewals and cancellations. As a result, scholars in the humanities and social sciences not only have access to fewer resources in their fields, but have fewer options for publishing their work as the monograph market shrinks.”
Besides these concerns, there is the deeper issue of corporate control. As a matter of principle, universities should exist to serve the public good, and should therefore make their research findings available to the public. But more specifically, why should corporations hold copyright over government-funded research presented in academic journals? Universities in Canada and in many other parts of the world are heavily financed by tax-payers, and many large research projects are funded through public grants from federal research councils. Given this situation, there is no question that literature reporting on research outcomes should be made available to the public for free.
To counter corporate control, a number of universities, especially in Europe, have been promoting “open access” initiatives to prevent copyright from restricting access to research findings. This process received a boost in 2004 when the UK House of Commons’ Science and Technology Committee delivered a report on the issue and recommended “that all UK higher education institutions establish institutional repositories on which their published output can be stored and from which it can be read, free of charge, online.” In 2005, for example, Southampton University made all of its academic and scientific research literature available for free on the internet. This move was followed shortly thereafter by the Institute of Physics, the principal association of physicists in the UK, when it announced that universities would be given free access to the Institute’s 100 year archive, containing some 110,000 articles. In the Netherlands, scientists from all major universities launched the DAREnet initiative, which allows free access to some 50,000 digital documents produced by Dutch academics, much to the consternation of commercial publishers.
Meanwhile, the billionaire philanthropist George Soros put financial support behind the so-called Budapest Open Access Initiative, which seeks to revive “the willingness of scientists and scholars to publish the fruits of their research in scholarly journals without payment, for the sake of inquiry and knowledge.” Since its launch in 2001, several hundred institutes, ranging from Carnegie Mellon University to the Canadian Association of Research Libraries, have signed on to the initiative.
More broadly, the internet has led to the proliferation of many websites that distribute content for free. In particular, the user-contributed Wikipedia has grown to become one of the most popular destinations on the web, overtaking Microsoft’s proprietary Encarta Online encyclopedia as a reference resource. This, along with sites like YouTube, which distribute all sorts of user-added content for free, has contributed to the widely held attitude of online users that access to information should not be unduly restricted by corporations. Like this magazine, many content producers on the internet are voluntarily choosing to adopt the Creative Commons standard, which encourages free distribution of information.
The open approach has also been embraced by software developers around the world. Open-source software, such as the Linux operating system and the Mozilla Firefox browser, are freely distributable under the General Public License (GPL), which allows for modification of the source code and forbids copyrighting of the software. As many programmers and users will attest, the open GPL model promotes quicker innovation and higher quality software when compared to proprietary models.
Large institutions have also shown interest in adopting open-source software, as these products are not governed by the same restrictive end-user licenses as those from vendors like Microsoft. As early as 2003, the Korean government announced that it would switch some twenty percent of its computers to Linux within the following years. Similar transitions to open-source have also been pursued by the bureaucracies of diverse countries like Brazil and Germany.
Indeed, there is a clear trend towards open, unrestricted information exchange in various domains being led by progressive individuals and institutions around the world. It appears that Canadians, too, are interested in challenging the status quo, and reducing the control exerted by corporations on so-called intellectual property. When Geist, the University of Ottawa law professor, started a Facebook group (Fair Copyright for Canada) on December 1, 2007, to educate the Canadian public about the government’s new bill, it grew rapidly, boasting 25,000 members by mid-month.
This, along with resistance to the bill in call-in radio shows and television programs, as well as emails and telephone calls to Members of Parliament from concerned Canadians, led Industry Minister Jim Prentice to delay introduction of the new law.
As Geist has written, “[t]he public was last consulted on digital copyright reform more than six years ago in 2001. Given the dramatic change since that time, why has the government not consulted the public on this issue before introducing major copyright reforms?” Don Butcher, Executive Director of the Canadian Libraries Association, recently noted that introduction of the new bill represents “a battle between Hollywood lobbyists versus the average Canadian.” His organization, along with the Canadian Internet Policy and Public Interest Clinic and the Canadian Music Creators Coalition (CMCC), have all called on the government for broader consultation with the public on the copyright issue, before any new law is proposed.
The CMCC’s position is of particular significance, as the organization is supported by some of the biggest Canadian recording artists, including Feist, Sarah McLachlan, Avril Lavigne, Barenaked Ladies, and Broken Social Scene. Writing for the National Post in 2006, Steve Page of the Barenaked Ladies presented the CMCC’s two basic principles with respect to copyright reform: first, “we believe that suing our fans [for music downloading] is destructive and hypocritical,” and second, “we believe that the use of digital locks … are risky and counterproductive. We do not support using digital locks to increase the [recording] labels' control over the distribution, use and enjoyment of music, nor do we support laws that prohibit circumvention of such technological measures…” Unfortunately, indications are that the forthcoming bill does not adhere to either of these two principles.
The Canadian Recording Industry Association likes to play victim and complain that internet music downloading prevents record labels from making money. Yet, a recent report by Statistics Canada shows that, although the industry’s revenue has decreased by 8.6% between 2003 and 2005, its profit margin actually increased from 0.1% to 7.0% ($4.2 to $55.6 million) between the same years due to cheaper digital music distribution. Now, if record labels are unsatisfied with this and wish to increase revenues and profit margins, they should think of innovative ways of doing business instead of lobbying government for restrictive laws.
There needs to be new thinking on copyright, and any new legislation should incorporate new ideas offered by the Canadian public. Music, films, articles and other such content are an integral part of our common heritage and thus fundamental to the public interest. Canada should become a leader in reforming the realm of copyright law, and bring it more into line with the progressive approaches outlined above.