On Rhetoric the Morning After

Mme Bulte lost her seat last night by more than 2,200 votes. In the previous election, she led by about 3,500. That’s a difference of almost 6,000 votes out of about 51,000.

She called her critics, who were concerned about her election funding and fund raising activities, not to mention her excessive copyright policies, "pro-user zealots".

Many of these critics doubtless lived in her district. Perhaps it would have been more accurate and constructive to have referred to them as "voters".

HK

M.P. Threatens to Sue Professor

Hon. Sarmite Bulte, P.C., M.P.:

"I will not be silenced by zealots like Michael Geist and political opportunists like Peggy Nash who are making something out of nothing," she said, adding that she believes Mr. Geist's comments are nearing the point of being defamatory.

"I am not going to sue him before the election but dammit, watch me after the election."

(emphasis added)

January19, 2006, Globe and Mail

This posting will be updated after the election, which will be on January 23, 2006.

Speaking of Smear Campaigns

Sometimes we miss the forest for the trees. The Bulte imbroglio is morphing.

The Creators' Copyright Coalition (CCC) is apparently shocked, shocked to see criticisms (which they call a “smear campaign”) of Canadian copyright law, policy and policy makers ...“Particularly when they come from the American lobby group Electronic Frontier Foundation, which is rich but ignorant of Canadian issues”.

Imagine. An American lobby group. Rich. Ignorant of Canadian issues. Active in Canada. American interests lobbying in Canada. Copyright interest groups with money. In our cities. In Canada. I’m not making this up.

That indeed is the CCC’s concern.

So, I wonder how the CCC would describe CAAST, CRIA, CMPDA, CMRRA, CPCC, ESA and other so-called “Canadian” lobby groups and collectives that it must think are operating on modest budgets and are genuinely concerned and knowledgeable about the needs of actual Canadian creators. Otherwise, I’m sure that the CCC would be outraged about their presence on Canadian copyright soil as well.

Seriously, I actually have no problem with rich American lobby groups that are knowledge about Canadian law and society operating in Canada to protect their interests. That’s inevitable, and can even be helpful if their policy agenda coincides with the Canadian public interest. Sometimes they can (hopefully accurately) inform beleaguered bureaucrats about international case law and othe developments that are not always so easy to research. In any event, they’re entitled to present their point of view. That’s globalization and freedom of expression. But there should be some serious transparency in the effort and it is not always present.

CRIA, the Canadian Recording Industry Association for example, wraps itself in the flag of Canadian creators, but this is a flag of convenience that simply doesn’t fly. At a 2004 conference in New York, a prominent international lobbyist in the entertainment industry referred to CRIA in a memorable Freudian slip as the "Canadian Recording Industry of America".

And speaking of excess smear campaigns, I recall that a certain spokesperson for the Writers' Union of Canada (c/o which CCC snail mail is to be sent) and the League of Canadian Poets, two members of the CCC, uttered the following memorable metaphor in conclusion to her testimony in 1996 to the Parliamentary Committee that produced the dreadful amendments to Bill C-32:

In conclusion, I want to emphasis that writers are small business people and our copyrights are often our only real assets. Exceptions to copyright are an expropriation of our property against our will. If copyrights were cars, this would be car theft.

(Emphasis added)

Exceptions to copyright. Car theft. Expropriation. That’s what she said. I’m not making this up.

Funny that the Supreme Court of Canada somehow doesn’t buy into this memorable metaphor:

The respondent contends that s. 2.4(1)(b) is an exemption from liability and should be read narrowly; but this is incorrect. Under the Copyright Act, the rights of the copyright owner and the limitations on those rights should be read together to give “the fair and balanced reading that befits remedial legislation” (CCH, supra, para. 48).

Section 2.4(1)(b) is not a loophole but an important element of the balance struck by the statutory copyright scheme.

(emphasis added)

SOCAN v. CAIP 2004 SCC 45. per Justice Binne.

And who was the wise sage who penned this car theft canard? None other than Margaret Atwood, a doyenne maybe of CanLit but hardly of legal logic.

HK

More Excess Rhetoric - "apologists for piracy"

The Creators' Copyright Coalition (which mostly consists of collectives and lobby groups) is entitled to defend the Honourable Sarmite Bulte, M.P., who, by all accounts including her own, is their champion.

Their choice of language is, however, more than a bit excessive and is frankly ultimately counterproductive:

What a shame to see her (and the whole political process) subjected to crude smears about money and foreign interests. Particularly when they come from the American lobby group Electronic Frontier Foundation, which is rich but ignorant of Canadian issues, and by the Canadian creators’ most implacable foes, the academic apologists for piracy.

(emphasis added)

See the full “op-ed” on their website.

I know a lot of academics from around the world but I don't know any academic "apologists for piracy" - in Canada or elsewhere. I do know that there are many brave academics in the USA, Europe, Australia, and some in developing countries and a few in Canada (e.g. Michael Geist who is empowering his Canadian colleagues), who use their hard earned positions to do what they are supposed to do - which is to analyze and explain the history and theory of copyright law and to suggest ways in which it could be improved in the public interest.

As for the EFF, it is neither rich financially nor ignorant of Canadian issues. It is, however, very rich in resolve , expertise and integrity and the enthusiasm of its brilliant young staff. It has done spectacular public interest work on a shoe string in the USA and I and many others welcome its support of copyright reform in Canada through Online Rights Canada. The EFF website is one of the greatest research tools and archives around for hot button issues in American and international copyright law.

After all, copyright law is about the public interest, isn’t it? It’s not just about the sense of entitlement that certain corporate and collective interests have come to view as a natural right.

Do the American automobile companies call those who buy better and cheaper cars from Japan and elsewhere, or who ride bicycles, “thieves”? Do they – until recently one of the most protected industries of modern times – claim that they are entitled by law to maintain their yearly sales in the face of new technology, increased competition and – horror of horrors – new business models, such a public transportation? Even they have realized that the times, they are a-changin’.

Unfortunately, in the current excessive rhetoric, the following are just some of the areas of academic discussion that seem to have been conflated with “piracy”:

• Questioning the wisdom of the American DMCA and its importation into Canada
• Questioning Sony’s right to infect its customers’ computers with spyware and security holes
• Questioning the right of Canadians to engage in private copying, including downloading, when Canadians pay very high tariffs for precisely this right as a quid pro quo for one of the richest levy schemes in the world
• Questioning those (presumably including the Supreme Court of Canada) who believe in a wider concept of fair dealing or even that most American of notions, fair use. Interestingly, I’ve heard several reports that Glen Bloom, long time and able champion of corporate and collective copyright and adjunct academic, told a Law Society CLE on Friday the 13^th last that he has now changed his tune and believes in the expanded notion of fair use in Canada.

“Piracy” is a word that should be used carefully and properly and applied only to harmful intentional commercial scale infringement. It is wholly inappropriate to apply the word to teenagers who engage in downloading music that they love, or their grandmothers who provide them internet access on occasion, or to law professors who have the temerity to believe in the inconvenient fact (as seen by the corporate and collective point of view) that there are also users’ rights in copyright law.

Overuse of the rhetoric of piracy is at best crying wolf. At worst, it is crude propaganda that has fooled some of the politicians some of the time in Canada and elsewhere but won’t work in the long run.

If there is going to be a meaningful debate about this in Canada, the Creators' Copyright Coalition and their friends should apply their creative and communication skills in a less hysteric and more constructive manner.

HK

Excess Rhetoric

The Honourable Sarmite Bulte, former Chair of the Canadian Heritage Committee of the House of Commons under whose auspices the controversial “Bulte Report” was issued in 2004, has dismissed her critics on the election funding and fund raising issue, including Michael Geist, as “pro-user zealots”.

I wonder if she would include, as “pro-user zealots” the persons who wrote the following pro-user passages:

“Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts.

or

The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it.

(Emphasis added)

If these quotes ring a bell, it is because the person who wrote the first was the Right Honourable Beverley McClachlin, Chief Justice of the Supreme Court of Canada, writing for a unanimous Court in the landmark decision CCH v. Law Society of Upper Canada in 2004. The second pro-user passage was written by the Honourable Mr. Justice Ian Binnie of the Supreme Court of Canada in the 2003 decision of that Court in Théberge v. Galerie d'Art du Petit Champlain Inc.

Jack Granatstein – On Political Donations, Access Copyright & Bill C-60

Prof. Jack Granatstein is a pre-eminent author, researcher, historian, political scientist, educator, and passionate Canadian. He has also become something of a copyright activist. He was widely quoted last week in Angela Pacienza’s CP Story on the controversy over campaign funding and fundraising activities involving the Honourable Sarmite Bulte that has loomed large in both the copyright and election realms in Canada. I’ve obtained a copy of an e-mail dated January 10, 2006 that he has sent to the Maureen Cavan, the head of Access Copyright (“AC”).

As a prolific author of over sixty (60) (!!!) books, Prof. Granatstein is quite understandably a member of AC. But he doesn’t believe that his organization should make political donations. And he doesn’t like Bill C-60. Here is his e-mail:

**********
From: J Granatstein
To: Maureen Cavan
Sent: Tuesday, January 10, 2006 2:12 PM

Subject: Re: political donations

Ms Cavan, While I agree that advocacy is part and parcel of politics, I do not believe that an organization like Access Copyright should make political donations--ever. Nor did I like the Copyright Bill of the last Parliament primarily because, like many who benefit from Access' work, I wear 2 hats: creator and researcher/teacher. As a creator, I want to be paid for my work. As a researcher/teacher, I want free access to archival materials and as much free access as I (and all teachers and students) can get to published or www material. The bill did not achieve a balance that met my concerns, and thus I opposed it.

That having been said, you will certainly be aware of the furore now underway over Bulte's 19 January election fundraiser which is supported by major trade organizations whose interests are not mine. I don't think they speak for most of those you work for. Access Copyright unfortunately is now tarred by Bulte's broad brush, and I urge Access to reconsider its policy of making political donations. If there is a change of government, new ministers will not likely be willing to understand why Bulte deserved financial support--any more than I do.

I would like the board of Access seriously to re-consider its policy.

Jack Granatstein

***********
It’ll be interesting to see what happens.

Previously, he was instrumental in the defeat of the contentious copyright provisions in the so-called “Lucy Maude Montgomery Act” (Bill C-36, later Bill C-8) in 2003 –2004 in which Canadian Heritage tried by stealth to inject certain copyright term extension provisions that would have severely impacted researchers, archivists, and historians into otherwise routine machinery of government legislation intended to merge that National Archives and National Library. This was attempted on the basis of a managed, limited and inadequate consultation effort and a problematic consultant’s report. I too was very much involved in that C-36 fight. But that’s water under the bridge and an important part of the public domain has now been rescued from private appropriation in Canada.

Now, Prof. Granatstein is weighing in on Bill C-60, the current debate about political donations from copyright organizations and even the policy of Access Copyright, his own collective.

For those outside of Canada, AC is the self-proclaimed English language collective for reprographic and, if they can pull it off, for electronic and digital reproduction of text and visual material in Canada. AC collected about $30 million in 2004, its most recently publicly reported year, mostly from various levels of essentially compliant and even supportive governments and educational institutions who have yet to effectively confront AC. The corporate sector has been very reluctant to take out licenses with AC, especially since the Supreme Court of Canada, in a landmark 2004 decision, has clarified users’ rights to engage in research, even in a commercial context. Eventually, even the pubic sector institutions will begin to realize that this decision empowers educators, archivists, researchers, and students to exercise their substantial fair dealing users’ rights without the need to pay copyright license fees, much less excessive fees.

Interestingly, AC has a legal “chain of title” only to a small portion of the material that is actually copied by its licensees, particularly governments and post secondary education institutions. It has been operating on a controversial and legally questionable “indemnity” basis, much like an insurance company, with respect to the vast bulk of repertoire to which it has no chain of title.

Quite apart from the money it happily takes but has trouble figuring out how to distribute, AC has also been largely responsible for instilling a culture of copyright chill (which it calls “awareness”) throughout the system, resulting in frequent fear and misinformation amongst teachers, administrators, librarians and students as to what can and cannot be copied, and under what circumstances. But this is also due in no small part to the excessively cautious risk avoidance mindset resulting from the “clearance culture” that prevails amongst many if not most of those who manage and advise taxpayer funded institutional users. There are also huge resource costs at the user end. I’ll have more on this in due course in subsequent blogs about the phenomenon of Excess Copyright.

AC used to be called CanCopy - but changed its name after the nickname “Can’t Copy” coined by Harry Arthurs, my former law dean and York University president, was starting to stick. Some have irreverently suggested that its new nickname could turn out to be “Excess Copyright”.

Some of the practices of Access Copyright are an example of what I call Excess Copyright. But this blog space will by no means focus on that particular collective, tempting as it may be to do so. There are many other examples out there of Excess Copyright – and you may wish to stay tuned.

HK

ON EXCESS

Moderation is a fatal thing. . . . Nothing succeeds like excess.
Oscar Wilde 1854-1900


There is moderation even in excess.
Benjamin Disraeli 1804-1881


If music be the food of love, play on;
Give me excess of it, that, surfeiting,
The appetite may sicken, and so die.
Shakespeare, Twelfth Night (I, i,1-3)

****

Copyright is good. Excess in copyright is not.
There are many parties in the copyright construct.
All of them must avoid excess in order for copyright to be sustainable.
When is success excess?

HPK January 10, 2006