You know you are dealing with really conservative people when they lobby for legal provisions more stringent than those proposed by the Harper Conservatives. Bill C-32 is a case in point. Bill C-32 is the Copyright Modernization Act.
The latest salvo in Canada’s copyright skirmish comes from the Writers’ Union of Canada—a YouTube video featuring five prominent Canadian writers fronted by Nino Ricci (I’ve never noticed until now how much he looks like Mr. Bean) with Susan Swan et al. as doo wap back up singers. In fact, the video should be offered as a Johnny Cash spoof and titled Dry, Dry, Dry. The group is preoccupied with a relatively small wedge of the copyright pie—the fair use exception for education. They say the proposed changes are vague and would lead to years of litigation to clarify their meaning. They say the changes would give educators carte blanche to take their works and distribute copies without compensating the creators.
Then you get a blogger like John Degen (who also acts as Literature Officer for the Ontario Arts Council) who heartily endorses the video and uses it as a platform for a rant about the “free culture bullies”. Personally, I see little connection between the narrow fair use concern raised in the video, and the threat of “free culture bullies.” What is remarkable is how easily a video like this can be co-opted as ammunition in an ongoing and highly polarized battle.
How did it get this way? You’d expect this kind of rhetorical posturing in religion and politics. But copyright? And yet the comparison to religion and politics is not so far-fetched. At bottom, statutory copyright regimes provide a framework for converting intellectual and cultural activities into property. Thanks largely to Karl Marx, it’s impossible nowadays to have a conversation about property, whatever the context, without nosing the whiff of an ideology somewhere in the background. Put ideologues from opposing camps into the same conversation and la voilà: instant polarization.
Sometimes it’s useful to point out how ideologies drive Canada’s copyright debate. If we don’t do this from time to time, the debate risks devolving into simple mud-slinging and the assumption of high moral tones.
Returning to the video, we witness what starts out as a small “c” conservative view of copyright law. Creative output, like a story or a book or a blog post, is property which belongs to the creator. The creator can earn money from the sale of an interest in that property. Writing is an industry. Writers are knowledge workers. On this account, writing (and all cultural output) is a commodity in a capitalist society.
Standing somewhere offscreen is the opponent, what we might call the small “l” liberal view. It’s a view that acknowledges the need for writers and musicians and visual artists to earn money from their work, but seeks to balance that with the need to nurture the social dimension of creativity.
The problem is that in the religion of copyright, there are fundamentalists lurking in each of these denominations. In the conservative church there are those who would insist on DRM for everything, who would prosecute those who break digital locks even when the lock-breakers do so for reasons that would otherwise be legitimate, and who would prosecute infractions even when they appear to meet the threshold of a legitimate exception. In other words, they seek to monetize every last use of the written word, sound byte, and pixel.
At the other extreme are those who advocate a copyright libertarianism: take what you can; compensate no one.
The problem with this video is that it leans just a titch into copyright fundamentalism. Copyright law has always engaged us in a balancing of competing interests. This video bears hard right in favouring private proprietary interests. But Canadian culture has long benefited from the fact that we are, historically, a social democracy. Both our cultural institutions and copyright laws have reflected this fact. Take an ironic glance at the inside cover of any book published by any one of this video’s participants, and you will find that each of them has benefited personally from our socialized philosophy of cultural production.
So, for example, we find these words in my autographed first edition of Nino Ricci’s In A Glass House:
The support of the Government of Ontario through the Ministry of Culture, Tourism and Recreation is acknowledged. The publishers acknowledge the support of the Canada Council and the Ontario Arts Council for their publishing program.
You’re welcome.
Or how about this from Susan Swan’s Stupid Boys Are Good to Relax With:
Somerville House Publishing acknowledges the financial assistance of the Ontario Publishing Centre, the Ontario Arts Council, the Ontario Development Corporation, and the Department of Communications.
Again, you’re welcome.
My advice to these writers (and I offer it for free) is to be careful what they wish for. If they really believe that writing is an industry that produces commodities, and if they really believe that strictly securing proprietary interests in those commodities they hawk is the answer to all their problems, then—to be consistent here—we should close all those public institutions that have been supporting them for all these years. But then John Degen would be out of a job, wouldn’t he?
But an incoherent position may be the least of their problems. A more immediate concern is that they appear to misread the proposed changes to the educational exception. John Degen ridicules those who accuse Ricci et al. of being alarmist. Nevertheless, I’m willing to step into his sights. The fact is: these writers are being alarmist. Consider one of the fast facts from their web site [domain no longer exists]. It states that “the education exception will permit mass, industrial-scale copying (equivalent to millions of books every year) without compensation to the creators and publishers who invested their creativity, skill, money and effort to produce this content.”
Now look at the opening provision of the proposed exemption:
Educational InstitutionsReproduction for instruction
29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.
(a) to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for displaying handwritten material, or
(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device for the purposes of education or training on the premises of an educational institution.
The underlined words are the proposed additions. The words struck out are in the existing Copyright Act and will be deleted. View the entire bill here.
The educational exemption contemplates the situation in which an instructor faces a classroom full of students and displays material during the course of a lesson or lecture. The current legislation envisions chalk boards and flip charts. But nobody uses chalk boards and flip charts anymore: hence the need for a copyright modernization act. Educators use powerpoint and sometimes teach in virtual classrooms.
I look at these (and subsequent) provisions and I can’t for the life of me figure out where these people came up with the scenario they’ve drawn in their “fast facts”. It looks to me more like a case of creative writing.