Monday, July 27, 2009

Canadian Copyright Law, the Consultation

As part of our WTO regulations, or so they say, the Canadian government has announced that they will once again try to update our system of copyright laws. As part of this process, they have announced that they are seeking input from the public and, while I remain most skeptical, I've decided to state my position. The forum the Canadian government has provided is here, and what follows is my submission, reposted here for posterity.

A new copyright system that will stand the test of time.

The problem we are currently facing within our copyright system is that it is a product of the Industrial Age. The current system worked fairly well in protecting individuals and corporations from predation by other corporations, an Industrial Age problem. However, we're in the Information Age now and the old copyright laws have been perverted to protect corporations from individuals, which is absurd. The existing copyright laws don't work this way, they can't work, and we shouldn't even try to make them work. We should toss them out and build a new system.

As the Industrial Age unfolded, and corporations sprang into existence off the ability to mass-produce stuff, there was a natural progression towards packaging and selling copies of 'ideas', a term I'll use to describe stories, songs, and other works currently defined as Intellectual Property. Mass-production technology and equipment was required to take advantage of this packaging, and this made the packaging and selling of ideas profitable for corporations. For example, while it was possible to sit down and copy the story from a book by hand, it was not economical to do so for profit. Only corporations had the resources to mass-produce enough copies of anything to make any difference and the legal framework that grew during this era reflected this. Copyright law works reasonably well to protect individuals and corporations from the greedy profiteering of other corporations that were attempting to mass-produce works that they were not entitled to. The more flagrant the un-entitled copying, the larger the target these corporations became, and, hopefully, the more money they could be sued for. However, this system fell apart during the Information Revolution.

In the Information Age, ideas don't need to be packaged. They exist as information and once produced they can be copied, transported, distributed, and consumed for virtually nothing. A story, a song, a movie, this site, everything digitised exists in an ephemeral state, merely a pattern of encoding. They aren't even the bits that they are stored in, just the orientation. Moving a song from one place to another doesn't make the original place lighter, the new location heavier. Nothing really moves, except information. Copying a song, a movie, or anything digitised is no different than telling someone an idea you had, a thought shared between friends. This is the result of the Information Revolution, the free flow of ideas, in whatever their form. Of course, this causes a few problems for corporations in the business of selling copies of ideas.

Corporations, claiming a erosion of profits, have pushed to use the old copyright system against individuals instead of other corporations. This makes no sense. When ideas are freely copied between people, or even millions of people as it the promise of the Information Age, there is no profit making, no legal target getting rich through ill-gotten gains, just individuals. The most flagrant violator, responsible for sharing huge quantities of protected information to millions of people, could be child with no income at all. What's more, said child might not have even intended to share with so many people. Copyright is a legal system designed to punish abusers through financial levies. How can this work against people that are not profiting from said abuse? Where will the money come from?

The reality of the situation is that in the Information Age, there is no longer any money in distributing copies of ideas. How could it be otherwise when it costs nothing to make a copy? The Industrial Age is over, replaced by the Information Age. Unfortunately, as with most revolutions, there is a messy side. Corporations, and the individuals that create ideas, must adapt to this new reality. Clinging to the past, attempting to enforce a legal framework that no longer makes sense, will only delay the inevitable. Things have changed, ideas can now be freely copied, and attempting to profit from the distribution of copies is an idiotic thing to do. Yes, corporations will fail, business models will have to dramatically alter, artists will have to find a new way to earn a living. But, these old business models and ways to earn a living did not always exist. They were products of the Industrial Age, but that age is done. We're in the Information Age now, and people are going to have to adapt to this new reality. So too will the laws.

How should the new laws look?

First, they must reflect the reality of the Information Age. When ideas; stories, songs, movies, anything that can be digitised; can be copied for free, the concept of "distribution rights" makes no sense. No one can control the flow of information once it has been published; any obstacle put up to obstruct this flow will merely divert the flow to another path. As such, laws that protect distribution rights must go; they are anachronistic and have no place in our future.

Second, ideas will always have creators and these people need this status protected. Within the academic community, people that copy the ideas of another are expected to cite their sources; to not do so is called plagiarism and is a serious academic offense. This concept must be extended through legal protection for all distributed works. Any distribution or use of an existing idea, in whatever form, must be accompanied by a citation of its source, the creator. Failing to do so should result in some form of punishment.

Third, the right to profit from an idea must be protected. Now, this concept must not be bastardised, like the current copyright system, to include the right not to have profits eroded through un-sanctioned distribution. Vague "potential future profits" cannot and should not be protected. However, if anyone is to actually profit from the distribution or use of any idea, then the creator of said idea should be entitled to at least a reasonable share of these profits. Assuming there is a clear citation path outlining all that have had a reasonable input, as would be the case if the second point were legally implemented, then legally established royalties would make sense.

If the above three points were implemented within a legal framework, Canadian creators of ideas would feel comfortable publishing them because they would know that those ideas would be accompanied by citations, thus improving their ability to raise income for new ideas. These creators would also have legal recourse if some corporation managed to find a way to profit from their ideas. Together, this approach will encourage publication, which is the fuel of the Information Age.

We have gone through a revolution and are now firmly within the Information Age. As with all revolutions, there is some turmoil and change. The Industrial Age concept of packaging and selling copies of ideas is an obvious loser and those profiting from this now-defunct business model must change. Protecting them through a flawed and unenforceable legal framework will only delay the inevitable. These people must find a new way to earn a living, just like the blacksmiths and stable-boys of old. We simply don't need them anymore. Many people decry that this change will leave artists, the creators of ideas, with no way to earn a living. However, this argument is absurd. If there is demand for what a person creates, then the business model to pay for this will evolve. If people want the creative output of an artist, they will find a way to pay that artist to create. Just because one approach, the selling of copies, has now failed, it does mean that there is no way for artists to earn a living. Yes, times have changed and some old ways of doing things no longer work but new ways have and will be created in their stead. The Information Revolution promises far more gain than loss.

As a follow-up to to this:

I'd like to point out that Keliso is part of the revolution and is a new way for artists to earn a living, even while their work is being copied for free. In fact, the system depends on people freely sharing this work; the more sharing, the more the artists are likely to earn.

You can view more about Keliso here.

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