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It’s time to find a balance between new media and copyright

By John Shiga      

In framing the debate in terms of a battle between the rights of copyright owners and those of consumers, critics run the risk of diverting attention from the fundamental rights of citizens.

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Thanks to a decade of hard-hitting anti-piracy campaigning, Canadians are all too familiar with the destructive potential of new media. The copyright lobby in Canada encourages the view that “digital piracy” will end careers, topple industries, lead to mass “theft” of intellectual property and undermine Canadian culture.

Although updated and Canadianized, copyright owners have been selling governments around the world on this story for more than a century. And who can blame them? The more owners play the piracy card, the more control governments usually hand to them.

The trouble is, many policy-makers and members of the public aren’t buying the piracy story anymore. The rights of consumers, instead of copyright owners, are increasingly taking centre stage in the copyright debate.

Dominant players in cultural production and distribution are behaving as they always do when new media emerge. Since their dominance depends in part on the control of copyrights, the cultural industries typically claim that the new medium will lead to a piracy epidemic and that the cultural industries will collapse—unless governments make quick and drastic changes to copyright legislation.

From piano rolls in the 19th century onwards, virtually every new medium has been presented by copyright owners as a tool of mass piracy. In most cases, owners succeeded in acquiring stronger, internationally-enforced and longer-term rights over the use of cultural works. Ironically, copyright still tends to be justified on the grounds that it encourages cultural production even though it actually provides an incentive to exploit the rights to existing works on new platforms.

The balance that copyright supposedly maintains between copyright owners and audiences has steadily shifted towards owners. Since creators often do not own all of the rights to their works, many worry how they will fair in the current tug-of-war between owners and consumers.

In their first two attempts, Industry Canada and Heritage Canada proposed legislation that fit this pattern of owner-driven policy change. Bill C-32, the current copyright reform bill, bucks the trend. Unlike its predecessors, it does not provide unbridled support for the interests of corporate copyright owners.

The bill also contains some rather innovative provisions for user-generated content and fair-dealing. If these provisions survive, Canadians may finally be able to remix content for non-commercial purposes and use their personal video recorders without deleting content immediately after viewing and without fear of being sued.

These provisions offer modest protection to Canadians for cultural activities they engage in every day. But given copyright’s history as an instrument for protecting the interests of copyright owners, the government’s inclusion of these provisions is a bold move in favour of consumers.

The dramatic policy shift between 2005 and 2010 can be attributed to successful reframing of the copyright debate as a consumer rights issue. The news media produce a steady stream of stories and columns about copyright, many of which focus on the expansion of copyright restrictions in the U.S. at the expense of consumer rights.

News coverage of the American music industry’s “shock and awe”-style litigation campaign against individual file-sharers has been a public relations disaster for corporate copyright owners in both the U.S. and Canada. The Canadian context of these PR disasters matters more right now since the copyright lobby is seeking public support for its “get tough on piracy” approach to copyright reform.

The first two bills tabled by Industry Canada and Heritage Canada were popularly characterized as “DMCA clones,” referring to the similarities between the proposed legislation and the highly-restrictive U.S. Digital Millennium Copyright Act.

In a bid to restore confidence in the reform process, the federal departments held a series of public consultations.

By Prof. Michael Geist’s count, the vast majority of submissions opposed key amendments sought by the copyright lobby, including strong legal protection of digital locks and the “notice and takedown” system. The strategy of linking a restrictive copyright to an erosion of consumer rights seems to be paying off for critics of U.S.-style legislation.

Bill C-32 is far from a DMCA clone. However, the bill does have at least one disconcerting similarity with the DMCA: it gives strong legal protection to technological protection measures, or “digital locks,” which restrict access and copying.

Since technological protection measures are becoming more sophisticated and widely-used, citizens will require some cleverly-programmed software in order to bypass those locks on content. Since C-32 prohibits the distribution of circumvention software, citizens will need to brush up on their programming skills in order to make use of the bill’s fair dealing and private copying provisions.

The bill gives firms seeking to lock down and monitor use of digital content the backing of the state. As for citizens seeking to circumvent locks for lawful purposes, the bill essentially says, “good luck.”

Copyright’s currency in the news media and in public discussion has made it difficult for copyright owners to monopolize the copyright reform debate. Despite millions of dollars spent on anti-piracy public relations campaigns, owner’s claims about piracy fall flat when more citizens recognize that there are important differences between intellectual property and absolute property, between infringement and theft and, between the interests of copyright owners and consumers.

In framing the debate in terms of a battle between the rights of copyright owners and those of consumers, critics run the risk of diverting attention from the fundamental rights of citizens. Intellectual freedom, freedom of expression and privacy rights, which are also at stake in the reform process, are now on the sidelines. But at least there is a growing recognition among policy-makers and commentators that copyright should do more than simply serve the interests of copyright owners.

John Shiga teaches communication studies, digital media and sound studies in the Department of Law and the School of Journalism and Communication at Carleton University. His current research focuses on digital rights management, copyright and online music distribution.

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