Until a few years ago, common wisdom held that copyright was one of those issues—like food safety or stock market regulations—that affect everyone but are never an especially relevant political issue. Like so many other issues taken for granted, who has control over the images, messages, and ideas we see every day was only of concern to an elite few in academia and creative industries.
That is, until recently. Then, in 2008 the Conservative government decided it was time to “modernize” Canada’s copyright regime to the “new realities” of digital culture. Then-Industry Minister Jim Prentice introduced Bill C-61, amending the Copyright Act to crack down on illegal downloading. The bill made it so that anyone caught violating copyright on the web would face a mandatory $500 fine. Even more draconian, anyone trying to break the Digital Right Management locks (which are employed to secure files from being copied) would be charged up to $20,000. The bill would have treated even the most pedestrian of copyright violations, such as copying text for a course packet or burning backup discs of a CD with copyright protection, as punishable offences.
While in the drafting stage, the bill received little media interest. Any plea for a more lenient copyright regime was likely to fall on deaf ears, since the issue of stronger copyright had always engaged broad bipartisan support from the Liberal and Conservative parties. At first, it appeared as though the bill would pass uneventfully, like a previous copyright update had 10 years earlier.
But then something went wrong. C-61 was not well-liked. It met intense and unprecedented public scrutiny. Copyright scholars—most vocally University of Ottawa law professor Michael Geist—compared the bill to the American Digital Millennium Copyright Act, a piece of legislation that seemed to have been written out of industry interests. Fair Copyright for Canada, a Facebook group that Geist created, attracted more than 90,000 members. Many MPs noted that the majority of feedback from their constituents about the bill was negative and that copyright had become a “top five” issue. Eventually, mainstream politicians denounced the bill as well. Liberal MP Scott Brison famously compared the legislation to that of a “police state.” Minister Prentice was even greeted with protests, including a substantial turnout at the Calgary Stampede, from citizens in every strata of society. This level of uproar was unheard of for this type of legislation.
By early 2009, Bill C-61 had been publicly abandoned by the Conservative government, despite their 2008 campaign promises to reintroduce it in the 40th parliament. With new ministers on the file, rhetoric from the government began to soften on the illegality of copy violations. In a recent interview with The Toronto Star, new Industry Minister Tony Clement suggested that a bill similar to C-61 would not be tabled again, despite acknowledging that “the current copyright law took place in the world of vinyl records and cassette tapes, and nothing like a DVD player or iPods existed.” Even this simple rhetoric is a wild change from Minister Prentice’s promise to place stronger digital locks on all copyrighted works.
What exactly happened? Why have people begun to abandon the long-held understanding of ownership, of not only ideas and discoveries, but also physical reproductions, embodied in copyright law?
Professor Geist, for one, was not surprised by Canadians’ response to C-61. “I’ve long believed that copyright policy has rapidly emerged as a mainstream issue,” he noted, correlating this popularity to the recent development of copyright law’s implications having become more concrete the average Canadian. Of course, the mainstream understanding of what type of copying is permissible completely changed with the popularization of the Internet. Even since the beginning of this decade, illegal downloading of artistic content has risen steadily. The U.K.’s annual Digital Music Survey of Western consumer habits found that only 33 per cent of this year’s respondents said that the threat of copyright infringement at all affected their downloading habits, down from 42 per cent in 2006.
There remain pockets of resistance to copyright infringement through modes like file sharing. An Angus-Reid poll in June 2008 even showed that as much as 45 per cent of the country supported Bill C-61 (although many copyright reformers criticized the poll for its preamble, which made no mention of the maximum fines that would be implemented by the bill). However, it seems die-hard copyright advocates are becoming fewer and further between.
Martin Zeilinger, an instructor at the University of Toronto, recently completed his doctoral thesis on artistic ownership and how the public concept of copyright has changed over time.
“You pretty quickly arrive at the conclusion that the idea of authorship is a commercial thing,” says Zeilinger. “Our ideas of the singular author of an artifact are not natural. It’s a completely constructed notion. And [at] times there have been different notions of collectivity, about collaboration, about copying.”
Zeilinger’s conclusion is that the concept of copyright has reverted to an earlier form in the public imagination. Technology, he suggests, “has changed the way people think about not only genres, but also the artifacts themselves.”
Polling data has shown that as late as 2007, support for heavy copyright policies like C-61 was roughly even with that for a more open system. Now most members of the public seem to be in favour of more lenient copy policy. Groups with previously no position on the issue, such as professors, students, and even medical science unions, have taken a political stance.
“This isn’t some divisive, touchy topic to avoid bringing up at dinner parties. You won’t find many people out there who think that what this country really needs is to lock up all the file-sharers,” says Jesse Brown, host and producer of TVO’s podcast Search Engine, which covers legal issues in digital culture.
Notes Geist, “While there are extremes on either end—some who want everything for free, some who want to lock down or license everything—I think most people fall into a middle ground that acknowledges that some fair dealing reform is needed, WIPO [the World Intellectual Property Organization] should be implemented, and some form of anti-circumvention legislation is inevitable.”
While the public’s perspective has changed, a similar transition hasn’t happened in the industries that produce copyrighted content. “After covering copyright for a couple of years now, I can tell you that it’s almost impossible to set up a good debate,” says Brown. “On the one side you’ve got tens of thousands of Canadians from all professions and walks of life who will argue for a more lenient, fair, and progressive approach to intellectual property.”
The other side, as Brown describes it, consists primarily of the “interested parties—entertainment industry lobby groups, unions claiming to represent artists (who’ll often say otherwise). People whose jobs depend on preserving and protecting the old system.”
Brown’s characterization may not be entirely correct, but it seems as if a growing consensus is emerging that today’s copyright is no longer functional.
“The devil is in the details,” concludes Geist, “but I think there is a compromise to be had.”
Compromise, however, will require the acknowledgement of new realities.
Asked about such a comprise, Brown replied, “The weird thing is that the bridge you suggest is being built in the U.S. at the same time that we’re getting further and further from it here in Canada.” Brown contends that industry in the United States is at least beginning to realize that adaptation seems more effective than criminal prosecutions and lawsuits, which have become a PR nightmare.
“In the U.S., where they have the ability to sue downloaders, they’ve stopped using it! The entertainment industry is finally trying to work with the web and not fight it, and they’re slowly realizing that they have more to gain by shifting their business model than by criminalizing their own customers. But representatives from the very same companies here in Canada seem to view it as a point of pride to champion failed strategies.”
Though public support for more permissive copyright continues to grow, the consequences of such a reform would not be simple. As with the development of new technologies, the question becomes one of adaptation. The greatest implication of a more open copyright system is that it would codify the way people have begun to understand ownership. While most copy advocates rebuff the criticism that open copyright is the newest frontier of modern-day socialism (the totally democratic spread of information that, some neo-conservative hawks argue, represents a kind of classless society) the issue still raises troubling questions. Of course, there is that classical criticism of an open system, that a looser copyright will hurt commerce for the artist, which will in turn discourage artistic output.
“Artists are workers just like anyone else. We don’t ask people who make cars to work for free,” notes Joanne Deer, a representative from ACTRA, Canada’s professional actors’ union. “Artists need to be able to buy groceries and feed their families. If they can’t make a living wage they will turn their energy to other careers.”
Deer’s words reflect the sentiment held by most artists’ unions in Canada. Their general position on copyright is continually that infringement is wrong, and would mean the end of professional artistry.
But in spite of the opinions of industry groups and artists organizations, studies appear to conclude that the effects of copyright infringement are still ambiguous. New studies are beginning to contradict the argument that downloading erodes sales. The total number of sales is not down substantially, though the amount being pirated has increased. It seems like people are just consuming more in general.
Most tellingly, a recent report from Industry Canada suggested that sales of MP3s and physical CDs, especially for independent artists, have increased with new ways of downloading. “I think there are all kinds of studies that show that leaking a pirated version of a CD before it is released will almost certainly raise its sales numbers,” says Zeilinger. “In that sense, maybe [the music pirating] discussion is almost redundant to begin with. You can’t really prove that copying harms that kind of business. I’m sure oftentimes it does on smaller levels. It depends on what kind of scale you’re talking about.”
Assuming that Zeilinger is wrong and the industry is right, that artists face a decrease in the amount of direct revenue from album sales and box office receipts, the argument that freer copyright law discourages further creativity doesn’t hold up under statistical analysis.
A new study from Harvard University released earlier this year found that the number of albums released had more than doubled in the last seven years, from 35,516 albums in 2000 to 79,695 albums (including 25,159 digital albums) in 2007. The music industry isn’t alone. The number of feature films released commercially in the United States each year increased by over 100 since the beginning of the decade, and the publication of new books has risen by 66 per cent between 2002 and 2007.
In all likelihood, artists themselves will survive a shift in copyright regime; however, it appears unlikely that the industries around them will. “I see lots of great opportunities and profit models for musicians and filmmakers themselves, going to be able to adapt quickly enough,” argues Brown.
Consumption of media is up across the board, but sales of physical product are down by as much as 60 per cent in many industries. Experts appear skeptical that a new and different licensing model could save the entire thing.
Says Brown: “In order to make headway on the web and start bringing in modest profits, they’d have to accept major losses in their traditional revenue streams. For example, I think if the film industry streamed new releases through iTunes or XBOX live or Netflix or whatever for 99 cents a movie, they could effectively kill piracy—who would bother? But this would destroy their box office returns and the later DVD rental market. So they’ll cling to the old models as they shrink more and more each year.”
Brown does not have much hope for an industrial revolution of sorts. “Hollywood seems doomed to repeat the mistakes of the music industry, who only jumped on board with a decent online model when they had little other choice (and Apple built one for them). So maybe Hollywood will prove too slow to survive and something new will replace it as the best way to make money from films. I won’t cry about it.”
“I’m not sure there can be one that works properly, and probably no forced licensing model is ideal,” says Zeilinger. “I’m sure that a completely public domain is not the best way to do it. Nobody says that. However, there is no model that will cover all types of artistic production.”
The irony, as Zeilinger sees it, is in the technology itself.
“I find it an absurd position that the entertainment industry has maneuvered itself into. The technology that creates these huge cultures of sharing comes from that industry,” says Zeilinger. “Doesn’t matter how far you go back—to the printing press, vinyl discs, CDs. Every medium that has come in succession was one to facilitate the efficient and cheap reproduction of copyrighted content so it could be more easily sold to more people more cheaply. It’s these very same technologies that have also brought this alternative culture of copy into existence. Zeilinger remarks on the evolution of media technologies he has just outlined, “To me it seems to say that there is no way this could ever end with the entertainment industry winning out over this desire to copy and share.”
So perhaps more open copyright won’t kill the artist, though the industries around artists appear doomed. This does not, however, assure the future of the idea of the artist as we know it today. While more art is being produced than ever in some ways, statistics do not yet gauge how many of those artists still producing can make a living at it.
Open copyright might not threaten the artist so much as it suggests a change in how we conceive of The Artist. People like Joanne Deer, and industry groups like ACTRA, have a very good point: open copyright has the potential to imperil the idea of the professional artist as we understand it now.
“There might be a loss of a certain kind of aura that we used to attach to an artwork or the genius of an artist, and the reason for that is the technology that provides the context for artistic creation,” says Zeilinger.
But he believes that this loss of aura, of the artistic genius, might not necessarily be a bad thing. A new concept of copyright might even be able to substantially break down the distinction between author and audience. Zeilinger points out that art theory has been rethinking this distinction since the German philosopher Walter Benjamin wrote in “The Work of Art in the Age of Mechanical Reproduction” that the artist is more of a “producer,” more an outlet for creativity than its driving force. Certainly, Benjamin’s theory makes sense for the increasingly popular forms of mash-up and integrated arts, which see entrenched copyright laws as enemies to their expression.
But this type of artistic thievery has a rich history. “At some point in time,” says Zeilinger, “copying someone’s work was the highest level of homage or respect that you could pay to a venerable prior author.” Dada collage in the early 20th century, for example, was one of the first instances where artists would actually physically rearrange their influences into a new work of art. Last year, the copyright documentary RiP: a Remix Manifesto pointed out that this ethos has been especially present in music, which has its own language of borrowing. The Rolling Stones took riffs directly from Muddy Waters, who had himself taken them from sources in traditional folk music.
And of course, mashups now take the idea of reproducing one’s influences in a much more direct way, by recontextualizing them in a new composition. In a given piece by Pittsburgh “sound collagist” Girl Talk, the lyrics from Lil’ Maoma’s “Lip Gloss” play over a bed from Metallica’s “One,” before giving way to a mashup of beats from Soulja Boy and yacht rock from Styx.
Today’s culture of participation in fact makes it such that everyone can contribute to works of art. “Even writing a blog, or commenting on other people’s postings in a forum— these are all creative ways of intervening and writing,” says Zeilinger.
But for artists working in more traditional forms—those who create original music or movies, and try to make a living from touring, selling tickets to shows, or having the public buy their CDs and DVDs—copyright is a much more difficult matter.
Denis McGrath is a Canadian television writer whose blog, Dead Things on Sticks, covers the state of the television industry and media issues. McGrath has become a prominent advocate for artists’ rights in the copy debate online.
As McGrath wrote most recently, for many artists, embracing the “open copyright” camp is a difficult thing to do.
“We float a solution—maybe not a great one—maybe not even the best one—about moving toward collective licensing and a levy/pay system […] and what is the reaction to this concrete idea from the supposed ‘fair copyright’ side? Instant rejection,” writes McGrath.
From his experience, the proponents of copyright reform tend to unfairly lump artists trying to cope with the situation in a reasonable way with the draconian corporate solutions. This bickering, he feels, is counterproductive to progress. “One of [the] stated goals [of open copyright advocates] is that consumer behavior not be criminalized […] but they play right back into the hands of the corporate DMCA [Digital Millennium Copyright Act] solution. Great job, guys, on the way to beating your drum, you’re being played like a fiddle.”
For many artists though, while the whole issue of copyright has inherent value, it also remains unclear.
“The copyright laws seem arbitrary and ambiguous still,” says Kat Burns, principle songwriter for Toronto four-piece Forest City Lovers.
“They uphold a level of confusion that doesn’t allow people to understand everything without doing a significant amount of research. I just wish that everything was levelled out a bit and prepared in a way that was clear and concise on first read.”
Thinking about art and commerce, McGrath seems to sum up the dilemma best.
“I’m a consumer too. I’ve been enraged by digital locks that got in the way of my perfectly legal use of paid-for material. I have issues with corporations subverting the Public Domain […] but I don’t know how what I do will be paid for in the future—I’m not even sure that the format of what I do will survive. But I know in my heart that there’s a way forward that puts the power in the hands of the individuals, and doesn’t favour huge conglomerates. Because in the end, isn’t that the real point of the digital revolution?”
A new Canadian bill on copyright is planned for the spring of 2010, assuming that parliament is still in session. To prepare the new bill, the heritage ministry held online consultations with the public that recently concluded. In the process, the ministry received more than 8,000 submissions.
However, the most that copyright reformers can muster for the new bill is a kind of cautious optimism. “I’m more optimistic than I was a year ago in the immediate aftermath of C-61,” says Geist, “but we’re still a long way from a truly balanced copyright bill.”
Brown agrees, noting that “Ministers [James] Moore [Minister of Canadian Heritage] and Clement strike me as light-years beyond the last duo, both in their understanding of the issues and their approach to the process. It’ll be better than that last miserable bill. But if there’s another election it’ll get trashed and we’ll have to go through all this again.” A statement by the Heritage Ministry this week seems to acknowledge their bosses’ new perspective on the issue: “our government has said it would modernize Canada’s copyright laws, and that is what we intend to do in the near future. The consultation was the beginning of a new chapter in Canada’s copyright history. The next piece of legislation will reflect what we have heard.”
What this statement means is still unclear. But there is one certainty in the copyright debate: for artists, industry, and the public, creative work will never be the same.
