How Can It Be Copyright When It Feels So Copywrong?

SO LAST NIGHT, I attended a good old fashioned dog & pony.

The Copyright Consultation Town Hall took place in Toronto's Royal York Hotel. It was the second such event. There's also been a bunch of roundtables in places like Vancouver, and another one in Toronto yesterday where selected "industry representatives" make their case to the government about what needs to be done to bring Canada's copyright laws into the 21st century.

Copyright is an extraordinarily complex issue, made all the more complex by the rapidly changing nature of technology, and the issues that have sprung up around the use of that technology.

From the public side, from consumers -- there's a number of concerns that speak to individual rights -- many of which have been crystallized by the digitization of content and the ease of spreading that content around.

It's often framed as a showdown between the piraters who don't feel you should pay at all for TV shows and movies, and the industries that market, make and sell such content. But it's so much more than that. Digital locks or attempts to "copy proof" digital materials have led to embarrassing privacy-concerns, and concerns about tampering with users' systems. The Heavy Handed American Approach, where certain users were targeted and whacked with huge lawsuits to deter filesharing, have made martyrs of people who shouldn't be, and cast copyright holders as the bad guys, sometimes unfairly. There are all sorts of other legal, philosophical and creative issues swirling around, too. What is the public domain? Should big companies like Disney be allowed to pressure for extensions to copyright past the normal 50 year term? Should there be exemptions for things like parody, or satire? What about the use of copyrighted materials in classrooms? And what is a creator, anyway?

The landscape has changed so fast that the bill the Conservative Gov't tried to table last time (which died with the last election) is already out of date. As it stands, Canada's copyright law references VHS tapes, and is so out of date, it's almost like those early 20th century statutes that demand that someone run ahead of an automobile, telling pedestrians to get out of the way. There is much to disagree about around the subject of copyright -- and the horses are spooked. By being slow to take up this subject, Canada has fallen behind most other jurisdictions in the first world in figuring out what the balance between consumer rights and creators and copyright holders should be in the 21st Century digital economy.

So then, to last night. The 300 or so participants in the Town Hall had registered a few weeks ago when the event opened. I was notified by the WGC and registered. When I arrived last night, I got a name tag and a number. Three streams of people got to participate in the two hour session -- people drawn by lottery, a few "industry representatives" drawn by a different lottery, and web commenters, whose submissions were read out in the room by one of the facilitators. When your number got picked, you went up to the mic and started speaking. You had three minutes. That's it.

No matter what happened next, at best this would have been an imperfect, agonizing evening. There are so many perspectives, so many issues, and plenty of complexity to go around.

Except none of that came out.

After a moving first presentation by a musician who talked about his fears for his future livelihood and his moving desire to just be able to continue to make a living, there was a steady stream of representatives from the major Record Labels. All told, we heard from three people who worked for Warner Music (I heard later that there was a fourth,) a couple from Sony and several from Universal.

Now, it's no surprise that Record Companies turned out in force. Starting with the birth of the original Napster and all that came after it, the Major Record Labels (as opposed to the faux synonymous "music industry") have been the Canary in the Coalmine for the challenges of the digitization of content. And, sad to say, this is an industry that has not comported itself very well. From resisting the shift to legal digital downloads, to supporting punitive and outsized lawsuits, to flirting with the cure-all of digital locks that punished the legitimate purchaser more than the average pirate, the leadership of this industry has dropped the ball at just about every step. They've clung to a bricks-and-mortar, 20th century business model that rivaled the Hollywood studios for strange accounting practices, chargebacks, and largesse in the promotion, monetization and exploitation (in many senses of that word) of music.

In many ways, it's the screaming of these large labels -- and their lobbying groups like the RIAA, that have held back discussion of possible new ways forward, by focusing on their needs and monopolizing the debate.

And so it went last night. Speaker after speaker from the labels poured out their view of the rights of artists they were protecting, and the horrible impact of the losses of jobs in their corner of the industry.

Which is indeed sad. And unfortunate. And ... here's the Band Aid getting ripped off fast ... inevitable.

I imagine that the makers of sheet music, and player pianos experienced a similar agita as the technology changed. And I'm going to guess that the makers of intricate handsome cabs didn't all succeed in the auto industry. And pager makers didn't all get to switch to cell phones, American TV manufacturers saw their business shift to Japan and then China, the mimeograph industry fell to the Fax Machine and then Email, and so on and so on.

The thing is, as sad as the losses of jobs are -- and they are indeed sad, and unfortunate -- the arguments that these reps make, when they bother to make them -- are not solutions at all. The Genie is out of the bottle. Like a lot of literate people, I find myself very worried about the steady decline of the newspaper business. But I'm enormously relieved by the fact that I don't really see any calls from that industry to somehow, oh, I don't know, figure out a way to force more people to buy newspapers -- or to sue a Grandmother in Calgary because she passed her copy of the Herald onto her neighbour.

But speaker after speaker from the Record Labels got up, and made the same points, over and over, despite the admonitions from the moderator to please cede your time if your view had already been expressed. Well, their views were expressed. Ad nauseum. And they're points that you've probably already heard through any one of a hundred of their well-funded anti-piracy campaigns.

My heart sank a little every time someone introduced themselves as being from one of the labels, because I knew that there was three more minutes gone, where we wouldn't hear another point of view, another concern, and another possible solution. And inevitably, it seemed to tip the evening into exactly the place it shouldn't have been -- another discussion about the problems of the illegal filesharing of music.

Yes. That's a problem. But it's a well discussed problem, and it's not the only problem, and between the CRIA and the RIAA, it's a problem that their industry representatives have reflected to the government time and time again.

Interestingly enough, there were some other voices from the music industry -- as opposed to the record industry -- who went their own way, and discussed other possible models and solutions. Sophie Millman, a quite wonderful jazz musician (who my compatriots assured me also had the best shoes of the night,) got up and spoke in concrete terms about her specific experiences, and for the first time brought up a solution that goes another way from the American model: the blank media levy.

Introduced when home taping was the issue, the blank media levy is a charge that's put on blank cassettes and discs. That charge is invisible to the consumer -- worked into the markup on the product when you buy a stack of CD-Rs. In Millman's case, her share of a levy one year came in at about $12 000 -- which she said was a significant factor in her label deciding whether she could tour.

Now that example is specific and concrete, and as an artist, she was asking for a specific remedy: she felt that Canadian law should be amended to extend the levy to PVR's, hard drives, Ipods and the like.

Lots of you out there just groaned. I know. It's an awful, imperfect solution. But this is what artists and copyright creators are down to, now. Unlike many of the people speaking for the Labels, we accept the proposition that a portion of the audience will always choose to pirate our material. We know that can't be stopped -- not through lawsuits or digital locks. Some combination of going after wholesale, large scale piracy and an alternate, compensatory revenue stream is the only -- imperfect -- solution to many of us. It won't be as much as we would get if every copy of our work was bought and paid for -- but it's something.

It is truly amazing that most of the people in the room, whatever side they were on, would very blithely and easily agree that artists should be compensated for their work. But then, in the ideology, the hows and how-does-that-works become fuzzy and indistinct.

Well, content creators -- we, the ultimate freelancers, cannot afford to trust, and have it be indistinct. Any more than you would feel great about going to a job where the boss told you, "keep working, you're doing a good job and you deserve to get paid and, uh, we'll figure out a way to do that. Somehow. Someday."

"But I buy hard drives and I don't copy music or movies on them...." the chorus says.

Sure. Okay. Maybe that's so. I don't have kids. And I paid a whole bunch of taxes last year on income I generated from my intellectual property that went to schools, and daycare credits, and child benefits, and the upkeep of playgrounds.

Anyway, that's a bit of a tangent.

Other points of view that were buried or downplayed in the march-to-sameness from the label reps: A guy got up and made an excellent point about how a Canadian author's work falling into public domain resulted in an explosion of new annotated editions, and repurposing of the work. His presentation was marred somewhat by kind of an elitist lead-off that dogged teenagers and had the whiff of preciousness, but it was a new point -- and it made me want to click my heels.

A very nice University student got up, and made an extremely earnest presentation about what copyright meant to him. He was nervous, and didn't get all of what he wanted to say out, but I would have heard three more like him rather than another Record industry rep.

Intriguingly, one very articulate guy -- I remember neither his name or face -- spoke about opportunity. He's a guy who actually quit the business to get into the business of tracking usage and copyright online -- to collect and distribute monies to content creators. That's another piece of the pie that got short shrift -- the opportunities new business models, and ways of thinking might bring.

I've written for most of this post now about the artist or copyright holders' points of view, but of course there's another side of that -- the consumer. And unfortunately, the consumer really did get a bit of short shrift last night. The point was made not to restrict with digital locks, and many of the Web commenters made excellent points about the public's rights.

There were a couple of presenters talking on behalf of researchers and university libraries about trying to extend "fair dealing," -- the ability for researchers to use works for academic purposes. And there were a couple of authors' and writers' reps that argued why that might not be a way to go. Finally! Two sides of an issue given an airing.

I was there with my colleagues from the Writers Guild of Canada. K.L. Ashton does yeoman's work at the Guild on Policy issues -- Maureen Parker is the hardworking Executive Director, and then there were three of us who were wearing two hats -- working screenwriters, and members of the WGC Council. Jill Golick is a working writer and new media creator (you may know her from her story2oh and writing blogs). Rebecca Schechter is the President.

We all had our numbers, and notes, and thoughts on what we would say. But in the end, only my number got called.

And oh My Lord, was I nervous. Which is weird, because I normally have no problem talking in front of large groups. But partly, it was looking down on those notes and trying not to repeat points that had been made before, part of it was the responsibility and the knowledge that one point of view was already being over-represented...

...but part of it was just a pure and simple struggle. You see, I don't just get up there and talk as a creator. 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. I feel strongly about some aspects of Fair Dealing, especially when it comes to enshrining and carving out a place for parody, satire and fair comment. 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?

So I did the best I could. I was breathless, I got off a few jokes, I underlined the levy option as one way forward and I spoke up for Parody and Satire. And that was that.

I noticed later that Michael Geist -- who I don't always agree with 100%, but who certainly has a comprehensive handle on all these issues that speaks from the consumer side -- tweeted that I had done well, and that made me feel a bit better.

But when it comes to public reaction to Geist's summation of the event -- I get a growing, bad, restless feeling.

It's the same restless feeling that I've had when dealing with many of those who fully evangelize for what's become known as "fair copyright." And that's the blitheness with which they choose to paint everybody with the same brush.

You see it in the sneering attitudes toward "industry representatives." Like we're all equal. You know, when I'm called a lobbyist by somebody in a situation like that -- as I was last night -- I want to do more than groan. I kind of want to punch the fucker out. A Lobbyist? Excuse me? You try pouring your heart out to create something, trying to cobble together a living and encourage fellow travelers and make something entertaining and then turn around to wonder if it's all going to be for nothing in three or five years. You try sitting in Council meetings to serve your fellow writers, for which you get a pittance -- and then get called a lobbyist, while some dude has the nerve to talk about him making his 6 terrabyte server of other people's work available to the world makes him more virtuous than you. Lobbyist. Hey buddy -- fuck you.

What I know to be true is, far from being endlessly consulted, the WGC often doesn't get a seat at these tables. We struggle to make writers' voices heard. Nobody's chomping cigars and flying business class and living the high life. Lobbyists. Sheesh.

The sneering rhetoric and the blithe, "yes, yes, artists should get paid, but they should also remember that consumers are the ones paying the bills," is a bunch of self-congratulatory, cooler than school, information wants to be free, aren't we edgy, 21st century bullshit.

I'm a consumer, same as you. I struggle to try to find a middle ground between individual rights, and securing a viable economic future for people who do what I do. It's damn hard.

And as much as it may be disappointing to see so many record label folks speak -- they organized. They came out. You can whine about the fix, you can pooh-pooh and turn everyone who doesn't think like you into "the man," but the fact of the matter is -- you don't help your cause when you venerate guys like the last man who rushed the mike and delivered an incoherent ramble that was the only time all night where the copyright forum sounded a bit like a U.S. health care Town Hall forum. That is not your standard bearer.

Geist is a great resource. And Fair copyright is important. And I will be right there with you complaining if a bill comes around that gives the short stick to the consumers' rights in the digital future. But the smugness and the self-satisfying tone, and the casual dismissiveness towards people who, after all, are only worried about their entire livelihoods -- is odious. It doesn't make you a crusader, cochise.

It kind of just makes you a dick.