A Reader Writes: The Copyright Conundrum

TODAY, I'VE PROMOTED a comment exchange that happened down in yesterday's post because my comments got so big (first draft people, first draft) that they had to be submitted across four comments.

The chain was started by a letter by a reader named MR, who's an IT guy. I feel it exposes a lot of the fault lines around the whole "Balanced Copyright" argument. I want to get into my office and onto other things today, so I hope that MR will forgive me and not read some of my response as categorizing what he might believe personally. Any use of the word "you" or talking about sides is meant to convey a general impression of those making certain arguments, and not MR himself.

More importantly, I feel dialogues exactly like this is what has been missing so far from the whole "Fair Copyright" debate. I applaud MR for writing in with his thoughts, and I again strongly encourage my fellow film and TV writers to make yours known, both by submitting to the Copyright Econsultation, and maybe even by wading in over at Michael Geist or Fair Copyright sites.

MR writes:

I've spent the last 25+ years in the IT sector constantly absorbing (i.e. surviving) one disruptive innovation after another. Reading your blog has given me insight and a greater appreciation of the challenges your profession faces (your posts regarding work product/processes, copyright, the CRTC, etc). It's very much appreciated.

Having said this though, I wonder where this sense of entitlement comes from? Your digital works have access to a worldwide audience numbering over a billion potential patrons (internet pop and climbing); who are primed to be gratified instantly; at a near zero cost of distribution (via the evil internet); and you can't think of way to make a living? Fine, our kids will. I don't know what else to say.

It is your industry that broke the deal. Copyright is intended to foster the arts, innovation, reward the creators so that our culture is enriched. Tell me, what great Canadian works have fallen into the public domain since you were born? It isn't our fault that your business is predicated on the continued suppression of the public domain. Oh, please my fellow Canadians - I am deserving of a MONOPOLY on imagination. I really, really need a 50 year monopoly entitlement. Otherwise, I may have to get a second job to make ends meet. Is this what your saying?

The status quo isn't working. A law which has already criminalized 99% of otherwise law abiding tax payers isn't the answer. If the 21st century is all about the "digital economy" - we as a society must ensure that copyright is structured to regulate COMMERCIAL INTERESTS solely. That's it. Don't get me wrong; I'll be the first one to take up your cause if another was exploiting your work for commercial gain. But I'm not interested in criminalizing teenagers, students, or grandmothers. Suffer the free riders and focus instead on the upper percentile who will PAY.

YES. PEOPLE will pay, and have always paid, to be entertained. We'll also continue to pay for entertainment. You should not need a fifty year monopoly in this age of instant dissemination to a global audience. A more reasonable approach to length would be five years, renewable in five-year increments to a maximum of 20 years. Funding for the arts could be secured by diverting 10% of the proceeds of copyright to a fund to help creators. Each subsequent renewal would further increase this contribution by 20% so that a 20 year copyright entitlement would see 70% of the proceeds go to a new arts fund. These numbers are simply thrown out to foster further discussion. I know little of the monies involved... The principle is to: 1) encourage shorter copyright length; and 2) have established creators fund more directly less established ones.

We may need to allow disruptive influences in your industry. We also need a healthy public domain. It's time the pendulum was allowed to swing the other way. Otherwise, your industry will join our telecom industry as digital backwaters - too much control in to few hands. Stagnate.

Anyhow, I don't mean to sound like a dick. Your blog has made me realise that I don't have an easy solution to this problem. For this I thank you as it's made me revise my position on this issue.

Unfortunately, I'm not sufficiently familiar with your industry's costing to be able to address your 50 million dollar challenge. In my industry an ROI needs to be no more than 5 years but with a potential of a billion customers at zero cost for manufacture and distribution as outlined above - the funding would be there. On a 50 year ROI, I have no idea who would take that chance.

My response:

The thing that strikes me most about this debate is that the rhetoric has advanced so very far while the arguments haven't. "Your kids will", and admitting that "I'm not sufficiently familiar with your industry's costing to be able to address your 50 million dollar challenge," but not connecting that back to the central point is the problem here: To me, to people like me, you simply CANNOT put all the stuff you want to put on the table and ask us to take on faith that "it will work out."

"People will always pay for entertainment." What are you talking about? What has the whole downloading culture taught us, then? There is an entire generation for whom that is not true about music. For all the nose stretchers and truth-distortions the music industry has put out since Napster, they're not wrong about that. The value proposition in music is gone. Destroyed. Otherwise great, moral, decent kids -- children of friends, have looked at me mystified when I told them I paid for songs I downloaded from Itunes.

Mystified.

You talk about my sense of entitlement? Well, when I hear about the pendulum swinging back and lets take copyright to five years, all I can wonder is, "are we going to do the same with all inherited wealth?" Really. If I made money trading securities, or building a woodworking business, and I'm quite rich and I die, I'm allowed to pass that onto my family, am I not? Oh sure, it's taxed. But I can still transfer my mill, or the chain of restaurants, or the computer company I started in my garage to my heirs, correct? I can't just start making a digital music player and call it Ipod because it's five years since it was introduced, right? Is Google going to turn over all its propietary code five years from now?

Of course not.

Now - step away from the rhetoric and don't ask me why I feel so entitled, but you explain to ME why the fruits of an artist's intellectual property are different.

Or as another commenter put it on the post yesterday: "Does the guy who makes your pizza have a sense of entitlement for wanting you to pay him? I mean, really, we all have to eat. Isn't the right to food greater than the privilage of charging for it? You are dealing in grandiose abstractions."

There are a whole lot of things that would be better if they weren't allowed to be corporately exploited for as long as they are. It would be better for Canada if the media wasn't so concentrated. But it is. Are we going to change all law? Get rid of inherited entitlements and wealth? Really? Or are you just talking about screwing over the artists, now? What about athletes? He's a great pitcher, but Halladay is making a whole lot of ridiculous money. Oh, and those Real Madrid footballers who blew through Toronto last month -- those guys make way too much, too. Why is that right?

There's a particular strain of muddleheaded evangelism that attaches to the internet industries like a wad of gum on the bottom of a shoe. I covered the early days of the .com internet for a show called MediaTelevision. For about four years I spoke to all the visionaries and freethinkers, and would be geniuses and entrepeneurs. And I'm telling you, the language I heard was very, very similar to what I hear today from a lot of those arguing for "balanced copyright."

That says to me two things: 1) that though fifteen years have passed, the arguments haven't advanced, and 2) the last time we took a flyer on the promises and the hype of that crowd, we had the dot com bust -- and billions of venture capital evaporated overnight.

All these boring questions I'm asking now -- "If we do what you're asking, how does the model work?" are very similar to the simple, "hey what's your business model" questions we all asked 15 years ago. We were called negative then, and told we "didn't get it," and all sorts of other dodges. And ninety percent of those geniuses and visionaries with stock options up the yoni were cast out in the wilderness a while later. They were smug, they burned through money like it was water, and they slunk away, conveniently forgetting that, uh, you know, the people who raised those doubts about how it was all going to work out? They were not "old school" or "tired" or "not in the know" or "locked into old paradigms," they were, in fact, RIGHT.

So forgive me if our trust quotient is low. When someone asks you a question you can't answer, or tells you that the answer to the question you've just asked about your ENTIRE LIVELIHOOD isn't relevant, or worse, isn't even their problem -- the desire to listen to what comes next is, shall we say, low.

It's amazing to me that none of the "fair copyright" [that phrase is starting to read to me like "Ignorance is Strength"] seem to get that. For what it's worth, until you jump off a cliff with calling me entitled and calling for five year copyright, there are general principles that I find nothing to disagree with.

I think that there should be a way to enshrine an expansion of non-commercial uses, and that the main focus of copyright should be to protect commercial infringements. That being said, the academic view that fair use, or use in education = free is ridiculous. The fact that tenured Professors with job security are demanding free use from freelancers with none is a bit odious to me, frankly. Surely there is a middle ground between "so restrictive it's impossible to use in study" and "free."

Second, I am personally offended by the corporate machinations that have resulted in the extension of copyright beyond 50 years. After that time, with millions made and more to come, I'm not so interested in serving the interests of Mickey Mouse. The public domain is important. Corporate lobbying should not be able to effectively kill the public domain by ensuring nothing will ever pass into it again. Now those two positions alone -- plus the distaste I have for the punishment and annoyance that digital locks present -- are moves to the middle of a TRULY balanced policy. And if you talk to most artists who are engaged in these issues, you will find a similar, concerted movement to try and rationalize the consumer good with our needs to be able to earn a living.

But here's where you guys are fucking it up:

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. It's a whole new vision of copyright and fair use. It would be a BEAR to work this out with media corporations, but we think it's worth pursuing. And what is the reaction to this concrete idea from the supposed "fair copyright" side? Instant rejection. "Ipod Tax!" "No!" "Not my hard drive!" "Unfair!" "No, no, no!" How's it played in the media? An Ipod tax. You know why? Because the association with the hated music industry is the best way to quash the idea before it can even gain traction and debate. One of your stated goals is that consumer behavior not be criminalized. Well, that takes care of that. But nope, you reject it out of hand -- and play right back into the hands of the corporate DMCA solution. Great job, guys, on the way to beating your drum, you're being played like a fiddle.

So fine, you stamp your feet, say "no, no, no!" "No levies!" "Not fair." Okay, fine.

What's your alternate proposal for us, then? Show us that you actually are thinking about copyright in a "balanced" way that tries to find a compromise that meets everyone's needs? Oh, um, vague promise, vague promise, and if you can't work it out, your kids will.

I see. In other words: Fuck You.

The myopia of the "fair" copyright side comes from the fact that you go in with goals that are so radical and different, so "let's blow everything up," that you sound like a lunatic fringe and you make it impossible for anyone who's actually an industry stakeholder to support you. Arguing against being able to extend copyright to 70, 75, 150 years? Yup, that's a solid argument that I can get behind but...what? Oh no, you want copyright to be 5 years? WTF? Looking at people who are scared about their livelihood, rejecting their solutions without discussing them, or trying to understand why they've come to that position, and then turning around and saying, "sell T shirts?" That's offensive. And in the face of that, the submissions from a lot of the big corporate media interests are going to seem reasonable by comparison.

There's an unholy coalition around "balanced copyright" that serves it very poorly. The first group are the Internet evangelists who've been talking bullshit for well nigh on 20 years now. And the second group is students for whom this is their "one issue." The latter know nothing of negotiation, business, the way the world works, economics or just about anything else, but by God they know they should be able to sample and remix that clip from Gossip Girl or Snoop Dogg anyway, anytime they want.

I had a kid on Twitter yesterday who started out berating ACTRA and the WGC for re-tweeting one of my posts. I asked him about six times if he understood what the artists' concerns were and in response not only did he have nothing, he consistently presented a straw man argument about logos I'd used in an earlier story which would only have been the slightest bit relevant if, somehow, I was against the extension of fair dealing to protect parody and satire. Which, of course, I'm not.

But nuance, or, in fact, anything other than the straight up and down, marching forward to the great utopian future of free copyright, doesn't play with this crowd. If you're not with them, you're Universal Music or Disney all the way.

The "Fair Copyright" side, unfortunately, is an echo chamber that in its own way is as closed, as self-serving, and as out of touch as the record labels they love to feel superior to. And that's what's really discouraging about this debate. I feel the really important -- and DOABLE things, are not going to get done because they're wrapped up in a whole lot of utopianist crazy.