a different perspective

On 12 September 2018, the Edmonton Journal published an article of mine in print and online editions, where I emphasize the role of exceptions in the growth of billion-dollar media and content industries. Below is the original, longer form, of that article.

As the summer recess ends, Members of Parliament are returning to Ottawa to resume the business of the nation, including a review of the Copyright Act. Judging from transcripts of meetings held last spring, tensions run high among stakeholders. The general dispute is one of control versus legitimate unauthorized uses, education being a particularly thorny issue.

Transcripts of similar meetings from the 1980s, 1990s, and the 2000s, reveal that relations between educational institutions and copyright owners have always been strained. Institutions cite statutes that position copyright as a means of encouraging learning, while owners swear by the rights of the author. Both perspectives have roots in history. The Anglo-American common-law tradition placed the control of copyright, with measures of unauthorized use, as integral to developing publishing sectors. Whereas the civil-law tradition led by France argued that intellectual effort was nothing less than a living part of its creator and must be protected as such.

Yet both themes were relevant on both sides of the Atlantic. Differences were only a matter of timing. Nation-states eager to build their publishing sectors favored lesser control in the name of copyright. After creative assets were amassed, those same states offered holier-than-thou pronouncements about copyright. However, in neither tradition were authors, or students, central players in the various statutes.

Despite this, the figure of the starving author is the principal exhibit during any discussion of copyright. It appeared in 1710—when copyright attained a legal persona—and returned with each copyright expansion thereafter. If, 308 years later, authors are still starving, perhaps it is time to acknowledge that copyright alone cannot assure prosperity for an author. First and foremost, an author needs readers.

For Canadian authors, this challenge is not new. Even without competitors—beginning with Charles Dickens and continuing well past Harper Lee—Canada’s population was not enough to sustain Canadian authors. Even increasing the control exerted through copyright and holding students as a captive market cannot guarantee returns to Canadian authors. Particularly as foreign educational and research-oriented publications dominate the material read in post-secondary institutions.

As MPs wrestle with this review, they might consider a different perspective concerning the system of copyright—that it is not merely about what we read, view or listen to, but how we read, view and listen. Media development is enabled not by copyright, but by exceptions to copyright. Those uncontrolled spaces, where content is unprotected, allows new media to thrive, legitimately, to the benefit of a country’s economic and creative growth.

For instance, in the early twentieth-century, player pianos were in vogue. That success is directly attributable to a copyright law that did not protect music represented and conveyed through mechanical means. According to historian Harvey Roehl, in 1923 the player piano industry produced over 347,000 pianos and achieved over $100 million in sales. (In today’s American dollars, approximately $1.5 billion.) People feared that the technology would spell the death of music, but the new market for piano rolls spurred original composition. The leading player-piano manufacturers were eager to represent popular composers, selling not only their existing works, but also music composed expressly for piano-roll distribution (George Gershwin’s tale is legendary).

Another media technology worth remembering is the video cassette recorder. American film executives fought tooth-and-nail to have it killed; but in 1984, the United States’ Supreme Court ruled that the equipment was lawful. By the 1990s, the film industry was praising the new markets made available by the technology. Consumers were eager to pay for personal copies of favorite movies, which led to increased production of new films. Drawing from data compiled by the U.S. Department of Commerce and the U.S. International Trade Commission, in 1992 earnings via direct-sale to North American consumers reached $2.5 billion and in 1993 earnings from global markets were approximately $5 billion. All this out of a technology that Jack Valenti, then-president of the Motion Pictures Association of America, had likened to the Boston Strangler a decade earlier.

With respect to contemporary technology, MPs might find U.K. research to be helpful. In 2010, then-Prime Minister David Cameron ordered a review of their intellectual property law to enhance innovation and creativity in the digital age. In the ensuing report, the lead investigator Ian Hargreaves wrote: “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes.” A year later, Hargreaves explained that Cameron had been particularly interested in the role exceptions had played in the development of search engines, namely Google.

This past summer, social media were buzzing in anticipation: would Google become the first trillion-dollar company? (Strictly speaking, it would have been Alphabet, parent company of Google, who could claim that title.) Apple emerged the winner; regardless, lawmakers should not forget that Alphabet exists because of Google and employs nearly 90,000 people worldwide. Of course, billion-dollar media industries with plentiful jobs do not arise solely from flexible exceptions within the system of copyright. But such industries could not arise without them.

Opponents of exceptions will criticize any amendment that appears to favour industries over authors. MPs might find strength of resolve through the work of Nick Mount, a professor of English at the University of Toronto, who is respected by authors and educators alike. In his landmark book, Arrival—the Story of CanLit, Mount illustrates that general economic prosperity enabled CanLit to reach the success we see today, and concludes by saying Canada “is producing many more writers and many more books than ever before.”

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For those interested, further reading:

James Boyle (who served as an expert adviser for the British Review) on the Hargreaves Report: “Copyright is supposed to make, not to break, markets. Yet the Review found that innovative digital businesses were strangling in the tangled web of licensing copyright has created.  As technologies have developed, copyright has created right after right to deal with them, each jealously guarded by its own collection society. Pity the poor entrepreneur who wants to create a new legal business and finds that technological happenstance means multiple rights are involved. This is good for no one (except the middle-men.)”

Stephen Advokat, A new era for Hollywood, Chicago Tribune, 3 January 1986.

Fred von Lohmann, “Fair Use as Innovation Policy,” Berkeley Technology Law Journal (2008). “This article contends that copyright law’s historical tolerance for such copying as a fair use has served as an important element of both copyright and innovation policy. This is because, to the extent it permits private copying, fair use creates incentives for technology companies to build innovative new products that enable such copying. Far from being an unfair “subsidy” from copyright owners to technology innovators, this aspect of fair use has yielded complementary technologies that enhance the value of copyrighted works.”

Fair Use – the essential innovation

I usually focus on the creative development possible through fair dealing or fair use; those downstream uses of copyrighted work that facilitate research and learning, or, transformative uses that produce new works. However, there is another element of individual use that deserves attention. The arguably legitimate activities of time and format shifting carried out through private copying. We should not forget that economic prosperity, on a national scale, can be facilitated through these individual activities.

Last week I drew attention to the work of Consumers International (CI); I noted that their current IP Watchlist indicates that Malaysia, Japan, and the United Kingdom are considering implementing fair use within their domestic copyright laws. In a separate report, Access to Knowledge for Consumers – Reports of Campaigns and Research 2008-2010, is a chapter concerning Israeli copyright law and its implementation of fair use in 2007. The chapter, written by Dr. Nimrod Kozlovski, Jonathan J. Klinger, Uria Yarkoni and Nati Davidi, gives an apt summary of the history of Israeli copyright law and related ongoing activity.

The authors position fair use as part and parcel of Israel’s innovative potential. The advantage of protecting consumer rights is that individuals have the certainty to engage in business with others with productive gain for all:

We can see that in a series of cases, the Israeli courts favoured the free markets and competition over property rights, with the understanding that as innovation comes, there will be more welfare (p.177).

In terms of Israel’s progress, fair use is considered essential to achieve free markets and free competition.

This is a perspective that Ireland is now willing to consider. As was reported by John Kennedy on May 9, 2011, the Department of Enterprise, Trade and Innovation is seeking submissions concerning copyright. According to the department’s website:

There is a perception in certain industries that national copyright legislation does not cater well for the digital environment and actually creates barriers to innovation and the development of new business models.

The terms of reference for this review of copyright include, “Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.” Interestingly enough, the terms also state that if suitable changes are not possible under the current constraints of EU copyright directives, Ireland will make recommendations for changes to those EU directives.

The United States is the foremost example of the creative development that can be fostered by maintaining flexible limits on copyright’s mandate. A point exemplified and emphasized by Google; two years ago the company called on the U.K. government to adopt fair use, and, two months ago followed it up by giving that same government a submission detailing the importance of fair use:

[Fair Use’s] flexibility has enabled it to protect both creative cultural output, such as parody or news commentary, and technological innovation built on digital copying. … Fair use is regularly referred to as the key tool by which the US fosters innovation … And the proof is in the pudding: no country in the world can compete with the U.S. for the most innovative search technologies, social networks, video and music hosting platform, and for the sheer generation of the most jobs and wealth in the Internet domain. If one is looking for evidence of how innovation succeeds, the best way is to look at those places where innovation has succeeded (see Section 4.2).

A more in-depth analysis of fair use as a catalyst for American innovation can be found in Fair Use As Innovation Policy (2008), by Fred von Lohmann (Senior Intellectual Property Attorney with the Electronic Frontier Foundation (EFF) and Lecturer at Stanford Law School.) He observes that the more noble aspects of unauthorized use of copyrighted material are easily and often defended – i.e., fair use preserves freedom of expression and fair use upholds the time-honoured process of creating something new by building on something old. But Lohmann focuses on the act of private copying with the reminder that until 1998 the U.S. followed a mantra of “innovate broadly first, regulate narrowly later (p.25)”. Those innovations took form in popular consumer technologies which depended on the legitimacy of allowing individuals to engage in private copying. Lohmann concludes: “From this observation grows the corollary that the fair use doctrine may well be playing an increasingly critical role in U.S. innovation policy (p.36).”

(And to naysayers who will complain that fair use is thus a subsidy to the high-tech sector paid for by content providers, Lohmann gives an extensive four-part rebuttal.)

It seems likely that the Federal Government of Canada will reintroduce Bill C-32 in the near future. Much has been made of the fact that Canadian copyright law has not been significantly altered since 1997. Rather than implementing measures deemed suitable for 1998, perhaps the government will look forward and position Canada as an early adopter of a proven digital economy catalyst. All that is needed is a little unshackled, innovative thinking.