Wednesday, February 13, 2008

What is a "balanced approach" to copyright reform?

Everyone who advocates one form of copyright reform or another says that they want a "balanced approach." Who is opposed to balance, after all? But what exactly does balance mean? What interests are being balanced?

We view copyright balance as finding ways for copyright holders to receive fair compensation, encouraging them to create new amazing songs, movies, and software, while allowing consumers and businesses the right to use, enjoy, make fun of, mash-up, experiment, play around with, and otherwise innovate with those same copyrighted works.

Here in Canada, where there is an ongoing debate about how to best implement the WIPO Copyright Treaty, Google has joined with a number of other Canadian and international companies who have a shared vision of balanced copyright. The Business Coalition for Balanced Copyright has issued a two-page position paper calling for a "balanced 'package' approach for a strong Canadian copyright regime." Admittedly not the snappiest title, but even so the document includes an important list of issues that the Canadian government ought to consider as integral to copyright reform.

The coalition's proposed package of reforms includes, among other things, expanding Canada's fair dealing provisions – permitting commonly accepted uses of copyrighted works including: parody, mash-ups, time-shifting and place-shifting. More importantly, the coalition is calling for fair dealing to be made more flexible. Canada's current approach to fair dealing ossifies the tiny and exhaustive list of exceptions to copyright and as such stifles cultural and technological innovation.

This balanced approach to copyright reform is the same approach that we follow in practice. Every day Google helps content owners unlock value in their works. Every day Google helps consumers express themselves in unexpected, innovative ways. Flexible exceptions and limitations, which encourage creativity and innovation, are integral to balanced copyright law.


terminus said...

Domestic law reform is only part of the solution though. Two other venues for copyright reform are at the international level, within WIPO and the WTO, and in the US Congress since the US enforces its own copyright law upon much of the rest of the world (through Fair Trade Agreements and simply through market pressure). Is Google planning to bring a balanced approach to copyright reform in these other fora also?

Patrick said...

Do you realize in your description of balanced copyright that you completely flip the standard we have had for more than two centuries and is defined in the US Constitution? Article I Section 8 gave authors "the exclusive Right to their respective Writings and Discoveries," the only time the word "Right" occurs in the main body of the Constitution. Yet you say nothing of respecting creators' rights, you speak only of the "rights" of the end-users of those works, even though the Constitution says nothing of end-users (it does consider them by ensuring the rights are for "limited Terms." Why should I have as a user of a creative work more of a right to a photograph, video game, movie or sound recording than the artist who created it and is the rightsholder of it?

Ryan said...

Patrick, in the article, he is not flipping what WE have had, he is flipping what YOU have had, This article discusses copyright reform in general but also does from the point of view of the CANADIAN copyright system which owes absolutely no allegiance to that ancient document you call your constitution.

Furthermore, age does not reflect accuracy, just because you have used the constitution for a couple hundred years doesn't mean it is accurate. In fact much of what is written in it has been outgrown by the country.

Also I agree that a user should not have MORE rights to a piece then the creator should. But i disagree in the belief that the creator should have more rights as a result. The creation, while created by the creator should be the property of humanity.

Remember, Human Knowledge Belongs to the World... By hoarding it we only restrict innovation

Mark said...

One other thing that I think Canada could to is expand the notion of private use copying to extend to *ALL* forms of copyrighted works, and not just music. The fact that only music is explicitly mentioned strikes me as an anachronism, owing to the fact that at the time that portion of the modern copyright act was drafted, it was the only significant form of copyrightable work that was easily and cheaply copyable without having unlimited access to expensive commercial equipment that very few private individuals would have ever had a reason to own.

I further think that Canada should *NOT* criminalize the production or research of technology which may be used to remove copy protections that the publisher may want to put on his works (although I would advocate that publishers should have the right to put such protections on there, if they so desire). The consequences for using such technology to infringe on copyright should fall upon the people who actually do otherwise commit copyright infringement. If private use copying and fair dealing are genuinely supposed to remain exceptions to infringement (which I wholeheartedly endorse), then there intrinsically remains a perfectly legal avenue by which copies can be made without infringing on copyright. Just because a car _CAN_ go over the speed limit, that doesn't mean you should hold the car manufacturer responsible. It's the fault of the driver.

Something else that I think needs to happen is creating stronger awareness of how copyright infringement actually really does damage copyright holders, and not just in terms of supposedly lost sales, because that argument makes the entirely unproven assumption that a copyright infringer would have otherwise purchased the work. Further, not all copyrighted works even necessarily cost money at all, yet it is still completely possible to infringe on the copyright of such a work (GNU licensed software, for example, is free for anyone to copy as-is or use for any purpose, but the creation of derivative works is prohibited unless they conform to the same distribution license).

One might wonder how a copyright holder _does_ get damaged, if it's not in terms of lost sales. There are many ways in which this can happen, but I think that the most significant one is in terms of notoriety... that one typically only mentally notes the "most popular" method by which a work is acquired, which may not be one that the author or publisher ever endorsed, and that can adversely affect the author or publisher's incentive to produce new works in the future.

Russell McOrmond said...

I am the policy coordinator for CLUE: Canada's association for Open Source. I am wondering who we would talk to about possibly signing onto the policy statement?

I am curious if someone can help clarify the section on "Making available and distribution rights". There are two different legal theories for various type of electronic file transfer: one is to ignore the length of the wires and consider it the making of a copy in the same way is if the original file and the destination file were in the same location when the copy was made and then the 'copy' was moved elsewhere. The other is to focus on the wires and treat it as a communication to the public by telecommunications that just happens to have a private copy retained (which should otherwise be carved out of the act anyway as fair dealings -- along with private activities such as time, space, device and format shifting).

The position paper seems to side with the first legal theory where this is a distribution of a copy, rather than a communication by telecommunications. Is there a specific reason for this choice? The first theory is better for record labels who can better control copies than communications which are under a compulsory license. The second theory is better for the rest of us, partly because of the compulsory license, and partly because it more closely matches what non-lawyers think is happening.

See my attempt to make sense of this question: Canadian Peer-to-peer (P2P) legal theories, proposals and questions.

And to Mark,

Expanding private copying to all creative works would decimate many creative communities. I try to explain this in: Analyzing when copyright levies are a good idea, and when they are a very bad idea. You may find other articles such as Even in the “DRM” debate, Content is not King interesting.

Patrick and Ryan,

I don't think either Canadian or US laws were flipped by the article, but by recent laws. Previously Copyright only regulated commercial/industrial activities carried out with respect to creativity. In the past it did not try to regulate the private activities of citizens, nor did it try to regulate the technology used to create/manipulate, communicate or access creative works (Remember: Copyright infringement and creativity are identical technological acts: you record/edit, communicate and access something). It is regulating these new persons and technology that flipped Copyright on its head, not those of us who recognize that this is a very bad idea.

Users may be seen as being granted "more rights", but that is only because these are rights we already had (Both in the USA and here in Canada) that have only recently been considered to be taken away.

We host a Petition to protect Information Technology property rights, something that was not needed in the past as Copyright never before came in such direct conflict with private property rights unrelated to the purchase and ownership of creativity on tangible media (IE: tangible vs intangible rights to a piece of art).

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