Remaking copyright for the digital age   |  February 12, 2010  

Mashup artist Girl Talk

By Lisa Manfield

In RiP: A Remix Manifesto, documentary filmmaker Brett Gaylor explores the toll copyright laws have exacted on both content creators and consumers in North America. While most people are familiar with the impact file sharing has had on the music business, RiP illustrates the stranglehold copyright puts on the creation process as well.

Gaylor profiles popular mashup artist Girl Talk, a biomedical engineer-turned-DJ from Pittsburgh, who creates his music by sampling the tunes of others. His method isn’t much different from the sampling, mixing and remaking of culture that has taken place for hundreds of years. In fact, Gaylor points out that Walt Disney made his fortune by taking works in the public domain and updating them for modern audiences.

The difference is that, today, whether you’re a creator or a consumer (and the lines here are blurry) most cultural content is protected by copyright. You can’t simply take it, rework it and call it your own unless you’re willing to risk massive lawsuits like Girl Talk, who often samples more than 20 songs in a three-minute track. Were he to play by the rules and pay royalties to the copyright owners of those songs, the samples required for an album’s worth of music would cost Girl Talk about US$4 million, according to Gaylor—a hefty price to put out a record.

And he isn’t the only one who breaks copyright laws. Gaylor reports that lawsuits have been launched against more than 24,000 Americans in the name of copyright protection. “Copyright was originally designed to encourage people to create,” Gaylor said in RiP. But more recently, he said, it’s become the weapon of choice for big media corporations looking to protect their dwindling assets in light of digital distribution and file sharing software.

The problem is that copying and sharing digital content has become so commonplace that many people don’t even know they’re breaking the law when doing it. And copyright reform is anachronistically making it more and more difficult for creators and consumers to access the culture they want to enjoy and share.

“Copyright is out of control, manipulated for profit at everyone’s expense,” Gaylor concluded in RiP. “We need to update copyright for the 21st century.”

Canadian copyright reform
Gaylor’s refrain was echoed loud and clear in Canada last summer, as the federal government embarked upon national consultations to reform this country’s decade-old copyright laws.

According to Michael Geist, a law professor at the University of Ottawa who holds the Canada Research Chair in Internet and E-commerce Law, Canada has been in a near-perpetual state of copyright reform for more than a decade, but the process was kicked into high gear in 2008 with the introduction of Bill C-61, Canada’s proposed equivalent to the U.S. Digital Millennium Copyright Act.

The bill sparked outrage in Canada, not just because of its focus on anti-circumvention of digital locks, but also because of its lack of consultation on an issue that affects almost everyone with access to a computer, iPod or personal video recorder. “The copyright issue in the last 10 to 15 years has evolved from niche legislation for commercial arrangements to the point where it now directly impacts the daily lives of Canadians,” Geist said. “It affects their education, their ability to speak out and to create. Copyright now affects people’s lives dramatically and all day long.”

Bill C-61, however, took a punitive approach similar to the U.S.’, Geist said: “Everything is considered an infringement.” But there were two main areas of contention with the bill: anti-circumvention and fair dealing. The first imposed strict penalties for the breaking of digital locks. “Copyright provides one layer of protection for your content,” Geist explained. “Technology provides another layer, in the form of digital locks or DRM (Digital Rights Management). Anti-circumvention protects the technology that protects your work.” In other words, if you break the lock, you break the law, according to the bill. The problem with this law, Geist said, is that “the world evolved beyond digital locks. People broke the locks, remixed content, created mashups. The world changed in ways the laws didn’t anticipate. The legislation was outdated from the beginning. It was dead on arrival.”

The second problem area was that of fair dealing, known as fair use in the U.S., which limited use of copyrighted material to research, study, reporting, review and criticism—making other commonplace activities like time shifting (recording for later viewing) and device shifting (consuming on a different device from the one involved in the download) illegal.

“The public voice that came through in the consultation was that it should only be illegal when it’s purposeful copyright infringement, in other words, there should be exceptions for fair dealing,” Geist said. “The U.S. doesn’t distinguish this. So the question is how to expand fair dealing?”

That question was never answered, as Bill C-61 died with the federal election call in 2008, but the passion it had provoked gained new life last summer when Industry Minister Tony Clement announced a nationwide copyright consultation process involving roundtables, town halls, online discussions and an open submission process that resulted in an unprecedented 8,000 submissions. “Political leaders were surprised that Canadians were concerned about the bill,” Geist said. “The response was way beyond what was anticipated. The last time there had been a consultation on this issue was in 2001. It was a true national response and it was amazing to see that happen.”

Digital Rights Management
While Canadians await the result of the copyright consultations—a new bill is expected in 2010—the copyright battle rages on in cultural industries.

In book publishing the battle is over DRM, an approach used by publishers and e-book retailers to prevent content from being shared. And much like in the music industry (where iTunes actually abandoned DRM last January), both consumers and creators are finding ways around the digital locks. One of the most well-known copyright activists in publishing is undoubtedly Cory Doctorow, the Canadian-born sci-fi writer known for unabashedly eschewing DRM by distributing his books for free online under a Creative Commons license. He not only believes that giving away DRM-free downloads sells more print copies, but also that it would be hypocritical to lock down digital content in an age when everyone is copying and sharing.

“His agreement with the reader is you have to attribute it, you can’t claim it to be yours and you can’t sell it,” said Sean Cranbury, a Vancouver writer, broadcaster and marketing consultant who is working to educate the publishing industry about DRM. “But you can share it, you can download it, you can put it in an e-mail and send it to all your friends, you can post it to your Facebook page, you can put it up on Pirate Bay and make it available to other people, and he doesn’t care.”

Having spent many years as a traditional bookseller, Cranbury agrees with Doctorow’s approach, likening DRM to digital handcuffs, a stark contrast to the approach copyright takes with print products. “As a bookseller, I give you the book and we’re done. What you do with it is up to you. But DRM prevents end users from doing more with the file than the seller wants them to do. It tethers the content to a central server like Amazon does with their Kindle content, as we saw with George Orwell’s 1984 when they retracted all that content people had paid for [due to a copyright issue]. People thought they owned those files.”

Cranbury defines DRM as “any lock put on a file that prevents the person who has purchased the file from doing what they want with it,” but says it’s about money more than actual copyright. “It’s a passive-aggressive threat of litigation. Most people have home computers and access to file sharing networks. Is it possible to legislate against them? It is reasonable to expect litigation for use of a common tool?”

Copyright as business model
According to many authors and book publishers, it is. Because while Doctorow’s approach might work for well-established authors, much like it has for well-established musicians like Radiohead and Nine Inch Nails, would it really increase print sales for more obscure authors whose books aren’t international best sellers?

Not according to Andrew Nikiforuk, a Calgary author and journalist whose latest book, Tar Sands, was the subject of a digital distribution experiment by his publisher Greystone Books. For five days last spring, Nikiforuk’s book was offered as a free digital download from the publisher’s Web site, resulting in 6,000 downloads. “They did it to see if it would generate publicity and additional book sales,” Nikiforuk said. “But I don’t think giving away free books is a good idea. As a publicity strategy it worked, but as a sales strategy it was a disaster. It’s a serious work, and it took serious time. And free distribution limits the ability of authors to do this again.”

But according to Jesse Finkelstein, the director of digital assets and foreign rights at D&M Publishers, which owns the Greystone imprint, the issue simply isn’t black or white, particularly when it comes to DRM. “Notions of sharing are perfectly reasonable. But people want to simplify the issue and accuse publishers of locking up content when in fact many retailers add DRM to the files themselves. If we want to sell our books through the Kindle store, they have to be in Kindle’s proprietary format, and DRM comes with that format.”

Conversations about DRM also seem irrevocably intertwined with the issue of free distribution, “and free hasn’t been properly defined,” Finkelstein said.

For Cranbury, free means you pay for the content upfront but then you own it and should be free to do what you please with it. For Doctorow, free is a digital distribution strategy that leads to paid sales of hard copies. But Finkelstein doesn’t believe free distribution is the way to go in most cases. “As a general practice, D&M is not interested in making free copies available the way Cory Doctorow does,” she said. “This approach really requires a specific model to succeed and it won’t work for every book or author. It’s still of great interest to any publisher to be compensated on books sold.”

Of course, few argue with the fact that content creators should get paid for their work, but in an age of digital distribution, file sharing and the proliferation of Creative Commons licensing, is it copyright’s role to provide a business model for creative industries?

“Copyright is not a means for people to make money,” Cranbury said. “Copyright is the means for people to be recognized for the work they do, and it needs to be recognized as a public good—making things available to the public in a reasonable way.”

And as Geist stated in his submission to the government’s copyright consultation (the full text of which is at http://tinyurl.com/geistsub), “copyright law should strive for balance between creator rights and users’ rights.”

It’s a fine balance that will require flexibility and forward-thinking, as digital environments become bastions of content creation and sharing. And it’s an area itching for innovation and bold experiments.

“If small businesses are serious about succeeding, they should brand their content, link back to their site and thank people for downloading their files,” Cranbury said. “You have to try to stay relevant. Don’t fight the technology and create barriers between yourself and the future. Start figuring out how you’re going to engage the technology.”


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