Response to Canadian Copyright Consultation

The government set up public consultations and a web site for discussion and formal submissions of responses to questions concerning copyright reform. The web site posed five questions, which I thought about for a bit and then hastily wrote some responses today. I’ve been away travelling for a while–there’s nothing like last minute writing before the submission deadline tomorrow. :-) In any case, I figured I’d post my responses to the questions here as well.

The questions were

  1. How do Canada’s copyright laws affect you? How should existing laws be modernized?
  2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time
  3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?
  4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?
  5. What kinds of changes would best position Canada as a leader in the global, digital economy?

1. Copyright and You
How do Canada’s copyright laws affect you? How should existing laws be modernized?

Canada’s copyright laws affect me by imposing a controlling framework over my participation in our society. In responding to all of these copyright discussion questions, I propose that the basis for understanding how we should treat copyright needs to be founded in day-to-day living human society. I’d say this holds by and large for our treatment and interaction with all manifestations of various intellectual creations.

I’m not going to talk about specifics. Not specific stipulations, rules, or terms on how I think the copyright laws should be written or applied. I’m sure that there are a number of suggestions for that but I would like to see some background principles in place from which the specific rules are set. If questions arise as to the specifics or proper application, then a verification against the background principles would help determine the best approach. So I’ll answer these questions, as briefly as I can, with what I think the background principles ought to be.

Canada is because Canadians are. In our everyday activities we create our own culture while apprehending it. In order to participate at even the most minute levels of creating our culture we’re constantly experiencing everything around us to inform and inspire what it is we put into our culture. Really it’s just how we live in a society with other people—I’m trying to describe a self-nourishing loop. For example, when I write a novel, I’m drawing on my lifetime of ideas which has been influenced by every experience I’ve had. My experiences include everything in the world around me that I come in contact with, physical or otherwise. Whether initially created by humans or not, the fact of the Canadian environment is as much a part of our social experience as are the ideas we convey in our culture.

I believe that when I expose any of my ideas publicly (that is, when I do not keep them to myself), whether in a manifestation like a book, music, painting, etc. or even verbally, those ideas become irrevocably a part of our society. The moment we manifest a product of our intellect in the public sphere (our commons) at least one other person has now somehow apprehended them in his or her experience. The lives of those people are influenced by their apprehension of the ideas. In turn, those people will somehow contribute them, in their own ways, into society. Maybe someone will read a book I’ve written and then recommend it to someone else; a simple example. Maybe someone will see a painting that an artist made and be inspired with an idea to compose some music, which then eventually gets performed and heard by other people. A bit more involved, but just as much a part of the loop that is a living society.

That loop is the vibrancy of a living society. Without this constant interchange of ideas and creativity to even the simplest, most banal degrees, we cease to be a society. That is, without it, everyone keeps everything to oneself, which could only be possible if one were to live entirely by oneself, isolated from all other human interaction. In other words, in the absence of human society.

Current trends in copyright discussions tend to focus too much on the economic aspects of creator’s rights or else simply the notion of “ownership”. This is a mistake because it neglects the priority of the entire background principles taking place that enable people to manifest their intellectual creations within our society in the first place. It is however mostly possible and reasonable to identify creators with proper attribution to their works. From this attribution there are plenty of ways encourage our economy without assuming restrictive ownership-style rights. But this is more for a later question. I mention it here only to say that the economic concerns (which tend to wield an overbearing influence in copyright legislation) have profoundly impact our lives in the way we apprehend and participate in our society. These economic concerns should not be mixed into the purpose of copyright law, which in my opinion is to better our society by fostering creativity in the living space for manifesting our intellectual works.

Canada’s copyright laws affect me because I want to participate in a living Canadian society. I want to experience our society and I want to continue contributing to it. I do not want our society to die, I want it to neither be excluded nor exclude the rest of human society. Finally, I do not want to live isolated from all other humans. In order for this to be my reality, the controlling framework that is copyright must, by all means, neither restrict my liberty to apprehend all the creative intellectual elements of our society and environment nor restrict my liberty to contribute in kind.

Modernizing Canadian copyright law requires a focus equally on fostering creative expession and on ensuring the possibility for everyone’s apprehension of those forms of expression. Modern Canadian copyright law should emphasize a lack of restriction on the exposure, apprehension, distribution, and redistribution of all public intellectual manifestations. Canadian copyright law should focus on strengthening the freedom of our commons and affirming that this is our cultural lifeblood. At the same time, Canadian copyright law should clarify and enforce proper attribution for all who contribute their ideas in whatever form manifested. The framework of modern Canadian copyright law should be minimal in its control of social participation.

2. Test of Time:
Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

I think this question is asking about the copyright rules themselves standing the test of time. Unless I’ve misunderstood, that is not the best question to ask with respect to copyright and time. A more important issue is how does copyright affect Canadian values and interest over time? To which, I think copyright has to ensure the apprehension and contribution of intellectual manifestations to Canadian society now and continuously.

Rules that prevent the apprehension or distribution of any intellectual manifestation exposed within our social milieu are hostile to the test of time. For example, rules that confer rights for the reproduction of books to individuals or companies beyond the author’s lifetime serve more to destroy that piece of our shared culture than to keep it living. Such rules severely narrow the possibility that people will be able to apprehend the book because its distribution is maintained by a single source of control that frequently does not have our common social well-being as its driving focus, but rather the increase in profit is the driving focus.

Generating wealth by means of controlling access to a book works because the book can be made scarce (when it might otherwise be freely copied). This is problematic for a number of reasons but one main reason is that preventing apprehension of the book implies the removal of a part of the living loop that is our society. It’s ultimately a hostile attack against the well-being of our society. In other words it goes contrary to our longetivity, it’s a practice that fails the test-of-time. If we want to ensure that our intellectual manifestations do stand the test of time, we must ensure the well-being of our society’s living loop.

To answer the test-of-time question as originally stated, based on Canadian values and interests, which certainly seek self-continuation (since I don’t believe all Canadian’s share a suicide wish), copyright changes should be made so that they do not result in causing our society to have many instances of individuals or companies holding rights over those of our social commons. If we someday end up with so much of our culture bottled by a few companies for apprehension by those that can pay, then we self-destruct, at which point we will be forced through extremes to re-evaluate the madness of an over-restrictive copyright policy, and thus the policy itself would be poorly adapted for the test of time.

3. Innovation and Creativity:
What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

I think most people recognize that innovation and creativity do not take place in a vacuum. They go hand-in-hand with the living loop of our society. In order to foster more innovation and creativity, it’s essential to liberate exposure, apprehension, distribution, and redistribution of all public intellectual manifestations.

The best way to encourage innovation, which by definition builds on what exists already, is to encourage the free-flow of ideas in all their forms. Creativity likewise often flourishes as people are inspired by their apprehension of other’s creative works. Modern Canadian copyright should boldly recognize the infinite, free reproducibility of ideas as a common good, necessary for innovation and creativity. This would help ensure their apprehension.

To foster innovation and creativity modern Canadian copyright should also ensure recognition of creators. This is important for at least three reasons. First, because it identifies those participating and thus calls attention to the life that is Canadian society. Second, knowing the creator of some sort of intellectual manifestation helps enables social interaction between people. If I know who wrote a song, I can find more of her work, which might further inspire me to create something or otherwise participate in our society, or I can collaborate with her. Finally, something just feels right about being able to identify a creative work with its author. Authors feel entitled to recognition of their labours contributing to the living loop that is our society. Recognition of the elements composing our commons by our commons, encourages us to participate.

4. Competition and Investment:
What sorts of copyright changes do you believe would best foster competition and investment in Canada?

Historical precedent repeatedly shows that when there are fewer restrictions on the exposure, apprehension, distribution, and redistribution of public intellectual manifestations, competition and investment bloom. There are multifold examples of this in Lawrence Lessig’s book “Free Culture” (http://www.free-culture.cc/).

When intellectual manifestations are understood in the context of our living society, the notion of ownership becomes entirely awkward and anti-social. To really allow the notion of ownership contained within the phrase “intellectual property” to function, we apply it as though speaking of discrete physical items. Consider that the moment an intellectual creation is manifested in our society it irrevocably enters the living loop I described. So, followed to its ultimate ends, in order for ownership of “intellectual property” to be practically implemented, we eventually would require that creators be isolated from society. The only way that what is intellectual can really be owned is to isolate its creation entirely from influence contributed by our living society and from likewise influencing our society. Once it’s loose, it propagates in idea if not physical forms. But such an implementation as isolation makes the notion of ownership useless and the concept of “intellectual property” both nonsensical and untenable.

None of that however, means that we cannot recognize, attribute, and celebrate those people who originate or otherwise manifest their ideas and creations in our society. Nor does it mean we cannot harness those manifestations and the energy behind creating them in interesting and lucrative ways. I think it’s essential to distinguish between ownership and creation, which current copyright laws do not seem to do effectively.

Competition and investment with respect to our intellectual manifestations ought to be considered as a separate issue from most of the other questions in this consultation. We have to recognize that competition and investment are wholly dependant on a living society. They require new inputs to society from creators as well as desire from those in society that would apprehend the intellectual manifestations. In order to foster competition and investment, the focus of modern copyright should ensure the well-being of the living loop of society I described previously.

5. Digital Economy:
What kinds of changes would best position Canada as a leader in the global, digital economy?

First and foremost, modern Canadian copyright needs to emphatically affirm the characteristics inherent to the digital medium. That is, it must tend strongly toward the liberty to freely reproduce that which is digital.

Creations manifested in a digital medium, similar to ideas themselves, are infinitely reproducible without degradation, and with virtually little effort or expenditure of physical resources. It is a huge disservice that copyright-oriented conversations often address creations manifested in a digital medium as though they’re apprehended the same as physical items. A shovel can be stolen (I take it from a store and it’s gone), a digital file (like an MP3 or FLAC music file) cannot. The digital file can on the other hand, be duplicated without loss of or degradation to the original. This is hugely significant in all of our attitudes toward addressing the digital economy.

Modern copyright needs to swim with both the lack of limitation and the absence of scarcity that characterize transmission of intellectual works manifested in digital media. A proper Canadian copyright policy should not include anything that enables the implementation of technologies, applications, agreements, or other methods of enforcement limiting or otherwise restricting the nature of the digital medium.

The best economic policy involving the digital medium must embrace limitless reproducibility in ways that are totally alien to physical objects. The sooner Canadian copyright law recognizes this, the sooner Canadians and Canadian businesses will be able to develop and launch modern digital-native business models that lead the global economy.

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