Thursday, December 20, 2007

Myth vs Truth: biased comparisons from Propaganda 101

In recent discussions about the proposed Act to Amend the Copyright Act in Canada, ACTRA (the Alliance of Canadian Cinema, Television and Radio Artists) has made it's position public with a binary argument Truth vs Myth. The idea being that ACTRA's opinion is the 'truth' and the opinions of those who disagree with ACTRA is a 'myth'. It's not terribly elegant, but in the toolbox of language, the cliche is as reliable as a hammer.

Like any far-reaching and diverse issue, there are many truths and almost-truths and grey areas that need to be explored. For example, ACTRA suggests that instead of being on the side of big-business, they are on the side of artists. Well, this is almost true. They do represent many artists, particularly those who have their work published by large companies. They fail to mention how many artists are against the venture and how many small-businesses could be harmed by the proposal.

In the interest of generating more discussion instead dumbing down positions (which should tell us all something about what ACTRA thinks of us), I offer this excellent response to ACTRA's position. It was written by Geoffrey Glass of Simon Fraser and I think it is a great step towards an actual conversation about this issue rather than catch-phrases and buzzwords.

ACTRA's official position can be found here.

Here is Mr. Glass's response:

ACTRA, which supports stronger copyright controls and the implementation of the WIPO treaty, has published a document titled "Myths and Truths about the Proposed Changes to Canad's Copyright Act". This document is problematic because it ignores the gravest concerns of critics of the proposed law, while providing incomplete or misleading information about some matters. I will go over it point by point.

* ACTRA claims that the new law will not make time-shifting illegal (time-shifting is the practice of recording something to watch it later - e.g. on a VCR). Currently, Canadians are permitted to make copies for private use - including time shifting. The major industry lobbies pushing for copyright revision want the government to remove this exemption. We don't know whether that's in the bill because, as ACTRA says, the text of the bill hasn't yet been made public.

* There are serious problems with legal protection for so-called digital locks ("DRM" or "TPMs"). ACTRA's comparison of these locks to physical locks on your house or car are misleading. If laws like this were applied to cars and houses, it would be illegal to change the locks on your own house. In the case of a digital lock on a DVD, for example, the lock is part of your DVD player - but it's not there to protect you; it's there to protect Hollywood from you. This law would make it illegal for you to break the lock on your own property.

* ACTRA claims that protection of DRM will produce more choice for consumers. In fact, consumers have resoundingly rejected technology that restricts their ability to view or make legitimate use of the media they purchase. That "Canadians have fewer digital services and pay higher prices than U.S. customers" is a red herring. This applies to many goods and services in Canada, from books to computer hardware. We are a smaller market; accordingly, we suffer from less choice, less market competition, until recently a lower dollar - and thus from higher prices.

* Canada has been lobbied heavily by Hollywood, the American recording industry, and by Canadian businesses heavily dependent on these industries (such as ACTRA). The U.S. ambassador and trade representative have personally pressured Canada to implement these changes. Canada is under no obligation to ratify the treaty - the United States certainly isn't known for ratifying treaties it doesn't like (such as Kyoto, the International Criminal Court, or the international treaty to restrict land mines). In fact, it wasn't until 1988 that the United States got religion and implemented the 1883 copyright treaty mentioned by ACTRA.

* One of the central provisions of the WIPO treaty, and the one to which many Canadians are opposed, would make it illegal to circumvent DRM. The American DMCA implemented the same treaty, but went beyond the treaty's requirements. The United States is pressuring Canada to follow suit. Whether this qualifies as "mimicing" or not is beside the point.

* The privacy implications of WIPO ratification have concerned four Canadian privacy commissioners[1]. DRM built into the Windows operating system, for example, sends information to Microsoft. The infamous Sony rootkit opened up security vulnerabilities on the computers of legitimate customers.

* ACTRA is probably correct that the unauthorized downloading of copyrighted material is illegal in Canada, though there has been some question on this point. In fact, CRIA (the Canadian equivalent of the American recording industry association, which represents primarily American labels) wants to eliminate the levy on blank media (recordable CDs etc.) because they suggest it makes downloading legal.

* Hopefully ACTRA is correct that the music industry will not sue "single mums and innocent users" - though the same companies have not held back in the United States. It seems odd to want to change the law and eliminate levies otherwise.

* Interoperability problems between music players are not like the differences between Beta and VHS tapes. They are almost always the result of incompatible DRM schemes. Breaking DRM could allow music to be transferred between devices, but the new law would make that illegal.

* ACTRA is correct that the amendment is not expected to include a blank media levy. There is some question as to whether the existing levy compensates for downloading - as mentioned above.

* To the extent that the government has consulted with the Canadian public, the public has rejected the WIPO treaty. In 2001, a government consultation requested submissions from Canadians. Approximately 700 individuals and organizations responded. Of those who addressed the DRM-related provisions of the WIPO treaty, 93% were opposed[2]. Since then, there have been tremendous changes in the digital landscape. In 2001 there was no YouTube; the first iPod was only launched in October of that year. Nevertheless, there has been no subsequent public consultation and the government developed a bill to ratify WIPO.

* Commercial piracy, as is practiced in some parts of Asia, certainly hurts performers. WIPO implementation likely have little or no impact on piracy - all DRM can be circumvented; all it takes is one copy and the cat's out of the bag - both for commercial pirates, and for private filesharing. On the other hand, the economic impact of filesharing is ambiguous. A number of studies have found little or no evidence that filesharing results in a net loss of sales, as it can lead to increased exposure for artists. While some artists are likely hurt, others base their businesses on filesharing. The greatest threat of filesharing is not to performers, but to companies engaged in distribution and marketing - such as the large recording companies - who risk being cut out of the loop.

* The "old legal concepts" referred to by ACTRA may be copyright law itself. In place of the human rules of copyright, DRM substitutes the inflexible law of the machine. Legitimate freedoms that consumers had under copyright can simply be forbidden by digital locks, and there will be no recourse because circumventing these locks will be illegal. This kind of "choice" by performers will dramatically narrow the choices available to consumers (and to performers, as I explain below and it [4]).

* ACTRA is correct that the "making available" right would be new. I am not well versed on this. However, according to Professor Tom Flanagan it "ignores the consumer in favor of the producer, to solve problems that don't exist"[3].

* The apparent choice offered to performers is an illusion. For a long time, performers have been at the mercy of powerful distributors. For many performers, digital technology offers the opportunity for more contact with their fans and for new modes of distribution. This law would instead enhance the control of distributors and technology companies who control the DRM.

* I cannot know the reasons why ACTRA supports this law. The making available right would likely be economically beneficial to its members. Legal protection of DRM, however, would not. These are industries in transition. Some performers believe their livelihoods are at risk. Some are dependent on an American industry that would benefit if Canada adopts these laws (because they control the DRM, because it would prevent innovative competitors from establishing themselves, because it would entrench their ideology of control). Some believe that their hard work and creativity are being disrespected. Established channels of distribution and marketing, and established patterns of business oriented around the creation of hit movies and chart-topping music are changing and being undercut. A technology offered a silver bullet to stop copying is compelling, especially when set against the specter gangs of arrogant teenagers and twenty-somethings eager to get their entertainment for free without paying a penny. The companies who sell DRM benefit from it - they gain a market, and they gain control[4]. But DRM doesn't work for performers or artists - or for consumers. And that is why many Canadian creators, consumers, and citizens oppose this law.

[1] http://www.michaelgeist.ca/content/view/1389/195
[2] http://www.digital-copyright.ca/node/4428
[3] http://www.michaelgeist.ca/content/view/1174/
[4] http://www.geof.net/blog/2007/12/08/bad-canadian-copyright

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