Geof Glass: Malformed copyright hampers citizens and creators

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      We live in an increasingly complex technological society. We need the help of experts to understand issues that affect our daily lives. Copyright, for example. But excessive copyright law can create monopolies of knowledge and monopolies of culture that can isolate us from understanding and from the ability to act as citizens.

      Take the case of global warming. By now it is obvious that there has been a media failure; scientists have been unable to communicate effectively with the public. (Even many who dispute global warming would agree on this point.) The Internet offers a chance for additional detail and analysis beyond what will fit in a newspaper story or 30 seconds of television. But, reading comments on an online news story, you will find many commenters claiming global warming is a fraud. Arguments are grounded in media reports; references to actual scientific studies are scarce.

      Much of the public research about climate, as with other issues, is reserved for a class of academics. As a student at Simon Fraser University I can go online and read scientific journal articles about climate change. When I graduate I will lose my library card. I can pay for a new one, but it will not include online journal access. I will have to trek up to the top of Burnaby Mountain to read the public research—and even then, I will not be able to share the articles I find.

      This is not a choice of scientists, who want to reach the public, or librarians who have fought for public access. The limitation is demanded by journal publishers who hold the copyright to journal articles. This is a monopoly of knowledge enabled by control over distribution secured by copyright. If you are an academic or you can afford to pay, you have access. The public is locked out.

      Monopolies of culture

      This is only half the story. Why have opponents of global warming science been so effective at getting their message out? The answer is because they have appealed not to reason, but to emotion—to how people live their everyday lives. People have come to believe that if we act on carbon emissions they will lose things they love: they will lose their houses, their cars, their way of life.

      Of course feelings matter. In the end we care about the environment precisely because of how it will affect our lives and those of our children. The problem here is tremendously unequal access to the resources of persuasion. Reason is not enough to explain why something matters. We love our houses and our cars because we have been sold them through emotion, through associations with music, with television, with movies—through things that reach us in our hearts. And though we are free to repeat the ideas of the scientists, the culture that resonates with us is owned. Its use is reserved for those who can afford to pay.

      The irony is that the effectiveness and value of culture is something we ourselves produce. The more we invest in culture, the more we care about it, the more we feel it becomes a part of us, the more it can be used to influence us. Let me give an example.

      A couple of years ago CBC decided not to renew the license for the old Hockey Night in Canada theme song. Canadians protested in the thousands. They sent letters to the editor. They flooded the comments pages on the CBC website. They said, “Pay what it takes: this music is part of my life.” When CTV bought the rights the price was rumoured to be in the millions.

      I guarantee you that when CBC first played that song it was not worth millions of dollars. Don’t get me wrong—it is a fine piece of music, perfect for what it does. But although it is not the only tune that could have done the job so well, hockey fans did not want just any piece of music. They wanted that particular song. They wanted the music they had grown up with, the music of their memories, a soundtrack of their lives. It meant more and more to them year after year. By investing their hearts in the music and the game they made it meaningful. They made it valuable. Ironically, they made it too expensive for the CBC.

      This love for the culture we put our hearts into is why artists are so passionate about their work. They feel the most attached to it because they have invested the most in it. They feel it is part of them and they are part of it. This concept is at the heart of copyright, in what are called moral rights: the right to be associated with and given credit for your work.

      Control of distribution

      With the expansion of the Internet we have witnessed an outpouring of creativity. Millions of amateur webpages, photos, book reviews, and videos testify to a drive to create and a hunger to share what we have made. It does not really matter whether that baby video on YouTube means something to you or to me, but that it means something to the person who filmed it or the grandmother who watched it. More and more people are expressing themselves and feeling the love that comes with that investment. Increasingly, that love is being captured through copyright.

      Players of the StarCraft video game have long invented and shared maps for playing the game. Some of these maps are so good that they became more popular than those created by the professionals at Blizzard, the company that created the game. With StarCraft II, Blizzard saw an opportunity. To play the game you must agree to assign to Blizzard the copyright in any maps you create. When you create a map, Blizzard owns it. Blizzard has leveraged its copyright to control what you create.

      Take the example of Apple’s iPad. The iPad is not just a digital gadget. It is a distribution channel owned and controlled by Apple. Inside the iPad there is a digital lock: a piece of software that limits what a device can do. The lock is controlled by the manufacturer—by Apple—not by you, the device’s owner. Through the lock Apple can stop you from doing just about anything they don’t like, such as installing software Apple has not approved. You may own the iPad, but Apple determines what you can do with it.

      Mark Fiore is a political cartoonist. He created an iPad app for displaying his cartoons and submitted it to Apple for approval. Apple rejected the app because, and I quote, “it contains content that ridicules public figures”. As it happens, Fiore won a Pulitzer Prize for his work. In response to public outcry Apple reconsidered and approved the app. If you win a Pulitzer Prize, you can probably get your art into the App Store. If not, you’re taking your chances. Because your iPad is a distribution channel owned by Apple.

      Bill C-32, currently before Parliament, would make it illegal to work around a digital lock. Critics argue that this allows companies to create private law; in the case of Mark Fiore, ridiculing public figures could be transformed into a violation of copyright. The justification for the law is that it would prevent copyright infringement. It won’t. We all have access to the technology for copying. Software for circumventing digital locks is easily available on the Internet. The law can’t monitor us in the privacy of our homes.

      What the law will do is control the artists. Artists are at the heart of the potential for culture to ask questions, to reach beyond the logic of reason to explain why issues matter in our lives. When culture is more than just a way to sell cars or houses it must be something we do in collaboration with other people, not secretly in private. Artists are at the centre of that collaboration. Because artists make their work public, they cannot afford to break the law. Control of the materials of creation and the channels of distribution means control of artists.

      When copyright is malformed it leads to monopolies of knowledge and monopolies of culture that capture artists, reserving for the few the resources that we all need to understand, communicate, and act in our complex world.

      Geof Glass is a PhD student studying communication at Simon Fraser University, and a professional software developer. This article is based on his remarks at Media Democracy Day.

      Comments

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      10 Comments

      K.W.Stevens

      Nov 19, 2010 at 8:15am

      A interesting and thoug provoking piece but I think it is fair to point out that C32 does not make it illegal to work around digital loocks or TPMs... there are educational, parody, and fair use provisons within the Bill that are more expansive than in many other territories.
      The prosposed Bill has many flaws and is far from perfect but the goal is to give Canadians a clear understanding of what they can and cannot do with copyrighted materials. For Canada's digital marketplace to develop and flourish we need to proctect intellectual property and encourage investment. This Bill movesus towards those goals.

      7 13Rating: -6

      Vlad

      Nov 19, 2010 at 9:15am

      I don't understand your example with the Ipad. If you don't like Apple's terms... don't buy it. Is that so hard? Mark Fiore can still publish his cartoons on his own website (which I'm sure can be viewed in the Ipad browser).

      7 11Rating: -4

      Philospher

      Nov 19, 2010 at 9:25am

      Mr. Glass is very wrong or naive. "The law" constantly monitors us in the privacy of our homes.
      Legislation passed last year allows any police agency the unrestricted freedom to monitor any internet activity. Prior to this law, police were required to obtain a warrant when they wanted to monitor a person's personal computer activities.
      Although it was clearly demonstrated that obtaining a warrant was not an impediment the police claimed that they needed this kind of power in order to quickly catch child abductors.
      The police are now using this power to monitor the business and personal activities of anyone they think may be involved in illegal downloading or other nasty practices.
      If Apple makes a claim that someone is circumventing a lock in contravention of a copyright or some other regulation, the commercail crime police will be in your computer.!

      13 6Rating: +7

      Eo_Nomine

      Nov 19, 2010 at 9:38am

      Respectfully, your argument is not very coherent. You seem to be suggesting that copyright is to blame for climate change denial (if only the poor ignorant souls had free access to academic journals, then they would know the "truth"!), that the the Canadian people should own the Hockey Night in Canada theme, and that copyright (and so-called "digital locks") are tools of oppression used to stufle artists and seize ownership. To which I say, "huh"?

      While I find the initial points non-sensical (I'm sure there were many people burning to inform themselves on climate change, only to be thrwarted by the evil journal publishers denying them free access to academic articles... you'll be accusing publishers of being in league with "Big Energy" next), I don't find your more specific points persuasive for the following reasons:

      1) Contrary to your assertion, Blizzard has not "leveraged its copyright to control what you create", and does not require users to "assign to Blizzard the copyright in any maps you create". According to Blizzard's Terms of Use, Blizzard takes a non-exclusive license in any user-generated content that users upload or transmit to Blizzard's online service (See s.12(D), http://us.blizzard.com/en-us/company/about/termsofuse.html). This type of non-exclusive license in UGC is not only standard for just about all Internet service companies (for instance, YouTube's terms of service contain a similar grant of a non-exclusive license in any content posted (See s.6(C), http://www.youtube.com/static?gl=US&template=terms)), it's actually NECESSARY to ensure the service has proper authorization to reproduce and disseminate the UGC across it's network in various forms. Given that the first few paragraphs of your article are dedicated to excoriating those who do not properly inform themselves about climate change, I'm surprised that you didn't bother informing yourself about this basic fact before opinining on it in a published article.

      2) Your point about Mark Fiore would be more compelling if he didn't have an increasing multitude of platforms from which to publish his work. I'm sorry, but is the iPad suddenly the only smart-platform out there, and iPad owners the only audience? If Apple rejected his app, there was nothing preventing him from putting his work up on other platforms, such as the web (which, of course, is generally accessible by iPads) or Android. Rather, like Cory Doctrow, you appear to be demanding that that you have access to whatever platforms you like on whatever terms you see fit, and call cry censorship and oppression whenever any platform has the temerity to say "no". I'm sorry, but that's just not sustainable, and in a hyper-competitive marketplace like the market for smartphones and now tablets, wholly unnecessary. If the both creators and consumers want unrestricted, open platforms, then open models like Android will ultiimately prevail.

      Geof

      Nov 19, 2010 at 11:13am

      Eo Nomine, you are mistaken about Blizzard's terms of use. The correct license agreement reads as follows:

      "YOU ACKNOWLEDGE AND AGREE THAT ALL MAPS, LEVELS AND OTHER CONTENT CREATED OR MODIFIED USING THE MAP EDITOR (COLLECTIVELY, “MODIFIED MAPS”) ARE AND SHALL REMAIN THE SOLE AND EXCLUSIVE PROPERTY OF BLIZZARD. WITHOUT LIMITING THE FOREGOING, YOU HEREBY ASSIGN TO BLIZZARD ALL OF YOUR RIGHTS, TITLE AND INTEREST IN AND TO ALL MODIFIED MAPS, AND AGREE THAT YOU WILL EXECUTE FUTURE ASSIGNMENTS PROMPTLY UPON RECEIVING SUCH A REQUEST FROM BLIZZARD."

      http://us.blizzard.com/en-us/company/legal/sc2eula.html

      Note that the term "modified maps" is used to refer not only to maps that you modify, but ones that you create.

      6 11Rating: -5

      Geof

      Nov 19, 2010 at 12:06pm

      Eo Nomine, you wrote: "You seem to be suggesting that copyright is to blame for climate change denial."

      No, I don't think fixing copyright would be a magic cure-all. But look at what we just did: I made a claim about Blizzard's license agreement. You responded with a link to an authoritative source. I wrote back with another authoritative source.

      I can only assume you think this kind of public debate is worthwhile - that it can make a difference to copyright policy in Canada. But if we were talking about global warming, most of the authoritative sources would be locked up. Are you telling me you don't have a problem with that?

      7 8Rating: -1

      vs1629

      Nov 19, 2010 at 4:11pm

      The assertion that copyright controls artists is frankly, ridiculous. The fact of the matter is that Canada's coypright law lags behind its trading partners, its cultural industries are under attack by so called "sharers" of content (thieves), jobs have been lost, innovation has been stifled, and the losers are our Canadian artists and consumers who are denied exciting digital offerings because of our inadequate copyright regime. The government is finally, more than a decade after it signed the WIPO Treaties, treating copyright reform as a priority. The Bill is not perfect, but it is a start, and I think the writer is completely wrong to argue that it is an impediment to climate change. Absent copyright protection of ideas, how many papers on climate change could exist? Not many. The scientists and researchers writing these papers and doing this research would not be able to support themselves from monetizing their intellectual property and would have to do this work as a hobby, once they've wrapped up working the day jobs they've taken to put food on the table.

      Geof

      Nov 19, 2010 at 7:35pm

      "Absent copyright protection of ideas, how many papers on climate change could exist? Not many."

      Sigh. You throw around words like "monetizing" and "intellectual property" without actually understanding how the system works. Scientists do not rely on copyright. Indeed, the very foundation of science is that scientists publish and share their findings with each other. Here's how it works.

      1) Scientists are paid a salary by their employer (university). They perform research and write up the results as scholarly articles, which they submit to a scholarly journal for review.

      2) The journal puts out the submissions to peer reviewers. These are scholars working in the relevant fields who volunteer their time.

      3) When an article is accepted, the authors are typically required to assign the copyright to the journal. As a scholar, I have done this.

      4) The journal sells subscriptions for hundreds or thousands of dollars, in many cases making huge profits. These subscriptions are paid for by institutions that employ scientists.

      Scientists don't get paid because of copyright. Journal editors do, and their work is valuable, but ultimately they too are paid by the same institutions that pay the scientists. Science does not need copyright, not even a little bit. If anything, copyright is a hindrance to science. This is why there is a major movement to reform academic publishing. Try searching the web for "open access."

      KAThompson

      Nov 19, 2010 at 10:46pm

      Some posters on this thread appear to be suffering from myopia. It seems to me that Geof's arguments are not primarily intended to attack Apple, Blizzard, or academic publishers, but to point out that their actions are inhibiting free expression in the public sphere through their control over distribution.

      This control is only made possible through enforcement of copyright laws by the state, and so the laws (which are supposed to exist for the promotion of the public good) need to be considered in light of their consequences, and if necessary adjusted to ensure that they do not damage the quality of democratic discourse.

      BC Bud

      Nov 20, 2010 at 8:43am

      K.W. Stevens' claim that"C32 does not make it illegal to work around digital loocks or TPMs" is plain wrong. The Bill states that no person shall circumvent a technological protection measure, with the exceptions being limited to purposes of enforcement of the Act. The fair dealing provisions are overridden by the TPM provisions, not the other way around.