Tag Archives: copyfight

What’s Battlestar Galactica got to do with the copyfight?

My article on Battlestar Galactica and Canada-USA tensions over copyright is now available in open access full text at AU’s repository (courtesy of Liverpool UP). At the link you can read the abstract and download the PDF.

McCutcheon, Mark A. “Downloading Doppelgängers: New Media Anxieties and Transnational Ironies in Battlestar Galactica.” Science Fiction Film and Television 2.1 (2009): 1-24.

So what’s Battlestar got to do with copyright? Briefly, the show was produced in the USA, but it was shot in Canada, and it cast Canadian actors as the lead bad guys, who “download” a lot. At press time, Bill C-61 was on the table, but the argument remains relevant to C-32’s expected successor. The recently leaked cables showing the “U.S. swayed Canada on copyright bill” (Geist) add fresh evidence to my claims.

The OA version has neither the layout nor the frame-grab still shots from Battlestar that grace the publisher’s version. There’s an ironic copyright backstory story here. I got the proofs of my article laid out with lots of these still frames — none of which I’d chosen, let alone cleared. I told the editor the images added great illustrative value, but I was concerned about their copyright status — wouldn’t their uncleared use lead to litigation? The editor replied to say that, although “the copyright law around frame-grabbed images” had not yet been tested,

it is the case in the UK that they can be used without obtaining permission (and in the US and Canada, they are covered by fair-use clauses – at least until they too are tested in court). Publishers like [***] Press regularly use images without obtaining permission. We discussed this issue with Liverpool UP before launching the journal and they are prepared to go along with our understanding of the situation; and we do always credit the source of images, even though this is not strictly necessary.

Imagine my delight, then, that this essay on copyright got to appear in print accompanied by illustrative images used legally but without the Hollywood producers’ permission.

It’s only fair that research on copyright law should be openly accessible. It’s a bonus that fair dealing became a principle of this work’s form.

Work Cited

Geist, Michael. “Leaks show U.S. swayed Canada on copyright bill.” Toronto Star 3 Sept. 2011.

Call for papers on Literature & the Copyfight, for Congress 2012

Call for papers: Literature & the Copyfight, Congress 2012.

Critical scholarship is urgently needed to intervene on the question of copyright: once a staple stimulus for literary and cultural production that now tends more to stifle it. … This session invites papers on the relationship between literature, copyright, and the copyfight.

The deadline for submissions is 15 Nov. 2011 (see link for contact info). Thanks to ACCUTE and SDH for joint hosting.

[Instead of posting the complete call for papers here, I’m practicing not duplicating content.]

Teachers, it’s time to flex fair dealing.

Yesterday, a happy coincidence: first, a highschool friend, now an educator, asked me out-of-the-blue on Facebook (it’s the kind of thing I love about FB) a question about copyright infringement cases involving educators; second, I received CAUT‘s new Guidelines for the Use of Copyrighted Material, a must-read primer on fair dealing for educators. I’ve reproduced my friend’s question and my response, extending the latter with more about fair dealing and CAUT’s guide — because more educators need to know how liberally we can and should be exercising our robust fair dealing rights.

Q: I need an example of a Canadian Copyright Infringement Case related to academics or education and am having trouble finding anything interesting on the net…. I thought you may have a ready example given your recent involvement on the subject. Any thoughts or suggestions on where I can find what I’m looking for?

A: Probably the most important case for copyright and education in Canada was Law Society of Upper Canada v. CCH Canadian in 2004. Michael Geist outlines and links to it in a recent blog post about fair dealing.

Canada’s Heritage ministry has some analysis of it (but keep in mind that this is one of the ministries responsible for tabling Bill C-32). The ministry analysis considers the opportunities and implications of the CCH decision, one important result of which is simply its formal recognition in law that “fair dealing, as construed by the court, now allows for a more flexible framework.” And while the ministry’s analysis suggests problems raised by the decision, it doesn’t suggest they’d be solved by the “digital locks” provision that made C-32 so hotly contested. Citing scholars’ and students’ dissatisfaction with licensing, the analysis attributes some of this to a failure of CanCopy (now Access Copyright) to recompense authors: “CanCopy ‘had more than $18 million in undistributed royalties, and no apparently systematic way of determining to whom this money belongs’.”)

Howard Knopf (whose blog, like Geist’s, is also very good on copyright) also summarizes the importance of CCH v. LSUC in this recent post:

…the CCH decision in the Supreme Court of Canada made it very clear that:
• “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.” and.
• “ The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study. ‘Research’ must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”

There are also some relevant fair dealing cases and appeals underway right now:

Province of Alberta v. Access Copyright. Knopf is blogging about it, as in this post from early May; according to Knopf, the case “involves the very important issue of whether material prescribed by a teacher or provided in multiple copies can be fair dealing.”

This blog post by Knopf makes reference to the SOCAN v. Bell case, which investigated “whether providing previews consisting of excerpts of works is fair dealing for the purpose of research that does not infringe copyright.” In May 2010, the Federal Court of Appeals decided that that the free 30-second previews provided by music download vendors like iTunes are to be treated as fair dealing for consumer research purposes. Geist is reporting new appeals to and interventions in that decision.

Notably, of these cases, only Alberta v. Access Copyright directly involves educational institutions. But all three cases have significant bearing on the educational exercise of fair dealing. Enter the CAUT Guidelines, and the following. As stated in the message to which CAUT attached its Guidelines:

There has been a good deal of controversy and conflicting advice regarding when copyrighted material may be copied without permission or payment to the copyright owner. CAUT is concerned that both users and owners of copyrighted material are treated fairly. To that end, CAUT has prepared the attached document [which] explains the legal foundation of copying rights and provides direction on its lawful exercise.

The “controversy and conflict” to which CAUT alludes has resulted from debates about Bill C-32 and about ACTA and CETA, from Access Copyright’s “astroturfing” against fair dealing in C-32, and also maybe from increasing actions over mere linking. Now dead but expected back from the grave soon, Bill C-32 promised good, clear fair dealing provisions for educators, albeit provisions trumped by protections for “digital locks” like DRM. Often compared to the USA’s DMCA, Bill C-32’s fair dealing for educators actually fell short of the flexible and generous provisions given US educators. Check out this syllabus for Martha Woodmansee’s course on copyright — look at all the freely available course readings. (If that’s what US fair use now affords, then Canadian fair dealing should, too.)

Access Copyright (AC) lobbied hard against C-32’s educational fair dealing provisions, all the while while negotiating a massively inflated licensing tariff for educators. The royalty-collecting society’s campaign, in effect, pitted the creators of published works against the educators who use them, caused much confusion over the perceived pros and cons of new copyright legislation, and also provoked lots of institutions to decline to renew their licensing agreements with AC. AC is vigorously opposing the fair dealing provisions in any new Canadian copyright legislation — after all, revised and expanded fair dealing provisions could well put a collecting agency like AC out of business.

Meanwhile, the mere act of hyperlinking is increasingly subject to regulation. In Crookes v. Newton (2009), the BC Court of Appeal ruled that a website owner is not liable for linking to defamatory sites, that decision is now being appealed. In March of this year, the US Dept of Homeland Security arrested an Internet user for linking. And AC’s proposed new tariffs for PSE call for the documentation of and collection of fees for any and all Internet linking done by teachers (this proposal has not been approved and could be debates for months if not years).

Taken together, all these different developments, together with privately imposed teaching policies and publishing guidelines (e.g. a limit of 150 words on quoted excerpts in refereed articles, which I’ve heard of anecdotally but can’t find documented), are chilling the climate for fair dealing, and enclosing that much more of the already shrinking commons of public knowledge. Which is to say, they’re chilling the climate for teaching. As Michael Geist told delegates at last year’s ABC Copyright Conference, fair dealing is a “use it or lose it provision”: if Canadian educators don’t start exercising our fair dealing rights more extensively and aggressively, we stand to lose them altogether under the pressure of Big Media’s hugely influential lobbying efforts.

Fortunately, court decisions like LSUC v. CCH can and should embolden us to flex our fair dealing rights, rather than shrink from doing so under threat of litigation. The legal precedents currently support a “large and liberal” interpretation of fair dealing, and, as public educators, we have, I think, an ethical responsibility — not to mention a huge convenience — to act on that interpretation, towards principled and productive pedagogy. Against the creeping chill over academic freedom and effective teaching, give CAUT’s Guidelines a read — take ten minutes to learn the basics of educational fair dealing — and start staking your claim to a patch of the knowledge commons. A modest and reasonable patch, tended properly and shared appropriately, can yield large and liberal teaching outcomes.

Works Consulted

CAUT. Guidelines for the Use of Copyrighted Material. Ottawa: CAUT/ACPPU, May 2011 http://www.caut.ca/uploads/Copyright_guidelines.pdf

Edmonds, Kelly. “Off with their heads! Copyright infringement in the Canadian online higher educational environment.” Canadian Journal of Learning and Technology 32.2 (2006) http://www.cjlt.ca/index.php/cjlt/article/view/52/49

Dhawan, Sona. “Potential Liability for Hyperlinking: Crookes v. Newton.” The Court [blog] 31 Mar. 2010 http://www.thecourt.ca/2010/03/31/potential-liability-for-hyperlinking-crookes-v-newton/

Federal Court of Appeal. Decisions of the Federal Court of Appeal [database]. http://decisions.fca-caf.gc.ca/en/index.html

Geist, Michael. “The Canadian Copyfight Story: The Next Chapter.” ABC Copyright Conference. Athabasca U, 21 June 2010.

—. Michael Geist’s Blog. http://www.michaelgeist.ca/

Knopf, Howard. Excess Copyright [blog]. http://excesscopyright.blogspot.com/

McCutcheon, Mark A. Academicalism [blog]. https://academicalism.wordpress.com/

Ministry of Canadian Heritage. “Fair Dealing in Canada.” Ottawa: Government of Canada, 22 May 2009. http://www.canadianheritage.gc.ca/pc-ch/org/sectr/ac-ca/pda-cpb/publctn/cch-2007/102-eng.cfm

Supreme Court of Canada. Judgments of the Supreme Court of Canada [database]. Lexum/Supreme Court of Canada. http://scc.lexum.org/en/

Woodmansee, Martha. Intellectual property and the Construction of Authorship [course syllabus]. Case Western Reserve U, n.d. http://www.case.edu/affil/sce/authorship/syllabus.html

Before the Law: Histories of Copyright

You must imagine, at the eventual heart of things to come, linked or integrated systems or networks of computers capable of storing faithful simulacra of the entire treasure of the accumulated knowledge and artistic production of past ages…
–Benjamin Kaplan, 1967

Research for a talk I’ll be giving at #Congress11 includes reading some excellent studies of copyright in (or as) the history of literature. These studies share a couple of principles: they recognize the historical contingency of intellectual property law (it’s nothing natural), and they assert the fundamentally social character of all cultural production, in contrast to IP law’s attribution of it to individual “originality” (an attribution based on Romantic ideas of authorship). Mark Rose puts the matter succinctly in Authors and Owners: The Invention of Copyright:

The persistence of the discourse of original genius implicit in the notion of creativity […] obscures the fact that cultural production is always a matter of appropriation and transformation […] What finally underwrites the [modern copyright] system, then, is our conviction about ourselves as individuals. […] Copyright stands squarely on the boundary between private and public. (135, 139-40)

Paul Saint-Amour builds on Rose and other scholars in emerging cultural-economic fields — New Economic Criticism and Critical Cultural Legal Studies — to study copyright in Victorian and modern literature; however, his context is insistently that of the post-millennial copyfight, and he notes the contradictions of critiquing copyright on its own terms, through strategies of appropriation and infringement (like DJing, which I’ll be discussing elsewhere at Congress):

You can seldom criticize the law by breaking it and yet expect the law to forgive your infraction as criticism. Law is not an argument so much as an instrument of self-enforcement; thus, even breaking the law confirms the logic and categories of the law, which work to criminalize any transgressive act of dissent. In the case of property law, this circularity tightens further: criticizing standards of ownership can lapse into a near-absurdity when some of the most effective critical pathways — counterappropriation or parody, for example — are by definition already owned by someone else. (19-20)

(I was reminded of this comment when I found Martha Woodmansee’s syllabus for a course on “Intellectual Property and the Construction of Authorship,” with dozens of great readings made freely available for public download. If this is what fair use affords US educators, I’ll have what they’re having.)

The ability of the law to successfully prosecute infractions depends, in part, on how well the law makes itself seem natural, self-evident. Demystifying the self-evident naturalness of copyright law is a project of all these books, most ambitiously essayed in William St Clair’s The Reading Nation in the Romantic Period, a sweeping cultural-economic history that puts intellectual property law front and centre as a regulator of not just the publishing business, but also literary production and, most importantly, public access to reading.

Intellectual property has existed for so long that it is difficult to imagine a world without it, but it is not intrinsic to authorship, books, or reading as such, but it too came into existence in response to a conjuncture of economic circumstances which came together in the late fifteenth century. […] The intellectual property regime has changed frequently and drastically over the centuries. […] During the intervals when the normal intellectual property structures temporarily broke down, we can see that the whole economy of writing and reading immediately changed. (41)

So are we taking part, now, in a breakdown of IP structures, or in their further entrenchment? It can be bewildering and discouraging that the answers vary so wildly. Last week, copyright lawyer Howard Knopf blogged about Margaret Atwood’s comments on Bill C-32, which heighten “creator-vs.-educator” hostilities, and suggest misconceptions about IP law basics like fair dealing (which are especially troubling to see being expressed by such a major author). Histories of copyright bring some much-needed perspective to present debates so pressured by private-interest spin, by reminding us that copyright was invented to advance the public interest, and by suggesting ways to re-assert the priority of that interest and reclaim the cultural common wealth.

Works Cited
Kaplan, Benjamin. An Unhurried View of Copyright. New York: Columbia UP, 1967.
Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge: Harvard UP, 1993.
Saint-Amour, Paul K. The Copywrights: Intellectual Property and the Literary Imagination. Ithaca: Cornell UP, 2003.
St Clair, William. The Reading Nation in the Romantic Period. Cambridge: Cambridge UP, 2004.

On criminalizing & commodifying third-party site linking

So how long before doing this becomes “illegal copyright infringement”? A colleague who’s closely watching stateside goings-on alerted me to news that the US Department of Home1and Secur!ty has arrested an Internet user for linking to third-party websites.

So the DH S has arrested the user for running a website whose express purpose seems to be redirecting traffic to streaming TV. But the charge of copyright infringement alleges no copying. The potential implications are positively monstrous for the very character of the Internet.

Stiffer regulations of such fundamental Internet activity are closer than you might think in Canada, where Access Copyright that has already started down this treacherous road. Its proposed education-sector tariffs would controversially impose fees and penalties on third-party linking, which means that educators would be required not only to document any and all third-party links, but also to pay a fee for doing so.

“What this has to do with “Home1and Security” I have no idea,” writes said colleague who alerted me to this news, “but the DH S seems to be merely revealing its true character as a disciplinary machine whose real purpose is the surveillance and control of citizens for the sake of commercial interests. Although this is in the US, I have little doubt that Harper is watching and may try to follow suit (e.g. with CS1S).”

And here I thought a proposal to charge fees for third-party linking was about as insane as digital IP policy could get.

QuestionCopyright.org on this year’s “most ironic Oscar winner”

This is worth wider notice: a Question Copyright post that points out the irony in Trent Reznor’s win of the Oscar award on Sunday for “best original score,” since the score in question, for The Social Network, openly borrows Edvard Grieg’s “Mountain King” masterpiece — and since Reznor himself is, as the article details, “a musician who has capitalized on remix culture”:

[Reznor’s] an Oscar winner […] thanks to the same interest group responsible for the remarkably effective industry capture of national and international lawmakers with respect to copyright issues. […] With its sinister melody and increasingly frenetic pace, “In the Hall of the Mountain King” would make the perfect theme song for Hollywood’s escalating efforts to impose its supramaximalist view of copyright on the entire globe. Yet on Sunday, Hollywood gave its highest award to the poster child for remix culture.

And here I thought I’d never find anything at all of any interest whatsoever in the Oscars, that annual, over-exposed orgy of interminable self-congratulation, where the super-elite bow down before the one they serve to get what they “deserve.”

Who’s “speaking out” on copyright? “Canadian writers” — or Access Copyright?

I just got an e-mail forwarded from the Writers’ Union of Canada (TWUC), which promotes a Youtube video about the new copyright Bill C-32, and includes a “petition”-style message for sending to MPs: a message that, like the video, speaks out against Bill C-32’s new fair dealing provisions for educators.

So as a Canadian educator, I am supposed to write to my MP and the government against C-32’s new fair-dealing exemption? See the vid for yourself. And, oh, by the way, watch for the positive mention of Access Copyright, about a minute and a half in:

Having watched the video, I am emphatically more inclined to agree with the shrewd critical comments posted to Youtube about it. And with the more extensive analysis given the video by one commentator, a Canadian novelist who is less than thrilled to have Access Copyright and TWUC “representing” him in this misleading way — Cory Doctorow makes the important but disturbing point that a message like this “uses lies to pit creators against schools.” For more skeptical critical analysis, Canadian copyright lawyer Howard Knopf has weighed in on this too, calling the video a piece of “orchestrated and inaccurate hysteria.”

The problem with C-32 is its protection of digital locks, not its new fair-dealing provisions: these actually represent a big gain for Canadian educational institutions (though still not on the order of what US educators can do under their fair-use laws). However, clearer and more flexible fair-dealing provisions for educators could well spell trouble for Access Copyright, which is, nevertheless, still doing its utmost to alienate Canadian PSE anyway.

Cross-posted from my AU Landing blog

Lady Gaga, copyfighter?

Google search results for “Lady Gaga infringement”: 630,000
For “Lady Gaga copyright”: 270,000,000

That’s a lot of Intertubes about Lady Gaga and copyright. Sifting the results, though, turns up little by way of actual actions. She threatened to sue the maker of a “Lady Gag Gag” sex doll, for instance; and action against her has been threatened by an alleged co-writer.

(If anyone knows of other actions, please comment — I just haven’t time to sift all two hundred and seventy million results!)

Rather more of the results have to do instead with Gaga’s perceived lack of originality, pointing out rather obvious similarities between her image and music and those of Madonna, or, say, between her meat dress and Canadian sculptor Jana Sterbak’s 1987 meat dress.

I had bristled at first that Lady Gaga so nakedly plagiarized the meat dress. But it now occurs to me that what she’s doing in music and fashion combined is oddly representative of today’s remix culture, in a political climate of ever more restrictive IP regulation. Lady Gaga, a major presence in both fashion and music now, is, in a way, bringing something of the copyright-indifferent business practices of the former — in which “there’s very little intellectual property protection” — to bear on the copyright-mad business practices of the latter.

Maybe not intentionally, maybe just inadvertently.

In any case, the various productions and performances of Lady Gaga stand open to some very suggestive interpretation, as critical statements on the present state of tensions and negotiations between the corporate-backed hegemony of “originality” and the creativity of open appropriation.

Update: I’ll take this story about Lady GaGa’s endorsement of a little Canadian girl who covered “Born this way” on Youtube as some solid evidence supporting my hunch here.
The Youtube vid in question is pretty excellent.

UPDATE 2.0! TorrentFreak confirms that “Lady Gaga Is a BitTorrent Loving Pirate.”
Apparently “she asked her fans to send a torrent (or YouTube) link of the Top Chef Just Desserts finale.”
Now, about that thing with the photographers

Canadians have until Jan. 31 to comment on copyright bill

As Michael Geist says in his blog post today, we Canadians have until the end of this month to send comments on the new copyright bill, Bill C32, to the legislative committee now responsible for it. I’m not sure it’s exactly the “Canadian DMCA” that Cory Doctorow describes it as (especially since the DMCA itself is now more flexible on fair use and digital locks than our expected bill), but a copyright bill has no business protecting digital locks. IMHO.
For the record, here’s the letter I’ve just sent. (To send your own, consider these sources and strategies.)

Dear Bill C32 legislative committee,

There are solid gains for fair dealing in Bill C-32, but the bill protects digital locks more strictly than current US copyright law or even ACTA, now — and this protection trumps the bill’s otherwise substantial gains in fair dealing for Canadian consumers, educators, and businesses. Furthermore, digital locks — TPMs, DRM, etc. — are not intellectual property and should not be covered by IP legislation.

Bill C32 should provide protection for circumventing digital locks when undertaken for lawful purposes. As has been widely noted, this provision would still let Canada meet its obligations to international copyright agreements like WIPO and ACTA.

Thank you for fielding my comments on Bill C32.

Canada’s digital doppelgängers: a footnote

As I argue in a 2009 SFFTV article, it’s symptomatic of US-Canadian border tensions over copyright (as Wikileaked cables confirm) that the US-produced Battlestar Galactica TV series (2004-09) was shot in B.C., and that its leading Cylon villains are played by Canadian actors (Tricia Helfer, Grace Park, Callum Keith Rennie…I almost expected Bob and Doug MacKenzie to rise from one of those tubs of replicant goo). The Cylons are evil robots, indistinguishable from humans except for their copying practices: they “upload” their personalities to databases when they die, and “download” them into new bodies. Embodied by Canadian actors not necessarily recognized as such, the Cylons thus act out some of the cross-border differences in copyright law that keep Canada on the USTD’s blacklist of “pirate haven” nations.

In researching a forthcoming essay on new media and identity, I realized that Battlestar — as a Hollywood science fiction TV series casting Canadian actors in digital doppelganger roles — echoes an earlier show, Max Headroom (1987-88).

In that short-lived but fascinating experiment in “cyberpunk” TV, the main character, Edison Carter, was played by Canadian actor Matt Frewer. Carter is a videocam-wielding reporter for Network 23, in a near-future world styled after the McLuhanesque cyberpunk of William Gibson’s Neuromancer and Cronenberg’s Videodrome: in the show’s “20-minutes-into-the-future” world, it’s illegal to turn off a TV, the state distributes sets to the poor, and a genre of hyper-condensed commercials, the “blipvert,” is killing viewers. “Max Headroom” is the name assumed by Carter’s electronic double, a strictly screen-embodied personality (like Videodrome‘s Brian O’Blivion). Presumed dead after a traffic accident, Carter unwittingly donates his body to an experiment to produce a virtual television personality, a kind of artificial intelligence “dubbed” from Carter’s own mind, an AI calling itself “Max Headroom” (one of the earliest deployments of CGI on prime time television, rendered by Commodore Amiga computers). Carter lives (of course), and Headroom, flitting from screen to screen, tags along to help him on adventures through the corporate-dominated, polluted, hyper-mediated world of the series: a talking-head ghost running amok in a toxic media ecology that, from the vantage point of 2010, looks sometimes uncannily familiar, other times a quaint paleofuture. Headroom’s signature stutter and replay turn his lines into a kind of spoken-word dub, which also doubles, in the script, the mise en scene’s mediatized doubling of a corporeal, corporate reporter and his pixelated doppelgänger, the signal-jamming saboteur.

Headroom isn’t the villainous machine that the Cylons are; he’s more of a high-tech jester and trickster. But then again, the decade in which Battlestar got re-made wasn’t the same decade that gave us Headroom. We were more worried about the Cold War than global warming; “free trade” with the USA had yet to prove itself as a vehicle for neo-colonial annexation (which the current government now wants to extend to Europe?); and the Internet was still just a military-academic experiment, not the front in a total war on copying, of all things.

Like Lou Reed sings, you know, those were different times. (How much do I owe his label, now, for quoting him?)