Tag Archives: DE Bill

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.

A scholarly take on the copyfight & pop culture

Academicalism has a new section for CC-licensed research, and the first working paper I’ve posted there is one I’ll present later this month, for the Socialist Studies conference taking place as part of Congress (Canada’s annual Humanities and Social Sciences bashment):

“The copyfight, science fiction, and social media”

Cory Doctorow, one of the authors discussed in the paper, has kindly made time to read it and post a positive response his blog, for which I’m very thankful.

Between this endorsement from one of today’s biggest “copyleft” advocates, and the Socialist Studies connection, I may think twice about crossing the US border anytime soon.

What’s at stake in Canadian copyright “reform”?

Since I’ve started tweeting (ranting?) about Canada’s copyfight, some of my Facebook correspondence has become consciousness-raising about it. Two friends, Sandra Johnson and Adrian Bashford, have graciously agreed to go on the record and let me post our talks about the issue, hoping to help clarify it for others.

Talk with Sandra Johnson, 9 May 2010
Talk with Adrian Bashford, 5 May 2010

Sandra Johnson, 9 May 2010

Johnson: … it’s also the first time in days I understood all the words in your status.

Me: … I’ll explain. DMCA = Digital Millennium Copyright Act, US law for a few years now. The UK just got something similar, the Digital Economy Bill. And Canada’s government now seems poised to push a similar bill on us.
Promoted and passed under the guise of protecting entertainment companies from “piracy,” these are bundles of laws that represent huge infringements on our privacy and freedoms. Not content with suing customers, the entertainment lobbies are pushing hard for these laws and broader international agreements.
Author Cory Doctorow’s column in the Guardian sums up the problem these laws pose as “dictatorial hell”.
So we can’t let this type of shit pass in Canada. A year of “public consultation” gave the government an overwhelming public No to laws like these. Which they look ready to ignore.

Johnson: Meep! Glad I read that. You’ve opened my eyes, Mark, yet again. I’ll read all you post on the topic from now on. That being said, where exactly does Canada sit right now, and what is being done to stop the goosestep toward it?

Me: I follow Ottawa law prof Michael Geist’s blog about this stuff. He’s on top of it up to the minute, and his website has primers on what’s happening with this law — and with ACTA (the global agreement being sorted out secretly by participating states, including Canada).
My last two blog posts summarize the issues, include a few links — including the CCER’s online form letter you can use to paper a few MPS’ offices pretty quickly.
You can also join the Facebook group “Fair Copyright for Canada.”
With the national bill coming and ACTA, the Canadian government looks more than willing to give Canadians’ digital rights over to multinational entertainment companies. Want a sense of the kind of people our governments are locking down the Net to appease? The kind who say “child porn is great.”
As for what’s being done to stop it, Geist’s advising lots and lots of short, snail-mail letters to as many MPs as you feel like badgering. Again, my last blog posts have tips for dispatching some.
Sorry, that’s a bit longish a reply for FB.

Johnson: That’s great, Mark, and by keeping in a public post, others can jump in as well. I’ll be checking out all the sites, and chatting up a few MPs.

Me: Let me just add that maybe the best one-stop primer on the issues we now face in this bill is the NFB documentary RiP: A Remix Manifesto — which you can freely watch online at the link.
Thanks for making time to talk about this. I know you hadn’t banked on the distraction.

Johnson: It’s actually a topic that flitted across my brain a few times when I’d read your status. … Now that I have grasped the concept, I’ll start paying attention. My friends will get tired of hearing me spout off about it, I’m sure.

Adrian Bashford, 5 May 2010

Bashford: …What kinds of problems will this law lead to? I personally believe in paying for content, but the devil is usually in the details of these things.

Me: I’m not at all against paying for content. I’m against paying exorbitant damages for downloaded content. See the NFB film RiP: A Remix Manifesto for some shocking cases of RIAA lawsuits…but you’ll know about some of these already.
The whole film can be watched online.
and it summarizes many of the main problems with DMCA and DE Bill type laws.
I’m against a law that obliges ISPs to snitch on customers for P2P activity. … See more
A law that makes it illegal for me to download a crappy digital version of an LP I bought on vinyl and already paid royalties for.
A law that greatly restricts Canada’s current generous fair-dealing provisions for personal, review, and research uses of IP.
A law that protects not just intellectual property but digital locks — regulating not just how you buy what you buy, but then how you have to use it. Digital locks have nothing to do with IP but they’ll be protected under proposed legislation.
A law that criminalizes copying. And consumption.
I could go on…watch RiP, check out Ottawa law prof Michael Geist’s blog, read some of the work in this area by Lawrence Lessig (Free Culture) and James Boyle (http://www.thepublicdomain.org/download/).
I’d be curious to hear what you think of their takes on all this.

Bashford: Thanks for the quick summary, I will do some digging as suggested!

Tweet-size letters against Canada’s DMCA, ACTA

If clarity, concision, and long-hand are integral to writing effective letters to politicians, here are two Twitter-sized communiqués (yep, 140 characters each), that you can copy out and snail-mail to speak out against a Canadian DMCA-type copyright bill, and/or ACTA. They’re convenient, replicating them can help send a strong, unequivocal message, and they’ll even fit on a postcard. (Remember, no stamp needed to mail them to MPs c/o House of Commons, Ottawa, ON, K1A 0A6.)

I oppose any IP bill that includes strong digital lock provisions, excludes flexible fair dealing protections, & ignores public consultation

I oppose Canada’s secretive and undemocratic participation in the Anti-Counterfeiting Trade Agreement (ACTA), and I also oppose ACTA itself.

Sure, you can tweet them too. But you can’t tweet them directly to the ministers responsible for the expected copyright bill, Hon. James Moore (Minister of Canadian Heritage and Official Languages) and Hon. Tony Clement (Minister of Industry) … tellingly, they neither follow anyone nor have any followers. Okay, they may follow and have followers, but looking for them during the “Twitter follow bug” made for a convenient reminder that their IP “reforms” don’t follow public opinion.

Canada’s DMCA puts us all on the front line

The Canadian Coalition for Electronic Rights now offers an automated online letter app that will send a lot of paper to Ottawa on your behalf to protest the Harper regime’s expected copyright bill. You can follow the CCER on Twitter too. Hell, you can follow the Hon. James Moore, Minister of Canadian Heritage and the chief pusher of this police-state bill. Or check out Canada’s torrent search engine, Isohunt, for what I was about to call front-line updates from this copyfight, but the fact is — as the USA’s DMCA and the UK’s new DE Bill show — we are all on the front line, here. Cory Doctorow describes the “road to dictatorial hell” paved by the DE Bill, as

a law that establishes an unprecedented realm of web censorship in Britain, a law that provides for the disconnection of entire families from the net on the say-so of an entertainment giant, a law that shuts down free Wi-Fi hotspots and makes it harder than ever to conduct your normal business on the grounds that you might be damaging theirs.

Stoking the tree-eating fires of a letter-writing campaign has got me interested in the tactics and efficacy of writing to politicians. See the comments tacked onto my last post–to sum them up: keep it short, write it by hand, and CC as many MPs as you like, but especially your own riding’s. And be specific. So while we get told to STFU and wait to see how heavy a club our own DMCA will swing, one question I have, in the interests of effective political letter-writing, is this: what is the number of the bill being proposed? If it’s only five weeks until we get digitally locked out of our freedoms and our privacy unfairly dealt with, it can’t be too early to ask.