MCM emailed me about this great experiment upon which he’s embarking: Calm Copyright Canada. Although that sounds to be a bit of an oxymoron in the recent copyright climate, it’s something we dearly need right now. The goal to deconstruct and reconstruct was, of course, an instant hook for me. The how-to/rules posted on the site show great insight into some of the barriers in discussions on copyright, and the questions are a good starting point for discussion.

Once things quiet down for me a bit (although, at this rate, I doubt that will happen until retirement, which is at least 40 years away), I’ll participate and try to expand the deconstruction and reconstruction to copyright in general. For now, I think it’s useful for us to stick to one topic so that the experiment can begin with more focus.

So, rather than another literal post, I decided to reorganize my thoughts in a mind map. This is something I have been intending to do, but wanted to wait until I had completed some preliminary thoughts on the structure of copyright.

This is my mapping of the Canadian Copyright Act.

And this is my mapping of how I’m starting to see the picture.

As a warning, the mind map of the Canadian Copyright Act is as messy as the Act itself. If you haven’t read the Act (or even if you have), you may benefit from the more compact, prosaic version.

In most public discussions of professional use of creators’ works, the focus has almost entirely been on the creator-creator relationship, not the creator-corporation relationship. This becomes extremely problematic because, obviously, the discussion becomes focused on only one side of the issue.

It may be useful to think of professional use of works in the following contexts:

1. Incorporation of work into similar creative works. This differentiates between uses such as a work of visual art being used in another work of visual art and a work of visual art used to supplement a musical work (or even a computer program).
   Interdisciplinary works become problematic in this context, particularly for media such as film. At that level, we would need to delve into the analysis of how much of the original work is used in the new work, and how much of the new work is composed of the original work.
2. Incorporation of work into dissimilar creative works. This is where something like the inclusion of a song in a video game should not be considered fair use. The line between similar and dissimilar creative works may be a fine one which gets us into trouble later on. We’ll see how well this holds up to scrutiny when I explore this in more detail later.
3. Use of creative works for non-creative ends. Again, this may allow for many grey areas, but I’m thinking mainly of circumstances where creative works are used in businesses, such as art, music and software in offices.
4. Use of creative works for the promotion of that work. More grey areas, but mostly the distinction that would allow a gallery to use images of a work to sell it.

What makes me uncomfortable with the categories I’ve listed above is they leave much room for abuse. I suspect I’ll need to revisit these concepts later, and that I’m not looking at it the right way.

• creative reuse – challenges concepts of creativity, authorship, moral rights, copyrights
• parody – challenges concepts of authorship and moral rights
• private, personal copying – challenges concepts of copyright and business models
• right to resell – I would actually like to explore this later in contrast to the concept of first sale rights and the implications of these concepts when works are available in digital formats

I debated myself on whether “making available” should be part of the list of user rights. Personally, I see that as something which should be licensed/contracted by a creator and not legislated…but I am also trying to deal with these concepts outside of legislation as much as possible so that I can deal with the issues rather than the politics. After some initial thought, I decided that I would like to start by putting the concept of “making available” as a creator’s right and later explore the overall option of creators offering different rights to users. We’ll see how well that works when I delve into that level of this exercise.

And what about consumer rights, like those surrounding the issues surrounding vendor choice, etc, impacted by the whole mess of TPM/DRM? For now, I am going to leave that as a floater issue which has been manifested by the concepts of copyright and how it is being administered, and not one of copyright itself. I am, however, interested in exploring issues of accessibility of works (pre- and post-digital-world) in relation to user rights.

I’m not able to think of anything else to add to the list of user rights (in terms of copyright) at this point, and am feeling that I’ve allowed my thinking to be restricted by what’s currently in the Copyright Act. If anyone can think of other user rights on the copyright front, please let me know.

Within all of those versions, the protection of user rights is close to zero.¹

And it wasn’t until personal recording technology in the form of things like audio cassettes, video cassettes, Betamax/VCRs, CD-Rs, mp3 and all sorts of other modern acronyms that users started to build a gradual concern for copyright.

So where does that leave us now?

With two basic types of users whose concerns need to be addressed by copyright legislation:

• professional users (i.e. creators)
• end-users (i.e. consumers)

Although many of their activities overlap, the primary difference boils down to our good friend Money.

The problem then becomes a horrible blurring of the line between what rights should be granted & protected and when & how those rights should be enforced. For us to move beyond the shouting matches and competitions of wit and rhetoric, I believe we need to start with looking at the two separately before bringing them together.

In Part 9: looking at the conceptual aspects of user rights.

As it stands, copyright administration intends to protect the right to copy and, peculiarly, other creators’ rights such as moral rights. Law suits where copyright is improperly being used to protect moral rights (whether a petty claim or not) often cause people to cry “foul!”. IMO, this is a result of different creators’ rights being lumped under copyright, rather than working alongside it.

Conceptually, the administration of copyright would only address the right to copy. This administration would naturally have to work very closely with the administration of other creators’ rights, such as moral rights, and other sources of income for creators, such as payment for exhibitions, lectures, performances, etc.

From what I’ve seen, the administration of copyright involves many parts for which there is increasing disagreement on how things should work:

1. Business models – how the distribution (authorized & unauthorized) of copies is part of the marketing strategy and income base.
2. Administrative bodies – how different bodies, such as copyright collectives and producers, operate; issues with these are primarily a combination of communicative and financial accessibility.
3. Creator participation – groups such as the CMCC are indicative of the fact that creators are increasingly disagreeing with how their copyright is being administered by administrative bodies (in the case of the members of the CMCC, the administrative bodies are their record labels).
4. User participation – end-users and professional creators are now, more than ever, having more technical access to works and desire to creatively reuse primary works; however, they are often at odds with the preceding items for various reasons (to be discussed in more detail later).

Are there other major aspects of the administration of copyright which I missed? Remember that at this point I’m just sorting and defining, and the in-depth discussion will come later.

Ah, money.

I think I’m ready to think about how money plays into the copyright game.

After mulling over the issue, it became clear that the financial stability of creators and other members of the creative community (educators, disseminators, producers, historians, and a whole host of others I simply don’t have space to list) is a topic unto itself. Much of the recent discussion around copyright, TPMs/DRMs, file sharing (authorized and unauthorized) and other relationships between technology and the production and dissemination of art look at financial remuneration as a part of copyright rather than the whole of copyright. I would like to propose instead that we look at copyright as a part of the financial remuneration of creators. This, of course, will mean that things like moral rights, which are currently legislated as a subsection of the Copyright Act, may not belong there. I will later look at how these different creators’ rights fit together, and whether they should remain in the hierarchy presented by the current Copyright Act.

So I guess that brings us to copyright law. I’m not even sure if I’m ready to break down this part of the copyright picture, but here goes…

Copyright law is a set of legislated rights extended to creators and producers/disseminators.

Some challenges we’re facing with the Copyright Act:

• the Copyright Act is convoluted
• we’re loosing sight of who and what the Act is supposed to be protecting and supporting
• due to changes/advancements in technology and how people create and interact with creative works, the stakeholders in copyright are shifting (users, for example, have a larger interest and are impacted more by copyright now than ever before)
• copyright reform has been long overdue and the stakeholders keep pushing harder for their changes with every passing day, for fear of being overlooked
• what’s in the Act itself is being challenged conceptually due to changing views on the relationship between copyright, creation and the flow of money

Overall, I would say at this point that the challenges we’re seeing with the Copyright Act are symptoms of a larger problem with copyright and other creators’ rights…and not the problem itself. Changing the Act at this point will likely cause more problems than its worth, because the real problems are not being addressed.

So what are the real problems? I’m hoping to clear the fog around that through this exercise.

• exhibition rights
• performance rights
• moral rights
• performers’ rights (currently carved out as its own section in the Copyright Act)

It’s been a while since I’ve read the Copyright Act, and it’s thick. Have I missed any creators’ rights aside from copyright?