TV, eh? podcast episode 20: When the Levy Breaks

Episode 20: Listen or download hereor subscribe via iTunes or with any other program via the TV, Eh? feed

DMCoc10Writers Guild of Canada council member Denis McGrath (aka Mr. Dead Things on Sticks) joins us for a discussion on copyright and why Bill C-32 fails. Anthony Marco agrees to the failure but not to the WGC solutions, while Diane Wild eats popcorn from the sidelines.

At about the 44 minute mark, Anthony and Diane turn to other subjects like: copyright. But also: Diane’s heroic attempts to catch up on TV, the perils of hype, and the CBC winter schedule.

Your hosts


9 thoughts on “TV, eh? podcast episode 20: When the Levy Breaks”

  1. It would have been interesting to be on that podcast with you. I would have added a third entirely different position. And the conversation would have gone on even longer :-)

    It was interesting to hear Denis lump together the Public Lending Right (PLR), Access Copyright levies for photocopying in schools, and the Canadian Private Copying regime together as one thing. These are entirely separate regimes.

    The PLR exists outside of copyright entirely. There is no copyright regulated activity involved in loaning books in libraries, and this is a government program that is paid for out of general revenue. While the revenues are paid to authors of books, it has about as much to do with copyright and a publicly funded bridge building project does.

    What Access Copyright does for photocopying is a traditional licensing system through a collective society that did not involve any changes to legislation. The relevant creators became members of associations who joined Access Copyright, and their works became part of AC’s repertoire. This is a voluntary system for everyone involved, and is very much like eMusic (IE: a one-stop-shopping store for a type of creative work). Access Copyright also offered an insurance for educational institutions where if they licensed a work that was not in their repertoire that Access Copyright rather than the institution would be liable for any infringement, but that again was outside of copyright law.

    The only change to copyright was the Private Copying Regime (sections 80 through 88 of the Canadian Copyright Act). I consider the regime a failure given so few understand how it works, and have proposed a clarified PLR-like government program to replace this regime. I find it amusing that he found a proposal for a PLR-like system to be “offensive”, after holding it up as a great system to deal with libraries.

    These differences matter, and are in fact what nearly all the disagreements are about. I find it interesting that they were lumped together as it suggests that Denis isn’t aware of why there is so much controversy, and then called the participation by people like myself to be “offensive”.

    The main difference between a levy system like CPCC and a grant system like PLR is that the PLR is far more accountable and transparent. In fact, a special tariff could be applied to communications devices and media that is earmarked, like the Local Program Improvement Fund works for cable (and similar funds exist in other areas). It isn’t about less money to creators, but more money given PLR can be targeted to creators rather than the copyright-holding intermediaries who would be the recipients of a levy system. Unlike with television writers, composers of music retain their own copyright which is how the CPCC has enabled any money to go to composers at all.

    The discussion of residuals is an interesting one, but also something outside of Copyright. It is a contract negotiation between different parties. We need better regulation here to protect creators, but in that case we are talking about contract, labour, fair trade and competition law — all places where excessive growth in copyright law has been a problem as this growth has lead to consolidation and less bargaining power for actual creators. C-32’s digital locks are only going to make that bargaining imbalance far worse, and will be adding even more powerful technology companies into the mix.

    So, why do these bills give “big companies” (labels, studios, distributors and other intermediaries) what they want, and screw over creators? Because the creator groups (Groups like the so-called Creators Copyright Coalition, which includes the Writers Guild of Canada, are seen to be offering the same message as these intermediaries. They use the same “theft is theft” rhetoric, claim Canadian law is massively out of date or week (both incorrect), and then leave the intermediaries to fill in the blank with the implementation details. And what happens? Those implementation details favour the interests of the intermediaries over creators every time.

    And when fellow creators like myself try to offer help (for instance, on TPMs), I get treated as if I were the “pirate”. The way Denis decided to attack when my name was mentioned, and his thoughts about Geist is indicative of the problem. I think he greatly misinterprets what Geist has had to say given he is a big supporter of creators getting paid for their valuable contributions to society. How can things improve when natural allies are vilified?

    I don’t believe levies (compulsory licenses) are as bad as Anthony is suggesting. There is a big difference between the compulsory license that makes radio work (section 19 of the Canadian act) and the private copying regime. They should not be lumped together, and Anthony’s distrust of the private copying system (levy on blank CDs) shouldn’t be applied to other levy system.

    I’m not going to ask Diane’s age, but if she was 12 before 1997 then what she was doing with mixed tapes was illegal in Canada.

    Oh, and by the way Canadian Copyright law doesn’t talk about Betamax :-) There was a US court case in 1994 involving Sony Betamax that clarified that their robust Fair Use regime covered time shifting, but that doesn’t apply to Canada’s far stronger Copyright law. Those fair uses which are legal without compensation are illegal in Canada, and are a big part of what Denis seemed to be suggesting should be compensated in Canada.

    Off to watch the 2’nd last episode of Caprica (largely out of Vancouver). Plan to buy the DVD later, and then circumvent the DRM and infringe copyright (current and C-32) to make it useable on the devices I own.

    (Yes, I was listening at “this point”)

  2. Russell, your response here is exactly why discussions over copyright are so difficult – because sooner or later they became mired in arcana. I was invited onto the podcast to represent my views as a working artist, to explain why most of the artist groups think this bill gives us short shrift. In such, as a communicator, it’s my responsibility to try and keep things as simple and relatable as possible. Your response drills down into arcana that likely would have made poor Diane’s head explode – and she’s one of the smartest people I’ve ever met, and no slouch in arguing those pesky ‘fact’ things when she needs to be.

    You damn me for my conflations but make quite a few yourself, including the fact that the lending regimes you speak of are an expression of previous iterations of the act — they are, in fact, the act in action, not clauses within it. When they were conceived they were no less controversial or slam-dunk as any proposed new uses or payments.

    You also seem to have a lot of vitriol against the CCC. Did you not get invited to a pub night or something?

    Anyway, I tried my best not to descend into wonkery and once again thank Diane and Anthony for the gracious opportunity.

  3. What “act” are you referencing? Are you suggesting that you recall a time when lending of books by a library was a copyright regulated act in Canada, and that the Canadian Copyright Act changed in ways that lead to the Public Lending Right?

    The PLR Commission publishes the history:
    Their FAQ makes clear that this falls outside of the Copyright Act:

    The critical problem with Copyright conversations, including this one, is that some people believe that since they have a hammer, that everything must be a nail. Copyright is one tool in the toolbox to ensure that creators get compensated for their valuable contributions. Sometimes it is the right tool, but often it is not. Using the wrong tool only causes creators to be compensated less or be restricted from creating and getting their creations to audiences at all.

    You want to get paid, and I want you to get paid (and I want to be put in as many scenarios as possible when I’m given an opportunity to pay the creators whose works I enjoy). All the disagreements between different creators are in the details, so it is not possible to simply shove those details under the rug and suggest they don’t matter.

    The problem many creators have with CCC comes down to this: I also want to create and get paid for my creativity, yet CCC has been and remains unconcerned about (often hostile towards) the interests of anyone who is a creator of different type of creativity or wishes to harness alternative business models to get paid. I’m not the only Canadian creator who regularly gets attacked, and I’ve heard far worse things said about successful Canadian authors like Cory Doctorow by CCC representatives. They use the title of “Creators Copyright Coalition”, and yet most of the people I interact with that are fellow creators have disagreements with the policies they promote.

  4. If you read my FAQ it includes a specific proposal on the monetisation of music that is in support of levies.

    What it also clarifies is that what is good for music, movies and television would be extremely bad if extended to all other forms of creativity. Like any other exception to copyright, compulsory licenses must have the 3-step test applied to them.

    We shouldn’t “unreasonably prejudice the legitimate interests of the rights holder”. How copyright regulates one type of creativity is different than how it regulates other forms of creativity. Sorry, but these details matter.

    Having compulsory licensing applied to software would be no different for the growing independent software sector than commercial piracy. Third parties would be making money off of our creativity. Our ability to make a living at our craft, which specifically relies on the enforceability of the contracts that differentiate our businesses from our competitors (to clarify, BSA members), would disappear.

    It would be nice if writers supported independent/freelance software authors, except my experience has been that many are uninterested in protecting our interests as much as we are willing to still protect yours.

    Sorry, but it is not the “Geistdroids” who control the discussion no matter how much you want to vilify our allies. While you may not have noticed, Michael Geist is also a supporter of appropriately applied levies, just like myself, Doctorow, Angus and many others.

    It is the major labels, studios, and proprietary software companies who control the discussion. It is these intermediaris that can be pickpocketing you and me at the same time, all the while distracting politicians by claiming they just want copyright holders to get paid.

  5. “Sorry but these details matter” should be the title of your hip-hop autobiography. In my (admittedly) limited experience with the software industry most of the jobs seem to be “work for hire”. So the analog to screenwriters — who in Canada do retain copyright on their works, is imperfect at best. Again, the subject is very broad, and the general cant of your objections seems to be that I don’t have perfect uptake with your particular, specific slice. I freely admit this. But you clearly don’t get the point of view that I’m trying to represent here, either.

    Geist — who has the bulliest of bully pulpits on this issue with his academic tenure, blog, and regular column, admitted to me awhile ago that he hadn’t considered the artist in the equation enough. He’s attempted to since remedy this through a few columns and alternate solutions that aren’t really workable from the WGC’s point of view. We’ve said as much to him, and I’ve said that to him privately. I understand his objections to levies, and agree that they’re imperfect solutions. I just don’t think they’re as imperfect as doing nothing — which will be the current state of C32 — or his proposals, which are half baked at best and politically just as poisonous as levies at worst.

    If anything, Russell, the WGC has worked assiduously to try and carve out a position on this issue and on this bill that bends over backwards to try and accomodate new uses for users and the common good, while still offering a way forward for content creators. As much as you seem to want to cast the argument in terms you’re familiar with, and paint the guild’s position with some sort of intolerant brush, you’ve had three kicks at the can here. Details matter? Yes they surely do. But the big picture matters, too. Like most things in democratic governance, the secret “sweet spot” is where workable majority rights are codified while trying not trample the rights of the minority. In the big picture, this bill fails just about every test a consumer or artist could put to it. It is bad law. And while you hector about the details, that’s the message that I will continue to promote with full throated vigor…to your obvious chagrin.

    Nice chatting with you.

  6. Anyone who attempts to argue a position in a discussion of copyright but labels other participants’ positions “arcana” rather disqualifies himself from serious consideration. Copyright is all about details; copyright is “arcana.”

    I’m also not entirely clear why a U.S. resident was asked to comment on Canadian legislation, apart from the fact the hostess of the podcast already had him on her Rolodex, as it were.

  7. Joe, as mentioned in the podcast, Denis is on the Writers Guild of Canada council. When I asked the WGC Director of Communications for a spokesperson he arranged the interview with Denis. As it were.

  8. Denis,

    Nice chatting with you. Hope we have a chance to do it in person some time: you know where I live :-)

    When it comes to writing I have had great conversations with members and representative of PWAC and TWUC, but not yet face-to-face with WGC members/representatives.

    This is not for lack of trying on my part. At the two CopyCamp’s hosted in Toronto I tried to meet with as many creator group members as possible. The few WGC members I was aware of seemed to keep more to the “conference” theme and less of the “camp” themed sessions, and thus I was unable to engage them in conversation. The same with my being invited to CRA meetings (AGM and a special board meeting where I was a guest).

    Geist now speaks more on the creator side of things as he has realised they aren’t being adequately represented by their associations. He recognized later than I did the number of people who are “members” of various creator groups who strongly disagree with the political positions expressed by the executives of these groups.

    This is his reason for his participating: he sees constituencies under-represented in this critical area of policy and he does his best to help represent them. Calling him a bully pulpit in this area of policy is amusing at best. I heard similar nonsense statements at CopyCamp where some fellow creators called him “he who shall not be named”, often after expressing clear misinterpretations of what Mr. Geist had said. I think their is an imaginary Geist Ghost that people think (or claim) exists, and they aren’t paying attention to what the real person is saying.

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