Draft: Canadian Copyright Reform as a Cultural Industry Bailout
Possible subtitle: “The Demand for Mandatory Public Patronage of Canadian Cultural Industries”
[N.B. This essay was written on 30 August 2009, in response to viewing the entire Toronto town hall meeting as part of this summer's copyright consultation that solicited views from across the country, ostensibly to feed into forthcoming copyright law.
I hope to expand upon several of my thoughts — particuarly about the patronage aspect and the role of copyright in business models — in this essay in future iterations. Consider this a first draft.
A video of the town hall proceedings is available on YouTube in 15 parts, starting here.]
I’ve spent far too much time this evening watching the Canadian copyright consultation that took place in Toronto earlier in August. Two hours of a stacked town hall (mainly industry folks — I think there were three Warner Music and at least two Sony people that got up to speak) and what did we hear? A lot of well-spoken comments, many that were essentially the same, and some poorly spoken ones too, from most sides in the debate.
What points stood out most loudly to me? (note that these are all paraphrased)
# “Artists deserve to get paid.”
# “Our [music company] budgets are getting smaller, we now have to turn down acts, my friends are losing their jobs.”
# “Artists make on average 20% less than the average Canadian.”
# “We [as content/culture industry employees] are taxpayers, we reinvest in the Canadian economy, our families are supported by copyright.”
# “The law is so bad in Canada that my friends have had to leave the country to have a chance at becoming successful artists.”
Or, if I may summarize with a bit of tongue in my cheek: “My business model is failing, and i don’t deserve it; bail me out.”
As for prescriptions to solve the problems noted above, the following also stood out:
# “Expanded collective licensing”
# “Levies on all blank media, including iPods, Hard Drives, etc”
# “Levies on bandwidth/internet connections”
And so it dawned on me that this debate isn’t about TPMs or DRM. It’s not about term extensions or implementing WIPO, or even about expanding fair dealing. No, as the final speaker of the evening (unfortunately very ineloquently) put it, this debate is about entitlement, or feelings thereof.
While the complaints and descriptions certainly outweighed the prescriptions mentioned above, this made one thing clear to me, and that this has been, and perhaps essentially is at its core, a debate about how (ostensibly Canadian) culture should be promoted and paid for in Canada. It seems to me that the pro-strong-reform (and to a lesser extent the pro-levy) camp believes that the current business model, where consumers are pricetakers of whatever content makes it out of major music production companies, is the one that should remain and be entrenched in the new law. Particularly galling to me is the idea that collective licensing and levies are an acceptable solution to the consumer copying problem, which penalizes non-copying uses of the media in question (e.g. computer data on CDs) and socializes the culture industry, disabling the market from choosing winners and losers through online transactions.
I’m still fascinated and a little awe-struck by so many of the presenters who felt that Canadians owed it to them to buy CDs and other cultural products so that they get paid a fair wage. I can’t be sure, but it seems the implicit argument behind this goes something like this (I have no misconceptions that this is actually a sound deductive argument):
1) Cultural work is good for all Canadians
2) Cultural works cost money to pay the author to produce
THEREFORE, 3) Canadians should pay the authors of cultural works
4) I am a producer of cultural works
THEREFORE, 5) I deserve to get paid by Canadians
What seems to be missing in all of this is, given that we operate in a relatively free market, is the presence or absence of consumer demand. If I write (what in my mind is) my magnum opus, but the Canadian public disagrees for whatever reason (whether it be distaste, poor marketing, ignorance, or rough economic times) do I still deserve to get paid? Again, the presumption of consumer demand is a hallmark of old business models. The Ministry of Canadian Heritage (or anyone else) is not holding a gun to the heads of would-be artists or others in the industry and forcing them to remain working as poor, exploited artists because they must make this sacrifice for the good of all Canadians — that is their choice (more on the benefits to all Canadians of artists making the choice to remain artists in a moment).
I do not argue that the production of cultural work is good for Canadians — indeed, this is supposed to be the core of the copyright bargain: Canadians gives a creator limited monopoly rights to their work in exchange for producing the work in the first place. I will admit that this does overlook a couple of realities: 1) that there are (arguably decreasing) costs of creating and disseminating your cultural work, and that 2) the mass market is probably a poor judge of what is a good non-pop-cultural work. That artists decide to take the risk of being artists and letting the market judge their economic success and reputation instead of opting for safer alternatives suggests that their motivation at least partially intrinsic, and copyright makes hope of future remuneration at least a dim glow at the end of the tunnel. But what if we wanted to make it easier? Or what of those other competent creators that choose not to create because other jobs are more stable? This is where Canadians could decide to fund the creation of culture, but in a more transparent way than entrenching or socializing current business models would provide.
How could you further facilitate or incentivize the creation of culture? The government could simply tax or take some of it’s existing tax revenue and use it to fund the creation of culture, through organizations similar to the ones that exist today (Canadian Television Fund, etc.). [Some kind of loan-with-forgiveness system might also work?] Funding could be allocated competitively, but via a different set of criteria than immediate market success. This mechanism wouldn’t always pick future winners, but it would promise a supply of cultural works different, and perhaps more complete, that if picked by the “fickle” market on its own. By disentangling the issue of copyright law from the issue of paying for the creation of culture works in Canada, the Canadian government could engage first in the debate of how we want our copyright laws to incentivize creation and protect creator rights, and second, whether we as a country feel it beneficial to fund the creation of culture (and how much we should fund). While I’m not a fan of big government, this is a more appealing situation to me than entrenching business models and allowing those running businesses under said models to be the arbiters of what becomes popular and is remembered as “Canadian” culture.
I thought the best presentation of the meeting was made by Blaise Alleyne. You can see what he said on YouTube here. He speaks about this expectation of payment and incentives, crown copyright, copyright term extension, extended fair dealing, and taking a technology-neutral approach. He sums it up by saying “Copyright shouldn’t provide a specific business model. It should provide tools that creators can use to incentivize them to create. But if the public can’t use that creation, there’s no point in copyrighting it in the first place.” This was a very refreshing and honest perspective, especially in contrast to extreme, disingenuous, and self-serving views like that of (second-last) speaker 143.