notes on copyright reform in canada: bring out the thumbscrews!

in a Toronto Star editorial today, proposed changes to the existing Copyright Act made by the federal minority Conservative government this week were applauded: unequivocally and, unfortunately, uncritically.

before anything, let me point out that copyright infringement has always been with us humans: whether through material forgeries, through any act of fakery or deception, or through less self-evident means like filesharing, sampling, remixing, and the like. i daresay it will always be with us, too: gucci and coach knock-offs keep on coming, that Van Gogh or Monet still graces our desktops, and our homemade t-shirts of rodent-like Walt Disney characters still keep being worn. There's a certain amount of inevitability here that seems ignored: copying will happen and, in many cases, what's really wrong with that?

of course the editorial talks about protecting the rights of businesses and artists, those digital content creators the new law is designed to protect. this certainly has all the trappings of a noble cause, as the production of a nation's artistic community creates an important cultural as well as intellectual heritage.

yet it fundamentally misunderstands the nature of contemporary artistic practice, and narrowly defines what is and isn't art in the process. for one thing, for many artists remnants of the sensory world are core elements of their work: where would the work of Pablo Picasso, Andy Warhol, or musicians who sample the work of other musicians be if copyright law was strictly enforced?

more insidiously, it suggests a sharp and clearly delineated divide between artists, businesses, and others occupied in the traffic of copyrighted forms and everyone else. with the proliferation of digital technologies, people of all kinds now have the ability to not only create forms (they're long had that ability, notably with cameras), they have the ability to distribute them as well.

the "erosion" of the rights of "'creators'" that the editorial mentions; the "stifling" of the creativity and innovation of "artists:" all this presumes an existing model of distribution that need not, indeed must not, be tampered with. namely, big business and mainstream media conglomerates hold and maintain copyright control, as they should, and as they should continue to do so.

some fancy rhetorical footwork here as "artists" comes to be defined (implicitly at least) as those making and distributing forms within the existing copyright paradigm (i.e. as commissioned to do so in order to earn royalties while others retain, or at least control, copyright; and commissioned with certain expectations about the quality and communicability of the final form). "artists," in other words, are not necessarily those that make images, music, etc. artists can also be big businesses themselves: copyright holders, and those holding the legal right to monopolistically distribute those holdings. this is an archaic interpretation of creative rights, one that assumes artistic production as property to be traded like any other commodity rather than the cultural and human right of any individual, whether or not she has paid to experience it.

there are other options: why not push for copyright laws that protect the rights of creators rather than the rights of their creations? fair wages, arms-length funding, copyright being retained by those who make - not those who distribute - artistic forms: why isn't this a possibility?

perhaps this is the most disturbing element of the editorial, and the legal amendment it so heartily endorses. namely, that artistic creation isn't a universal human right. the right to formulate and express local and unique ways of knowing isn't particularly valuable.

some might argue that this isn't a case about everyone making art forms, that it's about stemming filesharing and other copyright infringements. i'd argue that by taking control of the moral and ethical processes decision-making about what's fair and right in creative production, by increasing surveillance opportunities and imposing punitive policies designed to protect interests instead of empower citizens and communities - in short, by declaring what is and isn't fit for people to have autonomy and self-direction over, it certainly isn't a case of everyone making art forms.

but neither, for that matter, is it simply about filesharing or copyright infringement: instead, it's a far broader issue about what businesses and governments can do to the cultural sovereignty and self-determination of a nation when left unchecked, and about the vastly unequal means that they have at their disposal (e.g. legal systems, educational systems, networked/broadcast communication systems, and so on) with which to do so.

anyway, i'm by no means an expert on this stuff; i'm far more interested in the implications this has on how people make and do things, or are subject to the ideas and interests of those who are more leniently permitted to do so (i.e. corporate conglomerates, more often than not, in a mainstream media market). more sustained and intelligent discussion can be found in the writings of Michael Geist, to name but one:
http://www.michaelgeist.ca/content/view/3029/125/