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77th Annual Summer Conference, August 7–10, 2008

Beyond Copyright: Liberators or Thieves

HOWARD KNOPF, Chair, Copyright Policy Committee of the Canadian Bar Association
ABRAHAM DRASSINOWER, Director, Centre for Innovation Law and Policy, U. of T.
STEPHEN STOHN, Epitome Pictures
Moderator: GRACE WESTCOTT, Program Committee, CIPA

Summary by Sarah Gagnon-Turcotte


     Photo      Photo

Stephen Stohn


Howard Knopf


Abraham Drassinower

Stephen Stohn discussed how Epitome Pictures, confronted with the multiplication of copyrights infringements of two of their TV shows (Degrassi and Instant Star), put in place strategies to go around this phenomenon, while strengthening and broadening their fans basis. To do that in such a new and fast-paced entertainment and media world, they choose to enhance the legal Internet experience of their fans. Their strategy was threefold. First, they made the show and related content available on the Internet and accessible by mobile phone. Second, they created content specifically for the Internet and mobile phones. Finally, they used the Internet to create new links between the show and the fans. Finding new ways to develop fan interaction and engage them was not simply about creating revenue but more about going around the illegal user-generated works and expanding the Degrassi brand.

In a sense, user-generated works (especially mash-ups; amalgam of video parts put together with a new soundtrack) implies that a fan is really engaged with the TV show. They are therefore happy about this phenomenon, even if no money comes out of it. However, Stohn believes that is not fair that YouTube does make money out of it and keeps it all. In such a context, Stohn sees copyright not as an instrument of control, but more like an entitlement to revenue. Since it is so difficult to control the Internet and that criminalizing new modes of expression such as mash-up would be almost impossible to apply, sharing the revenue generated by copyrighted works with their authors is an interesting alternative. This is why he is welcoming the emergence of digital rights management (DRM). Use properly, i.e., not in a futile attempt at asserting control, DRM can be useful, especially as a tracking and accounting mechanism to share revenue. Moreover, he is proposing that Canada adopts an International Standard Audiovisual Standard (ISAN) that would work in a similar way as ISBN for books. It could then be use theoretically to track individual video frames stream on the Internet and create a fair basis for revenue sharing. In any case, he believes that it is urgent that we think in an open and flexible way about copyright and stop thinking in black and white and finds new ways to ensure that creators have a fair share of revenue.

Then, Howard Knopf gave the audience a brief history of intellectual property rights in the United Kingdom, the United States and Canada. He then briefly discussed the major cases of Canadian jurisprudence and their implication in relation to the Canadian Copyright Act. Canadian copyright law is one of the most restrictive. It is even stricter than American law. The evolution of the case law in Canada, for instance, led to the criminalization of parody and satire, while it is legal in other countries such as Australia and France which took legislative initiative to legalize them. Knopft is therefore concern by the Bill C61 which intends to reform the Canadian Copyright Act. According to him, the Bill will give much more control to copyrights owners and will increase their capacity to shut down, blockade and use protective measures to control the public domain. Moreover, he stressed that the punishments link with copyright infringement, such a $20,000 fines and jail sentences, contained in the Bill are going beyond what is reasonable. According to him, punishment should fit the crime and take into consideration the purpose of the infringement. Kids downloading music or unlocking a phone should not receive the same treatment as an adult infringing a copyright for commercial purposes for instance. Finally, Knopf pointed out that intellectual property right should be counter-balance by strong anti-trust laws, which is not the case in Canada.

Finally Abraham Drassinower brought a new perspective on the issue. According to him copyright law ought to be egalitarian since it is equally about the user not only about the author. The reason he can get to this statement is that in all authors lays a user. Authors do not produce in a vacuum, they are embedded in a culture, they draw on each other words to develop their own voice. To be an author, you thus have to be a user.

Moreover, the fair dealing provisions of the Canadian Copyright Act allows for the reproduction of copyrighted work for research, private study, criticism, review, or news reporting as long as it is used fairly and that reproduction is reasonably necessary for its purpose. These exceptions all refer to circumstances where the user is developing is own words. Fair dealing is thus an affirmative statement right to respond to the work of another. Once reproduction is no longer considered to be the core of copyright, the uses involved in fair dealing no longer appear as infringements to be excused as exception. On the contrary, fair dealing illustrate that user rights are also constitutive of copyright.

He pointed out that the way we conceptualize copyright is thus bound to change. As our technology evolved, reproduction became the centre of how information is shared, simply because the technology requires a copy. However, the problem is in the distribution of the material and the purpose of its use not the reproduction itself.

During the questions and answers period, additional points were debated among the three panellists....

Drassinower mentioned that technology protection measures prevent the use of a work for fair dealing and are therefore going against user rights.

A vivid discussion on the impacts of the Bill C61 on librarians opposed Stohn and Knopf. Knopf believes that the Bill will turn librarians into locksmith oblige to police the use of digital information, while Stohn conversely believe that it will complement the Public Landing Act by making more audiovisual works available to public access.

Stephen stressed the fact that the current generation of kids has no concept of what it means to take something without rewarding the authors for the efforts he made and the money he spent to create it. It will take another generation to sway away from this conception, but it is essential since we need to reward creation.