Bless me Internet, for I have sinned. It is 6 whole months since my last post. Woh!
So what happened to drag me away from the keyboard?
- I got a dog (using the same rule as cats – see other blog)
- I helped run a BarCamp on Open Government
- I did a couple of other projects that I can’t link to or talk too much about
- I had bronchitis (been a pretty crappy winter all around, health-wise)
- I was accepted as an exhibitor in the Kapiti Arts Trail this weekend (#91)
- (I’m sure there was some other stuff)
- Oh yeah, I signed up on Twitter.
That last is the big one, really, as it chews up the most time. I have barely looked at RSS since April, and have only made one post to my family blog. It’s really quite fascinating to me (10K tweets later) and not a little frightening. I’m following most of the people I used to use RSS for, but now it’s in real time.
So, what’s hauled me back to the keyboard? ACTA – the Anti-Counterfeiting Trade Agreement – you may remember that I’ve blogged on this before. Well, it’s just entered its next round, in Korea, that well-known home of freedom and civil liberties (and the first country in the world to pass a 3 strikes law and implement it).
So, wassup with ACTA? For background, I’d like to point you to a recording of me discussing ACTA with Kim Hill on National Radio recently. Very pleased with the event and it’s now very timely, as ACTA has reared up again.
Those playing at home will remember that I’ve discussed the “intellectual property” aspect of ACTA before, and the fact that it’s being negotiated so secretly, more secretly than any other “trade treaty”. Long time players will also note that, in my submission to MED in June last year, I said (in para 17):
Further, the scarce official information available about ACTA would appear to indicate that it was intended to harmonize the enforcement of existing IPRs. However, the only current approach to a harmonized global concept of IP is occurring through WIPO, and ACTA appears to seek to operate independently of WIPO. There seems to be a fatal disconnect here – how can you harmonize enforcement if you don’t first harmonize the definition of infringements?
So now they’re seriously talking about this area and how they want to do it.
Michael Geist has broken the story and Cory Doctorow has broached it to the BoingBoing community. Neither of them appear to have actual text, but quote sources who say the draft text is modelled on the US-South Korea free trade agreement.
Geist outlines five issues:
- Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
- A requirement to establish third-party liability for copyright infringement.
- Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
- Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.
- Rights Management provisions, also modeled on U.S. free trade treaty language
Doctorow’s language is a little blunter – he notes that ISPs will have to proactively police copyright on user-contributed material, that ISPs will have to cut off Internet access of accused copyright infringers or face liability, that the whole world must adopt US style notice-and-takedown rules without evidence of infringing copyright, and that there will be mandatory prohibitions on breaking DRM.
We can’t confirm or deny what is in the actual draft because we don’t have a copy. The US administration wrote this chapter of the draft but is still regarding ACTA as a matter of national security. They recently let 42 individuals see a draft text, but only 4 were from what we regard as “civil society”. The rest were big corporates. This, the Obama Administration calls “transparency” and consultation. To be fair, Bush’s administration was worse, but this is not what we expect from a leader who campaigned on “change”, “hope” and “yes, we can”.
The New Zealand government is no better. Our officials say:
The countries participating in the development of ACTA have agreed that general information about ACTA’s objectives and the negotiating process should be made public. In that regard, MED has provided a range of relevant information about ACTA on its website. However, ACTA participants have also agreed that information relating to formal negotiating positions of governments should be protected, as is the standard practice in international treaty negotiations. It is in this context that we are unable to reiease many of the items you request.
First point – it is not the standard practice – the WTO Doha Round, the Free Trade Area of the Americas, World Health Organisation, WIPO – all publish the texts and proceedings as they go.
Secondly, the material published by all nations, including the Ministry of Economic Development is contextless spin, rather than substantive reporting of negotiations. “General information” is a kind way of putting it – “We’re doing something that will affect all of you but we’re not going to tell you until we’ve done it” is more accurate.
What is hardest to understand is how the governments involved – United States, Switzerland, Japan, Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates, Canada and the European Union – can justify this secrecy in the face of domestic freedom of information laws, pledges of transparency and even the concept of democracy – government of the people, for the people and by the people.
It’s going to get worse before it gets better, and individual protests are going to be little waves crashing against the rocks of government indifference. The proponents of this type of action have money, power and the ears of their legislators – we have our spirits, our wills and our need to be free. To make sure that’s enough, we need to join together and use our collective voice. In New Zealand, I recommend the Creative Freedom Foundation, InternetNZ and the NZ Open Source Society, all of whom have expressed their concerns to government previously. Elsewhere the Electronic Frontier Foundation, Knowledge Ecology International, even your local Pirate Party and the like are carrying the flag.
The proponents of ACTA say it’s about protecting the property of the content creators, letting them earn a living, that opponents want to steal the food from the mouths of artists and their children. They’ve persuaded (or coerced) some artists and writers to speak up in this matter, to plead their cause. But the real blocks to artists, writers and musicians earning their fair share of income are the publishers themselves, with iniquitous contracts, onerous debts and dubious expenses. All the publishers are trying to protect is a dying business model which even now is still earning them billions each year.
Copyright isn’t about property – it’s about knowledge. It’s a social contract between the creator and the receiver (I won’t say “consumer” because knowledge isn’t consumed; it’s shared) and protects both. Publishers have always owned the gate to knowledge. The Internet and digital technology changes that completely. We’re all publishers now.
In a knowledge economy, you’re not buying and selling knowledge, just as you’re not buying and selling cash in a cash economy. In a knowledge economy, knowledge is the currency used to obtain something from the receiver – attention, loyalty, or something else - something of value to both parties. It’s a different market model from the industrial one we grew up with of few producers, scarce product and many consumers. Product is no longer scarce, nor can it be made artificially so. The old model is broken, yet the old guard is trying to hamstring the new for as long as possible.
Google ACTA, learn what it’s about and what it’s claimed to be about. Wake up your media who are strangely silent on this matter and make them report it, if only to report your protest. Contact your elected representatives and make them aware that you don’t want this, that you won’t stand for it and that you expect them to represent your will, not the will of Hollywood and the recording industry, the pharmaceutical industry and the big broadcasters, who all stand to make more money by locking in our choices in what we can do with information.
Don’t just sit there – DO something!
13 Comments
Shift your paradigm Mark. Copyright was a privilege created to govern and reward the press. It was nothing to do with incentivising creativity. It’s just a monopoly created by suspending everyone’s cultural liberty. All such privileges are instruments of injustice, by reserving the natural rights of the many as the legal ‘rights’ of the few.
You owe it to yourself and your audience to recognise why copyright is an unethical and ineffective anachronism that should be abolished.
ACTA is not inappropriate enforcement, but too little, too late. If you think copyright would be fine if only it was shorter, or people didn’t try to enforce it so harshly, you’ve lost the plot.
My paradigm’s doing fine, thanks.
The problem is not with copyright per se, but with the practice of copyright enforcement, and the lack of understanding that with rights come responsibilities. I agree that copyright arose from and for the publishers (not the press, but the people who owned the presses) but that doesn’t mean it’s all wrong. Copyright was developed to benefit the holder by restricting other publishers (note careful use of that word) from making their own versions of the work in question for a limited period of time. It wasn’t developed to benefit the author, and it wasn’t developed to guarantee an income.
There have to be ways to allow content creators to benefit from their creations. I have no issue with that idea. But there also has to be recognition that the creations “belong” to the wider society and that a balance has to be made between public and private rights. And content creators and publishers have to understand that holding a copyright isn’t an automatic ticket to a living – it merely gives them the *opportunity* to make money for a limited time. Markets will determine the actual money-making capability of the work.
I don’t think the concept of copyright is completely anachronistic or unethical but, like anything 300 years old, it has developed some warping and is currently inappropriate for the digital age. Extensions to duration worsen the problem, but there are fundamental flaws, I agree. Be careful what you throw away – the result may be worse.
Thanks for your comment.
~mark
It’s never easy for the privileged to give up their privileges, nor even to recognise that the right to copy that was suspended from the people to create their privilege of copyright, is an unethical derogation of a natural right.
It must be similar to the introspective abyss that slave owners refused to look into.
Exploiting another’s lack of liberty can certainly be lucrative and you can even give the first, impotent holder of the privilege a token fraction of the wealth you obtain, but that doesn’t change the ethics of the matter. Nor for that matter, does three centuries of tradition.
Copyright is unnatural corruption all the way down to its mercenary foundations. Don’t kid yourself there was ever a point when it wasn’t.
A cotton farmer may be unable to imagine how he could make a living without slave labour, but that doesn’t make slavery philanthropic, only a business model that his failure of imagination assumes has no ethical alternative.
Way to conflate emotional claptrap with ideological position, dude.
There was never a “natural right” to copy. If you start from that position, then all laws are evil. Society is itself an artificial construct – a set of rules we agree to that enable us to live together for mutual benefit.
Copyright arose because of a paradigm shift in technology – the spread of the printing press. The previous barrier to copying was the labour-intensive effort and skills required. After the press arrived, the barrier was the cost of the equipment (which was considerable). The digital technology paradigm shift means that we need to review and revise the mechanism we use, but it doesn’t mean throw it away altogether.
The problem is not creators having some control over their work. The problem is the abuse of that control by companies who contribute little to the creation but reap most of the revenue.
Mark, you have been seduced as Boromir into thinking that the ring of copyright is a benign power that must not be destroyed because of all the good that you believe it could do if used kindly. If you do your research more thoroughly you will find it is actually an instrument of injustice created for the dark lord, and Sauron is amassing his armies of corruption as we write, intent on securing his ring that brings us all and in our cultural darkness binds us.
The ring cannot bring anything except obscurity and cultural invisibility to the mortal who attempts to wield it. Copyright is a privilege whose power is latent for only immortal corporations.
This is not a battle to wrest cultural control from publishers to individual artists such as yourself who covet it, but a battle to destroy it, to cast the privilege into mount doom, to abolish copyright.
Crosbie,
Just because I live in New Zealand doesn’t mean I cast every issue in terms of Tolkien, mmmkay? You pretty much jumped the shark with this comment.
Just so you know I have done my research (probably more than you, if we get down to brass tacks), I humour you one last time.
Copyright was designed for publishers (who were not necessarily big corporations but often one-man print shops) – that I can agree with. It arose out of the Stationer’s Register in London in the 16th and 17th centuries. It was codified in 1709 in the Statute of Anne, which came into effect in 1710. While it arose from Royal decree (through Letters Patent and other mechanisms), it was formulated with reference to authors.
It is also a fact that the UK government, while signing up to and ratifying the Convention in the 19th century, did not enact legislation to enforce it until the late 20th century. This is not a fault in copyright, but in the UK government.
I am not trying “to wrest cultural control from publishers to individual artists … who covet it” (and that is SO pretentious that I laugh at you) – the publishers who don’t get it are making themselves obsolete. I won’t have to deal with them at all. I am my own publisher. In order to make it worth my while writing, editing and publishing, I need some sort of incentive. I don’t want a lifetime pension, but I do want control of my work for a period.
It’s you, the free-rider, that wants to grab that control away. By what right? None at all. I share my work with the world. I bring it to the marketplace and make it available, but you want me to do it for nothing, to give away my work as if it was something I picked up along the road and had no claim to. What claim do you have to it?
If you want to “abolish copyright”, well, good luck to you. I doubt that you’ll get much traction with creators, publishers or legislators for that. Abolishing copyright means that authors have less incentive to create and share their work. They have to eat as well. And it means that the people who control the means of production will be able to rape and pillage creative works without any legal hindrance. You think things are bad now? What would you put in its place?
Finally, if you want to comment here, show some respect and don’t insult me or my knowledge with puerile crap like your last comment. If you want to talk like adults, I’m happy to have a discussion.
Of course copyright was formulated with respect to authors and every other philanthropic platitude they could come up with. They may have been unscrupulous, but they weren’t stupid. The stupid are those who believe it was enacted to benefit the people, instead of the Stationers’ guild in exchange for the crown’s jurisdiction of their de facto control over printing/distribution (that governments still fear and wish to retain).
Anyway, you can continue to kid yourself that without the suspension of the public’s cultural liberty to perform, share, and build upon your published works you can’t make a living, therefore that warrants its continuation and negates any ethical considerations.
But, at least, entertain a doubt. Consider the possibility that slavery is wrong despite being lucrative to those few plantation owners who have the resources to keep slaves.
Do you aspire to manacle and punish your fellow man for the liberties they take, or to exchange your art for your liberated audience’s willing custom?
Mark, what do you think of Finland’s new law, entrenching internet access as a human right?
Thanks for OpenGovt barcamp.
Will, it will be interesting to see if the rest of Europe accepts it, legally. Also, it’s still to be tested. Judith Tizard made the same sort of noises, while her officials were already negotiating this abortion of a treaty.
And BarCamp was my pleasure, seriously. Great fun and learned heaps ;-)
Crosbie
You say copyright is wrong. How do you see publishing working without it?
Also, why must I “entertain a doubt”? You obviously are not.
interesting to see if the rest of Europe accepts it, legally. Also, it’s still to be tested. Judith Tizard made the same sort of noises, while her officials etc
Ta for that. There’s hope for Labour to regain face after all :-> NZ isn’t encumbered with an EU Commission hurdle. Yet. An FTA with the US could change all that. There’s still a window for NZ to lead the world in something. Freedom.
Korea’s three strikes law is the first for that purpose, but it of course is not the first three strikes law.
The term “three strikes and you’re out” comes from American baseball, and the implementation of this in criminal law came in the early 1990s. Washington, California, and a number of other states enacted laws to give exceptionally long sentences to those who committed three felonies.
Yep, you’re right. But this blog is about copyright, and so I’m right too ;-)
Thanks for commenting
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