The questions were

1. How do Canada’s copyright laws affect you? How should existing laws be modernized?
2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time
3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?
4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?
5. What kinds of changes would best position Canada as a leader in the global, digital economy?

1. Copyright and You
How do Canada’s copyright laws affect you? How should existing laws be modernized?

Canada’s copyright laws affect me by imposing a controlling framework over my participation in our society. In responding to all of these copyright discussion questions, I propose that the basis for understanding how we should treat copyright needs to be founded in day-to-day living human society. I’d say this holds by and large for our treatment and interaction with all manifestations of various intellectual creations.

I’m not going to talk about specifics. Not specific stipulations, rules, or terms on how I think the copyright laws should be written or applied. I’m sure that there are a number of suggestions for that but I would like to see some background principles in place from which the specific rules are set. If questions arise as to the specifics or proper application, then a verification against the background principles would help determine the best approach. So I’ll answer these questions, as briefly as I can, with what I think the background principles ought to be.

Canada is because Canadians are. In our everyday activities we create our own culture while apprehending it. In order to participate at even the most minute levels of creating our culture we’re constantly experiencing everything around us to inform and inspire what it is we put into our culture. Really it’s just how we live in a society with other people—I’m trying to describe a self-nourishing loop. For example, when I write a novel, I’m drawing on my lifetime of ideas which has been influenced by every experience I’ve had. My experiences include everything in the world around me that I come in contact with, physical or otherwise. Whether initially created by humans or not, the fact of the Canadian environment is as much a part of our social experience as are the ideas we convey in our culture.

I believe that when I expose any of my ideas publicly (that is, when I do not keep them to myself), whether in a manifestation like a book, music, painting, etc. or even verbally, those ideas become irrevocably a part of our society. The moment we manifest a product of our intellect in the public sphere (our commons) at least one other person has now somehow apprehended them in his or her experience. The lives of those people are influenced by their apprehension of the ideas. In turn, those people will somehow contribute them, in their own ways, into society. Maybe someone will read a book I’ve written and then recommend it to someone else; a simple example. Maybe someone will see a painting that an artist made and be inspired with an idea to compose some music, which then eventually gets performed and heard by other people. A bit more involved, but just as much a part of the loop that is a living society.

That loop is the vibrancy of a living society. Without this constant interchange of ideas and creativity to even the simplest, most banal degrees, we cease to be a society. That is, without it, everyone keeps everything to oneself, which could only be possible if one were to live entirely by oneself, isolated from all other human interaction. In other words, in the absense of human society.

Current trends in copyright discussions tend to focus too much on the economic aspects of creator’s rights or else simply the notion of “ownership”. This is a mistake because it neglects the priority of the entire background principles taking place that enable people to manifest their intellectual creations within our society in the first place. It is however mostly possible and reasonable to identify creators with proper attribution to their works. From this attribution there are plenty of ways encourage our economy without assuming restrictive ownership-style rights. But this is more for a later question. I mention it here only to say that the economic concerns (which tend to wield an overbearing influence in copyright legislation) have profoundly impact our lives in the way we apprehend and participate in our society. These economic concerns should not be mixed into the purpose of copyright law, which in my opinion is to better our society by fostering creativity in the living space for manifesting our intellectual works.

Canada’s copyright laws affect me because I want to participate in a living Canadian society. I want to experience our society and I want to continue contributing to it. I do not want our society to die, I want it to neither be excluded nor exclude the rest of human society. Finally, I do not want to live isolated from all other humans. In order for this to be my reality, the controlling framework that is copyright must, by all means, neither restrict my liberty to apprehend all the creative intellectual elements of our society and environment nor restrict my liberty to contribute in kind.

Modernizing Canadian copyright law requires a focus equally on fostering creative expession and on ensuring the possibility for everyone’s apprehension of those forms of expression. Modern Canadian copyright law should emphasize a lack of restriction on the exposure, apprehension, distribution, and redistribution of all public intellectual manifestations. Canadian copyright law should focus on strengthening the freedom of our commons and affirming that this is our cultural lifeblood. At the same time, Canadian copyright law should clarify and enforce proper attribution for all who contribute their ideas in whatever form manifested. The framework of modern Canadian copyright law should be minimal in its control of social participation.

2. Test of Time:
Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

I think this question is asking about the copyright rules themselves standing the test of time. Unless I’ve misunderstood, that is not the best question to ask with respect to copyright and time. A more important issue is how does copyright affect Canadian values and interest over time? To which, I think copyright has to ensure the apprehension and contribution of intellectual manifestations to Canadian society now and continuously.

Rules that prevent the apprehension or distribution of any intellectual manifestation exposed within our social milieu are hostile to the test of time. For example, rules that confer rights for the reproduction of books to individuals or companies beyond the author’s lifetime serve more to destroy that piece of our shared culture than to keep it living. Such rules severely narrow the possibility that people will be able to apprehend the book because its distribution is maintained by a single source of control that frequently does not have our common social well-being as its driving focus, but rather the increase in profit is the driving focus.

Generating wealth by means of controlling access to a book works because the book can be made scarce (when it might otherwise be freely copied). This is problematic for a number of reasons but one main reason is that preventing apprehension of the book implies the removal of a part of the living loop that is our society. It’s ultimately a hostile attack against the well-being of our society. In other words it goes contrary to our longetivity, it’s a practice that fails the test-of-time. If we want to ensure that our intellectual manifestations do stand the test of time, we must ensure the well-being of our society’s living loop.

To answer the test-of-time question as originally stated, based on Canadian values and interests, which certainly seek self-continuation (since I don’t believe all Canadian’s share a suicide wish), copyright changes should be made so that they do not result in causing our society to have many instances of individuals or companies holding rights over those of our social commons. If we someday end up with so much of our culture bottled by a few companies for apprehension by those that can pay, then we self-destruct, at which point we will be forced through extremes to re-evaluate the madness of an over-restrictive copyright policy, and thus the policy itself would be poorly adapted for the test of time.

3. Innovation and Creativity:
What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

I think most people recognize that innovation and creativity do not take place in a vacuum. They go hand-in-hand with the living loop of our society. In order to foster more innovation and creativity, it’s essential to liberate exposure, apprehension, distribution, and redistribution of all public intellectual manifestations.

The best way to encourage innovation, which by definition builds on what exists already, is to encourage the free-flow of ideas in all their forms. Creativity likewise often flourishes as people are inspired by their apprehension of other’s creative works. Modern Canadian copyright should boldly recognize the infinite, free reproducibility of ideas as a common good, necessary for innovation and creativity. This would help ensure their apprehension.

To foster innovation and creativity modern Canadian copyright should also ensure recognition of creators. This is important for at least three reasons. First, because it identifies those participating and thus calls attention to the life that is Canadian society. Second, knowing the creator of some sort of intellectual manifestation helps enables social interaction between people. If I know who wrote a song, I can find more of her work, which might further inspire me to create something or otherwise participate in our society, or I can collaborate with her. Finally, something just feels right about being able to identify a creative work with its author. Authors feel entitled to recognition of their labours contributing to the living loop that is our society. Recognition of the elements composing our commons by our commons, encourages us to participate.

4. Competition and Investment:
What sorts of copyright changes do you believe would best foster competition and investment in Canada?

Historical precedent repeatedly shows that when there are fewer restrictions on the exposure, apprehension, distribution, and redistribution of public intellectual manifestations, competition and investment bloom. There are multifold examples of this in Lawrence Lessig’s book “Free Culture” (http://www.free-culture.cc/).

When intellectual manifestations are understood in the context of our living society, the notion of ownership becomes entirely awkward and anti-social. To really allow the notion of ownership contained within the phrase “intellectual property” to function, we apply it as though speaking of discrete physical items. Consider that the moment an intellectual creation is manifested in our society it irrevocably enters the living loop I described. So, followed to its ultimate ends, in order for ownership of “intellectual property” to be practically implemented, we eventually would require that creators be isolated from society. The only way that what is intellectual can really be owned is to isolate its creation entirely from influence contributed by our living society and from likewise influencing our society. Once it’s loose, it propagates in idea if not physical forms. But such an implementation as isolation makes the notion of ownership useless and the concept of “intellectual property” both nonsensical and untenable.

None of that however, means that we cannot recognize, attribute, and celebrate those people who originate or otherwise manifest their ideas and creations in our society. Nor does it mean we cannot harness those manifestations and the energy behind creating them in interesting and lucrative ways. I think it’s essential to distinguish between ownership and creation, which current copyright laws do not seem to do effectively.

Competition and investment with respect to our intellectual manifestations ought to be considered as a separate issue from most of the other questions in this consultation. We have to recognize that competition and investment are wholly dependant on a living society. They require new inputs to society from creators as well as desire from those in society that would apprehend the intellectual manifestations. In order to foster competition and investment, the focus of modern copyright should ensure the well-being of the living loop of society I described previously.

5. Digital Economy:
What kinds of changes would best position Canada as a leader in the global, digital economy?

First and foremost, modern Canadian copyright needs to emphatically affirm the characteristics inherent to the digital medium. That is, it must tend strongly toward the liberty to freely reproduce that which is digital.

Creations manifested in a digital medium, similar to ideas themselves, are infinitely reproducible without degradation, and with virtually little effort or expenditure of physical resources. It is a huge disservice that copyright-oriented conversations often address creations manifested in a digital medium as though they’re apprehended the same as physical items. A shovel can be stolen (I take it from a store and it’s gone), a digital file (like an MP3 or FLAC music file) cannot. The digital file can on the other hand, be duplicated without loss of or degradation to the original. This is hugely significant in all of our attitudes toward addressing the digital economy.

Modern copyright needs to swim with both the lack of limitation and the absence of scarcity that characterize transmission of intellectual works manifested in digital media. A proper Canadian copyright policy should not include anything that enables the implementation of technologies, applications, agreements, or other methods of enforcement limiting or otherwise restricting the nature of the digital medium.

The best economic policy involving the digital medium must embrace limitless reproducibility in ways that are totally alien to physical objects. The sooner Canadian copyright law recognizes this, the sooner Canadians and Canadian businesses will be able to develop and launch modern digital-native business models that lead the global economy.

The point seemed to be that the US would make a deal with other countries, leaving manufacturing to them but idea production to the US.

It managed to present the issues in a passionate way that, I imagine, should capture the imaginations of many people who otherwise wouldn’t care about copyright issues at all.

“RiP: A remix manifesto is an open source documentary about copyright and remix culture. Created over a period of six years, the film features the collaborative remix work of hundreds of people who have contributed to this website, helping to create the world’s first open source documentary.”

Filmmaker Brett Gaylor encourages remixes of the film too.

In explaining why we need a strategy the report says

“Digital content will be more and more in the form of conversations between people, using many different media types.”

This requires a more solid understanding of what constitutes conversation. The different media are one issue but within the use of those media the constructs of a conversation vary hugely. From blog posts to instant messages, even the selection of hyperlinks you choose to place in your web page.

The report offers a grid (p. 10) categorizing content by its source, motivation, audience, and characteristics. I believe there is a miscategorization here in that one source is the public domain and civil society whereas other sources are the business world or academic community. The report notes there may be some overlap but I think this categorization could be reconsidered and improved. The overlap seems too great to make the existing categories meaningful. In particular, I don’t see why the public domain is held separate from the rest, since it is not the same sort of a category at all. Every other category can include the public domain.

A key assumption in the proposed strategy is that

“Information access and use supports Canada’s societal goals-In society, equitable information access fosters equal opportunity for learning, creative and commercial enterprise.”

I think this is a wonderful base assumption, not simply for recognizing the need to have equitable access but also because I think it requires recognition of the integral role that this access plays for learning, creative, and commercial enterprise. And because information access leads to what enables people to access it-so if you read the report you’ll see various (welcome) mentions of open standards and sources.

An outcome the strategy seeks is that Canada’s information assets and knowledge are preserved in digital form. There is the point that we and future generations ought to have ongoing access to our digital knowledge and information assets, especially with regard to the intellectual, scientific, and creative accomplishments. I’m glad this point is in the forefront because it is a big problem. I touched on this in a post previously, commenting on our political motivation in terms of our heritage.

Unfortunately, I feel that the strategy doesn’t outline a sufficient method for ensuring the storage techniques to make this digital preservation clearly the right choice. Not that I’m saying it isn’t, but we have many flaws to deal with in terms of digital preservation and I think those must be worked out much more completely. The plan does cover some ground in this regard.

For example, in the objectives for ensuring preservation, it states

“We are confronted with the need to choose what will be preserved and what will not.”

It calls for a reasoned framework to do so. The strategy notes that we’re incapable (presently) of storing all the information we create. But haven’t we always had this problem? We’ve never been able to store everything (digital or not) and what we do keep in museums and archives, is not necessarily placed there because of a reasoned framework. I’m not saying we shouldn’t have such a framework however, but I’m questioning what it should be used to accomplish.

For all the digital information we create, how do we determine what will be significant to the future? Nobody’s ever thought it was an important idea to record every phone conversation for eternity. However, now that we’re looking at conversations in digital mediums, weblogs for example, and we feel like they’ve got to be preserved. Is the impetus for this the digital medium? I think the more difficult part of the preservation task is determining the “what” rather than the “how”and I suppose that’s the purpose of the framework. Any framework though is going to be developed within our present context so I wonder how it will be able to account for the rapid changes that take place in digital mediums? When hyperlinks constitute conversations do they cease to be preservation worthy in the same way as day-to-day phone conversations? Interesting problem.

To continue on the “how” side of the digital preservation thread, the strategy addresses trusted digital networks (TDRs), which cover the “policy, process, standards, and technology framework for digital preservation.”So TDRs address the “how” for making digital information accessible to future generations. I think two things are lacking here. One is the specifications for what constitutes a TDR but maybe that is better off in another document. The second is a thorough discussion of what we need to do to train future generations so that they’re able to understand and access these TDRs. We cannot just assume that the work we put into creating them will easily carry on to the next generation. I would expect that a digital TDR is a complex system, relying on current technologies that may be so obsolete that they’re not even comprehensible to future generations. That’s an ongoing concern that I posted a bit about in mass replicability.

Furthermore-the TDR idea, while not completely articulated yet (and as the strategy mentions, a proper TDR does not exist in Canada yet) does promote

“…common attributes and open standards; provision of guidance and training; and development and sharing of open source tools.”

Great that it is being couched in open standards and open source.

One potential risk of TDRs is that they might concievably be used as official checkplaces for “intellectual property” rights. I think this stands a great chance of being detrimental to the assumptions of the document for equitable access and the nurturing of digital assets. I may have a pessimistic view, but current IP trends, as controlled by short-term commercial enterprise, suggest that my pessimistic view for such a rights repository would be a likely consideration for misuse or abuse.

On developing an effective TDR, the strategy promotes the idea that “Effective R&D will enable the technical foresight and constant vigilance required to manage and preserve digital information” which is nice thinking but I still think this calls for a more deliberate outline.

Switching gears, an idea the strategy introduces, which really fascinated me was

“creating new competencies and positions such as ‘digital curators‘ who would have stewardship responsibility for digital information.”

The strategy recommends raising

“the profile of digital preservation needs and challenges within creator communities…”

This is important because the changes digital media have provoked are barely audible in public discourse. As a whole, we should make these issues commonly understood by the greater population so that they can be acted on with political will. Information is within our environment and ought to be considered intimitely.

The Library and Archives Canada draft strategy covers a lot of ground and raises important points for further discussion. I loved seeing that it was introduced to the public for commentary too (I suppose I wouldn’t be writing this post otherwise).

“With opposition likely to come from broadcasters, education groups, consumers, privacy commissioners, and the technology community, copyright could emerge as an issue where the Liberals and Conservatives sing a different tune.”

Which I think would be great. I recently wrote about how “intellectual property” issues should be brought into mainstream political discourse.

Besides, I think it’s good to write letters. It’s one way to communicate between votes and I can’t assume anyone in the political sphere necessarily reads anything I put on any of the blogs/sites I write.

It’s a funny thing, protesting “intellectual property” issues. I suppose people could organize large-scale public protests. Or you could regularly do acts of peaceful protest–perhaps sharing some creative commons-licensed music would qualify. But at the very heart of it, you’re essentially dealing with something that is invisible, it’s a concept embodied in progaganda, policies, and laws, and expressed in people’s activities. It’s a bit more tricky than showing polluted lakes requiring environmental reform, or people waiting in hospitals that require more doctors.

Letter-writing and article publishing are some of the ways to address it. That’s why I published the letter on the web. It adds to the monuments of discussion and perspectives building the force behind sentiment against restrictive IP regulation.

I think it’s positive that Tiemann is moving to be more adamant in ensuring correct usage of the “open source” terminology. I often read commentary on web sites that belittle Richard Stallman of the Free Software Foundation (FSF) because he publicly promotes accurate usage of the “free” terminology in reference to the different ideology espoused by the FSF from the OSI. But among whatever else his efforts at promoting accurate terminology do, I think they also benefit the user in the way a consumer advocate’s efforts do (or in this case maybe, a community advocate).

So why does open source need such terminology and definition advocates? FOSS communities have put in considerable amounts of labour not just in developing and distributing software, but also in the methodologies that ensure its viability and business practices. When portions of the community (including what we’d normally identify as the “consumer”) decide to use open source software on the recognized benefits it provides, they’re right to expect those benefits. Those benefits flow from the common recognition and identification of “open source” as specified in its definition.

The open source community includes vendors and customers. If the meaning of “open source” is lost to its participants, what sort of cohesion could it still command? I think that a company calling its non-open source software “open source” in order to capitalize on the market seeking such software betrays the confidence of its customers. As a customer, I would question my willingness to transact business with a company that has misled me. So from those two perspectives, major segments of the community are alienated. In other words mislabeling software as “open source” actively harms the participants demanding and supplying the market for open source in the first place.

Really the last thing that I wanted to comment on was a point in the ISC letter, which discussed fiscal stimulus for R&D in relation to FLOSS/proprietary models and it went a little something like

At first glance this sounds fair. But in the context of FLOSS versus proprietary development models, I think sound policy requires deeper and more encompassing thought. From the proprietary perspective in which the statement originates, it neglects the issues involved insofar as who is rewarded and from whom does the reward money originate?

It is after all government support that is in question here so I suppose the money is the money of the people. In FLOSS development terms, any support of FLOSS projects, by default, is freely accessible by anyone and thus the possibility of continued, further innovation is guaranteed. In proprietary development terms this possibility is at best questionable. The government rewards would go into software development without guarantee that any further innovation stem from that development, nor that any part of the public (who’s money went into rewarding its development) would necessarily be able to gain access to the source code. How is that fair to the people funding these government innovation rewards? It’s not.

That’s all I was going to say on the issue. Except then I noticed in today’s news, Wendy Seltzer published an insightful analysis of Microsoft’s new Windows Vista license (oh model of proprietarians). She highlights seven points. To summarize:

Vista’s use is limited unless you agree to the vendor’s proprietary rules. The software checks up on you every now and then to make sure you’re still agreeing, and if you don’t continue playing by the vendor’s rules, it starts cutting off its own functionality. The vendor gets to revoke your rights to your media. You’re not allowed to fix bugs or develop work-arounds to certain problems you may encounter (this is an anti-innovation red flag if ever there was one). Even though you’ve paid for the software it has an artificially imposed life limitation for two instances of use.

This is the sort of example of what a proprietary vendor does. Does it sound like a license that promotes further innovation? It sounds to me like all it does is spread restrictions and limit users’ freedom. What’s worse is to think that anyone could argue this deserves consideration for public funds equal to the consideration given to FLOSS development. What shameful distortions you present, ISC.

In the interest of understanding what the letter was a reaction to, I tried to find a copy of the UNU-MERIT “Study on the Economic Impact of Open Source Software on Innovation and the Competitiveness of the Information and Communication Technologies (ICT) Sectors in the EU” but was not successful. I did however, find the university’s policy brief (PDF) on a similar subject (Open Source and Open Standards: A New Frontier for Economic Development?), which I suppose would present a consistent point-of-view. I only mention that because it offers a few good points that I’ll bring up.

The author of the ISC letter, Hugo Leuders, says early in his mucking about, that

“FLOSS is merely a business model for distributing software, just like many other software business models including hybrid and proprietary software.”

Why would he say this? Strategically this is fantastic. He’s set the stage for his doublespeak by wresting control of the issue and taking ownership of it by phrasing it for his own goal rather than the actual situation. The real issues of FLOSS (free/libre and open source software) are multifold. But initially the point is either one of the freedom to copy, modify, study, and distribute software, or one of the pragmatic benefits to this manner of development (depends on whether you’re considering the Free Software Foundation’s philosophy or the Open Source Initiative’s). No doubt there are business models centered around FLOSS, but as I just stated, the FLOSS philosophies themselves are not business models. So in reading Leuders’s letter, we have no choice but to kick him off the stage right away. It’s hard to blame him though, he tells you shortly thereafter why the ISC proprietarians are worried in reiterating the report’s results:

“…open source software has been actively adopted by European firms over the last two years so that by the end of 2005 the overall share of companies using such systems amounted to 40 percent… the report predicts that the annual expansion of FLOSS participants will be around 20 percent per annum.”

Based on that success he argues that there is no need to offer further support to the FLOSS business model. The problem is that argument makes sense only if FLOSS is itself a business model, which I just pointed out, it is not.

Next, Leuders attacks the report for not acknowledging his proprietarian brethren. saying

“…it acknowledges other models in a denigrating manner, that they only contribute ‘headaches to FLOSS’ instead of informing the competitive dynamic.”

Hasn’t one of the more recent and notable impacts on the software industry been the loosening of proprietary monopolies by FLOSS movements? I’d argue FLOSS growth has done more to counteract the competition killing environment bolstered by proprietary vendor strategies than even government regulation has.

Today’s Market and Intellectual Property Rights (IPR)
With the ISC stage for business models in place, Leuders presents a fable of today’s market. He claims (with his emphasis on proprietary software) that

“…the software market that exists today works extremely well in developing innovative solutions for all spheres of business and governmental operations.”

But is that true? If it was working so well, how can he reconcile that with the FLOSS growth statistics he stated at the beginning? Clearly something is changing and I’d suggest it’s because the model hasn’t been working very well. In particular I’d address the notion of government operations.

Shouldn’t government operations serve their people? After all in societies with democratically elected officials, the government is composed of its people and is, in principle, beholden to their goals. Thus to support that government processes and access to government information and services, ought to be transparant to the citizens. This is certainly a problem with proprietary software, which is solved via FLOSS. Handy real world examples are not difficult to find. Just search for the problems with proprietary voting machine software in the United States, review the way some governments make important beaurocratic forms available on-line yet require non-free third party software to be installed to access these forms. There is no shortage of examples. Even a report cited by UNU-MERIT from the UN Joint Inspection Unit on open source software, recommended:

“All Member States and other stake-holders should have the right to access public information made available in electronic format by the organizations and no one should be obliged to acquire a particular type of software in order to exercise such a right…”

Next, the ISC letter breaks into intellectual property rhetoric. Leuders assumes any change to the fundamentally problematic notion of IPR is negative. He says

“Many of the proposed policy recommendations as identified within the report [the UMU-MERIT report] could further weaken IPR throughout Europe, potentially deflating venture capital levels and EU innovation.”

Leuders and the ISC attempt to paint proprietary methods as the safeguard of innovation and technological progress with broad societal support. I’d reiterate the stats on FLOSS growth at the beginning and note that the wording of most FLOSS licensing practically guarantees innovation. Consider the possibilities FLOSS opens to a wide range of people, as stated in the UNU-MERIT policy brief.

“The opportunity to ‘create and add value’ provided by open source is particularly important for developing countries and other economically disadvantaged communities. Access alone limits them to the role of passive consumers in the knowledge economy; the ability to create transforms them into active participants.”

In the scheme of things, the proprietary software model has only existed as a brief blip in time. It took early advantage of a new industry at a time when few people knew how to adapt to and fewer still, understood the nature of what the industry could grow to offer. It’s unlikely that the proprietary software distribution business model (which I’d argue is flawed from conception, but that’s another article) can stand the test of time as the software industry continues to evolve and mature. The societal experiences that Leuders argues spawned IPR, is far too ambiguous a concept to actually pin to the value such rights might confer on innovation, much less support the questionable notion of proprietary software. Leuders has a lot more work to do in order to prove this value in combination with proprietary software models.

Enough for now. That covers about half of the ISC letter. I’ll comment on the other half tomorrow or the next day.