Trillium Book Awards Author Reading 2015

Free For All - Canadian Copyright, Intellectual Property and What Happens Next: An Interview with John Degen

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John Degen

John Degen is the Executive Director of Writers' Union of Canada, and is well known as a cultural commentator on issues related to writing in Canada. He previously served as the Literature Officer with the Ontario Arts Council, and was formerly the Executive Director of the Professional Writers Association of Canada (PWAC). Also a published novelist and poet, John spoke with Open Book about emerging issues in Canadian copyright and intellectual property, and in particular about recent changes to the laws surrounding these practices.

From free culture to the shift to digital, John discusses the opportunities and challenges facing both creators and consumers of culture in our country.

For more from John, you can view his podcast series and visit his blog.

Open Book:

Bill C-11 passed in November. Is there any point to continuing the discussion around Canadian copyright law? Or is everything settled?

John Degen:

I believe it’s premature to consider anything about copyright law to be settled, and that’s true globally, not just in Canada. That said, I think everyone might be experiencing a bit of copyfight fatigue right now — I know I am. I feel like writers and publishers have been struggling against some pretty fundamental misunderstandings about copyright for well over a decade now. It’s exhausting. I finally had to give up most online discussion on the topic to keep my head from splitting open against a wall of indifference and half-formed concepts of free culture.

There’s the law — what the legislation and court decisions actually say — and then there are interpretations of the law. We’re heavily into an interpretation phase right now, and judging by what’s happened in the early stages of this phase, the struggle against misunderstanding and wilful misinformation is just beginning. There’s a heck of a lot of money hanging in the balance, and no shortage of organized industrial interests looking to tip the scales away from cultural workers.


How do you feel about the educational exemption? What effect might this have on creators, students and educators?


There actually is no such thing as an educational exemption from copyright law in Canada, but I like your question because it shows how easily assumptions can take over in this discussion. I’m sure there are many Canadians who believe that educational uses of creative content are suddenly and magically exempt from the traditional protections of copyright. This is simply not true.

What is true is that a new category of the fair dealing provision — called “education” — has been created. There is also a new category called “satire” and one called “parody.” These have been added to the previously existing categories “research, private study, criticism or review, and news reporting.” As with all the categories, in order to claim a fair dealing, one must demonstrate that one is dealing fairly with the work. Loading an entire film to YouTube and then added a brief review — “this movie is great!” — is unlikely to be considered a fair dealing under the “criticism or review” category. Standards for these categories do exist, thank goodness.

The immediate and overwhelming effect of the new education category is to plunge us all — writers, publishers, students and teachers — into a well of uncertainty about what is about to take place on our campuses and in our classrooms. From what I’ve seen, frontline teachers and their students are being exposed to great risk of incidental infringement as their administrations favour simplistic policy-building over solid licence-protection. There is a weird, celebratory, anything-goes atmosphere developing around educational uses and, you know, that just can’t last. Copyright is a right of individuals, and some individual is going to seriously object to her work being copied without permission. Educational administrations have effectively made targets of their teachers and students. In my opinion, it’s a disturbingly cynical development for Canadian education.


Can you tell us a little about the ACCC Fair Dealing policy and how it is being implemented?


Hmm, well, speaking of simplistic policy-building...

The Association of Canadian Community Colleges has generated a policy — and has spent considerable time and effort teaching that policy to its member institutions — that makes broad assumptions about what might be allowed under the new category. Up to ten percent of any given work, entire chapters or stories for use in course packs?

Where do I begin?

Look, this is the digital age. We don’t even know how to define a “book” anymore, let alone divide this undefined thing neatly into percentages. With some of the digital shorts being published right now, a chapter IS a book and vice versa. Absolutely nothing is certain about how we do this business anymore, and community colleges want their teachers to walk confidently to the front of the classroom and say “go ahead, copy that whole chapter; it’s probably perfectly legal?”

I think the worst part of this development is how teachers and students have been placed in opposition to writers and publishers. You’ve probably seen TWUC’s [The Writers' Union of Canada] video in which Kathryn Kuitenbrouwer and I tried to bring an alternate opinion to one of the ACCC’s seminars. Our handouts were confiscated from us, and we were removed by security. All we wanted to do was distribute educational materials… for free! We wanted to bring information to educators, and we were stopped.

Students, teachers, writers and publishers should be given the opportunity to talk with each other and work out our own interpretations of the new law. That educational administrators would discourage that kind of communication tells you everything you need to know about the fairness of their position.


Where do you think the demand for free content is coming from? Do you think it is sustainable?


I think the desire for free is perfectly natural. Who wouldn’t walk into a movie happily if the cinemas opened their doors for free? Free is great. Add to that natural greatness the anonymity and extreme ease of copying through digital technology and the Internet, and in a way I think it was almost inevitable we’d arrive where we are today.

A lot of theorists and activists have made a lot of hay and secured a lot of tenure by conflating free content and free expression, but I think we’re all wising up to that gambit. At least I hope we are, because frankly it’s embarrassing. The boy can’t cry wolf and have us run into the woods forever, can he?

Of course free is not sustainable. I haven’t read a single serious piece of journalism or scholarship that makes a convincing argument in that direction. Sadly, just as that facile populist pendulum has reached its zenith and is heading back to the saner middle, Canadian educators are trying to push it just a little bit further.

I know that Canadian students and teachers want to hear from Canadian writers, because TWUC sends writers into hundreds of classrooms and libraries every year. If those writers are really expected to work for free, how can we afford to keep this programming going?


What are some of the opportunities and dangers around the devaluation of content and copyright?


Let me start this answer by proposing something radical. Everyone should go to a bookstore and buy a book. Go buy Free Ride, by Robert Levine.

Levine is a journalist, and the former executive editor of Billboard magazine. He watched “free” take a chunk out of the music business, and his commentary on what has happened in the cultural industries and the promise of the future is clear-eyed and absent the usual doctrinaire posturing all of us in the copyfight are guilty of. I interviewed Levine for my audio podcast, The Book Room, when he was in town last year for Canadian Music Week. He has no patience for either fearful ludditism or free culture crusading. I am endeavouring to become more like Mr. Levine.

The digital present holds unprecedented promise for cultural creators. The new and ever-improving tools, the exploding access to audience and readership, the opportunities for independence and creative control — it’s fantastic. None of it requires even the slightest weakening of copyright protection. I’ll bet Google has already spent more money on legal fees pushing their “fair use” argument for unpermitted book scanning than they ever would have spent securing up-front permissions, especially in a collective licensing environment. The battle against Access Copyright licensing is being fought, apparently, to save Canadian students $26 a year. How much is tuition these days? Do we think tuition will go down once we stop paying those pesky writers?

We are in absurd times. Everyone is losing money. My one hope for the future is that my sons become intellectual property lawyers.


Can we compare books and writing to other industries, such as music and film? Or are those comparisons flawed in some way?


You know, I’m probably being a homer about this, but I truly believe the core of readers truly value books and will always do so. I hope our industry will not suffer the indignities of mass piracy on the scale of music and film. I hope.

On the other hand, there is a happy comparison to be made. I think both film and music have come through a period of transformation that has allowed the creator and the producer classes within the sectors to forge new understandings and new agreements. Digital disruption has certainly encouraged a whole lot more creative thinking about how we all work together and treat each other. I already see that happening in writing and publishing, especially in Canada.

I ran into Doug Gibson the other day — publisher turned writer — and it sounds like he’s on a voyage of discovery in this new age, learning the unique challenges of living on the other side of the business. And then, many of my writer colleagues are becoming publishers. Cats and dogs living together! It’s a beautiful madness.


What steps can individual creators take to engage with this issue, whatever their feelings on it may be?


I think in the next while, you’ll see The Writers’ Union of Canada and all sorts of other creator and publisher organizations organizing opportunities for writers to get together with students and teachers to talk about all this stuff. Nine or ten self-appointed copyfight generals yelling at each other on the Internet has not solved this problem, strangely, so it will be left to real people meeting in real rooms, talking and listening with genuine interest.

I encourage all individuals to embrace these opportunities. We are all students, teachers and creators. There is no reason we can’t work all this out.


Do you find attitudes towards copyright reflect demographics (younger/older, published/unpublished, etc.)?


Yes and no. Certainly, there is a generation that knows nothing else but pretty seamless and inexpensive, if not free, access to a huge universe of content. My own kids have never known anything but. That said, I hesitate to define this as a whippersnappers vs. curmudgeons argument.

I think the real division is between people who feel ownership on their skin and those who have not done so yet. I used to get into a lot of silly arguments online about whether or not copyright infringement can, technically, by legal definition, be considered “theft.” Finally, my answer became “I don’t care if it’s theft or not. It feels like theft when it happens to me.” Until you’ve felt that loss, it’s just an abstract idea and, possibly, just the whinings of a special interest group. But when it happens to you in a meaningful way, you suddenly get it, no matter your age or professional position. At its root, copyright infringement is disrespectful — and I think everyone gets what it feels like to be disrespected.

Some of the folks who yelled the loudest when Amazon screwed up and erased Nineteen Eighty-Four from a bunch of Kindles are likely the same folks who had no problem feeling entitled to pirated content. The only difference is that they honestly felt the erased book had become their property, and no big corporation is going to come and take their property, no sir.


What effect do you foresee these policy changes having on the book industry — both individual creators and publishers?


If the educational budget-makers continue down the path they’re on, we’re in for a decade (at least) of legal activity just to get us close to where we were before C-11. One of the many numbers being thrown around right now is $40 million dollars. That represents, roughly, the amount of royalty revenue collected by Access Copyright from the educational sector in a given year. That money is intended, by law, to go to the writing and publishing sector. Name an industrial sector in Canada that can take an annual $40 million hit and stay standing. Realistically, that number will be much higher, since direct licensing will take as big a hit as collective licensing.

And you know, both sides will be paying legal bills for that decade. No one wins in this scenario.

Not so funny story — I was at a copyright law conference in early December. That’s what I do for fun these days. Several of the big free culture theorists were in the room, and one of them made an astonishing observation. He said he’d taken a quick look at some earning statements for a large multinational publisher, and he had to really question whether the Canadian publishing industry would really miss $40 million per year.

No word of a lie. That’s what he said. That is the level of unreality and misinformed thinking that has brought us to this “fair dealing” moment. The educational sector appears to be taking a flier on that kind of authoritative scholarship, and that is really just sad.


What would your personal recommendation be, if you could advise the government on this issue? What do you envision as a best case scenario?


Interestingly, even though the legislative moment on copyright is over, it’s really not. C-11 contains within it a five-year review. I have the feeling that five years from now writing and publishing will have a lot of damage to display to the government as a result of the new fair dealing category. If that’s the case, then my advice will be the same as it was when I appeared before the Senate on this issue. Please remove the educational category. It is completely unnecessary and terribly damaging.

But that’s five years from now. By then, my kids will be that much closer to law school and I’ll be shopping for a cottage. Fingers crossed.

John Degen is a writer, arts administrator and cultural commentator focused on Canadian arts and culture. Having published both fiction and poetry, he currently serves as the Executive Director of the Writers' Union of Canada, an organization that has lobbied for the rights of authors, educated authors about their rights and responsibilities and provided services for writers for more than 35 years.

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