During July-Sept 2009, the Government of Canada held public copyright consultations, with an eye to writing new copyright law. They asked for submissions addressing five topics.  Here’s one of my submissions, on “Competition and Investment“. It’s hard to tell what will become of these consultations. My submission did eventually show up on the official submissions page, but I still want to publish it for the record on my own blog.  I have two more submissions, “Copyright and you (me)” and “Copyright and the test of time“, which I published in recent weeks.

Q: What sorts of copyright changes do you believe would best foster competition and investment in Canada?

A: Three changes:

  1. relinquish Crown Copyright
  2. create legal structures for free culture, and industries based on it
  3. don’t take on the job of defending obsolete business models

Firstly, Canada (and all lower-level governments) should relinquish Crown Copyright. Instead, data which is gathered at public expense should be made freely available, in convenient digital form, to all comers.

An argument for Crown Copyright is that by limiting access, the Crown can charge money for access to the data, and thus recover the costs of collecting the data.   I challenge this argument. I believe that in general, the Crown loses money on the transaction. And by limiting access, the Crown prevents novel businesses based on the data.

I believe that the Crown would better serve itself and the economy as a whole by making the data freely available, in convenient digital form.  I believe that a variety of private parties would spring up to make use of the data, adding value to it and making business based on it.  These incremental businesses would pay incremental taxes, which I believe would generate more tax income and national wealth than the licensing fees the Crown charges now. And don’t forget non-profit uses of the data, which might not generate taxes directly, but do add to the collective value of the economy.

An objection is that some businesses might make a windfall by packaging and selling data which the Crown collected. The counter to this objection is competition. If the windfall is large, then there is an opportunity for another business to package the same freely-available original data, and sell it also. Competition will force prices down and choice up.

The United States federal government does not assert Crown Copyright, and I believe we can see the rich variety of ways in which private individuals and companies create value with publicly-gathered information. It is a good bargain.

As an example, consider the World Wide Webfoot Maps <http://maps.webfoot.com/index.php>.  These are census databases, drawn as coloured shapes on maps of the United States. It is an interesting, free service. But it covers the United States, not Canada, because Canada limits access to StatsCan census data, while the United States makes US Census Bureau data freely available.

Second, Canada should create legal structures for free culture, and industries based on it.  “Free culture” refers to creative and authored works which are eligible for copyright, but where the copyright holders decline to limit access, and in fact encourage re-use, in the interest of some larger good.

Examples of free culture are software licensed under the GNU General Public License, writings and arts licensed under Creative Commons licenses, and works contributed into the public domain at time of authorship.

Some examples of free culture are:

Canada should create legal structures which provide a solid legal foundation for free culture.  There should be Canadian law which makes it easy for license writers like the Creative Commons project and GNU to write licenses which accomplish free culture objectives. There should be a clear and easy way to dedicate a new work to the public domain, completely and irrevocably waiving all copyright. There should be a clear path into the public domain for copyrighted works, when their limited term of protection is up.

It is possible to build a business on top of free culture. There is value which a business can add to information which is free. A business can deliver information in a timely way to customers who care greatly about it. A business can tailor information to a customer’s specific needs. A business can certify authenticity or accuracy for a customer who doesn’t trust an uncertified and possibly wrong copy of some information.  For a very thoughtful analysis of this, see Kevin Kelly, “Better than Free”, <http://www.kk.org/thetechnium/archives/2008/01/better_than_fre.php>. His gist: “When copies are super abundant, they become worthless.
“When copies are super abundant, stuff which can’t be copied becomes scarce and valuable.
“When copies are free, you need to sell things which can not be copied.”

By providing solid legal foundations for free culture, Canada supports the rise of businesses based on that which cannot be copied. Such businesses will be strengthened, not undermined, by the changes driven by the digital revolution.

Thirdly and finally, Canada must not take on the job of defending obsolete business models.

A great deal of the noise and heat around copyright comes from publishers — the industry groups and major corporations of the recorded music, film, television, newspaper, and culture industries. It doesn’t come from the individual creators and artists, mind you, but from the middlemen. These industries became large and rich through business models based on large-scale distribution of physical containers of cultural works: bestselling books, hit records, mass circulation newspapers, and the like.

The technological shift from physical containers to digital information is eroding their business models. They have attempted to distort copyright law, to enlarge their commercial benefit at the expense of the public interest and the larger culture, as a way of increasing profits from their old business model, and slowing its erosion by the forces of the digital revolution.

They do not have an entitlement to protection from change.  Every industry sees business models rise and fall, and they are not exempt. It may well be that the digital revolution causes many of these particular firms and industries to fall, as they once rose.  That is as may be.  Canada should not allow its copyright law, its public interest, and its culture to be harmed in order to preserve eroding business models.

The government must use this revision of copyright laws to restore the balance between private control and public interest, in a way which embraces the implications of digital technology, with neither malice nor favour towards particular firms or industries.  Then, the firms which can find the new business models which suit the new realities of digital information will emerge and thrive.

Postscript: I don’t pretend that these ideas are particularly original; I mine heavily the ideas of  visionaries on the subject like Lawrence Lessig, Kevin Kelly, Richard Stallman, and Nina Paley. Nor do I pretend that I’m a particularly important exponent of them. The whole point of the consultation was to gather input from ordinary folk in Canada, and I do think that I am ordinary.  I see my role as swelling the chorus which is voicing these ideas to the Canadian government.

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