Does copyright have to be “trade policy”?

Posted on August 25, 2012 by bhaggart

Nice to see that my longtime friend Keith Serry has started a law blog focusing on “the business of creative people (and in helping creative people stay in business).” That positive focus – asking how can we help the people who need it – will, I hope, be a welcome antidote to the attack-dog postures that characterize so many copyright-focused blogs.

His first post, “While Copyright (still) Doesn’t Matter,” grapples with a key tension in copyright law: it’s justified as the means by which creative work happens, but in practice,  “Copyright is about the movement of large amounts of product and money; it’s written by and for those who can afford expensive lawyers to fight over the wording of tariffs.” And while he sees that focusing on legal minutiae can be the death of creativity, he also worries that emerging artists’ neglect of copyright law will limit their ability to feed themselves.

Copyright may be “trade policy,”* as law professor Sunny Handa notes, but Keith says it doesn’t have to be that way:

Furthermore, I can’t help but wonder if the laws would just look better — more of a human scale, more encouraging and supportive of creativity and less about the brute-force movement of money and product — if more real people used them. The Highway traffic act accounts for pedestrians, cyclists, mini-vans and transport trucks because all of these parties have expressed their interest in the outcomes of those laws by voting with their feet (and wheels).   When creative people — the nominal targets of intellectual property law — cede the use and understanding of that law to the large-scale creative economy, the ability of that law to reflect their needs is bound to be reduced.

This just happens to dovetail with my own research into the politics of copyright. As Peter Drahos and John Braithwaite, among others, remind us,** it was only in the late 1970s that U.S. legislators began treating copyright as trade policy. Given sufficient political will, it can be reformed, replaced or eliminated completely. As Keith notes, making the law (intellectual property, copyright or whatever) more useful to the artists it’s supposed to help requires that they understand the law.

Changing copyright law to make it more responsive to artists’ needs, however, involves more than just artists “voting with their feet.” It requires that artists become politically involved and lobby to make the law reflect their own interests. That’s a tall order, but there’s no way around it. Either you speak up, or someone speaks up for you.

There’s a lot to unpack in Keith’s short post. I look forward to seeing how he develops these ideas. Stay tuned.

 

 

* Actually, copyright is about both creativity and trade. It would be more accurate to say that copyright is an economic policy that shapes creative production. (And in that phrasing, my economics background is laid bare.)

** Highly, highly recommend that you read this book (the link is to a legally available pdf of Drahos and Braithwaite’s Information Feudalism). It’s one of the best books on the political decisions that created the intellectual-property laws we have today.

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Hubris and misdiagnosis in Burney and Hampson’s “How Obama Lost Canada”

Posted on June 27, 2012 by bhaggart

I see Derek Burney and Fen Osler Hampson, both of the Norman Paterson School of International Affairs at Carleton University, have an article in Foreign Affairs with the provocative title “How Obama Lost Canada” (h/t Michael Forbes). It takes the Obama Administration to task for its “mistreatment” of Canada on a number of issues, and ends with a prediction/threat that if the United States doesn’t shape up, Canada will take its oil to China.

It looks like I’m not the only one to find it a bit odd. Chris Sands finds their argument “overly defeatist” and wonders if their complaining may backfire come November, leading Obama or even a President Romney to wonder “if Canada can ever be satisfied, and whether it is worth devoting so much attention to the Harper government and its priorities.”

It does, however, gives us some insight into current Conservative attitudes toward the United States (Burney is tight with the Harper government). It seems more like a political shot across the bow of the Obama Administration, rather than a sound political-science analysis.

Commentary below. First, the Airing of Grievances:

  • The Obama Administration “caved to environmental activists” by postponing a decision on the Keystone XL pipeline for a year, a “triumph of campaign posturing over pragmatism and diplomacy.”
  • Obama has engaged in “protectionism,” violating “the substance and spirit of the North American Free Trade Agreement.”
  • “It [the Administration] failed to combat the Buy American provision in Congress’ stimulus bill, which inefficiently excluded Canadian participation in infrastructure spending.”
  • Canada has had to cover the initial cost of the new, and sorely needed, Detroit-Windsor bridge.
  • The Administration has failed to build on NAFTA to expand trade and economic integration in North America (which, for Burney and Hampson, doesn’t seem to include Mexico).
  • “When Canada ran for a nonpermanent seat on the UN Security Council in 2010, the United States offered little support.”
  • The United States rejects Canada’s claim to the Northwest Passage.
  • It has ignored the government’s attempts “to find consensus on climate change.”
  • Canada has received “no tangible dividend for its support on bilateral or multilateral issues of concern to it” – support that involved over 150 Canadian soldiers’ deaths (maybe the Americans were annoyed by the substance of Canada’s work in Kandahar?), and in Libya.

And so on.

That’s a pretty damning bill of goods, isn’t it? And yet somehow I find it hard to work up any righteous indignation. At all.

Much of it is the flipside of articles we saw during the Chrétien-Bush years: complaints that the one of the two countries isn’t adopting specific policies, and predictions that this would lead to a fraying of the North American relationship. Back then, the target was the Liberal government of Jean Chrétien, and people like Jack Granatstein were claiming that Canada’s economic interests would be harmed by Canadian refusal to sign on to ballistic missile defence. AFAIK, the Canadian economy is still standing. Readers are invited to contribute examples of how Canada was punished economically for not providing the United States with moral cover on BMD.

Some of the things on this list tell us more about what type of policies Burney and Hampson – and, I’m betting, the current Conservative government – like (Keystone, deeper economic integration) and don’t like (Buy American) than about the state of the relationship.

Others are just odd. If the Canadian government believes that the U.S. government is violating “the substance” of NAFTA, they should put their money where their mouth is and sue the United States at the WTO or under one of NAFTA’s dispute-resolution mechanisms.

As for Canada’s botched run at a Security Council seat, David Frum thinks that it was the result of a deal with Brazil to get Colombia on the Security Council. Others (linked above) think it has to do with Canada’s belligerent foreign policy annoying the countries whose votes it would need to get on the Council. We can’t know for certain, but we can’t just assume it’s because Obama doesn’t care about Canada.

I’ll leave it to others to debate the assertion that Canada’s “participation in those countries [Afghanistan and Libya], proportionately larger than any other ally, was intended primarily to strengthen the partnership with the United States on the theory that solid multilateral commitments would engender more productive bilateral relations” (emphasis added). (Maybe if the Americans hadn’t been dissatisfied with Canada’s work in Kandahar… .) The very least that can be said is that that certainly didn’t work out, and then to try to figure out why it didn’t. Burney and Hampson attribute this lack of payoff personally to Obama (wasn’t Bush in power from 2006-2008?), but I doubt that any serious political scientist would accept that as an answer.

(The very most that could be said is that if I were the widower or widow of a Canadian soldier who died in Afghanistan and an advisor close to the Prime Minister told me that my partner died in order “to strengthen the partnership with the United States,” I would be so far beyond livid you couldn’t find me on a galactic map.)

Oh, and should anyone – anyone – be surprised that the United States would be critical of Canada’s “long-standing claims to the waters of the Arctic archipelago, including the Northwest Passage”? Really? Especially considering that the United States is not alone in arguing that it’s an international strait? Not only is this dispute a pure example of what we mean when we talk about national interests, but Canada’s actions here suggest that maybe – just maybe – disagreement is a two-way street. It takes two not to tango.

The biggest problem with this piece is how it personalizes every rift in the Canada-U.S. relations as an Obama problem. It’s not. Rather, much of the rest of the list, maybe all of it, seems to reflect an unwillingness to come to terms with an absolutely fundamental characteristic of North America under NAFTA.

Luckily, we can do better explaining the current state of the Canada-U.S. relationship than “Obama doesn’t care about us.” A better explanation is that domestic politics trumps regional politics – in all three countries. Point final. Former U.S. Ambassador to Canada, Paul Cellucci, famously said that “security trumps trade” in Canada-U.S. relations, but it’s more accurate to say that domestic politics trumps regional politics. Most everything on Burney and Hampson’s list can be attributed to the reality that Canadian, American and Mexican politicians have to keep their voters happy.

You might not like that reality, but there it is, and it’s incumbent on policy makers and analysts to come to terms with it when designing and advocating policies.

“Caving” to “environmental activists” by delaying a pipeline decision by 12 months is not only not much of a cave, it’s also smart politics if you need that group’s support to win an election. With Buy American, the main question is whether there is a domestic constituency to support provisions that would weaken it. As I’ve noted elsewhere, you can be disappointed by these outcomes, but they should surprise no one who studies the United States and North America.

What’s most surprising about so much of the indignation over examples of Canada and the United States not working in concert on issues or having different priorities is that this was the way it was meant to be. The Canada-U.S. Free Trade Agreement, and later the NAFTA, were explicitly designed to allow all three countries to retain sovereignty within their Parliament and Congresses.

And while many pro-deeper-integration folks see this as a bug, it’s probably the smartest thing that the designers of NAFTA and the original FTA did (that’s an indirect compliment for Burney, who was directly involved in the FTA negotiations as Progressive Conservative Prime Minister Brian Mulroney’s chief of staff). The slo-mo meltdown of the European Union is due in part to the fact that its economic and monetary union is not matched by a fiscal union. Since fiscal union (think transfers from a central government to economically troubled areas) was never in the cards for North America (just as it remains a hard sell in Europe, whose very survival may depend on cobbling together something like it), a free-trade agreement was likely the best possible framework for North American integration. That it is very, very, very (very) difficult to take it further (see: Security and Prosperity Partnership) may be too bad from some perspectives, but it sure beats the alternative: think Greece and economic depression, not SuperContinent.

To the extent that these grievances are worth complaining about, they’re mostly the result of the political structure of North America: three sovereign countries linked by a trade agreement. It’s hardly fair, or accurate, to single out Obama as having “lost” Canada. Put a Republican in the White House and an NDP leader in Ottawa and you’d likely have the same problems. Just picture what PM Mulcair and President Romney would have to say to each other over the environment and the pipeline. Beyond that, Canada and the United States will continue to disagree on fundamental issues like ownership of the Northwest Passage no matter who’s in power. And domestic politics will continue to trump regional politics.

Empty threats and hubristic solutions

That Burney and Hampson’s list of grievances is shaky and can’t be blamed on Obama suggests that their piece is more polemic than analysis. But if you want to sell your natural resources and increase your trade numbers, and you’re frustrated with the limits to North American integration, then it still makes sense to do something. Here, Burney and Hampson trumpet the approach of the current Conservative government.

This is the first time in history, they argue, that Canada doesn’t have to fix its relationship with the U.S. when things go sour between the two BFFs:

Back then, Canada had little choice but to find a way to fix its relationship with the United States, the only game in town. Ottawa is in a different position now. Today, it enjoys a respectable platform of self-confidence, having weathered the financial crisis and ensuing recession far better than the United States. And unlike in the past, Canada can now look beyond its own neighborhood for economic opportunities – especially to the rising economies of Asia.

And they end with a bit of a threat:

Canadians are accustomed to benign neglect from a neighbor preoccupied with more urgent global flashpoints, but since that neglect has grown so much as to be malign, they have begun to reappraise their relationship with the United States. As Canada develops closer ties with China and finds more receptive outlets for its exports, the United States may find itself with a less obliging partner to the north.

Let’s leave to the side whether, in an article on the United States’ neglect of Canada, it’s wise to toss out terms like “malign” to describe a relationship from which Canada (and the United States) still benefits immensely and from which it can never, ever extricate itself. Remember all the hand-wringing when Jean Chrétien’s press secretary called George W. Bush a “moron” and a backbench Liberal MP referred to Americans as “bastards”? It’s rarely a good idea to turn policy disagreements into name-calling contests. It was true then, and it’s true now.

And a bit of perspective, please: When it comes to the Canada-U.S. relationship, this is essentially an argument about rounding errors.

Anyway, the threat. It relies on the assumption that Canada has been an “obliging” partner in the past. Well, if by “obliging,” you mean “following the U.S. lead when it is seen to be in Canada’s interest,” then, sure. But, as International Relations scholars of the realist persuasion will remind us, governments don’t go along with each other just to be nice, and Canada is no exception. When Canada decides something isn’t in its interest, it won’t play ball, even with the United States (see: Northwest Passage). To put it charitably, threatening to be a “less obliging partner to the north” is an empty threat based on a false dichotomy.

But what about the policy response? The government’s newfound interest in foreign markets isn’t necessarily a bad one: creating new, non-U.S. markets is an interesting and potentially useful Third Option (minus the industrial policy and cultural support). Diversifying the Canadian economy could lead to more situations where Canadian and American interests do not line up, which might count as being “less obliging.”

The problem is with the thin legs of the Conservatives’ Third Option, which is linked to the hubris that permeates the piece. First, I’m not sure that I’d accept “lack of self confidence” as an answer to an essay question asking: “Why did the Trudeau government fail to diversify exports away from the United States in the 1970s and 80s, and why did the Mulroney and Chrétien governments negotiate and implement the FTA and NAFTA?” Maybe there are limits to Canadian trade diversification?

Canada’s “respectable platform of self-confidence” is built on sound regulation of its financial sector (itself closed off from continental integration) and high oil and commodity prices. But (and here’s where the hubris comes in): prices rise and fall. Resources boom, they bust. Demand can collapse, even in markets like China (this might be happening right now). My greatest concern with Burney and Hampson’s ultimate policy response/rationale is that, absent an industrial policy and focus on maintaining and increasing the diversity of the economy, Canada’s status as a “less obliging partner to the north” will last exactly as long as the commodity boom doesn’t go bust.

Burney and Hampson remark that “the Keystone XL pipeline will probably be approved eventually” – but that “it will take a long time to undo the damage its delay has done to U.S.-Canadian relations.” I’m betting that it will take as long as a commodity slump and Chinese recession, or until Canada needs something from the United States. Then we’ll be back to plan A – the need for good, productive economic relations with the United States – and nothing but hard feelings to show for the detour.

If the audience for “How Obama Lost America” is Washington policy makers, and its goal is to signal that the current Canadian government is not happy with how it is being treated on the Keystone XL file, then mission accomplished, I guess. Though I am skeptical that its implied threats will convince anyone in DC to override domestic partisanship and interests to support Canadian interests as they’re presented here.

As a piece of analysis, however, it fails to come to terms with the nature of the problem: it’s the political structure, not the president, that’s driving things. And while diversifying markets is all well and good, so much of their response seems predicated on the assumption that boom times will last forever that it makes me wonder whether Canada actually holds a straight flush or whether Burney and Hampson have misread their cards.

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Some stylized facts, two assertions, and one question about copyright and file sharing

Posted on June 21, 2012 by bhaggart

It seems that one of my alt-rock heroes, David Lowery*, has managed to spark a debate over how musicians fare in the brave new world of digital distribution and file sharing. That’s a good thing because creators are all-too-often taken for granted in the copyright debate, although (as you’ll see below) I think that framing file sharing as an ethical issue is not a great way to move this debate forward.

Since his argument has already sparked tons of commentary, I’m going to take this opportunity to organize my own thoughts on the stylized facts that I use when thinking about copyright, which is the law that regulates file sharing. (I’m also preparing some lessons on copyright/IP for the courses I’ll be teaching this year, so this exercise counts as preparation, not procrastination.)

So much of the general copyright and file-sharing debates is plagued by people talking past each other in absolutist, moralizing language that it’s hard sometimes not to curl up, whimpering, under my desk. Part of the problem is that people are working from different assumptions, which means it’s really hard just to get past the “downloading is theft”/ “no, it’s infringement” tediousness.

So, here’s where I start from when I write and talk about copyright. I’m betting that at least one of these points will be controversial.

Some stylized facts:

  • The goals of copyright are twofold: to achieve an optimal level of creative production; and to maximize dissemination of creative works.
  • Copyright law assumes a) that monetary remuneration is required as an incentive to creative production; and b) that providing property rights in creative works is the best way to achieve this objective.
  • Property rights are never absolute – there are always some societally set limitations on an owner’s rights in her property. For example, police can enter your house with a search warrant.
  • We have different property regimes for different things. Some things are clearly private property (apples, oranges), others are held in common (public parks).
  • We can judge the effectiveness of specific property regimes based on empirical criteria (e.g., does copyright allow society to optimize the production and dissemination of creative works?).
  • Copyright is a policy designed to achieve a society-wide objective. It is not designed to improve the conditions of any one group.
  • Copyright is not designed to ensure artists’ remuneration, any more than laws protecting private property are designed to ensure that workers get paid. It is designed to ensure that an optimal level of creative production is reached, and that these works get distributed.
  • Different modes of production, like different types of copyright laws, always create winners and losers.
  • Both what can be copied and by whom are set in law as the result of a political process. Neither is set in stone.
  • Economic theory teaches us that we should only count something as a lost sale if the person who downloaded the work would have paid for it at or above the offered price. This is why you can’t translate the number of downloads of a song directly into a finding of lost revenue.
  • Copyright is only one possible tool we can use to regulate the market in creative works.

Two assertions:

  • Copyright, and the effects of file sharing, should be judged on whether they achieve specific societal objectives. This requires empirical evidence.
  • Discussing copyright in terms of ethics or morality is a sure way to guarantee an unproductive debate. Where do my rights end and yours begin? How do we judge who has the prior or best claim? Philosophers have been debating morality and ethics since the time of Socrates. If we haven’t come to an agreement on what’s moral by now, maybe we should move the argument onto more solid, evidence-based grounds. It’s my sneaking suspicion that debates about ethics are usually about something else.

One question:

  • If we had a livable guaranteed annual income in Canada (or the U.S., or wherever) (a policy promoted by Conservative Senator Hugh Segal, among others), would critics like David Lowery still be concerned about file sharing?

That’s my chain of reasoning. Thoughts, additions, critiques welcome…

 

* I’ve been following Lowery and his bands Cracker and Camper van Beethoven for, wow, almost 25 years now. (If you like either band, you should check out his recent, excellent solo album.) Back in my undergrad days, I interviewed him twice. He was always good for a quote, my favourite being when he asked me how I felt that Canadians were basically just sober Australians (I was too star struck to have a witty reply). It’s a line I used a lot during my time at Australian National University. As the arts editor at my university student paper, I commandeered the office tape deck (ask your parents) and played Kerosene Hat nonstop for a month and a half, and staged a mini-coup to have Cracker declared the paper’s official band. I don’t think our editor in chief ever forgave me for either incident.

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Looking past the easy targets: Miles Corak on the cancellation of the Survey of Labour and Income Dynamics

Posted on June 19, 2012 by bhaggart

It’s easy to be a critic: find something that annoys you and explain why you don’t like it. From the early Usenet flame wars, complaints and criticisms have been one of the Internet’s killer apps.

It’s much, much harder to explain why you don’t like something while placing the issue in its proper context without resorting to ad hominem attacks, and then to propose a way of looking at the problem in a way that  attacks the underlying issue, not the surface symptoms.

All this to say, go read Miles Corak’s excellent kinda-eulogy for the longitudinal Survey of Labour and Income Dynamics, the latest casualty of the Conservative government’s government-wide cutbacks, and which follows the cancellation of the mandatory long-form census. As someone who’s used SLID, this definitely seems like a really bad idea.

It would be very easy to start and stop with a comment about how this fits with the current government’s well-documented dislike of empirical, evidence-based policy. And there’s certainly some truth to that.

But Corak doesn’t go there. Instead, he essentially argues that the real problem may be that, as a government agency with a one-year budget horizon subject to political whims, Statistics Canada isn’t the best placed agency to handle projects with time horizons that stretch beyond electoral cycles into decades. This means that even throwing the bums out wouldn’t solve the underlying problem. New boss, meet old boss and all that.

Looking beyond our borders (always a good idea), he notes that long-standing SLID-like projects in the UK, the US, Australia and Germany are all funded by universities or arm’s length funding bodies:

As Canadians embark on another experiment in longitudinal survey taking they should have confidence that Statistics Canada will design and manage the technical details in an efficient, effective, and indeed innovative way; but past experience, both here and abroad, may also make them wonder if the managerial structure and financial responsibility is designed to match the long-term horizon these data require.

Left unasked but implied in this quote is: given this state of affairs, how could Canadians organize such a survey outside of Statistics Canada? I don’t know the answer, but it’s a useful and productive way to frame the debate. 

Anyway, check it out.

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Canadian copyright and the rise of user rights

Posted on June 19, 2012 by bhaggart

With Bill C-11 (legislative summary) moving ever-closer to Royal Assent, Michael Geist has a must-read post about how regular Canadians’ helped to make the final Conservative bill a lot more user-friendly than they had planned way back in 2007. For those wanting a quick summary, Geist also provides a handy table charting how various provisions in the bill changed between the aborted 2007 bill and C-11.

The key take-away:

The first five issues [in the table] – fair dealing, time shifting, format shifting, backup copies, and user-generated content – are all user-focused reforms. None were the source of serious interest from the major lobby groups (even education groups were initially more interested in an Internet exception than fair dealing reform). None were included as part of the pre-Bill C-61 approach and just two appeared in limited form in Bill C-61 itself. Yet as the public became increasingly engaged on copyright, the government shifted its approach and added these provisions in an effort to address their concerns. The importance of these provisions should not underestimated. For example, the non-commercial user-generated content provision contains broad protections for individuals and websites that host the content.

As Geist notes, in a previous post I commented that what stood out for me about the evolution of the Conservatives’ copyright bills was how little had actually changed. And, certainly, on the key issues that I’ve focused on – namely, ISP liability and digital locks – this 2012 bill might as well have been passed in 2007. Very glass-half-empty, in other words, when it comes to the public’s effect on C-11.

I think it’s not so much that I disagree with Geist but that we’re weighing things differently. Digital locks were a (maybe even the) main focus of many user-rights advocates. Given this focus, I think it’s fair that some Canadian user-rights advocates are  disappointed with the bill. As Geist notes in the post, “There is no sugar-coating the loss on digital locks” (Seriously, read it. It’s a good summary of the debate.)

But, as Geist notes, this doesn’t mean that the whole bill runs roughshod over user rights, even as it didn’t go as far as it could have. It’s definitely it’s not the total triumph that the U.S. SOPA protestors got in January when they managed to stop SOPA in its tracks, despite the very strong desire of many legislators – all of whom have real power – to move it forward. In that sense, as I argued previously, C-11 shows us the limits of social-media activism within the Canadian political system: It can’t move the immovable object (see Harper, Stephen on digital locks).

Lucky for us, Canadian politics isn’t all immovable objects. As Geist notes, C-11 is about more than digital locks and ISP liability. He’s right that the new user rights he lists represent a victory of the Fair Copyright for Canada movement. In a nutshell, no movement, no new rights. That’s pretty impressive and a real accomplishment for all those involved. It could even very well be that in real life these new user rights will turn out to be more important than the digital-lock provisions, in which case it’ll look even more impressive in hindsight.

Most importantly, this isn’t a one-off thing. There will be other copyright debates (hello, Access Copyright debacle!), and user rights will be front-and-centre in all of them. In politics, where nothing is ever settled forever, that could be the user-rights’ lobby’s most enduring contribution to Canadian copyright policy.

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