[D]uring the current Canadian federal election campaign, Canada’s television satirists have faced an issue that has never troubled “The Daily Show.” An agreement between Canada’s main television networks and its largest political parties blocks the shows from using film clips from the televised leaders’ debates (although the film is still available to conventional news and current affairs shows).

“It speaks for the parties’ great respect for the power of satirical shows that they would demand this,” said Roger Abbott, an Air Farce performer and writer.

Let’s get this straight. It’s OK for Canadian citizens to see a clip of the prime minister debating — if the person commenting on the clip is serious. But it’s not OK if the person commenting on it is making a joke?

This is a terrible precedent. (And yes, I think it’s a precedent even though I live in the United States.) It’s terrible because it chops off yet another piece of our historic right to fair use. Let’s review: Fair use means taking a small snippet of something (like 15 seconds of an hour-long debate) and using it in another context. A TV show doing something like that is obviously not trying to recreate the whole debate. They’re not competing with the producers of the debate, and they’re not making money by copying somebody else’s product. They’re making their own original work. That’s been legal for a long time, and it should stay legal.

Unfortunately, it sounds like the consortium of TV broadcasters that produce the Canadian debates made a Faustian bargain and gave up a big chunk of that long-established right to fair use.

[...]CBC spokesman, Jason MacDonald, who also speaks for the consortium, said that the rule dates back several years; the networks, he explained, agreed to the politicians’ demand in exchange for a promise that campaigns would not use debate clips in their ads.

Translation: TV stations agreed not to let comedians make fun of politicians, and in return the politicians promised not to…um…hold each other accountable for what they said in a public debate. Wait — how is that a fair trade? (Yes, I understand that politicians often use misleading clips in their ads. Even so, is that a reason to forbid their use?)

What’s most disappointing in this news story is the TV stations’ lack of backbone. Politicians running for office need TV a lot more than TV needs them. Instead of acting like professionals, the Canadian consortium seems to have rolled over and given up fair-use rights that have been established (at least in the U.S.) for a very long time.

Apparently the comedians came up with a makeshift solution:

Mr. Abbott said that Air Farce considered declaring itself a news program, but in the end its cast used one of its specialties – impersonation – to create mock versions of the debates.

Clever, but I wish they’d fought harder to use the clips. Every piece of ground we give up in the fight for fair and reasonable copyright policy is a piece we’ll have to re-take someday in the future.

Thursday, October 27
7:45 – 9 am
Parliamentary Restaurant, 6th Floor, Centre Block
more details here

This is an important effort. It looks like a thorough review of Canadian copyright law — which should go a long toward letting Canadians know what’s at stake, particularly with Bill C-60 still hanging around.

Kudos to Geist and the authors, as well as Irwin Law, for making this come together.

We usually don’t mention book releases on this blog — we don’t have anything against J.D. Lasica’s Darknet, for instance, we just weren’t sure about using our blog to plug it — whereas this is a direct follow-up to a conversation I had (and, therefore, to a previous post). The fact that it’ll be free under a CC license is a factor, too.

But Geist’s book is not just interesting reading: it’s a tactical dart in a political fight. Right now, Canadians are fighting Bill C-60, a proposed new copyright law that’s pretty nasty for consumers. In the Public Interest is aimed squarely at C-60, with detailed analysis of the bill (damning, I’m sure) — timed to coincide with the Parliament’s return to session.

MPs will have no excuse to accept unquestioningly the CRIA party line: In the Public Interest, on the contrary, should raise plenty of questions about C-60. Its supporters, in fact, may need to prepare to question everything. (CRIA, by the way, is the Canadian RIAA — even though many of the member companies are American- or European-owned.)

Bravo, Michael. Canadians, add this to your “recommended reading” lists.

If you’d like to start a Free Culture group at your university or in your area, please get in touch with our Canadian contact, Andy Kaplan-Myrth, at andy@itls.ca.

Two weeks ago, while I was in Ottawa, I had the fortunate chance to have lunch with three well-known names in the Canadian copyfight:

• Michael Geist, columnist and professor
• Marcus Bornfreund, project lead for Creative Commons Canada
• Russel McOrmond, self-made activist and sponsor of Digital Copyright Canada

I got to learn a bit about the state of free culture in Canada and hear their thoughts on Bill C-60, the proposal currently on the table to revise Canadaian copyright law. Michael was written fairly extensively about it – I won`t go overboard with links – but here`s a place to start: killbillc60.ca.

Needless to say, it was interesting to hear their opinions on the bill, and get a little insight into the “scene” here. I think it`s fair to say that it`s not exactly the best bill that Canada could hope for; on the other hand, if it were to pass in it`s current form, it`d be a far cry from the horror it could have been.

Later that week, I met Andy Kaplan-Myrth, a recent graduate of the University of Ottawa `s law school. I got to hear more about the differences between the situation in Canada and in the U.S., which issues are interesting and relevant to Canadians, and how to find interested students.

When I return to the States, I`ll spend a bit of time recruiting in Canada. Due to the geographical proximity and commonalities in language and legal system, those of us in the U.S. can do more to work with interested students in Canada than just about anywhere else. If you`re a Canadian who would be interested in working with a Canadian wing of FreeCulture.org, or have ideas about how to connect with folks in Canada, feel free to comment on this post.

Last week I met some of the agents in Montréal’s thriving libre scene: LUGs, commercial free software developers and consultants, non-profits (they call them NGOs) and ad hoc collectives. For example, the city owes much of its wireless Internet to ÃŽle Sans Fil (literally, “Island Without Wiresâ€?) which work s with small businesses, etc. to dispatch Linux-equipped Linksys routers.

A few people mentioned to me that in the past few years, these various groups have come together in a higher cohesion, working more closely together on their common interests. That makes me happy – and it’s needed, if we’re to withstand external threats and advance our common cause. (Of course, that’s part of what Free Culture groups aim to do, on a campus level.)

On Sunday, I attended a presentation by Richard Stallman, president of the Free Software Foundation and founder of the GNU Project. From what I understood of the event (my one-semester background in French means I’m at a bit of a disadvantage) it was very interesting. RMS proposed a 10-year copyright term – certainly a radical change from our current state (and not the only one he proposed, I might add). A part of me wants to cheer at the idea: boy, that’d sure solve a lot of problems! But I also wonder whether it might cause as many, or more, problems than it’d solve.

Copyright, of course, is a slippery beast. In the U.S. tradition, we have the Constitution to guide us: “to promote the progress of science and useful arts”. The trick comes in defining what, exactly, progress looks like. Certainly, open access seems like progress – but what if open access reduces economic incentives to create, or to make art and information widely available? I’m not saying that it does, but it might – some people certainly worry so. How do we know if it does? And if so, to what extent? Should we care?

So we’re faced with a challenge – one that might be as great as the fight to be heard over the clamor of the megacorporations, or to organize and mobilize our allies. That challenge is two-fold: to prioritize the rights that we want have (for consumers, for technology companies, for students and educators and libraries, for subsequent creators), and to examine the effects of granting those rights – in not just anecdotal or speculative terms, but through empirical historical, economic, and sociological study.

In short: We know that there’s something wrong with copyright. We need to know how to fix it. Proposals like Stallman’s are great for revealing the realm of possibilities, for making us think outside the box, for prompting us to wonder, “What if?” But we should not simply throw our support behind an idea simply because RMS posits it, any more than we should accept flatly anything Lessig says, or anything Hilary Rosen says.

We can some threats, and some failings of the current system: thus the concern with Grokster and with orphan works. But we’re making a mistake, and miscomitting our priorities, if we let those issues consume all our time without fully moving into a deeper consideration of copyright. There are certainly no-brainers in the quest to fix copyright, but many of us – probably most of us at FreeCulture.org – feel they’re something more fundamental that’s broken with the current system. This has something to do with the fact that in the history of copyright, rights have grown damn near exclusively in one direction – and their overall growth, over the course of their existance in America, is rather stunning. At its heart, copyright is a contract between the creator and the user; writ large, between the creative production machine and everybody else, including those who want to build upon past works. The bargaining position of the “everybody else” in that equation has grown in leaps and bounds, in the forms of electricity, mimeographing, home computing – you get the idea – but the social contract of copyright has asked them to give up more and more of the abilities they would otherwise have. We smell a rat, and rightly so.

But smelling a rat and knowing how to get rid of it are two different things entirely – especially when the people doing the rat-smelling care about ideals like democracy, openness, the public interest, participation, and minimizing harm. The process is made even more deliberate when the rat-smellers are often professors, laywers, students, tinkerers, thinkers: folks who value academic inquiry and the scientific process over knee-jerk reactions and power politics.

If the first stage of the free culture movement (lowercase) was its birth and rapid growth, and the second stage is its networking among various interests and outside the traditional technology sphere, maybe the third will be – or should be – taking a cold, hard look at the subjects we care about, and put forward real alternatives, based in real study. Take Internet governance: as the ‘Net becomes less dominated by the U.S., and as every doohickey and thingamajig go online, and as companies want to give their own data priority on their network, and as hacks and vulnerabilities become multi-million dollar events, we’re looking at some serious questions about the basis of the Internet. Trusted computing and DRM are marching boldly (some might say cowardly) forward. The decision-makers need to have evidence that goes beyond anecdotes and gut reactions. That’s not to say our gut reactions are neccesarily wrong; they may be completely right. But if we’re telling the truth when we talk about participation, deliberation, and overcoming the politics of fearmongering and FUD, then it’s time to start number crunching. It’s time to start digging up the research that’s been done and analyzing, breaking it down, seeing what it really means, how it applies, what it implies, what it assumes, what it leaves unanswered, what needs research, what needs corroboration, what needs clarification. And then it’s time to do it.

Only then can we count the cost. But even knowing the cost, we still have to know our priorities. Okay, so a 10-year copyright term would (probably) have these effects: is it worth it? It may be that we value wildly different things; or consensus may come easily, who knows. But without a bed of empirical research, we cannot expect the American people, let alone the world, to even lay down and chat about what they dream, prize, and fear.

And when we’ve counted the cost, and explored what we value, then we can make some informed decision about whether we want the big car that drives slow or the small car that drives fast. Real change does not happen without something changing: if we patch all the minor bugs in copyright, it will still be an ugly mess, with plenty of questionable “features”. If we’re serious about moving forward to the next version – and I think those who care about the future of expression, technology, information, and media should be – then we need to consider well what the next version should look like.

That means we’ve got to grapple with many different definitions of things like “progress” and “freedom”, and do and read all sorts of research we’d probably prefer not to. But we’ve got to – or else things stay the way they are. If the problems run as deep as many of us suspect, that shouldn’t be an option.

If that’s not a good Sunday night out, I don’t know what is.

If you’re going, or you’d like to help me with set-up for the event, drop me an email at grbaker@ufl.edu.