Copyright Consultations – Hurry!
There are five days left in the federal government’s copyright consultations. Go make your voices heard!
For more info, see Michael Geist’s info page: Speak Out on Copyright.
There are five days left in the federal government’s copyright consultations. Go make your voices heard!
For more info, see Michael Geist’s info page: Speak Out on Copyright.
The Government of Canada is holding copyright consultations, which you can answer by sending an email to the this address [info AT copyrightconsultation DOT gc DOT ca] which answers the following questions:
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?
Visit here for more info & to submit your responses.
Michael Geist has posted his short answer.
My short answer would begin by noting that the five questions can really be grouped into three key issues:
Why does copyright matter to you?
How can the government ensure that copyright reforms remain relevant in the long term?
What specific reforms should the government prioritize (having regard for creativity, innovation, competition, and the digital economy)? [more…]
Brett’s swinging copyright film RIP: A Remix Manifesto is now a pay-what-you-want download.
Brett’s movie, RIP: A Remix Manifesto on the BBC:
Canada’s feisty copyright lawyer, Howard Knopf, explores how good intellectual policy could help Canada thru the economic mess:
Most governments are now taking decisive steps towards decisions on and implementation of major stimulus/investment packages to rescue, resuscitate and even reinvent national and international economies. Canada, apparently, is going about this in its own way, with no such decisions yet announced. In Canada, things are actually getting “curiouser and curiouser” as we head towards a political crisis.
However, following the Rahm Emanuel maxim that “Rule one: Never allow a crisis to go to waste”, here are some bold ideas that would probably never fly or even be seriously considered in normal times in Canada about using IP and IP policy to help fix up the economy. Some of these would require legislation or regulations. Some would not and would only require sufficient leadership, will and skill at the political level – which are not necessarily any easier to come by [more…]
From Michael Geist:
I’m doing a Master’s in Concordia Media Studies program, or at least part of a Master’s (taking just one class at the moment). Below is a paper I just wrote for the Media Theory class I am taking (with Charles Acland). After doing much writing in the past years – blogging, novel writing, article-making, it was strange to have an actual assignment with rules. This is a “synthesis paper” that is supposed to analyze three papers, and make them “speak to each other. ” What came out was something a bit more polemic, and I had some trouble shoehorning in ideas from one paper in particular. Anyway, here it is. For posterity. Comments welcome.
The serious contenders for organizational models of Western societies have more or less fallen away since 1989 leaving some form of liberal democracy as the only viable option for now. The pitched battles of the 20th Century between democracy and the big isms (fascisim and communism), have shifted somewhat onto home turf, with the role of the public sphere itself questioned, and in many cases diminished. At the same time there has been a countermovement protecting and growing the public sphere, in particular on the web where production and distribution of independent media – from blogs to music to film to encyclopedia – has fractured the dominance of some of the entrenched powers that control the public sphere.
At heart this is an ideological struggle, about the value of the public sphere as a legitimate tool or platform for the creation of societal good. On the one hand, there are what Nancy Fraser calls “civic-republicans,” dedicated to debating together in the service of the common good of society; on the other, “liberal-individualists,” who think that the common good is best achieved by reducing (government, public) interference with the choices of individuals (Fraser, 20).
Particularly in the past decade we’ve the liberal-individualists ascending. There has been significant erosion of the public, through shifting of power, responsibility, and even respect from what once was called “public” into the other spheres. The examples are numerous especially in the United States, where the battles have been most pronounced: the corporate encroached on public defense in the form of military contractors; the political ate into public lawmaking and regulation with politicization in the US Department of Justice, and scientific independence at the Environmental Protection Agency, and other public institutions; “free-markets,” private actors and corporate self-regulation were chosen over public oversight in the lead-up to the economic meltdown of 2008; and the role of “community organizers” was dismissed as unserious at this year’s Republican National Convention. In all these cases, an argument has been made that private/corporate/political actors are “better” at producing societal good than are the quasi-governmental agents of public sphere. (Whether this is a true ideological position, or a cynical manipulation for benefit of the few is beside the point – in the public debate on the question, a large percentage prefer private/corporate to public).
While we’ve seen this kind of questioning of the value of the public, there has been another battle emerging in the true Habermasian public sphere of discussion and ideas, in the form of regulations surrounding the Internet, particularly on copyright and net neutrality, two fundamental principles that have seen the flourishing of a public sphere on the web. On both counts, there is a powerful movement seeking to cordon off the public space of the web – mainly for commercial reasons. Such actions may result in radical alteration of the public sphere of the web: a reduction in the ability of all members of society to equally access the idea distribution mechanisms of the Internet; and the locking down of ideas and information through draconian copyright laws.
We have seen many segments of the public sphere under attack – both the official public, tasked with “enforcing the public good,” and the public idea sphere itself, the space where discussions and deliberation about the common good are supposed to happen. The attack comes from many different angles. One ideological underpinning, championed by free-marketeers, deregulators and the libertarian-leaning on the right of the spectrum, is the belief that the “public good” is best served by self-interested individuals, and not by a concerted effort of “society” (read: “government”) to engineer public good on the public’s behalf.
So given the tenuousness of the public sphere today, it’s worth asking a few questions: Is the public sphere still important? If so, why? And if so, what should we do about it?
By 1962, Jurgen Habermas was already describing the death of the idealized public sphere of the liberal era (18th and 19th Century), a time when members of the (bourgeois) public conversed and wrote and debated about the good of society. Indeed, as the bourgeois public gained power, control of the public sphere meant control of the mechanisms of democracy. The result was transformation of the traditional delineations of public, private, corporate, and political. The public gained new responsibilities (through governmental and private associations) for areas previously the responsibility of families: unemployment insurance, health insurance, retirement plans, and the other social mechanisms of the (public) welfare state. As these new public institutions expanded into the private, however, they established themselves “above the public whose interest they once were” (Habermas, 176). The role of the private family was eroded: it was no longer a central economic unit, but rather a consuming unit; and further the family disengaged completely from the “social labour context,” with the former public role of the family disappearing entirely (Habermas, 154).
At the same time the public sphere of ideas was invaded by the consumerist media. For Habermas this was the most significant shift, as the space for debate and deliberation about public good was turned over from the true public, to a “pseudo-public, or sham-private” world of cultural consumption (Habermas, 160).
The resulting society, more striking now in 2008 than it was in 1962, was one where decision-making “takes place directly between the private bureaucracies, special- interest associations, parties, and public administration. The public as such is included only sporadically in this circuit of power, and even then it is brought in only to contribute to its acclamation.” (Habermas, 176). Namely: in the election process, some portion of society gives a tepid benediction to a government that implements actual policies with little or no input from society itself.
The reasons for this state of affairs is fairly clear: in a democratic society, access to power is delivered through the vote, and the process of voter decision-making happens largely in the public sphere, where the options, choices, flaws and advantages of various candidates and policies are (supposedly) debated. So control of the public sphere is essential for access to power in general. Dominant forces will always vie for dominant control, and in the case of democracy, control is found by dominating the public sphere through whatever means necessary: through special interest groups, lobby groups, PR firms, media outlets, religious institutions, think tanks, as well as the more official tools of public infrastructure: schools, economic policies, environmental regulations etc.
The dominant group of the twentieth century were the spiritual descendents of the “bourgeoisie,” and they have succeeded in defining debate and discussion in the public sphere according to their interests. The public sphere, by virtue of the power of dominant groups, necessarily has become less about “the good of society” and more about “the good of the dominant groups.” Hence, media, public institutions, financial regulation, even armies were turned over, with general approval of this “public sphere,” to a smaller subset of the dominant group, with the inevitable concentration of power and wealth as more of both were grabbed by the dominant (whose dominant status inevitably leads to greater power). Most recently, the liberal-individualist faction of the dominant group has succeeded in transferring vast amounts of public power and wealth into corporate and private hands.
It seems apparent (to some anyway) that the faith in self-interested actors alone to generate the best outcomes for the “public good” have been misplaced, by any number of metrics: bungled Iraq, problematic Katrina, and most devastating, the recent economic melt-down. Still, the question is far from settled in the public at large. The debate about the value of the public sphere still rages, even as the concept of the “public” has regained some currency in the recent strong moves of governments and central banks around the world to inject some public stability into the shaky foundation of the private/corporate financial system, left too long outside public control. The former US Federal Reserve Chairman, Alan Greenspan, a long-time champion of anti-public deregulation, has issued his mea culpa, and to some extent the tides seem to be turning back to the civic-republicans (Andrews).
Into this late 20th Century mix came a new medium which made for a different kind of public sphere from that which had come before: the Internet. The Internet, coupled with technological innovations that have come to be known as Web 2.0, meant that everyone with access to a computer and the web could easily, and essentially at zero cost, distribute ideas, arguments, facts, and opinions not just to a local public, but to the entire world. Habermas’ complaint about the “new media” of the sixties, that it deprived the public “the opportunity to say something and disagree,” had found an answer (Habermas, 171). With the new tools of the web – blog, podcasts, digital video, wikis and the rest – the entire world could in theory not just answer the traditional media, but make their own, and rival the established giants who had dominated the media landscape for the previous half-century at least. The first most striking unseating came at the hands of Wikipedia, the “encylopedia anyone can edit,” that, regardless of opinions of its quality, undoubtedly is the most used encyclopedia in the world right now, probably the most used encyclopedia in the history of the world. Blogs came to challenge journalism, though rather than unseat the mainstream, they’ve served instead as a public counterpoint to the corporate pseudo-public media, holding them to account through rigourous (and often politically opinionated) fact-checking, answering and disagreeing as Habermas would have hoped.
Not just in content creation has the web affected media,; it’s also opened up a range of choice for the general public – which was previously beholden to the editorial decisions of the few big media corporations that controlled a constantly-growing percentage of mainsteam-media producers. Access to media from all around the world, the explosion of independent and previously-unheard media producers on the web, added to the already proliferating array of quasi-public groups, including non-governmental organizations, social activist networks, lobbyists, special interest groups, and countless others now defines our current public sphere.
Whether or not Nancy Fraser’s “plurality of competing publics” is a desirable conception of the public sphere becomes almost beside the point: it’s out of the bottle, and it’s almost impossible to imagine how it might be put back in. Not that there is any desire to do so. Habermas’ polite gentlemen smoking cigars and discussing the “good of society” was an (idealized) anachronism in 1962; in 2008 it’s unimaginable. This is the motley shape of our contemporary public sphere: a sphere where bad US mortgages topple French investment banks; where a central Canadian election issue is how the country will reduce emissions of greenhouse gases to meet international obligations for a treaty signed in Kyoto; where a months-long commission inquiry in Quebec discusses what sorts of things immigrants should or should not do when they come to this province; where a major controversy arises in Toronto when the school board approves a black-only high school; where international trade deals govern our economic health; and where an ever increasing amount of the goods we consume come from elsewhere, while we sell more than ever of our own production onto export markets; where hundreds of millions of individuals fill the web with writing, images, videos and audio every day.
A plurality of publics is what we have, and it’s fair to say that we’ve arrived here for precisely the reason Fraser suggests: a single “public sphere” just won’t cut it. The public sphere is still the seat of political decision-making, flawed though it might be, and so all these groups – from the oil lobbyists to the homeless activists – all these publics or counterpublics or subaltern counterpublics are required to represent themselves in the public sphere if they wish for their needs to be met, or even heard, by the machinery of power.
The Internet gives instant global distribution to any counterpublic which can and cares to use it. In a sense the Internet offers the utopian promise of the liberal democracy’s free marketplace for ideas, where in theory race, class, colour or creed need not have any impact on how one’s ideas are viewed. (The reality is something different: the Western experience is that the overwhelming majority of those producing content for the web are the modern equivalent of the Bourgeoisie; though the explosion of web use in China, and the innovative use of mobile technologies in Africa suggests that Western middleclass dominance of the digital communications may well be fleeting).
In any case the actual and potential importance of the web is significant, as a space where individuals and counterpublics have the ability to create and distribute their own media, define their own issues and their own experience. The web might offer a cure to the malaise identified by Negt & Kludge: that those excluded from power have their experience defined for them by a public sphere (media, school, political parties etc) controlled by those with an interest in continued dominance (Negt & Kludge, 65, 70). In fact, without a true and vibrant counterpublic sphere, the powerless life-experience is “split in two halves,” one half contributing to the consumer culture that supports the dominant; and another half “disqualified” by the dominant systems of society (Negt & Kludge, 76).
The web offers one space where, in theory anyway, counterpublics can and will emerge, with space to define themselves, their own experiences on the own terms, providing a means to avoid Negt & Kludge’s existential bisection.
For this reason, debates about what the web will look like in the future are essential. If maintaining a plurality of competing publics is the best case for participatory democracy, and if participatory democracy is thought to be desirable, then we should be careful about the sorts of policies and regulation we apply to the web and to other distributed forms of media communications as they evolve.
The web was built with two technical/philosophical principles: neutrality, and free flow of information. As it applies to the plurality of counterpublics, net neutrality ensures that all content on the web is treated equally on network – so data/content from TimeWarner is not privileged over data/content from HomelessNation, simply because TimeWarner pays Internet Service Providers a premium. The net neutrality principle is a precondition for a vibrant plurality of counterpublics, yet it is under threat in the United States, and already regularly violated in Canada, for instance when Telus blocked a pro-union website during a labour dispute in 2005 (Geist, December 19, 2005). Similarly, copyright law governs the way ideas and knowledge are created, used, and shared, and recent legislation tabled in Canada, modeled after the US Digital Millennium Copyright Act, makes it easier for corporate interests to lock down knowledge, and stop its spread. While the commercial interests of content creators is important, there once was an ideal applied to copyright law that protecting content creators should be balanced against the public good. That principle seems to be abandoned, in the name of inscribing and closing off ideas within corporate ownership, to a far greater degree than any previous copyright law allowed (Lessig, 139).
Regardless of Nancy Fraser’s objections to Habermas, and Negt & Kludge’s worries about the working class metaphorically torn in half by an oppressive public sphere, until another model comes along, most of us will be stuck figuring out how to make some variant of the public sphere in a liberal democracy work better. While they aren’t ideal, the underlying principles of deliberation, debate, and a public sphere, pseudo or not, that generally helps society to work towards something like the “public good” remains the most compelling vision of contemporary democracy.
There is an argument to be made that the best solutions are arrived at by having the greatest number of possible solutions competing for attention. In practice, of course, things don’t work out so smoothly, but the ideal remains embedded in our conception of the advantages of democracy. In order to have the greatest number of possible solutions competing for attention, we need a vibrant public sphere, which is necessarily made up of competing counterpublics. The web has provided – in theory at least – a public sphere of ideas equal to Habermas’ lettered ideal (if cluttered with much else as well); with egalitarian space for all of Nancy Fraser’s subaltern counterpublics (if stratified still along class, racial, geographic and gender lines), and providing in principle a space for the working class to find their true experience (if somewhat shaped and mediated by similar forces that influence the rest of the public sphere). Still, as a marketplace for ideas, the public sphere of the web is a significant improvement on all that has come before (much like Churchill’s democracy, the web might be the worst form of public sphere, except all those other forms that have been tried from time to time).
As the forces that have encroached on other realms of the public in the past decades begin circling the web, we should be cautious to help defend and indeed strengthen this unique chance at a wider, more effective realm of ideas, in the name of the public good.
Andrews, Edmund (2008). “Greenspan Concedes Error on Regulation,” in New York Times, New York: October 24, 2008.
Fraser, Nancy (1993). “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy,” in The Phantom Public Sphere, Bruce Robbins, ed., Minneapolis: The University of Minnesota Press, pp. 1-32.
Geist, Michael (2005). “Dangers in ISPs’ Bid For New Tolls,” in Toronto Star, Toronto: December 19, 2005.
Habermas, Jurgen (1989:1962). “The Social-Structural Transformation of the Public Sphere,” in The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, Cambridge: MIT Press, pp. 141-180.
Lessig. Lawrence (2004). Free Culture, New York: The Penguin Press.
Negt, Oskar and Kludge, Alexander (1988:1972). “The Public Sphere and Experience: Selections,” October 46: pp. 60-82.
Creative Commons launches their 2008 fundraising campaign:
Creative Commons has now officially launched its 2008 fundraising effort – our Build the Commons Campaign. Many skeptics think this is a precarious time to launch our major fundraising initiative; we disagree. This is an opportunity. An opportunity to call our community members to action – to help us make sure that the Commons continues to grow and be supported. These times demand creative problem solving and innovation on a global level – innovation that stems from collaboration and knowledge exchange, both of which are facilitated through access and sharing, and all of which are made possible by the Commons.
Michael Geist, University of Ottawa law professor, and Canada Research Chair of Internet and E-commerce Law, will be in Montreal to discuss Canada’s proposed copyright legislation, Bill C-61.
Professor Geist is a leading voice in the debates around Canada’s place in the digital future.
He writes a weekly column for the Toronto Star, and blogs regularly at: http://michaelgeist.ca
DATE: Monday, Sept 15, 6:30pm
LOCATION: Concordia EV Bldg 1515 St. Catherine West, 11th Floor Rm. EV.11.705 (Mackay entrance).
SPACE IS LIMITED, SO PLEASE COME EARLY.
Michael Geist, professeur de droit à l’Université d’Ottawa et titulaire de la Chaire canadienne de recherche sur la législation d’Internet et du Commerce électronique, sera à Montréal pour discuter du Projet de Loi C-61.
Professeur Geist est très actif dans le débat concernant le positionnement du Canada dans l’ère numérique.
Il publie une chronique hebdomadaire dans le Toronto Star, et blogue fréquemment sur http://michaelgeist.ca.
L’evenment aura lieu le 15 septembre, a 18h30 au: Concordia EV, 1515 St. Catherine West, 11e étage, salle: EV.11.705.
L’ESPACE EST LIMITÉ, SVP ARRIVEZ TÔT.
You know one of the problems about this whole copyright debate is the massive conflict of interest in reporting it in our media companies, which also happen to be our ISPs. Canada’s top 6 ISPs, in order of customer base, are: Bell Sympatico, Shaw, Telus, Rogers, Vidéotron, Cogeco. Looking at what these companies do other than provide your Internet:
So between them, UPDATE: the owners of Bell Sympatico, Rogers and Videotron, probably own three quarters of Canada’s non-CBC news media; the balance owned by CanwestGlobal (which owns Global Television, the National Post, and, of course, Dose Magazine).
All in all not very healthy. The Canadian mania for, and regulatory approval of, consolidation not just in the media business, but in merging media and technology, means that our ISPs are our news providers. So any discussion of Net Neutrality and Copyright will be filtered through the lens of Big Content Providers.
Which, I guess, just means that we have to keep getting the word out.