Good morning! Thanks for coming out this morning. My name is Penney Kome and I will be your Service Leader. I've chosen this method of presenting my talk today to help make it as accessible as possible, and also to show that, even though my career as a professional writer started back when a portable typewriter was a novelty, I'm not a Luddite.
Creativity and the arts enrich all our lives. In whatever form we engage with a transformative rendering of a world we thought we knew, and to whatever degree of participation, creativity has the power to bring us to our higher selves, to plug us into the joyous "flow" energy of being fully present. Creativity nourishes our hearts, our souls, our spirits.
The question I bring to the table today, though, is whether creativity can nourish the body.
Chalice lighting: I light the chalice with these words by Rev Andy Pakula:
We light this chalice flame as a sign of our faith
May we ever trust
The good light within each heart
The sacredness of life
The transformative force of love
And our own power to make a difference.
Homily
Creativity and the arts enrich all our lives. In whatever form we engage with a transformative rendering of a world we thought we knew, and to whatever degree of participation, creativity has the power to bring us to our higher selves, to plug us into the joyous "flow" energy of being fully present. Creativity nourishes our hearts, our souls, our spirits.
The question I bring to the table today, though, is whether creativity can nourish the body.
Chalice lighting: I light the chalice with these words by Rev Andy Pakula:
We light this chalice flame as a sign of our faith
May we ever trust
The good light within each heart
The sacredness of life
The transformative force of love
And our own power to make a difference.
Homily
Imagine that one day you share your favorite pet story with an email list, or a blog. Now imagine that a year later you tell that same story to a new friend, and she laughs in your face "You can't fool me," she says, "You got that from a book." She pulls out her Kobo reader -- and there's your anecdote in a collection of postcard stories, but without your name attached. How would you feel?
Or imagine that one day you capture a sweet video of snowboarding on the mountains, and you post it to YouTube, and you’re so excited about being able to share it with everybody, you click on the Creative Commons license. And your video goes viral.
Now imagine that Kokanee beer’s advertising agency comes along and uses your video for a whole new series of ads. All your friends think you must be rich from the ad, but the fact is, the Creative Commons license pretty well put your video into the public domain. People are supposed to attribute the work to you -- or rather, your YouTube handle -- but that's hard to enforce. How would you feel?
Odds are that you would feel at least a little bit ripped off. And you’d be right. Information is the most valuable commodity on the Internet, and also the most likely to be, ahem, re-purposed, with or without permission. Remember Stephen Brill's Contentville?
Some people are happy to contribute their creations towards a greater whole, hoping to build a more co-operative world online. Sometimes that works. However, most of the Internet I've seen (as a newsmagazine editor) is actually a pretty competitive place, with uncountable players scrambling to figure out a way to monetize this new medium.
If "infomation wants to be free", as some say, then the question is, how do you define "information"? Facts? Stark facts usually need some interpretation. And there's the rub. Even sheets of statistics have to be composed in some kind of order.
What we're talking about here -- your pet story, your snowboarding video -- is not "information" but the "fixed expression" of ideas, emotions, juxtapositions and depictions.
Some people are happy to contribute their creations towards a greater whole, hoping to build a more co-operative world online. Sometimes that works. However, most of the Internet I've seen (as a newsmagazine editor) is actually a pretty competitive place, with uncountable players scrambling to figure out a way to monetize this new medium.
If "infomation wants to be free", as some say, then the question is, how do you define "information"? Facts? Stark facts usually need some interpretation. And there's the rub. Even sheets of statistics have to be composed in some kind of order.
What we're talking about here -- your pet story, your snowboarding video -- is not "information" but the "fixed expression" of ideas, emotions, juxtapositions and depictions.
A "fixed expression" is covered by copyright the very moment that it's fixed. Like the little girl who was delighted to learn she'd been speaking prose all her life, we all commit acts of copyright every day. If only someone would pay us for them. Here's a writers' joke:
Q: "How do you know if you're a real artist?" A: "Someone else is making more money from your work than you are."
But of course, most workers could say the same thing.
The evolution of copyright
The law that protects original work has been evolving almost continuously since its inception. Copyright emerged in the English speaking world with the 1709 Statute of Queen Anne, "An Act for the Encouragement of Learning,” to give printers incentive to publish original works.
Johannes Gutenberg gave the world moveable type. Exclusivity – even temporary exclusivity – gave printers time to recover the investment involved in actually printing books, which included paying the author.
Other countries besides England adopted their own copyright laws, each according to the cultural policy of the state. English copyright law started with the printers, some of whom went on to become publishers. So English common law tends to favour the producer rather than the creator. French copyright law (and most European copyright law) emphasizes droite d'auteur, author's rights, giving the creator primary and sometimes total control over the work. The 2002 German Copyright Act, for example, said that copyright was transferable only by inheritance.
Author Charles Dickens was one of many early Unitarians who earned their livelihoods with their creativity. Others included Louisa May Alcott, Ambrose Bierce, e.e.cummings, Charlotte Perkins Gilman, Mary Wollstonecraft Shelley, Henry David Thoreau, Beatrix Potter, and Charles Bulfinch.
Tension soon arose because copyright was a national law, and didn’t apply outside national borders. Dickens complained bitterly about American printers who reprinted and sold his work without permission or compensation. He even said publicly that Sir Walter Scott would not have died poor had the Americans paid him for using his work.
Tension soon arose because copyright was a national law, and didn’t apply outside national borders. Dickens complained bitterly about American printers who reprinted and sold his work without permission or compensation. He even said publicly that Sir Walter Scott would not have died poor had the Americans paid him for using his work.
French author Victor Hugo founded L’association littéraire et artistique internationale to campaign for what eventually became the 1886 Berne Convention, an international agreement to give all authors “national treatment” – that is, to honour their copyright across borders.
The United States never did sign the Berne Convention, though. The US stood accused of harbouring pirates for almost three-quarters of a century, until they and the rest of the world signed the 1952 Universal Copyright Convention. But then according to Wikipedia, "on March 1, 1989, the U.S. "Berne Convention Implementation Act of 1988" came into force and the United States became a party to the Berne Convention, making the Universal Copyright Convention obsolete."
Please join me in singing, "Gather the Spirit", Hymn #347 and then the ushers will take the offering to support the work of this church and congregation.
The United States never did sign the Berne Convention, though. The US stood accused of harbouring pirates for almost three-quarters of a century, until they and the rest of the world signed the 1952 Universal Copyright Convention. But then according to Wikipedia, "on March 1, 1989, the U.S. "Berne Convention Implementation Act of 1988" came into force and the United States became a party to the Berne Convention, making the Universal Copyright Convention obsolete."
Today, copyright has grown into a mighty forest of oak trees that shelters an entire ecosystem, a $46 billion cultural industry. Besides literature, the term "copyright" covers a wide range of intellectual property from software to music, and each sector has its own approach.
An early rebellion against Microsoft, for example, led to the Gnu, or free software movement. I admire people who can speak with computers. If people want to share their software, that's okay with me, as long as they practice safe techniques. ;) I do think that comparing software to literature is a false analogy, though. Booksellers are not going to take over the world, even the electronic world.
With music, iTunes has managed to recoup some of the market damage (an estimated $10 billion a year) from Napster and other peer-to-peer sharing sites. iTunes addresses the concerns that prompted file sharing, by making purchases easy, affordable and the right thing to do. But how many major breakout music stars have you seen since P2P sharing began?
An early rebellion against Microsoft, for example, led to the Gnu, or free software movement. I admire people who can speak with computers. If people want to share their software, that's okay with me, as long as they practice safe techniques. ;) I do think that comparing software to literature is a false analogy, though. Booksellers are not going to take over the world, even the electronic world.
With music, iTunes has managed to recoup some of the market damage (an estimated $10 billion a year) from Napster and other peer-to-peer sharing sites. iTunes addresses the concerns that prompted file sharing, by making purchases easy, affordable and the right thing to do. But how many major breakout music stars have you seen since P2P sharing began?
Well, perhaps democratization of media is a good thing. Youtube can be as entertaining as any situation comedy, right? Now that everybody has the electronic tools at our fingertips to record our every waking moment, now that anyone can be a reality TV star, everybody's a producer. Everybody is a journalist. Everyone can broadcast their most private moments. Right?
Hmm. Let's turn the analogy around. Suppose you gave an axe and a power saw to the next person you saw, would that make that person a lumberjack? No, of course not. (And even if it did, a weekend lumberjack is rarely as expert as someone who does the job every day.) A lumberjack needs skills, and needs to understand the dangers of the work. So does anyone who wants to live by producing intellectual property.
The kind of intellectual property I know best is print, which as everybody knows, is in the midst of a tremendous transition. My nomination for Word of the Digital Century: disintermediation.
Dis - inter - media - tion
The term means the disappearance of intermediaries, usually as a result of new technology. Telegraph operators were obsolete once the telephone arrived. Online airline booking has all but eliminated travel agents. Email and couriers now handle most of our correspondence, as shown during the recent postal strike. Occupation after (skilled, well-paid) occupation has succumbed to digital competition.
Writing and publishing are in unprecedented upheaval, even for a normally volatile industry. Technological changes offer exciting new opportunities and techniques, accompanied by the risk of massive job loss. In the print world, four or five occupations are jostling each other to be the occupation that does not go extinct.
So far, the ISPs seem to be winning. Have you ever noticed? Internet Service Providers sell the online resources as a free all-you-can-eat buffet -- once you pay their steep monthly cover charge, on which their profits run an estimated 50 to 95 percent. But they rarely pay anything towards producing that buffet, beyond their own company websites.
What they are actually selling is connectivity. But marketing promises about all the goodies available on the Web only reinforce the public impression that all Publicly Available Materials (PAM) -- that is, anything not behind a paywall -- may be reproduced freely.
In early days, the Internet was sometimes called, "The library on your desk". Cannibalizing that library is one way to populate websites with continuously fresh material. Publishers are trying to minimize costs and maximize profits by re-using every scrap of text they have, aggregating, disaggregating, and re-purposing material.
Apart from the ideologues in the business (such as Rupert Murdoch or Conrad Black) publishers are sticking to commercial packages and concentrating on how many ways they can package those.
But whenever a product is used for something other than its own worth -- as in the publisher/bookseller battle over E-book prices, where the real goal is for the bookseller to sell E-book readers -- then the product itself loses value. This is often the case in marketing.
Payment for periodical writing (newspapers and magazines) in Canada has plummeted, from as much as $1500 for a thousand well-chosen words, to, well, free. The largest online purchaser of writing, Demand, pays $15 for an information piece that length. Fifteen dollars! And most publishers are demanding all rights for print and online media, as well as archiving.
Conversely, writers are seeking ways to survive without publishers. Writers have had to do for themselves (or pay for) many of the services publishers used to provide, such as editing, indexing, and most of all, promotion. No wonder self-publishing sounds more and more attractive to many, if only for self-defence.
In addition, the average shelf life of a book these days is three to six months -- hardly long enough to find its audience. The Writers' Union now has a Print On Demand (POD) service called Phoenix Books, so that writers can reprint their own books to sell at readings and events.
Disintermediation also puts at risk other occupations (and businesses) that might not spring to mind right away, such as booksellers and librarians. When all the books are e-books, no one will need to browse in a book boutique, or visit a hushed hall among the stacks.
Let's face it: the future is digital. Although they have some surprisingly sophisticated features, books are low tech. Profligate use of paper is environmentally unfriendly. The publishing industry has come to the brink of ruin more than once because of its precarious business model of paying for shipping, warehousing, and returns.
Apart from books as art objects, paper's time has passed. Paperbacks will be for poor people and collectors, while those who can afford to carry smaller devices will use e-book readers.
Let us now try a new hymn, #86 Blessed spirit of my life
So far, the ISPs seem to be winning. Have you ever noticed? Internet Service Providers sell the online resources as a free all-you-can-eat buffet -- once you pay their steep monthly cover charge, on which their profits run an estimated 50 to 95 percent. But they rarely pay anything towards producing that buffet, beyond their own company websites.
What they are actually selling is connectivity. But marketing promises about all the goodies available on the Web only reinforce the public impression that all Publicly Available Materials (PAM) -- that is, anything not behind a paywall -- may be reproduced freely.
In early days, the Internet was sometimes called, "The library on your desk". Cannibalizing that library is one way to populate websites with continuously fresh material. Publishers are trying to minimize costs and maximize profits by re-using every scrap of text they have, aggregating, disaggregating, and re-purposing material.
Apart from the ideologues in the business (such as Rupert Murdoch or Conrad Black) publishers are sticking to commercial packages and concentrating on how many ways they can package those.
But whenever a product is used for something other than its own worth -- as in the publisher/bookseller battle over E-book prices, where the real goal is for the bookseller to sell E-book readers -- then the product itself loses value. This is often the case in marketing.
Payment for periodical writing (newspapers and magazines) in Canada has plummeted, from as much as $1500 for a thousand well-chosen words, to, well, free. The largest online purchaser of writing, Demand, pays $15 for an information piece that length. Fifteen dollars! And most publishers are demanding all rights for print and online media, as well as archiving.
Conversely, writers are seeking ways to survive without publishers. Writers have had to do for themselves (or pay for) many of the services publishers used to provide, such as editing, indexing, and most of all, promotion. No wonder self-publishing sounds more and more attractive to many, if only for self-defence.
In addition, the average shelf life of a book these days is three to six months -- hardly long enough to find its audience. The Writers' Union now has a Print On Demand (POD) service called Phoenix Books, so that writers can reprint their own books to sell at readings and events.
Disintermediation also puts at risk other occupations (and businesses) that might not spring to mind right away, such as booksellers and librarians. When all the books are e-books, no one will need to browse in a book boutique, or visit a hushed hall among the stacks.
Let's face it: the future is digital. Although they have some surprisingly sophisticated features, books are low tech. Profligate use of paper is environmentally unfriendly. The publishing industry has come to the brink of ruin more than once because of its precarious business model of paying for shipping, warehousing, and returns.
Apart from books as art objects, paper's time has passed. Paperbacks will be for poor people and collectors, while those who can afford to carry smaller devices will use e-book readers.
Let us now try a new hymn, #86 Blessed spirit of my life
Some artists like to believe their work will be their legacy. Emily Dickinson's dresser full of secret poems brought her post-mortem fame. Folklorist Edith Fowke pays part of The Writers' Union's bills every year, although she died in 1996. Her will left TWUC the royalties for her volumes of collected Canadian folklore.
However, while they are alive, creative people do need to pay for bread and shelter. Some hold day jobs. Some marry supportive spouses. I'm fortunate. While fees for writers have dropped, demand for editors has increased. Funny correlation, eh?
Some 600,000 knowledge workers find employment in Canada's very significant cultural industry, currently valued at $46 billion a year. Cultural workers tend to earn less than workers in other industries, but report more job satisfaction.
The foundation of the publishing industry rests on writers, who earn an average $22,000 a year from their writing (although apparently some textbook writers can earn $60-80,000 a year). Everyone above them in the pyramid earns more. Most of the other people in the business have regular paycheques, and benefits such as pension plans, and -- until recently -- some job security.
I am very familiar with some of these organizations, especially one collective.
Way back in the early 1980s, when I wrote a national column on women's issues, I ran into a professor in women's studies who just gushed over me. "I love your work so much," she said, "I've created an entire course pack full of your columns." That is, she had the university bookstore copy my columns wholesale. Seeing the look on my face, she added quickly, "It's all right. I got permission from the magazine."
"Actually," I said, "the rights still belong to me. Next time, could you please contact me directly?" I gave her my business card. She stared at it, puzzled. "Why is your name spelled wrong on your card?" she asked. Sure enough, that professor (who was a delightful woman and eventually became a good friend) not only reproduced my work without permission, she'd spelled my name wrong on every article.
I felt ripped off. I felt worse than ripped off -- I felt violated, and not for the first or last time. And I wondered why a university professor didn't understand the basic concepts of copyright.
© = cash
Economic rights give the copyright holder exclusive right to reproduce and distribute, and to authorize reproduction and distribution (even for free);
© = credit
Moral rights include the right to a credit every time the work is used, and the right to refuse to allow your work to be used in way that undermines the integrity of the work.
© =control
The copyright holder has the exclusive right to reproduce and authorize reproduction, public performance, publication, adaptation, translation and to communicate to the public by telecommunication (eg, the Internet).
So widespread was the use of magazine articles that writers' organizations lobbied to change the Copyright Act, to allow for collectives to collect royalties on photocopies. The print collective, Cancopy, began in 1988, and changed its name to Access Copyright ten or twelve years ago.
On average, a creator who affiliated with Access Copyright at the beginning, and collected only the repertoire payment, would have received more than $10,000 over the past 20 years, mostly for allowing educators to reproduce their work for classroom use. Coincidentally, Access now has more than 10,000 creator affiliates in English Canada. (Quebec writers usually affiliate with Copibec.)
I was elected to the Access Copyright Board in 2004, so at this point, I've served on the Board for six years. In 2008, the peak year, Access collected $35 million in license fees and distributed most of that money to the rightsholders as royalties. Revenues have dropped since then, as I'll discuss in moment.
But there are obvious hazards to a business based on photocopying, in the Age of Digitization. With an eye to creating a permanent structure, I was point person in setting up the Access Copyright Foundation, with an endowment we expect to reach $5 million, and a mandate to distribute grants annually to small publishers and individual creators. Last year, the foundation distributed about $300,000 to about 120 Canadian creators and small publishers.
The conundrum of intellectual "property"
Now, people usually have one of two reactions to the word "copyright". Either their eyes glaze over, or they have very strong opinions on the subject.
Some people object to corporate domination of music and software, which often seem much too expensive for what they offer ($25 for a 25-cent CD? Really?) They say things like, "The artist doesn't see a cent of the money anyway." Others say that every piece of writing is based on the writing that went before, which IMO is a) untrue and b) irrelevant.
Some say they are more interested in authenticity than authority, and are not willing to pay for somebody's "big name" appeal. Others really like homemade culture; in fact, we are so inundated with electronic culture that getting together to make music with friends can be a subversive consumer act.
Then there are the ideological arguments. "Property is theft" was a popular slogan in the 1960s. I haven't heard it much lately. Oddly enough, the most vocal advocates of the idea that intellectual property is theft, are lawyers such as Michael Geist and Howard Knopf. Knopf has a blog, and Geist has weekly columns in major media, a blog, and a major platform on Facebook.
Remember that each nation has its own copyright code. Canada is under tremendous pressure right now to bring its copyright law into compliance with US law.
"Fair use" in the US permits a much wider range of copying than Canada currently permits, including incidental copying for educational purposes. The Canadian equivalent is "fair dealing", which was only a defence to charges of copyright infringement.
Then, a 2004 Supreme Court decision converted the enumerated (six) defences to infringement into what the Court dubbed "users' rights" -- a legal concept found nowhere else in the world.
Encouraged by the CCH decision, in 2004 the Council of Ministers of Education of Canada (CMEC) announced they would no longer pay to license works photocopied in primary education (K-12).
Access Copyright took them to the Copyright Board -- a quasi-judicial body created to arbitrate between creators' collectives and consumers -- which examined the evidence both sides presented and then ruled that, altogether, schools across Canada generate about 250 million unauthorized photocopies per year -- a quarter of a billion -- and had decreased their textbook purchases by about a million copies over four years, as a result.
Let's say that again: the vast number of photocopies correlated directly with a serious drop in textbook sales.
CMEC appealed the Copyright Board's decision to the Ontario Court of Appeal. Access won. CMEC appealed again. We go before the Supreme Court of Canada on December 7.
Meanwhile, the AUCC (Association of Universities and Colleges of Canada) kept shrugging off Access' requests to meet in order to re-negotiate the rate for photocopying at post-secondary institutions. In March, Access finally filed an action against them too, at the Copyright Board, much to the universities' outrage. In examining why negotiations broke down, the Copyright Board found that "it takes two to tango, and the AUCC would not even come to the dance floor."
The universities were influenced by academics like Michael Geist (U of Ottawa) and library professor Sam Trosow (U of Western Ontario). Geist in particular has published years of columns full of the sort of statements that a lawyer might advance in arguing a lawsuit against accepting any costs or legalities using other people's work.
However, as author John Degen points out in his blog, the Copyright Board for one has rejected those arguments.
"I only hope it is increasingly clear to Canada's post-secondary education and library sectors," he wrote, "that they've been led down a highly theoretical garden path of free culture at the cost of a lot of goodwill and good faith agreement with their traditional partners -- Canada's creators and publishers -- not to mention the cost of a lot of time, effort and resources better spent, well, educating."
Geist has said in his blog that the doctrine of "fair dealing" includes reproducing up to 10 percent of a work, without permission or compensation.
Nothing in legislation or case law supports this claim, except perhaps squatter's rights. Yet, the Canadian Association of University Teacher's guide to copying urges individual professors to push the boundaries as far as they can. I guess they'll know they've gone too far when they get sued.
Of course, the biggest factor in this scenario is that last year, the Harper government introduced a new Copyright Act that suddenly and arbitrarily added "education" as an exception to copyright (at the personal direction of the Prime Minister, we're told). The Bill died on the Order Paper when the country went to election, but we expect the Harperites to re-introduce it in the fall.
Evidently the Americans are demanding that Canada bring its copyright act into complicance with theirs -- which some of us find ironic, considering the history.
Ah but, you may say, can a business built on photocopying adapt to the digital world of the future? Sharing documents online or through Intranets is becoming standard practice in education.
Well, Access Copyright offers a license for scanning and uploading to an intranet too. As a company whose business is based on databases, Access had a headstart with cyberspace, with projects such as:
-- pioneering universal Onix software so that RROs (Reprographic Rights Organizations) around the world can exchange information instantly, despite language and system differences.
-- through the RRO federation, supporting the International Standards Organization (ISO) in developing an International Standard Name Identifier (ISNI). This tiny bit of metadata is a virtual signature that a creator can attach to a work, and that will stay attached across online platforms.
-- hosting a Canadian publishers' directory and a creators' directory (two, in fact), and offering unlimited online memory to writers, publishers, and visual artists who are affiliates or members of Access Copyright's member groups.
Oh my, I've presented a lot of complicated information in a short space of time. Let's have five minutes of open-eyed meditation, to allow time for digestion. Here's "Blue Boat Home", a hymn from our teal hymnal, sung by its composer, Peter Mayer.
Unitarians covenant to practice equity, justice and compassion in human relations. For me, as an editor, justice includes being scrupulous about getting permissions and giving credit, and helping Straight Goods' writers any way I can.
You may see me handing out postcards to mail this fall. The upcoming season promises to be a lively time for people who care about copyright. The Harper government seems determined to re-introduce the proposed Copyright Act, despite objections about Technical Protection Measures provisions.
The real tension will come when the government tries to adjust its new Copyright Bill to the Berne Convention (incorporated into the TRIPS agreement).
The problem with allowing "education" as an exception, which is what Harperites propose, is that would surely trigger a legal challenge under Berne's three-step test, which states that reproduction without permission may be allowable in:
1) certain special cases
2) which do not conflict with a normal exploitation of the work, and
3. do not unreasonably prejudice the legitimate interests of the rights holder.
Very few copyright experts (besides Geist and Knopf) believe that excepting "education" from copyright law would constitute "certain special cases".
For those who agree that respecting copyright is an ethical choice, I have some suggestions:
DON'T post entire works online without permission, either in email or on the Web or Facebook.
DO post two or three paragraphs of a work, with a link back to the original. (That's my definition of "fair dealing", by the way -- drawing attention to a work with a sample.)
DO credit the source and the creator (if possible), along with the link -- for images as well as for text.
DON'T reprint newspaper, magazine or online articles in newsletters, without getting the authors' permission.
DO start from the premise that whoever's name is on the work, owns the work. Their permission counts more than anyone else's.
You might have noticed that I have juxtaposed nature and culture in this presentation. That's because I seem them as parallel ecosystems, both living expressions of our collective world view. We've recognized that plundering the earth is short-sighted. Can we recognize that culture needs to be sustained too?
Oh, I know, there are gray areas in knowing when copyright applies. Maybe we can agree that making a mix tape for a friend is okay, but that retailing that tape is not. Does that work? Without copyright, there will be no livelihood in working in culture.
At the very least, we should acknowledge, as Victorian essayist, reformer and art critic John Ruskin said, "A book worth reading is worth buying." (Thanks, Sheila;) )
I close this service by extinguishing the chalice with these words by
Barbara Cheatham
And now we take our leave.
Please join me in singing Spirit of Life, Hymn #123.
Before we gather here again--
may each of us bring happiness into another's life;
may we each be surprised by the gifts that surround us;
may each of us be enlivened by constant curiosity --
And may we remain together in spirit
til the hour we meet again.
may each of us bring happiness into another's life;
may we each be surprised by the gifts that surround us;
may each of us be enlivened by constant curiosity --
And may we remain together in spirit
til the hour we meet again.
Please join me in singing Spirit of Life, Hymn #123.
