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Loading ...Recognizing a policy problem doesn’t suggest agreement on solutions
A few hours after posting my article on the content industry vs content delivery providers I was sent a link to an article titled “Raging Grannies demonstrate for fair contracts for freelancers” by its author, journalist Shannon Lee Mannion. The contracts that the big media companies are asking freelance journalists to sign are getting worse and worse all the time. I feel really bad about this situation, and I do anything I can in my policy work to help improve the situation for authors — especially freelance creators given I am one myself with my self-employed business.
I am left with mixed feelings, however, because I believe that the organizations that should be helping authors — organizations like the Professional Writers Association of Canada (PWAC), The Writers Union, and other members of the Creators Copyright Coalition and DAMIC — have been promoting policies which will have the effect of protecting or worsening the market conditions that enabled these bad contracts in the first place.
This issue is one of those examples I brought up in yesterday’s article where a solution to an edge case ends up making the situation worse. Authors publishing through traditional media have been forced to sign “take it or leave it” contracts which force them to waive their moral rights to attribution and integrity. The “solution” to this problem included in the Platform Statement from the Creators Copyright Coalition (CCC) is to suggest that “Moral rights should be inalienable, unwaivable, and unassignable”. In other words, to solve this specific situation they want to revoke the rights of all authors from being able to make their own choices.
The obvious answer for the media companies will be to no longer hire freelancers, and instead only use the works of employees since copyright names the employer the first owner of copyright. This will essentially wipe out the option for authors to be freelancers, an important employment option that many of us use and believe should be protected (and promoted!).
If CCC/DAMIC then try to lobby for changes to the Canadian copyright act to name the human author as the first holder of copyright (something I happen to agree with for different reasons), the only way this will be accepted by parliament (who will be lobbied by the far more politically and economically powerful employers) is if employment contracts can include an automatic transfer of copyright and waiving of moral rights. In the end, the more CCC/DAMIC lobby in this direction, the worse the situation will get.
Methods of production such as Peer Production work on a very different premise than the narrow subset of creator options that CCC is concerned with. Rather than focusing solely on the interests of an individual author, you focus on protecting the rights of the peers as a whole. Since this needs to include protecting peers from any specific individual author, the moral right of integrity must be able to be waived so that a single peer could not hold an entire collectively created work hostage. In fact, the whole concept of the right of integrity does not make sense in a peer production context.
There are a large number of articles on the Creators Copyright Coalition website that are of the same style. Any method of production, distribution, funding or licensing that is different than their own preferences is questioned and challenged, pitting the CCC against the interests of a growing number of authors who are trying to leverage these alternative methods.
On the CCC front page you can see questioning of the use of Creative Commons licensed music by the CBC Spark show, an attempt to inspire fear, uncertainty and doubt (FUD) about the use of Creative Commons licensed music. In this case this licensing model has been explained during the show as being the only music licensing model that allows them to publish as a podcast the identical show as went over-air. Depending on the specific license chosen, composers and performers get paid for the over-air use just like any other music (through the collectives), and the license specifically indicates that the non-commercial distribution over the Internet (the podcast) is legally royalty-free.
The Creators Copyright Coalition “solution” to any issue like this is compulsory collective licensing for all types of works under the copyright act, imposing royalty fees negotiated at the Copyright Board on everyone. As discussed in the article yesterday, for creativity that lends itself towards peer production and peer distribution this wipes out the viability of this method of production, distribution and funding. Given this conflict with the interests of creators has been discussed many times with members of the CCC, I am often left wondering if wiping out competitors is part of the goal of their platform rather than only an unintended consequence.
As you go through a list of the platform statements you will find their views on ISP liability (they believe that ISPs should be mandated to be gatekeepers, as well as being levied) and their views on Digital Rights Management (they believe hardware manufacturers should be liable for infringing abuses of hardware by their owners, as well as being levied). Overall you will find policy which will have the ultimate effect of reducing competition and increasing media concentration through government mandated increased control by communications networks and communications hardware manufacturers. If the direction proposed in the CCC platform is followed by the government it will make the media concentration problem far worse than anything that has ever been possible in the past.
I believe the only way to solve the contracting problems that freelancers are having is to have a competitive marketplace that allows those freelancers to simply switch to a publisher with better contracting, allowing that publisher to have better articles and thus grow greater audiences. Given this I believe that any policy that increases concentration or reduces competition can only make contracts for authors worse. It is frustrating to have to always note that the organizations making this situation worse includes the associations and unions who claim to be representing the interests of authors.
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May 8th, 2008 at 8:12 pm
Russell,
As has been suggested to you many, many times during your discussions with at least one of the groups that so sadden you, the CCC position paper represents a starting point. In fact, I believe it is the only logical starting point for an established industrial group facing challenging and uncertain changes by new market forces. I am a member of the CCC and head of PWAC. I’m standing in my starting position ready and willing to be convinced of your truth — but you’ll have to be more convincing.
The CCC is not the orthodoxy you describe, and your steadfast refusal to recognize that suggests to me that you yourself might be indulging in orthodoxy.
I have personally suggested to you a couple of times that the moral rights request from CCC might be interestingly reworked to contain an exception for voluntary peer production models. I don’t understand why you wouldn’t mention that here.
Media concentration and the drive to remove and/or control the established rights of writers (and readers, by the way) is much bigger than the question of copyright reform. Your reduction of the “solution” to this very dangerous social force to the simple acceptance of any given position on copyright reform is kind of naive.
May 9th, 2008 at 9:50 am
John,
I recognize that you have called the CCC platform a “starting point”. Normally you would start with something that is beneficial for your own community, and then negotiate with competing political interests to come to come to compromises. In this case we are disagreeing that your starting point is beneficial to your own community. It is a separate question about whether what you are proposing harms the constituencies I officially represent (FLOSS software authors). When your starting position is harmful when you walk into a negotiation, it can only get worse for that constituency.
I don’t remember reading your suggestion about tinkering around the edges of your moral rights proposal to deal with peer production. Now that I’ve read it, I can comment on it. You are talking about reducing the damage to specific communities which are identifiable today. We both know that Copyright doesn’t change quickly (decades for most changes, not on “Internet time” or software life cycle), and peer production is something that could not have been identified a decade ago as well as it can today. A decade ago most people believed that peer production (not yet even named) was a phenomena unique to software with the Free Software movement (term Open Source not even coined yet).
The CCC moral rights proposal removes one of the axis of choice that an author would otherwise have in order to configure the rights offered by copyright to match their specific needs. I’m not willing to pretend I understand the needs of every creator, so do not see any benefit to limiting copyright to only conform to a subset of those needs.
More important than that, we need to slide to the alleged ‘benefits’ side of the cost/benefits analysis. I see no way that you can receive the benefit that you are asking for. The revoking of an authors right to waive specific parts of moral rights (IE: retain attribution, waive right of integrity) won’t offer freelancers protection of their moral rights. What it will do is wipe out the ability of freelancers to be hired as freelancers at all, and move us quickly into a work-for-hire-or-nothing situation.
We had this conversation surrounding the Robertson v. Thomson Corp., 2006 SCC 43 case when I (correctly) predicted that contracts would change (even before the case was decided) to wipe out any potential freelancer “wins” from that case. There has been a claim that this opened up legacy works (under old contracts), but this political game of ratcheting the handover of rights to concentrated media companies will only continue to harm the long-term interests of independent/freelance creators.
The protests that Shannon Lee Mannion reported about were really about the state of contracts that were made worse by the Robertson case.
The revoking of moral rights related rights reminds me of the silly-season politics in the USA right now. Clinton/McCain have proposed a gas tax holiday to offset rising fuel prices. Anyone with a basic background and business, or who bother to look at the history of when this has been tried elsewhere, know that this savings will be pocketed by the oil companies. The outcome of this policy would be to reduce revenue that is (in the USA) spent on infrastructure such as road. Reduced spending on roads actually increases spending by individuals on their transportation (increased repair, increased fuel consumption due to changes in speed/etc).
This type of silly proposal will receive applause by people who don’t really look at the big picture, and it might even help the political fortune of some politicians. It will in the end, however, backfire badly if it is actually tried.
I agree that media concentration is bigger than copyright reform. I believe, however, that embracing new media and decentralizing media is a solution to that problem. When I look at the barrier to adoption of new media, however, we end up heading to issues of “Net Neutrality”, collective licensing, non-copyright related licensing, ISP liability (and not just for Copyright), and foreign locks on our hardware (again, not just copyright — cell phone carrier locks are a problem as well). These are all issues which members and spokespersons from the CCC have spoken about, and more often than not on the side of decreasing the benefits of new media and increasing media concentration.
Increasing concentration may not be your intent, any more than handing cash over to oil companies and increasing transportation costs is Clinton/McCain’s intent. Sometimes it is simply not enough to focus on the intent of policy, but the realistic expected effects.
May 9th, 2008 at 4:28 pm
The reason the gas tax holiday idea is ridiculous is because responsible public servants should work to argue for infrastructure improvement taxes, rather than trading in simplistic consumer-rights arguments and playing to the baser impulses and desires of the crowd.
That the oil companies choose not to dig into their massive profits in this “crisis time” for gas prices and give their customers a break is very much less the result of any public policy decision and very much the result of their free market, deregulationist agenda. Your argument actually looks like a pro-levy one to me, so thanks for that.
Equally silly to me is the suggestion that writing contracts changed to all-rights grabs because a white-haired freelancer stood up for her rights against one of the richest corporate owners in the world, and won, despite an almost overwhelming trend toward worrisome concentration of media (in the name of corporate convergence).
The contracts changed because large, concentrated media corporations want to maximize profits so much, and respect the detailed breakdown of rights under copyright so little that these contracts were, for them, the next logical step. Those forces were already in play before Heather brought her incredibly brave class action, and would have continued even if she had not bothered to fight.
You are blaming the victim.
May 11th, 2008 at 9:32 am
I disagree that I’m blaming the victim. The victim are freelancers and other independents doing everything they can to reduce media and other industry concentration.
I would only accept this critique from fellow community members who are actively trying to reduce media concentration. Some of the ways I do this is by promoting alternative methods of production, distribution and funding which are either not yet dominated by traditional concentrated media, or because of their decentralized nature can’t be concentrated in that way.
When one looks at the policy proposals from the CCC as a whole, you get the impression that this groups is promoting concentration.
You already know my comments on levies, as do other people who read this BLOG (See: Analysing when copyright levies are a good idea, and when they are a very bad idea). I am for levies when there is a market failure and where royalties are the only viable business model for a given type of creativity. As one concrete example, I am in favour in principle with the Songwriters proposal, although I reserve the right to judge specific implementation details if they end up harming the interests of independent composers or performers.
I oppose levies otherwise as a form of government imposition of a business model, especially in areas such as the publication of scientific and medical information, educational material, and productivity software where peer production and royalty-free business models are growing and offer solutions to any perceived (and mostly false) market failure.
The CCC, on the other hand, promotes levies in all situations, which outside of entertainment content industry (music, movies, television) would have the effect of wiping out competition, and greatly harming freelancers and independents.
If the CCC policies are adopted, and more freelancers and independents are put out of work (and/or enforced to become employees), will you still claim that those of us fighting for freelancers and independents are blaming the victims? Or will you recognize that we will be victims of the CCC’s ill-advised policy proposals?