Harry Hillman Chartrand, PhD

January 2, 2008

Compiler Press

On December 1st 2007 Michael Geist (internet law guru @ the University of Ottawa) launched a Facebook site that arguably ignited the revolt of the copyrights.  Geist’s action forestalled in Canada what happened in the U.S.A. with its Digital Millennium Copyright Act of 2000 and the ensuing flood of legal actions against universities, colleges, teachers, librarians, students and parents. 

Legal scholar Jessica Litman characterizes the American process as the copyright industries working out the law among themselves passing the finished product to a compliant Congress which then enacts industry’s wishes with little consultation or concern for the public interest or public domain.  

Copyright is simply too important to be left to industry, politicians and lawyers.  It has many facets, each with profound implications for 21st century democracy and the knowledge-based economy.  In fact we can speak of ‘copyrights’. 

First, there is the differing bundle of distinct legal rights available to different types of works (e.g., broadcasts, paintings, poems, software, sound recordings, etc.) – to adaptation, assignment, duration, licensing, waiver, et al – that collectively constitute statutory copyright. 

Second, there is the unique blend of Anglosphere Common Law ‘printer’s’ copyright and European Civil Code droite d’auteur (rights of the author) that constitute the Canadian Copyright Act.  Canada is not just bi-cultural and bi-lingual but also bi-juridic.

Third, there is copyright in other countries – each with its own distinctive terms and provisions - subject internationally to ‘national treatment’ rather than ‘harmonization’.  This means Canada must extend the same rights to an American as to a Canadian while the Americans must extend to a Canadian the same rights as to an American.  These rights, however, vary country to country.

 Fourth, there is copyright as the human or moral rights of the artist/author/creator which, in Civil Code countries, are inalienable to, inherent in as well as imprescriptable and unrenounceable by a Natural (flesh-and-blood) versus a Legal (body corporate) Person that cannot enjoy such rights because it lacks ‘personality’. In Canada, however, such rights are subject to contract and waiver.

Fifth, there is copyright as a government instrument to foster creation and communication of new knowledge to further learning and grow the public domain, e.g., through public libraries.  This objective is historically linked to both the British and American Bill of Rights including freedom of expression and of the press and originally intended to, among other things, prevent monopolistic suppression of such rights. 

Sixth, there is copyright as the legal foundation for the industrial organization of the knowledge-based economy.   Today, five global media conglomerates control as much as 20% of the entire world’s arts, entertainment and news programming.  And copyright is the foundation stone of the Microsoft desktop monopoly and those of other software giants.

Seventh, there is copyright as income to the creative worker.  The manufacturing economy boasted life-long employment while the knowledge-based economy offers contract work and self-employment.  The pervasive use, in the Anglosphere, of blanket or all rights licences as well as ownership of copyright by the employer rather than employee extinguishes all future claims of the creator.   If this continues, income distribution will become like self-employed artists and entertainers who are second only to pensioners as an income class recognized by Revenue Canada   Furthermore, their income distribution is not a pyramid.  Rather it is an obelisk with a huge base of poor ‘starving artists’, a thin column of middle class and a tiny peak earning enormous sums, e.g., Pavoratti.   This could be the future of the knowledge-based economy under the existing copyright regime - no middle class.

A revolt is either a failed revolution or one in progress.  Reactionary forces strive to prevent it.  Today, as after passage of the first Copyright Act – the Statute of Queen Anne in 1710 – we are engaged in a ‘Battle of the Booksellers’.  This time it is global media conglomerates trying to twist copyright to serve their own narrow purpose - profit.  Information democracy and the knowledge-based economy are at risk.  Up the Revolution!  And thank you Citizen Geist.