On July 12, 2012, the Supreme Court of Canada issued its reasons in five copyright cases: Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), Re:Sound v. Motion Picture Theatre Associations of Canada, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, and Society of Composers, Authors and Music Publishers of Canada v. Bell Canada.
The results, while quite predictable, are very disappointing for someone who values individual rights, freedom and capitalism.
Howard Knopf in his post, A Proud and Progressive Pentalogy Day in Canadian Copyright Law has provided a brief outline of what the five cases stand for. It’s a good summary of what the cases stand for, but I squarely disagree with Mr. Knopf on his conclusions. My issues with his position start with the title, namely the use of the word “progressive”. I trust that the use of it is intentional and is in reference to the progressive movement. You may or may not agree with Glenn Beck, but the important question to ask when using the word progressive, even outside the political context is, “what are we progressing to?”. In my opinion, we are progressing away from a system where interests of the individual trump interests of the society and towards a system where interests of the “society”, expressed by whoever has the power to claim to be in position to represent such interests, trump interests of each particular individual making up that “society”. This never ends well.
Leaving the technicalities for a future post, I have three big problems with the 5 decisions.
My biggest problem is with paragraphs 9 and 10 of the Bell case, where the Court unanimously held that:
 Théberge reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace: see e.g. Bishop v. Stevens,  2 S.C.R. 467, at pp. 478-79. Under this former framework, any benefit the public might derive from the copyright system was only “a fortunate by-product of private entitlement”: Carys J. Craig, “Locke, Labour and Limiting the Author’s Right: A Warning against a Lockean Approach to Copyright Law” (2002), 28 Queen’s L.J. 1, at pp. 14-15.
 Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain. As noted by Professor David Vaver, both protection and access must be sensitively balanced in order to achieve this goal: Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 60.
This is exactly the problem with the current trend. I strongly believe that interests of the public should be completely irrelevant to copyright laws and copyright policy. Whether copyright laws provide any benefits as a “fortunate by-product” or they actually hurt the public does not really matter. What matters is whether those who create something that had not existed before have a chance to offer it to the public on THEIR terms, rather than being forced in a situation where they should either not disclose it to the public or expect the public to dictate such terms.
Notice the difference between a situation when the market forces a manufacturer to lower prices not to be squeezed out by the competition (as in copyright owners voluntarily adopting new models depending on granting access to their works for free) and a situation when the government adopts laws that say that those who really want or need to use the manufacturer’s product are entitled to steal from the manufacturer, but no more than 20% of the manufacturer’s total output (as in the government telling copyright owners they cannot sell their works because the public should have the “user right” to use them for free).
No matter what the Supreme Court of Canada says, copyright is not about access. It’s not about dissemination. It’s not about the royalties. The only thing that copyright is about is control. Take away control and you have slavery, because then the author is in no position to decide on which conditions to offer the results of his work to others. Whether it’s the public, the government or the collective society that decides it – it’s not the most important person in the equation, the author and the copyright owner.
My second big problem is that all five cases regarded copyright in the context of tariffs. Based on the false premise that copyright is about royalties, the Court seems to have used the following logic: “We have all these tariffs. If we decide that this action involves the use of this right recognized by the Copyright Act, then it would mean that it would fall under this or that tariff. Would that be a fair result?”
I understand that the cases WERE about tariffs, and that tariffs are an integral part of the copyright regime in Canada, but tariffs are merely an extension of exclusive rights that authors are supposed to voluntarily delegate to collective societies. Just because a collective society adopted a tariff royally approved by the Copyright Board does not create or destroy exclusive rights.
In Supreme Court’s reasons, however, the underlying assumption seems to be that the only purpose of authors’ existence is to provide an opportunity for the collective societies to apply tariffs.
This goes back to the priority of the interests of an individual over the collective.
Finally, Supreme Court further expanded fair dealing. Not only did it endorse the horrific idea of “user rights” previously found in CCH, it went far and beyond by removing even those scarce limitations of what the public could do to exclusive rights of copyright owners if the public feels like it.
In my opinion, most categories of fair dealing should be reduced to presumptions, which a copyright owner can rebut by declaring that the copyright owner does not grant the right to use his works for such purposes that the Copyright Act presumptively considers “fair”.
For example, why do we assume that a library should have the right to carry every single book it feels would benefit the community? Why cannot there be a situation when a copyright owner chooses to disallow libraries to carry the copyright owner’s books? This would happen in dismally small number of cases, so fair dealing would play the role in facilitating the dealings that are supposedly fair. But just because most copyright owners would be OK with such use does not mean that ALL of them would be. Individual rights are not about averages, they are about individuals.
Very seldom a use is truly fair if the copyright owner openly opposes it.
Same goes for the education. Why do we assume that the purpose of educating the next generation of students justifies robbing the current generation of authors and copyright owners of their right to decide if they want to allow teachers to distribute copies of their works to students without paying for it?
In summary, this is a very sad day for Canada. Not because greedy collective societies and big corporations will be able to grab less cash from the “working people” and the “less fortunate among us”. Not because a certain provision of the Copyright Act was interpreted to mean one thing, and not the other.
It is a sad day because it confirms the shift in the paradigm – from protecting individual rights against being infringed by other individuals or the mob, we are “progressively” drifting to laws that are subjecting rights of each individual to the mythical interests of the “whole”.
I have not only studied history, I’ve lived the socialist nightmare. Those of you who think that government-sponsored mass murders can never happen in Canada, think again.
No, just because the Supreme Court of Canada recognized that the fair dealing exception for the purpose of private study also covers non-private study will not be the cause of the government rounding up millions of Canadians and shooting them in the head. But that’s what progressivism is all about. Slowly changing the paradigm. Slowly robbing individuals of their rights… until one day they realize that ALL of their rights are now subject to whether they benefit the rest of the “collective”.
Those cheering today for the victory of the “users” are cheering for their own destruction as holders of individual rights, whatever these rights may be.
This is a repost of my article that I published at MINCOV.COM on June 23, 2010.
As negotiations over the Anti-Counterfeiting Trade Agreement (ACTA) progress and more and more information becomes available on the potential wording of the agreement, the usual suspects from all camps are happy to share their views on how ACTA might influence our lives. Quite expectedly, the opinions range from alarmist to pacifying, from wholly positive to Armageddonist, from neutral with a tint of “it’s not going far enough” to neutral with a “they’re still not gonna get us” tongue-in-cheek attitude.
How is it possible that one and the same document can attract such radically differing opinions from indisputably educated and intelligent people? The answer is simple. No assessment of a draft international agreement (or any piece of legislation) is possible in abstraction from the values against which such agreement is to be gauged by the assessor.
This is the reason why any legislation regulating welfare handouts is usually subject to heated debates: the same piece of legislation would necessarily receive incompatible ratings from human rights activists, union leaders, free market economists, those who are to distribute the handouts, the homeless, the working poor or the uber-rich. This happens because everyone has their own system of values, however consistent, and it is through the prism of these values that one evaluates all existing or proposed rules.
The answer to all of these questions is – it depends. It depends on the system of values of the person who is to answer these questions. Any attempt to convince others in the “objective rightness” of one’s answers is nothing more than an attempt to inculcate or force one’s system of values upon others. An attempt to find a compromise under the guise of objectivity is either a reflection of one’s subjective system of values or an attempt to shift the Overton window1. so that one of the conflicting values is marginalized as “too much” and the other one gains weight as the window slowly shifts in its direction. I have already provided one Ayn Rand’s quote about the compromise between food and poison in my recent article, Modernization of the Inconceivable. Here is another one:
“The good has nothing to gain from … the evil, except a share of its failures and crimes; the [evil] has everything to gain from the [good]: a share of its achievements and values. An industrialist does not need the help of a burglar in order to succeed; a burglar needs the industrialist’s achievement in order to exist at all. What collaboration is possible between them and to what end?”2..
In the beginning, I had no reservations about ACTA, other than that it would probably not go far enough in establishing a system that would provide an efficient mechanism of enforcement against mass violations of copyright on the Internet. I had no problem dismissing most comments from scholars known for their focus on the so called “user rights” – simply because they are based on the system of values that is irreconcilable with mine.
However, after I spent some time getting myself familiar with various opinions on ACTA, I realized that the one problem I do have with ACTA is that it can be used as a tool to set up global regulation of the Internet going far beyond the framework against copyright infringements.
The idea that the international agreement that seemingly could provide enhanced level of protection to copyright owners whose works are being used on the Internet could also become a tool of oppression (and by oppression I do not mean one’s inability to download a new movie free of charge), seemed like an irreconcilable contradiction. Then again, Ayn Rand’s philosophy came to the rescue. In “Atlas Shrugged”, she wrote: “Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong.”
This is exactly what I did.
Let me start with setting up the framework of my system of values and beliefs in this regard.
1. Individual rights are an absolute priority. A society that does not fully protect individual rights is a society of masters (whether the master is a dictator or the majority) and slaves.
a. Individual rights are impossible without property.
b. Intellectual property, as a result of one’s creative labour, is no less property than any other type of property.
c. Unlike in the case of tangible property, there is no way to physically prevent infringement of intellectual property.
d. If the infringement of intellectual property does occur and is not voluntarily remedied by the violator, the only recourse the owner of the intellectual property may have against the violator would be through the use of coercive force applied towards the violator – which may either be the force applied by the state (through courts and various enforcement procedures) or by the owner of the intellectual property and its agents (i.e. thugs or journalists).
2. The government’s only proper roles are those designed to protect individual rights through monopoly use of coercive force, i.e. the military, the police and the courts.
a. More government involvement and regulations based on protection of interests of some people or groups at the expense of some others means less freedom to all but the ruling clique.
b. Individual rights cannot be voted away by the majority, no matter how overwhelming.
c. Totalitarianism is totalitarianism, regardless of any allegedly virtuous purposes for which it is being instituted. The state does not have to be run by a murderous dictator for the individuals in that society to not be free. What distinguishes totalitarianism (as the ultimate form of statism) from a free society is that it holds a mortgage on its subjects’ property and lives by sacrificing them to a mysterious common good. The difference between a mixed economy and full totalitarianism is only a difference of degree in lack of freedom. Laissez-faire capitalism, with its recognition of individual rights as the ultimate virtue, is the only truly moral politico-economic system that does not sacrifice, under the barrel of the gun of the government’s enforcement machine, the rights of individuals to the interests of others (be it the dictator, a bureaucrat, a particular group in the society, or the “public” in general).
d. While a big government involved in roles improper for the government is bad enough, a global government is disastrous.
3. Given the ease of dissemination of unauthorized content on the Internet and impracticality of initiating a full-blown litigation over each case of infringement, the only sensible solution, if we are to deal with Internet piracy, is through cooperation of ISPs (both hosting providers and Internet connectivity providers).
4. To create a truly totalitarian state or a global government today, the Internet would necessarily need to be heavily regulated, hence the attempts to force net neutrality down our throats.
a. No totalitarian state has existed without drastically limiting freedom of speech or without serious invasion of private lives of the state’s subjects.
b. A system that allows to control ISPs for the purpose of enforcing intellectual property rights can easily be used to impose overreaching control over the Internet.
5. Internet, as any great invention, can be used for good purposes and for bad purposes. Regulation of the Internet can also be done for good and evil purposes.
6. Ends do not justify the means. It is impossible to save the free market system by abandoning free market principles, President George W. Bush to the contrary notwithstanding1..
So why does there seem to be a contradiction? Those who have read my article, Modernization of the Inconceivable, might have already figured it out. The main problem with ACTA is that it is based on a compromise of underlying principles. Just as a legislative attempt to balance interests of factory owners with those of looters who openly steal from the factory, is nothing more than institutionalized racketeering, an attempt to appease those who claim that they are entitled to “share” the cultural legacy by downloading, without authorization, any packages of ones and zeros, is nothing more than enslavement of creators (and those with whom creators voluntarily trade) by forcing them to give up the product of their labour and investment on terms that are dictated by someone else.
Until the proposed international agreement clearly states that the protection of intellectual property, as its underlying principle, is undertaken for the benefit of whose who create it and invest in it and that it has nothing to do with the interests of the whole “society”, we are doomed to witness the war between various groups lobbying their interests. When the use of one’s property is subjected to undefined interests of the “society”, one is neither the owner nor a free man. If a person is only allowed to have a private home if the society finds it beneficial, then under the same logic, the society can always expropriate the house, if it should find, through an activist claiming to represent the interests of the society, that expropriation would benefit the society even more. This is precisely what happened in the Soviet Russia where if the place you lived at was more spaceous than 9 sq. meters (97 sq. feet) per person, you were considered too rich and the government had the right to let strangers into your “communal” apartment. When it is up to the society (through its elected or self proclaimed representatives) to decide who should own what, one is merely a slave whose property can be taken away at any time in order to meet the demand of the public.
As long as the mechanics of the proposed agreement are designed with the interests of the collective in mind, there will always remain a risk that the enforcement tools created by the agreement will be used for unrelated purposes that are, as will be claimed, equally as important to the society. If even a partial justification for establishing the rules for ISP liability is that it would promote the public interest in the encouragement and dissemination of works of art2., then there is no reason not to use the same system of ISP liability with respect to dissemination of extremist speech, the definition of extremism being, naturally, left to the discretion of anybody who will claim that shutting down of a particular opposing view is in the interests of the country.
That is the problem with the current wording of ACTA, not that lobbyists from the recording industry cannot come to terms with lobbyists from the electronic gadgets industry; or that both these groups are vehemently opposed by activists of the “masses are (or should be) entitled to use copyrighted works as they please” movement. The problem is that because ACTA does not clearly establish the notion that the only concern for protection of intellectual property is the creator and subsequent voluntary investors in the creator’s work, the treaty members are not precluded from approaching the issue of such protection from the perspective of the “common good”, thus allowing a dubious compromise between two conflicting philosophies.
That ACTA has more chances of being implemented in the world because of its wording being vague enough to accommodate irreconcilable interpretations, is not good enough. If one scholar says that ACTA establishes a three-strikes-you’re-out rule and another scholar says that all it does is that it confirms contributory liability of ISPs, which liability is lifted subject to the ISP’s reasonable cooperation, it means that the same text may equally reasonably be interpreted as providing a global government with a tool of shutting off dissent and establishing total control over who does what on the Internet. What is attempted to be sold as a virtue of ACTA, that it offers a balanced approach to various groups of interests, is precisely its most important flaw.
As soon as the treaty’s purpose becomes to establish a fair balance of interests (based on whichever group succeeds at extorting favours from the drafters and other parties), the implementation of the treaty would always lie in the domain of re-evaluation of what balance is “fair” under the circumstances (the circumstances being, of course, the relative power of various interest groups in a particular country at a particular time). This is nothing more than warfare between various gangs as to which one of them has more power over the others.
Those who understand the importance of intellectual property should not lull themselves into believing that everything is going their way simply because lobbyists from their camp succeeded at squeezing in a rule that would tip the balance in their favour. As long as the protection is not based on a morally consistent principle, there is no guarantee that the balance will not tip the other way tomorrow or that the enforcement mechanism created by ACTA is not used for purposes radically different from those that it will have been introduced for.
The only way to ensure that an international treaty provides a solution to combat Internet piracy without becoming a tool of oppression is to so word the treaty that it would not leave any doubt as to the reasons why intellectual property is granted protection. And that reason should be stated clearly and proudly – intellectual property is being protected because no one has a right to use the results of another’s creative labour, other than on terms put forward by the creator or the subsequent copyright owner who voluntarily purchases said rights from the creator. It has nothing to do with whether the society benefits from such protection.
Unless the collective interest is left out of the equation, there will always remain a risk of this collective interest being used to enslave everyone into submission to whoever claims to be the representative of the society at any given moment. This is precisely the way all collectivist dictatorships of the past have seized power. It should not be forgotten that no dictator has come to power on the promises to murder millions of citizens in their own country. All the atrocities of collectivist regimes (be it Lenin, Stalin, Hitler, Mussolini, Mao, Khmers Rouges, Che or other blood-thirsty monsters) that are presently being laundered by the left, have been accomplished in the name of the common good.
I am not saying that ACTA will necessarily lead to the world holocaust. What I am saying is that the lack of clarity in the reasons for its adoption would make both IP supporters and haters guilty in the demise of our freedoms. The difference, however, is that the haters’ goal is clear – they openly advocate for the submission of creators and investors to the interests of the “society”. It is the position of many IP supporters that is most inglorious: by trying to carve out a piece of the pie for creators, they are prepared to do away with the philosophical basis for the protection. By throwing the creators to the mercy of the collective, even if it benefits the creators in the short run, all that they are achieving is that the paradigm slowly shifts to the one that IP haters embrace – that there should be no protection other than that which benefits the society as a whole.
This is a repost of my article that I published at MINCOV.COM April 27, 2010.
Ever since I started practicing in the field of intellectual property law, I have been an avid supporter of stronger copyright laws, in the sense that the law should provide an efficient tool for the owner of intellectual property to control its use by others, to the point of being able to legally prevent its unauthorized use altogether. For greater clarity, I do not differentiate between the need to protect the rights of authors and of subsequent owners of copyright, as long as the authors were not compelled to assign their rights by force.
Seeing where the world is going to, particularly in terms of piracy, I was becoming increasingly sad, thinking that the system of copyright is being systematically destroyed. It is easy to see why the collapse of intellectual property laws would be welcomed by those who engage in unauthorized use of others’ works, but I had been struggling to understand why the idea of significant curtailment of authors’ rights in favour of “the public” also finds its proponents among many prominent scholars1., who do not necessarily fit into the category of people downloading movies off torrent websites.
Only a few months ago, did the pieces of the puzzle come together for me. Only a few months ago did I realize that the current attack on copyright is simply a part of a larger picture. In this article, I will provide a simplified overview of the mental process that I went through to see the big picture.
It all started when, for various reasons, I had to do some research on a fundamental issue that most practicing lawyers (myself included, until recently) tend to treat as insignificant or too obvious. The issue is the one of the nature and justifications of copyright. Why do we have copyright laws at all?
From the inception of copyright, there have been two competing points of view on this.
According to one, rights to results of one’s creative activity come from God, or otherwise from the nature of man, or are otherwise akin to property rights. One of the most famous quotes reflecting this first approach belongs to Jean Le Chapelier. In 1791 in the Paris Assembly he said: “The most sacred, most personal of all the properties, is the work fruit of the thought of a writer […] so it is extremely just that the men who cultivate the field of thought enjoy some fruits from their work, it is essential that during their life and a few years after their death, nobody can dispose of the product of their genius, without their consent”2.. According to this approach, copyright laws are nothing more than a reflection of objective law that only requires the government to provide the means of its enforcement.
The second approach is to say that but for the grant from the government, authors have no rights. These rights are said to be granted by the government for the “public good”. Governments are prepared to tolerate authors having some rights, but only to the extent that it benefits the public. And as with any entitlement coming from the government, whatever the government gives, it can always take away.
Historically, the problem has been that proponents of each of these approaches tried to push forward their ideas by masking them behind ideas of their opponents. This resulted in a situation where none of the arguments actually made any sense.
Proponents of God-given theory tried to give as much protection to authors and at the same time to appease the proponents of the public good theory by claiming that the reason that monopoly rights should be granted to creator was because such monopoly rights would in fact benefit the society as a whole. But if the right is a virtue in and of itself, then we should not care whether it benefits the public. For example, we do not explain the virtue of protecting human lives by the premise that it would benefit the society as a whole if we did not allow killing people. It is irrelevant whether the society benefits from that or not, since the human life is seen as a virtue worthy of protection. The same principle should apply to copyright, if it is indeed regarded under the natural rights theory.
Conversely, the proponents of wide public rights often mask their conception behind an attempt to create a “balance between promoting the public interest in the encouragement and dissemination of works of the arts and the intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated).3.” Some have suggested that the “sole interest” of the government is to create a system that benefits the “society as a whole”4.. However, if this is true and if copyright laws are not primarily adopted to benefit creators, then, by implication, our only concern with creators’ interests is that such interests are not squelched to the extent that the resulting refusal of creators to create new works and make them available to the public, would actually harm the society more than the society would “benefit” from freely using someone else’s intellectual property. However, the provision of a bare minimum of food by a master to his slave, only sufficient for the slave not to die and to keep working, can hardly be called a “balance of interests”. In a way, this “balance of interests” in relation to copyright can be analogized with the state’s obligation to protect a person from having his property forcefully taken away, provided that such a person agrees to part with this property voluntarily.
Having noticed this inconsistency, but unable to untangle it, I looked up copyright laws of many countries. Invariably these laws are structured in a way to give authors an exclusive right to use their works as they please and to authorize others to do so. What does an exclusive right mean? It means a right to use the work to the exclusion of all others. Now, if governments were creating copyright laws for the benefit of the whole public, how is it that they did it by granting a monopoly to those who could severely limit the public's use of their works through the use of this very monopoly?
There are no other examples when the public benefit is ensured by providing a nearly absolute monopoly to a group that opposes the rest of the public. Governments did not create private property on land to benefit the homeless. Neither was the private property on crops introduced to benefit the hungry. If it was not the intention of governments to vest such a tremendous tool for control and monopoly in the authors, why are all such laws invariably written in a way that allows no other interpretation?
The mere fact that copyright laws are indifferent to the value of the works they protect (i.e. works receive copyright protection regardless of their artistic merit) should serve to disprove that copyright is created for the benefit of the public. If a work holds no value to the public, why would governments be concerned to grant the author of the work with a monopoly in respect of the work? Or is it just the opposite – that copyright should only protect works that nobody wants to use?
The next thing I did was I looked back at the history of the Soviet Union. It had copyright laws that, in fact, were written to benefit the public. Authors only had the right of first sale with no further right of control as to how their works are used afterwards. In vast majority of cases, it was the government that was the first buyer. Also, authors had the right to receive a “fair” remuneration for subsequent use of their works and the right to have their name mentioned every time their works were used. And, of course, it was the government that decided what was fair.
The Soviet model of “copyright” gave birth to many great works of art without vesting substantial rights in creators. It did not exactly result in all authors refusing to make their works available to the public. So I agree with those who don’t buy the argument that weak copyright will necessarily mean that people are not going to create. However, even a superficial analysis of the structure of creativity in the Soviet Union would reveal that it was based the following factors.
Authors received substantial benefits from the socialist government if they created what the government wanted them to create. That’s why there were so many operas, symphonies, cantatas, plays, stories and songs about Lenin and communism.
Second, the system abused authors’ love of the process of creation. When one is truly gifted, then the ability to create becomes more important than the urge to make a political statement by refusing to create. Many authors are forced to believe that their art is the only thing that they are good for. The socialist government offered creators a “deal” – they were allowed to create on the condition that they would have no right to control their works. By depriving authors of any say in how their works are used, the government punished authors for their virtue, for what they do best. This “deal” would have been impossible with those for whom the act of creativity is meaningless. This is very similar to how most countries today are punishing the rich for being so industrious. We tax them to death, but expect them to continue working because we know they love their work and because they are good at it.
Finally, the system would prevent emigration from it. Remember the Berlin wall? Remember Cuba? Remember the Soviet Union? Why is it so many people were risking their lives to emigrate? It was because the socialist government understands that as soon as a talented person is allowed to exercise their free will and to enjoy their freedoms, they will never go back to being spoon-fed by the government in return for giving up of these freedoms.
My father is a famous Russian composer who has composed music for over 100 movies. I asked him what it was that changed for him when the Soviet Union finally collapsed and Russia adopted copyright laws that were like most other copyright laws on the planet. From the creative point of view, there was not much difference. The only aspect that did change substantially is that the “true” copyright law provided a mechanism to control how the works are used, an opportunity to make decisions for oneself. The ability of the author to capitalize on this opportunity is a separate issue. This is the beauty of the free market system, in that it gives every one the right to fail and to succeed.
The Soviet system removed the element of opportunity. It was the government that decided for the authors what is a sufficient and fair remuneration for them. It was the government that decided what stories were printed throughout the country, what lyrics were put in songs and so on. The best example is how the Soviet censorship turned a song about an American cowboy into a song with no lyrics, thus creating what became a recent obsession, Trololo5..
The system worked ONLY as an integral part of the overall socialist nightmare. As soon as the socialist experiment reached its only possible result by destroying the country’s economy and, most importantly, the spirit of the people who live there, the government-fed copyright became unworkable. Free market economy (even its corrupted Russian version) cannot exist with the government telling everyone what and for how much they must create and license.
Today’s attack on copyright is simply one piece of the puzzle. The whole puzzle is the attack on free market and individual rights. The whole puzzle is the Great Socialist Evolution that has corrupted the Western world through various entitlement programs and indoctrination to the effect that the government can and should regulate everything and redistribute the wealth. The more entitlements people have, the harder it is to convince them that this model is unsustainable. Just as Margaret Thatcher said: “The problem with socialism is that eventually you run out of other people’s money”6..
Nothing that must be produced by another’s labour is a “right”. Housing is not a right. Health care is not a right. Use of someone else’s music is not a right. Let me illustrate this idea by the example of health care. If tomorrow all doctors exercised their free will and decided to quit, the government would have to enslave a group of people and force them to provide medical services that the government has determined is a “right” to all. In fact, this is exactly what was happening in the Soviet Union, where one went to jail if one was not employed.
Combining these pieces of the puzzle together, I realized that it is childish to only fight for stronger or weaker copyright laws. Copyright laws are nothing but a function of the political regime. Strong copyright laws cannot exist in a country that is giving away unearned entitlements to the undeserving and that is punishing those who create value for the country. Even the best imaginable copyright act (however subjective that may be) would not make a difference in this situation. If your car is falling apart, losing parts as it goes, it won’t be much help to install a new stereo in it.
I do not believe that anyone has a right to use another’s works without permission or in contravention of limitations that the copyright owner had imposed on their works. A man who creates something which had not existed before is free to pursue ANYTHING in return for it. He did not create the work for the society to determine the terms of how it is going to be used. He did not create the work for the enjoyment of the society. He created the work in an attempt to achieve his personal goals, be it the joy of a hobby, fame, goodwill, wealth or something else. It is up to the author to determine the terms on which he would allow the society to use his work. If he wishes to allow the public to freely use the work, nothing prevents him from making such a disposition.
But I hold this belief as part of my overall convictions that no one has a right to anything created by someone else. The dispute should be not about whether we need stronger copyright laws or whether we should be expanding exceptions from copyright. The issue is whether we are to subordinate individual rights to mythic “public interests” and the “benefit of society as a whole”. Copyright, as much as I love it, is just one card in the deck. I hope this article will help the readers better see the game that is being played with these cards and make their own decisions.
This is a repost of my article that I published at MINCOV.COM on June 28, 2009.
Recently I wrote a 100-page comparative research paper on the treatment of parody in the copyright laws of common law countries and selected European countries. Thus, I could not help but voice my thoughts regarding the ongoing dispute between J.D. Salinger and the author and publishers of a purported sequel to The Catcher in the Rye (“Catcher”).
J.D. Salinger has sued Swedish author Frederik Colting, who wrote the novel 60 Years Later: Coming Through the Rye (“60 Years”) under the pseudonym J.D. California. The disputed literary work has attracted comments ranging from “rip-off, pure and simple”1. to “a sequel”2., to “not a sequel”3., to “criticism of J.D. Salinger and of Catcher in the Rye”4., to “tremendously important commentary”5., to “a parody”6., and finally to “a complex and undeniably transformative exposition about one of our nation’s most famous authors, J. D. Salinger, and his best known creation, Holden Caulfield."7.
In his declaration, Mr. Colting concedes that his earlier book cover and some promotional material characterized 60 Years as a sequel8.. One would find it hard to believe that it is a coincidence that he came to “realize that this description is inaccurate”9. only after the lawsuit has been filed. Suddenly, the “parodist” realized that his book, on which he spent “an entire year of [his] life”10.,
“is not designed to satisfy any interest the public might have in learning what happened next to Holden Caulfield or the other characters in Salinger’s book. Rather it is intended to stand on its own as a critical examination of the character Holden Caulfield, the relationship between author and his creation, and the life of a particular author as he grows old but seems imprisoned by the literary character he created”11..
It is only after the lawsuit was filed that Mr. Colting expressed the view that he “wrote 60 Years as a critical exploration of such themes as the relationship between J. D. Salinger, the famously reclusive author, and Holden Caulfield, his brash and ageless fictional creation”12..
Granted, I may be overly sceptical about Mr. Colting’s description of 60 Years. I did not read it.
What? You might say, and yet you are writing an article on it?
Please be patient, gentle reader, as I shall expound my logic on this further on.
Indeed, it might be a true gem of a parody. Maybe, it is an “important commentary and criticism of Catcher and its famous author”13.. Colting acknowledges that he is “fascinated by the widely-reported fact that, after creating Holden, Salinger never published another work and essentially became a recluse, while at the same time exercising ‘iron-clad control over his intellectual property, refusing to allow others to adapt any of his characters or stories in other media’”14.. He specifically chose Salinger’s famous work as the basis for his “first novel”15. not only because it is one of the most famous novels of all times, but also because of Salinger’s fierce opposition to any, let alone unauthorized, derivative use of Catcher. The question is, even assuming 60 Years is indeed a true parody, should Colting get away with it?
The attempt of Colting and his lawyers to classify 60 Years as criticism and parody is not unexpected. From the documents and comments I have gathered, it appears very likely that, despite the defendants’ claim to the contrary, 60 Years will be held to constitute an unauthorized use of Catcher and its protagonist. If this happens, the only way for the defendants to avoid the finding of infringement would be to prove that the use of Catcher constitutes fair use under §107 of the U.S. Copyright Act16.. While the list of purposes that presumptively imply a fair use in §107 is not exhaustive17., the presumption, if satisfied, of course, makes the defendants’ task much easier.
The fundamental distinction between common law and civil law approaches to the criticism exception is in the fact that the former permits any type of use of the underlying works for the purpose of criticism (provided that such use is fair), whereas the latter only permits quotation of underlying works for such purpose. By implication, quotation only allows unaltered (albeit fragmentary) use of underlying works18.. Parodic modification of an underlying work, while it still may be regarded as criticism, is beyond the definition of quotation. Quotation presupposes scrupulous copying of the used portions of an underlying work and their separation from what is added by the new author. Parody, on the other hand, normally implies integration of the modified (or, in some cases, mutilated) underlying work into the new resulting work.
In common law countries, the criticism exception seemingly allows any type of use of an underlying work provided that such use is made for the purpose of criticism, without it being expressly limited to quotation. Hence, the willingness of creators of unauthorized derivative works to claim this exception as a defence. I suggest that while the criticism exception in common law countries is not expressly limited to unmodified use of underlying works, this limitation is implicit in the words “fair use” or “fair dealing” (since, perhaps, unauthorized alteration of the work for the purpose of criticism should be regarded as unfair19.).
Criticism is an extremely broad notion. Any use of an underlying work may be said to be a criticism of something or someone. No doubt, parody is criticism. But there are many “unfair” uses that also fall within the definition of criticism. For example, creation of a DVD collection “100 most boring movies” is criticism. However, unauthorized reproduction of 100 full movies under this title would still be unfair and illegal. Likewise, a CD collection of “100 songs by ugly hairy artists” is also arguably criticism, which cannot be excused as fair use or fair dealing20.. The mere purpose of criticism does not justify copyright infringement.
The fairness analysis with regard to parody has the same inherent difficulties as that with regard to criticism, with one additional aggravation. There exists no unequivocal legal definition of parody. Because most people (and courts) tend to agree that parody, by definition, requires more extensive use of the underlying work, compared to criticism, the so-called parody exception has become a dominant theme with those driven by the general idea that the balance of interests should tip in favour of the public by limiting the rights of authors and copyright owners (and thus ignoring the fact that the public would only benefit from the use of works if they are created and disclosed by authors).
Their attack on copyright has been carried out on several fronts. The economic irrationality of litigation in case of mass infringement of copyright on the Internet is often used as a pretext to justify the idea that what is done with impunity by so many people cannot logically constitute an infringement. Concepts of freedom of expression, freedom of seeking information and the right to cultural development have been thrown in the mix to rationalize legalization of unauthorized use of heretofore protected works. A separate trend in the so called “fair copyright” movement is represented by calls for extremely broad interpretation of exceptions to copyright.
Parody is a very convenient example for the “fair copyright” movement supporters to use. By providing examples of successful parodies, the supporters of “fair copyright” claim that copyright unfairly prevents creation and use of parodies. That a plethora of successful parodies have been created under “parody-unfriendly” copyright regimes that refuse to recognize an exception for parodies, seems not to disturb the commentators.
For example, in the UK, the proposal to add an explicit exception for parodies was formulated in the Gowers Review of Intellectual Property (“Gowers Report”) in 200621.. Surprisingly, to prove the point that “an exception to enable parody can create value”, Gowers offers the example of Weird Al Yankovic who has received 25 gold and platinum albums, four gold certified home videos and two GRAMMYs® by parodying other songs, “but had to ask permission from rights holders”22.. It is inconceivable how a special exception can be necessary if there is a living example of an artist who sold 25 gold and platinum parody albums, but never had an urge to create unauthorized parodies. Does the report suggest that he would have sold more platinum albums if he was allowed to create parodies without asking permission? Or would his parodies be any better? Indeed, the example of Weird Al Yancovic clearly proves the contrary, that no special exception for parodies is necessary.
It seems illogical to attribute greater importance to the “parody exception” than would be justified by the relative frequency of creation of parodies compared to the use of pre-existing works for the purposes of criticism, news reporting, research or private study. Overly enthusiastic attempts to introduce broadly interpreted exceptions for parody may signal that the proposal is broader than it appears to be, and that it may be only tangentially related to parodies. The parody exception is only one of many exceptions. It is not “the” exception that will significantly change the balance of interests between authors and the public.
However important the transformative element is in the fair use analysis, it does not take away the exclusive right of copyright owners to authorize creation and use of derivative works. The general idea is that there must be something very special about the parody which warrants a substantially different approach compared to other transformative derivative works. It is well known that Salinger turned down requests from Steven Spielberg and Harvey Weinstein to acquire film rights. If 60 Years is a protected criticism or parody, how is it different from an unauthorized motion picture? If 60 Years is found to be legal, how long will take until a new unauthorized commentary emerges?
Unlike in common law countries where the discussions about parody exceptions are a more recent trend, the parody exception has existed peacefully in France since 1957. Article L. 122-5 of the French Code of Intellectual Property provides that “once a work has been disclosed, the author may not prohibit… parody, pastiche and caricature, observing the rules of the genre”. Despite the somewhat vague wording relating to the requirement to observe “the rules of the genre”, the French courts have been extremely cautious in applying this exception.
The disproportionate worldwide interest in the parody exception is largely due to the U.S. Supreme Court decision in Campbell v. Acuff-Rose Music (“2 Live Crew”)23., the leading (and internationally famous) case dealing with a rap version of Roy Orbison’s song “Oh, Pretty Woman”, as performed by the band 2 Live Crew. There, the concurring24. Justice Kennedy outlined the dangers of an overly broad interpretation of parody and of creating a presumptive exception with regard to parodies:
“…doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. We should not make it easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the original. Almost any revamped modern version of a familiar composition can be construed as a ‘comment on the naiveté of the original’, because of the difference in style and because it will be amusing to hear how the old tune sounds in the new genre. Just the thought of a rap version of Beethoven’s Fifth Symphony or ‘Achy Breaky Heart’ is bound to make people smile. If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. Any underprotection of copyright disserves the goals of copyright just as must as overprotection, by reducing the financial incentive to create.”25.
It is hard to disagree with Justice Kennedy's words. Unless we are prepared to create a parody of our copyright laws, it is imperative that the definition of parody be limited to a very circumscribed area, otherwise practically any infringement could be excused under the umbrella of parody. Indeed, the exception cannot be so broad as to allow the creation of any new works over the existing ones under the guise of parody.
It may seem that the dangers of an expansive interpretation of what may constitute a parody identified in 2 Live Crew by Justice Kennedy are in fact seen as a great advantage by “fair copyright” activists. Indeed, an overly broad parody exception effectively creates a shortcut to a general “public benefit” exception, readily allowing an unauthorized use of an existing work if it benefits the society. I suggest that there are two reasons why a general “public benefit” exception is a bad thing. First, it does not take into account the works that may never be created by authors discouraged by the failure of the courts to protect their works from being used against their will. Second, balancing the interests of various parties is not a distinctive characteristic of copyright laws. All laws are presumably premised on the balancing of such interests. General property laws are also adopted with the view of the public interest in mind. Unrestricted unauthorized use of someone else’s physical property may also have “public benefits”, but no one seriously suggests that such measures be taken. Encroachment of property may only be allowed in some very limited and clearly prescribed cases. I posit that it is exactly the same approach that must be taken with regard to parody.
Copyright laws have always been about the balance of the interests of creators and the public, about whether it is more fair to subject the public’s access to works of art to the whim of the creator or whether it is more fair to deprive the creator of a certain degree of control over the use of his works by the public. In my view, the danger that an overly broad parody exception may evolve into an open transformative use exception is far greater than the damage resulting from a “true” parodist’s failure to publish their unauthorized parody. In other words, if lawmakers and the courts cannot provide a clearly delineated system of rules and definitions that would allow some foreseeability as to whether a particular work would qualify as a parody, then I suggest an absolute ban on unauthorized parodies would be more appropriate than the ultimate uncertainty where an infringer can ex post facto claim that the infringing work is a parody.
I do acknowledge the intrinsic value of parodies and do not necessarily fully subscribe to the words of Ernest Hemingway who once said:
“The parody is the last refuge of the frustrated writer... The greater the work of literature, the easier the parody. The step up from writing parodies is writing on the wall above the urinal”26.
There are some truly great parodies. In my opinion, the best parodies have been those that did not parasite on the popularity of the originals. The more famous the original, the harder it is to create a great parody, since true parody needs to overshadow the original, and it is usually hard to add much to an already famous work.
The courts should never go into evaluating the quality of parody. A brilliant, sharp and socially necessary parody in legal terms bears the same relationship to the original as primitive, nonsensical mockery. Unfortunately, as with any other kind of creative works, truly valuable parodies will only make up a fraction of the bulk of garbage created by wannabe parodists. Creativity should be supported. However, in case of parodies, supporting parodic creativity necessarily means doing so at the original authors’ expense. I firmly believe that unless very strict rules and limitations are introduced to come along with the parody exception, the price payable by original authors is too high. These rules and limitations must cover both what may legally constitute a parody and how unauthorized parodies may be used. Uncertainty creates serious risks for parodists too. If Mr. Colting is permanently enjoined from publishing 60 Years, he and his publisher will have lost time, efforts and money spent on creating and publishing a work that they hoped would meet the vague requirements for parody. Of course, it is the risk one takes when one relies that their actions will be excused under the fair use doctrine. But today the parody exception is too unpredictable – and this cannot encourage parodic creativity either.
Going back to Salinger’s claim, the defendant’s argument regarding market impact deserves a special remark. Indeed, Salinger has not written a novel since Catcher. No doubt, there is no market substitution in the sense that the public will not be inclined to buy 60 Years instead of Catcher. There are three reasons why Salinger’s claim should not fail for lack of negative impact on the market for Catcher.
First, the analysis is not limited to direct market substitution of the original work and the parody. It also covers potential legitimate licensing opportunities the plaintiff may have and the parody’s impact thereupon. With every new day of Salinger’s refusal to authorize anyone to create derivative works, his exclusive right is worth more. While 60 Years may not ruin the market for Salinger per se, it is the legalization of 60 Years that is very likely to do so. In other words, if 60 Years is found to constitute a protected parody, what would prevent a film company from creating a motion picture based on 60 Years, which would incorporate a good deal of reminiscences to Catcher? What would prevent the emergence of new sequels under the guise of important commentaries and parodies? It so happened that a part of the value of Salinger’s copyright is due to the fact that he never authorizes others to touch Catcher. It only takes one shot to break a mirror.
Second, it would be incorrect to use the negative impact on the legitimate economic interests of the original author as the sole or even a dominant factor in the parody analysis, because – by way of analogy – if someone was to make pirated copies of software or music CDs and give them away for free to the homeless, one could say that the homeless would never be able to buy the authentic CDs, therefore the copyright owner suffered no loss. There could even be cases where copyright infringement may have a beneficial economic effect on the market for the original author’s works, because the infringing work may in fact revive interest in the original work. However, it does not make these acts any less an infringement.
Finally, there is nothing wrong with an author’s decision to live secluded from the public eye after publication of a phenomenally successful book. Salinger must have made this decision on the basis of trust in the protection offered by the copyright laws. This is the deal between the author and the public. The public should not attempt to force an author into writing new works by removing protection from the existing ones. That the value of the work is so great that it allows the author the luxury of living as a recluse should not be used against the author by depriving the author of the promised protection.
On June 17, 2009 the federal judge Deborah Batts granted a temporary restraining order enjoining the defendants from publishing, advertising, selling, or otherwise distributing 60 Years. It is clear that this case will go through all possible stages of appeal until the losing party loses the final appeal. Apart from the issue of whether Catcher’s protagonist may be protected by copyright separately from the book itself, this case will set an important precedent for the treatment of parody.
If Salinger fails to permanently enjoin dissemination of 60 Years as a result of the court’s finding that it constitutes protected criticism or parody, it will signify a very substantial diminishing of the value of the right to create and use derivative works. It will mean that a sequel to a pre-existing work may not require authorization from the original author, if the defendant suddenly remembers that the sequel was in fact created as an important commentary or parody. This is precisely what Justice Kennedy was warning against in 2 Live Crew. If 60 Years is anything less than a true parody or criticism, the decision in favour of the defendant would signify the emergence of a general “transformative use” exception, incompatible with the exclusive right to control derivative works.
With today’s attempts of the activists of the so-called “fair copyright” movement to use parody as a flagman ship to break the ice of protection that copyright laws afford, parodists seem to be in a win-win situation. If the author of the original work does not sue them, then they are left to parasite from the fame of the original work. If they do get sued, then the activists will make sure that the parodist becomes widely known as a martyr standing up for the rights of creators of transformative works, if not simply famous as a writer27.. If the parodist successfully defends the case, they will be able to sell many additional copies of the parody based on the fame attracted by the lawsuit. Even if the parodist loses the case and the distribution of the parody is enjoined, the newly acquired fame generated by the lawsuit will allow the parodist to sell whatever he or she writes next in their new status of celebrity.
The courts need to come up with a pronounced “Enough!” to the attempts to compromise copyright through labelling (often in the alternative) each case of non-literal copying of a pre-existing work, a parody. The parody exception cannot be claimed as an alternative. This has been understood in France28., where the dual requirement of recognisability and substantial creativity precludes a defendant from using the parody exception as an alternative to the defence of not borrowing from the underlying work. In other words, the defendant cannot say: “I did not copy this work, and if I did, it was a parody”. Parody requires the parodist’s positive intent to borrow from the underlying work to create a new work with a comic effect29.. An infringement does not become a parody simply because the result it funny. Much less when it is not.
60 Years looks like a blatant attempt to test how decidedly the courts would be prepared to turn their backs on authors for the dubious public benefit of having access to the book whose primary value is that it is either a sequel to or a commentary of the famous pre-existing work. If the courts are unable to defend Salinger, an iconic example of an author who had dedicated his life to preventing unauthorized use of his prior works, then we should ask ourselves, why do we still have copyright laws at all and whom they are supposed to protect.
Yesterday, I received a call from the Law Society of British Columbia. It appears that a lawyer informed the Law Society about the video ad that I posted on this blog on April Fools’ day.
The Law Society’s position is that the video is a marketing material whose contents are contrary to the best interests of the public.
I decided to take the video down, even though I disagree with the Law Society’s conclusions.
First of all, there is no such thing as “best interests of the public”, because no such entity as “the public” exists. Each member of the public has his or her own interests. No person or organization can claim to represent the interests of a non-existing entity.
Secondly, in fact, I do believe that the contents of my video were beneficial for the interests of those who were choosing to watch it, because it allowed them to decide whether or not they wanted to be represented by someone who does not necessarily look or act like the stereotypical lawyer.
As I stated earlier, I decided to take the video down, since a fight the Law Society would distract me from the objective of building my firm and helping my clients Protect their Ideas and Cover their Assets™
Now the video is private and only available to my friends.
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