Wednesday, February 25, 2009

If You Give Them An Inch...

The Writers Guild of Canada presented before the CRTC Board on New Media this week. They articulated their points in as clear a manner as we've seen so far (other presenters should take notes). And they were still treated a bit like bewildered children by a Board run by a man who publicly declared who has no interest in most Television and Radio. (Seriously. Read the interview that started the outrage here. The response in the arts community? John Doyle's January 22 column in the Globe & Mail will give you an inkling. As will the follow-up post featured on Denis McGrath's blog later that week.)

Like any member, there are things I sometimes wish the Writer's Guild would get around to addressing, most notably inequities in the contracts for kids and animation writing. But truthfully, I am a big fan. They're a dedicated group who do a great deal to defend and expand the rights of writers and artists in general. And they've been working away on multiple fronts for the past couple of years both within our industry and with the various levels of Canadian government. I think they've done a pretty good job of keeping our rights from eroding in the mercurial, shifting stands of this country's broadcast and production industry.

Decades ago, writers, actors, directors, and other creators were essentially shut out of any significant video and DVD earnings when those new platforms came into being when negotiating producers wanted to adopt a "wait and see" stance. We've been waiting ever since. Eventually the web will become more effectively monetized and if creators don't get in on the ground floor to protect our rights to our own work content and to make a proper living, we'll never catch up.

It's hard to get any attention on this topic beyond the Internet boards. The Globe And Mail coverage is buried in their Technology section. Not in Business. Not in the Arts. Not in World News. This is pretty typical of any media coverage of this topic. But these hearings affect all of these areas and more, so it's worth keeping up to speed.

Today the Guild asked the CRTC to consider the internet as part of the broadcasting landscape and force the ISP providers and Cable companies (who are in a protected industry) to, among other things, contribute to a production fund for online content. A little something back for their right to play in this country's digital sandbox without US competition. For their part, the companies are once again fighting to do less and less for this incredible right. The essence of the WGC presentation is summed up here, once again in Denis McGrath's blog, Dead Things On Sticks, one of my few must read sites.
Some key points:

  • The WGC thinks that any content levy could easily be absorbed by the ISP's -- because it proposes exempting smaller ISP's who might have trouble paying. Driving an increase in bandwidth due to increased demand for video traffic will increase the profits of the ISP's -- who already charge more for people who download more heavily. It's in their interest to drive people to download more so they can charge more.
  • Fund could fund Broadcaster add-ons for existing shows, or all-new shows for the internet only.
  • ISP's are trying to pull a bait and switch. They are not broadcasters, but they are part of the broadcast system, and they are trying to avoid their responsibilities to contribute to that system like every other player in the system.
  • CanCon on the internet should be defined as 75% of the money spent in Canada, and the top 5 creative positions going to Canadians (recognizing that diff projects might have different creative needs, ie: a designer not a director, a writer who also codes, etc.)
  • Proposing a system by which new web-broadcasting ventures could "opt in" to a voluntary CanCon cert. system where they would then be able to access funds for new media production. Let's call this the "Jim Henshaw point." :)
I think it's more than possible for reasonable people to disagree about an ISP levy. But not from a position of dishonesty about how the Canadian broadcast system truly works.

Like the broadcast system, ISP's are protected telcos and cablecos who are shielded from competition. They receive regulatory advantage every day they operate. The question is whether they should be made to give something back to the system.

It's not a perfect plan, but it's an attempt to take a first step forward. The full presentation can be found at the WGC website under, "WGC, the CRTC & New Media".

So why should you care?

Because, if you give them an inch...

ISP providers, cable companies and broadcasters are businesses. And as businesses their bottom line is their guiding principle, not fairness and the rights of their customers or the artists who work with them. Most will make an effort to appear fair but still are looking for things to be a little bit more fair for them than they are for you. And if they get that much, how about a little more?

Some people are up in arms about this. They're worried about keeping the internet "open and free" and worried that making ISP's pay for their privileged, protective status will create a form of censorship and limit their opportunities to produce material for those same companies. But the truth is, you won't have any opportunities to create and make money if we don't set up some ground rules that everyone has to abide by.

Democracy and the capitalism are not the same thing. In truth, they are opposing forces. One involves active citizenship and working together to support everyone's basic rights. The other is about making money. Supporters of capitalism liken it to Darwin's survival of the fittest. But Darwinisim isn't about competition. It's about each species having the opportunity to adapt. Some do, some don't. But they all have the chance too. Evolution isn't a battle, it's a natural progression for each and every species on the planet. Capitalism is about conquest; control of as much of the market, its products and capital as possible.

Now, I want to make clear, that I am referring to the companies, not to everyone who works within them. Some of my greatest allies in developing new shows and striving to put out something really good have been network executives. People who believe in doing something great. But they still face the challenge of doing it in an environment that doesn't foster creativity, but rather fosters a drive toward higher profits.

In an earlier post on the CRTC New Media, McGrath (and I promise to link to other sites besides Denis' soon!) kindly shared an e-mail comment that included a link for the Lobbyist's Registry Search Engine, which lists the large number of meetings between the various private broadcasters and cable giants and the CRTC's Chairman, Vice-Chairman and secretary General over the past several months. It's a safe bet they're not doing this to shoot the breeze over the latest Jason Statham movie (which was wicked cool by the way).

I had never heard of the LRSE before. But it's much harder to take on a Pollyanna, "It's going to be all right" attitude after finding real numbers to back up my concerns about these hearings. For a world hard-wired into so much information, it's incredible the lengths people will go to avoid actually asking questions and seeking out the truth. Myself included, sadly.

A little overwhelmed? Me too. Let's paws fur a moment and
enjoy a fuzzy, digital hug from this determined feline.

Hang in there baby.

It's sad this isn't a bigger deal in the public's eye. We lazy bastards tend to let politicians and corporations do what they want. But don't mess with our addictive entertainments.

Remember the furor back in 1995 when it was discovered our cable companies were negative billing? People were angry Rogers were foisting extra channels on them and charging for them without asking. You had to show up in person at a Rogers' Cable outlet to cancel and also had to pay for the time you had the unwanted channels. I believe they introduced actual legislation in most provinces to make negative billing but variations on it still crop up from Shaw and Bell and other corporate giants. (In Shaw's case, it was a free preview of other channels that they "assumed" you wanted to keep if you didn't call and say, "Thanks, but no thanks."). Negative Billing is illegal and such a nasty term, but if we define it as a simple loss leader preview period? That's just fine, thank you very much.

People freaked and the media jumped on it. We had a government listing through scandal after scandal, a deteriorating environment, and the thing that got us to take up arms was that we didn't get to choose which cable tier to overpay for ourselves. The outcry was so great the mighty, corporate giant backed away. It can ignore and conquer anything but bad publicity spin. I wish I could say that since then I have seen signs that we learned to be more aware of how our government and a corporate mentality that puts the rights of business and lobbyists before individual citizens. But I can't. And that's too bad.

Because, if you give them an inch...

Last week's brew-ha-ha over Facebook's new policy of owning everything you ever posted there made the New York Times. When confronted with thousands of angry members after being caught insisting that Facebook now "owned" every image, note, joke, story, poem, personal detail and picture anywhere on the site, for eternity.

Facebook backed away, insisting they simply worded things incorrectly and merely wanted to ensure they have the necessary rights to carry and allow users to pass along their own information. Sounds a bit pat. Years ago Facebook users reacted to their Beacon application, which passed their shopping habits along to other sites. So let's face, this attempt to own our info is in line with their business model. A brief update on the fiasco can be found here at the MSNBC news site.

It's debatable how well Facebook's backdoor ownership claims would have stood up in court but it's highly unlikely the words were incorrect. Lawyers spend a lot of time creating these documents to defend against every possible outcome of a legal battle. You can bet they meant exactly what they said. They simply got caught. Most companies who try this don't get challenged in so public a forum. According to the Chicago Tribune article here, Facebook is working the spin machine even now, calling for User suggestions in drafting a new site "Bill of Rights and Responsibilities". Facebook saw an opportunity and went for it, simply because they thought they could. And now they're working to change public perception about them.

If you give them an inch.

How about the world of comics? Last year, Tokyopop, a US publisher of manga and manga styled graphic novels, introduced a Manga Pilot program designed to seek out young, hungry creators so eager to get their work published that they would sell all their rights to Tokyopop for a song. One of the most vocal opponents of the contract was Scott Pilgrim creator, Bryan Lee O'Malley.

O'Malley was riding the wave of interest in Scott Pilgrim that led the casting of Micheal Cera in the title role for the film adaptation that starts shooting soon in Toronto. It's under the direction of Sean of The Dead's Edgar Wright (It's very indie. They even cast through "Craig's List.). So O'Malley's roar was heard across the comic blogosphere. You can find his summation of the contract's dangers here at his blog. Any post that starts off with "It's like Satan wrote it, " you know is gonna be good readin'!

Tokyopop's contract is actually little different from the one offered creators by, a digital comic site sponsored by DC Comics. Zuda wants all the rights and none of the liability. More commentary followed from various comic creators and journalists. For those of you not up on comics, a collection of them can be found here, at the Newsarama blog, here at Tom Spurgeon's Comics Reporter site, at Heidi MacDonald's Publisher's Weekly blog, The Beat.

Like the Facebook flap, horrified reactions to the contract came from all over, even from the Savannah College of Art and Design, who removed Tokyopop from their list of publishers invited to present at the school. According to this blog post, one professor declared, "We want our students to get jobs, not raped." Niiiiiice.

If you give them an inch.

I can also point down south to the land of the freefalling and home of the bravely facing financial ruination for another example of what happens when we trust large corporations like banks to run themselves. I'm not talking about the current Financial Meltdown, turn on your TV's for news on that. Suffice to say, I echo writer Steven Grant's frustration, as shared in the bottom halves of his recent Permanent Damage columns.

For decades – I mean decades, without hyperbole – it's been an open secret that the job of regulatory agencies in the American government has been to collude with the businesses they're supposed to be regulating. It has always happened to some extent, but the Reagan administration pretty much made it mandatory, where they couldn't abolish regulation altogether. (The recurring Republican chant calling for deregulation and the end of regulatory agencies is predicated on the utopian notion that competition is the ultimate form of regulation, and that in a post-regulatory world with no rules everyone will cheerfully follow the rules. AKA "caveat emptor.") The SEC's non-testimony before the House as to why they ignored whistleblowers and let Bernie Madoff's investment operation (other brokers with similar cons keep being discovered in the wake of Madoff) go unchallenged until Madoff crapped away (according to him) fifty billion dollars just underlined what's been clear to everyone who has followed the market for the last 30 years or so: the SEC seems to think its real function is to be in bed with the financial markets. Not that this is any surprise, but the testimony also made it clear they're in no hurry to be part of the solution, seem in fact dedicated to letting it all blow over so the urgency for a solution fades away.

As you can see, people are angry about the financial crisis. And they're talking about it; many with more insight than me. But not enough people are talking about the insidious Orphaned Works Bill currently being railroaded quietly through Congress as the country is distracted by supposedly bigger worries. But the Orphaned Works Bill should be big news indeed for all artists, because it's designed to remove your innate right to a copyright on your work.

If you give them an inch...

Right now the Bill is limited to visual works, but it creates a huge opening to pry away the rights of writers and other artists too, all the while defying and making a mockery of worldwide copyright laws. Let me tell you a little about a Bill motivated by pure greed and arrogant, tunnel-vision philosophy grandstanding as a battle for freedom. People may think i am overreacting to this Bill, but give a listen to this Youtube overview of the some of the problems. It includes a portion of last year's interview with Brad Holland of the Illustrator's Partnership, an ad hoc group that has been opposing the Orphan Works Bill for over two years. Then I'll share my other concerns.

The complete version of this interview can be found here. The genesis behind this bill was to free up ancient works of art and photos that have no known, long dead, or untraceable copyright holders for use by museums, libraries, educational institutions, historians and documentarians.

This sucker stinks for a number of reasons.

*First and foremost, it removes an artist or creator's innate right to copyright and his ability to profit from his labor. In short, it takes away our ability to make a living. these rights are internationally recognized across the world. Therefore active use of the Bill could violate copyright laws in other countries, including Canada.

*The Orphan Works Bill sets out no governance for the copyright protection. It will not be carried out by the US government copyright office. The Bill calls for private companies to arise to take care of such registration. There is no limit on the number of companies that may offer this service. So If I have a thousand companies to choose for registering my work, a "reasonable search" of five companies does not include one I registered with, I am out of luck in defending my rights.

*Canada has a similar law but their registry and search office are centralized. It's a one stop shop. You register there and if you have a work that is questionable, they do a search for you as long as you can show you have done your own, initial due diligence. According to this list, only about 222 licenses for Orphan Works have been granted since 1990. I think this is in part, due to the fact that having a single registry makes it easier to locate a registered work.

*This would effectively remove our immediate copyright to our work and the right to profit from it into our old age and removes the right of our spouses and immediate family to profit from it after we are gone.

*Use of my "Orphaned Work" work is free. And extremely low limits are placed on how much I may be legally awarded if I do discover infringement. It's most definitely not enough to make hiring a lawyer worthwhile. Last I read it was somewhere in the neighborhood of $500. Once again, this heavily favors the defendant and makes copyright breach an affordable thing, especially for well-moneyed transgressors, like for instance, Google.

In a comment at Alas, A Blog last October, Paul summed his concerns regarding the above.
I was opposed to the bill that died for a few reasons. First, it defined making a “good-faith effort” as looking in some yet-to-be-created for-profit registries, so everyone currently holding a copyright would effectively have to re-register it. Second, it didn’t define (although it obviously could have) any kind of escrow requirement for reasonable royalties; instead, anyone whose work is taken has to sue in federal court, and can’t recover attorney’s fees. Third, and possibly worst for me, the citation requirement in the law, as written, works against the creator because, when I see a something published with the creator credited, I tend to assume that they were appropriately compensated for their work and approved of its use. With the orphan copyright act as written, there’s nothing that would stop whoever darn pleased from using ostensibly orphaned works in contexts that their creators would never have given permission for (imagine some neonazis with that archive of pictures from the Holocaust museum, complete with “courtesy of …” at the bottom of each picture).
*As Paul cited above, the use of my work may be used in support of something I do not agree with. His Holocaust example is extreme yes. But it brings the point home.

*I have to actually discover the infringement to gain any possibility of payment, even if it's been done somewhere a continent away.

*This affects all visual artists: illustrators, photographers, animators, videographers, filmmakers, etc.. And once this is passed, can adding the written word to the list laid open by this Bill be far behind?

And on it goes. If you give them an inch...

Many would argue that we are being paranoid. Mostly people who can't see any monetary value in art of any kind. But there is big money to be had. The mere fact that two of of the country's largest media companies, Google and Microsoft, have lent significant support to the lobbying of this Bill begs the question, "What's in it for them that they're spending so much time and money on this?"

Well, let's see, could it be that Google wants to weaken copyright legislation to avoid lawsuits against their attempts to use copyrighted material? In Orphan Works roundtables held by the US copyright office they admitted they plan to utilize as many as one million Orphan Works.

Google maintains its dominance in the information world by providing everything it can get its hands on at the touch of a button, including, potentially, our work. Google suggests that most authors in question "won't care" about them appropriating their work and that authors coming forward to claim their works once Google has grabbed them up would prove to be "extremely inefficient for us." They went on to admit that too many copyright claims against them may result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business." See here for more details.

And what about Microsoft's interest? I believe it's they want to sell or license the works themselves. Two of the largest distributors of photographs, motion picture and video images are Getty Images and their biggest competitor, Microsoft-owned Corbis. If Microsoft can get access to copyright free images, they can make a great deal of money. And unlike the poor shmuck artist they profit from, they have the money and the reach to defend their profits in the courts. Don't underestimate the money to be made here. Increasingly, it is the people who hold the information and the content that are raking in the dough. According to Fortune, as of 2008 Hellman & Friedman hasn't lost money on an investment in a decade and they spent 2.4 billion dollars to acquire Getty Images. You can bet they expect that investment to return heavy dividends.

Wonder who Google has partnered up with to lobby for this Bill? Getty Images. The cirlce is complete. Here's a brief summation of that connection from's Orphan Works update page.

The really huge crux of this, is not that they bill seeks to ‘PRESERVE’ or allow use for the libraries…at least not in the larger picture. This is only about making money from searches, the sale of Orphans, and the registration of images. They are killing the goose that laid the golden eggs…many artist will be searching other means to support themselves if it becomes impossible to protect their artwork from theft and the small artists will be the most likely target of infringers.

Do an internet search for GOOGLE,YAHOO, PICSCOUT + orphan works bill. How did they wind up giving testimony?
Microsoft (who was courting Yahoo) - who incidently owns (image selling sites)-
and they (microsoft) are already working with Pic Scout (who was mentioned to me by my reps aide yesterday as a potential ‘REGISTRY OWNER’)
( MICROSOFT hired Jule Sigall who was the man that wrote the ORPHAN WORKS REPORT while he worked for the COPYRIGHT OFFICE.
( (Tech Law Journal’s owner Mr.Carney wrote, “The primary author of the report, Jule Sigall, subsequently went to work for Microsoft. See, story titled “Jule Sigall Joins Microsoft” in TLJ Daily E-Mail Alert No. 1,510, December 27, 2006.”)

the reason everyone is fighting over the images are the millions/billions in ad sales resulting from the online searches…Google is the current leader and is now courting Yahoo themselves. Besides the millions or billions of dollars that would be generated from the ad sales, these giants will also make additional money off registration and searches as well. “Companies that create no content of their own, and make money solely on the backs of other people’s content, are raking in billions through advertising revenue and IPOs. Google takes the position that everything may be freely copied unless the copyright owner notifies Google and tells it to stop. ” That sounds familar…. & ( )

Google is hooked up with Getty (images sales again) and AOL (Shawn Bentley went from the US gov. to work for time warner - owner of AOL - as VP of IP and Global Public Policy after he worked in the senate and “helped write are among the most important laws in the intellectual property world: the Satellite Home Viewer Improvement Act; the Digital Millennium Copyright Act, the American Inventors Protection Act, the Patent Fee Integrity and Innovation Protection Act, the Anti-Counterfeiting Consumer Protection Act, and the Trademark Dilution Act, just to name a few.”

Then there’s apple fixing to jump into the mix?(

Also, any artist that uploads any amount of art onto free sites better be taking a really good look at their policies and finding out what they are up to. Artwanted’s policies already state your art goes right onto Google and WITHOUT CREDITS/COPYRIGHT INFO.

This bill will put many small artists out of business - we fight infringement daily NOW with the current laws. Removal of the penalties currently in place will open all artists up to constant infringement. Who has the time to spend hunting for infringed work on a constant basis? Oh, but don’t worry, because now, for a fee there are IMAGE SEARCHING sites springing up offering to let you find infringed copies/potential orphans - for a fee.

For more information on the Orphan Works Bill, check out the SAA Orphan Works Blog. Once again, the full interview with Brad Holland and more links can be found here. There are also arguments for and against here, here, and here. The Youtube video above came from this page, and is accompanied by ways to act against the bill now. At least one prominent artist trade group, the American Society of Media Photographers, has changed its stance after helping to defeat an early version of the bill last year.

People may think we're paranoid for trying to keep our footing on this slippery slope. But we've closed our eyes, clicked our heels together and wished for a fairer deal too many times to assume anyone else is going to watch out for our interests.

If you give them an inch they'll take a mile. And once they've taken that mile, what's to stop them from pointing to the horizon and saying, "I want that too, and everything beyond it. Forever."?

Just us.

Spread the word to your Member of Parliament and ask them to encourage an official Canadian protest. Then spread the word and ask all your US artist friends to go to this website to find out what they can do.

Spoiling for a fight? It's time to
stand up and be heard cool cats.

Live the adventure.