Here in Canada, there is a great deal of discussion about (c)–copyright–reform. But there’s a problem. Where before, the process of copying was limited by technology, these days, you can copy with the right click of a mouse. You can then disseminate the work to a vast number of people with a few more clicks.

From what I can tell, in order to get a functional legal regime in place, you have to strike the right balance between culture and law. Right now, the two are widely divergent. We have laws that say: don’t copy. It’s illegal. It’s not your right.

And we have a culture–and supporting technology–that makes it absurdly easy to copy and ridiculously difficult to catch infringers and enforce any restrictions on copying, without raising privacy and security issues (e.g. once there’s a gap created to monitor copying, others can also exploit said gaps).

So, why are we so big on protecting the right to copy? There are a lot of stakeholders in the current regime–people who have business models built around protecting the right to copy. And that right goes back a bit.

A Very Narrow Slice of (relevant) History

So, back in the day, the magical combination of technology, culture and law worked well enough together. In order to copy, you had to have training and equipment: a printing press, typesetting skills etc. Even with the advent of photocopying, it was time-consuming to copy a book. The cost of the materials and time, the loss of quality, and the fact that you ended up with a stack of papers–a far less convenient form factor–rather than a bound book, meant that it just wasn’t worth it.

Back then, it made sense to protect the right to copy. The people who invested in technology were those who were in the business of piracy for profit–and the technology was big enough, and the infringement on a sufficiently large scale, that it was easier to enforce.

Today

But today, as mentioned, copying is easier than it ever has been. Digital locks are limited, and those who care to break them will break them–indeed, for some, it’s an invitation. A subset of those people will propagate the hacked content, and that’s the end of the digital lock.

So where do we go from here?

Perhaps we shouldn’t be looking at protecting the right to copy. Perhaps that’s where we’ve got it wrong. Perhaps it should be more about use (for a fascinating and readable academic paper on the subject, check this out. Drassinower presents an elegant, compelling conception, and one that I tend to lean towards. It has shaped and influenced my position). The paper argues–and I would agree–that copying for personal use (to have a version on your laptop, on your phone, as a printout here or somewhere else) should not be an issue. The focus should be on commercial exploitation–on the people who are undercutting the rights holders who are simply seeking recompense for the effort and creativity they have put into the products of their art. So maybe it’s time to reframe. Let’s talk about the right to use works in different ways–as consumer, as distributor, and so on–not the right to copy.

And let’s go from there.

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