Canada’s Debate

So Fair Use is in the media once again (and like several other issues, is reflexively popping up on the blogosphere.) I always cringe when I see the subject make an appearance because it reopens some old philosophical wounds.

Saskboy picks up the latest story, which has the Conservatives preparing to amend the Copyright Act. At this point the Conservatives have not let slip what exactly they are planning to do, but the general suspicion is that they will rewrite the Act to establish some sort of Digital Rights Management regime; without creating Fair Use exemptions or expanding the existing ones.

One of the things I find so troubling about this issue is the incredibly strong feelings people seem to have about the issue; without bothering to explore the underlying issues. The fact is that copyright laws as they are currently constituted are no longer sufficient at protecting intellectual property…

In a liberal (or neo-liberal) system there are four ways to regulate behaviour: law, architecture, the market and social norms. Let me quote Lawrence Lessig to explain this concept better:

Law regulates by sanctions imposed ex post — fail to pay your taxes, and you are likely to go to jail; steal my car, and you are also likely to go to jail. Law is the prominent of regulators. But it is just one of four.

Social norms are a second. They also regulate. Social norms — understandings or expectations about how I ought to behave, enforced not through some centralized norm enforcer, but rather through the understandings and expectations of just about everyone within a particular community — direct and constrain my behavior in a far wider array of contexts than any law. Norms say
what clothes I will wear — a suit, not a dress; they tell you to sit quietly, and politely, for at least 40 minutes while I speak… Norms guide behavior; in this sense, they function as a second regulatory constraint.

The market is a third constraint. It regulates by price. The market limits the amount that I can spend on clothes; or the amount I can make from public speeches; it says I can command less for my writing than Madonna, or less from my singing than Pavarotti. Through the device of price, the market sets my opportunities, and through this range of opportunities, it regulates.

And finally, there is the constraint of what some might call nature, but which I want to call “architecture.” This is the constraint
of the world as I find it, even if this world as I find it is a world that others have made. That I cannot see through that wall is a constraint on my ability to know what is happening on the other side of the room. That there is no access-ramp to a library constrains the access of one bound to a wheelchair. These constraints, in the sense I mean here, regulate.

The fact is that market-based initiatives to reinforce the current intellectual property regime have failed spectacularly, and our social norms regarding the sharing of intellectual property are so casual that they have no protective value. That leaves two options: architecture (redefining the way we access intellectual property) or the law. As a liberal I naturally favour the former; and the truth of the matter that is what DRM is (assuming the government does not get involved.) This is why I am pretty much completely opposed to the Conservative plan to amend the Copyright Act; but the fact is that intellectual property is not adequately protected by our current system, and I haven’t seen anyone explain why that should be so… Although I may take a stab at it myself later today.