CopyLeft
The CopyLeft movement is a diverse and growing alliance of artists, authors, activists, and legal theorists who are building an alternative to the current restrictive regime of intellectual property controls. The movement grows out of concerns over well-funded corporate strategies to privatize and commodify all human knowledge, creativity, and meaning. Corporate tactics include legal bullying (filing lawsuits against teenagers sharing movies or songs), neocolonial bioprospecting (genetically modifying and patenting seeds and other forms of life), and aggressive trademark and patent acquisition and protection (such as Fox News' famous lawsuit against Al Franken's use of the phrase "Fair and Balanced" in his 2003 book [1]).
The CopyLeft movement is the constructive policy proposal that was developed to provide a practical, tangible alternative to some of these corporate abuses. Lawrence Lessig, a Stanford University law professor and one of the leaders of the movement, describes some of the goals for authors and artists using electronic creations: "We have an explosion of technology inviting people to be creative" through mashups, sampling, compilations, and other techniques, "but the way the laws are written, all this activity is presumptively illegal. We want to move away from a maximalist position to create a future in which creativity can occur in a protected space without taking away anyone's rights." [2] Lessig's 2004 book, "Free Culture," inspired a group of students at Swarthmore to found Students for a Free Culture after they won a lawsuit against Diebold Election Systems; Diebold was found guilty of abusing copyright law for threatening the students after they posted a series of internal Diebold emails revealing widespread knowledge of flaws in the company's automated vote-counting software. Now the movement is gathering momentum, and one member of Students for Free Culture at USC noted, "Copyright should be a boring subject, but more and more people are realizing how big this is ... You mention the name Lawrence Lessig to the right people and they'll just go bananas." [3]
The intellectual and legal brain-trust of the CopyLeft movement is the Berkman Center for Internet and Society at Harvard Law School. Many of the movement's goals are implemented through Creative Commons, a nonprofit organization promoting flexible copyright licenses that allow authors (rather than corporate publishers and copyright/patent holding companies) to specify the permissible uses of their creative works. From the introduction of the Creative Commons protocol in 2003 to the Rio De Janeiro symposium of "an unusual global alliance of artists, scientists, and lawyers" in June, 2006, approximately 145 million creative works have been licensed; blogs account for the largest number of registrations, followed by images and then music. [4]
All items on this website for which I have rights and authority under applicable copyright law are made available under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada License. This means that you are free to copy, distribute, display, and perform the work, and to make derivate works, under these conditions: a) You must give the original author credit, Elvin K. Wyly b) your use is non-commercial, and c) if you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one. If I am legally permitted to amend the full legal terms of the Creative Commons license, then I would add the following: please do not use any of this material for evil purposes, especially for the distinctive evil routinely perpetrated by the movement-conservatives -- and anyone who supports them -- who have taken over the Republican Party in the United States. Barf!
For any reuse or redistribution, you must make clear to others the license terms of this work. Any of these conditions can be waived with permission from the copyright holder. Note that your fair use and other rights are in no way affected by the Creative Commons License. For further information, see the Creative Commons License Terms here.
References
[1] Al Franken (2003). Lies (And the Lying Liars Who Tell Them): A Fair and Balanced Look at the Right. New York: Dutton/Penguin. Franken describes the origins of the book: "It all started when Harvard's Kennedy School of Government asked me to serve as a fellow at its Shorenstein Center on the Press, Politics, and Public Policy. After my varied and celebrated career in television, movies, publishing, and the lucrative world of corporate speaking, being a fellow at Harvard seemed, frankly, like a step down. I couldn't think of anything less appealing than molding the minds of tomorrow's leaders ... To my surprise and delight, though, all Harvard wanted me to do was show up every once in a while and write something about something. That gave me an idea. 'Would it be okay if I wrote a scathingly partisan attack on the right-wing media and the Bush administration?' 'No problem,' Harvard said absentmindedly..." Franken (2003), p. xi-xii.
[2] Larry Rohter (2006). "Some Rights Reserved: Advocating Flexible Copyrights." New York Times, June 26, B1, B6.
[3] Rachel Aviv (2007). "File-Sharing Students Fight Copyright Constraints." New York Times, October 10, A21.
[4] Rohter, "Some Rights Reserved," B6.
[5] Lawrence Lessig (2009). "Against Transparency: The Perils of Openness in Government." The New Republic, October 9.
I am so absentminded that sometimes my left hand doesn't know what my far-left hand is doing. Swiped shamelessly, with the polarity reversed, from Ronald Reagan, who first offered the right-wing version of the joke in a 1981 speech to the Gridiron Club, quoted in Richard Reeves (2005). President Reagan: The Triumph of Imagination. New York: Simon & Schuster, p. 33.
Beaverton, Oregon, August 2006 (Elvin Wyly)
"We will listen to free music, look at free art, watch free film and read free books ... We refuse to accept a future of digital feudalism." From the manifesto of Students for Free Culture, cited in Rachel Aviv (2007), "File-Sharing Students Fight Copyright Constraints." New York Times, October 10, A21.
Camden, New Jersey, July 2009 (Elvin Wyly)
Sunlight, Bananas, and Disinfectant
Not long before he joined the U.S. Supreme Court, Louis Brandeis wrote a book about corruption and conflicts of interest in the banking industry, and in making the case for public disclosure, he declared that "sunlight is...the best of disinfectants." This one-liner has become the mantra of an open-access and transparency movement that is allied with the CopyLeft movement. This movement is not without its internal diversity and disagreement. A few years ago, one of the members of Students for Free Culture at the University of Southern California enthused, "You mention the name Lawrence Lessig to the right people and they'll just go bananas." [3] But Lessig himself has had second thoughts. In an important and wide-ranging essay titled, "Against Transparency," Lessig questions the bold, unqualified emphasis on the provision of ever more public information on the assumption that more data will, in and of itself, be a public good. Lessig dubs this position the "naked transparency" argument, and he offers three reasons for reconsidering it, particularly for the case of information on various activities of the individuals and institutions of government. First, very little of today's automated internet-driven wave of public disclosure meets the standard of "targeted" transparency -- where key indicators are presented in way that is directly comparable, readily understood, and directly tied to a relevant decision, product, process, or other matter of interest. Instead, Lessig suggest, what we have is a flood of information that conceals rather than adding meaning. Second, the volume of newly disclosed information has itself become a serious threat to informed public discussion: the inescapable limits on the human attention span make it impossible to discern and discuss the subtleties of what particular kinds of observations mean, in a particular context: if the numerator of collective attention span remains fixed while the denominator of information expands exponentially, we find ourselves unable to engage in any kind of informed, knowledgable discussion or debate. Third, the political imperative for disclosure has created its own reflection, a political imperative in which information about disclosure itself becomes a site of controversy: in other words, the disclosure that someone is accused of something becomes a relevant piece of information that tarnishes reputations regardless of the veracity of the alleged impropriety. The visible spectrum of sunlight, then, comes along with the harmful ultraviolet rays of false accusations.
For Lessig, all of these dynamics worsen the problems of cynicism, and undermine the promises of a mature, reasoned, balanced approach to transparency. It's a subtle and sophisticated argument, although it is not without its flaws. First, Lessig completely overlooks the structural elements of the public/private divide: here we have a case for weakening public transparency without any regard for the ever-expanding privatized dossiers fueling postindustrial, post-material factions of informational capitalism and digital accumulation by dispossession. Intervene in the privatized digital exploitation and violence, and only then am I prepared to discuss a unilateral disarmament of public data disclosures. Second, Lessig's showcase example of disclosure-driven cynicism, morever, leads him to a point of resigned frustration, where he concludes that the only viable response is ... public funding of political campaigns. If this is where the train of naked transparency and cynicism gets us, let me climb on board!
These criticisms, however, are meant only in the spriit of truly constructive engagement. And there's so many wonderful insights and possibilities along the way, including the idea of the cultural flat rate and other forms of informational emancipation. And, most important of all, what do you think? If you're a student taking a class with me, then the principles and practices of CopyLeft should allow me to share the articles below with you for non-profit educational purposes. But several recent decisions at UBC make such fair use impossible. So track these down yourself, read them, and tell me what you think:
Lawrence Lessig (2009). "Against Transparency: The Perils of Openness in Government." The New Republic, October 9.
Adam McDowell (2010). "Copying, a Right." National Post, October 16, 2010, A6, A8.
If you want freedom, and if you want to be rebellious, subversive, efficient, productive and creative all at the same time, go to the library. To understand how revolutionary such an act can be, consider Lawrence Lessig's "For the Love of Culture":
".... I reached a critical part of the article. It referred to a table. I turned the page to see the table. The table was missing. In its place was a notice: 'The rightsholder did not grant rights to reproduce this item in electronic media.' No one had licensed the table for free distribution. Distribution was thus blocked. 'Have your lawyer call my lawyer,' the article seeming urged. 'We'll work something out.'"
"Before we release a gaggle of lawyers to police every quotation appearing in any book, can we stop for a moment to consider whether this way of organizing access to culture makes sense?"
"In real libraries, in real space, access is not metered at the level of the page (or the image on the page). ... You get to browse through the whole of the library, for free. You get to check out the books you want to read, for free. The real-space library is a den protected from the metering of the market. It is of course created within a market; but like kids in a playroom, we let the life inside the library ignore the market outside. This freedom gave us something real. It gave us the freedom to research, regardless of our wealth; the freedom to read, widely and technically, beyond our means. It was a way to assure that all of our culture was available and reachable -- not just that part that happens to be profitable to stock. It is a guarantee that we have the opportunity to learn about our past, even if we lack the will to do so."
-- Lawrence Lessig (2010). "For the Love of Culture: Google, Copyright, and Our Future." The New Republic, January 26.
CopyLeft Update
Fair Use is at risk. Battallions of intellectual property extortionists are bullying university legal offices, many of which have put faculty members on notice that they will be personally liable for copyright infringement claims. What is allowed under the exceptions to the Copyright Act and the doctrines of fair use and fair dealing?
It all depends. If there is one general principle, it seems to be this: if there is money to be made by interfering with your fair use and fair dealing rights, and someone is in a position of power to make good on that threat, then you can't do whatever it is you wanted to do.
Confused? Read this.
Now, if you've read all the materials at the link above, you're a year older and a lot more confused.
It keeps getting worse. Not long ago, The University of Western Ontario and the University of Toronto surrendered to the Corporate Copyright Thug Syndicate, aka "Access Copyright." "The agreement ... includes provisions defining e-mailing hyperlinks as equivalent to photocopying a document, an annual $27.50 fee for every full-time equivalent student and surveillance of academic staff email." (CAUT, 2012, p. A1).
Canadian Association of University Teachers (2012). "Toronto & Western Break Ranks to Sign Access Copyright Deal." CAUT Bulletin 59(2), p. A1, A7.
CopyLeft 2012 Elvin K. Wyly
Except where otherwise noted, this site is
I hereby order you to think for yourself!
Occupy the city. Occupy their minds. Occupy yours, mine, ours.
"Fall in Love with Reading."
Telegraph Avenue, Berkeley, CA, March 2012
(Elvin Wyly, as inspired by Ananya Roy, Liz Lee, Dick Walker ... and the late Allan Pred, and Roger Miller too...)
CopyRant©
One of the few things that the Copyright Thugs®©™ have not yet figured out how to control: copying our own thoughts and correspondence. Here's a ©opy of something I wrote to Dr. Joy Kirchner, a friendy and patient professional with the responsibility of helping UBC faculty, staff, and students cope with the hostile landscape of corporate accumulation by cognitive dispossession. She's still consulting with counsel to investigate the issues. I feel terribly guilty for adding to Dr. Kirchner's workload, but the increasingly hostile legal aspects of digital capitalism necessitate these requests for guidance. We make our own histories, but not under iConditions™ of our own drop-down menu choosing.
Long, long ago, it was possible to study, teach, and learn without first retaining a lawyer and paying fees for the privilege of thinking and talking about stuff ...
1
-------- Original Message --------
Subject: Additional Copyright Question
Date: Sat, 07 Apr 2012 23:09:28 -0700
From: Elvin Wyly <elvin.wyly@geog.ubc.ca>
CC: ubc-copyright@interchange.ubc.ca
Dr. Kirchner,
I am writing to request clarification of UBC's guidance notes on Copyright. In particular, specialized legal advice may be required to address one of the points in "Using Content from the Web":
"Linking directly to the web page containing the content you wish to use is almost always permissible, although you need to make sure that the content you are linking to is not in and of itself infringing copyright."
The last clause of this sentence raises serious issues, as does the guidance in frequently asked questions:
"3.6 Do I need to ask permission to link to a website?
Generally no, but you should check the website's 'Terms of Use' section to confirm whether it has any specific linking prohibitions. If there are none, you may link to the website but make sure that the webpage opens up in a different browser window. If the web-page does not clearly identify the website and content owner, you should also include the full details of the author, copyright owner and source of the materials by the link. This will avoid any suggestion that the website is your own material or that your website is somehow affiliated with the other site."
Enormous, affirmative legal obligations are being placed upon UBC website creators. We are now required to spend time investigating "Terms of Use" documents that are sometimes lengthy, difficult to read, or filled with obscure provisions, sometimes legally ambiguous or unenforceable, and often rapidly-changing. We are now advised to customize our website designs (e.g., making sure a different browser window opens) to ensure a clear perceptual division. And we are advised to identify the copyright owner, and to ensure that copyright is not being infringed.
Affirmative legal obligations are being placed upon anyone at UBC who is trying to provide information (i.e., a web uniform resource locator address) to students, colleagues, or members of the public. This is like imposing legal liability on an instructor or student who stands up in class and says, "There was an interesting article on the front page of the Vancouver Sun this morning."
There are three problems with the "due diligence" standard.
First, the obligation is impossible to maintain, because doing so requires controlling independent third parties. Anyone who does anything on the web knows that links change all the time; anyone reading a web page has no control over whether that content will change tomorrow, and again, and again. There can never be a guarantee that a link will not go to content that infringes copyright, because the content of that link is beyond the control of anyone here at UBC bound by UBC rules and regulations. By implication, this means that a UBC website creator becomes legally liable the moment a hyperlink is created, for any and all copyright infringements committed by those *other* website creators now or in the future.
Second, the definition of "in and of itself infringing copyright" is unclear and un-tested. It is not clear if the relevant law involves where the content was created, where it is now being 'stored,' or where it is being accessed. This means that anyone at UBC wishing to provide information to students is now expected to know every detailed legal provision of each relevant jurisdiction. This is either unreasonable, or else it's a massive change in the terms of employment.
Here is one recent example to illustrate how difficult it will be for instructors or other website creators at UBC to perform due diligence, even if they were to spend every working hour trying. Many of UBC's licensed resources come through Thomson ISI. But Thomson-Reuters, the parent company, is now being sued in a $51 million action certified by a judge in Ontario. Thomson is accused of copying material produced by private attorneys (for lucrative hourly fees) from public court filings, and then packaging the materials into databases sold by subscription to legal researchers and university libraries. (See Julius Melnitzer, 2012, Publishers' free ride faces legal test, National Post, March 14, p. FP11).
So: is the content in question infringing copyright?
Similarly, YouTube, Google, the HuffingtonPost, and many other "content providers" have been embroiled in lawsuits for years, and at various times have been found guilty of copyright violation, sometimes for broad categories of information in textual or visual form. Does this mean that their entire portfolio of information -- all their "content" -- is legally equivalent to the identity of the corporation? Is "content" defined to cover an entire domain name? Only a particular resource at the very specific URL address indicated?
Third, the "due diligence" clause seems to reflect UBC legal interpretations that have not yet considered recent judicial precedence (Crookes v. Newton, 2011 SCC 47). That case involved the question of whether "publication," in the context of defamation lawsuits, might include hyperlinks. The Court concluded that including hyperlinks "would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression."
The Court went on to clarify the legal meaning of hyperlinks as "in essence, references, which are fundamentally different from other acts of 'publication'. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked."
[Note the Court shares my concerns about the inability to control what's done on the web by others].
If hyperlinks are understood as part of freedom of expression in a defamation case, then it would make no sense to place a legal responsibility on UBC website creators to perform due diligence on third-party content creators or content providers. Imposing this due diligence standard on UBC instructors and students surrenders our freedom of expression -- it will have a chilling effect on our ability to use web hyperlinks to tell our students what's going on out there in the press and in public discussion. The logic seems to parallel the recent agreement between the University of Toronto and Access Copyright -- a dangerous contract that defines hyperlinks as equivalent to photocopies.
Thank you for your attention to this matter.
Sincerely,
Elvin Wyly, Associate Professor, Department of Geography
2
-------- Original Message --------
Subject: Stand-Up Videos, and In-Class Reading
Date: Sat, 26 May 2012 12:36:02 -0700
From: Elvin Wyly <elvin.wyly@geog.ubc.ca>
To: ubc-copyright@interchange.ubc.ca
Dr. Kirchner,
I apologize for adding to your workload, but preparing for next year's teaching is raising more and more questions about what is permissible. This requires that I seek guidance on more and more aspects of the teaching and learning experience at UBC.
1. A student and I stand up in front of a video camera and talk about his research. Presumably, the result of this action (the video recording) belongs to me and the student, or some combination thereof.
Part of his research results were imported into Google Earth, however, so implicitly, part of the video we make shows landscape scenes that fall under the terms of use of Google Earth. I've spent several hours reading Google's extensive terms of use, and I *think* that what we are doing is permissible: we are not distributing the mass of Google's images or data in any way that would allow other companies to poach off Google's investments or revenues.
But I do not have the professional legal expertise or credentials to even know if I'm reading those terms and conditions properly; they are extremely complicated, and depend on lots of provisions of international treaties and third-party software providers. I cannot even tell if such third parties are even involved in the scenes that wind up appearing in our video, since all the features of Google's software are so complicated and multi-faceted.
Therefore, I am requesting a formal review, and, if applicable, a formal communication (along with the rights to publicly post such communication to my website) instructing me to remove this from my website:
[The Google Earth scenes first appear at 6:55 in the video]
I will comply if instructed to remove this from my website. But then I would also like clarification on whether I am permitted to show this video within the physical setting of a classroom at UBC (without the broader public accessibility of a website).
2. In-Class Reading.
I have read carefully the helpful guidance at
as well as the advice on fair dealing and educational exemptions as interpreted in the Copyright Act. Yet still I do not seem to have the legal expertise to determine whether the following activity is permitted. Can an instructor (i.e., me) walk into class, open a book, and read from the book while the students listen? In this scenario, no copies are made, and the material will be delivered with a certain amount of criticism and commentary. But I can make no predictions on how much of a work will be used in this situation. For example, sometimes I want to walk into class and read them a full story that appeared in a major newspaper. That's 100 percent of the work, and that seems to be frowned upon by the various legal interpretations of what's permissible. Other times, it might just be twenty percent of an article, or one percent of a book. If I am constantly having to make choices based on the percentages of the work to comply with the Copyright Act, this would of course destroy the very creative essence of teaching in ways that respond to changes in students' questions, interests, and preferences.
Thank you very much for any advice you can provide. Again, my deepest apologies for adding to your workload.
Sincerely,
Elvin Wyly
3
May 29, 2012:
Here is the reply to request 2 above, suitably anonymized and excerpted to avoid another round of emails to ensure that I have permission to post (to comply with the Copyright guidelines) and UBC Research Prevention Department directives (if free thinking is accidentally defined as "research" involving "human subjects" and if correspondence amongst people at UBC is considered to involve "human subjects," after we have all taken Department of Philosophy courses on subject/object relations):
"After reviewing Google's policies around the use of content from Google Earth, and specifically the 'Content Rules & Guidelines' that they provide at the end of their permissions tool (http://www.google.com/permissions/geoguidelines.html), we have decided to seek clarification from legal counsel. We apologize for any inconvenience this might cause, and we will get back to you as soon as we have more to report.
With regard to your question about reading aloud from copyrighted works during class, we are currently discussing this matter with other members of the Copyright Advisory Group, and we hope to have a response for you by early next week."
I replied, "thank you for your work on this matter."
We are all working very hard to find out what is allowed, and what is not. The Corporate Copyright Thugs®©™ are achieving their objectives. Every minute spent doing this kind of "please can I think or speak freely?" research is a moment that cannot be spent doing much more important stuff...
right?
Copy right?
No, left.
Copy Left.
No Right Turn!
4
June 4, 2012 update: "...There are a number of questions under review, at the moment, so it might be some time before we get a response about this one. ..."
I replied, "I understand that these things take time. Thanks for your work on this matter."
5
June 23, 2012: Still no word on whether I am allowed to read aloud. *Blush,* should I feel guilty for making all this work by thinking up difficult questions? It didn't start out this way, but apparently this is a "George Carlin" question.
Carlin described growing up in Catholic school and trying to come up with the hardest possible questions: "Father, if God is all powerful, can He build a rock so big that He Himself can't lift it?" See George Carlin and Tony Hendra (2009). Last Words. New York: Free Press.
Of course Carlin is famous not for writing books, but for standup comedy, including the naughty-words and misogynist kind (oops, that hyperlink accidentally appeared in this here Ye Olde HTML Editore without a prior comprehensive legal investigation of third-party legal-liability [see query 1 above]). And the dearly departed Carlin apparently still lives on in a strange way, with mashup artists figuring out how to slice and dice bits of spoken words to punk Obama.
6
August 26, 2012. Preparing for fall classes. Still no formal answer on whether I am permitted to read news stories in front of a classroom full of students. It remains unclear what we will be permitted to copy, read, write, view, and think. Bill C-11 has received Royal Assent, but we are still waiting for an Order-in-Council, a process that will probably take until final-examination time in November. Meanwhile, the Supreme Court of Canada has issued a series of decisions that offer some clarification. See, for example, Alberta v. Access Copyright, 2012 SCC 37. It's Lunesta Reading,™ thick and slow-going. And there's lots of lawyers and bureaucrats below the Supreme Court who'll have to work for months before humble readers and writers -- mere human mortals like you and I -- will have any clear or simple indication of what we are allowed to do. The dedicated professionals at UBC are working on a set of guidelines to be published on the University's Copyright website tomorrow. One thing we already know is that UBC's Copyright Advisory Group will morph into the UBC Scholarly Communications and Copyright Office.
Hmm.
What does it imply that an entire new "Office" is being established? If you were a gambling type, where would you place your bets? Would you gamble that things are going to get easier, or more difficult? Do not answer this question yourself without obtaining certification and approval from the Office of Free Thought.®
Copy. Left. CopyLeft.
7
Last Friday, the 24th of August, we all received a message "sent on behalf of David H. Farrar, Provost and Vice President Academic (Vancouver), and Wes Pue, Provost and Vice Principal (Okanagan)," via the "Broadcast E-Mail" system here at UBC. The message promised that a set of Copyright Guidelines "and other related guidance documents" will be available at http://copyright.ubc.ca by Monday, August 27."
The following message is sent on behalf of the slowly tapping fingers of Ye Olde faculty Member Trying to Prepare for the Crowds of September and Still Wondering What's Allowed...
It's 8:54 PM on Monday, August 27th, 2012, ... and ... no guidance documents.
Now I feel your pain, Dear On Behalf of David H. Farrar, Provost and Vice President Academic (Vancouver), and Wes Pue, Provost and Vice Principal (Okanagan). Now I remember that the Peter Principle applies looking upward. Because in the last few weeks, I spent more than a few hours reading Bill C-11, The Copyright Modernization Act. The more I read this and heard colleagues breathe a sigh of relief, I thought, "Well, yes, this does seem good that the word education is in there in the fair dealing provisions. But I'm not so sure...."
As I read and re-read sections of Bill C-11, I kept noticing these pesky subordinate clauses here and there. Many of them seemed to say, "if the thing you want to show to students is not available to be purchased."
Of course, at that point I thought to myself, Oh, you pathetic amateur, don't try to figure this stuff out. You don't know anything about Law, especially Canadian law.
Now I realize that somewhere in the top tiers of UBC, there's a late night at work. When I read the Friday letter, and saw that "by Monday, August 27" line, my brain did a sneezy little double-take. Dubba-Dubba-wha? That's only a few days from now... Is that even possible?
I had not read the Supreme Court of Canada cases. But Bill C-11 looked pretty complicated and but-here-this-provision-applies-in-these-markets-where-they-don't-want-fair-dealing. So I wondered how it would be possible to provide guidance so quickly.
So I feel your pain. You're now in a tough spot. Either you have a very late night to make the August 27 deadline. Or you admit Administrative Defeat. You've met your match for the discursive production of maximum billable hours to figure this stuff out and explain it to those outside the law. It's poignant, though, because we in the public sector desperately need public or progressive lawyers to help us in the face of an increasingly aggressive corporate law. This is, after all, the age when even The Corporation is a Corporation, devoted to the incessant commodification of the human attention span. Our current era of economic history -- what Allen Scott calls "cognitive-cultural" capitalism -- sure doesn't look sustainable in a world of short attention spans. Wall Street is having so many flash crashes that both the bulls and the bears are overdosing on Ritalin. In July, Newsweek suggested we might be going "iCrazy," with our fancy toys threatening to "rewire our brains."
Maybe you, our allies and advocates, have met your match in the crafty All Administrative, All Corporate winners in Ottawa. It did kinda surprise me that everyone who received that "Broadcast E-Mail" at UBC was specifically promised guidance on a specific date. Since when do we get specific dates and commitments on all the things we need?
9:01 pm, just checked again. No Guidance. Hmm. I think I'm allowed to show YouTube videos in class under one reading of Bill C-11, but I can't be sure. Likewise, I think a screen capture from a publicly accessible website is permissible. So as I revise my lecture notes, if I need an illustration for educational purposes, this is the principle I'll enunciate:
Images in this document that have been reproduced from other sources are included pursuant to Sections 29 ("Fair dealing for the purpose of research, private study, education, parody, or satire") and 30.04 ("work available through Internet") provisions of Canada Bill C-11. All original content in this document is CopyLeft Elvin K. Wyly, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada License.
I think that my lecture notes, no matter what they include short of moving images or sound, qualify under the "education" provision, but also the "mashup" provision that has been so widely discussed. But I couldn't find it as I read and re-read Bill C-11. If the only explicit words that provide guidance are "parody, or satire," it means that I will only be able to include copies of things in my lecture notes that I plan to make fun of.
That's never been my policy -- I always try to use a mixture of different kinds of illustrations -- but if it were a legal liability issue ...
... it might have some interesting teaching possibilities.
8
Multitasking. Cranking Springsteen's Wrecking Ball. Stayed up late last night working with SAS databases. HMDA.White has 183991647 observations. Talked with Dan Hammel a few days ago, and remembered one of our long-overdue projects -- to revisit some of our fieldwork in gentrified neighborhoods across U.S. cities, to map the changing parameters of white privilege through the housing credit boom and crash.
While I'm working on the database and watching this little laptop with smoke pouring out of the vents as it struggles with the gigabytes, I'm getting things ready for fall teaching.
Checking the copyright website. New guidelines promised for August 27. It's 4:48 PM, August 28. I understand. I'm behind on lots and lots of deadlines, too.
There's always too much work to do, too little time.
[[rant mode::off]]
Okay, back to work. Student theses to read, recommendations to write, forms to fill out, lectures to prepare ...
and in the midst of all this ...
books to read! Fall in Love with Reading!
Corporate Copyright Thugs,
hard at work
9
8:12 AM, Wednesday, August 29. Still no Guidance Documents. Watched Chris Christie's RNC Speech last night. Am I the only one highly annoyed that the Republicans used the graphic "font meme" of Springsteen's "Greetings from Asbury Park" album as a backdrop when the union-busting Gov entered the stage to the cheering crowd? Can you imagine the Springer being a Republican, belting out the hits? Birther in the USA. Tenth Avenue Tax-Cut. Okay ... Born to Run might just work, I'm sure they're already speculating about Christie 2016.
Back to work. Still not sure if reading aloud is allowed.
10
2:34 PM, August 30, 2012. Ah, finally, the new Guidance Documents are there, here, here, and here. Just in time for classes, we all sit down and play Amateur Lawyer to see if We Are Allowed to Think Without First Obtaining Permission from the Copyright Thugs. The dedicated UBC professionals worked overtime, and translated Bill C-11 and the recent Supreme Court decisions to help us figure out what we are allowed to do.
What's the bottom line? Hmm. I'm not sure yet. There is still a massive honkin' asterisk on stuff. Consider, for example, this exception. Educational institutions are permitted to
"copy a work for the purpose of projecting an image of that copy, using an overhead projector or similar device, provided the work is used for the purpose of education and training and is not already available in a commercial format."
Let's read that again, focusing on that nasty subordinate clause
provided ... the work
is not already available in a commercial format.
I'm no attorney. But this translation sure looks like this: Buy shit. If you teach or think anything that is "already available in a commercial format," we will throw you to the wolves when the Copyright Thugs come calling.
But of course I'm no lawyer. And I'm also no Copyright Thug. So it remains to be seen what we are allowed to do.
11
October 5, 2012. Still no formal answer to the formal requests noted above.
UB¢
The heritage of free thought and inquiry sold off, for pennies...
[[rant mode::ON]]
-------- Original Message --------
Subject: Response to Proposed Amendments to Policy 88
Date: Fri, 05 Oct 2012 16:30:48 -0700
From: Elvin Wyly <elvin.wyly@geog.ubc.ca>
To: university.counsel@ubc.ca
CC: fa.pres@ubc.ca
5 October 2012
Hubert Lai
University Counsel
The University of British Columbia
Dear Mr. Lai,
I write to express my serious concerns over proposed changes to Policy
88 regarding Intellectual Products.
I have three serious concerns about the proposed amendments.
First, the policy undermines UBC's Collective Agreement commitment to
the university mission of "instruction and the pursuit of knowledge" by
codifying instead a commitment a primary goal of "Mobilization of
University Research Products." "Mobilization" is in turn defined to
privilege "commercial licensing, sale, marketing, manufacturing,
distribution, open source licensing, Public Disclosure, or other
disposition of a University Research Product or Work Product and/or any
works, products, or services covered by, claimed by, and/or
incorporating a University Research Product or Work Product..."
This redefines the mission of the university, and subsidiary treatment
of things like "Public Disclosure" in a long list of commercial,
profit-driven industrial priorities completely reorients the function of
anyone associated with the University.
Second, the revised policy effectively defines everything done by
faculty members -- and all "University Persons" who include not only
full- and part-time faculty members, but also "students, adjunct and
clinical faculty, librarians, lecturers, post doctoral fellows, faculty
on sabbatical, honorary professors, research associates, and visiting
professors -- as "Work Product." The University then asserts that "The
ownership of Work Product is vested with the University." The omission
of "Literary Works" from a specific recognition of the rights of
individual creators is a further dangerous precedent. As the UBC
Faculty Association has noted, "It appears that this proposed definition
of 'Work Product' would also capture lecture notes, syllabi, and any
other material produced in the course of a faculty member's teaching
duties. ... This section of the revised policy also appears to allow the
University to claim ownership over textbooks written by faculty members...."
This is a very dangerous and corrosive precedent. It signals that,
henceforth, the University is committed to "mobilization," and
especially, commercial mobilization that places university functions
subsidiary to the needs of those external actors -- corporations and
external funders -- who have particular interests in particular kinds of
"Work Products" or "University Research Products," and who typically
have very strong interests in controlling the public distribution or
circulation of ideas, products, or findings.
Commodification is dangerous, and it does not help to use euphemisms
like "mobilization" to conceal the fact that more and more of the
academy is being auctioned off to the highest bidder. The Faculty
Association is absolutely correct to note that Article 5.2 of the
amended policy "is so broad that it essentially suggests that any
thought that a University employee has while on University grounds
belongs to the University."
If Policy 88 is amended as you propose, then according to Article 5.5
and/or Article 6.2, the University will assert ownership of
every
single
word
that
i
am
typing
now
and every tangible result of my research and teaching in the classroom.
And since other parts of UBC have recently encouraged the creation of
"writing intensive" and "research oriented" courses in an attempt to
engage exhausted students in what has become a giant, impersonal
corporate substitute for what used to be a University, then it becomes
harder to know what we are allowed to think and do. Article 2.1 even
appears to allow the University to assert ownership of graduate student
theses. It is not clear what, if anything, the University will not seek
to "mobilize" if a profit potential is detected.
This proposed policy amendment requires major reconsideration. The
Faculty Association puts it eloquently: "Academic freedom and
intellectual property rights are at the heart of being an academic, and
the University seems determined to take those away from its faculty
members. We cannot accept this position."
Since the proposed changes to Policy 88 are not yet in force, I still
retain some rights in the Work Product you are reading now. One of
those rights is Public Disclosure. I'll therefore be posting this
communication on my website.
Respectfully Submitted,
Elvin Wyly
--
Elvin Wyly
Associate Professor of Geography
Chair, Urban Studies Coordinating Committee
The University of British Columbia
1984 West Mall
Vancouver, BC V6T 1Z2 Canada
778 899 7906
http://www.geog.ubc.ca/~ewyly
[[rant mode::OFF]]
12
January 24, 2013. Still no formal answer to the formal requests noted above.
Oh, my, this has gone long enough, and by now you are looking for the off switch on my face. I am so sorry for wasting your time! But do think seriously, theoretically, and politically about what it means when a teacher or scholar cannot get formal written authorization to do things in front of a classroom that every engaged student or young professional in this city does while standing at Broadway & Main, or riding the Skytrain, or holding on while riding the 99 B-line: share information and talk about it.
But if you're at Broadway & Main or on the bus with on your smartphone, or riding the Skytrain, or going anywhere else in public in this town, most of that information sharing is happening on a commercial network, or in a commercial space ruled by the dictates of the market. Here in the university, the things we do are evaluated according to different standards, by those who have invested years, decades of education and preparation to understand a part of the world in a rigorous, carefully-defined way passed down over the scholarly generations. These are the disciplines. Disciplines have particular worldviews because they involve asking different kinds of questions, in the search for different kinds of knowledge, to be used by certain audiences for certain purposes.
It requires vast, inter-generational investments by people to create traditions that last -- so that at one point we can call a "field" a "discipline." The problem of contemporary capitalism, however, is that the pace of change in those inter-generational investments is now wildly mismatched to the speed of restructuring in the nature of work. This restructuring involves a quick speed-up by which certain skills of human work are de-valued and replaced by technology, as automation reflects and reinforces the 'spatial fix' by which capitalists move labor-intensive activities amongst a competitive landscape of low-cost competitive places. Over time, this mismatch gets wildly out of balance; I hypothesize that if we focus on history in the West for the last few centuries, we can safely say that the mismatches have mostly been about supply-demand relations in the need for labor: free/slave, Global North vs. Global South, immigrants vs. native-born colonizer vs. dispossessed indigenous, all of them interacting with changes in technology.
But now the supply/demand mismatches seem to have given way to something else as a larger proportion of the world's wealthiest societies -- as well as a deeply influential if somewhat smaller proportion in the world's fastest-growing economies in Asia -- are engaged in a variety of professional service jobs and 'culture-industry' occupations. This is what Richard Florida, of course, calls the "creative class," but it's much more accurate to describe this as the class structure of a new kind of global capitalism: what Allen Scott (2011) calls "cognitive-cultural" capitalism. The problem in these occupations is simple: they are flourishing right at the human-machine interface of quickly-accelerating technological changes by which humans are trying to relate to other humans. Put simply, it is in the "creative class" jobs that Florida celebrates where we find those parts of the job structure where people are relating to people -- and having to do so faster and faster thanks to ever-faster circuits of information and communication. Technologies are speeding up production, consumption, and the relations between economic actors in the personal services sector, as well as in the professions, and in those areas where professional expertise is devoted to trying to persuade people, entertain them, or deceive or coerce them.
This human-machine interface -- Donna Haraway's "cyborg" has gone mainstream, with a New York Times special feature in 2012 asking, "Are We All Cyborgs?" -- is where we're seeing the endgame of the mismatch of creative destruction.
The human-human dimensions are caught in tension with the acceleration of digital technologies. As humans' social networks expand in number -- even if they get more "shallow," as Nicholas Carr would have it -- electronic communications technologies begin to bump up against the biosphysical limits of the human attention span. There's only so much information the human brain can absorb or process. But of course capital really can't resist the powerful temptation of an uncommodified frontier for new forms of accumulation. This is part of why the Facebook Initial Public Offering in 2012 was so widely hailed amongst Wall Street watchers: Wall Street has a database of a billion birthdays, offering the prospect for the kind of ad targeting that marketers have dreamed of for the better part of a century.
oops, the phone is ringing, the ding-ding-ding of the email calls, I'll have to write more on this later ...
13
May 1, 2013. Still no human response to the queries above, but yet another of those "Sent on Behalf of [person too busy to actually send emails themselves but clearly not too busy to think up ways of harassing the rest of us digitariat]" emails.
So now extended URL's, as they may be changed from time to time, are now treated as legally binding conditions. To legal infinity, and beyond!
***
[Digital harassment received May 1, 2013]
CAMPUS-WIDE LOGIN ("CWL") ACCOUNT TERMS OF USE
Your use of UBC computing facilities, including CWL accounts, is subject to and expressly conditioned on your acceptance, without modification, of these Terms of Use ("Terms of Use"), as may be amended from time to time by The University of British Columbia ("UBC").
By clicking "I Agree" below, you state that:
1. you agree not to use UBC's computing facilities or your CWL account in any way that is illegal, or to do things that are illegal (including infringing copyright);
2. you agree to abide by all of UBC's Policies and Procedures, as they may be amended and renamed from time to time, including but not limited to Policy #104 (http://www.universitycounsel.ubc.ca/policies/policy104.pdf) and all other policies on responsible use and security of UBC's electronic information and systems;
3. you acknowledge that you have read, understood and agree to abide by the applicable requirements set out in UBC's copyright website (http://copyright.ubc.ca) as they may be amended from time to time, including but not limited to:
The Copyright Requirements for UBC Faculty and Staff (http://copyright.ubc.ca/requirements/copyright-requirements/); and
The Fair Dealing Requirements for UBC Faculty and Staff (http://copyright.ubc.ca/requirements/fair-dealing/); and
4. you acknowledge that you have read and understood the guidelines posted on UBC's copyright website, including but not limited to:
The Copyright Guidelines for UBC Faculty, Staff and Students (http://copyright.ubc.ca/copyright-guidelines-for-faculty-staff-and-students).
Any failure to comply with the foregoing or with any other aspect of these Terms of Use may result in the suspension of computing privileges, suspension of your CWL Account, and other applicable penalties or discipline.
If you do not agree with any part of these Terms of Use, click "Cancel" below or cancel out of this application, and contact cwl.terms@ubc.ca. However, by actually using UBC's computing facilities and/or your CWL Account, you are bound by these Terms of Use.
UBC reserves the right to change or modify any of the terms and conditions contained in these Terms of Use at any time and in its sole discretion. Any changes or modifications will be effective upon posting of the revisions to UBC's website. Your continued use of your CWL account following the posting of any such changes or modifications will constitute your acceptance of such changes or modifications. You should review these Terms of Use regularly to ensure that you remember and understand the terms and conditions that apply to use of your CWL Account.
These Terms of Use shall be governed by the laws of the Province of British Columbia, Canada without regard to its conflict of law provisions. You consent and submit to the exclusive jurisdiction of the courts located in the Province of British Columbia, Canada, in all disputes arising out of or relating to the use of your CWL account and these Terms of Use.
MORE INFORMATION
For more information, please refer to the Campus-Wide Login - More Information Document (www.it.ubc.ca/service_catalogue/accounts/cwl/moreinfo.html).
It has further details on information collected, personal information you choose to share, and the CWL security measures.
CONTACT US To report the abuse of these facilities or for further assistance, please contact the IT Service Centre Help Desk online at www.it.ubc.ca/helpdesk or call 604-822-2008.