Public Knowledge has a couple of pieces up on the fight between CBS and Time Warner Cable over TWC's payment for the right to rebroadcast broadcasts and then charge the public link here and link here. CBS has already been amply rewarded through advertising on its over the air broadcasts free use of the public airwaves. But in the current fight, it wants still more money. Congress set this up in 1992 legislation which allowed the networks to charge for retransmission permission of its broadcasts.

CBS has the right to charge for its retransmission consent but the law stipulates that the fees must be reasonable. However, left to themselves the parties have self-interest to decide what is reasonable. The 1992 law gives the FCC the power to intervene on what is reasonable link here but it has so far avoided taking a position.

CBS has now upped its pressure and limited its over-the-air broadcasts in some areas served by TWC. The public pays in lost services and will pay again with higher charges.

Competition for cable-television providers looks safe at least for a time, as the result of two copyright suits link here. In one, Aereo TV captures from antennas and delivers regular programming via the internet for a monthly fee; this allows the subscriber to record the programs playing them back when he wants. In the other, the satellite Dish provider offered a service, Hopper, which allowed the customer to eliminate ads on home recorded programs. Neither service allows the broadcaster to charge for its programs since the courts ruled that they could not use copyright to enforce payment.

The crucial court decisions found that it was the customer who made the recording so copyright was not violated.

As the Times article points out, unless the two interlopers pay, the broadcasters can and now are likely to retaliate by ceasing to broadcast over the air and providing cable service only.

In judging the result of these cases, once again copyright appears to reduce competition and raise prices to consumers. But its ostensible purpose, to reward the creator of the program to induce new creativity, is largely avoided--if that ever happened, it was long in the past.

Here is one for the books; you may record copyrighted material and play it back without the ads, because dumping the ads is covered by fair use link here. Fox TV, the plaintiff, saw it was losing revenue when others downloaded and redistributed its on-line material without the ads. Dish, the TV redistributor, made a good business out of doing so and charging subscriptions from its customers. Its successful defense will no doubt attract others into the redistribution business.

2012 was surprisingly good for Canada. The decade long revision of the Copyright Act was completed; most parties agree that it was a good compromise. Amendments included: expanding fair dealing to include parody, satire, and education; protecting consumer behavior that reflects the conduct of consumers in a digital age; maintaining the independence of ISPs and the privacy of subscribers; implementing a cap on damages for non-commercial infringement ($5,000 is the maximum but a judge can award as little as $100; this is intended to discourage file-sharing lawsuits); and, creating an exception for non-commercial user-generated content. To be sure, all the exceptions come with the expected provisos, and all are subject to the overarching ban on any circumvention of technological protection measures. It still strains credulity as to why Canada in 2012 adopted a prohibition first conceived in 1996; but, given the fierce opposition by rights-holders, the fact that the user allowances were not rolled back in committee speaks well. Michael Geist gives a good synopsis of the new Act here.

And then came the Day of Five. In December 2011, the Supreme Court of Canada heard five copyright cases; all five decisions were released on July 12, 2012. The combination carries a strong message from the Court: copyright is a limited right and those limits must be robust if copyright is to serve its presumptive purpose of enhancing creativity. Of particular note is this Court's continued support of fair dealing. In one case, a performing rights collective society sought compensation for the use of music previews (30-90 seconds long) as they are used in cultivating sales of complete music files. The Court denied that request, stipulating that the use of previews is consumer research. Moreover, the Court took the opportunity to probe into the nature of research, to the advantage of all Canadians:

Limiting research to creative purposes would also run counter to the ordinary meaning of "research", which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest (SOCAN v. Bell Canada, para. 22).

In a second case, an educational licensing collective objected to the practice of teachers taking copies of small excerpts of works to be used in conjunction with paid-for textbooks. To the claim that such copying was detrimental to markets, the Court responded with:

[T]here was no evidence that this decline was linked to photocopying done by teachers. Moreover, it noted that there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (Access v. Education, para 33).

The Supreme Court of Canada began the quest for better balance in the system of copyright in 2002; a brief summary of pertinent decisions is available here. Through the five recent cases, the Court continued its commitment to technological neutrality, emphasized that advancements in technology do not immediately confer added control to copyright holders, and, made it plain that when considering fair dealing, focus must go to the end-user (not any intermediary involved in the reproduction or distribution of a work.)

An immediate effect of both the new Act and the Court's guidance is a shift in policy by educational institutions. These institutions were a captive market for educational licensing collectives, with instances of fair dealing effectively wrapped into blanket fees. Michael Geist writes that such monopoly is being rethought. Canadian institutions have paid, and will continue to pay, fees where copyright requires it; but fair dealing is now seen as an active practice instead of an exception that only exists on paper.

With a more flexible Copyright Act and a Supreme Court that champions balance between copyright holders and copyright users, Canada looks good going into 2013.

There is a lot of talk in academic circles about open publishing models - but mostly for journals. However efforts are underway for books as well: Openbook publishers has been taking the lead in this - they are the publishers of my recent book Is Behavioral Economic Doomed. They publish under a creative commons license that allows free reproduction and modification - yet we still think we can cover the costs and even make a buck or two.

There is a nice article about them here.

Stephen Greenblatt writes in The Swerve; How the World Became Modern, "Authors made nothing from the sale of their books; their profits derived from the wealthy patron to whom the work was dedicated. (The arrangement … seems odd to us but it had an impressive stability, remaining in place until the invention of copyright in the eighteenth century.) Publishers had to contend, as we have seen, with the widespread copying [by hand] of books among friends, but the business of producing and marketing books must have been a profitable one; there were bookshops not only in Rome but also in Brindisi, Carthage… and other cities [in the Roman empire]."

This suggests to me that books and other writings today would be produced without copyright, which is after all a government granted monopoly and an enormous tax on the public. Think about it.

How bad could copyright on music get? If all the wealth on Earth is owed to copyright holders? That is not enough. What if all the wealth in the Universe is owed to music copyright holders on Earth?

This seems to be the premise of a Awork of fiction, where aliens get hold of our radio waves and promptly get hooked on our music, until they notice they owe a bazillion to the RIAA. Is it fiction or futuristic, though? As the recently deceased Rad Bradbury said, he is not predicting the future, he is trying to prevent it.

HT: io9.

Not possible without copyright, right?