The YouTube Autonomous Zone in Canada’s Bill C-11

“Pirate utopias” have been a long-running fascination with the anti-copyright crowd, which I think is spillover from the  “information wants to be free” cult.  The anarchist Peter Lamborn Wilson writing under the handle “Hakim Bey” wrote what is probably the best known book on the “pirate utopia” under the title “The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism” (1991) or, as it is known perhaps affectionately in hacker circles, simply “TAZ.”  (I for one am not quite sure what makes “poetic terrorism” different from unpoetic terrorism, or just plain old terrorism, but I’m sure someone at Harvard knows all about it, thank goodness.)

If you were paying attention to Julian Assange over the last few years, you would have heard echoes of the TAZ in his speech at the 26th Chaos Communication Congress, the hacker convention, especially the Wikileaks “Here Be Dragons: Going from Defense to Attack” project to create an “offshore publication center” to provide a specialized set of laws that would allow Wikileaks to do what it does–a permanent TAZ known as Iceland in this case.

So the concept has been around for a while–putting servers for various illegal items on Sealand is another example–but who ever thought that Canada would become a TAZ?  Now that sounds extreme and it largely is, except for one particular example now being debated in the Canadian parliament–the user-generated-content or “UGC” exception in the current Canadian copyright legislation (“Bill C-11).

While creators and distributors have not rejected UGC (companies like Veoh and Viacom signed up to the UGC Principles), Google is still bashing it out with YouTube in court (and from what I hear has yet to pay indies) and did not sign up to the UGC Principles, having some litigation principles of their own, apparently.

However, if the UGC Utopia Principles are passed by the Canadian Parliament, YouTube may be moving to Canada.  (Then maybe they can do to James Bay what they did to the Columbia River.)

Here’s the drill on the “Non-Commercial User-Generated Content Exception (s.29.21)” in Bill C-11.

The idea is to allow an express exception in the copyright law that allows  individual users to create UGC, such as a video out of video clips for home use–i.e., noncommercial use–an exception that does not exist in any other jurisidction.

Now the first thing that should come into your mind when someone says “does not exist in any other jurisdiction” is not that the rest of the world is so uncool that they just haven’t had the brainpower to think of this yet or lack the lobbyists to get them there.  It’s that other people have thought of it, but have either rejected the idea politically, or more likely have determined that the new law would violate a treaty obligation of the country concerned.  Meaning that the deal made to keep people from jacking with our goodies keeps us from jacking with other peoples goodies.

The main treaty involved in these types of rules is probably the Agreement on the Trade Related Aspect of Intellectual Property Rights (or “TRIPS” agreement).  The reason that YouTube might move to Canada is that they would be attracted by the breadth and scope of the exception–which is also so broad it would not fit into the relief valve of the TRIPS agreement permitting exceptions (also known as the “3 step test” derived from the Berne Convention).

The proposed UGC exception allows users to nearly anything that the creator could do with her work–said another way, the exception nearly puts the UGC user on the same footing as the author.  I think that fairly read, the exception would permit a user to create sequels, prequels, translations and other “derivative works” that would require a license from the author or owner under US law (and likely under Canadian law as well).

The UGC exception would also include a compilation of other people’s works, such as a greatest hits, best of, or other notable collection of whole works that is only “UGC” in the sense that a user put them together as a group either as a single video or as a playlist (hosted in no particular place, which could just as easily be illegal sources).

Ever try searching for “Casablanca full movie” on YouTube?  Guess what you get?  Casablanca the full movie, sliced into 10 parts.  In fact, try that search as “[your favorite movie title] full movie” and see what you get.  It’s probably up there and it’s probably sliced into 10 convenient little parts for you to do what you want with.  (Which may explain why YouTube is increasing the maximum length of its clips, given that it’s such a hassle to download all those parts.)

And…would allow the user to publish these UGC works on the Internet.  Say buh bye.

I don’t know what the bureaucrats who controlled the drafting pen for Bill C-11 were thinking–or who was doing the thinking for them–but I do believe that the ministers thought they were getting legislation that would allow users to do these things at home with minimal negative economic effects on the world’s creators.  Unfortunately, the current draft of the legislation has unintended consequences that would only assure that both the author of the works being mashed and the user creating the UGC work received no compensation in order to get the exception.  This is because the use by the user must be “noncommercial” which probably means “uncompensated”.

This would not stop YouTube from charging for distributing the work.  Charging for distribution with no payment to creators puts the cherry on the top of the cake for the gift of the pirate utopia–not only could YouTube get a free pass for making these works available, they are essentially prohibited from paying for the works!  Ringdings in Paradise!

Steve Waddell, the National Executive Director of the ACTRA artists guild, says it best:

“…[Michael] Geist’s analysis of creators’ concerns is remarkable for what it misses: the so-called “safeguards” against rights-holders losing control of their works are meaningless when one considers the aggregate impact of thousands of consumers mashing-up a rights-holder’s work without permission.

According to the law, companies like YouTube that profit from the dissemination of user-generated content are required to obtain permission to do so from copyright owners. However, the Conservatives and Geist curiously wish to give such corporations a free-pass at the expense of Canadian creators.  We don’t want to suppress creativity, but there has to be  a better way to allow Canadians to experiment and express themselves rather than a whole-sale sell-out of creators’ rights to their own property.”

I would add that he’s not just speaking of Canadian creators, the law would apply to all creators whose works are used in Canada or servers located in Canada.

But then as Hakim Bey wrote:  “Whether through simple data-piracy, or else by a more complex development of actual rapport with chaos, the Web-hacker, the cybernetician of the TAZ, will find ways to take advantage of perturbations, crashes, and breakdowns in the Net (ways to make information out of “entropy”)….[T]he Web, in order to produce situations conducive to the [Temporary Autonomous Zone], will parasitize the Net–but we can also conceive of this strategy as an attempt to build toward the construction of an alternative and autonomous Net, “free” and no longer parasitic, which will serve as the basis for a “new society emerging from the shell of the old.””

Hic sunt dracones.