Maia Davies Redux: Artists and TPMs

Nathan Fan is a JD Candidate at Osgoode Hall Law School

In a recent op-ed piece in the Montreal Gazette, Maia Davies gave her support for the new TPM provisions included in the Bill C-32 copyright reform proposals. Her argument represents the views of many creators in the country: musicians ought to be compensated for the use of their works, and the new TPM provisions in the copyright reform bill will help creators uphold their right to entitlement in an era of extensive unauthorized downloading. This issue has raised much controversy and is an ongoing debate in many sectors of the creative industry (see, eg, a recent IPilogue article by Stuart Freen). Particularly tricky in this situation is the placement of the “moral” right to compensation/entitlement within the world of copyright law.

As pointed out in Mr. Freen’s article, it is commonly held that the underlying impetus for copyright laws is not a guaranteed compensation of artists for their hard work, but rather the “carrot dangling” incentive (via just reward) for artists to continue to produce creative works for the betterment of society (see, eg, the Supreme Court of Canada in Théberge,¹ see also U.S. Copyright Act preamble;² see also the TRIPS agreement.)³ Though many civilian jurisdictions do place rewarding the creator at the core of their copyright laws (eg, France and Germany). Of course it is Parliament’s prerogative to tip the balance towards strengthening or weakening TPM provisions however it sees fit to best foster the creative output of Canadian society. However, I think that the casting of TPMs in the incentive debate as purely a question of economics doesn’t take seriously enough the moral ramifications of the issues.

James Gannon’s Toronto Star article provides an interesting perspective on this debate. The product that a musician sells to his or her consumers (eg, a CD or mp3) differs from the products of most other producers (say, a toaster) in that a musician’s moral and economic entitlement to her/his work lasts beyond the first sale doctrine. As Gannon explains, musicians think of recordings as more than physical objects with embedded data: “It’s art, more than a simple arrangement of parts like a toaster. A record is more than grooves on a disc. A book is more than ink on pages…artistic works are more than simple objects of physical expression, and that the author’s vision and creativity are worthy of protection”.  But as is made clear, technology has made it easy to copy and distribute the copyrighted material – and this threatens the moral and economic entitlement given under copyright law to a creator of works, beyond just the physical copy of a CD or book.

In an earlier article, I cite Jaron Lanier’s argument that an “open culture” mentality (ie, free distribution of works and ideas) has the effect of devaluing content. This, in turn, devalues humans and their individual intellectual capacity and results in a loss of their human dignity. When you take away a creator’s ability to enforce their copyright – on an aggregate scale – it has profound moral ramifications on the value given to artistic creative capacity in general. I can’t think of anything less incentivizing for a young artist than a lack of recognition/compensation for intellectual work and being relegated to what is essentially a job in the service industry (living off of touring and merchandise sales). For some artists, touring is not an option as their craft is purely in songwriting. In this light, the ability to enforce one’s moralistic and economic entitlement to an intellectual work seems like a pretty tantalizing “dangling carrot”.

Indeed, in this unauthorized downloading era, certain income-generating avenues are less available to specific classes of musicians than others. In the case of touring, for instance, several historically disadvantaged groups, including the disabled and women, are adversely affected. A piece in the latest New Yorker describes singer Rebecca Pidgeon’s twenty-year touring hiatus, and the excitement animating her five-stop tour at the age of 44. She dispenses advice to a bachelorette in the audience: “you’re going to have to tell yourself…. I’m going to put my own needs aside and be there for my husband and my children, and make my marriage work. And this is a song about that.”

The debate has raised the point that TPMs are one of the more effective ways artists can hold on to the rights in their works amidst all of the digital media loopholes. Despite the potential effects of TPM control on user rights, I agree that TPMs, in at least some form, may represent creators’ last resort to a compensatory model in today’s landscape. Without effective TPMs, it would seem that both a creator’s right to economic and moral entitlement are in danger. It follows then that Ms. Davies’s injection of a moralistic entitlement into the TPM debate is a relevant concern that should not be sidelined, let alone belittled, when considering the effectiveness of TPMs in incentivizing creative output.

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1 Théberge v. Galerie dœrt du Petit Champlain Inc., 2002 SCC 34: The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately), to prevent someone other than the creator from appropriating whatever benefits may be generated)…The proper balance among these and other public policy objectives lies not only in recognizing the creatorħ rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them….Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.

2 US Copyright Act Preamble: The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

3 TRIPS agreement, Article 7 Objectives: The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.