Below I have reorgnized the comments and my responses to make the argument easier to follow. This was originally posted on the abc library list.  Hal Welke is a copyright officer in the Department of Education, Alberta.  I  provided a Copyright myth test which you can read in my previous blog posting.

My initial test items are in italics. Hal's comments are in blue and my response is in black. - Rory

Hal,
Thanks for your comments. See my responses below.

On 11-04-01 10:41 AM, Hal Welke wrote:

I found Lesley Ellen Harris’ test to be clear and concise and simple.  However, I must say that Rory’s’ “test” seems to be a collection of misinformation and irrelevant material that only confuses those who are not really familiar with copyright.  I believe if you want to see bias – look no further than Rory’s test.

For example:

1.      1. In Common Law countries, copyright was instituted to protect the rights of the author.  FALSE

The title of the first copyright law The Statute of Queen Ann 1710 makes it clear: An Act for the Encouragement of Learning  and in the US 1790 : An Act to Promote the Progress of Science and the Useful Arts.

Item 1:  You say the title “makes it clear”  Maybe to you – but not several others who have discussed your response off listserv.  I thought maybe it was only me – but it wasn’t.

RORY>> Normally, the title of a bill reveals the purpose of the Bill: "An Act for the encouragement of learning". If that is not clear to you and others, this can't be helped. The Full title is “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Author's or Purchasers of Such Copies”

Note that this makes it even more clear that it includes Purchaser rights and not just those of the author. The preamble reinforces this view, restricting the PURPOSE to the: “encouragement of learned men to compose and write useful books". So #1 remains FALSE

1.     2. Copyrighted materials are intellectual “property”. FALSE

Jefferson: “Inventions cannot be a subject of property.

Madison: “incentive not property or natural law is the foundational justification for copyright”  -- “It is a privileged monopoly.”

Copyright restricts and limits property rights.

Item 2:  You say it is false, but then give a totally irrelevant quote from Jefferson about “inventions” and even better you give a quote from Madison that says Copyright restricts and limits property rights  which totally goes against your thinking that copyright is not property.  Madison seems to think it is and you were the one who quoted him.  Thanks for providing the ammunition to prove your answer is wrong.

RORY>> Inventions are creations or compositions. Check a dictionary. The Jefferson quote is entirely relevant. Copyright covers compositions and artistic creations.

Sorry. I missed the final quotation marks as part of Madison’s quote. You point out that the last sentence leaves an opening for copyright as property. That part of the comment was NOT Madison’s. He was quite opposed to copyright as property. My mistake not Madison’s.

Madison was right. Copyright is a privileged monopoly and not a property right. Copyright is a private monopoly limiting what you can do with content that you have legitimately bought. See Rick Falkvinge:

http://torrentfreak.com/the-copyright-monopoly-is-a-limitation-of-property-rights-110320/

 He explains the difference between buying property (a chair) and a movie.

SO #2 remains FALSE

1.     3. Copying copyrighted material is “stealing”. FALSE

To steal you must take something AWAY from someone.  Illegally reproducing content is known as “infringement”.  A US court decision:

“Infringement is NOT theft as infringer “did not "assume physical control over the copyright nor wholly deprive its owner of its use."

“ Infringement does not easily equate with theft, conversion, or fraud.”

“The Copyright Act employs a separate term to define one who misappropriates: 'infringer'.”

However Removing millions of texts, videos, songs and other creative works from the public domain  by extending copyright to 50 and even 70 years after the death of the author is taking something away from the public. THAT could be characterized as THEFT.

« to penalize consumers in order to give special benefit to an industry might well come under the Biblical definition of theft” - Rev. J. Frame

Item 3:  This is great you say it is not theft for some to infringe on copyright – yet you then state it IS theft for someone to have protection of their material because it is not in the public domain.  Talk about double standard.

RORY>>> The point either way is that theft is taking something AWAY.  Infringement is not theft. Neither legally nor ethically. I am not saying that infringement is ok. I am just saying that it is NOT theft and the courts agree. Infringement can be illegal and unethical.  It is not ok. By the way I was quoting Rev. Frame to show that if you believe that theft is infringement, his argument is much stronger as when you extend the public domain to 50 years or 70 years, something is taken AWAY from the public – Millions of orphaned works. But I take your point.  Nevertheless, #3 remains FALSE

4.     4. Sharing your legally acquire copyrighted materials is “giving away” something. FALSE

 “Its  peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

                        Thomas Jefferson [Speaking of creative works]

Item 4:  You are talking about intellectual property – not ideas (which cannot be copyrighted)  instruction (which is not fixed and not copyrightable) and certainly not candles.  If you want to quote make it relevant.

RORY>>> No, I am talking about copyrighted materials that I show to my friends. Not ideas. And as in the theft question. Nothing is taken away. So the point is made previously. On the other hand, the quote does not quite fit as you note, but it is such a nice quote! (:-)

 Nevertheless, #4 remains FALSE.

5.     4. Pirating always hurts the authors of copyrighted materials. FALSE

There is a difference between “pirating” and “bootlegging”. Pirates are people who make a copy for a friend or for their own personal use. Many companies, including Microsoft have benefited enormously from pirating. Pirates established MS DOS as a world standard. Bootleggers on the other hand reproduce works to sell. Most pirates and others would consider bootlegging to be unethical. 

Item 5:  I have made back-up copies of numerous items and I am not a “pirate” .  The Copyright Act allows it you know.  I do not make copies for friends nor do I allow copying of my legally owned material by others.

RORY>>> When you teach T/F or multiple choice test taking, you direct learners to watch out for the word “ALWAYS”. If it is there, it is almost invariably FALSE in a statement. (:-)

I strongly believe that you don’t consciously pirate. I am not a conscious “pirate” either. However, You have just copied the whole of my created content without my permission. Isn’t that piracy? I have just copied the whole of your created work without your permission. My God! in this case am I a conscious pirate? Fair dealing only includes copying a portion of a created work and for research not for criticism. In the previous Copyright test: T F 6.  You can copy 3 percent of a work without obtaining copyright permission.  This is apparently false, so according to that we could not even hold this online discussion without exchanging permissions.

Let’s call this discussion research and we may have a case. The problem with the present law is that it makes us all pirates!

But the fact remains that there is a big difference between pirates like us and bootleggers who sell for profit that the copyright owners try to obfuscate. So #5 is still FALSE.

6.     6. Companies that own copyrighted material always help artists who created it. FALSE

“The record companies pretend they're protecting the rights of the musicians, but you have to be deeply dumb to believe that. What they mean is that they want to protect the rights of the musicians they have under contract -- even if their "protection" hurts everybody else. What's keeping them up at night is the realization that musicians don't need record companies any more. “Orson Scott Card

90% of musicians with recording contracts with major label companies end up owing money to the company.

Item 6:  This appears to be one of those cases where 84% of all statistics are made up on the spot to bolster someone’s argument.  (Yup – I just made that one up – but I admit it freely)  With your statement  90% of musicians with recording contracts with major label companies end up owing money to the company.  Please provide definitive proof.  If you can’t, in my opinion, it sheds doubt on most of your statements.

RORY>> No, this is not one of those cases. Here’s the “proof” as a reference below. It is not made up. Now, do you believe me? By the way quibbling over the stats is a “red herring”. The point is that recording companies and publishers are not always the artists’ friend.   There’s that  “ALWAYS” again. #6 is FALSE.

Reference for 90% quote:

Barlow, J. P. (2002). Intellectual property, information age. In A. Thierer & C. W. Crews, Jr. (Eds.), Copyfights: The future of intellectual property in the information age (pp. 37 - 41). Washington, D.C.: Cato Institute.

Also see:

Avalon, M. (2003, May 1). Major labels caught stealing $100m a year: Record clubs get a smack upside the head by federal judge.  Retrieved  from http://musicdish.com/mag/?id=8048

OR

Albini, S. (1998, February 6). The problem with music.  Retrieved  from http://www.negativland.com/albini.html

More recently:

“Between $50 million and $6 billion may be owed to musicians and artists in Canada, but not from your run-of-the-mill file sharers. The Canadian recording industry itself is being accused of massive copyright infringement, and the list of miffed artists just keeps getting longer.”

Cheng, J. (2009, December 7). Law & disorder; Artists' lawsuit: major record labels are the real pirates.  Retrieved  from http://arstechnica.com/tech-policy/news/2009/12/artists-lawsuit-major-record-labels-are-the-real-pirates.ars

Smith, E. (2010, September 10). Federal court sides with Eminem in royalty dispute; record business does not implode. The Wall Street Journal. Retrieved from http://blogs.wsj.com/law/2010/09/03/federal-court-sides-with-eminem-in-royalty-dispute-record-business-does-not-implode/

7.     7. Copyright does not support the public domain. FALSE

The first copyright law instituted the public domain. It did not exist before that.  It limited author’s to a copy right for specific time after which the creation, which belongs to everyone can be exploited by every one.

Item 7:  This is correct.  I do get a kick out of your use of the word “exploited”.  One definition of which is “to make use of selfishly or unethically”

RORY>>> We agree! and of course publishers can selfishly “exploit” their work and their artists also.

8.     8. Fair dealing is an exception to copyright law. FALSE

Chief Justic McLachlin: “fair dealing is an integral part of the scheme of copyright law in Canada. »

Item 8:  This is also correct.

Rory>>> We agree! But do we agree on the implications of that ruling for education?

9.     9. Copyright law benefits consumers. FALSE

John Perry Barlow: "The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent."

“Strip away all the pretension, and what you really have is this: Rapacious companies that have become bloated on windfall profits and ruthless exploitation of other people's talents are now terrified that the gravy train will go away.” Orson Scott Card

Item 9:  You say this is false.  Then you provide a couple of irrelevant comments that in no way back up your answer.  It could be argued that copyright does benefit legitimate consumers.  If everyone paid a fair price for an item then the price could be lower.  To produce 1000

copies of a CD is much more costly than to produce 100,000 copies of the same CD because of the economies of scale.  It also hurts the economy because those pirated CD’s take away from the livelihoods of the people who produce, distribute, transport and sell those CD’s.

RORY>> If they can reduce the price then why don’t they? More realistic pricing that approaches their actual costs would be welcome. I am not stating that copyright can’t benefit consumers. I am stating the fact that when they put on restrictions, locks and limitations on their products that this hurts consumers.

I have many times made the statement about educators and the free use of copyrighted material.  If you as an educator will give up your salary and all benefits, I will fight for your right to use any and all material in the classroom to educate. However, if you don’t give up your salary, why are you asking all of the creators, producers, distributors, sales people etc to work for free when you won’t do the same.

RORY>> You misunderstand me. I support the right of authors. I am one and I collect royalties. This is about a law run amuck. Copyright started off balanced with real protection for authors and real benefits for educators but since then the educators’ rights have been eroded and they continue to be eroded. What you raise is a “straw dog”. Only the most out-of-it extremists are claiming that authors should not receive just recompense. Of course they should. The publishers continually try to paint everyone who opposes their limited and one-sided view of copyright as wanting something for nothing. That is not the case. Some of us just want to restore the balance and allow authors to maintain their rights without taking educators’ rights away. So, #9 is FALSE

10. Without copyright no one will produce creative works. FALSE

Here are booming industries with no copyright protection:Perfumes, recipes, car bodies, monuments, fashion, furniture.The Grateful Dead makes c. $50m a year and anyone can legally copy or tape their concerts. 

Item 10:  Correct copyright does not protect those industries.  But there are a myriad of other laws that do in the way of Patents, Industrial Design, Trademark etc etc.  

RORY>>> Yes, and many copyright owners take full advantage of them. Good for them. But the statement remains FALSE. You don’t need copyright for creativity. However, I would agree that copyright does help artists and I support it, but not because there would be no creativity without it.

 You can support copyright as I do. I am pointing out that the argument that without copyright no one would create  works is not reasonable. Of course there would be. Creativity existed for thousands of years before copyright and will exist for thousands of years after. Not to mention the fact that the vast majority of created works are non-commercial (e. g. this discussion).#10 is FALSE.

As for your Grateful Dead making $50 million a year – you may find it interesting that they make a portion of that from selling hats, t-shirts etc etc and that material is copyrighted and trademarked.  They may release their musical material freely, but they fiercely protect their

ancillary market where they make their money with those same laws you say they don’t utilize.

Most creators of “intellectual property” don’t have the ability to utilize an ancillary market as the Grateful Dead have, and therefore can only realize any income from the sale of copies of the material they create.  To use the Grateful Dead as an example of why copyright should be free is doing an extreme disservice to those who actually create something.

RORY>> Here is the “straw dog” again. I have never supported copyright being free.  So, I would agree with you if someone were to do that would be doing a disservice not just to creators but also to him/herself.  On the other hand many creators do not have a problem with file sharing and release their content for this purpose on the Internet. At least one news report suggest that they are the majority of musicians.

CNN. (2004, December 6). Survey: Net file-sharing doesn't hurt most musicians.  Retrieved  from http://edition.cnn.com/2004/TECH/internet/12/06/tech.music.reut/index.html

Copyright protects the copyright owners. It is the educators’ rights that are being taken away. There needs to be a return to balance.

By my reckoning – you got 2 right on your own test. 

OK – I guess I have to give you Item 10 as well – so it is 30%.