It’s 2015, but our content laws are stuck in last century.

Happy 2015, everyone! We’re now midway through the (twenty-tens? teens?) and I am fully expecting my hoverboard and flying car to arrive any minute now.

But, with this new year comes a flurry of new crackdowns on the entertainment content that I, and millions of others, can access.

  • Canada’s ironically-named Copyright Modernization Law went into effect January 1st.  A law so ridiculous that it only could have been written by politicians, the Copyright Modernization Law will require ISPs to send out a warning email to people who download copyrighted content. This email will apparently have no effect other than to clutter up our already-crowded inboxes, though copyright holders could theoretically choose to sue (but they probably won’t).
  • The Pirate Bay, a large and popular torrent file-sharing site, was shut down when its Sweden headquarters raided last month, and its founders were arrested. This prompted everyone to, well, simply move to another torrent site, of which their are dozens. Also, the Pirate Bay is reportedly coming back online under new management in February.
  • Now, in yet another attempted blow to grey-market content consumers everywhere, Netflix has announced that it is cracking down on VPN and proxy users.

A legal grey area

What makes the Netflix announcement different from the others is that it affects people who are paying for their content, as opposed to those trying to access it illegally for free. Millions of paying customers, unhappy with the seemingly arbitrary geographical content restrictions imposed by Netflix on what movies and TV shows they can watch, use VPN and proxy services to “fake” being in a different country to gain access to thousands of titles unavailable in their home nation.

This has long been a legal grey area familiar to us Canadians. From the days of setting up US satellite dishes to gain access to HBO or other channels that the CRTC deemed unfit for our sensitive canuck ears, we’re accustomed to paying more and getting less than our American neighbours — and we’ve long since figured out ways to skirt the system. We’re happy to pay, but all too often the content simply isn’t legally available.

Too, Netflix itself is an industry game-changer. With its forays into original programming, it has successfully challenged the monopoly on television content formally held by the big broadcasters and cable channels.

But Netflix is still beholden to copyright laws that license and restrict content based on physical borders. These laws are determined to artificially impose these borders in the formerly borderless internet space as well. Netflix, like any offline cable company, has to negotiate a separate licensing deal with each content owner for each and every country in which it makes that content available. This is a long, cumbersome process, and the laws are complex, which is why some movies and shows are available in some markets but not others, and why people have resorted to VPNs and proxies in the first place.

These restrictions would not feel out of place in a country like China, where the government tightly controlls what people can see and hear and read. But they also exist in our supposedly free, democratic societies. These laws are outdated and strikingly last-century, and they badly need to change.

Learning from history

In fact, this is highly reminscent of the last big battle fought by content distributors in attempt to protect those delivery methods: The record labels’ attempt to save CDs in the 90s. It was an expensive fight, involving millions of dollars in legal fees and terrible PR. And it was doomed from the start.

The labels battled kicking and screaming, adding ill-fated DRM features to their CDs and suing music sharing sites like Napster. Recording artists, long abused by draconian contracts and industry abuse, mostly stayed out of the fight. The labels dragged their heels for so long, in fact, that it opened the door for a competitor — in this case, Apple — to launch iTunes and completely take over the music distribution industry. I’m sure those former Sony, BMG and MCA execs are looking at the billions of dollars Apple has made in the past twenty years and kicking themselves every day.

What the record labels didn’t realize was that they weren’t in the music business at all: They were in the distribution business. As long as they owned the physical channels of distribution, they were making money. But they were selling water in the desert, and it started raining. At that point, Apple recognized this and started selling umbrellas. Streaming subscription services soon followed suit. All the while, the record labels were washed into obscurity while trying to pointlessly turn off the rain.

Profits and practicalities

What’s driving this fight is, of course, the entertainment industry’s desire to protect its profits. Without a content licensing agreement, anyone viewing or distributing the content is doing so illegally, and nobody at any point of the chain gets paid. This will ultimately kill the industry — it’s already doing so with music, since new royalty models have made it almost impossible for musicians to make a living. Television and film could be next, unless a model emerges that is fair to those who make the content as well as those who consume it.

In practical terms, we’ve yet to be able to reconcile the borderless digital world with the borders of the physical one. Part of being a country is maintaining the sovereign ability to create and enforce one’s own laws. There’s simply no multilateral agreement or world governing body that has the power to override each individual nation’s content licensing and distribution laws.

World digital content treaty?

But maybe there should be. Perhaps what is needed here is an international treaty of some sort, signed by as many nations as possible, that sets out standards for content licensing, distribtion, compensation and copyright protection for digital content.

It’s not without precedent: There are international treaties in place to protect copyrights on work published in physical format.

A few possible provisions that I think should be included:

  • “Borderless” distribution across all signatory countries. Like travelling through Schengen without needing to get your passport stamped, you should be able to access digital content online regardless of whether you’re in Canada, the US, the UK or anywhere else in a participating country. Of course, the more participating countries, the better.
  • Compensation for artists should be protected. No content could be licensed or distributed by anyone without providing for fair and reasonable compensation for those who created it.
  • Protection of “fair-use” sharing. Use and sharing of content for satirical, critique or parody purposes, for educational purposes or for legitimate news should be protected.
  • Separate the content from the distributor. ISPs are not the copyright owners; they are merely ways in which content is delivered. Distribution pipelines need to be neutral; the “common carrier” act in the US should be extended to apply to ISPs and a similar provision should exist across all participating nations to prevent ISPs from favouring their own content, blocking that of a competitor, or manipulating what we can access.
  • The right to buy content from any provider who offers it in any participating nation. So, for example, if I want to buy content from someone in Australia, and no Canadian company is offering that content, I should be able to purchase it directly from the Australian provider and pay them. A lot of illegal downloading happens because of greed, sure, but much of it is simply because there is no legal way to buy it. iTunes proved that, when it made services like Napster obsolete. People will pay for good content if the prices are reasonable and the methods are made available.

The entertainment industry would surely appreciate the simplicity only having to put a single content licensing agreement into place instead of dozens. And end-consumers would surely appreciate being able to access online content regardless of which side of an offline border they live on.

It wouldn’t be easy, of course. The entertainment industry would surely try to manipulate the process to squeeze as much profit as possible, at the expense of the end-consumer. Governments could add their own restrictions. The voice of the consumer is rarely heard all that loudly during these sorts of processes.

But the point is, it is possible. And it’s certainly necesssary; this wild-west model of grey-market viewership and random crackdowns isn’t working. It angers consumers, costs artists their living, and is threatening to destroy the ability of anyone to create and watch original, interesting content. We need a better way. And maybe 2015 is the year to make that happen.

Meanwhile, I think I’ll go update my VPN service.