We all know popular culture is a wasteland, but at least it’s a crowded one. If Bill C-61 proceeds, it will become a lot less hospitable, not only for consumers, but for the majority of copyright holders as well.

What does “fair use” (or “fair dealing,” if you’re pedantically Canadian) mean to you? To me, it means that if you pay for some kind of content, you should be able to enjoy it in any way you choose. If you buy a refrigerator, nobody tells you what you can put in it. If you buy a hammer, nobody tells you what you can build. If you buy a chair, nobody tells you what room of your house you have to put it in, or how many people can sit in it. To my knowledge, it’s not illegal to buy a book and lend it to a friend. And yet when we buy other forms of media, or even access “free” media like radio or TV, we’re told that we can’t share them, we can’t copy them, we can’t alter them or recontextualise them in ways of our choosing; we can only transfer them to sanctioned devices, for personal enjoyment in limited ways. Once we, as consumers, purchase something, we’re free to do with it whatever we like — unless that something is a CD, an mp3, or a DVD, in which case, what we’re allowed to do with it is strictly dictated to us by the government, and transgressions can carry stiff penalties.

The Conservative government today released the details of Bill C-61, a copyright bill intended to remove any and all enjoyment from consuming media in Canada. Ars Technica, as usual, gives us a very descriptive but concise analysis of the bill, which I will now crib:

• You may record stuff off TV, but you can only watch it once and then you have to delete it.
• You may not make backup copies of CDs or DVDs.
• If you illegally download copyrighted material from the web or P2P, you could face a fine of $500.00 per instance.
• If you illegally upload copyrighted material to the web or P2P, you could face a fine of $20,000.00 per instance, plus punitive damages.
• Filesharing is punishable even if it’s not provable that any copies of what you upload have been downloaded; demonstrable harm is not required in order to press charges.
• The bill allows for data to be encrypted in ways that can lock up your devices.
• DRM is not subject to fair use laws, and attempting to undermine or circumvent DRM is forbidden (that is, if you have to crack a poorly DRMed CD to get it onto your iPod, you’re breaking the law).
• Sampling and parody are not protected, so satire of or creative reuse of samples, such as remixes and mashups, will be curtailed or outlawed entirely.

In other words: there’s a lot of laws which will protect the powerful, and none at all to protect the powerless. Thrasymachus would be proud.

Try this thought experiment: imagine what the world would be like if we actually followed these rules to the letter. Any music you want to hear, you have to pay for, and you can’t pass it on to anyone. Media that is protected against transferral and unlocking must remain locked and untransferred. If CDs are protected by DRM, you’ll only be able to listen to them using a CD player. If you upload home movies to YouTube, you’ll only be allowed to use music which you have personally written and recorded. How will you be able seek out and discover new music? All the music you were turned onto by the friends who made you mix CDs will be taken away; your only source for new music will be industry sources like websites and magazines. Even if you discover new material you like, will you be able to afford it? Can you invest the roughly $3500.00 it takes to fill a 16GB mp3 player? Will digital media become even more expensive, once labels and studios have total control of scarcity and can distort the relationships between cost and value?

Assuming it ever carries any weight, this legislation will have a profound chilling effect on media in Canada. Not only will it curtail people’s access to new media and make it prohibitively expensive to accumulate, it will negatively impact the creators and copyright holders who want to get their stuff out there. I just added this quote to my previous post on piracy, but I think it bears repeating. This comes from an interview with Cory Doctorow, an open-copyright advocate and de facto spokesperson for the Creative Commons, available on The Onion:

“Rufus Pollack from Cambridge University, who’s a Ph.D. candidate in economics there, conducted [a study]. What he concluded was, for the bottom 75 percent of music, piracy represents a small-to-midsize increase in sales, so it generates more sales than it displaces. For the next 20 percent or so, in the 75 to 98 percent range, it’s a wash. You lose some copies, you get some free publicity, you more or less break even. And then for the tiny minority that would be at the top, that 2 percent, it represents a small loss. And those are the people who can kind of afford it.

“If Stephen King loses a couple hundred bucks to piracy on his latest book, it’s not going to break his bank. Tim O’Reilly says piracy is progressive taxation—the people who can afford it most are the people who suffer it most. And the people who need it the most are the ones who benefit the most.”

Did you catch that? Piracy — not just devilish P2P but also recommendations from friends, which in long tail markets are everything — doesn’t really negatively impact 98% of artists, and actually helps about ¾ of them. Whom should we be more concerned about? The top grossing 2%, or everyone else? To a consumer, it’s obvious: we should help those 75%, not only because it makes for a richer, more rewarding experience for consumers, but because it creates interest in the industry as a whole; media consumption is not a zero-sum game, and building a larger, more involved audience is a good thing for creators. For studios and labels, on the other hand, the long tail only detracts from their big hits, their money-makers; those top grossing 2% of acts or shows can generate a significant chunk of their revenue, and the majority of their profit, and that 2% is likely more profitable than the 75% which benefits from P2P word-of-mouth that makes up the length of the tail.

In other words, this is not about protecting consumers, and worse, it’s not about protecting Canadian artists and copyright holders — at least, not the ones that need protection. It’s about protecting the large, powerful copyright holders that form the base of the tail, who make a lot of money but comprise a relatively small amount of content. Smaller artists who support this bill do so to their own detriment — which is why you’ll notice most independent acts, the struggling ones, the ones trying to build an audience, generally try to encourage word of mouth through filesharing, as opposed to trying to quash it.

Make no mistake: Bill C-61 is about protecting corporate interests, at the expense of everyone else.