I want to tell you about a new project a group of us are working on, but first, some background.

Since the late nineties, when I was working in the public relations business, I’ve been fascinated by people’s relationship with the information they consumed, their knowledge of the materials they used to build their world view. It was important for me to understand if they knew how their information diet was collected, assembled and distributed. Client education (“No, sir/madame, the reporter won’t let you verify the article before it goes in the paper.”) was a large part of the job.

Flash forward 20 years or so and that old fascination with worldview building has hit the front page, with a scary, Orwellian twist.

Post-truth is the word of the year. Barack Obama is lamenting the fact that “everything is true and nothing is true” and surrogates for the president-elect are asserting that “there’s no such thing anymore…as facts.”

Of Facts and Democracy

As a lawyer I’ve learned that the institutions which keep us from the wolves: the rule of law, democracy, individual rights, are, in a way, an illusion. If we are willing to ignore them they can be made to — in a manner of speaking — go away.

Let me explain by way of practical example. I often represented clients with clear, even uncontested, claims against debtors who just wouldn’t pay. My clients often (quite reasonably) couldn’t understand why a judge’s say so wasn’t enough to get them what they were owed. Why, after paying me to get a judgment in their favour, did they also have to pay me to force their debtor to give up a statement of assets, and then pay a bailiff to seize those assets and on and on?

“They’re wrong, the judge said so, why don’t they just pay up?”

The answer, unfortunately, was that not everyone follows the rules, even if they know they’re wrong. Worse still, if someone is willing to defy the rules, the rules themselves are only as good as the punishment the rule breaker receives for breaking them.

To put another way, the rules often work because, at a certain level, we all agree that the consequences of not getting along are worse than making the compromises necessary to get along. That’s great when the rules and punishments are clear. Unfortunately, many of our rules are unwritten and traditional with no punishment baked into them other than social censure.

The rule that “facts matter” (or even exist) in public debate is one of these traditional rules and the social censure baked in means less than ever.

The fact-checking model presumes that all audiences are equally interested in the truth and all politicians are concerned about being caught lying. But 2016 exploded that…Trump exposed a way in which it can’t work, which is when you overwhelm the system with a repeated refusal to be embarrassed about saying things are not true. That suggests something new and dangerous.

Jacob T. Levy, McGill University, Politifact.com, December 13, 2016

I fear that the post-fact society is exposing the flaw in our social contract; that the value of facts in public discourse is just another mutual illusion that someone bold enough can ignore with few consequences.

I fear that other institutions could be similarly exposed.

I’m not willing to give in to these fears without doing something about it.

Accordingly, some of my smart, creative friends from across the political and professional spectrum are gathering together with me to develop a new Canadian NGO tentatively called The Fact Project.

Our terms of reference outline that we are going to develop public education around four principles that seemed self-evident not too long ago. They are:

1. Facts exist.
2. Facts are discernible from opinion.
3. Facts are superior to opinion as a foundation of public policy and public debate.
4. Reasonable people can disagree on the best response to facts but a “post-fact” world (what some are calling a “post-truth” world) threatens institutions and values which are fundamental to Canadian society including democracy, equality and the rule of law.

We’re hoping to develop media literacy programming, public education campaigns and accountability journalism and to call out particularly good (and bad) uses of facts in the public sphere. We’re going to do it in partnership with experts in those fields and we’re going to do it in the Canadian context.

You should join us! Like the Facebook Page. Follow on twitter or get in touch with me directly.

As you know if you have been following my (somewhat incessant, sorry about that) twitter feed recently, I am attending the World Summit on the Information Society Forum 2013 in Geneva this week. I am trying to use it as a learning experience and as an opportunity to help out an organization (the Association for Progressive Communications) that does some interesting work on development, women’s rights and Information and Communications Technologies (what the international set call ICTs). Their mission, more specifically, is:

…to empower and support organisations, social movements and individuals in and through the use of information and communication technologies (ICTs) to build strategic communities and initiatives for the purpose of making meaningful contributions to equitable human development, social justice, participatory political processes and environmental sustainability.

Looking forward to meeting their reps and getting my hands dirty.

There will be more policy/law/creativity oriented posts in the next few days but, here in the downtime between sessions, I thought I would take a moment to put down a few of my initial thoughts which have not much to do with communications, internet and the law and a whole lot to do with being a neophyte at a large, international conference of this type:

1)      When I say large I mean large.  I don’t think there are that many delegates (less than a thousand?) but, the International Telecommunications Union’s campus is pretty big.  In fact when I got lost trying to find the opening ceremonies this morning, I ran into another gentleman who had also lost his way.

“Where you from?” I enquired.

“Here, I work for the ITU,” he replied;

2)      When you’re looking for a bathroom in an emergency, sometimes it’s useful to speak more than two languages;

3)      UN cafeterias are some of the most affordable places I have found to eat in Switzerland;

4)      Unfortunately, upon eating the food in a UN cafeteria, it is very easy to see why they are among the most affordable places to eat in Switzerland.

More to come.

I can’t write about this excellent piece by Kevin Ashton which describes the gestation, birth and death of the Harlem Shake meme without thinking of Arthur (Big Boy) Crudup. Heard of him?

How about Bill Kenny? Getting warmer? No?

Then how about Sam Phillips? Rings a bell, right? He was the man who owned Sun Records and famously said “that if (he) could find a white boy who could sing like a black man (he’d) make a million dollars.”*

The white boy Phillips found was, of course, Elvis Presley. Crudup and Kenny were among Elvis’ earliest inspirations. They were also black. And, frankly, to call them inspirations might be an understatement.

In fact, to my ear it is pretty much impossible to listen to Crudup’s My Baby Left Me and think that Elvis’ first single, That’s All Right, is anything less than a full-on lift: a white boy singing like a black man and making the businessman pulling the strings a million dollars.

I mention old-school examples in relation to what Ashton has written for a couple of reasons: first, because of how much his article seems to want the “right” people to profit from creative enterprise and second because he does such a good job of recognizing that the Harlem Shake revenue split is the latest example of cream-skimming in popular culture. Take this quote:

“The technology may have changed, but the money still flows the same way: to creators of contracts not creators of content.”

That said, there is one question which Ashton stops short of asking which I think is really important in the context of discussions of artist compensation. To wit: if we accept that it would have been great if someone more creatively responsible for the Harlem Shake meme were to have gotten rich off of it (Ashton mentions Albert Boyce and George “Filthy Frank” Miller but it seems from this article that we might want to add Hector Delgado and Jayson Musson, the artists who provided the vocal samples to Baauer’s hit) we may want to ask how it could have been made to happen?

This question is important because, as Ashton’s article shows, “being there first” – or even, arguably, best – isn’t enough to get the money in your jeans. Those who start into a creative process with a goal of making money – Ashton calls them “the corporations” as if it’s a curse word, but his point is well taken – are the ones who are most likely to profit.

My instinct is to suggest that one is very unlikely to get rich by accident and that our goals will often get in the way of our desired outcomes. As such, artists (those who most often start with the goal of creating something funny or inspiring or cool or, presumably in Baauer’s case, danceable) are much less likely to profit from the final output of their creations than the business people who start their efforts with the goal of using their creative skills to make money.

As much as we would like it to be, it is not a question of who is more original or deserving.** Consequently, as consumers or fans of the arts, we are often left with the feeling that Ashton deftly anticipates in his piece; a reflexive revulsion that suggests that the profit taking by those who aren’t “in it for the love” is unjust, or at least unfair. But does that reflex reveal a flaw in our understanding of how creative businesses work?

More critically, is that revulsion – especially when held, expressed and acted-upon by artists themselves – getting in the way of adequate planning and preparing the “business” parts of creatives’ businesses? Because the sad truth is that the arts are far from the only place where the guy or the gal with the smart idea, brilliant turn of phrase or visionary approach isn’t the one who gets rich off a creative output.***

In short, artists have to recognize that they are starting off behind the eight ball. Those who are closest to the sources of revenue – the bankers, brokers, agents, lawyers, accountants and managers  – often, though not always, will see more of the money than the people creating the art.  In this light, it is extremely important for creative people to understand that they will not receive that which they do not seek. As dirty as the words “business plan” are within a creative enterprise, they are often very necessary, even if they are not a guarantee of success. S/he who creates strictly to create is less likely to see his/her fair share when and if money arrives than s/he who plans; s/he who creates is even more unlikely to receive his/her fair share if s/he fails to take an interest in what a fair share is and how it is made.

To put it another way (and in a message to the clients who come to our clinic and those who should): Please create. The world needs more art, more science, more things which have been brought into being by the force of human will and spirit; but never presume that the mere fact that you have created something will entitle you to your fair share of the spoils, no matter how unlikely, and meagre, those spoils may be. That step takes luck, of course, but also conscious planning and business sense; things which can be bought, but also learned just like the chord progressions and singing style of a southern blues man.

 Read the footnotes:

*And the man who was the inspiration for this particularly excellent piece of rock and roll.

**Though it is interesting to think about the idea of “original” in the context of memed series of videos which are based on a single video, which didn’t receive significant credit for the creation of the meme and which counts on a very limited portion of a song which itself includes several, un-cleared samples of other songs… who is the unoriginal party here,  exactly?

***Take a look at Tim Wu’s excellent book The Master Switch to see how hard companies have fought to crush or co-opt disruptive technologies in the telecommunications sector as an example. Or, if you like your analysis a little more blunt, there’s always Frank Sobotka.

I’ve learned a great deal from Sunny Handa.

He’s not like other big-name copyright lawyers in Canada who take public positions on the issues of the day (let’s label the goalposts “pro-content” and “pro-user” and put Barry Sookman and at one end and Michael Geist at the other). Sunny just does his work for the biggest names in the business and keeps his opinions more or less to himself.

I say more or less, because it’s Sunny who is responsible for one of my favourite quotes about copyright. He was teaching a seminar class on computer law a few years ago in which I was trying to rouse the rabble — my beef was, if I remember correctly, that creativity has and would certainly continue to exist with or without copyright protection; that every single person in that room had, at one point or another, created art and culture and would continue to do so because it was gratifying and fun and not because it could be registered, sold and marked with a © . He listened for awhile and then, in a deft feat of rhetorical Aikido, Sunny stole the wind from my sails…by agreeing with me.

“Copyright isn’t about creativity,” he said “it’s about trade.  It’s trade policy.”

Wham. There it was. Let’s cut the crap, guys. Forget the rhetoric. Copyright is about the movement of large amounts of product and money; its written by and for those who can afford expensive lawyers to fight over the wording of tariffs.

Nothing wrong with it, but art, it aint.

I thought about this when reading An “Independent” View of Bill C-32’s Copyright Reform Tina Piper’s chapter in Geist’s 2010 book From “Radical Extremism” to “Balanced Copyright” : Canadian Copyright and the Digital Agenda. What’s great about Tina’s article is how — in attempting to get to the bottom of rather weighty ideas regarding the interactions between the “culture of copyright” and the culture of, well, culture —  she gets to the core of what I have noticed a great deal in working with artists at our clinic: in the community of ideas “contract” is often a dirty word. So too are “copyright” “business” “money” “control” and “the limits of trust”.

To put it another way, as it was put by one of Tina’s (anonymous) interview subjects: “[Copyright reform] maybe works for Nickelback and Sarah McLachlan, but has nothing to do with us.”

But what about emerging artists trying to book their own lives and turn their work into a living wage?  What does their distaste for copyright — and, indeed for the discussion and application of legal rights in general — mean? Are those of us working in public legal education in the arts selling something for which our (supposed) clients have no use?

Well, I’m of two minds.

First, I think there’s a certain creative strength in this “keep your copyright off my art” mindset. Making art is tough enough without muddying the process with the potential bad feelings and conflict that comes with documenting one’s rights. If creativity requires freedom and trust I can’t imagine a better buzzkill then than licking the proverbial pencil tip and announcing that you’re “just going to write this down” so “everyone is on the same page”. To say nothing of the creative consequences of actually entering a dispute with a mentor/friend/producer/promoter/gallery owner in order to protect the rights you’ve gone through the trouble to document.

There’s a weakness to the “anti-law” approach that I find more interesting, though. It leaves me concerned that creative people — and by that I mean not only the artists themselves, but the folks who try and make a living by helping the creators’ works see the light of day — stand a reduced chance of seeing the best returns for their efforts without at least  understanding the tools that they have at their disposal — including legal rights and their enforcement — and being willing to put those tools to use.

Furthermore, I can’t help but wonder if the laws would just look better — more of a human scale, more encouraging and supportive of creativity and less about the brute-force movement of money and product — if more real people used them. The Highway traffic act accounts for pedestrians, cyclists, mini-vans and transport trucks because all of these parties have expressed their interest in the outcomes of those laws by voting with their feet (and wheels).   When creative people — the nominal targets of intellectual property law — cede the use and understanding of that law to the large-scale creative economy, the ability of that law to reflect their needs is bound to be reduced.

To put it another way: copyright — and copyright reform — may not “matter” for independent artists in the way policy makers like to say it does — the WTO matters little in the Etsy economy — but honest negotiation has, and will always be, an essential part of artists having a chance to feed themselves off what they create.

The Last Place I Looked