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