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essenceoffilm · 8 years ago

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Truffaut Salutes to Books and What They Represent in Peculiar Sci-Fi

Produced in between of Le peau douce (1964) and La mariée était en noir (1967), Fahrenheit 451 (1966) marked French director François Truffaut’s brief departure into the international territory of non-French cinema. Not only was the film Truffaut’s first film in English but also his first in color. Running the risk further, the film meant a new opening for the production company of Universal, too, since it was their first European production. Given these risky factors at play, it might not be surprising that Fahrenheit 451 was not a success. It did not do particularly well in box office and it was a critical flop. Bosley Crowther of the New York Times wrote a hostile review, concluding that Fahrenheit 451 “is a dull picture -- dully fashioned and dully played -- which is rendered all the more sullen by the dazzling color in which it is photographed.” According to Crowther, Truffaut would be successful only if his intention was “to make literature seem dull and the whole hideous practice of book-burning seem no more shocking than putting a blow-torch to a pile of leaves.” [1] Whether one agrees with Crowther’s critique, emphasizing the failures in acting and the execution of the material, or not is besides the point, because the film could also be criticized for marking Truffaut’s artistic regression in terms of more formal aspects. Although Fahrenheit 451 might in this sense represent the wrong path of traditional film which Truffaut took and which Godard, for one, abandoned, and as such might justifiably be left in peace by some aficionados, it has garnered critical appreciation in later rediscovery. James Monaco has commended its visual style, though he has also felt that the film is unnecessarily dull [2]. Despite being Truffaut’s weakest film of the 60′s, it seems to me that Fahrenheit 451 is at the very least worthy of discussion and has many good elements to its merit which should not be overlooked.

Based on the 1953 novel of the same name by Ray Bradbury, Fahrenheit 451 takes place in the not-so-distant future where firemen do not set out fires but burn books in order to prevent critical thinking. Oskar Werner plays the obedient fireman Montag who never reads the books he burns because they do not interest him in the slightest. As a result of his intellectual indifference, things seem to be going quite well for Montag. A promotion is coming his way and he has a beautiful wife, played by Julie Christie, who is fully content with her life which consists of watching semi-interactive plays on her futuristic flat TV screen. One day, however, an elementary school teacher, Clarisse, also played by Christie in a double role, enters Montag’s life, and she is able to spark a budding interest in Montag for the books he burns. After discovering Dickens, Montag turns into a reclusive bookworm who raises suspicion in his wife who eventually informs Montag to the officials. Becoming an enemy of the state, Montag leaves society with Clarisse as they join a remote tribe of “the book people”, an eccentric group each of whose members have memorized a book and thus have become that book. Their escape is a success, and a living library wanders in sad snowfall in the iconic ending of Truffaut’s film.

Not your typical science fiction film, Fahrenheit 451 does not unfold in action-packed sequences and it does not have a lot of things going on for its nearly two hours of projection time. Telling of the film’s peculiarity even in the context of Truffaut’s oeuvre is that Truffaut kept a diary of the film’s production (something he did not do for his other films) which was later published by Cahiers du Cinéma. In the diary, Truffaut expresses both his likes and dislikes for the film in question, admitting that “I like the film quite well when I see it in pieces or three reels at a time, but it seems boring to me when I see it end to end.” [3] Prominent New Wave scholar James Monaco agrees, arguing that where Truffaut succeeds in creating a powerful visual aesthetics, he fails in captivating the audience with a dramatic narrative:

Clear, fresh, and evocative, these images and sounds create a strong mood for the film, as does Herrmann’s music; but the mood can’t carry the full weight of the de-dramatized and de-politicized science fiction. [4]

Monaco’s complaint regarding the “de-politicized” nature of Truffaut’s Fahrenheit 451 refers to the popular sentiment that science fiction ought to be political. Whether this is the case or not is open for debate, but it seems nonetheless appropriate to take a look at the dystopian society Truffaut portrays in his film. After all, this is why so many people are drawn to science fiction, I believe, since it offers a narrative form to operate utopian contemplation through negation (that is, by portraying dystopian societies) -- from Lang’s Metropolis (1927) to Gilliam’s Brazil (1985).

If Godard paid little attention to such aspects of the genre in Alphaville (1965) due to his ubiquitous fascination for the formal and meta-narrative elements of cinematic representation, Truffaut would pay even less attention due to his enduring emphasis on the people. Both Godard and Truffaut create their dystopian settings with few cinematic strokes, but Godard’s remains more abstract, whereas Truffaut’s feels (perhaps surprisingly) more real and concrete, even if parodist to an extent. Most diegetic information regarding the dystopian society in Fahrenheit 451 is provided in the background events and details in dialogue -- which, frankly, quite well fits with Truffaut’s overall emphasis. Based on the information, the spectator can deduce that the state of this dystopian world tries to alter history, to eradicate the citizens’ memory, and to manipulate them to believe what it wants them to believe. It is suggested that the state is covering up a war, and in the end we see the state’s successful manipulation of Montag’s TV death for the audience in front of their screens. The characters lack not only a collective memory for their shared history but also their private memories. Montag’s wife, for instance, does not remember when she and Montag first met. Given Truffaut’s intentions, his portrayal of the society is appropriately most interesting in its depiction of humanity. The people lack a connection. They don’t look at each other. They sit in train carts and wait for nothing. They sit in front of their televisions and are captivated by seemingly non-empty images. They are imprisoned by the images which have taken over the life they no longer remember. They live in the society of the spectacle.

The way I see it, here lies the most intriguing aspect of Truffaut’s portrayal of the dystopian society; that is, the increasing power of the image. At first, it might seem odd to critique the power of the image and praise the power of the word by cinematic means, but it works because the spectator is frightened and caught by the very power of the image. This takes its point of departure from the very beginning since the opening credits of Fahrenheit 451 which are not shown in text but recited out loud (like the closing credits of Welles’ The Magnificent Ambersons, 1942). Despite the striking filters of bright color and the quick zoom-ins characterizing the opening credits sequence, the lack of written text is not a mere exercise in 60′s cinematic coolness; rather the opening establishes the Leitmotif of the film, the absence of written text. No where in the film do we see written text (with the obvious exception of the banned books -- and the first time we do as Montag discovers literature is unforgettable). The state only uses numbers and images. Not only has speech overthrown writing but image has overthrown langue, the linguistic system at large.

Depicting a society where images dominate our lives more than words, Truffaut (and undoubtedly Bradbury as well, though I have not read the novel) was definitely ahead of his time. Truffaut must have experienced the fact that more books were printed in his time than ever before, but perhaps he felt that those books weren’t really cared for, loved, and embraced. Nowadays, in the second decade of the 21st century, the theme feels even more urgent. Books are printed less and less, while old books are being thrown into dumpsters. People read less, and many of those who do seem to prefer listening to online audio books. Thus Truffaut’s attempt to give books their magic back, to make them resemble valuable living things, might even be appreciated more fully today in 2017 than in 1966. There lies deep melancholy in the powerful images where the wind turns the pages of the books before flames coerce the thin pages to curl up in agony. In the 60′s, Truffaut might have meant to salute to literature, but from today’s perspective, he is also saluting to the art of the printed word, to the physical texture of books.

The reason behind Truffaut’s ode to books is the idea that books represent something, and that something is what Truffaut is saluting to. It is what is sometimes called inner life; yet this requires a specification because the books in Fahrenheit 451 certainly do not denote individual mental life but rather the collective inner life of mankind. Thus it might be better called Geist or the dimension of Lebenswelt which contains the impractical and disinterested (in the sense 18th century aestheticians used the term, the purity of aesthetic desire) aspects of consciousness: emotions, values, beauty, love, theoretical reason. It is important to emphasize the fact that theoretical reason belongs to this dimension as well because Truffaut is not elaborating a conventional emotion versus reason scenario -- unlike one might expect in a story like this -- but rather a narrative reflecting the eternal struggle between the practical and the impractical (the theoretical, the self-deliberate) the latter of which includes emotion and art as well as sciences and philosophy. It is this dimension, which might be better left unnamed, which Truffaut salutes to in his cinematic ode to books.

Yet Truffaut’s call for the love of books went on deaf ears. Rather than romantic and passionate, Fahrenheit 451 was received as dull and desolate. Crowther writes that

[N]othing could be more depressing than seeing people ambling through the woods of what looks to be a sort of adult literary camp, mechanically reciting ‘The Pickwick Papers’ and Plato’s ‘Dialogues,’ or seeing a dying man compelling his grandson to recite after him and commit to memory Robert Louis Stevenson’s unfinished ‘Weir of Herminston.’ What a dismal image we have here of the deathless eloquence of literature! [1]

While the ending might be depressing in the sense that it shows the desolate state which humanity is in, I think Crowther fails to appreciate the wider picture. The final images where the characters pass the camera in serene snowfall while reciting the books they have become is supposed to be melancholic. But its melancholy is romantic by nature. It further emphasizes the leading theme of books as organic and living; since the state tries to destroy them, the people try to save them by embodying them. After seeing books burn in agony, we see them live in another form. Truffaut was already establishing this theme in the scene, which ends with one of the highlights of the film, that is, the montage of the burning books at the secret library, where the old lady wants to die with the books. Yet she had not yet “become a book” which is why her death feels less tragic, but she wanted to die “like she lived,” meaning a life with books, the impractical dimension of emotion, art, and theoretical reason. The way I see it, the living books wandering in snowfall is not a depressing sight of idiotic learning by heart but rather a melancholic view of people trying to maintain that dimension in a world which does not see value in it and therefore tries to demolish it.

The reasons behind the critics’ dismay probably concern the overall execution of the film, however. First of all, since the film was Truffaut’s first in English and he was anything but fluent in the language, the spoken dialogue in the film can have an unnatural stiffness to it. Second, Truffaut did not get along with Werner, and Christie seems to have been a last minute choice to play both the role of the wife and the schoolteacher -- roles which were not supposed to be played by one actor. Third, the film was Truffaut’s first and only science fiction film with whose stylistic and narrative execution he may not have been that familiar.

Although the first point of criticism seems valid enough, I think the unwieldy delivery of the lines as well as the overall stiffness in the actors’ performances fits with the rest of the picture. If Fahrenheit 451 is really a film which tries to depict a dull-minded society whose inhabitants have lost touch with the Geist, the impractical dimension of Lebenswelt, it seems appropriate to emphasize their absent being. Even if this was not intentional but merely due to Truffaut’s inability to work properly in English, it works in the context of the film.

Agreement on the second point of criticism seems almost unanimous; in other words, most people agree that Werner and Christie were bad choices for the roles. I will sustain from making argument for either position, but I think the fact that Christie plays a double role is worth discussing briefly. It seems to have been a last minute choice and as such it did not influence the original script. This, however, makes the choice to use the same actress for both roles seem irrational and unfounded only if one agrees with the idea that films can be reduced to the screenplay. If one holds a different position, it seems entirely plausible to argue that Truffaut’s film developed while filming and the use of Christie in a double role influenced it.

It seems worth noting that I, as a spectator of the film, tend to forget this double role before I sit down to watch it (perhaps writing this down puts an end to that cycle). The same thing has happened with me in watching Luis Buñuel’s Cet obscur objet du désir (1977, That Obscure Object of Desire) where two actors play the same part. Regardless of whether one shares this experience or not, the use of the same performer for two roles seems thus to immediately emphasize and enhance their dualistic fellowship. The wife and the teacher, the obedient believer of the state and the passionate lover of books, are two sides of a coin. In the spirit of Cartesian dualism, one could go as far as claiming that the teacher represents the detached soul of the empty wife whose consciousness has been extracted due to the absence of books and the impractical. On the other hand, the dual presence of the same actress emphasizes the blurriness of individual boundaries in the dystopian society of the spectacle Truffaut portrays; it highlights the impression that the zombie-like people merge into an unidentifiable visual mass under the same, all-mighty image.

To my mind, the third point of criticism is most interesting. It concerns the genre of science fiction and assumptions about what it should be like. Truffaut’s departure from the genre is evident to some by the lack of technological gadgets and supernatural elements both of which are apparently included in the Bradbury novel. Truffaut’s film is also more de-dramatized than most science fiction in the sense that it moves rather slowly and there is little tension between the ice cold characters. Moreover, it does not come across as political, unlike many of Bradbury’s novels as well as other dystopian narratives. Monaco seems to rely on basically these genre assumptions in his critique of the film:

[T]he very nature of science fiction as a genre, as opposed to the drama of adultery or the revenge play, is just that it provides the novelist or filmmaker with a structure akin to parable and fable so that he can speak of grand themes convincingly. By muting that aspect of Fahrenheit 451 Truffaut made it almost impossible for the film to succeed with audiences. (...) When Fahrenheit 451 is compared with Jean-Luc Godard’s venture into science fiction, Alphaville, made a year previously, it becomes even more apparent that what is missing in Truffaut’s try at the genre is some sense of active resistance to the dismal, suffocating existence it postulates. Bradbury’s original novel, like Godard’s Alphaville, is deeply rooted in politics; Truffaut’s film ignores them. [5]

Monaco rests on the same argument when he agrees with Crowther that Truffaut fails to induce passion for books in the brief and weak ending where Clarisse and Montag “are still spaced-out, passive children of the TV-stoned generation they think they have escaped. They have advanced from narcissism to idolatry, no further” [6].

I think Monaco’s criticism relies a little too heavily on the presupposition that science fiction should be dramatic and political. Since Fahrenheit 451 is science fiction, but it is not dramatic and political, it fails this normative command and, according to Monaco, is therefore a bad film. Although this is a formally valid argument, I don’t think the normative premise is necessarily true. It would be the same thing to argue that war films should have dramatic war sequences, and because Jean Renoir’s La grande illusion (1937), which is a war film, does not, it is a bad film. For another example, I don’t think another French New Wave film, which also represents science fiction, is that dramatic or political either, which is Alain Resnais’ Je t’aime, je t’aime (1968). Its power stems from somewhere else. I think Monaco is essentially guilty of the same naivety as Crowther both of whom try to explain their disapproval of Fahrenheit 451 by referring to conventional notions of what narrative film should be. After all, Truffaut’s genre films of the 60′s from Tirez sur le pianiste (1960, Shoot the Pianist) onward were not about trying to make classic genre films but precisely about “exploding the genres,” as Monaco himself puts it in one of his apt chapter titles. In this sense, it seems a little silly to evaluate the film by comparing it to the traditional formulas of the genres.

The way I see it, a much better strategy in arguing against Truffaut’s Fahrenheit 451 would be to say that it does not go far enough into the direction of “exploding the genres,” stylizing its aesthetics, and utilizing de-dramatization in spite of trying to do that by challenging classical conventions of the genre. Although I tend to lean toward such an evaluation, as I feel that Fahrenheit 451 is among Truffaut’s lesser works of the 60′s, the development of the argument goes beyond the scope of this post. In order to suggest such an evaluation properly, however, it might be beneficial to take a brief look at Truffaut’s modern style in the film before concluding because that is, I believe, where the biggest merits of Fahrenheit 451 lie.

Even if Fahrenheit 451 had a fairly classical structure in terms of narrative, Truffaut gives the film a taste that is totally unique and Truffautesque. The stark and dismal mise-en-scène, in perfect harmony with the intellectual state of the society, leaves a lasting impression with the bright, red firetrucks against the gray autumn environment, the black fascist uniforms of the firemen, the shocking 60′s decor, and, of course, the aforementioned stiff acting which emphasizes the characters’ absent presence in the sullen space. In the ascetic sound world, Bernard Herrmann’s classical and minimal score breathes an air of strangeness into a world it never seems to have known.

In the spirit of 60′s nouvelle vague, Truffaut uses a lot of jump cuts to distort temporal organization but also more classical dissolves which are, however, modernized by occasional fade-outs laden with bright colors. One example of the peculiarity -- and the difficulty in grasping the film as a consistent whole -- of Truffaut’s style is the surprising change in the film’s aspect ratio when the image of 1.66:1 is briefly cut in half as the firemen investigate a playground. The purpose seems obvious: it guides the spectator’s gaze in a quasi-Hitchcockian fashion, taking away the freedom whose importance Bazin always emphasized with regards to observing the space. A more common way of doing this is the iris device which has echoes to the silent era, and Truffaut also uses the iris once in the film. Although these cinematic means are used ever so sparingly in Fahrenheit 451, they do suggest how Truffaut is constantly controlling our gaze just as the state is the illiterate minds of its people -- another great example without any particular device besides extreme close-ups is the scene where Montag discovers literature for the first time with Dickens as his guide.

Like the juxtaposition of jump cuts with dissolves, Truffaut also uses both long and short takes. There is the single shot which covers the scene of Montag and Clarisse walking from the train to their homes next to each other, but some scenes are, conversely, executed as intense montages of close-ups when, for example, the fire station has an alert before the destruction of the secret library. The movement of the camera in both examples is slow and calm, but Truffaut’s camera is also wild and playful in zooming and panning rapidly.

As these means are combined with not only a classical structure but also more classical means (such as establishing shots and shot-reverse shot sequences), Truffaut’s contradictory style gives Fahrenheit 451 a peculiar, disorienting tone. This tone might explain why some dislike the film so heavily, but also why we keep coming back to it. I would call the tone naivistic because it feels playful and simple. The juxtapositions are done for the sake of beauty -- for the impractical dimension. The naivistic tone also fits well with the childlike characters of the film from the obedient and illiterate citizens to the overly idealistic book people. This is, of course, not to look down at the film but to appreciate its fable-like quality. There is something wonderfully naive about the film’s aesthetics. The playful surprise of the cinematic means used thus articulates the integral theme of creativity which reaches from art and love to science and philosophy.

Despite a tragic topic of intellectual apocalypse, this tone gives Fahrenheit 451 not only an optimistic but also a strangely lightweight mood. The original material would no doubt provide a framework for a big and melodramatic spectacle, but Truffaut’s Fahrenheit 451 feels as intimate as Truffaut’s closed chamber dramas of few characters and milieus. Truffaut is asking great questions, but those questions are presented in a circle formed by a handful of people. The sad snowfall of the end culminates this simplicity and further romanticizes Truffaut’s wonderfully naive universe which praises man’s will to preserve that which has no apparent usage.

Notes:

[1] Crowther 1966.

[2] Monaco 1974/2004, p. 71.

[3] Quoted in Monaco 1974/2004, p. 69.

[4] Monaco 1974/2004, p. 71.

[5] Ibid. p. 70.

[6] Ibid. p. 71.

References:

Crowther, Bosley. 1966. “'Fahrenheit 451' Makes Burning Issue Dull:Truffaut's First Film in English Opens Plaza Picture Presents Dual Julie Christie”. In New York Times, November 16th, 1966.

Monaco, James. 1974/2004. The New Wave. 30th Anniversary Edition. New York: Harbor.

#François Truffaut #Fahrenheit 451 #British #1960's #French New Wave #Nouvelle Vague

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elfcow · 8 years ago

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Payoffs in RWBY

RWBY uses payoffs in some pretty spectacular and clever ways, epecially considering its humble beginnings (in budget and team size; it was always grand in scope and ambition). And as we head into vol. 5, the middle of the presumed second 3-volume arc, I’m curious about what payoffs we will see.

Sometimes payoffs in RWBY are simple, and even predictable. These are no less satisfying in their predictability; the payoff comes from the anticipation, and the satisfaction of seeing the show follow through on potential. These kinds of payoffs include the Nevermore fight, the early vol. 3 tournament fights, the use of lockers in the battle of beacon, Blake’s humbling of Roman in vol. 2, and others. These types of payoffs set up the potential by laying out the powers and potential for synergies or matchups early on, and then using them in creative and visceral ways soon after. Other payoffs are unexpected, either by their suddenness, their subtlety, or the extent of the long play that produced them. This includes Blake being White Fang, Pyrrha vs. Penny, Pyrrha’s destiny, SILVER EYES, Salem, Raven, and team STRQ reveals in general. These kinds of reveals are understandable in hindsight, but hard to predict originally. Silver eyes, for example, was introduced in the first episode, and hinted at visually through season openers and the continued emphasis of the importance of eyes in RWBY (which is a post for another day), and in little hints that can only be seen in retrospect (the opening of vol. 3 chp. 1, the silver medal joke, etc.).

Keeping this in mind, what kind of payoffs are we expecting in the next few RWBY volumes? Which ones are we confused about?

The two that I am most confused about definitely fall into the unexpected, or long play category. Oscar/Ozpin, Cinder’s condition, and Ruby’s advanced vol. 4 semblance are confusing to me. Let’s look at them one at a time.

Cinder’s condition is pretty straightforward: some of it is just unknown, but it’s clearly a holistic problem; she is mentally, emotionally, and physically blocked, and it took an entire volume for Salem to start making progress on helping her (and she needed Emerald to do it, which only reinforces the fact that Cinder NEEDS others to help her, as much as she hates to admit it). Her problem is definitely tied into her defeat at Ruby’s hands, and possibly into her acquisition of the Maiden’s powers. I doubt we’ll see much of her at all in Vol. 5, except for maybe a scene in the finale denouement where she regains her full power to hype up vol. 6 or something.

Ruby’s semblance advancement and Oscar’s existence make no sense in vol. 4, at least not yet; their existence is a long con. You could have removed the either from vol. 4 and it would have changed nothing. Ruby’s new level of control lets her fly, change direction, and dodge better than ever. And yet she hardly uses it in vol. 4! It helps her win the fight against the geist, and that’s it. She doesn’t use it at all against Tyrian, either because he pressured her too hard or because the Aura cost was too high in her mind. And although she used it against the Nucklevee, her standard acrobatics with Crescent Rose were more than sufficient. So why advance her semblance so far at all? I’m expecting a big payoff in terms of application in the next two volumes, where she is able to actually make a difference with her speed. Or even some specific situation just for her semblance, like how the lockers were originally conceived for breaking Arkos hearts.

Oscar could be removed from vol. 4 and it would change almost nothing. His existence gives a little bit of hope, and it gives hope to the audience for some much-needed exposition in vol. 5, but other than that he does nothing. In fact, if he were removed, the emotional impact of the Magnificent Seven’s journey would be heightened, since there is less hope for our heroes’ success. So once again, I’m expecting something significant to go down the next two volumes, something unexpected. There’s a lot of stuff in the first four volumes that seems to still make no sense. But if you remember, the vol. 3 finale made SO MUCH clear to us, and had so many payoffs that it broke the internet for a bit. So fear not; in Remnant, nothing happens without a reason.

#rwby #ruby rose #cinder fall #oscar pine #ozpin #rambling

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theonyxpath · 8 years ago

Link

Justin Achilli used to stumble around the old WW office as a character mumbling and shouting about all the Drakulas. Might be two l’s and/or two k’s in there. Maybe a g. I honestly couldn’t tell you, but all I could hear is him yelling about them this week as I thought about our meeting today.

Of course, as per the cover featured in the art above, we��re thrilled to be able to put the latest Vampire: The Requiem 2nd Edition supplement, Thousand Years of Night, on sale on DriveThru this Wednesday. First the Advance PDF, and after we get any notes back from purchasers, we’ll make an errata pass and get an updated final version of the PDF up, and get the physical copy PoD on sale too.

If you’ve been following, this was one of the first ideas for a VtR supplement that Rollickin’ Rose pitched to me as VtR developer, and it felt the pressure exerted by her expanding duties here at Onyx Path. It just got bogged down as Rose stepped up to cover crisis after crisis as Development Producer. As much as Rose loves VtR, and boy does she, she didn’t hesitate long after realizing that she needed help in bringing this book to fruition.

We were incredibly lucky that Dynamic Danielle Lauzon could take over as VtR2 developer, and we hope you are as thrilled by her work with this book as we all are! (You can find more details in the BLURBS! section, below)

Thousand Years of Night art by Mark Kelly

The other Vampire bit of news has been last week’s release of the V5 pre-Alpha playtest packet by White Wolf. To say that there are a lot of opinions about this very, very early look at a few systems and some suggestions of the setting they work within, would be like saying the sea sure has a lot of water in it.

The reason I bring it up here, is that part of the “packet” is a survey for folks to let WW know what they think of the pre-Alpha playtest, and, for me, the survey is really the biggest point for releasing the whole thing at all. If you look at the specific questions, you can see the emphasis on how the Hunger and Compulsion rules both work and feel in play. Same thing for the scenario, drawn from the innovative End of the Line larp in Berlin during the recent convention there.

And then there is the section for additional comments, which I know is where a lot of folks are going to shine. Or at least, you really could shine there, because this is your best chance to help the gang at White Wolf really understand your thoughts about this very first thing that they have produced to start the process – and it is a process – of creating the newest edition of Vampire: The Masquerade.

Here’s the link to their blog: http://ift.tt/2rviUWa

I’m telling you, it’s an amazing opportunity, and these surveys are going right to their very small team. If the Hunger mechanic sounds awesome, letting them know now gives it the best chance to survive the next iterations, and I believe there will be lots of those, and into the final published V5. If the writing style or subject matter works for your VtM, or doesn’t, then let them know that so they understand how their efforts are impacting you and the game and setting you love.

Now, I’m not going to suggest the obvious: that you compose your comments with the idea that an obscenity-laced, all caps, message filled with invective might not be the most effective way to hold and keep the WW gang’s attention. I’m not going to speak for them, and I have no idea how they react to such things, but I always hear from all those consumer advice advocates that polite and to the point is what tends to work best.

I’ve found that to be the case; your mileage may vary.

Beckett’s Jyhad Diary art by Ken Meyer, Jr.

A few followup bits of info garnered from today’s meeting that you might be interested in:

We’re expecting to get the Prince’s Gambit card game KS BackerKit site up this week.

We’re also expecting to close down the Pugmire KS BackerKit site this week or the next.

LisaT tell me that she counted up the freelancers paid the first half of the month at she paid 42 excellent creators, which she tells me is average for a two-week period. For anyone wondering at the extent of that part of our business.

Expect the third Dragon Blooded charms excerpt to go up this week from our new EX3 developers, Eric Minton and Robert Vance. And we’re looking at getting the next monthly releases for our two ongoing EX3 books out before the end of the month too – just need some WW approvals.

We’ve received some ideas for Dark Eras 2 from our project developers, and Rose, Mighty Matt McElroy, and I, will be discussing those this week in terms of how we’re structuring the book and Kickstarter this time. I had earlier compiled and shared all the suggestions for Dark Eras from our DE1 backers, and BOY there were a lot of great ideas there. We want to do this Dark Eras 2 Kickstarter before much longer so that it doesn’t smash into Gen Con prep.

And I’ll leave you with this, the return of the brilliant and idiosyncratic artist John Cobb to Wraith:

Wraith 20th art by John Cobb

BLURBS!

KICKSTARTER!

Coming soon: Dark Eras 2…

ON SALE!

ON AMAZON:

We’re delighted to announce the opening of our ebook store on Amazon! You can now read our fiction from the comfort and convenience of your Kindle. Our initial selection includes these fiction anthologies: Vampire: the Masquerade‘s Endless Ages, Werewolf: The Apocalypse 20th Anniversary Edition‘s Rites of Renown: When Will You Rage 2, Mage: The Ascension 20th Anniversary Edition‘s Truth Beyond Paradox, Chronicles of Darkness‘ God Machine Chronicle, Mummy: The Curse‘s Curse of the Blue Nile, and Beast: The Primordial‘s The Primordial Feast!

And now you can get these books in the Barnes and Noble Nook store too!

Vampire: The Masquerade: The Endless Ages Anthology

Werewolf: The Apocalypse: Rites of Renown: When Will You Rage II

Mage: The Ascension: Truth Beyond Paradox

Chronicles of Darkness: The God-Machine Chronicle Anthology

Mummy: The Curse: Curse of the Blue Nile

Beast: The Primordial: The Primordial Feast Anthology

And here are six more fiction books:

Vampire: The Masquerade: Of Predators and Prey: The Hunters Hunted II Anthology

Werewolf: The Apocalypse: The Poison Tree

Werewolf: The Apocalypse: Songs of the Sun and Moon: Tales of the Changing Breeds

Vampire: The Requiem: The Strix Chronicle Anthology

Werewolf: The Forsaken: The Idigam Chronicle Anthology

Mage: The Awakening: The Fallen World Chronicle Anthology

Looking for our Deluxe or Prestige Edition books? Here’s the link to the press release we put out about how Onyx Path is now selling through Indie Press Revolution: http://ift.tt/1ZlTT6z

You can now order wave 2 of our Deluxe and Prestige print overrun books, including Deluxe Mage 20th Anniversary, and Deluxe V20 Dark Ages! And Screens…so many Screens!

ON DRIVETHRURPG.COM:

What dark secrets do the eldest vampires hold? Find out in Thousand Years of Night for Vampire: The Requiem! Advance PDF version available this Wednesday on DriveThruRPG.com.

You may think that with a multitude of people coming, going, dying and running away, we’d be tired, done, or ready to give up. Instead, I find myself restless, looking for the next thing. There’s always a next thing, and I for one am not yet ready to die.

– Elder Kincaid, Daeva Crone

This book includes:

• Detailed instructions on creating elder vampires, including how to base chronicles around them

• A look into the lives of elders, how they spend their nights, who they work with, and why including their roles in both their clans and covenants

• New Devotions, Merits, and Rituals for elder vampires

• The kinds of creatures that pose a threat to elder vampires, including Inamorata, Lamia, Sons of Phobos, a new elder conspiracy, and more

From the massive Chronicles of Darkness: Dark Eras main book, we have pulled this single chapter, Dark Eras: To The Strongest (Mage Death of Alexander 330-320 BCE). In the rise and fall of Alexander the Great’s Empire, armies marched and cultures clashed. In the birth pangs of Hellenistic civilization, Awakened sorcerers all over the ancient world met, fought, and joined together. In the chaos of Alexander’s assassination and the wars that followed, Cults became Orders amid conflicts still burning in the present day.

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On sale in PDF and physical copy PoD versions on DTRPG!

From the massive Chronicles of Darkness: Dark Eras main book, we have pulled this single chapter, Dark Eras: Three Kingdoms of Darkness (Changeling and Geist China 220-280). Famine weakens the empire, and war splits it apart. It is an age of ambition and strife, where the hungry dead walk the earth in great numbers, and the Lost must rely on their own kingdoms. Warlords and commoners, ghost-speakers and orphans — who truly serves the Mandate of Heaven?

On sale in PDF and physical copy PoD versions on DTRPG! http://ift.tt/2rp8hPL

From the massive Chronicles of Darkness: Dark Eras main book, we have pulled this single chapter, Dark Eras: The Wolf and the Raven (Werewolf and Geist Vikings 700-1100). The Viking expansion across Europe comes at a pivotal time in history, as new faiths rose to challenge the old and new ways threatened to sweep ancient tradition aside. The Forsaken sail with raiders and explorers, seeking new lands to claim and new spirits to conquer, while Sin-Eaters walk the battlefields bringing the honored dead to their final rewards. The world grows larger and more dangerous by the day, but there are great rewards for those brave enough to fight for them.

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Curated by Matthew McFarland, developer of Changeling: the Dreaming Twentieth Anniversary Edition and featuring authors such as Myranda Kalis, Wren Handman, and Peter Woodworth, this C20 Anthology of Dreams is on sale in electronic/PDF and physical copy PoD formats on DTRPG.com! http://ift.tt/2snBT0X

We dream, and we tell stories. We dream of love and the sort of person who might complete us. We dream of horror and wake breathless. We dream of magic, of flying through the air, or breathing underwater. We dream of fantastic vistas and amazing monsters.

We dream, and then we wake, and we tell stories. Our dreams create the Kithain, the changelings. Our stories are sustenance.

Now on DTRPG, the EX3 Tomb of Dreams Jumpstart PDF/PoD jumps up for sale!

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Once, in the time before the gods forgot their names, when the world was flat and floated on a sea of chaos, there was an age of gleaming cities, untamed wilderness, enlightened devils, greedy spirits, and mighty heroes. This was the age of the Exalted, champions empowered by the highest of gods.

Tomb of Dreams will jumpstart your group’s Exalted game—all you need to start playing Exalted Third Edition is this book, pencils, and 10-sided dice. Included here are the game’s core rules, five pregenerated characters, and a self-contained scenario that can start a new campaign or that Storytellers can use in an ongoing chronicle. And for groups that already have the Exalted Third Edition main rulebook, Tomb of Dreams will serve as an introduction for new players and a quick reference during play—anyone intimidated by that prodigious volume need only read Part 1 of this book to get started.

What legends will they tell of your deeds?

Sailing out of the dark, the V20 Dark Ages Companion Advance PDF is now on sale on DriveThruRPG.com! http://ift.tt/2pX42dq

Travel the long roads and deep seas in search of power and experience danger, or tackle the wilderness to hunt monsters and face death. Settlements large and small dot the black expanse with the promise of sanctuary, life, and community. These bastions of civilization present cold comfort, when playing host to vampire warlords and sadistic Cainite faiths. Whether led by a Prince, a coordinated belief, or hounded by monsters from without and within — no domain is truly the same as another.

Dark Ages Companion includes:

• Domains scattered across the world, from small fiefdoms to massive cities. Bath, Bjarkarey, Constantinople, Rome, Mogadishu, and Mangaluru each receive coverage.

• Apocrypha including plot hooks, new Paths, and mysteries to explore in your games.

• A how-to guide on building a domain within your chronicle, including events and servants necessary to make a domain as functional or dysfunctional as you wish.

• A study on warfare in the Dark Ages period, so combat in your chronicles can gain authenticity and lethality.

Bill Bridge’s new W20 novel, The Song of Unmaking, is on sale in PDF/ePub/PoD versions on DriveThruRPG.com: http://ift.tt/2qXQH9f and in ebook form on Amazon: http://ift.tt/2qpQM2V !

The fabric of reality is cracking. Fissures appear in thin air, glowing with balefire. Something is scratching on the other side, pressing, beginning to break through….

The Wyrm’s corruption finds its way into the hearts of humans and Garou alike. Even an ultra-rational techno-cratic scientist can fall sway to its lies. Channeling his hate and resentment through the most sophisticated machine ever created, Basil Czajka has turned a tool designed to peer deep into the heart of the quantum universe into a nursery for the hatching of a horror — a creature whose birth cry is destined to unmake Gaia’s Song of Creation.

The only ones standing in his way are One-Song, a broken-down old Theurge, and Lord Albrecht, whose heed-less anger might be the very weapon the enemy needs to crack the egg and free the Unmaker.

The Chronicles of Darkness: Dark Eras Companion has arrived in PDF and PoD physical book versions at DriveThruRPG.com! http://ift.tt/2pygIL7

The Dark Eras Companion presents eleven new Eras for the Chronicles of Darkness. Stretching from Ancient Rome and Egypt through the Black Death, the Thirty Years War, the Reconstruction, and the Russian Revolution, the Companion showcases even more of the secret history of this eldritch world. Included in each era are “snapshots” of the various supernatural creatures, including vampires, changelings, mummies, and demons. Also included are lists of inspirational media to help you put these Eras in context for your troupe.

Open the Dark Eras Companion and take another look back in time.

V20 Lore of the Bloodlines awaits in PDF and physical book PoD versions on DriveThruRPG.com!

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Lore of the Bloodlines is a single volume (created via Kickstarter) that revisits some of the bloodlines in Vampire: The Masquerade 20th Anniversary Edition, providing story hooks, character concepts, history, and bloodline-specific rules. The secrets of the Baali, Daughters of Cacophony, Gargoyles, Harbingers of Skulls, Kiasyd, Salubri, Samedi, and True Brujah are now yours.

Lore of the Bloodlines includes:

• The history, lore, and nightly practices of nine bloodlines, told from the perspective of the Kindred themselves.

• New combo Disciplines, powers, Merits, Flaws, and other rules specific to each bloodline.

• Revisions and updates of more classic Vampire: The Masquerade material to V20.

CONVENTIONS! Discussing GenCon plans. August 17th – 20th, Indianapolis. Every chance the booth will actually be 20? x 30? this year that we’ll be sharing with friends. We’re looking at new displays this year, like a back drop and magazine racks for the brochure(s).

In November, we’ll be at Game Hole Con in Madison, WI. More news as we have it, and here’s their website: http://ift.tt/RIm6qP

And now, the new project status updates!

DEVELOPMENT STATUS FROM ROLLICKING ROSE (projects in bold have changed status since last week):

First Draft (The first phase of a project that is about the work being done by writers, not dev prep)

Exalted 3rd Novel by Matt Forbeck (Exalted 3rd Edition)

Trinity Continuum: Aeon Rulebook (The Trinity Continuum)

M20 Gods and Monsters (Mage: the Ascension 20th Anniversary Edition)

M20 Book of the Fallen (Mage: the Ascension 20th Anniversary Edition)

C20 Novel (Jackie Cassada) (Changeling: the Dreaming 20th Anniversary Edition)

The Realm (Exalted 3rd Edition)

Dragon-Blooded (Exalted 3rd Edition)

C20 Ready Made Characters (Changeling: the Dreaming 20th Anniversary Edition)

Redlines

Kithbook Boggans (Changeling: the Dreaming 20th Anniversary Edition)

Ex Novel 2 (Aaron Rosenberg) (Exalted 3rd Edition)

DtD Night Horrors: Enemy Action (Demon: the Descent)

Hunter: the Vigil 2e core (Hunter: the Vigil 2nd Edition)

Second Draft

GtS Geist 2e core (Geist: the Sin-Eaters Second Edition)

WoD Ghost Hunters (World of Darkness)

Pugmire Fiction Anthology (Pugmire)

Development

Signs of Sorcery (Mage: the Awakening Second Edition)

SL Ring of Spiragos (Pathfinder – Scarred Lands 2nd Edition)

Ring of Spiragos (5e – Scarred Lands 2nd Edition)

Changeling: the Lost 2nd Edition, featuring the Huntsmen Chronicle (Changeling: the Lost 2nd Edition)

M20 Cookbook (Mage: the Ascension 20th Anniversary Edition)

Pugmire Pan’s Guide for New Pioneers (Pugmire)

Scion: Origins (Scion 2nd Edition)

Scion: Hero (Scion 2nd Edition)

Trinity Continuum Core Rulebook (The Trinity Continuum)

WW Manuscript Approval:

V20 Dark Ages Jumpstart (Vampire: the Masquerade 20th Anniversary Edition)

Editing:

Wraith: the Oblivion 20th Anniversary Edition

Book of Freeholds (Changeling: the Dreaming 20th Anniversary Edition)

BtP Beast Player’s Guide (Beast: the Primordial)

W20 Changing Ways (Werewolf: the Apocalypse 20th Anniversary Edition)

VtR Half-Damned (Vampire: the Requiem 2nd Edition)

Post-Editing Development:

Arms of the Chosen (Exalted 3rd Edition)

Indexing:

Changeling: the Dreaming 20th Anniversary Edition (Changeling: the Dreaming 20th Anniversary Edition)

ART DIRECTION FROM MIRTHFUL MIKE:

In Art Direction

Beckett’s Jyhad Diary

W20 Pentex Employee Indoctrination Handbook

Cavaliers of Mars

Wraith 20

W20Changing Ways

Ex3 Monthly Stuff

Storypath Brochure

VDA Jumpstart

Scion Origins

C20 Jumpstart

Ring of Spiragos

Ex 3 Arms of the Chosen – Sketches coming in.

Beast PG – Got some artists lined up… just need to bust up the notes.

Marketing Stuff

In Layout

M20 Art Book – In progress…

Prince’s Gambit – New Cards out for playtesting

Gen Con Stuff

Proofing

CtL Huntsmen Chronicle Anthology

At Press

Beckett Screen – Shipped to shipper.

Pugmire – Printing finished.

Pugmire Screen – Printing finished.

Pugmire Cards & Dice – Printing/manufacturing.

Wise and the Wicked PF & 5e – Printing.

Dagger of Spiragos (5e) – Out to backers.

Dagger of Spiragos (PF) – Out to backers.

V20 Dark Ages Companion – PoD files uploaded and processing.

BtP Building a Legend – Awaiting errata.

Monarchies of Mau Early Access – PoD proofs ordered.

Dark Eras: Requiem for Regina – PoD proofs ordered.

Dark Eras: Lily Sabre and Thorn – Wrapping up and getting files uploaded.

M20 Book of Secrets – Out to backers and gathering errata.

VTR: Thousand Years of Night – Advance PDF out this week on DTRPG.

TODAY’S REASON TO CELEBRATE: Today in 2017, our friend Eddy Webb made it to San Francisco after driving from Atlanta because SF has the only airport that will still allow dogs to fly out to Ireland. Or anywhere, as it’s the heat of the US summer that is too much for the doggie transports. And Murray Pug must get to Ireland. Greater love….

#Onyx Path Publishing

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cuddlywritesthings · 5 years ago

Text

Midnight Drink

Genre: World of Warcraft

Characters: Taviast Duskwither, Guntharius Plaguespitter

Characters mentioned: Ghelror Ebonfang, Crescida Evenfall (not my character)

Timeline: BFA, shortly after Saurfang’s death.

Trigger warnings: Strong language, alcohol mentioning

- - - - - - - - - -

“I thought I might find you here.”

Taviast Duskwither reluctantly pulled his attention away from his glass of wine. He looked up at the unannounced guest of his, and he couldn’t help but let a weary frown tug at the corners of his mouth.

He had retreated to his personal study for further research on their next potential target. They had plenty to choose from, of course. Azeroth was rife with conflict from both sides, but it seemed the warring factions could not come together and eliminate the more worrisome targets-- those who posed a real threat to everyone, factions be damned.

The foreboding castle that The Circle called headquarters had been long since evacuated by whatever clan, or family or even cult had used it. It had been repurposed by a certain warlock, and had become the group’s main source of sanctuary.

It was late into the night, and after dinner everyone had made their way to their individual rooms. Taviast thought he was the only soul awake, but he always seemed to forget about--

“Dr. Guntharius Plaguespitter.”

“Just doctor is fine. Or Dr. Plaguespitter, if you want to sound snooty and annoying.” The Forsaken stood in the doorway of Taviast’s private studies, his hand raised and fingers trailing along the intricate stonework with a sense of reserved reverence. “You elves, having to be so formal about every fucking thing.”

“Notwithstanding the roots of my heritage,” Taviast calmly replied, with just the slightest hint of amusement lacing his words, “I do try to remain proper and display the decorum expected of me when addressing people. It stems from my time spent as a Magister for the state of Quel’thalas. Decorum comes as naturally as breathing, good sir.”

Letting out a derisive snort, the Forsaken made his way further into the studies. Despite the elf’s sharp sense of hearing (and, no, it wasn’t a joke about their pointed ears), the necrotic doctor, steeped in the energies of the fel, made naught a sound as he approached.

“Alcohol.”

“Mmm?” Tavast blinked a moment in confusion before it dawned on him what the ‘good doctor’ meant by that. Guntharius was good for that. Liked to start conversations abruptly, with a single word, or topic, thrown out there on a whim. “Ah, yes, well,” he lifted up his glass in the vague gesture of toasting the warlock, “must finish the bottle before it goes bad, hmm?”

“You always were an alcoholic.”

A fair bit confused, the Archmage quirked an eyebrow. “I… beg your pardon?”

“It’s true.”

“I must refute this claim of yours. I am not--”

“In denial,” snapped the Forsaken, cutting the elf off at the pass by refusing to let him finish his own sentence. “Covering up your anxieties, doubts and fears by taking the edge off. The edge of this life and this world, all of your responsibilities and guilt, and all that blood on your pretty little hands.” The Forsaken’s one glowing eye seemed a bit brighter than before. His sharp, yet somehow still handsome features were hardened; as resolute and emotionless as a stone fortress. “Blurring the lines of your stress until you can no longer recognize them.”

Unsettling as the tension in the air was, Taviast remained calm. Even as the warlock placed his hands (soundlessly, always soundlessly! He moved, like a giest!) on the table, the ex-Magister, now Archmage, made no move and no sound as to betray his surge of anxious nervousness.

“And you,” Taviast began pleasantly, tone airy and delicate, “have always been good at analyzing others, especially when it comes to one’s health or their unhealthy habits. And that,” he made a subtle gesture with his raised glass, further putting emphasis on his words, “makes you an excellent doctor.”

“Your flattery is not going to change the subject.”

“Ah, yes. And how could I possibly forget your stubborn bullheadedness?”

“Obsession to details,” the Forsaken cut in, offering the Archmage a humored smile (such ghastly pointed teeth!). “Call it as it is.”

“Fair enough.”

A minute passed, and the awkward silence settled about them like a lumbering, intrusive beast. The Archmage stared at the deadman before him, and the warlock spent his time clearly studying the exhausted elf, sitting down at a table, surrounded by piles of books, and scrolls and half finished documents. Oh, and nearly an empty bottle of wine. Can’t forget that.

“Dr. Gunth--”

“Plaguespitter,” the Forsaken hissed out, slightly annoyed.

“Dr. Plaguespitter,” Taviast cordially replied, rectifying his quite common mistake. “Please, tell me-- what can I do for you?”

The Forsaken was not known for any sort of expressive nature. He built walls up to keep the world from identifying what it was he was feeling. And, yes, by far, he could feel. He could feel quite well. Most Forsaken felt nothing. They were numbed to the world and to the world’s tragedies. Some felt grief, or rage, or some other caustic type of emotional taint. They were like walking geists made manifest; stuck in a walking routine, trapped in a haunt, unable to release themselves from the residual episode.

But Guntharius felt. Guntharius could feel more than just rage and grief, confusion and madness. He felt more than what the others felt. But that alone helped drive him mad. Far madder, perhaps, than many of the other warlocks within the Black Harvest. He felt, he remembered emotions. And, as a result, he became passionate when it came to believing in things. Rage and frustration were, indeed, common emotional responses with him. But those only occurred due to how much he cared, and how much he wanted to help. How, oh, how he wanted to be human again. To find the cure for undeath. To be able to taste things properly again, and to stop being so cold. He wanted to feel. He wanted to express himself fully again.

Despite his well known flaw in the department of expressing himself (often far too caught up in his emotions to properly handle them), he was rarely ever prompt in admitting his feelings verbally. And so, as the Archmage posed his question, he would have never expected such a confident reply from the deadman.

“I’m worried about you.”

“--me?” The Archmage made a motion to push back his chair and rise to his feet, but halted his actions upon seeing the subtle hand gestures, offered up by his coworker and comrade. “Whatever for?”

“Don’t play dumb,” softly hissed the warlock.

“I can assure you, I never play ‘dumb’.”

The Forsaken gave him a rather deadpan look and, in a dry, sardonic tone, drawled out, “and all those times you pretended to be an oblivious old fool in order to trick guards into--”

“That’s not the same thing!”

“Of course it isn’t.”

Taviast Duskwither gave a great, weary sigh as the Forsaken sat down across from him. He had stolen away to his personal study room in order to get some peace and quiet. He felt safe in this room. It reminded him of his home. He had decorated the walls with scrolls and baubles of magicry. Here and there crystals peppered shelves weighed down by tomes and ancient books of magical lore. It was his personal study room and library in one. He spent many a night toiling away before drawn our charts, graphs and maps, hoping to produce a foolproof mission plan.

After all… he lead this group of rebels. He was the first member and soul founder of The Circle. And he had an oath to upkeep. Sleep be damned! The welfare of his soldiers were of top priority.

“You’re trying to deflect me.”

Wagging a finger at the warlock, the Archmage coyly replied, “ah, ah, ah! But I’m not the one who brought up my previous roles for past Circle endeavors.”

Guntharius quietly hissed as he bared his unusually sharp teeth (even by standards for typical Forsaken) at the elf. “Smartass.”

“Aren’t most elves?”

Smarmy and smug, Taviast felt he had won that round of wit against the ‘good doctor’. Guntharius was known for his cunning brilliance and his silver tongue. But getting a one-up on him always felt good, even though it was incredibly rare to do so.

Feeling proud of himself, Taviast raised the wine glass to take a well deserved swig of mulled wine when he felt his actions halted by a cold hand. The warlock was not wearing gloves tonight-- his attire for when he didn’t have any missions, and was merely living about in his castle-- and, as such, he felt his hand, unhindered. It was the cold grip of death itself, ready to take him.

Shivering from the contact, Taviast opened his mouth to protest. Anything he wanted to say died in his throat, withered and dry, upon seeing the Forsaken’s unmistakably concerned expression.

“Stop deflecting with humor,” Guntharius uncharacteristically murmured. His hand-- wrapped around Taviast’s slender wrist-- squeezed ever so slightly. It wasn’t a hostile sense of pressure but, rather, a reassuring one. A comforting one. “Stop. For once in your long-lived life, stop.”

A wedge formed itself in the Archmage’s throat, and he found himself willingly lowering the glass of wine. His chest felt tight.

“I don’t unders--”

“Of course you wouldn’t. And of course you don’t.” Guntharius released the Archmage’s wrist, freeing him from his entrapment. “But you’ve always been in denial about everything. In denial that you need to talk to someone, instead of busying yourself with work and the consumption of alcohol in hopes you’ll forget about your guilt.”

“I, I…” Grasping at metaphorical straws, the Archmage felt frustrated. “Alright. Plaguespitter, I understand you enjoy being cryptic about your messages and with your given advice, but I really don’t have the patience--”

“Saurfang.”

It struck him with the cracking reverberation of a whip. He swore he could hear it. The shattering of glass, the crumbling of an infrastructure. He felt that dagger twist deeper into his gut, and he inaudibly sucked in his breath. The air was suddenly so thin to him, and it burned his lungs to take in oxygen.

Varok Saurfang. The noble, honrable Orc who, quite possibly, could have led the Horde into an era of peace. The brave warrior who stood up to challenge their tyrannous Warchief, in hopes to dismantle her psychotically twisted regime and to further spur on the true spirit of a united Horde.

And he fell.

He had fallen by her darkness, her sinister corruption. Around The Circle, there had been in depth discussions as to what it was their ‘Warchief’ had used in order to slay the proud soldier. Some spoke of a darkness, greater than the void. Some warned it, quite possibly, stemmed from the energies of the fel, of warlock magic. Some declared she had soul her soul to a demon, and had become a corrupted dreadlord. And a few whispered fears that the old ones were involved-- The Old Gods themselves.

Whatever it was, and whatever the case, it had become quite clear what her intentions were. And it had been quite a devastating blow to lose such an honorable Orc as that; one who could have lead them to something better, something grander.

It didn’t sting as much as losing Vol’jin, but, by the Gods, Taviast mourned the Orc.

“A...Ah,” Taviast shakily replied, realizing that a good minute or two had passed, and he had been sitting there, in absolute silence, staring at the pale warlock. “I, I… I mean, his passing is a great loss for…. For, for everyone…”

“Stop lying.”

“I speak the truth,” Taviast nearly shouted as he abruptly rose from his chair, slamming his hands down on the table out of frustration. “His passing-- his death-- was a blow to the Horde’s morale! He could have lead us to peace! Helped us better enhance the… the, the Horde with…”

Suddenly weary, Taviast sank back down to his seat. Another sigh escaped him but, unlike before, this one was heavy with exhaustion.

Guntharius calmly watched him, like some plagued, undead feline staring at something it found utterly and sensibly fascinating.

“...Are you done?”

“Quite,” Taviast softly murmured. He reached for his glass and, upon consideration, snatched up the entire bottle. Taking a hearty swig from that, he waved Guntharius on, allowing the warlock to speak, if he so desired to.

In which he desired to. Oh, yes, he very much desired to.

“Don’t think I’m a fool. Don’t take my allegiance and loyalty with the Alliance as proof that I don’t care about the Horde and everything that goes on within it. I am not human anymore,” he hissed with some bitterness, “but I am Forsaken. As such, I have to care about this Horde, the races within it, and I have grown to… to like some of the people here. Including,” he snatched the bottle from Taviast before the elf could drown himself in booze, “Saurfang.”

Making a half-hearted gesture as to grab the bottle back, Taviast quickly gave up. “Surprisingly touchy-feely for a Forsaken.” He winced, visibly, upon realizing what he had just said. “My apologies,” he quickly sputtered. “I didn’t mean for that to come out so--”

Waving the elf’s apology aside, the Forsaken nonchalantly shrugged. “You’re speaking the truth about my kind, and about me. Why apologize for what’s on your mind? Like I always say,” he leaned forward a bit, staring the elf down with a hardened gaze, “speak your goddamn mind.”

A nervous chuckle dancing on his breath, Taviast leaned back in his chair, relaxing a little. “Sound advice.”

“You said I’m good at being a doctor. At me analyzing my ‘patients’, figuring out what’s good and healthy for them, and what is not.” Tapping the wooden table with a single finger, he sneered. “Keeping in your negative thoughts can lead to bad health.”

Furrowing his brow, Taviast gave him a puzzled stare.

“...negative thoughts. Keeping them in. Can lower one’s immune system by causing onset depressive moods, and-- feldammit, Duskwither.” Gesturing wildly, the doctor grew increasingly frustrated. “Do I have to spell it out for you? Fucking talk to me.”

“Talk--”

In a sharp, almost vindictive gesture, the warlock gestured at himself with both of his hands. “Ther-a-pist,”

“We already know one. He’s helped members of The Circle already. One Mr. Dreamwe--”

Letting out an exasperated groan, Guntharius had to stop himself from lunging across the table, grabbing the elf’s head, and slamming it down on the table in a rather undignified, and painful, facepalm. It’d be a facetable, of course-- quite potentially the first of its kind. But he thankfully restrained his own surge of negative emotions, swallowing them along with his need to slap this fool across the face.

“For right now,” Guntharius said through gritted teeth, “I… am… your… THER-A-PIST. Fucking talk to me. And talk about what is on your mind. Treat me as if I am that tentacled magician from the void, and talk to me.”

Taviast understood. He understood now what Guntharius was doing for him, and he couldn’t help but feel another overwhelming wave of emotion wash over him.

“You,” the warlock continued, “have not been the same since confirmation of Saurfang’s death. And you were oddly quiet during Crescida’s speech.”

Ah, yes. Crescida Evenfall. Almost fitting to a point, the Night Elf monk raised her glass of wine and spoke before the convergence of The Circle. She gave an exceptionally grand speech, as inspiring as many generals and sergeants would before any army, and any battle. But instead of a speech filled with the zest and verve to conflict harm against one’s enemy, this one had been filled… with hope, and unity. As morale boosting as anything, she spoke the truth of the matter-- and this world-- all the while humbly honoring the life of Saurfang, now legend and true hero to the Horde.

During dinner and the speech, Taviast had remained strangely quiet and aloof. He had hardly spoken on behalf of the members or in memory of Saurfang. He had opted for a nod here or there, or the occasional hand gesture, in order to urge others to talk in his stead. He listened politely to Crescida’s words, but his attention had begun to drift towards the end. So much so that Ghelror Ebonfang-- sitting to the Archmage’s right-- had to gingerly nudge the elf in the arm, signaling that he, too, should join in with the boisterous round of applause.

“I was… being polite,” Taviast replied, his tone half hearted and weak.

“Of course you were. I’m not denying that. But you weren’t yourself. Your mind was elsewhere.”

“I--”

“I know you by now, Duskwither. I have stood on your left for far too long and have overseen many of your operations.” The warlock folded his hands in front of him, posture straight and austere. “I am your second-in-command, representing the Horde. I am to offset Archdruid Ebonfang. I have seen, and done, and performed so many tasks on your behalf. I have murdered, and tortured, and whittled information out of our enemies in order to do what must be right for this order you’ve created. I have even opened my home-- my safe haven, a place I can hide away from the Horde-- to you. To you, and your order.”

“And I thank you for that,” Taviast piped up, rather quickly, hoping to end the conversation. “I am ever so grateful for your hospitality.”

“I have looked after you all as you slept. I have walked the ramparts at night, keeping my gaze to the distant horizon. I am your shadow. I am your darkness. I am everything you wish you could expose to the world.” He narrowed his gaze, jaw tightening. “I kill when you cannot. I torture when your pathetic stomach cannot handle it. I soak my hands in the blood of our enemies when you can’t even so much as look at a twisted corpse.”

“I get it, I get it,” Taviast testily replied. “I’m fucked up in the head, hmm? Is that what you’re getting at here? That I secretly wish to take over the world and harm people, murder, en masse, in order to shape Azeroth as I see fit?”

A sly smirk spread across the Forsaken’s face. “Not quite what I was getting at,” the warlock teasingly replied, “but it’s amusing to imagine you going to the darkside. And, besides… lately you’ve been killing almost as much as me.”

The Archmage fell silent, and he cast the warlock a resentful look. His own golden eyes grew colder, and their glow seemed to darken.

“Excuse me? Are you suggesting--”

“The point is,” Guntharius interjected, “I know you better than anyone else. I know how much darkness you hold inside. And how much you hate yourself for things. How much you blame yourself for things that go wrong. Especially,” he pointed at the elf, “Saurfang’s death.”

Raising his hands up in a gesture of peace, the Archmage shook his head. “Now, now. Where on earth did you get such a peculiar and outlandish notion?”

“It’s not peculiar. And it’s not outlandish. It’s the feldammed truth.”

“I could not prevent Saurfang’s death. I had nothing to do with it.”

“And yet you still blame yourself.”

Taviast was ready for a rebuttal when the warlock stood up. He watched Plaguespitter walk about his studies, examining the shelves heavily burdened with their magical trinkets, and baubles and tomes. He watched as the warlock deftly plucked a thickly bound leather book from one particularly weathered shelf before proceeding to leaf through it’s aged pages.

“Before you try to come up with a reason as to why my logic is wrong, Duskwither… ask yourself, how many times have you mourned the passing of someone?”

“I--”

Snapping the book shut, the warlock sharply turned to face him. “Innocents. Horde, and Alliance alike. Allies. Friends. Leaders.”

“Well--”

“Vol’jin.”

Once more, a well placed imaginary blow struck him, and he felt himself reel from the force. He was grateful he was sitting, for had he been standing, he wasn’t sure he would be able to stay upright at all. The force of the grief, of those memories, were like a sickening tonic that poisoned him each and every time he brought it to the surface.

“Saurfang’s death,” Guntharius continued, “reminds you of the time we, as a Horde, lost Vol’jin.”

The truth. There it was. There was no denying it. The moment he heard of Saurfang’s death, Taviast remembered the Darkspear Troll who once had given him the hope that things could change. That peace could be achieved. That there needn't be any senseless wars and bloodshed. That all of this could have been avoided.

Garrosh Hellscream robbed the world of a chance at seeing peace. And it had set them back quite a bit, ruining alliances both within the Horde and without.

“Crescida’s speech made you think of Vol’jin.”

“Yes, and… and no,” Taviast confessed. “A little bit of it, I admit. But Saurfang can’t be compared to Vol’jin. Both were exceptional people, but incredibly different.”

“In some ways, yes. In some ways, no. Their ideologies may have varied to some degree but, for the most part, Duskwither, you have to admit… they were the same.”

Slumping a little in his seat, the Archmage sadly looked at a shelf. Anything but at the warlock. He let his gaze grow distant, and his focus became unclear. The world seemed a bit more fuzzier, and it wasn’t the wine talking.

“You’re an elf. You have a long lifespan.”

“And with our font of power restored, and the Sunwell purified… quite possibly immortal.”

“Things to consider, yes, yes.”

Taviast knew exactly where Guntharius was going with this. And he couldn’t help but think of everyone within The Circle. He knew what the doctor wanted him to speak about.

As the leader of The Circle, it was his duty to have the final say on who got sent out on various missions. He had to make the final note of approval on which targets to take out. He had so many lives on the line-- lives who were people. People who were friends. And these people who were loyal enough to follow him. He knew that the loss of lives happened with life, especially when war was involved. But he had bent himself over backwards in order to keep his order safe. So much so that he had magically exhausted himself more than once during a mission, keeping those accompanying him safe. He remembered one time waking up after being drug off to safety, only to have Guntharius himself leaning over him, shrieking about how foolish he had been, and how he had to save his ass by using a demonic portal, and some other egregious nonsense that had clearly pissed off the deadman.

“Everyone in The Circle… is family to you.” The necrotic doctor returned to his chair, settling down in it, the book he had been studying since abandoned.

“They are,” he admitted. “Everyone. All of them. They are my family. And I can’t stand the thought of losing any of them.”

“I understand this,” the warlock replied, acknowledging his feelings, “more than you might believe. But, Taviast, the situation still stands. Like Saurfang, and Vol’jin… the time will come. And you, as our leader, will have to come to terms with that.”

“...and I refuse to.”

A little amused, the warlock sat back in his own chair, arms crossed against his thin chest. He let out a small huff of acknowledgement before posing a question. “What if Crescida fell?”

Taviast sharply looked up.

“Or Archdruid Ebonfang. Or Kippen. Or Raustul. Dreamweaver, Petalhoof, or my brother, Brevaar. What about Zinaji, or Tase? Wanja, the rest of the Sul’tusk? Or any of the other Trolls you’ve managed to befriend over time?”

“Died?”

“It will happen one day.”

“May. May happen.”

“Will.”

“You pessimistic pest,” Taviast grumbled out.

“Part of the package of being Forsaken, peacock.”

Taviast knew that this was a bitter sort of medicine the ‘good doctor’ was prescribing him. But he had to admit… the warlock wasn’t that far off. His friend-- for lack of better terms-- was giving him a dose of medicine he sorely needed. Someone may-- no, will-- eventually fall. Someone will die during a mission of his. So far they have had close calls and closer scrapes. There had been some minor, major and severe injuries to be had. So far… they had been lucky.

That wouldn’t last forever. He knew that.

Archdruid Ebonfang was disabled now. He had lost his arm in a fight to an elite Dreadlord. And though it happened in an event that had not derived from one of The Circle’s missions or chosen targets, it had happened. And now the old Druid existed with a part of him gone, forevermore. Thankfully he could grow his arm back using nature magic-- a sort of nature-bound prosthetic-- and he could repair it, steadily, over time, if it ever got damaged… but it took a lot out of him. To maintain it, and to repair it as needed. And he could no longer feel with that arm. He had lost all sensation (save for the phantom pains that often wracked his body at night, when everyone else was asleep). He had also retained some general weakness. But that was to be expected. After all, bark could be strong, but it could also be brittle, and fragile, and very much a liability.

Ghelror had a lover. He had found a lover, and he had found a purpose in his life. He had found happiness. He had a life outside of The Circle. If only so many could be as blessed as such. Taviast knew only snatches of Ghelror’s history, but he knew that the elf was long lived and was very particular about who he surrounded himself with. He knew of his half-brother, Raustul Shadeshifter. And he knew that the guardian of the claw only occasionally visited The Circle’s headquarters, seeing as he was, mostly, a teacher to the younger, fledgling Druids of the order, and he helped look after orphans in his spare time (children who lost their parents, typically Druids or Shamans, to the war).

But all of this… in an instant, Ghelror had almost lost it all.

Taviast remembered meeting up with Ghelror, not too long after the incident. He remembered the stump where his arm was supposed to be. He remembered the wan, drawn expression on the already worn-down elf’s face. His slightly hunched over posture, body trembling with agony. How Ghelror refused to speak. How gaunt the Druid seemed then. But he remembered his eyes. Hard, gaze ancient and searching. His amber eyes hid the pain exceptionally well. Yes, his eyes hid the pain… but not the shame of it all.

Ghelror Ebonfang was just one example of a close call. A close call that got far too close for comfort. And Taviast had to admit to himself that sometimes, when he caught sight of the Archdruid in the halls of this downtrodden castle, he wondered who would be next. Who would next suffer a catastrophic blow? Who next would come back from a fight-- this never ending, damnable war-- scarred?

And who would come back, at all?

“And one day I just might lose grip with my soul,” Guntharius continued, noticing Taviast’s face had gone pallid, and his gaze had become distant. “Forsaken don’t last forever, Archmage. You, out of all of us, should know that.”

“I… I do.”

“Our minds go before our bodies. Our souls detach from our forms. We can go feral, mad, and utterly lose who we are. I will lose what makes me ‘me’. I will lose my mind, and I will no longer be myself. I will just be a rabid, feral thing. And the only action one can take against what I’ll become... is disposal.”

Taviast felt that great twisting sensation again, and he noted that the Forsaken had gently, almost lovingly, placed his cool hand over his. He took comfort in the sympathetic action, and he gave a weak smile at the warlock.

“I understand,” the elf murmured weakly.

“I’m not sure you do,” the warlock replied, perhaps a bit too testily, “but you seem to understand it a little bit better. Just consider: things will happen. And even if these people-- your family-- don't fall in battle, with your lifespan…”

The pain. It hurt.

“You need to stop feeling guilty for everyone’s pain and the deaths around you. I know you feel guilty when one of us comes back hurt, but it’s our own experiences and actions that lead to our injuries. Or,” he corrected himself, “the lack of experiences or actions taken. That too.”

“I… I know.”

“Vol’jin, and Saurfang. Let them go.”

“It’s just…”

“Future deaths. Future pain. Let it go.”

Taviast numbly nodded.

“What happens happens. You’re leading The Circle--”

“For now,” Taviast meekly responded.

“For… now,” Guntharius wavered, pausing only to shoot him a confused look. That quickly passed, however. “The point is,” he continued, “we are going to follow you. Anything you command us to do, we will do it. Anything you have plotted and planned out to be done, it will be done. And I will continue murdering and torturing in your name.”

“That… that doesn’t sound particularly pleasing to me,” Taviast groaned. “Completely killed the charming atmosphere you had going on there.”

“Completely my point.”

Rising to his feet, the warlock let his hand drift away from the Archmage’s. He reached out, as if to touch the elf’s cheek. The motion was tender, gentle. Almost loving. And it sent the Archmage’s heart into a nervous tick. And yet, seconds before his chilled fingers brushed against the old elf’s skin, he deftly made a snatching motion and took the bottle of booze instead.

“Hey!”

“No more drinking,” Guntharius drawled out. “It’s long past midnight, and you need proper sleep for once.”

“Is it truly that late?” Taviast looked around, as if unsure of his surroundings.

“No changing the subject. No drinking.” The warlock crooked a pale finger at Taviast, beckoning to follow. His tone was low and dark as he resolutely commanded, “bed. Now.”

A violently colored flush spread across Taviast’s cheeks. “I, I-- I, no-- you, wait-- what?”

Groaning, the Forsaken rolled his eyes. “Not my bed, you idiot. What, you think I’m going to take you to bed and see if my inactive libido still works? That my rotted genitalia might actually be functional? You think I’m attracted to you?” He sneered, cutting Taviast off before he could speak. “Elves! You’d think they’d be smarter with all those centuries under their belts, but, no! Naive bastards, the lot of them!”

“I can hear you, you know,” Taviast grumbled out as he cleared his throat.

“Bed.” He jerked his head towards the exit. “Now. Come on. I’ll help you get to your room. Make sure you don’t scamper off back here and try to work yourself to death, like the complete and utter fool you are. Or worse: drink yourself into oblivion.”

“Charming, as always, doctor.”

“Fucking elves.”

#Cuddly writes some things

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inbonobo · 8 years ago

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#cdnpoli #canada #ip Ignoring the Supreme Court: Federal Judge #Phelan Hands Access #Copyright #FairDealing Victory - Michael Geist on July 13, 13 after SCC decision

For the past 13 years, Canadian copyright jurisprudence has followed a consistent trajectory. Starting with the Supreme Court of Canada’s CCH decision in 2004, Canadian courts and tribunals have affirmed the need for balance in copyright and the importance of user’s rights. That approach has been particularly evident in fair dealing cases. Much to the dismay of Access Copyright, from the Supreme Court’s 2012 copyright pentalogy cases(including Alberta v. Access Copyright and SOCAN v. Bell) to the Copyright Board’s rulings on copying in K-12 schools and governments to the Federal Court of Appeal (upholding the Copyright Board’s decisions), the courts have upheld the need for balance and a broad, liberal approach to fair dealing.

Yesterday, however, five years to the day of the release of the Supreme Court’s copyright pentalogy, Access Copyright found a willing taker for its legal arguments. Judge Michael Phelan of the Federal Court of Canada delivered a complete victory for the copyright collective, rejecting York University’s fair dealing approach and concluding that an interim tariff is mandatory and enforceable against the university. The immediate implications of the decision are significant: royalty payments to Access Copyright (that will likely be kept in escrow pending any appeals) and the prospect of other universities re-thinking their current copyright policies. The decision will also have an effect on the copyright review scheduled for later this year. With the court’s decision, there will be little reason to revisit the inclusion of the “education” purpose in fair dealing as it had no discernible impact on the court’s legal analysis.

While Access Copyright is understandably celebrating the outcome, this likely represents only the first step in a longer legal process. As with virtually all significant fair dealing cases, this one is surely headed to the Federal Court of Appeal and possibly the Supreme Court of Canada (Access Copyright would have undoubtedly appealed had the decision gone the other way). In this particular case, there are very strong grounds for appeal. This lengthy post focuses solely on the fair dealing analysis, which frequently diverges or simply ignores Supreme Court jurisprudence (there is important analysis needed on the flawed tariff discussion which also diverts from Supreme Court rulings, but this post is already too long).

The trial judge acknowledges the Supreme Court’s emphasis on user’s rights, but quickly downplays it by restricting the fair dealing analysis. The Supreme Court may have called for a large and liberal interpretation to fair dealing, but the trial judge, fresh off a similarly restrictive approach in United Airlines v. Cooperstock, holds a different view.

At the heart of the fair dealing discussion is the validity of York’s fair dealing guidelines. The Supreme Court in CCH stated the following with respect to fair dealing policies and practices:

is it incumbent on the Law Society to adduce evidence that every patron uses the material provided for in a fair dealing manner or can the Law Society rely on its general practice to establish fair dealing? I conclude that the latter suffices. Section 29 of the Copyright Act states that “[f]air dealing for the purpose of research or private study does not infringe copyright.” The language is general. “Dealing” connotes not individual acts, but a practice or system. This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works. Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair.

The trial judge expands this by stating:

The jurisprudence permits the fairness assessment to be done on the basis of individual dealing as well as on the basis of policies and/or practices (CCH at para 63). As was also made clear in CCH, the fairness assessment looks at the text of the policies, the rationale for the policies, and the practical or real dealing by the users of the owners’ works. Both the Guidelines themselves and the practices under the Guidelines must be fair.

In his general comments on the York fair dealing guidelines, he appears to conclude that they were unfair for reasons that have little to do with the six factor test established by the Supreme Court. The trial judge’s reasoning points to multiple locations for copying (something that also occurs in the Alberta case and seems irrelevant), claims that there was enforcement of policies by librarians in CCH but none at York (as if the Treasurer of the Law Society oversaw copying there), single vs. multiple copies (which the Supreme Court had little trouble concluding was acceptable in Alberta), “ad hoc copying vs. systemic copying”, and the impact on publishers (more on that below).

After the general comments, the trial judge proceeds to engage in a more detailed fair dealing analysis, but it is frequently at odds with Supreme Court jurisprudence. A discussion of the six factors follows below:

i. Purpose of the Dealing

If any of the six factors should have been a slam dunk for York, it is the purpose of the dealing. In Alberta, the Supreme Court addressed the question of whose purpose is relevant, stating:

fair dealing is a “user’s right”, and the relevant perspective when considering whether the dealing is for an allowable purpose under the first stage of CCH is that of the user (CCH, at paras. 48 and 64). This does not mean, however, that the copier’s purpose is irrelevant at the fairness stage. If, as in the “course pack” cases, the copier hides behind the shield of the user’s allowable purpose in order to engage in a separate purpose that tends to make the dealing unfair, that separate purpose will also be relevant to the fairness analysis. In the case before us, however, there is no such separate purpose on the part of the teacher. Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.

The Supreme Court rules that there is no separate purpose for student and teacher. Yet the trial judge opens his analysis by stating:

In this case, there are two users – the university which is assembling material, copying, and distributing the material as the publisher, and the student who is the end user of the material.

It is as if the Supreme Court Alberta decision did not exist. The court was clear: coursepacks are developed by teachers for their students and the copying that occurs is for the purpose of education, research, and private study.

Incredibly, the trial judge finds that York’s purpose was to facilitate student enrolment through reduced costs:

It is evident that York created the Guidelines and operated under them primarily to obtain for free that which they had previously paid for. One may legitimately ask how such “works for free” could be fair if fairness encompasses more than one person’s unilateral benefit. The goal of the dealing was multifaceted. Education was a principal goal, specifically education for end user. But the goal of the dealing was also, from York’s perspective, to keep enrolment up by keeping student costs down and to use whatever savings there may be in other parts of the university’s operation.

In this case, as in Alberta, the trial judge should have found that there is no separate purpose. The fair dealing is the students’ users’ right and the purpose clearly permissible. Further, even if focused on York’s purpose, the characterization of it as cost savings to drive enrolment is hard to square with the Supreme Court’s CCH decision, which was comfortable with the fair dealing of commercial copying on behalf the legal profession.

ii. Character of the Dealing

The character of the dealing involves a quantification of the total amount copied. The trial judge concluded that this was less fair, despite admitting that the data provided by both sides in the case was unreliable.

iii. Amount of the Dealing

The amount of the dealing was clearly the crucial factor for the trial judge. However, his analysis simply does not comport with the Supreme Court caselaw. For example, he states the following with respect to the aggregate amount of copying and the impact of the fair dealing guidelines: “It is relevant to consider the aggregate volume of copying by all post-secondary institutions that would be allowed if the Guidelines or similar policies were adopted. There is a problem with the current data because of unreported copying. However, when all such institutions were licensed, they produced 120 million exposures of published works per year in printed coursepacks alone.”

Yet the SCC says the opposite with respect to the relevance of the aggregate amount of copying. In Alberta:

as discussed in the companion case SOCAN v. Bell, the “amount” factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated.

In the SOCAN case:

SOCAN argued, however, that the proportion of the preview in relation to the length of the whole musical work was not the proper measure, and that the Board should have considered instead the aggregate number of previews that are streamed by consumers. Since the evidence showed that each user, on average, listened to 10 previews before purchasing a musical work for download, the overall amount of time spent listening to previews was so large that the dealing was unfair. SOCAN saw this factor as determinative in this case. There is no doubt that the aggregate quantity of music heard through previews is significant, but SOCAN’s argument conflicts with the Court’s statement in CCH that “amount” means the “quantity of the work taken” (para. 56). Since fair dealing is a “user’s” right, the “amount of the dealing” factor should be assessed based on the individual use, not the amount of the dealing in the aggregate. The appropriate measure under this factor is therefore, as the Board noted, the proportion of the excerpt used in relation to the whole work. That, it seems to me, is consistent with the Court’s approach in CCH, where it considered the Great Library’s dealings by looking at its practices as they related to specific works requested by individual patrons, not at the total number of patrons or pages requested. The “amount of the dealing” factor should therefore be assessed by looking at how each dealing occurs on an individual level, not on the aggregate use.

Moreover, the trial judge rather remarkably almost entirely discounts the millions of dollars spent by the university on licensing and permissions in considering the amount of the copying. He states:

York has argued that because it has separate licences and permissions, the amount of copying at issue is reduced. However, York has conceded that its evidence on licensing information is inaccurate and its ability to marry up copies with the relevant licence or permission is impossible to rely upon.

The judge engaged in no such analysis of the Access Copyright repertoire, which is suspect given the recent Copyright Board of Canada decision that questioned the repertoire. Yet even beyond the issue of the Access Copyright repertoire, the reasonableness of the guidelines should surely have considered the massive amount of licensed content and the ready availability of openly licensed content. The judge’s conclusion seem to suggest that even when the copying is expressly permitted without the need for a licence – for example, open access materials – that that permitted copying somehow does not count. Since the Access Copyright licence only applies where other licences, permissions or exceptions do not, that cannot be correct.

The trial judge was also taken by the possibility of copying multiple chapters out of the same book. For example, he states:

referring in argument and questioning to Margaret MacMillan’s superb book Paris 1919: Six Months That Changed the World, numerous chapters could individually be segregated for use in different courses, effectively eviscerating the copyright protection on the book.

The trial judge again mistakes who benefits from the copying under fair dealing. It is the student copying one chapter, not the institution copying multiple chapters on behalf of many students. Further, the trial judge is bothered that:

To the consideration of this form of overcoming copyright must be added the matter of compound copying as demonstrated by Access. Not only are the works copied in whole, but they are also copied multiple times.

Yet the Supreme Court left no doubt: “teachers do not make multiple copies of the class set for their own use, they make them for the use of the students.” Each student is entitled to exercise their fair dealing rights, which are lost under the trial judge’s interpretation of fair dealing.

The trial judge argues that the unfairness is exacerbated by the lack of compliance monitoring:

The unfairness evident in this part of the six-factor exercise is compounded by the absence of any meaningful control over the portions of publications copied or any monitoring of compliance, be it pre- or post-copying, which also serves to render the thresholds largely meaningless.

But in the CCH case the Supreme Court ruled that:

a person does not authorize copyright infringement by authorizing the mere use of equipment (such as photocopiers) that could be used to infringe copyright. In fact, courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law. Although the Court of Appeal assumed that the photocopiers were being used to infringe copyright, I think it is equally plausible that the patrons using the machines were doing so in a lawful manner.

While the CCH discussion involves the availability of photocopiers, the rationale applies in similar fashion. The Supreme Court has never injected a control or monitoring requirement in order to qualify for fair dealing, something that the trial judge seems to do here.

Finally, the trial judge puzzlingly states that “some consideration is to be given to the importance of the work” as part of the amount of the dealing. He proceeds to conclude that a single chapter is significant to the work. Yet the “nature of the work” fair dealing factor already considers this issue and the overlap into amount is inconsistent with the test established by the Supreme Court.

iv. Alternatives to the Dealing

Given that the Supreme Court of Canada has ruled that neither the availability of a licence nor the prospect of buying books for every student of every copied work is a realistic alternative, this factor should have easily sided toward fairness. Indeed, the trial judge admits that it should favour York:

While as a general principle this factor favours York and its asserted fairness, the level of fairness is diminished because York has not actively engaged in the consideration or use of alternatives which exist or are in development.

Yet the trial judge downplays the factor by pointing to other alternatives such as licensing chapter or purchasing more books. In other words, after stating that the Supreme Court had ruled that licenses and book purchases are not realistic alternatives, the trial judge argues that not pursuing those alternatives (as well as ones that do not even exist) lessens the fairness of the dealing. v. Nature of the Work

The nature of the work speaks to its value and importance and whether it should be widely disseminated. The trial judge emphasizes the value of the works and dismisses the role that fair dealing guidelines play in increasing their dissemination. For the trial judge, fair dealing guidelines are not about dissemination:

The Guidelines are not established to motivate dissemination. There is no evidence that these professional writers and publishers need the Guidelines to assist in the dissemination of their works. Dissemination may improve because under the Guidelines the works are free, but the same can be said of any goods or services that are provided for free.

The Supreme Court ruled in CCH that wider public dissemination is one of the goals of copyright law. Yet the trial judge seemingly rejects the role that fair dealing can play in dissemination of works, counter to the copyright balance articulated by Canada’s highest court.

vi. Effect of the Dealing on the Work

The effect of the dealing on the work examines the economic impact of the copying. The Supreme Court has been careful to require actual evidence in order to reach a finding on the factor. In CCH it found that no evidence had been tendered:

Another consideration is that no evidence was tendered to show that the market for the publishers’ works had decreased as a result of these copies having been made. Although the burden of proving fair dealing lies with the Law Society, it lacked access to evidence about the effect of the dealing on the publishers’ markets.

In Alberta, the Supreme Court’s discussion on the same issue:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years. However, as noted by the Coalition, there was no evidence that this decline was linked to photocopying done by teachers. Moreover, it noted that there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning... In CCH, the Court concluded that since no evidence had been tendered by the publishers of legal works to show that the market for the works had decreased as a result of the copies made by the Great Library, the detrimental impact had not been demonstrated. Similarly, other than the bald fact of a decline in sales over 20 years, there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales.

The limited evidence in this case is apparent from the trial judge’s discussion of the expert evidence. Access Copyright’s own expert (drawing from the PWC report that contains a limitation warning that “we provide no opinion, attestation or other form of assurance with respect to the results of this Assessment” and which admits that “substantial qualitative data regarding the majority of the economic impacts is not yet available”) identified the following factors at work:

The educational publishing industry has historically been large and profitable, but revenues and margins are facing increasing pressure from alternative sources of content. – The options available for students to obtain materials have increased. Students may buy used, rent or borrow textbooks, purchase electronic versions, or download materials legally and illegally. Students have reduced their total spending on course materials. – The transition to a digital marketplace presents challenges and opportunities. New participants are interrupting a mature industry which previously enjoyed high barriers to entry. – Guidance on fair dealing in key court decisions in 2012 led to the development of a series of fair dealing guidelines.

Yet despite the limited evidence and the Supreme Court jurisprudence, the trial judge states:

I agree with Access that in considering the “effect of the dealing” as part of the Court’s overall assessment of fairness, the Court should consider all actual and likely impacts on all original content contributors

Considering “likely” impacts is precisely what the Supreme Court has declined to do. The trial judge ventures beyond actual evidence of harm to “likely” impacts, which is not consistent with prior jurisprudence.

In fact, it would appear that there is only one metric that matters for the trial judge:

under the prior circumstances, the creators and publishers were paid. The loss of revenue to Access is an appropriate surrogate for the nature and quantity of copying and for the negative impacts.

In other words, all the evidence of a changing industry, open access, hundreds of millions on licensing, and transactional licenses do not matter. What matters to the trial judge is that Access Copyright, one of many intermediaries for authors, is generating less revenue. That conclusion is a striking rejection of the Supreme Court’s careful approach to economic evidence in fair dealing cases.

What Comes Next?

As noted above, the case is likely to be appealed as the trial judge’s analysis of fair dealing is inconsistent with Supreme Court of Canada jurisprudence. The Supreme Court’s emphasis on copyright balance, user’s rights, and a large and liberal interpretation to fair dealing, are largely missing from the ruling. In its place, the trial judge injects claims of boosting enrolment as York’s purpose of copying, cites aggregate copying for the amount of the dealing, and relies on “likely” impact for the effect of the copying on the work. None of these positions reflect Canadian copyright law as articulated in the leading decisions.

In addition to an appeal, the case should also have a significant impact on the copyright review scheduled for later this year. The inclusion of “education” as a fair dealing purpose played little role in this decision and with the case likely before the courts, the government has no reason to intervene with premature and unnecessary legislative reforms.

also covered in TorStar, FP

#canada #cdnpoli #phelan #fair dealing #intellectual property #copyright #access copyright #yorku #york university

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debrahnesbit · 5 years ago

Text

Why I Installed the COVID Alert App

The Canadian government officially released COVID Alert, its exposure notification app, on Friday. Ontario is the first province to use it with plans to implement it in the Atlantic provinces and B.C. in the near future (other provinces may follow). I posted several tweets about the app, including one that received hundreds of likes and retweets indicating that I have installed it (the tweet included links to the Apple and Android versions of the app). Given the interest, this post expands on the tweet by explaining what the app does and doesn’t do and why I think the government has done a good job of addressing many associated concerns.

There has been enormous attention on the use of apps to assist with countering virus spread in recent months (I wrote a column on the issue in March, was part of the CIFAR group that reported to the National Science Advisor, and I featured podcast episodes on the issue with Lilian Edwards and Alberta Privacy Commissioner Jill Clayton). Many of the initial concerns focused on:

technological concerns (using GPS rather than Bluetooth, which raised doubts about accuracy and collection of location data)

effectiveness (using an app to replace conventional contact tracing and testing)

government surveillance (centralized data collection that could be misused)

mandatory use of the app (claiming that a voluntary effort would not work or requiring installation as a matter of employment)

insufficient review or independent oversight

decommissioning strategy for ending the use of the app

Since many other countries have already introduced apps, some of the issues were addressed elsewhere. A consensus quickly emerged that Bluetooth should be used for these apps, that the technology should not be viewed as a replacement for other essential tracing and testing activities, that app use should be voluntary, and that a decentralized approach in which data resides on the user’s device was preferred.

The Canadian COVID Alert app is ultimately as notable for what it doesn’t do as for what it does. The voluntary app does not collect personal information nor provide the government (or anyone else) with location information. The app merely runs in the background on an Apple or Android phone using bluetooth technology to identify other devices that come within 2 metres for a period of 15 minutes or more. Obviously, the distance and timing are viewed as the minimum for a potential transmission risk. If this occurs, a unique, random identifier is stored on each person’s device for a period of 14 days. After the 14 day period, the identifier is deleted from the device.

The identifier does not identify a specific person or location information, and is not sent to any centralized database. If a person tests positive for the virus, they are given a key code to input into the app. Once the key code is inputted, anyone that was identified as being potentially exposed over the prior 14 days receives a notification that this has occurred and they should consider testing and/or self-isolating.

From a privacy perspective, this is very low risk. Indeed, the government’s position – confirmed in the Privacy Commissioner of Canada’s analysis – is that there is no collection of any personal information and therefore the Privacy Act does not apply. The Privacy Commissioner rightly points out this raises some concerns about the state of the law (arguing it should be sufficiently robust to allow for reviews of this kind), however, the use of random identifiers ensures that identification of individual is very unlikely. Moreover, the Privacy Commissioner’s review concludes that “there are very strong safeguards in place” with security of the data, commitments limiting use, independent oversight, and a pledge to de-commission the app (including deletion of all data) within 30 days of the Chief Public Health Officer of Canada declaring the pandemic over.

The Ontario Information and Privacy Commissioner was also engaged in the review process. Her recommendation letter points to commitments for potential ongoing issues, including ensuring that the app is effective, that there is monitoring of third party components such as the Google-Apple Exposure Notification System, and public transparency associated with the app and its use.

While the app passes legal muster, its introduction reinforces the problems with social inequities that COVID-19 has laid clear. Much like the connection between socio-economic status and infection risk, the app itself is only accessible to those who can afford newer Apple and Android devices. That obviously means that those with older phones or no wireless access at all are unable to use it. While I don’t think that is reason to abandon the initiative, the government should be exploring alternatives to allow all citizens to implement these safeguards.

Moreover, while some have warned against “technology theatre” and the emphasis on contact tracing apps as a substitute for broader policy approaches, the Canadian experience suggests that those warnings have been heeded. The relative ineffectiveness of contact tracing apps elsewhere surely influenced the decision to adopt an exposure notification app which raises fewer privacy concerns and is more effective for its limited goal of notification rather than tracing. Further, the introduction of app months after the emergence of COVID-19 allowed for public study and reports, the use of open code, and the emphasis on the app being only a part of a much larger strategy to deal with a health pandemic.

Yet these reasons were not justification enough for me to install the app. Rather, it is the safeguards combined with the public health benefits that swayed me to do so. Necessity and proportionality are one of the top issues raised by the privacy commissioners. The federal commissioner notes: While exposure notification apps are new and untested, we believe that in context, the governments of Canada and Ontario have sufficiently demonstrated that COVID Alert is likely to be effective in reducing the spread of the virus, as part of a larger set of measures and subject to close monitoring for effectiveness once the app is in use. The relevant context includes the fact that COVID-19 is novel, has resulted in hundreds of thousands of deaths worldwide, and therefore requires consideration of new mitigation responses with reasonable prospects of success.

The commissioner also called for continuous review of effectiveness and that “the Government of Canada decommission the app if its effectiveness cannot be demonstrated.” In other words, an independent review has found that the privacy risks associated with the app have been addressed and that it is likely to help reduce the spread of the virus. That was reason enough for me – and hopefully many others – to install it.

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debrahnesbit · 5 years ago

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After the Tech-Lash: Digital Policy Priorities in the Post-Pandemic World

In the months before the coronavirus outbreak, numerous governments around the world enthusiastically jumped on the “regulate tech” train. Digital tax proposals, content regulation requirements, national digital spending mandates, as well as new privacy and data governance rules were viewed by many as essential to respond to the increasing power and influence of digital giants such as Google, Facebook, Netflix, and Amazon.

My Globe and Mail op-ed notes the pandemic has not only sparked a massive shift in economic and health policy priorities, but it is also likely to reorient our views of the tech sector. Companies that only months ago were regarded as a threat are now integral to the delivery of medical equipment, critical to the continuing function of workplaces in a work-from-home world, and the platforms for online education for millions of students. Billions of people rely on the sector for entertainment, communication with friends and family, and as the gateway to health information.

The companies’ response to the pandemic has also cast some of their previous policy positions into a new light. Platforms such as Facebook have long shied away from proactively removing content, yet it has proven capable of responding to coronavirus misinformation without a legal obligation to do so. Similarly, Google has been widely criticized for its approach to privacy, but it has joined with Apple to develop decentralized contact tracing application standards that are more privacy protective than some governmental proposals.

Where does that leave the future of tech regulation?

When we emerge on the other side of the pandemic, technology companies are likely to be even more powerful, amplifying the importance of regulation but with a recalibration of policy priorities.

For example, earlier this year, Canadian Heritage Minister Steven Guilbeault embraced a report that envisioned extensive regulation of Internet-based services in support of Canadian content. The policies ignored record-breaking film and television production in Canada, arguing instead that mandatory rules to support Canadian content production was needed. With billions in production spending lost to the current lockdown, the future emphasis will surely be on getting the sector up and running again with as many productions employing as many Canadians as possible, not inserting new Internet regulations that will increase costs and threaten investment.

While treating Internet companies as ATMs for pet policy objectives no longer makes sense, there are three tech regulation issues that will take on enhanced importance.

First, aggressive enforcement of competition laws will become essential to ensure a fair marketplace in which digital giants are blocked from leveraging their power at the expense of smaller entrants. Recent reports indicating that Amazon accessed sales data from third-party marketplace sellers to help develop its own private label alternatives demonstrates the competition risks associated with a dominant online sales platform. As reliance on large technology companies increases, so too does the need for vigilant attention to competition regulations.

Second, as governments grapple with ballooning deficits and search for additional tax revenues, addressing longstanding concerns over global corporate tax policies for technology companies is a must. Some have focused on digital sales taxes (British Columbia was set to implement a digital sales tax in July but has now postponed the plan), but those taxes are paid by cash-strapped consumers with companies merely collecting and remitting the proceeds.

Corporate taxes on earnings offer far more revenue potential and would address concerns that technology companies are well positioned to structure their operations to minimize corporate tax obligations. Canada is not alone in this regard, but it should encourage swift action to develop international standards to enable more equitable allocation of tech tax revenues.

Third, restoring trust in our institutions and information sources will be crucial. Large data sets involving search terms, temperature checks, and cellphone mobility have demonstrated the value of aggregated, privacy-protected data by providing advance knowledge of virus outbreaks or compliance with stay-at-home orders. Further, the response to coronavirus misinformation – while incomplete – demonstrates that Internet platforms can play a role in curbing online harms without threatening online free speech.

Data governance rules and standards for Internet platform responsibility are needed that enable the benefits that come from technologies while addressing harms and risks to ensure broader public trust. The previous polarized debate frequently placed all the blame at the feet of Internet platforms or none at all. Finding a middle ground for the benefit of the public and the technology sector will require both sides to adopt a more collaborative, less combative approach as we work toward a new normal for tech regulation.

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debrahnesbit · 5 years ago

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After the Tech-Lash: Digital Policy Priorities in the Post-Pandemic World

Where does that leave the future of tech regulation?

When we emerge on the other side of the pandemic, technology companies are likely to be even more powerful, amplifying the importance of regulation but with a recalibration of policy priorities.

While treating Internet companies as ATMs for pet policy objectives no longer makes sense, there are three tech regulation issues that will take on enhanced importance.

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debrahnesbit · 5 years ago

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Bains’ Other Wireless Affordability Problem: The Broadcast Panel Plan for WhatsApp, Skype and Other Internet Services to Pay Canadian Broadband Taxes

Navdeep Bains, the Minister of Innovation, Science and Industry today promoted the government’s plans for wireless affordability. The effort was largely an attempt to reiterate its wireless affordability platform, which targeted a 25 per cent reduction in consumer wireless bills by emphasizing more competition through MVNOs and spectrum set-asides. The renewed emphasis on the policy comes as an updated Wall Report finds that prices have been declining in some baskets (the long-overdue emergence of unlimited-ish plans a key factor), but not in the core middle tier of plans where prices remain high. The government states “Canadians have been paying more overall compared to consumers in other G7 countries and Australia” and noted that the government will track pricing on a quarterly basis starting from January 2020. Coming on the heels of threats from incumbent telecom companies such as Telus, it was good for the government to re-assert its policy objectives for the sector.

Yet despite the Bains’ policy plans, there is a new issue that he has thus far failed to address. Much of the focus of the Broadcast and Telecommunications Legislative Review Panel report has been on its call for a massive overhaul of Canadian communications law with increased consumer costs, violation of net neutrality, CRTC intervention into discoverability, and USMCA violations. The goal of these reforms is to enhance support for the creation of Canadian content.

There has been less attention paid to a series of additional recommendations focused on the telecommunications sector. There are some useful recommendations, but there is also an expansive regulatory vision for the CRTC on communications, sweeping up thousands of services around the world even without a presence in Canada. Those services would be required to register with the CRTC and pay a broadband tax to fund access in Canada. The vision starts with a recommendation to expand the scope of regulation:

Recommendation 16: We recommend that the definitions in the Telecommunications Act be amended to replace “telecommunications service” with “electronic communications service,” which means a service provided by means of telecommunications facilities and, without limitation, includes:

the provision in whole or in part of telecommunications facilities and any related equipment by sale, lease, or otherwise;

connectivity service, a service whose principal feature is the conveyance of intelligence by means of telecommunications facilities; and

interpersonal communications service, a service that enables direct interpersonal and interactive exchange of information via telecommunications facilities between a finite number of persons. The persons initiating or participating in the communication determine its recipients.

Having expanded telecommunications service to electronic communications service, the panel then recommends that the CRTC have jurisdiction over all services, whether located in Canada or outside the country:

Recommendation 19: We recommend that the Telecommunications Act be amended to establish explicit jurisdiction over all persons and entities providing, or offering to provide, electronic communications services in Canada, even if they do not have a place of business in Canada.

The combination of the two recommendations means that Internet services such as WhatsApp, Skype, Viber, FaceTime, Zoom, and hundreds of others would all be captured by Canadian regulation and subject to the jurisdiction of the CRTC. The BTLR recommends that all these providers be required to register with the Commission and pay levies into a fund to support Canadian broadband. Recommendation 25 states:

We recommend that the Telecommunications Act be amended to enable the CRTC to draw from an expanded range of market participants – all providers of electronic communications services – in designating required contributors to funds to ensure access to advanced telecommunications.

Bains and the government should not underestimate the implications of this recommendation to the affordability of communications services. Both Bains and the CRTC have emphasized the importance of low-cost data only plans to expand affordable access for Canadians. The vision is that a low-cost data only plan allows consumers to rely on Internet-based messaging services for their communications requirements. Many of those services are available for free to consumers.

Yet despite the enormous benefits of free communications services that expand affordable access, the BTLR wants to increase the costs of providing those services to Canadians with new regulatory requirements and mandated payments to fund broadband in Canada. Leaving aside how Canadian-based services would react to a U.S. requirement to fund broadband there, the possibility of increasing those costs to Canadians is enormously troubling and runs directly counter to Bains’ emphasis on consumer affordability for communications services.

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debrahnesbit · 5 years ago

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The Broadcast Panel Report and Canadian Stories: Take the Cancon Quiz

The Motion Picture Association – Canada this week promoted the Canadian link to Sonic the Hedgehog movie, the top grossing movie in the world at the moment. Much of the movie was filmed in British Columbia, generating millions in production spending and creating nearly 1,500 jobs. Normally, this would be viewed as a good news story and indicative of the global competitiveness of film and production in Canada. Yet the Broadcast and Telecommunications Legislative Review Panel report downplays the importance of this production, crafting policy recommendations that emphasizes the importance of supporting Canadian stories as a critical aspect of its approach.

Indeed, the willingness to violate net neutrality norms, impose discoverability requirements, and establish a global levy system for websites and services around the world is primarily based on the argument that Canadian policy must work to promote the production of Canadian content. This policy goal is framed as the need for Canada “to continue to assert its cultural sovereignty and Canadians can continue to express their identity and culture through content.”

The report acknowledges the record breaking film and television production in Canada (driven by Netflix, which CRTC chair Ian Scott has called “probably the biggest single contributor to the [Canadian] production sector today), but argues that such production does not contribute to Canadian stories and Canadian content. Instead, it suggests that only Cancon certified production can do so:

The support for Canadian drama has led to the growth of the independent production sector in Canada. In 2017-2018, Canadian productions accounted for over $3 billion in Canadian film and TV production, half of this amount in the drama genre. That is an important economic driver in the Canadian economy. But more important is the fact that these producers can create stories rooted in Canada and with a unique Canadian perspective that all Canadians will be able to enjoy. Despite the emphasis on Canadian stories, the panel does not grapple with the question of whether the Canadian system for certifying Cancon actually produces Canadian stories. Instead, it states “it is time to review the model for supporting Canadian content, but not the definition of Canadian content.” In other words, it is prepared to overhaul the regulatory rules for creating and delivering Canadian content, but not even consider the rules that determine what qualifies as Canadian content.

In fact, the not-so-secret reality of the Canadian system is that foreign location and service production and Canadian content are frequently indistinguishable. Qualifying as Canadian requires having a Canadian producer along with meeting a strict point system that rewards granting roles such as the director, screenwriter, lead actors, and music composer to Canadians. Yet this is a poor proxy for “telling our stories”.

Just how poor of a proxy? Take this quiz of 20 film and television programs, all of which are either Cancon certified, based on works written by Canadians, feature Canadian performers, or (in the words of the panel) are rooted in Canada.

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debrahnesbit · 5 years ago

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The Broadcast Panel Report and Discoverability of Canadian Content: Searching for Evidence of a Problem

The Broadcast and Telecommunications Legislative Review Panel report places considerable emphasis on the need to support the “discoverability” of Canadian content. The term appears repeatedly in the report as discoverability of Canadian content is treated as an equivalent goal to creation and production. Given the panel’s view of its importance, it recommends that all media content undertakings (other than some news organizations) be subject to discoverability requirements:

The CRTC must also be able to impose discoverability measures on media content companies. Consumers now have access to an endless choice of content, making it difficult to find, or simply recognize, Canadian content. In fact, a majority of consumers have said that they have difficulty finding content they want to watch. Further, algorithms and AI-based processes have a major influence on program recommendations with a consequent influence on the discoverability of content.

With respect to news content, the panel report features one of the most controversial recommendations that would see the CRTC identify “trusted” news sites and require news aggregators to link to them:

We recommend that to promote the discoverability of Canadian news content, the CRTC impose the following requirements, as appropriate, on media aggregation and media sharing undertakings: links to the websites of Canadian sources of accurate, trusted, and reliable sources of news with a view to ensuring a diversity of voices; and prominence rules to ensure visibility and access to such sources of news.

With the panel recommending an incredibly far reaching regulatory framework to support discoverability, one would have expected detailed evidence of a problem. Yet a deeper dive into the report indicates that the evidence presented of a problem is remarkably thin. This post examines the online streaming world, though a look at news aggregators – where searching for Canadian stories is trivially easy – is also warranted.

First, what is the evidence that consumers have difficulty finding Canadian content as the panel suggests? The paragraph cited above concluding that the CRTC must be able to impose discoverability measures because Canadians have difficulty finding Canadian content contains two footnotes that point to two reports: a 2017 Price Waterhouse Cooper report called How Tech Will Transform Content Discovery and a 2016 report from Telefilm Canada titled Discoverability: Toward a Common Frame of Reference Part 2: The Audience Journey (the Telefilm Canada report is incorrectly cited as a 2018 report but actually dates to 2016).

The Price Waterhouse Coopers report involved a survey of 1,000 U.S. residents, had nothing to do with Canada, and said absolutely nothing about the ability to find or recognize Canadian content. The Telefilm Canada report was focused on Canada but did not find that Canadians have trouble finding Canadian content. Rather, it found a range of experiences and emphasized that “word-of-mouth is Canadians’ main discoverability method.”

It may be that there are discoverability challenges. As an upcoming post will highlight, it is certainly difficult to identify what content counts as certified Canadian content since it is often indistinguishable from foreign content filmed in Canada. Yet given the significant regulatory framework envisioned by the panel, surely a stronger evidentiary record of an actual problem is needed. Two reports – one from the U.S. and the other four years old – does not make the case for new regulations requiring the CRTC to regulate the way thousands of online services make their content available to subscribers in Canada.

In fact, it is not hard to discover Canadian content on Netflix. Last year, I wrote specifically about this issue, creating a fresh Netflix account to see whether I could find Canadian programming and if the Netflix algorithm would adjust to my interests. The reality is that “discovering” Canadian content on Netflix only requires typing Canada into the search box. That immediately generates a Canadian Movies and TV section that features many shows and movies. Typing “Canadian” generates tabs for Canadian TV Shows, Canadian Movies, and Critically-acclaimed Canadian Movies, Canadian TV Comedies, and much more.

The panel would like the CRTC to require Netflix and other services to place Canadian programs on the front page, but this is precisely what happens when users demonstrate an interest in Canadian programs as the algorithm recognizes the preference and suggests similar kinds of content. It wasn’t regulation that pushed Netflix to promote Canadian programs such as Schitt’s Creek or Workin’ Moms to a global audience. It was subscriber demand. Why a regulated solution is needed is not entirely clear.

It is worth considering why discoverability has been such a focal point for the Canadian creative sector when much of the evidence suggests that users need do little more than put the term Canada in a search box. Canadian film and television production has long been a product of regulatory requirements with broadcasters required to air a certain percentage of Canadian content as a condition of licence. With a few notable exceptions, Canadian content has played second fiddle to more popular U.S. programming, which has meant that broadcasters are more likely to air the Canadian programs at less popular times. Moreover, given the reliance on simultaneous substitution, changes in U.S. programming times has had a spillover effect on Canada, with Canadian broadcasters forced to change their schedules in response to U.S. changes. That has meant that Canadian programs often lack a consistent time in the programming schedule.

Years of this experience may leave some fearing that their programs won’t be found unless efforts are made to make them more discoverable. Yet the reality of streaming services is that they have no reason to make it hard to discover programs that their subscribers want to watch. Indeed, in a very competitive market in which subscribers can cancel at any time, the opposite is true. For companies such as Netflix, they must ensure that subscribers find the content they want to watch or they risk losing them as customers.

For years, the Canadian cultural sector has claimed that Canadians want access to Canadian programming. If that is true, that provides Netflix and its competitors with all the incentive they need to ensure that they offer Canadian programming and that it is easy to find. With no long term commitment and plenty of competition, subscribers will leave if they do not find programming that appeals to them. If the culture sector is right, Netflix success in Canada is directly linked to offering Canadian programming and ensuring that their subscribers are able to find it. In this scenario, it is not regulation that drives access to Canadian content but rather subscriber demand. Yet despite those market realities – and an absence of evidence cited in the report – the panel concludes that all media content providers (including news aggregators) should be subject to discoverability requirements imposed by the CRTC with the regulator determining in some cases to which sites to link and how to ensure that such links are sufficiently prominent.

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debrahnesbit · 6 years ago

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From Innovation to Regulation: Why the Liberals Have Lost Their Way on Digital Policy

The 2015 Liberal campaign platform that vaulted the party from third place to a majority government made a big economic bet that focusing on innovation would resonate with voters and address mounting concern over Canadian competitiveness. Innovation would serve as a guiding principle over the years that followed: The Minister of Industry was reframed as Minister of Innovation, Science and Economic Development, millions were invested in innovation superclusters and global leadership on artificial intelligence was touted as a national priority.

My Globe and Mail op-ed notes that four years later, the 2019 Liberal party platform does not include a single mention of innovation or AI. Instead, it is relying heavily on ill-fitting European policies to turn the Canadian digital space into one of the most heavily regulated in the world. Rather than positioning itself as the party of innovation, the Liberals are now the party of digital regulation with plans for new taxes, content regulation, takedown requirements, labour rules and a new layer of enforcement commissioners.

Some of the new positions are not particularly surprising. The spring release of Canada’s Digital Charter by Innovation, Science and Economic Development Minister Navdeep Bains foreshadowed a commitment to new privacy rules and the implementation of a national sales tax on digital services was only a matter of time.

However, the platform extends far beyond those measures. For example, the Liberals’ plan to implement a 3-per-cent corporate tax on revenue generated in Canada, mirrors the approach adopted in France. The measure would bring new tax dollars for advertising revenues generated by Google and Facebook, but how to implement a tax policy that envisions taxing revenues from data remains somewhat uncertain.

The Liberal platform also calls for new rules regulating online content and the role played by large Internet companies in addressing content posted on their sites. Borrowing from Germany, the plan calls for significant penalties for social-media companies that fail to address online harms within 24 hours. Moreover, the Liberals plan to mandate that internet content providers feature Canadian content, support its creation and actively promote it on their services.

The shift toward greater content regulation marks a dramatic change in policy. Given the emphasis on freedom of expression in the Charter of Rights and Freedoms, Canada has traditionally tread lightly with respect to internet content regulation. There have been long-standing efforts to combat child pornography, but most other content regulation has been left to the courts to ensure due process and free speech safeguards.

The content regulation proposals raise several concerns, not the least of which is that they are likely to strengthen, not weaken, the large internet companies. By vesting responsibility for third-party content posted on their sites, those companies are likely to err on the side of removing controversial content without court oversight. Leaving content removal to Internet companies runs the risk of limiting future competition by creating barriers to entry for new companies and increasing reliance on private, largely foreign organizations for activities that are typically overseen by courts and regulators.

Moreover, the plans may run afoul of the yet-to-be-ratified Canada-U.S.-Mexico Trade Agreement, which features a safe-harbour provision that promises internet platforms that they will not face liability for failing to take down third-party content or for pro-actively taking action against content considered harmful or objectionable. Squaring Canada’s trade obligations on content removal against the Liberal proposals will not be easy.

Perhaps most troubling is that content-regulation proposals ignore the policy-development process that the Liberals themselves put in place. The government’s own Broadcasting and Telecommunications Legislative Review Panel isn’t scheduled to release its report on reforms to Canada’s communications laws until 2020. However, the Liberals have effectively pre-empted the entire process by predetermining the outcome with respect to mandated Canadian content requirements even as companies such as Netflix report spending hundreds of millions on film and television production in Canada without legislative requirements to do so.

The Liberal digital-policy platform does not end there. It ventures into traditional provincial territory with a promise to develop federal labour protections for workers at digital platforms and commits to a bigger bureaucracy to address the digital world. For example, it calls for a new data commissioner, effectively sidelining the current privacy commissioner. It also envisions a new Canadian Consumer Advocate, throwing into doubt the relevance of the Commission for Complaints for Telecom-television Services and the Financial Consumer Agency of Canada.

For a party focused on innovation, the Liberal digital policy proposals suffer from a lack of imagination, relying instead on untested European policies. Given constitutional safeguards, trade obligations and market size, many of those rules will not translate well to Canada. And while there is a need to recalibrate the digital regulatory environment, there are better ways to do it than compiling a veritable laundry list of grievances against internet companies and abandoning innovative policy measures that reflect Canadian law, priorities and values.

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debrahnesbit · 6 years ago

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From Innovation to Regulation: Why the Liberals Have Lost Their Way on Digital Policy

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debrahnesbit · 6 years ago

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It’s Back: The Netflix Tax Debate Returns for the 2019 Election

Four years ago, then-prime minister Stephen Harper used the first week of the 2015 federal election campaign to pledge that if re-elected his government would not institute a Netflix tax. My Globe and Mail op-ed notes that the Liberals responded with a no Netflix tax promise of their own, which became government policy when Justin Trudeau was elected a few months later. Yet as Canada heads toward another election this fall, Canadian Heritage Minister Pablo Rodriguez and his party seem ready to place the spotlight on Netflix taxes once again. Only this time, the government will call out opposition parties that do not commit to new Internet taxes.

The Netflix tax debate has emerged as confusing policy issue in part because the same term can be applied to several forms of taxation. Some are not particularly controversial. For example, applying sales taxes to digital services such as Netflix is widely viewed as inevitable since it would level the playing field with similar domestic services such as Crave that already collect and remit sales taxes. Moreover, service providers don’t pay the sales taxes, consumers do. Service providers simply collect from consumers and remit them to the government.

The Netflix tax that Mr. Rodriguez appears to have in mind would involve mandated payments by digital services in support of Canadian content production. The Liberal government initially rejected the idea as part of its digital cultural strategy, emphasizing enhanced “discoverability” of Canadian content on Internet platforms and voluntary agreements to invest in Canada, headlined by the $500 million commitment over five years from Netflix for production in Canada that was announced in 2017.

When those measures failed to stem calls from the cultural sector for more aggressive policies, however, the government convened the Broadcasting and Telecommunications Legislative Review panel to recommend reforms to Canada’s communications laws. The panel report is not due until January 2020, but that did not stop Mr. Rodriguez from stating in late June that “everyone has to contribute to our culture. That’s why we’ll require web giants to create Canadian content and promote it on their platforms.” In fact, recent reports indicate that his department has already convened seven working groups charged with identifying regulatory reforms for the Internet.

The shift toward mandated Canadian content comes despite industry data confirming record setting financing in Canadian film and television production. The total value of the Canadian film and television production sector nearly reached $9 billion last year, an all-time record with overall production increasing by 5.9 per cent. Notably, the increased funding came primarily from distributors and foreign financing, not broadcasters.

The data may not support new Netflix taxes, but the government appears to believe that the increased fees for digital services will make for good politics this fall.

Yet cultural groups are unlikely to be satisfied with extending the 5 per cent contribution requirements for broadcast distributors such as cable companies to the online video services. In fact, some groups have visions of a 30 per cent contribution requirement, likening online video services to established broadcasters who enjoy a myriad of regulatory advantages not found online (these include must-carry requirements, copyright retransmission rules, and simultaneous substitution benefits). Others want the principle extended to Internet service providers and wireless carriers, risking increased consumer costs for basic communications services.

Mandated contributions could also spark a trade battle with the United States. While the new Canada-U.S.-Mexico Trade Agreement features a cultural exception, it also permits the U.S. to retaliate with measures of “equivalent commercial effect.” In practice, that could mean new levies or fees in the hundreds of millions of dollars against Canadian companies seeking to access the U.S. market.

The Liberal shift toward new Internet or Netflix taxes also marks an abandonment of the government’s emphasis on public consultation and expert policy development. By circumventing the broadcast review panel and effectively ignoring the results of a public consultation before the results are even in, the government seems ready to place a big bet on another Netflix tax election, only this one features promises of increased Internet costs and new consumer fees.

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debrahnesbit · 6 years ago

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The LawBytes Podcast, Episode 19: Canada’s Quiet Success Story: Irene Berkowitz on the Canadian YouTube Creative Sector

Canadian Heritage Minister Pablo Rodriguez recently appeared to pre-empt the government’s broadcast and telecommunications legislative review panel in his response to the panel’s interim report. Rodriguez indicated that the government will move to mandate new contributions and Cancon requirements for online services regardless of what the panel recommends. New creators leveraging online platforms don’t typically participate in government consultations, but that doesn’t mean their voice and experience should be ignored. Ryerson’s Irene Berkowitz recently released Watchtime Canada, a report on the role YouTube plays in fostering opportunities for creators. The study found an eco-system that provides thousands of Canadians with full-time employment opportunities and export strategies that outshine the traditional creative sector. She joins me on the podcast this week to discuss the report and what it might mean for Canadian cultural policy.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

Watchtime Canada report

Credits:

Standing Committee on Canadian Heritage, May 2, 2019 Unbox Therapy, This Smartphone Changes Everything Gigi Gorgeous, This is Everything How to Cake It, GIANT Juice Box Cake with JUICE INSIDE The Icing Artist, Mini ANIMAL CAKES Vanoss Gaming

Transcript:

Law Bytes podcast – Episode19 | Convert audio-to-text with Sonix

Michael Geist: This is Law Bytes, a podcast with Michael Geist.

David Yurdiga: Are we prepared for the the YouTube generation. I like to call because that’s the that’s the medium they’re playing in at this point.

Scott Hutton, CRTC: Our suggestion is we need to legislative changes and new tools to be able to help the regulatory system adapt to those particular environments. YouTube can contribute to Canadian content. You know we can all post there and it is contributing and that means right now Canadians can. It’s it’s one of the more open systems Canadians can post and receive revenue from from YouTube. On that element but an example in that case is how does one find that Canadian story and the sea of what is available on on YouTube. So for example that’s why we’ve raised many concerns with respect to discoverability is sort of the term that everybody is using as to how do you find that piece of Canadian content in the plethora of content that is available.

Michael Geist: Canadian Heritage Minister Pablo Rodriguez recently appeared to pre-empt the Government’s broadcast and telecommunications legislative review panel. In his response to the panel’s interim report. Rodriguez indicated that the government will move to mandate new contributions and Cancon requirements for online services regardless of what the panel recommends. While the comments signal a shift in policy – and perhaps that an election is on the way – they also suggest that the narrow view of the Canadian creative sector has taken hold within the government.

Michael Geist: New creators leveraging online platforms don’t typically participate in government consultations but that doesn’t mean their voice and experience should be ignored. Ryerson University’s Irene Berkowitz recently released Watch Time Canada a report on the role YouTube plays in fostering opportunities for creators. The study found an ecosystem that provides thousands of Canadians with full time employment opportunities and export strategies that outshine the traditional creative sector. She joins me this week on the podcast to discuss the report and what it might mean for Canadian cultural policy.

Michael Geist: Irene thanks so much for joining me on the podcast.

Irene Berkowitz: Thank you very much for inviting me. I’m sort of awed, honoured and I hope I can contribute as your other amazing guest have.

Michael Geist: Okay. Well it’s a pleasure to have you and this comes at a really important point in time. As you know we’re recording this about a week after the government’s broadcast and telecom legislative review panel released its “what we heard” report. The actual recommendations on reforms to Canada’s broadcast and telecom laws aren’t scheduled until 2020, but this report kind of provides as the title suggests what they heard from the various stakeholders who participated.

Michael Geist: I think it’s fair to say for anyone who’s paying attention to the report didn’t really surprise very much. There are many in the cultural community in Canada that see this this review as one of their best chances for new regulation in the cultural sector possibly mandated Cancon contributions maybe even site blocking, new taxes. And so there’s been a lot of emphasis there and certainly you see it in the report. But if you only read those submissions I think you’d be pretty surprised to learn that Canada is experiencing record spending on Cancon production right now. A lot of it supported by foreign investment. But even that is only part of the story. And well the reasons I’m so excited to have you on the podcast is that you recently released a study that examined the role of YouTube in Canada’s media ecosystem focusing both on Canadian YouTube creators and consumers and the data which frankly you don’t see in the what we heard report strikes me as incredibly important for cultural policy. So why don’t we start as a long intro but why don’t we start then with the background. What were you looking to study and how did you go about doing it.

Irene Berkowitz: Well thank you for asking that question because it actually has an important answer which was as you know and many other people who are probably listening know there has been you know hundreds if not thousands of reports filed on the legacy media system from its very beginning. Probably you have also read most of the documents from 1929 as I have and yet there isn’t there wasn’t a baseline study of YouTube which has been present in Canada since 2006 to take its place at that at that table and there’s a lot of generalizations made about new media giants without much specificity so we wanted to take a look at what is the role of YouTube in the Canadian media ecosystem.

Irene Berkowitz: What we found was quite remarkable we were not experts in YouTube. As you know I’m more of an expert in legacy media at the time. And just for further transparency to say that the report was commissioned by Google but contains no proprietary information we there’s 50 charts and lots of contextual information. And unless we omitted it accidentally a footnote all of it is done by reporting our original research or public public information that’s adequately or appropriately footnoted. In fact Google was quite explicit on numerous occasions saying that they would not want to interfere with our academic freedom.

Michael Geist: Ok. So just so that we know who the “we’ is in this case it’s yourself. But it was also with some colleagues from Ryerson.

Irene Berkowitz: Yes very important to mention my team the first team member is Dr. Charles Davis whose credentials are quite impressive. He’s the Edward S. Rogers Senior Research Chair in Media Management and Entrepreneurship. He’s also a professor in the RTA School of Media and the associate dean of scholarly research and creative activities here and my so he you know you can understand this was sort of the the royal oversight in this report as well as our second of our third of our three part team and Hannah Smith whose Phd student and communication and culture which is the same program from which I received my PHC in 2016. And she is a graduate researcher in audience lab which is an initiative started here it at faculty of communication and designed to study audiences with data both qualitative and quantitative research is done here.

Michael Geist: Ok. I wanted to make sure that we give credit to the full team and I’m glad that you that you noted that. Google provided support but had no input in terms of the outcome in the research itself in what’s a lengthy reports of some hundred thirty five pages of lays out the data that you found. Let’s let’s talk just that’s the why that is an area that’s not well understood and the who that was involved. What did you go about doing as part of the study.

Irene Berkowitz: Well we took a look at the key stakeholders in YouTube and with an eye on understanding what stakeholders are most often reported on in it in the legacy reports and we decide to take a look at the audience or consumers and the creators because they are the creators are obviously the focus of much of much of the regulation and discussion in the in the legacy system. There is a third stakeholder in YouTube which is the advertisers and that that part may be maybe coming eventually but we we started with this. It was a big job. You can see the results are big also. We did we ended up doing two surveys one with consumers. We did that first because was a bit easier from a process point of view and that had fifteen hundred responses with a demographic that was the same as Statscan, which we requested. And then we also did a study of survey of creators and that what that has round twelve hundred responses and we ended up with a dataset that was not certainly not big data. But it is for surveys it’s quite a large data set and we we proceeded to crunch the data and understand what our results were.

Michael Geist: Okay. So twelve hundred Canadian creators working on YouTube does sound like a really large sample size. Once you crunched some of that data, what are some of the some of the conclusions that you were able to come to in terms of just the scope or size of of Canadian creator presence on YouTube.

Irene Berkowitz: Yes. Let me just respond to sort of instinctively to you. The first part of your question then I’ll get to the key takeaway which is that by definition the creator survey had to be self selected because it had to be anonymous. So we’ve we were kind of amazed because we had heard that these kinds of surveys get 1 or 2 percent response. We weren’t really sure if we were going to get anyone. And as we saw these results coming in we were we were quite happy to be working with asking Canadians the subsidiary of Delvinia, who administered these surveys. As we saw the results coming in two hundred three hundred six hundred eight hundred. We were quite amazed. And it led me to think that we had struck a chord with Canadian creators on YouTube who really wanted to tell their story.

Irene Berkowitz: So they said that that’s not those are not the results. There are in the report I’m sure you saw there’s twenty one value propositions unique value propositions that YouTube seems to be offering into the Canadian media marketplace. I was quite amazed as I went through and and sort of tried to deduce each part of the report and I realized that wow this is actually for real. And then I tried to reduce it further into five insights and one key takeaway which I’ll just tell you what that is because then we can unpack that according to what you find most compelling.

Irene Berkowitz: So we found that YouTube in addition to facilitating the rise of a new group of Canadian creative entrepreneurs. That’s 160,000 of them by our estimation. They are inventing totally new forms of popular content. Youtube has also resulted in significant outcomes with respect to those creators with respect to diversity, employment, domestic popularity, global export, Canadian creators lead the platform and global access. And furthermore YouTube has achieved these results without requiring either the transfer of IP rights from creators which as you know is a highly controversial aspect the legacy system and largely in the absence of public funding and its associated costs which has been pegged by the former chair of the CRTC at 4 billion dollars per year.

Irene Berkowitz: The other thing is that we ask Canadian consumers about Canadian content. I think that there’s a lot of discussion about Canadian content but I’m not sure many studies have actually asked Canadians whether what they think what they’re wnd what what their practices are around it. So 90 almost 90 percent I think was 88 percent of Canadian consumers do not search for Canadian content on YouTube and in our almost 9000 qualitative responses from these surveys because both surveys had a few qualitative questions, the consumers made it very clear why: they’re searching for content that either helps them learn something, they’re searching or they’re searching for the content they want and they don’t really care where it comes from.

Michael Geist: It’s interesting consumer data and preference can come come back to some of the public’s perspective on that. I want to drill down focus a bit more intently on the creator side of course because that’s where so much of that policy for better or worse is focused when we start thinking about Cancon and cultural policy, although one would have thought that you’d be interested in what Canadians themselves are interested in. But let’s try to better understand the creator side because the hundred and sixty thousand creators is a is a big number. Of course the question that immediately follows for many in the sector would be well how many of those people or are able to generate some revenue coming out of that. If not as a full time career at least as a source of revenue. Do you have some sense of the data in terms of how many are sufficiently successful to be part of the partnership programs that then lead to the prospect of revenue.

Irene Berkowitz: Yes. That’s obviously very very important. Mindful that YouTube is a startup culture that about 25 percent or around 40,000 Canadian creators are what’s called eligible for monetization which is means they can join they are eligible to join the partner program, which means around a thousand subscribers a certain amount of watch time and obeying and those strikes against them in terms of their adherence or obeying the community guidelines that YouTube sets.

Michael Geist: We see large numbers of Canadian creators succeeding on YouTube. But the report does a really nice job of highlighting some of the major success stories some of some of them were household names but a bunch. Unless you’re I guess in this space aren’t necessarily so but they’ve got enormous numbers of views and presumably generating some significant revenues. Could you tell us a bit about some of the YouTube stars as it were that come out of Canada.

Irene Berkowitz: Oh I would love to. I’m actually glad that I didn’t meet these people in person until the launch of this report because anyone would fall so in love with their exuberance and energy that I wouldn’t have been able to maintain my scientific objectivity during the preparation of the research. Well you know someone like Shawn Mendes or Justin Bieber. These are household iconic names in Canada. What everyone. What people don’t know is someone like Shawn Mendes actually learned how to play the guitar on YouTube. There’s another household name is Lily Singh, who started as a funny and charming girl from Scarborough who is now made it to the top of royalty in the legacy entertainment system who just recently has been named as the host first only female host of a late night show on NBC. There is Lewis Hilsenteger.

Lewis Hilsenteger: Today is the day that the smart phone game changes. In front of me I have the future and it’s in the form of the Find x. This thing has been top secret and for good reason because it changes everything.

Irene Berkowitz: Unbox therapy is the top technology platform on the technology channel excuse me on the entire platform. There’s Gigi Gorgeous.

Gigi Gorgeous: My camera became my therapist and YouTube became my diary where I would post everything. If your parents don’t get you, if your friends think you’re weird, I love you and I want you to be exactly who you want me to be.

Irene Berkowitz: Who is the top transgender transgender creator on the entire platform. There are so many creators with billions of views such as How to cake it.

How to cake it: Welcome back to how to take it. I’m Yolanda and this week I have taken a juice box a giant juice box that you can take back to school.

Irene Berkowitz: Which is a lifestyle platform started by a group of Canadian creators whose frankly their show was was canceled and Yolanda Gallop has become a top creator on the channel. There’s fascinating export stories. The the icing artist.

Laurie Shannon: My name is Laurie and you’re watching icing artists.

Irene Berkowitz: By Laurie Shannon and her husband they were both cabinet makers. They literally learned how to decorate cakes on the platform. She started this channel and she discovered through data analytics that on YouTube studio that she had a lot of audience in the Middle East and realized well she’ll take away herself talking and she’ll add subtitles which is easy to do on on on the platform that’s that’s also enabled. And she saw her audiences go from 30 her subscribers go from 30 thousand to a million. Now she has three million. Her husband and her have both quit their day jobs. We see this a lot and they are supporting their family from YouTube. There VanossGaming who probably is Evan Fong from Richmond Hill.

Evan Fong: What is up guys. So today I have some Ghost Recon breakpoint gameplay and I’m playing with my friends wildcat Mu and asers.

Irene Berkowitz: Who launched his show on gaming. I don’t know if the gaming on YouTube isn’t gaming, its channels that what its videos that you’re watching other people playing video games. It’s gigantic. Anyway he has billions of views and he is actually earning. He had earned to 17 million in 2018 making him the seventh highest paid YouTube star ever. The list could go on. What we found in terms of the export data was that Canadian creators as I said earlier not only lead the platform in export but they have actually transformed historic disadvantage which is being next to the US if not a key motivator for the entire policy framework for the 20th century. They have transformed that into a remarkable competitive advantage and they are monetizing that you know like crazy.

Michael Geist: And I’m assuming that on the monetization side and I know that your report indicates that while some are generating less than ten thousand dollars you’ve got a sizable percentage of those that are able to generate revenue generating a hundred thousand dollars or more. It’s the millions of course are a small number of people. But nevertheless people literally being able to to to make this their full time occupation, to live off their creativity this ways is an amazing thing to see. And the report talks about not just about money that gets generated through advertising, but brand deals, sponsorship, appearances, book deals. All of these become part of the norm for some of the creators that find for that establish a global presence.

Irene Berkowitz: One hundred percent in fact. Thank you for for connecting those dots because we started out with the revenue sharing and exactly as you just said we found that it’s the norm even very early on, people are using a variety of highly creative variety of revenue streams to to to monetize their work on YouTube for instance. It’s not all about subscriber numbers sometimes. We came across a channel I won’t I won’t violate privacy but that only has 50,000 subscribers which doesn’t seem a lot compared to the hundreds of millions if not billions for for our other creators. But they are supporting a family of four because the advertising, the type of advertising that that this channel appeals to family advertising: Home Depot, Wal-Mart, Structure, are high paying advertisers. And so there are many many routes to success on YouTube and these the level of excitement about their work is positively contagious.

Irene Berkowitz: So I mean, overall for me, the key takeaway was I wouldn’t say that our study is RCT or randomized clinical trial of what would happen in the absence of protection or support but you couldn’t do that anyway. But it is somewhat sort of like that because here we have Canadian creators sort of let loose naked into the globe into a global platform. And if it comes down to whether protectionism or competition builds strength in terms of content that is popular. Well it seems like we have an answer because Canadian creators truly are thriving on YouTube.

Michael Geist: I’m glad that you know you made that connection because that’s really what we’re talking about law and policy. That’s kind of in a sense the next question. Once you’ve managed to canvas the waterfront of what’s taking place in YouTube and the report goes into far more detail on on a lot of these kinds of issues uncovers this thriving ecosystem with thousands of Canadians succeeding. The question if you’re on the broadcast telecom review panel or government or policymaker or someone who is concerned with what cultural policy looks like, is whether or not you need policies that are responsive to this. What sounds like you’re suggesting is that we’ve seen this kind of success really in the absence of those sorts of policies this is in a sense that opportunity to compete on the global stage and doing so without new kinds of taxes or mandates, but rather doing so by the kind of creativity and finding an audience.

Irene Berkowitz: Well finding an audience. A case a strong case could be made that for the 20th century it was building an industry on the broadcasters side and on the independent production side and those all those quotas and regulation. I mean clearly the framework was brilliant. Beginning with you know the sort of I call the two the two pillars are really simultaneous substitution, which delivered 30 percent of a boost to the broadcasters, and then on the other hand we have the 30 percent investment and then we have the independent production community that is sort of anchored by the point system which took four years. I’ll just say that those were 20th century goals in the 21st century, that’s not the challenge. The challenge is the market is global.

Irene Berkowitz: I did want to make sure to ask whether or not you asked about regulation. So if we could see how this has succeeded in the absence of regulation did you ask those that are actively engaged in this whether or not they pay attention to these policy issues, whether they think regulation is needed. They haven’t been a vocal part of the policy process to date, but is this something that they think very much about or they’re just busy creating.

Irene Berkowitz: I think that what we did at we did ask one question of creators and we also asked about it asked it to consumers. We were careful not to take up too much time in the surveys with too many of these questions because as you just indicated most people in the industry and in the world just want to pay their mortgage, get through their day and they’re not thinking about these issues the way you and I might as a giant fascinating puzzle that needs to be rejigged for the 21st century. But we did ask. We did ask creators that whether they’re content if their content was promoted in Canada but that meant it was demoted in other countries which would which would be the type of thing that would happen because the platform is global. They what how this would impact their experience. And the answer was overwhelmingly negative because they depend on these larger markets to fund their Canadian creativity and they depend on these audiences.

Irene Berkowitz: We also ask consumers about whether they thought the government should have a role in in regulating what they can see on YouTube and what they felt was that sixty five percent of Canadian consumers value YouTube as the best place to watch the same video as anyone else in the world. And a majority also believe that also 65 percent no government or other organization should determine what they can watch on YouTube. Now we asked that in the context of YouTube. We didn’t ask it in the context of protections around harmful content defined you know in many different ways. So I want to be clear about that, but it seems that you know in terms of YouTube’s ability to leap the walled garden, Canadian consumers and Canadian creators are quite protective of their right to access the global market.

Michael Geist: Thanks so much for joining me on the podcast.

Irene Berkowitz: Thank you so much.

Michael Geist: That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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