Big Music fumbles in Canada
p2pnet.net News- Has the Big Four record labels’ CRIA opened its mouth too wide following yesterday’s Canadian Supreme Court decision to refuse an appeal by vested interests to confirm the tax on portable music players?
Canadian law professor Michae Gesit believes that may be the case.
Read on >>>>>>>>>>>>>>>>>>>>>>>>
CRIA’s Higher Risk Strategy
By Michael Geist
Of all the reactions to today’s SCC decision to skip the appeal of the private copying decision, I thought the Canadian Recording Industry Association’s was the most remarkable. I’ve obviously commented regularly on its high risk strategy of suing individual file sharers. I think this is a bad strategy for many reasons. Suing your customers (and we should be clear, file sharers are the industry’s best customers) is never a good idea. Further, the immense energy devoted to fighting file sharing, despite ample evidence that any industry woes have little do with the practice, is wasted time that could be spent actually responding to the market.
Today’s response represents an even higher risk strategy. CRIA is now going to war not only with its customers, but now also with its artists. There have been several indications of this in the past year, namely CRIA’s opposition to artists on ringtone compensation and on satellite radio.
But opposing the artists on private copying takes this strategy to new heights. CRIA today claimed that artists will make up private copying levy losses through the marketplace. The truth is that artists and rights holders lost $4 million today, the amount collected from the iPod and digital audio recorders during a fairly brief period. Longer term, they lost tens of millions of dollars of potential compensation. These are not the nickels and dimes that CRIA derides. If anything, for Canadian artists the levy represents a potentially important revenue stream that will not be easily recouped.
Today’s decision also likely means the end of a private copying levy that CRIA spent 15 years fighting to get. The system is clearly broken and policy makers will either drop it completely (perhaps supplemented by a fair use doctrine that will permit copying such as store bought CDs to personal iPods) or expand the levy so that it resembles a European approach that extends to both audio and video, while providing even greater compensation.
Further, today’s decision represents a serious blow to the iPod, which has been an incredible boon to the music industry. Simply put, copying store bought CDs onto iPods, as CRIA’s own Graham Henderson has supported, may now be unlawful in Canada since it is difficult to find an exception within the Copyright Act that would permit that form of copying. While perhaps some in the industry may think this is a good thing as it transitions users to re-purchase the same music yet again as MP3 files from services such as iTunes, I think it will ultimately lower the value that consumers associate with music to the detriment of everyone in the industry.
Finally, it is worth noting what this decision does not mean. While CRIA claims yet again that this means that file sharing is unlawful in Canada, the issue is still unsettled. They argue that "unauthorized file sharing to hard drives of any kind, including those on home computers, is illegal." Not so. A good argument can be made that computer hard drives are not the equivalent of the hard drives embedded in digital audio players. I don’t think anyone knows for sure and I doubt CRIA will try to test the issue. There is high risk and higher risk but that lawsuit would involve perhaps the highest risk.
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist[at]uottawa.ca.]
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July 29th, 2005 at 2:29 pm
I don’t quite understand this.
Are they saying that because the tax on digital music players has been removed (removed permenantly or indefinately), that people who copy music to those players have lost the protection (or right) to copy music to those players? (ie – that users of MP3 players were protected from copyright prosecution *because* of the tax on the players?)
Is the music industry (in Canada) acknowledging that the special tax (on items like CD-R’s) gives Canadian’s protection from copyright-based legal action by the music industry? If so, then how can they continue to go after Canadian up/downloaders of music on the internet?
Why wasn’t this issue settled when we were using Sony Walkmans and taping music off the air or from records onto casette tape?
July 29th, 2005 at 3:35 pm
Section of 80 of Canada’s Copyright Act states in no uncertain terms that copying for private use, such as from CD to iPod, is NOT an infringement.
See below.
80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of
(a) a musical work embodied in a sound recording,
(b) a performer’s performance of a musical work embodied in a sound recording, or
(c) a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied
onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.
July 29th, 2005 at 4:08 pm
We all copy stuff every day. Next thing we know someone will take paste and copy from our keyboards. If you don’t want something copied then keep it to yourself. If musicians or the industry wants to make more money then go on tour more often and do better shows, charging more and do what they are supost to do ” perform”
July 29th, 2005 at 4:51 pm
Why should we (and do we) pay taxes to make private inhuman corporations richer ? Damned ! There’re already taxes on blank CDs/DVDs in my country, they even try to put a new tax on HD, and the goverment that says they’ll lower taxes, just like daddy Bush and his famous “no new taxes”…
Let’s burn technology and go back to nature ah ah ah !
July 29th, 2005 at 6:24 pm
Your reaction is understandable, but not legally correct. To understand why, you have to read the Federal Court of Appeal’s decision from December 2004. The Court held that mp3 players are not an “audio recording medium”:
” A digital audio recorder is not a medium; the CPCC recognized so much when it asked that the levy be applied on the memory found therein but not on the recorder itself. The Board erred when it held that it could certify a levy on the memory integrated into a digital audio recorder.
. . .
“In my respectful view, it is for Parliament to decide whether digital audio recorders such as MP3 players are to be brought within the class of items that can be levied under Part VIII. As Part VIII now reads, there is no authority for certifying a levy on such devices or the memory embedded therein.”
Since mp3 players don’t fall under the exception created by s.80 of the Act, copying onto an mp3 player – even for personal use – is technically a violation of copyright.