copyright

Makes You Think, Doesn’t It ?

Today the Ontario Superior Court of Justice has approved a settlement of $50.2 million dollars in the “Pending List” class action quit against the four major labels in Canada.

Appearently several years back several recording artists, composers and their estates had noticed their recordings had been released by these labels, with no licencing agreement or royalty payment.

From June 2007 to December 31st, 2009 countless compilations were released that included recordings that the major labels assumed were available to them without prior negotiation because they had assigned a royalty rate to these recordings.

Unfortunately the rights agencies that collected royalties on behalf of the artists found it rather difficult to confirm what was on these lists and coult not truly determine how much was owed to specific artists.

This of course eventually resulted in a class action suit in 2008 that alledged the labels had performed hundreds of thousands of copyright violations, that resulted in the unauthorised sale of recordings.

I find it rather interesting that the labels hindered the collection of royalties associated to this scheme whilst opposing private copying on the grounds that it would hurt artists.

Private copying does not enable the consumer to sell copies of the recordings.

Levy On Memory Cards Proposed, Again.

The Canadian Private Copying Collective had applied for a levy on memory cards at the Copyright Board.

On March 31st, the CPCC has asked the Copyright Board to extend the definition of Blank Audio Recording Media to include memory cards so they can obtain up to $3 in levies per card from manufacturers and importers of this media.

Published in the supplement of the Canada Gazette on May 14th, the rates are as follows :

$0.50 on each memory card that is less than 1 GB
$1.00 on each memory card that is above 1GB but under 8GB
$3.00 on each memory card that is 8GB and more

Unfortunately for the CPCC the definition of what can be and cannot be levied is clearly defined in Section 79 of our Copyright Act :

“audio recording medium” means a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium

In respect to this definition the Copyright Board had ruled in December 2003 that the evidence presented to them had not clearly demonstrated “that these recording media are ordinarily used by individuals for the purpose of copying music.”

To store and play back music all one requires is a class 2, 2GB per second memory card. A higher class card is not necessary as it does not improve the sound quality of the recording nor the performance of the device in which this memory card is placed.

Class 4, 4GB per second memory cards were introduced to facilitate the storage of photographs whilst Class 6 (6GB/s) and Class 10 (10GB/s) memory cards were created to record and store high definition video.

The only Secure Digital card created explicitly for music is the SD-Audio format, so a blanket levy on all memory cards is inappropriate or justified.

That said, one then has to wonder why the proposed rates are quite low in comparison to their previous request.

In 2002 they had requested $8 per gig on memory cards according to the March 9th, 2002 edition of the Canada Gazette. But the Canadian labels the CPCC represent still claim that more and more people are copying music “illegally” to devices with memory cards.

It appears their proposals are inconsistant and somewhat arbitrary.

Perhaps they’re attempting to make the levy more palatable. But it makes no sense to reduce the levy whilst claiming there is more harm to the copyright holders since 2002, unless the proposed rate in 2002 was exagerated.

I believe in proposing this levy the CPCC are actually attempting to solicit a definition that enables them to levy the memory cards embedded in mp3 players.

After all, the term they used in the proposal was “electronic memory card“, which doesn’t distinguish embedded from non embedded memory cards. And they could attempt to argue that though most memory cards are not ordinarily used for music that memory cards that are embedded inside mp3 players are.

Technically such a levy would not be a mp3 player levy but a levy on the memory card inside the mp3 player, that they could repackage as a “compromise” during the upcoming copyright reform process.

But we’ll cross that bridge when we get to it. For now we can object to the levying of memory cards that we primarily use for our own photographs and videos.

The Copyright Board will be accepting objections to the “Statement of Proposed Levies to Be Collected by CPCC on the Sale, in Canada, of Blank Audio Recording Media for the Years 2012 and 2013“, as published in the May 14th, 2011 supplement of the Canada Gazette, until July 13th, 2011 at the following address :

GILLES MCDOUGALL
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9

613-952-8630 (fax)

Please note that these objections may become part of public record so it is preferable to address the issue politely.

IMSLP Attacked By UK Music Publishers

The International Music Score Library Project was knocked offline temporarily this week by a DMCA complaint by the Music Publisher’s Association (UK).

Appearently they had attempted to impose EU copyright laws on this Canadian site because the IMSLP had published Sergei Rachmaninoff‘s “The Bells, Op.35“, a score that is considered public domain in Canada and the United States.

This score had been originally published prior to 1923 and in countries where copyright is limited to 50 years after the death of the composer the material is public domain. In 1993 the European Union had adopted a term of 70 years instead of 50, resulting in a complaint in regards to this specific composition.

This incident has resulted in alot of discussions online in regards to Canada’s attempts to reform copyright and our conformity to international law.

Many Canadians are concerned that the European Union’s music publishers are attempting to impose their terms in Canada, the IMSLP having been previously subjected to a takedown in October 2007 by European classical music publishing firm Universal Edition over numerous compositions. And Canada is currently in talks with the European Union in regards to a free-trade pact, which includes discussions on intellectual property.

Liberals Respond To iPod Tax / Bill C-32

It appears that the Liberal Party do not support the so called iPod Tax after all, according to a press release found on their web site.

Like the conservatives they do not see any future for such levies. The Liberals would rather “introduce a new Private Copying Compensation Payment of $35 million to be transferred to Canadian artists each year, through the Canadian Private Copying Collective (CPCC)” according to the press release.

The funds for this compensation, for “uncompensated downloads”, would not come from ISPs or from a levy, the party having recognized that the consumer wants neither.

They also recognized the bill’s digital locks provision restricted the consumer’s ability to make personal copies of material they’ve purchased and would alter this provision to allow copies for personal use.

The other general alterations they propose are the clarification of the definitions of “fair use”, specifically the education use and “mash-up” provisions. They want educational institutions to qualify for the exemption.

Bill C-32 has been referred to a Legislative Committee headed by Gordon Brown, MP for Leeds—Grenville (Ontario).

Please contact your local Member Of Parliament to voice your comments and concerns in regards to the proposed amendments to the Copyright Act.

Thank you.

CPCC demands levies on MP3 Players

In a press release dated June 2nd, 2010 the Canadian Private Copying Collective criticized the recently proposed amendments to the Copyright Act stipulated in Bill C-32.

They are again proposing a levy on Mp3 players, this time at a rate of up to $25 per unit in response to a survey of 1000 Canadians. And apparently found some support in The Standing Committee on Canadian Heritage to extend the levy to digital music recorders.

In response to this issue Timmins-James Bay MP Charlie Angus proposed such a levy on audio recording devices in a private members bill in Parliament, Bill C-499, on March 2010. But it stalled at first reading without the support of the conservatives, who in turn tabled Bill C-32.

The problem here is that the CPCC are trying to implement a scheme that ignores the fact that royalties are already being collected on the sale of online recordings, a medium in which copying is required for use, and that the popularity of these recordings are dependent on the sale of mp3 players.

The CPCC may claim that MP3 players are without value without music in their press release. But online recordings are nothing but a series of ones and zeros without devices to play them. And compact discs are a dying format from which people will make less and less private copies from as time goes by so the CPCC is basically trying to sustain their existence by levying anything that comes along.

One has to wonder what the true value of these rights are now that the CPCC are attempting to propose a significantly reduced rate, from $21 per gig of memory in March 2002 to $25 per unit.

Did the value of these rights drop over these eight years or is the scheme being made more palatable ? And would the later then mean the rights are being subjected to the market and are flexible in value ?

The CPCC do attempt to claim they are looking for fair value on their Save The Levy site. But how fair is it to levy consumers via the mp3 player manufacturers, who would pass on these expenditures to their customers ?

Private copying may result in copying. But this copying is distinguished from commercial distribution because it is for private use by the consumer.

It does not result in the collection of funds by the consumer, from which royalties would have been collected if it were commercial distribution.

Furthermore it is the consumer that distributes music to these devices and not the manufacturer of these mp3 devices, so the manufacturer is not engaged in the commercial distribution of music either.

Like the compact disc player, these are playback devices in which media is introduced by the consumer ; Media whose data is played from the media, stored in memory and converted into music.

Yet CD players are not levied because the distribution medium in question is the compact disc, a format whose sales result in royalties. And in turn it can be argued that online recordings are also formats whose sales result in royalties.

Bill C-32 addresses issues relating to online piracy by establishing penalties for the illegal distribution of music, both offline and online. And this will further promote the collection of royalties from legitimate online distributors and sites from which music can be streamed.

I believe the proposed mp3 player levy is redundant in light of the measures tabled by the Government of Canada and could be counterproductive if it results in significantly higher prices when it comes to audio playback devices.

In conclusion I oppose the proposed levy as a consumer and would remind the government that such a levy would promote the importation of playback devices by individual Canadians, to the detriment of Canadian retailers.

——-

I would again like to remind you that you may contact your local member of Parliament on this issue using the contact information provided by the Parliament of Canada web site.

You will find this information by entering your postal code in a form on the main page, under the words “Current Parliamentarians“.

Thank you.

New Proposed Copyright Act Amendments

The Canadian government has just introduced a bill to update the Copyright Act in response to new technology and international criticism.

Bill C-32 will further legalize private copying by enabling consumers to record and copy copyrighted music, film and television programs legally for private use.

It will also enable the consumer to convert this material into other formats, so this material can be played back on various devices. And provisions in regards to “Fair Use” have been updated, enabling copying for the purpose of “research, private study, education, parody or satire”.

Unfortunately this bill also proposes limitations on these acts, by making the circumventing of copy protection illegal, which would result in a penalty up to $5000 for non-commercial violations.

Most record companies have yielded to consumers in regards to copy protection. But the DVD manufacturers still use these schemes, including a DVD region code that renders DVDs legally purchased from one region unplayable in another DVD region.

Blu-ray discs have similar region codes and many of the film distributors have decided to release films without this coding. But what if the record companies and film distributors decided to re-introduce these “technological protection measures” ?

What if they decided to release the material in a proprietary format, rendering the material unplayable on devices not licensed to play this material ?

We should have the ability to view and make private copies of material that we’ve legally purchased but the provisions would subject us to the whims of the labels, film companies and their distributors, some of which own the rights to distribute material in certain countries and regions without the legal obligation to do so.

Canada is generally lumped with the United States when it comes to foreign films, concerts and music video compilation releases so we are subject to trends that are detrimental to material that is not or was not popular in the United States because of language or other factors.

For example, I like a french pop duo called Les Rita Mitsouko but unfortunately they did not have enough of a following in North America to justify the release of a Region 1 version of their limited edition “Bestov” CD/DVD compilation in 2001.

If I had not imported it from France back then I wouldn’t have it now because it’s no longer being distributed. And this issue isn’t limited to francophone releases.

Norwegian pop rock band a-ha had released a video compilation entitled “Headlines & Deadlines” in 1991 in the United Kingdom. This compilation was re-released again in 1996 and in 1999, whilst North American fans waited for a Region 1 release. Why ? Because in the States they’re considered a “one hit wonder”.

Then there are the complications brought on by the mislabeling of regions by the retailer or distributor, like the “Toutes Zones” Johnny Hallyday DVD I purchased directly from his label, Universal Music France.

An All Region or Region 0 DVD would not require the circumventing of region coding, complying to the provision proposed by Bill C-32. But “Master Serie” was mislabeled as an All Regions DVD on the label’s site, the DVD’s package and on the DVD.

I believe the circumvention provisions should reflect the fact that DVDs that are coded other than Region 0 and 1 can be legally imported by Canadians, resulting in the collection of rights in the country from which the products were purchased.

The copyright holders of the content found on these DVDs were compensated for transactions that would not have taken place if protectionist measures were in place restricting the distribution of Region 2 DVDs to Canadians. And no restrictions in regards to the distribution of the aforementioned Region 2 DVDs were imposed on or implemented by the re-known online retailers I purchased them from (Universal Music France, Alapage, Amazon U.K).

I will be contacting my local Member of Parliament on this issue and will be posting updates in this blog.

You can find your local MP’s contact information by postal code.

Bill C-32 was introduced by Tony Clement, Minister of Industry.