private copying

RIAA Responds To Protests

Well, a RIAA spokesperson had responded to the SOPA and PIPA protests in the NY Times. And of course, it’s the same old rhetoric.

Apparently he thinks everyone that opposed the Stop Online Piracy Act and Protect IP Act were either severely misinformed or want everything for free.

Of course RIAA are doing their best to “inform” people of their spin, that the industry is suffering. And by “inform” I mean suing Americans and foreigners willy nilly. But it is obvious that the public is not buying their claims.

For two decades every expert in the industry has stated the music industry would shift from physical formats to digital. But they resisted, to their detriment, and wish to continue resisting even when international music sales are growing substantially.

It’s obvious that they’re crying foul on behalf of the manufacturers, who will be unable to capitalize on format shifts in the past.

These manufacturers, many of which are owned by the labels, profited from format shifting, when people upgraded from vinyl to 8-track, from 8-track to cassette and from cassette to CD. And if they had their way they’d get a royalty whenever someone copies a recording to a device.

This is an industry that thinks that because you aren’t paying to copy your legally purchased mp3s to your mp3 player that you are a “thief”. That you are just like those pirates that mass produce CDs and DVDs and sell them in pawn shops, farmer’s markets and online.

No ? Then why are these people lobbying the current government in Canada to disallow private copying of copy protected works with Bill C-11 ? Why are attempting to push a levy mp3 players in Canada ?

We’ve heard the excuse that some people use the internet to download mp3 files illegally. But have they ever produced a study proving the majority of these illegally downloaded recordings end up on mp3 players ?

Of course not.

They don’t want to distinguish previewing and private copying from illegal downloads. They’d rather just use one word, “infringement“, to gloss over the issues and call pretty much everything piracy to get their way with the technologically inept politicians.

Some members of the industry are also currently attempting to obtain royalties for the 30 second previews retailers posts online in Canada, in order to disqualify music downloads as “fair dealing” research for Canadians.

The Stop Online Piracy Act, Protect IP Act and Anti-Counterfeiting Trade Agreement impose RIAA‘s views in regards to fair dealing and private copying on foreign nations.

They circumvent the democratic processes of nations who have established their own legislation on these subjects and an undue influence in regards to policy is imposed on nations that are undergoing copyright reforms.

It is obvious that the inflexibility of ATCA in regards to fair dealing and copy protection is causing the current government in Canada to refuse to alter Bill C-11 in accordance to the public’s wishes.

This proves that our political process has been polluted by foreign interests and SOPA/Protect IP like legislation in the United States could further undermine Canada’s democracy and sovereignty.

When Bill C-11 was introduced as Bill C-32, the Canadian Bar Association openly questioned the workability and purpose of some of the provisions, including the fair dealing and technological protection measure provisions.

They also questioned the need for additional legislation to address unauthorized distribution on the internet, so there is clearly a disconnect in-between the people of Canada and the legislation’s proponents.

This is clearly the case in the United States as well.

SOPA Lives With Bill C-11 And ACTA

Protests against the Anti-Counterfeiting Trade Agreement are under way in Europe.

Like the Stop Online Piracy Act and Protect IP Act legislation in the United States, this international trade agreement contains many questionable regulations in regards to the enforcement of intellectual property laws on the internet.

Furthermore, Section 5 (Paragraph 6) of this agreement explicitly forbids the circumvention of copy protection regardless of the private copying exemptions that our government may enable in the future :

6. In order to provide the adequate legal protection and effective legal remedies referred to in paragraph 5, each Party shall provide protection at least against:

(a) to the extent provided by its law:

(i) the unauthorized circumvention of an effective technological measure carried out knowingly or with reasonable grounds to know; and

(ii) the offering to the public by marketing of a device or product, including computer programs, or a service, as a means of circumventing an effective technological measure; and

(b) the manufacture, importation, or distribution of a device or product, including computer programs, or provision of a service that:

(i) is primarily designed or produced for the purpose of circumventing an effective technological measure; or

(ii) has only a limited commercially significant purpose other than circumventing an effective technological measure.

Region coded DVDs and Blu-Rays are copy protected so this clause criminalizes the copying of these DVDs and Blu-Rays to other devices.

It also criminalizes the distribution of devices that have been altered to play material from outside of a person’s region and software that can be used to bypass copy protection on music and film.

Unfortunately, Bill C-11‘s technological protection measures provisions were written to be compatible with this agreement, prior to any consultation with the public. And the current government in Canada insists on keeping this provision in when public consultations for Bill C-32 have resulted in overwhelming opposition and concern to this provision and others.

Private copying has been part of our Copyright Act since 1997. We have been able to copy music for private use, as defined by Section 80 of our copyright act since then. But apparently the current government believes it is impossible to grant an ability to copy material that is copy protected for private use, even when the current limitations stipulated in our copyright act could suffice.

According to these limitations material that is copied for private use cannot be sold or rented out, “or by way of trade exposing or offering for sale or rental”. It cannot be distributed, “whether or not for the purpose of trade”, nor communicated “to the public by telecommunication”, nor performed or “caused to be performed in public”.

Private copying clearly does NOT enable internet piracy or the illicit trade of counterfeit DVDs and Blu-Rays, so I see no reason as to why the current government insists on adding a specific provision to our Copyright Act to disallow the circumvention of technological protection measures for the reproduction of material for private purposes.

To listen to or view copy protected material a consumer must use software that decrypts and copies the resulting copy to memory or a hard drive for playback. And though temporary the resulting file is a copy from which copy protection was circumvented by a software program or device.

If an exemption for private copying were allowed, the recipient would be the same and the circumvention would be the same. The resulting copy would again be copied to a device or memory for playback, with very strict limitations in regards to distribution.

ACTA and Bill C-11 proposes the criminalization of software and devices using this premise that these can be used for illegal purposes when in reality any software or device used to decrypt copy protected CDs, DVDs and Blu-Ray discs can be used for illegal purposes.

In the case of telecommunications, anyone can stream music and film from legally purchased devices to the net. They can also play music or films in public without paying the necessary license fees using any DVD or Blu-Ray player.

In essence it pushes both presumptions of guilt in regards to the Canadian consumer and prejudice in regards to the manufacturers of DVD and Blu-Ray decrypting software. And regardless of the idiotic rhetoric, many individuals and associations are concerned about the precedents these set.

It is important as a Canadian consumer that you voice your concerns in regards to ACTA and Bill C-11 to your local Member of Parliament as soon as possible. The public need to make it clear that they will not stand for unbalanced copyright reform in Canada.

Copyright Legislation Re-Introduced

The Conservative Government has tabled Bill C-11, the “Copyright Modernization Act“. And as predicted this legislation mirrors the previously introduced Bill C-32.

Consequently the issues with Bill C-32 remain, including the digital lock provisions that have the potential to disable the consumer’s ability to copy material for private use.

Overall the bill is a step in the right direction. But these digital lock provisions should be amended to allow the circumvention of copy protection for private copying, as defined by our copyright act.

Copy protection failed in the music industry. They’ve experimented with consumers, failed miserably, and it’s time to move on.

Shortened hearings are expected but the NDP have said they want to table amendments enabling private copying of copy protected works.

Please contact your local Member Of Parliament to voice your comments and concerns in regards to Bill C-11.

Thank you.

United Kingdom To Introduce Private Copying

According to this document, it appears that the United Kingdom will introduce private copying legislation shortly, without the levies we’ve had here in Canada since the late 90’s.

Details on what they’re considering can be found on pages 7 and 8.

Retail Council Wants Levy Scrapped

According to The Wire, the Retail Council Of Canada has formally asked the Conservative government to scrap the blank audio media levy.

The group had previously stated in a March 12th, 2010 press release that they oppose any extention of the levy, stating that it would disadvantage Canadian retailers. And in this press release they stated they believed this “anti-competitive tax should be repealed altogether” :

Retailers contend the levy system is obsolete in an age of rapid technological change and does nothing to support and protect Canadian artists.”

I agree. And strangely enough the proponants of the levy also agree because they’re constantly trying to levy the next technology by stating the previous technology is no longer being used to copy music.

In less than five years the current levy was made obsolete, resulting in the following question on the savethelevy.ca web site : “It’s 2011 … who uses CD-Rs to copy music anymore?”

Well, cell phones and tablets are now being used to play back music files and cloud services will stream music to these devices shortly in Canada, making mp3 player obsolete soon. But of course like the Retail Council of Canada I believe the CPCC’s arguements are fundementally flawed :

Retail Council of Canada calls for changes to the Copyright Act to provide an explicit exception recognizing that private copying for archival or backup purposes and for format shifting purposes by individuals of legitimately acquired copies of works or sound recordings and movies is legal. This should include private copying for such purposes as platform shifting, backup purposes, or the avoidance of obsolescence.”

Remuneration is not required from consumers that have purchased music from online music retailers whose formats imply use on portable music devices in which electronic memory cards can be placed or embedded. And individuals that make personal copies for private use from recordings they’ve purchased fail to qualify as distributors because the recordings and resulting copies remain in their possession, regardless of the format shifting involved.

Private copying in no way infringes copyright, as defined by Part III, Section 27 of the Copyright Act. And a levy is not required because royalties have already been collected from the sale of legally purchased compact discs or music files, from which the private copies are made.

The alledged prominence of piracy on the internet in no way make devices like mp3 players conform to the term “blank audio media”, as defined by the Copyright Act. And the Copyright Board have already ruled that memory cards also did not qualify in a December 12th, 2003 decision.

ACTRA Wants Hard Drives/Mp3 Players Levied

The Alliance of Canadian Cinema, Television and Radio Artists has asked the government to not only extend the private copying levy to Mp3 players but want hard drives levied and the fair dealing exemptions for educational institutions provisions dropped.

In a press release issued on November 16th, the organization claims that Bill C-32 “rips millions of dollars from creators’ pockets”. And in a November 5th press release they also state “Institutions pay the full cost of desks, computers and teacher salaries, why would they not pay for the content deemed valuable enough to use in their classrooms?

Well, according to the Private Copying amendments the items currently being levied are primarily used as recording media. Mp3 players failed to be levied because they were not technically recording media and hard drives and flash drives failed to be levied because they were not primarily used to copy audio recordings.

Has the situation changed since the last rulings ? No.

ACTRA may claim that Bill C-32 “isn’t good for consumers” but if the Copyright Act were altered to enable the levying of devices like Mp3 players and hard drives, the consumer would be paying significantly more via the manufacturers and importers of these devices.

One only has to review the exorbitant rates the Canadian Private Copying Collective had applied for on the levied media in the past to know that the Canadian consumer is secondary.

Does $21 per gig on mp3 players sound consumer friendly ? How about $2.27 per recordable/rewritable DVD ? Those were the requested rates for 2003/2004, as published in the March 9th, 2002 Supplement of the Canada Gazette (Supplement, Vol. 136, No. 10).

These proposed levies are in no way good for the consumer because it opens the door for additional levies on other products.

ACTRA not only represents radio artists but performers in film and television. And their November 16th statement they claim the film, television, video game and book industries would also face losses because of Bill C-32 :

If Canadian cultural industries are to keep producing films, TV programs, video games, music and books, we can’t afford a bill like C-32 that rips millions of dollars from creators’ pockets“.

The devices on which films, TV programs, video games and ebooks are recorded, downloaded and/or displayed are not currently levied and Bill C-32 calls for an ability by Canadian consumers to perform backups of some of this material.

What will be levied next ?