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Songwriters Bid To Legalize File Sharing Gets a Rewrite

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Monday March 23, 2009
In November 2007, the Songwriters Association of Canada shocked the music industry and many Canadians by proposing the full legalization of music file sharing.  The SAC proposal was based on the premise that file sharing was not going away, that lawsuits against file sharers do more harm than good, and that the continued emphasis on using digital locks to control copying has been a complete failure. In the view of thousands of Canadian songwriters, the better way forward was to encourage music sharing by monetizing it.  The SAC proposal envisioned a levy (five dollars per month was floated as a possibility) that would be used to compensate creators for the sharing.  In return, Canadians would be entitled to freely share music for non-commercial purposes.

The reaction to the SAC proposal was generally critical.  The recording industry rejected it out-of-hand, arguing that it violated international copyright law.  Consumer groups were also skeptical, noting that a mandatory universal levy would result in payments by non-music sharers, who would effectively subsidize those sharing music. Notwithstanding the criticism, the SAC persisted.  My weekly technology law column (Toronto Star version, homepage version) notes that last week, it quietly unveiled a revised version of the proposal at a public forum on copyright in Toronto.  The new version, which addresses many of these earlier criticisms, is far more promising and there are indications that the SAC may be joined by other creator organizations in pursuit of a legalization strategy.

The foundation of the proposal remains the same - the creation of a new right of remuneration for music file sharing in return for the consumer freedom to share an unlimited amount of music across all platforms including peer-to-peer networks, mobile devices, instant messaging, and even email.  The SAC notes that downloading music for non-commercial purposes is arguably already lawful in Canada due to the private copying levy, but that its proposal would cover more broadly all music file sharing activities.

The most important change to the SAC proposal is that it would now be voluntary for both creators and consumers.  Artists could choose to participate, thereby addressing international copyright law concerns about mandated participation.  The proposal also envisions providing consumers with the right to opt-out of the plan if they do not share music files. The voluntary approach - which resembles elements of a plan the Electronic Frontier Foundation began promoting in 2003 - should remove the consumer concerns associated with stiff monthly fees for non-music sharers.  While some artists may reject the plan, the SAC is betting that most will participate given the opportunity to benefit from a new source of revenue.

The SAC has also made changes to the pricing model, dropping the five dollar monthly fee and instead leaving the issue in the hands of the Copyright Board of Canada.  The Board would set the fee after input after full public hearings.

While these changes may address many criticisms, some issues remain, including fears that a music-only approach leaves open the prospect of future demands for levies on other forms of content such as video.

If last week's copyright public forum is any indication, other creator groups may be ready to join with the SAC in a broader proposal that covers video works as well.  ACTRA, which represents 21,000 Canadian performers, indicated its willingness to pursue a similar plan.  National Executive Director Stephen Waddell told the audience that solutions based on locking down content were failures and that it was time to explore other options such as collective licencing that would fully legalize sharing activities in return for creator compensation.

As creator groups begin to line up behind these proposals, the public may still need convincing.  A recent public opinion survey from Angus Reid Strategies found widespread Canadian opposition to new levy schemes, suggesting that even the revised SAC approach will be a tough sell.  With the willingness to move toward voluntary plans, however, we are witnessing a dramatic shift in attitude as groups abandon their reliance on outdated legislated solutions in favour of innovative new alternatives.
Comments (32)add comment

Justin Beach said:

My problem with it
My primary problem with it is the SAC hasn't made it clear how they would determine who got paid and how much. I don't want to see a system where music industry favorites get all they money while independents and DIY artists get nothing. I don't want to see a system where SAC membership is mandatory if you want to get paid and I have yet to see a really effective system for tracking who is sharing what and how often something is downloaded.

My suggestion looks more like this http://www.publicbroadcasting....t-pay.html
March 23, 2009

Devil's Advocate said:

...
Levies are just a trap.

All varieties of "content producers" or "distributors" will want their own built-in fee - everyone from songwriters to the MAFIAA will claim they have a right to be included. The total cost of an average user levy would want to be the equivalent of their internet bill, by the time everyone has stepped up.

And, what of the surtax we already have on Canadian-bought CDs?? Have any of the talks about pushing the levy schemes ever included a proposal to wave the CD fee?

Additionally, as long as the MAFIAA exists, owning the motherload of copyrights, they'll never cede the argument that file sharing is legal, will always continue to throw the monkey wrench into any proposal that would "decriminalize" it in any way.

Michael, do you realize every time someone uses words like "illegal file sharing" or "legalize file sharing", this only helps to perpetuate the lie that file sharing is not ALREADY LEGAL.

By allowing this piece of corporate propaganda to continue to spread, we wrongly cause others to confuse the difference between "file sharing" and "copyright infringement", which are 2 completely separate ideas. One is a legal use of an internet connection, while the other is an illegal act that individuals choose to commit while engaging in the legal use of their internet connections.

We should never allow the line between these 2 actions to become so blurred as we already have. It's no different than saying owning a car should be illegal (or first approved by MADD even before a first conviction) because "everyone's" driving drunk and people are getting hurt.

One is a legal activity, the other is an illegal product or use of that activity by a selective participant. The quicker we straighten out this "little bit of reality", the more appropriately we can deal with the issues surrounding it.

I find it appalling that the very ones who seem to be deciding how to solve all this are clueless to the principle.
March 23, 2009

Jason K said:

Not there yet..
"I find it appalling that the very ones who seem to be deciding how to solve all this are clueless to the principle."

I completely agree with this.


March 23, 2009

fair_n_hite_451 said:

Talk about a honeypot for rights holders
Since the ownership of the various rights to any given piece of entertainment is not only convoluted, but incomprehensible to the layman (what with copyright on lyrics, performance rights on vocals and instrumentation, reproduction rights by corporate entities), I can virtually guarantee this will fail.

Some group will opt out and say "this does not include OUR right, which we choose not to release". Then anyone who does pay - especially if it's voluntary - gets a big target painted on their back. The holdout will obtain the list of contributors, take them to court, and use the payments themselves as an admission of guilt.
March 23, 2009

Virendar said:

Finnally
Now USA just has to follow suite, and everything will be good as grain
www.animefushigi.com
March 23, 2009

CHRONOSS said:

WHO CARES
Who cares about legalizing it when they make it so expensive to have internet a levy wold be unconscionable

5$ is too much if you consider scale and a world using the net
its worth not hundreds a millions world wide BUT dozens a billions
THEY NEED TO STOP GREED
March 23, 2009

Jesse said:

...
One other problem with this plan is the use of the concept "non-commercial." Where does something stop/start being commercial? If you run a blog that has advertisements, is that commercial? Also, why is there even an issue with commercial use? If the files are now freely available (legally, following this scheme) then what is the argument against allowing people to monetize something that anyone could easily acquired elsewhere? Water is freely available in Canada; if people want to try to monetize bottled water why should we get mad?
March 23, 2009

1984 said:

More importantly
Following data from an INDEPENDENT Economic Organization OECD Organization for Economic Co-operation and Development same as Statistics Canada:

Health Care : 214 doctors per 100,000 population ( 54th. Place in the world ) ; in 1970 Canada had the 2nd. place. Most European countries have over 300 doctors per 100,000 and some over 400, even Cuba has more doctors with 591 doctors x 100,000 pop.

Poverty: of all the 26 most developed country Canada is almost at the bottom 22nd. place in poverty ( 12.8% of Canadians live in poverty ) and the US is a the very bottom with 17% . The top countries with less poverty are ALL European countries. Close to 800,000 Canadians rely now on food banks.

Social spending: in 25th. place of all developed countries with only 15% of GDP being spent in social programs ( it used to be 21.3 % in 1992 ). The US is in 26th. place. At the top of the list are European countries which spend between 23 % to 31 % of their GDP.

Employment: low paid jobs in Canada make 21% of all jobs compared to only 8 to 12% in most European countries. Part time employment 18.2 % in Canada compared to 3 to 10% in most European countries. Now the Service Sector accounts for 75% of our Economy and manufacturing for 25% -prior to the 1990’s it used to be the other way around.

Employment Insurance: in the 1980’s 86% of applicants received Employment insurance nowadays only 40% - we rank now in 22nd. place of all developed countries; Canada’s replacement rate is also less than half than most European countries.

Corporate profits: have jumped from 4.5% of GDP in 1990 to 14.2% in 2007 totaling $ 560 Billion while wages have DECLINED as a % of GDP from 55.4% in 1990 to only 49.2% in 2006 - a decline of $ 72 billion dollars in the share of GDP
March 24, 2009

Chris said:

...
"Michael, do you realize every time someone uses words like "illegal file sharing" or "legalize file sharing", this only helps to perpetuate the lie that file sharing is not ALREADY LEGAL."

Copyright means you can't copy something without the owner's permission. If you acquire a song on your computer because someone else "shared" it with you, you now have a copy of it on your computer, and you have also violated copyright.

I hate to alarm you, but that's illegal.
March 24, 2009

infojunkie said:

Last.fm to charge a subscription fee
In somehow related news, Last.fm is planning to charge a subscription fee to play their songs (http://blog.last.fm/2009/03/24/lastfm-radio-announcement). They are exempting US, UK and Germany netizens from the fee, probably to soften the blow to their user base, and I personally hope this exemption will be lifted if the drop in users is not too significant. I imagine that these 3 countries contain the most Last.fm users, so they're trying this move on the rest of us.

But beyond the point of the exemption, I believe that this model will eventually take hold with other providers of premium content - hopefully towards reaching a fair equilibrium beyond content production and consumption.
March 24, 2009

John said:

...
Chris wrote: "Copyright means you can't copy something without the owner's permission. If you acquire a song on your computer because someone else "shared" it with you, you now have a copy of it on your computer, and you have also violated copyright."

If you acquire a file on your computer because someone else shared it with you, you now have a copy of it. As long as the person who shared it with you had sufficient copyright authority to legally do that sharing, then the file transfer was legal.

File sharing is *NOT* inherently illegal, no matter how much the RIAA pretends that it is. Personally, I have a done a lot of file sharing downloads - all of them legal. (Generally distributions of software that is licensed for free redistribution; sometimes copywritten text with a creartive commons license permitting free distribution. In both of these cases, the original authors retain the copyright ownership on the work, and have put limits on copying but still do not require individual permission for making a copy in most circumstances.)

File sharing can be illegal in some circumstances, but pretending that it is always and necessarily illegal is greatly antagonistic to people like me who know otherwise. I know I am not a criminal - the RIAAs who keep claiming that I am are not endearing themselves or their message to me at all.
March 25, 2009

Wrong Direction said:

...
"The SAC proposal envisioned a levy (five dollars per month was floated as a possibility)"
The problem with having a levy is that it will increase when demand subsides, just like the tariff on CD-Rs:
http://oto-online.com/index.php?option=com_content&task=view&id=1245&Itemid=42

They weren't getting enough money from sales of the CD-Rs, but since are accustomed to collecting 30 million annually, up goes the rate! (Those suckers who are still buying overpriced, obsolete media have to subsidise the rest of us.)

When the ISP charges approach unaffordable levels, internet users will go offline, then the rest of us will have to fork out even more to make up for the loss.

And what about every other type of creation that is shared online? Software, video, photography... do they not have the same rights as the music creators?
March 25, 2009

Chris said:

dont change the subject
"If you acquire a file on your computer because someone else shared it with you, you now have a copy of it. As long as the person who shared it with you had sufficient copyright authority to legally do that sharing, then the file transfer was legal."

Don't change the subject. We're not talking about sharing works that have been cleared by the copyright owner to be shared freely, and you know it. We're talking about music files, and I'd be willing to bet that the bulk of the music files on your computer are there because you copied them without the copyright owner's consent. In fact, the computer you copied them from no doubt also had them copied to it without the owner's consent.
March 25, 2009

Joe said:

...
I am not a lawyer, but I see a lot of issues with this:
If something is illegal, then even paying a $5 levy cannot make it legal. How can a law be selectively enforced to different people and still be called a law?

Rant:
Copyright is a social contract to exchange limited distribution right in return for making the "Art" public domain after a LIMITED period of time. All the copyright extensions are STEALING from the society.

May be they should make a music subscription site and offer people to download music for that $5 a month. This way people who pay at least get something back in return.
March 25, 2009

Devil's Advocate said:

@Chris...
You're still confusing the act of copyright infringment with the legal activity of file sharing.

"File Sharing" is to "Copyright Infringment" as "Knife" is to "Murder".

One is a legal tool, the other is an illegal act.

And, to expand on this, people are also being conditioned by the MAFIAA propaganda to believe that copyright infringement is a CRIMINAL OFFENSE. (It is civil infraction.)
March 25, 2009

Chris said:

lemme look at the back of a CD
I'm looking at the back of the new Metallica CD:

Warning: All rights reserved. Unauthorized reproduction, copying, and rental of this recording is prohibited by law.

And I'm pretty sure every single CD on my shelf says the same thing. You don't need to be a lawyer. Did anyone authorize you to make a copy of the recordings (what you misleadingly refer to as 'files') on your computer? I'm gonna guess no. There you have it. No one authorized you, so you broke the law. It's not only illegal it's immoral. You've been tricked into thinking that since you can do it and get away with it that it must be OK. But there's no question about it - if you have a song on your computer that you didn't pay for, then you stole it (unless of course the owner of the copyright told you it was OK, thus AUTHORIZING you to make a copy of his material).

You can all it 'file sharing' all you want and make it sound really nice and watered down, but if you don't own the file, then you've got no business sharing it. And in the case of music, you don't own the file. You have purchased a licence to play it, period. That doesn't give you the right to share it with a thousand other people. That's the whole point of copyright. All file sharing isn't illegal, I agree. But most of it is, particularly within the scope if this discussion, which largely applies to song files.


March 25, 2009

fair_n_hite_451 said:

So Chris - where do you stand on the blank media levy and the rules which
explicitly state that you can make a copy of a song for backup purposes - and don't explicitly state where that back up copy is to be held or how it is to be used? And that paying said levy makes the copy (but not the original share) legal as it has been bought and paid for?

Do you interpret those rules differently?
March 25, 2009

Devil's Advocate said:

Obviously, I'm just beating a dead horse
Going along with Chris' theory that file sharing only involves copyrighted material, I guess that means we have a laws we better start rewriting, and a shitload of things we better make illegal...

- Things that have been used to commit murder: guns knives, baseball bats, cars, pencils and pens, drinking glasses, all forms of cords and chains, (on and on)

- Things that have been used to facilitate theft: computers (of course!), credit cards, glass cutters, telescopes, do-it-yourself electronic kits, (yada, yada, yada)

After all, people use these tools to commit crimes of various magnitudes, therefore by Chris' logic, we should just blame the tools and summarily ban them all.

I wonder how many things would be left?

The fact is, Chris, you're just going over the same drivel about COPYRIGHT INFRINGEMENT, which really has nothing to do with the statement "File sharing is a legal tool".

Can you imagine if your power company were liable every time someone used the electricity to run an illegal meth lab and/or blow up a house with it??

People commit crimes.
It doesn't make the tools illegal.
March 25, 2009

Move on said:

...
"Warning: All rights reserved. Unauthorized reproduction, copying, and rental of this recording is prohibited by law."

Chris, you don't need the copyright owner's consent. We pay big music collectives $30 million a year for this.
It is called Private Copying, authorized by Canadian Law.
http://www.cb-cda.gc.ca/societies/index-e.html#copying

Now can we move on?
March 25, 2009

Gord said:

Make it a blanket welfare system.
We have blank CD fees, hall rental Socan fees, now they propose internet fees. Like others have said, every different industry will look at this as a cash cow and come begging to the government looking for a handout. The local newspaper even hinted that the newspaper
industry should get government protection!
I've heard that painters are not allowed to sell their own work in Toronto unless they pay an artist guild fee!
Should we pay the Grandmother's Guild for the privilege of knitting a sweater for Uncle Fred?

Rather than having dozens of parallel taxation and payout systems, why not just bump up the GST, and put everyone in the country on welfare or unemployment insurance?

It's really quite simple: Do Not Protect Obsolete Business Models With Laws!

We want to be able to vote with our wallets. These tax schemes take away my freedom of choice.
March 25, 2009

Imagine said:

...
What would Canada be like if we tossed out all the copyright laws, tariffs & fees that all go to Music?

How much money would we as Canadians save?

All the people who work at Collectives could do something else for a living - maybe go on welfare.
Most musicians would be no further behind.
The rest of us Canadians would have all kinds of disposable income to go to the now-cheaper concerts and buy lots of merch. Yipeeeeee!
More concerts, more music sharing, more merch sales, more music.

More money for artists.

March 25, 2009

Chris said:

guns con't kill people
I'm not going to pursue the 'guns don't kill people, people kill people' argument with you DA, the article above is talking specifically about music file sharing, and I've touched on this in an earlier post.

As far as the blank media levy goes, I hate it. It penalizes those who use media for valid (data backup, etc.) purposes, and there's no way of knowing who's copying what, so the artist whose material is being pirated may not even be reimbursed. On top of that, it makes people like Move on think that it's now OK to make illegal copies of copyright works. Also, I don't think anyone is going to object to someone making a backup copy of their work, wherever it may be stored. The infringement happens when you pass a copy of that on to your friends, or in the case of file 'sharing' millions of people on the internet. Further, I don't think that the blank media levy makes it legal to make copies of copyright material, it's merely an effort to recover the lost revenue that results from such action.

March 25, 2009

Chris said:

Response to Move On
From the CPCC website:

"Private copying is the subject of Part VIII of Canada's Copyright Act. It has a very specific, and limited, meaning. A "private copy" is a copy of a track, or a substantial part of a track, of recorded music that is made by an individual for his or her own personal use. A compilation of favorite tracks is a good example of how people typically use private copies. In contrast, a copy made for someone else or for any purpose other than the copier's own use is not a private copy."

I think it's fairly clear there that the person making the copy already has a legitimate copy of the song in question:

"In contrast, a copy made for someone else or for any purpose other than the copier's own use is not a private copy."

So much for copying being legal...

March 25, 2009

Devil's Advocate said:

Clue-resistant
"I'm not going to pursue the... argument with you DA, the article above is talking specifically about music file sharing..."

The article talks about file sharing, and used the INACCURATE phrase "legalize file sharing" right in the title. It was THAT phrase I commented on, and it was my comment you started arguing with.

You can go on about "copyright infringement" all you want. It is just idiotic to apply it to against my point, which merely stated is: FILE SHARING is not illegal.
March 25, 2009

passer-by said:

Private Copy
"I think it's fairly clear there that the person making the copy already has a legitimate copy of the song in question"

No, it's not. By that language it would be equally valid to copy a song broadcast by some method that I absolutely do not have a prior copy of. Likewise, based on your quote, if *I* make a copy of a recorded song that resides on a computer, even someone else's computer, I have not violated Canadian copyright law.

However, the minute I ask *you* to make a copy for me, and you do so (and then provide it to me), you have violated the law, as it is represented in your quote.

More interesting question. If I cause your computer to remotely provide me with a copy of a song, (say, using a P2P program of your choice) who makes a copy? Me? You? Both? ;)
March 26, 2009

Chris said:

interesting interpretation
"However, the minute I ask *you* to make a copy for me, and you do so (and then provide it to me), you have violated the law, as it is represented in your quote."

First of all, it's not my quote, it came from the CPCC. I agree the language is oddly ambiguous, but do you honestly believe that it's legal for me to make a copy of a CD that you own, but illegal for you to make a copy of it for me? The concept is ridiculous. That's why it's inplicit in the statement that the person actually already has a copy of the CD in question. Simple logic.

"More interesting question. If I cause your computer to remotely provide me with a copy of a song, (say, using a P2P program of your choice) who makes a copy? Me? You? Both? ;)"

You're not seriously pondering this question are you? Let me help you. Did I go on your computer and download a song from my computer? No - you were on your computer and you downloaded it from mine, thus you made the copy.

Hope this helps clarify some things.
March 26, 2009

passer-by said:

Quote attribution
You're right, the quote originates exclusively from the CPCC and my post attributed it to you.

My interpretation stands that by the language given, any copy I make for personal use, even from someone else's source, would be valid. Whereas any copy somebody else makes for my personal use is infringing. My (minimal) experience with law has lead me to believe that there is no room for implicit assumption (no matter how reasonable), only the explicit letter of the law, thus by the letter offered, so have I offered my interpretation.

The download question is a serious question, but one I admittedly ponder lightly :P. The reason is this: when I download a song from another computer, I am in fact asking that computer to send me a copy, which it then does (presumably.) Add the fact that 99% of the time, I don`t make the decision to run the software that sends that copy (more specifically, I have no legitimate ability to run code on that computer at all), It could be feasibly argued that the only copying action I make is local to my own machine, and that whoever made the decision to run the software that sent me data, is responsible for making the copy and then sending it to me.

Yes, that's convoluted (horribly so). But the reality is, mixing computer science with the law currently seems to lead down some fairly twisted paths.
March 26, 2009

Wikipedia said:

...
See:
http://en.wikipedia.org/wiki/F...in_Canada

"Important distinctions have been made regarding the legality of downloading versus uploading copyrighted material as well as "musical works" versus other copyrighted material. In general, the unauthorized copying or distribution of copyrighted material, whether for profit or for personal use, is illegal under Canada's Copyright Act. [2] However, certain exemptions are made for fair dealing copying of small portions of copyrighted works, for activities such as private study started in 1982, criticism, and news reporting.

Furthermore, the Act contains a Private Copying exception that makes it legal to copy a sound recording onto an "audio recording medium" for the personal use of the person making the copy. This is supported by a levy on blank audio recording media, which is distributed to record labels and musicians.[3]

While the unauthorized copying - including downloading or uploading - of complete copyrighted works such as books, movies, or software is illegal under the Act, the situation regarding music files is more complex, due to the Private Copying exemption."
March 26, 2009

Chris said:

confusing
Man, that's confusing. It's actually a good example of why I don't let laws and legislation decide right from wrong. Paragraph 1 seems to be saying downloading and uploading is illegal, while paragraph 2 is more ambiguous and doesn't define how the person got the sound recording to make the copy in the first place, then paragraph 3 says 'the whole thing is rather complicated'.

Forget the legislation and apply simple logic:

Did I buy the sound recording?
Did I create the sound recording?
Did the owner of the sound recording give it to me?

If you answered no to all 3 of these questions, then you stole it.

March 26, 2009

Jayson said:

OK PEOPLE!!! Did anyone notice that only the middle men are complaining?
Artist Wants levy, users want levy and freedom... ok... but ISP's, Music companies and everyone in the system to capitalize off the backs of artists and consumers is crying fowl. WTF. I am going to prepose something else. I propose we line up all these middle men and call them the thieves and throw them in jail.
March 28, 2009

Devil's Advocate said:

@Jayson
"Artists want levies..."
- Not really

"...users want levies..."
- Definitely false.

"...line up all these middle men and call them the thieves..."
- ABSOLUTELY!
March 30, 2009

Earthling said:

~ Interesting Article ~
A History of Downloading Music: What Do You Own?

http://www.problogs.com/Post4093.htm

July 01, 2009

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