Readers of the Toronto Star will know that the paper recently published a letter to the editor from CRIA President Graham Henderson responding to my column on the privacy implications of the Federal Court of Appeal file sharing case. Henderson didn't think much of the column, opening his letter by stating that "Michael Geist's on-going vendetta against the record industry assumes new dimensions each week."
The Star edited some of the rest of the letter, but CRIA has now posted it in full on its site. The first paragraph actually continues in the same vein, with Henderson stating that "I think readers are entitled to start asking what motive is at the root of this single minded, attack dog mentality."
Since the start of the year, I've written 23 columns for the Star. They've addressed a wide range of issues including a national online library, patents, Internet pharmacies, broadband access, Internet telephony, spam, lawful access, ISP accountability, and censorship in China. Two columns have focused on intellectual property issues in developing countries and three have discussed privacy law issues. In fact, only seven columns considered copyright matters and just three columns explicitly focus on the music industry and copyright.
My motivations are pretty transparent. I am concerned about the impact of potential copyright reforms advocated by CRIA that have been shown elsewhere to have a negative impact on privacy, free speech, creativity, security, and research. I am concerned with policies that do little to benefit Canadian creators while sending increasing royalties to large multinational corporations based outside the country. I am concerned by public rhetoric that seeks to label as "theft" activities that may be permissible under Canadian law. I am concerned that Canadian copyright laws are not focused on policies that could genuinely foster greater Canadian creativity and access to Canadian culture.
I would argue that CRIA's motivations are also pretty transparent. Consider the development of the private copying levy in Canada and the ongoing debate on file sharing.
The most complete early analysis of a private copying system, then called audio home taping, came from a government study released in 1982. The study noted the emergence of home recording equipment and the recording industry concerns that home taping would result in declining revenues from the industry and royalties for the artists. A detailed economic analysis found that the impact on the industry was actually relatively small, however, leading the conclusion that it was premature to introduce a home taping compensation levy.
The recording industry was undaunted however and increased the pressure for a levy system. A Parliamentary Committee signaled its agreement in 1986, finding that the proliferation of audio recording devices had ensured that home copying was a real threat to the traditional revenue streams of copyright owners.
The committee also made it clear that the levy system should be technology neutral. It presciently noted that "future recording devices might not use blank tape, thereby making a tape royalty obsolete. The work could be stored in a computer memory with no independent material support at all." The committee therefore declined to limit the levy to any particular technology, instead proposing that the royalty "be based upon both the material support used to store the work and on the machine used to make the reproduction."
CRIA applauded the decision with then President Brian Robertson claiming that home copying was costing the industry between $250 to $600 million per year. He stated that for every one purchased record, there was one record taped at home without compensation, leading to "no growth" in the industry between 1979 and 1986.
By 1988 the big issue was rental rights and the industry's claims that CD rental shops were imminent and were going to create great harm. In a brief to the federal government, CRIA labeled the music rental business "the new piracy" and called for legislative action, which it ultimately got, before the practice became uncontrollable.
In 1992, CRIA was focused on the combination of the digital compact cassette and home taping. CRIA called for a halt to the DCC until a deal could be worked on home taping, with Robertson claiming that "for the general public, music is the most easily stolen product in the world."
In 1994, Canadian Heritage established the Task Force on the Future of the Canadian Music Industry, co-chaired by Robertson and CIRPA President Brian Chater. The Task Force concluded that delays in copyright reform "threatens to seriously penalize Canada's music industry, to deprive Canadian performers of the proceeds from their work, of their moral and financial rights, and to place Canada in the ranks of the under developed countries in terms of protection of intellectual property."
Based on claims that three private copies were now being made for every retail sale CD, the Task Force recommended enacting private copying levies, neighbouring rights, and the transfer of exclusive responsibility for copyright policy to Canadian Heritage. Within a year of the Task Force's 1996 final report, the music industry got two out of three.
Just prior to the report's release in 1995, CRIA organized a lobby day on Parliament Hill that included Tom Cochrane, Bryan Adams, and Anne Murray who said that changes to Canada's copyright law would be an investment "in an sounder foundation for Canadian artists and music." Robertson added that "if (neighboring) rights were in place, artists and record companies would have the ability to control their product. Canada's so far behind the rest of the world, it's only catching up on legislation that should have been in place 20 to 25 years ago."
In 1996, the government introduced legislation to create a private copying system. CRIA responded by celebrating 15 years of lobbying efforts. However, Robertson lamented that "I think the lack of it over the past 10 years has literally killed dozens of (music) careers. I think this is going to make a huge difference for artists, in terms of letting them make one more album or do one more tour that will give them the ability to prolong and develop their careers."
If all of this sounds vaguely familiar, it is because Canadians have been living in a CRIA-led Groundhog Day ever since. While the industry got private copying, neighbouring rights, rental rights, and statutory damages, it now says it didn't get enough. For the past seven years, we have again heard louder rhetoric about the inadequacies of Canadian copyright law and claims that Canada ranks with the developing world in terms of copyright law, been treated to more Parliament Hill lobby days with Tom Cochrane, as well as seen ever growing claims about the damage of peer-to-peer file sharing on the industry (something even the OECD now disputes).
This week it is expected that the government will introduce yet more copyright reform. This time CRIA appears likely to get a making available right, legal protections for technological protection measures, a notice-and-notice system to address online infringement, protection for rights management information, the introduction of a reproduction right for performers of sound recordings, and an adjustment of the term of protection for sound recordings.
Not bad. Yet last week Graham Henderson said that the proposed bill "doesn't provide the adequate legal framework we would like."
If the past 25 years are any indication, it seems to me that we need debate on the substance of the reforms, not on anyone's motivations, which are plain for all to see.