The IFPI, which represents the major music labels internationally, is out with its annual piracy report. Canada gets a fair amount of attention as we are one of ten priority countries. In explaining the situation in Canada, the IFPI resorts to a series of mischaracterizations and omissions that piggyback CRIA claims and therefore demand a rebuttal.
The report begins with: "Legitimate online services have struggled in the face of outdated copyright laws and the resulting widespread digital piracy."
While the question of whether Canada's online services have struggled is open to debate, attributing the cause copyright laws is plainly wrong. There are a wide range of factors – later start in the market, fewer providers, smaller selection, and less interest in e-commerce are all undoubtedly additional factors. So too is the private copying levy which may be viewed by some as legitimate competitor given that more than $150 million has been collected for artists and the industry.
"Canada has yet to fulfill its longstanding commitment to ratify the 1996 WIPO Treaties to protect digital copyright."
Actually, Canada has no legal commitment to ratify the treaties. Signing an international treaty represents no more than a show of support; the commitments come after ratification.
"The Supreme Court of Canada, in a landmark case on online music, lamented that Canadian courts will continue to "struggle" to apply outdated copyright laws until Canada ratifies the WIPO Treaties."
Not exactly. The court, which has also stated that "excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization", noted in the context of intermediary liability that "Parliament's response to the World Intellectual Property Organization's Copyright Treaty (1996) and the Performances and Phonograms Treaty (1996), remains to be seen. In the meantime, the courts must struggle to transpose a Copyright Act designed to implement the Berne Convention for the Protection of Literary and Artistic Works of 1886, as revised in Berlin in 1908, and subsequent piecemeal amendments, to the information age, and to technologies undreamt of by those early legislators."
"The OECD reports that Canada has the highest per capita incidence of unauthorised file swapping in the world."
Not true. While CRIA regularly makes this claim, the 2004 OECD report refers only to P2P usage, without reaching conclusions on whether the activity infringes copyright. In fact, the same report specifically notes that "P2P is not simply downloading of MP3 files. In fact, file sharing has already moved to the next level and will be applied for all types of on-line information, data distribution, grid computing and distributed file systems." The OECD data captured all of these activites and made no claim that Canada has the highest per capital incidence of unauthorized file swapping in the world.
After blaming file sharing on reduced sales, the IFPI report then says:
"National surveys reveal that of those Canadians spending less on music products, by far the largest single reason cited was downloading/file sharing/CD burning."
Leaving aside the fact that all of the above may be lawful, a more recent CRIA commissioned study by Pollara actually arrived at different conclusions. As I documented last March, when asked why they were spending less on music, survey respondents cited price (16%), nothing of interest (14%), lack of time (13%), downloading (10%), collection is big enough (9%), don't buy (7%), listen to radio (7%), change in tastes (6%), no CD player (3%), have an MP3 player (2%), lack of opportunity to buy (2%), watch more tv (2%), age (1%), only buy what I like (1%).
The remainder of the Canadian comments raise Jully Black (again), the trade pressure from the U.S., and an incorrect claim that eight years ago Canada committed to prompt WIPO Treaty ratification. Not surprisingly, there are no references to the emergence of the CMCC and dozens of leading Canadian artists who have come out against suing fans and DRM, to the revenues from private copying, to the decision of Canada's six leading independent music labels to leave CRIA, to a Canadian Heritage study that found that Canadian sound recording industry grew steadily from 1999 to 2004, or to the fact that 90 percent of new Canadian music comes from independent labels, who are generally thriving under the current Copyright Act.