Miranda Mulholland, a Toronto-based musician and music label owner, delivered an exceptionally passionate, accessible, and deeply personal keynote speech last week to the Economic Club of Canada. Mulholland’s talk was notable not only for providing an artist’s perspective, but for coming ready with next steps for everyone. She urged artists to create and protect their intellectual property, consumers to create playlists, write reviews, go to shows, and subscribe to digital music services, the music industry to be upfront about payment, to better support artists (including providing daycare services), and to pay for tickets to their own artists (Kate Taylor offered her take on the talk here, which includes an incredible comment from Music Canada that it wants only a level playing field, not public money. Music Canada has spent the last few years successfully lobbying for tens of millions in taxpayer support from provincial governments).
Given the active support from Music Canada for the event, her recommendations for policy makers were a core part of her message and largely mirror those of the industry. Unlike the 2010-2012 copyright reform process, piracy is no longer a key issue. Indeed, the issue of peer-to-peer file sharing and unauthorized downloading was not even mentioned in the speech. With the Canadian digital music market enjoying remarkable growth – Canada leaped ahead of Australia last year to become the 6th largest music market in the world and SOCAN generated record revenues – the industry focus is no longer on whether the public is paying for music (they are) but whether they are paying enough.
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Canada last overhauled its copyright law in 2012, bringing to a conclusion more than a decade of failed bills and lobbying pressure. The public debate over the Copyright Modernization Act was often framed by disputed claims that Canada was weak on piracy, with critics arguing that updated laws were needed to crack down on copyright infringement. As the government prepares to conduct a statutorily-mandated review of the law later this year, the landscape has shifted dramatically with court cases and industry data confirming that Canada is now home to some of the toughest anti-piracy rules in the world.
My Globe and Mail column notes that the change in Canadian law is best exemplified by a ruling last week from the Federal Court of Canada involving the sale and distribution of “modchips”, which can be used to circumvent digital controls on video game consoles. Nintendo filed a lawsuit against a modchip retailer in 2016, arguing that the distribution of modchips violated the law, even without any evidence of actual copying.
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The Federal Court of Canada has issued a massive damage award in the first major Canadian digital lock copyright ruling involving circumvention of technological protection measures. The ruling, which is the first to conduct an extensive examination of the anti-circumvention rules established in 2012, adopts expansive interpretations to the digital lock protections and narrow views of the exceptions. The case confirms that Canada has tough anti-piracy laws with one of the most aggressive digital lock laws in the world and will fuel calls to re-examine the effectiveness of the anti-circumvention exceptions in the 2017 copyright review.
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The U.S. DMCA notice-and-takedown system has generated heated debate for many years with supporters arguing that the safe harbour is essential, while rights holder critics countering that the growing number of takedown notices sent to Google illustrates mounting piracy concerns. In recent months, there have been several reports that raise questions about the reliability of takedown notices. A study released last year by the University of California, Berkeley and Columbia University found that approximately 30% of notices were questionable, while TorrentFreak report this week identified tens of millions of fake DMCA takedown notices sent to Google on a website with virtually no traffic. An earlier report also raised questions about dubious takedown practices.
Yet those reports pale in comparison to data just released by Google in its submission to the Register of Copyrights as part of the review of the DMCA notice-and-takedown system. Google reports that the overwhelming majority of takedown notices sent to Google Search through its Trusted Copyright Removal Program do not involve pages that are actually in its search index. The submission states:
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As part of the contentious debate over the implementation of anti-circumvention rules in Canadian copyright law in 2012, the government tried to assure concerned stakeholders that it had established specific mechanisms within the law to create additional exceptions to the general rule against circumvention. The law includes a handful of exceptions for issues such as security or privacy protection, but there is also a process for adding new limitations to the general rule. There are two possible avenues for new limitations and exceptions. First, Section 41.21(1) allows the Governor in Council to make regulations for an exception where the law would otherwise “unduly restrict competition.” Second, Section 41.21(2)(a) identifies other circumstances to consider for new regulations for exceptions including whether the circumvention rules could adversely affect the fair dealing criteria.
In addition to those two potential regulation making models for new exceptions and limitations, Canadian law also establishes the possibility of creating a positive requirement on rights holders to unlock their locked content. It states that the Governor in Council may make regulations:
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