Why no RIAA in Canada?

[notyoueither]

Good question. I thought some of you might be interested in this.

http://techcentralstation.com/081803C.html

Blame Canada
By Jay Currie Published 08/18/2003

A desperate American recording industry is waging a fierce fight against digital copyright infringement seemingly oblivious to the fact that, for practical purposes, it lost the digital music sharing fight over five years ago. In Canada.

Quote:

"On March 19, 1998, Part VIII of the (Canadian) Copyright Act dealing with private copying came into force. Until that time, copying any sound recording for almost any purpose infringed copyright, although, in practice, the prohibition was largely unenforceable. The amendment to the Act legalized copying of sound recordings of musical works onto audio recording media for the private use of the person who makes the copy (referred to as "private copying"). In addition, the amendment made provision for the imposition of a levy on blank audio recording media to compensate authors, performers and makers who own copyright in eligible sound recordings being copied for private use." -- Copyright Board of Canada: Fact Sheet: Private Copying 1999-2000 Decision

The Copyright Board of Canada administers the Copyright Act and sets the amount of the levies on blank recording media and determines which media will have levies imposed. Five years ago this seemed like a pretty good deal for the music industry: $0.77 CDN for a blank CD and .29 a blank tape, whether used for recording music or not. Found money for the music moguls who had been pretty disturbed that some of their product was being burned onto CDs. To date over 70 million dollars has been collected through the levy and there is a good possibility the levy will be raised and extended to MP3 players, flash memory cards and recordable DVDs sometime in 2003.

While hardware vendors whine about the levy, consumers seem fairly indifferent. Why? Arguably because the levy is fairly invisible - just another tax in an overtaxed country. And because it makes copying music legal in Canada.

A year before Shawn Fanning invented Napster, these amendments to Canada's Copyright Act were passed with earnest lobbying from the music business. The amendments were really about home taping. The rather cumbersome process of ripping a CD and then burning a copy was included as afterthought to deal with this acme of the digital revolution. The drafters and the music industry lobbyists never imagined full-on P2P access.

As the RIAA wages its increasingly desperate campaign of litigation in terrorum to try to take down the largest American file sharers on the various P2P networks, it seems to be utterly unaware of the radically different status of private copying in Canada.

This is a fatal oversight, because P2P networks are international. While the Digital Millennium Copyright Act may make it illegal to share copyright material in America, the Canadian Copyright Act expressly allows exactly the sort of copying which is at the base of the P2P revolution.

In fact, you could not have designed a law which more perfectly captures the peer to peer process. "Private copying" is a term of art in the Act. In Canada, if I own a CD and you borrow it and make a copy of it that is legal private copying; however, if I make you a copy of that same CD and give it to you that would be infringement. Odd, but ideal for protecting file sharers.

Every song on my hard drive comes from a CD in my collection or from a CD in someone else's collection which I have found on a P2P network. In either case I will have made the copy and will claim safe harbor under the "private copying" provision. If you find that song in my shared folder and make a copy this will also be "private copying." I have not made you a copy, rather you have downloaded the song yourself.

The premise of the RIAA's litigation is to go after the "supernodes," the people who have thousands, even tens of thousands of songs on their drives and whose big bandwidth allows massive sharing. The music biz has had some success bringing infringement claims under the DMCA. Critically, that success and the success of the current campaign hinges on it being a violation of the law to "share" music. At this point, in the United States, that is a legally contested question and that contest may take several years to fully play out in the Courts.

RIAA spokesperson Amanda Collins seemed unaware of the situation in Canada. "Our goal is deterrence. We are focused on uploaders in the US. Filing lawsuits against individuals making files available in the US."

Which will be a colossal waste of time because in Canada it is expressly legal to share music. If the RIAA were to somehow succeed in shutting down every "supernode" in America all this would do is transfer the traffic to the millions of file sharers in Canada. And, as 50% of Canadians on the net have broadband (as compared to 20% of Americans) Canadian file sharers are likely to be able to meet the demand.

The Canada Hole in the RIAA's strategic thinking is not likely to close. While Canadians are not very keen about seeing the copyright levy extended to other media or increased, there is not much political traction in the issue. There is no political interest at all in revisiting the Copyright Act. Any lobbying attempt by the RIAA to change the copyright rules in Canada would be met with a howl of anger from nationalist Canadians who are not willing to further reduce Canada's sovereignty. (These folks are still trying to get over NAFTA.)

Nor are there any plausible technical fixes short of banning any connections from American internet users to servers located in Canada.

As the RIAA's "sue your customer" campaign begins to run into stiffening opposition and serious procedural obstacles it may be time to think about a "Plan B". A small levy on storage media, say a penny a megabyte, would be more lucrative than trying to extract 60 million dollars from a music obsessed, file sharing, thirteen year-old.

If American consumers objected -- well, the music biz could always follow Southpark's lead and burst into a chorus of "Blame Canada". Hey, we can take it... We'll even lend you Anne Murray.

Jay Currie is a Vancouver writer whose writing and blog is at www.jaycurrie.com

[JohnT]

Does the land of Ann Murray and Celine Dion really have a music industry worth protecting?

[Evil Knevil]

It has.... Nickleback....

****, you're right. Nevermind.....

[BustaMike]

I ****ing hate Nickelback. I ****ing hate the RIAA. I don't mind Canada so much though .

[vlad]

Well as a transplant to Canada I was amazed at the price of blank cds when I first got here, even videotapes are priced high. Most of the major retailers here have signs around to fight the levy on recordables, I hope the same will hold true when they start taxing mp3 players etc etc, I already pay 14.5% sales tax on everything, no need to pay more. Thanks god I still travel to the states now and then and can restock on cds
I remember when cassettes became the hot topic for illegal recording, they said the industry would be ruined by them, then came VHS and Beta and that would ruin the movie industry, man it has been 30 years and those industries still seem to be thriving.

[Ned]

Here is a link to the Canadian Copyright Act provision in question - See Part VII. I think the interpretation given in the opening post has problems. First, is a computer an "audio recording medium?" Maybe, but as of now, they do not levy a tax on computers to pay for copyright. This, however, may be the future for Canadians if a computer is deemed to be an "audio recording medium. In other words, winning the P2P battle in Canada may be a Phyrric victory of sorts.

Another problem is the disclaimers. Here they are in full:

"(2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):

(a) selling or renting out, or by way of trade exposing or offering for sale or rental;

(b) distributing, whether or not for the purpose of trade;

(c) communicating to the public by telecommunication; or

(d) performing, or causing to be performed, in public "

I think allowing your "private" songs to be downloaded may be construed to be "distributing." It certainly is "communicating to the public."

Bottom line: Don't be fooled by the opening post's initial premise.

[Immortal Wombat]

Yay Canada!

[Japher]

Shania Twain... I wouldn't mind protecting her!

[Ned]

Vlad, if I read the Canadian Copyright Act properly, Canadians will soon be taxed heavily on new computers as they may be "audio recording media" - but P2P will still be illegal due to the disclaimers.

[Victor Galis]

So my question becomes, if it's legal for Canadians to share the music, is it legal for me to download it in the US? (So far the RIAA has been focusing more on the people doing the sharing rather than the people doing the downloading.)

[notyoueither]

Originally posted by Ned
Here is a link to the Canadian Copyright Act provision in question - See Part VII. I think the interpretation given in the opening post has problems. First, is a computer an "audio recording medium?" Maybe, but as of now, they do not levy a tax on computers to pay for copyright. This, however, may be the future for Canadians if a computer is deemed to be an "audio recording medium. In other words, winning the P2P battle in Canada may be a Phyrric victory of sorts.

Another problem is the disclaimers. Here they are in full:

"(2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):

(a) selling or renting out, or by way of trade exposing or offering for sale or rental;

(b) distributing, whether or not for the purpose of trade;

(c) communicating to the public by telecommunication; or

(d) performing, or causing to be performed, in public "

I think allowing your "private" songs to be downloaded may be construed to be "distributing." It certainly is "communicating to the public."

Bottom line: Don't be fooled by the opening post's initial premise.

I agree that the author and some who have linked to him (that's how I found it) may be being overly optimistic. However, I can see the point that the gates have been breached somewhat, and at the industries behest.

As for computers themselves (hard drives) being levied... I severely doubt it. The IT industry has some influence, and the government needs computers. The issue has been on going for some time now (ever since the levy was proposed for CD-R blanks). We'll see.