Canada’s search for its elusive copyright legislation

By Emmanuel Legrand

So Bill C-32, that was due to modernise Canada’s unfit-for-purpose copyright legislation, is dead before even being discussed before the nation’s Parliament.

Hit by a confidence vote at the Commons on March 25, PM Stephen Harper has been forced to call for new elections, and the process killed Bill C-32. Called Copyright Modernization Act, the text had been about three years in the making, with contributions from all sides, including by some very active copyleft groups, and it sparked a very healthy debate about the nature of copyright in the 21^st Century.

“It shouldn’t take 14 years to do copyright reform. Even three years seems unreasonably long,” writes Barrie McKenna in CTV News. “Canadians should want to get it done because it’s the right thing to do. (…) The guts of Canada’s laws date to a time when the eight-track player was a hot item. If Canada wants to be a leader in global innovation, the country should have laws to match its ambition. Instead, we have a Wild West of illegal file sharing and inadequate tools to go after companies that are profiting from the legal vacuum. Meanwhile, we’re scaring away lucrative businesses that would sell us digital media conveniently, and legitimately.”

CRIA's Graham Henderson
(picture: CRIA)

In this context, it is not hard to sympathise with Graham Henderson, president of the Canadian Recording Industry Association, which represents record labels, who quipped that the situation was “beyond frustrating”. In saying that he probably reflected the mood of the whole creative community, that had fought long and hard to get the Bill first on the agenda of the government, and then to make sure that it included some key provisions.

What fascinates the observer is that Canada has one of the world’s most dynamic economies, and boasts an amazingly vibrant creative community (from Arcade Fire to… Céline Dion), and it cannot get its act together when it comes to copyright. In the past decade, it had become a joke among visitors to ask embarrassed Canadians if they had made progress on the copyright front, as there had already been two failed attempt to update Canada’s copyright legislation (2006 and 2008).

The country is regularly on the “Priority Watch List” of the USA’s infamous Special 301 Report, which lists the least copyright compliant countries in the world, joining the likes China and Russia. “Canada has not completed the legislative reforms in the copyright area that are necessary to deliver on its commitments,” said the 2010 report.

The consequences of this legislative vacuum are multiple. The country lacks a solid framework for the digital era that would protect rights owners as well as providing safeguards for consumers and access providers (and that also would takes into account some exemptions). So far, the lack of appropriate legal system has prevented major digital players to establish shop in Canada and has helped illegal downloads to flourish.

For the creative community, this gap opens another era of uncertainty. It paves the way for potentially another time-consuming legislative process that will most certainly be undertaken by the new government in Ottawa after the May 2 elections – a government that could well be led by Harper himself as he is running again. And for many in the industry, regardless of their political views, seeing Harper win again could be a blessing in disguise as C-32 could just be put back on the legislative agenda by the new government.

If the legislative process has to be started all over again, it seems quite certain that Canada will not be removed from the 301 Report for the foreseeable future. If it drags on like that, Canada might have to wait for the 22^nd Century before getting a 21^st Century copyright legislation.

Serial disrupter Michael Robertson opens a new front with DAR.fm

By Emmanuel Legrand

Michael Robertson

Michael Robertson is back! The San Diego-based entrepreneur behind mp3.com and mp3Tunes.com is launching these days his new project, DAR.fm, a “digital audio recorder”. His new system records radio streams, identifies individual songs in a broadcast and allows users to download them to mobile phones or on their music libraries. The service is free for the moment and will eventually, according to Robertson, be advertising-driven.

It's a bit like when in the old days we were recording our favourite radio shows, except that this time, it is digital, and it gives "ownership" of the chosen music files. It is quite obvious that this new service will raise some concern from the radio and the music industries. At face value, it seems that Robertson is going to build a community using content that he has not created nor that he has the rights to, and that he will then monetise. 

The new service launched using a provision in the DMCA legislation. In a Business Week report, Robertson says he is on solid legal ground… Eager to know more about it, I turned to Paul Sanders, a British entrepreneur who co-founded companies/services such as Media Service Provider, Consolidated Independent, and state51 and who is usually quite knowledgeable about these things and who has a capacity to see both sides of the fence – the rights owners’ and the tech firms’.

According to Sanders, Robertson's service “relies on the statutory webcasting right in the [US digital legislation] DMCA (which is of course compensated), along with the principle of exemption for time-shifting and device-shifting, which is the line that is being tested in EMI versus Robertson in Mp3Tunes.com. If he is right legally you can take the view that he is wrong ethically, or that his rightness will have deleterious consequences, and you can try to get the law changed.”

Rather than confrontation, Sanders suggests a rather more open approach to such services as they offer the possibility to engage with music consumers. “It is entirely reasonable, in my view,” said Sanders, “to look at Robertson's service and say a) it provides a great way to move more music consumption into paid streaming, on a ratcheting rate, or b) it looks like an interesting model of consumption in its own right, so the consumer might be telling us something that we could understand and adapt our wholesale behaviour to encourage.”

To which he added: “Of course reasonableness and balance plays less well with copyright owners than extremism.”

“Extremist” is certainly a word that a lot of rights owners would apply to Robertson, who is described in the Business Week piece as a “discombobulator” (a guy who has a magical way of solving complex problems, according to the Urban Dictionary).

And they would argue that there is nothing in Robertson’s modus operandi about trying to accept that there are rights owners and that they have rights (Robertson has repeatedly said that the licensing process with major companies was “painful”) – he just goes for the shortcut. And takes the risk of facing litigation: His previous venture, music locker service mp3Tunes.com is in the midst of a court case started in 2007 by EMI. (At MidemNet in 2009, former EMI Group CEO Eric Nicoli told Robertson: “If people use technology to knowingly break the law, they shouldn’t be shocked if someone brings them up on it.”)

For many in the music industry (EMI maybe?), what he comes probably closer to is what journalist Robert Levine calls “digital parasites” in his forthcoming book ‘How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back' (Random House) – someone who builds a business on somebody else’s property without paying a dime for rent, the usage of utilities and the basic products needed for their trade. And a serial offender at that he is too, for he’s done the trick a few times already!

  

Sanders takes a different view. “I don't see DAR.fm as much of a threat to what it needs to feed on,” he said. “And I do know Michael. He is an extreme example of a problem solver, and he does really care about music. I would not want to second guess his motivation, beyond success at what he does, but it is entirely unreasonable to expect that he should be required to prop up existing music companies, and entirely reasonable that he should be expected to care about the music industry. Because he does need a healthy system releasing new music and distributing it, making it popular, and re-discovering the old catalogues constantly. I don't myself see Michael as someone who is feeding on the decline of the music industry, certainly not to the extent that many rights owners are.”

That is certainly open for discussion… Let’s see how DAR.fm will develop, and what will be the response of rights owners. It would not be too surprising if we’d get into another round of litigation. In the end, it’s always the lawyers that make money.

PS: The debate on free content took an interesting twist last week. The dear Arianna Huffington, who ran a very successful web site, using other people’s words for free, sold it to AOL for a few hundred millions dollars. And now she’s surprised that people could knock on her door and ask for a piece of that money. Slaves revolting? Tssss, let them eat cake!