Fairness in an expanded Private Copying regime for recorded music

No matter what I feel about the PrivateCopying regime for recorded music, it is clear that the musicindustry wants this. When I say music industry I mean composers andperformers who have come out strongly in favor of the regime. Ithas become clear that the recording industry can no longer be said torepresent musicians or the overall music industry.

I can live with this regimebeing expanded to devices as I consider it the lesser of two evils: alevy on devices, or non-owner locks on devices. In order for theregime to have any resemblance of fairness it should be obvious thatwe can't allow both.

The private copying regimeneeds to be clarified such that royalties are only available forrecordings of performances that are available unlocked to any brandof technology, and thus available to devices free of any non-ownerlocks. Private copying is an activity that would otherwise be aninfringement under current Canadian copyright law, and is legalizedin exchange for the levy. If the otherwise infringing activity isalleged to not be possible due to the use of digital locks, thenthere should be no royalties flowing to those copyright holders fromany levy.

There are many benefits tosuch a policy:

  1. It will encourage composersand performers to have recordings made which will be available towider audiences. Content that is locked to only work on specificdevices is less valuable to music fans, and unavailable to peoplelike myself who only use unlocked (or owner locked) devices.
  2. It will encourage accuratestatistics to be collected as to the amount of recorded music that isunlocked.
  3. It will encourage therecording industry to become more honest about the actual impact ofvarious types of digital locks.

In order for the recording industry toclaim that locked content is still deserving of money from theprivate copying regime, they will need to explain to the copyrightboard and to parliament that these locks are ineffective as adeterrent to private copying. This is a fact that anyone whounderstands how these locks work, but is something that the recordingindustry has been misleading policy makers and the rest of the musicindustry about for a decade and a half now. (See: Protecting property rights ina digital world for an explanation of the two locks of DRM)

When it is understood that DRMdoes not reduce unauthorized copying (private or public), we can thendiscuss the legitimacy of the remaining impacts of DRM..

  • Anti-interoperability lockson content serve as a method to allow collusion between the contentindustry and device manufacturers. These are activities which shouldbe made clearly illegal under Canadian Competition law.
  • Non-owner locks on devices issaid to enable new business models. This is possible due tocollusion between the content industry and device manufacturers, whowould then sell back to Canadians the ability to do things that theywould otherwise already be able to do as device owners. No matterwhat we think about Copyright law, we should all be willing to agreewe should not be legalizing or legally protecting business modelsthat are built on top of a form of theft.

I don't believe either ofthese two types of locks should be legalized. While time hasadvanced, I do not get the impression from what I've read fromCanadian politicians that the level of the debate has advanced. Having the copyright holders behind recorded music having to choosebetween digital locks and levies would at least be a short termamendment that could help advance the inevitable ongoing debates inthe future.

As an aside: I am not a fanof the Private Copying regime for reasons that will seem similar towhy the recording industry changed its mind and now opposes it. Ibelieve that the more visible the regime, the more people will switchaway from paying for music in other ways. Overall this will meanless money flowing to the music industry. Where we differ is that Ibelieve that truly private copying (IE: time, device and formatshifting) should be carved out of copyright. Only public activitiessuch as online (p2p/etc) or offline sharing (mixed tapes) should beregulated by copyright. Here I believe a voluntary collectivelicensing system, like that proposedby the EFF, would be a great addition to traditional onlineand offline music retail. People like myself who don't share musicwould no have to pay the collective license, and would instead remaina subscriber to eMusic and ensure the right musicians are getting mymoney.

That said, I will repeat thatI believe that a levy on devices is far better than a non-owner lockon devices. Both will harm the music and other content industries,but improperly applied levies will be less harmful.

Russell McOrmond is a self employed consultant,policy coordinator for CLUE:Canada's Association for Free/Libre and Open Source Software,co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for DigitalCopyright Canada.

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