Political parties and the Private Copying regime

The Canadian Private Copying collective has sent out a press release (PDF from CPCC, covered by FYI music) where they asked the Bloc, Liberal, Conservative, Green and NDP their position on the Private Copying Regime. While the Conservatives did not respond to the survey, I believe it is fair to accept Bill C-61 as their response given they have promised to re-introduce it if elected.

Before the responses from the parties, I would like to offer what I consider to be a fair and historically consistent reform of the private copying regime.

I believe that activities which are truly private such as time, device, or format shifting should be part of an expansion of Fair Dealings into a living Fair Use. It should not matter how many ‘copies’ exist in multiple devices, only that the content was legally acquired and is not shared with anyone else (either by telecommunications or via physical media).

I believe that copyright holders should be fairly compensated for activities which are non-commercial in nature, but not private. As we recognized when the private copying regime was created, there is a need for a compulsory license otherwise it would be impossible for average citizens to know exactly which artists have oped into the system and which have not. The compulsory license should be attached as closely as possible to the medium being used, and the collective societies should be mandated to be transparent and accountable not only to the copyright holders but the general public paying the fees.

This would mean a transformation of the Private Copying Regime to a non-commercial sharing regime that would be extended beyond recorded music to include television and movies. Since physical media such as CDs and DVDs are no longer the most common mechanism for non-commercial sharing, the existing levy would be radically decreased. A new levy would be added to communications services such as ISPs that would compensate creators for this sharing which would no longer require permission.

Shortform: truly private copying uncompensated and carved out of copyright, non-commercial public sharing legalized and monetized via a compulsory license.

Lets look at what the parties had to say.

The Bloc Québécois directly answered the questions offered to them by stating that, “The Bloc Québécois believes that the collection of royalties remains the best way to guarantee an income for copyright holders and is therefore in favour of private copying being legal while imposing levies on media”. The Bloc went further to suggest that the levy should be extended to devices such as iPods, which was the second question they were asked.

The Liberal party focused on their statement that they would have “open and transparent consultations before proposing or adopting any changes to the copyright legislation”. It is interesting that this is their proposal now that they are in opposition, while this consultation didn’t happen prior to their tabling of Bill C-60 in 2005. There were massive changes in the conversation, including the emerging of groups like Appropriation Art and the Canadian Music Creators Coalition, around this area of policy between 2001 when they had consultations and 2005 when they tabled their bill.

The NDP response focused on their opposition to Bill C-61, and how “C-61 represents a full capitulation to the U.S. corporate lobby and does not strike a balance between the needs of artists and consumers”.

The Green Party response was the most detailed answers to both questions.

“The Green Party would uphold the private copying exemptions and remove the levy currently imposed upon blank recording medium. The current levy system introduces ambiguity in the rights of consumers and has created a legal quagmire where peer-to-peer sharing of intellectual property may be legally grounded in some cases. Removing this ambiguity by dropping the provisional exemptions would be in the interest of both consumers and artists.”

“Format shifting from audio CDs, tapes, and vinyl records to MP3 players should be recognized as a right of the consumer within the private copying exemptions. These exemptions would allow the Canadian public to interact with cultural material in a format and medium most convenient to them.  Private copying exemptions would not permit redistribution and would therefore not undermine a copyright holders ability to market and sell the recording in a new format. Re-marketing material in new formats can still attract customers who own copies of recordings in older formats through promises of convenience by not having to manually format shift the material, and in quality as the audio is remastered to best utilize the new technology.”

The Conservative Bill C-61 did not amend the recorded music private copying regime directly. They did add an extremely complex “device shifting” exception (29.22) where even someone like myself who lives and breaths this stuff isn’t entirely sure what it applies or does not apply to. The exception allowed people to reproduce “the sound recording no more than once for each device that the individual owns, whether the reproduction is made directly onto the device or is made onto a medium that is to be used with the device”. This suggests that the Conservative party did not believe that the levy should apply to devices, but that an exception should exist instead. The Conservative Party Policy Declaration from March 19, 2005 stated that, “iv) A Conservative Government will eliminate the levy on blank recording materials” (PDF from conservative website, but this keeps moving).

Since the Conservative party is being tight-lipped about any change in policy direction, the only thing we have to go on are the bills they have tabled and promised to reintroduce, and their past policy declarations. While the Green Party clearly stated they would replace the current private copying regime with an exception, the conservative party may or may not be saying something similar (but far more complex, and thus less useful to anyone involved).

None of the parties were asked by the CPCC what I consider to be the second half of the question, which is what to do about unauthorized non-commercial sharing which is often assumed to be connected to the private copying regime. While the current regime may offer an exception for making private copies of music received from unauthorized sources (IE: downloading from unauthorized websites), it very clearly does not allow sharing. In fact, any copying done is no longer considered a private copy as soon as that copy is shared with anyone else either through mechanical means (IE: recorded to a blank CD handed to someone else) or telecommunications (IE: P2P filesharing).

It would be interesting to hear what the parties would say about this second question. I have read the well written briefing that was distributed to Green Party of Canada candidates, and the only time the document discusses levies is in the context of the Private Copying regime where it expresses the desire to remove these levies and replace with a private copying exemption.

I suspect from the answers that they have given thus far that the Bloc, if asked, would be in favour of compulsory licensing for things like P2P filesharing and mashups/etc on sites like YouTube. It is very unfortunate that they also wish to apply levies to activities which are fully private, as well as to devices which are used for multiple purposes and not tied to the acquisition and access of commercial content.

I’ve also believe that if asked, NDP digital spokesperson and NDP incumbent in Timmins–James Bay, Charlie Angus would also support compulsory licensing for these non-commercial activities. As well as being the NDP spokesperson on these issues, he is an active member of the Canadian Music Creators Coalition which has opposed DRM and music filesharing lawsuits, and has applauded the Songwriters Association of Canada to legalize and monetize music filesharing through some form of compulsory licensing.

From what I can tell, the Conservative party is only listening to the major labels and studios, and not Canadian creators or audiences. This means that they are being told to abolish the private copying regime which the major labels asked for in the first place (they didn’t seem to understand what it meant). Instead of levies they want to rely almost entirely on digital locks on content and devices, and lawsuits against “enablers” (IE: providers of multi-purpose technology, unlocked or otherwise owner controlled technology, and communications services).

With this understanding we should recognize the call from the Conservatives to abolish the private copying regime has the opposite intent than the Green Party. Where the Green Party wants to have truly private activities be carved out of copyright, the Conservative party want copyright law to encourage all technology to be locked down such that it is some third party and not the owner that is able to control it.

So where do the parties come as far as being close to what I consider to be fair?

My understanding of the key players in the Green Party and the NDP suggest to me that they are a tie for first place. It isn’t based on the answers that the NDP offered to the CPCC questions, but my knowledge of Charlie Angus. Neither party has thus far clearly answered what I consider to be the second half of the private copying question.

Next comes the Bloc who recognize that we should be using levies rather than lawsuits for many of these activities, but seems to think that there should be levies for activities which shouldn’t be covered by copyright at all.

In last place is the Conservative Party who wants to focus on locking down our technology, and seems to be opposed to the idea that a living Fair Use combined with compulsory licenses (levies) should be used instead of locks and lawsuits.

I can’t place the Liberals in this list. They seem to be telling us that we should ignore everything they have said in the past, start fresh, and that they would sit down with all of us and have a proper consultation. This makes them a wildcard, and impossible to know if they will somehow become our greatest ally or our greatest threat. It also depends on who gets elected from this party, and what committees they become members of. I know that the Hon. Dan Mcteague, the Liberal incumbent in Pickering – Scarborough East, has spoken on panels along with the major recording and motion picture studios and essentially been acting as part of their lobby.

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 Digital Copyright Canada.

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