On March 16, 2010, NDP digital issuescritic Charlie Angus (Timmins-JamesBay) tabled Motion506to expand Fair Dealings as well as aprivate members bill BillC-499: An Act to amend the Copyright Act (audio recordingdevices) which seeks to extend the existing Private Copyingregime for audio recording to devices. The next day the Heritagecommittee tableda motion supporting the extension of the regime to devices,indicating the support of the Liberals and Bloc for this policydirection.

While I fully support themotion on extending Fair Dealings, the impact of the private membersbill is much more complex and needs discussion. This is what Mr.Angus intended. Mr. Angus doesn't expect the bill to be passed, buthopes that it will spark much needed discussion of our variousalternative policy directions in Copyright. The timing is importantas IndustryMinister Tony Clement told The Wire Report that TheConservative government intends to introduce a copyright reform billbefore Parliament’s summer recess,

Back in June and July 2008,soon after the Conservative government tabled their BillC-61, I wrote a 4-part series of articles which detailedsome of the issues with the most commonly discussed options: locks,levies,lawsuitsor licensing.

I suggest that those who wantto better understand the issue take a look at those articles. Whatis important to recognize is that the change to the music marketplacethat Mr. Angus has proposed in his bill is not an ideal situation,but what he suggests is the lesser of the evils. While I am not a fanof this proposal, I consider it to be far better than what has beenproposed by the Conservatives in their C-61or (to a lesser degree) the Liberals in their BillC-60.

Ideal would be if we had awell mannered music marketplace, but this hasn't happened. As a musicconsumer I have been limited to a subset of music that the copyrightholders are willing to offer me for sale. Music copyright holdershave tended to restrict access by computing platform (IE: demand thatlegal digital downloaders also be either Apple or Microsoftcustomers) or by geography (I see quite a bit of titles on eMusicthat say that the music isn't available in my country).

After refusing my money, thesemusic copyright holder then complain to the government that peoplemight not be buying as much music from them as we did in the past. This is all that theirstatistics show, and there is littledifferentiation between copyright infringement, legal competition andmarket failures where people would like to buy but can't.

Given copyright holders havethus far refused a well mannered marketplace, we are left with a few evils. I'll start from what I consider to be the worst option, andmove from there.

Locks: These aredigital locks that tie music to specific brands of devices, anddigital locks which lock out the owners of devices. This is by farthe worst option, and yet it is the one most favoured by the”Conservatives” as evidenced by Bill C-61 and their publicpronouncements since. It makes me question whether these”Conservatives” have any respect for property rights atall. The Liberals have indicated support for this option, althoughthey aren't quite as bad as the Conservatives. The NDP, oftenarticulated by Mr. Angus, is strongly opposed to this abuse ofdigital locks.

One irony has been that whilethe major labels are begging for legal protection for these locks,they have much to lose. It is the entity which holds the keys tothese locks that benefit, and in the case of locks on devices that isthe device manufacturer who holds the keys: not device owners and notcontent copyright holders. This excessive control granted to devicemanufacturers will allow these manufacturers to replace music labelsas gatekeepers in the music industry. While the major labels rantabout the comparably smaller threat from infringement, they appeareager to walk the plank by aligning themselves with the likes ofApple and Microsoft.

Levies:This is what Angus has suggested is the lesser of the availableevils. I agree with those who say these levies are unfair, and do notconsider it to be money rightfully owed to copyright holders. I donot consider this form of levy to be comparable to levies oncommercial airplay of music which has a far better tie between themusic actually communicated and the levies. I disagree with those whoconsider this a “tax” as a tax needs to be accountable tothe people paying it, and the amount is set by elected officials. Inthe case of these levies are realistically only accountable to thecollective societies and the amount is set by unelected commissionerson the copyright board. Both the Liberals Bill C-60 and theConservatives Bill C-61 would have greatly increased levies as well,so it is not like the folks are against this system.

Lawsuits:This is where copyright holders suepeople who are infringing copyright, the way copyright law wasintended to work. If lawsuits required a minimum amount of evidencebefore they could be launched, and there were adequate penalties forfalse accusations, I would favor this option. Unfortunately dishonestcopyright industry lobbiests work hard to require minimal evidence.We know that they love being able to sue single moms and dead peoplefor alleged infringement, and know that the vast majority of citizensdo not have the resources to defend themselves against even the mostfrivolous of false accusations.

It is unlikely that thisoption would last as dishonest lobbiest will claim that thegovernment isn't doing enough on their behalf, even though it is thecopyright holders that are doing nothing useful.

Note:Some of the links between IT World Canada articles broken when theychanged Content Management systems. Listed below are some correctedlinks:


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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