No matter what I feel about the Private
Copying regime for recorded music, it is clear that the music
industry wants this. When I say music industry I mean composers and
performers who have come out strongly in favor of the regime. It
has become clear that the recording industry can no longer be said to
represent musicians or the overall music industry.
I can live with this regime
being expanded to devices as I consider it the lesser of two evils: a
levy on devices, or non-owner locks on devices. In order for the
regime to have any resemblance of fairness it should be obvious that
we can't allow both.
The private copying regime
needs to be clarified such that royalties are only available for
recordings of performances that are available unlocked to any brand
of technology, and thus available to devices free of any non-owner
locks. Private copying is an activity that would otherwise be an
infringement under current Canadian copyright law, and is legalized
in exchange for the levy. If the otherwise infringing activity is
alleged to not be possible due to the use of digital locks, then
there should be no royalties flowing to those copyright holders from
any levy.
There are many benefits to
such a policy:
- It will encourage composers
and performers to have recordings made which will be available to
wider audiences. Content that is locked to only work on specific
devices is less valuable to music fans, and unavailable to people
like myself who only use unlocked (or owner locked) devices.
- It will encourage accurate
statistics to be collected as to the amount of recorded music that is
unlocked.
- It will encourage the
recording industry to become more honest about the actual impact of
various types of digital locks.
In order for the recording industry to
claim that locked content is still deserving of money from the
private copying regime, they will need to explain to the copyright
board and to parliament that these locks are ineffective as a
deterrent to private copying. This is a fact that anyone who
understands how these locks work, but is something that the recording
industry has been misleading policy makers and the rest of the music
industry about for a decade and a half now. (See:
Protecting property rights in
a digital world for an explanation of the two locks of DRM)
When it is understood that DRM
does not reduce unauthorized copying (private or public), we can then
discuss the legitimacy of the remaining impacts of DRM..
- Anti-interoperability locks
on content serve as a method to allow collusion between the content
industry and device manufacturers. These are activities which should
be made clearly illegal under Canadian Competition law.
- Non-owner locks on devices is
said to enable new business models. This is possible due to
collusion between the content industry and device manufacturers, who
would then sell back to Canadians the ability to do things that they
would otherwise already be able to do as device owners. No matter
what we think about Copyright law, we should all be willing to agree
we should not be legalizing or legally protecting business models
that are built on top of a form of theft.
I don't believe either of
these two types of locks should be legalized. While time has
advanced, I do not get the impression from what I've read from
Canadian politicians that the level of the debate has advanced. Having the copyright holders behind recorded music having to choose
between digital locks and levies would at least be a short term
amendment that could help advance the inevitable ongoing debates in
the future.
As an aside: I am not a fan
of the Private Copying regime for reasons that will seem similar to
why the recording industry changed its mind and now opposes it. I
believe that the more visible the regime, the more people will switch
away from paying for music in other ways. Overall this will mean
less money flowing to the music industry. Where we differ is that I
believe that truly private copying (IE: time, device and format
shifting) should be carved out of copyright. Only public activities
such as online (p2p/etc) or offline sharing (mixed tapes) should be
regulated by copyright. Here I believe a voluntary collective
licensing system, like that proposed
by the EFF, would be a great addition to traditional online
and offline music retail. People like myself who don't share music
would no have to pay the collective license, and would instead remain
a subscriber to eMusic and ensure the right musicians are getting my
money.
That said, I will repeat that
I believe that a levy on devices is far better than a non-owner lock
on 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 Digital
Copyright Canada.
