Hey,
I have read the decision of the Copyright Board and I am quite worried about
its consequences toward an alternative compensation system, especially a
compulsory licensing system (which I consider so far as the best alternative).
Explicitely, the Board recognizes that private copies "may be obtained through
peer-to-peer networks, such as Napster, Kazaa, Grokster or Morpheus" (page 13
of the decision) and that "There is no requirement in Part VIII that the source
copy be a non-infringing copy" (page 20). This enables them to include P2P
downloads in the calculation of a fair levy, and in particular to charge
hard-drives embedded in portable devices such as the iPod. Implicitely, this
enables copyright holders to get a compensation for piracy that occurs on P2P
networks, and the amount charged will grow significantely in two years, when
the majors will provide the Board with some evidence that P2P networks are
heavily used for private copying purposes.
But this does not legitimate at all the use of P2P networks for downloading MP3
files. Unless you have the original, you remain liable if you download music on
Kazaa. And of course, no need to demonstrate that you are still infringing
when uploading a copyrighted song. As a result, the music industry obtains
here a major source of revenue whereas the P2P users, who pay this
compensation, don't earn anything and still suffer the risk of a litigation.
I've spoken to Michael Geist, my Internet law professor at the University of
Ottawa, Canada, and as I understood he favors an ACS based on a fee on ISPs,
with dedicated subscriptions for P2P users. This is not what I would like to
see, but this shows that Canada could be one of the first countries to move
towards ACS (Geist is one of the most influential e-commerce law professor in
Canada). I am afraid that this decision of the Board would annihilate this hope.
--
Guillaume Champeau
web : http://www.ratiatum.com
--------
Réponse au message de Felix Stalder envoyé le 2003-12-13 à 14:01:00 :
This strikes me as a potentially important precedence (more for Europe than
the US), though it's likely to raise as many question as it addresses. For
example, how does one differentiate between uploading and downloading in a
p2p network? Do files in the 'shared folder' already count as uploaded?
For our discussion, two things are particularly important (indirectly address
Neil's points).
First, it seems that the question of accurate measurement of use (and the
connected gaming issue) did not even come up. It seems that there is
agreement that the current distribution key is, at least for the time being,
good enough.
Second, from this follows the second important point, that the current
collective societies [1], and their internal distribution mechanisms, are
viewed as providing the adequate institutional mechanism for the expansion of
the system into the p2p networks.
The first point strikes me as surprising, though I guess from a pragmatic
point of view, a good (transitory) solution. If the first point is accepted,
the second one close to inevitable.
For those who like to read the actual legal texts, they are here [2].
Felix
*Canada deems P2P downloading legal*
By John Borland
CNET News.com
December 12, 2003, 2:20 PM PT
URL: http://zdnet.com.com/2100-1104-5121479.html
*Downloading copyrighted music from peer-to-peer networks is legal in
Canada, although uploading files is not, Canadian copyright regulators
said in a ruling released Friday.*
In the same decision [2] the Copyright Board of Canada imposed a government
fee of as much as $25 on iPod-like MP3 players, putting the devices in the
same category as audio tapes and blank CDs. The money collected from levies
on "recording mediums" goes into a fund to pay musicians and songwriters for
revenues lost from consumers' personal copying. Manufacturers are responsible
for paying the fees and often pass the cost on to consumers.
The peer-to-peer component of the decision was prompted by questions from
consumer and entertainment groups about ambiguous elements of Canadian law.
Previously, most analysts had said uploading was illegal but that downloading
for personal use might be allowed.
"As far as computer hard drives are concerned, we say that for the time
being, it is still legal," said Claude Majeau, secretary general of the
Copyright Board.
The decision is likely to ruffle feathers on many sides, from
consumer-electronics sellers worried about declining sales to international
entertainment companies worried about the spread of peer-to-peer networks.
Copyright holder groups such as the Recording Industry Association of America
(RIAA) had already been critical of Canada's copyright laws, in large part
because the country has not instituted provisions similar to those found in
the U.S. Digital Millennium Copyright Act. One portion of that law makes it
illegal to break, or to distribute tools for breaking, digital copy
protection mechanisms, such as the technology used to protect DVDs from
piracy.
A lawyer for the Canadian record industry's trade association said the group
still believed downloading was illegal, despite the decision.
"Our position is that under Canadian law, downloading is also prohibited,"
said Richard Pfohl, general counsel for the Canadian Recording Industry
Association. "This is the opinion of the Copyright Board, but Canadian courts
will decide this issue."
In its decision Friday, the Copyright Board said uploading or distributing
copyrighted works online appeared to be prohibited under current Canadian
law.
However, the country's copyright law does allow making a copy for personal use
and does not address the source of that copy or whether the original has to
be an authorized or noninfringing version, the board said.
Under those laws, certain media are designated as appropriate for making
personal copies of music, and producers pay a per-unit fee into a pool
designed to compensate musicians and songwriters. Most audio tapes and CDs,
and now MP3 players, are included in that category. Other mediums, such as
DVDs, are not deemed appropriate for personal copying.
Computer hard drives have never been reviewed under that provision, however.
In its decision Friday, the board decided to allow personal copies on a hard
drive until a fee ruling is made specifically on that medium or until the
courts or legislature tell regulators to rule otherwise.
"Until such time, as a decision is made on hard drives, for the time being,
(we are ruling) in favor of consumers," Majeau said.
Legal analysts said that courts would likely rule on the file-swapping issue
later, despite Friday's opinion.
"I think it is pretty significant," Michael Geist, a law professor at the
University of Ottawa, said. "It's not that the issue is resolved...I think
that sooner or later, courts will sound off on the issue. But one thing they
will take into consideration is the Copyright Board ruling."
Friday's decision will also impose a substantial surcharge on hard
drive-based music players such as Apple Computer's iPod or the new Samsung
Napster player for the first time. MP3 players with up to 10GB of memory
will have an added levy of $15 added to their price, while larger players
will see $25 added on top of the wholesale price.
MP3 players with less than 1GB of memory will have only a $2 surcharge added
to their cost.
With a population of about 31 million people, Canada is approximately
one-tenth the size of the United States. But Canadians are relatively heavy
users of high-speed Internet connections, which make it easy to download
music files. About 4.1 million Canadians were using a broadband connection at
home as of the end of June 2003, according to U.K.-based research firm Point
Topic. By comparison, U.S. cable and DSL (digital subscriber line)
subscribers totaled 22.7 million at the end of September, according to
Leichtman Research Group.
Canada has already raised the hackles of some copyright holders through its
reluctance to enact measures that significantly expand digital copyright
protection, as the controversial Digital Millennium Copyright Act (DMCA) has
done in the United States. As a result, Canada could become a model for
countries seeking to find a balance between protecting copyright holders'
rights and providing consumers with more liberal rights to copyrighted works.
For now, it remains unclear how other countries might be influenced by
Friday's ruling.
Geist said he believes the tariff decision could be just the tip of the
iceberg for hardware makers, as Canadian regulators grapple with the full
implications of the policy. Other devices, including PCs, may eventually be
brought under the tariff scheme, he predicted.
"Given that they've made a strong stand on (peer-to-peer matters), if the
policy remains the same, there's little choice but to move ahead on personal
computers," Geist said.
However, a representative of the Canadian Private Copying Collective (CPCC),
the group of music copyright holders that typically petitions for new media
types to be added to the list, said computers were not on its agenda.
"We have never sought a levy on computer hard drives and do not intend to do
so in the future," Lucie Beaucheni, vice chair of the CPCC, said.
-------------------
[1]
Who benefits from the levy?
http://www.cb-cda.gc.ca/news/c20032004fs-e.html
The entitlement to receive remuneration in respect of private copying of sound
recordings benefits eligible authors, eligible performers and eligible
makers. This is a corollary to the right of individuals to copy musical works
for their own private use.
CPCC has been designated as the collecting body for the private copying levy.
CPCC is also responsible for distributing the amounts generated by the levy
to collective societies representing eligible authors, eligible performers
and eligible makers. Member collectives of the CPCC include:
* the Canadian Mechanical Reproduction Rights Agency (CMRRA)
* the Neighbouring Rights Collective of Canada (NRCC)
* the Société de gestion des droits des artistes-musiciens (SOGEDAM)
* the Société du droit de reproduction des auteurs, compositeurs et
éditeurs au Canada (SODRAC); and
* the Society of Composers, Authors and Music Publishers of Canada
(SOCAN)
For more information, please consult CPCC's Web site: www.cpcc.ca
[2] http://www.cb-cda.gc.ca/new-e.html
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