www.jeremydebeer.ca

This afternoon a number of different CBC Radio stations across the country asked me to comment on the new Canadian Music Creators Coalition. The CMCC is a group of actual Canadian artists who have spoken out about what they want out of copyright law and cultural policy. I think it would be unwise not to take this diverse group of superstar and emerging artists very seriously. 

For the first time, we are hearing about copyright reform not just from the perspective of multinational labels but also from Canadian artists themselves. They say they don’t want to sue their fans for sharing songs or lock up their music using digital rights management systems. Instead they want to work on creative business models that embrace new distribution methods and change the law to provide fans with flexibility when listening to the music they buy. In terms of specifics, this means abolishing statutory damages, protecting artists and consumers from DRM instead of the other way around, and shifting from fair dealing to fair use. These artists also recognize the importance of cultural policy tools other than copyright law, and have called on the government to make firm commitments to various funding and education programs.

 

They have publicly requested a meeting with the Ministers of Canadian Heritage and Industry Canada. With significant coverage already in the online and mainstream media, and the public’s support apparently on their side, it will be interesting to see just how big an impact the CMCC has at the political level.

 

In terms of my own academic work, this group's concerns about DRM immediately bring to mind the Sony BMG incident involving restrictive contractual terms and technological measures, which I wrote about earlier this year. That story is probably just the sort of thing the CMCC has in mind when it refers to DRM as "risky and counterproductive."

 

The CMCC has also made me think carefully about my stance on levies as an alternative compensation model for artists. For the record, I recently published a law review article in which I suggested that Canada’s private copying levy should not be expanded to iPods or Internet access, and should perhaps be narrowed or eliminated altogether. I stand by that opinion, because although a levy seems sound in theory, there are overwhelming ambiguities in its scope and significant practical issues in its implementation.

 

The gist of the problem is that the Canadian levy presupposes that consumers must pay for the right to transfer music they’ve already bought from one format to another, when the truth of the matter is that most such activities are either expressly or impliedly licensed, or are or should be fair dealing/use. Also, consumers are paying for the right to private copy when in some cases technological measures prevent them from exercising that right. The regime isn’t designed to compensate at all for sharing music, which by definition is not “private” copying. Actually, although uploading is almost surely not covered, downloading may or may not be—the law is such a mess we really have no idea. Obtaining consensus on what a broader levy ought to be would be next to impossible if we can’t even sort out the basics of the existing levy.

 

Instead of levies, litigation or locks, I advocate licensing. Provide consumers with convenient opportunities to pay for digital music on terms that are fair and flexible, and I believe the vast majority will take it. The CMCC's point seems simply to be that there are lots of options for an online music market that don't involve suing people for circumventing restrictive technologies. The CMCC has inspired me to investigate this idea, and I plan to make it one of my top research priorities.