Should online music services be forced to use DRM systems in order to sell music on the internet? That’s a question the Copyright Board will have to address as it decides whether to approve proposed terms and conditions for the sale of online music in Canada.
“Online Music Services” (like the iTunes Music Store or e-Music, for example) need licences to reproduce musical works, and to authorize their customers to do the same. Canadian music publishers asked the Copyright Board to officially approve a tariff containing standard terms and conditions for these licences. At the Board’s hearings on this matter in Ottawa last month, parties argued mostly about the formula for setting the price. Besides some disagreement about eligible licencees, there was little or no discussion about most of the other terms and conditions.
But at least one of the neglected clauses could have serious consequences for the future of online music in Canada. The proposed tariff says that, as a condition of the licence, "an online music service shall use all technical and other means available to it to ensure that reproductions made by a user are exclusively for that user’s private use." Is this provision really what it appears to be: mandatory DRM for Canada's online music market?
Would the tariff require online music services to use TPMs? Would “other means” require strict end user licence agreements? What happens if a popular online music store like eMusic wanted to continue selling DRM-free music? Could they be sued? Could they negotiate a separate agreement, and even if so, would they be at a competitive disadvantage? Will consumers just have to accept DRM if they want to pay for music? If all or most online music services must use DRM, would that limit creators’ freedom to sell online music on their chosen terms? What would be the broader public policy implications of mandatory DRM?
None of these questions were raised, let alone answered, during the Board’s hearings. Now, note that the Copyright Board has not yet approved the tariff, and can alter the proposed terms and conditions as it considers necessary. The Board has acted in the public interest by altering proposed tariffs in the past, despite consensus among the parties directly involved. We likely won’t find out for some time whether the Board decides to do so here.
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