Tag Archives: copyright

Calling bullshit on IFPI claims about piracy in Canada

Canada has once again been singled out as an international digital music piracy haven, this time by the London-based International Federation of the Phonographic Industry (IFPI) in its annual report on music sales.

The global industry association said yesterday that Canada, where music sales in 2009 were off 7.4 per cent from a year earlier, has “some of the world’s weakest legal defences against piracy.” The association said Canada was “a major source of the world’s privacy [sic.] problem” and that “a disproportionate number of illegal sites are hosted on Canadian soil.”

The Canadian government is “practically the only government of a developed country not to have implemented international copyright treaties agreed over a decade ago,” the organization said. According to the group’s numbers, over the past decade, Canadian record sales plummeted more than 50 per cent.

I call bullshit on this.

Canadian record sales dropped 50 percent because Canadians are early adopters of digital technologies and made the move to digital music earlier and more completely than many other places, while the music industry has refused to negotiate licensing arrangements that would have benefited artists (if not the industry) and created a vibrant legal market for digital music in Canada, instead focusing on the push for laws to protect an outdated and outmoded music industry business model.

Copyright law may need to be updated, yes, but for the music industry to claim that the reason it needs to be updated is the mass migration of Canadians away from the very business model those updates would protect… that’s just ridiculous.

[BTW, I do work for Industry Canada, but not on anything to do with copyright. Anything in this blog, including this post, is of course my own personal opinion and does not reflect the views of Industry Canada or the Government of Canada. Of course.]


Creative Commons or Copyright for new band? – SparkExchange

A musician in a new band posted some questions to the Spark Exchange that many new bands probably want to ask: How should they copyright their music? How can they use Creative Commons licences and still keep their marketing options open?

Because of the Creative Commons connection, Spark producer Dan Misener sent me a link to the forum and I was happy to provide this (lengthy) response. It may be helpful for more than that one band. Read the entire response here.

So, to sum up, your music is already copyrighted and it sounds like you own the copyright. You can write “(c) copyright 2010” and that sort of thing on it if you want (although doing that doesn’t create the copyright at all — it’s just there to let people know). Then you should decide how freely you want to allow other people to use your work. If you want to hold onto all of the rights, you can say the work is “all rights reserved”; if you want to use a CC licence to give people some freedoms with your music, you can say “Some rights reserved. Licensed under a CC Attribution NonCommercial NoDerivatives licence” (or whatever you choose). There are no magic words. Be clear and you don’t need to get too hung up about it.

Finally, I would fully support what Bob Jonkman says above about the benefits of giving your music away, the unlikelihood of being paid by SOCAN either way, and the value of reading Techdirt’s “CwF + RtB” material. I also think David Byrne’s 2007 article in Wired should be required reading. You’re a new band in the age of zero cost distribution so it makes little sense for your business plan to be based on charging people to get your music. You may be better off giving away the recordings so more people hear it and turning that potentially larger fan base into money coming directly to you rather than to a record label (from which you may never get a cent if you’re not popular enough — see that brilliant David Byrne article).


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Why are authors against libraries?

I just read Stealing Atwood, an article by BC author Michael Elcock.

I recently downloaded, at home, twenty-one copies of Margaret Atwood’s best-selling novel Alias Grace from a B.C. library. I did it by accident, but if I was able to stagger the sign-out dates, and renew each of these digital copies, Alias Grace could remain in my possession for a long time.

Victoria-born Julie Lawson, who has written more than twenty books for young people, had no idea that one of her books for children, Cougar Cove, first published in 1994, is also available, free, via digital download, from most libraries in the province.

Atwood and Lawson’s books are available through the BC government’s Libraries Without Walls programme, launched in 2004 with an initial $12 million grant. The project involved the expansion of broadband across the province, and set out to improve access to books and journals. It has grown into a big initiative to increase the number of eBooks, audio books and periodicals in BC’s libraries—downloadable right to your home. 

To develop Libraries Without Walls, extensive consultations were held with sixty-six libraries, several BC government ministries, unions, schools, municipal representatives and the BC Chamber of Commerce. Unfortunately, the folks who in Canada own the legal copyright to the primary assets (the books)—the writers—were not invited. 

From my perspective, the author is probably right that libraries are infringing copyright, and I’m a little surprised the programme was approved for a government grant (except that digitizing collections is standard operating procedure for libraries nowadays, and it would be an absolute shame if Canadian books were among the last books in the world to be available digitally because of backward thinking).
But from a business perspective, the guy sounds like a horse vendor in 1909 complaining about automobiles being allowed to drive on roadways. He writes,

“There can be little question that the digitisation of books by libraries and their surrogates will have a significant impact on a writers’ ability to make a living—to the extent that some writers may wish to have library use specifically excluded in future contractual agreements with their publishers.”

This is patently untrue. It’s just false. It won’t have a significant impact on authors for regional libraries to allow a limited number of customers to have copies of books. Libraries have always allowed a limited number of readers to get books for free — that’s what libraries are for. What’s so special about digital copies that authors should be paid extra so libraries can distribute them?

Not only that, but libraries don’t even pay authors to distribute paper copies of books! They often have books donated or they acquire them second hand or as off-prints and distribute them for free to library patrons. Authors do not generally get paid for library copies of books. Traditionally, publishers don’t like this because they don’t get paid, but authors like it because their works get read by more people. Why does limited digital distribution change the equation?

Oh, and excluding libraries from being allowed to distribute their books? Impossible. Libraries don’t distribute books pursuant to agreements with publishers, so publishers have no control over it. Anybody can lend or sell a copy of a book they already own –it’s called the first sale doctrine, and authors with bees in their bonnets can’t do anything about it (so there).

I could rant on about this — about how the article’s author seems to like the government’s most recent attempt at copyright reform, but doesn’t mention that the Adobe DRM used on the library books is exacty the sort of thing that law would have allowed; about how more and more authors are embracing new models of free distribution and generating increased *sales* as a result… but I’ll restrain myself (barely). Instead, I’ll link to a related article on Techdirt discussing the same issue in the US.

I think I may post this as a blog entry for today. I feel like ranting. And then eating latkes. Happy Chanukah. That is all.

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Is music downloading copyright infringement in Canada?

There’s some sparring going on in the copyright world between Michael Geist and Richard Pfohl of the Canadian Recording Industry Association. In a June 8, 2009 article “slaying” Canadian file-sharing myths, Michael Geist stated, “The law… opens the door to some legalized music downloading, but it does not cover other content (movies or software) or the uploading of any content.”

In response, Richard Pfohl wrote in a June 12 letter to the editor, “Downloading pirated music is not legal in Canada.”

Who’s right? Copyright lawyer Howard Knopf sorts it out:


So – copying unauthorized sound recordings obtained via P2P onto a 120 GB iPod Classic, for example, where the hard drive memory is permanently embedded (don’t even think about trying to take it out!) may indeed be infringing – because the iPod as a whole is a “device” and not a medium subject to the levy.

However, a PC internal hard drive that is not “permanently embedded” and particularly an external plug and play hard drive that is clearly not in any sense “embedded” in anything and serves no function other than to be a large memory medium may very well be “audio recording media.” In that case, downloading any sound recording onto them obtained in any way from any source for private use would be legal in Canada, regardless of whether a levy has ever been sought from the Copyright Board. This follows from what the Copyright Board said in 2003 at page 20-21 of this famous decision [PDF] and, contrary to Mr. Pfohl’s assertion, no Canadian Court has ever ruled to the contrary.
[emphasis from Mr. Knopf]


That’s right: That dedicated music device you have? The one that comes with software for ripping CDs and is sold by Apple, owner of the world’s biggest music store? It’s copyright infringement to download music and put it on that device. In fact, it’s copyright infringement to rip your own CDs if you’re putting them on your iPod or other mp3 player.

But an external hard drive that can’t play back music? That’s not embedded media, so it may not be infringement to download or rip music and save it there. Such is the paradox of copyright law in Canada today.

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Sweden’s Copyfighting Pirate Party wins 1 seat (not 2) in European Parliament

When the Swedish Pirate Party was founded in early 2006, the majority of the mainstream press were skeptical, with some simply laughing it away. But they were wrong to dismiss this political movement out of hand. Today, the Pirate Party accomplished what some believed to be the impossible, by securing a seat in the European Parliament.

With 99.9% of the districts counted the Pirates have 7.1 percent of the votes, beating several established parties. This means that the Pirate Party will get at least one, but most likely two of the 18 (+2) available seats Sweden has at the European Parliament.

I don’t think Europe’s niche political parties are really analogous to our (mostly) more general policy parties here in Canada and the US, but it does show what an important force the “copyleft” movement has become. This win may mirror the success of Green parties in Europe long before environmental policy was taken seriously in North American politics. Our own parties should take notice.

UPDATE (2009-06-09): It looks like the Pirate Party will have one seat in the EP, with a second seat only if the Lisbon Treaty passes.

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One lawyer’s thoughts about switching open licences

This story was posted on one of the Creative Commons discussionlists, and it addresses a problem that at one time or another willface any organization using Creative Commons licences or any othercopyleft, open or free content licence: Can we switch our works to adifferent licence?

[There is] a collaborative community that hasbeen around for several years.
They had a couple of separate collections, and one was under the FAL(Free
Art License). They wanted to make everything compatible under CC-BY-SA3.0,
but the FAL is technically *not* compatible.

Then the question was raised with a US-based attorney. His response wasnot
to worry so much – they’re the same in all key ways, and his opinion was
that the intention of the contributors was not concerned with the minor
differences between open, copyleft licenses.

from thispost.

It may be counterintuitive (or, come to think of it, maybe thischaracterizes how people think of lawyers!), but lawyers tend to seeissues like this not in terms of whether you can do something,but in terms of the risk involved in doing it. You want to getout of your lease right away without giving the required 2 monthsnotice? You want to fire an employee even though you may not have justcause to do so? Perhaps you’d like to use a popular song as backgroundmusic on a YouTube video? You might ask a lawyer whether youcan do that, or how you can do it, but the lawyer is probablythinking, What is the risk in doing it? What is the likelyconsequence, and how likely is it?

Knowing this about a lawyer’s thought process helps explain theanecdotal lawyer’s response when asked whether theorganization can switch from the FAL to the CC-BY-SA licence.Technically, no, they’re not allowed to make that switch. But thelawyer is also thinking, how likely is it that one of the authorsinvolved will treat this as a copyright infringement? And what will theconsequences be if they do?

Of course every situation has unique considerations, and you shouldn’ttake this as legal advice for your own similar situation. For what it’sworth, in cases like this, I tend to agree with the lawyer in thestory, and for this reason: The major aspects of the licences, theissues the authors would have had in mind when they agreed to use thelicence, are the same, and are specifically about openlicensing.

That’s what makes cases dealing with open licences different fromalmost any other legal field in questions like this. These licences arespecifically geared toward a new way of dealing with copyright. Yes,there are differences among the licences, and some of those differencesare fundamental differences that would make them very risky toswitch (like switching an NC licence for a non-NC licence, or viceversa? Just don’t do it!). But if there are only minor differencesamong the licences, then, as the operator of the community in thestory, you would need to consider the risk that the sort of person whowould license a work under one open licence would bring acopyright claim against you for switching to a different openlicence that is the same in all but technical aspects.

So we have an author who uses open licences to distribute their workand understands the balance in copyright and the value of other peoplehaving access to that work. I suspect that such an author would be muchless likely to be upset about a switch to a fundamentally identicallicence than, say, a traditional commercial licensor would be if theircopyright licence were switched for a different one.

Every decision like this is a risk. Just how big a risk it is dependson your particular circumstances. You might need a lawyer’s helpsorting that out, and you might not. What you should learn from thisstory isn’t the general rule that licences can necessarily beswitched for similar licences. Rather, it is that in some cases, withsome communities of authors and users, and with sufficiently similarlicences, there may be a simple solution that has a low enough risk foryou.

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Finding Free music to play in your shop

Suppose you own a bookstore or a cafe, or maybe you’re a dentist or you own a hair salon. You probably play music in your shop, cafe or clinic. Are you infringing copyright when you play that music? Are artists collecting royalties for the music you play? And if you want to make sure you’re on the right side of the law, what are your options?


Canadian Copyright law

You can read the Copyright Act if you’re interested — it’s not that bad a read, really. But basically what you need to understand is that the artist who wrote a song has exclusive rights to reproduce and perform that song. And the people who recorded it also have exclusive rights in the recording itself; only the recording company can reproduce the recording (which is subtly different from reproducing the song). Any time you take out a guitar and play a song, you’re performing that song. And if you play a CD or plug an iPod into your sound system and play Abba’s Super Trouper on repeat (something my kids love doing), you’re performing the sound recording.

Now, playing the song in private is not infringement, and there is even a special exemption in Canada that allows us to make copies of sound recordings for our own private use under certain circumstances. But if you are playing songs in your shop, cafe or clinic, or anywhere else where the public can hear it, then you are infringing the copyright in that recording unless you have permission from the artist.


You can pay for permission

One way to get permission from the artist is to buy a licence from SOCAN, the collective society that represents musicians in Canada. It’s not outrageously expensive either: less than 12 cents per square foot, so it will cost about $230 to buy a licence to play commercial music in your 2000 square foot operation.


Or you can get permission for free!

It turns out there are a lot of artists out there who first and foremost want their music to be heard, and they have chosen to give broad permission to anybody and everybody to use their songs and recordings. You generally won’t find these artists on commercial radio, or even at most music stores. After all, many of them operate on small budgets and distribute their music online instead of paying to press discs.

And to make sure you know that you have their permission, many of these artists use a much more permissive, standard form licence that they get from Creative Commons. There are a range of Creative Commons licences, some of which are extremely permissive: if a song is under the CC-BY licence, you can copy, perform, transmit and even adapt and remix the work, as long as you give the original artist credit. Some CC licences are much more restrictive: if a song is under the CC-BY-NC-ND licence, you can copy, perform and transmit the work, but you can’t change it at all (the ND means No Derivatives) and you can’t use it for commercial purposes (the NC means Non Commercial).

So CC licensed music is a great source of free music to play to your customers or clients, but you have two challenges: finding CC licensed music, and making sure the music you pick is under a licence that allows commercial use.

There are a growing number of places to find CC licensed music online, but one of the best is Jamendo. It has a great selection of CC licensed music from around the world in all different styles, very well organized and searchable. To find the music under Creative Commons licences, click the Music tab on Jamendo and then the Creative Commons link in the orange bar under the tabs. On the right of the page, you can search by tags, but if you leave the tags field blank you can just check the box that says “allow commercial use”, and you’ll get all of the music on Jamendo that is under CC licences that allow commercial use — or just click here to go straight to those search results! You can also limit the results by country — here are the Canadian albums that you can play to your customers for free.


Podcasts and free music

Podcasts are a bit of a special case since as a podcaster you are not only performing recordings but also transmitting them to the public, and making them available for people to download. If you’re a podcaster and you’re interested in using free music or other content, check out the Podcasting Legal Guide for Canada.


Supporting artists

There are different ways to support musicians. SOCAN distributes royalties to artists from licensed performances and album sales. If you like an artist who uses CC licences and you want to support them, you can usually choose to pay for their music as well. For instance, you’ll find the latest album by Brad Sucks on Jamendo, but you can also buy it at his website. Or, if you’re into remixing music, you can download the source master recordings of each track, have your way with it (so to speak), and upload it to ccMixter.


Success stories?

Are you an artist who uses Creative Commons licences for your music? Do you run a cafe or shop or someplace else that plays music to your customers or clients? If you have a success story about using Free music, I’d love to hear it. Leave a comment!

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Updates to the Canadian Copyright Term Flowchart

I made two updates to the Canadian copyright term flowcharttoday and thought I would push them out there to others working onsimilar projects.

We were at version 4 of the flowchart before. Two similar problems wereseparately identified and fixed, so we’re at version 6 now.Here’s the latest version of the chart:


Basically,the spine of the flowchart goes down the left side identifying specialcases. In the first two special cases (photographs and “CrownCopyright”), the chart dealt with the special cases but then neglectedto identify the subset of special cases that should be handled like thegeneral case. These were formerly piped to the end of the chart,but should be piped back into the spine to run through the remainingspecial cases.

Hard to follow? So, for example, photographs are a special casefor copyright term calculation in Canada, but only if they havecorporate authors. If their authors are “natural people” (notcorporations), then they should be handled the same way as any otherwork. The flowchart now sends those back to the spine so we cancapture the special case of, say, photographs that are anonymouslypublished.

So photographs were one special case. The other special case isCrown Copyright, a quirk of Canadian law that gives a specialcopyright term to works created or published by the Crown (i.e. thegovernment). But it was pointed out that if a work is co-authored bythe Crown and by one or more other non-Crown authors, then the termof copyright for the work may depend on the non-Crown author. Thesecases are now piped back to the spine. Having made that change, we cannow accommodate works published jointly by the Crown and pseudonymousauthors!

So that puts us at version 6 of the flowchart. To open thesource file, install the open source program Dia. And feel free to use theseand modify them: They are licensed under a Creative CommonsAttribution 2.5 Canada licence. You can attribute them to me, AndyKaplan-Myrth. Thanks!

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