One of my friends sent me an email today with a link to a few articles pertaining to Industry Minister Jim Prentice's new proposed copyright legislation. This legislation, it is feared, will mirror the American's infamous DMCA in how it seeks to address issues such as online file-sharing, circumvention of digital copy-protection, and circumvention devices, amongst others.
I have to admit, as a consumer, and as a Conservative, the implications of such a legislation concern me greatly. First let me state that I believe that it is only fair that the creators of media (movies, music, TV shows, etc) be paid for their work. I'm not even opposed to giving the recording industry their cut - everyone has to make a living. The question remains, however, "at what cost"?
The first and most significant is the question of the right to privacy. Under the protection of the Canadian Charter of Rights and Freedoms, every person physically in Canada is guaranteed the "right to life, liberty, and security of the person". While I do not have constitutional jurisprudence, I have always firmly believed that the concept of individual privacy to be inherent to individual security of person. In order for legislation against such activities to be enforced, the ability to gather personal information about who uses copyrighted media and how it is used is necessary. Specifically, that information must be gathered before any suspicion of illegal activity even exists. To me, this concern alone is sufficient cause to quash any attempts to copy the DMCA here in Canada.
The other interesting aspect of this issue is that the recording industry (per say) is actually divided on the issue - with many artists firmly OPPOSED to any kind of legislation such as this. The reasons are several - first of all are concerns as to how such a law will affect the relationship between the band and their fans. For an example of one of the more extreme cases, one need only refer to the 2000 lawsuit against Napster launched by Metallica - and the resulting backlash from fans. The other concern is one of publicity. Strange though it may seem, there are some bands that I've never heard of. There are bands that my friends and I combined, have never heard of. There are even - heaven forbid - bands that my friends and I combined have never even met anyone who over the course of their entire lifetimes will have heard of. Some of those bands will most assuredly, be atrocious. Some of those bands will, almost equally assuredly, be fantastic. The plethora of music, readily available for download somewhere online gives those previously mentioned bands (good and bad) a wider audience for their work to be heard. To give you a good case in point, I would likely never have even heard of any of my current three favorite bands without the benefit of being able to download their music - and for the record, I also now own a MINIMUM of 5 of the bands CDs each.
For these reasons, amongst others, I am strongly opposed to copying the American's DMCA in this country, and instead favour a different solution. A Canadian solution - one that actually protects the rights of the residents of our nation. A conservative solution - one that espouses the values of a free and open marketplace, lacking in governmental intervention. So what solution do I believe in? I believe that the indiviidual right to privacy supercides the rights of copyright holders to engage in invasive measures to protect their intellectual property. I believe that the study undertaken by two students of the Department of Management at the University of London that suggest a positive relationship between P2P file sharing and CD purchasing might actually be true. I also believe that internet downloading of media is the future of the industry, and should be encouraged by the industry as well as the artists. Or perhaps the recording industry is concerned about being cut out of the market by the artists, and the fans who support them. I believe that maybe, just maybe, the federal government should sit this one out.
Note: for a copy of the previously mentioned study, click
here
For further reading on the subject, any or all of the following links will suffice
http://www.cbc.ca/technology/story/2007/01/11/copyright-canada.html
http://www.cbc.ca/arts/music/story/2007/11/19/copyright-law.html
http://www.michaelgeist.ca/content/view/2419/125/
http://arstechnica.com/news.ars/post/20080311-canadian-mp-dont-use-wipo-as-excuse-for-canadian-dmca.html
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6 comments:
I firmly believe that the recording industry should become history. Musicians should be able to make the bulk of their money on actual work, such as live shows. While songs can take a long time to write and record, the bulk of an artists time is available for touring.
But you missed part of the point of the articles. The DMCA covers more than just the distribution of copyrighted music. One major portion of the act deals with circumvention of copy protection schemes, meaning that if there is such protection on the CD that you purchase, you will be unable to make a copy for yourself as Canadian law currently allows. Perhaps most significantly, the DMCA allows Online Service Providers, include internet providers, to be issued subpoenas for the identity of users.
The DMCA isn't all bad though. Although they may be required to release the identities of their customers, the OSPs themselves are not subject to prosecution for what their customers do. Could you imagine Rogers or Aliant being prosecuted as an accessory to the distribution of Child Pornography?
What I'm getting at here is that what we need is our own legislation that covers some of the same concepts as the DMCA, while preserving the freedoms that we value as Canadians.
The full text of the DMCA is available: http://en.wikisource.org/wiki/Digital_Millennium_Copyright_Act
I simply question whether or not it's possible to create an effective, enforcable copyright law that doesn't flagrantly violate the right to privacy of our citizens. This single question covers concerns both as pertains the use of P2P file sharing as well as the question of circumvention. Were circumvention the only issue, then including "fair use" clauses in the new legislation would be a huge improvement. The difficulty is that it isn't readily possible to prosecute someone for circumvention without engaging in surveillance prior to the person in question even being suspected - in violation of our right to privacy. The only exception to this is if someone is mass-producing bootleg copies of various media, in which case, investigation after the discovery of the crime is readily doable.
Furthermore, having just gone through and read the DMCA (at the link posted), I agree that it isn't all bad - specifically in that ISP/OSPs are not subject to prosecution for the acts of their customers. That being said, I also find that it is, on the whole, ineffective in giving protection to the rights of copyright holders except through the violation of the inherent right to privacy of the American people.
Furthermore, the actions required for proper enforcement of this act pose a clear violation to Article 12 of the Universal Declaration of Human Rights (which both the United States of America, and Canada have signed and ratified) - which states that "No person shall be subject to arbitrary interference with his privacy, family, home, or correspondence..."
with the limitation ... "as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." (Article 29)
The limitation put forward in Article 29 is insufficient to allow for proper enforcement of the DMCA against private citizens, and therefore, my concerns with this act, and with the potential promotion of another like it in Canada are entirely justified before both our Constitution, and before International Law (to which Canada is party).
This is a really interesting issue. About a year ago, when I replaced my iPod and laptop in one (costly) fell swoop, I also decided to explore the iTunes music store, and using the free "singles of the week" as an entry point, discovered that I liked being able to buy singles rather than entire albums, browse recommendations based on my past purchases, and access features like the celebrity playlists, staff favorites, themed playlists, and weekly "indie spotlights" to find new and different music. Digital music stores like this are, I think, what Industry Canada spokesperson Caroline Grondin in the Nov. 19 CBC article meant by "new business models."
I don't have a problem with people downloading from P2P agents for personal use - I've done it since the Napster days (when one song took 45 minutes ... ah dialup!) - but the question in my mind is, "how many people would have to enjoy the use of that song/album/television show/whatever without paying for it, either by downloading it from you or receiving a burned hard copy from you, before it becomes a punishable offense?"
Bruce informed me that the iTunes downloads are encoded with my personal info so that they know if the songs end up on a file-sharing client, and that I can burn them up to five times - for "personal use." And the new "digital rights management-free" downloads are tagged to prevent sharing but you get higher quality files in an unlocked format - ie. no limits on how many devices you can transfer the file to, or how many audio CDs of it you can burn.
I actually don't feel that my privacy is being threatened, or that people need to feel that monitoring of copyrighted digital material is invasive. When I read Tucker's inclusion of the limitation to Article 12 of the UDHR which allows for violations of personal privacy in the interest of "meeting the just requirements of morality."
To me, a person need not feel their privacy has been violated unless they're doing something they don't want the authorities to know about. iTunes has given me no reason to feel that my credit card information and address are in any way insecure, and I know - particularly when I'm purchasing music by independent artists - that while the return they see on my $.99 purchase may be small, it's not nothing. Calgary singer Feist's meteoric and well-deserved rise in 2007 is almost entirely attributable to Apple's use of her new single in an iPod commercial, the blogosphere version of word of mouth promotion, and the availability of her discography on the iTunes store along with links to her collaborative work with other indie artists like Kings of Convenience and Broken Social Scene.
Further to the new business models idea, I agree with Jason here - artists can't rely solely on the strength of their record sales. They make most of their money from tours and merchandising and things that make their fans feel important. Some artists have begun taking back control over their creative decisions and profits from the major record labels. Two examples come to mind: Radiohead making their latest album In Rainbows available for download at whatever price their fans felt it deserved, and more recently, Jill Sobule asking fans to make donations so she can make a new album. Every donation level comes with different perks. If you just want to contribute $10, then you get the album when it's completed, but if you want to contribute more, then you get merch, get to meet her, star in a music video, and so on.
These kinds of initiatives give all control to the musicians and the fans, removing the middleman of the "recording industry" and the need for "invasive" copyright laws.
First let me say that I do not disagree that the recording industry should disappear, and that the time for new business models has come (ie: the example of Jill Sobule's request for donations).
Alex, you said "To me, a person need not feel their privacy has been violated unless they're doing something they don't want the authorities to know about". First, let me say that I handedly disagree. Second let me point out that a violation of one's privacy is not something that didn't happen because it wasn't FELT. If someone is able to see what I'm doing on my computer, whether it's illegal or not, my privacy has been invaded. It's exactly the same that a peeping tom, whether caught or not, is still invading the privacy of their victims.
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I actually don't feel that my privacy is being threatened, or that people need to feel that monitoring of copyrighted digital material is invasive. When I read Tucker's inclusion of the limitation to Article 12 of the UDHR which allows for violations of personal privacy in the interest of "meeting the just requirements of morality."
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You're right - but you'll notice that even in the cases of investigating child pornography rings, random surveillance is STILL considered unconstitutional, and is not done. Ultimately, the standards set forth by both federal and international law hold true: that privacy is an inherent human right, and that random search/surveillance procedures are not acceptable as a violation of that right.
I just tend to think the digital realm needs more monitoring and control. And you brought up child pornography, so I'm not to blame for going off topic :P
But that's a prime example: people can indulge whatever fantasies they wish in the privacy and anonymity of the internet, no matter how dangerous, how subversive, how stomach-churning they may be. They can express hateful opinions, violating the constitutional rights of others. They can perpetrate identity frauds, hack into other peoples' computers, create and distribute viruses just to prove they can. You can bet that for every internet misuse case that gets brought to light, there are hundreds more that don't.
I accept that when I sign on to the internet, provide my personal information to create a user account, provide my credit card information to make online purchases (such as music, but I also have accounts on other shopping sites), I surrender my right to privacy if I violate the terms of use that nobody reads but everybody hastily agrees to. The internet is a form of commons, and I believe it's in the best interest of everyone who uses it if that use is monitored. Illegal music downloading is a mild form of abuse, but it's still stealing, and not everyone has your gilded intentions of buying the albums you enjoy in hard copy. If a person downloads the equivalent of 50 albums in a year, and then 50 people do the same, and nobody gets paid for it but perhaps the creators of the torrent clients by their advertisers, that adds up to losses for the creators of the music.
People can see what you're doing on your computer, babe. And they may not even necessarily be people who have been given the authority and responsibility to not abuse that freedom. I have no illusions about the privacy of the internet, so I simply try to be discrete and respectful in my use of it.
I beg to differ. We have ways and means of catching paedophiles, and do it rather effectively without circumventing the rights of the innocent. This is a part of the basis of due process. Again, I point to this example of essentially random surveillance, without any suspicion of wrongdoing as a violation of due process, as well as the right to privacy.
Furthermore, this sort of legislation actually gives sweeping powers to violate those rights not to law enforcement personnel, but to the officers of the copyright holders - which, by the way, is also in violation of the principle of due process in this country.
You say that when you create a user account and provide your personal information, you accept that your right to privacy may be violated if you break the licensing agreement. This is a completely different issue. This is not always a case of you giving your personal information to someone and signing a usage agreement. This is a question of giving companies the right to collect personal information without your knowledge, without your consent, and without prior warning that they may/will do so.
For the record, I have no illusions as to the true privacy of the internet for most people. However there is still a marked difference between acknowledging that ones privacy is subject to potential violation when one goes online and actually creating legislation allowing corporate entities the right to violate ones privacy.
As to monitoring the internet - very, very, very slippery slope. Essentially, this is the same question as the bill C-10 that has suddenly cropped up, raising fears about censorship in the media in this country. Ultimately, who is going to decide what is and what is not appropriate content for people to use online? I raise as a prime example the actions of the government of the People's Republic of China - who have essentially forced service providers in their country to refuse access to websites deemed "unacceptable" as far as they're concerned - needless to say, this blade cuts a wide swath.
Ultimately, there are higher laws and there are lower laws. This is part of why our Charter of Rights and Freedoms is a part of constitutional law, not just statutory law - because it is understood that these rights and freedoms of the human species must be protected BEFORE the remainder of the law is enforced. The reason for this is not because people abusing the fact that they have these rights does not occur, but to ensure as best we can that the people in this nation remain as we are - free to say, think, and act as we choose.
There exists due process of law and investigative practices to look into criminal activities both online and off - in this case as with all others - use it.
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