Monday, February 27, 2006

CRIA Spinning on the WIPO Treaties

Get ready for more spin about Canada and the WIPO Treaties as we approach Canada Music Week and the CRIA machine goes into high gear:

A current announcement for a Canada Music Week panel on March 3, 2006 in Toronto contains the following misleading statements:

In 1997 Canada placed its signature on two International treaties designed to update copyright laws in a way that would allow the digital marketplace to flourish. All of Canada's major trading partners joined Canada in signing the Treaty. Almost 9 years later, and unlike those same trading partners, Canada has yet to enact legislation. Canada finds itself an analogue island - increasingly isolated in a digital ocean.

In June of 2006 [sic] the government of Canada finally acted. Legislation was tabled purportedly implemented [sic] the treaties. Expectations ran high among artists and labels. Disappointment was even keener. Bowing to pressure from the anti-copyright lobby, the government drafted legislation that was widely viewed as the weakest protection for copyright in the world. Opponents of copyright reform had erroneously, but successfully, argued that copyright reform in other territories had been a disaster, inhibiting the free flow of ideas, endangering the privacy rights and damaging technological innovation.

(emphasis added)

Reality check:

Canada joined other countries in signing, not vice versa. Signing a treaty is to ratification about the same thing as dating is to marriage. The former doesn’t necessarily lead to the latter.

As to ratification, which is what CRIA wants Canada to do, the truth of the matter can be found at the WIPO website where an up to date list of countries that have actually ratified the
WCT and WPPT can be found. Ratification is where the rubber actually hits the road.

The only two countries that can reasonably be regarded as being “Canada’s major trading partners” are the USA and Japan. OK – one can quibble about Mexico, which is so eager to please their neighbour to the north that it has leapt to a life +100 year term of copyright protection. One can only wonder why and how that deal was arranged. Mexico it is part of the NAFTA deal that is the legacy of Reagan + Mulroney.

Even if Mexico can be regarded as a major trading partner due to NAFTA, it’s hardly a major country. Its influence and economic clout outside of NAFTA are quite minor and it has virtually no influence in international copyright circles. The rest of the list ranges from Albania to the United Arab Emirates, in other words the current “coalition of the billing”, all of which are beholden to the USA for various reasons best known to themselves.

The EU is way behind its own schedule and controversy is increasing within on implementation and ratification. In fact, France appears to have taken an aggressive path towards legalizing downloading and file sharing.

As for Canada’s current laws or even the now defunct Bill C-60 being weak, that’s nonsense. Canada provides far greater protection to the music industry in many respects than does the USA. For example:

  • Canada’s neighbouring rights regime gives tariff payments for ordinary broadcasts to record companies and performers that are more or less equal to those paid to composers. In the US, there are no such payments.
  • Canada provides a much longer period of protection to many American composers and music publishers than does the USA. For example, many of Irving Berlin’s early works will generate payments in Canada until 2039, even though his pre 1923 work fell into the public domain in the USA ages ago
  • The USA didn’t provide copyright protection for sound recordings until 1976. Canada has done this since 1924.
  • Canada has moral rights for composers and proposed them for performers in Bill C-60. The USA does not provide moral rights for either category – and there is deeply ingrained resistance to ever recognizing the concept explicitly in copyright law if it could affect the music or film industries.
  • And the USA has its notorious work for hire doctrine, which treats performing musicians as the hired help unless and until they achieve star status.
  • Canada has what was at the time of the last Copyright Board hearing one of the world's richest - possibly the richest - music levy schemes on blank media in both relative and absolute terms. At that time, Canada had only a 2.4% share of the world's music publishing business - less even than the Netherlands and Spain and a fraction of that of that of the UK, France and Germany. The levies have provided an estimated $160 million to date to the music industry, a very large chunk of which will find its way back to the USA, which has no remotely comparable regime. This is the levy scheme that the music industry wants to see subject to national treatment and thereby effectively doubled, with virtually all of the extra money by definition going to American and European interests.

So – let’s not get too carried away by the CRIA spin about the WIPO treaties. The real reasons why the so-called “Canadian” Recording Industry Association (“CRIA”) wants these treaties ratified according to their definition of adequate implementation probably include:

  1. They want to get their hands on the enormous amount of money that would result from the doubling of the private copying levies as a result of the national treatment requirements of the WPPT.
  2. The want legislative clout for aggressive TPM and DRM technologies – so that exercises such as the SONY Rootkit deployment could be blessed by law and it would be then be illegal to try to undo the resulting harm.
  3. They want “access controls” to be spelled out in law, so that it would be illegal to circumvent TPM or DRM schemes to engage even in insubstantial copying, fair dealing or access to the public domain – or even a bypass of regional coding for legit DVDs bought abroad.
  4. They want an aggressive “notice and take down” regime – that would result in easy take down of supposedly infringing material on the internet, essentially without recourse, merely by sending an automated electronic message to an ISP.

Of course, the treaties have some useful concepts and are by no means all bad. Much good faith effort went into them. The problem is that CRIA’s over the top definition of compliance in the American DMCA image is making them look unattractive to many.

Maybe that’s the real problem. Once again, CRIA should be careful what it wishes for. For example, their recent wish to make copyright an election issue probably cost their favourite MP, Sam Bulte, her seat.

Attempting to raise the profile of the WIPO treaties issue may also well backfire. There are good reasons why Canada has not rushed to ratification in the DMCA mode expected by CRIA. The new Government may not wish to entertain the inevitable controversy that the CRIA campaign will generate.

Besides, CRIA and IFPI stats show that Canada is doing very well indeed in music industry sales and revenues compared to the other countries that we supposedly lag behind in terms of legislation. Sometimes, though not in men’s Olympic hockey, slow and steady wins the race….


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