Thursday, December 16, 2010

An “iPod Tax” Election?

This blog is non-partisan. But copyright has lately become extremely partisan. So we can’t help but notice.

There are many problems with the Liberal Party position on copyright, just announced today here. I’ll focus for the moment on the private copying levy issue. 

The Liberals say:
The Liberal Party consulted thoroughly with artists across the country before coming up with this balanced solution. Specifically, the Liberal Party will seek to introduce a new Private Copying Compensation Payment of $35 million to be transferred to Canadian artists each year, through the Canadian Private Copying Collective (CPCC).  Liberals are proposing a new statutory program, written in law within the Copyright Act, which will increase at the rate of inflation and be reviewed every five years.

1.    Will this still be seen as a “tax”?  The proposed $35,000,000 a year won’t grow on trees. It will come from taxpayers, the  vast majority of whom are businesses or individuals who will have nothing to do with downloading music or private copying.

2.    If this is done as part of the Copyright Act, it’s difficult if not impossible to see how “national treatment” treaty obligations could be avoided. Most of the money then would leave Canada, after the lobbyists, lawyers, consultants and others involved with CPCC take their usual several millions per year off the top.

3.    If the Liberals want to really help Canadian musicians - and to keep the money in Canada - and to keep lawyers and lobbyists out of the picture, why not give more funding to the Canada Council, FACTOR, or other “programs” that are not subject to the Berne Convention or the 1996 WIPO treaties?

4.    Why prop up (how does one spell “BAIL OUT”?)  an obsolete collective that has worked well only for the lawyers, lobbyists, consultants, etc. who run it? If we leave the CPCC alone, it will die in a year or two since the only revenue now comes from blank CDs that are mostly used by businesses to the extent that they are used by anyone anymore - unless the Government prescribes CDs out of the picture earlier - as it easily could.

5.    It should be recalled that this is the legislation that the music industry - led by CRIA - asked for and got in 1997 - when digital media and the internet were in full bloom. CRIA etc. got exactly what it asked for. It’s focus was on an obsolete “home taping" concept from Europe - home of a socialist approach to collectives that has been rejected in England, the USA and Australia - particularly regarding “levies”. BTW, Canada has 36 or so collectives. The USA has only about half a dozen -  depending on definitions.

6.    CPCC’s distribution methodology is slow and non-transparent. It is based on record sales and air play, which are extremely counter-intuitive proxies for downloading behaviour. Payouts to the average working musician are at most $160 each per year and probably very much lower or non-existent in most cases. CPCC has refused to provide mean and/or average payouts to individual artists.

7.    What about downloading - the elephant in the room? Would it be legalized or not? If not, why should Canadians pay more taxes to fund the music industry to sue individual Canadian taxpayers who may or may not download? On the other hand, if downloading is to be legitimized, is $35 million a high enough price to pay and would the regime conform with the three step treaty tests?

8.    What about divisions within the music industry? CRIA is very ambivalent about the levy scheme it more than anyone created. Its big record companies love to cash the cheques - but hate the inevitable implication that all copying - including downloading - has been legalized as long as it is onto a leviable medium - regardless of whether there actually is such a levy in place. (Be careful what you wish for!)

9.    What about other creators? Would this be a “get in line” precedent” for writers, actors, movie producers,  etc.?

10.    How long will it take for the $35 million a year to creep up to $350 million - or $3.5 billion? Think gun registry and other “programs” that have been government funded and started out “small”.

11.    How would this be done, without drastic amendment of Part VIII of the Copyright Act, which would be “out of order” in Bill C-32, given that Part VIII is not part of the bill as it stood on second reading?

But the apparent irony may be that nobody is looking at Bill C-32 anymore.

The Conservatives have lost no time in launching attack ads directed at the coalition “iPod Tax”.  Could this be the first shot across the bow for the next election? An election in which copyright could actually be an issue?


Actually, not really. “Be careful what you wish for”.


1 comment:

  1. "But the apparent irony may be that nobody is looking at Bill C-32 anymore."

    This was my overall impression of the C-32 committee hearings in general. The most prominent issues were Access Copyright levies on educational institutions (and a misinterpretation of how fair dealings works in Canada), and this device levy (for recorded music, or possibly for everything under copyright).

    I asked if passing at second reading had any meaning, and few seem to think it does.

    There are some considerable problems with C-32, but outside the copyright bubble some of us live in people aren't even talking about the actual bill. I had someone ask me about the iPod levy last night, and I had to inform them it was smoke and mirrors on the part of the Conservatives : that the non-owner locks on devices that is actually in C-32 was far worse than the levy which wasn't in C-32 and was highly unlikely to happen.

    Note: In my comments on the Liberal position I wondered whether the Private Copying Compensation Payment is actually a PLR-like program such as I suggested in my Bill C-32 FAQ. Obviously since I suggested it, I am in favour of it. Curious if when the details came out and it turned out to be PLR-like whether you would support such a regime.

    PLR-like meaning a government program paid to Canadian creators (not strictly copyright holders) for activities that are not covered by the copyright act. (IE: truly private activities like time/device/format shifting, backups, etc would be carved out of copyright, closer to how US Fair Use has been interpreted).