These days, you hardly have to think of a song you want to listen to and it’s at your fingertips. With bigger and bigger hard-drives, you can also download any TV show, movie, or even commercial that is of entertainment value. You could say our computers are cornucopias of the modern media and arts.
Too bad it’s illegal.
For those of you who hold your downloading privilege (or addiction) dear to your heart, you’ll be thrilled to know that there are options for media distribution less cumbersome and pricy than HMV, Walmart (the largest music retailer in North America), and iTunes.
As thousands of American file-sharers were sued by the Recording Industry Association of America (RIAA) for their MP3-sharing activity last year, Canadians kicked back and threw open their shared music collections, secure in the knowledge that the RIAA has no jurisdiction in Canada. The Canadian Recording Industry Association (CRIA) scolded them mightily, but no subpoenas appeared. All that may be about to change.
Canada’s federal government signed the UN’s World Intellectual Property Organization (WIPO) treaty in 1997, an international agreement that specifies a more stringent standard of copyright law for participating countries. Among other things, the WIPO treaty specifies tighter enforcement of controls on electronic media like file-sharing networks and MP3s.
Luckily for downloaders, this treaty has been caught up in so much legal wrangling that parliament hasn’t passed it yet, a full eight years after signing on.
Many key players in copyright industries say that we have waited too long to wign WIPO. I attended “Sound Bytes/Sound Rights,” a conference hosted by U of T’s student-run Technology and Intellectual Property Law Group at the Faculty of Law to find out more.
From a downloader’s perspective, the most important aspect of the WIPO treaty is that it grants the justice system the ability to enforce a “notice and takedown” system for material they claim to be unlawfully shared.
It works similarly to the following hypothetical situation: I upload a song-say, Shania Twain’s “Man, I Feel Like a Woman.” (It is the person who allows material to be downloaded that gets in legal trouble, not the downloader.) My internet service provider sees that I am not, in fact, Shania Twain or her company; thus, I do not have the right to share her intellectual property. Twain and her music label take objection to this. I am sent a notice to take down the song. I then refuse, because I am a rebel, and the ISP will take it down themselves. I may appeal the decision; however, Richard Pfohl, General Counsel to CRIA, cites a recent trial study of the “Notice and Takedown” system in the U.S.: “Of 114,000 notices of copyright infringement,” he said, “there were only 13 cases of objection-in only three cases did material go back up.”
“It’s just another tool without us having to sue people,” said Pfohl.
Liberal M.P. Sarmite Bulte, chair of a parliamentary committee investigating possible updates to copyright law in light of recent technology, says she wants a government bill to ratify the WIPO treaty and make “notice and takedown” legal this spring.
A case before the Federal Court of Appeal, “BMG vs. John Doe,” may also confirm that uploading copyrighted media files is illegal.
That doesn’t mean file-sharing is dead: talk to Neil Leyton. This Toronto musician and Label Director of Fading Ways Records is entirely in favour of uploading, downloading, and sharing music. He thinks it is empowering for small independent musicians to reach a larger audience. For example, he noted that singer Elliot Smith found success in this way.
For his music label, Leyton uses the Creative Commons Licence (www.creativecommons.org), which gives anyone the right to listen to and share his label’s music as much as they want, as long as they don’t sell it.
“Music fans who discover an artist will go on to buy the record as long as they like it,” Leyton said. But he added that he thought “a differentiation must be made between artists and what I’d call disposable entertainment.” Leyton thinks a lot of the music being made today that comes out of big record companies can be described as “disposable.”
Leyton also dislikes iTunes, Apple Computer’s legal online music store. With a Creative Commons Licence, he said, “there is no forced monetary coercion to get culture.”
At the moment, however, songs available through iTunes and similar for-pay music downloading services outnumber songs available under a Creative Commons Licence. A recent study by TEMPO, the Ipsos-Insight quarterly study of digital music behaviours, reports that nearly half of American downloaders aged 12 and up had paid a fee to download music or MP3 files off the internet.
The most radical idea of the day came from an unlikely rebel: Harvard Professor William W. Fisher III. He explained that we have two obvious choices as a society: action or inaction. He has an explanation for both.
On the do-nothing side, he cited the case of VCRs: when VCRs came into use, movie studios thought it was going to mean a huge drop in revenue. They thought people were going to tape movies off commercial TV, watch them by skipping commercials, and render all advertising money irrelevant. They wanted to block the technology or tax its sales.
Then the studios actually began to manufacture and sell videos-and studio profits have been rising ever since (if DVDs are included). Thus, Fisher said, maybe we just haven’t adapted to the technology yet.
Nonetheless, he has a solution ready in case the VCR solution fails. Fisher’s “Alternative Compensation System” rewards the creators of media (mostly movies, music, and TV), with a piece of a huge pool of taxes that would be collected on devices or services that allow for downloading. He says adequate compensation would cost about $1.2 billion per year, or in personal terms, $9.36/month (US dollars, of course). This may seem expensive, but compared with most people’s media shopping-remember, it amounts to less than US$10 per month for every movie, song, and TV show currently produced, as much as you can watch or listen to-this is a bargain for unlimited access to everything.
One reason all of this money can be saved is that it’s direct from the creator to your ears-no packaging, marketing, or distribution costs.
The critical aspect of Fisher’s system is how it rewards artists fairly.
“The audio/video would likely be streaming from various hubs around the country that would track what is being listened to, or watched, and for how long,” Fisher said. This is fairer than tracking the number of downloads, because he said that 75 per cent of downloaded files are never listened to once through.
But don’t hold your breath: this model is an unlikely possibility for capitalist North America. It is very much a realistic possibility in China and Brazil, however, and both countries are already investigating the possibility.
Bob Young, an internet entrepreneur and owner of the Hamilton Tigercats, pointed out that, on a philosophical level, civil society cannot afford to copyright too much. Copyright is in place to give creators the incentive to create and profit from their creation, but with the current copyright law-which continues to protect copyrights for 50 years after the death of the creator-“We are giving authors the incentive to write the next great novel 50 years after they’re dead.”
“It’s a myth that music is created out of thin air,” said Young. Music, he said, like most intellectual innovation, emerges out of the past and within the context of its society. He paraphrased what Issac Newton said about the ability to create new ideas: “It’s very easy to see far when you are standing on the shoulders of giants.”
