Analyzing the Songwriters Association of Canada’s proposal to legalize file sharing

Since the Songwriters Association of Canada (SAC) proposed to legalize file sharing, many Canadian groups have responded, both positively and negatively. The Canadian Music Creators Coalition called it a “forward thinking approach” that ought to be discussed, while foreign corporations’ Canadian representatives (such as the Canadian Recording Industry Assocation) slammed it as a “pipe dream.”

I first heard about this proposal in November, a few weeks before it was finalized and announced, through the Songwriters Magazine I receive as a SAC member. My initial reaction was a negative one, but as I contacted them and exchanged a few emails with Eddie Schwartz – the proposal’s architect, or at least overseer – I warmed up to the idea a little bit. There were still some concerns left lingering though.

Now that I’ve had some time to think about it, I’m going to revisit and review the proposal to outline what I consider its strengths and weaknesses, as well as remaing questions I have.

(Numbers refer to the points listed in the proposal.)

What I like

I strongly support the SAC in bring forth this proposal. This is certainly the type of thing we need. It considers artists rights and freedoms as well as the rights and freedoms of music fans without taking a position to suggest that there needs to be a conflict between those varying interests.

The proposal looks at ways to legalize the act of file sharing rather than pretending it can be stomped out of existence and viewing it as a negative thing. It acknowledges that “file sharing is both a revolution in music distribution and a very positive phenomenon.” (2)

The proposal covers all types of file sharing from one individual to another for non-commercial purposes, regardless of the medium (ie. LAN, hard drives, CDs, DVDs, email, etc.). (5)

The new “Right to Equitable Remuneration for Music File Sharing” would not conflict with commercial music services, which could still continue to provide “value added” services for a fee. (9) One example would be security, in paying for a track from a commercial store, listeners could be assured that the files they download won’t contain any malware. Other examples could include digital album art, videos, etc. There would still be a market for additional and professional services. Take bottled water for example. In a country like Canada, we are fortunate enough to have easy access to water for essentially no cost, yet the bottled water industry is extremely profitable.

What bugs me

The fee is to be collected by ISPs, when it’s not really their responsibility. It does feel like a tax. There’s no way to opt-out included in the proposal, so my grandparents – who are surprisingly computer savvy, but don’t download music – would be paying the fee, as well as my office. Society doesn’t owe artists some sort of social welfare. Also, this makes the proposal difficult to implement if it requires cooperation from other groups to collect this fee.

I don’t trust Big Champagne (or other similar companies) and I don’t want a company, or a collective for that matter, deciding to which artists my money goes. Big Champagne uses all sorts of proprietary software to do their analysis, so there’s little chance for transparency or review of their methods. More importantly, the decentralized nature of file sharing makes it extremely difficult to measure. They may be able to monitor peer-to-peer networks, but they have no hope of monitoring songs shared via email or flash drives. I’d much rather play an active role in financially supporting artists. If I like an artist, I will buy their CD or go to their concerts. I’d like an opportunity to be able to support an artist when downloading music (e.g. Radiohead’s pay-what-you-can experiment), rather than relying on some organization to sent them pennies in the mail for my download.

Even if a minority of music listeners compensate artists in some way after downloading music (though the latest government study suggests that music downloaders buy more music), there are a wide variety of business models that can make a ton of economic sense. But that’s for another post…

Also, I find downloading much more useful for sampling purposes than as a substitution for purchases. How is it going to be determined whether a track I downloaded was listened to once and then deleted, or whether it became a favourite of mine? If it were a favourite, I’d gladly pay money for it. If I had to pay to sample it, I probably wouldn’t download it in the first place.

Most Importantly…

This is a free culture issue to me (free as in freedom). The laws should be based on respecting people’s freedoms and creating incentives for artists to produce songs. There is no natural right to a monopoly over works you produce as an artist; an artificial monopoly is granted, only insofar as it benefits society as a whole.

What sorts of things should people be allowed to do with music files they have obtained legally? That’s the fundamental question.

I believe they ought to be able to do virtually anything for personal use, which includes creating backup copies and format shifting. I also believe that people ought to be able to share things they own with their friends. If I like a song, I should be able to share it with a friend who might also like it. The fact that I can keep a copy for myself while doing this is a blessing, not a curse.

In a way, peer-to-peer file sharing is just that. But… does scale change the nature of the act? If I want to share a file with a stranger, that should be within my rights. But when millions of strangers get together and make virtually any songs available, does that change the nature of the act of sharing?

I don’t believe so. I’m not entirely convinced, but I can’t seem to grasp how the difference in scale would change the fundamental nature of the act.

If people should be allowed to share things they own with other people, they why should anyone owe money for file sharing anyways? It would be great to develop a way, a system, for interested music listeners to support artists financially, but if it’s reasonable for me to be allowed to share my possessions with others, then it would be wrong to force me to pay to exercise that freedom.

The Creative Commons Music Sharing License – which I’ve been using for my music – allows music files to be shared (copied, transmitted, distributed) so long as its for non-commercial purposes, with attribution and “as is” (ie. no derivatives). That seems to me a reasonable basis for true fair dealing of audio files. If that’s the case, why should we pay a fee for those rights?

I applaud the SAC for their proposal and believe it is certainly the type of thing we need to be discussing. I’ve signed on as a supporter. However, I’m a bit hesitant about making some special exception in the copyright act (with a fee attached) rather than re-examining fair dealing provisions.