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SOCAN Tries To Keep Its Copyright Consultation Submission Offline And Secret, But Fails

This post originally appeared on Techdirt.

We were just talking about how SOCAN, the Canadian copyright collection society, was going after gymnastics clubs for kids using music in their practice routines. Now they’re getting some well-deserved attention for other antics. Michael Geist explains how SOCAN tried to keep its submission to the government copyright consultation secret. The organization apparently requested that its submission not be posted online, even though that was part of the consultation process. The government made it available anyways, but only by email upon request. Of course, it’s now available online elsewhere [PDF].

SOCAN’s recommendations aren’t surprising. They call for a making available right (article 22 of the submission), a broadening of the private copying levy (article 30), anti-circumvention provisions (55-56), notice-and-takedown (59), copyright term extension (60), and no further exceptions to copyright (34, 48). But rather than outright declaring war on consumers, they copy the language (poorly) of those seeking more effective copyright reform. For example, they claim that the “rights of users and creators” are already “balanced” because “the Copyright Board of Canada provides a fair mechanism to set the royalty” (45) — someone had better tell the gymnastic clubs! Another great example: They want to expand the private copying tax levy to digital audio players so that it’s “technologically neutral.” (11) No word on when they’ll want it to apply to hard drives in general. SOCAN also repeats the ridiculous argument from the Toronto copyright townhall that “unwarranted” fair dealing provisions would mean asking creators to “work for nothing:”

Copyright amendments must not set up unwarranted exemptions, or otherwise limit the copyright royalties paid… If you deprive SOCAN’s members of copyright royalties, you are basically asking over 35,000 Canadian individuals to take risks and work for nothing. That’s not realistic, and it’s not fair. (34-35)

It’s just laughable to suggest that more flexible fair dealing (i.e., something like the American concept of fair use) would mean artists not getting paid. Do artists “work for nothing” in the U.S.? Though, it should be no surprise from an organization that claims that, if you use a Creative Commons license, you “won’t get paid” and your work may become devalued. To a collection society, getting paid can only mean royalties, and the value of music can only mean… well, royalties.

Best of all, they seem nervous about Industry Minister Tony Clement, who’s given some indication that he wants to craft forward thinking policies. SOCAN recommends that the Standing Committee on Canadian Heritage have sole responsibility for copyright reform (article 66). The Heritage committee is involved in the process, but as Geist points out, this recommendation betrays some discomfort with Clement and the Industry Committee, since the Copyright Act clearly grants the Minister of Industry responsibility for copyright. So, first, we get a laundry list of maximalist demands using the language of “balanced” copyright reform, then a suggestion to ignore the Copyright Act and exclude the ministry they’re not comfortable with (you know, the one focusing on the economic concerns) from having any responsibility in reform? No wonder they wanted to keep the submission secret.

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Toronto Copyright Townhall: Canadian Record Industry Mobilizes In Panic, Everyone Loses Out

This post originally appeared on Techdirt.

Last Thursday, I attended the Canadian Copyright Consultation Toronto Town Hall (video). Despite the stated intention of soliciting a “breadth of perspectives,” the record industry dominated the event. Michael Geist described it as the “Toronto Music Industry Town Hall” and a local publication called it the “town hall that didn’t invite the town”. Tickets were limited and speakers chosen by lottery, yet half the speakers were from the entertainment industry — collection societies, record labels, industry lawyers. Twice as many industry representatives spoke as artists or creators. There was the odd librarian, student or programmer (and I had a chance to speak), but otherwise the participants seemed so skewed towards the same perspective that one person greeted the audience, “hello, music industry,” and some non-industry (though admittedly not very eloquent) speakers were heckled towards the end. When asked afterwards about the strong music industry presence, the Minister who ran the town hall joked, “I guess they had the night off.” There are lots of questions about the sincerity and efficacy of the consultations (though, also some indication that the government might take the time to try and get things right), but what was most disappointing, albeit least surprising, was what the entertainment industry actually had to say.

Most industry speakers presented emotional pleas, with little in the way of serious suggestions. They focused on a “right to get paid” and “fair compensation” (without talk of providing a reason to buy), while Canada was portrayed as a “lawless society,” rampant with property “theft” and hostile to “legitimate” business (despite evidence to the contrary). A writer stunningly declared that “[more flexible] fair dealing would be a disaster for creators,” while SOCAN claimed that adding “unwarranted” fair dealing provisions would be asking creators “work for nothing” (even though flexible fair dealing would be a lot like fair use in the US — hardly a disaster). The President of Warner Music Canada talked about disappearing jobs, and many industry employees painted a dire picture of colleagues and artists struggling to make ends meet (with little mention of any success stories). Yet, when the occasional concrete recommendation was made, it was to implement a notice-and-takedown system (ripe for abuse), extend the “you must be a criminal” tax blank media levy to digital audio players (an idea that’s been struck down twice), or enshrine an inducement doctrine into law — extreme measures which have provided little solace to failing businesses elsewhere.

It wasn’t argument. It was the language of moral panics.

The Canadian record industry was demanding to be lied to, to be told that more restrictive copyright laws will save their business. Though fewer and fewer people can convincingly tell the lie, they seemed perfectly capable of convincing each other that restrictive copyright legislation might somehow stop the market from changing (even with a decade of hindsight on the DMCA). It’s tragic, because hard working people who love music and love working for artists are losing their jobs, but the industry continues to block the sort of innovations that could provide it with a way forward. A lawyer described the music industry as a “copyright industry,” even though most artists and companies who are figuring out how to make money in the digital economy are successful despite copyright — not because of it.

Artist voices were few (nevermind consumer voices), which is disappointing because many Canadian creator groups are adopting more forward thinking approaches, proposing solutions that don’t involve criminalizing common consumer behaviour. Now… most creators echoed the industry in supporting the levy and its expansion to digital audio players and even ISPs, and some asked for new royalties and more collective licensing, but that’s much better than demanding stricter laws and enforcement mechanisms. The problem remains though, that although collective licensing may be a move in the right direction, short-term revenue from additional royalties and levies also increases barriers to innovation, making it harder for new sustainable long-term business models to emerge. Artists and creators need to find a way to earn money that’s based on a solid economic ground, instead of depending on levies that can quickly become absurd. That’s where the record industry should be able to help them out.

Artists and creators need to be able to experiment with new business models, but the copyright crutch gets in the way. They turn to levies and licensing because they can’t imagine how else to make money, but successes have been outside of the copyright system. Canada needs innovative companies to help artists and creators find digital business models, not to chase fictive legislative solutions. If the Canadian record industry isn’t willing to help creators with what’s next, they need to clear out of the way.

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