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Article first published in Canadian New Media, Decima Publishing.

Republished with permission.

Volume 6, Issue 2 2/7/03

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News Makers
Content industries on slippery slope with demand for blank media levy

by Russell McOrmond

I would like to add the views of an independent software services company to the private copying regime debate. The software industry is seen as almost analogous to the recording industry, with similarities between lobby groups such as the Business Software Alliance (BSA) and the Recording Industry Association of America (RIAA).

My one-person business is not one BSA wishes to protect. I am part of the sector that is their largest competitor: Free/Libre and Open Source software. While these different sectors compete on software, there is also competition on business models as we do not rely on royalties to pay for software development.

In their North American piracy study, the BSA and the Canadian Alliance Against Software Theft (CAAST) made use of invalid statistics suggesting using alternatives to their products is piracy. As I use no software from any CAAST member, I find this suggestion offensive.

The private copying levy subjects Canadian musicians to similar problems. While the private copying levy is promoted as a way to compensate artists for citizens copying works in their home, it appears more likely to be a way to further entrench traditional business models and artist dependence on the recording industry.

The Canadian Private Copying Collective (CPCC) has admitted that since there is no way to know what kind of music is being copied, they will use a proxy system that analyzes airplay and sales data. Airplay is manipulated by the recording industry, which sometimes pays radio stations to favour certain artists. Sales data will only tell them how many CDs are sold in the traditional distribution system. This measurement does not include any of the growing alternatives that may not involve the recording industry or CD distribution at all.

Levy discourages alternatives

An artist making use of legal private copying as advertising will receive no royalties from the CPCC. The artist and those who copy their music still pay the levy on blank media which will go to competing bands. This will discourage artists from trying out alternative business models from those mandated by the recording industry.

According to the Canadian Coalition for Fair Digital Access (CCFDA), the CPCC is not accountable to anyone except its collectives. Since the regime was established in December 1999, the CPCC has collected over $28 million in levies. Only in January this year did the CPCC announce they would finally start paying artists.

This levy treats one user of communications media different than all others. While problems and costs are bad enough now, what if book authors or sheet music composers claimed the right to tax blank paper, or the motion picture industry put a tax on ‘blank walls’ that could have movies projected onto them? Or how about a levy on plumbing given many of us sing copyrighted songs in the shower?

I would find it reprehensible if CAAST managed to get added to this regime such that all the blank CDs I buy end up subsidizing my competitors (and in some cases, my arch enemies). I already pay to the recording industry for media used to store software.

The Recording Industry in Canada has been granted a right of remuneration, which is pretty much a "right to profit". Unlike for-profit copying of works, or stealing music CDs, private copying is a situation where no money is changing hands and it is questionable whether it is harmful to artists. Copyright should be used as a way to ensure that artists can control any commercial communication of their works, not claim control over non-commercial communication.

The strongest opposition will likely come from the consumer electronics and computing industry which have formed the CCFDA. The companies represented in the coalition believe that the private copy levy regime is fundamentally flawed, too broad in scope and should be repealed.

While I largely agree with them, I cannot support the CCFDA as they currently promote technological protection measures (TPM).

TPM requires that information and communications technology tools ignore or disobey the instructions of the owner of these tools, and instead obey the desires of the copyright holder and/or the tool manufacturer.

TPM allows copyright holders and/or tool manufacturers to limit not only unlawful, but lawful uses of works under copyright.

I believe that any ‘hardware assist’ for communications, whether it be eye-glasses, VCRs, or personal computers, must be under the control of the citizen and not a third party.

The "content industries", such as the motion picture and recording industries, are not legitimate stakeholders in the discussion of what features should or should not exist in my personal computer or VCR, any more than they are a legitimate stakeholder in the production of my corrective eye glasses.

If a member of a content industry doesn’t like the technology that exists in a given market sector, be it consumer electronics in the home or personal computers, they can simply not offer their products/services into that market.

Russell McOrmond is an Ottawa-based software developer.

His web site is at http://www.flora.ca/russell/.

Copyright 2003, Decima Publishing Inc.
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