Brian Parker is a JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.
Uncertainty in the efficacy of current Canadian copyright legislation to address online file sharing may be rooted in an incompatibility between the traditional approach to copyright and music in the digital age. Internet Service Providers may provide a vital conduit through which a modernised notion of copyright could signal the end of illegal music piracy in Canada.
The intention of the Government with Bill C-32 is to “modernize Canadian copyright law for the digital age while protecting and creating jobs, promoting innovation and attracting new investment to Canada”. The bill seeks to give creators, performers, and artists the exclusive right to control how their copyrighted material is made available on the Internet. But given the rate of development of internet technologies, application and enforcement of such a right may be a source of legal uncertainty. Perhaps the modernisation of copyright should realise that digital dissemination may not fit into traditional notions of replication. If difficulties are to be avoided, perhaps modernisation ought to mean doing away with the traditional “right to copy”, focusing instead on collection and distribution of remuneration to creators. While such an approach is a fundamental change to the right held by creators with respect to their online/digitalised works, it would be somewhat similar to broadcasting and other associated rights where remuneration is collected via tariffs and collective management. The difficulties in establishing a lasting definition of what constitutes digital “copying” may be a sign that the legislation should be focused on a right to remuneration.
Daniel Gervais argues that music consumption has increased as a result of file sharing. He sees this increase as an opportunity for the music industry to benefit from the increased use of their product. It seems that many listeners are ready to pay, so long as it doesn’t inhibit the freedom to access and manage their music in a manner that online sharing provides. To unite this freedom with the remuneration to rights holders required to maintain the creation of such works, a scheme based on blanket licences seems like an appealing solution. With internet users already subscribing to online access through ISPs, perhaps blanket licences could find a convenient home on the monthly internet bill. There are some studies which suggest that such licences could be quite modestly priced.
Although the recent Australian decision absolved ISPs of liability for file sharing by their customers, the court did indicate that ISPs may play a role in the protection of rights with respect to online music consumption (iiNet Ltd.). ISPs are the conduit through which users are granted access to copyrighted works and file sharing mechanisms. If this connection is looked to as a source of revenue, perhaps the recording industry could realise some profits through the modern consumption methods of users. As Gervais noted, while a compulsory licence may be prohibited by international law, an opt-out system might just be the ticket.
The common concern with such an approach, aside from potential technological challenges, is that monitoring downloads to allow for appropriate distribution of revenue - which would be important for creators - may be an infringement of International Agreements regarding privacy rights of license holders. However, these rights take meaning through communal and judicial understanding of the circumstances of their application. As internet use continues to overtake what were traditionally physical interactions, perhaps society will come to accept the pseudo-public nature of the world-wide web. If such acceptance is realised, privacy arguments may fail in the face of larger societal objectives that require a more substantial online legal presence. Although the law has come to address some areas of online interaction, much of the internet arguably remains free of effective regulation despite legislative efforts. Given the enormity of its use by modern society, this void is somewhat inconsistent with the obvious force of legal regulation in the non-digital world. Perhaps we’ll look back on the days of limitless web surfing as a lawless frontier in the early digital age.
Since legal presence online is likely to increase as time moves forward, the challenge in is shaping this presence. The approach that purports to grant rights holders control over online availability of their works may not only be a losing battle in terms of enforcement, but also may bypass an opportunity to provide the music industry with sufficient remuneration to stimulate creative discourse while maintaining many of the benefits of P2P sharing. The application of blanket download licences regulated through ISPs may provide this solution. It may be an ironically appropriate course of action given the reputation Canada has received as a safe haven for online piracy. The Canadian response to these accusations could be an acceptance of the realities and benefits of P2P file sharing; distributing license fees and bringing an end to the notion of online music piracy in Canada.