Great Day For Canadian Copyright: Supreme Court Issues Five (Count 'Em) Rulings Supporting Fair Dealing And Fewer Tariffs
from the proud-day dept
Canadian copyright is undergoing huge changes. The copyright reform bill is very close to becoming law, bringing with it some fantastic new fair dealing provisions (though unfortunately along with a significant downside in the form of digital locks rules), and now the Supreme Court has stepped in with a series of major rulings that reinforce users' rights and begin the process of cleaning up the mess that is Canada's copyright tariff system. This morning, the court published five separate judgements in cases related to tariffs and royalties, and each one contains significant victories for smarter copyright law.
There is a lot to dig into in this series of rulings, and some complex legal questions involved in some portions, but each one also makes clear statements. In the first case, between Alberta schools and the copyright collective Access Copyright, the court found that photocopies for classroom use can be covered by the "research" provisions of fair dealing. In the second case, between videogame publishers and a music collection society, the court found that selling videogames does not constitute a new public performance of the music they contain, and thus does not require a public performance royalty (yes—the Copyright Board and Federal Court of Appeals had both previously ruled that transmitting videogames with music in them counts as "communication to the public"). Similarly, in the third case, the court found that films which contain music are also not public performances requiring an additional royalty (on that one, the lower courts had gotten it right and also refused to certify the tariff). In the fourth case, the court affirmed that while streaming music to users is a public performance, offering music for download is not—so services like iTunes also don't have to pay additional performance royalties. Finally, in the ruling that may get the most attention, the court found that 30 second previews of songs provided by online music services qualify as fair dealing for the purposes of research—a battle that has been going on for a long time in Canada and is now, finally, put to rest.
The rulings also contain a lot of very important language that will have a lasting impact beyond these specific scenarios. The Supreme Court reaffirms the fact that fair dealing must have a "large and liberal" interpretation, and set down some clear restrictions on the power of the Copyright Board. Howard Knopf does an excellent job of summing up some of the important points and broader themes of these five landmark rulings:
- Collectives cannot assume that they will be entitled to an additional "layer" of remunerated rights every time there is a new method of delivery. Technological neutrality matters.
- The Court said what it meant and meant what is said in CCH v. LSUC in 2004 and will move forward from there - not be pushed backwards.
- Users have rights that must be given a "large and liberal interpretation". Copyright doesn't exist solely for collectives.
- Educators are in a "symbiotic" relationship with students and the Copyright Act serves the goal of education, which includes access to essential material
- Copyright law is both about "protection" and "access"
- Copyright law is about "dissemination"
- "Research" is not restricted to "creative purposes". Consumer research counts too. Research can even be for "personal interest". There is no absolute requirement for "transformative" use in Canada
- The user's purpose is the one that counts in fair dealing
- Practices that increase the sale of work cannot be said to have a negative impact on the work
- The concept "public" must be considered in light of new technology, technological neutrality and the purpose of the legislation. The fact that communication may be interactive on an individual basis does not mean that it cannot be considered to be to the "public"
- When the statute uses a word such as "excludes", it means it. The word is not superfluous.
- Parliament did not intend to "recognize a superior expertise of the [Copyright] Board relative to the courts with respect to legal questions arising under the Copyright Act". On copyright questions of "first instance", the Board will get no more deference that any court would get. In other words, the Board must be "correct". It will not be sufficient that it merely be "reasonable"
One of the groups that is likely to be hit the hardest by these rulings is Access Copyright. We've covered the fact that Canada's university association struck a terrible deal with Access Copyright for the clearance of educational materials, and several major Canadian unversities are refusing to sign on. This Supreme Court case was not directly dealing with that situation (it covers only primary and secondary schools), but the ruling contains a complete tear-down of Access Copyright's entire business model which applies every bit as much to universities and colleges. Michael Geist walks through the point-by-point dismantling of all Access Copyright's standard arguments against fair dealing, leaving them very few legs to stand on moving forward. For those universities that plan to clear their own copyrights, this is a very big win—for those that didn't have the resources to keep fighting after the AUCC abandoned them, it just highlights how bad of a deal they got.
Copyright law in Canada has its problems—first and foremost the extremely bad digital locks rules that will come into effect with Bill C-11. But, increasingly, and most notably at the Supreme Court level, we've also been making significant strides in the right direction, using legal language that displays a clear understanding of both modern realities and the need for balance in copyright law. There are still important battles to be fought, but today the Supreme Court gave us a huge arsenal of new weapons.
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Filed Under: c-11, canada, education, fair dealing, research, scc
Companies: access copyright
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"Research" is not restricted to "creative purposes". Consumer research counts too. Research can even be for "personal interest". There is no absolute requirement for "transformative" use in Canada
So clear and smart it hurts.
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And I'm smiling broadly.
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The TPPA binds signatories to rulings made by panels that exist outside any country's courts and which are not bound by any country's legislative or common law. The financial implications could force the Canadian government to step in and legislate around court rulings.
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The text of the rulings indicates that the court isn't backing down on this. It would make it very, very interesting to see a clash between the Constitution and the Court on one side and TPP on the other over little things like extraterritoriality on the other side.
The government could try to get around it by amending C-11 so that it falls in line with the TPP if Canada signs on.
Unlike ACTA, TPP isn't being discussed totally in the dark though it's very opaque. For now. Nor is it as "sure" a thing as ACTA was supposed to be.
Things get a little more interesting now that Iceland has told VISA to honour donation payments to Wikileaks restoring at least some funding to that site. If that holds TPP may become a leaky ship indeed given reports that some countries aren't happy with the way things are going there. It could become quite interesting. And, entertaining. :-)
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It works because their penises are small enough to fit.
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Now where can I import me some canadian copyright judges?
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Not a great day at all...
It never ends well.
I wrote about it in http://mincovlaw.com/blog-post/copyright_and_the_great_socialist_degradation
Copyright is NOT about dissemination or the money. Copyright is about control. Copyright is all about "because it's MINE". Copyright is all about "Don't like it - don't use it".
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Re: Not a great day at all...
You have compared this view to socialism, as I know you like to do, and I cannot possibly offer a better answer to that than William Patry's response to you when you made a similar comparison involving his ideas.
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Re: Re: Not a great day at all...
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Re: Re: Re: Not a great day at all...
That poster is someone with a direct conflict of interest in the matter, someone who (intends to) disproportionately benefit from IP laws commercially (not someone who benefits as a member of the public). As such, his posts should mostly be ignored and perhaps even considered spam/advertising.
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Re: Re: Not a great day at all...
The market on the other hand cares very much about the ethics of the system and what is "fair trade" for goods.
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Re: Re: Not a great day at all...
People made music long before we knew what commerce and trade were. People will always make music. It is something we do, including "non-musicians," when we get together AFTER WORK.
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Re: Re: Re: Not a great day at all...
I am talking about music in a somewhat economic sense - making music as a career and as an economic transaction.
I have absolutely NO fear that people would every stop making music altogether, under any circumstances. But -- I also think it's good that there are opportunities for some people to be professional musicians and I would like to see those opportunities expand.
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Re: Re: Re: Re: Not a great day at all...
We need to stop all the siphons draining the flow of money from working musicians.
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Re: Not a great day at all...
CYBER TERRORISM!
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Re: Not a great day at all...
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Re: Re: Not a great day at all...
Which, in fact, just proves my point.
Copyright laws is what allows authors to release their works to the public (directly or indirectly) while being able to claim: "It's MINE" to the extent that they don't feel comfortable giving up the control.
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Re: Re: Re: Not a great day at all...
Exclusion laws are to exclude other from something, the only threat to releasing anything to the public is the granted monopolies that are granted to authors.
Without copycrap people would still release their works to the public and would still find profits from their work, they just wouldn't be able to stop others from doing the same thing, which is not a bad thing at all.
Open source just proved that all that copyright BS is just that, BS.
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Re: Re: Re: Not a great day at all...
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Only by keeping the work to yourself can you say "it's mine!"
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Re: Re: Re: Not a great day at all...
You falsely assume that just because we have IP laws, we need them. That's terrible logic. We don't need them and they're not even publicly beneficial which is why I say we abolish them.
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An outgrowth of the Agricultural Revolution which spawned the need for writing and so on. Which isn't to say that hunter-gatherer societies don't have culture -- they do. But what we've come to know as civilized culture required agriculture to appear.
Culture as we know it didn't only arise without copyright it flourished.
Invention didn't appear after patents came about, it too flourished. Invention, as much as anything, is the response to a need or to simply "scratch an itch" where the itch is "I can do it better than that". Or by sheer accident. Take Kitty Litter for that one. (Yeah, I know, Kitty Litter was patented almost as soon as the guy selling it figured out that all kinds of people wanted his fullers earth concoction.)
I'm still trying to figure out, with some horror, what would have happened if the guy who came up with the wheel could have patented it and then enforced that patent on the rest of us.
Each of these concepts -- copyright and patents -- confer a temporary right of monopoly in return to contributing to the wider public good. There is no natural right to either and no natural right to monopoly which allows one to say "it's MINE" until the universe dies which seems your viewpoint.
And neither has the slightest connection with Marxist/Leninist/Maoist Communism or the disaster that they are/were. Oh, let me rephrase something. More accurately it's Stalinist/Maoist Communism which betrayed Marxist theory concerning just who would control what, turned it on its head and became and excuse for some of the most murderous tyrannies we've known. Sadly, some free market capitalist societies that have had zero regulation have done the same. No one is pure here.
My point here is that long before structures were adopted that, for all practical purposes, became exclusionary culture and invention flourished.
Equally sadly, in many, if not most cases, these exclusionary practices have removed whatever control an author, innovator or inventor may have had in theory are removed in practice as in order to be published or capitalize an invention, the exclusionary rights had to be assigned to someone else removing the control you so value. Or claim to. Unless you're suffering from an ideological blindness/delusion. Not that uncommon. I've been known to suffer from that from time to time myself.
Exclusionary rights or practices are as offensive to freedom and culture as tyrannies pretending to be the protectors of "the working class" were and are.
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Re: Re: Not a great day at all...
There are laws which state nobody can take that which is legally mine. Thanks to such laws, I can leave my expensive laptop in a public area for several days and expect it to still be there when I go back for it.
Ok, so who in their right mind actually believes leaving my property in a public place for several days and expecting it to still be there several days later is completely unrealistic? The simple fact is that once you are no longer in possession of that which belongs to you, it is no longer yours to control no matter what the law says. It's just a reality you have to accept whether you like it or not. Is it fair? Of course not. But who in their right mind actually believes we live in a universe that's fair?
Our world and everything in it doesn't care what we think or want. It's an imperfect universe that we have very little control over and the sooner people accept that, the better off they'll be. Instead of trying to bend reality to your will, accept reality and adapt to it instead. If this means figuring out new business models, then that is what you do.
Look at life on this planet for instance. No matter how harsh and unwelcoming the world has been over the eons, life adapted and thrived as a result. Those that did not / would not inevitably died out. The nature of business follows those exact same rules. Wail and moan all you want about life being unfair, nature simply doesn't care.
If a tornado destroys your house, you don't sit there in denial, screaming at the universe in the hopes it will some how play fair and make it up to you. You adapt by building one that's hopefully more resilient. Same goes for business models. The old ones no longer work? Get off your lazy self righteous ass and create a new one that does! Sure it sucks, but nobody is going to do it for you and trying to legislate the world to remain static is like passing laws that make it illegal for tornadoes to pass through your town. Dumb and destined to fail.
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I won't bother repeating the history prior to the Statue of Anne but at least you could look up the title:
"A Bill for the Encouragement of Learning and for Securing the Property of Copies of Books to the rightful Owners thereof"
From the beginning there was a balanced emphasis on the public good and on the rights of those who owned the manuscripts (books) in question. The owner of those rights need not be creators. The public good is learning which is where the Supreme Court largely ruled.
Authors, songwriters, composers and so on unless extremely well known rarely retain their copyright. In order to get published, recorded, performed and so on they need to assign their copyrights. Not something a lot of creators find to their taste but none the less that's the reality. For reference see George Harrison - "Only A Northern Song".
Your world, wherein creators hold copyright and control doesn't exist. As you say you your site creators shouldn't be forced to surrender those rights under duress yet publishers do just that and have since 1710 with the blessing of the courts. Fair dealing, that part of the regime intended to encourage learning, has been in place since 1710 as well. Early rulings in England, repeatedly rejected the notion that copyright was primarily concerned with being exclusionary it had the dual concern for learning.
While your ideal world, if your site is any indication, is that copyright exists only to be exclusionary doesn't and never has existed.
While publishing rarely leaves creators in deep debt as the recording industry arranges for its newly signed creators it can leave the author in some debt. That is the book needs to sell enough copies to cover whatever advance the author may get while the author relies on the publisher to promote the book. It's very rare than an unknown author gets much if any of an advance on sales unlike the situation that exists in the recording industry where it's common.
Your dismissal of fair dealing as some form of socialism is, then, so much utter and complete hogwash.
Copyright, as we know it, from the Statue of Anne is a balance between public and private good no matter what you think or want it to be.
If you were to get your desire for a totally exclusionary form of copyright then what support there is for the concept would utterly vanish. Nor, as you assert, is all creation the result of some god-given genius or talent. That one has been taken apart by courts over and over again as extremists like yourself have attempted to establish perpetual copyright.
The Supreme Court has ruled on the law as it exists and will exist when C-11 becomes law and has since 1710. Strangely I agree completely with your assertion that creators should be recognized for their creations but I totally reject your way of doing that.
And no...copyright is not "because it's MINE" in its entirety nor is it all about "don't like it - don't use it.". As a lawyer you should know better. Unless you've been breathing in too much diesel exhaust from what's left of the marshalling yards right by your building or the ships idling in Vancouver harbour.
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Re: Re: Not a great day at all...
I discuss this in my comments of Bill Patry's book here: http://mincovlaw.com/blog-post/how_not_to_fix_copyright
Just because the first copyright law was borne within an unjust system does not mean that it has to stay that way forever.
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Re: Re: Re: Not a great day at all...
At some point those rights start to bother people, a lot of people.
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Re: Re: Re: Not a great day at all...
Many people do not feel that the Statute of Anne is an 'unjust' system - indeed, would it have become the basis of US copyright in the Constitution if it were inherently 'unjust'? It doesn't mean that it cannot be improved upon, but at its core, it is the basis of existing law.
Like it or not, it is stated in the Constitution that copyright is for "the Progress of Science", i.e. learning and the public good. It is irrelevant (unless you have an obsession with everything having a dollar value) whether it is monetised or even monetisable. Copyright protects this comment of mine. By your argument, because I have no hope or expectation of making money from it, it is not only 'worthless' as part of 'culture' but shouldn't have copyright protection.
Times change, technology changes, and attitudes change. The law needs to change with time as well. You cannot legislate against behaviour that the public at large do not agree with - just ask the framers of the Fugitive Slave Act how successful that was, or Prohibition!
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Keep in mind that I said temporary, not permanent, not eternal and certainly not the joke copyright has become wherein your creator (authors), in the vast majority of instances, has to assign their copyright simply to get published to the publishing company thereby completely giving up the right you want them to have of control over their works. They end up with none.
For the most part it worked as long as publishing and production remained what it more or less was in 1710. Then came things like sneaker net, pre-Internet BBS systems and then the Web, high speed connections everywhere and the entire set of assumptions around production, control and exclusion or inclusion began to fall apart until we get to today where it has fallen apart.
Oh yeah, and programs the enable just about anyone to typeset and produce their own ebooks too. Skills may be lacking in many cases but the means to produce and reproduce are there in abundance.
Screaming "it's MINE!" like a 2 year old doesn't change that.
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IP laws are about promoting the progress. They're about serving a public benefit. That you're turning them into something else, that you're making them about your personal profit margins, is more reason they should be abolished.
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That's why I fall back on the Statue of Anne and it's intended purpose of a balance between public and private good which, indirectly, leads us to the same place you're at.
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This one fascinates me. That basically sounds pretty identical to how I used napster in the very early days before the music industry went all pyscho on their fans. I used it as a consumer research tool during the week to decide what CDs to buy in town at the weekend and which bands were worth booking tickets for. So does file sharing count as "consumer research" because it enables people to decide best how to spend their music interest budget at the weekend and after work?
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I can only hope that this court will also rule with as much integrity and common sense when the inevitable cases about digital locks, TPP provisions, and/or other copyright issues are brought before it.
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These rulings and the language used in them make it clear the Court is having the final word here unless that happens. TPP can't change that. And their view that Fair Dealing ought to be interpreted broadly and liberally would be hard to reverse later on unless the minority had some equally strong wording or that the legal ground changes substantially.
The Supreme Court of Canada rarely reverses itself.
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Response from Access Copyright
* "Limited to Small Proportion of Copying in Schools"
* "the Supreme Court was only looking at about seven percent of the copying done in schools,"
* "leaving the vast majority of copying by K-12 schools unaffected by the decision"
http://www.accesscopyright.ca/media/28161/2012-07-12_impact_of_supreme_court_copyright_ decision_limited_to_small_proportion_of_copying_in_schools.pdf
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Their response did actually lead me to clarify something in the post though - I had said that the court found classroom copies to be fair dealing, but that's not quite true. They said that they CAN be fair dealing and sent it back to the copyright board. However, their language makes it pretty clear that they think it is fair dealing - and also, they really hammer on the "large and liberal" point, meaning the Copyright Board cannot accept Access Copyright's circuitous and twisted arguments to eliminate fair dealing anymore.
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It's not just Access Copyright that got hammered here it was SOCAN which is I believe our very own branch plant of the RIAA/MPAA.
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That would make it extremely hard for someone to bring this back trying to get the court to reverse its ruling if I read it right.
Is that how you read it, Leigh?
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O Canada
Our home and native land!
True patriot love in all thy sons command.
With glowing hearts we see thee rise,
The True North strong and free!
From far and wide,
O Canada, we stand on guard for thee.
God keep our land glorious and free!
O Canada, we stand on guard for thee.
O Canada, we stand on guard for thee.
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Re: O Canada
O Canada!
Our home and native land
True patriot love in all thy sons command.
Car ton bras sait porter l'épée,
Il sait porter la croix!
Ton histoire est une épopée
Des plus brillants exploits.
God keep our land glorious and free!
O Canada, we stand on guard for thee.
O Canada, we stand on guard for thee.
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Re: Re: O Canada
Ô Canada!
Terre de nos aîeux,
Ton front est ceint de fleurons glorieux,
The rest is fine.
However, this is the one you should be singing, while you're watching the Maple Laughs "losing that damn hockey game" (to quote Jody Mitchell):
ᐆ ᑲᓇᑕ!
ᓇᖕᒥᓂ ᓄᓇᕗᑦ!
ᐱᖁᔭᑏ ᓇᓚᑦᑎᐊᖅᐸᕗᑦ.
ᐊᖏᒡᓕᕙ ;ᓪᓕᐊᔪᑎ,
ᓴᙱᔪᓗᑎᓪᓗ.
ᓇ&# 5519;ᖅᐳᒍ, ᐆ ᑲᓇᑕ,
ᒥᐊᓂᕆᑉᓗᑎᑎ.
ᐆ ᑲᓇᑕ! ᓄᓇᑦᓯᐊ!
ᓇᖏᖅᐳᒍ ᒥᐊᑎᓂᕆᑉᓗᑎ,
ᐆ ᑲᓇᑕ, ᓴᓚᒋᔭᐅᖁᓇ!
All together now!
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Re: O Canada
O Canada!
You are America's brain!
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Better yet, also hide it in a rider in lesser known bill, and try to fast track it through congress. If it was put through as it's own bill though, we'd of course need to name it something that is the opposite of what it actually does. I think the "Copyright Maximalist Act" has a nice ring to it.
Don't forget, this bill will help to "Protect the Children" by preventing "Cyber-bullying" from "Chinese espionage", "Terrorism", and "Communist" ideals!
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(a) polar bears
(b) grizzly bears
(c) killer whales
(d) cougars
(e) timber wolves
(f) wolverines
We might even give you a choice :)
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Cubs, lionesses, cougars, and then pumas. =P
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The courts rules that these levies are not legal, and the return will be a push to get more stringent copyright laws in place, so that money can be made back somewhere else.
It's not hard to understand, unless you purposely ignore reality.
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Based on sales? Based on who got downloaded the most in some remotely piratical way? Based on the relative sizes of the English and French markets including, say, the US and UK for English and France and other french speaking markets for what Quebec and Acadia produce?
Fairness is all very well and good and a laudable goal but just how do you come up with a formula that has a chance of working?
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The issue is not the entire idea of copyright tariffs -- it's a sensible concept in theory that could serve to make licensing a lot simpler. The issue issue is that the tariff system is a giant mess, with collection societies double- and triple- and quadruple-dipping on things, and also imposing tariffs on activities that should rightly be protected by fair dealing, all while having a terrible track record for actually redistributing that money to the rightsholders they are supposed to represent.
As for your notion that the money has to be "made back" somewhere else, sorry, there's no guaranteed sum that has to go to rightsholders - if they've been charging people for fair dealing all along, then tough shit for them. Now they'll have to make due without that money that they didn't deserve.
By the way, while the Copyright Board claims it would like to have economic evidence before imposing tariffs, it has also explicitly stated that it is happy to go ahead and impose them anyway even when there's no evidence. This is from their recent ruling that created a fun new Canadian tax on "music accompanying physical activities":
We note that our decision comes after a
lengthy and difficult process made no easier by the
lack of reliable and relevant evidence. Our
preference is to set tariffs based on strong
economic evidence presented by the parties. In this
case we were not able to do so. As stated above, in
our opinion the 2008-2012 tariff for fitness
classes is transitional. The next time we examine
Re:Sound Tariff 6.B, it would be preferable to
also have SOCAN 19 before us. We would then
be able to consider all of the relevant economic
evidence and set both of these tariffs
simultaneously.
So um, sure, we'd like to know if this is necessary at all, but whatever you can have these millions of dollars for a few years and we'll deal with it later.
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Leigh, you don't think that the levels of "fair use" are a function of what the current copyright law says, as well as the current levels of enforcement of existing laws?
The conservative government can easily continue to re-write the rules of copyright in Canada (in part of become "ACTA compliant"), and in doing so limit the "fair use" you refer to. The fair use exists because there is no law that specifically outlaws certain file trading actions.
levies were added to CDs and other recordable media in lieu of tightening copyright laws, and was done so as part of the process to try to enrich Canadian acts at the cost of outsiders. Basically, the levies were collected, but distributed only to Canadian companies. Combined with Cancon and other rules put in place, successive federal governments found ways to finance "culture" in Canada on the backs of others, and by passing what amounts to a tax system to support private industry.
You need to go back and review the history of Cancon and the levies systems to understand how we got here today. The courts saying "you can't keep doing this as technology moves" basically tells the labels and recording companies that their side of the bargain is no longer going to be supported. So they are very likely to push to get back to what should have been done when the first levies system was proposed: decline and push for stronger copyright controls.
You can pirate you ass off in Canada because of those levies. Now that they are being limited or blocked from future application, you may have shot yourself (and your music collection) in the foot.
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No, sorry.
In both the courts and in the copyright reform bill, fair dealing is being steadily expanded. C-11 contains a bunch of new fair dealing provisions. Things are moving very much in the right direction, and your argument that we should decry that because it might result in a pushback is silly and defeatist.
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*sigh*
Anonymous Coward, ...
That's your technique for trying to sound like you know everything, right?
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And I'm not going to step in your cesspool of a trap by going over Cancon where it came from and the minor detail that it's far outlived its usefulness. I'll side step around it long enough to make the minor point that the private companies in the motion picture and recording industries that have profited the most from Cancon and related levies have been, in order, American, British and French owned companies not Canadian ones.
The point is that fair dealing is a right. Levies are a privilege and always have been.
I also don't see where any of what you say makes it easier to pirate in Canada. Where it falls into the realm of fair dealing perhaps, from a Hollywood perspective, it does but mass piracy wouldn't be covered or excused under this ruling.
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Those same people will still kick and scream about piracy and ask for more draconian laws and they will get it.
So in fact those levies are for the most part a bonus on top of all the other crap those people claim they should get.
Screw the levies and screw copyrights.
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AUCC acted in bad faith...
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