Copyright Board of Canada Under Scrutiny

Micheal Geist has an excellent column in the Toronto Star that was posted yesterday, titled “It’s time to admit the Copyright Board is broken“.  An excellent exert from that column:

Perhaps most troubling is the sense that the Board has little regard for the recent legislative and case law emphasis on the need for balance. The latest reforms included provisions that removed the need for payment for some copying by radio stations. The copyright collectives warned a House of Commons committee that the bill would “eliminate the revenues authors and publishers now received from broadcasters when reproductions of musical works are made and used for broadcasting purposes.”

Soon after the bill took effect, the Canadian Association of Broadcasters filed an application with the Board to rescind the commercial radio tariff. The Board dismissed the application, arguing that the committee comments did not constitute a basis for statutory interpretation. Instead, it called the CAB’s application “untenable” and engaged in its own statutory interpretation, suggesting that broadcasters might not be able to rely on the new exceptions.

The public is very much shut out of the Copyright Board as well. Geist did allude to this in his piece stating that the board is: “ largely inaccessible to the public”.  In 2010 I actually wrote into the Copyright Board regarding a copyright tariff.  I wanted to probe to see if the board was accepting any public comment on that specific tariff.  Howard Knopf at the time was also following the case as well on his blog.  The Board had an interesting decision on my comments after some legal wrangling by the applicant Access copyrights lawyer prior to the decision.  The decision of the Board dated Novemeber 23, 2010 stated regarding my submission:

3) In its Notice, the Board expressed the preliminary opinion that the participation of certain persons would not be of assistance in these proceedings. These persons were invited to indicate the extent and nature of any association they may have with any post-secondary educational institution outside of the Province of Quebec targeted in the proposed tariff if they wished to be granted intervenor status in these proceedings. Only Mr. Pat Donovan and Mr. Jason Koblovsky responded to the Board’s Notice. Both failed to disclose any association with a targeted institution. Neither did they offer any evidence that they may be prospective users or reasons that would lead the Board to conclude that their participation may be of assistance. A mere statement that one is “covering” the public interest or that the proposed tariff’s terms are unfair are insufficient to establish a person’s status or to explain the contribution she may make. Consequently, these persons will not be granted intervenor status.

Basically what this means is, these proceedings do not offer up any sort of public input, and you must be a “party” to tariffs in order to be heard.  That should sound very familiar to those who have followed the progression to an open regulatory policy at the CRTC regarding public comment.  Since the UBB and throttling ISP issues,  the CRTC has in recent months sought public input on numerous occasions even on mobile contracts and other consumer related issues.

We’ve seen some balance returned to the system when the CRTC went from shoving out public interest and closing proceedings off to impacted “parties”,  to consulting with Canadians on regulatory issues.  I think the same must be done with the Copyright Board. As someone who really wants to innovate in the field of media, I know it’s currently extremely expensive for me to do that, with overlapping fee’s, or the threat of being sued out of existence when tariff’s don’t exist for certain things.  It’s similar in a business sense to what happened with the CRTC.  Basically the old monopoly currently controls that regulatory body.  The mess of tariffs in our copyright system is pushing away innovation and competition in the Canadian media markets by making it extremely expensive and confusing for anyone looking to make sure they are following the law while innovating. The way to restore accountability and some sense of balance in this system is to open it up for public input.

In the 2009 Copyright Consultations, Governments own independent copyright expert David Keeble also suggested to the Government that the Copyright Board needs to open up for public input at the Gatineau Round Table discussion with then Industry Minister Tony Clement:

Another positive change would be to open up the power to initiate. As I understand it, the current legislation does not permit users to initiate suggestions for tariffs and compulsory licenses and, as a result, some digital business models are delayed while rights holders withhold their material because they’re nervous of the consequences. This is not to diminish the rights of copyright holders or to minimize their concerns. The Board would still be the judge of what’s appropriate in these cases. But if users could initiate the copyright process, then I think we would see more innovation in business models in the digital world.

I agree completely with that assertion. Opening up our regulators to public input should be expected now in the age of social media, and public policy engagement.  It also inserts public accountability onto these regulators and those who may have their hands too deep into consumers pocket books.

Research Paper Concludes Industry Use of P2P

As many of you may or may not know, I was a DJ back a few years ago.  Back in 2005 I mixed up a music set that was essentially for my son.  He was born in 2005, and the month or so after his birth, I wanted to record in a set with some popular music at the time of his birth. I shared this set through “bareshare” at the time and the set went viral.  Shortly after this set went viral, I was contacted by some of my label contacts who where using P2P at the time asking if the set was done by me, since I had used my stage name.  They kept bumping into this set while looking for new music and talent.  Of course I said yes, and from that day forward I was working with several indie labels (including Canadian labels) releasing mixed sets to share on P2P to help promote their artists and content.

A few years later, I came in contact with a Canadian who decided to set up an internet radio station.  I agreed to help, and I quickly became familiar with several of the worlds ranking DJ’s and where they got their music from, and where they release online.  Several DJ’s, artists and labels in my genre had 2 specific private bittorrent sites they released under.  These two sites where well known in the industry as a place where many of us DJ’s get our music from.  Many of these private torrent sites also carried exclusive mixed sets for the site from the DJ’s, labels, and artists themselves.   A lot of the industry contacts I gained online were forged through file sharing sites.

What I think has frustrated me over the past few years over copyright is that all of the above is not something I can prove.  It’s basically inside industry knowledge.  Torrent freak has an excellent post on the subject of private torrent sites, and the out of the box copyright “arrangements” that come when industry is involved.

Bodó Balázs at Budapest University of Technology and Economics recently published a research paper on the subject. Torrentfreak summarized:

Throughout his paper Balázs references several private sites but redacts their names to protect their privacy. We’ll continue with his wishes but suffice to say this offers them little extra security – we recognized the sites immediately from his descriptions. One, a site specializing in non-mainstream movies, told Balázs an interesting story about how they handle copyright issues in order to keep their community healthy.

Rather than a straightforward take-down response to a complaint, the site admin described an interesting negotiation, where the complainant was paid off, not with money, but with ‘ratio’, the main ‘currency’ available on a private tracker. Ratio is the comparison between the quantities of data a user downloads versus what he uploads – the more he does of the latter the more he is allowed to do of the former. Site admins have the ability to manipulate these stats to give users more relaxed access to ‘free’ content.

This is very interesting to me, because the same thing to a certain extent happened while I was DJ’ing in industry.  As being a recognized and legitimate industry player, I was often approached by site admins to do up exclusive mixed sets for the site in exchange for rewards on my account.  I also found while working in online radio and tracking down “leaked tracks” that it usually ended up that the artist themselves would release these tracks prior to release on “industry” torrent sites against the wishes of their label, in order to gain market pre-release reaction to the track.  These artists usually where the same ones bitching about the 6% loss of income from “piracy”.

Whether you take what I’m saying with a grain of salt or not; what is very much needed to judge the economic impact of “piracy” are more studies like Balázs’s that peer into the grey world of peer to peer file sharing, and how industry has adapted to the widespread use of them in industry and abroad.

Also see my Business End of Piracy In The Media Industries Part 2  post, where yet another study was published looking at the positive effects of “leaked” tracks on sales.

Future Tech Friday: Claytronics – Physical Dynamic Rendering

Imagine some time in the future you get in from work after a hard day.  Your now automated home detects your emotions, then decides to transform your furniture into the most pre-programmed comfortable positions and shapes.  I’m kidding right?  Not at all, that’s just one possibility of Claytronics.  Here’s another for business presentations:

Teksavvy vs Voltage: June 25th Court Date on Evidence

According to a post last week in DSLReports, a date has been set for the hearing in which evidence will be heard and presumably cross examined in the Teksavvy Vs. Voltage copyright case.  The judge looks to have allowed a one day hearing for the evidence.  However at the time of this post, Teksavvy has not officially confirmed this court date on it’s site where customers are supposed to get up to date and current information on the case.

Voltage pictures is trying to obtain the identities of P2P file sharers it says are customers Teksavvy. Teksavvy has thus far refused to step up to the plate directly to challenge the request.  The CIPPIC has intervened to protect the public interest in this case.  There has been much commentary on this blog regarding Teksavvy’s decision not to challenge the request.  Evidence brought forth to obtain identities of file sharers by Voltage pictures has been very spotty at best.  Presumably the CIPPIC will be challenging some of that evidence in June.

The June 25th court date will be an important one.  Not just for Teksavvy customers, and copyright policy dweebs like myself, but any decision on evidence will have a direct impact on a much wider scale.  How much evidence is needed to obtain a warrant for personal information in Canada?  What does Voltage plan on doing if they get that information?  Will the court stem abuse and copyright trolling in Canada?  Lots of questions, and June 25th may be a date to watch.

UPDATE: As of May 13th, Teksavvy has now confirmed the June 25th, 2013 court date.

Stéphane Dion Using Copyright Complaint Stifle Criticism

Techdirt is reporting that former Liberal leader Stéphane Dion has launched a copyright complaint on a Conservative attack ad, to try and stifle criticism of the Liberal party.  The complaint Mr. Dion has put forth to the Commissioner of Canada Elections:

Recently, the CPC used footage owned by the Huffington Post and CTV in a television advertising campaign directed at the Liberal Party of Canada. These advertisements are being aired nationally, including in Labrador where a by-election is currently being held. I understand from media reports that the CPC is using this footage without the copyright holders’ permission and presumably without paying the copyright holders to license the material. I understand that the licensing of copyrighted materials ordinarily comes at a cost.

I am raising my concerns with you because the CPC’s unauthorized use of this material, while inconsistent with our country’s copyright laws, may also be non-compliant with the Canada Elections Act (the “Act”). In my view, the unpaid use of copyrighted material is a “non-monetary contribution” to the CPC, as defined in s.2(1) of the Act.

Not a very good idea since a lot of Teksavvy (pun intended) internet users are looking to see what direction copyright might take under Liberal leadership.  Using copyright for political trolling purposes, and attacking fair use provisions, is not a good start.  If Trudeau was smart he’d whip Dion back in line before the damage is done.  Also if Dion really wants to cry about something, it should be the “high school production” address to the nation a few years ago.  Liberal party owns the rights to that I would assume.  That did far more damage to the Liberal party than what the Conservatives drummed up against him.

Tech Corner with Jay and Steve – The Future is Online

Future Tech Friday: Nanotech Assembler

A glimpse into the future of the concept of Nanotech Assemblers that may one day turn the world on it’s head: