CMNS 230 1

Copyright

Balances the rights and interests of those who create material with those who want to publish, share or benefit from it

An increasingly key structure in the cultural industries

CMNS 230 2

Definition

Literally: right to copy

Allows authors, songwriters, photographers,painters and other creative personnel to control the copying and other uses of their expression

Analogous to privacy law: which allows people to limit public dissemination of information about themselves

Part of the general constellation of intellectual property law which covers:

Trademarks

Patents

Copyright

Protects the property value in the expression of information and ideas

CMNS 230 3

History

In Britain, after Gutenberg, the British Crown began to grant monopolies on printing as a means of censorship to block the spread of the Protestant Reformation. Required the registration of all publications.With the rise of private commercial interests, rights of crown copyright relinquished to publishers and authors

CMNS 230 4

Contemporary Rationale

Economic:Nature of the creative production process is labour intensiveBut reproduction is technically trivialVery low to zero marginal cost to produce the second /subsequent copyThus: infinite risk of reproducibility will reduce incentive to createTendency to Market failure must be correctedThis characteristic conforms to the quasi-public good character of creative industry production

CulturalRecognition of ‘originality’Provide incentive for authors to produce creative expression that benefits society

CMNS 230 5

Scope of Copyright

Copyrightable works:Literary, musical, dramatic,audiovisual,pictorial, graphic, sculptural works

Literary works include:Books, newspapers, magazines,annual reports etc, computer programs

CMNS 230 6

Key Legal Points

Original

Fixed

Expression

CMNS 230 7

Concept of ‘originality’

Not unique, novel, or even excellent

But:Created independently, that is, not copied from another work, with intellectual effort

CMNS 230 8

Concept of ‘fixation’

When written, recorded, saved on disk, or printed, or when shutter clicks and image captured

Whatever is sufficient to be perceived.

Analogue or digital

CMNS 230 9

Concept of Expression

Cannot copyright:Idea

Fact

BUT– expression, story, narrative, depiction etc.. of those ideas or facts

Expression involves composition, selection, arrangement, placement of elements in whole

NOT: compilation: eg. SFUs email directory

CMNS 230 10

Type of Expression

May be individual or collective

May be original or derivative ( eg. Translated, or different versions of original)

Mechanical or performance

CMNS 230 11

Beyond Copyright

Cannot copyright a format or layout,

procedure, method of operation or interface

CMNS 230 12

Statutory Protections

In many constitutions around the world, there is a protected right to promote the progress of science and useful arts

CMNS 230 13

Terms of Copyright

Secures rights for a limited time Time limit life plus 50 years usually ( 70 in the US)After that, the right expires and work goes into the public domainRights accrue to the author or creator

But, subject to ceding in work situations, so, could be “made for hire” and thus accrue to the institution or companyTheory is that whoever assigns the task, risks the resources to carry it out, and directs the work of the creator should own it

Usually, creator’s life plus a significant timeMust be registered with the copyright office and carry a notice ( even if not enforced)

CMNS 230 14

The Bundle of Rights

Legal ability to control the work includes:

Right to copy or reproduce

Right to adapt

Right to distribute

Right to perform or display the work publicly

Ie… exclusive right to publish, sell ,loan or rent or generally disseminate copies to the public

And, MORAL RIGHTS: right to protect the artistic integrity of the work

CMNS 230 15

Trade in Copyright

Involves sale loan, rents or licensing

Media must license the use of a copyrighted work in return for royalties

An agency, usually set up at arms length from government and non profit, collects the royalties and disperses them

Eg: webcast song rights: $.0002 per listener… ( two hundredths of a cent)

CMNS 230 16

Countervailing Rights

Attempts to reconcile society’s interest in encouraging freedom of expression with copyrightKnowledge of creative achievement must be widely disseminated and discussedIe… the use without consent of ownerFair Dealing or Fair Use:

Allows critics commentators, reviewers, scholars and others to copy limited portions for the purpose of comment and criticism Key: add a contribution, perspective etc.If:

Not for profitNot all of it ( excerpt)Not a reasonable cause for financial damage

CMNS 230 17

Tests of Copyright Infringement

Infringers are criminally liable of owner may prove:

They had access

Work is striking similar

Whether direct, contributory or vicarious

CMNS 230 18

Organizing to Collect Rents

Royalties are paid by record companies for song they recordPaid to a Royalty Tribunal that negotiates rate, collects royalties and then pays them to rights holdersCompulsory licensing…sets flat rate, and requires monitoringIn the US, a history of frequent Department of Justice inquiries over price fixingEased by the introduction of competition in collectives

CMNS 230 19

Canadian Legal System

Federal Copyright ActCopyright Board of CanadaA myriad of societies ( EG: SOCAN) to act on the artist’s behalfSome specialization according to industry: eg. Broadcasting, sound recordingIn Broadcasting:

Retransmission rightsCompulsory license

iCraveTV case 1999US resistence to licensing Internet Broadcasting

Neighbouring RightsPerformances, sound recordings, communication signalsExtended musical royalties tfrom composers and lyricists to performers and record manufacturers in radio

CMNS 230 20

Canadian Copyright Reform

First in late 90sSecond phase May 2004What is at issue: if internet use carried out by students and teachers is an infringement and subject to a fee… or if it is fair dealingNeed to ratify international WIPO treaties Legislation : still pending

CMNS 230 21

Downloading

Recent studies suggest that 32% of adult Internet users in Canada have downloaded a music file at least once,12 with rates of downloading in Canada estimated to be as high as 180 million tracks per month.13 Source:

http://www.pch.gc.ca/pc-ch/sujets-subjects/arts-culture/sonore-sound/music_industry/2_e.cfmTypes of services: Napster, KaZaa, Bit TorrentCharacterised as musical piracy enabled by the MP3 protocol

CMNS 230 22

Court Cases

On March 31, 2004, Federal Court Justice Konrad von Finckenstein ruled against the Canadian Recording Industry Association's (CRIA) attempt to require five Canadian Internet service providers (ISPs) to reveal the names of individuals whom CRIA believes illegally made available thousands of songs on file sharing networks. In his decision, the judge asserted that placing a music file in a computer directory that others might share did not constitute copyright infringement under Canadian law, comparing it to a library placing a photocopier near its books. "In either case the preconditions to copying and infringement are set up but the element of authorization is missing," he wrote. Justice von Finckenstein also cited the Copyright Act, which preserves the private copying rights of individuals while compensating the recording industry by way of a levy on recording media.In June, the Supreme Court of Canada ruled unanimously against a Society of Composers, Authors and Music Publishers of Canada (SOCAN) request for a tariff setting up a royalty structure for ISPs, stating that ISPs were not responsible for copyright infringement when they communicate copyright works to the public if they only provide the means necessary for others (websites) to communicate.

CMNS 230 23

The Business Slump

Between 1999 and 2003, the value of music sold dropped 28%, from $1.3 billion to $946.4 million.

This downturn is as true in Canada, the world's sixth largest music market, as elsewhere. Between 1999 and 2003, the value of music sold dropped 28%, from $1.3 billion to $946.4 million.1 Last year, the decline in value was 2.9%, and some predict the slump to continue for at least another year.

CMNS 230 24

Lessig on Filesharing

Must critically deconstruct it

-who does it to avoid a purchase

-who likes to sample

-who searches for archival tunes

- who uses only freeware

In a Hierarchy of Harm, only the first, is real…All the others benefit the copyright holder

CMNS 230 25

Swapping in Canada

If for self service, Laba argues that a recent ( Mar 2004 ruling that the Law Society of Upper Canada did not violate copyright when making a single copy…( under the notion of the American term fair dealing) declares open season.March 31,2004….Finckenstein in the Federal Court of Canada, argued P2_ not distributing music ( thus falling into the single copy for personal use area)… which has been appealed by CRIA.Supreme Court ( June 30 2004) found against the Society of Composers and Authors and Music Publishers of Canada) to force ISPs to pay royalties. ( communicating and authorising)Revisions to the Copyright Act propose to close these loopholes.

CMNS 230 26

US Digital Millenium Copyright Act

Adopts a very narrow definition of fair use( fair dealing in Canadian terminology)

CMNS 230 27

Tactics of Enforcement

Recording Industry Association of America (RIAA) initiates litigation, as does its Canadian equivalent CRIA

RIAA penalties: up to 3 years in prison

25,000 fines

Up to$150,000 per infringed copyright

Up to 6 years in prison for repeat offenders

CMNS 230 28

Stunts of Enforcement

Chad Kroeger,of Vancouver’s Nickelback, promoted a launch of a Big Mac Deal Tracks ( including a Nickle back song) and at the same time saying… (if P2P continues…) there isn’t going to be any new music for people to download…

IP as product tie in….

CMNS 230 29

Laba’s argument

Historically, the relationship between industries and audiences of popular music have always been in tensionInnis’ concept of the monopoly of knowledge, suggests there is a battle over new media between the established and emergent elites; between elites and audiencesLaba reviews the ‘piracy business’And gives a camera pan of the markets in Lahore and Bangkok

CMNS 230 30

The Legal Balancing Act

Downloads can be for personal enjoyment and underline the right to receive and benefit from cultural products

Uploads( whether for pleasure or profit) get into the realm of re distribution and raise serious legal issues about predatory harm

CMNS 230 31

Canada’s Approach

Levy MP# players and put some tax on audio tapes and blank CDs.. To be reinvested in production.Current rates:

$.29 for audio cassettes; $.21 per CDR and $.77 per MiniDiscGo to the Canadian Private Copyright Collective who says just 15% go to record companies, 66% to authors and publishers, balance to performers

CMNS 230 32

The Copyright Conunundrum

Most royalties, eg, in TV accrue to the US rights holdersCanadian rhetoric of “protection” in copyright legislation may not protect the rights of CanadiansFair copyright trade; fair use on the Internet for non commercial use is the next terrainSome artists oppose copyright– and since they do not sell retail or through radio, they do not collect any of the tax on tapes

CMNS 230 33

Sources

Lesley Ellen Harris, Canadian Copyright Law

http://laws.justice.gc.ca/en/C-42/ index.html

Other experts: Dr. Laura Murray, Dr. Michael Geist