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Setting the IFPI Record Straight

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Thursday July 27, 2006
The IFPI, which represents the major music labels internationally, is out with its annual piracy report.  Canada gets a fair amount of attention as we are one of ten priority countries.  In explaining the situation in Canada, the IFPI resorts to a series of mischaracterizations and omissions that piggyback CRIA claims and therefore demand a rebuttal. 

The report begins with: "Legitimate online services have struggled in the face of outdated copyright laws and the resulting widespread digital piracy."

While the question of whether Canada's online services have struggled is open to debate, attributing the cause copyright laws is plainly wrong.  There are a wide range of factors - later start in the market, fewer providers, smaller selection, and less interest in e-commerce are all undoubtedly additional factors.  So too is the private copying levy which may be viewed by some as legitimate competitor given that more than $150 million has been collected for artists and the industry.

"Canada has yet to fulfill its longstanding commitment to ratify the 1996 WIPO Treaties to protect digital copyright."

Actually, Canada has no legal commitment to ratify the treaties.  Signing an international treaty represents no more than a show of support; the commitments come after ratification.

"The Supreme Court of Canada, in a landmark case on online music, lamented that Canadian courts will continue to "struggle" to apply outdated copyright laws until Canada ratifies the WIPO Treaties."

Not exactly.  The court, which has also stated that "excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization", noted in the context of intermediary liability that "Parliament's response to the World Intellectual Property Organization's Copyright Treaty (1996) and the Performances and Phonograms Treaty (1996), remains to be seen.  In the meantime, the courts must struggle to transpose a Copyright Act designed to implement the Berne Convention for the Protection of Literary and Artistic Works of 1886, as revised in Berlin in 1908, and subsequent piecemeal amendments, to the information age, and to technologies undreamt of by those early legislators." 

"The OECD reports that Canada has the highest per capita incidence of unauthorised file swapping in the world."

Not true.  While CRIA regularly makes this claim, the 2004 OECD report refers only to P2P usage, without reaching conclusions on whether the activity infringes copyright.  In fact, the same report specifically notes that  "P2P is not simply downloading of MP3 files.  In fact, file sharing has already moved to the next level and will be applied for all types of on-line information, data distribution, grid computing and distributed file systems." The OECD data captured all of these activites and made no claim that Canada has the highest per capital incidence of unauthorized file swapping in the world.

After blaming file sharing on reduced sales, the IFPI report then says:

"National surveys reveal that of those Canadians spending less on music products, by far the largest single reason cited was downloading/file sharing/CD burning."

Leaving aside the fact that all of the above may be lawful, a more recent CRIA commissioned study by Pollara actually arrived at different conclusions.  As I documented last March, when asked why they were spending less on music, survey respondents cited price (16%), nothing of interest (14%), lack of time (13%), downloading (10%), collection is big enough (9%), don't buy (7%), listen to radio (7%), change in tastes (6%), no CD player (3%), have an MP3 player (2%), lack of opportunity to buy (2%), watch more tv (2%), age (1%), only buy what I like (1%).

The remainder of the Canadian comments raise Jully Black (again), the trade pressure from the U.S., and an incorrect claim that eight years ago Canada committed to prompt WIPO Treaty ratification.  Not surprisingly, there are no references to the emergence of the CMCC and dozens of leading Canadian artists who have come out against suing fans and DRM, to the revenues from private copying, to the decision of Canada's six leading independent music labels to leave CRIA, to a Canadian Heritage study that found that Canadian sound recording industry grew steadily from 1999 to 2004,  or to the fact that 90 percent of new Canadian music comes from independent labels, who are generally thriving under the current Copyright Act.  
Comments (4)add comment

Daith said:

...
One of the biggest problems with the report, which is at the root of an annoyingly muddled CBC report this evening (which also discussed the Kazaa developments) comes right in the first paragraph:

"outdated copyright laws and the resulting widespread digital piracy"

They are essentially arguing there and throughout the article that

a) the laws do not create the offences that they would like to see, and
b) the laws are being breached.

"Piracy" is used interchangeably with "illegal" throughout the entire document - the CBC report {on the World at 6 on radio, related text here http://www.cbc.ca/story/arts/n...ttles.html) was (surprisingly) very careless in this regard and just made everything 'illegal'.

It seems as if they want to have it both ways - make allegations of widespread illegality while also asserting that the law doesn't give them enough protection. The fact that the unresolved issues in Canadian law (e.g. BMG v Doe) and the fact that C-60 was obviously a change to the law (implying at least that their reading of 'piracy'/illegality is not a unanimous one) goes entirely unmentioned. It seems a bit cheap that they quote SOCAN (out of context) and not the subsequent debate.
July 27, 2006

tanyaB said:

Muddy studies - the CRIA\'s own lies, da
Great rebuttals Michael!

Alas we can only anticipate that both the CRIA and the IFPI, really just 2 operating 'divisions of the RIAA', will stay the course and report whatever findings support the DMCA mindset.

Here, the CRIA will continue to USE whichever artist it can select from it's vaults that has clocked the required low numbers, losses, or lack of success, to fit their 'agenda-of-the-moment' and their aggressive push for US-style copyright rules in Ottawa.

Remember how poignantly the CRIA used Avril Lavigne's closing of the Turin Olympics as a call to action on the last page of their Commerical Radio Review submission document in March, stating unequivocally "Avril Lavigne is a CRIA artist"... but OOPS Avril and her label quit the CRIA a couple weeks later! Is anyone surprised that the CRIA never retracted that statement at the radio hearing in May?

So for now perhaps Jully Black is a better bet as a 'statement of case'. Absolutely she's a great artist, but none of the CRIA folks would ever admit that maybe her music is of a certain niche as opposed to mass-market appeal and THAT's why she's not selling truckloads? Perhaps her emerging talents and success as a TV hostess with CTV are in fact more 'universal' lauding more highly-significant measures of success?

We know by now that the CRIA has a history of, and thrives in mis-representing facts (even their own!). Further, manipulating their artists, along with whatever politicians they believe can be rolled-over with political financing dough is the common M.O.

Wasn't it Kenneth Kidd at the Toronto Star who told the Ryerson Journalism Review [link: http://www.rrj.ca/issue/2005/summer/554/] that CRIA is the most aggressive lobby group he's ever encountered? In the same article the word belligerence was aptly used.

Funny (coincidence?) that today the RIAA settled with the Sharman Networks Kaaza folks in an agreement that will see the major labels utilising the P2P service platform and its architecture for promoting their wares! Can we honestly suggest this is news? Rather there should be a category of 'olds' when it comes to the major music labels. Now 4 years after Kaaza's senior marketing exec touched down at Toronto's Music Week and sat on a 'future of the industry' panel with Graham Henderson (then SVP at Universal Music) and directly asked him When would the labels (finally) jump on board to capitalize on Kaaza's 4 million clicks-a-minute market? Mr. Henderson answered with the legal equivalent of 'when hell freezes over'...

IFPI and other industry news reports today suggest that the major music labels garnered a big WIN v. Kaaza. Sadly, it means nothing really because Kaaza is pretty much a 'non-entity' at this point in history. The world moved on to the next new and better way to get the music it wants quite some time ago... deja vu Napster.

All more evidence that the big music machine churns s-l-o-w-ly and as such it apparently has oodles of time to fabricate whatever statistics it can (and paying hansomely for befitting results). All toward the end of maintaining it's important reputation as being aggressive and belligerent.

The good news is we're witnessing a strong undertow forming and washing up on Ottawa's beachhead. Artists and creators from all walks are taking up a new 'rights and responsibilities' debate in audience with politicians at all levels. They are engaged, presenting their OWN evidence and statistics, and often a very different view of the market and cultural landscape. For many there IS aple evidence of success in the online world - both in real numbers and in innovative opportunities.

Remarkably, the most sought-after object of the CRIA /IFPI /RIAA's desire - the advancement of the WIPO treaties - presents the most telling and blatant statistic of all. Here and now in 2006, a full TEN YEARS after the development of said WCT and WPPT treaties, it remains WIPO's published fact that LESS than 30% of WIPO's member countries have signed on to them. This is a global rate of failure. This failure is the raw truth and big music's most abominable statistic of the whole wicked lot of them, and suredly it is NOT the information the CRIA, the IFPI, and especially not the RIAA would like to see illuminated in any report, any where!

July 27, 2006

Mark said:

...
Claims of piracy are not reasonable, for the simple reason that there exist technologies that can prevent the thefts via encryption.

The problem is the CRIA/RIAA don't want to use them to protect their property. That is their choice, but they have a duty to protect their goods with reasonable means, if they also want to argue that everyone else is a thief.

If "piracy" of their intellectual property is an issue, they can encrypt the files. If they CHOSE not to do so, at least part of the responsibility is their own.

What good would their DMCA style laws do, if they continue to refuse to use the very technologies they demand to have enforced? DMCA exists in the US, and is likely to be made stronger (in their favour) ... yet where are the protected CD's? Where is the PROOF that those laws work? Theft continues ...

What they really want is to have laws that permit them random lawsuits with no proof of wrong doing, and no responsibility to protect themselves.

I say they should lock up their music nice and tight, if theft is such an all powerful issue.

Then let the people decide if its a product worth paying for.
July 28, 2006

swine said:

A strange thing...
I was at an outdoor concert in Nanaimo, watching the Powder Blues Band.At the end of their set Tom Lavin of powder blues told everyone to buy a cd and.."make sure you burn a copy for a friend"
I thought that was way cool
I eagerly await the day when the artist control their own media.Its not file swapping thats killing the recording industry, its corporate greed,manufactured acts, and a lack of understanding about the way media is changing
July 28, 2006

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