Canada’s Copyright Conundrums: “How much should we charge?” (Part I – Music)

The Supreme Court of Canada recently released a series of rulings on the stance of Copyright law in the music and printing industries (neatly summarized here). This is an area of growing interest for me since starting law school, so allow me to butt in with some thoughts.

Music downloads are an odd thing. They seem to be a remnant of an old age where the music industry was limited to the exchange and sales of tangible music mediums like CDs or, like I remember it, cassette tapes. The sale of those mediums also allowed authorities to put a stranglehold on wide-scale piracy by controlling the supply of these mediums through a very simple method: the less blank cassettes available for purchase, the less piracy would occur. And it was simple to track those who attempt wide-scale piracy by tracking what they were purchasing (i.e. LOTS of empty CDs), when (i.e. shortly before the release of an anticipated album), and how they were using it.

But with the arrival of the internet, a lot changed. Wide-scale piracy became a much more simple endeavour because it can be easily controlled behind a computer screen. No matter how much effort you spent trying to contain the leak of a pirated song, the flow of information through the internet allowed the song to survive in someone else’s computer or through some distant server where no one can touch it.

Law enforcement got smarter, however, and there are ways to track those piracy attempts now. But there is a strange pattern ofescalation that I can’t help but notice that comes with stringier law enforcement. The more aggressive you become in enforcing a law, the more likely it seems that violators of that law will strike back or find a way to get around that law. It’s a concept that I found to be very well explained in Christopher Nolan’s “Batman Begins” (2005).

The use of this example has nothing to do with the fact that the latest installment of Christopher Nolan’s adaptation of Batman comes out on July 20…in IMAX (Source: http://scottalanmendelson.blogspot.ca – Copyright of Warner Bros. Pictures)

In the movie, Jim Gordon (left) worries about how Batman’s use of theatrical force to catch Gotham’s criminals will likely cause an increasing amount of violence in the streets, regardless of the police’s efforts to strengthen their efforts (the full scene can be seen here). I see a parallel here with the music industry’s “pirates”, but obviously with less dire circumstances: the tougher that law enforcement gets on music pirates, the more likely that there will be a backlash of music copying as a result.

The reason why this is likely is because music is seen as a “quasi-public good”, as described by Professor Nagla Rizk of the American University in Cairo (Rizk, Nagla. Access to Knowledge in Egypt. Bloomsbury Academic, 2010. 94-95. eBook). Since music can be enjoyed by one person without interfering with another person’s right to enjoy it, it is considered a public good that can (and should) be accessed by all. But music can also be limited to those who can pay up for access – after all, that’s how concert organizers make their money. So since music has properties as both a public and a private good, where should we draw the line?

To the Music Industry: Time to Reform

I’m going to give the music industry the benefit of the doubt and assume that they tried to draw the line down the middle to make music as accessible as possible to everyone while still making some profit (I have no information about this, but let’s not be too harsh). What has resulted so far is that access to digital music is relatively cheap in comparison to the way it was sold in the 1990s: instead of having to pay for the whole album on a cassette/CD (which usually involved an inconvenient trip to go buy the cassette/tape itself), you can pick and choose what song to buy for a singular unit price (which, according to iTunes, is usually around $0.99 to $1.29 per song).

But this is still not enough to prevent pirates from pirating songs. Royalty organizations and artists, growing frustrated by the process, decided to lash back by raising the price of a song through various fees mentioned in the CBC article above. The counter-argument, which the court thankfully accepted, can be summarized as follows:

Royalty organizations have argued that all of the new fees sought were necessary for ensuring the financial well-being of musicians.

But the counter-argument has always been that lower prices encourage a higher volume of legitimate buying, while higher prices often encourage piracy, in which case artists don’t see any revenue.

Ah, the power of visual symbolism! (Source: http://consumerproductnerd.blogspot.ca)

If I may, I would recommend to those royalty organizations that the best way to collect those royalties is to decrease the fees while increasing the supply of music.

Popular music these days involves the use of relatively cheap production methods, in my opinion. They seem to use more electronic/digital sounds rather than musical instruments, so the production requirements do not require more than an artist and a computer. If the production costs are down while demand is high, then you can capitalize on low production costs by out-competing music pirates for the demand for low-cost music.

Considering that music pirates usually give out songs for free, these costs should be low enough so that a consumer would not mind paying up that money since it would a smaller cost than the price paid for breaking the law. So this requires two things:

  1. A low production cost for music that is in high demand
  2. A law enforcement system that targets pirates of low-cost music productions

Conclusion

I guess what I’m trying to say is that the music industry needs to do a little bit more before the courts should start feeling sorry for it. Yes, I’m aware of the fact that my suggestion involves cutting into the profit margin of sales, but if you want public opinion in your favour, that may be necessary for an appropriate, long-term fix.

Or you could go with the other route of passing a copyright bill that strongly targets music pirates, like the Conservatives are doing with Bill C-11. This bill, which will likely become law soon, is very stringent on copyright violations in the form of piracy and could mean that Canadians will have to change the way they purchase and exchange music in the current digital age. Is it a risky move? Possibly, because internet/music lovers out there will not take this lightly, and may lash back with new ways of getting around this law in an escalating manner.

My god, Christopher Nolan is a genius.

Call it a bit dramatic, but drawing comparisons to the failed SOPA legislation in the US is probably a good way to get those slacktivists on your side (Source: http://playtechno.com)
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