CRIA Renames and Rebrands Itself as MUSIC CANADA: What's in a Name?

The Canadian Recording Industry Association (“CRIA”) has renamed and rebranded itself MUSIC CANADA. According to CRIA’s President, Graham Henderson, in a Billboard article:

"CRIA has been very focussed on copyright reform for many years and we fully expect that our efforts will be rewarded with a modern copyright framework in Canada," Henderson told Billboard. "But our role is also evolving and it was felt that in order to best support our members as they rebuild the marketplace, we needed an invigorated brand and direction.”

CRIA now has a newly redesigned website called www.musiccanada.com (with a dot-com and not dot-ca URL as Michael Geist was quick to tweet). The website is now very similar in key respects to that the RIAA, CRIA’s American counterpart. MUSIC CANADA says:

Music Canada is a non-profit trade organization that promotes the interests of its members as well as their partners, the artists.  Those members are:

EMI Music Canada
Sony Music Entertainment Canada Inc.
Universal Music Canada Inc. 
Warner Music Canada Co.

These are, of course, the Canadian subsidiaries of the worlds’ four largest multinational record companies. Few would regard these companies as “Canadian”, other than in name and for certain legal purposes. Their ultimate ownership and control lie elsewhere. 

MUSIC CANADA also says that “In addition to the members listed above, we also provide certain membership benefits to some of Canada's leading independent record labels and distributors which include....” a dozen far less well known companies. Nettwerk, the currently most prominent Canadian indie, is notably not on the list. Also absent are other important and even legendary Canadian indies, such as Anthem, Aquarius, and True North.

Some readers may recall that, in 2006, CRIA had to be told, under protest, to notify its “B Class” members that it would not be representing their interests in a certain Copyright Board proceeding. As the Federal Court of Appeal succinctly wrote: 

Following CRIA’s decision that it would no longer represent certain of its members (“the B Class members”) before the Board in this proceeding, the Board ordered CRIA to send a notice to its members saying that it had been instructed by the Board to advise them that it would not be representing the B Class members in the proceeding before the Board and that this was CRIA’s decision, not the Board’s. CRIA challenges the validity of this order on three grounds...

Third, CRIA submits that if, contrary to its submission, the Board has the power to make the kind of order that it made in this case, it exercised its power unreasonably. We do not agree. It was, in our view, perfectly reasonable for the Board to seek to assure itself that the B Class members were made aware that CRIA had decided not to represent them and that their interests could therefore not be taken into consideration when the Board rendered its decision on the proposed tariff.

It is extremely rare for the Board to get involved in the internal affairs of collectives - but it did so in this case. CRIA unsuccessfully sought reconsideration of the Board’s order and then judicial review, i.e. “appeal” in the Federal Court of Appeal. However, the Court upheld the Board and forced CRIA to appropriately notify its indie “B Class” members. Here is a much more detailed background to this decision from my blog in 2006.

CRIA’s rebranding efforts are hardly new.  Last year, I noted that:

It’s kind of interesting, though hardly surprising, that the so-called “Balanced Copyright for Canada” coalition has finally admitted that “thelead funding source is the Canadian Recording Industry Association” (i.e. CRIA).  

A few years ago at the Fordham conference, a prominent international content industry lobbyist, in a funny Freudian slip, referred to CRIA as the “Canadian Recording Industry of America.”

I wonder if the so-called “Balanced Copyright for Canada” coalition will admit that it is, at the very least, ironic that its name is arguably confusingly similar to that of the Balanced Copyright Coalition (“BCC”) (which I started in 2007) which morphed into the Business Coalition for Balanced Copyright (“BCBC”).

All in all, it will be interesting to see if CRIA’s new name, new website, and new dot-com domain name result in CRIA now being regarded as taking a greater interest in Canadian artists, Canadian labels, and Canadian public policy issues - particularly copyright law - from a significantly more Canadian perspective.

Other recent notable “rebranding” efforts in the collective and trade association world include:

• The NRCC (Neighbouring Rights Collective of Canada) rebranding itself as “Re:Sound”. Interestingly, the colon punctuation mark in the name prevents it from being used “as is” in any URL or filename.

• Then, of course, there’s CANCOPY, which became increasingly referred to as CAN’T COPY. Perhaps that was part of the reason why it changed its name to ACCESS COPYRIGHT, which some have possibly assumed to be an inspiration for the name for this blog.

What’s next?

HK

PS - CMPDA is now MPAC. See here.


 

C-32, the UN vote and the United States Silence

Fox News, no less, has published an opinion piece from Richard Grenell who served as the spokesman for 4 U.S. Ambassadors to the U.N. during the George W. Bush era including John Negroponte, John Danforth, John Bolton and Zalmay Khalilzad suggesting that the USA left Canada "hanging without vocal U.S. support" at the UN in Canada's unsuccessful attempt to serve on the UN Security Council. Canada's defeat was unprecedented and very significant. As The Economist says in its customary plain language, Canada has been "snubbed".

Mr. Grenell states:

In fact, U.S. State Department insiders say that U.S. Ambassador Susan Rice not only didn’t campaign for Canada’s election but instructed American diplomats to not get involved in the weeks leading up to the heated contest. With no public American support, Canada lost its bid to serve. That gives the EU more than 25% control of the body and a strong voting block to ensure EU priorities become global priorities. -- This was the second time a high profile ally could have used U.S. help yet Rice chose to stay silent.

If it is the case the USA has let Canada down this badly, could it be that the Canadian government will no longer feel so compelled to "make the Americans happy" on the copyright and Bill C-32 front, as Blayne Haggart has documented? Many others have also believed that this goal has been a major factor in the thinking behind Bill C-61 and Bill C-32.

Several months ago, I commented on the astonishing and absurd attempt by the noted American lobbyist Scotty Greenwood to link the "Buy American" issue to Canadian copyright capitulation.

Hopefully, the Canadian government will now do what's best for Canada on Bill C-32 and put aside what's best for the US government and Canadian lobbyists acting as proxies for US corporate interests. Just as the US government has apparently just put aside Canada's interests.

HK

Exit Strategy for Digital Locks Dilemma of Canada's Bill C-32

(Harry Houdini in 1899 - Wikipedia)

Pressure mostly from the American entertainment industry and, as a result, the US government itself has got Canada locked into a very divisive battle over digital locks. While there was cause to hope that the "made worse in Canada" DMCA-like provisions of Bill C-61 might be more balanced in the next bill, Bill C-32 proved to be a big disappointment in this respect. This issue has once again threatened to block progress and passage of copyright reform in Canada. Now, two extremely important authorities in the US have provided the exit strategy and tools to enable Ministers Clement, Moore and the PMO to escape from the digital and political conundrum into which they were locked with time running out before a possibly sooner rather than later election.

The United States Copyright Office, which is part of the Library of Congress, is about as independent as a government organization gets to be in the Washington government structure. It has immense prestige, power, and influence in copyright matters - both domestically and internationally. Under its remarkably competent and balanced succession of Registers, currently Marybeth Peters (soon to retire) and her predecessors such as Ralph Oman (who was instrumental in bringing the US into Berne), David Ladd, and the late Barbara Ringer who was greatly influential in the monumental 1976 legislation, it has shown itself to be fair, erudite and devoted to consultation, consensus where possible, and research and evidence based rule making within its mandate. Officials whose sympathies were too pro-industry have tended to leave to pursue careers as lobbyists. Those who have stayed have done a great job overall and are a real credit to the legal and governance professions, as well as those who have appointed them. Nobody could possibly see the US Copyright Office as “radical extremist” or “copy-left” when it comes to copyright policy.

Here is the Copyright Office’s recent fair and balanced rulings on various DMCA related issues allowing exemptions for such practices as cell phone “jail breaking” (which goes way beyond simple unlocking) and copying of DVD excerpts, both of which would be illegal under Canada’s proposed Bill C-32.

The recent ruling also allows for circumvention of eBook digital locks when when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format. This was a close call, since the Register (with apparent reluctance) recommended against this exemption this time around on the basis of a lack of evidence presented by the proponents. Interestingly, the Librarian of Congress himself, James Billington, overruled her and continued the previous exemption granted in 2006.

Ironically, not only are the exemptions far more generous to users than what is proposed in Canada’s Bill C-32. The much disliked DMCA at least allows for exemptions based on fair use principles. Bill C-32 makes is absolutely clear that anti-circumvention protection for DRMs and TPMs trumps fair dealing in Canada.

While Bill C-32 does make provision for regulations that could be made to provide exemptions in some very limited circumstances, that is no answer to why Canada would start out with far harsher anti-consumer, anti-user and anti-innovation legislation that the USA now has. Michael Geist's Toronto Star column talks about this today.

Nor is the United States Fifth Circuit Court of Appeals, which has just upheld a district court ruling on DMCA circumvention that is far more generous to users than Bill C-32, an example of a “radical extremist” organization. Texas districts courts are not known for being very “user friendly” on IP matters.

Here’s the ruling that will upset pro-digital locks lobbyists no end. It confirms the legality, even under American DMCA law, of users’ rights in respect of anticirumvention behavior that would clearly be illegal under Canada’s proposed Bill C-32.

The ruling states:

However, MGE advocates too broad a definition of “access;” their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of “fair use” permitted under the Copyright Act. Merely by passing a technological protection that restricts a user From viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.

(emphasis added)

Despite this quite clear language and the fact the appeals court upheld the district court and the fact that General Electric (hardly an “enemy of copyright” or a “radical extremist” - it has filed 20,000 patent applications in the last decade) was the successful defendant/respondent, it should be noted that a well known Canadian lawyer who has been a lawyer and/or lobbyist for the Canadian trade associations that represent the American recording and motion picture industries has gone so far as to disagree with this ruling. Not surprisingly, he also criticizes Michael Geist’s perfectly reasonable, succinct and timely summary of it. It will be interesting to see what expert American expert scholars and lawyers who are not lobbyists have to say about this decision.

All of this should come as great news for embattled Government Ministers Clement and Moore. It shows that even the very prestigious, powerful and influential United States Copyright Office and the very important and usually very IP friendly Fifth Circuit Court of Appeals do not have the slightest concerns about such issues as spurious and misleading red herrings about international law and the 1996 WIPO treaties raised by certain lobbyists and some associated with them with respect to Bill C-32 in Canada. One can be quite confident that if such arguments had any weight, they would have been made in these US proceedings. The Copyright Office did consider the WIPO treaties and was clearly not distracted by them. If the WIPO treaties were raised in the 5th Circuit, the Court was clearly not the slightest bit impressed and doesn't even mention them.

These very important and virtually simultaneous American developments provide a great exit strategy for Ministers Moore and Clement on Bill C-32, which Minister Clement, the lead Minister on this Bill, has clearly already perceived.

As it happens, Minister Clement is also much embattled on the census front. Ironically, the arguably minimally intrusive privacy implications of the mandatory long form census pale in comparison to those of the Bill -32.

Bill C-32 will expose Canadians to massive commercially and quite possibly criminally motivated privacy invasion by protecting the invasion tools but preventing Canadians from easily and effectively protecting themselves from the countless ways in which the most intimate information about their reading, listening, browsing, book buying, hobbies, innermost thoughts, and other personal information can be harvested, sold or otherwise abused against their free and informed will. This is seriously a crucial privacy issue - and, with all respect, much more so than the number of bedrooms or bathrooms in ones’ house, which is readily available public information anyway.

Minister Clement (whose is the lead Minister on Bill C-32) has been the nice cop on the DMCA anticircumvention issue. It has fallen to Minister Moore who, for whatever reasons, has taken the unpopular side of the US entertainment industry, to defend that the air tight digital locks provisions. These provisions jeopardize the viability of the whole bill - even without the above developments.

Now both Ministers (particularly Minister Moore) and the doubtless interested PMO have a graceful and convenient exit strategy made available to them by fate, the US Copyright Office of the Library of Congress and the US Fifth Circuit Court of Appeals.

There is no reason why Canada would want to enact a law that is contrary to the interests of Canadian consumers, copyright users, educators, innovators and creators themselves for the benefit of the luddite faction American entertainment industry when US law itself has been authoritatively interpreted in a far more "large and liberal" user friendly manner than Bill C-32 would provide.

Now that Canada has been handed the keys to unlock itself from the digital locks dilemma, hopefully, we can at last get on with some serious, balanced and long overdue copyright reform that will operate in Canada’s interest and be fully consistent not only with international law but even international law as authoritative American sources see it.

Then, let's see who the real "radical extremists" will be who will oppose copyright reform. Access Copyright has already declared itself here and here and elsewhere for starters. The next in line will predictably be CRIA and CMPDA, and organizations that they have managed to influence up till now on the copyright front.

HK

Speaking of Statistics (and Copyright Blogs)

Not surprisingly, IPKat shows up yet again as the "first in show" copyright blog this week according to the Copyright Litigation Blog.

Congratulations to my dear friendly felines - Jeremy (the wise and wily tom cat), Annsley, Tufty and all the other Kats and Kittens...

No doubt their otherwise well deserved popularity this week was not diminished with this deceptively misdescriptive (though only barely) but still somewhat salacious blog about the "Naked Truth" of American trade marks litigation involving a cow boy, cow girl. and guitars.

Curiously, my little Canadian blog, lately rather neglected by the undersigned, apparently came in at number 11 around the world.

This is interesting, especially since neither this blog nor that blog were even mentioned.

There's an old adage about lies, damn lies and statistics - the latter of which is a hot topic these days in Canada that has even reached the New York Times. The Canadian long form census debate is ironically related to to copyright policy and the debate unfolding on Bill C-32. This is because of the air tight protection for DRM and TPM measures in Bill C-32 and the inadequate protection from their privacy invasive potential. See here on this blog a few days ago.

In order to achieve more reliability on copyright blog readership statistics, we really should consider including one or more questions on the mandatory Canadian census - if it survives - about blog reading habits so that Canadians can know the real truth about who reads what and why...

To certain readers who occasionally take this blog, including its title, too literally - part of the foregoing is tongue in cheek. But only part. If you can't guess which part, you need help!

HK

The “Balance” Brand in the Balance

It’s kind of interesting, though hardly surprising, that the so-called “Balanced Copyright for Canada” coalition has finally admitted that “the lead funding source is the Canadian Recording Industry Association” (i.e. CRIA).

A few years ago at the Fordham conference, a prominent international content industry lobbyist, in a funny Freudian slip, referred to CRIA as the “Canadian Recording Industry of America.”

I wonder if the so-called “Balanced Copyright for Canada” coalition will admit that it is, at the very least, ironic that its name is arguably confusingly similar to that of the Balanced Copyright Coalition (“BCC”) (which I started in 2007) which morphed into the Business Coalition for Balanced Copyright (“BCBC”).

The BCC and the BCBC indeed were based on a genuine attempt to achieve real balance - the notion that blue chip corporate giants in the communications, internet, broadcasting and retail sectors (e.g. Google, Yahoo, Rogers, Telus, the Canadian Association of Broadcasters and the Retail Council of Canada) inherently need to see copyright from the various standpoints of consumers, users, owners, and creators - and that their views are thus very much more “balanced” than the much smaller purely content industries which see things from one purely parochial side only - namely their owner based interests - which don’t necessarily and often emphatically do not reflect the interests of actual creators.

There is not much that is “balanced” about CRIA’s latest lobbying front. If it were truly grass roots, it wouldn’t even need funding. The basic cost of website is about the same or less as a case of beer. Starting a blog such this one or a Facebook site is free. However, the so-called “Balanced Copyright for Canada” coalition apparently needs the weight of corporate lobbying lucre behind it.

I would say that the word “balance” is now being bandied about badly.

HK