Copyright law continues to evolve as it struggles to protect creativity in the face of technological advance and globalization. The last six months have seen developments on both sides of the Canada-U.S. border which show how the struggle continues and how copyright law is adapting.
This past October, the U.S. Congress passed the Digital Millennium Copyright Act (DMCA).
Among the Act’s most notable features for the IT world is the creation of a “safe harbour” from copyright infringement for online service providers.
Before the DMCA, online service providers could in theory be liable for copyright infringement if some third party posted infringing materials on their site, even if the provider did not actually know that the material was infringing. Under the DMCA, the definition of a service provider is very broad. However, if a provider follows the Act’s detailed rules, it can avoid liability for infringing material.
Prior to the DMCA, in certain cases a computer repairer could be liable for copyright infringement merely by turning on a machine, since that resulted in a copy of the software being loaded into memory.
Blank Media Levy
In 1997, the Canadian government amended the Copyright Act to introduce a levy on blank audio recording media – the so-called “blank tape levy.”
However, the levy may be imposed on any media capable of being used to record audio, including recordable CDs (CD-Rs), even though the vast majority of them are used for data, rather than audio material. Ottawa designed the levy to respond to illegal private copying of sound recordings, e.g. from radio broadcasts or from tapes or CDs. The new regime will impose a levy on blank media, on the implied assumption that they are used for illegal copying, in return for declaring that “home taping” is no longer illegal.
The levy will be paid by everyone who manufactures in Canada or imports into Canada blank audio recording media “for the purpose of trade.” While the regime became effective on Jan. 1, the Copyright Board has not yet held a hearing to determine what the size and structure of the levy should be and is unlikely to set the levy until late this year.
This delay has caused serious disruption for blank media importers and manufacturers.
Blame it on Rio
According to Oasis’ recording company boss Alan McGee, the music industry is facing a global recession. Music sales are falling off, and global consolidation in the industry has meant that conglomerates have cut hundreds of small bands from company lists.
The turmoil is also being fed by a concern that advancing digital technologies and the Internet may develop into a way for bands to reach their audience directly, without the middlemen of the recording industry.
For bands like the Beastie Boys and Chuck D, the prospects of direct marketing have been liberating.
The fears were theoretical (given the tinny quality of much Web music) until a Silicon Valley multimedia company released a new format for compressing music last year.
The so-called MP3 (MPEG Layer 3) broke onto the news pages when Diamond Multimedia released the Rio PMP300, a portable music player which supports the MP3 format.
CD-quality music could be downloaded from the Web, though it would take hours to download as much as a CD. So threatened was the industry that the Recording Industry of America (RIAA) sued to stop its release.
RIAA failed in a bid in November to get the Rio off the market until the trial took place.
Mickey Mouse Law
In late October, the U.S. Congress passed the Sonny Bono Copyright Term Extension Act. Despite its title, the Bill does not make immortal the collected works of Sonny and Cher. What it does is show how smoothly Hollywood can muscle lawmakers.
The tale begins back in 1929 when a young cartoonist sketched a figure he called Mortimer Mouse. The doodler was Walt Disney, the mouse became Mickey and the rest is history.
Disney realized that in 2004, U.S. law was scheduled to let the Mouse copyright lapse into the public domain. Similar fears struck those who controlled Bugs Bunny and the song library of George Gershwin.The actual creators had been dead for years, but millions of dollars in royalties came to their families and estates.
In a display of power lobbying, the entertainment industry convinced Congress that the U.S. needed to extend copyright protection for an additional 20 years. The competing interests respectively argued that creation deserves a fair reward, and on the other side, that new creations often grow in the fertile soil of public domain material.
Disney itself has taken the Hunchback of Notre Dame, Little Mermaid, Pocahontas and Mulan from the public domain. Despite a vigorous counter-campaign with the New York Times and Washington Post publishing editorials against extension, Disney won and Sonny Bono was remembered in a statute. Creative works would be copyrighted for the life of the author plus 70 years. In doing so, the U.S. was simply playing catch- up with the European Union, which went to similar terms back in 1993.
Canada is now the odd one out. Here the term of copyright protection is still 50 years after the death of the creator. Expect pressure to extend Canadian law soon.