Rogers Communications and Human Rights

Rogers Communications has made plenty of money from the music business. Like many ISPs it had to decide whether to cross the piracy Rubicon. Was it going to stay on the right side with creators and work on sustainable innovation or cross over to the wrong side with Google and many others and pursue false innovation. I summarized that choice in an op-ed in the San Francisco Chronicle:

“Innovation is a two-way street. Wrapping yourself in the flag of ‘innovation’ does not excuse you from respecting economic rights or legal accountability online any more than it does offline. Most public companies are beginning to agree with Serge Sasseville of Canadian communications giant Quebecor that public companies answer not only to CEOs, shareholders and creditors, but as ‘a good corporate citizen, [we] cannot remain insensitive to the piracy problems affecting the survival of content producers and rights holders.’

Contrast Sasseville’s admonition with RealNetworks CEO Rob Glaser, quoted in an Associated Press story on RealDVD: ‘If you want to steal, we remind you what the rules are, and we discourage you from doing it, but we’re not your nanny.’

The differences are obvious.”

Justice Souter writing in the unanimous U.S. Supreme Court decision in Grokster (125 S.Ct. 2764 (2005)) put a still finer edge on the issue: “We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

Rogers’ station KISS FM provides an excellent example of that clear expression of its intent to foster infringement and trade on false innovation in what is essentially a station identity music video in part featuring a young actor—presumably hired by Rogers for the purpose—holding up her hand toward the camera and revealing the words “I NEVER PAY FOR MUSIC”.

And the actor is standing in front of one of the few remaining record stores when she is photographed just to add insult to injury. It seems highly unlikely that capturing this image in just this way was organic or unrehearsed.

Rogers gets a young actor to carry a message that undermines creators. Classic.

I discovered this sorry state of affairs in James Gannon’s blog, IP, Innovation and Culture. He summarizes his view of the messaging from the KISS video this way: “From what I can tell, the message of the video appears to be that the quintessential depiction of Toronto life includes visiting the CN Tower, going to Wonderland, watching a Maple Leaf game and downloading music without paying for it while rubbing it in the face of retailers.”

This video is essentially an identity ad for the station. These generally emphasize the musical format of the station associated with images and personalities that the station wants the public to associate with them. Ironically, Gannon had a link to the “official” version of the KISS FM video that was available on YouTube, but it’s apparently been taken down now.

This slice of life will come as no surprise to anyone who follows the piracy situation internationally, particularly in Canada. Canada has long been identified as a hotbed of international piracy, particularly of intellectual property. In fact, Canada was elevated to elite status amongst pirates this year when the U.S. Trade Representative put the country on the “Special 301” list alongside the worst pirates in the world. (See “What do Canada, Vietnam, China, Russia, Ukraine and Romania have in common? (And, no, it’s not future sites of the Creative Commons Internationale)”). This in part because Canada has yet to ratify the WIPO Internet Treaties which have languished in Ottawa for over a decade, but mostly because Canada is well known as a facilitator of Internet piracy.

This fact was recently confirmed by the Organization of Economic Coooperation and Development (despite the efforts of the very well funded Michael Geist of the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and (apparently) of the elusive Lawbytes, Inc. to obfuscate these results in favor of false innovation).
Given Canada’s serious problems with Internet piracy and intellectual property rights in general, tech leaders like Rogers are hardly in a position to be hiring young actors to carry their pro-piracy message and funding that messaging efforts with monies raised from the public financial markets. Like Google, these false innovators use their economic might from the public sale of stock to crush opposition from artists, authors and other creators. Or just out-litigate them $1 million to $1.

The Canadian government largely just stands by and lets this happen. This is a real shame as some of the best music of several generations comes from Canada and it is home to some of the best music towns on the continent–starting with Toronto.

So not only does the Canadian government fail to live up to its obligations under the unratified WIPO Internet treaties, the government also fails to live up to treaty obligations that it has undertaken—such as the International Covenant on Economic, Social and Cultural Rights (specifically Article 15, paragraph 1(c) of the Covenant) which provides “the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author.”

Rogers and the Government of Canada might do well to remember that the rights of artists to the benefit of their interests in their work is a human right—a protectable human right. Mocking the protection of these rights is not funny and should never be exploited.