Home > World Watch > World Watch:  Canadian Government Closes Big Tech’s Back Door Loophole

World Watch:  Canadian Government Closes Big Tech’s Back Door Loophole

April 22, 2015

Canadian Prime Minister Stephen Harper’s government has announced that Canada will expand the current 50 year copyright term for sound recordings in Canada to 70 years. This brings Canada into the 21st Century and in line with its global trading partners. Expect handwringing from Big Tech and the magisterium of the professoriate, some of which has already begun, complete with at least some manufactured evidence worthy of Pandora.

Harper Government Acts to Protect Canadians from the Copyright Term Shell Game

The way you play the copyright term game internationally is to sell knockoff CDs or vinyl versions of classic recordings at super-budget prices in the country with the shortest term as those records flow into the public domain. Fans are confused by these records being sold side by side with value added versions (such as digitally remastered, 5.1 mixes, etc.).  For example, two titles by The Beatles recently appeared at Canadian Walmart stores according to The Examiner:

Whether they are Canadian public domain Beatles releases is not known. Walmart customers who have purchased them have commented that the CDs were dubbed from recordings and are terrible quality. “Audio is horrible! Wouldn’t want it even it was free!,” one said about “Love Me Do.” “Subpar quality. Save your $5 and put it towards REAL Beatles recordings,” said another.

There’s also a good chance that the same game can be played digitally at least with recordings ripped from old analog copies (but probably not with later digital versions that enjoy renewed copyright term).

An announcement yesterday by Prime Minister Stephen Harper’s government on Canada’s new copyright term is a great move for all featured and non-featured artists, their record label partners–both majors and indies–and independent artists who own their recordings.  As the announcement says:

The mid-1960s were an exciting time in Canadian music, producing many iconic Canadian performers and recordings. While songwriters enjoy the benefits flowing from their copyright throughout their lives, some performers are starting to lose copyright protection for their early recordings and performances because copyright protection for song recordings and performances following the first release of the sound recording is currently provided for only 50 years. [According to a Canadian IP expert, the change should go into effect before the summer.]

Canada has long had a shorter copyright term for sound recordings than most major economies. The U.S. is 95 years, the EU is largely 70 years but Canada’s has been 50 years.  This means that recordings made before 1965 currently are in the public domain in Canada and more will become available for resale by fast buck operators with each passing year.  Looming victims: Recordings of “These Eyes,” and “American Woman”, the massive hits by Winnipeg’s Guess Who. Followed by  Bachman Turner Overdrive’s iconic hits “Taking Care of Business” and “Roll On Down the Highway”. Then Bryan Adams’ records will start, and so on.

“Thank you for recognizing all that the performers and producers put into creating music and their continued need to be recognized for that effort 70 years later. The government’s Budget 2015 amending the term of copyright is very much appreciated in the music community.”
– Alex Lifeson (Rush)

As we’ve seen with Pandora and SiriusXM in the U.S., these streamers refuse to pay pre-72 artists because the records are not afforded federal copyright protection. We can only assume that Big Tech digital services operating in Canada will also refuse to pay artists for any works that would have fallen into the public domain if it were not for this latest protective move by the Canadian government. Fortunately, extending the copyright term to 70 years will forestall these classic records from falling into the hands of fast buck operators. But you can expect the full court press by Big Tech lobbyists and their allies to start a drum beat to oppose the extension.

The Yank is Silent

Michael Geist of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, aka the Lessig of Canada, has already started the handwringing and jingoism about Harper’s desire to bring Canada into the 21st Century. I would say he does a brilliant job of making the losing argument (yet again) but this time he really doesn’t even do that. In a curious tweet that seems to have been deleted, Geist initially seemed to misread the Government’s position as being extending the Canadian copyright term to life plus 70 rather than the straight 70 year term:

I guess he’s gotten squared away on what the language in the Government’s policy actually says. In a blog post, one of Geist’s major arguments against the Harper Government is that when Europe passed their copyright term extension, some countries voted against it. Now there’s a shocker–no unanimity?  Say it ain’t so! But it is exceptionally odd how he finds support for his argument that good is actually bad:

With many more studies and reports reaching the…conclusion [that extending the copyright term is always bad] (see here, here, here, and here) – some [studies and reports] estimating that the costs to the public would exceed one billion euros with 72 percent of the benefits record labels – the issue unsurprisingly proved very controversial in Europe. The European Union ultimately passed an extension from 50 to 70 years in 2011, but not without significant opposition from member states. Eight countries – Belgium, Czech Republic, Luxembourg, Netherlands, Romania, Slovakia, Slovenia and Sweden all voted against, while Austria and Estonia abstained.

We’ll come back to these “studies and reports” momentarily.   I guess that what Geist is saying is that a majority of European countries rejected his point of view? Not sure…. Another of Geist’s arguments against the Harper government is a lack of “studies” (and we know how the academics like their studies, especially when they get paid to produce them by their cronies in the bureaucracy).

So let’s look at the “studies and reports” that Geist cites in his usual cascading series of unquoted links marshaled to support his own conclusion, the “here, here, here and here” I quote above. Here #1: An academic paper presented at the Fordham IP conference. Not a study and not a report.  It becomes “analysis from EU experts” on Twitter…so which is it?

Here #2: A letter to the editor from Open Knowledge (funded by 2 of the same funders as Creative Commons). Not a study and not a report.

Here #3: A joint academic statement. Not a study and not a report.

Here #4: A law firm blog post that was reposted in The Register quoting one of the academics in Here #3 and a lawyer at the law firm that writes the blog. Not a study or a report, but seems like classic astroturfing to me.  I haven’t seen any reposts from Out Law on The Register lately.

Geist’s quote about the billions and billions seems to come from the law firm blog post that was reposted in The Register, especially the following part of the law firm blog post:

Martin Kretschmer, director of Bournemouth University’s Centre for Intellectual Property Policy & Management said that record companies will garner far greater benefits from the change than small-time artists and called the decision to approve the changes “a dreadful day for musicians and consumers”. “It is not surprising that many performers’ organisations and collecting societies support the Directive,” Kretschmer said in a statement [link in the original which is not to any statement, but to an advert for a roundtable with Kretschmer built around another professor flogging a book against copyright]. “They do not have to carry the costs – which will exceed €1bn to the general public,” he said. “Seventy-two per cent of the financial benefits from term extension will accrue to record labels. Of the 28 per cent that will go to artists, most of the money will go to superstar acts, with only 4 per cent benefiting those musicians mentioned in the [Council of Ministers] press release as facing an ‘income gap at the end of their life times’. Many performers also do not appear to understand that the proposal would lead to a redistribution of income from living to dead artists,” Kretschmer said.

Say what? Of course, in a trick worthy of David Blaine, somehow Professor Kretschmer, an academic in Bournemouth, knows the terms of all the legacy record deals in the world to come up with his 72%/28% split—but leave that to one side. This becomes a “UK study” in Geist’s twitter account:

The point is that Geist The Sea Lawyer cites to “studies and reports” but doesn’t cite one study or one report, unless he is imagining in his mind a study that is very different than anything he’s ever been paid to produce. Or maybe not….

A Lesson in Astroturfing (Updated 4/24/15)

Geist’s CIPPIC acolytes are out talking to the press, apparently.  In a piece quoting one of the acolytes published in the National Post, Ishmael N. Daro perpetuated the quote from the Pinsent Masons’ blog “Out-Law” linked in Geist’s post–remember that one from Here #4 and alternatively identified by Geist as one of the “studies and reports” and as a “UK study” on Twitter?

“It is not surprising that many performers’ organisations and collecting societies support the Directive,” Kretschmer said in a statement [link in original]. “They do not have to carry the costs – which will exceed €1bn to the general public,” he said.

So the implication in the Out-Law from the mega international firm Pinsent Masons and certainly from the description of it by Michael Geist is that extending copyright term in Europe would cost the public over €1bn and that Kretschmer’s number is backed up by a “UK study.”  This number then gets reported thusly in the National Post:

Studies on copyright extension suggest only a small portion of the revenue will flow to the artists, while also costing the public billions of dollars in the long term.

The link in the National Post is to Geist’s blog post in which he quotes the Pinsent Masons post that was reposted on The Register years ago and states that it supports Geist’s proposition that extending the copyright term in Canada for sound recordings by 20 years will cost “the public billions of dollars in the long term” as now is reported in the National Post.

So it must be true, right?

“I’ve been making music since the early 1970s. Term extension is a huge relief – in just a few short years I thought I would start to see copies of my work and no revenue. Not anymore, thank you PM Harper.”
– Myles Goodwyn [wegotchur back Myles]

Not so fast…if you work backwards, Pinsent Masons links to a “statement” that supports their quote.  That statement is a link to an advert for a panel at Bournemouth in which Kretchmer participates but has no statement from him.  So where did it come from?  Surely the fact checkers at the National Post know, eh?

You really can’t tell from the Pinsent Masons post that was reposted in The Register.  Is this odd?  Not really.  When you look at the Pinsent Masons website, Out-Law is described thusly by the Pinsent Masons’ website, followed by the smiling faces of two “journalists”, one “editor” and an “Out-Law Consultant”:

Our Out-Law Team

Key people – at your disposal

These are our key people.  They are all at your disposal, individually and collectively.  Between us, we will put together the team bespoke to your needs, in terms of our expertise and your geography.

Yes, Pinsent Masons’ “key people–at your disposal.”  Whatever you desire.  That’s a bit different editorial policy than say…oh, say the National Post.

So then…give Geist the benefit of the doubt and let’s look behind door Here #3.  This is the joint academic statement of which Kretchmer is a participant that Geist calls a “study and report”.  In that statement, there is a footnoted reference to “M. Kretschmer and P. Hardwick, Authors’ Earnings from Copyright and Non-Copyright Sources: A survey of 25,000 British and German writers (2007)” (footnote 8 for those reading along).  Maybe this is the source of the billions and billions quote?

Unfortunately, no joy.  This was actually a survey that was commissioned by the Authors Licensing and Collecting Society in the UK and that has since been updated.  Also–whatever conclusions it reached had nothing to do with the music business at all, and certainly not sound recordings.  However, Professor Kretchmer may be forgiven or at least given the benefit of the doubt for how he was quoted by Out-Law as he may well have been speaking of the collecting society for authors–as in book authors.  As he did not participate in the updated study commissioned in 2013 by ALCS, he might not have been up to speed.  And there is no evidence that he has any idea that his old statement from the Out-Law blog is currently being used in what appears to be a completely unrelated context.

“We’re glad to see Canada extend our length of copyright protection to terms consistent with other artists in other countries.”
– The Sheepdogs

But who cannot be forgiven in my mind is Geist or the National Post.  This “billions” is clearly a plug number and if it is backed up by anything at all, it certainly isn’t the evidence presented which was originally given in a completely different context.  Or, in the case of the National Post, relied on.

And, of course, in turn the National Post article has already shown up in copyleft newsletters and of course the EFF website as authoritative (that’s the Google Shill List member EFF).  The “millions and millions” quote was repeated by another copyleft type that even showed up in a post on Billboard–who we expect to get it right, being the Bible of the Music Business and all.  Repeat–because a recording is in the public domain does not mean that the seller has to charge any particular price point–so it doesn’t necessarily mean the “public” pays less.  It definitely doesn’t mean that those selling the original recording now in the PD can stop paying artist royalties required by artist contracts for the records they do sell.  You think EMI stops paying royalties to The Beatles when the recording fall into the PD?

Of course, as the Beatles Examiner observed, the sound quality on knockoffs is probably going to be awful.  Why?  Because the reseller does not have access to the original master tapes–the physical object still owned by the copyright owner, at least in a capitalist system.  These knockoff titles will always be several generations away from the original and will have questionable packaging as well.  Some might say that ripping a CD to a digital file creates a “perfect copy.”  Trust me, it may sound perfect to some people, but it ain’t.

But this is the thing about astroturf–if it sounds like something they want to hear, some journalists just keep regurgitating it without checking the fact.  So we have the National Post, the EFF and Billboard drinking the Kool Aid.  Can the ORG be far behind?

Classic, classic astroturfing.

A Short Detour into Royalty Accounting

Here’s a hot tip for Geist and Kretechmer that they would know if either had ever sold a record or talked to anyone who had:  When consumers pay the retail price for a public domain recording, they don’t pay “royalties”: they pay…the retail price.  There’s nothing that requires a public domain recording to be sold at any particular price. It is the retailer, including the digital retailer, who should be paying the artist royalties in the form of the wholesale price. When public domain records are sold, no royalties flow to the recording artists. All the money flows to the retailer and the operator distributing the PD work.  That’s the point. That’s why the Big Tech companies are so infatuated with the public domain—it’s another way to get rid of payments to those pesky artists and make all the money themselves. So in typical Geist style, there’s just enough truth in his statement that he can’t be called a liar, but he leaves out some critical steps that would undermine his sanctimony.  Because dogma only works as long as you can’t see who’s behind the curtain.

And since Geist has brought up these Beatles knockoffs with the justification that Lennon and McCartney will still get their mechanical royalty as songwriters, why don’t we just check with CMRRA on that little fact.

“As artists, ownership of our music is almost like a retirement plan. It is great to see that by extending Canada’s copyright term, the government is protecting that investment”
– Triumph

Beware, the TPP Is Nigh: Astroturf and the Public Domain

Geist has a serious issue with the Trans Pacific Partnership—so do I, frankly, although for different reasons. But he’s kind of obsessed with the idea that the United States government is using the TPP to bully Canada into “caving” on the copyright term issue. I fail to see the basis for this jingo.  If Canada were extending the term from 50 to 95—matching the term in the U.S.–I’d say he has a point. But that’s just not happening.

What is odd about Geist working up the jingo over the Harper Government (apparently witless and cowering according to Geist) is that there are many overlapping American influencers from the Google Shill List on the external advisory board of Geist’s NGO base of operations, the Samuelson-Glushko CIPPIC.

The very name is oddly American—Samuelson is Professor Pamela Samuelson, the U.C. Berkeley academic, and Glushko is her technocrat husband Robert Glushko, the Silicon Valley tycoon and also a U.C. Berkeley professor. Evidently they bought the naming rights to CIPPIC. That’s right–the Canadian Internet Policy and Public Interest Clinic is now named after two Americans.  You would have a hard time finding a list of all the different Samuelson-Glusko clinics, but I believe that S-GCIPPIC is the only one outside the U.S.  The others I know of are at Fordham, University of Colorado, Boulder, American University and, of course, U.C. Berkeley that received $200,000 in the discredited Google Buzz class action settlement.  (See David Lowery’s critique of Professor Samuelson’s “Copyright Principles Project” in Politico.)

Not to mention that it seems to me that Samuelson and Glushko are each as close to Google as one is to two. So before Geist starts looking for Yanks Under The Bed, he should look in his own house first. That’s CIPPIC—the “yank” is silent.

Google started getting into the public domain in a big way around the Copyright Term Extension Act, the U.S. statute that established the 95 year protection term at issue.  Recall that Google’s boy Lessig (on the cozy external advisory board of CIPPIC) was handed the then-biggest defeat of his career before the U.S. Supreme Court in the Eldred case on this very issue.

In a fit of pique that is quintessentially Lessigonian, Lessig stamped his little foot and Google came running with a gigantic check right alongside the Omdiyar Network Fund (of Ebay founder Pierre Omdiyar) and other Big Tech luminaries to fund Creative Commons and other initiatives to undermine copyright and expand the class of works that could be exploited without compensation to artists. Creative Commons 2008 Schedule B Lessig provided the unifying ideology and presto—the “public domain” chant became part of the catechism of anti-artist doctrine presented as dogma by the magisterium of the professoriate through the synchronicity of Big Tech money and academic “freedom to barter”—Saint Larry of the Googleplex and his Canadian cousin Saint Michael Geist of CIPPIC.  (For a detailed explanation of how Google works–to coin a phrase–with academics, see Public Citizen’s excellent report “Mission Creepy” that exposes Google’s influence spending in the U.S.–would that Public Citizen did the same for Canada and the EU.)

So nobody should be surprised that Geist is raising his hand to oppose Canadians extending Canada’s copyright term in Canada.

That’s Jingo: The Yank is Silent

Of course, Geist wants to try to work up a frenzy over the Trans Pacific Partnership.  Somehow in Geist’s mind bringing Canada’s copyright term in line with the rest of the developed world is “caving in” to the Americans. Why isn’t it also caving into the Europeans?

Why isn’t caving into the Brits the explanation that Canada wants to come into the 21st Century? Remember, the new 70 year term in Canada is not the same as the 95 year term in the US, but it is the same as the 70 year term in the EU. If Canada extended to 95 years, I could understand the jingo, but given that Canada matches the Europeans, I really don’t get it—except for one thing.

Running the jingo against the Brits, for example, must not play as well for Mr. Jingo as trying to stir up anti-Americanism. And of course, this is not the first time we’ve seen Geist dance the jingo.  This is in fact typical Geist jingoism, transmogrifying stopping loophole-seeking behavior into “caving to U.S. demands”.

What I don’t understand is why Geist is so unwilling to acknowledge that maybe, just maybe, his countrymen had an original thought when it comes to copyright.  Why on this subject is Canada always being pushed around and why does the Harper Government never act in the best interests of Canadians–at least in The Michael Show?

So, sorry Mikey—before you start the whinge, get your facts straight and at least do us all the courtesy of attacking the right straw man. And by the way—please don’t attack artists like Randy Bachman. It’s not a good look for you.

“Thanks for term extension PM Harper, you really are taking care of business.”
– Randy Bachman

  1. Brunet, Claude
    April 22, 2015 at 15:42

    Mr. Castle,

    When was the last time we, copyright-loving Canadians, told you we loved you?

    Thanks for taking on Michael again and in such a splendid way!

    CB
    Claude Brunet
    Associé principal, Avocat, Agent de marques de commerce
    Senior Partner, Lawyer, Trade-mark Agent
    Norton Rose Fulbright Canada S.E.N.C.R.L., s.r.l. / LLP
    1, Place Ville Marie, bureau 2500, Montréal, QC H3B 1R1, Canada
    T : +1 514.847.4726 | F : +1 514.286.5474
    Claude.Brunet@nortonrosefulbright.com

    NORTON ROSE FULBRIGHT

  2. April 23, 2015 at 07:20

    Can you explain what the actual effect of a recording’s falling into the public domain will be when the underlying composition does not? Do you somehow think royalties will no longer accrue, for example?

    Americans have too much influence on Canadian copyright policy as it is, so please butt out.

  3. Thomas
    April 23, 2015 at 08:19

    Great article, thank you..is anyone really all that surprised though considering he has an obvious agenda https://www.ic.gc.ca/app/scr/cc/CorporationsCanada/fdrlCrpDtls.html?corpId=4355091 (im sure more digging would just be heartbreaking for his flock), agree wholeheartedly with Claude

  4. April 24, 2015 at 08:58

    Great in-depth research, once again, Mr. Castle. As the the pre-1972 non-payment loophole in radio airplay in the US has demonstrated; it is a windfall for companies like Pandora where 15% of their total audience listen to pre 1972 music.

    It begs the question, why should a company with a reputation for under-paying artists, get a free ride here?

  5. John Ciccone
    April 26, 2015 at 01:29

    Maybe just me, but seeing those faux Beatle covers from Stargrove I get nauseous. Like a billboard that screams “Look! I found a way to grab some money off the backs of those with talent and originality when I have none myself!”

    But I’m quite interested in knowing how they dealt with mechanical licensing and the right of publicity/likeness issues. On the former, mechanicals are not compulsory in Canada meaning they would have to have gotten permission from administrators of the compositions. Anyone who’s licensed Beatle music knows that’s not simple and can often require jumping through a few hoops of fire. (That’s fine. They are, after all, the f’in Beatles.)

    So did Stargrove apply for mechanicals where they would likely have been asked to describe the nature of their project? And when they did, was someone asleep at the switch (or perhaps now unemployed) and said “OK”? Otherwise, the recordings could’ve gone PD in 1964. They still couldn’t use them without a license to use the compositions.

    Same for the photos which are likely in the public domain now in Canada. What about the folks *in* the photos? You know… the ones that enjoy right of publicity. Cannot envision McCartney’s representatives saying “oh, sure, go right ahead. Use Paul’s face to sell your thing”.

    This chess board is missing a few squares.

  1. No trackbacks yet.
Comments are closed.
%d bloggers like this: