Copyright Got a Makeover, Did You Notice?

("Supreme Court of Canada" by Peregrine981 - Own work. Licensed under Public Domain via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:Supreme_Court_of_Canada.jpg#/media/File:Supreme_Court_of_Canada.jpg)

("Supreme Court of Canada" by Peregrine981 - Own work. Licensed under Public Domain via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:Supreme_Court_of_Canada.jpg#/media/File:Supreme_Court_of_Canada.jpg)

The podcast uses sound effects from freesound.org:

“Children Playing” by Stephan (http://soundbible.com/460-Children-Playing.html)

“Shopping Mall Ambiance” by Natalie (http://soundbible.com/1265-Shopping-Mall-Ambiance.html)

“Grocery Scanning” by Mike Koenig (http://soundbible.com/820-Grocery-Scanning.html)

“Pling” by KevanGC (http://soundbible.com/1645-Pling.html)

“City Centre” by Hopeinawe (http://soundbible.com/2000-City-Centre.html)

The podcast uses a sound from the site SoundBible (http://soundbible.com/1679-Gavel-Banging.html) called “Gavel Banging” by minuteman (http://soundbible.com/1679-Gavel-Banging.html)

The podcast also uses the following music from Free Music Archive website (freemusicarchive.org):

“The Fourth” by Scott Gratton (http://freemusicarchive.org/search/?sort=track_date_published&d=1&quicksearch=the+fourth+scott+gratton)

“Time and Tides” by Sound Spread (http://freemusicarchive.org/search/?sort=track_date_published&d=1&quicksearch=sound+spread+time)

“Catching Feathers” by Ketsa (http://freemusicarchive.org/search/?sort=track_date_published&d=1&quicksearch=ketsa+catching+feathers)

Written by Madelaine Pries

(Illuminated Transcript)

It all started with Napster. Then came Gnutella, Kazaa, Limewire. They rolled in with the growing needs of a download-obsessed world, each picking up where the last one dropped off, each trying to develop a better system while dodging the swinging iron fist of the law. They fought the good fight so that people could save their pennies and download their music for free. But what does that make the users who benefit from these systems? Can we just chalk it up to an attempt to be economical? To be opportunistic?

Can we say, maybe, that it’s just a little bit criminal?

If it has ever made sense to call an illegal act “not that illegal,” it’s in the case of downloading copyrighted files. This is not to take away from the fact that it is indeed against the law, but to highlight that in previous years there weren’t really any punishments for illegally downloading copyrighted work in Canada.

But our copyright laws, known to be as user friendly as the country itself (https://www.youtube.com/watch?v=GWk38yKq214), just got revamped. Our brand new Copyright Modernization Act was finalized and put into effect on January 1st of this year, jarring people awake on the dawn of the year 2015 to ominous headlines like CTV’s “Illegal Downloaders Beware” (“Illegal Downloaders Beware, You May Get a Shock in 2015” 2015). It was the beginning of the new era we now live in, a world where the average Joe, downloading music to dance to while he vacuums, can no longer skirt under the radar of the copyright holders to nab his jams for free. It is safe to say that the age of consequences for downloading copyrighted files appears to be upon us.

To navigate this new age, we must first equip ourselves with the basics. For instance… what is Copyright? The Canadian Intellectual Property Office describes it as “the exclusive legal right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work” (“A Guide to Copyright” 2015).

Okay, maybe we should go with their less wordy definition. Put simply, “copyright” just means “the right to copy” (“A Guide to Copyright” 2015). The Intellectual Property Office says that usually when you create something you automatically own the copyright for it. I mean if you really want the nifty little certificate that says the copyright is officially yours, then registering your copyright is the way to go.

It is also important to know that about three years ago copyright law was thrown off its bearings at a fundamental level, bringing about the need for the Copyright Modernization Act in the first place. The renewed Act stems from a crucial day in Canadian copyright history:

July 12th 2012.

The day of the Copyright Pentalogy.

This was a game-changing day in copyright history counting five separate case rulings, a significant and previously unheard of number of copyright cases to be ruled on in just one day. These rulings also questioned and shifted fundamental aspects of Canada’s already existing Copyright Act (Geist 2013). Is it any wonder that copyright law was launched onto a new course?

Some of the Copyright Pentalogy cases involved the giants like Bell, Rogers, and Apple. You know those little bits of songs you listen to on iTunes before you buy them? Could you imagine having to pay for those? Well, the Pentalogy case Society of Composers, Authors, and Music Publishers of Canada v. Bell Canada, made sure that idea got shot down.

There was also the question of whether there should be payments made when teachers photocopy copyrighted works for classrooms to be used as handouts in the case titled Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). Not to worry though, the ruling was a firm no. I will not be able to fully address all of the cases involved in the pentalogy, but you can find their brief summaries and significances by following the link: https://fromscratchmedia.squarespace.com/config#/|/blog-season1/2d6df2f6-e185-43c4-a515-3a52bbba6daa .

One big idea that came out of the Pentalogy, which has been very significant in today’s world where so much creative material is being shared online, is the idea of technological neutrality.

Now, Canada has always been known for its copyright laws that defend user rights – luckily for us users. The case of Théberge v. Galerie d’Art du Petit Champlain Inc. was paramount in setting this view in Canadian copyright law (https://fromscratchmedia.squarespace.com/config#/|/blog-season1/f71f44fb-8c4b-4642-af31-80159961a351). Though it occurred long before the Copyright Pentalogy, decisions made in the Théberge case were recalled in the five rulings, and are still being recalled in cases that deal with user rights today.

In the Supreme Court of Canada’s ruling of the case of Théberge, it states that Canadian copyright law looks to encourage the production of creative material as well as its use and spread in a view to further its reach and produce more works. This just means that the Court is looking to strike a user-creator balance in copyright law. This stance is seen in the Pentalogy cases, as well as in the consistent, adamant defense the Supreme Court takes of technological neutrality.

The term technological neutrality simply means that no matter what form of technology a work takes, whether it is presented in physical or digitalized copies, the same copyright laws always apply (Geist 2013). Its importance was shown and defended in the pentalogy case Entertainment Software Association v. Society of Composers, Authors, and Music Publishers of Canada. This case looked at whether or not users who streamed video games online should have to pay for the copyrighted background music that the games contain (“Copyright Pentalogy (Fair Dealing, Technical Neutrality & More)”). Having to pay these fees would be the equivalent of trying to buy a video game from a store and expecting to pay the shelf price, but being hit at the counter with additional fees for all of the background music in the game. In the physical world this would be seen as ridiculous.

        By ruling in favour of technological neutrality, the court decided that extra fees should not be paid. They set up the precedent for future cases whereby extra fees cannot be forced onto users because of the technology used to acquire a type of work. In this way the Court continues to defend user rights as they first proved to be in favour of in the case of Théberge.

Sounds pretty good for users, right? So why was CTV, among other news stations, running headlines telling downloaders to “beware”? Well, that would have to do with the notices from a new system that has been put in place with the finalization of the Copyright Modernization Act. The system is called a notice-and-notice system.

Michael Geist, the Canada Research Chair for Internet and E-commerce, is a law professor at the University of Ottawa and an expert on Canadian copyright law. On his website, http://www.michaelgeist.ca/, he provides an abundance of information about Canadian copyright law, as well as the notice-and-notice system that went into effect on January 1st of this year.

The gist of this system is that your Internet Service Provider, known as your ISP, is now obligated by law to send you a notice when you download a file illegally, letting you know that the copyright holders have detected copyright infringement from your IP address (to see an example of these notices follow this link http://www.huffingtonpost.ca/2015/04/22/hbo-game-of-thrones-piracy-canadan7120264.html). They do not require that you stop downloading, or even that you remove copyrighted material that you’ve posted online. Until infringement can be proven in a court of law, the notices serve only as a warning. However, if the copyright holder does choose to bring the matter to court, there is a possibility to be sued up to $5,000 for infringing copyright for personal use, or up to $20,000 for commercial use.

Though there is reason to beware the notices, there is more reason to beware the false information that many of these notices have been found to contain. As soon as the notice-and-notice system was put into place, it started being taken advantage of (Omar 2015). Though there are guidelines for what information needs to appear on the notices (https://fromscratchmedia.squarespace.com/config#/|/blog-season1/53124e56-4903-4f41-8b5b-43f0af483cb5), there is a lack of regulations surrounding what cannot appear on them, which was a deliberate choice made by the Supreme Court of Canada (“Canadian Government on Copyright Notice Flood: ‘It’s Not a Notice-and-Settlement Regime’” 2015). So you can bet that many companies are taking advantage by requesting settlements from people committing copyright infringement. They present the money grab as a sort of get-out-of-jail-free card, saying that settling will keep the issue out of court. Some companies suggest in their notices that if the settlement isn’t paid and legal action is taken, that illegal downloaders will be required to pay hundreds of thousands of dollars.

Don’t blame the ISPs for these notices though. According to the Copyright Modernization Act, they are legally required to send the notices they receive from the copyright holders, no matter what information they contain. All the copyright holder can see when they search for who is illegally downloading their work is the person’s service provider and IP address (that’s your computer’s specific ID). They then know which ISP to send the notice to for it to be delivered to the right IP address.

ISPs cannot send client information back to the copyright holders unless the copyright holder decides to sue. But even then, remember the most a person can be sued is $5,000 for downloading files for personal use, not the many more thousands that some companies are claiming. By answering the misleading notices, the copyright holders are also able to gain access to more information than just a person’s IP address (“The Copyright Notice Flood: What to Consider If You Receive a Copyright Infringement Notification” 2015). Click on the notice, and the copyright holder will be able to see your name, where you live… pretty well anything they could ever want to know about you.

What Geist points out is that the notices are supposed to serve more as an educational tool to make people aware of copyright infringement (“Canadian Government on Copyright Notice Flood: ‘It’s Not a Notice-and-Settlement Regime” 2015). They are not meant to run every citizen into a pool of debt for downloading a song. Without regulations on what the notices may contain, however, this is what the system is turning towards.

It appears that the only people who won’t be falling for the ruse are those of the younger generation. Though many copyright infringement notices have been sent out, a study involving 17 university students, admittedly a small group but representative nonetheless of the downloading habits of their generation, revealed how few had ever received a notice. Only one member of the group claimed not to engage in any illegal downloading activity, but even of the rest who admitted to the act, only one claimed to have ever received a copyright infringement notice.

Some reasons for this may be that these students are using VPNs, or virtual private networks, that hide the user’s internet activity. It may be that the students are just not downloading enough to be noticed. Or it could be that they are avoiding downloading from closely monitored downloading sites, like sites using the peer-to-peer file-sharing protocol BitTorrent.

BitTorrent has caught the eye of copyright holders as a widely popular file-sharing system, and also as a system that is advantageous to track because when you search for a song or movie to download, the BitTorrent system uses something called a tracker to go out and find peers who have the file you want and who are sharing it at that moment (Bridy 2011). This group of peers possessing the file you want, and from whom you will download the file, is called a torrent, like in the word BitTorrent (Bridy 2011). As for the Bit part, the idea is that you download little, well, bits of the file from multiple people at a time (Bridy 2011). This makes the process much faster than just downloading the whole file from one person.

The system is smart too. It knows which peers are offering the fastest download rates and will mix and match you with the ones who will get you your file the quickest (Bridy 2011). Kind of like electronic speed dating. And even before you finish downloading the entire file, BitTorrent is using what you have already downloaded to distribute to others (Bridy 2011). You are simultaneously downloading and sharing.

This is all well and good, until you think about how many peers you have taken from and how many you have shared with. This is why these sites are so great to track. Copyright holders use this system to link one guilty person to other guilty people. It’s a bread crumb trail of copyright infringement.

ISPs also have their reasons for wanting to discourage illegal downloading through BitTorrent. They don’t like illegal downloading because it takes up a lot of brandwidth (Bridy 2011). To get people to stop, ISPs will sometimes “throttle” your internet connection, which means that they will mess with it to frustrate you to stop downloading (Stone 2013). However, this method hasn’t been very effective to decrease illegal download rates (Stone 2013).

To return to our original question of why few university students are seeing the copyright infringement notices, the answer seems to be that streaming music and movies has totally eclipsed downloading as the method for consuming illegal content (“Stream On?: How Canadian Law Views Online Streaming Video”). Unfortunately for copyright holders, it is not as easily monitored as downloading. It is difficult to claim that people who have viewed illegally streamed music have committed copyright infringement because of how the music is acquired. Streaming involves downloading content for a very short period of time, just long enough so that you can view or listen to it, and then the file is gone (“Stream On?: How Canadian Law Views Online Streaming Video” 2015).

One of the rulings from the Copyright Pentalogy, the case of Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, made the decision on whether or not music streaming should be made illegal. Rogers, a company with a website that offered music streaming, argued that since the process of streaming only sends the file to one individual, it does not count as “communication to the public,” which would make it copyright infringing. However, the Supreme Court of Canada decided that sending one file to multiple individuals does qualify as “communication to the public,” and so any site that offers music or video streaming must pay royalties. 

In Geist’s article titled “Stream On?: How Canadian Law Views Online Streaming Video,” he explains how even though it is illegal to be on the receiving end of streamed copyrighted material, it is extremely difficult to catch people in the act. Your information also isn’t made public when you stream, so there is no way for copyright holders to know who you are or where to send a notice of infringement. The best they can do is take down the site that is distributing the file on the grounds that it is enabling illegal activity.

Until a system is developed to deter illegal online streaming, believe it or not the notice-and-notice system approach is showing success for deterring illegal downloads. Geist highlights that so far Bell, Telus, and Shaw service providers have experienced an over 50% decrease in online piracy rates (“Canadian Piracy Rates Plummet as Industry Points to Effectiveness of Copyright Notice-and-Notice System” 2015). He says that apparently the method is working so well that movie companies in the States want the country to look into using the Canadian method for discouraging copyright infringement.

Canada has always been known for its user rights, and with the notice-and-notice system now other countries are looking to model their systems after ours because it works so well. Way to go, Canada. As a country known for having the highest illegal downloading rates in the world, we really needed the good report (Tencer 2012). There may still be a ways to go in regulating the content of notices so that Canadians aren’t driven into debt and terrified to use the Internet, but so far the notices appear to be doing a lot of good. After all, there are people on the other side of the copyright law, the holders, who are losing money just as much as the users.

 

Works Cited

“A Guide to Copyright.” Canadian Intellectual Property Office. Government of Canada, 2 Oct. 2015. Web. 15 Nov. 2015.

Bridy, Annemarie. "Is Online Copyright Enforcement Scalable?" Vanderbilt Journal of Entertainment & Technology Law 13.4. (2011): 695-737. Web. 20 Oct. 2015.

“Copyright Pentalogy (Fair Dealing, Technical Neutrality & More).” Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. University of Ottawa Faculty of Law, n.d. Web. 15 Nov. 2015.

Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231

“Illegal Downloaders Beware, You May Get a Shock in 2015.” CTV News. 2 Jan. 2015. Web. 13 Oct. 2015.

Geist, Michael, ed. The copyright pentalogy: how the Supreme Court of Canada shook the foundations of Canadian copyright law. Ottawa: University of Ottawa Press, 2013. Web.

Geist, Michael. “Canadian Government on Copyright Notice Flood: ‘It’s Not a Notice-and Settlement Regime.’” Michael Geist. 29 Apr. 2015. Web. 20 Nov. 2015.

Geist, Michael. “Canadian Piracy Rates Plummet as Industry Points to Effectiveness of Copyright Notice-and-Notice System.” Michael Geist. 20 May 2015. Web. 20 Nov. 2015.

Geist, Michael. “The Copyright Notice Flood: What to Consider If You Receive a Copyright Infringement Notification.” Michael Geist. 13 Apr. 2015. Web. 20 Nov. 2015.

Geist, Michael. “Stream On?: How Canadian Law Views Online Streaming Video.” Michael Geist. 20 Jan. 2015. Web. 12 Nov. 2015.

Omar, Mohamed. “’No Obligation’ For Canadians To Pay Settlements In Copyright Notices.” The Huffington Post. 29 Apr. 2015. Web. 20 Nov. 2015.

Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283

Stone, Jeff. “How People are Caught Illegally Downloading Music, Movie Torrents.” International Business Times. 12 Sept. 2013. Web. 20 Oct. 2015.

Tencer, Daniel. “Music Piracy: Canada Among Top Countries for Unauthorized Downloading of Music.” The Huffington Post. 20 Sept. 2012. Web. 15 Oct. 2015.

Théberge v. Galerie d'Art du Petit Champlain Inc. [2002] 2 SCR 336, 2002 SCC 34 

References 

Freeman, S. “Michael Geist: Rightscorp Misleading Internet Subscribers With ‘$150,000 Fine’ Claim.” The Huffington Post. 8 Jan. 2015. Web. 17 Oct. 2015. Geist, M.

(2015, January, 16). How Canadian law views online streaming video: Geist. The Toronto Star. 16 Jan. 2015. Web. 17 Oct. 2015.

Oberholzer‐Gee, Felix & Strumpf, Koleman. “File Sharing and Copyright.” National Bureau of Economic Research 10 (2010): 19-55. Web. 25 Oct. 2015.

Zentner, Alejandro. “Measuring the Effect of File Sharing on Music Purchases.” Journal of Law and Economics 49.1 (2006): 63-90. Web. 21 Oct. 2015.