McGill Conference Offers Perspectives on New Media and

UNCLAS SECTION 01 OF 03 MONTREAL 000150 SIPDIS SENSITIVE SIPDIS SECSTATE FOR WHA/CAN, WHA/PD, DS/IP/WHA, EB/TPP/IPE State please pass to USTR for Sullivan, Melle, and Garde E.O. 12958: N/A TAGS: ECON ETRD KIPR CA SUBJECT: McGill Conference Offers Perspectives on New Media and Copyright Reform This message is Sensitive but Unclassified -------------- Summary -------------- ¶1. (SBU) A conference on music and copyright issues entitled "Musical Myopia, Digital Dystopia: New Media and Copyright Reform," hosted by McGill University on March 23, brought together a number of experts in the field of digital rights management and musical technology to discuss the current challenges facing the music industry and the evolving role of intellectual property rights in new media. The conference featured participation from Ann Chaitovitz, Attorney-Advisor at the U.S. Patent and Trademark Office, Bruce Lehman, former Commissioner of Patents and Trademarks in the Clinton Administration, and Michael Geist, a law professor at the University of Ottawa, among others. While Geist's remarks about the adequacy of current Canadian legislation were predictable (Geist is an oft-quoted critic of the Special 301 report and other efforts to encourage Canada to adopt stronger IPR protection),Lehman's comments about the inefficacy of the Digital Media Copyright Act came as a surprise. Although movie piracy (specifically camcording) in Montreal has received widespread press coverage in recent months, the issue of copyright protection for music (and technical protection measures in general) also remains a hot issue. Ms. Chaitovitz underscored how U.S. copyright law evolved to incorporate new media, explained the difference between rights limitations and access limitations within U.S. copyright law, and offered examples of how consumers have benefited from copyright protection by being able to pay more selectively for the services they want. The points of view expressed by some participants have been used to justify GOC resistance to changing its copyright legislation and ratifying the WIPO Internet Treaties. Some conference participants stated that copyright issues remain oversimplified by policymakers and misunderstood by the general public. Post will continue to engage stakeholders in multiple sectors about the importance of implementing the WIPO internet treaties. -------------- Canada's IPR "Public Intellectual" rails against anti-circumvention -------------- ¶2. (SBU) Geist, regarded by some academics as Canada's "public intellectual" on intellectual property issues and internet law, has published a number of editorials casting doubt on figures related to Canada's share of global film piracy. Geist maintains a blog in which he tackles issues related to new technologies and their legal ramifications and intellectual property issues more generally and has argued against the inclusion of anti-circumvention provisions in Canadian law (see http://www.michaelgeist.ca/index.php). Such provisions, which exist in U.S. law, would ban the manufacture of devices that could be used to "pick digital locks." Geist made a "case against Canadian Anti-Circumvention legislation," contending that anti-circumvention devices are harmful, run counter to the free market, are ineffective, and are unnecessary. ¶3. (SBU) Geist outlined the changes occurring in the world of digital media on the internet, such as the presence of 70 million blogs, the development of services such as myspace, youtube, webcasts and podcasts that all facilitated audio and video file sharing, to conclude that "those involved in WIPO guessed wrong" about the need to control digital copying. Geist stated that anti-circumvention devices could be harmful to the software and materials they were created to protect. He also said that many Canadian artists do not want to see legislation enacted that would facilitate lawsuits against fans. Geist pointed to the creation of the Canadian Music Creators' Coalition, which claims to be a "growing coalition of Canadian music creators who share the common goal of having our voices heard about the laws and policies that affect our livelihoods," including artists such as Sarah McLaughlan, Avril Lavigne, and the Barenaked Ladies, as evidence of this trend. Some music groups, such as Broken Social Scene, have credited new technology and file sharing mechanisms for facilitating their popularity. -------------- An architect of the DMCA proclaims a "post-copyright" era -------------- ¶4. (SBU) Mr. Lehman, one of the self-proclaimed "architects" of the Digital Millennium Copyright Act (DMCA) as well as the WIPO Internet treaties, stated that the music world has entered the "post-copyright era" and that existing copyright mechanisms had failed to respond to the evolution of the internet. Mr. Lehman's comments could be interpreted narrowly to mean that the "copyright" MONTREAL 00000150 002 OF 003 era has come to a close because the genie of digital music is already out of the copyright bottle. Lehman went on to say that Canada should not be constrained by what was done in the United States and blasted the U.S. government process. He said that under U.S. law, individuals are held responsible for file-sharing activities because the big corporations, like the internet service providers (ISPs),lobbied to exempt themselves. He suggested that Canada take a new approach that allegedly could not have been accomplished in the U.S. because of powerful interests, and urging Canada to play an outside role as a cauldron of creativity and culture. -------------- Defending the DMCA -------------- ¶5. (SBU) Ms. Chaitovitz stressed the need for the prohibition in manufacture and trafficking of circumvention devices, and noted that such prohibition leads to more effective and less intrusive enforcement of copyright infringement. With regard to technological protection measures, Ms. Chaitovitz said that U.S. law does not require creators to install such devices in their products, and that individual enterprises decide if they wish to protect their material in this way. She also made the distinction between rights limitations and access limitations, with rights controls limiting what consumers can do with purchased materials and access controls determining which consumers can gain access to a particular product or service through subscription services. Ms. Chaitovitz noted that many new digital business models offering consumers more choice and flexibility (such as music subscription services or Netflix offering access to on-demand-streaming movies) rely on access controls. She stated that content owners will be more willing to provide such services only if they are confident that their rights will be protected. Ms. Chaitovitz stressed aspects of U.S. copyright protections work well, and how such protections have benefited consumers, artists, and content providers alike. ¶6. (SBU) Charles Morgan, a lawyer for McCarthy Tetrault, made the case for Canada to ratify the WIPO internet treaties and bring itself up to the "international standard" for copyright protection. He noted that the massive technological changes the world has undergone had brought about an "imbalance in traditional copyright" and that copyright protection is necessary in order to ensure those who create works are paid for their efforts. Canada, he said, should "act in a manner consistent with all of its trading partners," including the U.S. and the EU, by amending its laws to conform with WIPO requirements. Morgan also noted that Bill C-60, which the GOC had proposed but not adopted in 2005 under the Liberal government, would have ranked among the developed world world's weakest WIPO-implementing legislation. Geist responded to Morgan's remarks by noting that Canadians "must be very clear about what commitments we took on by signing [WIPO]-none." -------------- Copyright and the GOC -------------- ¶7. (SBU) Sunny Handa, a conference moderator and McGill Law Professor noted that the GOC "has not put forward a view on Intellectual Property" and that this was "unfortunate." He speculated that the issue of copyright, and IP in general, is "so complex, no one wants to touch it in any serious way." Charlie Angus, a Member of Parliament for James Bay and NDP Heritage critic, echoed this sentiment, acknowledging that "IP is complex, and politicians don't like complexity." Angus, who has a background as a band member and advocates musicians' rights, stated that the challenge for Canadian musicians was to "tap into the digital age" and "get our cultural goods onto platforms where they'll be seen." He said musicians need to find a business model that would protect Canadian culture while taking advantage of new media to promote Canadian artists worldwide. Angus also mentioned the need for in Canada for legislation that "is applicable, and works," and that would strike an appropriate balance between industry and consumer interests. ¶8. (SBU) Sandy Pearlman, a prolific music producer, creator and songwriter who has produced works for Blue Oyster Cult and the Clash, among others, gave an overview of the ways in which the internet has revolutionized access to music and the challenges to copyright. "For the first time," he said, "there is infinite access to infinite music for a quarter of the world's population." Currently, legal, monetized music downloads account for only a fraction of overall internet traffic. Pearlman stated that five cents is the price at which people would rather pay for a download MONTREAL 00000150 003 OF 003 rather than go through the trouble of stealing it. He has advocated a five cent download model, combined with a comprehensive search and recommendation engine, in which the sheer volume of music people would be willing to download at this price point would generate significant revenue for the music industry that is currently being lost to illegal downloads. Pearlman stated that the music industry now finds itself in its current state because music labels did not position themselves to capitalize on new technologies when they had the chance. He predicted that the music industry globally is teetering on the brink of a sea change that would bring nearly universal access to all music, at an extremely low cost, and that this change could also be beneficial for artists and music producers. -------------- Comment -------------- ¶9. (SBU) With unlicensed movie uploads and music file-sharing becoming increasingly popular, and legitimate, licensed downloads of music and movies accounting for an extremely small percentage of all internet traffic, the music and entertainment industry worldwide is grappling with the best way to generate revenue with new media and platforms. Efforts to encourage the GOC to ratify its WIPO obligations have been hindered by the sheer complexity of copyright law and IP-related issues, and perceptions by consumers and artists that technological protection measures might be harmful. Post will continue to engage in outreach with Canadian stakeholders across a wide range of sectors to emphasize that copyright protection benefits Canadian artists, that technological protection measures can provide more choice for consumers, and that the prohibition of circumvention devices produces less intrusive and more effective enforcement of copyright.