McGill Conference Offers Perspectives on New Media and

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SUBJECT: McGill Conference Offers Perspectives on New Media and
Copyright Reform


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Summary
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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.

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Canada's IPR "Public Intellectual" rails against anti-circumvention
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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.

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An architect of the DMCA proclaims a "post-copyright" era
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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"

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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.

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Defending the DMCA
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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."

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Copyright and the GOC
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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

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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.

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Comment
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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.