Law Times

Law Times • July 27, 2015 Page 11 www.lawtimesnews.com Protection for sound recordings Copyright change criticized for 'troubling secrecy' By yamri Taddese Law Times T he federal government's deci- sion to extend copyright terms for sound recordings came un- der a shroud of "troubling se- crecy" and will benefit neither artists nor the public, says a University of Ottawa law professor. Michael Geist, who holds the Canada research chair in Internet and electronic commerce law, says only international record companies stand to gain from the surprise proposal to amend the Copy- right Act. If passed, the amendment would ex- tend the term of protection for sound re- cordings and performances to 70 from 50 years following the first release. "It seems to me that this reform, con- ducted behind the scenes and without public consultation, really only benefits record companies by allowing them to maintain monopoly control over some recordings," says Geist. The government included the propos- al in its budget for this year. "The mid- 1960s were an exciting time in Canadian music, producing many iconic Canadian performers and recordings," according to the budget document. "While songwriters enjoy the benefits f lowing from their copyright throughout their lives, some performers are starting to lose copyright protection for their ear- ly recordings and performances because copyright protection for song recordings and performances following the first re- lease of the sound recording is currently provided for only 50 years." The reform, according to the budget document, would ensure performers and record labels are "fairly compensated" for the use of their music for an additional 20 years. But Geist says the government has misled the public into thinking that songwriters and other artists are losing the copyright on their work when, in fact, the protection lasts for their entire lives and 50 years after their death. Geist says he believes cheap Beatles re- cords that have popped up in Wal-Mart stores may be what's really behind the reform. Certain Beatles records that date back to the 1960s are now in the public domain, says Geist, and a Canadian com- pany took those recordings and made them available for low prices. "This was good news for everybody. Those CDs sold very, very well," says Geist, noting he has a copy of his own. "So at a time when people complain about consumers not buying music, con- sumers were buying music. It was more affordable. And the copyright holders in these works were still being paid. In fact, they were making more money because far more records were being sold than what was previously the case. But yet for large international record companies, they looked at this and saw it as a threat because in a sense it broke their monop- oly in selling higher-priced Beatles CDs." Geist believes that's what's driving the issue. "That's what kicked this behind- the-scenes lobbying into overdrive. It was effectively just some cheap Beatles records. And yet the losers here are the public in the form of higher prices; it's many of the artists who actually get less royalties, not more, because fewer records are going to be sold." What's also troubling to Geist is the way the reform came about. When the country last undertook a major copyright reform through the Copyright Modern- ization Act in 2012, it had decided there would be a review of copyright law every five years. Copyright laws were, therefore, due for review in 2017 rather than this year, says Geist. When issues have come up in copy- right law since the bill took effect several years ago, the consistent response from the government was it'd review the is- sues when it looks at all of them in 2017, according to Geist. "On an issue that the government itself has said requires bal- ance and real public participation, to have a behind-the-scenes, lobbying-inspired change without real public participation or debate is troubling," he says. "This was done entirely in secrecy without public consultation. There were no committee hearings about it. The committee hearings that were conducted on the budget featured only the recording industry," he adds. The issue of a copyright term exten- sion for performances and sound re- cordings scarcely arose during the re- view of copyright laws a few years back, according to Geist. When recordings enter the public do- main, it's good news for Canada's musical heritage, he argues. "By actually entering the public do- main, what we have found in other places is that it actually opens up the door for new opportunities," he says. "People come around and they say, 'I think I can repackage and resell that mu- sic' at a time when those who hold the rights aren't willing to do so." But not everyone feels strongly about the change. Entertainment lawyer Mark Edwards says it's unlikely his clients will come to him with concerns about the term extension and what it will mean for their business. The controversy over the change is "a bit of a tempest in a teapot," he says. The change "seems to be motivated to align Canadian term rights with other jurisdictions, particularly the United States. I don't actually think it will have a significant impact on anybody," he says. The commercial value of dated re- cordings is "little to nil," he adds. "The ability of artists to make use of that material is unlikely to be significant- ly hampered." While a 50-year term of protection is "standard" in many countries, there have been others that have amended their laws to extend it, Geist admits. "But in Europe, this was the subject of years of debate, multiple studies, detailed hearings, and consultations. By contrast, we did none of that in Canada." LT FOCUS EARLY BIRD ENDS SEPT. 4 Register online at www.lexpert.ca/cpdcentre For more information, please contact Lexpert® Events at 1-877-298-5868 CLOUD 2.0 – DRAFTING AND NEGOTIATING EFFECTIVE CLOUD COMPUTING AGREEMENTS Cloud 2.0 is here and as customers grow more sophisticated, Cloud computing agreements are evolving to meet regulatory and legal environments and increasing customer needs. However, as the cloud market matures, not all Cloud computing agreements are created equal. Using a balanced approach, we will teach you to understand Cloud agreements, separating the "buzz" from the Cloud. 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