Stuart Freen is a JD Candidate at Osgoode Hall Law School

The Montreal Gazette recently published an op-ed piece by musician Maia Davis discussing the music industry and lost profits due to file sharing. In it, Davis laments that musicians cannot currently make a decent living selling music due to an atmosphere of entitlement amongst fans who feel that it is socially acceptable to download music illegally. She argues that Canadians should not be so hostile towards the “digital locks” portions of Bill C-32, since they are necessary in order to foster viable business models for artists. Davis can now count herself among a small group of Canadian indie artists who have publicly spoken out against downloading and in favour of Technological Protection Measures (TPMs). While she is probably right about TPMs being necessary for protecting the livelihood of musicians, she may be ignoring the bigger picture.

As far back the Napster/Metallica debacle in 2000, musicians have been complaining that online piracy cuts into music sales and deprives them of an honest living. And, while it is hard to prove causation with such a complicated issue, there is an obvious correlation between the rise of mp3s and the decline in sales the music industry has endured in the 00’s. Any university student can tell you how painfully easy it is to download music in an authorized manner, and download they do – a lot.

The music industry has made some efforts at controlling the copying of music, but they have largely been unsuccessful. Attempts at introducing anti-copying digital rights management to CDs resulted in the disastrous Sony rootkit scandal in 2005, and Apple’s attempt at using TPM-laden files in its iTunes store prompted such a huge public backlash that it forced the company to switch to the open source mp3 format. TPM has become a dirty word in the music business because of the negative connotations it carries with consumers, particularly after the rootkit episode.

The music industry could learn a lot from Hollywood. Through their proprietary Blu-ray and DVD formats, the movie business has devised a fairly effective way of protecting their intellectual property by leveraging the Digital Millennium Copyright Act (DMCA). Basically, Blu-ray discs are loaded with digital locks such that that only players approved by the Blu-ray consortium (i.e. major players in the movie industry) can play them. (The DVD CCA similarly regulates DVD TPMs). The DMCA, which contains TPM provisions similar to Bill C-32, gives the movie industry the clout go after anyone who circumvents an "effectively protective" TPM or helps others do so. The DMCA makes it illegal to a) copy protected discs, b) manufacture players designed to play copied discs,  c) crack the TPM itself, or d) "traffic" devices or services facilitating circumvention. This is how the movie biz shut down Real DVD, and how they have (for the most part) prevented unauthorized Blu-ray players from entering the market.

When Maia Davis suggests that Canadians support the digital locks sections of Bill C-32, she is arguing that musicians should be able to sell their music on their own terms. She is arguing that record companies should be allowed to encrypt music media with whatever proprietary protection they desire, and aggressively litigate against anyone who circumvents it. In fact, this is a pretty smart route for the music business to take. If the record companies could work together and start selling music in a proprietary format (as opposed to mp3s), they would be able to control which companies were authorized to sell music players. More importantly, they would be able to sue the middle men who make circumvention possible. No longer would they have to sue individual consumers for burning music; they could sue the company that made the burner in the first place (and the store that sold the burner, etc.).

I think Davis is correct when she writes that digital locks are needed to fully protect intellectual property in the digital world. There is clearly a big loophole of enforceability when it comes to digital media files, and the digital locks provisions in Bill C-32 would go a long way towards protecting that intellectual property. However, Davis' point is really a moralistic one: She thinks that musicians deserve to get paid because they work hard and people enjoy their "products". Her article is premised on the notion that workers should be entitled to enjoy the fruits of their labour.

The broader question, however, is whether this is an area where comprehensive, iron-clad IP protection is even necessary (or desirable) at all. Perhaps this is an area where no useful objective is fulfilled by beefing up copyright law. Of the many possible justifications for copyright law, the one preferred by most academics is that of an incentive-based model. Copyright exists in order to incentivize the creation of new creative works. Artists are provided with a limited monopoly over the exploitation of their work return for them sharing the work with the rest of society. It is essentially a bargain between the creator and the public. If copyright laws are not doing anything to increase either the quality or quantity of creative works within a state, then they are useless. Copyright is not about providing fair compensation for the hard work of songwriting; rather, it is about dangling a big enough carrot in front of musicians that they will head into their studios and create new works.

Whether or not the digital lock provisions in Bill C-32 will work to further incentivize the creation of new music is a question of economics, not morality. Although stronger copyright protection may be good for the music industry as it currently exists, it will be slightly worse for the rest of the public, and may in fact result in no increase in the output of creative works. Record companies will probably sell more records, true, but consumers will have to pay more for music and will see some uses (including legitimate backup copying and fair dealing) taken away. On the other hand, it’s unclear that Bill C-32 will do anything to promote the underlying goal of the Copyright Act, which is to foster the creation of new works of art.

While I would not count myself as someone firmly in the anti-TPM camp, I do not think it is fair to classify all the opponents of Bill C-32 as artist-hating record thieves. Opponents of Bill C-32 don’t hate artists, they just see that particular section of the Act as unbalanced and unnecessary. So: don’t take it personally, Maia.

Side note: I caught Davis’ band Ladies of the Canyon at a CMW showcase last year and they were pretty good! Although they’re probably tired of the comparison, they struck me as a Canadian version of the Dixie Chicks (in a good way).