User-Generated Content and Music File-Sharing: A Look at Some of the More Interesting Aspects of Bill C-32

• Author: Daniel Gervais
• Pages: 447-475

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  

User-Generated Content and Music

File-Sharing:

A Look at Some of the More Interesting Aspects

of Bill C-32

Daniel Gervais*

is chapter is not intended as an update, but rather a s an addendum

to my chapter in Professor Geist’s previous book on Canadian copy-

right reform. In that chapter,

 I suggested that the upcoming reform

should focus on excludabilit y of Internet-based uses, that is the exer-

cise of e xclusive copyright to prevent online uses of copyright materia l.

I also suggested that this excludability was technologically problematic.

Users empowered by social norms and ever- changing technological tools

going well beyond peer-to-peer software, and e ven relying on the old

* e author gratef ully acknowled ges the comments and ins ights from the editor,

Professor Mich ael Geist, the anony mous peer-revie wer, Mr. Mario Bouchard , and

Ms Tanya Woods.

 See Michael Geist , ed., In the Public Interest (Toronto: Irw in Law, ), www.

irwin law.com/store/product//in- the-public-i nterest — the -future-of- canadian -

copyri ght-law.

 Daniel Gervai s, “Rethink ing Excludabi lity: Use of Internet -Based Content,” in ibid.

at , www.irwin law.com/pages/content-commons/use-of-copy right-content-on-

the-internet- -considerations-on -exludabil ity-and-colle ctive-licensi ng---da niel-

gervais.

 See Richard Abb ott “e Realit y Of Modern File Sha ring” () : J. Internet L . .

is technolo gy-focused an alysis concludes a s follows:

Do not listen to any one pitching a product, se rvice, or legal st rategy purpor ting

to elimin ate f‌ile sharing. e s haring of f‌iles v ia hosting serv ices is far more

complex than p eer-to-peer net working, and bot h evolve constantly. e nex t

steps are al ready being taken. P roxy schemes are work ing protect uploaders,

Daniel Ger vais

USE NE T, ci rcumve nt techno logica l protec tion mea sures ( TPMs), and u l-

timately access millions of MPs. Prox ies and anonymous clients ma ke

the act ivity increasin gly hard to detect and track. Finding more intr u-

sive ways to t rack Internet usage is not just a technological c hallenge; it

also pits copyright against other rights, including u sers’ privacy rights

and inter ests . It ma de se nse i n the c onte xt of t hat c hapt er to sugg est t hat

more online us es should be permitted (a nd licensed), where appropriate

using a collective model providing licen sed access to a repertory of works

or othe r protected subject m atter. In th is chapte r I retur n to the iss ue of

music f‌ile-shar ing to see how much progress we have made.

Another aspect of online use that deserves special attention is reu se,

especial ly to create so-called user-generated content. On this front, Bill

C- wou ld impose a transformative use exemption (already dubbed the

“YouTu be” exception). Whether an exemption or a license is a better solu-

tion depends on whether one thinks that sites such as YouTube (or its

owner, Google, Inc.) should pay right holders for use, of t heir content, or

whether it should be free. e cur rent focus of right holders is on removal

of the content pursuant to a noti f‌ication to the host site. As a normative

matter, it m akes sense to allow this aspect of the Internet to f‌lour ish by

using ex post control (such as the proposed notice and notice) and pro-

viding s afe harbours, rather than ban the activity completely. Canad ians

want their children to be fu lly computer and web-literate a nd participate

in the “remix culture.” ey do not want them to be creative only by proxy.

encryp tion protocols are mask ing f‌iles from ins pection, and the da rk market of

anonymous pay ment schemes allow sh arers to avoid leaving pap er trails.”

Ibid. at .

 Sascha Segan, “R.I .P Usenet: – ” PCMag ( June ), www.pcmag.com/

ar tic le / , ,   , . asp.

 See ibid. and mIRC, www.mirc.com; Mark H. Wittow & Da niel J. Buller, “Cloud

Computing: Emer ging Legal Iss ues for Access to Data, Any where, Anyti me” (),

: J. Interne t L. . According a rece nt IFPI (Internationa l Federation of the Phono-

graphic Indus try) report, “Althou gh PP f‌ile-sha ring remains t he most damaging

form of pirac y due to the volume of f‌iles sha red by users, the last t wo years have

seen a shar p rise in non-PP pir acy . . . .” IFPI, Digital Music R eport : Music how,

when, where you want it, http://www.ifpi.org/content/library/DMR.pdf at 

[IFPI Report]. Unless i ndicated otherw ise, all hyp erlinks in th is chapter were last

accessed on  July  .

 e Copyright Act protects mus ical, dramat ic, artistic a nd literary works, b ut also

protects two ot her “subject matters”, name ly musical perfor mances and sound

recordings. Cop yright Act, R. S.C. , c. C- [Copyr ight Act].

 I suggest a def‌initio n at the beginning of Pa rt B below.

 Bill C-, Copyright Modernization Act, d Sess. , th Parl., , cl.  (ss.  ., .).