Raenelle Manning is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On May 3, 2022, Bishop David P. Moten, a Texas pastor, filed a copyright infringement lawsuit against rapper Kanye West for incorporating a sample recording of his religious sermon into one of his songs.

Moten sought damages from West and co-defendants, G.O.O.D Music, Def Jam Recordings and Universal Music Group. The allegedly infringing sample is used on “Come to Life”, a song featured on his 2021 album “Donda”. At the beginning of the song, Moten’s voice is heard saying “My soul cries out, ‘Hallelujah’ and I thank God for saving me”. The rest of the sampled sermon is featured in the background of the pre-chorus and chorus. Moten argues that “over the span of several years, defendants have demonstrated an alarming pattern and practice of sound recording of others without consent or permission.” ��

In 2019, West was also hit with a for unauthorized use of a sound recording on his Grammy-nominated song, “Ultralight Beam.” The beginning of the song features the audio from a viral Instagram video which portrays a four-year-old girl praying. The child’s guardians sued for and a share of the record’s profits. In the same year, actor, West for sampling a recording of his performance titled “The Spirit of Marcus Garvey” on West’s song “Freee (Ghost Town pt.2).” that West “exploited the actual voice, words and performance without authorization.” Both suits were settled.

Sound recordings are subject to copyright protection under the US (“Act”), ��which also provides that the owner of a sound recording has exclusive rights to reproduce, prepare derivative works from and publicly distribute the work. To incorporate a sound recording into a new musical work, artists must from the copyright holder. A grant of permission may accompany a written agreement to compensate the copyright holder through either a flat fee or ��. Using the sound recording without permission constitutes copyright infringement. The states that copyright owners are entitled to “damages and profits of the infringer that are attributable to the infringement.”

Fair Use

An artist who fails to acquire permission from the copyright owner can use the ‘fair use’ defence. Under , fair use allows persons to use parts of a copyright protected work without permission for limited purposes. The court considers the following : (1) the and character of the use, including whether such is for commercial or non-profit educational purposes; (2) the nature of the of the copyright protected work (the court may consider whether the copied material has been creatively transformed by adding ); (3) the amount and substantiality of the portion used in relation to the copyright protected work as a whole (the smaller the portion of the material used, the better for this defence) and; (4) the effect of the use upon the potential market for or value of the copyrighted work (the court may consider whether the audiences of the new and original work differ enough to not cause financial harm to the original copyright owner).

The fair use defence is in music sampling cases. However, Toronto-born rapper Drake successfully used the regarding the use of thirty-five second recording of a spoken-word piece on his song “Pound Cake.” West has previously attempted to employ the fair use defence in the ��so he may similarly attempt to use the fair use defence for the current case. Moten seems to have anticipated the use of the defence. ��He claimed that “Come to Life” — an arguably substantial usage — a factor that likely weighs negatively under the third factor of fair use consideration.

The of copyright legislation is to encourage creativity, but also to protect the rights of copyright holders. West and the record labels named in the lawsuit undoubtably have the resources to obtain compulsory sample clearance and compensate individual copyright holders. It is hence difficult to justify their continuous and deliberate failure to do either, especially when West’s creative projects are known to reap significant popularity and financial gain. For instance, prior to the album’s release, the “Donda” listening party’s ticket sales alone produced ��To allow West to succeed on a fair use defence and evade his obligation to compensate would be seemingly unjust to Moten, whose sound recording arguably contributed to the album. ��

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Photo by Smorazanm ()

Meena Alnajar is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School

Dua Lipa’s 2020 pop hit “Levitating” is facing copyright infringement lawsuits as of March 2022. Two separate song-writing teams, those for and , claim the song ripped off their own and filed complaints with their state federal courts. Copyright infringement proceedings are the best course of action for instances of song stealing, but are often expensive and difficult to win, as a complainant must demonstrate than ‘alike sounds’ or ‘similar vibes’.

Claimants have the best chance of success if they can prove direct copying of their work, but considering the different lyrics and disparate sounds, these artists are unlikely to plead direct copying. Copyright infringement of a musical work in the United States typically finding two elements, access to the work and substantial similarity. For “Levitating,” the complainant filed at the end of February 2022 in a Los Angeles federal court. Members of the reggae Artikal Sound System allege that the song is substantially similar to its 2017 song “Live Your Life”.

The complaint, filed on March 4, 2022 in New 91��ɫ federal court is by songwriters L. Russel Brown and Sandy Linzer accusing copying of their 1979 disco “Wiggle and Giggle All Night”. These complainants have succeeded in copyright infringement claims, now holding the copyright to Miguel Bosé’s 1980 song “Don Diablo” that was found to infringe on the 1979 track.

Access

Musical such as Bright Tunes Music Corp v Harrisongs Music Ltd hold that access can be subconscious. The defendant may not have accessed the song personally through a search or download and still be liable. If the song is widely disseminated due to its popularity, then access may be found and the defendant may be liable for unconsciously plagiarizing.

The complainant’s song was not available on large platforms such as iTunes and has very limited number of plays on YouTube. Given its limited availability at the time, they may have difficulty proving their work was accessed by Dua Lipa’s team. The second complainant’s song has been accessible to the public for decades, so it may be more successful on the accessibility element for an infringement lawsuit.

Substantial Similarity

In the United States, if the song was not easily accessible, then the burden of proof for substantial similarity will likely be . Substantial similarity asks whether the average listener would think the songs are similar enough when listening to them . This analysis requires looking at the song’s composition and, possibly, expert testimony. Courts may analyze elements like melody and chord progression. For instance, the second complainant stated that Levitating uses the complainant’s “signature” melody times throughout the song. It is also important to distinguish between the similarity of the songs and their similarity in the industry. A certain theme, like the resurging ‘disco-era’ Dua Lipa was by, is persisting in the music industry so that songs may sound similar but not to a substantial degree that constitutes copying.

Next Steps

Although Dua Lipa’s team has yet to provide comment, she must still give her own defence in response to these lawsuits. The easier defence would be to show the songs are not substantially similar through her own expert analysis of each song’s composition. The team likely would not succeed in advancing a public domain , which states that the copyright protection for a work has expired or it failed to meet the protection for copyright protection. Neither complainants’ work has technically , as artists receive protection for the life of the artist plus seventy years. They may try to argue that the song borrows elements of the prior works that are not under copyright, which did not require creative input. Either way, Dua Lipa’s “Levitating” may be brought down to Earth by these lawsuits’ gravity and possible damages.

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Specifically, Lee is in a legal battle with the ��in Alabama; a non-profit that has maintained a long-standing exhibit dedicated to Lee and her novel, whilst also selling merchandise tied to the novel in its gift shop.

Why is Lee Fighting for Her Own Book Title?��

On September 12, 2012, Lee filed an for the title of her literary work. Based on Lee’s filing with the , the trade-mark would be used for “clothing for men, women and children, namely T-shirts, hats, jackets." Per procedure, the trade-mark was , following��the initial application. Opposition is a��process that allows any party that believes it may be damaged by the pending trade-mark registration to contest the filing. It would seem unlikely that any party could contest Lee’s claim to an original title to her own novel which, in itself, is an entirely fictional account set in a fictional town in Alabama. However, during the opposition stage, the Monroe County Heritage Museum made itself known by doing exactly that. The against Lee’s registration occurred on August 19, 2013. ��Essentially, the Monroe County Heritage Museum asserts that it has a better claim to the mark because it has been using it since 1995, that customers associate the brand with the museum, and that Lee’s registration and usage to produce her own merchandise would damage the “distinctiveness, uniqueness, effectiveness and prestigious connotations” of the museum’s brand and merchandise.

Trademark, Copyright, or Door #3?

Why can’t Lee just register or copyright the book title? Per U.S. trade-mark law, under the , titles of literary works in themselves may not be registered as a trade-mark unless they are in a series, such as the “Chicken Soup for the Soul” collection or the “For Dummies” do-it-yourself books. Lee had no recourse under U.S. copyright law either, because the ��does not consider book titles to be intellectual property. As set out in , copyright law does not extend protection to “idea, procedure, process, system, method of operation, concept, principle, or discovery” per se.����published by the U.S. Copyright Office further explains the limitations of copyright protection with respect to names, titles and short phrases. As such, Lee could neither copyright the title nor register a trade-mark, as the novel is not part of a series, but in fact, the sole creative work published by Lee in her lifetime.

To add to the author's legal woes, until a few days ago, the 87-year-old Lee was involved in a separate ��against her former literary agent and other named defendants for allegedly depriving her of book royalties. The case was .

Would Lee Have Better Luck in Canada?

Perhaps a few years ago. In Canada, owners of intellectual property may register a book title as a trade-mark only if the mark is��not��“clearly descriptive” per����of the Trade-marks Act, meaning that the mark must convey��something more��than subject matter or content. ��As such, one may argue that��To Kill a Mockingbird, as a book title deeply entrenched in symbolism and metaphor, surpasses the “clearly descriptive” threshold because one would have little idea of the book's content or subject matter from the title alone. However, in����(2009 FC 17), the Federal Court, by denying the defendants relief on an alleged trade-mark infringement relating to the title of a book, appears to have set a high threshold for deeming a book title to be��not��“clearly descriptive” so as to convey subject matter or content. Indeed, Justice de Montigny opined that the title of a literary work is “inherently descriptive,” which begs the question of whether any other case involving book titles may be able to surpass the content or subject matter threshold in s 12(1)(b),��or whether Canadian trade-mark law has effectively aligned itself with legislation in other common law jurisdictions by shutting out legal protection for book titles.

In this matter, Lee may be in need of her own Atticus Finch to set things right.

Ying Cheng is an IPilogue Editor and is in the BCL/LLB program at the McGill Faculty of Law in Montreal, Canada.

Editor's Note (25/09/13):��The last paragraph, under the heading "Would Lee Have Better Luck in Canada" was updated to correct a mischaracterization of s.12(1)(b) of the Trade-Mark Act.

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Canada Day is fast-approaching.�� This means it’s also time to prepare your submissions to Canada’s IP Writing Challenge!�� The submission deadline is Monday July 1, at 5pm. The winner from each category will receive a prize of $1000 (CAD), publication on the IP Osgoode website, and consideration for publication in the Canadian Intellectual Property Review and/or the Intellectual Property Journal. Please send your submissions to iposgoode@osgoode.yorku.ca.

Do you have a paper from a recently completed intellectual property class? A case note on a intellectual property related decision? Canada's IP Writing Challenge is the perfect chance to showcase your opinions and gain recognition from the greater Canadian intellectual property community. We are looking for thoughtful and well-researched papers on intellectual property and public policy scholarship to enhance our discussion. We encourage a broad range of perspectives and topics from within the various categories of intellectual property law including: patents, trade-marks, industrial design and copyright.

There are three categories for entrants this year:

1. Law student category (LL.B, J.D., BCL, and LL.L students)
2. Graduate student category (LL.M, S.J.D.��and PhD students)
3. Professional category (legal and business professionals who have been practicing 7 years or less, including patent agents and trade-mark agents)

The set topic for the professional category is a case note on an intellectual property related decision issued after January 1, 2012. The submissions for the aw student and graduate student category are welcome on any topic relating to intellectual property law.

Full details of the rules and submission process on are available at .

We look forward to reading your work!

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(the “Gowlings IPilogue Prize”) was pioneered in Professor Giuseppina D'Agostino's Intellectual Property class in the Fall 2007 term and has been generously sponsored each year since then by .

All entries to the IPilogue submitted by Osgoode students are considered automatically for the prize (except those submitted by IPilogue Editors).

For students, this is a chance to recognize their research and writing in a specialized and technical field.�� It also encourages law students with a strong interest in Intellectual Property Law to develop that interest.�� Of course, the subject matter of the IPilogue goes beyond strictly IP.�� Our stories also delve into related areas of Technology Law, including: internet law, privacy rights, broadcasting, e-commerce, social media and free speech.

We are pleased to announce this year’s winners of the Gowlings IPilogue Prizes:

Fall 2011:

Elias Lyberogiannis ()

Philip Goldbach ()

Winter 2012:

Alexander Ly ()

Joshua Dallman ()

Congratulations to our winners and thank you to all who make the IPilogue possible.�� We are most grateful to Gowlings for its generous support.

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The Power of Norms

The research on social norms suggests that people generally obey the law because they think it is the right thing to do. In contrast, laws that starkly contradict social norms may encourage non-compliance and create criminogenic effects.[1] If the sociological and psychological research is correct, then the ability of Bill C-11 to single-handedly combat online copyright infringement will fall short. For instance, any attempt to curtail copyright infringement through the legal reinforcement of technological protection measures may have little effect if individuals do not believe in the efficacy of these technologies and the laws to begin with.

When the law is in line with social norms however, the law is typically abided by and enforcement is relatively easy given that the law is socially accepted. If social norms are not aligned with laws, disobedience is more probable, and given the scale of online music file sharing, enforcement will also be difficult without great costs.[2] To take an example, we believe that murder is intrinsically wrong and society does not have any problems complying with laws against murder. When it does happen, we inherently believe that the law should punish those who commit murder and we believe that murderers should be socially condemned. Even if there was no law against murder, it is unlikely that individuals would begin to kill one another – the social sanctions and innate understanding about appropriate conduct regarding taking another’s life would guide individuals.

��Universities: The Alignment of Norms with Law

These social norms and sanctions are simply not as strong with online music file sharing and copyright law. Nonetheless, smaller communities, rather than the government at large, have the ability to foster respect for intellectual property without strict recourse to the law. Take the example of university rules around plagiarism and academic integrity, which, as opposed to copyright laws, are often most salient for students. Students comply with academic rules and properly attribute their research not because of any particular legal justification, but also because of the social stigma in the academic community around those who plagiarize. The sanctions for plagiarism that a student would receive from university administration punish much in the same way that the law does. In addition, there is the social consequence of risking one’s career and having their work discredited, which is enough to deter most from plagiarizing. Hence, it is this interaction between regulatory consequences and social sanctions that likely affects behaviour.

As well, in one survey,[3] college students thought that file sharing was common practice and didn’t have any problems with it. However, they said that it would be less socially acceptable if those who did so were subject to shaming penalties, such as having their names published, and had their university Internet privileges taken away.[4] As a consequence, the survey results suggest that universities have a role to take in aligning social norms with the law by applying social sanctions to those who use the school’s Internet to engage in illicit online music file sharing. These two examples illustrate that, at least within the university community, there are many opportunities for strong social sanctions to effectively hinder infringing music downloads without strict recourse to formal laws or enforcement.

What is Next for Bill C-11?

This commentary is not asserting any justifications for the social norms of society, nor is it arguing that Bill C-11 will be an unsuccessful piece of legislation in addressing the challenges of the Internet and technology. However, what is necessary to understand is that Bill C-11 alone will likely not be enough to limit copyright infringement in the digital era. Social norms are a powerful determinative factor in dictating human behaviour. As a result, the challenges that technology and the Internet present must not only be addressed through the law but through an understanding of our social norms and interactions.

Alexander Ly is a JD candidate at Osgoode Hall Law School and is currently enrolled��in Osgoode's Law & Social Change: Law & Music course. As part of the course requirements, students are asked to write a blog on a topic of their choice.

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Uncertainty in the efficacy of current Canadian copyright legislation to address online file sharing may be rooted in an incompatibility between the traditional approach to copyright and music in the digital age. Internet Service Providers may provide a vital conduit through which a modernised notion of copyright could signal the end of illegal music piracy in Canada.

The intention of the Government with is to “”. The bill to give creators, performers, and artists the exclusive right to control how their copyrighted material is made available on the Internet. But given the rate of development of internet technologies, application and enforcement of such a right may be a source of legal uncertainty. Perhaps the modernisation of copyright should realise that digital dissemination may not fit into traditional notions of replication. If difficulties are to be avoided, perhaps modernisation ought to mean doing away with the traditional “right to copy”, focusing instead on collection and distribution of remuneration to creators. While such an approach is a fundamental change to the right held by creators with respect to their online/digitalised works, it would be somewhat similar to broadcasting and other associated rights where remuneration is collected via tariffs and collective management. The difficulties in establishing a lasting definition of what constitutes digital “copying” may be a sign that the legislation should be focused on a right to remuneration.

argues that music consumption has increased as a result of file sharing. He sees this increase as an opportunity for the music industry to benefit from the increased use of their product. It seems that many listeners are ready to pay, so long as it doesn’t inhibit the freedom to access and manage their music in a manner that online sharing provides. To unite this freedom with the remuneration to rights holders required to maintain the creation of such works, a scheme based on blanket licences seems like an appealing solution. With internet users already subscribing to online access through ISPs, perhaps blanket licences could find a convenient home on the monthly internet bill. There are some studies which suggest that such licences could be quite .

Although the recent Australian decision absolved ISPs of liability for file sharing by their customers, the court did indicate that ISPs may play a role in the protection of rights with respect to online music consumption (). ISPs are the conduit through which users are granted access to copyrighted works and file sharing mechanisms. If this connection is looked to as a source of revenue, perhaps the recording industry could realise some profits through the modern consumption methods of users. As Gervais noted, while a compulsory licence may be prohibited by international law, an might just be the ticket.

The common concern with such an approach, aside from potential technological challenges, is that monitoring downloads to allow for appropriate distribution of revenue - which would be important for creators - may be an infringement of regarding privacy rights of license holders. However, these rights take meaning through communal and judicial understanding of the circumstances of their application. As internet use continues to overtake what were traditionally physical interactions, perhaps society will come to accept the pseudo-public nature of the world-wide web. If such acceptance is realised, privacy arguments may fail in the face of larger societal objectives that require a more substantial online legal presence. Although the law has come to address some areas of online interaction, much of the internet arguably remains free of effective regulation despite legislative efforts. Given the enormity of its use by modern society, this void is somewhat inconsistent with the obvious force of legal regulation in the non-digital world. Perhaps we’ll look back on the days of limitless web surfing as a lawless frontier in the early digital age.

Since legal presence online is likely to increase as time moves forward, the challenge in is shaping this presence. The approach that purports to grant rights holders control over online availability of their works may not only be a losing battle in terms of enforcement, but also may bypass an opportunity to provide the music industry with sufficient remuneration to stimulate creative discourse while maintaining many of the benefits of P2P sharing. The application of blanket download licences regulated through ISPs may provide this solution. It may be an ironically appropriate course of action given the reputation Canada has received as a safe haven for online piracy. The Canadian response to these accusations could be an acceptance of the realities and benefits of P2P file sharing; distributing license fees and bringing an end to the notion of online music piracy in Canada.

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It is inherently difficult for record labels and collectives to garner public support while enforcing music copyright.�� Their actions take place in an industry where artists and fans have traditionally resisted and rebelled against the monetization of the works central to it.

Artists in interviews consistently bemoan the big business of major record labels, accusing record labels of controlling their music in order to make it more accessible to a commercial audience. Fans and music critics in turn seize on artists who commit the ultimate faux pas of ostracizing them for embracing their work as a commercial product. Collectives and record labels haven’t helped their own cause in choosing some targets that don’t play well to journalists or the public.�� US record labels for instance in going after file sharers for statutory damages created that despite the inherent wrong in stealing music the public simply couldn’t get behind. Collectives in the same vein have caught bad press for targeting already wounded mom and pop businesses as well as .����

Recently, the recording industry zoned in on what from a PR perspective is an ideal target, illegal Eastern European MP3 services.�� These rogue mp3 services charge less than their legitimate competitors because they . They also have the ability to offer the songs of artists such as Garth Brooks, AC-DC, and Tool whose works are unavailable on legitimate services like iTunes.�� It seems unlikely that the public would decry shutting down rogue retail mp3 services. These sites already engage in the commercialization of music, and as a result the recording industry can sidestep any debates on the commercialization of music or romantic notions of free digital music.�� Record label representative group the IFPI have come up with a new strategy that will attempt to starve these rogue music sites of the majority of their revenue.

With the help of major credit card providers Visa and Mastercard the IFPI will try to . The group will submit complaints of online rogue mp3 services to the London police department who will examine the nature of these sites. The London Police department will then pass their analysis on to major credit card providers MasterCard and Visa. Industry groups along with state organizations like the will also continue to apply international pressure on the countries that host these services. A strategy that on its own has led to several gains, including the shutting down of Russian site AllofMP3, and a recent between the Ukraine and the US to combat leading rogue service MP3Fiesta. ��

Shutting down these sites could certainly pay dividends to record companies and legitimate online music services. The consumers attracted to these sites are willing to pay for music and desire the ease of delivery brought by retail music websites. Unfortunately, for the music industry going after rogue mp3 services is only a small sector of copyright infringement, and the industry will continue to have to fight not only copyright infringement, but also their negative perception by the public for doing so.

The post Music Copyright and Public Relations, an Uphill Battle with the Occasional Easy Target: Rogue Digital Music Stores appeared first on IPOsgoode.

The dissolution of Parliament on March 25th has led the Copyright Modernization Act (), the third attempt at Canadian copyright over the last decade or so, to on the Order Paper.�� The issues surrounding Bill C-32 remain, however, and this includes ongoing debate over the prohibition of circumventing Technical Protection Measures (TPMs).�� Meanwhile, the online entertainment industry is increasingly moving toward cloud-based content.�� It will be interesting to see whether a cloud-based entertainment industry will appease concerned user advocates when a fourth copyright bill is introduced.

While advocates for user rights have claimed that () did not uphold the of the legislature and them from breaking digital locks for non-infringing purposes, authors stand to significant economic consequences if TPMs are circumvented.�� In the midst of the rapidly changing landscape of the online entertainment industry, however, are user concerns over TPM circumvention warranted when they have unlimited access to the cloud?

Among the hotly contested provisions of Bill C-32 were those surrounding the prohibition of circumventing TPMs, which would make it illegal for anyone to break a digital lock (a mechanism that regulates access to or the ability to reproduce copyrighted works) on a copyrighted item.���� In the , student concerns have included the restrictions to fair dealing these provisions would impose when using digital educational resources, such as electronic course packs and textbooks.�� Other have included, for example, the proposed illegality of TPM circumvention for making a backup copy of a purchased hard-copy CD or DVD, or media file.�� Where users were concerned about damage to or loss of purchased copies of creative content, it was argued that the provisions found in Bill C-32 should have been amended to allow users to break digital locks when circumvention was not done for infringement purposes.�� This seems at its face to be a reasonable request, however, whether or not the private copies are kept solely for personal use would be impossible to monitor, potentially undermining the overall purpose of the provisions.

In the name of user-creator balance, some TPM protection is merited.�� Many online entertainment business models, namely subscription streaming sites such as , , or , allow users to access streamed content at any time with a subscription.�� Others offer free services.�� These models, which provide users with extensive access to content, on TPM enforcement for their economic viability (and the compensation of creators) by ensuring that users don’t turn streams into permanent copies they did not pay for.�� The importance of digital locks to these businesses is clear, and in these cases user concerns surrounding circumvention seem unwarranted:�� since users are granted unlimited access to content stored online, often from various devices, why would streaming site users need to break digital locks?

Unlimited download models are also on the horizon.�� Apple Inc., for instance, is with record labels to allow iTunes users unlimited downloads of purchased music.�� Unlimited downloads would provide users with accessibility similar to streaming, since a of their download could be accessed from as many Apple devices as desired (eg. iPod, iPad) or downloaded again if users lose or damage their copies.���� This would arguably make the circumvention of TPMs for non-infringing purposes significantly less pressing for iTunes users, as a permanent backup is provided for them.

In the wake of sites such as iTunes working towards decreasing or eradicating the use of TPMs by allowing unlimited copies to buyers, and with the rising popularity of subscription and ad-based streaming sites, online entertainment is becoming increasingly accessible and convenient for users.�� In the entertainment industry, then, the legality of legitimate TPM circumvention should become less of a pressing concern in the next incarnation of copyright reform, at least for cloud-content consumers.���� What effect this will have on Canadian copyright law is yet to be seen, however one thing is plain: the rapid shifts in online entertainment business models are currently around the legislature in refining the role of TPM enforcement.

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I recently had the opportunity to attend the Global Forum at Canadian Music Week (March 9-13, 2011), held at the Royal 91��ɫ Hotel in downtown Toronto.�� The keynote address was given by an American filmmaker and anti-piracy advocate, Ellen Seidler, who described how within 24 hours of the DVD release of her film, it was downloaded by more than users on pirate hosting sites before Ms. Seidler stopped counting.

Although the overt message was that Google and other internet service providers who must be more responsible, Ms. Seidler’s story provides a powerful warning to creators to ignore market forces at their own peril. The inability of analog business models, offering analog material, to compete with digital distribution networks that cater to users who crave digital content is clear.

Combining Ms. Seidler’s story with calls recently in the United States to institute felony charges for and the heated debate that had occurred in Canada over the proposed ��and TPM provisions, the question must be asked: is copyright law relevant in today’s economy?

Copyright law has always been interconnected with the economics of cultural markets. This is reflected in the Supreme Court of Canada’s underlying policy understanding of copyright law in Canada, as the need to balance between promoting the dissemination of creative works while preserving a time-limited reward for the creator (). However, a disconnect between legal and market forces may arise as a result of the law’s preference for incremental change, while technological innovation may change the shape of an industry overnight.

The analog music business model is reflective of the economics of traditional copyright law. The costs formerly associated with both analog recording and distribution required an enormous amount of capital. To ensure creators could access recording technology and recorded works could be distributed throughout society, entities that could generate the requisite capital were required to acquire the means of production and establish a costly system of distribution through bricks-and-mortar stores. Since transaction costs are dramatically lower for others who copy and distribute the original manifestation, copyright law worked to protect the initial investors from in order to preserve the incentive to record and distribute music. This framework resulted in a relatively small number of firms monopolizing a significant portion of the cultural value chain, who were then able to exert a

Rapid advances in computer technology changed the industry by revolutionizing the manner in which music is recorded, distributed, and consumed. Students of market innovation recognize this process as the Schumpeterian notion of ‘’ where new technologies increase competition by making archaic business models and firms obsolete. Technology has dramatically lowered transaction costs to an extent that it is now possible for artists to invest . Users are investing directly in the through computer hardware and software, digital storage space, and internet service, while building websites and establishing peer-to-peer networks. ��User-distribution is not ‘’ and it can generate value. Google recognizes this, while the music industry remains ignorant by responding with . Surely, growth strategies are rarely found by borrowing public sector ideas.

Current to remedy the disarray in cultural markets, despite acknowledging user rights, overwhelmingly focus on means to restrict or limit the distributive technology at the heart of the creative destruction process. After all, Technological Protective Measures (TPMs) are merely software and hardware products attached to creative works that grant access to users only on certain conditions pre-determined by the content owner. Users and argue existing TPMs are not interoperable, portability is extremely, and the technology for expressing concepts such as is still a distant reality.

In the debate regarding copyright modernization, it is worth assessing whether current attempts reflect the need to regulate cultural markets in a digital age or merely the desire to protect specific historically-entrenched interests. Regardless, it will be imperative to come to terms with this new class of user-distributors for substantive reform to occur. Flourishing cultural economies are dependent on consensual participation of all interested participants. The continued use of the law as a sword against those who challenge historic business models only creates greater animosity amongst users and impedes meaningful discourse as to which business models are possible in the digital era.

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