Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

The Australian government recently raised the alarm after noticing an , particularly driven by traffic to websites offering Japanese manga. The issue of most notably made headlines back in 2021 — manga piracy had surged by over 26 times, resulting in a in the same year. In Australia, unlicensed television shows, films, and music have seen a general decline since 2017, causing some to wonder why manga could be an exception. According to intellectual property experts, consumer convenience is likely driving these trends.

The recent explosion of streaming services has enabled widespread access to shows, films and music, whereas there appears to be an ongoing lack of legal access to manga. Even though streaming services come with a cost, many offer a wide range of plans at reasonable rates, and some even offer free trials. Moreover, more individuals appear to be willing to pay the fee rather than potentially expose their devices to malware — consumers who engage in private downloads were found to be 28 times more with malware. Blocked piracy sites were also found to be an effective deterrent to some of the less persistent individuals trying to access unlicensed content. The Australian government is currently in response to the need for an effective copyright system that takes into account shifting technological landscapes.

However, declining piracy trends in Australia may be unique. According to , a data company that measures global piracy to drive content protection, . With 17.4 billion visits, the United States had the most visits to pirate sites per country, followed by Russia and India. While Canada was not listed in the top ten, it may be too soon to breathe a sigh of relief, as developments in the streaming market may create conditions that will predictably lead to an uptick in demand for unlicensed content. Streaming services implementing new , increasing costs, or tightening the grip on may seem like a huge inconvenience to many, which can result in some consumers feeling like the legal avenues for accessing content are no longer worth it.

Moreover, the fragmentation of streaming services has been frustrating consumers. With over 50 video streaming services in North America alone, consumers find themselves subscribing to multiples services in order to watch their desired content. , the average streamer uses approximately 4 subscription services and desire “managed and consolidated services” to streamline their streaming experiences.

Overall, it is beneficial to investigate piracy trends, especially as we see significant changes in how we consume content. The rising demand for unlicensed manga suggests that there is a need to assess consumer access to legal content in order to prevent a slew of other piracy issues in the future.

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Andrew Masson is an IPilogue Writer and 2L JD candidate at Osgoode Hall Law School.

Was a $46.3 billion piracy problem accelerated by the ad campaigns that attempted to stop it? Gilles Grolleau and Luc Meunier believe this could be the in their article published on July 7, 2022.  Today, anti-piracy commercials might be a ,   but Grolleau & Meunier attempted to critically analyze why the ad (and similar ones) may not work. The article does not provide empirical evidence but rather offers insights and reasons as to why commercials may not have effectively deterrent piracy.

The authors based their arguments on with the current anti-piracy ads:

1. The ads over-emphasize piracy’s prevalence.

When an ad stresses how widespread a problem is, it risks people seeing piracy as a social norm. This in turn limits societal pressure to change behaviour. This same trend has been shown in similar commercials about drug/alcohol abuse, suicide, and pollution.

2. The ads should not emphasize the high number of victims.

If everyone is a victim, then no one is a victim. Well-identified individual victims are more likely to gain sympathy than a general group.

3. The ads should not use a shotgun approach to arguments.

is the use of a few strong arguments would more effectively curb piracy than a mix of strong and weak arguments. Although people may think that adding more arguments will improve the total package, the opposite is true if the arguments are not strong. If one strong anchor argument is diluted with moderate add-ons, people perceive the total package as less than the anchor argument alone.

The authors provide some strong points and applied established theories from other fields to piracy, they overlook some factors that may important to the argument. One fundamental difference between piracy and traditional forms of stealing (carjacking, purse stealing, etc.) is that the owner is not deprived of their property in the traditional sense. They incur a loss of profits from the reproduction of that product. This factor may also explain why piracy is not easily deterred through traditional methods of arguing and advertising. Overall, this article highlights the problems that digital media and ownership will keep producing in the legal system and the difficulties that arise when applying traditional legal concepts in modern society.

The post The Era of Digital Pirates and Why Anti-Piracy Ads Have Failed to Make a Difference appeared first on IPOsgoode.

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

Russian theatres are turning to pirated films to stay alive during these trying times - and it may not be working. , some theatres in Russia have resorted to screening pirated movies to offset the Hollywood sanctions while others are practicing more caution by renting out spaces to show the films to certain individuals, with or without a fee.

Following the Russian invasion of Ukraine, Hollywood has protested by putting a halt to the release of films in Russian theatres. , going one step beyond its initial commitment to pause all future projects and acquisitions in the country, thereby putting an indefinite stop to the development of four Russian originals. Shortly after , marking the general suspension of the US film and TV business in Moscow. The harsh sanctions have particularly been interesting because . In fact, to ensure that their films would be released in Nazi Germany, Hollywood used from the credits during the 1940s.

Russians are avid cinemagoers and are particularly hard-hit by the sanctions. , Russia had the highest number of admissions in Europe – 145.7 million in 2021. Moreover, Russia’s cinema market seemed to also be bouncing back since the start of COVID. According to data from the International Union of Cinemas (UNIC), represented in the table below, Russia was one of the major territories that performed strongly in its recovery in cinema admissions. compared to 2020. , Paul Heth, CEO of Russia’s cinema operator Karo Group, predicted that they would achieve the near $1 billion box office receipts that they saw in 2019, this year. However, the current situation with Ukraine has prevented box office receipts from approaching anywhere close to those figures.

Image from

So far, there seems to be no consequences for these illegal showings. In March, Russia in an effect to mitigate sanctions imposed by Western nations, thereby legalizing piracy of several entertainment forms, including films. , the Russian government has announced that its companies will no longer be required to pay patent holders from countries that have sanctioned the country for the use of intellectual property, effectively legalizing piracy throughout the country.

But despite efforts to keep the industry alive, the results have not been encouraging – compared to the same time last year. Moreover, the Association of Theatre Owners has that “at least half the movie theatres in Russia would go out of business in the next two months”. Russia is encountering further issues with screening costs, , there has been a sharp increase of about 80% in the cost of lamps and components for projectors, with an estimated 50% of the Russian cinema screens already dark because of the lack of films and equipment. For now, pirated films continue to keep the theatres dimly lit, but it might not be too long before the Russian cinema industry faces a total blackout.

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Photo by Kerde Severin ()

Booker Zhang is an IPilogue Writer and a 1L JD Candidate at the University of Manitoba.

Sony's PlayStation 5 (PS5) has been consistently worldwide since its 2020 release. This situation results from the global chip shortage caused by the Covid-19 pandemic and unkind scalpers. But have you heard about GS5? A YouTube unboxing this counterfeit console has attracted almost 8 million views.

The GS5’s official name is GameStation 5. It is a video game console with basically the same look and design as a PS5—even the box looks exceptionally similar. The difference is that the GS5 is much cheaper and smaller and can only support 8-bit games. There is also no need to buy games as it has a built-in game system for over 200 games. However, even the games are counterfeit. In Donkey Kong, the player is a panda. In another game called Somari, the gamer plays Mario in a Sonic game. Overall, GS5 is an entirely counterfeit video game console that steals Sony's design and modifies Nintendo's games. Nothing of GS5 is original. Imagine how many copyright and trademark infringements GS5 may have invoked.

Counterfeit game consoles date back to the 1970s. Even Nintendo made a video game console named , highly similar to Atari's Home Pong. However, game console companies have never stopped fighting for their legal rights. In 2011, Atari filed a copyright , a wholesaler, for importing bootleg versions of its Flashback 2 plug-and-play console to sell to unsuspecting consumers in the US. Atari was seeking over $30 million in damages. In a more recent case, an American rapper DeAndre Cortez Way, better known as , announced his game consoles with 3000 built-in games and sold over 5 million units. He eventually removed all consoles from stores because of a Nintendo copyright action.

Consumers can easily find similar  products online due to the booming international e-commerce market. On Aliexpress, you can find all kinds of : the PolyStation 2, Nintendo Switch Vita, GBA GameBoy, and more. The game console used to be a high-tech industry where only companies possessing core technology could produce consoles. Nowadays, technology development allows people to make bootleg game consoles at a meagre cost.

on counterfeit game consoles is that counterfeiters and software pirates will face significant penalties. Nevertheless, many consoles come from overseas, out of Canada's jurisdiction. Given the cost of a lawsuit, many game console companies choose not to pursue infringement and instead focus on their innovation and development.

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Everything breaks eventually.

It sounds bleak. But when it comes to the devices, machines, and tools we use every single day, it’s true. You’ll push down the lever on your toaster, but your bread won’t magically change into toast. Parts inside your car will wear out, even if you only do things the average driver does. The device you’re using to read this blog post likely has a battery or drive that will fail.

We’ve all encountered objects that stop functioning. When they do, we act, whether it’s getting the object serviced, fixing it ourselves, or even replacing the whole thing. But some manufacturers intentionally limit what people can do to get their stuff working again, even if you technically have the ability to try and repair your own things. Some manufacturers include . They might hoard proprietary parts and threaten third party part manufacturers. Some companies . Manufacturers can also make their devices without breaking them further. A right to repair can alleviate consumers of some of these restrictive practices and give them more options.

Manufacturers likely find it valuable to monopolize repairs. It’s questionable whether they are obligated to help anyone break into their products for repairs, considering that it might lead to piracy. Companies may arguably make higher-quality repairs on their own products, and worth the price. The device manufacturer should know how to diagnose and fix your device better than anyone. If a device cannot be fixed, manufacturers can even replace them.

However, it doesn’t make sense to restrict competition in the repair market just because a manufacturer can make quality repairs, or for fears of piracy. Even if we accept that third parties can’t meet the manufacturer standard, this fact will likely be reflected in the prices consumers pay third party repair choices. A lack of a right to repair isn’t preventing anyone from pirating either. Consumers should at least have the option to choose, and a right of repair could help them do so.

The US is taking steps towards giving consumers these options to anti circumvention exceptions in section 1201 of the Digital Millennium Copyright Act. Consumers in the US have been given extended to “break in” to consumer software-enabled devices for diagnostics, repair, and maintenance. Consumers will be able to use software tools or enable third parties to use tools to repair devices, where previously this access may have been. There are still limits, in that these , among others. The changes also cannot stop a company from sealing their device in such a way that makes it difficult to access for repair. But it does expand and get in. It’s a nice addition to a consumer’s right to repair their own things.

Canada should follow suit, potentially by adding “repairs” as a category to the Fair Dealing exceptions to copyright. Using software tools to repair a device might , which is prohibited in , likely due to piracy concerns. But, repair exemptions could benefit Canadians, and seems to already have . Additionally, codifying existing common law rights to repair one’s property sends a clear message that Canada is dedicated to protecting the rights of consumers.

A right to repair could help make our society less wasteful. It will give consumers more options to fix their stuff instead of going to the manufacturer to fix things. It could stoke competition in the repair market, which may lower prices. It may also convince more consumers to try the do-it-yourself route, saving costs on simple repairs, and allowing people to learn more about the devices they use every day. With all the potential a right to repair regime might bring, it would be unwise to ignore what the US has done and act on our end.

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Photo by Eric Krull ()

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

is an online free-to-play gaming platform where users can develop games and play online together. Its increasing popularity among teenagers and children, especially during the pandemic, has sparked multiple . Music has become a large component of Roblox, with artists like Lil Nas X hosting . Roblox even lets users upload songs for game-building, a feature that resulted in a copyright lawsuit.

Back in June 2021, The National Music Publishers’ Association (NMPA) Roblox for allowing users to upload copyrighted music without paying a licensing fee. The lawsuit was filed on behalf of various music publishers, including major players like Kobalt Music Publishing America and Universal Music Corporation. The in copyright damages, among other court orders to enhance control over in-game piracy on Roblox.

The Association “Roblox actively preys on its impressionable user base and their desire for popular music, teaching children that pirating music is perfectly acceptable.” Roblox actively encourages music uploads, charges users, and even sells virtual items to allow for in-game listening. The lawsuit further alleged that Roblox has established control and a moderation team to address content that is against policy but does not monitor music licensing in uploads.

Shortly after the lawsuit was filed, Roblox signed music partnerships with both and to license many popular songs. Along with these deals, Roblox expressed a commitment to monitoring DMCA complaints. On September 27, Roblox announced that they have their lawsuit with the NMPA, and further that the settlement “sets the foundation for future partnerships with global publishers that will unlock new creative and commercial opportunities on its platform.” The agreement encompasses an expansive licensing agreement between Roblox and the music publishing industry that allows individual publishers to opt-in or enter into individual negotiations.

The settlement is great news for the gaming company and its outlook after on the New 91��ɫ Stock Exchange earlier this year. While the deal does not explicitly cover licensing for all songs, it shows that Roblox has a lot more in store on the music front. Hopefully, this means more virtual concerts!

The post Playing with Piracy: Roblox Settles $200M Music Copyright Lawsuit appeared first on IPOsgoode.

(of Gowling Lafleur Henderson LLP) moderated the final panel of the day entitled “Piracy & Digital Distribution”, in which panelists (of Basman Smith LLP), Steve Teixeira (of Universal Music Canada Inc.), and Osgoode Hall Adjunct Professor (of the Motion Picture Association - Canada) spoke about how piracy has affected their respective industries of sports, music, and film.

Kevin Fisher discussed the unique aspects of piracy in live broadcast sporting events.  Since the value in a sporting event exists in the broadcast, the piracy in this industry includes satellite signal theft, grey market and free-to-air systems, and event channel streaming online. Individuals can legally purchase a broadcast, set up an event stream on a user generated site, and broadcast the stream to the world. This has also led to a new sub-industry of directory sites that guide users to the pirated streams.

Steve Teixeira began his discussion by asking whether anyone in the room has ever pirated music, and most of those present raised their hands. However, when he asked how many people had stolen a physical CD, only one hand remained raised. Teixeira posited that this disconnect was the result of how the public values (or perhaps, devalues) the more abstract concept of digital music products as compared to physical products. He suggested that this social acceptance of piracy has serious implications for the industry and provided some insight on how the industry will move forward to work towards recapturing paying consumers.

Sundeep Chauhan discussed the increasing trend of dressing up pirated DVDs to look like legitimate products and selling them at a slightly lower price point, and the resultant displacement of the legitimate physical product market. He also discussed the impact piracy has had on the film ecosystem. Money taken out of the industry due to piracy has disrupted the ability of film makers to reinvest in the film industry. The trickle down effect of piracy has also resulted in job losses both within the industry and for those with jobs related to film production (such as makeup artists, chauffers, general contractors, etc.). 

All three panelists agreed that litigation against end user consumers is not the goal of rights holders.  After initial attempts to enforce rights against individuals by the music industry resulted in a public relations backlash, content owners realized that it does not make sense to alienate their consumers. It stands to reason that aggressively pursuing consumers and then turning around and asking them to purchase your content was not a viable strategy. Now, the goal is to pursue those who make content available and make profits through subscription fees and advertising revenue. These sites, referred to as “wealth destroyers” (Pirate Bay was an oft-mentioned example), drew criticism as they capitalize on the investments of others while drawing away the profits to be gained from those ventures.

The panelists highlighted education as an important resource to combat piracy. Erasing the grey area and shaping cultural values about online theft through education will be a valuable tool for content owners moving forward. Intermediary companies will also require this education. These companies pay for advertising space or are involved with the authorization of purchases on sites hosting pirated content. The damage done by "wealth destroyers" can be reduced, and hopefully eliminated,  if companies are made aware of the consequences of their participation in piracy. 

Although industries affected by piracy were initially resistant to new business models made possible by technological advances, entertainment industries are increasingly embracing emerging business models. The goal of these companies is not to resist innovation, but to ensure that the technology developers and entertainment industries collaborate to improve their products and services. For example, the key to the future use of technological protection measures (TPMs) is to reduce the restrictions placed on users while maximizing protection against would-be pirates. In the past, implementing TPMs often meant that individuals could not use their legally purchased content in legally protected ways such as format shifting. Now, TPMs facilitate new business models like iTunes, allowing rights holders to protect content and feel secure about releasing it online while providing their product to the consumer. For example, providing a time-limited movie rental at a lower price in addition to a purchase option. The use of these services allow further opportunities to meet the needs of different consumers by allowing for such things as differentiated pricing options.

It is clear that the entertainment industries are working to embrace technological changes and the new methods in which they can provide content. Teixeira noted that as time goes on, music streaming may become the way of the future. Whether it is through subscription or advertising models, the hope is to eventually increase revenue streams as these services build up a consumer base. Fisher suggested that with the right technology, live sport streaming can cut out the pirates as well as divert more revenue away from the middle men and directly back to content creators. Chauhan indicated that filmmakers want their content on as many platforms as possible and to work with consumers to provide options catered to their needs, making it just as easy to access legal content as it is to find pirated content.  Perhaps embracing the very technology that initially allowed bootlegging to run rampant will end up saving these industries from piracy.

 Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.  

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For a comprehensive, entertaining, pun-filled and generally geek-tastic video primer on the two sides to the Game of Thrones piracy debate, please see by Mike Rugnetta.

The Cultural Buzz Argument

The dominant pro-piracy narrative has focused around the concept of “cultural buzz” and the promotional value of piracy and its residual impact on sales. :

“No, it's great. It really helps the show's cultural buzz, and it does not impact the bottom line because HBO has more than enough money to keep making the show… this makes HBO the center of a cultural conversation about illegal downloading, about streaming content, about the production of content and distribution of content, which is probably somewhere they really want to be."

Even HBO’s programming president Michael Lombardo these positive sentiments about privacy,

"I probably shouldn't be saying this, but it is a compliment of sorts… The demand is there. And it certainly didn't negatively impact the DVD sales. [Piracy is] something that comes along with having a wildly successful show on a subscription network."

 

The Moral and Legal Retort

But not everyone is happy about this historic record. Anti-piracy advocates fall into two camps: those that believe piracy is wrong and those that remind piracy is illegal. The distinction is subtle, and there is some overlap, but the latter argument seems far more prevalent in online discourse.  Blogger John Birmingham politely that they’ve got their understanding of criminal law wrong.

“Specifically, there was one argument that kept coming up again and again. That unauthorised downloading is not theft; at worst it’s a copyright violation, which somehow sounds less serious. Almost admirable and kinda Robin Hoody in fact... And sure, in a strict literalist interpretation of most statutes in the various jurisdictions which take seriously the protection of intellectual (as opposed to ‘real’) property, theft and copyright infringement are treated separately. But both are usually defined under criminal law, and both are punishable with fines and jail terms.”

The more moral argument is furthered by ,

"What you hope is that even though people watch it online, they will still buy the DVD. You can always hope…At the end of the day it's stealing. I know it doesn't feel like it but it is and it's not right."

 

Analysis

Market failure is being touted as a for the piracy; delays in the availability of HBO shows around the world have been argued to lead to fans downloading out of necessity. This doesn’t necessarily explain why the US was the country responsible for the highest percent of illegal TorrentFreak Game of Thrones S3E1 downloads. is a born-and-bred US channel that is more accessible domestically than anywhere. So it seems that the math to this argument doesn't add up. Moreover, I’m unclear why market failures would justify breaking the law. If the capitalist claim were that piracy effectively hurts Hollywood enough to be an appropriate bottom line motivation, then I believe we’d see some kind of adjustment in content distribution on the part of HBO. That doesn't seem to be happening in any short order.

And even if it did, it likely wouldn’t matter. Laws don’t serve at the pleasure of the market; the market serves at the pleasure of the rule of law. Citizens who have problems with anti-piracy law should be voting with a ballot, not a cursor. From this paradigm, illegal downloads starts to look a lot more about laziness than consumer rights. Finally, these statistics are shaky ground for the foundation of any debate. There’s a definite English bias – 4 of the top 5 countries on the list are English-speaking and it’s an English-speaking show. Sure Game of Thrones could be the most downloaded show of all time. Or it could be the most downloaded English show of all time.

In honesty, I don’t know what the most popular shows are in India and China. But if they’re not English and BitTorrent has an English show bias, then the data set starts to look particularly weak. And in addition to factoring in language, a truly fair comparison would weight downloads by country population and broadband internet penetration.

In conclusion, excitement about Game of Thrones piracy is noble fantasy.

Denise Brunsdon is an IPilogue Editor and a JD/MBA Candidate at Western University.

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Music Canada also runs the (i.e. certifying when a record has made platinum). Although famous for their efforts to strengthen copyright laws, copyright is not all that Music Canada does. For example, one of the initiatives Graham mentioned is in the area of ticketing/towing bylaws. When musicians play in clubs in Austin or Nashville, there are dedicated “artist loading zones” where the artists can park and load their equipment. The same is not true in Toronto. Many small clubs have very limited loading zones, and limited nearby parking. A single parking ticket can wipe out an entire night’s profit for some musicians, making it very difficult to practice their craft.

Another Music Canada concern is improving relations between the City of Toronto and the music industry to a similar level that the film industry has with the city.  For instance, the helps arrange location permits, police presence, emergency medical services, tax credits, and other services for film and television shoots on fairly short notice. In comparison, no such program exists for the music industry.

For example, Graham told a story about how the held in Toronto attempted to obtain a permit for . The planning process was initiated 8 months before the concert date, and the final permits to use the square did not come through until 3 days before the concert. As one might imagine, by that point the acts had been booked, media announcements had been made, etc. The organizers were taking a massive risk - had the permit not come through, the concert would have had to be cancelled, and the organizers would still have been on the hook for all costs – without the associated profits.

“Music is one of the most open formats in the universe, for all the credit they get for it.”

When asked what the biggest accomplishment from the recent Canadian copyright reform initiatives was, Graham didn’t cite digital locks or TPM protection, or the new part of the legislation targeted at pirate sites. The greatest accomplishment, he said, was the fact that we passed a bill at all. While there may be disagreement on the content of the reform, one thing many agree on was that copyright reform itself was badly needed. After three previous failed attempts, the fact that Bill C-11 passed in a global political climate where other copyright focused bills crashed and burned (e.g., and ), was nothing short of miraculous. “Our government passed a bill when SOPA and ACTA failed.”

He pointed to that stated that if the government enacted the bill, DRM would “lock up” content. It has been months since bill C-11 came into force, even longer since it was passed, and this assertion has not been true, at least with respect to music. To this day, music remains one of the most open, consumer-friendly content industries, a fact that Graham thinks the music industry does not get enough credit for. Today, music is sold in one of the most open, flexible formats available. The restrictive DRM you may find on other types of media is not present here. When you buy a song on iTunes, or elsewhere, you can play it on any device you own, anywhere you want, at any time you want.

There are no complicated digital hoops to jump through in order to satisfy a DRM mechanism or prove that you have the right to use the content you paid for. There is no need to purchase a new device that supports the DRM format of the file you purchased. Moving a song from your computer to an iPod (or a cell phone, laptop, MP3 Player, tablet, etc.) is as simple as cutting and pasting a file. It is truly a consumer’s dream.

There were in the music industry, but they were uniformly abandoned. It all comes down to history and market expectations. When the CD was introduced back in 1982, it was in a DRM free format. Conversely, as Graham notes, “the first DVDs were locked up, and people accepted that. But how many times do you re-watch a DVD?” It’s hard to watch a movie while jogging, or when you’re at work. But the same isn’t true for music. Many people listen to music throughout their entire day, playing the same songs over and over again. They take their music with them everywhere they go. Such behaviour requires a level of flexibility and convenience that would be very hard, if not impossible, to achieve with DRM protected content.

But it’s not just consumers that benefit from the openness of the music industry, its other artists too. “When you publish a song, that is fair game to create a cover.” When was the last time anyone tried to create a cover of a movie? Or a TV show? Or even a book? Well, with a song, you can.

Another thing Graham says the Canadian music industry deserves credit for is their response to the problem of piracy. While the to sue consumers in the US, these types of lawsuits are notably absent in Canada. And Canadian consumers mainly have Graham to thank for that.

“My policy was, we shouldn’t be suing people while we’re waiting for legislation.”

When Graham took over CRIA (as Music Canada was then known), there were a few brief lawsuits that went through the federal court system. This resulted in that basically stated that downloading music was legal in Canada. These lawsuits were appealed to the Federal Court of Appeal, not because of an intention to follow through with suing their customers, but as Graham noted “we simply had to appeal it to set the record straight.”

And they eventually did. The Federal Court of Appeal ended up . At that point, the music industry could have continued the lawsuits against the individual downloaders directly, however, they chose not to.

“The US did it to make a point. Because they had been polling people and practically everyone thought that downloading was OK. The objective was to make the point that, NO, it is illegal.” Similarly in Canada, there was pressure from a lot of sources, including independents and artists, to initiate a similar series of lawsuits, or otherwise send the message that downloading is illegal. But Graham decided to take a different route. “My policy was, we shouldn’t be suing people while we’re waiting for legislation.” Graham instead decided to focus on lobbying the government to pass copyright reform. It was hoped that a renewed message from Parliament, in the form of the passage of a new copyright bill and all the media coverage surrounding it, would send a message to Canadians that downloading music without compensation was not appropriate. To continue a lawsuit against consumers while lobbying for legislation would taint that process, attract undue notice and probably wouldn’t even work to curb downloading ().

Today, there are more ways to consume music than there ever was. From buying a CD in stores, to single song online retailers like , to digital radio services or even streaming subscription services like and , it has never been easier to get the music the music you want, how you want it, whenever you want.

“They are the canary, the first down the coal mine.”

The music industry has come a long way since it began. Usually it is on the forefront of the culture industries. Music was the first industry to switch to digital with . The MP3 player was the first digital media player. Digital download stores like iTunes started with music sales.

But with this innovation came its own set of problems. Graham joked that “they are the canary, the first down the coal mine.” Music had to forge its own path. And, for the most part, it has succeeded.

2013 marks the first year in over a decade that , and have even risen slightly. When asked for the reason for these changes, Graham cites many factors. Copyright reform is an issue, not just for any advantages the law provides, but for the fact that the law was actually passed. Canada is a law abiding country, and when the government sends a message that downloading is illegal, people take them at their word.

Digital music now , and labels are just getting better at marketing into this space. There are also more legal music services in Canada than ever before. As legal options for purchasing music are becoming easier and more convenient, consumers are changing their purchasing habits to include more paid music and less illegal downloads. But things are still not ideal for the music industry.

“There was a time when even if you never sold another CD anywhere else in the world, you could still make a living in a middle class life [in Canada].”

The addition of more legal services in Canada is a good thing, but they are contributing a very minute portion to the overall revenue picture as yet. For example, streaming services, at least as they exist today, do not represent a sustainable model. This unsustainability is due to the fact that streaming services usually only pay out fractions of a penny per stream.

He points to a now famous exchange between the band Grizzly Bear and their fans. In it, the band emphasises the fact that . While this generated the usual “your music stinks” or “go on tour” comments, many fans were also interested in how they could help. For those who are unaware, Grizzly Bear is a somewhat well known indie music band. They have played sold out shows at Radio City Music Hall yet .

“We have to build this back up for our young artists. They are aware that [older musicians] used to have homes, but now they can’t afford that.” Graham notes that many young artists are missing the same benefits given to artists in music’s heyday. “There was a time when even if you never sold another CD anywhere else in the world, you could still make a living in a middle class life [in Canada].”

One of the goals of Music Canada is to “create an environment where you can earn your living as a musician.” There are many ways to do this that fall outside the traditional realms of copyright and digital media. For example, ensuring that there areartist loading zones for bands as mentioned above. Cities and governments can also provide tax incentives to record albums in Canada, similar to the .

And it’s harder to earn a living as a musician today than it was a few decades ago. One of the main problems, of course, is copyright infringement.

“The musical middle class is at risk.”

Of course, copyright infringement has an effect on the industry, Graham noted. But the conversation needs to get away from copyright infringement or, as used in the popular vernacular, piracy. People don’t like to talk about piracy, but people care about artists. “I think the conversation needs to switch to… the effect of the digital age.”

One of the first policies Graham initiated as soon as he took over Music Canada was no lawsuits. So how else could they mitigate piracy? One way is to go after the pirate websites themselves. They do this by attacking their sources of funding. that advertise on pirate websites, and like MasterCard, Visa and PayPal.

When asked what message he would have for Canada’s youth, Graham’s message was simple: “support your artists.” As noted, there are fewer artists today that are able to own their own home and make a living in the industry. “The musical middle class is at risk.” Music plays a big part of our lives. Imagine games without music? Movies without music? When major events in your life happen, songs are playing. “Understand that the creation of music is not easy.” There are thousands of good jobs, where people go to work with nothing other than music and making careers work for people in their mind. “It will help you get through your depressions; it will help you get through your joy. To the government, it will create jobs, help the tax base and bring tourists to our great nation. Music can help you, and you can help music.”

Mark Kohras is an IP Osgoode alum and the current Features Editor for IP Osgoode. For more coverage of Graham Henderson and Music Canada, see our blog on Graham’s .

The post How Music Can Help You, And You Can Help Music – An Interview With Graham Henderson appeared first on IPOsgoode.

In order to support its policy decisions regarding the copyright regime in Canada, Industry Canada commissioned a survey by Decima Research in 2006 which was designed to measure the extent to which peer to peer (P2P) file-sharing activities act as substitutes or complements to music purchases.

We focus our analysis on how reported changes in P2P downloading by individuals related to their reported changes in CD demand between 2004 and 2005 to test the hypothesis whether P2P downloading may be reducing CD demand. All of our regression results (reported in Tables 2 and 3 below) show a negative association between P2P downloading and CD demand as might be expected. We consistently find a negative and statistically significant partial correlation between CD purchases and P2P downloads. The range of these estimated correlations is between -0.039 and -0.050, with more consistent, mid-range values coming from the difference on difference regressions (-0.041 and -0.043). This implies a 10% increase in P2P downloads reduces CD demand by around 0.4%.

This paper we believe corrects for two fundamental errors in previous analysis by Anderson and Frenz (AF) which led them to their erroneous conclusions that the Industry Canada data showed “* no association between the number of P2P files downloaded and CD album sales,”[2] and “* that P2P file-sharing is not to blame for the decline in CD markets. Music markets are not simply undermined by free music downloading and P2P file-sharing.”[3] In particular, we first correct for the fact AF biased their results by excluding from their analysis the group of consumers who had completely stopped purchasing CD’s (potentially because of P2P activity) prior to 2005. This is the very group who were most responsive, or likely to have substituted P2P downloading for CD purchases.

Second, we control for the fact that the level of an individual’s demand for CD’s, and the level of an individual’s P2P downloading may be correlated simply because they are both affected by the same third factor, such as love of music, so that high (or low) levels of CD demand is likely to be associated with high (low) levels of P2P demand. Such a positive association between the level of demand and level of P2P downloading may have led AF to mistakenly conclude they had found evidence of a positive market creation effect, as AF regressed the level of individuals CD demand against the level of individuals P2P downloading. Instead we focused on the changes in CD demand and changes in P2P downloading, using data in the survey that AF ignored on 2004 and 2005 behaviours of participants. By focusing on a longitudinal analysis of how the change in individual P2P downloading behaviour affected the change in CD demand we were better able to isolate the true relationship between increases or changes in P2P downloading and CD demand.

[1] Quote from project Description from Industry Canada’s website at downloaded 23 January 2012
[2] Anderson and Frenz 2010 ibid p 374
[3] Ibid p375

Featured here is the abstract of a paper by and . Dr. Barker is the Director of the Centre for Law and Economics at the ANU College of Law of Australian National University. Dr. Maloney is a Professor and Chair of the Economics Department at the Faculty of Business and Law of Auckland University of Technology. The full article can be found .

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