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Canada's Supreme Court Strikes Down Copyright Fees On Music, Video

timothy posted more than 2 years ago | from the yes-but-can-you-get-good-barbecue? dept.

Music 58

An anonymous reader writes "Quick submission for all us Canadians: looks like the Supreme Court finally decided to rule on various copyright issues. No more fees to 'preview' a song. Another of these rule changes could save our schools a lot of money: no more fees required to photocopy material for students."

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Oh uh! (5, Insightful)

NettiWelho (1147351) | more than 2 years ago | (#40631197)

Looks like the copyrighters forgot to butter someones bread.

Re:Oh uh! (1)

TubeSteak (669689) | more than 2 years ago | (#40632269)

The copyrighters already buttered the bread,
that's how the laws were enacted in the first place.

Good For You, Canadians (5, Funny)

CanHasDIY (1672858) | more than 2 years ago | (#40631239)

Mind if we borrow your Justices? Ours seem to be malfunctioning...

Signed,
Americans

Re:Good For You, Canadians (4, Funny)

game kid (805301) | more than 2 years ago | (#40631279)

Word. The article is good, but lacks details on the Justices' favorite type of cookies and how best to mail some to them.

Re:Good For You, Canadians (0)

Anonymous Coward | more than 2 years ago | (#40631363)

Justice Abella, will you marry me?

Re:Good For You, Canadians (1)

camperdave (969942) | more than 2 years ago | (#40632679)

Word. The article is good, but lacks details on the Justices' favorite type of cookies and how best to mail some to them.

Like pretty much any Justice... liberal amounts of Crown Royal.

Re:Good For You, Canadians (2, Insightful)

Anonymous Coward | more than 2 years ago | (#40631475)

Not needed. Canada's fair dealing became almost as liberal as the US fair use. But not quite.

I'm not an American exceptionalist, but really, this is an area where the US excels. If you take part of a copyrighted work and use it for commentary, news, satire, or educational use without trying to make a profit directly from that, it is okay. There is a reason that Wikipedia is based in the US. The US fair use is far more liberal than fair dealing that is used in most of the world.

Re:Good For You, Canadians (3, Interesting)

N0Man74 (1620447) | more than 2 years ago | (#40631701)

I like the idea of Fair Use, but as I understand it, it is only a defense, not a right. As a defense, I don't think it has fared very well in an age where digital media (that is easily copied) has become ubiquitous. It is slowly being eroded by all of these new laws (and attempts at laws) created because of knee-jerk reactions from lawmakers or as a result of lobbying from powerful media groups.

Re:Good For You, Canadians (1)

Anonymous Coward | more than 2 years ago | (#40638659)

In Canada fair dealing (different term, but similar concept to fair use) is not explicitly stated in the copyright law to be a right, but recent rulings by the Supreme Court DO clearly state it as a complementary right (user rights) to the rights the copyright holder has:

"It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively."

More here. [wikipedia.org]

Who is riding whom? (2)

Weatherlawyer (2596357) | more than 2 years ago | (#40642371)

The consensus of opinion seems to be that the sharks in Hollywood etc are riding the lawmakers and the lawmakers are riding the feds.
But suppose it is the secret police who are riding the copyright laws.

It certainly seems an odd business practice that has gone on for far too long to be a case of sheer corporate stupidity.
Lala land has been a traditionally innovative force. And filled with people whose first idea is to make money.
Is it truly festooned with idiots and lawyers these days, so inept they are alienating a group of people that were once called fans?

 

Re:Good For You, Canadians (3, Interesting)

davester666 (731373) | more than 2 years ago | (#40636157)

The problem with 'fair use' is that every single case is unique. There is no "well this case is just like this other case, so why are you suing?".

And you have to prove that it is fair use, rather than the company suing you having to prove that it's not.

Re:Good For You, Canadians (2)

Nugoo (1794744) | more than 2 years ago | (#40631539)

I don't think it'll be a problem; Harper is probably looking to get rid of them.

Re:Good For You, Canadians (5, Informative)

compro01 (777531) | more than 2 years ago | (#40631679)

They'll be replaced anyway.

3 of the Justices are due for retirement (SCC justices, like all other federal court justices, are subject to mandatory retirement at age 75) soon. Fish will be retiring no later than next year, LeBel no later than the year after that, and Rothstein by the end of 2015.

Re:Good For You, Canadians (0)

Anonymous Coward | more than 2 years ago | (#40635731)

Interestingly, the judges you listed as retiring are three of the four dissenting judges on this decision.

Re:Good For You, Canadians (1)

compro01 (777531) | more than 2 years ago | (#40639081)

There's actually 5 cases here, 3 of them decided unanimously, and the other two decided 5-4

All 3 of the soon-to-retired plus Cromwell dissented on ESA v. SOCAN

Fish and Rothstein plus Cromwell and Deschamps dissented on Alberta v. CCLA.

Re:Good For You, Canadians (1)

DarwinSurvivor (1752106) | more than 2 years ago | (#40660635)

And believe it or not, Vic Towes is being considered to take one of those soon to be vacant positions.

Re:Good For You, Canadians (1)

Muramas95 (2459776) | more than 2 years ago | (#40632189)

I guess we have some freedom we can share. I do see your getting kinda low.

Re:Good For You, Canadians (1)

c (8461) | more than 2 years ago | (#40634495)

> Mind if we borrow your Justices? Ours seem to be malfunctioning...

You can have 'em, but only if you take all our lawyers, too.

Seriously? (5, Insightful)

Nos. (179609) | more than 2 years ago | (#40631277)

FTA: "In another case, the judges found that movie theatres shouldn't be charged for the music that's part of a soundtrack. The court ruled that a “soundtrack” that accompanies a movie is not the same as the Copyright Board’s definition of a “sound recording” because the soundtrack is meant to be part of the movie and includes preexisting sound recordings. And finally, the court ruled that performance royalties do not need to be collected for music used in downloaded video games." So the industry wanted to charge movie theatres extra because of the music in the movie? Shouldn't that have been deal with long before when the production company (or whoever) got permission to include the song? Same thing for video games. Did they actually expect consumers to buy a game for $x and then later get charged $y for the music in the game?

Re:Seriously? (5, Funny)

wierd_w (1375923) | more than 2 years ago | (#40631347)

[Sarcasm] you don't seem to understand! The *studio* that made the movie got permission to use that track, but the *theatre* that wants to play the movie wasn't involved in the contract process! The theatre wants to get free performance rights to some poor artist's work! How dare you call our attempts at seeking reimbursement for flagrant distribution of our client's works 'double dipping' and other pejorative terms! [/sarcasm]

This is what happens when you let lawyers run free and wild, and let them take everyone for a ride.

Seriously.

Re:Seriously? (0)

Jmc23 (2353706) | more than 2 years ago | (#40631795)

This is what happens when you let lawyers/companies from the USA, run free and wild, and let them take everyone for a ride.

FTFY

Re:Seriously? (2)

camperdave (969942) | more than 2 years ago | (#40632691)

[Sarcasm] you don't seem to understand! The *studio* that made the movie got permission to use that track, but the *theatre* that wants to play the movie wasn't involved in the contract process! The theatre wants to get free performance rights to some poor artist's work! How dare you call our attempts at seeking reimbursement for flagrant distribution of our client's works 'double dipping' and other pejorative terms! [/sarcasm]

Sadly, this isn't sarcasm.

Re:Seriously? (4, Informative)

Anonymous Coward | more than 2 years ago | (#40631353)

"Did they actually expect consumers to buy a game for $x and then later get charged $y for the music in the game?"

Sure, they also expect you to buy the theatrical version of 'The Lion King' if you want to show it to your brat's birthday party invitees who are not related to you. Ditto for Peepaw's retirement home and the firefighter's room.

If you play recorded music for those occasions, same thing.

Re:Seriously? (1)

mcgrew (92797) | more than 2 years ago | (#40639663)

Sure, they also expect you to buy the theatrical version of 'The Lion King' if you want to show it to your brat's birthday party invitees who are not related to you. Ditto for Peepaw's retirement home and the firefighter's room.

They tried to extort money from Mike because people were playing their car radios outside the beer garden at Felbers.

He told them to go fuck themselves. Seeing as how his bar is in a pretty dangerous part of town and is usually full of crazy, often armed drunks, I doubt the guy will be back.

Re:Seriously? (5, Informative)

Anonymous Coward | more than 2 years ago | (#40631561)

No, it was weirder than that. They expected royalties because the game was downloaded, as if the act of downloading a game should generate its own royalty in addition to whatever was paid as a license to play the music during the game. Just to be clear: the ISPs were expected to pay this royalty for the downloading as if it was another "performance", regardless of what the creators of the game had already paid the artists. Effectively artists (or more precisely SOCAN on their behalf) wanted to get paid twice: once for the download, and again for playing music during the game.

Some of the other cases they settled were somewhat similar. For example, for streaming music SOCAN was demanding payment for both streaming the music to the customer (e.g., from a company that had licensed music for customers to play) and from the ISP for downloading it to the customer.

Yeah, it was really stupid. Basically a big cash grab from the ISPs, which of course would have passed it on to the consumer..

Re:Seriously? (1)

Anonymous Coward | more than 2 years ago | (#40634051)

Some of the other cases they settled were somewhat similar. For example, for streaming music SOCAN was demanding payment for both streaming the music to the customer (e.g., from a company that had licensed music for customers to play) and from the ISP for downloading it to the customer.

Um, actually it says that streaming music still counts as a "public performance" and they get to continue charging the ISPs for that. It was file downloads that they no longer have to pay for. However, if that stream is only a preview (ie: for evaluation purposes only) then they don't have to pay.

Re:Seriously? (2)

petsounds (593538) | more than 2 years ago | (#40631789)

Yes, it should have been in the deal to begin with, and probably now will be, which might raise the costs of said goods. Or, alternatively we might see less major label music artists in video games.

This ruling doesn't say that separate payments to copyright holders for performance of the work is unconstitutional, it says that a discrete creative work cannot be broken into its constituent parts for financial double-dipping. Any individual creative works that are used must be licensed properly before the work is released to the public.

Re:Seriously? (1)

CrzyP (830102) | more than 2 years ago | (#40632897)

Damn, Beiber won't be on the Battlefield 4 soundtrack?? Shit!!

Re:Seriously? (2)

shentino (1139071) | more than 2 years ago | (#40631837)

By the way, the music is ALREADY paid for, since the movie producer most likely had to pay their own royalties to make it part of the movie in the first goddamned place.

Forget about being part of the movie or not, this is just a blatant attempt to double dip, once from the studio and again from the viewer.

Re:Seriously? (2)

Antipater (2053064) | more than 2 years ago | (#40631847)

Situation 1:

Lisa: "Dad, can I take the bus downtown?" Homer: "No! Public transport is dangerous for a girl your age!"

Situation 2:

Lisa: "Dad, can I take a limo downtown?" Homer: "I'm not paying for a limo! Just take the bus!"

I look at this and think that they didn't actually expect to win, but it softens us up to the other stuff they do because it's not as bad. It's known as the Door-in-the-Face Technique http://en.wikipedia.org/wiki/Door-in-the-face_technique

Re:Seriously? (1)

wrook (134116) | more than 2 years ago | (#40632901)

I suspect this was the crux of the issue. A movie wants to use a song, so they get the rights to use it in their movie. Obviously this is going to be a lump sum payment. However, the rights holders of the recording may have been arguing that they should *also* get a cut of the ticket price (i.e. a percentage of gross revenue) for "performance rights". The movie industry isn't going to go for that. So this was likely a fight between two big media companies. It likely wouldn't have affected movie viewers in any way.

I haven't looked at the original case, so I don't know if that's really what it boils.

Re:Seriously? (0)

Anonymous Coward | more than 2 years ago | (#40636383)

Did they actually expect consumers to buy a game for $x and then later get charged $y for the music in the game?

Its what the artists/groups were pressing for, but were denied. They have never had it, but wanted more (likely retroactively).

Someone (-1, Offtopic)

raind (174356) | more than 2 years ago | (#40631321)

got so upset they made a bomb threat on the only underwater international border crossing:

http://www.clickondetroit.com/news/Detroit-Windsor-Tunnel-shut-down-for-reported-threat/-/1719418/15492492/-/18vopy/-/index.html [clickondetroit.com]

Re:Someone (1)

nedlohs (1335013) | more than 2 years ago | (#40632807)

DId France join the United Kingdom recently?

Time to invade Canada! (0, Funny)

Anonymous Coward | more than 2 years ago | (#40631385)

They have obviously become a socalist country. We need to get them before they get us! Fight over there to keep from fighting over here!

school photocopying? (2)

v1 (525388) | more than 2 years ago | (#40631405)

I wasn't aware that a fee had ever been required for photocopying for school work? Isn't that a "fair use"?

(though I recall the photocopier at the library requiring a nickel per)

Re:school photocopying? (2)

Odin79 (2032436) | more than 2 years ago | (#40631437)

That was probably to offset the cost of paper and maintenance.

Re:school photocopying? (5, Informative)

Anonymous Coward | more than 2 years ago | (#40631531)

Universities and schools in Canada have paid blanket fees to keep the leeches off their legs. No more. SOCAN et al just lost million$ of $.

Re:school photocopying? (2)

Phrogman (80473) | more than 2 years ago | (#40633293)

Yes and the amount of money received by the artists and content creators that they represent won't change a bit :(

Re:school photocopying? (2, Interesting)

Anonymous Coward | more than 2 years ago | (#40631537)

I wasn't aware that a fee had ever been required for photocopying for school work? Isn't that a "fair use"?

My university charges $23.50 per year for an 'Access Copyright Fee'. It's not a huge amount, but it'd be nice if they stopped levying that fee against students. My cynical side guesses that even if they do, other fees will increase by about the same amount.

Re:school photocopying? (3, Informative)

tlhIngan (30335) | more than 2 years ago | (#40631613)

I wasn't aware that a fee had ever been required for photocopying for school work? Isn't that a "fair use"?

It is now.

What happened was teachers and professors did this as they only used say, 1-2 pages of material out of one book because it was needed for the course, while the rest of the book was useless.

The publishers obviously got very mad at this since it deprived them of sales and convinced the copyright board that there should be something done about this.

If you go into a university library, take a look at the posters on the wall in the photocopier room - it'll usually describe what's happening.

Re:school photocopying? (5, Insightful)

lurker1997 (2005954) | more than 2 years ago | (#40632033)

There used to be an agreement called CAN-COPY or something like that where universities paid money to someone (not likely the authors of textbooks) in order to be able to have a fair use like system where you could copy a certain amount of a book for educational purposes. I remember it being no more than 1 chapter with a couple of other caveats. A few years ago, I taught a course where I distributed a photocopied chapter from another text to the students and (as best as I can tell) this was completely legal. The ability to copy parts of texts is much more important in the Arts I would think, where students are potentially given a collection of readings assembled from various sources.

Anyway, in the past couple of years, something has changed and the CAN-COPY agreement no longer exitsts. Whoever has been getting money out of universities for this has decided to ask for more money and more restrictions (I think) because there has been a good deal of complaining about the new copyright agreement, and a number of canadian universities, including my own, have pulled out of the agreement and stopped paying fees of any kind. There are now new rules about what we can and can't copy, but I don't know them. We were told that someone (again, whoever is trying to extort money from us) will now be monitoring the courses at our university in order to make sure we are not infringing their rights. One suggestion I have heard is that we should password protect any course materials we have online, so that outsiders are not able to view them and scan them for potential violations.

Re:school photocopying? (0)

Anonymous Coward | more than 2 years ago | (#40633543)

Same at my university, my dept head was telling me about it.
Price went from like 4$ to 40$, not the exact numbers but approximately that scale.

Canada on Strike? (1)

fuzznutz (789413) | more than 2 years ago | (#40638937)

Uh oh. Next thing you know they'll be striking for...

More Money...

Re:school photocopying? (2)

RichMan (8097) | more than 2 years ago | (#40632249)

A number of open text books are now being created in response to this.

The publishers will get their wish and be destroyed in the process.

Re:school photocopying? (1)

wrook (134116) | more than 2 years ago | (#40632975)

Until the latest copyright change, Canada didn't have fair use -- it had fair dealing (similar, but different concepts).

The last copyright act specifically had a section about educational use which described how an educational institute had to do things. However, these educational institutes were restricted to universities. IIRC, other schools like high schools were not included. Looking at the copyright act, I would have bet my last dollar that photocopying in a high school was *not* allowed (not even under fair dealing), but that's why IANAL.

The one thing that confuses me about this whole story is that the copyright act just changed (like 2 weeks ago). Are these rulings based on the new act (it seems unlikely)? If they aren't, I suspect the ruling is moot. In fact, I'm confused why the supreme court even agreed to look at this given the proposed changes to the act.

Re:school photocopying? (1)

SilverJets (131916) | more than 2 years ago | (#40633073)

It is going to be interesting to see what impact the Supreme Court's decision is going to have on this:

http://media.utoronto.ca/media-releases/u-of-t-and-western-sign-agreement-with-access-copyright/ [utoronto.ca]

U of T and UWO both signed into this agreement while every other university in Ontario refused to sign and were willing to fight it.

Re:school photocopying? (1)

bill_mcgonigle (4333) | more than 2 years ago | (#40645117)

I wasn't aware that a fee had ever been required for photocopying for school work? Isn't that a "fair use"?

Many teachers' books are available in two versions, say a $2 book with tear-out pages, and a $10 book that's the same thing but with a license to photocopy.

You get to decide who pays for the printing costs that way. If you're a homeschooler, I imagine you appreciate the $2 version.

pay for preview wtf? (1)

arbiter1 (1204146) | more than 2 years ago | (#40631429)

When was last time you went to a car dealer and decided to take a test drive of a car and they made you pay for it?

It Prevents Double Dipping by Copyright Holders (3, Informative)

arthurpaliden (939626) | more than 2 years ago | (#40631599)

Before Ruling:

When you buy a song from iTunes a copyright/royalty payment is included in the purchase price. Then when you downloaded the already payed for song to you computer from the iTunes store you payed another copyright/royalty fee to your ISP because the song was carried by the internet from the iTunes store to your computer.

After Ruling:

When you buy a song from iTunes a copyright/royalty payment is included in the purchase price. You do not have to pay the royalty/copyright fee again because you download the music from the iTunes store over the Internet to your computer .

Ditto for computer games bought online royalties for music in the game are included in the price you do not have to pay again just because if arrived at you computer via the Internet.

Re:It Prevents Double Dipping by Copyright Holders (2)

aquabat (724032) | more than 2 years ago | (#40631705)

I don't remember ever having to pay a fee to my ISP to download a song from iTunes. Maybe my ISP paid a fee to SOCAN to let me download my song, but it wasn't visible to me. I also doubt that my ISP bill is going to be smaller next month, because of this ruling.

Re:It Prevents Double Dipping by Copyright Holders (2)

arthurpaliden (939626) | more than 2 years ago | (#40631803)

My bad it was not implemented yet. It is what they wanted.

Might just be me (4, Interesting)

sl4shd0rk (755837) | more than 2 years ago | (#40631649)

Seems like there has been a trend (oracle vs. google, Apple vs. samsung) of Sudden Outbreaks of Common Sense lately in regards to Copyright/Patent trolling and now Fair Use. Perhaps the legal systems in the EU, US and Canada are beginning to wake up.

Re:Might just be me (0)

Anonymous Coward | more than 2 years ago | (#40631805)

If this is reality will recent cases where a plaintiff has paid for a supposed violation will be able to recover the damage done to them? Some quicksand is really hard to get out of.

C-11 (2)

alexo (9335) | more than 2 years ago | (#40633203)

When will they repeal the "circumvention" part of C-11?

Re:C-11 (1)

Altrag (195300) | more than 2 years ago | (#40636251)

Probably 20-50 years after the US repeals its counterpart in the DMCA. Such legislation was imparted to us by the US and its unlikely to be revoked without the blessing of the US. And even then, laws tend to take a lot longer to repeal than to implement in the first place.

Usually dead laws just get ignored into obscurity until some enterprising crackpot with too much legal knowledge decides to resurrect a law that hasn't been put in practice in 50 years and it gets stricken down by the judge at that point because nobody cares anymore. Dumblaws.com [slashdot.org] is a nice big repository of examples.

C-11 (and probably the DMCA itself for that matter) is of course a bit different in that it was intentionally designed to be unenforceable from the outset, rather than just becoming unenforceable due to changing social requirements. This is a relatively new breed of law -- a law that criminalizes the vast majority of the population in a mostly invisible way.

This potentially allows certain parties to have legal clout over most individuals at their discretion, without the accompanying responsibility to actually enforce it (since that's impossible.)

Work for the RIAA and happen to take a dislike to your neighbor? Well chances are he or someone in his household has downloaded a song illegally at some point in their lives -- just slap him with a $100k fine (or even jail time) and let the rest work itself out.

Scary stuff.

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