EU Copyright Holders Cling To Old Levies, As New Ones Start To Appear On Cloud Storage

Levies on blank storage media are a relic of older times when copying was a new possibility for copyright works. You no longer needed an LP pressing plant, say, you could copy music in the comfort of your own home, first on analog cassette tapes, then later on digital media like CDs and MP3 players. At that time, it was easy to see each of those copies as somehow replacing purchases, and so the argument for levies was born: people should pay indirectly for the "lost" sales their copying caused. 

On Techdirt.

Portuguese Artists Association Struggles To Get Even 100 Members On List In Favor Of Exorbitant New Private Copying Levies

Few ideas display a sense of entitlement better than that of private copying levies. For they assume, by definition, that artists' representatives have a right to money from the public simply because there is some kind of storage that could be used to hold digital copies of copyright files, and that every time such a file is copied, money must be paid (never mind if you are just making backups or transferring your holdings to bigger storage sizes.) 

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Is Format Shifting a Big Giveaway?

Yesterday I wrote about the BPI's reaction to the UK Government's response to the Hargreaves Report. Not surprisingly, the Musicians' Union (MU) also has a view here, specifically about proposals to allow format shifting:

In response to today’s government announcement of a consultation on a new exception to UK copyright law which would legalise the act of making a private copy of a CD, the MU has called for a fair compensation scheme to be introduced.

So why might that be? The MU has an interesting analogy:

“The device manufacturers readily pay for patents and the like on each device sold and yet the act of copying onto these devices the very content that the consumer is most concerned with – music, is not currently generating any income for the creative individuals who compose and perform and entertain the public.”

It's fascinating to see one intellectual monopoly being used to justify another. But what this overlooks is that manufacturers do not "readily" pay for patents: they are forced to do so by the government - which, of course, is precisely what the MU wants for its "fair compensation scheme".

Except that it's not fair. The MU says the music-playing device "is not currently generating any income for the creative individuals who compose and perform and entertain the public": why on earth should it? The musicians had nothing whatsoever to do with that device; they didn't design it and they didn't make it. It might never play any music, but be used for playing back recordings made in the home or outdoors, for example.

And if it does play back format-shifted music, the point is that by definition it will come from another a medium like a CD that the customers have already paid for - that's why it's called "format shifting". That means that the musicians will also have already been paid. So why should they be paid again for doing precisely nothing?

The MU's statement here is a real giveaway in the sense that it reveals the abiding and ingrained sense of entitlement that pervades all the creative industries. They are not content to be paid once like most people, but want to be paid again and again.

That is also evident in the concluding paragraph:

The Union has been robust in its opposition to this proposal and UK Music has adopted the MU position and is making the case for fair compensation to be made in return for the introduction of an exception. As part of this UK Music is examining the economic tool of ‘choice modelling’ to determine the value that the ability of being able to store music adds to devices such as the iPhone in order to present a robust argument to Government.

Again, even assuming that such a value exists, there is no reason that musicians should receive any more payments for it. That value has already been factored into the price of the music when it was bought, in whatever form, and into the compensation paid to the musicians who made it - that's how markets work.

Arguing the contrary makes as much sense as arguing that the existence of devices like music players and smartphones increases the value of the music played on them, because people are willing to pay more to have this useful extra capability. By the MU's logic, musicians should therefore pay a levy to device manufacturers for this added value the latter create for artists.

Of course that's absurd - as absurd as the MU's proposals that musicians should be paid again for the fact that you might actually play digital music on a digital device. The point is that all these kinds of "value" are already factored into the prices we pay.

Trying to argue that musicians deserves a cut of some of this nominal value is yet another example of the fantasy-based economics the creative industries regularly apply to the digital world. Maybe it's time they "shifted" away....

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Of Cake and Eating It

The Canadian Recording Industry Association this week quietly filed documents in the Federal Court of Appeal that will likely shock many in the industry. CRIA, which spent more than 15 years lobbying for the creation of the private copying levy, is now fighting to eliminate the application of the levy on the Apple iPod since it believes that the Copyright Board of Canada's recent decision to allow a proposed tariff on iPods to proceed "broadens the scope of the private copying exception to avoid making illegal file sharers liable for infringement."

Given that CRIA's members collect millions from the private copying levy, the decision to oppose its expansion may come as a surprise. Yet the move reflects a reality that CRIA has previously been loath to acknowledge - the Copyright Board has developed jurisprudence that provides a strong argument that downloading music on peer-to-peer networks is lawful in Canada.

This is interesting, because it tacitly recognises that imposing a levy effectively gives permission for any kind of private copying - otherwise it would be a case of having your cake and eating it - which is why the CRIA is desperately backtracking.

But I'd turn this around, and say that this equation offers a way to solve all the messy legal squabbles over private copying. Provided the levy on recording media were small enough, it could be spread over everything - tapes, CD-Rs, hard discs, flash - and be a relatively painless way for users to gain the right, enshrined in law, to share and copy anything for private use.