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: Michael Geist

McKennitt Op-Ed: "Pirates are Killing Musicians, Composers, Lyricists, Even Popcorn ...

By Michael Geist

Loreena McKennitt published an op-ed supporting copyright reform in the Winnipeg Free Press over the weekend that focuses on the harm of infringement and the need for C-32.  The piece raises at least a couple of issues.  First, there is the claim that "even popcorn sellers are struggling to stay alive" in light the current state of Canadian copyright law. This claim arises from some declining interest in big music tours, which is taken as evidence that performances are not a viable alternative for many musicians.  What copyright reform has to do with concert venues, performers or popcorn sellers is anyone's guess - promoters of struggling music tours say it has everything to do with a tough economy, competition for the entertainment dollar, and high ticket prices rather than music downloads or IP enforcement. Copyright reform won't change the financial dynamics of the touring industry, which will presumably still leave those same popcorn vendors struggling to stay alive.

If the McKennitt piece was limited to the popcorn claim, it would merely join previous attempts to link copyright with the success of the corn industry (see Rick Cotton of NBC Universal).  However, McKennitt also challenges the very notion of user rights in copyright, calling them "so-called user rights" which she says is used by activists and academics as "crafted language."

This was not the first time that McKennitt warned against tough times for popcorn sellers and against user rights. In her remarks to the Standing Committee on Canadian Heritage in April (on which this op-ed is clearly based), she used the same language in lamenting popcorn sellers struggling to stay alive.  On user rights, she argued "once we dispel the notion that in this respect there is no such thing as user rights, or that people own the music in a CD or a digital download, we can cease worrying about how to 'balance these rights.'"

Yet it is not just activists and academics (or education groups, or consumer groups, or creator groups who make use of works) that talk about user rights and copyright.  Chief Justice McLachlin of a unanimous Supreme Court of Canada had the following to say on user rights in the 2004 in the CCH Canadian v. Law Society of Upper Canada case:

"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.  As Professor Vaver, supra, has explained, at p. 171:  'User rights are not just loopholes.  Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.'"

The Supreme Court of Canada did not call user rights, "so-called user rights."  Rather, they recognized that they are an integral part of the copyright balance that should be respected both in law and in legal reform.  In fact, it is the failure to offer a compromise on digital locks that balances copyright owner rights and user rights that has been the primary source of criticism of the new bill.

Full post as published by Michael Geist on July 06, 2010 (boomark / email).