‘Prey to Thievery’ The Canadian Recording Industry Association and the Canadian Copyright Lobby, 1997 to 2005 By Simon Doyle A thesis submitted to the School of Journalism and Communication, Carleton University, in partial fulfillment of the requirements for a Master of Journalism degree May 2006 [email protected] © Simon Doyle 2006 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Library and Bibliotheque et Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-16487-7 Our file Notre reference ISBN: 978-0-494-16487-7 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce,Canada de reproduire, publier, archiver, publish, archive, preserve, conserve,sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet,distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform,et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be includedBien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. i * i Canada Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Abstract This is a case study that weighs the influence of a long-term lobbying campaign by the Canadian Recording Industry Association (CRIA), representing the multinational recording companies Warner, EMI, Sony-BMG, and Universal. In 1997, Canada signaled its intent to reform copyright for the digital age. CRIA ran a powerful lobby for heavier regulation of digital content, but Canadian policy makers resisted CRIA's key proposals, which were viewed as controversial and potentially unpopular. CRIA used its influence with politicians to bypass the bureaucracy and incorporate some of its key aims in a bill introduced in Parliament, but which did not pass before the 2006 general election. The popular emergence of home computing and digital entertainment has increased public awareness about copyright policy, raising the question of whose interests it serves. In this environment it will be increasingly difficult for the content industries to influence copyright policy as they have traditionally. ii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Acknowledgements Many thanks to my supervisor, Prof. Christopher Waddell, for his prompt work and helpful advice and comments, as well as to all those who sat down with me over coffee (or on the phone) to discuss the copyright lobby. I am also grateful to those of you who read parts of this thesis on your own time and suggested welcome improvements. The title I owe to Jack Valenti, CEO of the Motion Picture Association of America, who used the phrase in a speech in Ottawa in 2002. iii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Contents Introduction.............................................................................................................................1 Bailing out the music: What the major labels proposed, and got..................................... 14 Industry over access: Canadian copyright reform, 1921 to 1997.....................................45 No DMCA in Canada: Canadian resistance to maximalist copyright reform ................. 79 'Pack me the snowballs': CRIA, the rights holder lobby, and the politics of copyright reform ..............................119 Conclusion............................................................................................................................153 Works Cited..........................................................................................................................161 iv Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. List of Appendices Appendix A: Chronology ..................................................................................................... 172 Appendix B: Members of the Copyright Coalition of Creators and Producers ................174 Appendix C: Members of the Balanced Copyright Coalition ............................................175 v Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Introduction Canada's federal copyright law is one of the most contested areas of federal policy making. What may seem to the average observer as minor changes to the Copyright Act have significant impacts on commercial and non-profit sectors, from broadcasting to education. A decision to apply a new royalty fee to broadcasters, for example, to compensate performers and producers of sound recordings, makes a winner out of the recording industry and a loser out of broadcasting. Each decision to amend theAct is in this way political in nature and necessarily creates winners and losers.1 The government's last major round of copyright amendments, passed in 1997, earned the reputation of being one of the most contested bills in Canadian history. Sheila Copps, former Heritage Minister who helped push through the 1997 omnibus copyright bill, called it "the single- most lobbied bill in the history of Parliament."2 Jay Kerr-Wilson, legal affairs manager for the Canadian Cable Television Association, has similarly said it has become urban legend that interested parties spent more money lobbying on the 1997 amendments than on any other single issue in history.3 More than 80 stakeholder organizations got involved, to press their cases to government officials and attempt to win over MPs and ministers, all in the hope of influencing the legislation. Within this govemment-relations (GR) contest is the Canadian Recording Industry Association (CRIA), one of the single most powerful and influential stakeholders in the copyright reform process. It represents the "Big Four" multinational recording companies of Warner, EMI, Universal and Sony-BMG, as well as some major 1 William T. Stanbury describes this principle generally inBusiness-Government Relations in Canada, 2nd ed., (Scarborough, Ont.: Nelson Canada, 1993), 95. 2 Sheila Copps (former Minister of Heritage), in discussion with the author, December 2005. 3 Jay Kerr-Wilson (vice-president, legal affairs, CCTA), in discussion with the author, January 2006. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 2 independent labels in Canada, such as Nettwerk, and controls 95 percent of all music manufactured and distributed in Canada. CRIA's executive team consists of representatives from the Big Four, making it the primary vehicle for the GR activities of the major labels in Canada; and in the digital environment, it had a lot to lose. Industry groups, which have a large stake in copyright, have typically sat down with policy makers to describe their needs, argue amongst themselves, and help write the law. In the new economy, however, digital copyright laws affect many more actors, from high tech companies to computer users, making the traditional approach to drafting copyright a more complex and taxing task. Technological developments have thrown the whole principle of copyright into question, asking to what degree copyright should extend into the digital age. The digital environment has brought forward great opportunities for the public - as the new creators and distributors of independent content - but it has also spurred traditional copyright stakeholders, such as the recording industry, to call on governments to rein in control and regulate the digital realm. Digital material is easily copied and distributed through the Internet, and copyright owners see the advance of technology as a threat. The content industries want governments to respond by restoring their control over content, but this would come as a risk and detriment to emerging competitors and public freedoms in the digital age. In the digital environment, for example, content companies can use so-called "digital locks," or technological controls, to restrict access, copying and certain uses of digital works, and argue that these technological controls need to be protected by copyright. Governments are faced with difficult decisions. Their traditional stakeholders, the content