Changing Canada's tune on copyright law

Share

Casey Chisick, a leading intellectual property lawyer, needs no coaxing to discuss the impending revival of Canada's copyright debate and the evils of illegal music downloading.

But he does needs to be cajoled to sit down and back up his wife on piano, protesting that he hasn't put fingers to keys in five years. It's not hard to see why he might be intimidated: His wife is Juno Award-winning vocalist Sophie Milman, whose sultry standards have made her a bona fide international jazz star at the age of 27.

The impromptu midday jam session in a deserted corridor of Toronto's Royal York Hotel was arranged for the benefit of a Globe and Mail photographer, who snaps away as the couple launch into a bouncy version of My Baby Just Cares for Me , made popular by Nina Simone.

Despite his reluctance, Mr. Chisick, 35, acquits himself well on the keyboard. The Winnipeg-born lawyer, a partner at Cassels Brock & Blackwell LLP, is not just another pinstriped Bay Street billable-hours machine. He is a multi-instrumentalist who used to have his own klezmer band and has long been a jazz promoter (serving as executive producer on his wife's last album).

The tune stutters and stops as the couple bicker good-naturedly about a misplaced chord. In an interview later, they make it clear there are two things they agree on: a shared passion for music, and a shared belief that Canada must update its antiquated copyright laws to ensure musicians get paid in the digital age.

It's a long-running debate, pitting artists, record companies and the like against a new class of Internet companies and consumers who keep finding ways to download copyrighted music without paying.

And it is a debate that is about to heat up again. Other countries have updated their copyright regimes, but Canada's attempts have sputtered, earning it a spot on the United States' copyright watch list. Now, the federal government has promised to unveil another new copyright bill this spring.

"We are lagging behind, no question about that. Fairly or not, Canada is constantly being placed on intellectual property watch lists as being a piracy haven," Mr. Chisick said, adding that such extreme characterizations have been overstated but arguing that Canada has a lot of catching up to do.

For example, Canada has not yet implemented the provisions of the World Intellectual Property Organization treaty, signed way back in the digital dark ages in 1996. This would require Canada to give some sort of legal force to the current practice of "locking" DVDs and other media to forbid illegal copying.

While comprehensive reforms are said to be coming, both Mr. Chisick and Ms. Milman strongly favour one smaller idea: a proposed levy on iPods and other music devices, recently suggested in a private member's bill from New Democrat Charlie Angus.

The proposal, already rejected by the Conservative government, would extend the practice of charging levies on sales of blank CDs and cassette tapes, which began in 1997. The money is supposed to go back to the music industry to compensate for home copying, but revenues have been dwindling since the mix tape or CD became a memory. Previous moves to extend the levy to digital music players have been beaten back in the courts. Proposals for the amount it would add to the cost of an iPod have ranged from $5 to $75.

Mr. Chisick, who has represented the music business in major copyright fights, acknowledges the levy would do nothing to address illegal file sharing. But it would address the fact that under current law, even the music on Mr. Chisick's computer, copied from his own CDs, is illegal. His wife says Canada's musicians need the revenue, too.

"I know that my music is on a lot of iPods," Ms. Milman said. "... Once you make that record, you want to be compensated, because everybody else is. It's just not fair. Nobody else is asked to do something for free."

The couple, and other Bay Street intellectual property lawyers on the same side of the debate, say opposition to curbing the technology-driven explosion of copyright violations comes from "digital libertarians" who believe content on the Internet should be free. And they single out University of Ottawa law professor Michael Geist ("he who shall not be named," joked Ms. Milman) as Canada's leading exponent of this point of view.

In a phone interview, Prof. Geist - a prolific blogger, Toronto Star columnist and internationally regarded expert on copyright issues - rejects what he says is the oversimplification of his views by intellectual property lawyers.

"It speaks to someone who is putting out rhetoric rather than reality," he said. "Frankly, if you read any of my stuff … I think it hardly can be characterized as someone who is either anti-copyright or anarchic, or desires to see the end of copyright, or even [argues]that everything wants to be free."

He rejects the idea that Canada is a "pirate nation," saying current laws allow the recording industry to go after so-called BitTorrent sites that allow illegal downloading of free music and movies.

The new copyright rules, he said, must strike a delicate balance, recognizing "reasonable consumer expectations in the digital era." For example, consumers shouldn't be nailed for breaking "locked" DVDs or other media if they are merely making backup copies for their own use, as they are already allowed to do with computer software.

Prof. Geist does not support a levy on iPods.

"I think, conceptually, it's not a bad idea. But there are problems once you get into the details," he said, adding that he believes consumers pay for the right to transfer CDs onto their own iPods when they buy them. "… To me, the current levy represents a bygone era."

Back at the Royal York, Ms. Milman is not optimistic that the federal Conservatives will stand up for artists in the new bill.

"I mean, we have a Prime Minister who considers artists elitists," she said.

She and Mr. Chisick, whose marriage last year at the King Edward Hotel in Toronto combined an Orthodox Jewish ceremony with the music of Stevie Wonder, say they will keep up the fight.

But they also plan to play some more music together. "He's got amazing musical instincts," she says of her lawyer husband. "He can read a chart like it's nobody's business, and write one."

And, she adds, Mr. Chisick is a whiz at securing the rights to the songs she wants to sing.