Tuesday, May 17, 2011

Copyright in the Cloud

“The Cloud”.  For those who keep up with tech this term is nothing new.  For those who do not, “The Cloud” or “Cloud Computing” refers to web based software and online data storage.  The growing trend in computing today seems to denote a shift away from hard disk storage and software to this new online framework.  
Three of the major players- among others- in the tech space are harnessing the power of the cloud to offer web based music player and storage services.  On May 10th, Google unveiled its new online music storage service at the Google I/O conference.   Amazon has already released their “Cloud Player” and Apple is reportedly in the process of coming out with their cloud based music offering.

Though these services are not and likely will not make it to Canada in the short term, the question beckons as to whether or not they would present copyright issues here.  Leaving out the obvious distribution licensing issues, the current Canadian Copyright Act does not allow for format shifting (the transferring of a media from one format to another). 

The format most widely used to encode digital music is without a doubt the MP3.  So if the music is uploaded in MP3 format there is no issue.  However, not all music files are MP3’s.  WMA, AIFF and FLAC are just some of the other file formats in which people’s music are often encoded.  In this event, the service provider- in this case Google Amazon or Apple- would be forced to convert the file type into MP3 format to render it compatible with the player. 

This would ultimately mean that the service providers must acquire a publishing license to properly operate the service.  Such a consideration might appear to be minor; but in reality it may prove to be a larger barrier to entry than one would think.  Needless to say a publishing license would be more costly.  Also, the music purchased from the provider would always be in MP3 form meaning that any format shifting that need occur would only concern music files the person uploaded from their existing library.  Therefore, the additional cost of licensing would be a bullet the service providers would have to take without seeing a profit directly related to it.  These providers will likely swallow this cost as a necessary evil.  After all, web based music services become much less attractive if the consumer cannot upload the music they have previously acquired.

The now defunct Bill C-32, Canada`s most recent attempt at modernizing our contextually archaic copyright law, provided for a “consumer exception” that would allow format shifting for private use.   It is unclear however if that would include this type of activity.  The provision was originally conceived to allow consumers to transfer their media from one platform to another (i.e. from a CD to an IPod).  In this case, it would be Google or Amazon executing the format shift.  Furthermore, one of the requirements in the Bill is that the original copy not be infringing.  Therefore, if the service provider is caught format shifting their client’s illegally downloaded music, the provision would not apply and they could feasibly be held liable for secondary infringement. 

It is clear that tech is going the way of the cloud.  It will become increasingly difficult for Canadian policy to ignore that fact.  It is somewhat embarrassing that Canadian copyright law has not been modified since 1997.  That’s two years prior to the birth of Napster!  One thing is certain. Further neglect to the modernization of copyright in Canada will have the undesired effect of leaving us in the dust of technological progress; an outcome most Canadians are probably unwilling to accept.

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