In a struggle to be happy and free

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Hyperion Records

I wrote to Hyperion Records today. I’ve meant to do this for a very long time:

From: Rick Pali <>
Subject: Customer feedback
Date: May 29, 2015 at 2:18:40 PM EDT

I just wanted to write to tell you that I enjoy not only the music you offer to the public, but your customer service. Good service is so incredibly rare that I have to comment on it.

For example, with record companies locking down everything in sight, you still offer PDF downloads of CD booklets for all of your releases from your site. One doesn’t even have to register! I really appreciate being able to look at the booklet before buying, and if I choose to buy the CD, I can rip it and download the booklet to appear alongside the files.

I also appreciate your archive service. That you offer downloads of out-of-print titles, or you will burn me a CD‑R copy for a reasonable price, is something that speaks very highly of your being willing to treat your customers as you’d wish to be treated in their place.

I’ve never used the archive service, but I appreciate your taking an extra step to make it available. I take advantage of the booklet downloads all the time.

The music is the main reason, but these extra services put you a step above. Thank you!


See? I don’t write to companies only when things go wrong. It’s just unfortunate that things so seldom go right. When they do however, I believe it’s important to say so.

Hyperion logo courtesy of Hyperion Records Limited

Upsetting the balance

Copyright protection is an artificial construct. Without copyright, new artistic creations would enter the public domain and become part of our culture as soon as artists release their works. With copyright protection, the government allows artists to enjoy exclusive control of their creations for a set period to encourage their creativity. Then, when the copyright period on their work expires, it enters the public domain so anyone can build upon it to enrich our culture. You can look at it as a compromise. The public is not allowed to take full advantage of new creations to encourage artists to create more. It’s good for both the artists and the public, as long as it maintains a balance between the interested parties.

In the past, copyright has worked differently than it does now. Under the Copyright Act of 1842, copyright protection lasted for the life of the creator plus 7 years, or 42 years from publication (whichever was greater). The Copyright Act 1842 was a British law which affected Canada, since Canada was a British colony at the time. After Confederation, Canada enacted its own copyright regulation, the Copyright Act of 1875, which change the period of protection to an initial term of 28 years, with option to renew for another 14 years.

Today, things are quite different. The terms of copyright protection depend on the artistic work. For example, if you write a song, copyright will protect the song for the length of your life, plus 50 years. If you record the song and release it, the recording, until very recently, would enjoy copyright protection for 50 years from the recording date. Why the song itself and a recording of the song have different terms, I don’t know. In once sense, it doesn’t matter because while the recording is protected for only 50 years, the recording is merely one performance of the song, and the song is protected for the artist’s life, plus 50 years. Once the first 50 years expires, the recording falls into the public domain, but the song (the composition itself) is still protected.

Earlier I said that until recently, a recording enjoys copyright protection for 50 years. This is because in the latest federal budget, the Conservative government extended copyright protection on recorded works from 50 years to 70 years. Certainly copyright issues are not at all related to the budget, but this government is absolutely in love with omnibus bills, in which they include all sorts of unrelated items in the hopes that comparatively unimportant, but unpalatable items, are accepted because of the higher profile, more desirable items in the bill. This is why a copyright extension appears in a budget.

But honestly, does a 70-year term of copyright protection really serve the balance for which copyright was created? I’d suggest that it does not. To encourage the creation of artistic works, copyright protection must expire so the artist is encouraged to create new items. It’s not hard to imagine that the bulk of most artists’ creative output occurs after they are 20 years old. Most people don’t live until the age of 90, so a 70 year protection is effectively life-long. If the artist hits it big and has enough money to live on, they need not create anything ever again. This does not at all serve the public.

The first copyright protection in the United States had a term of only 14 years, with a 7 year renewal being an option. Now that would certainly encourage an artist to keep creating new works!

Of course the elephants in the room are the record companies. They’re the ones who want the longest term possible, because they hold the copyright on the artist’s work. Handing them ownership of the copyright is a term of the record contract. For all their belly aching about how the artist needs protection, it’s really their own interested they serve. This clear when you consider the terms of a record deal. The record companies to everything they can to make sure the artist makes as little as possible.

Prime Minister Stephen Harper. He is always ready to help out a business pal.

So here we have a government who extended the copyright term on recorded works. No one saw this coming. There was no public consultation, no debate, and not even any notification that this was being considered. Yet as soon as the government released the budget, literally minutes later, Music Canada (representing Sony, Warner, and Universal Music) posted a press release stating how pleased they were at this announcement. Further, Prime Minister Stephen Harper wrote to Music Canada President Graham Henderson stating that he felt a 50 year copyright term wasn’t sufficient to protect artists, so it would be extended to 70 years. The letter was dated April 11, 2015, the same day the government tabled the budget. All the big U.S. labels had to do is write a letter and ask for the copyright term extension and the Prime Minister fell all over himself in compliance. I’ve written the Prime Minister several times and I can assure you that I’ve yet to even receive a reply, much less get what I want.

In the balance between the artists who create the music and the public who buys and enjoys it, who does the Harper government reward so richly? Neither of course. They shower favour upon the foreign companies who do their absolute best to screw both the artists and the public.

This is the Harper government, at its finest.

Drawing a line

I sent an e‑mail message to Anthem Entertainment:

I read with great interest about CIMA’s demands as presented at the Bill C‑11 hearing. The current bill and even SOPA look like minor changes compared to what CIMA wants.

As a result, I went to to see what record labels were members of CIMA. I was shocked to see Anthem listed among them. CIMA represents you, and unless you speak up for yourself, I have to assume that you agree with the changes CIMA is proposing.

I’ve been a Rush fan since 1980, have purchased all of their CDs and most DVDs, and have seen them multiple times on every tour they’ve had since I’ve been a fan.

I’m hoping you don’t stand firmly behind CIMA in their demands because if you do, we have some fundamental disagreements about the relationship between a record label and those who buy their products. Perhaps an irreconcilable difference.

Either way, I’d like to give you the benefit of the doubt and hear your stance directly from you.



If you know me, you know this is a huge deal. I love Rush, but this may be more than I can accept. I look forward to their response.

Fighting without thought

Our legal and political systems are inherently adversarial. It seems that the political system is too adversarial lately. There are always multiple sides, and they fight to a standstill. That’s fine, but some common sense should temper the fight, which seems an increasingly rare occurrence.

Take what’s going on at the Supreme Court. It’s hearing an unprecedented five copyright cases this week. One of those cases is the basis for my observation of a lack of common sense. In Bell v. SOCAN, the Society of Composers, Authors, and Music Publishers of Canada claims that offering 30 second song previews, the snippets to which you can listen before purchasing music from online music sellers, is not fair dealing. Therefore, the retailer must pay rights-holders when potential customers listen to the previews.

I have never heard anything so ridiculous. The previews are there to generate sales. They are not lost revenue. Research is one of the permissible conditions for using copyrighted material under the fair dealing provision. One listens to a 30 second clip of a song is to determine if one likes it enough to buy, or to determine if it really is the song one has already decided to buy. I’m not aware of anyone ever using iTunes to listen to previews purely for entertainment!

One wonders why SOCAN is going to such lengths about music previews. If they win, online music retailers will simply stop offering previews. In their place, that’s exactly what I would do. SOCAN will get nothing for their effort, and perhaps suffer a revenue drop because buyers are less likely to make impulse purchases without the opportunity to first hear a preview.

Happily, after the first day of the case, the judges do not seem to be buying SOCAN’s arguments. In a report called “The Supreme Court Copyright Hearings, Day One: Fair Dealing Scare Tactics Fall Flat,” Michael Geist states,

Several judges seemed genuinely puzzled at why groups like SOCAN would insist that they were losing revenues by not being compensated for song previews when the previews were helping to generate increased sales. For the copyright community, the answer is obvious — all rights should be compensated. For the court (and likely for many in the public), this situation often feels like double compensation that makes little sense.

Thank goodness. The copyright landscape is already unbalanced enough in favour of the rights-holders. The Conservative government’s Bill C‑11 will only unbalance it further, so these early indications of the Supreme Court judges’ views are only a small victory, but any victory is welcome.

Another stab at the iPod levy

I heard a news story last week that still has me absolutely bewildered. According to CTV News, “Canadian music stars want Ottawa to impose MP3 levy.” This idea was put forth in 2003 and again in 2007, but it failed both times. The idea is that we already have a levy on blank recording media that effectively pays for the music you copy for your own use. People are now using fewer cassette tapes, MiniDiscs, and blank CDs because they’re copying music to their iPods. Because the music industry doesn’t want to see the revenue stream from the levy dry up, they want to extend it to the more lucrative personal music players.

There are a number of problems with the idea, however. The first is ‘sticker shock.’ If you buy a blank CD, the levy you pay is 29¢. It’s a sizable percentage of the purchase price, but 29¢ isn’t a lot of money. The proposal put forth by the CCPC for the 2008 – 2009 Private Copying Tariff included a levy on portable music players in which the levy itself was determined by the amount of memory in the device:

  • 1 GB or less: $5
  • More 1 GB and up to 10GB: $25
  • More than 10 GB and up to 30 GB: $50
  • More than 30 GB: $75

As I write this, the iPod Shuffle comes equipped with 2 GB of storage space and costs $59. Had this levy come into effect, it would cost $84. I’d suggest an increase of 42% is certainly significant. A 16 GB iPod Nano jumps 26% from $189 to $239. The 160 GB iPod Classic jumps 27% from $279 to $354. The 8 GB, 32 GB, and 64 GB iPod touch would become 10%, 24%, and 17% more expensive, respectively.

And don’t forget that these examples don’t include tax. This levy would be built into the purchase price so it would also be taxed. The $75 levy would actually cost you $84.75.

This proposal went nowhere in 2007 for two reasons. The complicated one is because the Copyright Board of Canada has jurisdiction to impose a levy on recording media. Media players are devices rather than media, and the Federal Court of Appeal ruled that the Copyright Board doesn’t have the jurisdiction to apply the levy to devices. The simpler one is that the public was not alone in its objection to this plan. Electronics manufacturers and retailers were all against it, too.

I can’t see it happening, though. Electronic devices in Canada already costs more than the same devices in the United States, despite the near-parity of our two currencies. A 10% premium here is not uncommon. People will not put up with an additional 10% to 40%. If you wanted an iPod Shuffle, would you happily pay $84 in Canada, or would you look into how you might take advantage of the $49 price in the United States, even if some extra charges narrowed the difference? It’s just $35 you say? How about a 64 GB iPod Touch in Canada for $504 or the same thing in the United States for $399?

Add the tax and it’s worse, even after calculating the exchange rate. The price in Albany, NY (the closest U.S. Apple store to me) would be $430.92 USD. Converted to Canadian dollars at today’s exchange rate, it’s $441.54. The same iPod Touch purchased in Canada would be $569.52. That’s $127.98, or 29%, more expensive.

Under the current levy rules, you would be able to buy the device in the United States and bring it back without paying the levy. Granted, the government may start charging the levy at the border if enough people take advantage of the savings involved in a U.S. purchase, but having to do so will highlight how unhappy people would be about such an arrangement. And make no mistake, Canadian retailers would make sure the public understands why this price disparity exists. Thus, the music industry’s reputation would sink even lower in the public perception.

I also don’t understand how the CPCC managed to get 350 Canadian artists to support this idea in writing. The CPCC has collected this media levy since 2000. Their own Private Copying Levy Calculation and Distribution document states,

For the years 2000 – 2009, over $254 million was available for distribution to music rights holders for private copying. To date, the CPCC has distributed over $184 million dollars.

That’s no small amount of money, and must form a considerable compensation to artists for private copying of their work. Right? You’d think so, as I did, but Howard Knopf set me straight in his September 1999 post, “The Proceeds of Canada’s Blank Media Levy.”

On the issues page of the Save the Levy website, the CPCC states,

more than $150 million has been paid to songwriters, composers, recording artists and other rights holders for the copying of their music. This money has been received by over 97,000 rights holders, most of whom would not be able to continue their careers without this revenue. This isn’t money from government, but it is an important source of earned income for music creators — one of the ways they can make a living from the music they create.

Simple division of $150 million among 97,000 rights holders means that each rights holder received an average of $1546.39 over the first ten years of the private copying levy. That’s $154.64 per year, or a whopping $2.97 each week! Further, the amount each rights holder receives isn’t determined by dividing the levy proceeds by the number of rights holders. Rather, the CPCC samples music sales and radio play of music and divides the payout accordingly. So if your sales are low and you receive no airplay, your compensation will suffer. Given the ratio of blockbuster musical acts to those who make little impact, it would be safe to say that most who receive compensation from the CPCC through the private copying levy receive less than the average. And the CPCC claims this payout is how most musicians have managed to continue their musical careers? Pardon my scepticism.

Either the 350 artists who signed the letter are those who are earning far more than the average payout, or they’re idiots. I suspect there’s a mix of both among them.

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