Japan Today

Creative industries get ready for an offensive in copyright war

By Michael Condon

Never in the history of media have so many vested interests, so much money, so many people and such complicated issues converged in one. The music industry, the movie industry and the media — particularly newspapers — are cutting off dead wood and preparing for the last stand.

But are things really that dire? Some would argue that these industries are healthier now than they ever have been. With the spread of information at a never before seen level, pieces of journalism are being read more now than ever, music artists are able to reach a broader audience than ever (some by bypassing the record labels all-together), and movies are being watched by more people in more countries.

The issue is control, and the embodiment of that control is copyright. The music industry is perhaps most illustrative of the issue. While historically artists have arguably lost a large amount of control from the moment they signed their record deals — at least as far as the use of their music, post recording — the record labels kept that control and made their money from the copyright.

Now with the distribution channels disrupted via the spread of the Internet, and with the increased popularity of peer-to-peer file sharing sites such as Bittorrent, industry representatives are struggling in attempts to take back that control.

Currently in Japan, new copyright laws are being debated which could make average users subject to civil law suits from record labels or movie distribution companies. Within the walls of mega-forum 2-Channel and the Japanese blogosphere, debate has been raging over the laws and what they will mean exactly for the average user.

Specifically the outright banning of illegal downloads — music, movies and games being the main points of interest — is currently being investigated by a sub-committee appointed by the central government. Presently, Japan’s copyright law makes an exception in the case of downloads for personal use. But with sales dwindling, particularly in the case of CDs, and peer-to-peer sites firing an unimaginable amount of terabytes across cyberspace, industry representatives are drawing the line in the sand in the battle against the file-sharing onslaught.

Policing the highway

The answer is simple according to some. John Kennedy, chairman and CEO of the International Federation of Phonographic Industries (IFPI), says it is a matter of simply getting tough on infringers. “It’s a very simple proposal — you have a law and you enforce it,” he says.

Kennedy, a former president and COO of Universal Music International, who received an OBE for his work on Live Aid, has spent 30 years in the music industry and has seen it evolve during that time. Kennedy represented a swathe of successful artists during the ’80s, including Wet, Wet, Wet and the Stone Roses. He also represented Capitol Records, best known as the home of Oasis.

The industry veteran says he believes a large increase in resources will not be needed to govern the Internet — warnings and enforcements will just need to be carried out in a similar way to any other law. “People call the Internet an ‘Information Super Highway.’ Well, like any normal highway, it can be governed. If someone is speeding you give them a ticket and in extreme cases you take away their license.” But how about finding them? “People sit in their rooms and think they are anonymous but they are not — their IP address says exactly who they are,” says Kennedy.

Back inside 2-Channel, Daisuke Tsuda, IT journalist and member of the sub-committee, answered questions by concerned users. Tsuda said that while there was no criminal penalty and users could not be arrested, they could face a civil suit. While the revenue from digital downloads continues to grow, the amount is unlikely to make up for the drop in CD sales. Meanwhile, Japanese music industry representatives have moved to protect the lucrative "chaku uta" (ringtone) trade. With middle and high school students continuing to download illegal "chaku uta" like crazy onto portable USB drives and SD cards, profits are massively under threat.

So far, the review sub-committee has agreed that downloading for personal use should be made illegal while watching streamed content via sites like YouTube and Japan’s hugely popular Nico Nico Douga video site, would remain legal.

Rethinking copyright

But the debate raises the larger question of what a copy actually should be defined as and whether the concept of copyright as it exists today is outdated. The very core of the Internet is essentially a copy machine, with information being duplicated for different users to view or use.

Media futurist Gerd Leonhard says that in a globally networked world, with an expected 3.5 billion mobile users and Internet speeds increasing exponentially within the next two to four years, the traditional Western concept of exclusive copyright must be reviewed. “It is the purpose of copyright to generate sustainable and growing revenues for the creators, not to prevent new uses of their works that may eventually result in those new incomes. He believes that in the future, “many of these models will be more like flat-rated or bundled access models, rather than unit-sales based models.”

Solana Larsen, the managing editor of worldwide blogosphere monitor Global Voices Online, which exists largely through the use of Creative Commons’ licenses, says it is time for a rethink. “Technological advances have always challenged people’s interpretation of copyright law. I mean, it was the printing press that made copyright necessary in the first place. Pretty much every time there has been innovation in communication or distribution technology, there has been some need for reinterpretation and adaptation.”

“With the Internet, there is a new degree of transparency and openness, which first of all makes it difficult to hide when you reuse people’s work, but it also enables new methods of accreditation and profit sharing that content providers are beginning to capitalize on. There are other ways you can profit from content being shared and reused that are not always immediately monetary.”

A recent case involving Google may help provide a blueprint for content creators. In October, Google settled a dispute with authors and publishers over its scanning of 7 million books for digital versions of printed material. The company paid $125 million to publishers and authors and will, from now on, provide a percentage share of the profits from ads and downloading fees. Under the agreement, Google would receive 37% of revenue while publishers and authors would get the rest. The settlement could pave the way for similar agreements within other industries.

At the moment, the debate within industry — both from content creators and intermediary companies alike — is split into two groups: those who wish to enforce existing laws or create new ones to enforce stringently, and those who wish to remold the laws and at another level, the concept of copyright itself.

Creative Commons CEO Joi Ito, who also founded PSINet Japan, Digital Garage and Infoseek Japan, advocates an adjustment of copyright to match the new technology: “In the analog world, copyright was primarily a method of preventing commercial exploitation of one’s creative works, since the average person did not have the means to “copy” things and copies were typically made by pirate publishers. Copyright prevented people from building businesses to commercially exploit creative works in a way that would reduce the incentive for an artist to create,” Ito says.

“The problem with the digital world is that all of the things that were never in the domain of copyright, such as selling a book, sharing a book, reading a book, etc, were things that you could do without restriction. Now with computers and the Internet, nearly every kind of use of content comes under the regulation of copyright,” he says.

Ito continues, “While it is important to protect copyright and the incentives that copyright (and intellectual property) provide, it is important that we do not prevent many of the basic things that people want to do with content or prevent some of the potential new ways that people will be expressing themselves and sharing this expression.”

Ito says that revenue within the music industry will increasingly come from other avenues rather than the unitary selling of music recorded by the artist. The web entrepreneur pointed to the Nine Inch Nails’ latest release "Ghost I IV," a 36-track instrumental album, part of which was released for free from the band’s website.

Fans could also download a 40-page PDF of photography which formed a visual accompaniment to the music. The album was also released in various forms, from a $10, 2-CD set to a $300, limited edition set. Consequently, they made $1.6 million in one week from album and merchandising sales via the website and Amazon.com. The band’s singer, Trent Reznor, said he was able to bypass record companies, paying only $38 to sell his album via Amazon.

The album was released under a Creative Commons (CC) “Attribution Non-Commercial Share Alike” license which effectively allowed anyone to use or rework any material from the album for non-commercial purposes, as long as they gave proper accreditation to the artists and as long as the work was released under an identical license.

A new model

The Creative Commons project was created as an alternative licensing system to address the issue of total control verses exploitation of material. While CC has been met well by artists and other content creators, its enforceability has often been queried.

A decision in August this year, however, went some way to validating the licensing system. The Court of Appeals for the Federal Circuit (essentially the Internet Protocol, or IP, court in the U.S.) upheld an open source copyright license, explicitly pointing to Creative Commons.

The court determined that CC licenses are copyright licenses despite the fact they may not be contracts. If users fail to honor the license agreement they become copyright infringers. Global Voices’ Larsen, meanwhile, says she believes Creative Commons is a valid alternative for copyright law. “Most people on the Internet who copy and paste text or images, or make copies of music and send them to their friends, only do it out of excitement for the content. It’s actually a positive thing. Why would you try to shut down your biggest potential distribution channel?” she says.

“Creative Commons addresses the politics of copyright, which is that some very powerful corporations and government bodies have huge financial interests in deciding over laws that were initially developed to protect individual content creators. They simply don’t have the best interests of creativity, science or humanity at heart,” she says.

Futurist Leonhard says the key to making money in a post super-connected world is to embrace the concept of losing control. He believes that “a continued loss of control over IP and copyright and most other measures of restrictions is absolutely inevitable; and in fact, the less control we will have the more new revenues will surface.”

Leonhard believes that “The future of creativity, content and media is bright, as it is the human creativity and its embodiments that will be even more valuable in a world of ubiquitous access and huge growth of output. It is the value and dollar system and logic that we need to rebuild and adapt — and the law is, of course, there to support this, and will therefore be adapted. This process is not new, just more drastic since the Web is often removing many old ways to get money out of scarcity while not yet offering the same profit in a plausible new way yet. This new logic needs more than 3% of the global population on broadband, and always-on, to generate increasing revenues from those new ideas. Another 24 months and we should have a much better take on this.”

Before this happens, new laws will likely be in place in Japan. But whether a new adaption of the existing laws will be required, or whether a whole overhaul of the concept of copyright will move with the proliferation of the technology, is a topic which will continue to be debated across the forums of 2-Channel for some time.

Michael Condon is the editor-in-chief of Japan Inc magazine (www.japaninc.com).

© Japan Today

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Copyright is being abused by large, greedy corporations: it's time the period of copyright was restricted to 10 years, instead of the 70 - 100 years it is now. The penalties for infringing copyright should be limited to the value of the work, determined by the minimum price the work is sold for anywhere in the world. For example, if a company sells CD's for $30 in Japan and $3 in China, the value of the content must be $3, less the cost of materials, shipping etc, so probably $1 or so should cover it. If you want Y200 for a single, DRM restricted, low bit-rate track from iTunes you aren't going to get it, at least not from me.

It's hard to see how "downloading for personal use" can be made illegal, whilst streaming content isn't. Suppose you buffer the entire stream before viewing it? Will that be illegal? The buffoons that make the laws in this country obviously haven't thought things through and are doubtless receiving bribes from the media corporations.

And isn't there a levy on blank media to compensate for copying? If copying is made illegal the levy should be removed.

In the long run, the corporations have no chance of making money by criminalising much of the population. They should cut spending on hype and marketing gimmicks, cut prices and innovate, instead of legislate.

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Any laws that are enacted by the music/entertainment industry regarding this will get overturned during the first lawsuit. Copyright is merely to guard against the commercial gain by others of another person's work. In a sense, if I added 5 lines to "The Great Gatsby" and called it "The Greater Gatsby", and had it published for sale, I would be guilty of copyright infringement, because I profited off of Fitzgerald's work. It is not copyright infringement for me to buy the book and later give it to a friend to read, which is essentially what peer-to-peer can be classified as (albeit to "friends" that I have never met), as long as no profit is made by the lender. A second hand bookstore, which does not provide royalties to the author would be on shakier legal ground than peer-to-peer. If the entertainment industry wants to deem sharing/borrowing as copyright infringement...well....good luck to them on that.

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Don't justify stealing music by saying the music companies are greedy and make millions and get what they deserve. At the end of the day the artists are hurting, forget selling direct unless you're already pre download famous like Matchbox 20 or Prince or whatever this will NEVER work for anyone else, download sales are TINY, you will sell no more than 200 downloads for any song as a popular unknown. Sure there are some exceptions on youtube and such but for 99.99% of the market your screwed for making a living from music.

Why don't you go down to the gas station and steal some gas? The oil companies are ripping everyone in the world off yet no one steals gas do they? They make millions of dollars a second! Go steal gas the gas companies can most certainly afford it!

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Scrote has a point "Copy Write" is being abused. The original "Copy Write" recognised that nothing is actually new but evolved from past work. It gave interlectual rights of recognition, to those who used past work to create newly defined knowledge from it and allowed makers of an inovated product time to market that product and recoup their investment in it. Now every company tries to claim "Copy Write" on every thing they produce even when their products are just copies of old stuff already forgotten in the public domain. "Copy Write" should return to its origins and only allow companies time to recoup investment and have a marketing edge for a short time and not allow them to claim existing knowledge which is always present as their property. As for Music and Art; music and lyrics have always existed each time you play or sing, some one has played or sang part of the tune or lyrics before you did. Just because you don't know what part you are repeating does not justify you claiming it as your personal property.

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The issue is control, and the embodiment of that control is copyright.

No, the embodiment of control WAS copyright. Now the embodiment of control is distribution. Ironically, record companies once used this to their advantage. Now it's biting them in the butt.

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What did musicians do to earn a living before technology allowed their work to be recorded and distributed? They were paid by the performance or by the work. When a work was commissioned, the composer did not get paid for every performance.

Artists and their distributors have been on a technology-provided gravy train for a long time, but now they have to actually keep working to earn a living like everyone else (and artists who have been working in such a manner for centuries). Essentially, people are crying about not being able to make a killing off of a limited creative output.

While I don't think anyone should profit from the work of another, I think the long tendrils of copyright shouldn't allow people to abuse people who are essentially their patrons so that they can get paid for the same job until they pass on.

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Essentially, people are crying about not being able to make a killing off of a limited creative output.

While I don't think anyone should profit from the work of another, I think the long tendrils of copyright shouldn't allow people to abuse people who are essentially their patrons so that they can get paid for the same job until they pass on.

That's quite true, but (oh, how I love conjunctions that agree to disagree) copyright is, in essence, there to protect people like me. I am a writer, a single project takes up to year to complete. By the time you are smoothing out draft number 5, and you haven't had an income for twelve consecutive months, you really are grateful for the royalty-check that is ensured by your previous project's COPYRIGHT. That way you can get enough fuel in your car to get to that meeting with those sharp-toothed execs that want nothing more than to maximize their own profit... but all hail! You, the poor, literally starving writer, can wave copyright in their faces and say "No, it's mine. You want? You pay!"

And that is what feeds you until next year.

Although your arguement holds true for many "Arts" and the Distributers thereof, I would say generalizing, and then altering the nature of copyright across the board, will kill many arts. (Mainly through famine)

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The ghost is out of the bottle and you won't get it in again. Technical advances have made it possible that anybody can easily distribute content, breaking up the distribution monopoly which the "creative industries" have based their business model on. There are two possibilities how to try to enforce the traditional model: total control of the content use or total control of the content user.

Total control of the content has been tried by various implementations of Digital Rights Management. So far, all of them have failed due to strict limitations of use as opposed to traditional uses or because they failed to provide total control because some creative users found ways to circumvent them and making them available again without the usage limitations of DRM.

Because DRM has been a failure at large and companies cannot control the distribution any more, they are now turning to the second way, total control of the user. You can easily write a law which prohibits illegal downloads, but in order to enforce it, you have to control and check every bit the user downloads. Probably due to encryption and/or steganography even that won't be enough, you would have to control directly what users see on their screens, hear from their loudspeakers etc. Whichever way you turn it, it will undermine the very fundaments of a free society.

I'm sorry for those artists who fail to make a living within the new environment, but between copyright and freedom, the choice is clear. Except some niche applications in inter-company business maybe, copyright is dead.

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There will always be thieves no matter how one deal with copyright issue. Even in the ad industries, you see big-shot Creative Directors ripping ideas off from unknown creatives and claiming as their own. Submit to a competitive sites with your original ideas, and within the next few months, you see your ideas everyone with no due credits for you. Get used to it and earn how to protect your ideas and share with the right people as motivated to make it happen as you.

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Downloading movies is not theft, its a copyright violation. But there will always be thieving corporations who attempt to turn back the tide of human progress rather than adapt their business model to changing times.

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Quite a lot of rationalizing going on here. A lot of people want something for nothing.

As a photographer, my original, creative work is owned by ME. If you want a copy to stick up on your wall, you're free to pay me for it. If you choose to give it to someone else, that's fine, because you're not creating another copy. But if you take it from me without paying for it, you've stolen it. If you copy my work without permission and give it or sell it to someone else, you're in violation of copyright law and you're depriving me of income. And trust me, someone in my position can't afford to take that lightly. I'm not a "thieving corporation," I'm just a guy trying to make a living.

If I continue to lose income due to rampant illegal copying of my work, my own creative stuff winds up being no more than a hobby and I'm forced to make a living solely from contract work, in which I'm paid up front and my client assumes all rights in what's commonly known as a "pay for work" arrangement. No more headaches for me - all the money I'll ever see for that work is already in my pocket. My client is now the one who has to worry about those images being stolen. And rather than spending a significant portion of my time creating art, I'm reduced to shooting beer bottles or buildings or (shudder) creating stock images of attractive, ethnically diverse people standing around a generic flip chart in a brightly lit generic office. The horror. The horror!

Downloading movies is not theft, its a copyright violation.

100% WRONG. If you take something of value for which payment is expected, and you don't pay for it, you have stolen that thing. It's a copyright violation if you use (for publication, for example) or distribute something when you have not obtained the right (license) to do so. This kind of smug but ultimately clueless frame of mind is just another example of how little some people understand about the legal and moral rights of content creators and copyright owners.

Go ahead and rationalize all you want if it helps you sleep better at night. Stealing is stealing.

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when did copyrights become commodities?

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JohnBecker As a photographer you should know that designs are intellectual property and that includes fashion and architecture. If your model is wearing clothes you should be paying royalties to the designer. Same with buildings, the design is intellectual property, you cannot publish images of a building without the architects permission and if you get any money you must pay royalties. I don't know what you photograph but even the person that designed the glasses the model is wearing should be paid by you if you sell a picture. Sell a picture of a bridge; pay up, take a picture of a pretty girl in an onsen; pay up, take a picture of anything that you did not design; pay up. Why? Because if you are selling images of the Tokyo Tower you are stealing money out of the pocket of the design owner that is trying to survive by selling postcards. And those bosai trees you photograph are intellectual property as well.

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Sell a picture of a bridge; pay up, take a picture of a pretty girl in an onsen; pay up, take a picture of anything that you did not design; pay up.

That's nonsense and a very strict interpretation of copyrighted IP. You do NOT need a building owner of bridge designer's "permission" to take photos of and profit from pictures taken of public buildings from public places.

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Well, actually just as one needs a model release, one needs a property release if not by law in all countries, than certainly morally because architecture is indeed intellectual property. If anyone is selling images without a property release it is pure and simple theft and they should be considered a criminal and locked up; no different that selling bootleg copies of a CD.

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If anyone is selling images without a property release it is pure and simple theft and they should be considered a criminal and locked up;

Copyright law in most countries would beg to differ.

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Presumably then Google Street View is one giant lawsuit waiting to happen?

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Oh, so you agree that downloading music for personal use does not violate copyright law in Japan and that people who do are not criminals?

But under most current copyright laws in every country architecture is intellectual property. Go ahead and sell a picture of The Atomium in Brussels or the Transamerica Building in San Fransisco and you will get your AXX sued off.

Bridges are exempt from US copyright law but morally selling an image of one is the same as selling bootleg CDs.

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Yes that is a good point about Google Street View. Since Google is making money by selling the images, Google is "stealing" intellectual property. Since Japan is considering changing copyright laws, Japan needs to consider all intellectual property rights not just those of the music business. Taking an image for personal use should never be considered copyright violation and the same for other intellectual property like making a copy of a book for personal use or music or movies.

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But under most current copyright laws in every country architecture is intellectual property.

The blueprints and design are IP, but taking photos is not protected and in many countries it's specifically stated.

Go ahead and sell a picture of The Atomium in Brussels or the Transamerica Building in San Fransisco and you will get your AXX sued off.

No you won't.

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Google is "stealing" intellectual property.

If so, they would've been sued long ago for copyright violaiton and Street View wouldn't exist. Think about it.

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Unagidon, you don't know what you are talking about. If you sell an image of your daughter playing soccer and the adidas logo is visible you can be sued. But just taking that image for your own use and having it on your ipod should be legal. I do not believe that people are thieves for having a picture of their daughter's soccer uniform on their ipod. Downloading an image of a soccer uniform with the adidas logo should not be made illegal or considered illegal or immoral. The same for music and video. If I record a movie it should not be illegal. If I rip a DVD, convert it and put it on my ipod it should not be illegal. If I rent a CD and copy it for personal use it should not be illegal and is not stealing.

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Unagidon, you don't know what you are talking about.

I was talking about photographing buildings (nad it's lack of illegality) in response to your original post on that topic, not about the photographic tribulations of soccer moms, which is irrelevant to the orignal discussion I thought we were having.

Moderator: Exactly. Readers, please stop going around in circles.

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The Transamerica building is copyrighted and selling images of it is against US copyright law.

Moderator: No further discussion on buildings or overseas copyright laws, please. The topic is about Japan.

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Should it be illegal to download a copyrighted image to use as a screen saver on my PC at home? I bet the photographer above has in some respects used the IT of other photographers but considers music down loaders to be thieves. If a photographer sees an image in a magazine and then copies the lighting effects in his or her own image it is the moral equivalent of downloading music.

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A quick search on flickr for the CN Tower (copyrighted structure) produced 75 307 images all of which can be downloaded to my computer by one simple right click. I don't think I am a thief for downloading all of them for personal use.

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Copyright is the RIGHT TO COPY, if you own the RIGHT TO COPY (ie. copyright) then you can copy it, distribute it and sell it. But if you don't you are not allowed to copy it and you are stealing it and breaking the law.

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"Presently, Japan’s copyright law makes an exception in the case of downloads for personal use."


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Copyright is the RIGHT TO COPY, if you own the RIGHT TO COPY (ie. copyright) then you can copy it, distribute it and sell it. But if you don't you are not allowed to copy it and you are stealing it and breaking the law.

Ok. The next logical steps are to control these:

-- Accidentally watched the movie /brain made a copy/ - must pay;

-- Lend the book /memorized it/ - must pay;


R.M.S. maybe a bit extreme but his "The Right to Read" definitely has a clue.

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don't know why Japan is following the USA style model where even 9 year olds are sued. Japan has a long history of cooperation rather than stifiling innovation technically, why should copyright/copyleft be any different? You make a product but if you redistribute for commercial use, then you pay. Owner has the right to charge for everything or just commercial use. Most don't do this as ie: music is better when people hear it. If they hear it they'll go to concerts. Canadians pay a tax on media, that tax goes to musicians who get a lot of air time on radio or other media. If Napster was in Canada it wouldn't not have been sued, as the taxes mean than people paid. The USA is not an ideal or even welcome example. A tax on media provides the middle road on redistribution to the artist, not to the mega-corporation, which is why they hate it.

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it's called SOCAN here... Society for Composers Artists and Music Publishers of Canada : www.socan.ca

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JohnBecker, while I agree with what you write, you won't have much of a chance of enforcing your rights. In the case of commercial use of your photos you may still have a certain control and visibility over copyright infringements, but in the case of private use you have no chance except for a few cases where users are naive enough to put your photos on their websites. But what do you want to do in the cases where private users just download and hang your photo on the wall? And this points to the main difference between your situation as a photographer and the one of musicians or film makers. The latter one's audience are primarily private consumers while you still have a chance of making your living with business customers. This is what I wrote about niche applications. Copyright for private use is practically dead though, and creating stricter laws without being able to enforce them is nonsense.

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I agree with Leonhard. I think by allowing the freedom, and particularly in reflection on music, the emphasis more on performance, and live, we would all be able to experience and turn to as a way of developing the interest experienced through the freedom.

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