CCA Bulletin 15/10

June 3, 2010

Amending the Copyright Act: What’s in it for Artists?

Analysis

Yesterday, the Conservative government tabled for first reading in the House of Commons Bill C-32, an Act to modernize the Canadian Copyright Act. This much awaited piece of legislation has been the object of speculation and concern from both sides of what has been, and will no doubt continue to be a hot public debate.

The document has 65 pages of references for changes to the current Act and deciphering all of this information has already started in various offices across the country. Some amendable deficiencies have already been identified by both sides of the great divide between copyright holders and copyright users/consumers. C-32 is the most recent attempt – and the third one in five years - at bridging this divide, for at least five years. One of the most interesting aspects of C-32 is that it makes for mandatory quinquennial revisions of the Copyright Act.

The main purpose of C-32 is to make Canada compliant with the 1997 World Intellectual Property Organization (WIPO) Internet Treaties, and as such, has been generally welcomed by the copyright holder community, especially in the video game, music and film industries. It also aims at hopefully striking an acceptable compromise between the various camps. However, it is already evident that some work still needs to be done to satisfy everyone equally (and if possible equitably), and this will be the preoccupation of all interest groups in the upcoming Parliamentary process.

The fairly unanimous reaction on the artists' and performers' side is that this bill does nothing to support Canadian creators, making private copying legal without any form of fair compensation. Within minutes, ACTRA and AFofM, on behalf of actors and performers, stated that:

"(We) have been calling for a made-in-Canada bill that balances the ability of Canadians to enjoy creative content wherever and whenever they want while making sure creators are compensated.  However, the new bill leaves creators out in the cold by legalizing format shifting and private copying without building on existing royalty systems so that income flows to artists.”

Similar strong reactions have come from Québec’s Union des Artistes, copyright collectives and Bloc Québécois and NDP Heritage critics Carole Lavallée and Charlie Angus. The need to compensate artists for private copying is even supported by the Québec Consumers’ Association.

The recourse to digital locks, for which the US and the music majors have been lobbying hard over the years, is however far from being welcome by all. Artist organizations say that digital locks will not give their members any additional revenue. The NDP critic has come down strongly against the criminalization of private copying through the digital locks imposed by C-32."The only rights you will get under this bill are those that U.S.-based entertainment concerns decide you get," said Angus.

The Bill also includes provisions targeting copyright infringement. These would help identify pirating sites, such as torrent trackers. When informed by a copyright owner that someone is illegally downloading material, an Internet Service Provider (ISP) would now be required to forward a notice to their customer and keep a record of that correspondence for use in any future court case.

On the other side of the divide, the “users’ right” camp welcomes a number of changes such as the provisions that legalize the current timeshifting and format shifting of legally acquired copyright material. Also welcome is the clarification concerning the responsibility of ISPs and the fact that contrary to its predecessor Bill C-61, the new Bill introduces a distinction between personal pirates and those operating on a commercial basis. Bill C-32 would downgrade the penalty for individual copyright violation from a $20,000 maximum penalty to $5,000.

As was to be expected, expanding the notion of fair dealing has been received with tepid enthusiasm by the users camp, who feel it does not go far enough. The current law permits copyright material to be reproduced only for research, private study, news reporting, criticism and review. To those exceptions the new bill would add back up copying, education, parody and satire. However, the Canadian Association of University Teachers, for one, considers the Bill to be a step backwards for the education community.

Another possibly controversial provision – and apparently a world premiere - concerns allowing the creation of a mash-up. Creators would be allowed to take existing copyrighted material, edit it, and create new material. However, the proposed law sets out several important exceptions, including that mash-ups be done for non-commercial purposes and not harm the reputation of the original artist.

The main flaw of Bill C-32 from the users’ perspective remains that it gives ultimate supremacy to the rights holders by empowering them to enforce digital locks if they so decide. In his blog, Michael Geist notes:

"The IP rights holder always wins. This represents market intervention for a particular business model by a government supposedly committed to the free market and it means that the existing fair dealing rights (including research, private study, news reporting, criticism, and review) and the proposed new rights (parody, satire, education, time shifting, format shifting, backup copies) all cease to function effectively so long as the rights holder places a digital lock on their content or device.” 

This remains a tricky issue indeed: will this encourage music companies, video companies and broadcasters to slam the locks on everything? Will it mean that transferring legally acquired music from a CD to an iPhone via a computer will be criminalized if it involves breaking a digital lock? Is the government taking away with one hand what it grants with the other?

A majority of Copyright holders have a remedy for that particular issue: extending the Private Copying Levy to all support platforms, a position the CCA supports. With the government adamantly considering the Private Copying Levy regime as an unfair tax on consumers which should be allowed to become obsolete with the penetration of new digital technologies, the proponents of the levy as a fair way of balancing rights and interests can only count on the Opposition Parties to introduce amendments to Bill C-32 in this respect.

The government’s suggestion to speed up the process by having a parliamentary committee hold hearings during the summer has been coolly received, not only by the Opposition but also by interested parties who think that this piece of legislation deserves good and thorough scrutiny. The government’s suggestion may be related to its eagerness to keep the free trade negotiations with the European Union moving as fast as possible. The EU has made it abundantly clear that conformity of Canadian laws with the WIPO treaties is one of the fundamental conditions for an agreement.

Tell me more

According to the Communiqué on the Department of Canadian Heritage website, the legislation is “a key pillar in the Government's commitment from the Speech from the Throne to position Canada as a leader in the global digital economy.” The Act is meant to protect and create jobs, promote innovation, and attract new investment to Canada. Minister Moore adds that this Copyright Bill “offers a common-sense balance between the interests of consumers and the rights of the creative community.” Obviously, this is an opinion which is not shared by all.

More specifically, the Act’s objectives are:

 What can I do?

If you care about the production of quality Canadian cultural products and about artists receiving fair compensation for the use of their works, you should tell your MP, particularly a member of the Liberal Party, that it is important to include the Private Copying Levy in the legislation and to extend it to all electronic platforms.

What are your thoughts on copyright reform? Join the discussion and comment on our blog.