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

CCA Bul­letin 15/10

 

June 3, 2010

 

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.