Copyright: Opposition Parties First on the Ice!

CCA Bul­letin 8/10

March 18, 2010

Just the facts

In both the Throne Speeches of Novem­ber 20, 2008 and of March 3, 2010, the Con­ser­v­a­tive gov­ern­ment promised to pro­ceed with leg­is­la­tion to mod­ern­ize Canada’s copy­right laws and ensure stronger pro­tec­tion for intel­lec­tual prop­erty. To avoid the sharp crit­i­cisms which had accom­pa­nied the tabling of Bill C-61in June 2008, the Min­is­ters of Her­itage and Indus­try car­ried out exten­sive con­sul­ta­tions across the coun­try dur­ing the sum­mer of 2009. If, as had been promised, a new bill had been intro­duced before the Christ­mas recess, it would have died on the Order Papers like its two pre­de­ces­sors, because of the sud­den pro­ro­ga­tion of Par­lia­ment. It is now expected a new bill will be pre­sented in the com­ing weeks, and surely before the June recess.

This week, two Oppo­si­tion par­ties decided to get the ball rolling. On March 16, NDP mem­ber Char­lie Angus intro­duced two pro­pos­als to amend the Copy­right Act.  Angus tabled Bill C-499, which would adapt the suc­cess­ful Pri­vate Copy­ing Levy regime to the cur­rent gen­er­a­tion of copy­ing devices, such as MP3 play­ers, hard discs and cel­lu­lar phones. At the same time, he intro­duced a “motion on fair deal­ing that would pro­tect the rea­son­able use of copy­righted mate­ri­als for inno­va­tion, research, and study.”

On the same day, BQ mem­ber Car­ole Laval­lée was suc­cess­ful in hav­ing the Stand­ing Com­mit­tee on Her­itage adopt a sim­i­lar motion invit­ing the gov­ern­ment to imme­di­ately amend Part VIII of the cur­rent Copy­right Act to ensure that the Pri­vate Copy­ing Levy regime apply imme­di­ately to dig­i­tal record­ing devices. In an inter­est­ing polit­i­cal twist, the Bloc’s motion was adopted thanks to the decid­ing vote of the Committee’s Chair, Con­ser­v­a­tive MP Gary Shel­len­berger, who last Decem­ber had writ­ten to the Min­is­ter of Indus­try ask­ing for the same thing (all other Con­ser­v­a­tive mem­bers on the Com­mit­tee voted against the motion).

Within min­utes of Mr. Angus tabling his pri­vate member’s bill, the Her­itage Min­is­ter James Moore was tweet­ing the fol­low­ing mes­sage: “I am against the NDP’s new pro­posed tax on ipods/blackberries/iphones/laptops/MP3 play­ers. Con­sumers deserve lower, not higher taxes.” It is inter­est­ing to note that the Min­is­ter calls a tax what is essen­tially the per­cep­tion of a right, a levy for artists to earn money from their con­tent, while allow­ing users to trans­fer legally pur­chased media between players.

The Indus­try Min­is­ter Tony Clement imme­di­ately rein­forced his colleague’s state­ment: “I think it’s totally non­sen­si­cal. We can­not have a strat­egy of greater access to Inter­net and to have a bet­ter dig­i­tal econ­omy in this coun­try and, at the same time, have this NDP plan to tax iPods and to tax Black­Ber­ries and other portable devices,” he said. “That’s 180 degrees in the wrong direc­tion. That’s not the gov­ern­ment of Canada’s posi­tion … so we’re going to be oppos­ing this.”

These state­ments may be strong indi­ca­tors for the government’s inten­tions regard­ing upcom­ing copy­right leg­is­la­tion. These state­ments com­pletely ignore the cul­tural aspects of a dig­i­tal strat­egy and focus on the infra­struc­ture of the dig­i­tal econ­omy. Here, we see an absence of any acknowl­edge­ment to the artistry and cre­ativ­ity within dig­i­tal con­tent. So far, we have seen no pre­oc­cu­pa­tion in encour­ag­ing Cana­dian cul­tural con­tent and its cre­ators in any of the government’s talk about a National Dig­i­tal Strategy.

It seems highly unlikely that either the NDP or the Bloc’s ini­tia­tives will get any­where (MP Lavallée’s own com­mu­niqué talks of a “moral vic­tory for artists”, and one knows how much that is worth!). But they at least have kicked off an inter­est­ing debate on the notion of the Pri­vate Copy­ing Levy which, since 1999, has gen­er­ated over $180 mil­lion for the music indus­try. Accord­ing to sources, the government’s Copy­right Bill would let the exist­ing regime die of nat­ural causes, as fewer and fewer peo­ple use tapes and CDs and turn to elec­tronic devices for their pri­vate copy­ing. The money raised through the levy on blank tapes and cd’s has already gone down from $ 39.4 mil­lion in 2004 to $ 29.3 mil­lion in 2008.

Tell me more about the Pri­vate Copy­ing Levy

A pri­vate copy­ing levy is a gov­ern­ment man­dated scheme in which a spe­cial amount (addi­tional to any gen­eral sales tax) is charged on pur­chases of record­able media. Such levies are in place in var­i­ous coun­tries and the income is typ­i­cally allo­cated to the devel­op­ers of “content”.

Pri­vate copy­ing is the sub­ject of Part VIII of Canada’s Copy­right Act, the fed­eral statute that sets down the gen­eral legal frame­work for copy­right in Canada. Copy­right is the legal mech­a­nism by which those who cre­ate orig­i­nal works, like music, are able to be paid for that work. As copy­right hold­ers, cre­ators have a right to con­trol cer­tain uses of their work, and place con­di­tions — like pay­ment — on use by oth­ers. These pay­ments take the form of roy­al­ties. To illus­trate, per­for­mance of a song, a record sale or print­ing a musi­cal score are all events that would trig­ger a copy­right royalty.

Unlike a pub­lish­ing or record deal, pri­vate copy­ing can­not by its very nature be man­aged and accounted for by con­tract: pri­vate copies are made spon­ta­neously by peo­ple in the pri­vacy of their homes. That’s why pri­vate copy­ing receives spe­cial treat­ment in the leg­is­la­tion. Per­mis­sion does not have to be sought; pri­vate copy­ing is sim­ply per­mit­ted. But in exchange, the Act sets up a sys­tem to col­lect and dis­trib­ute roy­al­ties to those with rights in the music that is copied. True to gen­eral copy­right prin­ci­ples, leg­is­la­tors have ensured that cre­ators and oth­ers with copy­right in recorded music are able to be paid for use of their work. Canada’s cur­rent pri­vate copy­ing levies are $0.24 per unit for Audio Cas­sette tape (40min or longer) and $0.29 per unit for CD-R, CD-RW, CD-R Audio, CD-RW Audio and MiniDisc.

The Copy­right Act iden­ti­fies the gen­eral types of copy­right holder on whose behalf pri­vate copy­ing roy­al­ties are col­lected and are eli­gi­ble for pay­ment. Song­writ­ers, music pub­lish­ers, record­ing artists and record com­pa­nies – those with rights in the music copied – are all eli­gi­ble. While song­writ­ers and music pub­lish­ers are eli­gi­ble regard­less of nation­al­ity, only Cana­dian record­ing artists and record com­pa­nies may receive pay­ments under cur­rent law.

In 2005, the Fed­eral Court of Appeal over­ruled a 2003 Copy­right Board deci­sion which had applied the blank media levy to MP3 play­ers such as Apple’s iPod, on the basis that such devices did not qual­ify as “audio record­ing medium” as per the Copy­right Act def­i­n­i­tion. Before this, the pro­posed rates were $2 for play­ers with less than 1 GB of capac­ity, $15 for play­ers up to 15 GB, and $25 for play­ers 15 GB and over.

In 2007, the Cana­dian Pri­vate Copy­ing Col­lec­tive (CPCC)  asked the Copy­right Board of Canada to rein­tro­duce the levy of $5 to $75, this time onto the mem­ory com­po­nent of the dig­i­tal audio recorders (such as MP3 play­ers) in Canada. In addi­tion, CPCC also pro­posed levies of $2 to $10 for mem­ory cards, 8 cent increases to CD, CD-R Audio, CD-RW Audio and Mini­Discs. In Jan­u­ary 2008, the Fed­eral Court of Appeal over­turned the Copy­right Board’s July 2007 deci­sion, stat­ing that “the Copy­right Board has no legal author­ity to cer­tify a tar­iff on dig­i­tal audio recorders or on the mem­ory per­ma­nently embed­ded in dig­i­tal audio recorders.” Only an amend­ment of the type pro­posed in Bill C-499 could make it pos­si­ble for the Copy­right Board to extend the cur­rent regime to new tech­nolo­gies and there­fore ensure that artists are duly com­pen­sated for their work.

What can I do?

Like a num­ber of arts orga­ni­za­tions and unions, the CCA sup­ports the Pri­vate Copy­ing Levy regime and its exten­sion to the new elec­tronic devices. Please make your sup­port known to Min­is­ters Moore and Clement as well as to your local MP.