IT AIN’T OVER … — DON’T DOWNLOAD THE FAT LADY’S SONG YET

Ottawa , April 1, 2004 — Yesterday’s rul­ing by the Fed­eral Court on the legal­ity of down­load­ing music from the Inter­net has thrown the sec­tor into a quandary.   It all came down to a def­i­n­i­tion of “dis­tri­b­u­tion” and the judge decided that park­ing one’s musi­cal pref­er­ences on a file-sharing site does not con­sti­tute actively dis­trib­ut­ing the material.

Cana­dian copy­right leg­is­la­tion used to be a few years behind prac­tice.   Now, prac­tise is so many light years ahead of leg­is­la­tion that it is almost not worth the government’s time to try to catch up.   No sooner is an amend­ment a glim­mer in a bureaucrat’s mind, than it is out of date, over­taken by technology.

Where does this leave the cul­tural sec­tor?   On one side, more and more peo­ple — an entire gen­er­a­tion and more — now con­sider it “nor­mal” to down­load music from the Inter­net, with no regard to copy­right.   On the other, artists must have the right to receive copy­right income from their mate­r­ial, unless they waive that right them­selves.   Levies are cur­rently in place on var­i­ous forms of record­able media and there are now music sites where one can pay a fee per down­load; the pro­ceeds from both go to artists.   Is that enough?   What more can be done to ensure artists receive their just com­pen­sa­tion for their work, and that the record­ing indus­try is able to con­tinue to rep­re­sent and sup­port those artists who wish their services?

A fur­ther copyright-related issue is also in the news: the “Lucy Maud Mont­gomery pro­vi­sion*” which had ini­tially been tucked away in Bill C-36 (C-8 under the Mar­tin gov­ern­ment), the Library and Archives Act .   (This Bill is intended to join the National Library and the National Archives into a sin­gle agency.)   The copy­right pro­vi­sion in C-36 was very spe­cific: to increase the num­ber of years of copy­right for unpub­lished works whose authors died between Jan­u­ary 1, 1930 and Jan­u­ary 1, 1949 .   Appar­ently, this clause was slipped into Bill C-36 to cor­rect an error con­tained in the 1997 changes to the Copy­right Act, an error which would have penalised the estate hold­ers of the Mont­gomery estate, among oth­ers.   How­ever, when for­mer Prime Min­is­ter, Jean Chré­tien, pro­rogued Par­lia­ment last Fall, the clause came up against its “best before” date of Decem­ber 31, 2003 , and has now been dropped from the new Bill.   Will it reap­pear under a dif­fer­ent guise?

Copy­right is an extremely com­pli­cated issue, one best left to legal experts and spe­cial­ists in the field. CCA will be work­ing closely with the Cre­ators’ Rights Alliance (CRA) in future to address some of these issues for our members.

*so-called because it specif­i­cally encom­passes Ms Montgomery’s demise in 1942 and would thus ben­e­fit the hold­ers of the Mont­gomery estate.