[1]As a special committee of MPs scrutinizes the government’s proposed reforms to copyright law (Bill C-32, the Copyright Modernization Act), a broad coalition of groups and associations collectively representing hundreds of thousands of creative professionals employed in Canada’s arts and culture industries has come together in an unprecedented show of solidarity. Presenting the coalition’s position statement [2] today in Ottawa were Sophie Milman, internationally acclaimed jazz artist; Jean Bouchard, book publisher with Groupe Modulo/Nelson Education; Alan Cumyn, author and chair of the Writers’ Union of Canada; and Nadia Myre, multi-disciplinary visual artist from Quebec and member of the Kitigan Zibi Anishinabeg.
Almost 90 groups representing writers, performers, actors, illustrators, musicians, composers, publishers, poets, visual artists, playwrights, songwriters, and producers from across Canada have signed the statement that urges the Government to make changes to Bill C-32. Without these changes, the Bill would overturn the core principles of copyright law that historically have ensured a healthy environment for creators, producers, distributors and consumers of Canadian cultural content. The coalition is part of a $46 billion industry that employs more than 600,000 Canadians and contributes twice as much to the GDP as the forestry industry.
“The whole purpose of copyright is to protect creators and their work,” said Ms. Milman. “Bill C-32 turns that principle on its head by ripping away many of the rights that we have long relied upon, making it that much harder to make a living from our work.”
Citing a long list of troubling new exceptions in the bill, including the expansion of so-called “fair dealing” to cover education, the coalition warns that C-32 will cause serious damage to markets for Canada’s cultural sector and significantly reduce current and future revenues on which creators depend for their income.
“Canadian educational publishers are currently investing money and efforts to develop learning tools that will allow Canadian educators to take advantage of the power of new digital platforms,” said Mr. Bouchard. “If Bill C-32 is enacted as drafted, these investments will be vastly diminished for lack of a foreseeable and stable economic model. Education must be removed from the fair dealing purposes currently proposed by Bill C-32.”
“Bill C-32 also misses an important opportunity to establish the Artist’s Resale Right in Canada,” added Ms. Myre. “Right now, artists only benefit from the first sale of our work, but we all know that the full value of an artwork is often not realized on this first sale. The value of a piece of art can skyrocket over time, but the artist receives none of that profit. The Artist’s Resale Right would fix that inequality.”
“Bill C-32 threatens the collective licensing of rights by undermining the existing, effective system that makes it possible for creators and copyright owners to be paid for the use of their works,” said Mr. Cumyn.
Partial text from the Joint Statement (you can read the full statement [3] on their site)
We believe that the passage of Bill C-32 as it stands will weaken the core principles of copyright law that have historically ensured a healthy environment for creators, producers, distributors and consumers of Canadian cultural content. It will compromise Canada’s competitiveness in the global digital economy, while undermining the economic future of creators of Canadian content. The proposed changes reflect a lack of understanding of the structure of creative industries in today’s rapidly evolving digital economy. Parliament needs to amend the legislation and salvage C-32’s positive provisions. Canada’s hopes for a vibrant and innovative digital economy are only as strong as its protection of intellectual property, the raw material of the knowledge economy, and C-32 as it stands is a step back, rather than a step forward.
Consequences to passing Bill C-32:
The following is a breakdown of consequences that will result if C-32 passes as it stands:
- User-Generated Content Exception: Canada will become the first country in the world to allow businesses like YouTube the right to use copyright-protected works to earn revenue without any obligation to obtain consent or compensate the creators of the content in return.
- Education Exceptions: This exception will violate Canada’s international obligations and may form the basis of a trade challenge under the WTO regime. The expansion of fair dealing to include education is an unfair expropriation of revenues payable to creators for copying their works. These new and expanded exceptions will create uncertainty in the marketplace. This will lead to years of litigation as copyright owners and users grapple with the market impact of the new, often broad, exceptions.
- Private Purposes: Bill C-32 streams revenues away from creators by legalizing copying for private purposes, including format shifting and back-up copies. These exceptions are so broad they could permit unauthorized sharing of content files over networks. The exceptions may significantly reduce the size of the market, undermine existing revenue streams such as the private copying levy and compromise the development of new licensing regimes and business models that provide fair compensation for these additional uses.
- Broadcaster Exemptions: Broadcasters make reproductions of music and recordings throughout their operations. Today, radio broadcasters (including commercial radio, non-commercial stations, CBC, and satellite radio) make such copies under licence from collectives representing authors, music publishers and performers and producers of recordings. The royalty rate they pay is determined in an open, public process by the Copyright Board of Canada. Commercial radio – a $1.5 billion annual business – pays less than 6% of their revenue for the right to use music, which makes up more than 80% of their on-air content. These copies are at the heart of the automated systems that are found today in every radio station in Canada, delivering substantial operational benefits to broadcasters. Bill C-32 proposes to eliminate the existing legal basis for the royalties broadcasters now pay in return for making these copies – but the copying would continue.
- Statutory Damages: Proposed limitations on statutory damages remove any hope of meaningful remedies for infringement, and fail to recognize the difference between individual consumers and institutional and business users, unintentionally allowing the latter groups to ignore obligations to obtain licences for use of content.
- ISP Liability: C-32 puts an intolerable onus on creators to police infringement while giving a free ride to infringers and allowing Internet Service Providers (ISPs), once they have notified an infringer, to have no further responsibility. Other jurisdictions ensure that ISPs are partners in the fight against piracy. Failure to do so will ensure that Canada continues to be a safe haven for pirates..
- Artist’s Resale Right: C-32 misses the opportunity to establish this right and allow visual artists to share in the profits made from their work on later sales, a right that currently exists in 59 other countries, including the US (California), the UK, Ireland and Australia, to name but a few.
- Turning Copyright on its Head: The YouTube exception, private purpose exception and broad fair dealing purposes turn current copyright law on its head by signaling to users that they can infringe copyright as much as they want until someone sues them for damages (which may be relatively limited). But to succeed in doing so, the creator, publisher or producer must demonstrate that the market for their works has been significantly damaged, a notoriously difficult burden of proof. During the time it takes to gather the evidence and provide it to the appropriate authority, the unauthorized activity will have continued to take place and the market for the works will have been irreparably damaged.
Revisions Required to Bill C-32:
Canada’s arts and culture industries would like to see the following revisions, at a minimum, be made to Bill C-32 before it passes:
- Delete all sections in the Bill that would eliminate existing revenue streams for creators and copyright owners, including those that:
- legalize, without compensation, certain types of reproductions, e.g. broadcast reproductions, private copying onto digital audio recorders;
- provide for educational uses of copyright protected materials without compensation to creators and copyright owners; and
- allow the exploitation of works in other ways without permission or compensation to the creator, e.g. user-generated content (i.e. the YouTube or “mash up” exception).
- Add the following:
- the three-step test, to comply with Canada’s international treaty obligations, i.e. to qualify as an exception or a limitation to copyright protection, the use of works must be limited to certain special cases, not conflict with a normal exploitation of the work, and not unreasonably prejudice the legitimate interests of the author;
- a visual artists’ resale right, to align Canada with our trade partners (i.e. ensure that visual artists share in the profits made from subsequent sales of their work); and
- solutions that ensure that ISPs are partners in the fight against piracy.
The Future of Copyright:
Canada’s arts and culture industries fully support the objectives of the Government of Canada’s digital economy policy. We agree with the government’s position that “with the right framework, digital media entrepreneurs have the ability to create Canada’s digital content advantage with vision and boldness…and drive more innovation in the years ahead.” However, this should not be achieved at the expense of the rights of content creators and owners.
With digital downloads and online streaming of audio-visual material increasing in popularity daily, and with digital content easily copied, shared and loaned, C-32 must ensure that content creators and owners are compensated for these uses. C-32 does not modernize copyright; in fact, it dismantles it. Getting copyright right is in everybody’s interest. The vitality of Canadian culture depends on it.