The majority government in Ottawa is about to pass a new copyright bill into law. Representatives tell us that they will do it within the next five weeks, before Christmas. In light of the parliamentary calendar it may take longer, perhaps until February, but there is no doubt that our opportunity to influence the outcome for freelance writers and for the future of Canada in a digital world is now. The need to modernize our law is urgent. The Conservative Party is to be congratulated for attempting to do so three times in a span of five years. Their majority guarantees that they will succeed this time. The question is at what cost?
As you know, copyright is a complex matter. With this bulletin we don't propose to tackle the subject in great detail but to offer an overview of the highlights of the proposed law, Bill C-11, which is currently in second reading in the House of Commons and will soon move to a legislative committee (see below). We offer this in the context of the current political atmosphere around the bill and as a call to arms to those of you with the time and inclination to intervene in this process. The key issue for PWAC and our allies is the ill-defined exception for education under fair dealing. The detail on this issue is at the end of this bulletin under "Highlights" just before the contact information for taking action.
Bill C-11 was introduced in September with the exact same wording as Bill C-32 from the last parliament when the Conservatives were in a minority situation. The legislative committee had heard more 75 witnesses when the May election killed the bill. Industry Minister Chrtisian Paradis told the House on October 18th that the reason the bill is unchanged from last Spring is to avoid beginning the process anew but rather to build on the work of the former legislative committee. Minister of Canadian Heritage James Moore assured the opposition that the government is open to amending the bill to improve it. However, they both also maintain that the bill as drafted has achieved a balance between competing interests generalized as creators vs. consumers. This is the kind of gross simplification that often crops up in the House of Commons and there is more to it, as you will see when we delve into key issues below. But there is realpolitik to this, since the draft law does seem to favour consumption over creation in ways that don't make sense if Canada is to prosper in a knowledge based economy that relies on digital communications to move forward.
The lay of the landCertain issues have had a lot of coverage in the media. Last year with C-32 there was a struggle between the opposition and the minority government over the royalties that are collected by the music industry through a private copying levy (often misleadingly called a tax) on blank CDs (this began with tape in the 20th century) on the premise that they were often used to reproduce sound recordings commercially obtained therefore hurting the market for those physical embodiments of copyright works. The music sector, backed by the NDP and the Liberals, called for this levy to be applied to the sale of modern recording devices that store sound recordings internally. The minority conservatives stood firm and waged a successful public campaign dubbing this measure the "ipod tax". Now that we have a majority government, that battle is over - the private copying levy will not be extended to new devices.
The other issue that has received more attention is one that is still very much with us: The concept of referred to in international treaties as technical protection measures or TPMs. These "digital locks" are those features of digital formatting designed to prevent access or copying in the hope of controlling piracy. These have garnered heaps of scorn and venomous comment from the proponents of "Free Culture". This issue has coloured the political landscape to the point where other more subtle but critical issues are lost on busy MPs of all parties who may not have a sophisticated grasp of copyright and how it works.
Highlights of C-11
TPMs or Digital Locks
The draft bill provides protection for these which is consistent with international treaties that Canada has signed but not yet implemented in law. The government has been accused of taking this step in response to pressure from large media corporations with interests in games, movies and music. This is consistent with the positions of our major trading partners, especially the USA. While the writing and publishing sector do not object to TPMs in principle or practice they are not currently applied across our industry and this issue is not a matter of concern for us in C-11 except that it tends to take up all the oxygen in the conversation and our key issues tend to get short shrift.
Internet Service Providers
In some jurisdictions around the world, most notably in the USA and France, internet service providers or ISPs are required to send a cease and desist notice to alleged copyright infringers using their service to make illegal copies and if the infringer fails to comply the ISP may "takedown" the allegedly infringing content. This is known as "notice and takedown". In C-11 the government is proposing a much softer approach whereby repeated cease and desist notices is the only measure required. This is known as "notice and notice". The music and film industries would like to see this strengthened too but it looks unlikely as the digital locks are seen to be the great benefit for them in the bill and the ISP lobby is strongly against taking any further responsibility in the management of copyright at the prospect of increasing their costs and the risk of alienating their customers. While we have sympathy with those wanting stronger compliance measures this is not the focus of writers organizations concern with C-11.
EXCEPTIONS and FAIR DEALING
In line with international copyright treaties and domestic law in most developed countries copyright law includes exceptions (sometimes known as exemptions) for certain uses of copyright material. Our current statute provides such protection from legal action for research, criticism and private study when use for such a purpose is fair. From a writer's point of view this is not only acceptable but also necessary to our work, particularly in non-fiction genres. C-11, however, proposes to introduce a vast array of new exceptions some of which we welcome but many of which do damage to our primary markets and the ancillary uses that abound in the digital realm.
User Generated Content or "Mash-ups"
C-11 provides protection from prosecution for the use of copyright materials by individuals who wish to make a copy of a work and add one or more element to it and put it back into circulation as long as doing so does not involve the exchange of money. This is the so-called "YouTube" exception seen as a way to ensure that the recording of a granddaughter dancing to copyright protected music or a cat frolicking in front of original visual art is not considered copyright infringement. What is disturbing here is that Canada would be the only jurisdiction where social network purveyors of such mash-ups like YouTube will not have to license such works from their rights-holders, an industry practice everywhere else in the developed world which is paid for by the advertising revenues that sustain such enterprises. This lends some credibility to the charge that with C-11 Canada is leading a global erosion of copyright protection and there is considerable pressure from beyond our borders to amend this section of the Bill which we favour in principle as it has implications for the future of digital publishing.
This is the key issue for PWAC and the six writers organizations with which we are working to mitigate the damage to our livelihoods through an amendment to C-11. Again, Canada is poised to introduce an exception under the concept of "Fair Dealing" (as distinct from the legal concept in the USA known as "Fair Use", more on that below*). By adding the single word education to the list of research, private study, criticism, parody and satire without providing a definition of what it refers to, C-11 imperils the major market for the copying of our works, that of educational institutions. Provincial ministries of education have been lobbying for this exception for the better part of a decade. The fact that it is in the draft Bill is a measure of their success in that it may allow colleges and universities to cease compensating right-holders for the copying of our works. The public policy rationale is that education is a good thing, it serves society as a whole and anything that makes it more accessible at a lower cost is therefore also a good thing. But for several decades compensating writers and visual artists and our publishers when multiple copies of our works are made in the education sector has been the practice and that is where your annual cheque from writers and publishers copyright collectives such as Access Copyright and Copibec comes from. This single revenue stream may not pay off your mortgage or put food on the table for more than a few days but as a community this obligation to compensate for use brings us $30-$40 Million dollars that may evaporate unless Bill C-11 is amended to set limits to the free use of our creative output.
*Under the "Fair Use" regime in the US damage to the market for a work is a primary factor in deciding if a use is fair or not. If C-11 goes through as drafted damage to the market for a work will not be considered as a primary factor as a result of a 2004 decision by the Supreme Court of Canada.
There are a number of related clauses including library loans exception, display exception, private purpose exception, weakening of statutory damages, anti piracy measures and others that, added together serve to weaken writers markets, especially for the secondary uses of our works. We don't detail them all here because writers organizations have collectively decided that fair dealing in education is the most imminently damaging measure in the Bill and also the one where we have done enough preliminary work on to turn it around with your support by an amendment that will mitigate the damage to our community.
Conclusion and contact infoSo we want you to raise your voice to ask our government to address the issue by introducing an amendment to C-11 that will provide rights-holders some legal protection from the mass copying of our works by educational institutions without compensation. Through our allies we are working with respected copyright lawyers to present an amendment that invokes the international standard known as the "Berne three-step test" for fairness after the treaty that contains it:
"-…(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. (2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention."
Translation: it isn't fair to copy our works in volume without paying for the privilege.
Some government representatives are saying they don't want to put this language into the Bill itself since we are already signatory to Berne. However, C-11 as written is so ambiguous on the concept of education that we want to see it invoked as a signal to institutional users that they have to negotiate fair license arrangements with us when they copy our works.
Our key target audience to make the necessary change is the legislative committee on C-11:
Glenn Thibeault - CHAIR (Subbury-NDP)
Telephone: 613-996-8962 Fax: 613-995-2569 EMail: firstname.lastname@example.org
Charlie Angus (Timmins-James Bay, NDP)
Telephone: 613-992-2919 Fax: 613-995-0747 EMail: email@example.com
Scott Armstrong (Cumberland-Colchester-Musquodoboit Valley, Conservative)
Telephone: 613-992-3366 Fax: 613-992-7220 EMail: firstname.lastname@example.org
Tyrone Benskin (Jeanne-Le Ber, NDP)
(TWITTER not available)
Telephone: 613-995-6403 Fax: 613-995-6404 EMail: Tyrone.Benskin@parl.gc.ca
Peter Braid (Kitchener-Waterloo, Conservative)
Telephone: 613-996-5928 Fax: 613-992-6251 EMail: email@example.com
Paul Calandra (Oak Ridges-Markham, Conservative)
Telephone: 613-992-3640 Fax: 613-992-3642 EMail: firstname.lastname@example.org
Andrew Cash (Davenport, NDP)
Telephone: 613-992-2576 Fax: 613-995-8202 EMail: Andrew.Cash@parl.gc.ca
Dean Del Mastro (Peterborough, Conservative)
Telephone: 613-995-6411 Fax: 613-996-9800 EMail: email@example.com
Mike Lake (Edmonton-Mill Woods-Beaumont, Conservative)
Telephone: 613-995-8695 Fax: 613-995-6465 EMail: firstname.lastname@example.org
Phil McColeman (Brant, Conservative)
Telephone: 613-992-3118 Fax: 613-992-6382 EMail: email@example.com
Rob Moore (Fundy Royal, Conservative)
Telephone: 613-996-2332 Fax: 613-995-4286 EMail: firstname.lastname@example.org
Pierre Nantel (Longueuil-Pierre-Boucher, NDP)
Telephone: 613-992-8514 Fax: 613-992-2744 EMail: Pierre.Nantel@parl.gc.ca
Geoff Regan (Halifax West, Liberal)
Telephone: 613-996-3085 Fax: 613-996-6988 EMail: email@example.com
Please use the contact information above to let them know you need this to be done.
Also go to the members of parliament website and to find the e-mail address of your own MP and let him or her know you are a constituent and a freelance writer who is concerned that the draft Bill will damage your livelihood unless it is amended to curtail uncompensated copying.
Finally, it is unlikely that the opposition parties will have much effect in the process. Conservatives with whom we are in contact suggest that any amendments that are endorsed at the committee and get back to parliament will come from the government side. So if you have a Conservative MP in your riding it is especially important that you let him or her know you expect them to defend your rights as an independent small business.
Thanks for wading through this message and for taking action for yourself, your colleagues and coming generations of professional writers in Canada.
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Email: firstname.lastname@example.org | Website & Resource Centre: www.pwac.ca | Find a Professional Writer: www.writers.ca
Email: email@example.com | Website & Resource Centre: www.pwac.ca | Find a Professional Writer: www.writers.ca