Bill Freeman: A creator’s view of the copyright reform battle in Canada

Bill Freeman.

Copyright reform has become a battle of experts, with creators and consumers caught between warring parties of copyright lawyers, leaving both sides wondering what is fair.

On the one side are creators, the basis of the creative industries of this country, who have produced the books we read, the music we listen to, and the films we view. On the other side are educators, computer whizzes, and pirates. Copyright reform has become a complicated legal battle about the wording of legislation while at the same time it is a dead simple argument about basic principles of ownership and access.

Believe it or not, once-upon-a-time copyright was simple. Musicians created and recorded their music on a record or CD. It was sold to the public and the proceeds divided up according to contracts. Books and films were created and marketed in much the same way. Was the system fair to the creators? Well, there were always big arguments about who deserved what, but it was a business deal and creators had to live with the contracts that they signed.

But then the Internet came along and changed everything. We all love our computers. I am a writer and today I couldn’t work without one, but digital technology has changed the way that creative material is delivered. Now, rather than selling a CD or a book or a film, they can be delivered electronically via the Internet.

Musicians were the first creators to feel the impact of this technological change, and we all know what happened to them. Because of pirating the incomes of record companies plummeted and musicians have had to rely more on performing than on record sales. I know a lot of people download music illegally, and some say that is a good thing because music is now more available, but that does not make it right. Most people in the music industry regard it as theft because the music that is protected by copyright is a form of property.

The musicians have been the “canaries in the mine” for the creators, and now the impact of the Internet on the distribution of works that are protected by copyright is affecting almost all creators. Books, magazines, films, and even newspapers can be distributed easily and efficiently in this way and as a consequence the business model of these industries is under attack.

I am the chair of the Creators’ Copyright Coalition, an organization of 17 of the largest creator groups in the country, representing over 100,000 creators, and I can tell you they are all concerned. It is these people who have created the works that are seen as the great flowering of culture in this country.

There are a few stars in that number who earn extremely good money, but incomes are generally low. The majority of creators, even well known writers, actors, musicians, and visual artists, have to work at other jobs to cobble together an income to support themselves and their families. It is no wonder that they are very concerned about the state of copyright in this country.

The impact of the Internet has been felt worldwide, and in 1996, almost 15 years ago, the World Intellectual Property Organization adopted two treaties to meet the challenge. Since then the Canadian government has been trying to revise the Copyright Act but has failed. Canada is now 10 years behind other countries in making our laws compliant with WIPO.

In the last five years there have been three bills presented to Parliament and we still do not have a new copyright law. The most recent attempt, Bill C-32, the Copyright Modernization Act, has received second reading in the House of Commons. It is now before a legislative committee and there is no consensus on many aspects of the proposed legislation.

For creators, Bill C-32 is worse than the two previous bills that were presented. I will try not to bore you with too many details, and let me tell you that if ever something fit the saying “the devil is in the details” this is it, but these are some of the highlights from a creator’s point of view.

Bill C-32 is riddled with exceptions exempting different groups from paying for material under copyright. Perhaps strangest of all, C-32 is a Conservative bill. Copyright is a form of private property. One might have thought that Conservatives would want to protect private property. But no, when it comes to the property of creators, the law will take away our works without payment in many circumstances.

Because of the imprecise wording in the bill, and the fact that some experts believe it contradicts, or even violates, international agreements, Bill C-32 will be subject to untold litigation. Get used to it, creators. If this bill passes without amendment, we will be paying high legal fees for years to defend our rights. That again will reduce our incomes.

One of the great successes of creators and producers in recent years has been the establishment of collectives that manage their rights in an efficient way. The largest and most successful of these collectives are SOCAN, the music collective, and Access Copyright, which manages the rights for writers and publishers. These collectives operate under a system that authorizes them to license organizations like radio stations and school boards. Groups that have a licence can then freely access material for the payment of a fee. The system has worked well, but rather than strengthening the system of collectives, Bill C- 32 will make it more difficult to license users.

The bill will grant consumers new private copying rights to all types of works in a wide variety of formats without any compensation for creators.

It will also allow “mash-ups” that will let companies like YouTube profit from the copyright-protected works without payment to creators.

Perhaps the biggest loss for creators is the educational exemption. Bill C-32 will allow universities, colleges, and school boards to copy works and distribute them to students without payment to writers and publishers. Just how much we don’t know. The legislation is imprecise and so the courts will have to decide. With this legislation a school board or university could scan parts of text books, trade books, or journals and distribute them without payment. Schools have to pay for teachers, administrators, desks, and computers but they will not have to pay for the very material that forms the basis of teaching.

This part of the bill makes no sense. Politicians don’t require farmers to give away the food they produce. What about gold? That’s pretty useless. Why don’t we require gold producers to give away their production? Somehow I don’t think that is going to happen, but because creators are politically weak and educators are powerful the government has decided that creators will be required to give away their work for free. If this part of the bill becomes law some publishers will cut back on their titles or go out of business, writers who work in this field will lose income, and ironically, schools and universities will have less Canadian material in the classroom.

Enough detail. Let’s refocus the issues again. We have the situation where the Internet has challenged the business model of the creative industries and what does the government do? They propose to rewrite copyright legislation to make a huge amount of material protected by copyright free; they make the legislation so complicated that it can be challenged by every copyright lawyer in the country; and at the same time they do not solve the original problem by creating a system, accepted by both creators and consumers, to protect material under copyright that is distributed via the Internet. What are we to do?

The strategy of creators is to demand major amendments to Bill C-32 to solve these problems. The argument is that it is too late to go back to the drawing board. Better to try and fix C-32 than to begin again. I have become convinced that this is the way to go, but this strategy is fraught with difficulties. It will take agreement from all of the opposition political parties in both the committee and Parliament for amendments to pass. There is major opposition to any changes in the bill and that will make amendments difficult.

Fortunately I am not a copyright lawyer. I am just a humble writer, but in my dreams I think that the problems are not that hard to solve. We need to agree on some principles and design legislation that captures them.

The first principle, and one that has long been accepted by Canadians and their Parliament, is that culture needs to be protected and enhanced. Creators and the industry that promotes, markets, and distributes creative works can only flourish if it is on a sound economic footing. Copyright legislation is essential if we are going to reach that goal.

Copyright is a form of property and there should be “payment for use”. The use of a book in a school is no different than its use at home or in the office. If parts of a book are photocopied and distributed electronically then the owner of the copyright should still be paid. The easiest and most efficient way to do that is through the collective licensing system that has already been established. When music or a film is downloaded a fee should be paid to the owner of the copyright, and again, the best way to do that is through a collective.

And the problem of Internet piracy is also not that difficult to solve. Many countries, including the United States and countries in the EU, have a system called “notice and take down”. The legislation in those countries requires Internet service providers, like Shaw and Rogers, to notify the owners of websites when they become aware that the site contains material that violates copyright law. If the owner of the site does not take down the material then the ISP is required to take down the website. There is an appeal process built in to the procedure, and the system works well. Pirating is down in the countries that have adopted this system and companies, Apple’s iTunes, and Amazon have emerged to deliver products protected by copyright online for a modest fee.

Canadian politicians have rejected the “notice and take down” system and Bill C-32 will bring into effect a system called “notice and notice”. When an ISP is informed that a website is distributing works under copyright, they will be required to notify the site and that is all. Big deal. It will do nothing and Canada will remain a haven for copyright violators.

So much for dreams. Frankly, I don’t know what will happen in this donnybrook over copyright reform, but I have certainly learned from experience that although creators are the vital soul of the creative industries in this country, the ones who create the works that excite and move our emotions, we are at the very bottom of the food chain.

Will the politicians listen and produce copyright legislation that responds to our needs? We hope so. The stakes are high for creators, the creative industries, and the public.

Bill Freeman is a writer and the chair of the Creators’ Copyright Coalition.