By Marian Hebb
Copyright infringement has become a habit for many ordinary Canadians—at school, at work, and at home. When they scan a short story or an article, or download a photograph from a Web site and send it to family, friends, and colleagues without permission, they are infringing copyright.
Most professional writers do not want to stop this. Many do it themselves. They want what they write to be read as widely as possible, but they want their authorship to be acknowledged and they need to be paid. The average annual income of a freelancer (including part-timers with some employment income) was only about $21,000 in 2005.
Well over a decade since Canada signed the World Intellectual Property Organization treaties intended to bring copyright laws around the world into sync with the new digital environment, it is astonishing that Canada has still not implemented and ratified these treaties concluded in 1996. Successive Canadian governments have introduced copyright legislation—the Liberals’ Bill C-60 and the Conservatives’ Bill C-61—but both died on the order paper. Recently the United States put Canada on its Priority Watch List of countries that do the least to protect copyright, no doubt expecting higher standards from Canada than from piracy havens such as China and others on the list.
Since 1996, there have been extensive consultations on copyright by government with stakeholders. In 2004, there were lengthy hearings by a committee of members of Parliament, who listened to a litany of justified and unjustified fears and hopes from creators and users. The committee then recommended changes to the Copyright Act to which the Liberal government paid little heed when it introduced its Bill C-60 in 2005.
The changes recommended by the Canadian heritage committee would have strengthened collective licensing and made it easier for users to copy copyright materials and easier for creators to get paid for their work. Existing collective societies, including Access Copyright, representing writers and other rights holders of literary and artistic works, grant licences, collect payments, and distribute payment to rights holders, mostly based on surveys of use.
Bill C-60 and Bill C-61 were reasonable efforts to deal with digital developments, though they were less creator-friendly than what the Canadian heritage committee had recommended. Bill C-61, which had a first reading in Parliament in June 2008, startled writers with its radical provisions for format shifting. A book, magazine, or newspaper or substantial chunks from them would be downloadable from the Internet by a single individual onto a variety of devices for private use, unless doing so were to breach a contract or circumvent a technological measure.
Both bills contained a provision that would allow nonprofit libraries to deliver articles and extracts from books over the Internet directly to patrons of other libraries. This free digital delivery (bizarrely often called “interlibrary loan”) would be an enormous boon to library users—a group that includes writers—but also an enormous problem for writers, who need payment for their work in order to continue to produce it. Will public libraries eventually find themselves unnecessary middlemen when patrons don’t have to go to the library to “borrow” materials? Entire library books may be next in line to go on-line in Canada. This is already underway in the United States with the proposed Google Book Search settlement.
In response to pressure from educators for free access to “publicly available materials” on the Internet, Bill C-61 introduced an exception from copyright for schools for legitimately posted materials unprotected by technical measures. Who wants to complain about accessibility? But creators want to be paid for school as well as library and other uses and consequently are looking for ways to “monetize the Internet”.
The Internet has made copying very easy. It is not possible for an individual writer to monitor the uses of his work on the Internet, but copyright collectives representing many rights holders can protect their collective interests while offering licences that provide easy access to their works to schools, libraries, and others.
The collective society model has worked well in the past and, with minimal supportive legislation from Parliament, is a model that could be transferred easily to the Internet. This would likely mean a small subscription increase, payable by users to their Internet service provider, to cover most copyright material they can download freely from the Internet. That money would go to collective societies and would be distributed to the writers and other rights holders whom they represent. Everyone would have easy and lawful access to most materials on the Internet, but rights holders would be paid.
Marian Hebb of Hebb & Sheffer is a lawyer who advises individual writers and writers’ organizations on copyright and other matters.