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

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      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.

      Comments

      33 Comments

      Mark Hamilton

      Dec 28, 2010 at 5:23pm

      I have sympathy for creators, and I pay for the content I acquire, whether in physical form or from the 'net. But this piece is anything but balanced.

      A couple of examples: notice and takedown operates on the principle of guilty until proven innocent; notice and notice flips that and puts the onus on the creator (or, more likely, publishing company) to prove that the use is illegal. In the US, notice and takedown has been misused frequently to take down works that do not break copyright laws.

      The writer ignores that digital control lock provisions of the proposed bill, which allow publishers to deny consumers rights that the Copyright Act would otherwise give them, such as the right to create copies, for personal use, of what you own.

      The idea of "payment for use" make sense on the surface but, the same day that this is published,we hear of a Canadian rights collective demanding to be paid royalties for 30-second sound samples at music purchase-and-download sites. You can't argue for sound copyright policies that make cultural industries possible and then demand payment for the samples that are part of their business model.

      Copyright exists not only for the creators but for the cultural health of society. That's why there are limits on the term of copyright and provisions for fair dealing.

      The current Copyright Act proposal, flawed or not, is already heavily weighted in favour of the cultural industries. Freeman's arguments in favour of notice and takedown and against private copying would make that worse.

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      Fairy Use

      Dec 28, 2010 at 8:01pm

      Freeman must be a fiction writer because this piece is filled with fictional claims about the bill. The real problem with Bill C-32 are the digital lock rules that will give major media companies the ability to remove any consumer rights. That is not balanced and not fair.

      Freeman's concerns are wildly inaccurate. Educational institutions won't be able to copy as much as they like without compensation. There are limits to fair dealing and they'll apply here. As for more lawsuits, it is the copyright collectives that are the first to lobby and the first to file new lawsuits. Freeman may think notice-and-notice doesn't work, but the evidence in Canada (which has used that system for more than five years) shows otherwise.

      Freeman says he's humble writer, but we're really looking at a lobbyist who is presenting a misleading look at the bill.

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      Julius Kelp

      Dec 28, 2010 at 8:37pm

      I agree that Bill C32 is not perfect, but it is a start. How many times are we going to have to go back to the drawing board on this bill? I hope the committee can hold more meetings in the new year... two 2-hour meetings a week is pretty sad for a bill as important as this.

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      Bill Campbell

      Dec 28, 2010 at 11:09pm

      For a balanced view, I recommend Michael Geist's blog http://www.michaelgeist.ca/tags/c-32 Michael is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. Michael's blog "Clearing Up the Copyright Confusion: Fair Dealing and Bill C-32, Wednesday December 15, 2010" has links to an informative .pdf re misleading claims, inaccurate comments and dubious arguments and another .pdf re. digital lock rules

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      Scary Pirate

      Dec 29, 2010 at 11:07am

      Maybe it's time writers and other artists stopped looking at copyright as a means to get paid for their work, as opposed to what it was intended to do in the first place, i.e. make artistic works more widely available. The Internet makes copyright largely irrelevant because artists of all kinds can now publish their work at virtually no cost. Artists should ditch the record companies and publishers, who are trying to get rich through technologies like digital locks, and get out and promote their work themselves. By the way, I am not an artist but my son is a musician and a painter and he doesn't expect to get paid every time someone "uses" one of his pieces of work. Technology has changed the world - it's time for artists to catch up.

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      Wayne Borean

      Dec 29, 2010 at 11:27am

      I'm sorry Bill, but you really need to research articles before you post them.

      I know a lot of musicians. Most of them say they are doing better now then before the internet. Why? Because they can go to their customers, the fans, directly. They don't need to sign with a label.

      Take Heather Dale for example. Every song Heather sells on ITunes earns her $0.70. Compare her to Amanda Palmer, who famously complained that her record label earned her nothing...

      What the internet has done, is allowed the artist and fan to cut out the intermediatary. Of course the Record Labels don't like this. Their sales are down, and they'll have to innovate to come up with a new business model.

      The same is happening with video, Nina Paley has done quite well out of 'Sita Sings The Blues', even though you can download it for free from her website.

      Bill C-32, and the WIPO Copyright Treaties that it supposedly tries to implement, are unenforceable, in part because working digital locks are not technologically feasible. Look at the United States, where the similar Digital Millennium Copyright Act has had no effect. Unenforceable laws are bad from a social standpoint, they teach disrespect for the Law as a whole.

      Copyright Reform is needed. But it needs to be evidence based, which the current bill is not. It also needs to include a provision making copyright non-transferable, except by inheritance, to prevent the Corporate Copyright Scofflaws from hurting the creators. I suggested this in a submission during the copyright consultation, and I think it would make a true difference to artists.

      Regards

      Wayne
      http://madhatter.ca

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      Randy Legault

      Dec 29, 2010 at 1:21pm

      Copyright is not a property right. It is a state supported monopoly tolerated for the reasons that it promotes creative activity. Any amount of restriction on distribution beyond what is necessary to promote production extracts monopoly rents and we know that, in principle, this is a bad thing.

      Short (5 years?) but strong copyright protection makes more sense than what we have now but that oversimplifies things. I tend to side with Geist on the bill -- the digital lock protections must go.

      You want stronger rights, ok, but much shorter, ok?

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      Russell McOrmond

      Dec 29, 2010 at 4:18pm

      The CCC is primarily a front for collective societies. Collective societies offer an important financial service to creators when they are optional, but they don't "represent" creators any more than the president of my bank can claim to "represent" me politically because I happen to be a customer.

      As a creator who has been meeting with fellow creators for nearly a decade now, I can tell you that most of what Bill Freeman had to say is extremely controvercial and debated within the wider creator community. He and others like him from some of these groups claim to be a voice representing creators, when in fact these veiws only represent a decreasing subset of creators.

      I'm a creator who became involved in the copyright debate because various intermediaries were taking over copyright.

      From the technology community you have technology platform providers falsely claiming to be offering "copy control", encouraging the legalisation and legal protection of behaviour that would be otherwise be recognised as circumventing the balance in competition, contract, trade, property, privacy and even traditional copyright law. Technical measures are not a protection of copyright, but an opt-out of copyright where the technology companies are able to rewrite in software much of the rules that would otherwise be in law.

      Then you have collective societies wanting to replace copyright with mandatory levy systems, creating a system that creates a massive handout to collective societies on the backs of creators and their audiences. No longer will creators have the ability to be entrepreneurs and find the best way to maximise material rewards, they will only get a small cheque sent to them by a collective. Revenues for the otherwise most entrepreneurial creators will obviously go down.

      And who do some of the loudest "creators" blame? While they promote one set of intermediaries (Collectives), they blame everyone else for what is often their own business model problems. Infringement is by far not the greatest challenge facing creators today, and yet that is the distraction abused by the intermediaries promoting themselves as the "solution".

      My thoughts on C-32 can be seen at http://BillC32.ca/faq

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      Jason

      Dec 30, 2010 at 4:30am

      Creators have long understood that there is not always "payment for use". There is only "payment for appropriate uses". Just because someone wants to copy their paid-for CD to their iPod does not mean the original artist deserves a dime. Once upon a time, Canadians believed that they did - see the CPCC as the outcome of that - but times have clearly moved on.

      Copyright has always had limitations and exceptions, called fair dealing, all the way back to the beginning of copyright. Anyone demanding that copyright should be treated just like any other property right, deserving equivalent exclusivity, is unfortunately either dishonest or simply misinformed.

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      Craig

      Jan 4, 2011 at 6:43pm

      One of the reasons the Canadian copyright law is a mess is that there is gov. subsities on arts that begs the argument that there is some public right to it. Not that supporting the arts is wrong. But to look to canada for answers on a complicated issue where they already had a complicated approach is a bit much. And copyright law IS a property right- the "cultural health" of society is to say that by creators being able to make a living from their work then they are able to bring their works to a level that improves culture. People no more have a natural right to people'c creative property than they do to kiss your girl friend. It's her lips and she gets to decide who does what with them. period.

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