Leslie Chong is a JD candidate at Osgoode Hall Law School.
Members from various communities impacted by the current copyright reform had a chance to voice their praise and concerns with the proposed amendments in Bill C-32. During their opening statements at the Legislative Committee hearings held on March 8 and 10, 2011, speakers that represented authors’ rights, the information technology sector and collective agencies were given an opportunity to voice their opinions about how the Bill C-32 amendments would affect them.
Information Technology Sector
David Fewer from the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa, Faculty of Law commended the government for attempting to accommodate and represent multiple perspectives on copyright in the Bill C-32. He discussed three main principles that must be maintained and used to evaluate the effectiveness and fairness of the proposed amendments. First, copyright ought to reflect the reality of Canadians everyday and in their ordinary dealings with content. The legalization of time-shifting, back-up copies and the expansion of fair dealing to include parody and educational fair dealing respect this principle, while the proposed anti-circumvention provisions threaten to violate it. Second, copyright enforcement should be directed at those acts that undermine creativity, and not children, downstream creators and innovators, or public institutions (such as museums, archives and libraries). Fewer argued that copyright legislation should never become a business model, but should instead provide incentives to encourage creativity. As such, reforms for statutory damages should not target public institutions that operate in the public interest. And lastly, copyright ought to recognize the full range of creators and innovators that participate in Canada’s cultural and economic life. While being critical about the changes to the ‘commissioned photograph rule’ which would extend creator rights to photographers, he commended the extension of moral rights protection to performers and photographers.
Russell McCormond, an individual who advocates for open source and user rights as an independent software author and technical consultant, focused on how Bill C-32 would affect information technology property rights. He argued that legal protection for access controls in the proposed amendments can be used to circumvent the traditional contours of e-commerce, contract law, privacy, and consumer protection. At issue is the fact that DVD Copyright Control Association currently has the discretion to choose which software products are given the ‘key’ to access the encodings on their products. Given that access is a novel concept in copyright law, McCormond argues that these controls are actually access protection rather than copyright protection and serve to undermine the purposes of the protection.
Margaret Atwood, a celebrated Canadian author, addressed the committee and detailed how the Bill C-32 amendments will negatively affect Canadian authors. As an author who has been involved in publishing since 1960 and who is among the 10% of Canadians who live off of proceeds from their work, she detailed four main reasons why Bill C-32’s amendments relating to the expansion of education into the fair dealing exemption ought to be revised. While Atwood is in favour of cheaper education for students, she believes that cheaper education is a public good which all should contribute to – not just authors. She argues that because most authors have small incomes, they cannot afford this burden while educational institutions funded by the public can. By removing an author’s copyright for all educational purposes without compensation or consent would not be fair dealing, since it is inherently unfair to the author and in a ‘dealing’ it takes two to negotiate and bargain. In the latter part of Atwood’s address, she illustrated the inherent unfairness of the educational amendments. She reasoned that since copyright is inherently a ‘property’ right, it can only be owned, sold, licensed and inherited and there are only four ways to remove this right without the authors consent: theft, expropriation, confiscation, and requisitions (as in war). If it is a theft, those authorizing the stealing should be charged. If it is an expropriation, it may be a property grab for the public good (as in the expropriation of land for highways), but this typically involves remuneration from the public, but there is no proposed recourse for authors in this case. If it is confiscation, what criminal act has the author committed? And if it is a requisition, where is the war? And she leaves us with an imposing question – if the government can snatch the property of authors in this way without consent or payment, who and what will be next?
Marian Hebb, speaking on behalf of the Artists’ Legal Aid Services (ALAS) which provides summary legal services to artists of all disciplines, is wary that the Bill C-32 amendments are cutting back creators’ rights and will make it more difficult for the to support themselves through their craft. As most independent creators earn less than $20,000 annually, Hebb argued that the statutory exceptions for licensing should only be available where individual licenses are not practical and collective administration is not available. Copyright legislation should not introduce broad exceptions that limit artists’ abilities to earn income, and the proposed education fair dealing exception means that the more savings there are for the institutions, the less proceeds are being received by the artists. Furthermore, the user-generated content exception needs to also be fair to the existing author – copyright should remain with the original author unless permission or payment is given, and disseminators should be liable for payment given the income derived from this user-generated content (Hebb mentioned YouTube and Google as examples).
David Basskin, the president of CMRRA-SODRAC, argued against the numerous exceptions created by Bill C-32 that do away with royalties. As a music licensing collective agency, CMRRA represents the reproduction right in musical works and licenses musical works to commercial broadcasters, the CBC, and satellite radio when those organizations reproduce works in CMRRA’s repertoire. At the moment, commercial radio broadcasters want Parliament to strip CMRRA and other collective agencies of the rights they represent, claiming that it is unreasonable to pay blanket licensing fees to these agencies. However, Basskin contended that the broadcasters are effectively arguing for a double-standard, since they are allowed to license the reproduction rights to media monitoring companies for royalties ten times higher than what they are currently paying to CMRRA. He suggested, as did Hebb from ALAS, that exceptions in the Bill ought to only apply if a collective society is unable to issue a licence.
Further hearings are scheduled to take place on March 22 and 24, 2011. It is yet to be seen whether the hearings will continue after those dates since it is possible a Spring election could be called.