Modernizing the Copyright Act – A Look Back on 2019

I recently attended a speaker’s event presented by Cassels Brock and Music Canada to hear Graham Henderson and Miranda Mulholland update the audience on happenings as of late at the intersection of the Canadian music industry, the digital marketplace, and the artists and legislation trying to keep up with it all.

Graham Henderson is the President and CEO of Music Canada, a non-profit trade organization which works on behalf of its membership of Canadian music labels, and their partners, the artists themselves. Before joining Music Canada in 2004, Henderson was a Senior VP at Universal Music Canada, having previously worked as an Entertainment Lawyer.

Miranda Mulholland, a veteran of the Canadian music industry, is a performer, record-label owner, and an advocate for artists’ rights. Beyond managing Roaring Girl Records, Miranda is the founder of the Muskoka Music Festival, and currently sits on the Board of Governors of Massey Hall/Roy Thomson Hall.

The session stood as a touch-base on the current state of an ever-changing creative marketplace, in light of a number of recent reports and recommendations released in 2019. It’s an interesting time for the music industry in Canada, especially considering the copyright reform that is currently underway in the US and EU.

Henderson described how 2019 saw the release of two documents important to the creative industry in Canada, and those interested in the modernization of Canadian copyright law. on June 3, 2019, the Standing Committee on Industry, Science and Technology (otherwise known as the INDU) completed and released their widely anticipated Statutory Review of the Copyright Act. In the works since December of 2017, the INDU consulted with various industry stakeholders, hearing 263 witnesses over 52 meetings, eventually providing 36 recommendations intended to help set the stage for copyright reform in Canada. Released just prior by the Standing Committee on Canadian Heritage (CHPC) was their report entitled Shifting Paradigms, focused on remuneration models for artists and creative industries. While the INDU’s review did not officially consider the CHPC report, the two documents provide meaningful insights when considered together, overlapping in some areas while remaining inconsistent in others, providing the government with much to work with as they begin any potential policy updates.

Henderson described Music Canada’s own report, Closing the Value Gap, released in late June of this year, subsequent to the INDU’s review and the report by the CHPC. Music Canada’s 2019 report reiterates the organization’s 2017 release called The Value Gap, which first detailed what they describe as the gap existing between artists and their revenues. In directing us to the 2019 report, Henderson and Mulholland described the way in which content creators continue to struggle in a digital marketplace, protected by copyright laws they see as holdovers from the analog era, even after the 2012 Canadian Copyright Act reforms.

Critics on the music industry side, including artists and other rights-holders, have pointed to weaknesses within the INDU’s review, finding that the recommendations do not go far enough to protect and ensure adequate remuneration for those creating the content we enjoy, or to provide an effective base for modernizing the Copyright Act. Henderson and Mulholland described for the audience how, in their view, the current lack of legislative safeguards for artists creates a form of subsidization for the tech sector that thrives on streaming digital content. Based on the recommendations in the INDU report, it appears that the government remains alive to the way in which copyright law acts as both a protective and a restrictive force which it aims to keep in equilibrium. While the legislature learns to keep up with the break-neck pace of digital and creative industry, growing pains will likely continue to be felt. Moving forward, it’s clear that there are various interests which must be balanced in modernizing the Copyright Act, whatever the eventual legislative outcome. As 2019 comes to a close, we look forward to seeing what’s on the horizon for Canadian copyright reform.

Meghan Carlin is a first-year student at Osgoode Hall Law School. With her time spent working in music licensing for film and television informing her legal studies, Meghan also acts as a 1L rep for the Osgoode Entertainment and Sports Law Association.

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