Copyright Or Wrong? The Debate Over Proposals For Copyright Reform In Canada

http://www.ic.gc.ca/cmb/welcomeic.nsf/0/85256a5d006b972085256fcd0078718c?OpenDocument The Government of Canada Announces Upcoming Amendments to the Copyright Act OTTAWA, March 24, 2005 — Minister of Industry David L. Emerson and Minister of Canadian Heritage and Minister responsible for Status of Women Liza Frulla today released a Statement, on behalf of the Government of Canada, outlining proposed amendments to the Copyright Act that will address the challenges and opportunities of the Internet. These amendments will fulfill the Government's commitment to address the short-term group of copyright reform issues. Today, the Government also tabled its Response to the Standing Committee on Canadian Heritage with respect to its May 2004 Interim Report on Copyright Reform. The Response includes the Government’s statement. "We are pleased to have this opportunity to show Canadians how we intend to build a copyright framework for the 21st century," said Minister Frulla. "We must strengthen the hand of our creators and cultural industries against the unauthorized use of their works on the Internet." "The Internet provides an incredibly powerful new means of communications, research, education, innovation and entertainment," said Minister Emerson. "A balanced copyright framework will help to support the use of the Internet to foster innovation and learning, while establishing stable and predictable marketplace rules." The Government intends to introduce legislation later this spring that will implement the provisions of the 1996 World Intellectual Property Organization (WIPO) Treaties, clarify liability for Internet service providers, facilitate the use of the Internet for educational and research purposes, and harmonize the treatment of photographers with that of other creators. The Government recognizes the significance of the Internet as a learning tool for teachers and students as well as a platform for creators to disseminate content. Enabling the educational use of publicly available Internet material has proven to be a complex and contentious issue, however. Soon after tabling of the bill, the Government will open consultations on this issue for additional public input and consideration. Updating copyright law is an ongoing process. The proposed amendments represent a significant step in this regard, but consultations on additional issues of concern will take place as soon as possible after the bill is tabled. A backgrounder with highlights of the proposed legislation is attached. A copy of the Joint Statement as well as a series of frequently asked questions are available on the Internet at the following addresses: http://strategis.ic.gc.ca/epic/internet/incrp-prda.nsf/en/HOME, http://strategis.ic.gc.ca/epic/internet/inippd-dppi.nsf/en/home, and http://pch.gc.ca. Information: Jean-Philippe Côté Director of Communications Office of the Minister of Canadian Heritage and Minister responsible for Status of Women (819) 997-7788 Stéphanie Leblanc Office of the Honourable David L. Emerson Minister of Industry (613) 995-9001 Myriam Brochu Chief, Media Relations Department of Canadian Heritage (819) 997-9314 Annie Cuerrier Manager, Media Relations Industry Canada (613) 943-2502 ---------------- New release, April 2005 http://www.newswire.ca/en/releases/archive/April2005/15/c6081.html Attention News Editors: Government must keep promise - can't make Canadian authors, photographers, artists and publishers work for free TORONTO, April 15 /CNW/ - The federal government must keep its promise to consult publicly on the issue of access to copyright protected materials on the Internet, said a coalition of rights holder organizations representing Canadian authors, photographers, artists and publishers. At a news conference in Ottawa this morning, an educational special interest group had called on the government to break its promise and introduce legislation that would deny payment to creators when their works are copied from the Internet. "I am a parent and a creator. I need the income that my work generates to support my child, but more than that I need to ensure that we create a future in which all Canadian children who want to be authors, photographers or artists are encouraged to reach their potential and contribute their ideas," said freelance editor Susie Berg. "If the government legislates that people don't get paid when their works are copied from the Internet, it will be sending a clear message to our children that creativity has no value in Canada." On March 24th, the federal government released a statement outlining its proposals for copyright reform. The statement presented the direction that will be taken in the copyright reform legislation that is anticipated to be tabled in June. The government clearly stated that there would be open public consultation on the issue of the use of materials on the Internet, and that the current proposed legislation would not address this issue. "Works that are posted online and are meant to be freely used, should be free. But creators who use the Internet to promote their work and earn a living should not be forced to give that work away for nothing," said Berg. "The government does not ask any other type of worker to work for free, so today we are calling on the government to keep its promise and consult on the issue before including it in any copyright reform legislation." Rights holder groups have proposed a solution to the issue of using materials posted on the Internet that would provide simple, fast and legal access to copyright protected works. This solution, called collective licensing, is already used in countries like Australia to provide access to materials on the Internet, and in Canada is used to provide access to print materials while ensuring that rights holders are paid fairly for the use of their work. A report on creators' earnings funded by the Department of Canadian Heritage, the Canada Council for the Arts, and the Ontario Arts Council was released in September 2004. The report found that creators have high levels of education but on average earn less than 75 per cent of what the overall labour force earns, and their earnings have not increased at the same rate as those of the overall labour force. The Creator and Publisher Coalition includes: Canadian Publishers' Council (CPC) Canadian Educational Resources Council (CERC) Canadian Society of Children's Authors, Illustrators and Performers (CANSCAIP) Canadian Community Newspapers Association (CCNA) Periodical Writers Association of Canada (PWAC) Saskatchewan Writers' Guild (SWG) Alberta Magazine Publishers Association (AMPA) Writers Alliance of Newfoundland and Labrador (WANL) For further information: Catherine Allman or Will Fripp, hawkestone communications - public affairs, Tel.: (416) 485-4606; Email: info@hawkestone.com ------------------------------ Russel McOrmond's draft reply: http://www.digital-copyright.ca/scratchpad/index.php?ExcessCopyright200504-1 Information release: Government must not impose business models on creativity! On April 15, 2005, the "Creator and Publisher Coalition", largely a subset of the members of Access Copyright, sent out a press release claiming that their interests were being harmed by the Internet. They offered a solution of collective licensing. As members of a collective licensing agency, this proposal is anti-competitive. It is a self-serving attempt to impede the adoption of new Internet-based business models that make *all* Canadians creators and publishers. Previous to the Internet there were a limited number of business models to fund written creativity. Since there was a high per-unit cost to produce books and magazines it was understood that creators would often be paid after-the-fact based on sales of those materials. With new media such as the Internet this per-unit cost does not need to exist, allowing a full spectrum of business models. One of the models that emerged is sometimes called Open Public Access. Because of the low cost of reproduction and distribution, the incentives for creativity can be paid up-front. Once created (and the artist paid), the work is freely available for distribution. This is the essence of the public Internet. This type of open public access enabled services to emerge that depended on this arrangement where no additional fees are required, including search engines and archivers which are considered critical to the infrastructure of the Internet. The Internet is extremely flexible, and offers the ability to use passwords and other ways of knowing the identity of an audience. A specific audience member can have a unique agreement with a copyright holder. While these audiences can be required to pay a fee for access, it should be obvious that public search engines or archives would only index materials which are publicly available without additional charge. In this way the Internet offers a full spectrum of incentive models for creativity from those custom for an audience, available to a specific group, or open to an unknown anonymous public audience. What collective licensing does is destroy this full spectrum of incentives by imposing a single "group plan" business model on all creativity. An audience member would have no incentive to create a custom plan as, if forced by the government to pay the "group plan" rate, they would already have full access. A funder would not be willing to fund creativity to be Open Public Access as audiences would be forced to pay for the "group plan" whether the material they wished to access was intended to be open to the public or not. Where the press release from the coalition claimed that the Internet is harming the interests of creators, it seems that the real harm comes from the proposal of this coalition. Where a free market is finding creative ways to provide incentives and funding for creators, this coalition is asking the government to impose an outdated business model on all creators and thus stop innovation in this marketplace. I agree with the coalition that the government must have a public consultation on this question. With adequate education of creators and policy makers a positive outcome is possible: a firm rejection of the Access Copyright proposal and a legal clarification that copyright must support a full spectrum of incentive models for creativity. Contact information: Russell McOrmond Phone: (613) 733-5836 http://www.flora.ca/#contact More information: March 15 press release from the coalition http://www.newswire.ca/en/releases/archive/April2005/15/c6081.html Excess Copyright? Towards a full spectrum of business models for published works http://www.flora.ca/russell/drafts/excess-copyright.html Digital Copyright Canada forum http://www.digital-copyright.ca/ ------------------------ Russell McOrmond and Susan Crean debated this issue at the first Rabble rumble ( http://www.rabble.ca/rumble/ ) For an introduction to copyright, their pro and con positions and a rebuttal, see: http://www.flora.ca/creators/crean20021029.html Further letters between Russell and Susan are posted at the following links: http://www.flora.ca/creators/crean20040330.html http://www.flora.ca/creators/crean20040331.html http://www.flora.ca/creators/crean20040420.html http://www.flora.ca/creators/crean20040426.html Or visit http://www.flora.ca/creators/, which indexes all of the links in this last section, and has "the purpose of connecting Canadian creators. We need to connect so that we can form common policy understanding and goals on copyright and other Canadian cultural policy." ----------------- Other resources: CANADA REJECTS ONE-SIDED APPROACH TO COPYRIGHT REFORM by Michael Geist (Canada Research Chair in Internet and E-commerce Law at the University of Ottawa) appeared in the Toronto Star, March 28, 2005 excerpt/intro: "Last spring the Canadian Heritage Standing Committee, a parliamentary committee chaired by Toronto MP Sarmite Bulte, conducted a series of hearings on copyright reform. Listening to a steady stream of rights holder groups, the committee virtually ignored the interests of users, researchers, educators, and the broader public interest as it proceeded to issue an embarrassing report featuring a series of recommendations devoid of any sense of balance. The report was obviously applauded by rights holders groups – the Canadian Recording Industry Association quickly issued a press release praising the report and calling for its immediate adoption -- however, in the months that followed the committee and its recommendations faced an increasing barrage of criticism. The education community, led by provincial ministers of education, loudly protested the recommendations, while Canada’s security IT community issued a public letter warning of its danger to that budding economic sector. The June federal election also altered the long-term impact of the report. The committee lost many of its original members, with at least one, former Liberal MP Paul Bonwick, wasting little time in signing up as a paid lobbyist for Access Copyright, a leading copyright collective and a prime beneficiary of the report. The new committee adopted a decidedly different tone. Although it re-tabled the recommendations to obtain a governmental response, Marlene Catterall, the new committee chair, publicly expressed a desire to learn more from both sides about the issues. NDP committee member Charlie Angus was even more direct, warning that 'the recommendations could herald the end of the Internet as a digital intellectual commons.' " Full article (which includes many useful hyperlinks): http://www.michaelgeist.ca/resc/html_bkup/mar282005.html --------- For the latest updates and resources on copyright reform in Canada, visit the following blog: http://www.faircopyright.ca/ Most recent entry there: March 28, 2005: ROUND TWO TO USERS? Pretty good news on Thursday from the Ministers of Industry and Heritage. Responding as required to the Heritage Committee's retabled Interim Report on Copyright Reform (the "Bulte Report"), they have backed down in almost every area from the damaging proposals in that report. This is not legislation: details will tell what this all really means. Notable differences of language and emphasis between the various documents released (a press release, a backgrounder, a letter from the ministers, a statement, and some FAQs) raise questions about the government's direction. But it appears that the ministers may be starting to get it. A few highlights: •no US-style "notice and takedown": if a rights-holder alleges copyright infringement on the Internet, the ISP (internet service provider) will have to notify the subscriber, but will have no power or obligation to take down the material unless a court makes a finding of infringement. •no extended licensing of the Internet, interlibrary loan, or technology-enhanced learning. Phew! However, there are a lot of complexities here still. The Ministers say they'll start a round of consultation on educational use of the internet shortly, so perhaps we will see an occasion to let the weight of CCH and reason sink in. However, the very permission proposed for educational use of digital materials "until such time as the collective societies' blanket licenses authorize such electronic delivery" seems to operate on a ridiculously narrow definition of fair dealing. And the backgrounder speaks of an exception for "the electronic interlibrary desktop delivery of certain copyright material, notably academic articles"--in legislation, this could be a very small exception indeed compared to the breadth suggested by CCH. And so on. In other words, this is not time to relax on educational issues. •the Ministers seem to propose something softer than the US DMCA by way of implementation of the 1996 WIPO treaties--for example, they propose that circumvention of technological protections on digital material would only be infringement if the use of the material is infringement--but the ban on "enabling or facilitating" circumvention may make it pretty hard for people to exercise fair dealing rights or access public domain materials in digital form. As Russell McOrmond has rightly pointed out again and again, technological protections create limits on access, and building those walls higher through copyright law, which is supposed to be about copying, is a real threat to innovation and democracy. So: still many questions with taking the WIPO path. •Photography term is extended, and though those commissioning photos for private purposes will have the right to use those photos, there remain concerns about privacy and archival access. If you're one of the many who have been promoting fairness in copyright policy to MPs, Ministers, school boards, coworkers, or people unfortunate enough to sit beside you on the train (though perhaps only some of us are so ill-mannered), you can take this government announcement as a sign that somebody (i.e., the Department of Industry at least) is listening. All the more reason (alas) to keep up the advocacy and education: anything could still happen between now and new laws. It's a minority government, which will tend to keep the legislation modest, but the rights-holder lobbies are going to be pushing harder than ever now that they aren't quite sure they will win. More: http://www.faircopyright.ca/ [Proofreader's note: this article was edited for spelling and typos on April 21, 2005]