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CAUT Bulletin Archives

April 2005

Artists, Educators & Industry Clash Over Copyright

We need to carve out a balanced position on copyright. The interests of the entertainment industry and of individual artists and creators are not the same.

When Parliament's Standing Committee on Canadian Heritage released its interim report on copyright reform last year, Myra Tawfik says her first reaction was shock.

"Champagne corks were popping in Hollywood, but for educators the document was devastating," said the University of Windsor law professor and member of CAUT's copyright working group.

The report, unanimously endorsed by the all-party committee, called for, among other policy changes, a tax on Internet use by educational institutions.

"Committees usually make at least a pretence of listening to both sides, but this report read like a shopping list of entertainment industry demands," Tawfik said. "The tone was incredible, just dripping with disdain for the educational community."

The recommendations were issued despite a concerted effort by library, education, museum and archive associations to present a public interest perspective to the committee.

"The law must balance the competing interests of creators, owners and users of copyright material," says Paul Whitney, chair of the Canadian Library Association's copyright committee.

"The committee nodded and smiled as this argument was presented, but it's obvious they weren't interested in what we had to say."

Although the report was a setback, it represented just one part of a complex legislative process. Since its release in May 2004 Canadian Heritage and Industry Canada, which also plays a role in shaping copyright legislation, have been negotiating to reach a joint position.

In the interim, advocates for balanced copyright provisions say the report worked to reignite the user community.

"It was a wake up call," Whitney explains. "A reminder that simply making polite, rational public interest arguments is not enough."

Armed with a tougher message and renewed determination, groups such as the Canadian Library Association took the struggle beyond the committee, meeting with individual MPs and organizing grassroots opposition to the report.

At the same time, hope also arose unexpectedly from within the Heritage Committee itself in the form of NDP MP Charlie Angus. Newly elected from the riding of Timmins-James Bay (Ont.), Angus enjoyed a career as a musician, writer, broadcaster and community activist before entering electoral politics. As a member the legendary alt-roots band The Grievous Angels, he learned first hand about the struggle to make a living in music.

"Bands would sign their futures away to record labels and every dollar earned went to middle men along the way," Angus says. "The performers ended up with nothing."

That experience left him instinctively wary of entertainment industry claims of concern for actual artists and prompted his interest in serving on the Heritage Committee.

Angus moved into the committee seat vacated by retiring NDP MP Wendy Lill, a Nova Scotia playwright, longtime advocate for Canada's cultural community and believer in more restrictive copyright law.

"Wendy is a passionate voice for artists and I hope to be able to carry on that tradition," Angus says. "But at the end of the day we need to carve out an alternate position on copyright. The interests of the entertainment industry and of individual artists are not the same."

Lill had endorsed the committee's report. With the arrival of Angus, the committee's unanimous support of the document ended.

Of the report's recommendations, the Internet levy on institutions was perhaps the most contentious. The proposal requires a mandatory payment from schools, colleges and universities to the representatives of commercial Internet content, regardless of whether or not any of their material is used. The payment, based on an abstract formula, notionally excludes or "zero-rates" the 95 per cent of Internet content that is free.

Even so, the requirement challenges the notion of the Internet as a public space. Instead of having to sell products online through subscription, encryption or password protection, the levy would direct an automatic payment from educational institutions to commercial rights holders.

Aside from the impracticality of finding and paying the mostly foreign providers of commercial content, the proposal also raised deeper philosophical concerns.

Angus says the Internet is a "public commons" that must be defended. "Copyright does not mean pay per use, but that is what is being pushed - a pay per use universe where a price tag is put on everything," he contends.

He said his concern about the levy stems in part from his own experience as a musician. Relying on the Internet, he was able to circumvent third party record labels and distributors and connect directly with the music buying public.

"The corporate line is that the Internet is where artists are robbed, but it's really a place where we can gain enormous control," he adds. "It's incumbent on artists to recognize that if we put up road blocks, toll booths and levies on the Internet, then big corporations benefit and small artists are hurt."

Angus also said he's appalled by what the levy represents for educational institutions and cultural policy in Canada more generally.

"It's an attempt by the government to downsize its obligation to support artists, transferring the load onto the backs of educational institutions," he says. "Not only is it unfair, but it also won't work because that money is going to end up in corporate pockets, not in the hands of ordinary writers and musicians."

That stark distinction between creators and owners is not shared by Clem Martini, a drama professor at the University of Calgary and president of the Playwrights Guild of Canada.

"It's not about us versus them," he said. "To succeed as an artist, one must receive adequate compensation and the source of that compensation is often larger publishing companies. If those companies are damaged as a result of inadequate copyright protection, the market is diminished and then ordinary writers are also hurt."

He identifies illegal Internet use, not the entertainment industry, as the source of danger for artists, with widespread unauthorized downloading of material endangering the whole notion of copyright.

"Almost no one is getting fabulously wealthy off writing and if creators don't have access to payment for the material they generate, it becomes impossible for them to make a living," Martini said.

"If you can simply download other people's material off the Internet for free, no payment is received by the creator and then there is no reason to create or publish. And who benefits from that?" He believes the solution is stronger copyright law.

Stronger copyright law, in the form of the Digital Millennium Copyright Act, is the route being pursued in the United States. Jonathan Tasini, president emeritus of the U.S. National Writers Union (NWU), is familiar with the disputes that can arise within the artistic community as a result.

"Large publishing and media companies make life hard for individual creators, but we end up supporting their copyright maximalism because we have come to accept it is necessary to ensure a decent livelihood," Tasini says.

He says the alliance might make some sense if the benefits of stronger law were flowing to creators, but in fact the opposite is happening.

"In real terms the contracts are getting worse, remuneration is declining, media companies are seizing more rights and they aren't sharing new sources of revenues."

As with Angus and Martini, Tasini's views on the issue are shaped by his personal experience as a creator. A disagreement with his publisher resulted in an epic legal struggle that went all the way to the Supreme Court. Ruling in his favour, the Court held that The New York Times and other companies had committed copyright infringement when they resold digital versions of articles from freelance writers without the authors' permission.

"The lesson was that publishers are not our friends," Tasini says. "Strong collective bargaining rights, rather than stronger copyright law, are what's necessary to ensure decent terms for workers."

An unexpected alliance with the American Library Association (ALA) also played an important role in his victory, Tasini said. Instead of fighting with user groups on copyright reform, Tasini and his colleagues in the NWU started a dialogue.

"We approached copyright not simply as a pocket book issue, but in a larger social context," Tasini said. "As creators we stand on the shoulders of those who came before us, so it is our responsibility in turn to allow easy access to our works."

From this dialogue the ALA filed an amicus brief with the Supreme Court in support of Tasini's position, a brief thought to have played a critical role in the outcome of the case.

While this type of dialogue is in its infancy in Canada, Charlie Angus says he senses a shift in the tide. He notes a small but growing number of artists who are staking out a user-friendly position on copyright. He also detects a change on Parliament Hill.

"MPs have been hearing from library groups, from educators, from the general public and there is a growing unease about the direction recommended in the committee's report,"Angus says.

Within the committee itself, in addition to Angus's appointment, other changes have taken place. After the June federal election, Sarmite Bulte, the Toronto MP who had received thousands of dollars in campaign contributions from copyright owner groups and broadcasters, was not reappointed as committee chair. Another hardline member, Simcoe-Grey MP Paul Bonwick, lost his reelection bid. He is now a registered lobbyist for Access Copyright, a staunch advocate of restrictive copyright legislation.

Will these changes be enough to trigger more balance in Canadian copyright law? At press time Industry Canada and Canadian Heritage released their proposed amendments to the Copyright Act. The Internet levy was not included in their proposals.