Archived - Quail, Mark

Dear Sirs/Mesdames,

I am writing to provide my comments as part of the nation-wide public consultation on the upcoming Copyright Act amendments.

I am a lawyer practicing in Toronto. My practice is restricted to music-related matters. This is my 20^th year as a lawyer in the Canadian Music Industry. In that time I have represented recordings artists, songwriters, film and TV composers, record companies, music publishing companies and digital download websites in practically every conceivable situation where music is used. I am also an author of various legal texts related to music law in Canada.

Rather than a form letter crafted by an industry trade-group seeking to preserve a distribution paradigm that is obsolete given the advent of the internet, my letter here will include comments on the direction of the arts and the manner in which our laws should be rendered to assist the arts.

We need a Copyright Act that anticipates the manner in which the new generation of content consumers is using intellectual property — bits of music and film, slices of visual arts etc, woven into their own works. This movement by young artists has been termed "Remix Culture" by a number of cultural pundits, most notably Professor Lawrence Lessig at Stanford Law School, and I believe it's apt. The roots of Remix Culture have been long visible as musical artists commonly quoted earlier works. What has brought Remix Culture into full flower, is the development of technology. We are now at the point where everyone has access to the modern tools to create cheaply and quickly. No longer must one fuss with cumbersome reel to reel tape decks like Pierre Henry did in the 1950s when developing his musique concrete. No longer are digital samplers like the Akai S900 the expense tools found only in professional recording studios. Today's computers and software are relatively inexpensive and widely available. Furthermore, the software is designed precisely to sample, cut and paste all tasks on which the current intellectual property laws cannot practically provide guidance.

To elaborate: it is trite to say that the past's works influence to present. Examples are myriad. Blues music riffs are found in jazz and rock n' roll. Filmmaker's from the past (Eisenstein's "Battleship Potemkin") influence filmmakers 80 years into the future (Brian DePalma's "The Untouchables"). And on it goes. What is different today is that technology allows artists to incorporate the exact piece of the prior existing work that influenced them into their new work. Music has been at the forefront of this trend since the 1980s when digital samplers became a staple took in recording studios. While some might quip that "just because they can, does not mean they should be allowed to", I would point out that the results of sampling prior works have been spectacular and I need only to point to the development of hip-hop music as a prime example. Remix Culture is a worthwhile endeavour and one that is not going to disappear any time soon. There can be little doubt that the technological tools will continue to advance. To ignore this in respect of crafting a new Copyright Act would be to fail. Proceeding another 20 years before another round of Copyright Act revisions will not help any party at the table here — creators or users.

With this in mind, my main comment and suggestion for your consideration would be to review the duration applicable to Copyright and to refine the rights associated with that duration. Life of the author plus 50 years is more than enough in my experience, in fact it might even be too long. If a work permeates public and artistic consciousness in an indelible way, waiting decades to incorporate its presence into new works restricts and retards cultural development. However, I do not realistically expect that the Minister would be able to reduce the duration of Copyright — the political fall-out would not be desirable.

What I would suggest be considered is a number of differing rights granted during the Term of Copyright. For example, from the point of creation and continuing for 20 years, the creator/author would have absolute control subject to the exceptions currently in the Copyright Act (fair dealing etc). 20 years after creation (and continuing until 50 years after the death of the author or similar time frames for corporate owners as are now in place), a portion of that work (whether it be 4 or 8 bars of music or so many frames of film) could be sampled and incorporated into a new work and the rate payable for such a use would be set by the Copyright Board. Such uses would not be subject to the artist denying such a use (subject to any moral rights arguments) and provided the proscribed rate was paid to the administering collective. The Copyright Board is already well versed in setting rates, so this should be of no difficulty. Such an approach would get around the administratively cumbersome and expensive task of applying to the copyright owner for a license but it would also require Canada to reinstitute the idea of a compulsory license and to refine the definition of moral rights to safeguard against defamatory uses but also to provide guidance on what is permitted.

Such a framework would provide a way for artists to move forward without a lawyer at their side advising on every legal issue that their art raises, a scenario that is everywhere today.

Lastly, in regards to wholesale piracy of creative works, particularly the unauthorized distribution of musical and cinematic works, I believe this government has to review two matters:

1. Internet Service Providers (ISPs) can no longer be allowed to hide behind whatever ideological arguments they have about their role as distributors. They control the pipeline through which infringing works travel. They have been granted licenses that foster their growth and allow them to make millions and with that benefit comes a responsibility to the creators/owners of the content that the public download through their pipelines. The ISPs' lobbyists have done a good job keeping the ISPs out of this debate to this point. However, this is going to have to change if a solution to internet piracy is to be found. A levy on internet usage has been proposed by other commentators on this issue and it is one worth considering by this government..

2. If the ISPs remain outside this issue, then the government is going to have to enact laws similar to what has been enacted in France with the "three-strikes" type approach.

   Ultimately, it might even be a blend of the two approaches that provides the solution for the next decade or so.

Thank you for reading my comments on this issue. There are many livelihoods at stake in these discussions, not to mention the cultural development of our nation.

Regards,

Mark Quail