Hogarth, Don

Don Hogarth
Toronto, Ont.

Re: Submission to Copyright Consultation

I am a communications consultant with clients in a wide array of industries, including entertainment and advanced technology. I have witnessed directly the negative impact of runaway unauthorized Internet downloading on the entertainment industries. And through my work with advanced technology clients, I have come to appreciate the need for robust IP protection of all sorts.

IP protection, whether copyright, trademarks or patents, safeguards the foundation upon which an increasing number of Canadian businesses are based. It gives businesses the confidence they need to invest time and money, it enables them to generate revenues and profits from their creations, and makes it possible for them to employ Canadians. By extension, it also provides a foundation for the generation of government tax revenues and overall economic growth — functions that take on greater importance as Canada's manufacturing base declines.

The flip side is the impact of inadequate IP and copyright protection. I have seen directly the impact of this on people — when layoff notices are issued to employees of record labels larger and small, and on young Canadian artists who can't earn a living from their craft and in many cases can't even get a start.

As a Canadian with a strong emotional bond to this country, I'm also concerned when I see the impact on Canadian culture — the very lifeblood of what makes us Canadian — as a result of sales lost to downloading. Money that once was recycled back into artistic development by the music industry, for example, has dried up. This means that a great untapped wealth of new Canadian music remains undiscovered by the public. It also results in artists moving on to other careers, unable to earn a living from music. All too often, the resulting void is filled by artists from outside our borders.

It is dismaying to see the approach taken by some of the most outspoken copyright reform opponents when they comment on this issue. So often, they paint anyone — or any industry — that supports copyright reform as selfish or anti-consumer. They frequently frame the debate as one of "industry vs. the people". Nothing could be further from the truth. After all, artists and the employees of entertainment companies are Canadians like any other. The industries in question — and their employees — depend on "the people", i.e. consumers, for their living. They work each and every day to create songs, TV shows, movies, software and more that will have broad popular appeal, and to market and sell them in ways that will attract consumer interest. Of course, they object to having their creations stolen on the Internet by the minority of consumers who do so, and seek a legal framework in Canada that will help stop unauthorized file sharing.

Reform opponents too often play upon anti-American rhetoric, claiming that this debate is a battle of wills against American interests. Almost every day the blogosphere is alight with ominous references to the "US DMCA". But here they again ignore the facts. WIPO-compliant copyright reforms have been enacted not just in the US, but across Europe and among all of Canada's developed-country trading partners. And it is not just "American" interests that support copyright reform. How about the numerous Canadian independent record labels, movie and TV producers and distribution companies? How about the tens of thousands of Canadian artists represented by ACTRA and AFM, both of which support robust digital copyright amendments? How about the young Canadian artists who can't get a start because their work is "shared" by thousands of people on the Internet, without compensation?

The other troubling part of this debate are the myths propagated and repeated by zealous reform opponents — even after the real facts must be known to them. We are sometimes told that copyright reform will "lock down" culture and personal property, that educators will be prevented from educating, that Canadians will face massive invasions of their privacy, and worse! Where is the evidence for these "concerns"? No such issues have arisen in any of the many countries that have enacted WIPO-compliant copyright reforms. Even if there was an ounce of truth to them — which there is not — it's fair to presume that statutes such as the Privacy Act and the Canadian Charter of Rights and Freedoms would safeguard the rights and values that Canadians cherish.

The issues surrounding copyright reform come down to this: the right of creators and those who own creations to have their own property protected under law, whether they are physical creations or ones that can readily be digitized, copied and distributed on the Internet. If a creator chooses to give away their property, they should be allowed to do so without constraint. However, if they wish to sell their creations, Canadian copyright law should provide them with the framework to do so on terms of their own choosing. This will in no way affect the position of consumers in a legitimate marketplace: ultimately, they will have the right to decide how to spend their own money. In an open, legitimate marketplace, they will choose the products and services they want, through the channels they prefer.

Consumers will benefit as well through the profusion of choices that will result from a sound legal framework for the Internet. Companies that have thus far shied away from introducing new digital distribution models in Canada will invest in this country — confident that they have an opportunity to earn a return on their investments. Innovations that are taking other markets by storm will become available to Canadians. And Canadian creators will be provided with an incentive to create. All of this adds up to more choice for consumers.

One of the most dismaying aspects of Canada's current, outdated legal regime is the impact of the uncertainty it creates among many consumers about the type of behaviour that is acceptable on the Web. Too many people have come to believe that it's somehow OK in this country to take other people's property without their permission — so long as it's over the Internet. In my view, that above all is why Canada must modernize its copyright regime immediately — to send a clear signal that theft is not OK.

The principles outlined by the government when it introduced Bill C-61 captured the essence of the reforms we need. These are, namely:

• The rights of those who hold copyright must be fairly balanced with the needs of users to access copyright works.

• The Copyright Act must provide clear, predictable and fair rules to allow Canadians to derive benefits from their creations.

• The Copyright Act should foster innovation in an effort to attract investment and high-paying jobs to Canada.

• Canada must ensure that its copyright framework for the Internet is in line with international standards.

In applying these principles to an updated Copyright Act, the reforms must, at a minimum:

• Createonline legal certainty to enable a robust legitimate online marketplace.

• Provide strong copyright protection that provides incentives for entrepreneurs to invest in innovative new digital business models thatenhance Canadian consumer choice.

• Effectively protect creators' investments of time, money and creativity.

• Avoid vaguely-worded, open-endedor flexible exceptions tocopyright that invite litigation, create legal uncertainty and deter new business models.

• Prohibit hacking of digital protections of creative works under the same principles that prohibit picking locks, hacking computers, stealing satellite signals or trafficking in break-and-enter tools.

• Modernize Canada's copyrightlaws in accordance with the WIPO Treatiesand international best practices soCanada is in line with the European Union, the US, Japan and our other major trading partners.

• Provide clear rules againstunauthorized file sharing services to ensure that Canada does not become a haven forillegitimate operations thatprofit from enabling themassive theft of other people's property.

After the consultations have come to a close, I urge the government to step beyond the rhetoric. I urge the government to develop the best possible solution for Canada and Canadians — one that reflects reasoned arguments and provides real protection of intellectual property on the Internet.

The issues at the heart of this debate are not new. The WIPO Internet Treaties were signed by Canada and other nations in 1996 — more than 10 years ago. Two copyright reform bills have been introduced in more recent years, only to be ended prematurely by election calls. Many of Canada's closest trading partners have in the interim moved far beyond WIPO, with additional reforms.

Based on what we know from their experience, the upside of reform is impressive. A legitimate marketplace guided by adequate rules will deliver economic, job creation and cultural benefits while safeguarding the rights of creators. Canadian consumers will gain choice. And Canada will position itself to become a leader in digital innovation at no incremental cost to taxpayers.

I urge you to inscribe the principles outlined above into law without further delay.

Thank you for the opportunity to share my views on copyright reform and to participate in the government's consultation process.

Regards,
Don Hogarth

Cc
Hon. Tony Clement, Minister of Industry, Trade and Technology
Hon. James Moore, Minister of Canadian Heritage and Official Languages
Hon. Bob Rae, MP, Toronto Centre