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Aug 28 2009

The Honourable Tony Clement
Minister Of Industry, Science & Technology
House of Commons
Ottawa, Ontario
K1A 0A6

The Honourable James Moore
Minister of Canadian Heritage and Official Languages
House of Commons
Ottawa, Ontario
K1A 0A6

The Right Honourable Stephen Harper
House of Commons
Ottawa, Ontario
K1A 0A6

Dear Ministers,

There is widespread consensus that any new legislation must be technologically neutral. There is also widespread consensus that old business models should not take precedence over emerging ones. But while technological neutrality is important, new legislation must also be creatively neutral. In the same way that new copyright legislation must not favour outdated business models, neither should legislation favour obsolete notions of creativity, authorship/readership and cultural economics.

In Canada we have a hierarchy of rights. Canada's Freedom of Expression is a Charter Right and as such an inalienable right. Copyright is a Statutory Right (a lesser right). Any changes to Copyright legislation must first and foremost encourage and protect Freedom of Expression and ensure that the rights granted to copyright holders must therefore not eclipse Freedom of Expression. Contracts and trade agreements (such as ACTA) must comply with Charter and Statutory Rights and must not be allowed to usurp the rights of copyright holders.

Any discussion of creator's rights must include access to existing material. The Supreme Court has stated "the fair dealing exception, like other exceptions in the Copyright Act, is a user's right." Those who 'appropriate' rely on Fair Dealing; the right that allows access to existing works. Fair Dealing guarantees the right to criticism, parody and satire. It allows educational use and enables libraries to exist. Fair Dealing is the right that encourages criticism, dissent and difference and ensures Freedom of Expression. Fair Dealing is the right that prevents censorship and wholesale privatization of culture.

Today many artists and creators use, reproduce, appropriate and incorporate materials found within popular culture and society. These raw materials reflect and embrace the world around us: snippets of film and TV, radio spots, advertisements, news headlines, bits of text, characters, fragments of song…and so on. Artists use this source material just as artists have used raw material for thousands of years. Artists use this source material because it is meaningful and relevant and evocative. Artists must have the freedom to transform this raw material into new works with new interpretations and new meanings in order for culture to advance. These new works push boundaries, question the status quo, advance technologies. These new works encourage experimentation and invention. And while appropriation practice may not be the foundation for every artist, it is inconceivable that in Canada we would actually advocate restricting or even banning these forms of expression.

The concern is that new legislation will mark a paradigm shift in Canadian copyright law and that copyright law will be subverted from its original intent which is to protect Canadian culture. The concern is that copyright law will actually be used to define or even censor Canadian culture. As it was written, Bill C-61 increased the control of the copyright holder while effectively eliminating Fair Dealing. Had Bill C-61 passed, works would have been censored not for their content but for their creative process. The "legitimacy" of cultural works would have been determined not by artists, curators, educators, writers, critics, publications, museums, galleries and the public but by corporate interests and largely foreign corporate interests. Should similar legislation be written and passed, the practice of Appropriation will be eradicated. Canada would become the first country to make illegal a historic, legitimate and internationally recognized art form. This is unacceptable.

Expansive and restrictive copyright laws are often justified in the name of benefitting artists. Yet the laws that were included in Bill C-61 would stifle and destroy Canadian creativity and culture. Canada is not a country that will flourish under excessive copyright laws. We are a country that celebrates diversity and multiple viewpoints. We encourage independent creativity and commentary. We want to ensure that Canadian Culture and its Citizens remain Free, Expressive and Independent. We ask that all artists be given a fair voice. To preserve the original intent of copyright, new legislation must include the following principles:

Fair Access to Copyrighted Material Lies at the Heart of Copyright

Lobbyists for the copyright industry claim that copyright owners need greater control over works. This is a misrepresentation of copyright. Copyright is meant to protect and encourage creativity not suppress and restrict it. The law grants copyright owners limited rights over their works. Balanced against those rights are the rights of those who follow. Creators need access to the works of others to create. Legislative changes premised on the "need" to give copyright owners even more restrictions over their works must therefore be rejected.

Artists, Creators and Galleries Require Certainty of Access

Artists who use appropriation in their practice, rely on Canada's fair dealing exception to create. Fair dealing is a narrow right, too narrow to support this work. These works of art do not compete with the appropriated material, nor does the value of the work of art derive from the value of its subject. Creators should enjoy the support of the law, and not have to work under conditions of uncertainty and fear. The time has come for the Canadian government to consider replacing fair dealing with a broader defense, one that will offer artists the certainty they require to create and exhibit their work. Any new legislation should, at the very least, include exceptions consistent with recent legislation such as sections 3 (5) and 3(6) (parody and artistic use) of Bill C-47 .

Anti-Circumvention Laws Must Not Outlaw Creative Access

Any legislation which prohibits the circumvention of technological barriers must be linked to infringing activity. Artists who use appropriation work with a contemporary palette, using new technology. They work from within popular culture, using material from movies and popular music. The law must not outlaw otherwise legal dealings with copyrighted works merely because a digital lock has been inserted. Contemporary culture must not be immune to critical commentary. Exciting and important new forms of creativity will be destroyed if anti-circumvention laws are imposed.

Sincerely,

Amy Fung
Edmonton
Alberta

CC: Marc Garneau - Official Opposition Critic For Industry, Science & Technology
CC: Pablo Rodriguez - Official Critic For Canadian Heritage and Official Languages
CC: Charlie Angus - NDP Digital Affairs Critic