ARCHIVED — Writers' Guild of Canada

Copyright Reform Process

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

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Submission from the Writers' Guild of Canada received on September 17, 2001 via e-mail

Subject:

PDF Version of the Submission regarding the Consultation Paper on Digital Copyright Issues
PDF Version of the Discussion Paper on the Compulsory Retransmission License and the Internet

Writers Guild of Canada Submission Regarding the Consultation Paper on Digital Copyright Issues

DIGITAL ISSUES CONSULTATION PAPER

Introduction

The Writers Guild of Canada is the national association representing more than 1,500 professional English-language screenwriters working in film, television, radio and new media in Canada.

The WGC exists to further the professional, creative and economic rights and interests of screenwriters in Canada working radio, television and new media.

The WGC's primary collective agreement is the Independent Production Agreement (IPA) with the Canadian Film and Television Producers Association (CFTPA) and l'Association des Producteurs de Films et de Télévision du Québec. In addition, it has collective agreements with the CBC, CanWest Global, CTV and TVOntario. The WGC is formally recognized as the official bargaining agent for English-language professional screenwriters under the federal Status of the Artist Act, as well as under Quebec's Status of the Artist Legislation.

In late 1998, the Writers Guild of Canada established the Canadian Screenwriters Collection Society (CSCS) as a not-for-profit corporation with the mandate of administering the rights of Canadian writers to collect royalties and levies to which screenwriters are entitled under copyright legislation worldwide from the secondary uses of audiovisual works, such as private copying, rental and retransmission. In March of 2001, CSCS applied to the Canadian Copyright Board for a retransmission royalty on behalf of its members.

The Writers Guild of Canada has reviewed the Consultation Paper on Digital Copyright Issues released by the Departments of Canadian Heritage. We support the Departments in their efforts to implement provisions contained in the recent WIPO treaties on these issues.

The Writers Guild of Canada supports all four proposals, subject to certain qualifications or clarifications set out below, as necessary steps in implementing provisions set out in the WIPO treaties on digital issues. We further believe that implementing these measures will remove impediments to the legitimate on-line distribution of audiovisual content, and will establish a foundation in the digital world for balancing the interests of creators and other rightsholders, ISPs and other intermediaries, and users.

Right of Making Available: Performances, Sound Recordings and Works

The Writers Guild supports the Departments' proposal to implement the WIPO Performances and Phonograms Treaty by entrenching a right of making available for performances and sound recordings.

At the same time, the Guild believes that "right of making available" should be provided, not only for performances and sound recordings, but also for works.

We recognize that in 1998 expert consultants retained by the federal government concluded that the Copyright Act's communication right is sufficiently broad to include a making available right for authors and their successors.

However, we share with the Directors Guild of Canada the concern that if a right of making available is introduced for performers' performances and sound recordings, the scope of protection will be open to debate if there is not a corresponding explicit right for works.

For this reason, it is the Guild's position that, to fully implement the right of making available in Canada, an explicit right of making available is necessary for works.

Given the conclusion of the expert consultants, we do not believe that the introduction of an express right of making available for works will affect the existing balance among different copyright interests. It will simply provide clarity and reduce potential ambiguity that could arise from expressly specifying such a right in some cases-performances and sound recordings-while being silent in others-works.

Legal Protection of Technological Measures

The Writers Guild shares the Departments' recognition that the issues raised in this context are extremely complex, and understands their desire not to adopt a legal framework that might risk impeding legitimate uses of copyrighted works.

Accordingly, we support the intention to discuss the issues relating to anti-circumvention measures in "a broader dialogue with all our copyright stakeholders on the appropriate contours of copyright in this environment".

However, the Writers Guild wishes to express at this time its belief that protection for rightsholders will be inadequate if this is confined to simply prohibiting acts of circumvention rather than focusing on technologies which make this type of copyright theft possible.

In an on-line digital world, the practical reality is that the potential for mass circumvention of copyright protection is so great that leaving the onus on individual rightsholders to pursue these cases as they occur would have the effect of allowing widespread copyright violation.

As the case of Napster has demonstrated in the music industry, the process of halting such systematic copyright violation in an online environment where digital copying effectively becomes a form of distribution is both extremely costly and time-consuming. Moreover, there is serious concern that new peer-to-peer file-sharing technologies are already being developed which will make it even more difficult to identify copyright violators and halt the process.

At this stage, there is a clear need to at minimum implement the WIPO treaty in Canada, and this should take the form of amendments to the Copyright Act to prohibit acts of circumvention and prohibit the use of circumvention devices.

With respect to the latter, exceptions will have to be set out to allow for legitimate uses-and it is in this regard that we believe an extended, open dialogue involving government, copyright holders and users would be most beneficial.

Legal Protection of Rights Management Information

The Writers Guild considers it essential that effective legal protection of rights management information be enshrined in the Copyright Act.

With respect to the proposals set out by the Departments consultation paper, we favor Option A.

While the Writers Guild is actively participating in plans for the domestic implementation of a new universal standard for tracking audiovisual works through individual identifying codes (The International Standard Audiovisual Number, or ISAN), we do not believe it appropriate to confine the protection of rights management information to such identifiers. The definition of rightsholder information should be broader. That definition should at least provide the minimum protections set out in the WIPO treaties, while also including identifying numbers such as ISAN numbers.

Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright

The Writers Guild supports the provision of a limitation on liability of ISPs. However, we believe this exemption should be carefully confined to those circumstances where the ISP has passively, in other words unknowingly, carried infringing activity and has acted promptly to observe notice-and-take-down provisions. Beyond these limited circumstances, ISPs should remain liable.

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Response to the Discussion Paper on the Compulsory Retransmission License and the Internet

Introduction

The Writers Guild of Canada is the national association representing more than 1,500 professional English-language screenwriters working in film, television, radio and new media in Canada.

The WGC exists to further the professional, creative and economic rights and interests of screenwriters in Canada working radio, television and new media.

The WGC's primary collective agreement is the Independent Production Agreement (IPA) with the Canadian Film and Television Producers Association (CFTPA) and l'Association des Producteurs de Films et de Télévision du Québec. In addition, it has collective agreements with the CBC, CanWest Global, CTV and TVOntario. The WGC is formally recognized as the official bargaining agent for English-language professional screenwriters under the federal Status of the Artist Act, as well as under Quebec's Status of the Artist Legislation.

The Canadian Screenwriters Collection Society (CSCS) is a not-for-profit corporation established by the Writers Guild of Canada in late 1998 with the mandate of administering the rights of Canadian writers to collect royalties and levies to which screenwriters are entitled under copyright legislation worldwide from the secondary uses of audiovisual works, such as private copying, rental and retransmission. In March of 2001, CSCS applied to the Canadian Copyright Board for a retransmission royalty on behalf of its members.

Position of the Writers Guild of Canada Regarding Internet-based Retransmission

The Writers Guild shares common interests with Canadian producers in seeking to protect the commercial and artistic integrity of audiovisual productions created by our members. As holders of copyright in the screenplay, the underlying work essential to an audiovisual production, screenwriters have a direct stake in any proposal to extend the retransmission regime beyond existing conventional broadcasting distribution undertakings (i.e. cable, satellite, and multi-point distribution systems).

As the Departments of Canadian Heritage and Industry Canada note in the consultation document, The Internet is a new medium that has the potential to supercede existing distribution/broadcast technologies, substituting for existing markets from which producers and underlying rightsholders derive their revenues.

On behalf of screenwriters, the Writers Guild wants to ensure that the evolution of this new medium takes place in a manner that does not erode the value of the intellectual property that our members create.

We believe this is best done by allowing the contractual arrangements governing the exploitation of audiovisual works over the Internet to be addressed through existing industrial processes. Speficically, through the collective bargaining process between writers (as well as directors and performers) and producers, and contractual arrangements between producers and broadcasters.

The imposition of a compulsory license for Internet retransmission would disrupt the natural evolution of this process, and would principally benefit third parties with no direct investment in the creation of audiovisual works.

Fundamentally, exceptions to rightsholders' control over their work should be invoked only a last resort, when there is a demonstrated public interest requiring that this be the case. Any party seeking to extend the compulsory license to the Internet must be required to demonstrate convincingly that there are public interest reasons justifying this interference of the rights of copyright holders.

We in no way believe that the advocates of extending the mandatory licensing regime to the Internet have made this case. Rather, we believe it is far preferable-both for rightsholders and the public interest-that the Internet be left to develop naturally under the influence of market forces.

For these reasons, the Writers Guild of Canada takes the position that the best course of action is to avoid extending the compulsory retransmission regime to the Internet. Further, we believe the Internet should be the subject of a specific exemption from the retransmission regime.

Our position is based on the following principles:

Policy rationale lacking

There is no compelling public policy rationale for imposing compulsory licensing in the case of would-be Internet 're-transmitters'.

As the consultation document notes, a compulsory license is an exception to an otherwise exclusive right. Both in Canada and on the international stage, compulsory licenses have been a course of last resort. This position has been stated both at WIPO and in Canada in the 1985 'A Charter of Rights for Creators' Report. While a compulsory license was imposed in the case of conventional broadcast distribution undertakings, this was done recognizing that BDUs were required by the CRTC to carry certain domestic signals. In that context, as the consultation document states, "the License provides an efficient, certain means by which conventional BDUs can clear the rights necessary to continue to fulfill their vital role in the Canadian broadcasting system and comply with applicable regulatory obligations, while ensuring that affected rightsholders are provided fair and equitable remuneration." None of this applies in the case of would-be Internet 'retransmitters", as they are not regulated under th e CRTC.

Canada's vastly distributed population is now covered extensively by competing BDU services-cable, satellite, and multi-point distribution. So there is no pressure from this perspective to add the Internet to this mix.

Distorting the natural evolution of a new medium

The imposition of a compulsory license will distort the natural development of the Internet as a medium for distributing audiovisual works.

Through the collective bargaining process, writers, as well as directors and performers, are negotiating with independent producers and broadcasters provisions for addressing the distribution of their work over the Internet. Producers are similarly working out contractual arrangements with conventional broadcasters for the exhibition of audiovisual works over the Internet.

The evolution of arrangements covering Internet exploitation negotiated by the parties making a direct investment in the creation of these works is far more equitable than according a retransmission right to a third-party that has made no prior contribution to creation of this work.

Moreover, it risks pre-empting the possibility that creators and producers might elect to pursue Internet distribution of their works without the involvement of third parties. Given the fact that the Internet makes possible virtually cost-free distribution of works, this is a distinct possibility. While technological limitations currently make the Internet a less-than-satisfactory medium for viewing or downloading audiovisual works, these bottlenecks are likely to overcome shortly and, as the example of music has shown, it is entirely possible that artists and producers may explore the option of distributing their own work directly.

Piracy Concerns

Distribution over the Internet without the consent of creators poses a serious risk that their work will be at greatly increased risk of copyright theft.

Because digital copies are equivalent in all respects to the originals-in effect, copying becomes a virtually cost-free method of distribution-the potential cost to creators of such theft is far greater than is the case from traditional analog piracy. While aspiring Internet 'retransmitters' may offer assurances that their operations will be secure from piracy, we do not believe these sites are likely to be secure from technically proficient hackers.

Further, by placing broadcast audiovisual works in a new context-one in which the works are framed by banner ads and other material-Internet retransmission raises the potential that the moral rights of screenwriters would be compromised.

Consistency

Government regulation of the Internet through a retransmission regime is inconsistent with a pre-existing CRTC decision against regulating the Internet.

In its 1999 decision regarding the Internet, the CRTC ruled that it would not regulate the Internet, but would continue to monitor this rapidly-evolving medium and would review this decision as the medium matured. The CRTC's 1999 decision foresees a possible review of its position in 2004, and the Writers Guild has urged the Commission to review its position at that time. Given that parties currently covered by the retransmission regime are also subject to regulation by the CRTC (and thereby incur, over and above the requirement to pay a tariff established by the Copyright Board, responsibilities that include supporting the broadcast system through financial investments such as contributing a percentage of their gross revenues to the Canadian Television Fund), it is our position that any entity proposing to engage in the retransmission of broadcast signals should be subject to the same regulations and responsibilities as the parties they would in effect be competing with.

Territorial licensing concerns

Unlike signals distributed via cable, satellite and multi-point distribution systems, the retransmission of audiovisual programming over the Internet would have a global reach. While this could be potentially limited by mechanisms incorporated into an Internet transmitter's site, the risk is that such distribution could seriously reduce the current and future value of an audiovisual work to broadcasters in foreign territories because audiences in these regions might access the work over the Internet first.

Conclusion

The Writers Guild of Canada believes that the compulsory licensing of Internet-based retransmission within Canada is not justified and would instead unfairly deprive audiovisual rightsholders of the right to determine when and how their work will be made available and commercially exploited in this new medium.

While understanding the desire that copyright provisions be as much as possible technologically neutral, in the case of the Internet we believe the complexities are such that a specific exclusion is necessary.

However, like the Directors Guild of Canada, the WGC accepts the view of the Departments that the use of Internet Protocol technology by a retransmitter employing a network appropriately distinct from what might be thought of as the "public Internet", should not automatically disqualify the retransmitter from reliance upon the Retransmission License.

To address the need for a specific exclusion of the Internet from the compulsory licensing regime, and to address the issue above, the DGC has proposed specific wording for revising Section 31 of the Canadian Copyright Act. The Writers Guild believes this draft wording represents a useful basis for starting the discussion on this question.