ARCHIVED — Alliance of Canadian Cinema, Television, and Radio Artists (ACTRA)

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 Alliance of Canadian Cinema, Television, and Radio Artists (ACTRA) received on September 16, 2001 via e-mail

Subject: ACTRA Submission on Copyright Reform

14 September 2001

Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
Industry Canada
235 Queen Street, 5th Floor West
Ottawa, Ontario
K1A 0H5
Fax: (613) 941-8151

Sir or Madam,

On behalf of the Alliance of Canadian Cinema, Television and Radio Artists, attached herewith are comments in response to the three papers circulated on June 22, 2001 by the Departments of Industry and Canadian Heritage -


1. A Framework for Copyright Reform
2. Consultation Paper on The Application of the Copyright Act's Compulsory Retransmission Licence to the Internet
3. Consultation Paper on Digital Issues.

ACTRA represents more than 18,000 professional performers who work in the recorded media, primarily in the English-language.

In addition to this submssion, ACTRA fully endorses the comments tabled by the Coalition of Copyright Owners and Creators, of which ACTRA is a founding member.

ACTRA looks forward to reading the input of others, making comments in response and putting forward additional thuoghts as the process moves ahead.

Thank you.


Garry Neil
Policy Advisor
ACTRA

ACTRA submission - PDF Version
ACTRA submission attachment - PDF Version



ACTRA and its predecessors have represented Canadian performers who work in the recorded media, primarily in the English-language, for almost 60 years. Today, ACTRA has close to 18,000 members: professional artists whose work in television, radio, film, sound recordings, new media productions and commercials entertains, educates and informs Canadians and global audiences. Members of ACTRA live in every region of the country and work for all of Canada's broadcasters, the NFB, commercial producers, independent television and film producers, the sound recording industry and developers of computer games and other multimedia products.

The primary function of ACTRA is to negotiate and administer collective agreements establishing minimum conditions of engagement and providing a framework for the contracting of individual members and others by producers. In 1984, ACTRA created the ACTRA Performers Rights Society (PRS), a collective that secures payment of outstanding fees due to performers. The PRS is a component of the Neighbouring Rights Collective of Canada, administering the royalty paid to performers in sound recordings.

ACTRA members have a vital stake in the future of all the Canadian media, the emergence of new media and the new forms of distribution. This interest arises more than just because it is our livelihood: the members feel passionately that Canada needs a strong Canadian presence wherever entertainment and information services are created and however they might be provided to Canadians. We share the objectives for copyright reform outlined in the government's consultation paper, A Framework for Copyright Reform:
· to create opportunities for Canadians;
· to stimulate the production of Canadian content;
· to encourage a strong Canadian presence on the Internet

If we are to achieve our creative promise, artists whose work is enjoyed by audiences everywhere must be compensated properly for their efforts. Those who use the work must also respect the integrity of the artistic creation. ACTRA's collective agreements have taken important steps toward these objectives. But, in the digital era, it is essential for ACTRA's bargaining efforts on behalf of performers to be supplemented through a range of economic and moral rights in Canada's Copyright Act.

Recent international developments in the copyright field are positive. With the government committed to "ensure that Canadian laws and regulations remain among the most modern and progressive in the world," existing and emerging international standards provide a model to which Canada can strive. ACTRA participated actively in the World Intellectual Property Organization discussions that led to the adoption in 1996 of the WIPO Performances and Phonograms Treaty (WPPT) and the process that reached the historic agreement in December 2000 on 19 of 20 clauses of a new treaty to provide a range of rights for audiovisual performances.
The fundamental starting point for our positions on copyright and performing artists is this:

since the performance of the performer adds value to the artistic work and can give life and grandeur to the script, the work of the performer must be protected by copyright law.

ACTRA supports the government's intention to amend Canada's Copyright Act and is generally favourable to the staged process outlined in A Framework for Copyright Reform. While we have concerns about achieving a coherent and global approach to the difficult issues in a staged process of copyright reform, we understand the benefit of targeting specific issues in turn.

Digital technologies are bringing fundamental changes to our industry through new production methods, new forms of artistic expression and new markets. Most of these were not foreseen when Canada last reviewed copyright laws. Accordingly, ACTRA supports the government's intention to move rapidly on digital issues. And it is precisely because these technological changes have had such a profound effect on the way our members work and offer only greater changes in the future that ACTRA urges the government, in the first stage of the reform process:

to ratify the provisions of the WPPT by amending Canada's Copyright Act to comply with the terms of the Treaty

and

to provide a full range of economic and moral rights for audiovisual performers in Canada's Copyright Act.


BACKGROUND

For many years in Canada and around the world, copyright protection was not provided to performers. Performances have been utilized in sound recordings and films since the early part of the last century, in radio broadcasts since the 1930s and in television programs since the 1950s. The Rome Convention, the first international treaty that benefited performers, did not come into force until 1961 and, even today, has not been ratified by all countries. The rights provided to performers in it are not extensive. However, the international copyright system is catching up quickly with technological developments in the recorded media, with the negotiation of the WPPT and the WIPO Copyright Treaty (WCT) in 1996 and last year's diplomatic conference on audiovisual performances.

The initial Canadian efforts to provide rights to performers did not occur until 1996, when a provision designed primarily to permit musicians to prevent the unauthorized distribution of bootleg recordings came into effect. In 1997, the Phase II amendments brought limited but important rights for Canadian performers, with the introduction of the neighbouring right in a sound recording and clauses that permit performers to enforce their collectively bargained residual fees. ACTRA welcomed these developments as the initial step in a process of providing statutory rights to Canadian performing artists.

Since the 1940s, performers in Canada have used their collective strength to negotiate agreements with the producers of the works. These agreements regulate the terms and conditions of engagement with provisions including minimum rates, hours of work, working conditions and the obligation to provide a written contract.

In the absence of statutory recognition of performers rights, the performer unions have utilized the collective bargaining regime to provide performers with certain rights that equate to the copyright enjoyed by other artists and by performers in other countries. Consequently, the collective bargaining agreements provide certain ongoing rights of remuneration when the material is distributed and/or broadcast and some degree of control by performers over how programs that contain their performances can be used and changed, akin to moral rights.

With the emergence of digital technologies, we are finding increasingly that these solutions are inadequate in today's world. We agree with the statements in the consultation paper concerning information and communications technologies (ICTs):

· The ICTs allow for rapid and essentially costless reproduction and communication of material …
· Internet-based infringers are potentially more numerous, more anonymous, and may operate from within jurisdictions that provide relatively little copyright protection …
· Many rights holders wish to avail themselves of the potential benefits of digitizing their material and selling to the large markets now open to them via the Internet.

For performers and their unions, the past decade has brought a proliferation in the number and range of uses of the programs and has increased the challenges we face in monitoring the use and securing payments. It has also spawned a new media industry as another field in which ACTRA members can work. The ability to make perfect copies and to manipulate the performance in ways that are not authorized is available widely with the emergence of computer technology and networks. Consequently, ACTRA proposes that the Government of Canada endorse a comprehensive regime of copyright protection for performers.

ACTRA notes that providing a range of rights to performers conforms to the Core Principles for a copyright framework outlined in the consultation paper.

1. The rules must promote Canadian values. The Federal Status of the Artist Act, assented to on 23 June 1992 makes the following statements with respect to artists, specifically defined to include the performer categories represented by ACTRA:
The Government of Canada hereby recognizes
(a) the importance of the contribution of artists to the cultural, social, economic and political enrichment of Canada;
(b) the importance to Canadian society of conferring on artists a status that reflects their primary role in developing and enhancing Canada's artistic and cultural life, and in sustaining Canada's quality of life; …
(e) the importance to artists that they be compensated for the use of their works, including the public lending of them.

2. The rules should be clear and allow easy, transparent access and use. Since the rights for performers would be additional to rights that already exist in the same audiovisual and new media works and sound recordings, there would be no additional complication to using the material. In addition, the ACTRA Performers Rights Society continues to work with other copyright collectives and with user groups on appropriate ways of facilitating copyright clearance. ACTRA notes that no one is served by prohibiting the widespread use of programs. Artists are eager to have their works seen and heard by audiences. Everyone benefits when material is circulated, providing the artists involved receive fair and appropriate compensation.

3. The rules should promote a vibrant and competitive electronic commerce in Canada. In August, five of the major Hollywood studios announced preliminary plans to create an on-demand service to provide movies on the Internet. The CRTC has already issued licenses to several video-on-demand services in Canada and it is only a matter of time before films, television programs and new media material is provided to consumers via electronic networks. In this environment, it will be critical to monitor use and to ensure that payments are made for the use. Canada will need to have a contemporary copyright regime to be a significant player in this arena, with comprehensive rights for performers.

4. The framework needs to be cast in a global context. As noted above, the WPPT is designed to provide protection for performers and record producers in the digital universe and needs to be ratified in Canada. It is the new international standard of protection for performers in aural works. Last year's WIPO Conference on Audiovisual Performances achieved an historic agreement to provide a wide range of rights to audiovisual performers. Clearly, it should be implemented in Canada if our laws are to be "among the most modern and progressive."

5. Thus, ACTRA urges that the WPPT be ratified and the provisional results of the 2000 WIPO Diplomatic Conference on Audiovisual Performances be implemented in Canada as part of the initial step of the reform process.


SPECIFIC RIGHTS REQUIRED BY CANADIAN PERFORMERS

Rights in Sound Recordings

In preparation for the discussion in Canada about the WPPT, the government commissioned independent experts to study the Copyright Act and report on the changes needed for it conform to the WPPT. ACTRA urges the following changes as recommended in the Experts' Report.

Moral Rights

The new digital universe makes it essential for performers to benefit from moral rights provisions, in order to have some degree of control over their recorded performance. The moral rights to include:
· the right to claim to be identified as the performer of the performance, except where omission is dictated by the manner of the use of the performance, and
· the right to object to any distortion, mutilation or other modification of the performance that would be prejudicial to the reputation of the performer.

Further, ACTRA believes it is essential for moral rights to be implemented retrospectively, since the new technologies do not distinguish between new material and old. Because such rights already subsist in the same work for other rights holders, ACTRA believes it would not be a burden to apply the moral rights of performers to existing works, for violations that occur after the coming into force of the provision.

Finally with respect to moral rights, ACTRA believes the Copyright Act should be amended to prohibit the waiver of moral rights. In our industries, the economic relationship between the individual creator and the producer of the material is such that the creator inevitably waives moral rights protection in exchange for the work opportunity. This is inappropriate and is not done by the producer from fear that the individual artist may make a frivolous or vexatious claim, but rather as an indiscriminate process that has become part of the "business" of making these productions. But moral rights are essential in the digital universe, and all rights holders should be provided with rights that are inalienable to them.

Right of Reproduction

At present, the Canadian Act limits the Right of Reproduction enjoyed by performers in a manner not consistent with the WPPT. Accordingly, the Act should be amended to provide that a performer should have the exclusive right of authorizing the direct or indirect reproduction of the performance.



Right of Making Available

This right is the one that the international copyright system has developed to protect copyright owners in the era of on-demand technologies. Accordingly, the performer should be provided with the exclusive right of making available to the public of their performance in such a way that the members of the public may access them from a place and at a time individually chosen by them.

Given developments related to streaming technologies that permit the instantaneous delivery by computer of audiovisual works primarily intended for other markets, ACTRA urges that the rights of performers be introduced in a manner that ensures that both on-demand and streamed computer distribution systems are covered by appropriate rights.

Obligations Concerning Technological Measures

Canada's Act also requires an adjustment to implement the obligations that prohibit tampering with technological measures designed to prevent copyright infringements. ACTRA urges the broadest and most comprehensive language on this matter recommended by the Experts' Report. Specifically, it should be an infringement to remove or bypass such measures, to transmit a work that has been tampered with, or to provide the equipment that makes such tampering possible.

Obligations Concerning Rights Management Information

Similarly, Canada's Act requires an adjustment to implement the obligations that prohibit removal or changes to rights management information that is affixed to the work. ACTRA urges the broadest and most comprehensive language on this matter recommended by the Experts' Report. This includes a prohibition against the removal, and against the distribution or importation of a work from which the information has been removed.

Rights in Audiovisual Performances

Moral Rights

Perhaps the most visible challenge of the digital era comes from the ability to make perfect copies of a recorded performance and to manipulate the work in ways not authorized by the performer. It is now simple for virtually anyone with a reasonably sophisticated computer to do what only a few years ago would have required a highly skilled professional using expensive equipment. This has led to extraordinary developments - from the digital re-birth of long-dead performers to the virtual actor. It has also brought unacceptable exploitation of celebrity - from unauthorized pictures, to the digital superimposition of a celebrity face on a pornographic image. In this environment, it is essential for audiovisual performers to have moral rights protection. This was recognized with the historic agreement at the WIPO Diplomatic Conference on Audiovisual Performances to a limited moral rights clause in the provisional Treaty.
Specifically, ACTRA urges the introduction of the following moral rights:
· the right to claim to be identified as the performer of the performance, modified as required to deal with the realities of the production industry;
· the right to object to the use of the work in association with a product or service that would be prejudicial to the performer; and
· the right to object to any distortion, mutilation or modification of the performance that would be prejudicial to the reputation of the performer.

ACTRA believes these rights should apply to leading performers individually, while the rights of other performers could be asserted only on a collective basis.

Further, ACTRA believes it is essential for moral rights to be implemented retrospectively, since the new technologies do not distinguish between new material and old. Because such rights already subsist in the same work for other rights holders, ACTRA believes it would not be a burden to apply the moral rights of performers to existing works, for violations that occur after the coming into force of the provision.

Right of Broadcasting and Communication to the Public

Since broadcasting remains the most important existing market for the recorded performance, it would be ludicrous to have rights for audiovisual performers that do not include an appropriate right in this field. Further, ACTRA believes it is vital that performer have such rights introduced in a manner that covers webcasting and streamed video, as well as traditional forms of exhibition, perhaps in a form such as, "communication to the public whether of a fixed or unfixed performance."

In anticipation of concerns raised by broadcasters and others that the introduction of an exclusive right for performers leaves open the possibility that performers could seek "double payment" for the same use of the work, ACTRA reiterates its unequivocal statement that we do not seek double payments for uses that are presently the subject of collectively bargained understandings. Therefore, we would consider the possibility that the right of broadcasting would be limited by a provision such as "that performers could not object to" certain uses of the recorded performance.

Right of Making Available

As discussed above, this is obviously a key issue for the digital age and performers want to see the strongest possible right to preserve options for future collective bargaining and/or royalty application. The right must be applicable whether the material is made available by wire or wireless communication.

Other Economic Rights

The economic rights required by performers in the digital era are more than just the Right of Making Available all of the economic rights are required, including the rights:
· to fix the performance in any material form, including an audiovisual work;
· to authorize the reproduction of the fixed performance;
· and others rights such as retransmission, rental and distribution that may be appropriate depending on the scope of the rights provided to other rights holders in the same audiovisual works.

ACTRA believes that one additional right absolutely necessary today is a provision authorizing the public to make a single copy of the work for private use and establishing a levy on the blank audiovisual tapes and equivalent computer tapes, diskettes or CDs used to make such a copy. This levy would compensate copyright owners whose works are copied.

Other Provisions

ACTRA believes that beneficiaries of protection should be all performers whose performance is recorded in Canada, with the exclusion only of true on-location productions. ACTRA further urges the adoption of other clauses agreed to in the provisional WIPO Audiovisual Performances Treaty. Finally, consistent with the principles of Canadian copyright law, the performer should continue to be the first owner of the copyright in the performance and there must not be any presumption of a transfer of rights or any statutory transfer to any other party. To be valid, transfers that are consented to by the performer must be expressed in writing.

Primacy of Collective Bargaining Agreements

There is need to introduce the rights of performers in a manner that reflects and respects the collective bargaining system that has been used by the industry to regulate some of these matters.

Accordingly, ACTRA believes that where the performance is governed by the terms of an extant collective bargaining agreement that provides for remuneration when the material is used in one of the fields in which the performer has an economic right, the performer shall have no right to file a royalty with respect to such use. Where no collective bargaining agreement is in place or where remuneration for use of the work in the field is not provided in an agreement or is not fair in the circumstances, the performer shall have the right to equitable remuneration for such use and the Copyright Board shall be empowered to determine the appropriate royalty. The choice between seeking remuneration through the collective bargaining process or a tariff filed with the Copyright Board should rest exclusively with the performers collectively: the choice can be exercised through an appropriate copyright collective.

The Right to Enforce Collectively Bargained Residual Fees

With the expansion of rights for performers, Section 17(2) of Copyright Act will require amendment to ensure that performers may enforce contractually negotiated residuals that arise from any use of the work.
Obligations Concerning Technological Measures

Performers in audiovisual works must be protected by the clause prohibiting persons from circumventing technological measures that assist performers to enforce their rights, in the same manner as described above for aural performances.

Obligations Concerning Rights Management Information

Similarly, performers in audiovisual works must be protected by the clause prohibiting the removal of electronic rights management information, in the same manner as described above for aural performances.

APPLICATION OF THE COPYRIGHT ACT'S COMPULSORY RETRANSMISSION LICENCE TO THE INTERNET

Finally, ACTRA would like to reiterate here its position that the government should amend Section 31 of Canada's Copyright Act to exclude the Internet and other computer networks from its provisions.

On many occasions, ACTRA has noted that while we have developed a successful television industry in Canada capable of providing a range of high quality Canadian content programs, we have failed to achieve a comparable success in the feature film industry. According to the latest government statistics, less than three percent of the screen time in Canadian theatres is occupied by Canadian movies. Yet the two industries generally utilize the same production infrastructure. The principal difference is on the distribution side. While Canada's television distribution system is controlled by Canadian companies regulated by the CRTC, the film distribution business is unregulated and dominated by the foreign majors. Canada is considered part of an integrated North American market for movies.

As a consequence of the CRTC's enforcement of the Broadcasting Act, cable, satellite and other television distribution systems have significant obligations to the Canadian broadcasting system and the Canadian public. In addition to regulations on which services they can carry, substitution rules that protect the territorial integrity of rights purchased by Canadian broadcasters and similar conditions, these distribution undertakings are required to make a substantial financial contribution to the production of Canadian content programs. The Canadian Television Fund is financed in large measure by contributions received from television distribution undertakings.

ACTRA contends that the compulsory licence is an exception to the exclusive rights enjoyed by rights holders and can be extended only in cases where there is a compelling public policy interest and in return for significant commitment to rights holders and the Canadian system. Such is not the case with the Internet.

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