ARCHIVED — TWUC

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' Union of Canada (TWUC), the League of Canadian Poets (LCP) and the Playwrights Union of Canada (PUC) received on October 03, 2001 via e-mail

Subject: Consultation Papers

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RESPONSE OF THE WRITERS' UNION OF CANADA, LEAGUE OF CANADIAN POETS AND PLAYWRIGHTS UNION OF CANADA TO THE GOVERNMENT CONSULTATION PAPERS ON DIGITAL ISSUES AND INTERNET RETRANSMISSION

The Writers' Union of Canada (TWUC), the League of Canadian Poets (LCP) and the Playwrights Union of Canada (PUC) together represent almost 2500 professional writers, who live and work in all parts of Canada. TWUC and LCP provide services to writers of published fiction, non-fiction and poetry. The LCP also represents performance poets who pursue the oral poetry tradition. PUC provides services to playwrights whose plays have been produced by professional theatres and, as a collective society, licenses plays for amateur production. A great many of our members have published books, but they also write for other media including CDs, on-line publications and other new media. Our three organizations are founding members of the collective society, Canadian Copyright Licensing Agency (CANCOPY), which represents writers and other rightsholders with respect to reprographic, digital and other copying of their works.

In recent years, digital technology has revolutionized communications, presenting writers with new opportunities to disseminate their works, but also making their digitized works more vulnerable to unauthorized copying and modification. This makes it imperative for Canada to modernize its copyright legislation. Without copyright laws that deal effectively with the new developments in communications, the ability of writers to earn a living from their writing will decline.

We are pleased that the Government has now produced a framework for copyright revision and is seeking consultation on digital and Internet issues, including certain key measures that must be implemented to enable Canada to ratify the two treaties that were concluded by the countries of the World Intellecual Property Organization at the end of 1996 - the one directly affecting our members being the WIPO Copyright Treaty, which will establish minimum standards for copyright protection of authors' works in the digital environment. The two WIPO Treaties have already been signed by at least 27 countries including the United States. The European Union has approved a Copyright Directive which requires its members to ratify both treaties, which will come into force as soon as they are ratified or acceded to by 30 countries. Although Canada played a major role in 1996 at the WIPO Diplomatic Conference which concluded the treaties, and although Canada signed them in 1997, it has subsequently lagged behind many other countries in implementation.

We call on the Government to move speedily to implement the WIPO Treaties. We believe that this should be the Government's first priority in the copyright reform process.

In the Consultation Papers the Government is dealing with digital and Internet issues, but we note, with disappointment, that the Government is not yet dealing with the other issues affecting creators in other genres that must be dealt with prior to ratification of the WIPO Treaties. These issues include, most notably, corporate authorship and term of protection in photographs (to comply with the Copyright Treaty) and moral rights of performers (to comply with the Performances and Phonograms Treaty). We also submit that authors' moral rights are inadequately protected, particularly in the digital environment. We urge the Government to give priority to all of those issues that will enable it to ratify the WIPO Treaties without further delay, as delay means greater damage to Canadian creators, performers and cultural industries from piracy and unauthorized use.

A FRAMEWORK FOR COPYRIGHT REFORM

We agree in principle with the Government's step-by-step approach to copyright reform, although we would like to see the Government's overall timelines. We are apprehensive that the Government's overall vision may have little place in it for creators and their economic interests or for some of the broad social issues affecting both creators and society in general. While Canadian copyright laws are being adapted to the global digital environment, we must remain conscious of issues of Canadian identity, cultural diversity, and, because writers are users as well as creators of copyright, the draining of the public domain. We need fair and reasonable access to material that is owned by others or that may "belong" to all Canadians and we are committed to making own own works accessible. Government and others should not lose sight of the fact that our very survival as individual professionals depends on authors' rights being fully acknowledged and respected by others.

A number of the issues listed in the Framework for Copyright Reform document are of particular concern to us as both creators and users of copyright material. We comment briefly on these below.

Access Issues

Are writers to become mere "content providers"? We provide the "cultural content" that is needed to feed the infrastructure of the Information Highway. The purpose of copyright is to establish and protect ownership of intellectual property. We therefore strongly disagree with the notion, seemingly the view of the drafters of the Framework document, that the real purpose of copyright is to facilitate public access to the works we create; in other words, they view copyright as our reward for disseminating knowledge and cultural content through creation of works. This is a far cry from copyright on the basis of ownership of intellectual property, whether "copyright" or "droit d'auteur" is conceptualized as a right conferred by the state (our British heritage) or as a personal right tied to the creator (our French heritage). We cannot tolerate further erosion of our rights to control our creations, whether because of new technology, pressure from users for new exceptions, or government policy that pays little heed to how all of this affects our economic situation as writers.

Earning a living as a writer in this country is very difficult and most writers have to supplement their income from other sources. The communications revolution brought by digitization presents authors with new opportunities for dissemination and compensation, but digitized works are vulnerable to unauthorized modification and copying, and when users ask for better "access", they usually mean free access.

Predictably - and in our view, unnecessarily - new opportunities for creators to exploit their rights have triggered calls for new exceptions by users without regard for the willingness of most creators to allow their works to be licensed by collective societies. Collective societies are able to provide users with quick and inexpensive access to a world repertoire comprising millions of works.

Already writers have lost out because of legislative changes even where appropriate mechanisms for collective administration were already in place. In the 1997 batch of reforms, new exceptions were legislated for performing dramatic works in schools and other educational institutions (section 29.5) and making single copies of older periodical articles in libraries, museums and archives (section 30.2(2)), depriving playwrights and writers of articles of significant income which had only recently become easily collectible through collective societies - in effect, an expropriation of their intellectual property. We continue to believe that these particular exceptions put Canada in violation of both the Berne Convention and the more recent Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Although Article 13 of the TRIPS agreement requires members to "confine limitations or exceptions to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightsholder", this may be mere lip service to the similar provision in the Berne Convention. For though significantly broadened by its extension to cover rightsholders in general (that is, including corporate owners as well as authors), the TRIPS version of this provision is narrowed because of its omission of moral rights. It is our observation that as opportunities are developing for new rights - rights which can be exploited both by individual authors and their collective societies - the assumption is often that these new rights should be transferred to and administered by producers. This is appropriate where willing creators are able to negotiate a fair return for these new rights, but many producers are claiming these rights without offering fair financial arrangements even before it has become clear what "normal exploitation" may be in a digital world.

We see little reason for exceptions in the digital environment, especially where material is available through a collective society. While we do wish to have strong protection for our copyright work, we also believe in a strong public domain and do not wish to see an end to the "fair dealing" defence in the digital environment.. We are committed to making our works accessible and do not wish to "lock up" our works. Nor do we wish to see a "lock-up" on the works of others, as we are frequent users of other authors' works. Like other users, we pay to photocopy or otherwise reproduce copyright materials. We are opposed to special exceptions.

We believe, however, that it is essential to maintain that aspect of the present "fair dealing" defence which permits quotations and use of extracts for purposes of criticism or review and newspaper summary - even where such use is for communication or publication on the Internet. In other words, we think sections 29.1 and 29.2 of the Copyright Act should be applicable in a digital environment, but not section 29, which allows "fair dealing" with respect to research and private study. It is our view that we and others should pay rightsholders when we make copies for research and private study.

We would like to have section 77 of the Copyright Act extended to cover certain unpublished works where the owner cannot be located. While we respect the right of other writers to first publish their own works, it is our view that licences should be available, under the purview of the Copyright Board, for older, unpublished materials if exhaustive efforts have been made to find the author or his or her heirs.

Database Protection

Our Copyright Act already protects databases as "compilations". We support protection of databases and would support legislative clarification to the Copyright Act to achieve greater protection of what some courts now call "non-original databases" because of their discomfort when asked to protect databases assembled largely through "sweat of the brow". This compiled information may be all or mostly public domain material and the requisite "originality" may not be evident; for example, a telephone directory is at the low end of the spectrum of "creativity" or off the creativity chart altogether. However, even such databases take effort and expense to make and maintain and, regardless of the degree of creativity, a database "originates" from someone. We do not think it fair that such person or other entity should be without any protection from wholesale copying.

At the same time we, as users of databases, are concerned that material once freely available, often from government sources, may only be available in commercial databases and could become inaccessible because of excessive cost. Once legally accessed, a user should not be prevented from "fair dealing" with public domain material extracted from a database.

Government as Owner and User of Copyrighted (sic) Works

It is our position that the Government should be bound by copyright and not in any circumstance claim copyright on the basis of Crown prerogative. The Copyright Act should clearly state what is and is not protected and for how long Crown copyright lasts. Much government-owned material, both federal and provincial, including judicial proceedings and official reports, should no longer be protected by copyright, although there should be attribution and integrity requirements. (Sound familiar, coming from creators?) Canadian taxpayers have already paid for these materials and should be able to access them without paying the high fees now required, for example, by Statistics Canada. (We have referred above to our concern that in future more and more federal and provincial government material may only be available through private databases and at high cost.) There is, of course, some government-owned copyright material that must continue to be protected, for example, materials produced by and for government-owned theatres, galleries, museums and broadcasters both by freelancers and employed writers.

The Framework document also refers to the large amount of material held by the Government, in which copyright is owned by others. Copyright clearance from rightsholders must remain on a voluntary basis, but in many instances collective societies will be able to provide expeditious clearances on behalf of rightsholders. We think, for example, of books in the National Library, and the role which CANCOPY could play in providing clearances for use of copyright material.

Where the Government holds materials that are in the public domain, it should restrict itself to charging modest fees for access and the expense of making a reproduction and should not charge "licence" fees for materials no longer protected by copyright, when such materials are requested for reproduction in a publication or production.

Technology-enhanced Learning

We understand the value of technology-enhanced learning both to the learners and the providers, including ourselves as among the "content providers". We wish to go on record as strongly opposing any exceptions that would remove from creators our ability to control and benefit financially from the use of our works in distance education or other forms of on-line learning. Licences from collective societies - in our case, CANCOPY and its Quebec counterpart, COPIBEC - already can provide easy access at reasonable cost.

Term of Copyright

We consider it a priority to extend the term of copyright from 50 to 70 years following death of the creator to harmonize our copyright law with that of the United States and the European Union. This will give the works of Canadian writers similar protection to works first published in countries with the 70-year rule. As things now are, it is not only Canadian authors but also Canadian publishers who lose out - and not just because of the shorter protection in Canada. It is smart for Canadian authors to publish first outside Canada in order to ensure themselves and their families of the longer period of protection not always accorded to authors first publishing in countries that protect their works for a shorter period.

Transitional Period for Unpublished Works

We also consider it unfair that the period of protection - previously perpetual - for the unpublished works of many deceased writers will abruptly and unfairly cut off at the end of 2004 because of legislation arbitrarily enacted in 1997 without consultation with rightsholders. Even if successful in finding a publisher who may be willing to take on the expense of publishing a work which will only be protected from being "pirated" for a very short period (if at all), authors' heirs have been given very little time to endeavour to arrange publication of previously unpublished manuscripts, sometimes sensitive letters and diaries where persons mentioned or affected may be recently deceased or still alive. This change in the law in 1997 has particularly affected the copyright in dramatic works and the heirs of playwrights, as plays are seldom published. It should not be forgotten that, more often than not, an author's estate consists mainly of his or her works.

Traditional Knowledge

We believe that aboriginal and First Nations creators working in traditional forms and styles should have the benefit of law to enforce respect for the protocols of their cultures. The challenge for copyright law will be to find ways to protect material in which there is a communal interest and for which there is no identifiable individual creator.

The Framework document indicates that its list of reform issues is not intended to be exhaustive. We comment below on an additional issue of great concern to us.

Moral Rights and Trade Treaties

Moral rights are our priority. The Framework document mentions them only in passing. We previously mentioned (in our discussion of Access Issues) the exclusion of moral rights from the TRIPS agreement, which was concluded in 1995 and came into effect in Canada on January 1, 1996, as an annex to the Agreement establishing the World Trade Organization. The TRIPS agreement, dealing with intellectual property, requires compliance with the substantive copyright provisions of the Berne Convention (1971) without its moral rights or "rights derived therefrom". This deliberate omission happened because creators' moral rights were and are perceived as impeding the agenda of big business and international trade.

Additionally, while the Framework document refers to the clarification and extension of moral rights for authors in 1988, we do not believe that there was much improvement in substance for writers. We unsuccessfully opposed the introduction of wording that explicitly encourages the waiver of moral rights and that does not require moral rights waivers to be in writing. This remains our concern.

Moral rights with respect to works that have been digitized are particularly critical because of the enormous potential for distortion (infringing the integrity right) or for dissemination without the author's name (infringing the attribution right).

CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES

We agree with the core principles set out by the Government in the Consultation Paper on Digital Issues with a few caveats. While the framework rules should be clear and allow easy, transparent access and use, copyright owners must retain effective controls over the use of their material and have effective remedies when their material is misused. The proposals for copyright reform should promote a vibrant and competitive electronic commerce in Canada, but this must be achieved without sacrificing the rights and legitimate expectations of authors. We are particularly concerned by language in this document on digitization that suggests that the Government appears to be contemplating the possibility of not ratifying the WIPO Treaties, rather than consulting on how to implement them.

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Last but not least, the Government states that the framework should be technologically neutral, to the extent possible. This may have the appearance of fairness, but in fact it is a dangerous principle. It has been said that rights often adapt themselves, while exceptions need to be adapted. For example, the reproduction right under the Copyright Act has proved sufficient to cover copying by means ranging from the pen to the typewriter to the photocopier to the computer. But it is critical to look in each instance at the potential impact that an exception in any particular media may have on the creator of the copyright material because of the technology involved; for example, an exception with respect to an on-line communication of a copyright work has the potential to do much more damage to its author than an exception in the print-on-paper world.

Making Available Right

Article 8 of the WIPO Copyright Treaty sets out an exclusive making available right - a key principle. The exclusive right of authors to make available works so that they may be accessed by members of the public, at places and times individually chosen, must be absolutely clear. The Government regards the current law as adequate with respect to authors' works, although it recognizes that the WIPO Treaty on Performances and Phonograms requires it to legislate such a right for performer's performances and phonograms. We, however, have grave concerns about the Government's disinclination to provide a similar, explicit making available right for authors.

We urge that a right of making available be clearly provided for all rightsholders including authors. This would be in line with the Government's desire for clarity and would reduce the likelihood of misunderstandings between rightsholders and users, deliberate misuse by users of copyright works, or judicial narrowing of authors' rights at some later point. This likelihood is greatly increased by the inevitability of comparison between authors' rights and a clearly expressed making available right for performers and makers of sound recordings required by the WIPO Performances and Phonogram Treaty. To spell out an exclusive right of making available for authors would help to achieve the Government's goal of making copyright law clear and easy for all to understand.

Legal Protection of Technological Measures

Legal protection of technological measures taken to protect copyright is also a key principle of both WIPO Treaties. We agree with the comment of Government's experts engaged in 1997-98 to produce discussion papers on the implementation of the WIPO Treaties:

The Canadian Act is of very limited assistance to address infringements associated to the tampering of technological protections measures....In order to comply fully with Article 11 of the [Copyright] Treaty, Canada will have to adopt a specific provision.

Canada needs laws that will both deter conduct and prohibit devices that have the purpose of circumventing or defeating encryption and other copyright protection measures put in place to protect copyright works from misuse. Once rightsholders lose control of their material on-line, its value plummets. On the other hand, legal protection of technological measures will encourage rightsholders to make their works available because they will be confident that their works are reasonably secure from infringement.

Technological measures may be minimal - in many instances being simply a signpost that the material is not available without permission rather than "a locked drawer". (Once the drawer is opened with permission, it is our view that the contents of the drawer would be subject to "fair dealing" and other legitimate uses.) Other technological measures may be very sophisticated, but the Consultation Paper points out correctly that even the strongest of technological measures will be vulnerable to circumvention. In either case - minimal or strong protective measures - there is a need for legislation to send a strong message to hackers and others who might attempt to remove or otherwise defeat technological measures intended to protect copyright.

It seems to us specious to suggest that it should be permissible to circumvent technological measures to accomplish acts that are non-infringing or to copy public domain material. Such measures will be mostly used to protect copyright material. If it should happen that copyright material is accessed but can only be read, and not copied because of further copy-protection, we are back to the situation where copying might require re-keyboarding by would-be users. There would be a certain irony in this, as the "fair dealing" defence originated when there were no photocopiers or computers and there were practical limits on copying because the material reproduced had to be handwritten.

Legal Protection of Rights Management Information

Legal protection of rights management information embedded in copyright material is another key principle of the WIPO Treaties, and again a principle which is not currently part of Canadian law (except perhaps the possibility of a moral rights infringement arising from removal of the author's name if the author's name were to appear only in the rights management information).

Our ability to protect rights management information is absolutely critical to our ability to obtain compensation from use of our copyright material in digital environments. We support the initiative of CANCOPY in its participation in the work of the International Standardization Organization which will lead to an identifier for text. The new International Standard Textual Work Code (ISTC) together with the Digital Object Identifier(DOI) will facilitate both the management of copyright material by rightsholders and their collective societies and its access by users.

It is also important to note that rights management information is primarily for the use of the copyright owner and should not be tampered with by others with impunity in any circumstances. The adoption of identifying codes within the various cultural industries does not render protection of other types of rights management information unnecessary and would not by itself permit Canada to ratify the WIPO Treaties. It is still important that rights management information be defined broadly enough, as the treaties require, to include an encoded information or a number that is of use to copyright owners (though unintelligible to most users).

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

We will make limited comment on the Government's proposal for limiting ISP liability for copyright infringement until after the decision in the Federal Court review of SOCAN's Tariff 22 application and the hearing of SODRAC's tariff application to the Copyright Board, although the former focuses on telecommunication to the public rather than on reproduction.

It is obvious that an ISP cannot carry out its primary functions without creating "reproductions" that fall within the exclusive rights of the copyright owner set out in section 3 of the Copyright Act, but it is not obvious that an ISP should therefore be released from liability for such reproductions. We acknowledge that notice and take-down systems could benefit both ISPs and rightsholders and should exist in some form, but extremely careful consideration must be given to whether or to what exent this should free an ISP from liability and damages, especially because providers of infringing content are frequently unreachable or reachable only at prohibitive cost.

A system which completely absolves ISPs from liability will indeed reduce the incentive of ISPs to negotiate licences with collective societies for digital uses of copyright works in their repertoires. We would support a scheme which would restrict their liability for reproduction or for authorization of communication to the public under certain conditions, including being licensed by a collective society or subject to a Copyright Board-approved tariff with respect to the type of work involved (cf. section 30.3 of the Copyright Act on exemption from liability of educational institutions etc. for infringing copying by students etc. on self-serve photocopying machines). Another model to consider would be the extended collective statutory licence in use in Nordic copyright legislation. Once a significant number of rightsholders in a particular sector have signed up with a collective society, it is entitled to grant licences that cover the works of all of the rightsholders in that sector. This would allow a collective society to grant licences to ISPs for activities such as caching and browsing.

We do not consider governments, educational institutions, libraries, hospitals and other public institutions providing services to the public to be in the same position as ISPs who only offer intermediary delivery services. These are in any case sectors that can be licensed by collective societies.

Moral Rights

This Consultation Paper does not deal with moral rights as a digital issue, despite the importance to creators that there be a high level of moral rights protection in the digital environment. The rights to control authorship attribution and the integrity of a work are most critical, given the possibilities for a runaway work without authorship credit and for distortion of a work's contents. Section 28.2 currently places an inappropriate restriction on the author's right to the integrity of a work, as there is no infringement without proof that any modification, distortion or mutilation has prejudiced the honour or reputation of the author. It has never ceased to amaze us that a distortion or mutilation is not deemed to constitute such prejudice even in the print-on-paper world. We also are of the view that at least a reasonableness requirement should be applicable to any modification. Article 3 of the WIPO Copyright Treaty requires countries to apply Article 6 of the Berne Convention on moral rights. (We assume that the reference to Article 6 is intended to include Article 6^bis, because Article 6^bis is referred to in the Agreed Statement on Article 3 of the Copyright Treaty.)

We submit that the current provisions in the Copyright Act on moral rights are insufficient to provide adequate protection in the digital environment (or to satisfy the Berne Convention and WIPO Copyright Treaty). Given the far-reaching and fundamental importance of moral rights to creators, we demand that they be included in the discussions of digital issues.

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

We intend to join in the discussion of these issues, but initially have only one very general comment on the issues in this Consultation Paper. We urge the Government to study closely the consequences of extending the compulsory retransmission licence to the Internet, as these are likely to be very different from the consequences of existing cable and satellite retransmissions for which tariffs have been approved in the past.

Even though consumers may see the same thing on their computer monitor as on their television screen, the impact is very different and not only because of the potential global reach of the Internet. The potential for unauthorized dissemination will be enormous. Writers - playwrights and writers of underlying works on which telecommunicated programs are based, or of works incorporated into such programs - will be affected by how these issues are resolved.

This issue of retransmission on the Internet is a good illustration of the point previously made in the discussion on digital issues. The Copyright Act may describe rights in technology-neutral terms but it must not do so with exceptions because their impact differs from technology to technology.

CONCLUSION

Digitization is having a profound effect - negative as well as positive - on the use of the material which we as writers produce. It affects both our economic rights and our moral rights.

We urge the Government to proceed quickly with implementation of both WIPO Treaties as the first priority in its copyright reform agenda. Even close to five years after the end of the Diplomatic Conference that produced the WIPO Treaties and close to four years after they were signed by Canada, Canada has still not ratified the WIPO Treaties.

Until the WIPO Treaties are implemented in Canadian law, we believe that it will not be clear to Canadians that copyright laws apply as much to the use of copyright material on-line as to its use in pre-digital environments. An explicit "making available right" will encourage writers to allow their material to be accessed electronically in a variety of forms, including electronic books, on-line magazines, databases or websites. Effective remedies are needed to protect technological measures taken and rights management information designed to deter infringement of copyright material. An author should not be required to prove prejudice to his or her honour or reputation in a moral rights infringement action with respect to the right to the integrity of a work. For all of these reasons, implementation of the WIPO Treaties should be Canada's first priority.

We appreciate the opportunity to be involved in the Government's consultation process on copyright reform.

Respectfully submitted by:

The Writers' Union of Canada

Playwrights Union of Canada

League of Canadian Poets

October 3, 2001