ARCHIVED — A CAB

COPYRIGHT REFORM PROCESS

REPY COMMENTS

---

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.

---

Reply comment from Canadian Association of Broadcasters received on November 01, 2001 via e-mail

Subject: Reply comments attached

Canadian Association of Broadcasters reply comments to the Canadian Council of the Arts submission.


PDF Version of a letter from CAB regarding.....

PDF Version

Reply Comments of the Canadian Association of Broadcasters

in connection with the

Consultation Paper on Digital Copyright Issues

The Canadian Association of Broadcasters ("CAB") is pleased to provide the following general reply comments in response to various submissions filed in connection with the Consultation Paper on Digital Copyright Issues (the "Consultation Paper") on or about September 15, 2001. Unfortunately, the number and breadth of initial submissions filed by interested parties, coupled with the late date at which such submissions were made public by posting on the Strategis website, have precluded the CAB from undertaking a detailed analysis of and reply to all submissions. As a result, we respectfully reserve the right to file additional reply comments and wish to indicate our expectation - as both copyright owners and users - to be included in stakeholder consultations on all key digital copyright issues which occur pursuant to the evolving copyright reform process, whether or not we comment upon such issues in this reply.

No Agreement on Agenda, Process, or Objectives of Reform

The CAB's overview of submissions to date has made it very clear that not only is there profound disagreement on the substantive issues identified by the Consultation Paper, there is not even consensus on the scope of the agenda or process for reform.

With respect to the agenda, for example, many parties raised issues completely outside of those upon which input was sought. For example, a central focus of the submission of the Alliance of Canadian Cinema, Television and Radio Artists ("ACTRA") was the need for neighbouring rights in audio-visual performances - a matter not touched upon, directly or indirectly, by the Consultation Paper. Moreover, ACTRA took the opportunity to inaccurately characterize the international climate for adaptation of such rights as favourable by referring to an "historic agreement" with respect to audio-visual performances, whereas, in fact, WIPO's December 2000 diplomatic conference, aimed at concluding a treaty with respect to such rights, ended in failure. Similarly, the Directors Guild of Canada ("DCG") used its submission as an opportunity to insinuate into the debate its historical position that directors should be entitled to a copyright interest in audio-visual productions, notwithstanding that the issue is not strictly part of the digital debate.

There is also significant disagreement with respect to what constitutes the ultimate objectives of the reform process. The Consultation Paper has initiated a process which concentrates on addressing central digital copyright issues but does not, as noted by the Canadian Recording Industry Association ("CRIA"), propose ratification of the WIPO Copyright Treaty and WIPO Performers and Phonograms Treaty ("WCT" and "WPPT", respectively, and together, the "WIPO Treaties").

Some interested parties (notably the Electronic Frontier of Canada) have, in response to the Consultation Paper, urged Industry Canada and the Department of Canadian Heritage (the "Departments") to resist what they consider to be unnecessary lawmaking that will frustrate what they perceive as the rights of individuals to information - a component of freedom of expression. Others, such as ourselves, acknowledge the validity and importance of the discussions at hand and urge a thoughtful but conservative approach to reform - one that balances creator and user concerns and ensures that Canadian priorities, choices and values are the paramount consideration in any eventual reform package or packages - not ratification of abstract, international treaties. As expected, other stakeholders, including CRIA, believe that the process should be directed at ratification of the WIPO Treaties, notwithstanding that such an objective would add even more contentious issues to the agenda, including moral rights for performers and issues surrounding the ownership of photographs. Some stakeholders, such as the Society of Composers, Authors and Music Publishers of Canada ("SOCAN") would go even further and appear to expect a comprehensive review of and report upon the Copyright Act (the "Act") to be tabled by the Minister of Industry by September 1, 2002, pursuant to s. 92 of the Act, followed by stakeholder consultations on all copyright issues. Such processes, we submit, would be overly expansive and premature.

No Agreement on Substantive Issues Raised by Consultation Paper

Beyond the fundamental differences on matters of the proper scope, nature and objectives of the reform process, major stakeholder cleavages exist even with respect to the narrow questions and ideas posed by the Consultation Paper.

Creator/User Balance

The CAB, in its September 15th comments, strongly supported the Departments' recognition that copyright law must recognize and implement a balance between the rights of creators and users, and consider the fact that a variety of public policy issues are relevant to copyright reform.

Unfortunately, this feature of Canadian copyright law continues to be ignored by some creator representatives. CRIA, for example, limits its comments with respect to balance to issues of balances as between copyright owners. Such a purist approach is not only inconsistent with the Canadian copyright tradition, but also overlooks the practical features of digital uses which call for user flexibility to ensure that access to works and other creations continues to be afforded on a fair and reasonable basis.

Making Available Right for Sound Recording Producers and Performers

There is significant agreement that a making available right for authors already exists under the current Act pursuant to authors' exclusive right of communication to the public by telecommunication. As the CCTA stated (at p. 20 of its submission):

...no amendments to the Copyright Act are necessary to explicitly provide authors with an exclusive right of making available because the right to authorize communication to the public already exists and is being administered by SOCAN.

The CAB agrees. Indeed, even SOCAN, which would like a newly articulated and discrete right for authors for fear of an unfavourable judicial interpretation of the existing right of communication, takes the position that an author's right already exists. At the same time, stakeholders agree that the communication right of sound recording producers and performers does not currently encompass a right of making available.

That being said, legitimate concerns have been expressed about the risks of introducing exclusive making available rights for sound recording performers and producers. SOCAN, while not objecting to the introduction of such rights, is worried lest new rights are granted in such as way that an "unreasonable hierarchy" of rights is created. Specifically, it asserts, at p. 12 of its submission, that "downstream record companies should not be given rights that place them in a preferable position to that of upstream creators of musical works". SOCAN thus seems to be saying - to paraphrase Orwell - that all rights owners are equal but some are more equal than others.

SOCAN's solution is a proposed expansion of s. 90 of the Act. While an expansion of section 90 may assuage SOCAN's concerns about the blockade of its members' ability to make their works available to the public, the CAB believes that such a vague provision is a danger to authors and users alike. While SOCAN worries only about a judicial interpretation of authors' communications rights which would fail to encompass a right of making available, the CAB worries about a judicial interpretation of section 90 that would permit performers and producers of sound recordings to effectively veto authors' exercise of their own making available rights. The CAB notes that the CCTA (at p. 23 of its submission) shares this concern.

The concern is even more pronounced in the context of on-line use, because record companies are capable of establishing their own on-line distribution businesses to the exclusion of others. As the CCTA noted in its submission (at p.23):

It is anticipated that the on-line distribution services owned by record companies will cross-license to each other, so that each site will be authorized to distribute over the Internet approximately 80 percent of all recorded music. If the major record companies do not also license independent non-affiliated distribution services, music will be distributed exclusively by a vertically integrated duopoly.

While some may argue that market forces will help to ensure that corporate cartels such as the major record labels will not unfairly dominate distribution of their recordings, the CAB is highly skeptical of such claims. The fact that the U.S. Department of Justice is currently investigating the U.S. recording industry's activities in connection with on-line distribution demonstrates that the market may well not be a sufficient regulator in this respect. As such, Canada should take an extremely cautious approach towards any calls for the introduction of a specific making available right.

CRIA submitted (at p. 3 of its comments) that adequate copyright law is that which encourages "local and national expressions of culture". While Canada's recording industry - particularly the sub-group made up of independent Canadian labels represented by CIRPA - is unquestionably an important Canadian cultural industry - it must be recognized that so too is the Canadian broadcasting industry. Not only do broadcasters promote Canadian musical content, but they also contribute to the cultural fabric of Canada through their heavy emphasis on non-musical community programming and reflection. As such, broadcasters are not simply users of copyright who package and distribute music for gain. Rather, they too are unique cultural creators whose use of music is a key - but by no means the only - input into their own unique broadcast days. As such, care must be taken in approaching copyright reform to ensure that the evolving business models of Canada's broadcasters are not undermined by the extension of overly-broad new rights to copyright owners.

Furthermore, notwithstanding its insistence on the introduction of an exclusive right of making available for sound recording producers and performers, CRIA makes no convincing argument as to why it requires a right of authorization or why a right of remuneration is inadequate. On one hand, CRIA refers to the need for an exclusive right to provide producers with sufficient security for their recordings, while at the same time (at p. 6 of its submission) it indicates that:

Reproduction alone would not be sufficient to allow copyright owners to license the use of their works as the real economic exploitation of, for example, a sound recording is the transmission of that sound recording on demand or interactively.

This reference to the reproduction right, as such, suggests that CRIA's real concern with respect to the shortcomings of the existing rights is that they do not ensure adequate remuneration; CRIA's concern is not, apparently, a concern with respect to control. This is underscored by the fact that CRIA provides no in-depth analysis of whether it considers the reproduction right to be an adequate mechanism for asserting control over its members' creations.

Finally, the CAB notes the CCTA's preferred approach to any introduction of making available right, namely (as articulated at p. 23 of the CCTA's submission):

to make performers' rights of making available and sound recording makers' rights of making available subject to a statutory licence to provide similar treatment to that given to authors.

The idea would be to limit performers' and producers' rights to claim infringement to instances in which a use tariff has been filed by representative collectives. To the extent that the introduction of a making available right for sound recording performers and producers is determined to be appropriate - which is far from being demonstrated -

subjecting such rights to a statutory licensing mechanism akin to sections 67 and 68 of the current Copyright Act is an idea which should be explored. At this time, however, the CAB believes that the negative cultural and competitive impacts of a making available right for sound recording producers and performers, coupled with the recording industry's failure to demonstrate the need for such rights - particularly in the case of live and archived streamed programming - means that it would be inappropriate to move towards the adoption of such rights at this time.

Rights Management Information and Technological Measures

The CAB notes, with approval, the view expressed by several parties that while the protection of technological measures and rights management information is very important in the digital environment, there is a real risk that unqualified protections will have negative impacts upon both legitimate access to protected works and technological innovation. We share the concern of the Bell group of companies (collectively, "Bell"), which stated in their submission (at p. 8) that:

...technological measures that can be used to protect the rights of copyright owners also have the potential to distort the balance between the interests of owners and those of users as reflected in copyright legislation.

As a result, we categorically object to CRIA's position that:

allowing circumvention in cases where a traditional copyright exception applies would totally undermine the protection of TPMs.

The implication of such a position is that legitimate, excepted uses may be significantly constrained in a digital environment. Moreover, such a draconian approach would foreclose the legitimate needs of users to obtain expanded exceptions that allow them to make reasonable uses digital technology in a way that has a de minimus effect on copyright owners.

Conclusion

In reply to the submissions filed on September 15, the CAB's most fundamental observation is the broad scope of views expressed on all matters raised by the Consultation Paper. There appears to be, among interested parties, a complete lack of agreement upon even the scope of the process and policy options with which the Departments are faced, much less consensus on particular policy issues. This is in marked contrast to the comments received in connection with section 31 of the Copyright Act, where understanding of issues is shared and interested parties have proposed detailed and tangible solutions.

As a result, the CAB believes, like the CBC, that it is premature to begin legislating on broad digital copyright issues or to move towards ratifying the WIPO treaties. More analysis and consultation is required, so that we can move towards a more precise appreciation of the costs and benefits attached to the different positions taken on digital copyright reform. As the practical results of the U.S. Digital Millenium Copyright Act begin to manifest themselves, Canada should keep close watch on such developments to ensure that it moves, cautiously but deliberately, towards an appropriate Canadian response to digital copyright issues.