ARCHIVED — A CCA

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.

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Reply comment from Canadian Conference of the Arts received on October 2001 via e-mail

Subject: Copyright submission

PDF Version

Submission on the Government Consultation Papers:

A Framework for Copyright Reform

Digital Copyright Issues and

Application of the Compulsory

Retransmission Licence To The Internet

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Department of Canadian Heritage

Industry Canada

October 10, 2001

Image removed

Canadian Conference of the Arts

804 - 130 Albert Street

Ottawa, Ontario K1P 5G4

tel (613) 238-3561; fax (613) 238-4849

info@ccarts.ca

www.ccarts.ca

Introduction

The Canadian Conference of the Arts (CCA) is Canada's oldest and largest arts advocacy group. Founded in 1945 by the leading artists of the day, the CCA was created to impress upon governments and the general public the importance of the arts and cultural industries in Canadian society. The CCA is an independent, non-partisan organization and a registered charity. The membership, which represents the interests of over 200,000 individuals, is composed of artists and cultural workers, arts organizations, labour groups and collectives, arts educators, cultural industry organizations, and concerned citizens from all across Canada.

Copyright is of vital importance to CCA members. It provides them with the essential legal rights they require to be paid for the use of their work. Because copyright is so essential to the livelihood of our members, CCA considers copyright to be essentially a cultural matter. CCA believes that copyright should therefore be within the mandate of the federal department responsible for cultural matters, the Department of Canadian Heritage. Mandating one department with the responsibility for copyright reform would also facilitate the reform process.

Purpose of this Submission

Individually and collectively, many CCA members have responded to the Department of Canadian Heritage and Industry Canada's call for submissions on the papers published on June 22, 2001: A Framework for Copyright Reform, A Consultation Paper on Digital Copyright Issues and on the Application of the Copyright Act's Compulsory Retransmission Licence To The Internet. In deciding how CCA could contribute to the important debate surrounding reform of the copyright law, CCA concluded that it would not be a useful or productive contribution to simply repeat or summarize the positions of its members. CCA members themselves are better equipped and positioned to advise the government in this regard.

Instead, CCA offers, as its contribution to the copyright law reform process, a synthesis of the views of many of its members. The synthesis which follows identifies issues upon which a general consensus of CCA members exists and areas where consensus has yet to emerge. It is intended that this approach to the Government's call for submissions will provide a useful contribution to the revision of the copyright law.

CCA consulted its membership. The submissions of forty three organizational members of CCA are represented in the synthesis. (See Appendix A.) In this document, these forty three CCA members are collectively referred to as "CCA members."

A Framework for Copyright Reform

The paper A Framework for Copyright Reform proposes a series of discrete legislative packages rather than one or more larger packages as the most efficient and expeditious way to complete the reform of the Canadian Copyright Act. Most CCA members support the staged approach. CCA members urge the government to move forward with copyright reform, and to do so quickly. Reforming the copyright law is a matter of urgency for many CCA members. It was noted, however, that while copyright reform is now urgent in a number of areas, legislation also needs to be revised regularly to adapt to new technology and to respond to emerging issues. Regular revision would go a long way to reducing or eliminating the urgent reform action which is now required.

Many CCA members are of the view that implementation of the WIPO Copyright Treaty and the Performances and Phonograms Treaty, and legislative resolution of the application of the compulsory retransmission licence to the Internet, should be in the first stage of copyright reform. This reflects the view that when moving in stages, it is important that the issues selected for reform at any stage be designed to achieve a defined goal. Some CCA members did, however, express concern that adopting the staged approach could result in a failure to achieve a coherent and global copyright law.

The paper A Framework for Copyright Reform proposes that certain digital copyright issues, together with the matter of whether the compulsory retransmission licence applies to the Internet, be considered high priority issues. CCA members generally support moving rapidly on the digital issues described in the consultation paper and on the application of the compulsory retransmission licence to the Internet.

To the digital issues identified by the two departments CCA members recommend adding WIPO treaty implementation and the amendments required to enable Canada to ratify the WIPO treaties. Specifically mentioned are providing moral rights to performers and providing a term of life plus fifty years for photographs taken by corporate owners. CCA members take the position that the benefits of WIPO treaty implementation should not be delayed by the failure to address these remaining issues immediately. Some individual CCA members support adding specific issues unique to their interests.

Again CCA members expressed some concern that adopting the staged approach could result in a failure to achieve a coherent and global copyright law. Concern was also expressed by some CCA members regarding the difficulty of negotiating licences with users under ambiguous legal circumstances created by an outdated law.

Consultation Paper on Digital Copyright Issues

The Consultation Paper On Digital Copyright Issues sought stakeholders' views on whether a "making available" right is required in a revised copyright law. Many CCA members, although not all, express the view that a making available right is required. The majority view is that the right should be provided to performers and the makers of sound recordings and clarified as it applies to authors. The right should, in the majority view, be an exclusive right and not be subject to a compulsory licence.

The Consultation Paper On Digital Copyright Issues sought stakeholders' views on what amendments would best protect copyright owners against those who circumvent technological protection measures. CCA members support implementation of the WIPO treaties' obligation to provide effective legal remedies against those who circumvent technological protection measures employed by copyright owners to protect works and other subject-matter. Providing effective legal remedies requires extending the statute of limitations for copyright infringement. Many CCA members support prohibitions against devices that can be used to circumvent technological protection measures. The use of criminal sanctions as one type of recommended remedy was also supported.

The Consultation Paper On Digital Copyright Issues sought stakeholders' views on how "rights management information" should be defined. CCA members support implementation of the WIPO treaties' obligation to provide effective legal remedies against any person removing or altering electronic rights management information without authority and anyone dealing with works or copies of works knowing that electronic rights management information has been removed or altered without authority. On the matter of how "electronic rights management information" should be defined, CCA members support a definition that is wide enough to provide not only the minimum description contained in the WIPO treaties but one that also includes identifiers. Several CCA members expressed the view that the legal protection of rights management information must also protect the copyright owner who wishes to remain anonymous.

The Consultation Paper On Digital Copyright Issues sought stakeholders' views on the appropriate nature of legal liability of Internet service providers. The views of CCA members on this issue are divided. Some are of the view that strict liability is appropriate. Others support liability when an Internet service provider performing a passive function has actual knowledge of infringement, coupled with a statutory responsibility to remove infringing material under a notice and take down provision. The need for clear definitions of "Internet service provider" and "passive carrier" is emphasized.

Application of the Copyright Act's

Compulsory Retransmission Licence to the Internet

The Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet sought stakeholders' views on whether Internet based retransmitters should be expressly excluded from the benefit of the compulsory licence in the current Copyright Act. CCA members do not support the application of the compulsory retransmission licence to Internet based retransmitters. Instead, CCA members support confining the application of the compulsory licence to specified technologies. Specified technologies include conventional retransmission technologies and could include Internet Protocol technologies used to transmit works over a closed network in a secure and private manner. However, CCA members are of the view that the compulsory licence should not apply to the retransmssion of works over an open network, such as the World Wide Web, accessible using web browser software.

CCA members believe that the onus is on those who promote the application of the compulsory retransmission licence to the Internet to provide a compelling public policy reason why there should be a derogation from the exclusive rights of rights holders. CCA members recommend that rights holders be provided with an opportunity to find solutions to problems and possibilities presented by the Internet. Application of the compulsory licence to the Internet would prejudice the outcome and distort the developing market by the premature imposition of a regulatory regime in the form of a compulsory licence.

The Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet stated that technologically neutral legislation contributes to long-term legislative stability by reducing the need for ongoing amendments arising from unforeseen technological change. CCA members assert that unforeseen technological change is likely to require legislative change, whether the legislation is expressed in technologically neutral or technologically specific language. Technologically neutral language is more likely to include unforeseen technologies, while technologically specific language is more likely to exclude them. CCA members recommend to the government that it is more desirable from a public policy point of view, that new technologies be eligible for the compulsory retransmission licence deliberately and not accidentally, and only after careful consideration of the public policy implications.

The Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet sought stakeholders' views on restricting the application of the compulsory retransmission licence to Internet retransmitters that can restrict their service to Canada. CCA members support a territorial restriction on all retransmitters. Public policy reflected in the copyright law should not, according to CCA members, promote the export of Canadian signals and programming for use by non-Canadians under a compulsory licence. The obligation to have a territorial restriction should be coupled with an obligation to take reasonable technological measures to establish and maintain the territorial restriction.

The Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet sought stakeholders' views on what type of remedies should be available for non-compliance with a territorial restriction by a retransmitter. In addition to appropriate monitoring obligations, and a requirement to take corrective action, CCA members support making all the remedies available for acts of copyright infringement available for non-compliance with a territorial restriction. It is suggested by some CCA members that remedies should be available pursuant to a summary procedure.

The Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet sought stakeholders' views on banner advertisements by Internet retransmitters. One group of CCA members recommends that Internet retransmitters not be permitted to transmit advertisements simultaneously with the retransmitted signals without the consent of the affected broadcaster. To support this position it is noted that reductions in broadcaster's advertising revenue would reduce the ability of broadcasters to satisfy their Canadian programming obligations.

The Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet sought stakeholders' views on whether the words "simultaneously and in their entirety" exclude from the compulsory licence a delay or loss of information arising from necessary steps to convert a signal into a format suitable for Internet retransmission. One group of CCA members recommends that retransmitters be required to retransmit each signal "simultaneously and without alteration" rather than "simultaneously and in their entirety." It is proposed that the simultaneity requirement be subject to a reasonable delay, or loss of information, which is not evident to the viewer, arising solely from steps taken to convert the signal to a format suitable for retransmission.

Finally, in connection with the Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet several CCA members recommend that "retransmitter " be defined to indicate that any retransmitter must perform the function of a cable system. It is recommended that this definition be contained in regulations so as to permit more rapid and flexible adaptation to new technologies. Several CCA members also recommended a review of section 31.

APPENDIX A

The following groups provided their comments to the CCA, either individually or collectively:

ACTRA Performers Guild

American Federation of Musicians (A.F. of M)

Association des journalistes indépendants du Québec

Association nationale des éditeurs de livres

Association of Canadian Publishers (ACP)

Audio-Video Licensing Agency (AVLA)

Canadian Association of Photographers and Illustrators in Communications (CAPIC)

Canadian Copyright Institute

Canadian Copyright Licensing Agency (CANCOPY)

Canadian Country Music Association (CCMA)

Canadian Film and Television producers Association (CFTPA)

Canadian Independent Record Producers Association (CIRPA)

Canadian Music Publishers Association (CMPA)

Canadian Musical Reproduction Rights Agency (CMRRA)

Canadian Motion Picture Distributors Association (CMPDA)

Canadian Publishers' Council (CPC)

Canadian Recording Industry Association (CRIA)

Copibec

Copyright Coalition of Creators and Producers

Directors Guild of Canada

Directors Rights Collective of Canada

Fédération professionnelle des journalistes du Québec

League of Canadian Poets

Les Quotidiens du Québec

Media Content Coalition

Periodical Writers Association of Canada

Playwrights Union of Canada

Appendix A (2)

Professional Photographers of Canada (PPOC)

Recording Artists Association of Canada

Regroupement des artistes en arts visuels

Société de développement des périodiques culturels québécois

Société du droit de reproduction des auteurs, compositeurs et ééditeurs au Canada (SODRAC) inc.

Society of Composers, Authors and Music Publishers of Canada (SOCAN)

Songwriters Association of Canada

The Canadian Broadcasters Rights Agency

The Copyright Collective of Canada

The Canadian Film and Television Producers Association

The Canadian Motion Picture Distributors Association

The Writers' Union of Canada

Union des Artistes

Union des écrivaines et écrivans quebecois

Writers Guild of Canada