Canada’s General Election: The Copyright Angle

Modified from shutterstock.com

“The writ has dropped”. I am not sure where that arcane term comes from but in Canada it means that the electoral campaign to decide which party and leader will form the next government has begun. This will not be news to my Canadian readers but may be to those outside Canada, given the paucity of coverage in the foreign media on things Canadian–except perhaps for Bianca Andreescu’s victory over Serena Williams at the US Open.

On September 11, Prime Minister Justin Trudeau made the trek to Rideau Hall, the residence of Canada’s Governor-General, to request that Parliament be dissolved, thus kicking off a 40 day electoral campaign, culminating in the general election to be held on October 21. Normally the Prime Minister travels (sometimes walks) from his official residence at 24 Sussex Drive, just down the street from Rideau Hall, but on this occasion, Trudeau had to cover even less ground as he and his family occupy Rideau Cottage (formerly occupied by the Governor-General’s private secretary) located on the grounds of Rideau Hall itself. This is because the Prime Minister’s official residence is basically uninhabitable, with rusty pipes, leaky roof and reams of asbestos. It has been deteriorating for some time but such is the state of Canadian politics that no Prime Minister has had the political courage to spend public money to fix the historic building. When Trudeau became prime minister in 2015, he refused to move in. Canadians are cheap. Can you imagine a similar situation existing with the White House or No. 10 Downing Street? Trudeau even has to travel on the cheap. Yes, he has a dedicated VIP aircraft for security reasons, but it is a clunky old A310, which Airbus first produced in 1982 and stopped making more than twenty years ago. Hardly Air Force One. Donald Trump would never stand for it.

But back to the election. It will pit the incumbent Liberals under Trudeau, (currently with 177 seats in the 338 seat House of Commons), against the current opposition, the second-ranking Conservative Party (95 seats) led by former Commons Speaker Andrew Scheer. There are also several other parties currently with seats in Parliament who are contesting the election, and depending on how well they do, the end result might well be a minority Liberal or Conservative government, with one or more of the minor parties holding the balance of power. These parties are, in order of the number of seats they currently hold, the New Democrats (39), the Bloc Quebecois (10), the Green Party (2) and the Peoples’ Party (1)–which despite its name is not a left-leaning group but an ultra-right wing party–plus several independents. The election will be fought on many issues; jobs, tax policy, the environment and climate change, pipelines, the degree of trust that voters feel they can place in leaders, pharmacare, and even cellphone bills. But let’s be clear. It will not be fought on copyright issues. Nonetheless the outcome of this election is important for copyright stakeholders in Canada. Here’s why.

Copyright has been under the spotlight lately, with two Parliamentary committees having produced reports recommending changes to Canada’s Copyright Act, as required by the current legislation that mandates a review every five years. The process is running a bit late, since the latest revision to the Act came into force in 2012, but the hearings have now been held and reports produced. The first report out of the starting blocks was Shifting Paradigms, the report of the Standing Committee on Canadian Heritage. This Committee, made up of members from several parties but chaired by a Liberal Member of Parliament (it is normal practice that a government member serves as Chair of a Parliamentary committee), produced a report that made a number of pro-copyright recommendations. It was widely welcomed by members of Canada’s copyright community. The second report, from the Standing Committee on Industry, Science and Technology (known as the INDU Committee), was tepid, one could even say antithetical, to copyright concerns. It was also composed of members from several parties and, like the Heritage Committee, chaired by a government member from the Liberal Party. The two reports had a few areas where they were in general agreement but by and large one (the Heritage Committee report) could be said to be pro-copyright, and other (INDU) anti. The problem for creators and those in the copyright community is that the INDU Committee has statutory responsibility to review the Act and to report to the Minister of Innovation, Science and Economic Development (ISED), the minister responsible within the Government of Canada for administering the Copyright Act. To be sure, the responsibilities for copyright policy are shared somewhat with the Heritage Department, but the final call rests with ISED, where copyright concerns are not central to the department’s role.

After the INDU Committee issued its report, a couple of weeks after Shifting Paradigms was released, there were complaints from the artistic community that INDU had completely ignored the recommendations reached by the Heritage Committee. This is not surprising since the two reviews were conducted more or less parallel to each other during the same time frame, and although many witnesses appeared before both committees, the two reports were drafted separately and appeared almost simultaneously. Apparently stung by the criticism that it had not taken the conclusions of Shifting Paradigms into account, the INDU Committee then issued a strident and tone-deaf press release pounding its chest and proclaiming that it had “sole responsibility” for copyright review in Canada. The lack of support for copyright interests in the INDU report prompted John Degen, poet, novelist and Executive Director of the Writers’ Union of Canada to proclaim in a passionate blog posting, “Fighting Uphill for Artists’ Rights” that “the field is tilted against artists”.

A major part of the problem with copyright legislation in Canada is that, unlike in Australia, France or the US (which has its own unique governance structure, with management of the US Copyright Office entrusted to the Library of Congress), administration of copyright legislation is legally entrusted to a department of government whose main mandate and interest is industrial development, not artistic creation. Copyright is handled in different ways in different countries, as I examined in a blog posting a couple of years ago, and in Canada (as far as I am aware) copyright law has never been part of the official mandate of the department responsible for cultural policy. In the early days in fact, copyright was a responsibility of the Department of Agriculture!

So what does this election mean for copyright stakeholders in Canada? The artistic community is not without influence and will be trying to bring pressure to bear on the parties and candidates to take positions more supportive of the interests of creators–writers, artists, musicians, and others. In terms of where the parties stand, both the Liberals and Conservatives are on both sides of the issue, as is apparent from the conflicting Parliamentary reports. The Liberals have not released a full platform for this election but in their detailed platform for the last election, the word copyright does not appear. There is a section on cultural industries where the Liberals state “we will invest in our cultural and creative industries to create jobs…and to strengthen our rich Canadian identity”. But there is no mention of strengthening the rights of creators or of reversing any of the damaging changes to copyright brought in by the Conservatives in 2012. Instead, the policy is based on throwing money at the CBC, the Canada Council for the Arts, Telefilm, etc.

As for the Conservatives, they have covered copyright in their platform quite extensively, without actually saying much;

“The Conservative Party believes the objectives of copyright legislation should be:

  1. to create opportunities for Canadian creators to enjoy the fruits of their labour to the greatest possible extent;
  2. to ensure that the rights of Canadian creators are adequately protected by law;
  3. that these rights are balanced with the opportunity for the public to use copyrighted works for teaching, researching and lifelong learning;
  4. to continue to allow an individual to make copies of recordings of musical works and videos for that person’s personal and individual use;
  5. that enforcement is applied fairly and in accordance with international standards.”

The platform goes on to talk about the need for “reasonable access to copyrighted works” to facilitate learning and teaching, and the need for government to work with industry to increase awareness of copyright laws.

All this might sound pretty good to creators but for the fact that it was the Conservatives who enacted the 2012 Copyright Modernization Act, with its disastrous expansion of fair dealing to include an “education” exception. This exception is the pretext used by most of the academic community to opt out of their licensing obligations with the publishing collective rights management society, Access Copyright, which led to high-profile legal action by Access Copyright against York University (as a proxy for the post-secondary sector). The case is under appeal but at this point, the decision is in Access Copyright’s favour. All this could have been avoided if the fair dealing exception had not been unwisely and very loosely widened. The future of the education exception is very much front and centre in the reports of both the Committee on Canadian Heritage (Shifting Paradigms) and that of the INDU Committee, although they reach different conclusions. (The Heritage Committee recommended limiting and narrowing the exception whereas INDU proposed only that the government facilitate dialogue between the educational institutions and rights-holders in order to build consensus on the future of educational fair dealing in Canada, and review again in three years).

In the past the Conservatives have not been totally unfriendly to copyright interests. In 2007, when in government, the Conservatives rapidly passed an anti-camcording law–reportedly out of concern that Canada’s growing reputation at the time as a hotbed for illicit camcording threatened the integrity of the Toronto International Film Festival (TIFF)–and in 2015, just prior to the last election, they quickly passed an extension to the term of copyright protection for sound recordings, increasing the protection from 50 years after release to 70 years. (The period of protection for sound recordings, unlike most other works under copyright protection, is measured from date of release of the recording rather than by the duration of the author’s life plus a period of time beyond their natural life). The 2012 legislation brought Canadian copyright law into the 21st century but in the process created some significant problems for the creative community, and it is not clear where the Conservatives stand on rectifying them.

What about the New Democrats and the Greens? Copyright issues are not high on their agenda, although the “Dippers”, given their close association with organized labour, have usually been supportive when unions such as ACTRA have been engaged. As for the Greens, with a focus on “saving the planet”, their focus is on sustainability in all its various aspects. Copyright does not seem to figure into this although, like everything else, copyright has a carbon footprint (as I wrote about here), and choices can be made. The Bloc, as a solely Quebec-based party, is usually sympathetic to anything that strengthens Quebec’s cultural expression. As for creators in the “rest of Canada”, that is not their concern.

Given the above, if you are an artist, which party should you support, and indeed, who is likely to win? The polls indicate a close race between the Liberals and the Conservatives, with the New Democrats in free-fall and the Greens on the rise, albeit as a minority party. The Bloc will, as always, win a few seats in Quebec. Polls and predictions are just that, and can change throughout the campaign. Polls these days are notoriously unreliable, and various pollsters use different techniques to verify and improve their results. Some are better at it than others. In Canada the polling game has also turned into a nasty copyright controversy as the national broadcaster CBC has rolled out a “poll tracker” (an aggregation of polls) that is based on helping itself, without permission, to polling data produced by polling companies to come up with its own tracking results.

Whoever wins the election on October 21 will at some point have to pick up the question of copyright review, and examine the two reports that have been published. It may not be their first order of business but it will have to form part of the next legislative agenda. The creative community will need to continue to remind candidates of their concerns and although the election will not turn on copyright issues they are ever-present, underpinning concerns such as cultural identity, indigenous self-expression, employment opportunities for creators, fairness and equity, among others. Going forward, finding the right economic and legal balance between creators and users of creativity will continue to be an ongoing part of Canada’s political agenda.

© Hugh Stephens, 2019. All Rights Reserved.

 

Mural, Mural on the Wall: Were They Commissioned, One and All?

(c) Michelle Loughery, 2007. By permission of the artist.

Maybe you remember the story of the Canadian muralist Michelle Loughery who painted many of the wall murals that adorn the walls of buildings in Merritt, BC, the self-proclaimed “country music capital of Canada”? If you missed it (ICYMI, as they say these days), here is the link to “Mural, Mural on the Wall—Who’s the Owner of Them All?” It is the story of Michelle Loughery, community activist and artist who, with the assistance of local youth, painted most of the murals about a decade ago in cooperation with a local NGO called the “Merritt Walk of Stars Society”. That Society has since been wound up but has been succeeded by another organization, the Canadian Country Music Hall of Fame (CCMHF). It’s a complicated story but it involves who owns the copyright to the murals, at least some of which are clearly marked with Loughery’s © notification. (see photo above). Continue reading “Mural, Mural on the Wall: Were They Commissioned, One and All?”

Section 230 is Dangerous–Keep it Out of Trade Negotiations

source: shutterstock.com

Section 230 of the 1996 Communications Decency Act (CDA), a US statute passed in the infancy of the internet, just can’t stay out of the news. Section 230 is the clause inserted into the CDA that, as interpreted by the US courts over the years, has allowed internet intermediaries to avoid liability for content posted by users that is made available on their platforms. (It also allows those platforms to remove content considered to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such content is constitutionally protected”, but the focus of the tech community has been on avoiding any liability for doing nothing to restrict offensive user content rather than on its ability to take action against such content). It is highly controversial from many aspects, and can truly be described as a multi-edged sword, a measure that has come under attack primarily in the US, but also elsewhere, for a number of disparate reasons. Continue reading “Section 230 is Dangerous–Keep it Out of Trade Negotiations”