During a time of pandemic, there is more need than ever to nurture our creative industries.

Source: Modified from http://www.shutterstock.com

Last week I wrote about the challenges facing artists and cultural industries world-wide as a result of the global COVID pandemic. The closure of many venues, from museums to theatres to concert halls, has had a devastating effect–not only on artistic incomes but by stifling creativity and forcing people out of the creative industries. Some governments have offered interim relief through various income support programs, but these are stop-gap measures at best. For some fields of artistic endeavour, the impact will be long-lasting.

While the pandemic has posed many new challenges, flaws in the copyright system that is supposed to protect creators has accentuated the artistic sector’s difficulties. In fact COVID-19 has been used as the pretext to mount assaults on the copyright framework by using the pandemic as an excuse to advance anti-copyright agendas, such as the Internet Archive’s (IA) so-called Emergency Open Library in the US. The IA unilaterally decided that it would abandon the “one copy-one user” principle for lending digitized works in its holdings and make multiple unlicensed copies of digitized works (that were still under copyright) openly available to all comers. After all, there was a pandemic on, so the normal rules don’t apply. Right? Wrong. Publishers were not amused, sued, and the IA pulled back—but only under duress. As I noted in a blog back in the early stages of the pandemic;

“Copyright is the canary in the coal mine when it comes to attempts by special interests to use the COVID pandemic to throw the accepted rules out the window in pursuit of other agendas that have nothing to do with fighting this global crisis.”

While some have used the pandemic as a smokescreen to attack the principles of copyright, in other instances the existing rules, or new interpretations of the rules, have made a bad situation worse. In the Internet Archive case, authors agreed that many people were suffering under lockdowns and accepted that it was harder for students and other to gain access to materials given the closures of libraries (the ostensible reason given by IA for launching its open lending practices). But it wasn’t just students and the public that were hurting. Authors themselves were also suffering. Authors get paid royalties when books are sold through bookstores (bricks and mortar or online) or licensed through libraries. Unlimited, unrestricted circulation of unlicensed copies (even the copies themselves were controversial because rather than being licensed e-books, they were scanned copies of physical books) was just another form of piracy.

In Canada, an ongoing dispute over whether educational institutions have the right to widely copy printed works without a licence under a relatively new “education” fair dealing exception is now going to the Supreme Court of Canada (York U v Access Copyright) for a determinative decision, unless Parliament clarifies the law before a decision is rendered. The hardships imposed by restricted opportunities to market books as a result of COVID-19 are magnified by this major hole in copyright protection. Even the “mandatory licensing” system overseen by the Copyright Board of Canada to enable copyright collectives to manage licensing on behalf of their members has been stood on its head by the Courts, another part of the York U v Access Copyright case that the Supreme Court has agreed to hear. In another creative field, musicians have been forced to compensate for the loss of revenue due to streaming piracy and low payment for licensing of streaming music by staying on tour, but tours are now cancelled for the foreseeable future as a result of the coronavirus.

There is no doubt that this is a very challenging time for creators and the copyright industries. Last month I penned an op-ed on this topic, published by the Globe and Mail. It argued that now is the time to get copyright “right”, given the additional challenges facing creators as a result of COVID.  This is all the more important given the need to maintain and sustain a vibrant cultural sector in order to help us all get through this pandemic with our sanity intact.

For those of you who don’t read the Globe and Mail, that op-ed is repeated below.

Canada’s copyright laws are limiting opportunities for creative industries to recover income

Globe and Mail, October 13, 2020

Hugh Stephens

Getting copyright “right” is important for Canada’s creative sector but also for the cultural and economic well-being of Canadians, especially during this time of COVID-19.

Like so many other sectors of our economy, our creative industries – authors, musicians, playwrights, actors, directors – were hit hard by the pandemic. Unfortunately, Canada’s current copyright regime has deepened that blow – limiting opportunities they may have had to recover any lost income.

For example, royalties to Canadian writers, visual artists and publishers for the use of published materials have fallen precipitously since changes to the Copyright Act were enacted back in 2012. Those changes included adding education as a “fair-dealing exception”: Fair dealing is the right of a user to reproduce copyrighted materials without payment or permission under specified circumstances and limits.

The addition of education as a fair-dealing purpose was so vaguely worded it has allowed most educational institutions at primary, secondary and postsecondary levels to cease payment to the collective societies that represent creators. Ultimately, where once educational institutions paid to copy sections from books, newspapers and other published materials for students, most now help themselves for free, depriving Canadian creators and publishers of countless millions in royalties.

Musicians also know the feeling of seeing their work taken for free or undervalued. Ever since the shift from analog to digital media, they have dealt with the “value gap” – where the platforms that house digital content reap the financial rewards with just a trickle left over for those who actually provide the content that make these platforms viable businesses. When live performances, often the only way musicians can earn a fair return these days, were stopped, the often-meagre funds realized from digital streaming were all that remained.

And if all this wasn’t enough, a most unwelcome surprise arrived – with a ruling from the Federal Court of Appeal. It escaped most people’s notice, but for the creative industries, it highlighted just how broken copyright in Canada actually is. The court ruled that tariffs approved by the Copyright Board are not “mandatory” for those who use unlicensed content, even though that has been the practice for the past several decades. Until now, the practice has been that if the board approves a tariff, it applies to all users of the content whether or not they are willing to enter licensing arrangements with the collective. The effect of this ruling undermines the fundamentals of copyright collectives in Canada that license content on behalf of their members.

As the ground was shifting under creators because of the pandemic, this ruling leaves collectives virtually powerless to ensure a fair return for use of creators’ works. If left unchallenged, the ruling will be a crippling body blow to writers, visual artists, publishers, musicians, songwriters and anyone else who makes a living creating. Parliament needs to clarify what a “mandatory tariff” means.

Canada’s creators and creative industries have suffered a double blow. COVID-19 has shut down many of the channels by which they reach their audience and earn a living. Canada’s broken copyright system has made the situation that much worse. As the pandemic has exposed a number of holes in our social fabric that need fixing, our copyright system needs fixing too.

© Hugh Stephens, 202.  All Rights Reserved.

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