The Canadian House of Commons Copyright “Shifting Paradigms” Report – Let’s Just Call it the “Values Gap” Report

 Graham Henderson, President, Music Canada http://musiccanada.com/contact/

The House of Commons Heritage Committee copyright report entitled "Shifting Paradigms" is out. It seems even more imbalanced & problematic than the 1985 Charter of Rights for Creators report or the infamous 2004 "Bulte" report. I'll be calling this the "Values Gap" report, with no apology to the inaptly named lobbying group Music Canada (which largely represents the international sound recording industry) and which has been pushing the phrase “Value Gap” for a long time.

Michael Geist explains how the Committee acted outside its mandate of looking at remuneration models in order to help the INDU Committee in its forthcoming s. 92 report. Instead, Committee Chair Julie Dabrusin rubber stamped lobbying positions of the music, publishing and collective sectors . For example, it notably embraces Access Copyright’s devious attempt to make tariffs mandatory by harmonizing tariff regimes and statutory minimum damages, an approach that  appeared to have also received early but hopefully not lasting sympathy from DG Mark Schaan at ISED and perhaps other officials.

This is the most over-the-top copyright event I’ve seen since the 1985 Charter of Rights for Creators and the infamous 2004 Bulte Report. Michael Geist has aptly penned the name “Bulte Redux” to today’s report – referring to a former Liberal MP once touted as the next Canadian Heritage minister.

For those who don’t know Canadian copyright history and may be condemned to repeat it, Sarmite Bulte’s political career ended a couple of years after her very one sided report when her closeness to the entertainment and collective sectors was exposed and she was defeated in her reelection in the presumed safe Liberal seat of Toronto Parkdale in 2006. Had she been reelected, and the Liberals not defeated, she might have been the next Heritage Minister. But flying too high with the copyright lobby effectively ended her political career.

Anyway, here are the recommendations of today’s report which I shall henceforth call the “Values Gap” report because it is so one-sided and so completely falls short of the values of balance, evidence-based analysis, and democratic responsibility that we would expect from a Canadian parliamentary committee. The Committee simply ignored the testimony of those with whom it disagreed, including, as Michael Geist points out, Professors Jeremy de Beer, Ariel Katz, Nick Mount, Meera Nair along with author Cory Doctorow and me, lawyer Howard Knopf. Hopefully, INDU and Cabinet will do much better. I’ve highlighted some of the more outrageous and insupportable recommendations:

Recommendation 1

That the Government of Canada increase its support for creators and creative

industries in adapting to new digital markets............................................................... 9

Recommendation 2

That the Government of Canada develop mechanisms by which streaming

services will develop and promote Canadian content. ............................................... 15

Recommendation 3

That the Government of Canada create educational materials to raise

awareness of copyright provisions and artist remuneration for consumers. .............. 16

Recommendation 4

That the Government of Canada create educational materials to raise

awareness of copyright provisions as well as artists’ rights and responsibilities

under the Copyright Act for artists and creators. ........................................................ 16

Recommendation 5

That the Government of Canada review the safe harbour exceptions and laws

to ensure that Internet service providers are accountable for their role in the

distribution of content. .............................................................................................. 19

Recommendation 6

That the Government of Canada increase its efforts to combat piracy and

enforce copyright. ...................................................................................................... 19

Recommendation 7

That the Government of Canada pursue its commitment to implement the

extension of copyright from 50 to 70 years after the author’s death. ......................... 22

Recommendation 8

That music streaming services be regulated like other Canadian music services. ....... 24

Recommendation 9

That tariffs for online music services be reviewed by the Copyright Board to

ensure royalty payments provide fair compensation for artists................................. 24

Recommendation 10

That the Government of Canada amend the radio royalty exemption found at

section 68.1(1) of the Copyright Act so that it applies only to independent

and/or community-based radio stations. ................................................................... 26

Recommendation 11

That the Government of Canada amend the definition of sound recording

found in section 2 of the Copyright Act to allow sound recordings used in

television and film to be eligible for public performance remuneration. .................... 28

Recommendation 12

That the Government of Canada review, clarify and/or remove exceptions

contained in the Copyright Act, ensuring that any exception respects section 9

of the Berne Convention for the Protection of Literary and Artistic Works, to

which Canada is a signatory. ...................................................................................... 30

Recommendation 13

That the Government of Canada meet international treaty obligations

(including Berne Convention for the Protection of Literary and Artistic Works,

the Trade-Related Aspects of Intellectual Property Rights Agreement, and

World Intellectual Property Organization Copyright Treaty). ..................................... 30

Recommendation 14

That the Government of Canada amend subsection 14(1) of the Copyright Act

so that it reads “from 25 years after assignment.” ..................................................... 31

Recommendation 15

That the exception for charitable organizations in subsection 32.2(3) of the

Copyright Act be clarified to apply strictly to activities where no commercial

monetary gain is intended. ........................................................................................ 33

Recommendation 16

That the Government of Canada extend moral and economic rights to

audiovisual performers. ............................................................................................. 35

Recommendation 17

That the Government of Canada amend section 34.1 of the Copyright Act to

deem the screenwriter and director the co-owners of copyright and co-authors

of a television or cinematographic work. ................................................................... 37

Recommendation 18

That Government of Canada amend the Act to clarify that fair dealing should

not apply to educational institutions when the work is commercially available. ........ 43

Recommendation 19

That the Government of Canada promote a return to licensing through

collective societies. .................................................................................................... 43

Recommendation 20

That the Government of Canada review, harmonize and improve the

enforcement of the statutory damages for infringement for non-commercial

use in section 38.1(1) of the Copyright Act. ................................................................ 43

Recommendation 21

That the Government of Canada harmonize remedies for collective societies

under the Copyright Act. ............................................................................................ 43

Recommendation 22

That the Government of Canada establish an artist’s resale right............................... 47

PS – the Committee is obviously unaware that Canada meets or exceeds all of its international obligations as I’ve pointed out many times before, and in many respects much more so than the USA, which is ultimate source of much of the lobbying that went into this sadly bad report.

HPK