Prof. Ysolde Gendreau on “Canada's chance to bring copyright law into the digital age”

Prof. Ysolde Gendreau of the University of Montreal has just published on March 13, 2012 an op-ed  in the Montreal Gazette on copyright reform entitled “Canada's chance to bring copyright law into the digital age”

Interestingly, she also recently signed the unfortunate letter to the CBA that wrongly alleges “plagiarism" in CBA’s copyright brief to the Parliamentary Committee on Bill C-32/11and urges that the brief be withdrawn.

I am not going to comment on all aspects of her op-ed. Other than her general point that seems to be that copyright legislation should respond to new technology sooner rather than later (which it should go without saying can be disastrous if it results in a premature response that turns out to be wrong), there are parts of her article that seem to me difficult to understand   For example, I must confess that I really don’t know what she means by:

Digital technology has thus created a parado private users can now act like professional agents in that anybody can retransmit information, but it is impracticable to hold them directly liable for this activity; commercial professional agents, who are nevertheless essential to the monetizing of works, shirk from any liability.

But one paragraph in particular is indeed quite clear and calls out for comment. Here is what she said with my comments following:

The purpose of a Copyright Act is to identify situations where royalties are due and to provide a framework for centralizing payments. Consequently, even if a reader pays part of the royalties when he or she buys a book, it is the publisher who is liable to the copyright owner for the royalties on all books sold. The same principle applies to the existing levies for the private copying of music: the manufacturers and importers of blank audio recording media pay amounts that are related to the private copying done by users. (To claim that this levy is a kind of taxation is pure demagogy: it is no more a tax than the royalty included in the price of a book; it is merely a modern-day accommodation of commercial reality to the phenomenon of mass use of individual works.)

I must be old-fashioned but I always thought the purpose of a Copyright Act was somewhat loftier than merely “to identify situations where royalties are due and to provide a framework for centralizing payments”. The fact is that the 37 or so active collectives in Canada and their often very effective lawyers are quite capable of doing just that under the present legislation without any additional boost from Parliament. These collectives already bring in about $500 million a year through the collective system. That does NOT include many billions in sales, license fees and royalties that do not require “centralized payments”. Most of this money, by the way, leaves Canada.

In contrast to her odd statement, the Supreme Court of Canada has stated definitively in CCH v. LSUC that “the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”.  We can also look back in legal history. The Statute of Anne of 1709  - the first copyright statute – has as its full title “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.” (Emphasis added).  The US founding fathers also put it nicely in their constitution in the copyright clause, which states that “The Congress shall have power….. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.   There are countless other expansive and noble statements, but few as eloquent and succinct as these three.

So, one can easily agree that collectives are useful for centralizing payments – at least until they are replaced by direct internet-enabled dealings between creators and users. But her identification of “centralizing payments” is but a small part of many means to the broader ends mentioned by the SCC, the Statute of Anne and the US Congress. So, it's strange that she would ignore everything else.

As for her reference to royalties on a book, the purchaser (NOT, as suggested, the “reader”, who could be anyone who happens to have the book in hand) pays for these royalties when the book is bought, which eventually find their way back to the author via the publisher. There may be no royalties in some cases, for example when the book is remaindered – but that is a matter of contract and not copyright law. To reiterate, there is no royalty required from the “reader”. There is no right to charge for reading, although Access Copyright is trying mightily to get that very result indirectly in its current case at the Copyright Board and through well hidden measures in Bill C-11, as recently discussed by Ariel Katz.

Regarding levies, it is simply absurd to suggest that “The same [book royalty] principle applies to the existing levies for the private copying of music: the manufacturers and importers of blank audio recording media pay amounts that are related to the private copying done by users.” The manufacturers and importers of blank CDs or memory cards are not publishers of anything. They have no control over how their products are used and the fact is that their products are very rarely used for the reproduction of music.  To the extent that anyone uses blank CDs anymore, they are likely used for data backup purposes,  the sending of large data files in complex legal cases (such as  Copyright Board matters!), or many other non-musical reasons. When is the last time anyone has ever seen anybody using a Sony Discman on a bus or subway?  And chances are that the disc inside the Discman was bought at a record store. If the forthcoming Copyright Board hearing to impose a “memory tax” on microSDs actually goes to its conclusion before a regulation is put in place that would make it futile, the evidence will likely show that electronic memory cards are used almost entirely for storing pictures of cute cats, cuddly babies and many other purposes (e.g. GPS device data) that have nothing whatsoever to do with music. (I disclose that I have acted and continue to act for a prominent organization that opposes these blank media levies – but these views are my own).

As for her assertion that references to such levies being a tax are “pure demagogy”, I trust that she is not referring to the Honourable James Moore, Minster of Heritage, who referred to a proposed iPod levy as a “tax” and an “idea [that] is really toxic and, frankly, really dumb”.

A royalty included in the price of a book is a perfect example of how the copyright system should work and is as tried and true as copyright law itself. The publisher is required to pay the author for the publication and collects the royalty from the consumer that that buys the book. There is in this example, in principle and usually in practice, a perfect correlation and connection between the consumer, the book, the retail seller, the publisher and the author.  If there is an analogy or metaphor to be had here, it would be that a blank media “tax” to reward the music industry makes about as much sense as would a tax on blank copy paper to reward authors just because somebody somewhere may occasionally copy a sufficiently large portion of a book (normally at least a few sentences or paragraphs and maybe even more but certainly not just simply more than one sentence) under circumstances that are not fair dealing.  With a copy paper tax, it would be obviously impossible to reliably trace any connection between the any particular author and any particular piece or even purchaser of blank copy paper. Besides, most blank copy paper is used for such exciting things as copying business and administration documents that have nothing to do with copyright, not to mention drafts of law review articles and factum and countless other activities for which nobody has any remote claim to copyright royalties.  Indeed, for the very reason that music levies are all too often paid by those who never copy music for products that are never so used,  the European Court of Justice has recently marked the beginning of the end game for levies in Europe in its 2010 Padwan decision.

Even the ever resourceful and ambitious Access Copyright has not asked for a tariff on blank paper.  But I’d best stop now. I wouldn’t want to give AC any ideas…

HPK