Wednesday, May 15, 2019

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 to 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

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