Real-world experience important for politicians and other policy makers/promoters

Reading a press release from Timmins-James Bay MP Charlie Angus, you will see the following:

“Angus is one of the only MPs who has relied on income from copyright royalties from music, book and textbook sales to make a living. He says the New Democratic Party strongly supports fair remuneration for artists but that copyright must be looking forward to the 21st century reality rather than attempting to force consumers back to an obsolete 20th century business model.”

It is interesting to note that while federal Members of Parliament come from many walks of life, most of those who are vocal on technology law have very little experience with the relevant technology, or businesses affected by them. Musician and author Charlie Angus stands out as an exception.

The same problem that parliament has is unfortunately true of the policy coming out of Canada’s most vocal creator groups. While they are promoting policies they claim will modernize copyright to deal with the Internet, they are not experienced Internet users or developers, and are largely unaware of the full spectrum of businesses implicated by modern communications technology.

At CopyCamp I attended a session aimed at discussing the various policy positions that have come from the various creator groups. This included members of the Creators Copyright Coalition which is the umbrella lobby group formed by many of the same groups that form the Creators Rights Alliance (CRA). CRA is the host for CopyCamp.

One of the things that stuck in my mind was one traditional creator groups member suggesting that the current Canadian Copyright Act provides absolutely no protection for performers, and that ratification of the 1996 WIPO treaties was required to provide basic rights. I was never able to obtain clarity on this statement, and this session left me with more questions than answers. I attended this session to figure out why these groups thought these treaties would be helpful to creators, while I saw them as harmful.

I have read the current Canadian Copyright Act as well as all 6 Copyright-related WIPO treaties. This includes the two controversial treaties from 1996 – the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)).

It may, however, stem from a different idea of what “no protection” means, or a different idea of what performers need protection from.

Our current copyright act already incorporates most of what the WIPO Performances and Phonograms Treaty (WPPT) proposes, with a few areas of confusion and controversy. Given we already have “most”, I don’t see how it is reasonable to say we have “none”.

Within the music sector performers and makers of phonograms are under what is generally called “neighbouring rights”. Neighbouring rights are seen as related to the rights of the composers who were (and still are) recognized more fully as copyright holders similar to book authors. The current state of these rights were set when Canada ratified the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. We ratified this 1961 WIPO treaty in 1998 as a result of the major reform we did in 1997. This is a treaty that the USA never signed or ratified.

The 1996 WPPT offers moral rights for performers, something which is increasingly controversial as the right of integrity is often attempted to be abused as a form of material right which cannot be sold. This legal uncertainty will likely harm and not benefit the interests of performers.

The WPPT offers a rental right, which is expected to further harm multimedia rental companies at a time when this sector is already being hit by other changes in the marketplace (on-demand services via cable/satellite/Internet). The treaty doesn’t even allow this to be a compulsory license as is done for radio and television so that multimedia copyright holders get paid, but they can’t refuse permission and make rental administratively prohibitive. I see this new right as likely having the effect of reducing revenues for performers, not increasing.

The WPPT includes the same controversial and confusing language as the WCT around “technical measures”, “Rights Management Information” and “making available”. These are clauses in both the WPPT and the WCT. While the USA was the first country to implement these two treaties in 1998 (fairly easy, given their Clinton/Gore era bureaucrats were the origins of much of this confusing language and controversial concepts), it is still an open question a decade later as to what these terms mean within the United States. This legal uncertainty has created an environment where technological innovators and innovative creators need to either ignore this language entirely in order to avoid this bad and confusing policy to not entirely chill innovation.

I would suggest that creators are making money in countries that have ratified these treaties despite the ratification, not because of it. This chill on innovation protects those benefiting from the status quo, and who might be able to extract less money on the backs of creators if creators are able to modernize their business models.

Mr. Angus seems to understand what is really happening, suggesting that most of the lobbying around copyright revision is about protecting legacy business models from modernization, and not about protecting the interests of creators.

I know that I’m very thankful Mr. Angus is there protecting the full spectrum of interests of creators and our audiences/users. It is just unfortunate that he doesn’t have strong allies in either other political parties in the House of Commons, or in the traditional creator groups.

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Jim Love, Chief Content Officer, IT World Canada

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