Even though I didn’t have the time, I made the time to submit my own copyright consultation submission as a consumer and a writer.
It was excellent that the Canadian Government decided not only to ask for Canadian input, but to decide to share it. The very process bodes well both for transparency in government and for the future of democracy in Canada. I was happy to have the opportunity to say my piece; maybe my words might help shape the new copyright laws to create a better world for our children.
We showed them ours, its only fair that they show us theirs. Simple reciprocity.
SOCAN’s “above the law” attitude disturbed me even before reading the submission. SOCAN is a royalty collection agency for “musical works”. According to Duhaime.org in Canada this means “One for the song and another for the recording (considered two different works).” SOCAN expects the world to follow the rules of copyright and make payments to them under those rules. Yet SOCAN doesn’t want to follow the rules of the Copyright Consultation.
Every other submission can be read online without sacrificing personal identity or security. I don’t think it’s right that any Canadian citizen should be forced to give up their anonymity in order to be able to read the SOCAN submission or be forced to use a PDF.
Much as I dislike and distrust PDF files, if the provocation is great enough, I will break down and risk opening a PDF if I really need to see what’s inside. Because I care about the copyright process I wanted to know what SOCAN had to say. So I sent for the PDF and read it.
Now, I’m not a musician or a songwriter but after reading SOCAN’s submission I can understand why they might prefer this kept dark. There are some disturbing things in the SOCAN document, like the imperious tone which makes it sound less like a submission and more like issuing orders.
SOCAN makes a concerted attempt to imply that Canada is bound by previous drafts of unpassed laws and treaties we have not yet signed. This is nonsense. It doesn’t matter how many lawyers worked on a document, or how much you like it, laws need to be passed and treaties ratified before they are binding on anyone.
Interestingly enough, it doesn’t really make much difference to creators– after all, what does it matter to you if you’ve been dead fifty or seventy years? Rather than benefiting creators, this is a copyright provision which can only benefit those who make money from the creators.
That’s a pretty big discrepancy. I wonder which number is correct.
The submission seems to favor corporations holding copyright more than the creators of musical works. Personally, I’d want to hear from the actual creator membership before giving credence to this this submission.
Now having read the SOCAN copyright submission, it occurred to me that no one else would need to compromise their personal anonymity or their personal security to read this public submission if I posted it here:
C. PAUL SPURGEON
Vice-président, Services juridique et Chef du contentieux
Société Canadienne des auteurs, compositeurs et éditeurs de musique
Vice President, Legal Services B General Counsel
Society of Composers, Authors and Music Publishers of Canada
September 11, 2009
The Honorable Tony Clement, Minister of Industry
C.D. Howe Building
235 Queen Street
The Honorable James Moore, Minister of Canadian Heritage
15 Eddy Street
SOCAN’S RESPONSE TO THE NATIONAL CONSULTATIONS ON COPYRIGHT MODERNIZATION
1. This Submission is presented on behalf of the members of The Society of Composers, Authors and Music Publishers of Canada/Société canadienne des auteurs, compositeurs et éditeurs de musique (“SOCAN”) in response to the Government of Canada’s National Consultations on Copyright Modernization, which were launched on July 20, 2009 (the “Consultations”).
2. This Submission provides SOCAN’s response to the following questions, which the Government of Canada has posted on the Consultations website:
I. How do Canada’s copyright laws affect you? How should existing laws be modernized?
II. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?
III. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?
IV. What sorts of copyright changes do you believe would best foster competition and investment in Canada?
V. What kinds of changes would best position Canada as a leader in the global, digital economy?
I. HOW DO CANADA’S COPYRIGHT LAWS AFFECT YOU?
HOW SHOULD EXISTING LAWS BE MODERNIZED?
3. SOCAN is a Canadian owned and operated not-for-profit organization, which is directly affected by Canada’s copyright laws.
4. As we stated during the Toronto Town Hall Meeting on August 27, 2009, for over 80 years SOCAN and its predecessors have represented composers, lyricists, songwriters, and publishers of musical works from across Canada and around the world.
5. On behalf of our more than 35,000 active Canadian members, and members of affiliated similar societies from around the world, SOCAN collectively administers a specific copyright.
6. The copyright that we administer is the performing right in music and lyrics, which are commonly referred to as musical works.
7. The performing right is that part of copyright that gives owners of musical works the sole right to perform in public, to broadcast or communicate their works – or to authorize others to do so, in return for royalty payments.
8. These performing rights royalties are important to SOCAN’s members because they are risk-takers who do not get paid “up front” for writing songs. They are only entitled to receive copyright royalties if their song is actually performed or communicated by others.
9. The amount of copyright royalties our members receive is determined by the Copyright Board of Canada. This quasi-judicial tribunal balances the interests of both creators and users, and allows interested parties an opportunity to be heard in transparent public hearings.
10. We believe that Canada’s existing copyright laws should be modernized in a manner that balances the rights of SOCAN’s members and other creators with the needs of users of copyrighted works.
II. BASED ON CANADIAN VALUES AND INTERESTS, HOW SHOULD COPYRIGHT CHANGES BE MADE IN ORDER TO WITHSTAND THE TEST OF TIME?
11. A fundamental Canadian value is respect for the rule of law. To ensure that copyright law is clearly understood and respected, any changes to Canada’s Copyright Act must be technologically neutral, carefully drafted, and crystal clear. lf Parliament’s intent is ambiguously expressed in the legislation, confusion and costly litigation will result, and the marketplace will not function effectively.
12. SOCAN’s response to this question is presented under the following five subheadings:
1. The Making Available Right (“MAR”)
2. Bill C-6O’s MAR Provisions
3. Bill C-61’s Lack of MAR Provisions
4. The Need for Clarity in Copyright Act amendments
5. Technological Neutrality
1. THE MAKING AVAILABLE RIGHT (“MAR”)
13. The Making Available Right (the “MAR”) is defined in Article 8 of the World lntellectual Property Organization (the “WIPO”) Copyright Treaty as follows:
Wíthout prejudice to [enumerated provisions] of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.
14. lt is noteworthy that, during the past 4 years, the MAR for authors of musical works has been treated very differently in two Bills that died on the Order Paper
as a result of the last two Federal General Elections:
An Act to Amend the Copyríght Act, First Reading on June 20, 2005 (“Bill C-6O”); and An Act to Amend the Copyright Act, First Reading on June 12, 2008 (“Bill C-61 “).
2. BILL C-60’s MAR PROVISIONS
15. When Bill C-60 was tabled 4 years ago, the former government made it clear that its proposed MAR amendment was not intended to create a new right for authors, including SOCAN’s members. lnstead, the MAR amendment was intended to clarify an existing right:
Bill C-60 amends the Copyright Act to implement the copyright protections required by two World intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
Amendments in this regard are as follows..
-the existing exclusive communication right of authors is clarified to include control over the making available of their material on the internet ‘
16. The existing exclusive communications right of authors appears in the Copyright Act (the “Act’) under the heading “Copyright in works”, where paragraph 3(1)(f)states:
For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right…in the case of any literary, dramatic, musical or artistic work to communicate the work to the public by telecommunication… and to authorize such acts.
17. Subsection 1(2) of Bill C-60 specifically provided for the MAR for authors by including the following language:
a person who makes a work or other subject-matter available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them communicates it to the public by telecommunication;
18. ln contrast to the Bill C-60 provisions tabled in 2005, when Bill C-61 was tabled in 2008, it did not specifically provide for the MAR for authors.
1.Bill C-60 Backgrounder.
This and other government statements at the time regarding the clarification of an existing right followed the recommendations of the Canadian Bar Association (the “CBA”) and the Intellectual Property lnstitute of Canada (the “IPIC”) Joint Copyright Legislation Technical Committee. ln particular, the CBA/IPIC Joint Copyright Legislation Technical Committee recommended that the Act be amended to clarify that an exclusive right of”making available” is included as part of the right to communicate the work to the public, and that this change be made by way of “clarification” to avoid problems with existing licensing arrangements.
3. BILL C-61’s LACK OF MAR PROVISIONS
19. Bill C-61 included specific language to create the MAR for performers and makers of sound recordings but, unlike Bill C-60, contained no such language regarding the MAR for authors.
20. lf Parliament amends the Act to specifically provide a MAR for performers and sound recording makers only, the absence of a similar specific MAR for authors could create uncertainty, give rise to a judicial distinction, or enable litigants to argue that Parliament only intended to create a MAR for performers and sound recording makers – and not authors.
2.1 Second, as discussed above, the striking contrast between Bill C-60 and Bill X-61 cannot simply be ignored. And those who choose to challenge SOCAN will stress the importance of this contrast noting the fact that the former Liberal Government included MAR wording for authors when it tabled Bill C-60 in 2005, whereas the current Conservative Government did not include MAR wording for authors when it tabled Bill C-61 in 2008.
22. Due to this inconsistent treatment of the MAR for authors, SOCAN is concerned that confusion and costly litigation could arise if new legislation does not adopt the original Bill c-60 approach and clarify that the existing exclusive communications right of authors includes the MAR.
4. THE NEED FOR CLARITY IN COPYRIGHT ACT AMENDMENTS
23. lt has been SOCAN’s experience that, when Parliament enacts legislation that is not crystal clear, costly litigation and appeals result.
24. For example, in 1989, the legislation that implemented the Canada-United States Free Trade Agreement amended the Act to provide copyright owners with the right “to communicate to the public by telecommunication”. Although the amendment was intended to cover all communications of any kind whatsoever, the courts held that the statutory language was not sufficiently clear.
25. As a result, SOCAN became embroiled in several costly hearings, law suits, and appeals(2). Eventually, it became necessary to obtain another statutory amendment, Bill C-88, which Parliament enacted in 1993.
26. lf Parliament does not provide clear statutory guidance to the Courts, SOCAN fears that we may once again become embroiled in time-consuming, costly litigation.
(2) See CTV Television Network Ltd. v Canada (Copyright Board),  2. F.C. 115(Federal Court of Appeal) and Canadian Cable Television Assn. V. Canada (Copyright Board) ,  2 F.C. 138, (Federal Court of Appeal)
27. To ensure there is no confusion regarding the MAR for authors, SOCAN recommends that the Bill c-61 approach not be adopted. ln our opinion, Bill c-61 (if reintroduced) needs to be changed if MAR for authors is to be recognized, without question, as already forming part of the Act.
We are of the view that language appropriate for this purpose can be derived from the Bill C-60 definitional provision mentioned above to clarify the meaning of the section 3(1)(f) communication right (either in section 3(1)(f) itself or in section 90), together with clear wording to establish that the meaning has always been the case (and not just dating from the coming into force of this Bill). For example, an amended section 3(1)(f) could read as follows:
(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication; for greater certainty it is deemed always to have been the law that a person who makes a work available to the public in a way that allows members of the public to access it by telecommunication from a place and at a time individually chosen by them communicates it to the public by telecommunication.
In our opinion, this clause (or one of similar import) would confirm that the right of communication to the public by telecommunication in our Act includes, and has always included, the MAR right for authors.
28. To make certain that the problems that arose in 1989 are not repeated in 2009, SOCAN submits that amendments to the Act should include the foregoing language recommended above.
5. TECHNOLOGICAL NEUTRALITY
29. To ensure Canada’s copyright laws can withstand the test of time, they should not be confined to the technology that exists when they are enacted.
30. For example, when the Act was amended in 1997, it created a private copying levy to compensate right holders when Canadians make copies of their work for personal use. However, the courts have interpreted the wording to only apply the levy to blank media like audio cassettes, Mini-Discs and CD-Rs. A decade later, the amendments have not kept pace with changes in technology because this particular kind of blank media technology is no longer popular. lnstead, Digital MP3 players like the iPod have become the overwhelming medium of choice for copying and storing music.
31. lt is therefore clear that the copyright amendments enacted in 1997 have not stood the test of time, and the Act must be updated to deal with private copying technologies in the digital age today, and tomorrow. Canada’s laws must be expressed in such a way as to be “technology neutral”.
32 SOCAN is a member of the Canadian Private Copying Collective (the “CPCC”). We strongly support the CPCC’s efforts to ensure the Act’s private copying provisions are technologically neutral so they can stand the test of time.
III. WHAT SORTS OF COPYRIGHT CHANGES DO YOU BELIEVE WOULD BEST FOSTER INNOVATION AND CREATIVITY IN CANADA?
33. To best foster innovation and creativity in Canada, Parliament must ensure that those who innovate and create are fully compensated when their works are used.
34. Therefore, copyright amendments must not set up unwarranted exemptions, or otherwise limit, the copyright royalties paid when the musical works of SOCAN’s members are performed or communicated.
35. lf you deprive SOCAN’s members of copyright royalties, you are basically asking over 35,000 Canadian individuals to take risks and work for nothing. That’s not
realistic, and it’s not fair.
36. Canada’s copyright legislation creates certain exclusive rights for rights holders. However, the Act also deviates from these exclusive rights because some uses of works are permitted without the rights holder’s authorization, or without remuneration. These deviations are called ”exceptions”. ln other cases, authorization is not required, but creators and other rights holders are entitled to remuneration.
37. There is a fundamental difference between:
(1) the creators’ exclusive right to authorize the use of their works;
(2) the creators’ right to remuneration when they do not have the exclusive right to authorize the use of their works; and
(3) exceptions, where creators have neither the right to authorize the use of their works, nor the right to remuneration.
38. SOCAN submits that stripping creators of their rights is contrary to longstanding international norms and treaties to which Canada is a Party.
39. For example, Article 9(2) of the Berne Convention For The Protection of Literary and Artistic Works (Paris Text 1971) (the “Berne Convention”) creates the following three-step test:
It shall be a matter of legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
Moreover, Article 11bis (2) of the Berne Convention states:
It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.
40. Likewise, Article 13 of the World Trade Organization (the “WTO”) Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) includes the aforementioned Berne Convention’s three-step test, which must be respected by any limitations or exceptions to the exclusive rights of SOCAN’s members and other rights holders:
Members shall confine limitations or exceptions to exclusive rights to:
– certain special cases
– which do not conflict with a normal exploitation of the work and
– do not unreasonably prejudice the legitimate interests of the right holder.
41. On July 27, 2000, the WTO Dispute Settlement Body adopted the Panel Report entitled United States – Section 110(5) of the US Copyright Act(3). The WTO Panel considered the aforementioned Article 13 of the TRIPS and concluded that an exception in the US Copyright Act was inconsistent with provisions of the Berne Convention, which had been incorporated into the TRIPS Agreement.
42. The WTO Panel therefore recommended that the Dispute Settlement Body ask the United States to bring its copyright exception into conformity with its obligations under the TRIPS Agreement. The Panel further noted that:
. . .in cases where there would be a serious loss of profit for the copyright owner, the law should provide him with some compensation (a system of compulsory licensing with equitable compensation).4
43. It should also be noted that, under the heading “Limitations and Exceptions”, Article 10 of the WIPO Copyright Treaty states:
(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
The Agreed Statement concerning Article 10 states:
It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Simílarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.
It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.
44. The regime that applies to SOCAN is preferable to exceptions because it strikes an equitable balance between the rights of creators and the needs of users, and it enables Canada to respect its international treaty obligations. This regime allows composers, lyricists, songwriters, and their publishers, through their collective SOCAN, to decide, on their own volition, to donate the use of their works to a particular user, for a particular purpose.
45. ln the event SOCAN is not prepared to forego remuneration, and SOCAN and a user are unable to agree on a royalty, the Copyright Board of Canada provides a fair mechanism to set the royalty and balance the rights of users and creators.
46. Moreover, the Act already recognizes that exceptions are not appropriate where licenses are available from a collective society. For example, subsection 30.9(6)
of the Act limits the ephemeral rights exception for sound recordings “if a license is available from a collective society to reproduce the sound recording, performer’s performance or work”. This balanced mechanism is preferable to outright exceptions which deprive creators of remuneration when their works are used.
47. As a Party to Berne and the WTO TRIPS treaties (and a potential Party to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty), we submit that Canada must fully respect the foregoing 3-step test regarding any existing or proposed copyright limitations and exceptions.
48. ln accordance with Canada’s copyright treaty obligations, SOCAN hereby opposes any attempts to promote exceptions at the expense of creators’ rights, including the right to full compensation for the use of musical works.
IV. WHAT SORTS OF COPYRIGHT CHANGES DO YOU BELIEVE WOULD BEST FOSTER COMPETITION AND INVESTMENT IN CANADA?
49. To foster competition and investment in Canada, the Act must enable creators to defend their works from exploitation without compensation. Digital Rights Management measures play an important role in this regard because they help creators to monitor the use of their works and enforce their rights.
50. The term Digital Rights Management (“DRM”) normally refers to the following two distinct measures:
. Rights Management lnformation (“RMI”); and
. Technological Protection Measures (“TPMs”).
51. A good definition of RMI appeared in Section 41.21 of Bill C-61:
“rights management information” means information that
(a) is attached to or embodied in a copy of a work, a performer’s performance fixed in a sound recording, or a sound recording, or appears in connection with its communication to the public by telecommunication;
(b) identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or the holder of any rights in the work, the performance or the sound recording, or concerns the terms or conditions of the work’s, performance’s or sound recording’s use.
52. This definition reflects the provisions of Article 12 of the WIPO Copyright Treaty, which states:
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention.
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.
(2) As used in this Arficle, “rights management information” means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.
53. SOCAN licenses the world’s music repertoire and we encourage the lawful use of music. To identify whose musical works are used so that we can distribute the royalties we collect to individual creators, we rely on RMI. No invasion of privacy is required to fulfill our identification requirements, because we do not need to know which particular musical work was lawfully used by a particular individual.
54. To ensure creators can monitor the use of their works and enable them to enforce their rights, the Act should implement the RMI provisions of Article 12 of the WIPO Copyright Treaty and provide meaningful and efficient legal remedies.
55. Second, with respect to TPMs, SOCAN does not rely on these measures because our mandate is to license the world’s music repertoire and collect royalties in accordance with tariffs set by the Copyright Board of Canada. However, we support the right of copyright owners to use TPMs to protect their works if they so desire. We therefore submit that the Act should be amended to fully implement Article 11 of the WIPO Copyright Treaty, which states:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.
56. Third, with respect to both DRM and TPMs, SOCAN submits that, in accordance with Article 14 of the WIPO Copyright Treaty, the Act should be amended to ensure that all enforcement procedures permit effective action against any act of infringement, including expeditious remedies to prevent infringements, and remedies which constitute a deterrent to further infringements.
V. WHAT KINDS OF CHANGES WOULD BEST POSITION CANADA AS A LEADER IN THE GLOBAL, DIGITAL ECONOMY?
57. To best position Canada as a leader in the global, digital economy, the Act should be amended to recognize the major role that lnternet Service Providers (“ISPs) play in facilitating copyright infringement.
58. Bill C-61 attempted to clarify the liability of ISPs by adopting a “notice and notice” regime. SOCAN submits that Bill C-61 did not fully recognize the role that ISPs play in copyright infringement, and the fact that ISPs now openly market their services and charge higher prices based on bandwidth and their customers’ ability to “download high quality music files, stream video, or play games”.’
59. To best position Canada as a leader in the global, digital economy, SOCAN therefore submits that Parliament should enact a “notice and takedown” regime.
60. Second, Parliament should extend Canada’s copyright term from 50 years to 70 years after the death of the author.
61. Under section 6 of the Act, the general term during which copyright subsists is the life of the author, the remainder of the calendar year in which the author dies, and a period of 50 years following the end of that calendar year.
62. Human longevity has increased since the 19th century when the 50-year term was established, and many countries have extended the term of copyright protection to reflect the fact that people now live longer. For example, European countries provide for a minimum term of 70 years following the death of the author.
63. To best position Canada as a leader in the global, digital economy, SOCAN therefore submits that Canada should also extend the Act’s copyright term from 50 years to 70 years, in order to bring Canada in line with many of its major trading partners.
64. SOCAN welcomes this opportunity to participate in the Consultations and provide our preliminary views regarding copyright reform. We will provide further
submissions once the legislation is tabled and it is referred to a parliamentary committee.
65. with respect to the parliamentary committee that will consider this legislation, SOCAN notes that, pursuant to the Department of Canadian Heritage Act, the jurisdiction of the Minister of Canadian Heritage includes the formulation of cultural policy as it relates to copyright.
66. ln 1996-1997, when the last major legislative amendments were made to the Act, the legislation (Bill C-32) was considered by the Standing Committee on Canadian Heritage. SOCAN submits that this Standing Committee should again have sole responsibility, or its members should play an equal role on any House of Commons Committee that considers amendments to the Act.
67. We look forward to working with Ministers, their officials, and Members of Parliament to ensure that the Consultations lead to the enactment of modern legislation in 2010.
C. Paul Spurgeon
SOCAN’s Response to the National Consultations on Copyright Modernization Page 13 of 13
September 1 1, 2009 ”
[P.S. Being new to contemplation of copyright issues, and a non-lawyer, I can sometimes intuitively figure things out. There are so many things at play here that I was unaware of. Please read Howard Knopf’s Excess Copyright Blog for a far better understanding of the issue.
–Laurel L Russwurm. December 9, 2009]