Creative Freedom

NOTE: although “published” I will be working on editing & adding to this post through the day.

Cover art for my novel locked in a jail cel secured with a padlock marked with the copyright symbol
Bill C-32 would lock up my novel

Copyright is a big issue for me, and seems to crop up more often than not all through this, my personal blog.
Because of Bill C-32 and ACTA, my Oh! Canada blog also has an increasing number of copyright posts. And of course since copyright is being used to attack net neutrality, it also features in my tech issue blog StopUBB.

As my personal Software Freedom Day initiative I’ve decided to begin compiling a list of important information about copyright law. As a writer, I am passionately opposed to Bill C-32, the supposed copyright reform currently before the Canadian Government. Written as though by foreign special interest groups, if passed Bill C-32 will place horrendous barriers to Canadian artists, musicians, filmmakers, writers, citizens, and students through it’s ironclad protection of DRM/TPM.

This law will make it possible to stop anyone who uses the Internet or other digital means to distribute/disseminate/share their own creative work. Currently 30% of the Canadian recording Industry is Independent of the big labels. This renaissance of Canadian culture could be stopped dead by Bill C-32. This is bad.

For me personally, passage of Bill C-32 would impede my ability to self publish and distribute my novel.
Copyright symbol with maple leaf

Copyright Links: Bill C-32

My initial StopUBB summary: Copyright Modernization Act: Bill C-32

One of the leading copyright authorities and resources is the University of Ottawa’s Professor Michael Geist who always makes available a good translations of copyright legalese that might be used to choke Canada’s creativity.

Russell McOrmond is my other leading source for copyright information and analysis although he’s not a lawyer, he is very knowledgable about copyright issues. McOrmond’s Digital Copyright provides a Conservative Copyright Bill C-32 page which guides visitors through the Copyright Bill C-32 issues.

Practicing Canadian IP Lawyer Howard Knopf provides insight into copyright law in his blog Excess Copyright

Like me, Wayne Borean is affected by copyright issues on a number of fronts. He’s been putting together some excellent material in the copyright segment of his blog Through the Looking Glass.

Other Great Sites that discuss Copyright issues:
Question Copyright
Project Gutenberg News
Gutenberg Canada
boing boing
Public Knowledge
Knowledge Ecology International


TechDirt always has lots of good coverage, but I particularly liked this one TechDirt: Canadian Music Industry Spokesperson Claims User Generated Content Supports ‘Piracy’ since this is what I believe to be the real purpose: to stop people from putting their own content online. The growth of independent creativity is cutting into the bottom line of powerful corporations.
Jesse Brown is a good resource in general; this copyright podcast highlights the idea that Canadians are tired of fighting the same issue over and over again.Search Engine with Jesse Brown: Audio Podcast #43: So Bored of Copyright
CBC online is the only mainstream news media to cover StopUBB issues. Along with the other mainstream media they seem willing to cover some of the Bill C-32 issue, although none of them seem willing to cover ACTA. I think C-32, the UK Digital Economy Act ( DEAct) and the American Digital Millenium Copyright Act (DMCA) are all “warm-up acts for ACTA. One of the key stumbling blocks to completing the ACTA negotiations is that each country will have to alter domestic law in order to be able to ratify it. The DEAct succeeded remarkably well in passing domestic law even worse than ACTA requires, which is why UK

It is disturbing that this has been revealed: Michael Geist: “We Don’t Care What You Do, As Long as the U.S. Is Satisfied”

Michael Geist: DMCA-Style Reforms: “Not a Reasonable Policy To Foster Innovation or Respect for Copyright”

Unexpected Effects

One of the byproducts of laws like this one that have been playing out in the UK (Digital Economy Act) and the USA (DMCA) has been the rampant often specious lawsuits which often have no merit, but can be very profitable when used to extort people into settling them from fear. We can assume that this is one of the things Canadian will have to look forward to as well.

Of course since these negative effects have already happened as a direct result of the American DMCA and the UK DEA, should the Canadian government pass Bill C-32 it will be way past “unexpected” when the same effects ensue here.

Which is why I wanted to include this link The RIAA? Amateurs. Here’s how you sue 14,000+ P2P users

Why I don’t Like DRM:  DRM is BAD


Thank you, Nina Paley, for this cartoon which made my day:


The Golden Age of Canadian Country Music

Family legend has my mother Laura, an aspiring young country singer, advertising
for a back-up band. My father, Lynn Russwurm, answered the ad.
50s black and white publicity snap - wearing  cowboy star finery

Back in those days Dad’s country band was called the Pine River Troubadours.    When my parents hooked up, Lynn and Laura became The Pine River Sweethearts.     Not that either of them had ever been anywhere near anything called the “Pine River”.      Just a little creative license (not to be confused with Creative Commons license.)

Country Music Family, Mom, Toddler, Dad and Guitar

As a kid I remember thinking it odd that my parents would “go playing”.    After all “playing” was supposed to be the province of us kids.     It was particularly galling that we couldn’t go along.

It was only later that I realized my folks weren’t suffering massive bouts of immaturity but out working… playing musical instruments.

Before I was born my brother had his stage debut.   As I got older I was thrilled to have my own opportunity to sing onstage with my sisters every summer when our parents played regular summer park gigs.

But in my teen years my natural inclination to hamminess evaporated under the onslaught of adolescent insecurity.   Suddenly nothing in the world would get me up on that stage.   Ever.

One of my favorites that they played was actually a popular White Swan toilet paper jingle.     Hey I was a kid; kids are supposed to like bathroom humour.     But I wasn’t the only one laughing — playing that jingle always got a big laugh.

Nowadays they would probably get charged with a copyright infringement, but back then any company would have welcomed the free advertising.

By the time I was ten I pretty much knew the words to every country music song ever written.   (At least it sure felt like I did.)   But the first song that truly captured my attention was Bobby Goldsboro‘s sad ballad Honey.   The first time I heard it I was supposed to be asleep, not crouching in the hall illicitly watching the country music TV program my parents had on in the mistaken belief the kids were safely down for the night.   (Hah.)   I do remember crawling back into bed and crying myself to sleep (quietly, so as not to incriminate myself) because the story in the song was so sad.

cover art for the vinyl record album
Another song I love to this day is the Marty Robbins ballad El Paso.   Oooh… still get chills.   The song tells a good story, and I guess I’ve always been a story person.   Probably why I’m a writer not a musician.

I was star struck when Dad took me back stage to meet Marty Robbins.   Finding myself face to face with my hero my heart skipped a beat… and I promptly buried my face in Dad’s pant leg and refused to look at the poor guy.      Sorry Marty.

When I was much older I went out and bought my own copy of Gunfighter Ballads and Trail Songs on vinyl.   I still have the shocking pink album on vinyl, because I still love the song.

My dad was always an active and prolific song writer.   When the kids were little, Mom stayed home while Dad played with other bands on weekends.   There was often back stage schmoozing at concerts to make contact with musicians and recording artists who might want to record some of his songs.   And his music did get recorded.

A Pencil Portrait of the band graces the black and white Play it Long and Lonesome album cover

As we kids got older, Dad dusted off his ambitions and started a new band both parents could be part of.   It wasn’t long before my brother was old enough to join the band.

Eventually Dad produced a The Hummingbirds debut album “Play It Long and Lonesome” on his own Flora Records label.   My brother Lance Russwurm did the cover illustration, and I’m happy to report that the music still holds up nicely today.   If anything, the production values may have been too slick for the country music genre at the time.

Recording artist Hank Thompson collaborated on some of Dad’s songs.   They co-wrote a spooky number called I Cast a Lonesome Shadow.

CD Cover Art for Counterfeit 2
Recently the song was covered by Martin L. Gore on his solo album Counterfeit 2.     Dad can’t quite connect with the Depeche Mode singer’s interpretation, but it certainly tickles him to have one of his songs performed in such a different way.

kid perspective

There were lots of country music TV shows on air back then.   Exposure is a key ingredient in finding an audience.   Whenever any country music program was on TV whatever we kids wanted to watch was over-ruled.   The Gary Buck Show.   The Tommy Hunter Show.    The George Hamilton the Fourth Show.     No matter what great adventure show was on the other channel.     Living in rural southern Ontario at the time we only got two channels, so I imagine there was a great deal of country music programming elsewhere in Canada too.   At least Hee Haw was funny.

Cutting Edge

Cover Art

My father began his love affair with music as a kid on a farm listening to CKNX Barn Dance radio broadcasts.   The cutting edge technology of the time allowed radio broadcasts from Wingham to be heard all around the world.

The story of how Doc Cruikshank built the original Wingham radio tower by following a Do It Yourself article in a 1926 issue of Popular Mechanics Magazine was documented 30 years later in the 1956 Popular Mechanics story The World’s Tiniest Town with TV.

When CKNX launched its radio station they only broadcast part time.   The big problem was the need for content.   Cruikshank solved that by enlisting local musicians to play music over the airwaves.   It wasn’t very long before performers were clamoring to appear on the CKNX Barn Dance broadcasts.

A guest performance on the CKNX Barn Dance was the Canadian equivalent of performing on The Grand Ol’ Opry.   The studio had a glass window wall that allowed passers by to watch the performers do their broadcasts from the street.

Unknown Fiddler, Lynn and Laura Russwurm and Earl Heywood
Performing on the CKNX Barn Dance with legendary Earl Heywood.

The technology made it possible to reach an incredibly large audience.   This was the golden age of Canadian Country Music.   When everyone performed in black and white…   Just kidding!

a brief look at technology, politics and the music business

Between the 1920’s and the 1950’s, radio and recording technology was still pretty new.   Performers had places to perform and were able to access the technology.   Certainly cutting a record was expensive, but anyone could do it.   There were many small recording companies and many successful performers, singers and songwriters.   The world of culture was rich and varied.

1950's vintage microphone with a Barndance stage cover

By the 1950’s, though, the world shrank.   It isn’t that there were fewer performers, but that there were fewer companies.   As the media companies merged, and merged again, and again and again, control of music distribution was distilled into a tiny handful of corporations.

Which is why today, Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada, four American “branch plants”, are the primary members of the Canadian Recording Industry Association.   That translates to a big four chances for creators to record their music.

In a misguided attempt to ensure Canadian performers would have access to Canadian airwaves, our government implemented “Canadian Content” legislation.   Unfortunately the effect was to introduce a quota system.   Had the government stood firm it might not have been so bad, but they caved in when the big recording companies fought tooth and nail to have the quotas reduced.   The end result is the absolute least Canadian content these companies can get away with.

The result for Canadian culture has not been pretty.   Because of the lack of opportunities for Canadian artists, a great many have been forced to leave home, incidentally enriching American culture at the expense of Canadian culture.

In the 1980’s it would have cost tens or perhaps hundreds of thousands of dollars to outfit a professional recording studio.   Over the past few decades computer technology has brought enormous innovation to the equipment.   Prices have dropped so that just about anyone can set up a home recording studio.   The Internet has provided artists with an amazing inexpensive way to promote and distribute their own media.

As a result, more and more Canadian artists have chosen to market their own music, rather than giving some or all of the copyright to their original creations to corporations who continue to operate like a “company store”.   Small businesses are springing up to handle the 21st century support modern independent artists require.   If left alone, the large media corporations that refuse to adapt will go out of business like the buggy whip manufacturers before them.

This Magazine reported that 30% of the Canadian Music Industry has cut out the big studio middlemen and gone independent.

Michael Geist discusses Canadian Digital Music Sales Growth Beats The U.S. For the 4th Straight Year

The Canadian music industry has now come full circle. We’re back to where artists have choices and freedom, and cannot be coerced into giving up their copyright.

A great deal of pressure is being applied by the American Copyright Lobby on our government especially the department of Industry to force them to introduce legislation beneficial to the large media corporations and copyright collectives at the expense of our creators and our citizens.   Failing that, Canada is one of the countries negotiating the secret A.C.T.A. copyright treaty, and if Canada signs it, at the end of the day the new Canadian copyright laws we would be implementing would not be “made in Canada” but made in the U.S.A.

The copyright lobby is also trying to convince citizens that personal use copying and file sharing is the same thing as commercial bootlegging, so they will be able to clamp down on supposed “piracy” as an excuse to lock down the internet. Like the early days of radio and recording, independent media artists have the ability to disseminate their own work.   If they succeed in convincing us that what we have purchased doesn’t really belong to us, suddenly our freedom will be gone. And that would be the end of the new golden age of music.

Right now it could go either way. I vote for freedom.

Dad discovers YouTube

The other day my Dad dropped by to tell us about a couple of videos he’d found on YouTube.

Lynn and Laura Russwurm performing on stage

How about that…. videos of people performing one of his own songs.   Contrary to what the RIAA (Recording Industry Association of America) would have people believe, only rarely do artists push for laws to extend copyright in perpetuity.

Although a “rights holder”, the last thing Dad wanted was to bring charges of copyright infringement.   As an artist, a creator, Dad was just thrilled to have his work appreciated and interpreted.   And most especially, kept alive.

For any artist, this is immortality.

This is why artists create art.

They have to.

When you’re an artist, the most important thing is being heard.

If you can get paid too: bonus.

Dad liked this one of the band West Coast Turnaround performing I Cast a Lonesome Shadow live, even though it’s missing the first bit. It was quite probably recorded by a fan with a cel phone in a bar. Glad they weren’t arrested.

My preference is for the haunting cinematic elements enhancing this version of I Cast a Lonesome Shadow performed by the band Slipshod . This video is produced by Børge Øgård (Burdge).

My personal favorite of the many recordings made of I Cast A Lonesome Shadow would be my brother Lance singing it on The Hummingbirds album. (Don’t tell him I said that.)

Play It Long and Lonesome is scheduled to be released on CD this year.

Happy Valentines Day

“Tis Valentines Day once again.   This year my family’s hearts are being warmed by our terrific new kittens.   (Nick is curled on my lap as I type. You can see Murray and Nick here. )

A transluscent red heart made from shell
This beautiful heart is a fair trade handicraft purchased from Ten Thousand Villages

I never knew this growing up, but an interesting thing I’ve learned through family tree research was that my paternal ancestor who emigrated from Alsace to Canada was named Valentine.

But of course Valentine’s Day is named for St. Valentine, and over the years (particulary thanks to the greeting card industry) this day has come to symbolize romantic love around the world.

As it turns out, Family Day, the new Canadian Statutory Holiday follows tomorrow.   That’s kind of appropriate as the classic Cole Porter song “Makin; Whoopee” warns, performed by the fabulous Michelle Pfeiffer in this clip from The Fabulous Baker Boys

My son was telling me that in Japan girls make chocolate gifts for their intended beaux, who are then honor bound to reciprocate a few days later with a more substantial gift.   Diamonds maybe?

This next clip from Youtube is the magnificent Marilyn Monroe performing the classic Gentlemen Prefer Blondes number Diamonds are a Girl’s Best Friend

Sadly, Marilyn was the classic example of a woman seemingly with everything but actually unhappy in love.   She ended her own life a suicide at the age of 36. [Although speculation abounds; Marilyn’s Wikipedia entry tells us that neither accidental overdose or murder were ruled out.]

Madonna’s rock video Material Girl clearly payed homage to the classic Monroe number.   Happily Madonna is still going strong past the age of 50.   She seems to have a firm grasp on her career and is clearly getting the most out of life.

You go girl!

copycon: SOCAN advocates 1 Strike

Canadian copyright

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.

Submissions to the Industry Canada copyright econsultation website were to be publicly posted to allow everyone who was interested to read all the submissions online.

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.

Copyright Consultation FAQ:

8.) Will my comments be made public or posted online? What if I don’t want my comments to be made public?

Your comments will be made public on the copyright consultation website. Please see the guidelines on how to participate for more information.”

Naturally I was surprised to read on Michael Geist’s website that SOCAN wanted special treatment for their copyright consultation submission.   SOCAN wanted their say without having it posted on the copyright consultation web page along with the rest of us.

Why doesn’t SOCAN want their submission posted publicly?

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 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.

If I was running the Copyright Consultation, I would be inclined to discount a submission from anyone who insisted on having special treatment. But apparently Industry Canada is more forgiving than I, so they effected a compromise: they put up a link so interested parties could get the PDF file emailed.

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.

best positioning Canada as a follower

I was surprised that SOCAN is touting a 70 years after the death of the creator clause as a supposed means of positioning Canada as a global leader.   Maybe I lack the requisite imagination to see how jumping on the Disney bandwagon and following what other countries have done could possibly be extolled as leadership.

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.

1 strike and you’re out

SOCAN is also advocating the most draconian penalties of all… Notice and Takedown, which almost makes three strikes laws look benevolent.

SOCAN’s advocacy of DRM/TPM devices because “they help creators to monitor the use of their works and enforce their rights” is hard for me to understand.   I’m curious about this because I’ve never heard of creators having control over DRM or TPM.   My understanding is that these are copyright controls practiced by corporations rather than creators.

who does this submission actually represent?

The submission quotes SOCAN as having 35,000 members but the SOCAN website front page quotes “90,000 composer, author and music publisher members”.

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:


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
Industry Canada
C.D. Howe Building
235 Queen Street
Ottawa, Ontario

The Honorable James Moore, Minister of Canadian Heritage
Canadian Heritage
15 Eddy Street
Gatineau, Quebec



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?


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.


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


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 “).


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 ‘

(emphasis added)

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.

(emphasis added)

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.



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.


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), [1993] 2. F.C. 115(Federal Court of Appeal) and Canadian Cable Television Assn. V. Canada (Copyright Board) , [1993] 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.


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.


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.

(emphasis added)

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.

(emphasis added)

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.


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.


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.

Yours truly,

C. Paul Spurgeon


SOCAN’s Response to the National Consultations on Copyright Modernization Page 13 of 13
September 1 1, 2009 ”

[If you would like to read the original PDF without having to give up your email address, you can now find it at: p2pnet: Secret SOCAN copyright doc online]

[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]