Six Questions: Copyright Consultation Toronto Town Hall Redux

WHEN? August 27, 2009

WHERE? Toronto, Fairmont Royal York Hotel. The proceedings were also webcast from the Copyright Consultation website. For video and upcoming transcripts of the Toronto Town Hall, see the website at: http://copyright.econsultation.ca.

WHO? Hosted by the Honourable Tony Clement, Minister of Industry. Dianne LeBreton acted as Facilitator. More than 650 Canadians participated in real time (in person and online). Pre-registration to attend the Town Hall was required. Participants who spoke included three representatives from Warner Music Canada (including President Steve Kane), and a representative from each of Sony Music Canada, Universal Music Canada, SOCAN, Writers Union of Canada, and Ontario Council of University Libraries (OCUL), and ACTRA President Ferne Downey. A few artists spoke, including musician Sophie Millman (Juno Award winning jazz vocalist), musician Darryl Neudorf (via web comment) and TV writer Dan McGrath (member of the Writers Guild of Canada). Other speakers included web and software developers, lawyers, several university students, and a university librarian.

HOW? Participants attending in person were chosen to speak by lottery. Each registrant was given a number. Numbers were displayed as the evening progressed. Each participant whose number was selected was allotted three minutes to present his or her views. At regular intervals, comments received via the Web were read to the audience.

WHY? The government seeks to table new copyright legislation, after Bill C-61 to amend the Copyright Act, tabled in 2008, died due to the calling of a federal election. Minister Clement announced that his “personal target” for a new copyright bill is December 11, 2009, subject to a potential federal election this fall. Minister Clement stated to Town Hall participants that the government aims for legislation that not only reflects the current technological reality, but that is respectful of various points of view, fosters creativity, economic growth and prosperity, and “stands the test of time.” Among the criticisms of the prior Bill C-61 was the lack of consultation surrounding the proposed legislation. Industry Canada had reportedly received over 4,200 written submissions at the time of writing this article.

WHAT? Perspectives varied, but concerns from the music industry were prominent. Examples of some of the comments are summarized below:

• Musicians deserve fair compensation for work done and music created. Music costs money to produce. Touring costs money. Extend the private copying levy to devices such as iPods. (Sophie Millman, musician)

• Music creators should have the ability to make choices and have those choices respected, such as whether to be paid or not. (Steve Kane, President of Warner Music Canada)

• First, the legislation must not allow exceptions for payment of royalties for performance. Exceptions would result in asking SOCAN members to take on the risk of creating their work and while possibly not being paid for it. Second, the wording in the new legislation must be very clear, to prevent uncertainty and costly litigation. SOCAN expects to make a detailed submission shortly. (Paul Spurgeon of SOCAN)

• The “utopia of sampling” is a myth. P2P takes away the creator’s right to choose whether to be compensated. (Rob Bolton, Warner Music Canada)

• Ten years ago Warner Music Canada had 22 artists signed. Now it has only 12 due to budget and staff cuts. Now only twenty percent of music artists are able to earn a living from music. Eighty percent do it because they love it, and try to earn a living but try but their choice is being taken away. (Steve Blair, Warner Music Canada)

• Several students and other speakers called for expanded “fair use”, not restrictive “fair dealing” exceptions to copyright infringement

• The legislation should provide an easy method of obtaining permissions, for example for classroom uses. There should be wider exceptions for educational use.

• The legislation should allow the fair use of works for public commentary, parody and satire. (Visual artist, name unknown)

• Artists have entitlement issues in thinking they have a right to control their work and set a price for it.

• “I operate six terabyte servers of music and movies that I share freely with my friends all around the world. Most of your works are on my servers, four of which are located in Canada. I would say I am the largest Canadian library that actually gives culture back. […] What you’re asking copyright is doing […] it’s actually taking away culture from Canada. […] If it’s protected amongst only those who can afford culture, then there really is no dissemination of that culture.” See YouTube for a video of this participant’s remarks.

• Copyright law is not easily understood by artists, software developers, or students. Put funding into public education at the grassroots level to help people understand what copyright is and what it means. Be inclusive of artists of all disciplines, many of whom are not online. (Martha Rans, co-ordinator for the Artist Legal Outreach program of the B.C. Alliance for Arts & Culture)

• Implement WIPO treaty standards, and extend protection for audio-visual performers’ rights. (Ferne Downey, President of ACTRA)

• Several speakers expressed opposition to Digital Rights Management and Technical Protection Measures (DRM/TPM). Some commented that DRM/TPM does not work, and that it results in a host of issues (making user systems vulnerable or limiting functionality) based on the U.S. experience.

• Opposing views were voiced regarding “notice and notice” versus “notice and takedown” approaches to enforcement.

• Several speakers opposed term extensions on expiring copyright.

• Some speakers requested the abolishment of Crown copyright.

• Several speakers from the publishing community expressing concern that with authors already earning low royalties, their ability to earn a livelihood will be hindered if they cannot monetize their content or have already “paltry” royalties significantly depleted by any expansion to fair dealing.

• Use technology neutral language that captures the intent of the legislation and will not be made obsolete by newly emerging technologies.

• A distinction should be drawn between individual “sharing” and mass distribution (e.g. P2P) in determining what is fair use or fair dealing.

Due to the lottery nature of the Town Hall, many participants who wished to speak did not have the opportunity to do so, and many participants whose numbers were selected chose not to speak. Some, including Michael Geist, are of the view that Town Hall was heavily “stacked” by the music industry, which dominated the discussion and largely excluded alternate voices (see “The Toronto music industry town hall” by Michael Geist, August 27, 2009. Many participants spoke to their needs and the goal or intent of any new proposed legislation, without offering practical proposals or solutions. Don Quarles, Executive Director of the Songwriters Association of Canada (SAC), did not have an opportunity to speak at the Town Hall. SAC has developed a proposal to monetize music file sharing. Mr. Quarles remarked that he would have liked to hear more artists share their views:

“Government and consumers need to hear more from the music creators at these consultations. Many people do not understand how the music industry works, what it costs to create and produce recorded music and how little money most songwriters / artists earn from their music. Most now work at other jobs in order to earn a living. To expect an artist /songwriter, for example, to earn money mostly from touring and selling merchandise won’t help those who can’t tour for physical or other reasons, and it doesn’t address payment for songwriters who create the songs for other artists but don’t perform themselves. For this, and the future of the industry, music creators must have unauthorized music file sharing monetized.”

The Town Hall saw polarized perspectives and few solutions. It revealed inconsistencies and conflicts in the value and importance that Canadians place on individual artists and their work, and an unsettled view of the role systems or industries should play in relation to their own profitability, to artists, and to users. Minister Clement took copious notes during the proceedings. In his closing comments of the evening, he stated: “This will be a challenging piece of legislation.”

The consultations will run until Sunday, September 13, 2009. Will the proposed legislation strike a balance Canadians can accept, and understand? Watch out when a bill in introduced in late 2009 or early 2010: it might get loud.