Bill C-32 Response

On June 2, 2010 the Conservative Government introduced proposed amendments to the Canadian Copyright Act. The Copyright Modernization Bill is a 62 page document. We’ve now read through this document carefully and have consulted with a number of experts. We were also invited by the Government to take part in the technical briefing conference call on the day the Bill was announced. We received answers to two questions. In summary, although there have been some improvements , we are disappointed with the effect Bill C-32 will have for artists who practice appropriation.

The last attempt at copyright reform was Bill C-61 in 2008. The Appropriation Art Coalition was formed in the run up to Bill C-61. At that time you signed a letter of concern to the Government from the Appropriation Art Coalition. The changes in legislation proposed in Bill C-61 created a public outcry. Bill C-61 died on the floor.

This summer (2010) the Conservative government held public hearings across Canada on copyrght. The reason given for these public consultations was to seek the opinions of stakeholders and Canadians on copyright reform. These views were to inform the drafting of a “new and balanced“ Copyright Bill.

The consultations saw a strong and interested response from across Canada. Surprisingly, the second highest number of submissions came from you…the Appropriation Art Coalition. You submitted over 100 letters underlining the points set forth in the original coalition letter of concern. Bill C-32 was introduced on June 2.. Despite being in line with what many other Canadians have requested, this new legislation ignores all our recommendations and includes none of our considerations.

The new proposed legislation leaves us with what we have ironically called a ‘Catch 32′. While the government recognizes the right of Artists to use preexisting material, it does not give Artists the means to access preexisting material or disseminate the resulting work. There is the potential here for much contemporary material, that should be available for satire and parody, to become inaccessible (i.e. locked up). And that would stifle contemporary cultural commentary for artists and other creators.

Fair Dealing

The Appropriation Art Coalition has stated three principles that we would like to see reflected in any new copyright legislation. The first is that lawful access to existing material is essential to Freedom of Expression. This access is typically achieved through either Fair Dealing rights or the natural passage of works into the Public Domain. Fair Dealing are rights which limit a copyright holder’s monopolistic control. Fair Dealing rights take the form of exceptions in copyright law. Works currently enter the public domain 50 years after the death of the author.

In Bill C-32, Fair Dealing exceptions for parody and satire (29) have been introduced. The Bill also introduces an exception for creating mash-ups (29.21). This is definitely a step in the right direction for all artists. But a problem arises. The list of exceptions is exhaustive…not illustrative. This means that any act of Fair Dealing must fit strictly within the following five categories : research, private study, education, parody or satire. Artists would therefore be required to justify their work strictly within these categories or risk possible legal action. There is a simple fix to this problem. The addition of the words “such as” before the list of exceptions would allow artists to justify their work based upon their personal creative process. The Supreme Court have already ruled that Fair Dealing is a Right equal to copyright and must be interpreted loosely. Bill C-32 therefore appears to erode this position. Section 29 reads as follows…

Certainty of Access

Bill C-32 does nothing to clarify the legality of the practice of appropriation. While Fair Dealing exceptions are granted, they are granted strictly for private use. These rights (or exceptions) also come with the proviso that they use must be non-commercial in nature. The Supreme Court has ruled that non-infringing copies may later be sold, so whether or not a work using fair dealing can later be sold is still unclear.

ANTI-CIRCUMVENTION

For our purposes, it is the section dealing with TPM (Technical Protection Measures) or digital locks, that makes the Bill unsatisfactory. The benefits we could gain under Fair Dealing collapse under the weight of the TPM component. While Bill C-32 does extend (marginally) better Fair Dealing Rights, and these rights are recognized by the Supreme Court, these rights are simply negated when a work contains a digital lock.

In Bill C-32 digital locks are given absolute primacy over Fair Dealing Rights (and even copyright itself). While section 41 allows circumvention of TPMs for a number of reasons , Fair Dealing is (inexplicably) not among these reasons. For media artists this means that although you have a right to use material for satire and parody in your work, you cannot remove a digital lock. Period. This fact was confirmed to us during the Government conference call in which we took part.

Worse still are the implications for the public domain. Current copyright duration means that no work created in our lifetime will enter the public domain during our lifetime. In Bill C-32, there is no ‘expiry date’ on a TPM. A TPM (or digital lock) can, conceivably last forever, this means that works will remain inaccessible even after they enter the Public Domain. Furthermore a digital lock can be applied to a work already in the Public Domain. This effectively removes the work from the Public Domain. This means that the legislation in Bill C32 opens up the potential to decimate the Public Domain

Summary: Bill C-32 has potential. But without amendments, Bill C-32 will damage artistic appropriation and could seriously damage the public domain. We simply cannot support this bill without amendments.