CBC-Copyright debate turns ugly

CBC- Copyright debate turns ugly
Heritage minister stirs hornet’s nest with ‘radical extremist’ comments
By Peter Nowak – CBC News – June 24, 2010

Blayne Haggart doesn’t consider himself a “radical extremist,” which is why he’s chafing at possibly being labelled as such by Heritage Minister James Moore.

The 37-year-old Ottawa native thinks there are many positives in Bill C-32, the copyright reform legislation unveiled by Moore and Industry Minister Tony Clement earlier this month. But he says it also has a key flaw — it would make the breaking of any digital lock illegal, which could trump all the other positive provisions.

On his Orangespace blog, Haggart wrote that he doesn’t believe the government’s rationale for stronger copyright protection in general and the digital lock provision specifically — that they are essential to creative production — is supported by much evidence. He hopes that Bill C-32 can be modified and fixed when the parliamentary process begins in the fall.

Voicing such concerns, though, may brand him a radical extremist under Moore’s definition.

Read more

Copyright Reform Needs Made in Canada Approach

Vancouver Sun- Copyright Reform Needs Made in Canada Approach
By Kashif Admed and Eric Miller – Canwest News Service – June 11, 2010

Industry Minister Tony Clement knows only one way to write copyright laws for the country: heavyhandedly.

Although the Conservative-backed Bill C-32 provides a much needed modernization to Canadian copyright legislation, the proposed law contains serious flaws and undue restrictions on consumer freedom.

In an effort to be perceived as balanced, the act purports to expand consumer rights, but instead provides more favourable treatment to intellectual property holders.

While Canadians would be allowed to record programs and music for personal use, and educators would have the ability to access and copy online material for teaching purposes, these exceptions to infringement are rendered virtually ineffective by other provisions in the bill.

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.

What is Approrpiation ?

At the heart of the issue lies ‘appropriation art’. Think collage. Many artists today work with a contemporary palette that takes from, reproduces, or appropriates material found within popular culture: film, tv, radio, advertising, news, text, character, song, plot…and so on. Artists transform what they have appropriated into new works, with new interpretations and new meanings.

Copyright Consultation Submission

The Appropriation Art Coalition submission to the Copyright Consultation.

The Coalition

The Appropriation Art Coalition reflects the broad spectrum of Canada’s art community. The coalition now numbers over 600 artists, curators, directors, educators, writers, associations and organizations from the art sector. All have come together to express concern over the state of copyright policy for artists and the future of ‘Appropriation Art’.

Open Letter

In June 2006 the Approriation Art Coaltion was formed around a set of princples set forth in an open letter.

Michael Geist – The Canadian Copyright Bill: Flawed But Fixable

Michael Geist: The Canadian Copyright Bill: Flawed But Fixable

This afternoon, the government introduced the Copyright Modernization Act (or Bill C-32), the long-awaited copyright reform bill [the bill is not yet online, but I attended the media lockup in Montreal]. It is nearly two years since C-61 was introduced and nearly a year since the national copyright consultation, yet discouragingly some things have not changed. As I reported several weeks ago, Canadian Heritage Minister James Moore won the internal fight over Industry Minister Tony Clement for a repeat of C-61’s digital lock provisions and against a flexible fair dealing approach and today’s bill reflects those policy victories.

Appropriation Art Submission

Today many artists and creators use, reproduce, appropriate and incorporate materials found within popular culture and society. These raw materials reflect and embrace the world around us: snippets of film and TV, radio spots, advertisements, news headlines, bits of text, characters, fragments of song…and so on. Artists use this source material just as artists have used raw material for thousands of years. Artists use this source material because it is meaningful and relevant and evocative. Artists must have the freedom to transform this raw material into new works with new interpretations and new meanings in order for culture to advance. These new works push boundaries, question the status quo, advance technologies. These new works encourage experimentation and invention. And while appropriation practice may not be the foundation for every artist, it is inconceivable that in Canada we would actually advocate restricting or even banning these forms of expression.

The practice of Appropriation is a fundamental part of many creative cultural activities. Works of visual art that use Appropriation have a long, distinguished and well documented place in the History of Art. This work is collected and exhibited in major cultural institutions across Canada and around the world. We cannot open a book on modern and contemporary art without being presented with some form of appropriation. Appropriation integrates existing cultural product (movies, top 40 songs, television, radio, advertising, characters etc.), but in such a way that these cultural products are transformed and a new and original work of art is created. Yet in spite of the history, vitality and importance of Art using appropriation, this process is being threatened, as are the rights of artists who practice it. And vulnerable new forms of creativity using appropriation are at threat of being extinguished. Canada’s contemporary artists are its future. We ask you, our government, to protect our rights

In Canada we have a hierarchy of rights. Canada’s Freedom of Expression is a Charter Right and as such an inalienable right. Copyright is a Statutory Right and a lesser right. Any changes to Copyright legislation must first and foremost encourage and protect Freedom of Expression and ensure that the rights granted to copyright holders must therefore not eclipse Freedom of Expression. Contracts and trade agreements (such as ACTA) must comply with Charter and Statutory Rights and must not be allowed to usurp the rights of copyright holders.

The Appropriation Art Coalition reflects the broad spectrum of Canada’s art community. Our coalition numbers over 600 artists, curators, directors, educators, writers, associations and organizations from the art sector. All have come together to express their concern over the state of copyright policy for artists and the future of ‘Appropriation Art’. The coalition includes representation from numerous galleries, museums and artist-run centres, all providing critical support, facilities and exposure for Canadian artists. Curators, directors, board members, programmers, from galleries both large and small have also added their support. The coalition includes deans, professors and educators from Canadian Universities and Colleges across the country. There is representation from cultural founders and commercial gallery owners; from writers, theorists and collectors in all areas of the arts. Major organizations have also signed on, IMAA /AAMI (The Independent Media Arts Alliance), CAMDO (Canadian Art Museum Directors’ Organization) and the CMA (Canadian Museums Association). We are a coalition of Canadian Art Professionals – Artists, Curators, Arts Organizations and Arts Institutions – who share a deep concern over Canada’s copyright policies and the impact these policies have on the creation and dissemination of Contemporary Art. We work in Canada’s cultural sector, and we depend on effective copyright laws for our living. Effective copyright laws must offer artists the legal means to enforce their rights in their work, but must not censor or destroy the creativity of others. Canada’s existing copyright laws simply do not reflect the reality of contemporary artistic practice.

Artists and Creators have been represented in the copyright consultation process largely by corporate lobby groups, unions and rights collectives. The representatives of these organizations profess to speak on behalf of large, comprehensive memberships on the issue of copyright. They profess to speak for all artists. However, membership figures are often inflated through overlap; the same individual can be ‘represented’ by the CRIA (Canadian Recording Industry Association), the AFM (American Federation of Musicians), SOCAN (Society of Composers, Authors and Music Publishers of Canada), SAC (Songwriters Association of Canada). In fact these memberships have evolved as a means of collecting fees (collectives) or obtaining paid work (unions). Moreover, these organizations do not always solicit opinions from their members before presenting a position. The Appropriation Art Coalition are one of very few artist representation groups that can unequivicably state that our membership support the position presented and that each member has signed the letter of concern endorsing the principles put forward.

Any discussion of creator’s rights must include access to existing material. The Supreme Court has stated “the fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.” ‘Appropriation Artists’ rely on Fair Dealing; the right that allows access to existing works. Fair Dealing guarantees the right to criticism, parody and satire. It allows educational use and enables libraries to exist. Fair Dealing is the right that encourages criticism, dissent and difference and ensures Freedom of Expression. Fair Dealing is the right that prevents censorship and wholesale privatization of culture.

The concern is that new legislation will mark a paradigm shift in Canadian copyright law. The concern is that copyright law will be subverted from its original intent which is to protect Canadian culture. The concern is that copyright law will actually be used to define or even censor Canadian culture. As it was written, Bill C-61 increased the control of the copyright license holder while effectively eliminating Fair Dealing. If Bill C-61 had passed, works would have been censored not for their content but for their form and their creative process. The ’legitimacy‘ of cultural works would have been determined not by artists, curators, educators, writers, critics, writers, museums, galleries and the public but by corporate interests and largely foreign corporate interests. Should similar legislation be written and passed, the practice of Appropriation will be eradicated. Canada would become the first country to make illegal a historic, legitimate and internationally recognized art form. This is unacceptable.

The laws that were included in Bill C-61 would have stifled and destroyed Canadian creativity and culture. We are a country that celebrates diversity and multiple viewpoints. We encourage independent creativity and commentary. We want to ensure that Canadian Culture and its Citizens remain Free, Expressive and Independent. We ask that all artists be given a fair voice. To preserve the original intent of copyright, new legislation must include the following principles:

Fair access to copyrighted material lies at the heart of Copyright.
Lobbyists for the copyright industry claim that copyright owners need greater control over works. This is a misrepresentation of copyright. Copyright is meant to protect and encourage creativity not suppress and restrict it. The law grants copyright owners limited rights over their works. Balanced against those rights are the rights of those who follow. Creators need access to the works of others to create. Legislative changes premised on the ‘need’ to give copyright owners even more restrictions over their works must therefore be rejected.

Artists, creators and galleries require Certainty of Access.
Artists who use appropriation in their practice, rely on Canada’s fair dealing exception to create. Fair dealing is a narrow right, at times too narrow to support this work. The works of art we speak of here do not compete with the appropriated material, nor does the value of the work of art derive from the value of its subject. Creators should enjoy the support of the law, and not have to work under conditions of uncertainty and fear. The time has come for the Canadian government to consider replacing fair dealing with a broader defense, one that will offer artists the certainty they require to create and exhibit their work. Any new legislation should, at the very least, include exceptions consistent with recent legislation such as sections 3 (5) and 3(6) (parody and artistic use) of Bill C-47 .

Anti-Circumvention Laws Should Not Outlaw Creative Access.
We understand that the Canadian government is considering legislation to privilege technical measures that protect access to digital works. Such laws must be rejected. Artists who use appropriation work with a contemporary palette, using new technology. They work from within popular culture, using material from movies and popular music. The law must not outlaw otherwise legal dealings with copyrighted works merely because a digital lock has been inserted. Contemporary culture must not be immune to critical commentary. Exciting and important new forms of creativity will be destroyed if anti-circumvention laws are imposed.

Expansive copyright laws are often justified in the name of benefitting artists. We are stating that this is simply not the case. We are not a country that will flourish under excessive copyright laws. Those represented by the Appropriation Art Coalition are a significant and important community within Canada’s large cultural network. We want to ensure free, expressive and independent Canadian Culture. We do not want to follow the lead of the United States in matters concerning copyright. Canada needs laws that put Canada first. We want neither legislation nor a government who listen to external pressure and preference corporate desires over the needs of their citizens. The future of Canada’s flourishing contemporary cultural community is potentially threatened future changes to copyright legislation. The eyes of the world are on us as we consider the next step. We ask that you consult with us on any potential copyright legislation before further decisions are taken.

Copyright Consultations Commence

A Copyright Consultation process was initiated by the Conservative Government three days ago. The process is described as ‘nation-wide consultations’. The Conservative government say they want to ‘ensure that all perspectives are taken into account in an open and transparent process’. The Appropriation Art Coalition would like to encourage Artists and Cultural Sector workers to assist the government in being both open and transparent.

The consultations are being described as an effort to solicit Canadians’ opinions on the issue of copyright. Consultations run from July 20 – September 13. How much the results of this process will actually inform new legislation in the Fall we will wait to find out. Michael Geist writes that the most important element of the process will be the online forum and public comments. He has launched a new website (SpeakOutOnCopyright) in an effort to facilitate greater participation in the consultation process.

The consultation process has been split into various levels or hierarchies; ‘Round Tables’, ‘Town Halls’ and an online forum. The Appropriation Art Coalition, and others active in the fight for balanced copyright have been invited to Town Hall meetings. The Round Table discussions were closed prior to announcing the consultations. In a phone conversation with Conservative Headquarters it was not guaranteed that everyone in a Townhall meeting would be able to speak. Though labelled a nation-wide process there are only two Town-Hall venues, in Toronto and Montreal.

We hope this proves to be a meaningful and important consultation process. We would like to see changes to legislation that protect the rights of many artists and galleries. We encourage artists and cultural sector workers to make your voice heard. Freedom of expression is something that is a unique privilege in Canada and one which must be protected. Please contact us at contact@appropriationart.ca if you have any questions. Visit Michael’ Geist’s website to participate in his discussion on this process. And then speak out.

We’ll be posting our comment in the next day or two.

The Official Conservative Copyright Consultation Site
Speak Out On Copyright Site

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