Bill C-32 C-11 Response

Update October 02 2011:
In this latest attempt, Heritage Minister James Moore said the government “didn’t alter a comma” in the original Bill C-32 it had introduced last year and would not be opening up new consultations on the proposed legislation. (CBC)

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 C-11 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 C-11 therefore appears to erode this position. Section 29 reads as follows…

Certainty of Access

Bill C-32 C-11 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 C-11 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 C-11 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 C-11, 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 C-32 C-11 opens up the potential to decimate the Public Domain

Summary: Bill C-32 C-11 has potential. But without amendments, Bill C-32 C-11 will damage artistic appropriation and could seriously damage the public domain. We simply cannot support this bill without amendments.

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

Stop Harpers Cultural Cleansing

Stephen Harper’s contempt for culture has already cost him his majority government. The voters in Quebec have abandoned the Conservatives largely due to their stance on culture. Stephen Harper’s position that culture is “a niche issue for some” exposes how little he knows (or cares)about culture in the country he claims to be most qualified to lead. The Conference Board of Canada estimates that the culture sector in Canada directly represented $46 billion of the overall economy, or about 3.8 per cent of GDP. When the indirect contributions are added the cultural sector made up 7.4 per cent of Canada’s gross domestic product ($84.6 billion) in 2007. Culture employs 1.1 million Canadian voters. Yet Harper sees culture as little more that a hobby. Grants, tax breaks and incentives given in oil, agriculture and manufacturing are seen as investments and investment in culture are seen as handouts.

Harper’s Cultural Legacy

Harpers list of cultural funding and introduced bills indicate an indifference for artists, culture and freedom of expression.
“I think when ordinary working people come home, turn on the TV and see a gala of a bunch of people, you know, at a rich gala all subsidized by taxpayers claiming their subsidies aren’t high enough when they know those subsidies have actually gone up – I’m not sure that’s something that resonates with ordinary people.” The next day Laureen Harper cancelled her plans to attend the National Art Centre’s annual gala that evening.

Bill C-10 Amendments to the Income Tax Act

The tax bill in which the Conservatives attempted to change film and video tax credit eligibility. Until Bill C-10 the laws of Canada were used to determine what is acceptable content, acceptability under Bill C-10 would be at the discretion of the Minister of Heritage, determined AFTEr the Film is completed. In addition to issues of censorship, this bill has the potential to destabilize the entire canadian film industry. In a last ditch vote grab, the just released Conservative platform states that the controversial clause in C-10 will be dropped.

Bill C-59: An Act to amend the Criminal Code (unauthorized recording of a movie)

The anti cam-cording bill was rumored to have been drafted by the CMPDA (Canadian Motion Picture Distribution Association) under a campaign of rhetoric started by Ambassador David Wilkins, who claimed Canada was responsible for between 10 and 30 billion dollars worth of Camcording piracy annually.. The Bill places the right to authorize cam-cording of films with theatre managers (CMPDA members) not creators or copyright holders. There have been 2 arrests and no convictions under the new law. as a side note,Patricia Neri, the Director General of copyright policy at Canadian Heritage, testified before the Canadian Senate in defense of the bill, she has since resigned her position over conflict of interest had allegedly been in a relationship with one of Canada’s the head of the CMPDA. The bill has resulted in two arrests and no convictions.

Bill C47: The Olympic and Paralympic Marks Act

In March 2007 Stephen Harpers Government” introduced Bill C-47. The bill grants special rights and protections to the Olympics for their trademarks and copyrights. Bill C-47 makes it essentially illegal to reference the Olympics, Vancouver 2010 or anything associated with the 2010 Olympics in any form. The Senate added exceptions for artistic use and parody – the best exceptions in Canadian copyright however it is up to the Olympic committee to decide whether a work qualifies as art or not

Bill C-61 an Act to amend the copyright act

The culmination of Harpers contempt for culture.

Read the Blogsphere Reaction

Read the Media Coverage

STOP BILL C-61

The Harper government have a clear agenda when it comes to culture, censorship. Culture ,at least in democratic nations is rooted in the notion of freedom of expression. each of Harpers cultural policies can be shown to

Appropriation Art Condemns Bill C-61

Today Harper’s Conservatives introduced legislation that would make Canadian copyright the most repressive in the free world. This, sadly, is neither rhetoric, nor sensationalism.

Many within the cultural community feared a draconian new legislation. Bill C-61 surpasses those fears. If passed Bill C-61 would make Canada the only democracy in history to have criminalized a recognized and legitimate art form. An art form criminalized not for its content, but for the process of its making. Today the Conservative Government erased much of the artistic discourse of the past 100 years. Today (with TPM’s) the Conservative Government locked Canadian culture firmly in the past.

It is safe to say that every important contemporary art collection in the world contains appropriation art of some form. Every anthology of contemporary art, every periodical, every textbook references and supports the practice of appropriation. And now, in Canada, willfully ignorant politicians have ruled that a time-honoured, artistic practice and art form will be rendered illegal. It is beyond shocking. It is embarrassing.

Copyright is meant to nurture the rights of creators not suppress and criminalize artistic practice. Copyright is meant to protect artistic work not define it. It is not the responsibility of any government to legislate art. Culture evolves through a dialogue between cultural institutions, educators, critics and creators – most of whom have dedicated their lives to culture. Culture also evolves through a relationship with an audience; in this case an audience who have proven again and again that work involving appropriation generates excitement …incites progress and change. Canadian artists who practice appropriation have been awarded our highest honours. How ironic.

Culture is not something that can be legislated, at least not in free countries, and not by Ministers who demonstrate neither knowledge nor interest in the national culture they apparently represent. Politicians who have no cultural sensitivity should clearly not be involved in making national cultural legislation. This Bill reflects nothing but contempt for freedom of expression, contemporary culture and those artists who practice it.

The implications of this legislation will be far reaching and disastrous. Bill C-61 extinguishes the voice of dissent. Fair dealing has all but been eliminated . Bill C-61 makes it illegal to access existing material, modify it, comment on it and/or publicly display it. Critcism, parody and satire under Bill C-61 become criminal acts. The whole of contemporary cultural content in Canada has been privatized. News and history will be placed in the private sector and availble only with permission. Think you’ll be granted permission to create anything that offends? Think again. And so we enter the era of government sanctioned art.

In his ‘Speech from the Throne’, Prime Minister Harper promised two things: he would provide strong leadership and he would defend Canadian sovereignty. Canadian Sovereignty is not simply real estate, it is the social and cultural values of a country. Freedom of Expression is core to these values. Freedom of Expression is at the heart of what it means to be Canadian. Bill C-61 was drafted under demands from the U.S. Government. and Content Industry lobbyists. Bill C-61was designed to bolster the flow of Canadian cultural dollars south of the border, dollars which now flow at a rate in excess of a billion dollars per year. Bill C-61 will create the litigeous environment that has seen, to date, 28,000 plus citizens at the wrong end of record industry lawsuits.

Bill C-61 is censorship shrouded in a veneer of spin. This ‘Made in Canada Copyright Policy’ has a hollow, shameful ring.

Canadian Bill Made In The USA

The Harper government is set to introduce their newly ‘Made-in-the-USA’ Copyright Bill before the House stands for the summer.  While the majority of hard-working Canadians concerned with copyright are not privy to either the contents or the scheduling of this Bill (User groups , Librarians, Federation of Students, Academics, Appropriation Art etc)  it appears that the same cannot be said for Industry. Over the past weeks (and indeed months) a well choreographed series of scheduled ‘events’ has taken place by pro-American influenced organizations, Lobbyists, American Government officials and even President Bush himself. 

First indication to “outsiders”.  This occurred on April 28 at a  conference entitled Intellectual Property Reform: Innovation And The Economy at the Public Policy Forum (PPF).  James Rajotte, Conservative MP and Chair of the Standing Committee on Industry stated that the Harper Conservatives planned to introduce a Copyright Bill before  summer.  Rajotte assured the audience that the government was working toward a balanced approach in the forthcoming bill. 

This week.   A new coalition of Pharmaceutical, Tobacco  and Entertainment companies and lobby groups step forward. This coalition, which also includes Microsoft ( no surprise) and ebay (big surprise), was organized by the Chamber of Commerce.  The group is calling for more restrictive copyright, more privatization of IP and fewer rights for users. Chamber of Commerce President and Chief Executive Officer is longtime Conservative insider Perrin Beatty. The announcement of this new coalition days before legislation is to be introduced signals that at least some groups are being briefed on both content and scheduling of the new bill.

May 16, 2008.   The Congressional International Anti-Piracy Caucus puts Canada on a Priority Watch List along with Russia and China. 

The Congressional International Anti-Piracy Caucus is a bipartisan and bicameral group committed to protecting American intellectual property and reducing the scourge of piracy abroad.

Data available on OpenSecrets.Org.    Career total contributions to Congressional Anti-Piracy Caucus Member Campaigns from the TV, Film and Music industry are in excess of $19 million.  The four Co-Chairs alone have received $1,260,676.    Congressional Co-Chairs Senators Joe Biden ($381,266.00), Gordon Smith ($255,439.00), Congressmen Bob Goodlatte ($209,886.00) and Adam Schiff ($414,085.00).  Clearly when a group of politicians so dependent on a single industry unveils a “Congressional International Anti-Piracy Caucus 2007 Watch List.” the notion of an ‘ unbiased and independent report’ becomes meaningless. 

May 15, 2008.    The Watch List is pre-released on the RIAA (Recording Industry Association of America) website the day BEFORE it appears on the Caucus website.   This leaves  little doubt as to the relationship this caucus has with the Entertainment industry. According to the RIAA website:

Joining China and Russia in “the ignominious three” is Canada which, notwithstanding numerous public announcements, has failed to join the rest of its partners in the developed world in modernizing its copyright laws to address the challenges — and to seize the opportunities — of the digital age.

May 07, 2008.  Canadian Parliamentary IP Caucus meets with Americans…but where are the Canadians?   The IP Caucus, co-chaired by Liberal MP Dan McTeague  and Conservative Gord Brown accepts presentations from four representatives.  These presentations are from the U.S. Embassy as well as speakers from the Entertainment Software Association.   The IP Caucus have yet to  invite representatives from the canadian education or canadian consumer communities.  (the lone voice being Michael Geist, who gave a presentation on May 15).

Ambassador David Wilkins confirms that copyright was discussed at the North American Leaders Summit meeting in New Orleans  on April 21, 22.  He states   “it’s not been a secret we’ve been advocating stronger copyright, that’s been an ongoing discussion.” By advocating, he clearly means pressure. By ‘stronger copyright’ he means ‘American-style’ copyright  replete with the mandatory DMCA legislation. 

In his Speech from the Throne Stephen Harper promised to defend Canada’s sovereignty. It is becoming all too clear that to the Harper Government ‘Canadian sovereignty’  simply means a piece of (valuable) real estate; real estate worth defending to the tune of billions.  Canadian Cultural Sovereignty clearly has no value to this government. When our neighbours to the south attack with rhetoric and exaggeration the Harper government falls silent. 

Basskin’s Little Thought

Recently the TV program  The Agenda featured a debate (free on their website) entitled Copyright and Intellectual Property: Whose Rights? Whose Property?  The show featured David Basskin (Counsel to the Canadian Music Publishers Association), Michael Geist (Canada Research chair of Internet and E-commerce Law at the University of Ottawa), Mathew Ingram (Business and Technology writer for The Globe and Mail), and  Robert Thompson (Canadian Correspondent for Billboard Magazine). The debate centered around the escalating impact of various forms of protest which resulted  in the delayed introduction of new copyright  legislation in Canada.    In particular the debate focussed on the formation of the Facebook group Fair Copyright for Canada.  As of this writing, the Facebook group numbers 31,000 members. While the Facebook group is significant the core issue still remains that of copyright

After dismissing the Facebook group and presuming that they (we) know nothing about copyright, Basskin then states;

”It’s a complex subject, let me reduce it down to a little thought experiment.  This is a piece of manuscript paper and you’ll observe that there’s nothing on here, just some lines and staves and some treble and base clefts. I’m going to leave it here with a pencil for the duration of our chat and see if at the end a song has appeared, because there are some people who would have you believe that they just write themselves.  Well, we’ll see.”

His little thought  experiment  seems to me to be just that, an experiment made up of little thought. I think the point he is trying to make is this… someone picks up a pencil, composes something, writes it on the manuscript paper and that person should then be paid.  His little experiment is problematic and symptomatic,  It is problematic in that  it supports opposing points better than it makes his own point, and symptomatic in that it clearly illustrates a complete lack of understanding of the creative process.

Firstly, musical notation on a manuscript paper is just one way of creating and notating music, but clearly not the only way. Music is a collection of sounds and these sounds can be collected and shared in a variety of ways. Sampling sounds and compiling them on a computer is another way.

Secondly, when waving the manuscript paper in the air, Basskin says,  “there’s nothing there”.   Yet when I see this same manuscript paper I see an inherent system of notation evolved over centuries by musicians, scholars, theorists; I see a language that enables composers  to communicate their thoughts to other composers and musicians in a meaningful and universal way.  A system of universal notation that  enables an infinite amount of creativity to be expressed in a manner that is understood by a vast audience. A system that is free. The idea that this system is free to use by anyone does not mean it is valueless.  In fact, by his action, Basskin inadvertently demonstrates that composers do not create from the void;  they are reliant on and build upon centuries of tradition.  They use that which is already there.

The third point is this; by the end of the show Basskin had already lost his own bet.  The ‘blank’ manuscript document he waved in the air contained not one but three compositions.  Alphonse Allais’  “Funeral March for the Last Rites of a Deaf Man”;  the John Cage composition ’4:33′;  and the Mike Batts composition  “One minute of Silence”.   All three compositions  consist of ‘silence’, and incorporate no ‘notes’ per se.  Certainly anyone involved in copyright law and music publishing must be aware of  the 2002 legal battle featuring the  Mike Batt v John Cage Estate in the UK . Composer Mike Batt settled out of court over  his composition  “One Minute of Silence” which  infringed on the John Cage composition ’4:33′.    The settlement was for an undisclosed six figure sum (pounds sterling).  The suit was patently absurd.  Not absurd because of the music, ( I am a great admirer of John Cage).  It was absurd because it is very clear that John Cage would never have sued Mike Batt had Cage been alive.  It was absurd because the whole point of ’4:33′…and the importance and power of the John Cage work is trivialized, not by the actions of Mike Batt but by the actions of the John Cage estate and the legal suit. 

Later, in the TV programme (and in same dismissive tone we hear throughout) Basskin, describes ‘the issue’  as being between those ”who support creativity and those who believe things should be free”.  This is the type of disingenuous, simplistic nonsense that does nothing to move the dialogue forward.  I am a creator, I support creativity.  Copyright as it exists retards my abilty to create.   Further restrictions will make this situation worse and yes I think some things should be free.  Access to culture is one of the cornerstones of our society.  

footnote
The CMPA claim to represent composers, yet their website contradicts this. Exhibiting the music industry ‘our cup is half empty and fans are bad’ approach to reporting, the CMPA choose to describe a successful experiment in downloading music with the headline “Radiohead Record Worth $0 To Fans – Study Shows” and yet Thom Yorke of Radiohead sees the project very differently.

In terms of digital income, we’ve made more money out of this record than out of all the other Radiohead albums put together, forever — in terms of anything on the Net. And that’s nuts. It’s partly due to the fact that EMI wasn’t giving us any money for digital sales. All the contracts signed in a certain era have none of that stuff.

Infringement Nation

John Tehranian, Professor of Law, University of Utah has just published a paper entitled Infringement Nation: Copyright Reform and the Law / Norm Gap.

The paper details the massive void between copyright norms (what people do) and copyright law in the United States. Fueled by some of the most unbalanced copyright laws in the world Teranian presents a shocking scenario. “To illustrate the unwitting infringement that has become quotidian for the average American, take a day in the life of a hypothetical law professor named John.

”

By the end of the day John has committed eighty three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of criminal charges). There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, barring last minute salvation through the notoriously ambiguous fair use defense, he would be liable for a mind boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P filesharing. Such an outcome flies in the face of our basic sense of justice.

With new Canadian legislation rumoured to be even more draconian than US legislation, including even fewer exceptions than American legislation the average Canadian can most likely look forward to a similar or even worse exposure to litigation.

Obedience Training for Dogs

Canadian Government Swayed by Rhetoric and False Statistics

Obedience training doesn’t solve all behavior problems, but it is the foundation for solving just about any problem. Training opens up a line of communication between you and your dog. Effective communication is necessary to instruct your dog about what you want her to do. Dogs are social animals and without proper training, they will behave like animals. They will destroy your belongings, dig holes in your yard, and even bite you. Obedience training is an easy way to establish social hierarchy. You CAN teach your dog her subordinate role by teaching her to show submission to you. Most dogs love performing these tricks (obedience commands) for you which also pleasantly acknowledge that you are in charge.” (from ‘Obedience Training for Dogs’)

How do you teach Canadians obedience? How do you make Canadian politicians sit up and beg? Remarkably easily it seems. A short video documenting the remarkably successful, efficient and erroneous manipulation of Canadian Laws by the U.S.

Bill-C-59 a lesson in obedience training for Canadians.

Video produced by Michael Geist and Daniel Albahary
http://www.michaelgeist.ca/video/NB_Final_Server.mov

Howard Knopf also comments
http://excesscopyright.blogspot.com

As does Russell McOrmond
http://www.digital-copyright.ca/node/3985

Copyright and the Threat to the Public Domain

Gordon Duggan has written an essay for the Arts News Canada
Copyright and the threat to the public domain.

In March 2007 “Canada’s New Government” introduced Bill C-47. This is a bill which grants special rights and protections to the Olympics for their trademarks and copyrights. In a clearly American-influenced move, Bill C-47 makes it essentially illegal to reference the Olympics, Vancouver 2010 or anything associated with the 2010 Olympics in any form. Whatever the intentions, noble or ignoble, there will be massive collateral damage resulting from this new legislation.
For many creators more restrictive copyright is neither desirable nor beneficial. For many artists freedom of expression includes freedom to access preexisting culture. One could argue that freedom in Canada is rooted in the notion of freedom through access: access to education, access to health care, access to government. In the United States freedom appears to be freedom through domination: domination through litigation, domination through military, domination through rhetoric. Disentangling Canadian law from American rhetoric is essential in understanding what rights we have as Canadian artists, how these rights affect our work and what changes are needed.

Copyright legislation in Canada has largely been artist-driven. In the U.S. copyright has been driven by corporate interests. In spite of these different catalysts, the changes to copyright law in both countries have resulted in longer copyright terms and greater restrictions for users. The principle damage caused by copyright extension and tighter restrictions is the complete annihilation of the public domain.

Copyright duration is now 50 years after the death of the author in Canada, 95 years in the U.S. For every year copyright is extended the public domain is deprived of 500,000 books and 500 films that would otherwise be freely available the public. Because of longer copyrights, no work created today will enter the public domain in our lifetime. Virtually the whole history of the 20th and 21st centuries is now in private hands.

Canadian copyright laws differ from American copyright laws in their status in constitutional law, their definitions of originality, and the user rights they permit. Neither Canadian nor American laws are adequate for artists who practice “appropriation.” Appropriation art refers to the use of borrowed elements in the creation of new work. The borrowed elements may include images, forms or styles from art history or from popular culture, or materials and techniques from non-art contexts.

Constitutional Law
Section 2b of our Charter of Rights and Freedoms guarantees Freedom of Expression. For an artist this is the most important right. It is the right to create. In the U.S., copyright is contained in their Constitution, albeit for a limited time and only “to promote the progress of science and useful arts.” In Canada, copyright is a statutory right and should therefore never be allowed to impede a Charter Right (Freedom of Expression).

Originality
In the U.S. any creative work that uses preexisting copyrighted work is considered a derivative work. This immediately diminishes and disadvantages any new work containing preexisting material. In Canada an “original work” is determined using the criteria of skill and judgment. Skill is defined as the “use of one’s knowledge, developed aptitude or practiced ability in producing work.” Judgment is the “use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.” In Canada an original work is based on the relationship between the work and its author. In the U.S. the originality of a work is based on the relationship between the work and other works.

Users’ Rights
Canadian Fair Dealing differs from American Fair Use. In Canada we have Fair Dealing only for the purposes of research, private study, criticism, review, and news reporting (American Fair Use includes parody). While none of these criteria specifically support the needs of artists, the Canadian supreme court states “The Fair Dealing exception, like other exceptions in the Copyright Act, is a users right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”

Each country has criteria which are used to evaluate fairness. In both counties, fairness is based on limited purposes (e.g. commercial nature, nonprofit educational use), however Canadian “fair dealing” cannot be given “a restrictive interpretation [that would] result in undue restriction of users’ rights.” Canada also allows that “normal practices of the industry” are considered. The U.S. also considers the nature of the copyrighted work, the amount of it that’s used, and the effect on the market value of the copyrighted work. Canada takes these criteria into consideration too, but in Canadian law quoting an entire work may be fair. Canada also states that the effect on market value is “neither the only factor nor the most important factor.”

Additionally, in Canada we have “moral rights” which are absent in U.S. legislation. Moral rights protect the integrity of the work, as well as protecting the rights to be associated with the work. Moral rights only apply to individuals and can be inherited but not otherwise transferred. The U.S. does not have moral rights. In Canada moral rights are infringed if a work is “distorted, mutilated or otherwise modified…to the prejudice of the artist.”

The situation for the many creators who practice appropriation is uncertain given the complexity of copyright laws, and the rhetoric that surrounds copyright. In Canada copyright laws are more restrictive but the interpretations of those laws are less restrictive than in the U.S. The rulings of the Canadian Supreme Court actually favour increased “Fair Dealing,” but are limited by the increasing restrictions of copyright legislation.

For artists the laws are simply not clear. For a great many artists the confusion surrounding copyright has detrimental effects on the production and, more particularly, the dissemination of new creative work. Galleries and publications are advised not to exhibit or publish works that use appropriation on the grounds that it might be illegal. If this is the case, if this longstanding and well-documented artistic practice is illegal, then for the first time in Canadian history we have illegal art. This art is not illegal because of social or moral content but illegal because of how it is made, illegal because of its creative process. It is not the role of government to redefine art.

The Appropriation Art Coalition, the Canadian Music Creators Coalition and the Documentary Organization of Canada, among many others, recognize that effective copyright legislation requires balance between restriction and access. Copyright legislation in the United States has lost balance. The U.S. has seen a massive shift towards restriction (“protection”). Canada is not far behind.

We can only hope that “Canada’s New Government” will look beyond the U.S. as they forge new copyright policy. Canada needs progressive copyright legislation, not increased restrictions. Australia has recently added parody and satire to its Fair Dealing Legislation. The United Kingdom is introducing exemptions for “creative, transformative or derivative works, caricature, parody and pastiche.” These changes are now being implemented by the U.K. patent office.

Bill C-47 is the tip of the iceberg. Canadian copyright law as it stands already protects the Olympics. Special “protection” for a private organization, ANY organization, is bad policy and sets a dangerous precedent. Will Microsoft be next; Suncor, PetroCanada, Starbucks: “Canada;s New Government” is consulting with (and being pressured by) American diplomats on copyright reform, while at the same time refusing to meet with artists’ groups such as The Appropriation Art Coalition who advocate a more balanced copyright. We must protect our freedom to create, our culture. And we must dispute any motions to deny these freedoms.