Introduction to Canadian 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.”

Moral Rights
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.