Gordon Duggan Submission

The Honourable Tony Clement
Minister Of Industry, Science & Technology
House of Commons
Ottawa, Ontario
K1A 0A6

The Honourable James Moore
Minister of Canadian Heritage and Official Languages
House of Commons
Ottawa, Ontario
K1A 0A6

The Right Honourable Stephen Harper
House of Commons
Ottawa, Ontario
K1A 0A6

How do Canada’s copyright laws affect you?

Throughout my adult life I have worked as artist, designer, educator and curator. I create works. I work with others to develop their own creative practices. I have worked in both commercial and institutional art galleries. I have lived and worked in Canada and abroad. I am more recently the co-founder of the Appropriation Art Coalition. Copyright therefore touches every aspect of my public and private life. For me, copyright legislation is the most important legislative issue. I believe it is also the most important issue for Culture in Canada. Copyright policies play a defining role in Canada’s cultural and socioeconomic identity. Changes to copyright legislation can promote and foster new creativity and innovation or stifle it. These changes can help us safeguard our cultural sovereignty or force us to capitulate to foreign interests.

How should existing laws be modernized?

The first and most important element in “modernizing” copyright legislation must be to disentangle the rhetoric from the actual data. Virtually every problem that exists in copyright today comes from botched attempts to “modernize” copyright or worse to “harmonize” with our trading partners. Independent research must be used, not industry research (we do not base our health care policies on reports from the tobacco industry) Hyperbolic claims from the music and film industry relating to damages must be dismissed. Independent (and Heritage) research repeatedly shows that downloading has a statistically negligible financial impact and in fact shows that downloading may be helpful. Entertainment industry reports omit critical information such as the market transition from buying albums to buying songs, the shrinking catalogues of the big box stores (who sell 40% of all music), the large discounts these stores give, and the evaporation of secondary markets. These factors are the major contributors to the plight of the recording industry.

Representation for Artists and Creators in the copyright consultation process has been dominated by the interests of the ‘content industry’ (CRIA, CMPDA, USTR) and ‘creators rights’ cartels such as CCC and DAMIC. Skewed statistics are presented. We are bombarded with rhetoric. 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 CRIA (Canadian Recording Industry Association), AFM (American Federation of Musicians), SOCAN (Society of Composers, Authors and Music Publishers of Canada), SAC (Songwriters Association of Canada). We know public opinion in this debate tends to favour the underdog. The record industry therefore speaks on behalf of their beleaguered artists and dwindling profits (while BMI, for example, boast a 9% average growth every year for the last 10 years) and ‘Creators’ groups’ boast loss of income for their beleaguered members (SOCAN alone had expenses of nearly 43 million last year a shocking $477 per member). In the recent Toronto Town Hall Meeting Steve Blair, Director of A&R, Warner Canada, worried about the fate of his roster of twelve Canadian artists if Canadian laws were not made tougher. TWELVE Canadian Artists.

The memberships of these Collectives and Unions have evolved as a means of collecting fees or obtaining paid work. These organizations do not always solicit opinions from their members before presenting a position. What industry and collectives are demanding now is that copyright be THE law of the land. They are demanding that society shape itself around their interests, and that the powers of copyright holders should exceed Charter Rights. They believe these powers should extend far into the future and that powerful lobby groups (Disney, Warner Bros.) should move from having limited control over artistic works to absolute control. The demands of these organizations are viewed by many artists as regressive. The spokespeople for these organizations often demonstrate a lack of understanding of what defines contemporary philosophy and practice. One thing is clear, they do not speak for the majority of Canadian creators and they do not speak for me. Copyright is meant to protect creators. Period. This protection should not be limited to creators whose output conforms to a limited definition of creativity.

Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

New copyright legislation should reflect Canadian values and interests. First we must assess how existing copyright laws reflect these values and interests. Canada is a sovereign nation built on a set of basic principles known collectively as Democratic Capitalism. Democratic capitalism requires a balance between democratic polity, individual rights and freedoms and a free market economy. Defending Canadian sovereignty entails much more than merely protecting a land mass, Canadian troops in Afghanistan are not sacrificing their lives to defend our physical borders but are defending Canada’s ideological principles,. Core principles. Canadian Culture. Over the past 120 years, with each successive ‘modernization’, copyright legislation has moved further away from these core principles. The core building blocks of our culture: Freedom of Expression, presumption of innocence & burden of proof, the banning of monopolies. Yet copyright, as it exists today, grants monopolies. Accusations of infringement require no burden of proof, nor are those accused of infringement presumed innocent. And ever more restrictive copyright law is increasingly used as a means of exercising control or censorship over others. Rights and freedoms are not given lightly in our culture. It is generally accepted that rights and responsibilities are tightly interwoven. It is even more disturbing therefore, that having granted this extraordinary set of rights to creators, we have failed to impose any penalties for the misuse of these rights. It follows that any discussion of creating copyright legislation “based on Canadian values and interests” must address these issues first and foremost. Any discussion of copyright must work towards a reintegration of copyright back into these core “Canadian values and interests”

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 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 individuals or copyright holders.

Each country has its own criteria for determining creativity. The US uses the “creative spark” doctrine requiring a minimal sign of novelty to determine copyright. This is typically arrived at through a literal comparison between two works. If two items are sufficiently similar infringement is determined chronologically. The later work always infringes. Australia uses “sweat of the brow” criteria that requires no creativity whatsoever. Rather, novelty is replaced by the ‘creator’s’ effort. In Canada, however, we have a unique criteria for determining “original” works. For a work to be original it must exhibit “skill and judgement”. Skill is “use of one’s knowledge, developed aptitude or practiced ability in producing work”. Judgement is “use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work”. Originality does not require any novelty or creativity but it does require intellectual effort beyond mere mechanical exercise.

The determination of originality depends on the facts surrounding a specific work. For a large part, originality depends on the degree to which the work originated from the author. The Authors Intent. Several factors are considered, the medium or form used, whether it is comprised of elements that are in the public domain or not, whether the form is pedestrian or novel, and the artistic elements. The “Skill and Judgement” definition in Canada is unique in the world and re-connects the form and the expression, Originality is determined by the relationship between the creator and the work. Originality is not determined by the relationship between the creator and other works. This definition of original work equips Canada with the means to create legislation which stands the test of time, reconnects form and expression (a copyright which protects forms of expression not simply forms) and is creatively neutral.

What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

Copyright as it stands today has granted extraordinary rights to creators. These extraordinary rights have historically been deemed necessary to promote two agendas; as incentive to encourage creators to continue to create and… to advance the collective culture. These extraordinary rights (which come at the expense of the rights of others) have been tolerated because they have only been granted for a limited period of time, much like extraordinary rights granted to a government in a state of emergency. The only difference between the suppression of rights during a state of emergency and the suppression of rights in an oppressive police state is the duration. Recurring “modernizations” have seen copyright terms move from 14 years (renewable to 28) to the ‘ life of the author plus 50 years’ (plus 70 in the USA, plus 100 in Mexico). Yet there is no demonstrable economic or social benefit to these extensions. At a time when economic models illustrate accelerated access to markets we continue to extend copyright. Television events can be watched by billions of viewers instantly, films make one half of their money in the first week…an author can sell 8.3 million copies of a book overnight. At a time when all indications show that copyright should be shorter, we continue to extend copyright. This is contrary to all logic. The vast majority of books will never have a second printing. Most films, tv shows and books are unavailable to the public because it is not profitable to make them available. Copyright term has been extended so long so that it effectively expunges works from our collective culture. Each new work created will become locked up for a period beyond our lifetime. Even beyond the lifetime of our children. Nothing created within our lifetime will enter the Public Domain. This has happened for the the first time in human history. NOTHING created within our lifetime will enter the Public Domain.
Any discussion of creator’s rights must include giving creators 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.” Artists who use appropriation 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.

What sorts of copyright changes do you believe would best foster competition and investment in Canada?

There is widespread consensus that any new legislation must be technologically neutral. There is also widespread consensus that old business models should not take precedence over emerging ones. But while technological neutrality is important, new legislation must also be CREATIVELY NEUTRAL. In the same way that new copyright legislation must not favour outdated business models, neither should legislation favour obsolete notions of creativity, authorship/readership and cultural economics.

What kinds of changes would best position Canada as a leader in the global, digital economy?

The arts and culture sectors employ as many people as the COMBINED sectors of agriculture, forestry, fishing, mining, oil, gas and utilities. According to the most recent data available from Statscan (2003-4), the arts and culture sector directly employed 600,000 people and generated $40 billion for the Canadian economy. 58% of cultural workers who are “creators” are self-employed. Nearly 80% of these jobs are full time. 83% of arts and culture workers possess some form of post-secondary degree or diploma. Yet the income of creators is 2/3 of the average income.

In a historic paper submitted to the Supreme Court in the USA, fifteen economists (both Keynesian and neoclassicist), including five nobel laureates, presented a united opinion on the economic implications of copyright. They wrote

Many new creative works are built in part out of materials from existing works. For example, new fiction re-tells old stories, new documentaries re-use historical footage, and new music re-mixes and transforms old songs. Improvements in the technology of search and recombination continue to expand the economic importance of new creation based upon old materials. If building-block materials are copyrighted, there are two sources of inefficiency to consider. If the later innovator must pay for use of the earlier work, this will raise the innovator’s cost of making new works, reducing the set of new works produced. In addition, if the process of bargaining and contracting is itself costly, a copyright holder’s control over derivative works imposes an additional tax on innovation.

Copyright has become a tax many creators simply cannot afford. These economists went on to state:

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n short, a lengthened copyright term under the CTEA keeps additional materials out of new creators’ hands. Would-be new creators face increased transaction costs: the necessity to engage in costly locating (especially for very old works, the very ones that would be in the public domain but for the CTEA) and bargaining with multiple parties. These higher costs give new creators less incentive to produce. As a result, the CTEA imposes two kinds of burden on society, fewer new works produced and higher transaction costs in the creation of some works

Statistical, economic, and sociological data confirms that copyright should be reduced to somewhere around 15 years. However rights once given cannot easily be taken away…even the excessive rights currently extended to creators. The only way to restore balance in copyright and reintegrate it into Canadian values is to expand fair dealing to include exemptions for private use, archiving, education, criticism, parody, satire and artistic use.

What kinds of changes would best position Canada as a leader in the global, digital economy?

Expansive and restrictive copyright laws are often justified in the name of benefitting artists. Yet the laws that were included in Bill C-61 would stifle and destroy Canadian creativity and culture. Canada is not a country that will flourish under excessive copyright laws. We are a country that celebrates diversity and multiple viewpoints. We encourage independent creativity and commentary. We must 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, too narrow to support this work. These works of art 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 Must 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.

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 concern is that new legislation will mark a paradigm shift in Canadian copyright law and 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, 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.

CC: Marc Garneau – Official Opposition Critic For Industry, Science & Technology
CC: Pablo Rodriguez – Official Critic For Canadian Heritage and Official Languages
CC: Charlie Angus – NDP Digital Affairs Critic

Gordon Duggan