Canadian Government Reintroduces Copyright Modernization Act
Canadian Government Reintroduces Copyright Modernization Act

Monday's re-election of Prime Minister Stephen Harper's Conservative government in Canada to a majority stronghold means that there will be fewer impediments to get its legislation passed. One bill, which died March 26 when the general election was called for May 2, was C-32, the Copyright Modernization Act. A new bill, assigned a new number, is expected to be introduced by the end of the year.

The Canadian Copyright Act, last reformed in 1997, has long been derided for being out of date and offering little protection to content owners, especially in today's digital economy. Bill C-32 was tabled June 2, 2010, and eventually made it past the second hearing to the Committee stage. Two previous reform bills, 2005's C-60 and 2008's C-61, were also introduced and failed to pass.

The Canadian Recording Industry Association (CRIA), representing the interests of Canadian companies that create, manufacture and market sound recordings, largely endorsed the C-32, except for a few points.

However, the Canadian Music Publishers Association (CMPA) and CMRRA SODAC Inc. -- a joint venture between copyright collectives the Canadian Musical Reproduction Rights Agency (CMRRA), and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) -- which represent the reproduction rights of songwriters and music publishers, had several more issues with the bill. A joint statement on C-32 was signed by over 90 creator groups (representing music, books, visual art, photography, audio-visual and other protected works, amounting to more than 600,000 creators and copyright owners) and articulated "nine key areas of concern" in a post on its website.

Many of these issues are moot now that the bill is dead, but what does a majority Conservative government mean for the next attempt to pass a copyright reform bill?

"I think with a Conservative majority, we can expect that the government will table a copyright bill before the end of the year," says CMPA executive director Catherine Saxberg. "However, we can only hope that the government has heard the serious concerns about C-32 that were articulated by so many in the creative community and that they will submit a new bill that tells us that the Conservatives believe that this should be a country where it should be possible to make a living as a creator of intellectual property."

Graham Henderson, president of CRIA, told this week that he believes most members of the music industry agreed on 90% of what was wrong with C-32 "with just a difference of opinions on a couple of things."

Saxberg said her concerns include "the attack on" the broadcast mechanicals tariff, private copying, fair dealings, the education exemption, "the ridiculously low" statutory damages and "no liability enshrined" for internet service providers.

"I sat around a table with the Liberal critic for Heritage and Industry, and there were maybe 20 people in the room, all representing various sectors, not just in music but creative industries, and the Liberals asked us point blank: 'If it's this bill or no bill, what do you want?' And everyone in the room said, 'No bill.' And those were representatives from the Writers Guild, the Directors Guild, ACTRA and music, and the book publishers."

Henderson stressed that the specific content of C-32 was less important than the fact the bill was being debated in the legislature.

"The mistake that a lot of people made with C-32 was looking at it as a tablet that Moses brought down from Sinai and everything was chiseled in it and nothing could change -- that it was a Commandment that came from God and it was to go through Committee and come out the other side and that was the law," Henderson said. "A lot of people behaved as if that's how our parliamentary system works, but it's not. I think people forgot that there was actually a parliamentary process that was engaged. Bills are introduced. Bills are never perfect. It doesn't matter whether they're copyright bills or critical bills; they are put in and because we're human, they're imperfect. The point of Parliament and the point of committees are to identify problems with bills and fix them.

"Unfortunately, during the election and before the election, there was too much time spent ringing our hands and anguishing over what was or wasn't in C-32."

President and CEO David Basskin, speaking on behalf of CMRRA (owned by CMPA) and CSI, which licenses the reproduction right for their clients, told this week, "We never said to kill the bill and the people who signed the joint statement on C-32 never said to kill the bill. Our message was very clear - it was 'fix the bill.'

"We agree that copyright reform needs to proceed and that nothing is served by leaving this issue outstanding indefinitely with no action. After all, we signed the WIPO [World Intellectual Property Organization] treaties in 1996 and as 15 years have gone by and bills remain unimplemented, it's a very much of a sore point," he continued. "But the goals that were addressed in the WIPO treaty were a very distinct subset of what was in C-32. Whether or not Bill C-32 did an effective job of implementing the WIPO treaties is far greater concern for us, and for many other members of the cultural community, namely introducing and broadening all kinds of exemptions that would have made it possible for users to use works without paying anything.

"Nearly 100 cultural entertainment organizations - CMRRA, SODRAC, SOCAN and many other music organizations - signed that [joint statement on Bill C-32] and it expresses quite clearly the difficulties that we had with the what was being proposed in C-32. We certainly hope that the Conservative government will take those issues into account and produce a bill that is more balanced. The last bill was not balanced at all."

Copyright reform, which was raised in several throne speeches, is a priority for the government, as it is to all the major political parties. As well, Canada is getting pressure to reform its copyright policies from the European Union and United States.

"For me, the most important thing has always been speed. We've been dithering over copyright reform for years, a decade and a half," Henderson said. "And since the Paul Martin [Liberal] minority [2004 to 2006], a lot of that dithering has had to do with the fact that there was a minority, because it's difficult to get bills through committee and into law.

"So if one's interest is moving forward with copyright reform, to have a government for whom that is a stated explicit priority is a good thing. It means that copyright reform will likely be one of the priorities of the new government, and probably not just copyright reform, but I would venture to suggest that a general reform of our country's intellectual property law may be on the horizon."

Basskin is hopeful too that a new bill will be introduced "reasonably soon," he said. "Now we certainly hope that Bill C-32 will simply not be photocopied and have a new number put on the front."

Saxberg agreed. "A lot this is going to be up to the government. With a majority, they may decide that they don't have to do as much of a consultation process as they've done on the past. We've certainly submitted our concerns over and over again in every possible format. Now, we just have to wait and see if the Conservatives heard us."