Julianna Yau’s blog

Toronto, Ontario, June 26, 2008 – There is little visionary thinking behind Bill C-61 – An Act to Amend the Copyright Act of Canada in regards to the visual and media arts. The federal government will latch on to the fact that they have updated the rights of photographers so that they now align with other creators – CARFAC Ontario had actually suggested that this update be broadened to include printmakers and portrait artists.

“So much attention was paid to the needs of visual and media artists in the platform document that was collectively assembled by the Creators Copyright Coalition yet there is so little in this current bill that addresses those concerns,” said Julianna Yau, CARFAC Ontario Board Secretary.

As an example, jurisdictions like the State of California are embracing the resale right or “droit de suite” which gives visual and media artists a right to a percentage of the sale price that is paid to an artist when one of their works is resold by a gallery or other purchaser. North America has generally lagged behind the European Union which in 2001 issued a directive requiring member states to institute the “droit de suite” right in their copyright policies. In the United Kingdom alone the Designers and Artists Copyright Society (DACS) has collected £5.2 million (approximately $12million) in resale royalties for over 1500 artists since February 2006.

It is also disappointing that wording around the Exhibition Right was not strengthened to oblige publicly funded exhibitors to pay visual and media artists for all uses of their work. This is the sort of revision that will likely be allowable during the upcoming consultative

For more information about Bill C-61 visit:
http://www.ic.gc.ca/epic/site/crp-prda.nsf/en/h_rp01153e.html

For more information about the Creators Copyright Coalition’s Platform on the Revision of Copyright visit:
http://www.creatorscopyright.ca/documents/platform-jan08.html

CARFAC Ontario is the association of professional visual and media artists in Ontario. We have worked for 40 years to promote the material and moral welfare and rights of visual artists, including legal, economic, and physical health. We believe that artists, like professionals in other fields, should be paid for their work and share equitably in profits from their art practice. The work of CARFAC Ontario is to develop policies, publications and services that assist artists, galleries, curators, art patrons and anyone with an interest in creating a society that supports visual and media
artists. Working, professional visual and media artists actively govern CARFAC Ontario. As artists, we understand the needs of artists and have developed services and programs to assist artists at every stage of their careers.

- 30 -

Lawrence from Northworthy and Michael Geist write about a newly formed coalition, the Business Coalition for Balanced Copyright.

It seems like everyone is forming a copyright-centric coalition these days: the Canadian Music Creators Coalition, the Creators’ Copyright Coalition, the Canadian Coalition for Electronic Rights, and now the Business Coalition for Balanced Copyright (which, despite having members such as Google, Yahoo! Canada, Rogers, Telus and Tucows, does not seem to have a website yet).

What’s next? The Canadian Coalition of Copyright Coalitions?

Now that we’re done (maybe) creating coalitions, can we get together and actually resolve some of these issues?

So the holidays are over, everyone’s back to work and many are back to pouring their opinions, manifestos, recommendations and responses to copyright on the internet.

The Creators’ Copyright Coalition released their platform on copyright, and there were some immediate responses I noticed, plus a few more trickling in afterwards (on p2pNet, Canadian Magazines, plus the oodles of comments on the more active blogs, such as Michael Geist‘s and John Degen‘s).

To be honest, I usually stop reading the comments by about the third one, because everyone seems more interested in trying to be heard than trying to fix the problem. I wonder how many of us even have a good handle on what the problem is anymore.

It feels like everyone is working so hard at making sure they don’t get screwed somewhere down the line because they didn’t throw in their 2 cents (or more) that we’re collectively reacting and fortifying… and doing little else which is actually productive.

One of the horrible things about the internet is that shouting matches can go on indefinitely. On a well-moderated discussion forum (regardless of the technology used), these shouting matches can often be either tamed or extinguished altogether. From what I’ve seen, the shouting matches which take place in the blogosphere (both within comments of a blog post and between separate blogs) will go on until only one person had the endurance to have the last word.

I, too, have fallen victim to the mentality of “when attacked (or perceived to be attacked), retaliate”. But because I have little patience for conversations which lead nowhere (or in circles), I usually abandon those conversations quickly.

The internet has great potential for sparking and hosting discussion, but I fear it shall be a long time before the novelty of being our own publisher wears off and we finally take the time to do something productive with all of the discussion.

I have already said what I need to say about the CCC’s platform on copyright, so I’m not going to respond directly to these posts:

• Michael Geist (of course), and John Degen’s response
• Mathew Ingram
• Comments over at Digital Copyright Canada

Before I start, I would like to reinforce that this is my personal blog and that the opinions to follow are my personal opinions. I am on the Board of Directors for CARFAC Ontario, and was involved in some of the later discussions on the platform with the CCC in December.

Of course, that disclaimer is mostly in the interest of CYA because I wouldn’t be able to, in good conscience, advise CARFAC to sign onto the platform if I didn’t agree with it.

And while I agree with the platform (mostly… I have some reservations about the levy issue overall, not just within the context of the platform), I think there are some things which need much more attention than what has been afforded in the document.

1. The WCT and TPMs

What I have found most frustrating about copyright is the politics. And part of it is this whole business of signing treaties and ratification which means incorporating all aspects of the treaty. From the perspective of someone who is more philosophically-minded than politically-minded, this doesn’t make much sense. But there it is, and here we are, bickering over the inclusion of a clause that deals with technology and business models which are in constant evolution. My personal perspective on the WCT? Implement the rest of it (yes, it does actually deal with something other from TPM!) and tackle TPM on its own. Either we end up ratifying the treaty or we don’t, but there are other parts of the treaty which seem to be agreeable and creators would benefit from seeing them implemented.

2. Levies

The CCC also recommends “the expansion of the private copying regime to include all categories of work covered by the Copyright Act”. I support the concept of a private copying levy, but feel we need an in-depth and independent study of both private copying practices and the technology used in private copying to be completed prior to any expansion of the private copying levy. While it is immensely valuable for creators to have a system for being reimbursed for private copying (in lieu of the more distasteful option of suing consumers, which is happening in the U.S.), it is imperative that the levy be applied in such a way that it covers actual copying activity (versus perceived activity) and that the levy amounts are appropriate. There also needs to be more analysis around the private copying which ought to be levied and what ought not—an analysis which needs to involve both creators and consumers, and consider not merely proper remuneration to creators but clarification on what products and licences a user has acquired when they purchase a creative work.

I would also like to highlight some parts of the platform:

From the introduction

Increasingly legislators have turned to exceptions in the law as a way of providing guaranteed cost-free access to the public, even though the targeted problems, such as the need of teachers to use the Internet in the classroom, have more to do with budgets (too small) and clearance systems (too complicated) than with copyright law. It is important to remember that professional artists are users as well as creators. We, too, want reasonably priced access to the copyright-protected works of others but sometimes experience unduly high fees for access from other rights holders, often including government institutions and agencies. Creators are, therefore, looking for changes to the copyright law that would facilitate the clearing of permissions, wherever practicable, through collective societies.

Also from the introduction

The CCC recognizes that some creators choose to provide access to their work free of all technical protection measures and, instead, depend on the force of copyright law alone as their sole defence against unwanted use. Many contemporary creators are choosing to closely define the rights they wish to reserve through new licences such as those provided by the Creative Commons. For some creators there simply are no unwanted uses and, so, they provide their work licence-free as a gift to the public commons. The CCC recognizes and celebrates all of the many ways creators choose to relate their work to the current copyright system. We feel there is no need to alter the fundamental principles of the law to reflect these choices by introducing exceptions. Copyright stands as a definition of specific and limited rights for creators. Whatever rights individual creators choose to reserve are entirely an individual choice. In instances where copyright uses are licenced, the CCC recognizes the right of authors to choose whether or not to participate in that licensing regime.

On the suggestion of a notice and takedown system:

Serious and authoritative provisions need to be built into the law to protect all parties from fallacious and/or frivolous notices. Conditions for notices, and serious penalties for notice misuse must be built into the Canadian system.

And for those of you who don’t want to muddle through the entire document, here is a summary (pulled from the document itself; this is at the very end of the document) of the variety of issues being addressed:

1. The CCC asks that the Copyright Act be amended to strengthen and extend moral rights. These are rights that should allow creators to maintain respect for their work and their name. Moral rights should be unwaivable, inalienable and unassignable. Additionally, as well as being transferable only on death either to any person named by will or to an heir by intestate succession, moral rights should be perpetual.

2. The CCC asks the Government of Canada to incorporate the provisions of the WIPO Copyright Treaty (WCT) into Canadian law.

3. The CCC recommends that the system of exceptions for all forms of ephemeral recordings* or transfer of format not be extended.

4. The CCC asks that Section 3(1) of the Copyright Act be amended to provide that copyright in a work means “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to transfer the work or any substantial part thereof to another medium, to perform the work or any substantial part thereof in public, or, if the work is unpublished, to publish the work or any substantial part thereof …”

Section l3(4) of the Copyright Act should have a corresponding modification to read : “The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium transfer, sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent.”

5. The CCC recommends that section 29 of the Copyright Act, which concerns fair dealing, be reformulated in order to specify clearly that fair dealing for the purpose of private study or research does not infringe copyright provided that it is not for commercial purposes and is accompanied by sufficient acknowledgment.

6. The CCC recommends the expansion of the private copying regime to include all categories of work covered by the Copyright Act.

7. The CCC asks that the government oblige publicly funded exhibitors to comply with the exhibition right as provided for in the Copyright Act, and pay visual and media artists for all uses of their work.

8. The CCC asks that paragraph 3(1)(g) of the Copyright Act be modified to extend the exhibition right to all visual works that are not in the public domain.

9. The CCC asks that the Copyright Act be amended to include a droit de suite that would be a non-transferable and inalienable right in the original artwork giving the creator an economic interest in successive re-sales of the work concerned.

10. The CCC asks that in all cases copyright be accorded to photographers, printmakers and portrait artists, and that all reproduction of these works require a licence from the creator.

11. The CCC asks that any future specification in the Copyright Act respect the general attribution rules that make creators the primary rights holders of the audiovisual work. Assigning authorship of the work, in whole or in part, to the producer is contrary to the spirit of the Act.

12. The CCC asks that Section 29.5(a) be struck from the Copyright Act so that playwrights and other authors may regain their right to receive fair remuneration when their works are performed by students in educational institutions in the context of pedagogical activities.

13. The CCC asks that Section 32.2(1)(d) be struck from the Copyright Act so that authors of literary and dramatic texts may receive fair remuneration when a substantial part of their work is read or recited on stage.

14. The CCC asks the government to:
recognize in the wording of the Act that ISPs share in the responsibility for the content of the transmissions that customers circulate on their networks;
-ensure that this responsibility be conveyed through the recognition of shared liability for copyright infringement when an ISP neglects to withdraw illegal content after being advised of its presence by the copyright holder;
-specify that ISPs must not undertake, directly or indirectly, any activity that approves, sanctions, allows, favours, or encourages an activity involving telecommunication to the public or reproduction of content without appropriate compensation to creators/copyright owners;
-adopt the “notice and takedown” procedure advocated by the Standing Committee on Canadian Heritage;
- limit the concept of “Internet service provider” to entities whose commercial activity is the provision of Internet services; and
- provide conditions for notices, and serious penalties for notice misuse to avoid any legal intimidation of fair-dealing uses by rights holders.

15. The CCC recommends that further changes to improve the general licensing system and facilitate collective administration be applied, and that this system be preferred over one which would have the effect of maintaining and extending the current system of exceptions.

16. The CCC asks the Government of Canada to adopt a system of extended collective licensing that covers all works except those explicitly withdrawn.

17. The CCC asks that:
performers be accorded a full and complete right of reproduction, and that this right extend to all performances not in the public domain, and
section 17 of the Act be repealed.

18. The CCC recommends that:
-the private copying regime and its remuneration system be extended to include audiovisual works and their constituent performances;
-the law clearly indicate that the private copying regime can be applied to all technologies that permit private copying; and,
the current private copying system be maintained until the possibility of making unauthorized copies is effectively eradicated, or otherwise monetized.

19. The CCC asks the Government of Canada to incorporate the provisions of the WIPO Performances and Phonograms Treaty (WPPT) into Canadian law, and to ensure that the rights accorded performers cover all performances not in the public domain.

20. The CCC recommends the repeal of section 68.1(1)(a)(i) of the Copyright Act, which provides for the payment of a sum as low as $100 per year on the first $1.25 million of broadcasters’ annual advertising revenues.

21. The CCC asks the Government of Canada to provide performing artists with moral rights in all their performances, including existing performances, and that these be inalienable, unwaivable and unassignable.

22. The CCC asks that transitional measures be included which will prohibit the possibility of any grant, waiver or assignment before the new provisions come into force.

23. The CCC recommends the regime provided for in Section 32.5 of the Copyright Act be replaced by a notification system more suitable to Canada.

---

* “Ephemeral recordings” referenced here are strictly those addressed in section 30.8 of the Copyright Act. They are not ephemeral copies that are privately made during the normal course of information transfer and that are not made for the purpose of facilitating the telecommunication to the public of a performer’s performance or a sound recording.

Visual and media artists join forces with fellow creators in developing copyright platform

January 21 , 2008 – In anticipation of revisions to the Canadian Copyright Act, Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC), le Regroupement des artistes en arts visuels du Québec (RAAV) and our affiliates have been working to prepare a platform document as partners in the Creators’ Copyright Coalition (CCC).

Highlights of the platform for the visual and media artists community will include:
1) Ratifying the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), which includes allowances, where necessary, to protect both the rights of users and creators;
2) Improving compliance and recognition of the Reproduction Right;
3) Improving compliance and recognition of the Exhibition Right;
4) Amending of Canadian Copyright Act to include droit de suite, or resale right;
5) Reinforcing and expanding the licensing responsibilities of copyright collectives in the digital environment;
6) Extending protection and reaffirming creators’ Moral Rights;
7) Affording photographers, printmakers and portrait artists the same rights as other visual and media artists.

In the coming weeks, CARFAC/RAAV and the CCC partners will be looking at and reacting to the legislation that is tabled. Keeping artists’ economic interests front and centre is a priority for CARFAC/RAAV. “Many of Canada’s visual artists live below the poverty line. Copyright law should protect the right of these artists to be paid for their work,” said Gerald Beaulieu, president of CARFAC National.

CARFAC/RAAV continues to defend the rights of all visual artists and to provide information and assistance with regard to the visual arts and matters of public policy and/or legislation.

The CCC is an alliance of 18 professional associations of individual creators and performers, and copyright collective societies active in theatre, the visual and media arts, literature, the applied arts, music, recording and audiovisual (radio, television, film, and commercials). Together, these eighteen associations and collectives represent more than 100,000 creators (authors and performers) who are copyright holders. The CCC defends the interests of authors and performers in the revision of the Copyright Act of Canada.

CARFAC and RAAV are artist-run, national non-profit associations of professional visual and media artists. As the national voice of Canada’s professional visual artists, CARFAC/RAAV defend artists’ socioeconomic and legal rights and educate the public on fair dealing with artists. CARFAC /RAAV engage actively in advocacy, lobbying, research and public education on behalf of artists in Canada and Québec.

Resources:
The CCC platform document can be found at: www.creatorscopright.ca.
The Canadian Copyright Act can be found at: http://laws.justice.gc.ca/en/C-42/index.html.
Information about the WCT can be found at: http://www.wipo.int/treaties/en/ip/wct/index.html.

-30-

For further information contact:

CARFAC National
1-866-344-6161
carfac@carfac.ca
www.carfac.ca

Christian Bédard
Executive Director
RAAV
514-866-7101
christian.bedard@raav.org
www.raav.org

Kristian Clarke
Executive Director
CARFAC Ontario
1-877-890-8850
kc@carfacontario.ca
www.carfacontario.ca

Julianna Yau
Secretary
CARFAC Ontario
519-635-0377
desk@juliannayau.com

Patrick Close
Executive Director
CARFAC Saskatchewan
306-522-9788
director@carfac.sk.ca
www.carfac.sk.ca

FOR IMMEDIATE RELEASE
January 21, 2008

TORONTO: Canadian artists have released their platform on copyright reform in anticipation of the Canadian government’s expected new copyright legislation. The PDF file can be downloaded here (optionally, you can also download the original .doc version).

The result of months of research and study, the Creators’ Copyright Coalition position paper outlines the reforms that creator groups would ideally like to see in Canadian law.

Members of the CCC believe that the making of art and contemporary Canadian culture is a vital part of life, and an essential ingredient of the information economy. If the new copyright reforms enhance and protect the rights of creators, then they will encourage art, contribute to our culture and enrich the lives of all Canadians.

“Without protection for performers and creators, we risk more than harming our international reputation, we risk damaging our industry at large. It’s in the public interest that artists and their work be protected so they can earn a living wage and contribute to our culture and economy,” said Stephen Waddell, ACTRA National Executive Director.

John Degen, novelist and Executive Director of the Professional Writers Association of Canada: “I believe Canada can have a strong copyright law protecting the work and careers of all professional creators, while fairly and reasonably addressing the concerns of both corporations and consumers. The CCC statement is meant as a step in that direction.”

Stan Meissner, songwriter, past president of the Songwriters Association of Canada: “While the digital age has offered music creators wonderful opportunities, it is clear that the rampant unpaid online consumption of music and other content has had a devastating effect. We need up-to-date copyright legislation that will protect the value of our rights, ensuring us a future where creators will be compensated for the use and enjoyment of our work.”

Bill Freeman, the chair of the CCC, said: “Creators have been waiting far too long for copyright reform. It is time to protect the rights of all authors and performers in the Internet age.”

The Creators Copyright Coalition (CCC) is an alliance of 16 professional associations of individual creators and performers and copyright collective societies active in the theatre, the visual arts, the applied arts, literature, music, recording and audiovisual (radio, television, film and commercials). Together these 16 associations and collectives represent more than 100,000 creators (authors and performers) who are copyright owners.

Contact:
Bill Freeman, Chair, CCC, 416 203-2956
John Degen, PWAC: 416- 504-1645

It seems I’m not the only one growing tired of all the bickering over copyright. Christopher Moore posts to the Creators’ Copyright Coalition a proposal for a public inquiry, which John Degen supports. I’m casting my vote of support to that idea—not only because I’ve been working with the CCC through my work with CARFAC Ontario but because, as you may have gleaned from my recent posts, I don’t think we’re going about this the best way.

The pandemonium being generated around the upcoming copyright legislation has been tiring. Although I think it’s fabulous that users are taking an interest in and being represented for copyright issues, I wonder whether the loudest of them have done enough study into the issues of copyright. With my own focus of copyright on the visual arts alone (excluding New Media and interdisciplinary arts), I feel that I am sufficiently prepared to tackle the issues with my peers after a few years of study. Not to diminish the importance of user rights, but how many of the users who are complaining have an understanding of the issues in addition to being aware of the issues? Theirs are ones which spread across several disciplines and, as I have noted before, they can’t all be treated the same way.
At this point, I am more concerned about all of the rumours flying around the copyright legislation than the legislation itself. This op-ed post at the CCC pretty much encapsulates my feelings about the pandemonium, and sets me off to wondering again. This time, it’s whether any of the users who have been rallied to fight for fair copyright will actually take the time to read and analyse the proposals…or if they will simply take the word of the Michael Geist & co. No matter how just the cause, blind acceptance is a dangerous thing.