Here is a simplified list of key provisions in Bill C-11, the current revisions to Canada’s copyright law that are expected to be passed shortly, and a brief explanation of why they do little to improve the lot of music creators, and in some cases are detrimental to our situation.
1) Format and Time Shifting, Back Copies
The proposed legislation would permit reproduction of a work for private purposes where the work is a lawful copy—and not merely rented or borrowed—and where the individual making the copy did not circumvent a technological protection measure. A similar right for making back-up copies is also proposed.
The problem: Music creators and publishers will essentially lose two revenue streams thanks to Bill C-11. One is the private copy levy, which was not extended to mp3 players and similar devices in the new law. Since the levy only applies to recordable CDs, and sales of those are falling dramatically, it is only a matter of time before this revenue stream virtually disappears.
Secondly, music creators and publishers currently receive “broadcast mechanicals”, a royalty paid by broadcasters when they make copies of songs for broadcast purposes. Bill C-11 eliminates this revenue stream.
2) Anti-Circumvention Provisions
Bill C-11 would prohibit the circumvention of technological protection measures used by rights-holders to secure and control their digital content.
The problem: Since little or no music is protected by these measures, and has not been for years, this provision will do nothing to reduce the billions of songs that are file shared every year and for which music creators receive no compensation. The SAC believes the monetization of music file sharing is the only sensible approach in any case. The model we propose is available at http://www.songwriters.ca/proposalsummary.aspx
3) Changes to Fair Dealing
Bill C-11 expands the existing categories of fair dealing exceptions to include dealings for the purpose of parody or satire as well as for education purposes.
The problem: Because the definition in Bill C-11 is so broad, this provision will almost certainly lead to years of costly litigation to determine what is “fair dealing” and what is not. Bottom line: Huge legal costs and less revenue for music creators
4) Changes to Statutory Damages*
Non-commercial infringers of copyright would face considerably less exposure to statutory damages. The range of possible statutory damages would be reduced to $100 to $5,000 per infringer and cover all past infringements.
The problem: This provision limits damages to an amount so small that suing will not be economically viable, except for those with the deepest pockets. Again, the SAC does not favour litigation as a policy against music file sharing, but we understand litigation may be the only recourse in certain extreme situations. In other words, if legitimate damages are in excess of the proposed limits, why shouldn’t creators and right holders be able to sue for the full amount of the loss?
* We have had further legal opinion on this matter that creators and right holders can opt out of statutory damages and seek legal remedy for full actual damages. The question remains whether statutory damages are set at appropriate levels.
5) Limited Liability for ISPs and Search Engines
The government has proposed limiting the liability of ISPs and operators of Internet search engines for the copyright infringements of their subscribers, in that they act as mere conduits on the Internet.
The problem: ISPs already have “safe harbour” protection in law and have claimed for years they are only “dumb pipes”. Without getting into whether this is true or not as many assert, it does create a situation where Internet service providers have little incentive to work with right holders to address the issues.
So Bill C-11 legislates less revenue for music creators, imposes more expenses in holding on to the revenue we do receive, and more confusion as to what are rights as creators are.
It is worth noting that members of the SAC board, as well as other right holders, have gone to Ottawa many times to deliver the message to government that this bill is not a good one for Canada’s music creators.
Bill C-11 makes it clear our advocacy work to improve the legal and business environment for our creative community is far from done.