Copyright Reform

BY Allison OuthitPublished Aug 24, 2009

Not known to rush into things, we Canadians: the need for copyright reform has been simmering, and occasionally erupting into the public forum for, oh, two decades now. An attempt at revision with Bill C-60 failed in 2005, and in 2008, the Conservative government pulled a sneakeroo but ultimately failed to launch Bill C-61. They took some heat, hoo boy. So this summer, the feds announced a round of public consultation. As the process unfolds, we've seen a significant rise in public interest and participation.

But hey, musicians: like electoral reform or municipal politics, copyright is an issue you kinda know you should care about, but when you try to pay attention to it, you get mired in a whole lot of highfalutin debate when you're not even sure what the basic issues are, am I right? Alas, a lack of understanding of the basics of copyright is a massive detriment to Canadian musicians and the people who love them (i.e. music fans) — because if you understood what's at stake, you'd really want to speak up. So let's look at the basics.

Copyright makes legal property out of creative expression, and like all laws it is supposed to be a negotiated solution for the public good. It's meant to resolve the make/take conflict between creators and consumers. The theory is that copyright encourages creators to create by offering them a guarantee that they can earn a living from their efforts. It does so by imposing legal limits on the ways by which consumers can access, use and enjoy copyrighted works.

Copyright used to be like the fence around an orchard, allowing the farmer to grow, harvest and sell apples without every cow, kid, and midnight raider stripping the trees bare. But, as far as music copyright goes, digital technology blew that fence sky-high. Where before copyright owners (mostly record labels and publishers) had rigid control over the means of production and distribution, digital technology enabled musicians and composers to create and distribute music without a middle-industry; and it provided easy and seems-like-free access to music for anyone who wanted it.

American lawmakers first addressed the assault on copyright in 1998 when it passed the Digital Millennium Copyright Act (DMCA), which brought into law two treaties of the World Intellectual Property Office (WIPO), the international outfit that sets protocol on copyright. Notably, the DMCA's "safe harbor" provisions relieved ISPs of responsibility for rampant copyright violation on the net — and passed liability onto a generally ignorant and/or oppositional public. The DMCA also contains sturdy "anti-circumvention" provisions that laid out new penalties against he who breaks protective codes.

The major criticism of the DMCA is that it works pretty well to support the claims and "rights" of big businesses like telcos, ISPs and major labels, but utterly ignores consumer behaviour. Under the DMCA, ISPs can host as many P2P nets as they please — and make a packet doing so — but individuals using these networks can be subject to gazillion-dollar copyright infringement lawsuits. In other words, as a negotiated solution, it's a fail.

Canada's copyright laws were last amended in 2001, but then only to implement changes mandated by a House of Commons Standing Committee report tabled over ten years earlier. Even though Canada signed the WIPO treaties in 1997 (the same ones that led to the DMCA in the U.S.), we've never gotten around to wrestling with the upshot of the interwebs.

So lately, the U.S. copyright lobby, dissatisfied with the consumer trend toward relaxation of copyright in spite of the DMCA, has swivelled its hairy eyeballs toward little old us. In fact critics have accused the Conservative government of cranking up the copyright amendment train only to appease Hollywood et al. That may be true, but even so, it's high time we as a nation took a look at copyright law and made some collective decisions about the economics of creativity.

Until now, the loudest, most organized voices have been all for adopting DMCA-like measures and restricting consumer freedom in favour of increasing copyright enforceability. The polarizing question for Canadians — for you! — is to what degree lawmakers should factor in how consumers are actually using digital technology, and whether it's right to continue to criminalize what has become everyday, normal behaviour. In other words, what do people (not business) want?

Some lobbyists in the capital M music business would have you believe that the only way to save a faltering industry is to buttress copyright law so that the industry has more opportunities to sue people. Rather than acknowledging that consumer behaviour is forcing a change to a new business model, the copyright lobby is relying on economic entitlement to force its wishes on the public. For consumers, it's like being on the seesaw with a fat kid: we're just up there, dangling, while he decides whether we drop.

By the time you read this, the Town Hall portion of the consultation process will have ended. But you can still have your say. Until September 13, you can speak your mind at the online submission centre at

Frequently Asked Questions

I write all the songs in our band. I want the other band members to get an equal share of the money, but not the copyright. Is there a difference?

Definitely. If you want to retain 100 percent of the copyright, make sure that yours is the only name you write down whenever the copyright notice comes up (like, on the album, or on SOCAN forms). Then, when you get paid royalties, it's up to you to share them with the band. If you want to make it formal, you can make an agreement that says you are assigning them an equal share of the so-called "benefit of copyright" — i.e., a share of the money that comes from the exploitation of the copyright, while retaining the copyright all to yourself.

What does © and (p) on the CD credits mean?
The notice ©, usually followed by a name and year, indicates who owns the copyright in the musical work and the date of its publication. The notice (p) followed by a name and year indicates who owns the copyright in the sound recording and the date of first release.

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