Before Canada dives into its mandated review of the Copyright Act, it would be helpful to refresh our understanding of some key terms essential to understanding copyright.
Copyright, we’re often told, is all about balance. We are apparently looking for perfect equilibrium between opposing groups: rights holders and users.
Who are the real people we’re trying to balance? One is a discrete group of cultural professionals who have created works in a precarious economy marked by risky entrepreneurship and constant innovation. The other is a limitless population of potential consumers stretching forward throughout time. The user group is overwhelmingly larger than the creator group. In fact, it even includes all of the individual members of the creator group in its vast numbers.
The suggestion that these two groups are somehow on an equal footing is false, especially now that digital technology has made access to creative works practically universal. The tiniest exception to the rights and control of creators can cause immediate and disproportionate devastation to their interests while privileging users beyond their actual needs. Digital file-sharing technology is the case in point for that phenomenon.
Copyright law was never designed to provide an even split of rights for users. That is a misleading premise. Instead, copyright was conceived to give cultural workers control of their creations and to provide the opportunity for remuneration in exchange for contributions to the larger culture. In French, copyright is known as “droit d’auteur” — the right of the author. It was made for rights holders. That’s the purpose of copyright, and we must let it serve that purpose.
It’s hard to feel respected in a conversation that always seems to be about how one’s personal rights are too strong and don’t have quite enough exceptions and loopholes carved through them.
I wish I had a dollar for every time I’ve heard or read the four words “I respect copyright, but…” What follows the “but” is usually some version of these lines: The work is too expensive. There are too many rules to follow. I can’t immediately and freely do what I want with the work.
Respect for the rights of precarious workers should not be contingent on whether someone really, really desires immediate, free, unpermitted access to their work. Respect should be the norm and the goal of cultural interaction around copyright. That norm is built with firm laws and simple, affordable licensing regulations.
Canada’s authors and publishers have just won a landmark Federal Court decision asserting our rights in the educational space (Access Copyright v. York University), but already prominent “free culture” advocates are counseling educators to appeal this decision and stick to their guns on a wildly expanded (and now completely discredited) definition of educational fair dealing. No group of cultural workers can afford to endlessly assert rights through costly and time-consuming litigation. That process also damages education (were students and teachers helped in the four years York defended its copying practices?). The upcoming copyright review is the government’s opportunity to make sure fair and respectful licensing of work is at the core of all industrial uses like educational course packs and online course management systems.
The writings of Chidi Oguamanam and Andrea Bear Nicholas make it clear, as well, that Western law has much work to do in incorporating and respecting Indigenous traditions of creativity into copyright. There can be no honest review of Canada’s Copyright Act in 2017 without centralizing these concerns and making the necessary changes.
There’s a very good reason the owners of copyright in cultural works are referred to as “rights” holders. The ability to own and earn income from one’s cultural contributions and creative work is recognized by the United Nations as a universally declared human right. The two-part article 27 of the Universal Declaration of Human Rights (UDHR) states:
- Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Part 1 of this human right does not in any way weaken part 2, as some suggest, nor does it declare that arts, culture and scientific advancement must necessarily be available to consumers without a price tag. If that were the case, one could argue against a price on any product remotely related to cultural enjoyment and scientific advancement, including all levels of education and most modern technologies.
The second part of this declared right is unequivocal. Member states of the United Nations are obligated to protect the material and moral interests of their authors. It is in part because of that declaration that Canada has signed various international agreements about the protection of copyright. The rights protected by both the UDHR and our international treaties have been circumvented by the loss of collective educational licensing since 2012. Our fellow signatories have noticed, and are expressing their concern.
Those advocating for the too-broad exceptions of 2012 are now calling for even more exceptions to come out of the 2017 review. Is any other legislative regime so pressured to create exceptions to its rules?
I propose a moratorium on new copyright exceptions until the law is shown to be fulfilling its core purpose, which is to provide dependable and enforceable rights to cultural workers. Let’s fix the culturally damaging loopholes, like educational fair dealing, before we talk about new exceptions.
The “public interest” is often positioned as somehow in opposition to the interests of creative professionals. Why is that? Is the public interest not advanced by a viable and economically healthy professional cultural sector?
From the creator’s perspective, claims on public interest have been co-opted by those who wish to weaken our rights. It’s hard to see how anyone gains from such an outcome. Without enforceable rights over our work, there is little point in doing that work. Weak copyright means less professional cultural work, which surely goes against the public interest.
The weakening of copyright is an act of deregulation, an ideologically driven wealth transfer from one sector to another through the creation of gaps and loopholes. With educational fair dealing we’ve witnessed a dramatic and baffling version of this deregulation income swap. We know where the money was transferred from, but we’re not sure where it’s gone.
Statistically speaking, it’s next to impossible to make a living as a full-time artist or cultural creator in this country, and that’s despite growing international interest in our cultural expressions. So where’s the money Canadian writers have lost to educational fair dealing? There’s no good answer. Examine the real numbers on the economic damage — they’re devastating. The mixed message from the education sector is that it is spending as much on content now as it was before claiming a broad exception, if not more, and that schools are somehow saving students money. How can both claims be accurate? If overall costs for students have increased since 2012, and they have, what was the point of the deregulation?
Where do we go from here? The cultural sector is in broad agreement about the disastrously negative impact of the 2012 Copyright Act changes. Over 3,000 professional cultural workers so far have signed a letter to Heritage Minister Mélanie Joly respectfully demanding a return to creativity-centred policy and legislation. Calls for corrective amendments to the Copyright Act have come from all corners of the cultural sector.
We now need to hear from the federal government that it shares our concern about the cultural damage caused by the 2012 changes. We need to hear a commitment to fixing the problem and repairing the damage. Vague references to disruption and the digital shift will not solve the very real problems Canada’s artists face. The Copyright Act mistakes of 2012 were not caused by digital disruption or the advance of the Internet. They were bad policy, and that policy must be changed.
This article is part of the Reviewing Canadian Copyright Policy special feature.
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