[Ecommerce] Michael Geist: Why Canada should follow UK, not US on copyright

[Manon Ress]

Why Canada should follow U.K., not U.S., on copyright

MICHAEL GEIST
(http://geistculturedeficit.notlong.com).


Canadian artists have enjoyed unprecedented international critical and
commercial success in recent years. From Avril Lavigne to Yann Martel to
Denys Arcand, Canadians have won Grammys, Bookers, and Oscars and have
demonstrated that our best belong on the world stage.

Notwithstanding these headline-grabbing success stories, wider success
for the Canadian cultural community has proven to be more challenging.
In fact, Canada has long faced a cultural deficit with imports exceeding
exports. The full magnitude of the Canadian culture deficit became
evident last month, when Statistics Canada released a major report on
the status of Canadian cultural services.

Canada's culture deficit stood at $919 million in 2002, a figure that
accounted for one-third of the total Canadian commercial services
deficit. The trade figures involving the United States were particularly
troubling with the Canada-U.S. culture deficit ballooning by 42 per cent
between 1996 and 2002.

Three sources contributed to virtually the entire deficit =97 copyright
royalties, trademark royalties, and broadcasting fees. Of these three
sources, copyright royalties was by far the fastest growing, with the
Canadian copyright royalty deficit nearly doubling in six years from
$125 million to $223 million.

With Prime Minister Paul Martin set to ask the Governor General to
deliver the Throne Speech tomorrow, the time has come to reverse the
alarming increase in Canadian cultural deficit by establishing
supportive policies that promote the interests of all Canadians. Those
policies must foster the creation of Canadian cultural products,
facilitate broad public access, and put an end to legal reforms that
invariably lead to an ever-increasing flow of copyright fees out of the
country.

Supporting the creation of new cultural products sits at the heart of
the cultural policies of many countries. As Peter Grant and Chris Wood
illustrate in Blockbusters And Trade Wars, an excellent examination of
global cultural policy, many countries utilize a "culture toolkit" to
help support their local culture. Canada already employs a range of such
tools including Canadian content requirements, various arts funding
programs, and tax policies that encourage film and television production
in Canada. While these policies have been the subject of some criticism,
there is little doubt that many artists depend on them to help pay the
bills.

Building on Canada's current successes requires a continued commitment
to cultural funding along with a careful examination of additional
alternatives found in other countries. For example, the French film
industry is supported by a small levy added to the cost of movie
tickets, an approach that has helped facilitate a thriving national
industry.

Of course, industry must do its part as well. Major record labels such
as Universal Music Canada trumpet their support for Canadian artists,
yet those same Canadian artists only represent roughly 21 per cent of
the performers promoted in their Umusic.ca flagship Web site artists
section. That figure does not even come close to the Canadian content
requirements imposed on Canadian radio stations and suggests that a
greater commitment to Canadian culture rather than the corporate bottom
line is needed.

The continued creation and increased promotion of Canadian cultural
products alone will not address the cultural deficit. We must also
ensure that access to our culture and heritage is publicly available to
all Canadians.

The United Kingdom provides an excellent model for such policies. In
recent months, the British Library has unveiled an ambitious plan to
digitize and freely post on the Internet thousands of historical
newspapers that are now in the public domain. Similarly, the BBC has
established the BBC Creative Archive, which will allow users to download
clips of BBC factual programming for non-commercial use, where they can
be stored, manipulated and shared.

Although Canadian funding of the CBC is not identical to the television
license fee approach used for the BBC, there are clear similarities
between the two public broadcasters. CBC would take a significant step
forward by returning its programming back to the taxpayers who provide
the majority of its funding. In doing so, Canadians would be free to use
CBC programs for non-commercial use much like residents in the United
Kingdom.

Canada must also foster the growth of the public domain by resisting
pressures to extend the term of copyright. Canadian copyright currently
lasts for the life of the author plus 50 years. While some countries
have extended that term to 70 years after the author's death, the
extension would not generate any further cultural products yet it would
result in diminished public access to Canadian works.

For example, in 2003 the Canadian government introduced a bill dubbed
the Lucy Maud Montgomery Copyright Term Extension Act that would have
extended the term of copyright for certain works. While the heirs of the
famous Canadian author would have benefited from the extension, the
Canadian public would have paid the price, losing access for years not
only to Montgomery's unpublished works but also to unpublished works
from dozens of other prominent Canadians such as former Prime Ministers
Robert Borden and R.B. Bennett. That bill was ultimately amended with
the copyright term extension provisions excluded.

The third and most essential strategy is that Canada must stop adopting
copyright policies that, to no one's surprise, result in the transfer of
millions of dollars out of the country. Over the past 50 years, Canada
has regularly faced pressure from U.S. organizations and their Canadian
proxies to adopt new reforms that are quite obviously designed to
increase the payment of copyright royalties to U.S. interests.

For example, relentless U.S. pressure on broadcasting royalties was a
prominent feature in the U.S.-Canada free trade negotiations. The
pressure eventually led to reforms that created new compensation schemes
for broadcasting that have resulted in Canadians paying millions more to
U.S. rights holders each year.

Canada is currently facing copyright policy choices that could lead to
more of the same. As rights holders lobby for Canadian ratification of
the World Intellectual Property Organization's Internet treaties, many
experts, reportedly including some Canadian government officials,
believe that ratification would force Canada to amend its private
copying regime to conform to the treaties' "national treatment"
requirements. National treatment obliges countries to treat foreign and
national artists on an equal footing, a requirement that could lead to
an additional $100 million in Canadian private copying royalties flowing
south of the border.

Moreover, the cost of ratification to Canadians would not be limited to
increasing royalties. Ratification of the treaties would swing the
copyright balance dramatically toward rights holders as it shuts out
individual Canadians from their fair dealing rights for research and
private study =97 an essential part of the balance affirmed by the Supreme
Court of Canada.

Despite claims that Canadian artists would be harmed should Canada
decide not to ratify the treaties, Canadian artists would in fact
scarcely feel the effect of such a decision. Eighty per cent of the
world's population has not even signed the treaties, while many European
countries have yet to formally ratify them. Furthermore, since Canada's
most significant trading partners, notably the U.S. and Japan, provide
Canada with national treatment status, Canadian artists would still
enjoy benefits in those markets.

Policy makers should also recognize that even ratification of the WIPO
Internet treaties will not satisfy many rights holders, who have
continually sought new rights that might increase their earnings. In the
United States, the U.S. Congress has recently been considering proposed
legislation called the Induce Act, which could conceivably regulate a
wide range of electronic equipment including popular devices such as
Apple's iPod.

Canadians can expect similar proposals to surface here as rights holders
have left little doubt that the WIPO Internet treaties represent only
the tip of the copyright reform iceberg. For example, Graham Henderson,
the recently appointed president of the Canadian Recording Industry
Association wasted little time last week telling a U.S. trade
publication that even with ratification, Canada's Copyright Act "would
still not be able to serve the needs of the business community."

The Statistics Canada data illustrates that Canada's culture deficit,
led by copyright royalties, is not a matter of fiction. In order to give
this story a happy ending, several government ministers, including
Canadian Heritage Minister Liza Frulla, her Parliamentary Secretary
Sarmite Bulte, and Industry Minister David Emerson, must reverse the
Canadian culture deficit by crafting policies that promote creativity
while focusing on Canadian interests.

Michael Geist is Canada Research Chair in Internet and E-commerce Law at
the University of Ottawa. He is on-line at http://www.michaelgeist.ca.
The opinions expressed herein are personal and do not necessarily
reflect those of the University
--
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176