[Ecommerce] M. Geist more on documentary film makers challenges: Canada Crown copyright

[Manon Ress]

QUOTE:
[...]Canadian documentary makers face many [...] challenges in clearing
the necessary rights to complete their films they also face an
additional burden not found in the United States : Crown copyright which
provides that the government retains the copyright associated with any
work that is prepared or published by or under its direction, creates an
enormous and unconscionable barrier to Canadian film making, political
advocacy, and free speech.
END of quote


BNA's Internet Law News (ILN) - 3/14/05

Compiled by Professor Michael Geist

TIME FOR CANADA TO CANCEL CROWN COPYRIGHT
  Toronto Star version at (reg required)
<http://geistcrowncopyright.notlong.com>
Non-registration, hyperlinked version at
http://www.michaelgeist.ca/resc/html_bkup/mar142005.html


Michael Geist
March 2005

Appeared in the Toronto Star on March 14, 2005

KEEPING AN EYE ON A CANADIAN PRIZE

Last month, in celebration of Black History Month, thousands of Internet
users engaged in a small act of civil disobedience.  They downloaded
Eyes on the Prize, the award-winning documentary on Dr. Martin Luther
King, which is no longer available for purchase due to the expiry of
rights to certain clips used in the film.

The mass downloading was meant to bring attention to the barriers that
are sometimes created by copyright, including the crushing complexity
and costs involved in obtaining rights for small snippets of film.  The
issue has become particularly relevant in recent years since technology
and the Internet place the tools to create and distribute new work into
the hands of millions.

While Canadian documentary makers face similar challenges in clearing
the necessary rights to complete their films, they also face an
additional burden not found in the United States.  Crown copyright,
which provides that the government retains the copyright associated with
any work that is prepared or published by or under its direction,
creates an enormous and unconscionable barrier to Canadian film making,
political advocacy, and free speech.

Dating back to the 1700s, crown copyright reflects a centuries-old
perspective that the government ought to control the public=92s ability to
use official documents.  Today crown copyright extends for fifty years
from creation and it requires anyone who wants to use or republish a
government report, parliamentary hearing, or other work to first seek
permission.  While permission is often granted, it is not automatic.

The Canadian approach stands in sharp contrast to the situation in the
U.S. where the federal government does not hold copyright over work
created by an officer or employee as part of that person's official
duties.  Accordingly, government reports, court cases, and Congressional
transcripts can be freely used and published.

The existence of crown copyright (or lack thereof) affects both the
print and audio-visual worlds.  For example, the 9-11 Commission=92s
report, released last year in the U.S., was widely available for free
download, yet it also became a commercial success story as the book
quickly hit the best seller list once offered for purchase by W.W.
Norton, a well-regarded book publisher.

By comparison, a Canadian publisher seeking to release the forthcoming
Gomery report as a commercial title would need permission from the
government to do so.  To obtain such permission, the publisher would be
required to provide details on the intended use and format of the work,
the precise website address if the work is to appear online, as well as
the estimated number of hard copies if the work is to be reprinted.  If
the work is to be sold commercially, the publisher would be required to
disclose the estimated selling price.

The difference between the Canadian and the U.S. approach is just as
pronounced in the documentary film arena.  Consider, for example, a
Canadian creating a film about a controversial political issue such as
same sex marriage or gun control.  The filmmaker might want to include
clips from politicians speaking to the issue in the House of Commons.

After obtaining the desired video from the House of Commons, the
filmmaker would be presented with a series of legal terms and conditions
limiting its use to school-based private study, research, criticism, or
review as well as news reporting on television and radio outlets that
are licensed by the CRTC.  Everything else, including any commercial use
of the video, would require the prior written approval from the Speaker
of the House.

Contrast this situation with one found in the U.S.  Last year=92s
controversial Michael Moore documentary Fahrenheit 9/11 featured a
riveting scene in which a steady procession of members of the U.S.
Congress rose to challenge the outcome of the 2000 U.S. Presidential
election -- only to have then Vice-President Al Gore reject each in
turn.  While Moore faced challenges obtaining the necessary rights for
some of the works that he included in his film, given the state of U.S.
law, this segment was not one of them.

There have previously been calls for crown copyright reform in Canada,
yet the urgency associated with eliminating the outdated notion of
government control over work product bought and paid for by the Canadian
public has never been greater.  Led by Industry Minister David Emerson
and Canadian Heritage Minister Liza Frulla, parliamentarians and policy
makers have spent years working on new copyright reforms that will
primarily benefit a select group of predominantly foreign rights holder
groups, but have devoted virtually no time to identifying reforms that
would benefit the broader Canadian public by treating individuals as
both consumers and creators of copyrighted works.

The Internet and new technologies foster that dual role, providing
millions of Canadians with the ability to create and distribute new
culture, political speech, and entertainment.  Canadians admittedly have
access to government documents and audio-visual materials through
government publishing and access to information requests, however, they
still lack the unfettered right to use those materials.

Eliminating crown copyright and adopting in its place a presumption that
government materials belong to the public domain to be freely used
without prior permission or compensation would change that.  The use of
such work without approval from the Speaker of the House should not be a
case of civil disobedience.  It should be the law.

Michael Geist is the Canada Research Chair in Internet and E-commerce
Law at the University of Ottawa. He can be reached by email at
mgeist@uottawa.ca and is on-line at www.michaelgeist.ca.


--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367,
Washington, DC 20036, USA Tel.:  +1.202.387.8030, fax: +1.202.234.5176

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2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727

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