[Upd-discuss] 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 — 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 — 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