More flawed drafting…

Before the amendments to the Copyright Act, s. 19 only had a simple subsection (1), which stated that performers and makers of sound recordings had a right to be paid equitable remuneration for performance of in public or communication to the public by telecommunication of sound recordings, except for any retransmission. This provision was the same for anyone covered by the Act.

Now, s. 19 will create three separate regimes for performers and makers with a connection to Canada (s. 19(1)), performers and makers with a connection to a Rome Convention country (s. 19(1.1)) and performers and makers with a connection to a WPPT country (s. 19(1.2)).

This hardly makes any sense, especially if we look at potential consequences.

I wrote in my previous post on s. 19(1) of the Copyright Act that it sets out that performers and makers will have the right to equitable remuneration for communication of sound recordings by telecommunication but not for the making available right. Section 19(1.2) sets the same limitation for performers and makers of sound recordings with a connection to a WPPT country. That’s logical.

Now, here comes the inexplicable.

Section 19(1.1) sets out that performers and makers with a connection to Rome Convention countries will have the right to equitable remuneration for communication of sound recordings to the public by telecommunication, period. Under s. 2.4(1.1) of the Copyright Act, the term “communication to the public by telecommunication” also includes what is generally referred to as the “making available right”.

The Rome Convention does not set out a closed list of rights that states must grant to their nationals and thus to nationals of other Convention member-states. Rome Convention sets out a bare minimum of rights to be recognized and, more importantly, an obligation for member-states to set out the national regime of protection.

Just because the Rome Convention did not provide for the making available right, does not mean that nationals of Rome Convention countries should not be able to enjoy the right that Canada vests in Canadian performers and makers of sound recordings.

Just because Canada limits the right to equitable remuneration for communication to the public by telecommunication by removing the making available part out of it with respect to Canadians and those with a connection to WPPT countries, and just because the Rome Convention does not contain the making available right, does not mean that s. 19(1.1) will also have such limitation with respect to sound recordings with a connection to a Rome Convention country.

As I wrote in my post about new sections 17.1 and 17.2 of the Copyright Act, Canada will be violating its obligations under the Rome Convention.

Section 19 does the opposite by granting more rights with respect to sound recordings having a connection to Rome Convention countries, at the expense of Canadians and WPPT countries, because performers and makers of sound recordings with a Rome Convention connection will be entitled to equitable remuneration for communication of the sound recordings to the public by telecommunication, which, under s. 2.4(1.1) also includes the making available right.

Given that most WPPT members are also Rome Convention members, we will end up with a strange result: the right that was introduced by WPPT will not be available to performers and makers through WPPT, but it will be available to them through Rome Convention, which doesn’t guarantee such a right.

Well, at least they got the digital lock provisions right, right?

Copyright Modernization Act introduces several changes to the right of performers and sound recording makers in s. 19 of the Copyright Act.

Section 19(1) used to vest in performers and makers of sound recordings a right to be paid equitable remuneration for public performance of sound recordings that have been published and for their communication to the public by telecommunication, the only exception to that being made in the case of retransmission.

The Copyright Modernization Act adds another exception, which, honestly, I find utterly incomprehensible. I will quote it in full and then make a few comments:

If a sound recording has been published, the performer and maker are entitled, subject to subsection 20(1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for

(a) a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a), if the person entitled to the equitable remuneration is entitled to the right referred to in those paragraphs for that communication;…

And then we wonder why people frown upon the legalese.

To use the word “entitled” three times in different contexts in the same section of the Act requires some sophistication, I’m sure.

The first one quite clearly refers to the entitlement to be paid equitable remuneration.

The second one refers to “the person entitled to the equitable remuneration”, i.e. the performer and the maker of a published sound recording.

The third one refers to the entitlement to the making available right, referred to in paragraphs 15(1.1)(d) and 18(1.1)(a). Paragraphs 15(1.1)(d) and 18(1.1)(a), as you may recall from my comments on new subsections in Section 15 of the Copyright Act, are about distilling the making available right back from the general right of communication to the public by telecommunication, into which the making available right was merged by virtue of s. 2.4(1.1) of the Act.

So what the new s. 19(1)(a) is trying to say is that performers and makers of sound recordings are entitled to equitable remuneration for communication of the sound recordings to the public by telecommunication, except for situations when the sound recording is made available over the Internet.

I can understand a policy decision to only recognize an entitlement to equitable remuneration in respect of some forms of use and not others.

I can’t understand two things:

1. Why it is that the provision could not be written in a clear language?

2. What was the purpose of blending the making available right into the communication to the public right if for all meaningful intents and purposes it is treated differently in the Act? It’s not a case when a court is forced to interpret the law as it exists. The Copyright Modernization Act was supposed to be the most important reformulation of Canadian copyright laws in years. It’s a lesson from the first year law school legal interpretation class: don’t use the same term to refer to two distinct notions. If you plan to have separate rules for cats and dogs, don’t add a provision stating that for the purposes of the Act, a “cat” also includes a “dog”.

BOTTOM LINE: Bad. Incomprehensible language. Inconceivable why the term “communication to the public by telecommunication” that “for the purposes of the Act” was supposed to assimilate the making available right doesn’t cover the making available right for the purposes of s. 19(1).

Just as in the case of new subsections in Section 15 of the Copyright Act, Copyright Modernization Act adds subsections 18(1.1), 18(2.1), 18(2.2) and 18(4) to the Copyright Act.

In order not to sound like a broken record, I suggest that you read my comments regarding additions to s. 15 of the Copyright Act. The only difference is that this time the sloppy drafting will affect makers of sound recordings, not performers.

BOTTOM LINE: Awful, awful drafting. The intentions may have been good, but the resulting s. 18 is now more confusing than it used to be. A real shame for a massive amendment that the Copyright Modernization Act was supposed to achieve.

Copyright Modernization Act adds two new sections to the Copyright Act, 17.1 and 17.2.

The idea is noble, namely to recognize that performers too, not just authors, have moral rights with respect to their performances. Not all performances, only “live aural performances” and “performances fixed in a sound recording”. No such luck for all other performers.

The scope of the moral rights is the same as in case of authors. Performers have a right to the integrity of the performance and a right to name (to be associated with the performance as its performer by name, under a pseudonym, or to remain anonymous).

The right to the integrity of the performance is linked to s. 28.2(1) of the Copyright Act which sets forth that this right is only infringed if the performance is to the prejudice of its performer’s honour or reputation (a) distorted, mutilated or otherwise modified; or (b) used in association with a product, service, cause or institution.

The right to name is severely limited by the modifier to the effect that such right is only recognized if “it is reasonable in the circumstances.” A right that is subject to someone else determining whether its exercise is reasonable in the circumstances is not really a right.

Moral rights have been treated in a peculiar way in Canada. It’s not that these rights don’t exist here at all. It’s that they’ve never appeared to be anything more than an afterthought. Not only are they seldom used or debated, even the structure of the Copyright Act itself does not clearly address the issue of legal context of moral rights, specifically the relation between moral rights and fair dealing.

On the one hand, we witness uncontrolled expansion of fair dealing and the so-called “user rights”. On the other hand, the plain reading of the Copyright Act makes it clear that fair dealing provisions only excuse what would have otherwise been an “infringement of copyright”, whereas moral rights fall outside the definition of copyright.

Copyright is defined in s. 2 of the Copyright Act as a collection of rights described in sections 3, 15, 26, 18 and 21. Moral rights are defined in the same s. 2 of the Act as a collection of rights described in sections 14.1(1) and 17.1(1). Furthermore, infringements of copyright are dealt with in s. 27 of the Act, whereas infringements of moral rights are dealt with in s. 28 of the Act.

So going back to fair dealing, the wording of the fair dealing provisions of sections 29 – 32.2 is such that it only renders certain acts in connection with works and other subject matter “not an infringement of copyright.” Logically, this means that if such acts also infringe moral rights, then fair dealing provisions will not save the person who so used the works or such subject matter.

Furthermore, it would not be unreasonable to conclude that no use that constitutes infringement of moral rights can also be “fair” to satisfy the requirements of ss. 29 – 32.2 and the CCH factors.

Those authors and performers who are rightfully upset about curtailment of their rights to control their works and performances through expansion of fair dealing should really have a look at moral rights as a weapon to fight against the injustice.

As with moral rights of authors, moral rights of performers can’t be assigned but can be waived in Canada (s. 17.1(2)). Thus, any new performance that occurs after the Copyright Modernization Act comes into force will allow performers to claim moral rights to such performance, unless that right has been waived. What this means is that producers, recording companies and other users of performances will want to resign their agreements with performers to address the issue of moral rights.

A huge problem exists with the wording of s. 17.1(1). It only recognizes moral rights of performers in cases “referred to in subsections 15(2.1) and (2.2)”. As I wrote in my comments about new subsections in s. 15 of the Copyright Act, s. 15(2.1) gives protection to performances if the performer or the performance has a connection to Canada, while s. 15(2.2) gives protection to performances if the performer or the performance has a connection to the WIPO Performances and Phonograms Treaty (WPPT).

The plain reading of s. 17.1(1) then is that moral rights of performers will not be recognized in cases where the performer or the performance has a connection to a Rome Convention country (as they are referred to in s. 15(2) of the Copyright Act.)

This is a direct violation of Canada’s obligations under the Rome Convention, according to which Canada undertook to grant national treatment to performers and performances that have a connection to any Rome Convention country. Granted, as of July 23, 2012, there are not very many countries that are members to the Rome Convention but not to the WPPT. Just the following ones: Algeria, Andorra, Barbados, Bolivia, Brazil, Cape Verde, Congo, Dominica, Fiji, Iceland, Israel, Lebanon, Lesotho, Liberia, Niger, Nigeria, Norway, Syria, Venezuela, and Viet Nam.

According to the Rome Convention, national regime means treatment accorded by the domestic law of Canada to Canadian performers. By denying recognition of performers’ moral rights of Algerians, Andorrans, Barbadians, Bolivians, Brazilians, Cape Verdeans, Congolese, Dominicans, Fijians, Icelanders, Israelis, Lebanese, Lesothans, Liberian, Nigerien, Nigerian, Norwegian, Syrian, Venezuelan and Vietnamese, Canada will not be granting national treatment to such respectable performers in violation of Canada’s obligations under the Rome Convention.

I may fool around in my blog about it, but seriously, how many of our MPs have actually read the Bill for what it stands, as opposed to whether their rhetoric could add a couple of votes in the next election? Or is Canada planning to denounce its membership in the Rome Convention?

On July 12, 2012, the Supreme Court of Canada issued its reasons in five copyright cases: Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), Re:Sound v. Motion Picture Theatre Associations of Canada, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, and Society of Composers, Authors and Music Publishers of Canada v. Bell Canada.

The results, while quite predictable, are very disappointing for someone who values individual rights, freedom and capitalism.

Howard Knopf in his post, A Proud and Progressive Pentalogy Day in Canadian Copyright Law has provided a brief outline of what the five cases stand for. It’s a good summary of what the cases stand for, but I squarely disagree with Mr. Knopf on his conclusions. My issues with his position start with the title, namely the use of the word “progressive”. I trust that the use of it is intentional and is in reference to the progressive movement. You may or may not agree with Glenn Beck, but the important question to ask when using the word progressive, even outside the political context is, “what are we progressing to?”. In my opinion, we are progressing away from a system where interests of the individual trump interests of the society and towards a system where interests of the “society”, expressed by whoever has the power to claim to be in position to represent such interests, trump interests of each particular individual making up that “society”. This never ends well.

Leaving the technicalities for a future post, I have three big problems with the 5 decisions.

My biggest problem is with paragraphs 9 and 10 of the Bell case, where the Court unanimously held that:

[9] Théberge reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace: see e.g. Bishop v. Stevens, [1990] 2 S.C.R. 467, at pp. 478-79. Under this former framework, any benefit the public might derive from the copyright system was only “a fortunate by-product of private entitlement”: Carys J. Craig, “Locke, Labour and Limiting the Author’s Right: A Warning against a Lockean Approach to Copyright Law” (2002), 28 Queen’s L.J. 1, at pp. 14-15.

[10] Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain. As noted by Professor David Vaver, both protection and access must be sensitively balanced in order to achieve this goal: Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 60.

This is exactly the problem with the current trend. I strongly believe that interests of the public should be completely irrelevant to copyright laws and copyright policy. Whether copyright laws provide any benefits as a “fortunate by-product” or they actually hurt the public does not really matter. What matters is whether those who create something that had not existed before have a chance to offer it to the public on THEIR terms, rather than being forced in a situation where they should either not disclose it to the public or expect the public to dictate such terms.

Notice the difference between a situation when the market forces a manufacturer to lower prices not to be squeezed out by the competition (as in copyright owners voluntarily adopting new models depending on granting access to their works for free) and a situation when the government adopts laws that say that those who really want or need to use the manufacturer’s product are entitled to steal from the manufacturer, but no more than 20% of the manufacturer’s total output (as in the government telling copyright owners they cannot sell their works because the public should have the “user right” to use them for free).

No matter what the Supreme Court of Canada says, copyright is not about access. It’s not about dissemination. It’s not about the royalties. The only thing that copyright is about is control. Take away control and you have slavery, because then the author is in no position to decide on which conditions to offer the results of his work to others. Whether it’s the public, the government or the collective society that decides it – it’s not the most important person in the equation, the author and the copyright owner.

My second big problem is that all five cases regarded copyright in the context of tariffs. Based on the false premise that copyright is about royalties, the Court seems to have used the following logic: “We have all these tariffs. If we decide that this action involves the use of this right recognized by the Copyright Act, then it would mean that it would fall under this or that tariff. Would that be a fair result?”

I understand that the cases WERE about tariffs, and that tariffs are an integral part of the copyright regime in Canada, but tariffs are merely an extension of exclusive rights that authors are supposed to voluntarily delegate to collective societies. Just because a collective society adopted a tariff royally approved by the Copyright Board does not create or destroy exclusive rights.

In Supreme Court’s reasons, however, the underlying assumption seems to be that the only purpose of authors’ existence is to provide an opportunity for the collective societies to apply tariffs.

This goes back to the priority of the interests of an individual over the collective.

Finally, Supreme Court further expanded fair dealing. Not only did it endorse the horrific idea of “user rights” previously found in CCH, it went far and beyond by removing even those scarce limitations of what the public could do to exclusive rights of copyright owners if the public feels like it.

In my opinion, most categories of fair dealing should be reduced to presumptions, which a copyright owner can rebut by declaring that the copyright owner does not grant the right to use his works for such purposes that the Copyright Act presumptively considers “fair”.

For example, why do we assume that a library should have the right to carry every single book it feels would benefit the community? Why cannot there be a situation when a copyright owner chooses to disallow libraries to carry the copyright owner’s books? This would happen in dismally small number of cases, so fair dealing would play the role in facilitating the dealings that are supposedly fair. But just because most copyright owners would be OK with such use does not mean that ALL of them would be. Individual rights are not about averages, they are about individuals.

Very seldom a use is truly fair if the copyright owner openly opposes it.

Same goes for the education. Why do we assume that the purpose of educating the next generation of students justifies robbing the current generation of authors and copyright owners of their right to decide if they want to allow teachers to distribute copies of their works to students without paying for it?

In summary, this is a very sad day for Canada. Not because greedy collective societies and big corporations will be able to grab less cash from the “working people” and the “less fortunate among us”. Not because a certain provision of the Copyright Act was interpreted to mean one thing, and not the other.

It is a sad day because it confirms the shift in the paradigm – from protecting individual rights against being infringed by other individuals or the mob, we are “progressively” drifting to laws that are subjecting rights of each individual to the mythical interests of the “whole”.

I have not only studied history, I’ve lived the socialist nightmare. Those of you who think that government-sponsored mass murders can never happen in Canada, think again.

No, just because the Supreme Court of Canada recognized that the fair dealing exception for the purpose of private study also covers non-private study will not be the cause of the government rounding up millions of Canadians and shooting them in the head. But that’s what progressivism is all about. Slowly changing the paradigm. Slowly robbing individuals of their rights… until one day they realize that ALL of their rights are now subject to whether they benefit the rest of the “collective”.

Those cheering today for the victory of the “users” are cheering for their own destruction as holders of individual rights, whatever these rights may be.