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?