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A Response to Michael Geist

November 25th, 2010 – Michael Geist’s recent dismissal of our perspective on Bill C-32 has put us in good company with thousands of other professional creators across Canada who do not share his enthusiasm for weakening copyright in the name of achieving “balance.”

Given Geist’s blinkered position on the subject of copyright reform it is hardly surprising that he would support the Conservative government’s plan to jeopardize  the current means by which Canadian creators earn a living.  I am, however, surprised that he would take cheap shots at ACTRA National President Ferne Downey and Eric Peterson and misrepresent their positions.

We don’t expect to convince Michael Geist of our views, and we aren’t looking to start a ping-pong game of who’s right. However, as the House of Commons Committee studying the bill starts their hearings, we would like to set the record straight on some of his interpretations of  ACTRA’s position and Bill C-32.

1.    Extend the private copying levy to digital audio recorders

Geist argues that there is no support within the government to extend the private copying levy to digital audio recorders.  In fact we have spoken to some Conservative MPs who DO support extending the levy.  Also contrary to Geist’s view, we believe the Canadian public wants creators to continue to be remunerated fairly for private copies made of their works.  A poll done by the Canadian Private Copying Collective found that the majority of Canadians think its fair to compensate creators for copying their work and are willing to pay a levy.

Extending the current private copying regime to digital audio recorders, rather than simply appropriating creators’ rights, will achieve that goal efficiently and equitably. Modernizing the Copyright Act in this regard is simply not as complicated as Geist and the Conservatives would have Canadians believe.

2.    Remove the ‘mash-up’ provision from the bill

On the  ‘mash-up provision’, Geist’s analysis of creators’ concerns is remarkable for what it misses: the so-called “safeguards” against rights-holders losing control of their works are meaningless when one considers the aggregate impact of thousands of consumers mashing-up a rights-holder’s work without permission.  According to the law, companies like YouTube that profit from the dissemination of user-generated content are required to obtain permission to do so from copyright owners. However, the Conservatives and Geist curiously wish to give such corporations a free-pass at the expense of Canadian creators.  We don’t want to suppress creativity, but there has to be  a better way to allow Canadians to experiment and express themselves rather than a whole-sale sell-out of creators’ rights to their own property.

3.    Put the brakes on the fair dealing expansion

The Conservative government unabashedly states that extending fair dealing to education “will reduce administrative and financial costs for users of copyrighted materials that enrich the educational environment.”  This is a clear acknowledgment that if this provision were to become law, an unspecified amount and type of reproduction of copyrighted materials for the purpose of “education” would indeed become free. How big would this proposed statutory discount be? Geist doesn’t think professional creators should worry about that, and in any event it’s clear that he is indifferent to our concern. He cannot credibly dispute the fact that existing royalties upon which Canadian creators currently rely to earn a living are threatened by the Conservatives’ proposed expansion of fair dealing. Were this new exception to become law, we strongly suspect that Geist would be the first to trumpet it loudly as a “user’s right”, negating the need for payment of copyrighted materials reproduced on mass for the purpose of “education”.

Again, creators want Canadians to be able to use their work in different mediums, but there has to be compensation in exchange. If the people who write and publish text books won’t keep doing it if there is no market to buy them.

4.    Make those who enable online theft pay

We don’t think that a person who infringes copyright in the course of enabling others to infringe copyright on the Internet or digital networks should be immune from statutory damages. That’s why we don’t support the addition of proposed subsection 38.1(6)(d) to the Copyright Act. However, Geist evidently thinks such immunity for copyright infringement enablers is a good idea.

5.    Make ISPs do their part

There is good reason why an overwhelming majority of jurisdictions in Europe, the United States and other parts of the world have implemented regimes that go beyond ‘notice-and-notice’ to help curb copyright infringement. However we look forward to Geist expanding on the “studies” he cites in support of his view that “years of experience” support the notion that ‘notice-and-notice’ works.

6.    Make broadcasters pay their fair share, keep the Broadcast Mechanical provisions

Geist’s support for the elimination of subsection 30.9(6) of the Copyright Act is in keeping with his general disdain for collective licensing. We think collective licensing mechanisms should be strengthened – not weakened, or worse, eliminated. Collective licensing balances the desire for consumer access and use of copyrighted materials with the need for fair remuneration for professional creators.

We’re very proud of the way all of our members, including Ferne Downey and Eric Peterson, spoke out on copyright and Bill C-32 last week in Ottawa. We anticipate that an increasing number of professional creators will add their voices to the mix in the coming weeks. We won’t be surprised in the slightest if Geist and the Conservatives don’t like what they have to say.


Stephen Waddell

ACTRA National Executive Director

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