C- 61, A Biased Critique of copyright legislation

C- 61, A Biased Critique

Brewster Kneen

Bill C-61, an act to amend the Copyright Act, was tabled in the Parliament of Canada 12 June 2008.

Any discussion of copyright should begin with an observation and a question:

– Every artist and creator builds on the works of those who have gone before, requiring an active
and respected public domain;
– How is a society to compensate its cultural workers for their contributions to that society and
the world at large?

The amendments to the Copyright Act proposed by Bill C-61, however, contain no references to public
domain, public good, public interest, or anything to do with the public. There is no recognition that a
healthy public domain is essential to a healthy society, to say nothing of its necessity to creativity of any
sort.

The emphasis is on watertight exclusion of the public. ‘Making available’ and ‘sharing’ are apparently
considered contrary to the purposes of copyright except under the strictest of commercial terms. Any socalled
‘balance’ is contained in a long litany of what constitutes ‘infringement’ and a long list of highly
technical and limited ‘exclusions’ from what is considered to constitute infringement. The burden of
proof of non-infringement is on the purported infringer. Prior ‘rights’ are always deemed to be those of
the copyright holder/owner.

Perhaps even more significant, in terms of the intent of these amendments, is that the term “creators”
appears only once, and that is in the preamble. Otherwise the beneficiaries are ‘rights holders’ and ‘rights
owners.’ In other words, the beneficiaries are not intended to be the artists, musicians and writers who are
the creative forces, but the owners of their works. The copyright owners are primarily media
conglomerates, Hollywood film studios and major record labels. A curious exception, of sorts, is in
photography, where the rights go solely to the photographer, even if the photo is taken at the request of,
and with payment by, the subject of the photograph. In this regard, this is similar to the ‘rights’ of the bioprospector ollecting germplasm, or DNA samples, and then claiming ownership through patenting.

The contempt for the public is clearly expressed in the Summery of the act:
This enactment amends the Copyright Act in order to
a) update the rights and protections of copyright owners . . .
c) permit certain uses for educational and research purposes . . .
d) permit certain uses of copyright material for private purposes . . .
The overriding ideological orientation of the Bill’s sponsors appears in the Preamble:
. . . the Government of Canada is committed to enhancing the protection of copyright
works or other subject-matter, including through the recognition of technological
measures, in a manner that promotes culture and innovation, competition and
investment in the Canadian economy. . .

How competition is to be fostered through the granting of monopoly rights remains unaddressed,
particularly when these monopoly rights are granted further enhancement through the legal recognition of
technology protection measures, which quite literally lock users – the public – from full access to the
locked-down material, even if there is no legal (copyright) restriction on the public’s access to the
material itself.

“No person shall circumvent a technological measure” or “offer services to the public
or provide services. . . “
The question of educational use of copyrighted material constitutes a significant portion of the
amendments. Curiously, the Council of Ministers of Education supports the amendments on the grounds
that it is better to have narrow but explicit non-infringing exceptions than much wider and more general
fair dealing provisions. The educational exceptions apply only to those within or under the ‘authority’ of
the university – as if the university contained all educational activity. The limitations that this
constituency called for and seems able to accept are extreme and one has to wonder if they have given
any thought to the enforcement (policing) obligations that they would be taking on. (Note the definition
of ‘public’ in (a) below.)
“ . . . it is not an infringement of copyright for an educational institution or a person
acting under its authority
(a) to communicate a lesson to the public by telecommunication for educational or
training purposes, if that public consists only of students who are enrolled in a course
of which the lesson forms a part or of other persons acting under the authority of the
educational institution;
The educational institution and any person acting under its authority, except a
student, shall
a) destroy any fixation of the lesson within 30 days after the day on which the
students who are enrolled in the course have received their final course evaluations;
b) take measures that can reasonably be expected to limit the communication by
telecommunication of the lesson to the persons referred to in paragraph (3)(a);
c) take, in relation to the communication by telecommunication of the lesson in
digital form, measures that can reasonably be expected to prevent the students from
fixing or reproducing the lesson, or communicating it other than as they may do
under this section; and . . .
An educational institution that makes a digital reproduction of a work under
paragraph (1)(a) shall . . .
b) take measures to prevent the digital reproduction from being communicated by
telecommunication to any persons who are not acting under the authority of the
institution;
c) take measures to prevent a person to whom the work has been communicated
under paragraph (1)(b) from printing more than one copy, and to prevent any other
reproduction or communication of the digital reproduction;

Fortunately there are other bodies, such as the Canadian Association of University Teachers and the
Canadian Library Association, that take a contrary position against the amendments.

Clearly the mentality of this Act is to regard everything – words, music, visual art – as marketable
commodities, their value as such being determined by their marketers, i.e. their transmitters, the media
conglomerates, record companies and film studios. The beneficiaries of these amendments are the
middlemen, not either the creators or the public. The value of words, music and visual arts as public
goods is not recognized, nor are they recognized as the basis for further creative work. It is apparently
believed that every creative work comes out of a cultural vacuum or tabula rasa – or corporate office.

The fundamental question that copyright – or patents – should be addressing remains: how is a society to
compensate its cultural workers for their contributions to that society and the world at large? To assume
that copyright serves this purpose would appear to be an increasingly invalid assumption.* The question
is increasingly important in an era, and under a regime, that equates value with commercial value, that
equates ‘innovation’ with creativity, that conflates private benefit with public good, and that seeks to
make all research and creativity, whether this be a piece of music, an academic study, (or plant breeding),
dependent on corporate sponsorship or private philanthropy. The artist, cultural worker and plant breeder
are all to become serfs, or artisans dependent on satisfying the whims and desires of, and producing a
‘product’ for, the wealthy and the corporate.
_______________________

* Canada has two ‘public’ mechanisms in place for remunerating creators: Access Copyright, which
operates on a user-pay principle through licensing of copy shops and collection of levies, some of which
goes back to actual creators, and Public Lending Rights, which remunerates authors on the basis of the
appearance (and implied use by public) of their books in libraries, with funding from the general tax base.
Unlike Access Copyright, PLR payments go only and entirely to authors by name.
_______