Federal report pushes for changes to Copyright Act

Lawyers who give advice to artists and copyright owners say a recent report by the federal standing committee on Canadian Heritage contains some interesting findings.

The report — released May 15 — covered a broad range of issues, including significant challenges facing Canadian artists, and contained recommendations on possible changes to the federal Copyright Act.

Artists told the committee they are not receiving enough financial compensation for their work and technology is aggravating the problem.

“Witnesses from the creative industries spoke about a disparity between the value of creative content enjoyed by consumers and the revenues that are received by artists and creative industries,” said the report.

“According to many witnesses, this disparity, which is known as the ‘value gap,’ is growing.”

However, Canadian artists aren’t the only ones having a hard time.

The committee heard that copyright owners are also facing challenges posed by technology.

“The committee heard that the proliferation of unlawful streaming services is inextricably linked with decreased remuneration for creators,” said the report.

“Canadians are increasingly and, at times unwittingly, consuming stolen content online. For copyright owners, having their content removed from such sites is an expensive, time-consuming process.”

The report called on the federal government to “increase its efforts to combat piracy and enforce copyright.”

James Green, a partner in intellectual property in litigation at Gowling WLG in Toronto, says the report contains some recommendations that, if enacted, could be a more dramatic shift from existing laws. One is related to a visual artist’s right to generate royalties in the resale of their own work, he says.

“It’s a concept that is recognized and has been recognized for a long time in some jurisdictions worldwide, but it would be new to Canada,” says Green.

For example, the report said visual artists do not get the same benefits as writers and composers, who receive royalties when their work is republished or performed.

“Visual artists, usually their only compensation or their main compensation is the first time they sell a painting or sculpture, so the concept here is that there would be a legislative change that would require on any resale of those types of works that a percentage of resale costs would be directed back to the artists,” he says.

Another proposed change pertains to explicitly recognizing screenwriters and directors of cinematographic works, such as television and film, as copyright co-owners and co-authors of the work, instead of producers.

Jessica Zagar, an associate at Cassels Brock & Blackwell LLP in Toronto, says in the report that the standing committee made a recommendation asking the federal government to examine the safe harbour exceptions and laws “to ensure that Internet service providers are accountable for their role in the distribution of content.”

“That was sought by many witnesses, who urged the committee to recognize that ISPs who play a more active role in the distribution of content online should take more responsibility for that content,” she says. “The committee has also adopted a number of proposals advanced by the music industry, including amendments that would remove certain royalty exemptions for sound recordings played on the radio and allow sound recordings used in television and film to be eligible for public performance remuneration.”

Green says it’s important to keep in mind that the recommendations are far from being legislation at this point, but they indicate some possible future legal developments. That includes the extension of a copyright term up to 70 years after an artist’s death from 50 years.

“That is something that has been promised many times previously by different governments. It’s also part of the new NAFTA agreement and, again, it’s something that’s recommended again by this committee, so that is something that definitely has traction and looks like it’s going to happen sooner rather than later,” he says.

Howard Knopf, counsel with Macera & Jarzyna LLP in Ottawa, says he disagrees with much of what was in the report.

“Some of these recommendations, such as the concept of harmonizing statutory damages remedies available to collectives, also reflect certain unfortunate views held by officials who may lack sufficient expertise in copyright law and practice,” he says.

“Lawyers and lobbyists advising content owners and collectives should be careful what they wish for. Excessive demands and temporary success in persuading politicians to issue an imbalanced document usually backfire badly. . . ”