Advice to an NDP official opposition on Copyright

While I’ve not being asked yet, I thought I would offer the new NDP official opposition some advice that I believe is consistent with their stated values. I offered some advice for the Conservative majority government, and I hope the NDP will take those suggestions into account as well. I am available to meet with any caucus member to discuss this area of policy more.

Members of the new Official Opposition caucus had a press conference today where they discussed their arts and culture platform for the coming Parliament. The speakers included Charlie Angus (Timmins--James Bay), Tyrone Benskin (Jeanne-Le Ber), Andrew Cash (Davenport), and Pierre Nantel (Longueuil - Pierre-Boucher). I didn’t have a chance to view the press conference yet (I haven’t found an archive online), but have read the press release.

Preemptively fix the Private Copying regime

I believe that the private copying regime has been a failure, and has resulted in more losses to creators that it brings in. It is a government funding program masquerading as copyright, and its complexities are known to induce people to infringe copyright in ways that harm musicians.

The idea of expanding the regime to include levies on additional media or devices, or to include additional copyright holders, will only make a bad problem worse and harm the economic and other interests of Canadian creators.

The Conservatives have been opposed to the regime since it was created by past Liberal Heritage Minister Sheila Copps. I believe (and most people I know hope) the current majority government will quickly abolish this regime.

Now is the time for the NDP to come in with a replacement which I believe will make everyone happy. The existing regime should be replaced with a properly administered government program modeled after the existing Public Lending Right.

Point-form Details:

  • Truly private copying should become fair dealings under copyright, as proposed in Bill C-32, without the carve-out of the existing private copying regime.
  • The private copying regime should be removed from Copyright (repeal sections 79 through 88)
  • Outside of the copyright act, create enabling legislation for a Private Copying Right Commission which would distribute the royalties to creators or their designated collective societies. There is no need for a CPCC given each of the relevant classes of creators (composers, performers, and makers of sound recordings) already have collective societies.
  • Set up the enabling legislation to create stable funding for this program.

If this is proposed early and linked to the abolishing of the private copying regime, the funding will be easier to get through. If the NDP waits until after the private copying regime is already abolished, it will be seen as a new program rather than a replacement of an existing program. Conservatives, and I believe most Canadians, already saw the private copying levy as a “tax”, so this wouldn’t represent a new tax but the addition of accountability and transparency.

I strongly believe that any time spent trying to save or expand the existing regime will simply be taking money out of the pockets of Canadian creators.

Partner with the Conservatives to protect IT property rights

The more activist members of the NDP have long recognized the power of new communications technology to enable grassroots communication that is not possible through traditional (more centralized) media. A key to this new technology is citizen ownership and control, and one of the greatest threat comes from misunderstood and misapplied technological measures.

The NDP needs to get behind opposing someone other than the owner of some digital technology applying locks on that technology, or otherwise disallowing the owner from making their own software choices. Please read my “4 things” presentation (or view my intervention in front of the Bill C-32 committee), and commit to protecting the rights of the other 3 classes of owners, rather than only protecting the desires of the large transnational corporations promoting non-owner locks on our technology.

Recognize that Copyright is not cultural policy or an arts program, but technology law

While Copyright enables specific business models used by creators, it should never be confused with cultural policy or ever allowed to be treated as a substitute for an arts funding program.

Copyright is to creativity like water is to humans: too little and you dehydrate and die, too much and you drown and die. Making copyright “stronger” will not offer creators more material rewards for their creativity, and increasingly the misapplication of “more copyright” is causing reductions in revenues to creators.

Allowing copyright to be used as a replacement for long-term stable funding for an arts program screws creators not only out of any actual funding, but also out of respect for their creativity as excessively complex Copyright is increasingly seen as being out-of-touch with modern realities.

Collective licensing is not the same as collective bargaining. Audiences for creative content, including fellow creators wanting to build on top of past creativity, should not be treated as “management” by a group alleging to be a “union”. The dynamics are entirely different, and the legislation should reflect this.

Compulsory licensing should never be used as a substitute for a government program, as was done with the private copying regime. Compulsory licensing is an exception to copyright that should be treated with respect and never proposed lightly. The same 3-step test should be used for this royalty-bearing exception to copyright as is used for royalty-free exceptions to copyright (AKA: fair dealings).

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Media coverage of press conference