Copyright exceptions have already gone too far: Canadian writers

The following excerpt is from the Writers’ Union of Canada, League of Canadian Poets, and the Playwrights Union of Canada’s written submission to the departments of Industry and Canadian Heritage regarding the current copyright reform process. The authors argue that further exceptions proposed by the government are inappropriate. Are writers to become mere "content providers"? We provide the "cultural content" that is needed to feed the infrastructure of the Information Highway. The purpose of copyright is to establish and protect ownership of intellectual property. We therefore strongly disagree with the notion, seemingly the view of the drafters of the Framework document, that the real purpose of copyright is to facilitate public access to the works we create; in other words, they view copyright as our reward for disseminating knowledge and cultural content through creation of works. This is a far cry from copyright on the basis of ownership of intellectual property, whether "copyright" or "droit d’auteur" is conceptualized as a right conferred by the state (our British heritage) or as a personal right tied to the creator (our French heritage). We cannot tolerate further erosion of our rights to control our creations, whether because of new technology, pressure from users for new exceptions, or government policy that pays little heed to how all of this affects our economic situation as writers. Earning a living as a writer in this country is very difficult and most writers have to supplement their income from other sources. The communications revolution brought by digitization presents authors with new opportunities for dissemination and compensation, but digitized works are vulnerable to unauthorized modification and copying, and when users ask for better "access", they usually mean free access. Predictably - and in our view, unnecessarily - new opportunities for creators to exploit their rights have triggered calls for new exceptions by users without regard for the willingness of most creators to allow their works to be licensed by collective societies. Collective societies are able to provide users with quick and inexpensive access to a world repertoire comprising millions of works. Already writers have lost out because of legislative changes even where appropriate mechanisms for collective administration were already in place. In the 1997 batch of reforms, new exceptions were legislated for performing dramatic works in schools and other educational institutions (section 29.5) and making single copies of older periodical articles in libraries, museums and archives (section 30.2(2)), depriving playwrights and writers of articles of significant income which had only recently become easily collectible through collective societies - in effect, an expropriation of their intellectual property. We continue to believe that these particular exceptions put Canada in violation of both the Berne Convention and the more recent Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Although Article 13 of the TRIPS agreement requires members to "confine limitations or exceptions to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightsholder", this may be mere lip service to the similar provision in the Berne Convention. For though significantly broadened by its extension to cover rightsholders in general (that is, including corporate owners as well as authors), the TRIPS version of this provision is narrowed because of its omission of moral rights. It is our observation that as opportunities are developing for new rights - rights which can be exploited both by individual authors and their collective societies - the assumption is often that these new rights should be transferred to and administered by producers. This is appropriate where willing creators are able to negotiate a fair return for these new rights, but many producers are claiming these rights without offering fair financial arrangements even before it has become clear what "normal exploitation" may be in a digital world. We see little reason for exceptions in the digital environment, especially where material is available through a collective society. While we do wish to have strong protection for our copyright work, we also believe in a strong public domain and do not wish to see an end to the "fair dealing" defence in the digital environment.. We are committed to making our works accessible and do not wish to "lock up" our works. Nor do we wish to see a "lock-up" on the works of others, as we are frequent users of other authors’ works. Like other users, we pay to photocopy or otherwise reproduce copyright materials. We are opposed to special exceptions.

Copyright exceptions have already gone too far: Canadian writers

Broadcast | October 18, 2001

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