Presentation on Bill C-11, Copyright Modernization Act to the Senate Standing Committee on Banks, Trade and Commerce by The Writers’ Union of Canada, June 26, 2012
We are at the 11th hour. For writers in this country, the passage of an unamended Bill C-11, intended to update the Copyright Act for the digital environment, will drastically change our working lives – and our ability to work.
Attached is our submission to the House of Commons, which advocates proposed amendments that would limit negative consequences of the Copyright Modernization Act. We recognize that it is too late to incorporate most of these into the Copyright Act. We confine ourselves, therefore, to one request: incorporate the Berne Convention’s “3-step test” into the Act to help with its interpretation.
Copyright provides the legal foundation for the work that writers do and makes it possible for writers to be remunerated for that work. The Canadian Copyright Act provides us with essential protection and is the economic basis for the entire publishing industry, which lies at the heart of our education and information cultures.
In our view, some of the exceptions in Bill C-11 amount to nothing less than expropriation without compensation. Not only are we denied outright compensation for certain reproductions of our work, including undefined educational use, but this free copying will result in fewer sales of our books. Forced “donation” or legislated give-away of the results of one’s labour is not a sustainable business model. Nor is it sustainable for publishers who publish for the Canadian market. Writers’ markets and incomes will shrink. We will find it increasingly difficult to survive. The writing profession will be less attractive to a new generation of writers. The result: fewer made-in-Canada books for Canadian students and the Canadian reading public. In the end, an Act that is intended to protect creators will, in fact, discourage creation.
The scope of many of the new exceptions in Bill C-11 is uncertain. Ill-defined or undefined exceptions will undoubtedly lead to prolonged litigation. Courts, not government, will be required to decide what is permissible. Most damaging for writers is the new fair dealing for “education” provision, which creates uncertainty around just how much of a work can be copied without compensating the rightsholder. This can only be resolved by costly litigation on a case-by-case basis.
A government fact sheet states that adding education as a purpose of fair dealing “will reduce administrative and financial costs for users of copyrighted materials that enrich the educational environment.” What goes unstated is that these savings for educators will come straight out of the pockets of writers and our publishers. At present, most of these uses are or can be licensed and writers are entitled to be paid for them, just as the teachers, principals, university presidents, secretaries and janitors in the education sector are paid for their work. While we encourage access to our work, it is unconscionable that the creators of the works that are the basis of Canada’s educational system are being told by law that unpredictably larger portions (even entire stories or articles?) must be free of charge.
We believe strongly that some exceptions in Bill C-11, including fair dealing for education, depart significantly from the “internationally recognized norms” referred to in the Bill’s Preamble. In fact, we believe they breach Canada’s international commitments. Without some guide to interpretation, these exceptions will almost certainly expose Canada to complaints from other countries and from foreign rightsholders. They will interfere with current and potential future revenue streams and will therefore be viewed by our international colleagues as a breach of the “3-step test” in Article 9 of the Berne Convention. This states:
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such [literary and artistic] works [protected by the Convention] in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
This is echoed in NAFTA and the TRIPs agreement (part of the World Trade Organization agreement), and in the WIPO Copyright Treaty, which Bill C-11 is intended to implement.
We recognize that it is the nature of statutory provisions, such as fair dealing, to provide flexibility, and that exceptions can never be precise, even when tailored for particular circumstances. We also recognize that there will sometimes be litigation to determine whether an exception is applicable in a particular instance. Because, in Canada, international treaties do not become part of the law until their provisions are actually implemented into Canadian legislation, we believe that it is essential for the 3-step test to be incorporated into the Copyright Act to assist judges in interpreting Parliament’s intent.
For us, adding this new interpretation provision to the Copyright Act is an acceptable alternative to amending specific sections of Bill C-11. Such a provision makes it less likely that the broadest of the new exceptions will be interpreted in a way that would conflict with normal exploitation of an author’s work and unreasonably prejudice his or her legitimate interests.
Therefore, we urge you to consider this single amendment on interpretation.
We recommend to the Senate that the 3-step test articulated in the Berne Convention and the WIPO Copyright Treaty, as proposed by the coalition co-ordinated by the Canadian Conference of the Arts, be inserted into the Copyright Act to assist courts in future interpretation of exceptions:
32.3(1) In interpreting limitations or exceptions to copyright in Part III of the Act, a court shall restrict them to certain special cases that do not conflict with the normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the author, performer or maker.
Adopting this single amendment will help ensure that “modernization” of the Copyright Act – “to bring it in line with advances in technology and international standards” – will provide appropriate protection for writers and other rightsholders.
Respectfully submitted on behalf of The Writers’ Union of Canada
The Writers’ Union of Canada (TWUC), founded in 1973 by writers for writers and certified in 1998 under The Status of the Artist Act, is the national voice of Canada’s professional book writers who work in the English language. Our members, approximately 2,000 professional writers, live in every region of Canada and earn their living by writing books.