CCA Bulletin 6/11
February 7, 2011

What exactly is the financial impact of C-32 on artists and other rights holders?

Just the facts

Several seemingly contradictory numbers have been quoted over the course of the debate on the financial impacts of Bill C-32 on artists and other copyright holders.

In order to help facilitate debate on this most important issue, the Canadian Conference of the Arts (CCA), with the cooperation of its members and other stakeholders, has prepared a list of revenue sources for artists and rights holders which are at risk unless Bill C-32 is amended.

There is no exact science to tracking revenue losses. This is compounded by the fact that many of the new exceptions in the bill such as education and fair dealing are poorly defined. This viewpoint has been supported by Dan Glover, a copyright lawyer from McCarthy Tétrault LLP, who mentions in his response to professor Michael Geist that, “the fairness test is notoriously soft and subjective, an eye-of-the-beholder test that will be left in almost every case to the judgment of the copier.”

The total $126M figure presented here only represents revenue that is collected and quantifiable, and which is currently at serious risk of disappearing.

Tell me more

The $126M figure does not:

• Track revenue losses that are more difficult to estimate, such as losses caused by the “private purposes exception” or the potential elimination of the library market for scientific and technological journals due to the extension of the interlibrary loan exception and temporary reproduction for technological processes;
• Account for lost revenue opportunities caused by the “user-generated content” exception and the “publicly available materials on the Internet” exception.

There are other losses which are either impossible to quantify or to project because:

• They are related to piracy, an issue which is not aided by a lack of meaningful responsibility on Internet service providers and the weakening of statutory damages proposed in Bill C-32. As noted by several witnesses in front of the legislative committee on C-32, no one can provide reliable information on such losses, which are known to happen on a large scale;
• They are related to lost opportunities to develop new markets and business models which will be precluded by the cumulative impact of the numerous new exceptions included in the bill.

Finally, one must take into account the financial impacts of these revenue losses on artists and other rights holders. If C-32 passes in its current form, there will be a substantial increase in litigation costs as artists and creators defend their rights and turn to the courts for clarification on the bill’s ill-defined exemptions.

Revenue at risk due to Bill C-32

• Fair dealing for the purpose of education [C-32, section 29]:                                $41.4M

Note: Includes $1 to 3M related to the display exception for
      educational institutions [C-32, section 29.4(1) and (3)];

Also includes in excess of $ 1.5M for Access Copyright and $ 450,000
      for Copibec related to Reproduction for test and exams
      [C-32, section 29.4(2) and (3)]:

Sources: Access Copyright, Copibec, SOQAD, SOCAN, SOPROQ and SODRAC

• Performance of cinematographic works by educational institutions                           $25M
      [C-32, section 29.5 (d)]:

Sources: Audio Ciné Film (ACF) and Criterion

• Non-extension of private copying regime to digital devices:                                     $30M

Note: This figure represents the average annual amount received from
      2001 to 2009. This amount dropped to $24M in 2009 as copies are now
      being made onto digital audio recorders not covered by the current private
      copying regime.

Source: CPCC

• Ephemeral recordings [C-32, section 30.9 (1)]:

Commercial radio tariff                                                                             $21.2M

      Source: Copyright Board decision, 2010

      Broadcast mechanical TV and other radio services                                      $8.6M

      Source: CMRRA/SODRAC Inc.

TOTAL: $126.2 M

      What are your thoughts on this bulletin? Let us know on our blog.

CCA Bulletin 5/11 February 3, 2011
The cultural sector mobilizes around copyright reform

Just the Facts
      Earlier today, the Canadian Conference of the Arts (CCA) participated in a press conference held on Parliament Hill in Ottawa to make public Canada’s Cultural Industries’ joint statement on Bill C-32, the Copyright Modernization Act. The statement is signed by 88 national and provincial arts service organizations from all arts and culture disciplines. Bill C-32 is currently the object of study by a special legislative committee of the House of Commons.
      The joint statement brings together an unprecedented coalition of organizations from the arts and culture industries representing writers, performers, actors, illustrators, musicians, composers, publishers, poets, playwrights, producers and songwriters who are all urging Parliamentarians to make changes to Bill C-32. This coalition is part of a $46 billion industry that employs more than 600,000 Canadians and that, as often stated by Heritage Minister James Moore, contributes twice as much to the GDP as the forestry industry.

      On February 1, the CCA appeared in front of the committee to state its position on the bill, and over the coming weeks and months, more arts and culture organizations will have the opportunity to explain their views. This could change if this bill follows its two predecessors Bills 60 and 61, and dies on the order papers because of the launch of a federal election. Arts organizations presenting to the committee will press for specific amendments to make sure that the revised Copyright Act protects artists’ and creators’ exclusive intellectual property rights and their right to equitable remuneration for the use of their works.

      The CCA recognizes that parts of Bill C-32 obviously respond to the needs of one particular market in the cultural sector – that of larger companies and multinationals – but that the same remedy cannot be applied to over 42% of Canadian artists and creators who are self-employed. This is why the CCA urges Parliamentarians to either amend the offending articles or delete them altogether so as to pass the part of the bill that suits the needs of some, without ignoring the realities and hurting the interests of so many Canadian artists.

Tell me more
      The general position of the cultural sector on Bill C-32 as it stands is that it weakens the core principles of copyright law that have historically ensured a healthy environment for creators, producers, distributors and consumers of Canadian cultural content. It will compromise Canada’s competitiveness in the global digital economy and undermine the economic future of creators of Canadian content. Artists argue that the proposed changes in the bill reflect a lack of understanding of the structure of creative industries in today’s rapidly evolving digital economy. Parliament needs to amend the legislation and salvage C-32’s positive provisions. Canada’s hopes for a vibrant and innovative digital economy are only as strong as its protection of intellectual property, the raw material of the knowledge economy, and C-32 as it stands is a step back, rather than a step forward.
      The financial consequences of passing Bill C-32 as it now stands will amount to a loss in revenue for Canada’s arts and culture industries of at least $126 million per year. These are losses that creators and their families cannot afford. And this figure is only based on quantifiable losses: lost opportunities to monetize re-use of content could also have a significant negative impact on the livelihood of creators.
      At a minimum, the joint statement signatories would like to see the following revisions made to Bill C-32 before it passes:

Delete all sections in the bill that would eliminate existing revenue streams for creators and copyright owners, including those that:

• legalize, without compensation, certain types of reproductions, e.g. broadcast reproductions, private copying onto digital audio recorders;
• provide for education exceptions without compensation to the copyright owners of educational materials for primary and secondary uses of their works;
• allow the exploitation of works in other ways without permission or compensation to the creator, e.g. user-generated content (i.e. the YouTube or “mash up” exception).

        Add the following:

• the “three-step test”, to comply with Canada’s international treaty obligations (i.e. to qualify as an exception or a limitation to copyright protection, the use of works must be limited to certain special cases, not conflict with a normal exploitation of the work, and not unreasonably prejudice the legitimate interests of the author);
• a visual artists’ resale right, to align Canada with our trade partners (i.e. ensure that visual artists share in the profits made from subsequent sales of their work);
• a notice and takedown regime applicable to ISPs, to more effectively address online copyright infringements and piracy.

What can I do?

      For more information on the impacts of Bill C-32 on Canadian creators, arts and culture industries and collectives, please visit www.c32jointstatement.ca to read the full statement.
      What are your thoughts on this bulletin? Let CCA know on our blog.

Samuel French Announces Winner of Its Canadian Playwright Contest

Congratulations to Jordan Hall for her full-length drama, KAYAK.

In the touching and provacative KAYAK, climate change, S’mores, Noah’s Ark, SUVs and global responsibility are all onstage as suburban housewife Annie Iverson recounts the strange chain of events that stranded her in her son’s old kayak, while confronting her own role in the changing landscape of environmental activism.

Jordan Hall is an emerging artist whose work has been dubbed “stellar, insightful” by Plank Magazine, “thoughtful” by CBC Radio, and “vivid, memorable” by NOW. Jordan’s plays have been produced across the country, most recently at the 2010 Femfest and Summerworks Festivals. A list of works and other information is available at her website, www.jordanhall.ca.

Samuel French originally established the Canadian Playwrights Competition to encourage awareness and growth of Canadian playwriting. The competition is open to all Canadian playwrights regardless of geographic location. Writers from across Canada are invited to submit their best full-length stage plays that are original and have never been published.

Recent Samuel French Canadian Playwrights Contest winners include:

      WELFAREWELL by Cat Delaney
      BINGO BABES by Isabel Duarte
      KITCHEN WITCHES by Caroline Smith
      MAPLE LODGE by Colleen Curran
      THAT DARN PLOT by David Belke

Applications for the 2011 Canadian Playwrights Festival will be accepted starting May 1st. For more on next year’s competition, as well as licensing information for KAYAK and other plays, please visit samuelfrench.com