My recent series reviewing the Industry Committee’s copyright review (process, evidence, witness balance, citation) was about more that just why the decision to ignore the Canadian Heritage committee study on artist remuneration was justified. The series provides a data-backed assessment of the quality of the consultation of the respective committees, which is inextricably linked to their final recommendations. The better process is important because when comparing the recommendations from the two committees, the Industry committee consistently provided deeper analysis even in areas where there was agreement. The better analysis is not a coincidence: better process generates better policy and the Industry committee engaged in broader consultations in which it heard both from more creators and more users than Heritage.
For example, the music industry is promoting its value gap claims today with Heritage committee chair Julie Dabrusin in Toronto. The industry played a prominent role at both committees: ACTRA, ADISQ, Artisti, CMPA, CMRRA, CPCC, Guilde des musiciens et musiciennes du Québec, Music Canada, Professional Music Publishers’ Association, Re:Sound, SOCAN, and SODRAC all appeared as witnesses before both committees. Moreover, groups like CIMA or artists such as Bryan Adams, who only appeared before Heritage, provided briefs to INDU that were cited in their report. The Industry committee also heard from many witnesses in the music industry who did not appear before Heritage such as Music Nova Scotia and Third Side Music as well as many more individual musicians including David Bussieres, Denis Amirault, Luc Fortin, and Pierre Lapointe.
With a broader Industry committee consultation (it heard from many more commercial and individual users as well), the result was more depth on key issues. There were several areas of general agreement between the two committees with respect to the music industry. First, the most obvious source of agreement was that both committees recommended earlier reversion rights for creators, reflecting concern about the imbalance between artists and intermediaries such as record labels. Bryan Adams led the fight for a change, which the Heritage committee adopted. The Industry committee downplayed industry claims about artists’ inability to exploit their works, ironically citing Music Canada’s Graham Henderson:
The notion that providing a termination right to creators would somewhat hinder the economic exploitation of copyrighted content suggests that creators lack entrepreneurship, but like Graham Henderson, President and CEO of Music Canada, said, ‘every musician is a businessman, now more than ever.’
Second, the two committees both recommended new limits on the radio royalty exemption in the Copyright Act. Both committees want the exemption maintained for independent and community-based radio stations, but an end to exemptions that ultimately benefit large media companies.
Third, the committees also declined to support expanding the private copying levy, either with new levy or tax on digital devices or by way a new funding program for the industry. The Heritage committee mentions the industry proposal but does not adopt it, while the Industry acknowledges the conflicting evidence and settles on further study of the issue.
Yet more striking are the areas where the committees do not agree. The Industry committee copyright review expresses concern about copyright term extension, recommending a registration process to mitigate against the harm. In a comment that says far more about the limits of the study and its approach than the issue, the Heritage study says “no witnesses expressed outright opposition to extending of the copyright term from 50 to 70 years after death” (Bryan Adams actually did oppose term extension in his written submission to the committee). A comparison of the analysis shows one committee heard from a spectrum of perspectives and understood the complexity of the issue, the other did not (or chose to ignore it).
The same is true for website blocking and other efforts to increase liability and regulation for intermediaries and online services. The Heritage committee embraces new regulation, while the Industry committee engages in lengthy analysis that warns “no entity is entitled to safe harbour exceptions.” However, having heard evidence about the negative impact of eliminating safe harbours, the committee seeks to ensure that exceptions “reflect the rights of rights-holders and users alike.”
In fact, even on a core music industry issue – the definition of a sound recording – the difference in analysis is notable. Heritage recommended changing the definition to allow sound recordings used in television and film to be eligible for public performance remuneration with Music Canada arguing the proposal had received support from artists, producers, and rights holder organization. But Industry rejected the change, fearing that reforms would result not in upfront payments but rather the potential for royalties linked to cinematographic works. The committee said it was:
wary of recommending any measure that would compromise payments to performers, especially at a time when Canadian musicians and singers are among the few members of the music industry who do not benefit from this industry’s growing revenues
The approach again illustrates the difference between the two committees. Heritage simply adopted the music lobby approach, while Industry grappled with more data points from more stakeholders to arrive at a more sophisticated analysis of the likely outcome of the policy reform.
The Industry committee copyright review ultimately rejected most of the music industry’s proposals, not because the committee “despises creators” (as one group claimed), but rather because it engaged in a more comprehensive consultation leading to better data and better analysis. The gap between Industry’s inclusive approach and Heritage’s more limited approach is felt throughout the two reports, providing a vivid illustration of the benefits of inclusive policy processes that encourage and listen to a broad range of perspectives.