Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
Music Canada Reverses on Years of Copyright Lobbying: Now Says WIPO Internet Treaties Were Wrong Guess
In the decade of lobbying leading up to the reform of Canadian copyright law in 2012, the music industry had one core message: Canada needed to implement and ratify the World Intellectual Property Organization’s Internet treaties. While many education, consumer, and business groups expressed concern that the digital lock rules in the treaties would harm innovation, the music industry was insistent that the WIPO Internet treaties represented an essential component of digital copyright reform. The lobbying campaign was successful as Canada proceeded to implement and ratify the treaties. The legislation is still relatively new, but in a stunning reversal, the head of Music Canada now says that the drafters of the WIPO Internet Treaties were just guessing and suggests that they guessed wrong.
The intensity of the lobbying for the WIPO Internet treaties is difficult to overstate. In 2004, Billboard reported that 26 Canadian industry groups were pressuring the government to ratify the treaties. In 2006, Graham Henderson, president of the Canadian Recording Industry Association (later Music Canada), wrote an op-ed in the National Post titled “Protect Artists: Reform Canada’s Copyright Laws” which argued that:
Canadian Heritage Minister Mélanie Joly launched her surprise national consultation on Canadian content in a digital world last April with considerable excitement for the possibilities of revolutionizing policies born in an analog era. Joly spoke enthusiastically about the potential for Canadian creators to use digital networks to reach global audiences and for all stakeholders to rethink the cultural policy toolkit.
My Globe and Mail op-ed notes that submissions to the consultation closed last week and despite the hope for new, innovative thinking, many of Canada’s largest cultural groups placed their bets on extending a myriad of funding mechanisms to the Internet. Rather than overhauling older programs, the groups want those policies expanded by mandating new fees, costs or taxes on Internet services, Internet service providers, Internet advertisers, and even the sale of digital storage devices such as USB keys and hard drives.
President-Elect Donald Trump has ended any further speculation about the future of the Trans Pacific Partnership by announcing that he plans to formally withdraw from the agreement on his first day in office. I’ve written extensively about why ratification for Canada would be a mistake and argued last week in the Globe that Canada should use the death of the TPP as an opportunity to re-examine its approach to trade agreement negotiations including working toward greater transparency, focusing on tariff reduction rather than regulations, and dropping controversial ISDS provisions.
The need for Canada to wait on the U.S. has been readily apparent for months. As currently structured, the TPP cannot take effect without the U.S. since entering into force requires ratification by at least six signatories who represent at least 85 percent of the GDP of the countries in the original deal. That provision effectively gives both the U.S. and Japan veto power. With the U.S. pulling out, the agreement will not enter into force no matter what Canada (or anyone else) does.
The central role of the U.S. in the TPP is no accident. For most TPP countries, access to the U.S. market was the primary reason for entering into the agreement and as Japanese Prime Minister Shinzo Abe said over the weekend, “the TPP would be meaningless without the United States.” Indeed, the reason Canada, Japan, and Mexico all joined the TPP talks late was that without a clear commitment from the U.S., the agreement was of limited value.
The Canadian chapter of the International Institute of Communications held their annual conference in Ottawa this week, headlined on Thursday by back-to-back appearances from Canadian Heritage Minister Melanie Joly (in a question and answer session with Jennifer Ditchburn) and Innovation, Science and Economic Development Minister Navdeep Bains.
Both ministers spoke primarily about their key policy initiative, namely digital cancon (Joly) and innovation (Bains). Joly’s cancon discussion again emphasized the benefits of exports and foreign investment, but she also indicated that all policies are still on the table, including an ISP tax and efforts to bring Internet companies such as Netflix “into the system.” Joly was followed by Bains, who used his speech to sketch out the foundation of his forthcoming innovation strategy. His focus included universal, affordable Internet access and telecom competition (which raises real doubts about whether the government will approve Bell’s proposed purchase of MTS).
As Canadian Heritage Minister Melanie Joly’s consultation on Canadian content in a digital world nears its conclusion – comments are due by November 25th – the big issue remains how to pay for an ambitious culture agenda. Joly has emphasized the benefits of expanding exports, which she hopes will bring foreign dollars and more foreign investment in the sector. While a stronger global presence makes sense, many of the established cultural groups have voiced opposition to measures designed to attract greater foreign participation if it risks reducing the guaranteed Canadian role in productions.
For example, the CRTC’s decision to loosen some Cancon rules has elicited ongoing anger, despite the fact that the change would likely make productions with foreign entities more attractive, thereby enlarging the overall size of the industry in Canada. With similar opposition to market-based reforms designed to reduce dependence on the current system (pick-and-pay television channels, gradual reduction of simultaneous substitution), there is little reason to believe that Joly can count on support for expanded exports to pay the bills.
This post unpacks some of the cultural policy options that have surfaced in recent weeks. The post stems from a panel discussion at the University of Ottawa featuring a paper by Richard Stursberg and commentary from myself, the Globe’s Kate Taylor (who covered the panel here), and ACTRA’s Ferne Downey (Stursberg’s paper is here, full video of the event here).