Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
The Copyright Board of Canada delivered a devastating defeat to Access Copyright on Friday, releasing its decision on a tariff for copying by employees of provincial governments. Yesterday’s post provided a detailed review of the decision, including the Board’s findings on the limits of Access Copyright’s repertoire, the scope of insubstantial copying, and the proper interpretation of fair dealing.
The decision focused on copying within provincial and territorial governments, but much of the analysis can be easily applied within an education context. Indeed, since the Supreme Court of Canada 2012 copyright decisions, there has been a very public battle over the validity of fair dealing guidelines that have been widely adopted by the Canadian education community. I’ve written several posts on the education consensus (here and here) and there are no shortage of the fair dealing guidelines readily available online.
The Copyright Board of Canada delivered a devastating defeat to Access Copyright on Friday, releasing its decision on a tariff for copying by employees of provincial governments. Access Copyright had initially sought $15 per employee for the period from 2005 – 2009 and $24 per employee for the period from 2010 – 2014. It later reduced its demands to $5.56 and $8.45. The board conducted a detailed review of the copying within government and the applicability of the Access Copyright licence. Its final decision gives Access Copyright pennies rather than dollars: 11.56 cents for 2005-2009 and 49.71 cents for 2010-2014.
The financial loss for Access Copyright in the case is obvious as it expected to earn millions from the tariff. With roughly 120,000 full time employees covered by the tariff, Access Copyright’s initial ask would have brought in $9 million in the first five years and another $14.4 million in the second five years for a total of almost $25 million (even its reduced ask envisioned nearly $9 million in revenues). Instead, the Board estimates that the total value of the tariff for the entire period will be $370,000, which is unlikely to cover Access Copyright’s legal and administrative costs (it also does not include revenues from the Province of Ontario, which struck an incredibly bad deal in 2011 by agreeing to pay $7.50 per year per employee).
Canadian Piracy Rates Plummet as Industry Points to Effectiveness of Copyright Notice-and-Notice System
Canada’s copyright notice-and-notice system took effect earlier this year, leading to thousands of notifications being forwarded by Internet providers to their subscribers. Groups such as the Canadian Recording Industry Association argued during the legislative process that notice-and-notice would “pose a long-term problem”, yet the evidence suggested that the system could be effective in decreasing online infringement. Since its launch, there have been serious concerns about the use of notices to demand settlements and to shift the costs of enforcement to consumers and Internet providers. With Industry Canada officials emphasizing that “there is no obligation for Canadians to pay settlement demands,” it is clear that there is still a need for the missing regulations, including a prohibition on the inclusion of settlement demands within the notices.
While the problems with notice-and-notice must be addressed, the leading notice sender says that they are proving to be extremely effective in reducing piracy rates. In fact, the system has proven so successful that a consortium of movie companies now want the U.S. to emulate the Canadian approach. According to CEG TEK, there have been “massive changes in the Canadian market” under notice-and-notice. They claim that piracy rates have dropped by the following rates in Canada:
Harper Letter to Music Canada on Budget Day Confirms Copyright Extension the Product of Industry Lobbying
The government’s decision to extend the term of copyright for sound recordings in the budget may have taken most copyright observers by surprise, but not the music industry. I’ve posted earlier on their extensive lobbying efforts on the issue and how the extension will reduce competition, increase costs for consumers, and harm access to Canadian Heritage. The record of lobbyist meetings gives a hint of the reasons behind the extension, but a letter sent by Prime Minister Stephen Harper that I recently obtained suggests that it all it took was a letter from Music Canada President Graham Henderson to the Prime Minister.
The Harper letter was sent on April 21, 2015, the day the budget was tabled. It states:
Thank you for your recent letter regarding the copyright term for sound recordings. I have reviewed this material carefully, and share your view that the current term of copyright protection for sound recordings falls short of what is required to protect artists and ensure they are fairly compensated for their work.
Please know that, as announced today in Budget 2015, our Government will extend copyright protection for sound recordings from 50 to 70 years. The extension will be incorporated into the Budget Implementation Act, and will be in effect immediately upon passage of the legislation.
I’ve written multiple posts on the government’s surprise decision to extend the term of copyright for sound recordings without public consultation or discussion (surprise, cost to consumers, limited competition, reduced access to Canadian heritage, lobbying impact). In recent days, a further implication has arisen: other groups are now demanding that the government extend other terms of copyright within the law. If the government agrees to those demands, it would result in all works, including books and music, being locked out of the public domain for decades.
CISAC, the International Confederation of Societies of Authors and Composers, has publicly chastised the Canadian government for not also extending the term of copyright for authors to life plus 70 years. The current term of protection in Canada is life of the author plus an additional 50 years. That meets the standard found in international copyright treaties and is what is used in a wide of range of countries including Japan, New Zealand, China, South Africa. Indeed, the majority of people around the world live in systems with copyright protection of less than life plus 70 years.