Responding to ACTRA: Group Calls C-32 a “Disaster” and Proposes Six Part Fix

ACTRA completed a two-day lobbying blitz in Ottawa yesterday, bringing some Canadian television stars to convince MPs that Bill C-32 is a disaster that is bad for consumers and creators.  While ACTRA isn’t proposing anything to solve the consumer problems, it is promoting six changes to Bill C-32.  I review each proposal below, but it is first worth watching an interview on CTV with ACTRA’s Ferne Downey and Corner Gas’ Eric Peterson. Downey makes the startling comment that she is not a proponent of free market theory that users will pay for the content they like.  Meanwhile, Peterson, who starred on a show that aired on free, over-the-air television without any levy but supported through commercials, now claims that “free” will eliminate the creation of new Canadian content.

As for the ACTRA proposals, each is posted below along with some of my comments:

1.    Extend the private copying levy to digital audio recorders

Bill C-32 is not truly technologically neutral as it fails to extend the private copying levy to digital audio recorders. As blank CDs and cassettes become obsolete the levy will cease to exist, eliminating millions of dollars in revenue artists currently rely on to innovate and create new content.

As I have commented elsewhere, there is no support for this proposal within the government and little public appetite for it either.  There are numerous problems with extending the levy:  will it extend to all devices?  How broadly defined is a digital audio recorder?  Is this designed to cover both audio and video copying?  Will rights holders acknowledge that extending the levy fully legalizes peer-to-peer downloading for personal, non-commercial purposes?  Will rights holders support removal of digital lock provisions that would prohibit users from making copies they have effectively paid for through the levy?  How will the proposal guard against market distortions where the levy accounts for the majority of the retail price of the consumer product?  While levies have an intuitive appeal, they raise real concerns on implementation.  I’ve argued it would be better to focus on maintaining guaranteed revenue streams through government support for the continued creation, marketing, and distribution of Canadian content.

2.    Remove the ‘mash-up’ provision from the bill.

Bill C-32 makes it legal for Canadians to remix creative content into new works. This mash-up provision could allow third party providers, such as Youtube, to benefit financially from these creations but fails to compensate creators, all the while trampling on their economic and moral rights. No other country in the world has a law like this that gives away creators’ rights – let’s make sure Canada doesn’t either.

I discussed the mash-up provision in commenting on the writers groups brief.  As I noted there, claims that the provision will trample on economic rights are unfounded, since there are safeguards against a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work.  Moreover, it is surprising to see ACTRA argue against provisions that support remix, when Downey promotes mash-ups and remix in her current President’s message:

One of our members, Drake, is for me the embodiment of the great potential of our changing times. He went from being one of the young stars of DeGrassi: The Next Generation to being international hip hop royalty in large part because of his adaptability. He took his passion for music, posted mixtapes on his Myspace page, and created such a buzz that by the time he released his third mixtape it was downloaded more than 2,000 times in two hours.

The C-32 provision does not cover precisely the same activity, but acknowledging the value of this form of creativity surely merits better than a call for deleting a provision designed to support it.

3.    Put the brakes on the fair dealing expansion

The Bill says any material used for education should be free, without defining ‘education’. Institutions pay the full cost of desks, computers and teacher salaries, why would they not pay for the content deemed valuable enough to use in their classrooms?

This is false. The law does not say that any material used for education should be free.  It says that education should be a fair dealing category.  Qualifying as category only means that the educational use can be analyzed to consider whether it is qualifies as fair dealing.  There is nothing in the law that states that any educational use automatically qualifies as a free use.

4.    Make those who enable online theft pay

Bill C-32 exempts illegal file sharing sites that facilitate online piracy worth millions of dollars from statutory damages.

This is false.  While a new provision targeting some infringing sites excludes statutory damages, the full statutory damages provisions – which carry potential liability of $20,000 per infringement – apply (and would continue to apply) to commercial infringement including file sharing sites.

5.    Make ISPs do their part

The bill’s notice-and-notice regime has no teeth. We need to put greater responsibility on ISPs for their role in copyright infringement.

This is false.  ISPs already spend millions on notice-and-notice systems with no compensation for the effort.  Moreover, the suggestion that notice-and-notice does not work is contradicted by years of experience and studies that show that a majority of users that receive notifications cease placing the infringing file back on file sharing networks. 

6.    Make broadcasters pay their fair share, keep the Broadcast Mechanical provisions

By removing the Broadcast Mechanical provision, Bill C-32 kills the collective licence broadcasters have used for years, when paying to make copies of the music they use, once again taking money out of creators’ pockets. Broadcasters make millions in profit from playing music that artists create, why should they get a free ride?

Broadcasters can defend themselves, but it is clear that they already pay millions in copyright fees and the additional payment for mechanical reproduction has long been a controversial and contentious extra fee.

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  1. At this point, the creators seem to pretty much assume that all consumers are out to get them and not pay them a cent at all. This, to be frank, is to false as to be completely and utterly laughable that it should not even be used as an excuse to do anything. That’s the impression I get from the various different sources, including the pro-creator sources that post here. (I’m a little bitter about this whole debate if you can’t tell.)

    That said, I agree with your assessment on extending the levy, and all those questions should be asked before it’s even considered. I don’t want to finance creators when I buy DVDs to back up data on my computer, or a new phone, and all over various uses some of the things that they want the levies on them to have. Plus there are more inventive ways to do things that they could come up with if they wanted to, but they don’t.

    Also agree with the mashup. Not going to touch education.

    ISP section, if they want ISPs to do more, they should pay the ISPs to do more rather than costing the customers more. Not that I think they need to do more anyway.

    As for Corner Gas, I’m also pretty sure you can watch it online for free via whatever network it’s on website as well.

  2. profjohnfrink says:

    The sooner the dinosaurs of “Canadian Culture” (eric peterson, etc.) take their final bow, the sooner we can begin the journey to a more robust meritocracy.

  3. @Chris: “At this point, the creators seem to pretty much assume that all consumers are out to get them and not pay them a cent at all. ”

    Correction: At this point, “the industry” is out to get as much consumers money for as little possible.


  4. Noticing a pattern
    “This is false”

    Do these guys not know how to read? The continuous lies and misinformation is sickening, unless we are to believe they are flat out ignorant and incapable of understanding law?

    I hope the MPs are going to ignore these stupid comments for that they are. Uneducated and flat out wrong.

  5. Levies
    At this point I start to agree with them. But why should we favor just “the arteests”. Let’s have have levies on everything that can produce “loss of (additional) income”. Like condoms. Do you realize the loss of income that condoms inflict to everyone from baby food and clothes makers to private schools and finally to car makers and house builders? Not to mention the loss in tax income for the government?

    Nap. 🙂

  6. @Napalm
    “Correction: At this point, “the industry” is out to get as much consumers money for as little possible. ”

    True, it is the industry and not necessarily the creator. As some fo the creators who disagree with the industry I’ve seen posting around as well. Unfortunately the industry claims they are doing it all in the interest of the creator, so I tend to use the two terms interchangeably when they are not really. I’ll try to watch that more carefully in the future.

  7. Levies don’t work
    Its just impossible. how do you decide who gets paid and who doesn’t? How can a Levy encourage people to be creative and make art? Its just a technology tax for media giants who don’t want to put any effort into promoting or selling content through new channels they don’t control.

    Maybe so called Canadian talent should start taking a good long look in the mirror and think about why nobody is willing to pay for their content.

  8. Oops

  9. The real irony…
    Yeah, nobody is paying for Corner Gas… nobody is stealing it either. I just checked TPB.


    thats how many people are downloading it right now. With 16 of those people seeders they won’t be getting it any time soon either.

    wow, lots of lost revenue there.

    Stargate Universe (American, obviously) topping the charts with 29,299 downloaders at the moment.

    …as for real broadcast, we have millions tuning it at once to watch mostly american television, broadcast on Canadian networks, and subsidized by Canadian tax dollars.

    What a revolution!

  10. “Meanwhile, Peterson, who starred on a show that aired on free, over-the-air television without any levy but supported through commercials, now claims that “free” will eliminate the creation of new Canadian content.”

    Now, let’s look at the website for Corner Gas. In the credits for the show:

    Produced with the participation of the CanWest Western Independent Producers Fund
    Produced with the participation of the Saskatchewan Film and Video Development Corporation
    Produced with the financial participation of the Saskatchewan Film Employment Tax Credit
    the assistance of the Government of Canada Canadian Film Video Production Tax Credit Program

    I’d say that they are already getting lots of public support for “free” programming.

    Regarding item 4. I suspect that they want to extend liability to websites such as torrent lookups (like The Pirate Bay was). This would mean that the website is liable even if they don’t host the files themselves. Using this logic, the government should be liable for any speeding tickets I get. After all, if they make the roads capable of such speeds, even though they post a speed limit sign they are enabling my speeding.

    Broadcast Mechanical: Simple. If they want the “Broadcast Mechanical” tariff (of which the CMRRA keeps an 8% commission), then the radio stations should be able to charge the publishers advertising fees for playing the songs. After all, radio is the primary way for a recording artist to advertise their work to potential purchasers.

  11. FYI: Bill C-32 says:

    Copyright law threatens Canadian content
    Chris Besse is chair of the Canadian Educational Resources Council and a senior vice-president at Nelson Education Ltd.

    Besse had a letter published in the Vancouver Sun about C-32… here’s the link if anyone’s interested.

  12. ‘Stargate Universe (American, obviously) topping the charts with 29,299 downloaders at the moment.’
    Unless something has changed recently, filmed mostly in vancouver canada.

  13. @Anon-K: the analogy you made of pirate bay to roadways is interesting, but slightly off. Pirate bay isn’t actually used to index significant amounts of legal content that isn’t actually found elsewhere… at best the amount of legal content indexed on the site might simply serve as some sort of exception to show that there are legal uses for the site. On the other hand, plenty of perfectly legal content is distributed via bittorrent, often even exclusively (and perhaps indexed on pirate pay only afterwards, even though that is not the only place one could find it).

  14. No, you can’t have my milk money anymore …
    Let’s be honest up front. The issue here is not about starving Canadian artists having to give up their craft because of the insidious Bill C-32 … it’s about industry control. There is nothing in this bill that will deter, slow down or eliminate piracy. So let’s stop pretending otherwise.

    The solution to copyright infringement is more flexible products and services as well as a good dose of good will on the part of the media industry rather than lawsuits and lobbyists. Unfortunately, the media industry does not want to make any adjustments because it will likely mean less profits for them BUT not necessarily less income for artists who pursue other distribution channels and opportunities.

    ‘Piracy’ is a problem that needs to be addressed but it must be realized that consumers are first and foremost customers, not just a ‘money tree’ to be picked ad nauseam. The media industry has forgotten this as the whole notion of ‘customer service’ has escaped them for years.

    I’m happy to pay for what I use, but I want the freedom to use it as I wish for my own personal needs. I will not copy it and give it away, I will not download it for free. I respect creators, if not their distribution industry.

    BUT, if my rights are trampled on by industry wanting to monetize everything I do then why should I want to support them? The government does not belong in the bedrooms of Canada, neither does the RIAA belong in my living room.

    The relationship between the creators and consumers need to be repaired, the current adversarial approach will do nothing but worsen the situation. There are some ‘pirates’ out there who will download till the cows come home and never buy a thing, and shame on them for doing so, but you will not win them back so you might as well stop trying. Instead, reach out to those who have been disenfranchised by the industry’s tactics and attitudes and offer flexible products and services. Most people are reasonable if they feel they are being treated fairly, but no one likes to do business with a bully.

  15. @Crokett – Well said

  16. More stellar representation for the ‘professional’ media industry groups,0,4999462.story

    If media industry rep execs were paid in parallel rather that inversly to their intellectual talent then the weeding out process would be much more efficient.

  17. @Crockett
    First post is well said, and something I wish more people would actually realize.

    Second post, yeah they pretty much gave everyone who is not interested in looking for themselves a list of sites where they can get things. Probably not the smartest move on their part.

  18. “Downey makes the startling comment that she is not a proponent of free market theory that users will pay for the content they like.”

    This is a prime example of fascism is it not? Considering most Canadians are center-right in their economic ideology, I think this comment just about sums up perfectly the attitude of the “copy-right” ideology. It’s amazing that Canadian creators are supporting such fascist ideology.

  19. James Moore on CBC Power and Politics:

    “Artists don’t have a right to an income, they have a right to engage in the market.”

  20. @Jason K
    “This is a prime example of fascism is it not? Considering most Canadians are center-right in their economic ideology, I think this comment just about sums up perfectly the attitude of the “copy-right” ideology. It’s amazing that Canadian creators are supporting such fascist ideology.”

    I’ve made this assertion a number of times much to the dismay of some of the more “pro C-32” group, who tended to be quite insulted by such comparisons. I’ve even gone so far as to break down each of the various elements that each group wants and to show the similarities to various fascist ideologies.

  21. Now ad C-32 to C-50, C-51 and C-52 and the digital fascist regime is complete. Benito would be proud!!! Harper, Moore, Clement, et al should be ashamed!!!

  22. @IamME
    Historically those that engage in the creative arts as a profession usually end up on the far left, if not off the left cliff with respect to political ideology. Creative products are considered by most consumers to be a luxury, not a necessity. Minister Moore + Clement support the market. Currently the national digital strategy part is still undergoing public consultation. Copyright should have come after the digital strategy. There is a lot of walls to break down with respect to the teleco’s and ISP’s before a viable new media creative market can be sustained in Canada. There’s a power battle going on right now that’s also effect potential income for creators in the new media market. Blaming the woe’s of creators the market is understandable, but punishing consumers and users for the lack of market innovation considering the problems that are before us makes no sense, and one of the reasons why I strongly disagree with anyone (including Geist) who attempts to even put a notice in the mail at this point for copyright infringement, let alone a court case, or loss of Internet connection.

    I think more emphasis on digital infrastructure needs to be put into place first, than revisit the copyright issue in the future, when the market has time to settle itself and consumers needs are being actively met (which they are not right now).

  23. Make ISPs do their part
    I’ve always had an issue with this idea…not that I think it could be done in even a remotely reliable manor. ISPs are nothing more than a “service” provider. No different than say Shaw Cable, Bell Satellite, Telus Phone, etc. Is a cable company held responsible for someone recording a movie to a VCR or PVR? Of course not. But they provide a service which allows a subscriber to copy its content. No different than an ISP. Is a phone company held responsible for someone making a crank call? Of course not. It would be obscene to suggest they should. Why should ISPs be treated differently? Can Torrent providers be held liable? I would like to say no as they are only service providers, but an easy scapegoat is needed and that’s low hanging fruit. On top of that, suing customers proved to be less than lucrative, unless, of course, you make p0rn. The settlement business there can be quite lucrative.

    Will I download less TV shows if all these bills, by some divine fascist intervention, get passed unmodified? Not that I download a terrible amount, but probably. They will have beat me…at least they’ll think they have. On top of that, I would probably lower my Internet package since I would no longer need the bandwidth.

    Now for the real effect if I stop downloading TV shows. I won’t be aware of new shows since I won’t be looking for them and I won’t magically start watching more TV since time constraints in my life simply do not allow the viewing of scheduled television and won’t for the foreseeable future. We don’t watch ANY “adult” TV on our $70/mo Bell HD satellite subscription…only makes me wish Treehouse came in HD. ALL “adult” TV we watch is either purchased on DVD or downloaded…And more often than not ultimately purchased on DVD and watched between 9PM and 12AM in the evening. Most often, the downloads are nothing more than placeholders that reminds me until I buy them, usually before I ever get around to watching them. For me, no download means no interest…NO SALE!!! The real-world result is that I won’t buy them and will be oblivious to their existence. I’m not alone here, I know at least 5 other people in my dept alone that follow the same pattern. There are less than 70 people in my dept. This is a growing trend, especially in rural areas, where streaming in less of an option. I have problems playing standard def YouTube vids most the time. I’ll tell you they look “real nice” on a big screen HD TV. Streaming HD is out of the question. As a note, I believe every TV show I download personally is also available in my Bell TV subscription. I could PVR it, but I really don’t see the difference. I’m still going to fast forward through the commercials. Every explanation I’ve ever heard was weak and paramount to splitting hairs. In all reality, it may be encoded differently, but it’s still a digital “copy”. The problem I have with a PVR is that there is no data security, no redundancy. You could spend vast amounts of time recording things only to have the drive fail and lose everything. A common practice used to be to record stuff over the summer to watch over the winter…I’m not sure if it still is. A drive failure could seriously hamper that for a lot of people.

    The short of it is that this doesn’t hurt me in the least. There is enough content easily, and legally, available on the Internet from all over the world that like music, which I now listen to primarily little-known European artists, I literally have almost unlimited options. It only hurts my ISP and those who profit from the sale of DVDs. Well, that’s a misnomer…I’ll still spend the money on DVDs…just, likely, different DVDs than these particular TV shows…the money will probably go to some independent and/or foreign movies.

  24. Interesting
    I agree, pretty interesting !

  25. @Mark
    Agreed, however my point was that charging sites like The Pirate Bay, and any other torrent indexing sites, with encouraging copyright infringement is pointless. While a site like TPB may have in fact generally indexed infringing torrents, do they, in fact, know that what they were indexing was infringing? I could have put up something called “Corner Gas” about me passing wind in the corner of my house. Would that have been an infringement?

    Using the same analogy, why isn’t Craigslist and a number of newspapers charged with assisting communicating for the purposes of prostitution?

  26. Market
    @Jason: “James Moore on CBC Power and Politics: “Artists don’t have a right to an income, they have a right to engage in the market.” ”

    Fair enough. Unless the market is rigged by a cartel.


  27. If I have to pay for it through fees on media, then I should be able to download it free.
    Currently I purchase my Movies on DVD and Blu-ray. I rip them to my network storage drive. Why not, I paid for them right?
    However, if they start charging me fees on media players, hard drives and media then I will have to assume that, since I have already paid for it, I can download any media I want from torrents like Pirate Bay and not feel guilty about it. After all, I already paid for it right?

    Why not just charge people a fee on their yearly tax bill and let everyone download everything they want free? Same thing isn’t it?

    Any artists reading this,just to let you know if I start getting charged for things I am not taking, then I am going to start taking them.