Periodical Writers Association of Canada (PWAC)

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

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Submission from Periodical Writers Association of Canada (PWAC) received on September 14, 2001 via e-mail

Subject: Response to the Government Copyright Reform Launched Jointly by the Copyright Policy Branch of the Department of Canadian Heritage and the Intellectual Policy Directorate of Industry Canada on June 22, 2001

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The Periodical Writers Association of Canada (PWAC)
Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 1 of 14
The Periodical Writers Association of Canada (PWAC) represents more than 525
independent professional writers who earn their living by contributing to magazines,
newspapers and other periodicals, in print and on-line. Our members are self-employed
entrepreneurs, each of whom operates his/her own small business.
PWAC members are talented professional writers with a proven record in publishing (to be
eligible for PWAC professional membership, a writer must have a substantial body of
published work). Our members make an important contribution to Canada’s periodical
industry. They add diversity to the voices in Canadian newspapers and play a central role in
telling Canadian stories to Canadians and to the world. Our ability to assert our copyright is
essential to enable us to earn our living. Since all PWAC members frequently refer to
copyright material and the public domain to create their stories, however, our concern for
protecting copyright is balanced by an equal concern for protecting access for researchers.

PART I Summary of PWAC’s Response to the Government’s Three
Consultation Papers on Copyright Reform

PWAC offers 15 specific recommendations that we feel will bring the Copyright Act up to
date and clarify the ‘market rules’ surrounding the use of digital rights. These
recommendations are bulleted and highlighted in bold throughout the document.

A Framework for Copyright Reform
PWAC agrees that Canada’s copyright law must promote both the creation and the
dissemination of works, and that the law must be updated to ensure that Canadians’ works
are protected and internationally available. We recognize the urgent need for new
international standards of copyright protection in a world in which copyright legislation has
not kept pace with the challenges that are arising from rapid technical developments,
particularly in the field of digital communication.

PWAC supports the ratification of the two WIPO treaties concluded in 1996
and signed by Canada in 1997, and we recognize that the copyright reform
process has been scheduled to make that possible.
We also look forward to responding to similar consultation papers on other issues of
concern to us, including:
· Access issues
· Database protection
· Government as owner and user of copyright works
· Rights management in an on-line environment
· Technology-enhanced learning
· Term of protection
· Traditional knowledge and folklore
· Transitional period for unpublished works (section 7).The Periodical Writers Association of Canada (PWAC)

Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 2 of 14
Consultation Paper on the Application of the Copyright Act’s Compulsory
Retransmission License to the Internet
In a digital age, we do not feel that Canada’s Copyright Act is specific enough to prevent
misunderstandings when it comes to an author’s work being transmitted via satellite, the
Internet and other transmission vehicles, especially in cases where authors are members of a
creative team putting together multimedia presentations and other compilations.
If the compulsory license of the retransmission scheme in the Coyright Act is
extended to the Internet, authors must share in the revenues from tariffs
attributable to works by them.
Consultation Paper on Digital Copyright Issues
Of the three Consultation Papers the government released on June 22, 2001, this paper
raises issues that are of the most concern to PWAC. A detailed response to the Paper will
follow this summary of our main concerns regarding Digital Copyright Issues.
PWAC agrees that the revolutionary changes in digital technology over the past decade
represent important opportunities for Canadians to share their stories with each other and
with people throughout the world. The members of PWAC, as writers of works in the short
form, are ideally suited to working in the digital environment as it exists today. In fact, our
association is at the forefront of using these new technologies to provide new services for
our members.
We have found, however, that the rapid change of technology has created imbalances in the
industry, which limit the ability of independent creators to profit from their copyright
materials.
· The first is an imbalance between copyright owners and educational institutions,
archives and libraries.
· The second is an imbalance between independent copyright owners and large
corporations that purchase copyright licenses.
· The third is that some of our members who have sought international markets have been
uncertain about their rights and have been unsure how to seek redress when they felt
that their copyright was infringed.
Imbalance between Copyright Owners and Copyright Users
We agree that some of the exceptions the Canadian Copyright Act currently provides to
educational institutions, archives, and libraries are necessary. However, we do not believe
that these rights should be subsidized by writers, especially when a collective society,
CanCopy, exists to handle licensing and remuneration. Also, most of these exceptions do
not specify or limit the use of digital technologies, and therefore create a misunderstanding
about what might be acceptable given the ease of transmitting entire texts to large numbers
of people..The Periodical Writers Association of Canada (PWAC)

Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 3 of 14
As researchers, we support some fair dealing and exceptions, but would like
exceptions limited to those situations that arise when the material is otherwise
unavailable under license from a collective society.
Authors should be granted a specific ‘making available’ right, to make it clear
that they have the exclusive right to make works available to the public,
including the right to make work available on an on-demand basis to
individual users.

We support a ‘making available’ right in the Copyright Act that is specific
enough so that all creators can charge appropriate fees for their work.
Imbalance Between Independent Copyright Owners and Large Corporations That
Purchase Copyright Licenses

We believe that because the Copyright Act is not specific regarding digital rights, this has
led Canada’s largest publishing firms to use creators to subsidize their on-line efforts. The
ease of transporting content digitally from one format into another has led traditional
publishers to believe that they are not required to license new digital uses at fair value,
despite the willingness of these publishers to compensate the web designers, Internet service
providers and database companies that make such transitions possible.
This problem is particularly difficult for freelance writers who must negotiate new
agreements to cover the digital use of copyright material with traditional publishers.
Publishers are demanding sweeping licenses for digital use of material with little or no
remuneration and will withdraw contracts for print assignments if digital licenses are not
provided. Freelance writers thus find themselves forced to give away the opportunity to
profit from digital licenses in order to maintain their traditional revenues from print licenses.
Staff creators also suffer from this imbalance. Unlike freelance writers, however, staff
writers benefit from unions that ensure that writers receive benefits, salaries and bonuses in
proportion to the value of the new digital uses made of their work.
We recommend several changes to the Copyright Act that would help protect all creators:

Digital transmissions must be identified in the Act as specific new uses.
The Act must be sufficiently clear to enable writers to obtain fair remuneration
for each new digital use. Possible examples of usage include web pages, web
books and database inclusion.
The Act must be sufficiently clear to force fair remuneration for any digital
transmission that follows any reformatting of content..The Periodical Writers Association of Canada (PWAC)
Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 4 of 14

We support clauses in the Copyright Act creating new obligations concerning
technological measures and rights management information, which will help
prevent copyright infringement.
We support specific clauses that would prohibit the manufacture and sale of
infringement devices.
We support clauses in the Copyright Act to specify the use of rights
management information, including a clause that creates sanctions for anyone
knowingly providing false rights management information.
Freelance writers are now taking some of Canada’s largest publishing companies to court to
seek redress for copyright infringement that began with the digital age. These large
companies have responded to the lawsuits by offering contract terms that supersede the
spirit of the Copyright Act. Most contracts are presented to writers on a “take it or leave it”
basis. Publishers have also been known to withhold compensation for finished work until
writers sign such contracts. Some publishers are misinforming Canadians about what the
current law allows. At the same time, it is difficult and expensive for independent creators to
seek redress on a national level. We believe that the current proposals to allow class actions
in federal court, if accepted, will help. Still we’d like the courts to offer simpler rules for
creators to enforce the Copyright Act.
To redress this issue, we recommend two specific actions the government can take:

Special simplified Federal Court rules should be established to enable creators
to easily enforce the Copyright Act throughout Canada.
An independent body should be established to provide a forum for complaints
from creators and identify copyright law violations.
Protecting Canadian Copyright in International Markets

Many of our members are negotiating new contracts for their work in other countries. In the
present situation, writers do not know how to proceed when their copyright is infringed in
these cases. PWAC recommends two changes to Canada’s Copyright Act to give
Canadians equal benefit on the international scene:

The Act should increase statutory damages to a minimum of $1,000 per
infringement and a maximum of $45,000 to more closely match copyright law in
the United States.
Canadian creators should have the right to sue those who infringe copyright in
Canadian courts, regardless of where the contract was made..The Periodical Writers Association of Canada (PWAC)
Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 5 of 14

PART II Detailed Response to Consultant Paper on Digital
Copyright Issues
INTRODUCTION
PWAC heartily endorses many of the objectives outlined in the Introduction of the
Consultation Paper on Digital Copyright Issues, shown in italics below. Our responses to
specific issues raised in this section follow.
ICTs, and especially the Internet, are thus presenting an important opportunity for more
and more Canadians to make their presence felt both in Canada and world wide, whether
it be in terms of culture, identity or commerce.
As creators, more specifically, as suppliers of written content for digital media, freelance
writers recognize that ICTs represent a great opportunity to disseminate our works, and thus
make Canadians’ presence felt in Canada and around the world. We believe our
recommendations regarding changes to the Canadian Copyright Act will facilitate the job of
freelance writers in making Canadians’ presence felt globally.
... one of the government’s key priorities, as part of this agenda, is to help Canada
become a world leader in supplying on-line content as well as exciting new software and
applications.
PWAC endorses this goal. A strong Canadian presence in supplying on-line content can
only be beneficial to us since, as writers, we are the principal suppliers of on-line content.
[The] Internet is an ideal place to tell the world about our country, our people and culture,
our abilities and achievements, our history and hopes.
PWAC agrees that the Internet represents a great opportunity for Canadians to tell their
stories. The Internet represents increased opportunities for Canadian freelance writers,
because they are the ones who tell these stories. Internet content rests on four foundations:
graphic creators, musicians, choreographers and writers. Without these four groups of
creators, no Canadian stories can be told; yet unfair business practices are driving writers
out of the periodical industry.
The Internet is rapidly emerging as an important medium for the sale and dissemination of
many different kinds of goods and services, including copyrighted works.
Freelance writers make their living selling publication rights for copyright works, so the
increased opportunities the Internet provides represent increased opportunities for us. In
fact, our association is at the forefront of using these new technologies to provide new
services for our members. We have developed important tools, such as PWAC-L, a list
serve that enables members to communicate between themselves, and Writers.ca, an on-line
directory to our member writers. We are currently considering developing an on-line
directory to magazines and newspapers. The Internet has enabled many of our members to
create on-line listings of their services and to solicit business with international publications
in the United States, Europe, Australia and elsewhere..The Periodical Writers Association of Canada (PWAC)

Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 6 of 14
However, it is urgent that the Copyright Act be updated to include digital protection for
creators and that ‘market place rules be clarified’ in order for us to take advantage of the
emerging possibilities of the Internet.
The protection of content balanced with the needs of users, is vital to the growth of
electronic commerce...
We agree. There is, however, an imbalance between independent copyright owners and
large corporations that buy copyright licenses. As independent copyright owners, we are
alarmed by present market practices concerning digital use of copyright materials by large
corporations, which have hindered our ability to earn our living during the last fifteen 15
years. We heartily endorse the conclusions of The Canadian Electronic Commerce Strategy
that Canadian governments, in consultation with the private sector, must move quickly to
clarify ‘marketplace rules’. Lack of clarity in both the Copyright Act and in ‘marketplace
rules’ concerning copyright is greatly hindering the ability of many independent periodical
writers to earn their living. The following is a brief explanation of how the environment
created by ICTs has hampered freelance writers’ businesses.
Freelance writers make an important contribution not only to Canadian culture, but also to
Canada’s media industry, and by extension, to the Canadian economy. A PWAC study
done in 1996 indicated that approximately 18,000 Canadians work in the publishing sector
on a freelance or contract basis, providing work valued at $288 million. Freelance writers
provide an estimated 15% of the content of Canada’s daily newspapers. Almost all of
Canada’s national, regional, local and trade magazines are dependent on freelance
contributions. To be more specific, prestigious national publications like Saturday Night
Magazine, Report on Business Magazine, Reader’s Digest, Canadian Living, Chatelaine,
L’actualité, Châtelaine (French edition), Coup de Pouce, Homemakers, Madame au Foyer,
Canadian Geographic, La Revue Commerce, Les Affaires, enRoute, Gardening Life,
Starweek Magazine, Western Report and Westworld COULD NOT PUBLISH without the
contribution of freelance writers, researchers, proofreaders and editors. Freelance writers
offer magazines specialized knowledge and original story ideas that writing staff alone
cannot supply.
Freelance contributions are essential to ensure that Canada’s vast geographic and cultural
landscape is fairly represented in national magazines and newspapers, almost all of which
are located in Toronto and Montreal. Without freelance writers, Canada’s national media
could never hope to discover compelling stories of Canadians living in every corner of the
country.
Freelance writing is not as viable as it once was. While the major publications have
increased profits with improved digital technologies, writers’ incomes have dropped.
According to a study by the National Writers’ Union in the United States, fees for freelance
writers have decreased by more than 50% in real terms since the 1960s. Many Canadian
writers concur, noting that rates for freelance contributions have not increased in the past
twenty years.
“My income has gone down by about $6,000 in the last five years.”
-Freelance writer from New Brunswick.The Periodical Writers Association of Canada (PWAC)

Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 7 of 14

The Copyright Act should include provisions that clarify freelancers’ rights to control and
profit from their work. The Copyright Act already clearly distinguishes periodicals as
distinct forms of publications, particularly in Article 13(3), which states:
Where the author of a work was in the employment of some other person under a contract of
service or apprenticeship and the work was made in the course of employment by that person,
the person by whom the author was employed shall, in absence of any agreement to the
contrary, be the first owner of the copyright, but where the work is an article or other
contribution to a newspaper, magazine or similar periodical, there shall, in the absence of
any agreement to the contrary, be deemed to be reserved to the author a right to restrain the
publication of the work, otherwise than as a part of a newspaper, magazine or similar
periodical.
This article protects employed periodical writers, who are able to prevent their work from
being used outside of the newspaper, magazine or periodical for which they work. Freelance
writers are paid less for their works than are staff writers; they are not paid any benefits; and
they cover tax, insurance and technology costs independently like any small business, yet
they have nothing to protect them from unfair practices by large corporations.
Freelance writers earn their living selling rights. Until the arrival of ICTs, freelance
contributors worked on the assumption that they were selling First Publication Rights to
their stories, and retained copyright for their material contracts. Writers would, for instance,
license a feature article in five or even ten different non-competing markets, sometimes in
slightly different forms, thus doubling or tripling the fee they were paid for the original
contribution. It was commonly understood between writers--and still is--that this is the
ONLY way to make a sufficient living as a freelance periodical writer, particularly as the
actual fees paid for freelance work have not increased in the last TWENTY YEARS. (This is
surely the only industry in Canada where this is the case.)
The arrival of ICTs has had the effect of completely changing the rules for freelance writers.
The main catalyst was not the Internet, per se, but the ability of large corporations to use
digital means to easily transfer written material across large distances, often between distinct
publications in the same chain. Corporations began offering writers small supplements
when newspapers in non-competing markets reprinted their articles, instead of doubling or
tripling the original payment, as was once the case. Freelancers were forced to find
alternatives to the publications run by large corporations.
“Most of my publication credits have been with magazines and Web sites. I’ve pretty
much avoided the newspaper market due to the rights issue. Most of the work I do is
for independent publishers of smaller trade and specialty mags. I’ve done very little
work for the major publishing houses due to their unacceptable terms.”
-Freelance writer from Manitoba
In other cases, freelancers have left the market altogether.
“I have quit freelancing, after doing it full-time for about 15 years, because I felt the
copyright environment was so oppressive that there was no future in it.”
-Freelance writer from Quebec.The Periodical Writers Association of Canada (PWAC)

Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 8 of 14
When the issue first arose, there were fair proposals from publishers.
“Before web rights became a hot button issue--I think it was 1997 or so--they offered
a new contract with a word rate increase for web rights.”
-Freelancer from Quebec
We have noticed that opportunities for freelancers to profit from digital uses of their work
are diminishing over the years, as publishers seek to stretch the limits of the Copyright Act
past what we believe is legal. Some publishers now maintain that digital uses of texts do not
constitute new uses of text. This misunderstanding has led some Canadian publishers to
widely violate the Copyright Act by placing freelance texts in databases, selling texts
individually and using them on their web sites without freelance writers’ knowledge or
consent and without compensating freelance writers for the use of their work. The
Copyright Act needs to clarify that each specific digital use is a specific new use.
“All types of media now insist that writers sign Draconian contracts turning over all
rights, world rights, for all technologies now in use or yet to be invented. The writer
must sign these contracts or look elsewhere for work.”
-Freelancer from Quebec
PWAC recognizes that the protection of content must be balanced with the needs of users.
Most independent writers are both creators and users of copyright material and are
interested in both protection of and access to copyright material. Yet as members of the
“copyright sector” we count ourselves among those who have:
... suggested that their willingness to embrace the Internet as a channel for disseminating
their works or making them available ultimately depends on their ability to prevent or
discourage unauthorized copying and distribution activities which are easily carried out in
the digitally networked environment.
Mostly, we agree with other rights holders that in order for Canada to be an important
player in the emerging digital economy, current efforts need to be further bolstered by
certain amendments to the Copyright Act to ensure that, on a practical level, the Act
continues to be meaningful, clear and fair.
Digital transmissions must be identified in the Act as specific new uses.
We feel especially strongly about the following statement:
Some rights holders consider that their ability to assert their copyright in relation to a
work or other protected subject matter is considerably diminished in the Internet
environment once the material is made available in that environment.
Freelance writers have had considerable difficulty asserting their copyright in the digital
environment. As we explained above, we are concerned by the ‘Internet environment’
(ISPs) but more directly by the ‘Digital Environment,’ which has allowed publishers to
circumvent the normal avenues by which writers have traditionally been able to assert their
copyright..The Periodical Writers Association of Canada (PWAC)
Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 9 of 14

Finally, with regard to the following question raised in the Introduction:
Do the challenges to copyright truly represent challenges to core copyright principles or
are they primarily challenges to existing business and distribution models?
PWAC members agree that the ‘challenges to copyright’ faced by freelance writers are
mainly a result of ‘existing business and distribution models’. More specifically, PWAC
believes that in the present conditions, publishers are violating the terms and the spirit of the
Copyright Act.

CONTEXT
Re 2.1 Early Domestic Initiatives
PWAC endorses the copyright consultation process that the Canadian government is
carrying out. In PWAC’s view, however, there are issues with the current Copyright Act.
Some provisions need fine-tuning for a digital age.
For example, there is now no reason why schools or even individuals should not be able to
locate a copyright holder in most instances. Copyright holders are easy to find on the
Internet or by other traditional means such as through publishers, collective societies or
professional associations. Even in the rare cases where Copyright Holders cannot be found,
payments can be made to a collective society, who will hold them in trust while continuing
efforts to find the copyright holders.
Also, we believe that the Canadian Copyright Act currently gives too many exceptions to
educational institutions, libraries and archives, particularly when digital technologies make
these exceptions more open to abuse than they have been in the past. It is very easy to copy
material off the Web for educational use and transmit it digitally, bypassing the requirement
to gain permission for the use of such works. In PWAC’s view, exceptions in the
Copyright Act are strongly biased to the needs of educational institutions, to the detriment
of creators. In an educational system where owners of software licenses, various types of
consultants and the manufacturers of photocopy machines are paid for their services, there
is no reason freelance writers should not be equally compensated. Freelance writers make
their living licensing rights. Only writers are expected to donate their services to educational
and other public institutions free of charge.

As researchers, we support some fair dealing and exceptions, but would like
exceptions limited to those situations that arise when the material is otherwise
unavailable under license from a collective society..The Periodical Writers Association of Canada (PWAC)

Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 10 of 14
Finally, PWAC endorses the inclusion of ‘statutory damages’ for copyright infringement.
However, we feel these penalties are too low.
“I’d like to see larger penalties for illegal use of copyrighted material.”
-Freelance writer from Alberta

The Act should increase statutory damages to a minimum of $1,000 per
infringement and a maximum of $45,000 to more closely match copyright law in
the United States.

Re 2.2 and 2.3 WIPO Treaties - Revisited in the Domestic Context
We have two recommendations related to this issue:
PWAC supports the ratification of the two WIPO treaties concluded in 1996
and signed by Canada in 1997, and we recognize that the copyright reform
process has been scheduled to make that possible.
Canadian creators should have the right to sue those who infringe copyright in
Canadian courts, regardless of where the contract was made.
CORE PRINCIPLES

Re 3.1, which states: The framework rules must promote Canadian values.

PWAC agrees that a framework must facilitate the use of the digital environment for
Canadians to communicate with each other and with the world.

Re 3.2, which states: The framework should be clear and allow easy, transparent access
and use.

PWAC agrees with the objective to dispel confusion for all Canadians about the
boundaries of legitimate uses of works on-line.
The ‘boundaries of legitimate’ use have been a subject of great concern to freelance writers
in the last 15 years. Freelance writers have suffered considerable damages because of
illegitimate uses of their works on-line.
Because of the availability of text in digital format, and the low cost and ease of reproducing
such text, publishers and private companies have been able to locate and publish written
material in a manner not imagined when Canada’s Copyright Act was drafted. The result
has been that publishers and private companies frequently bypass writers altogether in the
publishing process, neither obtaining the required permission to use material, nor
compensating writers for publishing their work. In PWAC’s view, such practices by
publishers are illegal. Still, we recommend that the Copyright Act clarify the situation by
specifying that digital transmissions of text be licensed as specific new uses rather than
allowing them to fall simply under the reproduction and authorized communication rights.

Digital transmissions must be identified in the Act as specific new uses..The Periodical Writers Association of Canada (PWAC)
Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001

Prepared for September 15, 2001
_____________________________________________ 11 of 14
Canadian freelance writers have filed several class action lawsuits to protect our copyright
from infringement by publishers in several provinces, but we would have liked the process
to be national in scope, and easier. Also, PWAC supports recent proposals to allow class
actions in Federal Court.
“A ‘small claims court’ is needed for deciding infringement cases federally, where a
content provider could make a claim without an elaborate legal presentation.”
-Freelance writer from British Columbia

Special simplified Federal Court rules should be established to enable creators
to easily enforce the Copyright Act throughout Canada.
Re 3.3, which states: The proposal should promote a vibrant and competitive electronic
commerce in Canada.

PWAC recognizes the need for the government to pursue a policy to foster the conditions
that will put Canadian players on a competitive footing with their counterparts abroad.
PWAC also has great reservations about this clause.
In the last 15 years, the exigencies of ‘competitiveness’ either on a global or local scale,
have frequently been invoked to justify violating the very rights the Copyright Act grants
freelance writers. Publishers have consistently refused to compensate writers when they
include freelance works in their electronic databases. When publishers began creating these
databases in the 1990s, they offered freelance writers a very nominal sum, or no
compensation at all, for including freelance texts. The reason invoked was that the databases
were not yet profitable. Freelance writers considered these arguments absurd.
Why would a publisher spend money to create an electronic database if that publisher
didn’t expect it to be a source of income? Indeed, Thomson Corporation is reporting
increasing profits as it moves out of traditional publishing and into the digital arena. In the
second quarter of this year Thomson reported profits of US$117 million, up from US$104
million in 2000. Despite this, freelancers continue to be told that no one is making money
from electronic publishing, and are in most cases are not being compensated for the use of
their work. In concrete terms, freelance writers have been forced to mortgage the creation of
these electronic databases by having their works used without permission or compensation.
And now the publishers profiting from our investment simply refuse to reimburse us for
using our work to that end.
“The onus is all upon the writer to protect him or herself. No penalties are applied to
media organizations who attempt to chase us out of our rightful livelihood.”
-Freelancer from Ontario
The government could help this situation by setting up an industry watchdog to protect
copyright for all Canadian creators.

An independent body should be established to provide a forum for complaints
from creators and identify copyright law violations..The Periodical Writers Association of Canada (PWAC)
Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 12 of 14

In the present situation, writers are extremely wary when they are told that larger economic
imperatives must come to bear on the question of reforming the Copyright Act. The reason
is simple. Over the last two decades, ‘larger economic imperatives’ or ‘competitiveness’
have been common excuses invoked by publishers to deprive writers of their copyright and
justify those publishers’ refusal to compensate writers for publishing their work. Fewer and
fewer PWAC members are earning their living writing articles for Canadian magazines and
newspapers.
Morale among periodical writers is extremely low. Freelance writers feel betrayed by
publishers. This situation is threatening the telling of Canadian stories not only in digital
media, but also in traditional media, which is a primary source of material for digital media.†
The reluctance of publishers to pay fair rates for digital uses, while at the same time tying
digital uses to the commissioning of traditional content, is driving many writers out of the
publishing industry. More and more writers are looking for other sources of income in
areas such as corporate communications. We think this situation can be improved with the
following recommendations:

Digital transmissions must be identified in the Act as specific new uses so that
they do not fall simply under the current reproduction and communication
rights.

The Act must be sufficiently clear to enable writers to obtain fair remuneration
for each new digital use. Possible examples of usage include web pages, web
books and database inclusion.

Accepting these recommendations would greatly enhance writers’ ability to gain
compensation for the use of their work.

Re 3.4, which states: The framework needs to be cast in a global context.
PWAC agrees.

PWAC supports the ratification of the two WIPO treaties concluded in 1996
and signed by Canada in 1997, and we recognize that the copyright reform
process has been scheduled to make that possible.

Re 3.5, which states: The framework should be technologically neutral, to the extent
possible.
PWAC agrees that the framework should be neutral, but when new technological advances
emerge, we think the Act should be revisited. At the present time, several publishers in
Canada require writers to sign away ‘carte blanche’ all rights to any future form their text
may take. In PWAC’s view, the Copyright Act should have provisions that make this type
of practice illegal..The Periodical Writers Association of Canada (PWAC)

Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 13 of 14

PROPOSALS
Re Proposal 4.1 ‘Making Available’ Right
We support the widest possible ‘making available’ right, and would like it equally specified
for all creators, including writers. We endorse the Australian position that posting
previously created work on the Internet is a new use, not reprography. We want Canadian
law to include the same core principle.
Although Canada’s Copyright Act may currently be broad enough to support an author’s
‘making available’ right, we believe that new digital technologies work in ways that leave too
much room for interpretation. We want to ensure that writers receive fair remuneration
whenever their text is reformatted for use in a new market. We do not want to be forced to
take these cases to court to protect such a basic right.

Authors should be granted a specific ‘making available’ right, to make it clear
that they have the exclusive right to make works available to the public,
including the right to make work available on an on-demand basis to
individual users.

We support a ‘making available’ right in the Copyright Act that is specific
enough so that all creators can charge appropriate fees for their work.

We believe that the widest specification of this right could help redress the current
imbalance between copyright creators and users.

Re Proposal 4.2 Legal Protection of Technological Measures
We believe that the Copyright Act can specifically include clauses that will enable creators
to prevent copyright infringement and those that will prohibit the manufacture and sale of
infringement devices without adversely affecting exceptions.

We support clauses in the Copyright Act creating new obligations concerning
technological measures and rights management information, which will help
prevent copyright infringement.
We support specific clauses that would prohibit the manufacture and sale of
infringement devices.

Re Proposal 4.3 Legal Protection of Rights Management Information
We agree with the provisions of WIPO regarding this issue. We are very excited that the
use of these technologies, along with a specific clause preventing their misuse, could help
prevent copyright infringements by large corporations which seek to use independent
contractors’ works without appropriate licenses.

We support clauses in the Copyright Act to specify the use of rights
management information, including a clause that creates sanctions for anyone
knowingly providing false rights management information..The Periodical Writers Association of Canada (PWAC)

Response to the Government Copyright Reform Launched Jointly by
the Copyright Policy Branch of the Department of Canadian
Heritage and the Intellectual Policy Directorate of Industry Canada
on June 22, 2001
Prepared for September 15, 2001
_____________________________________________ 14 of 14

Re Proposal 4.4 Liability of Network Intermediaries, such as Internet Service Providers
(ISPs), in Relation to Copyright
Our main concern with this issue is to ensure that ISPs do not assume they can use
copyright and transmit copyright materials across their networks, without the express
permission of the copyright holder. We agree with the principle of a ‘notice and take-down
system’, but do not believe ISPs should be free of liability under the Act.
The main problem, from our point of view, occurs with Network Intermediaries owned by
large corporate entities who retransmit material without the knowledge of the copyright
holder. We think that the Copyright Act should clarify that digital transmissions are new
uses under the Act whenever the material enclosed within those transmissions has been
specifically reformatted for new markets.

We recommend that the Act be sufficiently clear to force fair remuneration for
any digital transmission that follows any reformatting of content.

CONCLUSION
PWAC appreciates the opportunity to make recommendations as part of this crucial review
of the Copyright Act. We are independent freelance creators whose livelihoods rely both on
the ability to assert our copyright and the ability to access other copyrighted work and the
public domain. We feel that our recommendations will clarify the spirit and the letter of the
Copyright Act while bringing copyright reform into the digital age.
Respectfully submitted,
on behalf of the Periodical Writers Association of Canada
Sub-committee of the Industry Relations Committee:
Tracey Arial
Kevin Yarr
Heather Pengelley
Julie Barlow