ARCHIVÉE — Newspaper Guild Canada and the Canadian Media Guild (En anglais seulement)

Re: The Canadian Media Guild

Comments re: (1) Consultation Paper on Digital Copyright Issues (2) Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission License to the Internet

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The enclosed submissions are being provided in response to the request for comments contained in the two Consultation Papers referred to above, on behalf of The Canadian Media Guild and The Newspaper Guild Canada.

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Introduction

This brief is a joint presentation by The Newspaper Guild Canada and its largest member union local, the Canadian Media Guild. [For the purposes of this document, "we" or "The Guild" refers to these two organizations collectively.] TNG Canada is one of Canada's largest media unions with more than 8500 members at more than 35 newspapers, broadcasters and news agencies. Our membership includes reporters, editors, writers, printers, announcers, hosts, researchers, advertising sales people, business staff and circulation employees. Among the newspapers where TNG members work are the Halifax Chronicle-Herald-Mail Star, Ottawa Citizen, Sudbury Star, Kingston Whig-Standard, Regina Leader-Post, Lethbridge Herald, Montreal Gazette and Victoria Times-Colonist.

The Canadian Media Guild is perhaps best known as the largest union at the Canadian Broadcasting Corporation - Société Radio-Canada ("CBC/src"). The Canadian Media Guild represents approximately 3,800 workers in a wide range of positions, from media librarians and finance clerks, to sales professionals, producers and program hosts. The CMG is responsible for all production and administrative staff at the CBC/src outside of the Province of Quebec. As a result of a 1993 decision of the Canada Labour Relations Board (predecessor of the current Canada Industrial Relations Board), the CMG is also, perhaps most importantly for the purposes of these submissions, responsible for individuals who create content for the CBC/src as freelancers. Under the terms of the Collective Agreement which is currently in force, they are treated by the employer as either employees or as dependent or independent contractors, depending on the exact nature of their individual engagement. Notwithstanding the characterization of their engagement, all of these individuals are subject to the existing Collective Agreement between the CMG and the CBC/src.

The CMG also represents content creators at other employers such as Canadian Press/ Broadcast News, TVOntario, Reuters and Agence France-Presse.

These submissions are therefore being made on behalf of a large group of Canadians comprising radio, television and print journalists, radio and television programming producers, and other freelance journalists.

Content creators and the Copyright Act

From its very beginning, the Guild has been keenly interested in matters of intellectual property, including copyright. For a majority of CMG members, their work consists primarily of creating content for distribution by various media, including print, television and radio. This also holds true for the new digital information and communication technologies, which comprise another outlet for the distribution of the content created by the Guild's members' work.

At the present time, the treatment of employees under the Copyright Act, particularly in the context of new digital information and communication technologies is somewhat unclear, and can lead to the loss of both copyright rights, performance rights, and moral rights for Guild members with respect to works to which they have contributed.

The Guild has no opposition to the well-recognized principle that a full employee is not treated as an author under the Act, and thus enjoys no rights of copyright. However, where the contributors are freelancers, or have a status other than that of a continuing employee, it is submitted that there should be a recognition of the fact that these individuals are authors, with the rights which follow from that characterization.

In our submission, this uncertainty could be ameliorated through the amendment of Section 13 of the Copyright Act to clarify the operation of the Act by freelancers. This amendment is required in order to ensure that copyright is retained by the freelancers in light of the implications of the new media.

It is respectfully submitted that the course of action being proposed in these submissions falls directly within the Framework for Copyright Reform recently set out by Industry Canada and the Department of Canadian Heritage. In particular, the Government of Canada has determined that priority consideration for revisions to the Copyright Act will be guided by the following principles, all of which apply to the concerns of the Guild:

1. Ensuring net gains for Canadians;

2. Maintaining the responsiveness of the Act to technological innovation and new business models;

3. Clarifying the law where it will reduce the risk of unnecessary litigation;

4. Ensuring a direction for reform that takes into account, and helps shape, international trends.

In particular, the Framework for Copyright Reform suggests that the sequencing of revisions will be determined according to where action is necessary to preserve the integrity of the Act. For reasons that will be fully set forth in these submissions, all of these rationales for reform are present in the suggested reforms being proposed herein.

It is the Guild's position that the integrity of the Act is particularly threatened by the uncertainty over the position of freelancers under the Act, since it has long been recognized that one of the fundamental purposes of the Act is the protection of the work of authors, and to remove the rights of authorship from creators of content because of doubts as to the employment provision of the Act is to place the works of these authors in considerable jeopardy, particularly in the context of the new media.

The ambiguity is implicitly recognized elsewhere in the Framework discussion paper, in the section dealing with audio-visual works and photographs, in which it is stated that it is generally taken for granted that the creator of a compilation can claim authorship for the compilation, but authorship remains with the creators of the works that are included in the complete product, i.e., the compilation. The Framework then admits "This, however, is not explicitly laid out in the Copyright Act." Similarly, it would be helpful to explicitly set out the rights of freelancers so that their rights can be adequately protected.

Copyright and the New Media

In the print journalism context, the issue of the rights of freelance authors has recently been the subject of considerable judicial comment. For example, the Supreme Court of the United States recently issued its decision in New York Times Company, Inc. et al. v. Tasini et al. on June 25, 2001. The case dealt with the position of independent contractors under contracts that in no instance secured an author's consent to placement of an article in an electronic database. The Court recognized the importance of the issue to the freelance authors, namely that if there is a demand for a freelance work, standing alone or as an element within a new collection, the Copyright Act will allow the freelancer to benefit from that demand; after authorizing the initial publication or communication, the freelancer may also sell the article to others.

In Justice Ginsburg's majority opinion in the Tasini decision, she refers to the position of the Registrar of Copyright who stated that "Freelance authors have experienced significant economic loss" due to a "digital revolution that has given publishers [new] opportunities to exploit authors' works".

The Supreme Court of the United States also made note of the fact that the Courts of numerous other countries which have considered this issue have also concluded that Internet or CD-ROM reproduction and distribution of freelancers' works violate the copyright of these freelancers. The issue is also before the Courts in Canada, including in Ontario in Robertson v Thomson Corporation et al., in which a decision with respect to a summary judgment application is expected this fall.

The first of the two discussion papers, entitled "Consultation Paper on Digital Copyright Issues", begins with a discussion of the opportunities presented by the new digitally networked environment. The Guild agrees with the statement that "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", but it must be borne in mind that the people who tell these stories are authors, whose rights must be protected.

The Consultation Paper also quotes from the paper The Canadian Electronic Commerce Strategy, which states that "The protection of content, balanced with the needs of users, is vital to the growth of electronic commerce". Again, the Guild agrees, but stresses the importance of bearing in mind that the content is provided by authors, whose rights must be protected.

One of the stated rationales in the discussion paper is that "on a practical level, the Act [must] continue to be meaningful, clear and fair". In our submission, unless a revision is made to strengthen and clarify the position of freelance content contributors, this position may not be maintained.

The Guild has no submissions and takes no position with respect to the following areas raised in the Discussion Paper:

1. Section 4.2 - Legal Protection of Technological Measures
2. Section 4.3 - Legal Protection of Rights Management Information
3. Section 4.4 - Liability of Network Intermediaries

In determining the balances to be devised in the digitally networked environment, the needs of freelancers must be weighed and considered. The Guild agrees with the proposed framework rules for the consideration of this balance, namely that the rules must promote Canadian values; they must be clear and allow easy, transparent access and use; they should promote a vibrant and competitive electronic commerce in Canada; they should be cast in a global context; and the framework should be technologically neutral, to the extent possible.

On-demand communication

With respect to the proposal relating to the on-demand communication rule, the Guild agrees with the proposal that the Act already provides for an on-demand communications right, and that the Act therefore need not be amended in this regard.

With respect to Clause 4.1.2 of the Consultation Paper, the Guild agrees with the proposal that a making available right should be made available for performers and sound recording makers, that complies with articles 10 and 14 of the WIPO Performances and Phonograms Treaty. As the Consultation Paper recognizes, such an amendment would allow authors, as well as other owners, to negotiate for appropriate terms and conditions of use, and thus to decide for themselves how best to derive benefits from their protected subject matter and to mitigate the potential for infringement. The Guild agrees as well that the amendment should not cover streaming activities as such, other than on-demand streaming.

With respect to the Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission License to the Internet, the Guild is not in principle opposed to the concept of the extension of the compulsory license to the Internet. However, in order to protect against the unrestricted dissemination of works in the new digital media, the Guild is recommending that while the retransmission license should be extended to the Internet, care must be taken that the extension applies only to simultaneous transmissions and not to archived materials which may be made available over the Internet.

The Guild agrees with the argument expressed in the Paper that the non-consensual retransmission to locations outside Canada of the protected works contained in retransmitted television signals does not further Canadian public policy interests, and risks harm to the legitimate interest of rights holders. Accordingly, it is submitted that there must be a territorial restriction to any license granted, and the Internet-based retransmission should be permitted only if the retransmitter could meet the specified territorial requirements. The Guild supports the suggested "Elements of a qualified territorial restriction", set out in the Consultation Paper. With respect to remedies, it is our submission that remedies should not be restricted to injunctive relief, as damages and other appropriate relief should also be available.

Equally importantly, it is imperative that the "simultaneous" requirement of the License not be altered. For that reason, the suggestion that the license be amended to permit reasonable delay and loss of information arising solely from steps necessary to convert a signal into a format suitable for transmission must be viewed with extreme caution, or the only justification for the license may well be lost, and the license converted into something quite different and much less subject to appropriate and adequate controls.

Conclusion

For freelancer contributors of literary, artistic, and/or dramatic works, it is fundamental that the issue of copyright be subject to negotiation between the freelance contributor and the entity which ultimately pays for the material. However, if at the outset, the claim of the author to the copyright ownership is eroded, these negotiations will not take place, and the contributions which will comprise an integral part of the content of the new media will be handed over to the broadcaster with no extra value being attributed to it, and all of the additional value going to the purchaser of the content rather than to the freelancer who created it.

With respect to subsection 13(3), the Guild believes that this provision should be revised to specify that freelance contracts of service are specifically excluded from the exception set out in this subsection. In addition, the reservation to authors to restrain publication should be expanded from contributions to newspapers, magazines or other similar periodicals, to contributions to other media such as radio and television broadcasts. If these amendments are made, the status of freelancers as authors under the Copyright Act would be ensured, and their concomitant rights would follow, and negotiations with other rights holders could proceed with both parties being aware of their respective rights.

In summary, in pursuing the proposed amendments, one needs to pay heed to the justified claims of both authors and copyright owners to share in the benefits of the ongoing media revolution. The copyright system must further the public interest by rewarding the creative labour of authors, as it has done since its inception.

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