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PROCESSUS DE RÉFORME DU DROIT D'AUTEUR
SUGGESTIONS REÇUES RELATIVEMENT AUX DOCUMENTS DE CONSULTATION
Les documents reçus seront affichés dans la langue officielle dans laquelle ils auront été soumis. Toutes les suggestions sont affichées comme elles ont été reçues par les ministères; toutefois, toutes les informations sur les adresses ont été enlevées.
Suggestion de Canadian Independent Record Production Association (CIRPA) reçue le 24 septembre 2001 par courriel
Objet :Version pdf (anglais seulement)
The Initial Response of
the Canadian Independent Record Production Association
to the Government Consultation Documents Entitled:
A Framework for Copyright Report
Consultation Paper on Digital Issues
Consultation Paper on the Application of the Copyright Act's
Compulsory Retransmission License to the Internet
September 21, 2001
The Canadian Independent Record Production Association (CIRPA) is the collective voice of the Canadian-owned independent sector of the sound recording industry with a mandate to secure and develop a strong and economically stable music industry. CIRPA has approximately 150 members from coast to coast and from almost all sectors of the music business.
While CIRPA expects that many detailed and well-written submissions will discuss the many important issues that need to be addressed, at this initial stage CIRPA, on behalf of its members, will be making what it considers to be a submission that addresses the practical results of action or inaction in the field of copyright revision on the independent music recording sector and the artists that are featured on its labels.
In this context we will be suggesting general principles that in CIRPA's view must be addressed and acted upon at the earliest possible moment. We will also be commenting on the steps that we feel need to be undertaken by the Government in order to provide an efficient, effective system of copyright protection that allows creators and copyright owners fair and just compensation for their activities.
First, some general comments.
CIRPA trusts that it is only its perception, but as it reads the various consultation documents they would seem to indicate a leaning towards the interests of users as opposed to those of creators. This is probably an incorrect reading, but, if this were to be the case it would be extremely regrettable, particularly given the economic value of the cultural sector to Canada. Specifically we have concerns with the desire to "balance the interests of owners and users." While this may be a laudable intellectual approach, in CIRPA's experience the general imbalance between the economic power of users and copyright owners results in most situations in creators losing out in "real world" scenarios. Examples of this reality are many and have happened over the years in a variety of areas.
We will now address the three questions asked in the Copyright Framework document and then proceed to specific comments on issues of relevance to CIRPA and its members contained in the two specific discussion papers.
A Framework for Copyright Reform
Question 1.1 - Is the proposed reform process (ie: a series of small legislative packages rather than one or more large ones) the best way to complete copyright reform?
Answer: In CIRPA's view this approach is just not feasible in today's and tomorrow's rapidly evolving world when new technology often allows rampant infringement of intellectual property rights to rapidly become the norm and not the exception. Therefore we cannot agree that this approach will be beneficial to Canadian creators and copyright owners.
Question 1.2 - Is the proposed agenda (ie: consultation on two priority issues - digital and Internet retransmission - leading to legislation) the best way to proceed with revision?
Answer: Given our answer above, obviously we do not believe that the solution proposed is either the right or effective way to proceed.
Question 1.3 - Do you agree with the list of outstanding issues contained in the Annex?
Answer: While the list is a promising start, again reality will regularly intercede in the form of technological changes that will have an impact on the sector, probably in many cases a substantial impact, and which will need to be addressed as a matter of urgency and not allocated to a revision process at some unstated time in the future. To summarize CIRPA's position, lists are good however quick action and effective legislation is much better, particularly given the ongoing pace of technological changes that continue to take place.
Consultation Paper on Digital Issues;
Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission License to the Internet
The following are our general comments on some of the issues raised in the two papers:
With regard to technological protection measures, it is the view of CIRPA that given the rise of devices that allow many new means of infringement, it is vital that new legislation be put in place to address the continuing and rapidly growing problems that these devices cause creators and copyright owners. In particular the effective defining and legislating of tamper proof rights management systems that will allow creators and copyright owners to effectively control the unauthorized and unpaid use of their property in the future.
The issue of "making available" is one that requires complete clarity in the new law so as to address what is actually happening every day in the marketplace. In this context CIRPA believes that a right of making available for performers and makers of sound recordings is essential in today's world. The communication right contained in the current law is not, in our view, an effective mechanism on its own. Again, we would emphasize our long standing position that a right is a right. In this context we would be dismayed to see any exceptions to the right of making available being carved out for whatever reason (e.g. no practical difference, no economic effect, etc., etc.)
We would point out that WIPO treaties obligate governments to provide both adequate protection and effective legal remedies. We commend this approach to the Government.
Clearly peer to peer infringement of owners' rights is currently taking place on a massive and increasing scale. Technological protection measures and appropriate and effective anti-circumvention legislation is critical in this regard.
CIRPA supports the position of SOCAN with regard to the Copyright Board decision on Tariff 22 and the appeal of SOCAN in this regard. The issue of where liability lies and whom creators and copyright owners can take action against in any effective way is an issue of critical importance. In CIRPA's view, clearly it should be the ISP who is liable and not content providers. Not only a clear enunciation of where liability lies is needed but also the ability of creators and copyright owners to enforce that right is essential.
CIRPA fully agrees with the position of the Copyright Coalition, of which it is a member, regarding the need for continued Government participation in the legislative process and its understanding that effective laws must be both put in place and regularly reviewed and updated in order that Canadian creators and copyright owners receive appropriate levels of rights protection both in Canada and internationally. In an interconnected world this matter is of critical importance and needs constant thought, research and legislative action on the part of the Government.
CIRPA has read with considerable disquiet what appears to be the contention in the discussion papers that there is some question that the WIPO treaties need to be ratified at all. CIRPA is certain that this is a misconception on our part and the Government will proceed with all speed and alacrity with the ratification process.
With regard to the issues raised in the Retransmission document, CIRPA is of the view that there will be many detailed papers submitted in this regard and therefore has only a few general points to make. We would reiterate our philosophical dislike of any compulsory licence provisions at all given that, in our view, these serve to derogate the intellectual property rights of creators and copyright owners. Given this caveat our response to question 3.1 would be that, unless and until systems that delineate clear territorial boundaries for Internet-based transmitters are in existence and, more importantly, can be properly and effectively enforced, then such transmitters should be excluded from the current compulsory license provisions of the Act.
Given our answer to question 3.1, CIRPA's answer to question 2 is clearly no.
Our answers to questions 3.3 and 3.4 also flow from our answer to question 3.1. There should clearly be restrictions based on the ability of any entity to fulfill the criteria we have outlined and also in the instances for which this change is being proposed (i.e. Jump TV etc.) clearly there should be an absolute territorial restriction.
To conclude CIRPA wishes to repeat its contention that in tomorrow's world intellectual property laws will play a vital role in helping to assure the future prosperity of Canada and Canadians.
Our position is clear: an efficient, effective, modern and constantly updated Copyright Act is a very important resource to the economic and cultural future of Canada. Its importance cannot be understated in that it is legislation that has a major and continuing impact in both the culture and economics of Canadian society. As such it warrants a high place on the Government's agenda on a continuing basis.
In this initial filing CIRPA has endeavoured to discuss issues and results that flow from copyright legislation. These are some initial thoughts. We look forward to commenting in the next phase on the many legal and practical issues that will no doubt be raised. We are hopeful that the entire ongoing process will move along with efficacy and efficiency. CIRPA looks forward to being involved on an ongoing basis.
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