LAW

An epic battle over the rights to culture

Camps divide as Canada's Copyright Act faces revision

Fred Blazer October 12 1981
LAW

An epic battle over the rights to culture

Camps divide as Canada's Copyright Act faces revision

Fred Blazer October 12 1981

An epic battle over the rights to culture

LAW

Camps divide as Canada's Copyright Act faces revision

Fred Blazer

In the lounge of Meadowvale Inn outside Toronto, tropical fans swirl as the Craig Ruhnke Orchestra lilts into a poignant rendition of Two Hearts, which Ruhnke wrote last year for pop stars Cherrill and Robbie Rae. But during the break there’s no trace of romance in the songwriter’s voice as he blasts the Canadian copyright restrictions that limited his royalty payments on national sales of the Two Hearts album (more than 25,000 copies) to $250. Says Ruhnke: “Instead of providing incentives for artists, the law is like a piranha. It eats you alive.”

Such bitterness is widespread among Canadian artists. The Canadian Copyright Act, intended to guard creators’ intellectual property, controls all of this country’s $3-billion-a-year culture industries, but artists and producers charge that it has been robbing them of rightful income almost since its introduction in 1924. Virtually unchanged since then, the act supplies no protection against technological innovations such as photocopying of books or cable transmission of television programs. It also imposes 1924 royalty rates: a Canadian composer earns two cents per song, half what U.S. songwriters will soon be getting. Now the complainants have a chance to defend their long-neglected interests. This July, the federal department of communications (DOC) appointed a committee to collaborate with the department of consumer and corporate affairs (CCA) in drafting, by next summer, the first major revision of the act. The months ahead will see ardent last-chance lobbying by competing interest groups—“coming to grips with problems that will have an enormous impact on Canadian society,” says Frank Keyes, committee member and research director of DOC’s copyright branch.

Certainly the impact on Canadian readers, TV watchers and music lovers could be far-reaching. By establishing the rate that copyright holders can charge for the use of their material, copyright law is intended to protect the public’s access to culture at a reasonable price, and a tougher law may mean substantial hikes. Warns University of Western Ontario economist Ake Blom-

CCA, which currently administers the Copyright Act, has received more than 120 briefs outlining the positions of artists’ associations, producers and culture product users such as cable television operators and educational institutions. Canadian authors and publishers, for instance, rail against losses caused by photocopying, or “ripography” as it’s indignantly called in the book trade. Their targets are academic institutions that copy texts and professional journals in vast quantities for classroom use but pay no royalities because the 1924 act doesn’t say they must. Halifax author Paul Robinson, for example, once received a letter from the Alberta ministry of education: his classroom guide, After Survival, was so superb, the writer informed him, that the first chapter had been copied for all senior department personnel. “Spare me such compliments,” shudders Robinson. Writers and publishers want a compensation system like Sweden’s, which requires all facilities having a photocopying machine to pay for a special licence (the resulting revenues are distributed to the literary sector). Although a 1981 CCA study showed that educational photocopying causes “substantial” losses to the book industry, the Association of Universities and Colleges of Canada vehemently argues that learning institutions, perennially short of funds, should be exempt from payment because education is a public benefit.

Another strong contender for in-

qvist, coauthor of a recent study criticizing some publishing industry demands for increased copyright protection: “My definition of a culturally active country is one where people not only write books, but where they can afford to read them.”

In what promises to be an epic war over copyright revenues, the producers and consumers of culture are already locked in a vocal conflict. Since 1977,

creased protection is the Canadian recording industry, which rages at the federal government for not shielding it from bootleggers and pirates. The production of illegal records and tapes from live concerts and legitimate recordings cost record companies an estimated $80 million in 1980. But there have been few prosecutions: the maxi-

mum penalty provided by the act for copyright infringement is a mere $200. Last April, for example, charges were dropped in the case of an Ontario man who publishes his own record guide, The Hotwacks Quarterly, and allegedly distributes thousands of bootleg records nationwide.

The loudest name-calling, however, arises between television broadcasters and cable TV operators, who currently transmit broadcast signals without paying any fee for them. Canadian cable operators, whose 1981 gross revenues will reach $390 million—double the 1976 figure—maintain that they haven’t hurt the broadcast industry, which is earning more money now than before cable proliferation, and that in many cases cable operators spend more on Canadian programming than broadcasters. “We’re not the turkeys that should get shot,” snaps Colin Watson, president of Toronto’s Rogers Cablesystems. Broadcasters, on the other hand, insist that they have been damaged by cable fragmentation of their markets. When Northern Cable Services of Sudbury, Ont., invaded CKSO-TV’s market in 1976, the station promptly lost one-third of its viewers, mainly to U.S. sports shows and Toronto news carried by cable. Three years later, station owner William Plaunte, “disappointed as hell,” sold CKSO to the cable company. “Ca-

ble,” fumes Plaunte, “is the only industry I know where a person can take somebody else’s product and sell it as his own.”

Other disputes are simmering. But since consumer resources are limited, some factions protest in vain. Actors,

musicians and singers stand to lose their fight for a percentage of profits covering their contribution to sound recordings and film. Nor is the recording industry likely to win the protection it seeks from home taping of records and FM broadcasts—although Austria this year introduced a tariff on sales of blank audio tape (record manufacturers and composers reap the profits) and West Germany has been taxing home taping equipment since the early ’60s. On the other hand, record pirating penalties will certainly be stiffened. Writers and publishers almost certainly will be awarded compensation for bulk photocopying of their products. And cable operators, as in the U.S., will probably have to pay for transmission of broadcast signals.

Deciding which groups deserve protection will set the scene for a crucial battle between creators and government. At issue is how payment will be extracted from copyright users found liable to producers. The problem rests with Canada’s role as the Western world’s biggest net importer of cultural products. Moreover, Canada is a signatory to international treaties specifying that any copyright protection given to local creators must be simultaneously extended to the foreigners who produce 80 to 90 per cent of the cultural materials sold in this country, from British

books to French films. These two factors add up to a threatening combination for consumers. Canadian authors, for example, want to prevent importation of cheaper foreign editions of their books (on which they earn lower royalty payments) whenever a Canadian edition is available. But any such restriction must also bar lower-priced editions by non-Canadian writers whenever a Canadian edition is on the market. The net result, according to a 1981 government study, would be a gain of $40 mil-

lion to foreign writers and publishers and higher-priced books for Canadian readers.

“If our goal is to make money for Canadian creators,” says a CCA research analyst, James Keon, “then copyright isn’t always the way to do it.” To limit copyright deficits, his department proposes increasing creative sector support, primarily through a combination of tax breaks, subsidies and Canada Council grants. But creators and producers argue that it’s time Canadians recognized the costs of importing foreign culture. Says Toronto film industry

lawyer Bernard Mayer: “Importing cultural products is no different from importing oranges. If you want them, you have to pay the price.”

The tortured debate over creators’ rights will in turn depend on the results of a clandestine campaign now under way in Ottawa—one that involves control of the Copyright Act itself. CCA is currently responsible not only for copyright administration but also for general consumer protection (“A conflict of interest if ever there was one,” says Toronto entertainment lawyer Peter Steinmetz). Now, however, the intervention of DOC in creating new copyright legislation has profoundly shifted the balance of political influence away from consumers. DOC supports broader copyright recognition than is contemplated by CCA; as Deputy Minister Pierre Juneau puts it, “We need a much, much higher level of creative output in this country.” DOC denies any internal rift, but Ottawa communications lawyer Robert Buchan observes, “If power hasn’t shifted yet, it’s trembling on the brink.”

To some observers the question is no longer who is winning the internal battle but how long it will take DOC to acquire copyright control and change the dynamics of Canadian culture. To consumers, however, the issue is more pressing: what price creative glory?