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

By Michael Geist

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' Guild 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.

Full post as published by Michael Geist on November 17, 2010 (boomark / email).