Fighting Uphill for Artists’ Rights

jkdegen

Professional artists in Canada have had their legislative interests systematically sidelined and ignored. Time to fix that.

(image courtesy me and my little camera)

Something must change about the way cultural policy is created in Canada, especially cultural policy related to market realities. The way it works now too consistently shuts professional artists out of our own interests. We’re expected to somehow make our living here, but the influence we have on how our marketplace is structured is inconsequential, at best.

At worst, we’re subjected to a patronizing mixture of consultative lip service and behind-the-scenes restructuring that effectively keeps us out of the loop. We work hard to explain what we need from the law. We receive a lot of wide-eyed nodding at televised hearings. And then, when the cameras are turned off, the law takes yet another turn away from our needs.

Case in point, last year’s Statutory Review of the Copyright Act.

Since passage of the widely criticised Copyright Modernization Act in 2012, Canadian cultural workers have laboured in good-faith on non-partisan advocacy work with lawmakers to restore some integrity to the rapidly degrading protections for our work. That’s seven full years of asking for the same thing — basic protections for our rights — but the effort has actually been going on for decades, since the pressure to weaken creator copyright has been relentless in the digital age.

Authors, visual artists, musicians, and all of our representative unions and associations do this work in full view of the public. We schedule registered meetings in Ottawa, and sit down with elected lawmakers from all parties. We write letters on the public record. We testify in court, at Parliament, and in the Senate. We explain the vital role of copyright in professional creation (no easy task, since most lawmakers have only a passing understanding of its complexities, and disinformation is rampant). We make the case that protecting the work and incomes of artists is an absolute requirement for strong, progressive and innovative cultural policy.

“Free”-Culture

Lined up against artists on copyright is the free-culture crowd — a seemingly inexhaustible list of interests who intentionally conflate payment to artists with lack of access to cultural work. Those who want free “access” to cultural work include the world’s wealthiest tech concerns, other moneyed corporations, governments, education ministries, colleges and universities. Basically any large, industrial concern with an appetite for published content has figured out that free content is a whole lot cheaper than content that comes with a price-tag.

Not paying is always better for the budget than paying. And, of course, while free-culture demands artists’ work for free, the products it creates with our labour always return to the pay-for-service market. While there’s a lot of high-minded talk about information for all, and the “rights of users,” somebody is standing behind that shield of users, raking in money. Make no mistake, somebody’s bottom line is always benefiting in a free-culture gambit. And, spoiler alert… that somebody is never the original artist.

Every time one of these free-culture consumers of content makes a broad claim for free access, artists must get back to the airports and train stations, reach out to lawmakers, cut through the “won’t somebody think of the users?” spin, and make our case, again, for fair payment.

We also take our case to judges and regulators when we have to. There’s been no shortage of legal fights over artists’ rights in the past couple of decades, both in Federal Court and at the Copyright Board of Canada. While we generally win those fights, the costs in time and money are enormous. For instance, a big win for Canada’s authors and visual artists in the Access Copyright V. York University case is currently before the Federal Court of Appeal. Essentially, YorkU claimed it can copy huge amounts of published work for free, and the Federal Court let them know they cannot. But they’re still insisting they can.

When they lose their appeal, it’s likely York University will consider pushing their demand for free copying all the way to the Supreme Court of Canada. That should keep Canada’s cultural workers tied up in legal proceedings (and bills) for another few years.

So even when artists win, we lose. Draining cultural workers of time and money through costly legal foot-dragging seems to be a big part of the free-culture playbook.

It’s exhausting.

To be clear, no-one in the cultural industries actually has the time or resources to do all this endless advocacy and courtroom work. Every minute, hour, day, month, year spent on this never-ending defensive effort is time away from cultural creation, production, promotion and dissemination. Without question, there exist today fewer Canadian books, visual works, and songs than there might, because Canada’s artists are too often too busy fighting against unpaid “access” to our creations to actually do the work of new creation.

The Field is Tilted Against Artists

All of this might be manageable if that were the end of it. After all, fighting for one’s rights is part of the bargain of having rights. But Canada’s artists have a whole other fight on our hands. A fight against entrenched power, lopsided privilege, and hidden influence on the free-culture side. It’s an uphill battle on a steeply tilted field.

While we’re busy making our case out in the open through official and public channels — registering our meetings with elected officials, speaking on the record to the Copyright Board and the courts, testifying before Parliamentary committees — there’s a whole other layer of policy construction that seems to happen away from public view, and from which we are shut out.

It’s as though in back rooms, over private e-mail communications & telephone lines, and maybe even in coffee shops and bars near Parliament Hill, off-the-record meetings take place where policy might be influenced or even constructed out of the public eye. It’s indefinable but undeniable, and seemingly a part of the DNA of copyright policy-making in Canada.

It also works.

What else could explain the results of the Statutory Review of the Copyright Act? Here was a process weighing heaviest on the interests and rights of artists in the midst of an indisputable emergency for the cultural economy. The review heard from hundreds of witnesses representing hundreds of thousands of artists asking for the same consideration of our rights. MPs received thousands of letters from artists and our supporters, and their responses to those letters assured us our voices were being heard. You could not have watched a single session of committee testimony and concluded that the free-culture arguments were winning the day.

Yet the review ended with a clear shift away from artists’ rights. A shift toward free-culture.

That can only happen on an uneven field.

And Yet It’s Our Field

The Copyright Act is the only piece of legislation specifically designed to define and protect the rights of artists, and to encourage cultural creation. It’s all we’ve got — the backbone of all of our professional contracts and agreements. It’s the law that makes it possible for us to control and build our careers, and insist on payment. It creates and regulates our marketplace.

Yet, in Canada, the gears and levers for changing and improving that Copyright Act have been placed far out of reach of artists. Copyright review and reform does not fall to the one government department dedicated to the arts and culture — the Culture ministry, Canadian Heritage.

Instead, copyright policy is shaped entirely by the Industry ministry, known these days as Innovation, Science and Economic Development. Responsibility for the 2018 Statutory Review of the Copyright Act was given to the Standing Committee on Industry, Science and Technology (INDU). And, of course, this is the government department primarily looking out for the interests of those who use what artists create — the folks who’ve done the math on free vs. paid.

That’s like entrusting hen-house security to the Ministry of Foxes.

Empty Assurances

When artists question the logic of Industry control over copyright, we’re assured that, despite appearances, Canadian Heritage actually holds an equal share of influence. The words balance and shared responsibility get thrown around a lot. Industry and Heritage share the copyright portfolio, we’re told, because government seeks to strike a balance between cultural concerns and industrial/consumer concerns.

But where is this fabled balance when only one department gets to write the rules? Does one balance a seesaw by placing all the weight on one seat?

Here’s what Canadian copyright balance looks like in practice:

  • Last year, hearings for the copyright review were scheduled for the Standing Committee on Industry, Science and Technology (INDU) only.
  • With a vague wave at balance, the Standing Committee on Canadian Heritage (CHPC) was then invited to assist Industry by conducting a study of remuneration models for artists.
  • CHPC completed this extensive study, hearing from 115 witnesses and gathering 75 briefs. Artists and arts groups were encouraged to help as much as possible with this important study by providing their own stats and testimony. We worked hard to do so.
  • CHPC submitted to Parliament a report, Shifting Paradigms, based on its study. The report included 22 well-considered recommendations for strengthening copyright protections for artists in an age of changing remuneration models.
  • INDU then ignored the entire CHPC study, the resulting report, and all of its carefully considered recommendations. In fact, it made a point of not even reading the CHPC report before drawing its own conclusions, as was made clear by its only mention of the Shifting Paradigms document:
(mention of the CHPC report on page 18 of the later INDU report)
  • INDU published its own report, filled with recommendations that will mostly weaken copyright protections for artists. Many of these INDU recommendations directly conflict with CHPC’s earlier recommendations, and come straight from a long-established free-culture wish list.
  • When artists complained publicly about the ignored Heritage recommendations, INDU put out a petulant media release insisting that “reviewing the Act was [Industry’s] sole responsibility.”

Worth noting — INDU’s press release appeared just a few hours after this blog post counselling them to ignore the Heritage Report, and using strikingly similar language — “the Industry committee was solely responsible for the copyright review”.

That posting was published by a free-culture blogger who was also one of the last witnesses called during INDU’s proceedings. 254 other individuals (myself included) appeared before he did. None of those other witnesses have the ability to inspire an immediate media release from INDU. As we’ll see below, this blogger also enjoys a dramatically outsized presence in the INDU report itself.

Balance, Schmalance

So, how are Canadian cultural workers supposed to trust the results of this copyright review?

Our interests are overseen by a government department given no direct authority over the process, and whose excellent work and carefully-considered recommendations have been studiously ignored by the department that was put in charge.

Despite ongoing claims of balance, a quick scan of the INDU report shows a movement in favour of for-profit free-culture. Reasonable requests for effective protections made by artist witnesses (the insertion of a commercial availability control over broad fair dealing claims, for instance, or a visual artist’s resale right) are either rejected out of hand or “sent for further study”.

Meanwhile, free-culture suggestions that represent radical departure from Canadian norms (the introduction of a registration requirement for copyright holders, or the uncontrolled expansion of allowable fair dealing purposes) are given an immediate stamp of approval from the committee with no thought of studying their negative impacts on artists.

New Research Chairs?

And there is at least one mysterious INDU recommendation that seems to come out of nowhere. Recommendation #3 — the establishment of two new federal Research Chairs on Remuneration and Business Models and the Economics of Copyright.

Who asked for these things?

The Research Chairs idea shows up in the middle of a discussion about the timing of legislative review and the complexity of the Copyright Act, and is clearly unrelated to both of those things. Unlike just about every other recommendation, #3 includes no witness reference to give a sense of where the idea originates. It looks, in fact, like #3 was a last minute insertion no one was really supposed to notice.

Who would these new Research Chairs benefit, exactly? Artists?

Not bloody likely. Most, if not all, of the academic researchers and existing Research Chairs who appeared as witnesses before the INDU committee were seeking expanded exceptions, weakened protections, and/or stronger limitations on creator rights. After that performance, you won’t find too many Canadian artists asking for more Research Chairs anytime soon.

The average salary for a Canada Research Chair is $180,000 a year. By comparison, the average income for a Canadian writer is less than $10,000 a year. In committee testimony, writers and their representatives asked again and again for mandatory payment for our work. Yet INDU ultimately declined to make any such recommendation.

As far as I can tell, no-one asked (on the record) for new, expensive Research Chairs, and yet, somehow, there’s Recommendation #3.

Surprise! — one Research Chair witness just happens to be the aforementioned Ottawa blogger. The guy who advised ignoring the Heritage study. Here’s where it gets really interesting.

He is also the most quoted and referenced individual witness in the entire INDU report.

This voice for free-culture was witness 255 of 263 in total, and did not appear until the second last day of hearings. Yet he’s referenced no less than 27 times in the INDU report. What’s more, his fellow free-culture advocates get similar notice. No witness appearing for artist concerns or with a neutral perspective has anywhere near the number of references of this single free-culture mouthpiece. For example, the primary copyright policy expert at Innovation, Science and Economic Development Canada — one of the first witnesses to appear — receives all of one reference.

Lip Service

As the INDU hearings were taking place, I thought the committee members — MPs from all major parties — were mostly doing a remarkable job of digging into the issues, extracting and cross-examining the data, following the relevant arguments, and rejecting the irrelevant. I was so impressed, I wrote a series of responses to the hearings.

What’s more, the Heritage (CHPC) Committee heard from a representative sampling of the same witnesses as appeared at INDU, and their Shifting Paradigms report indicated strongly that the concerns of cultural workers were finally being heard and taken seriously. Everything was looking pretty good for Canada’s artists. We were putting in the work to be heard, and it looked like we were finally being heard.

And yet, somehow, through the somewhat mysterious process of writing the INDU report, almost none of what artists observed at both committees filtered down onto the page. Instead, witness #255 is referenced again and again, INDU ignores the CHPC report (as witness #255 advised), we’re looking at two new Research Chairs (like witness #255), and the INDU committee & witness #255 have a remarkably coordinated response to complaints about the report.

It’s impossible to exaggerate the alignment between blogged criticism, blogged prediction, and how the review ultimately shook out. So let’s just go over the facts again.

  • Witness #255 — a free-culture blogger with an office ten minutes from Parliament Hill — greeted CHPC’s Shifting Paradigms report with a relentless series of critical tweets and columns, counselling INDU to ignore it. The report was then ignored.
  • In a blog posting a few days before release of the INDU report, this same blogger noted “there has been some thought given to establishing a registration requirement for the additional 20 years {of Canada’s copyright term].” When the report came out, recommendation #6 called for exactly this registration requirement for extended copyright term, something that will weaken the rights of artists.
  • And, as noted, INDU’s extraordinary press release insisting on its authority over the copyright review was released just hours after strikingly similar arguments were published by witness #255. He even wrote a follow-up posting celebrating the strange timing and alignment of arguments.

The Sidelined & the Privileged

At this point it’s difficult to feel there’s a receptive ear for creators at Industry. What’s more, it’s increasingly clear that the free-culture perspective enjoys great privilege there, and that some voices (one in particular) seem to matter more than most others.

Here’s what Canadian cultural workers must now fully understand. There is no real balance in the copyright review we’ve just come through. Creator rights and protections are not under creator control in Canada, and neither do we have anything like equal influence over how they’re defined or regulated.

Those who would protect us are sidelined and ignored. Those who want our work for free appear to have privileged access.

What’s Next?

It’s unlikely this Parliament will act in any way on the copyright review recommendations. The upcoming federal election has already consumed the attention of Ottawa, and the next Parliament will likely look very different from this one. When our new batch of lawmakers considers a way forward from this copyright review process, they’ll need to first address the tilted playing field and the mysterious influences that have so skewed these review results.

So here’s the best recommendation I can think of for that new Parliament.

Give copyright back to those for whom it was designed.

The next phase of the copyright review, including triage of the existing, conflicting recommendations, should be run by the Department of Canadian Heritage. If Industry wants balance, they‘re welcome to conduct a study. Canada’s artists look forward to consulting their report.


John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organisation representing more than 2,000 professional authors in Canada. He is also Chair of the International Authors Forum, which represents close to 700,000 professional authors worldwide. Views expressed are his own.

Read John Degen’s most popular Medium article: 5 Seriously Dumb Myths About Copyright The Media Should Stop Repeating.

© John Degen, 2019

jkdegen

Written by

jkdegen

Canadian novelist and poet, Executive Director of The Writers' Union of Canada, believer in the future of the book.

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