Legislative Committee on Bill C-11: Text of Statement

Submitted by martha on March 9, 2012 – 11:51am

March 7: Presentation to the Legislative Committee on Bill C-11 My name is Martha Rans and I am the Legal Director of the Artists’ Legal Outreach and Education Society(ALO) in Vancouver. I am a lawyer who has been advising artists for more than 18 years. The ALO has provided advice information and education to 1000’s of BC creators. As a copyright educator I have lectured in several post secondary settings to hundreds of students of art and design. They are the future of the creative sector in this country. Creativity flourishes irrespective of the law. It always has and it always will. Creativity does not exist in isolation from how and where artists work, present, speak, perform, build and think. Creativity requires some level of support – for many artists copyright has supplanted arts funding as the mechanism through which we in society recognize and implicitly values their creativity. I am not here to talk about products and innovation,information and data, nor a religion. I am not here as a legislative expert, an academic or as part of an industry. I am here to share with you some practical experiences artists, whether they are in Temiskaming or in Vancouver, have had with copyright. Though creativity is flourishing, there is limited actual knowledge and understanding of copyright. The norms that ought to be reflected are those that enable Canadian arts & culture to flourish, enable creators to make a reasonable living and reach an audience, as well as allow for less restrictive personal and educational re-uses, and maybe take a step away from intellectual property solely as commodity exchange and towards a cultural conversation. Copyright should form a key part of cultural policy in a rapidly changing digital economy. C-11 as it stands is too complicated for most small digital producers to be able to interpret, and the fear of litigation harms individual artists and the cultural sectors they too comprise. This is particularly the case where we have limited access to legal advice, education and information. This does not mean we need more lawyers, it means we need a framework built on solid principles and clear policy that are well understood by public and creator alike thats encourages artists to negotiate for themselves. Creators need a copyright policy framework that is clear, predictable and fair. Bill C-11 as currently drafted fails that promise. The user generated content exception illustrates for me the myriad difficulties with the proposals contained in C-11. Here, you are proposing to legislate in an area where I would suggest it is simply unnecessary – Our sons and daughters will continue to create and upload video of themselves dancing to JB – they will use the tools they have whether we say they can or can’t. It has always been the case. As a result in part of YouTube’s algorithms intended to automate the identification of potential third party content – other sites have emerged without those algorithms. Vimeo, Blip.tv, garage tv among others. Is this a good thing? Yes It suggests to me that an exception is not required to enable any of us to find outlets for our self made creation. Josh Hite, a Vancouver media artist, made a video “chug chug chug” based on clips he found on youtube. The exception, as drafted, makes it no easier for him to show the video at a festival. We are, however, seeing best practices emerge that respect the original creators and do not penalize users. It seems to me worthwhile to avoid unnecessary legislative intervention that could slow that process. In the US, Getty Images, one of the most significant owners of copyrights in visual work, is currently hosting a Mishmash competition. It invites and enables people to upload images from its digital archive and remix them. This suggests to me that copyright holders like Getty have adapted to the new digital landscape. We need a copyright regime that enables artists to create transformative works. At the Vancouver Art Gallery right now you will find First Nations artists such as Sonny Assu and Jackson two Bears whose work borrow liberally from everything around us to make their work. They make work that speak to their people and their relationship to the world. That is the foundation of much art making. I was recently asked by an internationally respected Canadian painter whether a work of his that transforms images of an 80’s pop icon could be exhibited in the public library. The contract required him to represent that there was no potential copyright infringements. He could not sign it and the work was not displayed. To the extent that amending fair dealing could enable an acceptance of transformative uses then we should make those amendments and add parody and satire. You will need to convince me, however, that is the only way given the litigation such a change foretells. Adding education to fair dealing will not solve the funding crisis that educational institutions, and other publicly funded institutions like libraries, museums and galleries have. The result of the opting out of the AC tariff by various post secondary institutions in 2011 is evidence to me of the widespread confusion in that sector. I doubt very much that adding education, to fair dealing, though I support doing so on philosophical grounds, will change that. There is a widespread misperception about the impact of this change. If it is to come, it ought to come with statutory license provisions that mandates specific uses that will require a license rather than limitations that will cause more confusion for educational technologists and others managing resources at these institutions. This week is Open Education Week – a celebration of our access and willingness to share our collective knowledge. Knowledge that has been nurtured and sustained by creators. This growing sector has adopted innovative licensing models for the development of open educational resources. These licenses that allow creators to decide how their work can be used. It is a system that creates alternative distribution models and recognizes the need, at the same time, to remunerates creators. The widespread adoption of Creative Commons licenses in this area (though limited in others) suggests that people are looking for different ways of interacting with copyright. There are new communities of folk seeking to make it possible for widespread sharing of resources across many platforms and legislative environments. My concern is that our emphasis on enforcement on behalf of certain industrial models and practices distracts us from what we should actually be doing which is ensuring that each of the new models provide direct remuneration to the very creators who are so often left out of the equation. Those in the open education sector, including technologists, librarians, archivists, and educators, have said time and again they want to do this but the existing model is a barrier to them doing so. I can’t ignore what they tell me particularly since so many young and emerging artists and designers tell me the same thing. Enforcement is not the answer to the challenges digital technology brings. I am not entirely sure whether there is a “solution.” Based on what I have read it appears to me that many creators and creators groups before this Committee have limited support for the level and extent of the TPM/anti-circumvention provisions. At a minimum it appears we agree that they need to take account of the existing exceptions in the Act. Creators as users should not have to litigate to have access to what they need to create new work. What artists want is to communicate with those who want to enjoy and use their work. As proposed Bill C-11 invites litigation in many areas. The burdens of litigation bring fear, confusion and unintended costs . They could create problems where none need exist and could delay the progress that has been made in best practices . Will Bill C-11 enable transformative works, alternative distribution networks, as well as provide streams of remuneration through digital reproduction and collective societies? As I said in my opening The norms that underlie copyright should be the ones that enable Canadian culture to flourish, help artists make a reasonable living and reach an audience, allow for less restrictive personal and educational re-uses, and maybe take a step away from intellectual property solely as commodity exchange and towards real cultural conversations. For those of you who have read this far I am grateful to Scott Leslie and Ian Duncan for their careful edits. I have more to say and will post the remainder soon. For inspiration and occasional intellectual encouragement – Lewis Hyde and William Patry. Laura Murray, Tina Piper and Kirsty Robertson whose new book will I hope put intellectual property in its place. I wish our parliamentarians and my colleagues would read their work. We need to fix copyright policy before we do more damage with our laws. And last but by no means least show your support for artists by supporting arts advocacy efforts.

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