Outline

CRA Briefings June / July, 2005 AND WE QUOTE … #28 The fact that writers and composers have a need to work is no argument in favour of them losing rights in their own property. Like peasants, writers and composers need to work to survive. Like peasants, writers and composers also deserve liberation from serfdom. Derek Strahan, The Artist as Serf ALLIANCE ACTIVITIES…. The Annual General meeting of the Alliance took place in Montreal at the Centre Saint-Pierre on th May 19 2005. Delegates from thirteen member organization were in attendance. In addition to reviewing the activities for the past year and the work place for 2005-2006, the co-chairs were able to report that a new arrangement for funding has been negotiated with the federal government (Department of Canadian Heritage) that will be renewable for three years. The meeting elected the Steering Committee for 2005-2006 as follows: English Canada Caucus : Susan Crean (TWUC), chair, Ken Thompson (ACTRA) director, Audrey Churgin (CAR/FAC) director. Quebec Caucus : Michel Beauchemin (AQAD) chair, André Cornellier (CAPIC) director, Mireille Gagné (CMC) director Indigenous Peoples’ Caucus : Greg Young-Ing, chair UPDATES …. UNESCO ADOPTS A DRAFT CNVENTION ON THE PROTECTION AND PROMOTION OF THE DIVERSITY OF CULTURAL EXPRESSIONS The representatives of more than 130 countries met last May 25 to June 3 to deliberated the proposed draft convention on the protection and promotion of the diversity of cultural expressions from a consolidated text set by the chair of the intergovernmental meeting, Mr. Asmal. The adopted, in spite of strong opposition from the government of the United States, an draft rd convention which will be debated and voted on at the 33 General conference of UNESCO next October. The Canadian Coalition for Cultural Diversity (CDC-CCD) sees the outcome of the UNESCO negotiations as a “significant victory”, and considers that, if adopted, the convention will:  Recognize in international law the distinctive nature of cultural goods and services in that they are carriers of values, meaning and identity.  Clearly affirm the right of countries to have domestic policies in support of cultural diversity.  Include provisions by which developed countries undertake to support developing countries in nurturing the development of their own emerging cultural industries. 1    Assert the principle of non-subordination - meaning the legal status of the convention in international law will be equal to that of other international treaties, including trade agreements. Commit countries to take the provisions of the convention into account not only when entering into other international agreements, but also when applying and interpreting agreement to which they are party. Include a basic dispute settlement mechanism, creating the potential that in the years ahead the convention will accumulate a body of decisions on issues of cultural policy that will ultimately influence how culture is treated in trade agreements. Although generally satisfied with the draft convention, the CDC-CCD does suggest that there are lacunae. “We would have preferred to see a binding dispute settlement mechanism, even if the mechanism that was adopted represent an important first step,” says Robert Pilon, the Coalition’s executive vice-president. “”And while we are pleased with the language in the convention asserting it will not be subordinated to other treaties, we remain concerned about how the convention will relate to trade agreements in practical terms. Realistically, we believe it will take some years before this is clarified.” For more information, consult the Website of the Coalition at : www.cdc-ccd.org The draft convention adopted in June certainly constitutes a major advance for the right of states to define cultural policies that will permit them to promote cultural diversity within their own countries. Unfortunately, the same cannot be said for the consideration of the rights of individual creators. The draft Convention for the protection of the Diversity of Cultural Contents and Artistic Expressions, released in July 2004 recognized the essential role of individual artists in the development of cultural goods and services, and consequently, affirmed the necessity of guaranteeing them appropriate intellectual property rights. It also stipulated that the states which would eventually ratify the convention must, in their own territory, offer all individuals the possibility of creating, producing and distributing their expressions, which is to say their cultural goods and services. It also affirmed that states that are party to the agreement must ensure that the legal status of creators is fully recognized. These provisions do not figure in the Convention on the Protection and Promotion of the Diversity of Cultural Expression, having been watered down or completely removed. You can judge from the following comparison. Text of the Draft Convention of July 2004 Preamble - Clause 9 Emphasizing the vital role of the creative act, which nurtures and renovates cultural expressions, and hence the vital role of artists and other creators, whose work needs to be endowed with appropriate intellectual property rights, Text of the Convention adopted in June 2005 Preamble 16. Emphasizing the vital role of the cultural interaction and creativity which nourishes and renews cultural expressions, and enhances the role played by those involved in the development of culture for the progress of society at large, 17. Recognizing the importance of intellectual property rights in sustaining those involved in cultural creativity, 2 Text of the Draft Convention of July 2004 4. Cultural Goods and Services “Cultural goods and services” (a non-exhaustive list of which is annexed to the Convention, see Annex I) refer to those goods, services and activities that embody or yield cultural expressions and have the following characteristics: a) they are the outcome of human labour (industrial, artistic or artisanal) and require the exercise of human creativity for their production; b) they express or convey some form of symbolic meaning, which endows them with a cultural value or significance distinct from whatever commercial value they may possess; c) they generate, or may generate, intellectual property, whether or not they are protected under existing intellectual property legislation. Text of the Draft Convention adopted in June 2005 4. Cultural activities, goods and services “Cultural activities, goods and service” refers to those activities, goods and services, which at the time they are considered, as a specific attribute, use or purpose, embody or convey cultural expressions, irrespective of the commercial value they may have. Cultural activities may be an end in themselves, or they may contribute to the production of cultural goods and services. Text of the Draft Convention of July 2004 Article 7 – Obligation to promote the diversity of cultural expressions 1. States Parties shall provide all individuals in their territory with opportunities: (a) to create, produce, disseminate, distribute, and have access to their own cultural expressions, goods and services, paying due attention to the special circumstances and needs of the various social groups, in particular, minorities and indigenous peoples; (b) to have access to the cultural expressions, goods and services representing cultural diversity in other countries of the world. 2. States Parties shall also ensure: (a) that the legal and social status of artists and creators is fully recognized, in conformity with international existing instruments, so that their central role in nurturing the diversity of cultural expressions is enhanced; (b) that intellectual property rights are fully respected and enforced according to existing international instruments, particularly through the development or strengthening of measures against piracy. Text of the Draft Convention of June 2005 Article 7 – Measures to Promote Cultural Expressions 1. Parties shall endeavour to create in their territory an environment that encourages individuals and social groups to (a) to create, produce, disseminate, distribute and have access to their own cultural expressions, paying due attention to the special circumstances of women as well as various social groups including persons belonging to minorities and indigenous peoples; (b) to have access to diverse cultural expressions from within their territory as well as from other countries of the world. 3 Creators have obviously lost a rare opportunity to reinforce their status in the context of an international convention creating obligations from signatory countries. This, at a moment when, in Canada for example, creators see their rights being increasingly eroded in favour of the users of their work who, from judgment after judgment from the Supreme Court of Canada, and from reform after reform of the Copyright Act of Canada, are given ever more extensive rights. This is also happening in a context where it is increasingly clear that the Status of the Artist laws in place in Canada as well as Quebec, are failing to adequately protect artists working in the theatre, in the visual arts and crafts as well as in literature. SOUTH AMERICAN COPYRIGHT REVISIONS MAY VIOLATE THE BERNE CONVENTION Following on the heels of proposed legislative revisions in Chile, Venezuela is proposing its own changes to the copyright act that many observers claim violate the Berne Convention. The Servicio Autonomo de Propiedad Intelectual (SAPI) has introduced draft legislation that would give the government absolute power of seizure of copyright when it is deemed to be in the public interest. Most damaging to creators is the broad exemption for reprography where it is “useful for the public”, and the prohibition of the sale of school texts, illustrations, maps, artistic and musical works, eroding the commercial basis of the cultural industries. Undoubtedly, such revisions to copyright law will garner much attention over the coming year. For more information on the proposed revisions see the IFRRO Newsletter for April 2005 at www.ifrro.org WILL LEGISLATORS WEAKEN DRM? Within weeks of announcing legislation that would ban the downloading of music and movie clips in Sweden, the Swedish government is considering a ban on the use of certain forms of DRM (digital rights management). Thomas Bodström, Sweden’s Justice Minister, has called on record companies to stop protecting CD’s with imbedded protective technology that prevents copying. He suggests that individuals who purchase music should be able to import that music onto an iPod, or make an extra copy for use in their cars. The Justice Minister has also suggested that if record companies continue to use DRM the government may take steps to make its use illegal. For more information on current legislative developments in Sweden please see: http://www. thelocal.se/article.php?ID=1457&date=20050519 WIPO ACTIVE ON THE GLOBAL STAGE WIPO has recently taken steps to stimulate discussion on the protection of a variety of Copyright rights in the Middle East. In May, WIPO hosted a series of meetings in Rabat Morocco that included a Regional Consultation on the Protection of Broadcasting Organizations, as well as an Arab Regional Meeting on the Collective Management of Copyright and Related Rights. For more information on these meetings see http://www.wipo.int Additionally, WIPO released a Draft Treaty on Access to Knowledge in May The full contents of the Draft can be found at www.wipo.int 4 THE BATTLE AGAINST DOWNLOADERS TURNS CRIMINAL For the first time, government officials in the United States have employed criminal enforcement measures against users of the popular peer-to-peer software program BitTorrent. Spurred on by the appearance of Star Wars: Revenge of the Sith free for the taking on-line, US Immigrations and Customs Enforcement officials issued 10 search warrants and shut down the site on which much of the activity was occurring. Though dedicated to stopping on-line piracy, this action was focused on active uploaders of the information who were identified by US authorities as the elitetorrent. For more information on this activity please see: http://money.cnn.com/2005/05/25/technology/piracy http://www.latimes.com/technology/la-fi-torrent26may26,1,3465487.story ETC… The Comments on the US Initiative to deal with orphaned Works have been posted on the US Copyright sectors web page at www.copyright.gov/orphan/comments/ The European Union is making comments on Digital Rights Management http://europa.eu.int/information_society/eeurope/2005/all_about/digital_rights_man/events/index_en. In response to cuts, BBC staff have gone on strike. (See Briefings #27 that noted the controversy about the future of public broadcasting in the UK.) LITIGATION… NO GO FOR THE CRIA APPEAL The Canadian Federal Court of Appeal has rejected CRIA’s Appeal of the judgment of Justice von Finklestein in BMG Canada Inc. v. John Doe. In the Court’s decision, released on May 19, the Court cites privacy concerns and inadequacy in the evidence among its primary reasons for rejecting the appeal. CRIA has not yet announced if it will seek leave to appeal to the Supreme Court of Canada. However, the Court decision has been interpreted as a win by both sides as it does not preclude other law suits where the interests of copyright need to be protected. The reasons for the Federal Court judgment can be found at: www.fca-caf.gc.ca Despite the recent Canadian court decision, efforts to elicit the identities of infringers from ISP’s continue to grow. In the Netherlands, Dutch Protection Rights Entertainment Industry Netherlands (BREIN) is seeking the names of 42 individuals believed to be engaging in extensive file sharing. BREIN only knows these individuals by their ISP addresses and, to date, the five largest ISP’s in the Netherlands have refused to disclose the identities of the swappers. www.tglaw.co.il/full_news_e.asp?cat=3&id=39 . The Recording Industry Association of America (RIAA) has also recently announced over 600 new lawsuits against on line file swappers. http://news.com.com/2110-1027_3-5721864.html ISREALI COURT LIKES DIRECTORS’ RIGHTS A District Court in Tel Aviv has ruled that directors have copyright in their movies. Although the right is presumed in a number of other countries, including Canada, the Israeli court is the first to actually rule on its existence. This case was brought by TALI – The Collecting Society of Film and TV Creators in Israel – which sought a share in the blank media levy administered by the Association of Composers, Authors and Music Publishers. Though not explicit in the legislation, the court determined that directors held copyright in the works they produce. This case is seen 5 as a victory for directors in Israel who will now be able to share in the levy and seek other royalties for the use of their work. GLOBAL ARTISTS ISSUES…. Focus on the AUSTRALIA Australian Copyright law has historically been very similar to Canadian law as both statutes where originally based on the British law. However, there are some important distinctions. For example, Australian law has a broader definition of fair dealing; one that mentions research and study rather than research and “private” study as Canadian does. The Australian government is now poised to make some substantial changes to their Copyright Act. In the first instance, there will be changes to implement the WIPO treaties. But there will likely be further amendments following from the recently negotiated bilateral free trade agreement with the United States. This agreement calls for a longer term of protection for copyright, and it also calls for the adoption of an American approach to fair dealing. This latter change could have a negative impact on the rights of Australian creators for it expands the scope of fair dealing such that the rights of users would be determined on a case by case basis by the Courts. The Government is also considering revisions to the Copyright Act that would deal with directors’ rights and Indigenous communal moral rights. For more information on the activities of the Australian government please see www.copyright.org.au Recently, the Australian Government released a position paper on fair dealing, soliciting comments from the public. The commentary is comprehensive in scope and poses some key questions about fair dealing, fair use and TPM’s (technical prevention measures) that eventually will have to be considered by Canadian legislators. However, one distinction between the Australian and Canadian situations that which cannot be discounted is the fact that Australia’s system includes statutory licensing (ie. compulsory license). The paper can be found at www.copyright.org.au. CONCERNS FOR THE AUSTRALIAN CREATOR Australian creators are concerned about revisions to the Copyright Act that may further restrict the protection for their rights and expand the legitimate (exempted) uses of their works. Pressure for the expansion of users rights is coming from powerful lobbying groups including the Australian Digital Alliance www.digital.org.au. Creators are similarly worried about the effects of free trade as Australia is actively negotiating a number of trade agreements, notably regional trade agreements with New Zealand and other countries in South East Asia. The fear is that Australian culture will be lost in bargaining. Efforts are being made by the Media, Entertainment and Arts Alliance to ensure that Australian culture is protected. See their report titled “Turning up the Heat” at www.alliance.org.au. Australian creators are moving with the times and increasingly are marketing their work on the Internet. These steps are seen as a way to make Australian content more readily available to the public. Picture Australia, a clearing house for the photographic creations of Australia’s 6 photographers, is one example of the new approach. The market niche being exploited in this instance is the ability to provide higher quality prints than clients could achieve on their own by downloading images from the internet. To explore this marketing strategy please see www.pictureasutralia.org AUSTRAILIAN ORGANIZATIONS INVOLVED IN THE MAINTENANCE AND PROTECTION OF CREATORS’ RIGHTS Australasian Performing Rights Association: www.apra.co.nz/welcome.htm Copyright Agency Limited www.copyright.com.au Australian Copyright Counsel www.copyright.org.au Australian Cinamatographers Society www.cinematographer.org.au VisCopy www.viscopy.com Intellectual Property Research Institute of Australia Australian Library and Information Association http://alia.org.au Picture Australia www.pictureaustralia.org Media, Entertainment and Arts Alliance www.alliance.org.au Australian Writers Guild www.awg.com.au Australian Interactive Media Industry Association www.aimia.com.au UPCOMING EVENTS FOR AUSTRALIAN ARTISTS JULY The government of Australia will be conducting Public Impact Seminars to assess the impact of copyright reform on July 13 in Sydney, and July 20 in Melbourne Australian Interactive Media Association National Summit – Sidney AUGUST 30 ~~~~~~~~ WATCH FOR…. (meetings, conferences, events) JUNE 28 – 29 International Symposium on Cultural Diversity, Santiago, Chile www.unav.es/cee/pagina_9.html June 30July 1 WIPO Symposium on Intellectual Property Research and Education Geneva, Switzerland AUGUST 14-18 World Library and Information Congress 2005 – Oslo, Norway www.ifla.org 7 SEPTEMBER 15-16 Insight Law Conference on Canadian Copyright Reform. The Old Mill, Toronto. Organized by The Insight Information Company. Speakers include: Daniel Gervais (University of Ottawa), Bruce Stockfish (Canadian Heritage), Ken Thompson (ACTRA), Gordon Henderson (CRIA), Marcus Bornfreunde (Creative Commons Canada) See: www.insightinfo.com OCTOBER 3 – 21 General Conference of UNESCO. 24-28 International Federation of Reprographic Rights Organizations (IFRRO) Annual General Meeting. Madrid, Spain NOVEMBER 16 –18 17 – 23 World Summit on the Information Society, Second Phase, Tunis, Tunisia 6 INCD Annual Meeting , Dakar Senegal www.incd.net International Congress of Nanotechnology. San Francisco, California th 4 DECEMBER 13 –18 Sixth WTO Ministerial Conference, Hong Kong CRA Briefings #29 August 25 , 2005 th Editorial and Research Committee: Michel Beauchemin, Susan Crean, Greg Young-Ing. Virginia Jones CRA Briefings is published by the Creators’ Rights Alliance/Alliance pour les droits des créateurs for Canadian creators. Please circulate. The CRA/ADC acknowledges the support of the Department of Canadian Heritage, and the Canada Council for the Arts. Please note: Nothing in this briefing constitutes the provision of legal advice. If you are faced with legal issues, you should consult a lawyer experienced in your area of concern. e-mail :info@cra-adc.ca Website: www.cra-adc.ca 8