To Canadian Cultural Interests

The 2007 is over. Yee hah. Its 2008.

The year in review: it was a relatively quiet year for copyright law. The biggest case was over a chocolate bar, and oddly, not in anyway in relation to a reproduction act, but rather a purchase and subsequent sale. It was almost the case to discriminate in Canadian law if ever a trumping exclusive distribution right. Phhfffttt. Too many US educated lawyers applying Canadian law?

The Fall throne speech and the promise of a round of copyright reform to bring Canada into line with the WIPO internet treaty, was the defining event in 2007.

In the national interest? Very, very questionable.

"Canada's imports and exports of culture goods declined in 2006. The trade deficit widened to its largest level since 1999, as imports, especially from Canada's largest trading partners – the United States and China – continued to surpass exports.

Canada imported $3.9 billion worth of culture goods from the world, a 3.2% decline from 2005. At the same time, exports fell 12.7% to $2.1 billion, the third consecutive decline.

As a result, Canada's trade deficit in culture goods expanded from $1.7 billion in 2005 to $1.8 billion in 2006, the largest deficit since 1999.

The trade deficit with the United States, Canada's largest trading partner, expanded by $236 million to nearly $1.2 billion. This was the result of a 12.4% fall in exports, which far exceeded a 0.9% decline in imports."

The threat in a political vacuum, was simply to throw out of balance the fairness in copyright law, in my opinion, for temporary circumstances to focused trade partner pressure. Canada is still with France, Germany, the UK, and other countries, in signing but not yet wed to the WIPO treaties.

Oddly, for a lesson on the need to ratify the treaty, one should only look at the behaviour of the United States on another copyright treaty, the Berne Convention. The US after plying barriers to entry to foreign copyrights, finally when it felt secure about its dominating position, acceded in 1989. Canada 75 years prior formally in an act independent of the UK. France, Germany, UK, in 1887. A mere 100 plus years. The United States is indeed a "Joe lately."

Ratification of this treaty is one of those decisions that Canada has to make, in full calculation by its own people and for its own people, in its own interests. The notice and codified reluctance is now in law, not to give away Canadian cultural imperatives, is embodied in the Free trade agreements we sign. The US knows Canadian culture is hands off but yet pokes Canadians once in while to see the sensitivities and awareness here. The 36,000+ people today in the Facebook Fair Copyright Group, without much prodding, demonstrated, we are not quite the sleepy lumpenproletariat to march over.

For us, its not a decision to make lightly on the push of successive US Ambassadors or the "Canadian" arms of the foreign music or motion picture industries.

Yes we believe in fair trade but as the farmers of Nebraska or the lumbermen of the US Northwest demonstrated, when we compete fairly to us, we can still get our heads snapped off by the US if we are too successful.

Well Culture is also slightly different than hogs, logs, and black gold. It is the embodiment of a nation, in its intangible medium, that causes us to be different and a nation itself. The Canadian way is different than the US yet we share a common language, in part, yet our cultural depth, in benefiting from First Nations, French and English, is well deserving of the wide recognition that we are a relatively nascent country to the world.

Our culture grows from free expression, mostly of an artistic nature, through the arts and sport, that we must jealously guard our rights and cultivate our culture as we chose. If we fail to dictate our own terms, embodied in our own laws, we are not deserving of being a country with a distinct nationality.

While some may say "Its just copyright law", copyright is through which artistic expression is sustained in a country, through a grant of limited rights. Damage copyright law, or make it too strong or too weak, and you will not have a viable cultural industry, or culture for that matter. Its the nation building stuff folks.

In my read of the Canadian copyright law, we are fortunate to have chosen terms carefully that allow for changing circumstances that competing Canadian interests can readily solve their differences privately, or if necessary in court. One wonders about some cases, over matters such as the authorization right, or the neutrality of the telecommunications companies to copyright owners, if the wisdom in the law on plain reading should have been sufficient to say "enough". Greed appears to push this particular law through the courts as well as a misreading of the law and how the courts will likely interpret that law.

Greed also seems to push the changes in the law requested by foreign interests. Greater domination of markets. Greater legal recompense. Greater lock-in ability.

Privacy? So what. Lets make lots of money.

So to multinational interests, this Canadian says "NO". We do not want your changes in our laws. We do not agree that a person's privacy should be sacrificed in exchange for licensing a mere movie or MP3. We are not a big brother nation and don't plan on being one, anytime soon.

The Canadian film industry with less than a 2% market share in Canada, is but a service industry to the US Studios: is that going to be linked to the reform? The Canadian dollar's rise has killed that industry. WIPO or not, it was to be hard times. Are they going to provide production guarantees, and if so, why sweeten the film production credits? Are the unions involved, used to good times, now in bad times, going to push for stronger copyright laws in line with US interests, to become even more dependent, without any work to do?

The Canadian recording industry? The foreign controlled portion is in the same toilet as the rest of the tech lagging, Wall St. run, music industry. The DMCA did not save the US recording industry in the US and a similar reform in Canadian law won't save the "Canadian" recording industry.

In the "content is king" world, Madison Avenue gets it as outfits like Spiral Frog take off with ad supported models. Maybe, just maybe, it was the worldwide consolidation and M&A related cost cutting, that led to what killed the music business, with severe cuts in artist development, on both sides of the border, and not P2P? A 2007 study for Industry Canada demonstrated a positive relationship between P2P use and CD sales. Makes sense that if you give a music lover a drink, they will want the bottle. DOH!

Could Canada demand 10% of the new releases in Canada by CRIA member companies that meet the MAPL logo (for Music - composer, Artist, Production - recording location, Lyrics - lyricist) in trade for the WIPO amendments they want? Right now, it is likely below 2% the new Canadian artist releases by the foreign controlled companies the CRIA represents: a 2% level is not just unacceptable, its outrageous (it was 4.2%, 3.6%, 2.7% in 1998, 2000, 2003, respectively, per Statistics Canada).

When its in Canada's interest, maybe then that is the time to accede, and if we cannot get a domestic industry, get the trade benefits, in writing, thank you very much but for now, lets just say no. Let us take the US example on the Berne Convention (or the Rome Convention for the Protection of Performers Rights), and do what we do best, study the issue via a Royal Commission, and gain us both some time and industry as a consequence.