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An open letter regarding ACTRA’s position on Canada’s Copyright Act

March 15, 2008

Dear Ladies and Gentlemen of the ACTRA National Executive:

First, please let me reiterate my thanks for setting a strong precedent during last year’s strike negotiations. It was a tough battle which I believe was settled fairly and provided us with the necessary time for our industry as a whole to engage in a wider, and very necessary discussion. As we saw in the IPA negotiations, the producers, on behalf of their counterparts in Hollywood, are more than willing to sacrifice our financial needs and rights behind the cloak of inaccuracies, false statistics and outright lies in order to keep as wide a margin of profit as possible. Although it was an early victory, I’m sure you’ll agree when I say that though the battle is won, the war is far from over.

The forthcoming amendments to the Canada Copyright Act could very well turn out to be a much larger and more painful battlefield for Canadian artists and consumers if we find ourselves poorly prepared when the time comes for the Industry Minister to table his proposed legislation. I have been so surprised by ACTRA’s position, that I feel compelled to write this letter and ask that we open up the debate on the subject to those interested parties within our membership.

Granted, a discussion on copyright won’t necessarily get as rousing a response as the decision to strike did, or even the recent decision to raise our dues. However, for those within the membership who exercise their creative abilities outside of ACTRA’s jurisdiction (i.e. – singer/songwriters, writers, new media artists, etc.), you will likely find that a surprising number of ACTRA members are well-versed in the complexities of copyright today and may want to have some input as to how we, as an association, frame a debate that will inevitably impact the ways in which we “do business”.

I say this cautiously however, as I see my work as an ACTRA member to be a few degrees removed from that of the actual rights holders. As an actor or, the “talent”, on any given production, I don’t feel that my creative contribution entitles me to “creator” status. Though my interpretation of a script may be just what the producer/director/writer is looking for, I am under no illusion that the “right to copy” belongs to the creator or, the “rights holder” of the production.

My first concern with ACTRA’s public statement on “our position”, is due to its tenuous link between the issue at hand, and ACTRA’s role with regards to administering and protecting copyright. ACTRA’s role, as I see it, is a supporting role in which its members do not hold any “intellectual property rights” to the productions in which they appear. Any rights that they do have within this realm have already been successfully negotiated for as “residuals”.

Which begs the question, who is ACTRA supporting with public statements such as “Myths and Truths about the Proposed Changes to Canada’s Copyright Act”? It is obvious by the claims made in this document that you have already heard from a few of my fellow members who have posed a similar question. Though I refuse to believe that ACTRA is “acting in the best interests of big business”, I do question the logic employed in “Myths and Truths” as being beneficial to the membership-at-large. Far from making an attempt to portray the ACTRA executive as “in bed” with the CFTPA (or, god forbid, the MPAA), I would like to point out the specific statements which raise alarm for me first, as a Canadian citizen, and second, as a Canadian artist.

1) It is premature to make the assumption that the changes to the Canada Copyright Act (CCA) will mimic the U.S.’s Digital Millennium Copyright Act (DMCA).

An assumption is by its very nature “premature”, since none of us can lay claim to any proof of what the changes to the Act may be. As ACTRA has pointed out in the publishing of “Myths and Truths”, we won’t know the facts of the proposed changes to the CCA until the legislation has been made public. It would stand to reason then, that ACTRA is publishing “assumptions” as well.

To call an opposing viewpoint a “myth” makes it difficult to win the hearts and minds of the very people we’re trying to reach with these public statements, namely, the audience at home. Though the “truths” are convincingly worded, they do not represent the thoughts and feelings of the average Canadian citizen. Consider the fact that a Facebook group, led by copyright expert Michael Geist, has already recruited over 40,000 people who are opposed to this legislation being passed without appropriate debate. The membership of this group alone (local groups notwithstanding), is double that of ACTRA’s membership.

With powerful organizations such as the Motion Picture Association of America (MPAA) lobbying governments, it can hardly be called “an assumption” to hold the belief that the upcoming changes might resemble the laws within the U.S.’s DMCA. To put a finer point on it, it’s like saying that even though the U.S. might have the Patriot Act, we probably won’t go that far ourselves because we’re Canadian.

Consider the MPAA’s recent announcement clarifying their stance on “net neutrality”1, and I think that there is very good case to be made that there will (indeed, probably already has), been a significant amount of pressure put on our Canadian government to make sure that our copyright laws will become more compatible with the Digital Millennium Copyright Act.

2) The vast majority of TPMs (Technical Protection Measures) do not collect personal information and cannot violate your privacy. For example, your DVD player uses TPMs. Your DVD player is not collecting personal information or violating your privacy.

If your DVD player happens to be your laptop, or your Playstation 2 (or your PS3), then your DVD player could very well be collecting and transmitting your personal information via the broadband connection that connects the device to the internet. This applies to CD’s as well.

One only needs to look at the Sony/BMG “root kit” scandal of 20052 to understand that the “truth” espoused by ACTRA is actually the “myth”. This is a very real, yet little known and understood problem for the consumer of products containing TPM technology. Such software not only has the ability to collect and transmit data from your computer (i.e. – listening/viewing habits, purchase history), it also leaves your computer wide open with a “window” to viruses and spyware, all left unseen to the owner of the computer.

To be sure, this can’t be the case 100% of the time, but rules and regulations for disclosure and transparency need to be an essential part of the debate before giving our tacit approval to something that we haven’t yet seen. In addition to protecting the rights of the copyright holder, we also need to fight for the rights of those who are purchasing these products. This makes sense by mere virtue of the fact that we, as citizens before being union members, are consumers of these products just the same as our audience.

3) The new “make available” right is specifically designed for digital downloads and streams, and gives the artist/performer choice and flexibility in how his or her work is made available to the public.

To say that the “make available” right is a reason for ACTRA to support the Canadian Copyright Act as an organization is disingenuous from the standpoint that it is not within the purview of any ACTRA member under contract to make a decision of that magnitude. Please, do correct me if I’m wrong, but it is my understanding that as an ACTRA member contracted to a production, I am not allowed to “make available” my services under a licensing agreement such as the Creative Commons, as such a move would not be recognized under the current IPA.

As an independent musician or as a writer, I have such options at my disposal, but as an ACTRA member, my work in film, television or radio cannot be “made available” outside of the contract that I originally sign with the “rights holder” of a production. In other words (as I understand it), if my performance is to be “made available” on the internet, it can only be done so after the producer, or person(s), who hold the “intellectual property rights” to the production have honoured their contract with me as “talent”.

The difficulty that I have with many of the claims in favour of the forthcoming “proposed amendments” which we are being encouraged to support, come from the fact that many of the stated benefits and “victories” are primarily applicable to the music industry. It is true that the music industry has been facing these issues for the better part of the past decade, which is precisely why we should be following their lead. By and large, the music industry is not supporting DRM (Digital Rights Management) technology because they now understand it to be a detriment to their business, rather than having a positive effect with their customers.

The right to “make available” your work as an artist in the digital age is a crucial one. However, I can’t see how this is possible as an ACTRA member and therefore am uncertain as to why, as an ACTRA member, I would support legislation that is taking its cue from organizations such as the Canadian Recording Industry Association (CRIA, and it’s American counterparts, RIAA and it’s film brethren, the MPAA).

There will be, I’m sure, items that will be of benefit to us in the proposed changes, but to state our collective support to the many uncertainties that lie in wait will almost certainly hamper (if not outright hurt), many of your members who are turning to music and other creative outlets in the digital world as a means to express themselves while they wait for the rare opportunity to actually work under an ACTRA contract.

Unlike our counterparts in the music world, ACTRA members are not independent. The film industry today is reacting to the digital world much in the same fashion as the record industry did in the face of Napster. All the rules in the world that the “industry” can organize in their favour, are not going to change the reality which we have witnessed during the last 10 years. The music industry has had to address the shift from the “economics of scarcity” to the “economics of abundance”, with innovative approaches that often come from the performer themselves, instead of finding news ways to “lock it down”.

I think it would be foolish to believe that somehow, Stephen Harper, Shaw, Videotron, the MPAA, CRIA, the list goes on…are actually trying to shape a policy that keeps the needs of artists in mind. It is my belief that they have profit in mind and will enact legislation that will help create an environment in which the independent film-maker will have his or her film be next to impossible to find due to the internet “traffic shaping” already practiced by our ISP’s 3 4. Protecting the studios and the content owners right to implement TPM technology needs to be parsed with the consumer’s right to privacy. DPM tools, while addressing the immediate question of a creator’s right to distribute their work as they see fit, regularly fall short of the user’s right to use their product as they wish in a non-commercial way – a right which they have paid for.

I have no doubt that you’re acutely aware on a daily basis that it is a fine line ACTRA needs to walk between “industry stakeholder” and “performer’s union”. On one hand, your job is to protect and promote the rights of the performers you represent, on the other hand, you appear before parliamentary committees as a member of the greater broadcasting industry. With such tectonic shifts happening within our industry, I commend the speed and knowledge that you are able to employ so frequently. I can only imagine the pressure an organization like ACTRA must have to face every day.

What I propose with regards to the concerns that I have raised is the formation of a “new media” committee which can provide a forum for discussing the needs of interested ACTRA members. At the very least, a “town hall” type meeting that would provide the opportunity for the ACTRA executive to clearly discuss issues such as the Canada Copyright Act with those concerned members before issuing statements on their behalf which may be detrimental to their work in other areas. Not to mention the implications as a citizen and a consumer.

Thank-you for taking the time to listen to my concerns.

In solidarity,

Jason Chesworth, Actra member