I am not a member of SAC (I am a member of ACTRA), but I have been a songwriter for over a decade and I do have digital files of my music all over the internet (i.e. – iTunes, CDBaby, Rhapsody etc. etc.). In other words, I “have a dog in this fight”. I care about the content that I create and I care about my rights as a user. The fundamental difference that I see in SAC’s proposed model vs. ACTRA’s rhetoric is this: SAC comes to the table with empathy, understanding and, most important, a solution to the problem for its customers.

What SAC is proposing is not a “levy” or a tax. SAC is seeking a new licensing arrangement with Internet Service Providers that would allow would-be copyright infringers the opportunity to pay a license fee (based similarly on Cable TV premium subscription packages) while allowing those who don’t download to opt out. The key word here is: License. If an infringer chooses to opt out of paying the license fee and proceeds to download anyway – then they have to deal with the consequences. That said, I continue to put my money (or lack thereof) where my mouth is, as a content creator, and maintain the belief that “illegal downloading” is not the scourge that Music Canada (the entity formerly known as CRIA) would have you believe it is. But, I digress and don’t want you to confuse SAC with CRIA… I mean – Music Canada.

I encourage all those interested to check out SAC’s proposal here and here.

I’d like to take a moment to discuss SAC vs. ACTRA in the public realm in more detail. I’ve blogged at length on the need for ACTRA to take a back seat when it comes to being the public mouthpiece for Canadian artists and content creators, but for the uninitiated, here are a few points to consider:

1. ACTRA does not represent copyright holders the same way that SAC does: ACTRA represents “neighbouring rights” holders. Bearing in mind that “copyright” is technically a bundle of various rights and that ACTRA performers do indeed have a “copyright” on their performance: they *license* their performance (read: sign over their copyright for an agreed sum) the minute they sign an ACTRA contract. Terms of contract vary, but considering the fact that any jurisdiction ACTRA has over the matter has been signed over to the contracting Producer; it’s easy to see how ACTRA gets criticized for appearing to be speaking to the needs of Broadcasters & Distributors rather than Artists.

2. ACTRA RACS (Recording Artists’ Collecting Society) should be the umbrella under which ACTRA sends its representatives out into the public eye.  As much as I love Eric Peterson and respect him as an actor, ACTRA shoots themselves in both feet when they let him (and others, like – Wendy Crewson, Leah Pinsent, Peter Keleghan – all fine artists who sign ACTRA contracts) go out in front of the cameras and equate watching their TV shows for free with motor vehicle theft. First of all, “illegal” copying is not the same as stealing a car and anyone who knows how to use the internet already knows that they can watch Canadian TV for free, on-line, by streaming it directly from the Broadcasters website. It’s difficult to understand how the average Canadian actor is hurt by file-sharing. ACTRA would be better off asking the likes of Michael Buble, K.D. Lang, K’nann or even Jason Collett to speak up instead. If they decline the offer to be a spokesperson on the topic, that answer should be instructive.

3. SAC’s membership is comprised solely of copyright holders. Some are signed to big labels while others are as independent as you can get. Some aren’t even performers. SAC’s membership is directly effected by downloading and they’re offering a solution. Even some within SAC make the mistake of equating “illegal” downloading with grand theft auto, but despite this fact, they bring forth a proposal that doesn’t require changing legislation. SAC’s proposal can go forward without re-writing Canada’s Copyright Act.

Ultimately, I don’t think that SAC’s proposal (as good as it is), will be embraced by ISP’s, Broadcasters and the like, for the same reason that I don’t think that ACTRA will be seeing any further support for the Private Copying Levy.

The reason: Studios & Labels stand to make much more money from suing “infringers” than they do from helping collection societies find revenue to support artist development.

I’m happy that my conversation has sparked a debate for a few people and that the response has been overwhelmingly positive. Interestingly, any real criticism of my conversation has come from within the Occupy movement more so than from critics who are opposed to the movement and therefore opposed to my call in the first place.

I went into the conversation expecting to leave a message on a machine and intended to record just my message to post for my Facebook and Twitter friends as a way of saying, “See how easy it is? This is the number you have to call”. I hadn’t the slightest notion that over 3000 people would listen to it by the end of the week. I wasn’t trying to land any verbal punches on the mayor, I was looking to hear what their response would be to my questions. My questions. Unlike my conversation partner, I wasn’t working from a script and I wasn’t attempting to speak for anyone other than myself.

That said, I was obviously prepared to talk to and record Tom. I had called the week previous and had a very short, 5 minute conversation with him. I found his talking points so myopic, I just felt that it was more important for my friends to hear the Mayor’s office explain their position without having it filtered by the media or broken into pieces for commercial breaks.

I went into the conversation with these objectives:

1. Voice my support for the Occupy movement
2. Be respectful and don’t seek an argument
3. Ask how many people the mayor’s office had to hear from in order to reconsider their position and ask where a suitable location would be to hold this protest
4. Listen to what they had to say
5. Don’t bother trying to convince the person on the other end of the phone of my position.

After that, I was just a concerned citizen flying by the seat of my pants.

I would love to hear Tom’s response to your questions! Truly! You don’t even have to call in your support or lack of for the Occupy movement, you can call them to demand that our libraries are kept open!

416-397-3673

It’s really unfortunate that the good for which ACTRA fights gets overshadowed by their cloudy logic on copyright.

I’m a fan of Leah Pinsent but, yikes… did she ever do Canadian actors a great disservice by calling mash-ups “morally wrong”.  Not to mention the fact that this kind of attitude has the exact opposite effect of fostering cultural expression (which presumably she went to Parliament Hill to fight in support of, in the name of Canadian performers and cultural creators).

I don’t understand ACTRA’s fear of mash-ups. Mash-ups are awesome.That’s why they’re popular.

I’ve searched the entire internet and I can’t find a single video mash-up with Leah Pinsent in it. She has nothing to worry about… unless…

Paging Leah Pinsent – there aren’t any mash-ups of your work on the internet. You should be more worried about the fact that you don’t have any mash-ups rather than fight a hypothetical on “behalf” of the rest of us who might love the opportunity/honour to have enough work out there in the first place, to have mashed-up by a) fans or, b) other artists who have been inspired by the work to spend time creating a mash-up.

I hope that Ms. Pinsent comes around and starts fighting on behalf of the mash-up (creative commons) culture. That would show some forward, progressive thinking. It’s going to be really difficult for ACTRA not to look like its being run by a bunch of out-of-touch luddites if they keep this kind of narrative in the media.

For what it’s worth, here’s the first result in a YouTube search of “Gordon Pinsent Mashup”:

View This Poll

I’m not a lawyer, nor am I an expert on copyright, but I do spend a fair amount of time reading Canada’s Copyright Act as well as the proposed changes to the Act (Bill C-32) in an attempt to make sense of the various claims being made by certain creators unions (i.e. – ACTRA, Writers Union of Canada). Though I have no doubt that those from within the unions (the “office staff” I mean, not the members), spend a great deal of time reading up on copyright issues themselves, I often ask myself: “Do they actually read the existing Act and proposed legislation itself? Or, do they read summaries written by other people who they trust?” Since most of us aren’t legal or copyright experts, I can easily envision a scenario in which a creative union’s elected representatives prefer a “fact sheet” as a “backgrounder” on the topic as opposed to hunkering down with the Act itself.

Up until now, I’ve been primarily focused on ACTRA’s approach to Copyright reform because I’m a member (who happens to be a copyright holder). I’ve posted a number of blogs detailing some of the false claims that the union has made publicly on behalf of its members. Now, I’m not a novelist and I don’t belong the the Writers’ Union of Canada, but the video below has some very well-known authors falling into the same trap that ACTRA had Eric Peterson, Wendy Crewson and Peter Keleghan take part in back in November 2010.

Correct me if I’m wrong, but the Writers’ video sounds an awful lot like ACTRA’s campaign: “Free Today: Gone Tomorrow”. ACTRA explains Bill C-32′s Fair Dealing expansion as follows:

Put the brakes on the fair dealing expansion
The Bill says any material used for education should be free, without defining ‘education’. Institutions pay the full cost of desks, computers and teacher salaries, why would they not pay for the content deemed valuable enough to use in their classrooms?

Compare ACTRA’s language with the language of Bill C-32:

Section 29 of the Act is replaced by the following:

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

And, in an effort to be “fair and balanced”, let’s look at the existing Copyright Act:

Fair Dealing

Research or private study

29. Fair dealing for the purpose of research or private study does not infringe copyright.

Again, I’m not a lawyer or an expert, but it looks to me like Bill C-32 is proposing to expand the “Fair Dealing” provision by adding the categories of “education”, “parody” and “satire”. I don’t see any language offering up an artist’s work for free. It’s also worth noting that the “creative unions” aren’t taking umbrage with the “parody” or “satire” exemptions. I’ll take an educated guess here and say that it’s because such a move would enrage their memberships (who, at large, are obviously not reading the fine print).

So, how can the union reps lay claim to the notion that government is legislating away the right of an artist to make a living by giving their work away for free under the rubric of “education”? As Stephen Waddell, Executive Director of ACTRA states:

The Conservative government unabashedly states that extending fair dealing to education “will reduce administrative and financial costs for users of copyrighted materials that enrich the educational environment.”  This is a clear acknowledgment that if this provision were to become law, an unspecified amount and type of reproduction of copyrighted materials for the purpose of “education” would indeed become free.

Before you take either the Harper government or ACTRA at face value, let’s look again at Bill C-32 on extending fair dealing to education:

Subsection 29.4(3) of the Act is replaced by the following:

(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (a) of the definition “commercially available” in section 2, in a medium that is appropriate for the purposes referred to in those subsections. (emphasis added)

Please, please, please do not mistake this blog post as an endorsement of Bill C-32. Quite the opposite, I abhor the Bill and think that it will indeed ruin many opportunities available to artists, but, as in previous blog posts, I’m saying that it’s important to understand when your rights are, in fact, protected.

This idea comes via Russell McOrmond. (Twitter feed & blog). He suggests that, “Section 19 is a compulsory license applied to neighbouring rights holders (performers and makers of sound recordings) that applies to communication to the public by telecommunications (radio).  I believe this compulsory regime should be expanded to include non-commercial distribution, and not just commercial radio.  This regime doesn’t apply to composers, who license their music in appropriate ways.”

2. Explore a Private Lending Right type of mechanism.

Again, this is an idea that McOrmond has suggested as an alternative to the Private Copying Levy. “The Public Lending Right (PLR) Commission distributes annual payments to Canadian authors for the presence of their books in Canadian public libraries.”- from the PLR’s website.

It’s an interesting idea especially when you put the words “lending” and file “sharing” together. I do believe that the sharing of files far and wide, unencumbered with digital locks will expand our fan bases and not diminish a fan’s desire to pay for content at some point. If a person “illegally downloads” a song it does not become implicit that they would have paid for it otherwise, thereby “robbing” the creator of income. It is also possible that a so-called “thief” could have paid for the very same content at some point in the past, perhaps in different formats as well (i.e. 8-track, cassette, vinyl, CD, VHS, BETA, Laserdisc…).

Ultimately, I can’t see the government/business lobby taking either of McOrmond’s suggestions (as valuable as I think that they would be to explore), because it would legitimize the act of downloading and as I’ve been saying, there’s bigger money in litigation.

3. Redirect any levies or “taxes” to programs such as FACTOR, Canada Council etc.

Maybe it would be more palatable for those opposed to a “tax” if they looked at the extra money as a real investment in new and developing talent as opposed to established artists looking for another form of remuneration based on a hypothetical. Instead of pitching a levy (which gets spun as a “tax”), pitch an investment that is a real investment. i.e. – “buy this iPod and $75 will go to the FACTOR Demo Award Program” or something like that.

I can hear a dozen James Moore’s chirping a million reasons why none of the above should happen. I think I’ll go turn the guitar on to drown out the sound of his voice…

In the meantime, watch this clip of the brilliant Canadian Cabaret singer Sharon Matthews. I hope the new copyright laws that her unions are lobbying for won’t impede the growing success of her show.

“Crying won’t help you, praying won’t do you no good” – “When The Levee Breaks” by Kansas Joe McCoy and Memphis Minnie

I cringe when I hear people ridicule artists for speaking publicly about political issues. However, if an argument doesn’t hold up to the available facts it won’t matter if you’re a performer or a politician; your words count, so use them well. Personally, when I attempt to make sense of anything in the political arena, I often look to writers, musicians and artists from all disciplines, to find out what their insights are. Heck, if it weren’t for satire, I’m not sure that anyone would understand what’s happening in the world at all.

Every single ACTRA member who lobbied Parliament on behalf of performers nation-wide, is an artist. They’re artists who I have gladly paid to see in the past and will continue to do so in the future. I respect the hard work that they have all been fortunate enough to put into their careers, not just consistently, but at a consistently “high” level of Canadian television and film over the past few decades. If you are one of the lucky few who gets to make a steady living on ACTRA signatory productions, it makes perfect sense to want a bit of control over your image and your work. Unfortunately, given the talking points that 5-minute press interviews reduce an argument to, ACTRA found itself in the odd position of running out the clock by pitching for a levy that a) will not be supported by a Conservative or a Liberal government and, b) does not even apply to those ACTRA members who are so passionately begging for its extension. I wish the two day media blitz had been spent saying “Save Canadian Television” instead of “Free Today: Gone Tomorrow”.

I know without a doubt that the ACTRA council’s main objective, (when it comes to activism), is to preserve original Canadian programming on our airwaves and promote the funding of it. Every actor wants to work and I don’t blame them for doing what they can to strive for any type of job protection. Even though we don’t get any more money or any more assurances from government and/or business that our so-called Canadian Content will be preserved; at least ACTRA’s efforts have kept the issue of diminishing funding on the screens of those at-home-viewers. It’s a worthy cause and even if we don’t directly benefit in the form of newly expanded investment in “Canadian Culture”, at least it can be said that ACTRA helped by trying to stem the negative flow of arts funding.

Ultimately, I’d like to see ACTRA re-focus all of its strategic energy away from lobbying on copyright and back towards fighting for more production in Canada. Continue demanding that production be populated by ACTRA members and more specifically, Canadian talent. It’s really the topic for another blog, but I do think that ACTRA has diffused its core message by accepting a leadership role in representing a number of “sister” unions and associations with regard to copyright. However, if this continues to be the case (which I imagine it will, I’m not suggesting that ACTRA give up its leadership role), I hope that all “creators” unions who are being represented by ACTRA’s voice would heed the following advice:

Stop lobbying the Government on Copyright and start focusing on ACTA.

To put it simply, until individual artists are willing to step up to the plate and sue a “copyright infringer” personally, I say stay out of the legal arena as a “collective”. I know it sounds counter-intuitive, but we’re already protected under the Copyright Act. Know your rights and be willing to fight for them, yes, but don’t confuse your message. Organize yourself. Look at the contracts you sign.

Ultimately, the only success that ACTRA has realized so far with regard to lobbying for new language in the Copyright Act, has been its support for the protection of digital locks. Digital locks are what record companies want, not performers. The cost of pursuing a few “pirates” will be your right to privacy. As an artist who routinely has to make the bulk of his living in industries outside of “Canadian Culture” (i.e. – carpentry, food service), I spare little pity for an artist who speaks of such a thing as if it were a tragedy. I don’t feel that my “joe job” is a burden that needs to be levied. I’m thankful to have a job at all in this economy and I’d like to retain my right to privacy for as long as possible while I’m at it. If you still hold your own copyright, the good news is, you currently have the right to lock it down digitally however much you’d like it to be locked down. If you’re lucky enough to be working in the entertainment industry AND still hold your “copyright”, you’re in a great position and there are many, many options available to you already. Problem is, nowadays, an individual is often required to sign a contract before even getting the chance to enter a room to begin any “negotiating”.

With the Private Copying Levy as good as dead, it’s time to recognize that this bill is being written by private interests and any lip service that we pay to “protecting artists” will be interpreted by politicians and studio/record executives as “protect digital locks” (meaning: protect business; not inviduals. Sue individuals; litigation can be more profitable than actual sales). ACTRA represents 21,000 “neighbouring rights” holders, not “copyright” holders (Any “copyright” that an ACTRA member may hold is dealt with outside of ACTRA or through ACTRA RACS).

Eric Peterson can go out in front of the cameras on Parliament Hill to equate the downloading of an episode (or even full-season) of Corner Gas to the theft of a Ford vehicle, and Wendy Crewson can say “free today; gone tomorrow”, if they truly believe these notions, but do they have to speak for all of us? If I were in front of the cameras, I’d be talking about “net neutrality” and “traffic shaping” as the bigger internet threats to our so-called “digital rights”. I mean, just sit tight and wait for ACTA to come into effect. Why would Eric Peterson be opposed to Bill C-32 when it lays the groundwork for going after those who would download his work for free? If he hasn’t heard of ACTA yet, he’ll be pleased to know that a more aggressive agenda is being drawn up by those businessmen who would agree with him that those looking to “steal” should be held accountable. While ACTRA spends its energy confronting government and UN (WIPO) committees on Intellectual Property, ACTA is going to slip into our lives undetected before you can Google “iPod border search”. Trust me Eric, you’ll get the laws that you’re asking for. We’ll all have to give up our right to privacy to catch those individuals, but my money is on it happening sooner than later.

As good as it is to hear ACTRA state publicly that they’re looking for protection as opposed to the right to sue individuals, one must also be aware that it won’t be ACTRA protecting those at-home-viewers/listeners when the lawsuits start coming in.

Don’t send actors to do a musician’s work.

That’s right: actors don’t benefit from the Private Copying Levy. The Private Copying Levy only applies to blank audio media; not audio/visual media. It’s a moot point that ACTRA has been working for years towards the establishment of an Audio/Visual Treaty for performers within the framework of WIPO; the at-home-viewing-audience (and arguably most of the ACTRA membership) is unaware of this fact. At the very least, it should have been mentioned that “we’re working towards an Audio/Visual Treaty with WIPO to protect performances in the future through mechanisms such as the Levy” as opposed to saying “we’ve had this Levy for the past 10 years and without it, we’ll all go broke and there will be no more Canadian television and music”.  Crewson, Shaikh and all other lobbyist/actors do not have the Private Copying Levy to thank for their employment and neither will the lack of its extension to all digital media mean their imminent demise.

The music industry has been dealing with the effect of “illegal downloading” for over a decade now, and there is much debate, (much more debate than the acting community has undertaken), on how to approach and deal with this reality. And let’s be clear: downloading is a reality. There is very little, if any, empirical evidence to prove that so-called “illegal downloading” has had the negative effect that has been preached as gospel by studios and record companies. I know that last statement will read as heresy to some, but consider this: we can’t know how many people are actually downloading (illegally or otherwise) until the laws are loosened up enough for your hard-drive to be searched “legally”.  CRIA & Co. cook their own numbers and write their own abstracts.

Not surprising, there are a large number of big name musical acts who also support the idea of extending the Private Copying Levy to cover digital devices. Even less surprising is the fact that the “open letter” that was recently signed by over 350 musicians “was co-ordinated by the Canadian Private Copying Collective”. While I don’t begrudge any musician lucky enough to see some remuneration from the CPCC, I have to wonder if they’re really studying this topic or if their label is speaking for them. Either way, I remain steadfast in my belief that the Private Copying Levy will not be extended for the simple reason that there is a larger revenue stream from litigation than there is from collecting royalties, but you’d first have to subscribe to my theory that any Copyright/Intellectual Property “protections” will protect corporate interests before that of the individual. If Chad Kroeger wants to sue someone, let him. Don’t do it in all our names. And don’t assume that you have the right to search my hard-drive just to find out that I don’t download Nickelback.

What other financial threats could there be for an ACTRA member if not for “illegal downloading” and “copyright infringement”?

1. A global economic crisis. Maybe you’ve heard it too much lately, but there it is.
2. Non-union production. Turn on the TV. Read ‘em and weep. Loads of “onscreen talent” who are cheaper and don’t give a shit about copyright.
3. Corrupt and greedy politicians, broacasters, studio heads and record executives.
4. A glut of foreign programming.
5. Signing away your copyright for the privilege of a day’s work.

Next blog: a few alternatives to the Private Copying Levy.

Now just watch this and try not to think about the many examples of possible copyright infringement involved:

“Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been ‘You are an important person just the way you are. You can make healthy decisions’.” – Fred (Mr.) Rogers, 1979, U.S. Supreme Court testimony in favour of the new technology of the day – VCR’s.

There must be an election looming in our future because people are starting to talk about Copyright again. Having been a casual bystander on the national debate over proposed changes to Canada’s Copyright Act for the past several years, I couldn’t help but notice that any real discussion on Copyright happens really close to an election. Lots of words get said, proposed wording gets changed, arguments ensue, election comes, bills die and get re-packaged with a new alpha-numeric (c-60, c-61, c-32) for the next round of government, lots of words get said etc. etc. And the bill never passes. At least, not yet.

You can also tell that it’s election season when you see the most recognizable ACTRA members make their annual trek to Parliament Hill to push for changes that they feel will make a positive difference for their membership.

Readers of this blog already know that I’ve taken many an issue with ACTRA’s position on Copyright, but I would like to start this particular post by saying that I agree with ACTRA that “Bill C-32 is a disaster. It isn’t good for consumers and it certainly isn’t good for creators.”

On November 16th 2010, ACTRA proposed six amendments to those MP’s on Parliament Hill who were willing to listen to them. ACTRA proposed these amendments on behalf of their 21,000 members, who are “the foundation of Canada’s highly acclaimed professional performing community.” These proposed amendments were:

• Extend the private copying levy to digital audio recorders
• Remove the ‘mash-up’ provision from the bill.
• Put the brakes on the fair dealing expansion
• Make those who enable online theft pay
• Make ISPs do their part to fight online theft
• Make broadcasters pay their fair share, keep the ‘Broadcast Mechanical’ provisions

Michael Geist has already examined ACTRA’s six proposed amendments, you can read it here.

I won’t comment on all of the proposed amendments, because Geist makes it clearer than I ever could, but I do want to comment on the first proposal specifically.

• Extend the private copying levy to digital audio recorders

“Bill C-32 is not truly technologically neutral as it fails to extend the private copying levy to digital audio recorders. As blank CDs and cassettes become obsolete the levy will cease to exist, eliminating millions of dollars in revenue artists currently rely on to innovate and create new content.” -  (ACTRA press release, Nov. 5th, 2010)

I don’t disagree with ACTRA’s desire to help generate and maximize revenue for their membership. I recognize that it’s part of the job. However, extending the private copying levy is not going to happen despite ACTRA’s numerous protests. This is not the first time they’ve been to the Hill lobbying for the levy, and considering how persistent they are in pursuing a singular argument, I’m willing to bet that it won’t be the last. How do I know that an extension to cover “digital devices” isn’t going to happen? Because there’s nothing in the bill to suggest that it is even being considered. There was a fight to keep that language out of the bill and those opposed to extending the private copying levy won.

Now, don’t think of me as defeatist, I’m not suggesting that ACTRA should surrender their beliefs, I’m asking them to look at the issue in a different way. An election is not going to change anything. The same people who are controlling the issue of Copyright now will still be in power after the election. Those people who are most influential in the so-called “copyright debate” are not elected officials. Artists voices matter, yes, but they are not being listened to (unless you’re an artist who chirps the CRIA talking points).

In a nutshell, there is one good reason (good for CRIA & RIAA, that is…) not to extend the private copying levy to cover iPods and it lies in the fact that there is more money to be made from suing violators than there is in collecting royalties for artists. If the so-called “iPod tax” was in fact levied, a significant hurdle would be placed before those wishing to sue private individuals for downloading (which will only happen when ISP’s are legally compelled to violate an individual user’s privacy). I believe that a new Copyright Act is more about the creation of mechanisms to prosecute the general public than it is about protecting the rights of a creator.

The aim of changing, not just our copyright legislation, but copyright legislation in countries all around the world is not done with an aim to benefit artists. It almost sounds as if ACTRA and this particular member are in agreement, but here’s the rub:

ACTRA believes that performers do not have enough protection under the current Copyright Act. I disagree.

I believe that, as performers, we have our “copyright” already protected under Part II, section 15 of Canada’s Copyright Act titled, COPYRIGHT IN PERFORMER’S PERFORMANCES, SOUND RECORDINGS AND COMMUNICATION SIGNALS.

You can go read section 15 of the Copyright Act here, where it states: “a performer has a copyright in the performer’s performance, consisting of the sole right to do the following in relation to the performer’s performance or any substantial part thereof:”. And it goes on to specify a performers right with regards to “fixed” and “unfixed” performances, but essentially it says that the performance is covered under the current Act.

It’s in section 16 of the Copyright Act where the performer has the right to sign over those rights to another party. Section 16 is titled, “Contractual Arrangements” and it states: “Nothing in section 15 prevents the performer from entering into a contract governing the use of the performer’s performance for the purpose of broadcasting, fixation or retransmission.”

Performers aren’t victims of potential lost revenue because Canada lacks the mechanisms to identify and prosecute those so-called “pirates” who would “steal” our work. We sign away the rights afforded to us under section 15  when we sign a contract with a Producer (unless you have, what’s known in the business as, “clout”). I repeat, musicians and songwriters (the vast majority, that is) aren’t being hurt by the lack of a an “iPod Tax”; they’re being hurt by the contracts that major labels and CRIA require them to sign. Would-be television writers aren’t being hurt by college kids downloading their favorite shows; they’re being hurt by the contracts they have to sign with broadcasters just to get into “development”. Actors don’t “lose” when someone downloads a show they were in rather than watching it between commercials on CTV, or when someone posts a clip of the performance on YouTube; actors “lose” when they sign over their “right to copy” to a producer. Of course, producers, broadcasters and record companies feel that it’s just fine to own an artist’s copyright, because the artist who signed the contract signed it for a price. In the case of ACTRA, we have a book (IPA), that sets out the various rates and regulations involved in engaging an ACTRA member. The point is, there is a price that the copyright holder is willing to accept when they sign away (or license) their copyright. I guess we’re starting to understand that there are costs involved in doing this as well.

It’s misleading for ACTRA and their representatives to say: ““Canadian Content: Free today, gone tomorrow”. Honestly, I don’t know of an ACTRA member who has ever been allowed to work for free. If you work on an ACTRA set, you must have signed an ACTRA contract with the engager. So, considering the fact that ACTRA members do indeed get paid for their work in assisting the creation of content, it begs the question, “why does this need to be addressed by changing Canada’s Copyright Act?” I believe the short answer is: because the Broadcasters and Major Labels wish it to be so.

ACTRA will disagree with me on this I’m sure, but a private copying levy extension and “Broadcast Mechanicals” notwithstanding, ACTRA’s fight is in lock-step with what Broadcasters and CRIA want. Let me put it another way, ACTRA’s rhetoric assists, (unwittingly we hope), in lobbying for the language that best suits Broadcasters and CRIA, while ultimately being left out in the cold when it comes to getting what they really desire out of the process (i.e. – money and/or further protections for artists). Look no further than ACTRA’s detailed defense of DRM technology during the c-61 days as evidence that their lobbying can be effective when it echoes the beliefs of big business.

I’ve blogged on this before, so I won’t go into it here, but let me just say that my questioning of the legal advice and talking points, (which the ACTRA spokespeople work from), remains.  I think that, by and large, the ACTRA executive and council, which is comprised of actual members/performers, are well-intentioned in their interest to protect themselves and their colleagues. I can appreciate that these people might be resistant to the idea that they could be manipulated by outside interests. Despite the union’s constant efforts and high public profile (thanks to their famous membership), at the end of the day, you have to look at the score-card to see who’s winning. (hint: it’s not ACTRA). When was the last substantial increase in funding for Canadian Content? (and I mean, from Broadcasters or Government).

With all due respect to those actors who are fighting this fight on behalf of ACTRA’s 21,000 members, it’s time to change gears… if you want to “win”, that is. If you want to continue assisting Broadcasters and CRIA in gaining even more control of your Intellectual Property; then keep up this argument of “illegal downloading” being the ruin of our industry. You’re getting your talking points and statistics for that argument from CRIA, anyway.

How can ACTRA change its approach?

1. Stop lobbying for language that puts more control into the hands of big business and start fighting for better recognition of Intellectual Property rights and Copyright in contract negotiations with Engagers.
2. Focus on those issues that have actually been proven to take jobs and money away from Canadian performers (i.e. – the steady influx of American actors who can’t possibly be more cost-effective or talented than their Canadian counterparts).
3. Spend more time on real activism and less time lobbying government. “Commercial Infringers” (i.e. – large illegal operations that duplicate “pirated” CD’s and DVD’s for profit) should be penalized, no doubt. However, an unemployed mother or a kid in college, or any private person in their own home should *not* be fined for downloading even if it is deemed “wrong” or “unethical” by a few famous and not-so-famous working actors.  As previously mentioned, unless the lobbying reflects the interests of big business, ACTRA’s efforts to lobby for mechanisms that will enrich their membership are failing. ACTRA should renew their efforts in campaigning vigorously for productions in Canada to be populated with Canadian performers.
4. Assist in developing more opportunities for artists who don’t have access to large sums of government and/or broadcast money. (The “TIP” program is a nice start, let’s not stop there).
5. Don’t be afraid of “free”. Call me naive, but I prefer to believe that people don’t download out of disrespect. We need to understand that the economic crisis is real and everyone is getting poorer. Most artists are poor and most of their fans are poor. There has not been any credible evidence put forth yet, by ACTRA or CRIA, to support the idea that so-called “illegal downloading” has actually had the negative impact on artists that they claim. Any statistics recited by CRIA are not backed up by empirical evidence other than “sales are down”.

As an actual, underemployed, almost penniless artist who doesn’t get invited to the Hill, I would like to close by saying to ACTRA: Content is not King; Distribution is King. Until artists are given a real competitive shot at distributing their product freely and openly without being beholden to oppressive contracts, we will continue to see our opportunities get programmed for us by those who do not have our best interests in mind.

And now, for a good ol’ idealistic pick me up. Now *this* is lobbying…