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Due to the overwhelming responses of yesterday’s post (ACTRA & the death of the mixed tape), I thought it would be useful to dedicate an entire post to the “Myths & Facts on the Proposed Changes to Canada’s Copyright Act”, which was the catalyst for this grassroots “membership awareness” that I’ve been squawking about for the past few months.

But first….another disclaimer (or three):

1. I supported ACTRA’s decision to strike in January 2007 because *we had to*. However, we (ACTRA members), weren’t the first to strike because we’re so feisty and principled and/or important to Hollywood…we were the first to strike because our IPA (Independent Production Agreement) was the first to expire. I wrote to ACTRA many times during the strike expressing my support and understanding that each creative union (WGA, DGA, SAG, AFTRA), would be facing the same issues as they negotiated their various agreements with producers.
2. Although I dearly wish that ACTRA (the executive) could move beyond begging for table scraps from Standing Committees on Heritage to fund our bleak industry, I do applaud the dedication of those actors within the ACTRA Council who are conversant on the issues and continue to fight on our behalf.
3. It’s the non-actors within the executive that I’m suspicious of…

Is it, Myths & Facts, or…Facts that are Myths?

The following text comes directly from ACTRA’s website (my comments appear in red):

There is a lot of noise and confusion surrounding copyright and the Internet, and we would like to tell our side of this complex issue. First and foremost, ACTRA advocates on behalf of our performers and we have been doing so for more than 60 years. While we have not seen the proposed amendment to the Canada’s Copyright Act — as it has not been tabled yet — it is to be based on the two 1996 WIPO Treaties with which we are quite familiar. In an effort to debunk some of the myths circulating in the media and throughout on-line forums and blogs, we are taking this opportunity to inform our members and the public of the truth behind the myths pertaining to changes to Canada’s Copyright Act.

You know…starting off with “we have not seen the proposed amendments” and then coming right in with “In an effort to debunk some of the myths…we are taking this opportunity to inform (you)…of the truth behind the myths pertaining to the changes”, doesn’t really lend any credibility to the idea that ACTRA is writing this without bias. True, ACTRA had not seen the changes yet. None of us had at the time this page was published. BUT – now that ACTRA has been proven to be *wrong*, and those of us who were predicting the changes are actually right….why does ACTRA continue to keep this page at the top of their website?!

• MYTH: The new changes to the Copyright Act will make it a criminal act for me to time-shift with my VCR or to load music I buy on a CD and load it onto my iPod.

• • TRUTH: The Government of Canada’s stated purpose for the proposed amendment is only to implement the 1996 WIPO Treaties. It will not address this kind of activity. As a result, it will not create criminal offences for time-shifting or loading your iPod from your CD collection

If you’ve read my previous post on this, you already know what I think of Stephen Waddell’s statement that “vocal opponents to this bill will oversimplify”…now…if this isn’t an oversimplification, I don’t know what is. The *real* truth is that the proposed changes *do* address the issue of “time-shifting”. In fact, the address it in great detail.

• MYTH: Technical protection measures will make me a criminal – shut down ISPs, make it easier for “big brother” to rear his ugly head.

• • TRUTH: Technological Protection Measures or TPMs already exist. They are simply digital locks. For example, they currently exist on DVDs, software, and your cellular handset. The proposed amendment acknowledges these locks exist and creates sanctions for breaking the locks, just as there are sanctions for someone breaking your lock on the door of your car or your home

Maybe you didn’t catch that ACTRA poses a “Myth” that TPM’s will criminalize consumers who try to circumvent technology to unlock their products…and then…follows it up with a 1/2 truth that doesn’t really address the supposed myth. The response is a “red herring”. The allusion to someone breaking into your car or house is ridiculous. A better example would be: say you bought a car or a house that had a “digital lock” on it, and it only allowed you to enter it at certain times, or you could only drive to certain places. Why ACTRA avoids the issue of new media and correlates real estate and automobiles is just a distraction to the real issue.

• MYTH: The amendments will hurt Canadian consumers.

• • TRUTH: Implementing the 1996 WIPO Treaties will actually benefit Canadian consumers. Currently, Canadians have fewer digital services available and pay higher prices than U.S. consumers. The proposed amendment will create opportunities for new services, increased selection and more competition to lower prices in Canada.

You heard it right from the horse’s mouth. ACTRA believes that the proposed changes will benefit consumers. Locking up your songs, cell-phones, DVD’s and TV shows will create more selection and competition. Criminalizing your right to back-up your media collection as you wish (meaning: as often you want, in the format of your choice), will somehow benefit you in the long run.

• MYTH: Canada’s federal government is just bowing to U.S. pressure.

• • TRUTH: Since 1883, the world community has recognized copyright will only work effectively if each country enacts similar copyright laws that recognize similar rights for both their own citizens and the citizens of other countries. If one country fails to act, then the system breaks down and performers from all countries suffer. Canada made a commitment to implement the 1996 WIPO Treaties in 1997. Canada has failed to honour this commitment to all of the other member nations of the World Intellectual Property Organization (WIPO). The United States is a member of WIPO but so are United Kingdom, Germany, France, Australia and 56 other countries, most of which are upset with Canada for breaking its promise to implement the 1996 WIPO Treaties.

Canada bowing to U.S. pressure?? Nah…impossible!!

• MYTH: This new legislation will mimic the U.S.’s Digital Millennium Copyright Act (DMCA).

• • TRUTH: The new amendment has not yet been made public. It is premature to make this assumption. We should expect the concepts in the Canadian amendment will be similar to those concepts in the French, Australian and U.S. legislation because all countries are implementing the same concepts from the 1996 WIPO Treaties. However, Canada’s copyright law developed very differently from that of the United States. As a result, Canada’s law works very differently from the U.S. Copyright Act. The drafters of the Canadian amendments are very unlikely to mimic the DMCA because it would be incompatible with the structure of Canada’s Copyright Act.

Just read that last truth again and explain to me how ACTRA can admit that it’s “premature” to make assumptions on amendments that have “not yet been made public” and then state that the “amendments are very unlikely to mimic the DMCA”. As it turns out, our proposed Copyright Act looks way more American than ACTRA had suggested. And don’t get me wrong, “American” should not be considered a bad word (there are plenty of Americans that I know and love), it’s American Law that makes me squeamish…

• MYTH: The average consumer’s privacy will be jeopardized.

• • TRUTH: The proposed changes to the Copyright Act have nothing to do with privacy. Some people have falsely stated that TPMs will violate your privacy. That is not true. The vast majority of TPMs 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.

Again, view my previous post on this one. This truth is so false and wrong, I just can’t bear to type it all out again.

• MYTH: Downloading is legal in Canada. They want to take that away and make it illegal.

• • TRUTH: Unauthorized downloading and uploading are both illegal in Canada and always have been, as confirmed by the Federal Court of Appeal. Downloading without permission is stealing, just like taking a package of gum from a store without permission is stealing.

OK…I don’t disagree that unauthorized downloading is illegal (I’m not saying that I approve of the law making it illegal, but that’s another blog post). But….what’s with the penchant for alluding to products that have absolutely nothing to do with new media?

• MYTH: This will only lead to big music companies suing single mums and innocent users.

• • TRUTH: Downloading is currently illegal in Canada. In 2004, the Federal Court of Appeal set out a road map for how to sue for illegal downloading in Canada. However, no case has been brought. Copyright holders in Canada have instead chosen to pursue expensive education and information programs in the belief that Canadians will respect the law if they understand it and know they have legal choices. Regrettably, in a few extreme cases, legal action may be necessary to protect performers’ rights, but, as the past four years have demonstrated, legal action will be the exception, not the rule.

Again, they state an assumption without seeing anything. “Legal action will be the exception, not the rule.” Really?! Then why have they proposed fines of $500 – $20,000 if they have no intention of collecting the money?

• MYTH: The new law will mean that I cannot buy music on Napster or Puretracks and load it onto my iPod.

• • TRUTH: Downloads are sold in different formats, just like VCR tapes came in Beta and VHS formats. The proposed amendment will not deal with the interoperability (compatibility) issues because those issues are not within the scope of the Copyright Act.

Wrong. False. Incorrect. That’s price you pay when you publish assumptions before the changes are made public. Again, why is this laundry list of falsehoods still allowed to stand at the top of the ACTRA website?

• MYTH: We already pay a tax on our iPods and computers to download — why should we pay more?

• • TRUTH: The new legislation will not require you to pay any additional tax or additional levy. The 1996 WIPO Treaties do not relate to blank media levies or private copying. Some people have confused a recent Copyright Board ruling, which is under appeal, on the Blank Media Levy with Copyright Act reform. The two are not related and the proposed amendment is NOT expected to include anything relating to blank media or private copying.

I don’t specifically know that there is an extra tax, but I think it’s safe to say that the “hidden tax” is in all the extra money we’re expected to spend on the same product in different formats.

• MYTH: There has been insufficient consultation within the industry with performers, business, software developers and the like.

• • TRUTH: Industry Canada and Canadian Heritage have extensively consulted for 10 years with every group in Canada potentially affected by these changes, including, performers, consumers, businesses and software developers. Everyone has been invited to participate and representatives from all groups have done so. In addition, there will be opportunities for further input during the committee process after the proposed amendments are introduced into the House of Commons. However, people can only give meaningful input if they have something specific to talk about, which is why the amendment needs to be introduced now.

Well…I suppose if you’ve been invited to sit at the table, you’d feel that there has been sufficient consultation. However, Michael Geist (a copyright law expert), calls for wider consultation as his #1 priority. If ACTRA thinks that this has been an acceptable and transparent process….yikes!

• MYTH: Piracy does not hurt anybody because the performers make all their money from touring and merchandise.

• • TRUTH: Piracy is significantly hurting everyone involved in the creative industries, including performers and consumers. The reason performers must now rely on touring and merchandise is because of piracy. In effect, by failing to implement the 1996 WIPO Treaties, Canada has removed performers’ CHOICE as to whether or not they want to sell their music. Without the new amendments, Canadian performers have one less way of potentially earning a living.

As I’ve stated above, this is really a topic for another blog post, but – piracy is an issue that the music industry has been dealing with for over a decade and organizations such as ACTRA and the like would be better off talking to independents who are embracing the new distribution model as opposed to locking it down. You can build a fence around a pool because you’re scared to drown…or…you can learn to swim. Sorry…ACTRA’s penchant for non sequiturs is rubbing off on me.

• MYTH: How will the amendment to the Copyright Act improve performers’ lives?

• • TRUTH: The existing Copyright Act was created long before the Internet. These new amendments will give performers a CHOICE about how, where and for what compensation their work is made available to the public digitally, without using old legal concepts. For some performers, it will allow them to protect the integrity of their work from people who might try to steal it and post it on the Internet before it is complete. More importantly, it allows for new packaging of music to fit consumers’ needs. For example: with this legislation, it will be easier to create subscription music services that allow you to transfer music to your iPod or MP3 player and take it with you. This will give performers more options for reaching fans in formats that best fit the fans’ needs.

In true ACTRA fashion, they’re probably talking about the 11 performers that consistently work in this country. Meaning, those performers that ACTRA makes the most money from in the form of working dues and takes to Parliament every year for a press conference. Or, they’re talking about the few dozen musicians that can’t really speak for themselves because they have to toe-the-line of their labels. They certainly aren’t speaking on behalf of the major acts that have left their labels (precisely *because* of this issue), or the indie acts that are trying to put their work out there.

The only choice that a performer has when distributing their music via a major label or an on-line distributor is to do it the way that the industry decides. I guess ACTRA feels that the choice ACTRA makes *is* the performers decision.

• MYTH: No amendments are needed because performers already have remuneration rights.

• • TRUTH: The “make available” right in the 1996 WIPO Treaties does NOT exist in the current Canadian Copyright Act. The existing remuneration rights of performers are compulsory licenses that were created to provide compensation for activities like radio broadcasts. 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.

Last I checked, I didn’t have the right as a performer to “make available” any work that I’ve done as an ACTRA member…why?….because I don’t hold the copyright to the show…unless you’re the creator of the new media, you can’t “make available” your contribution. Also, if you’re in a position to “make available” your work, you’re a producer. ACTRA doesn’t represent producers. We do have remuneration rights (as ACTRA so aptly contradicts its own “myth” within its own “truth”). ACTRA negotiates these “licenses” for us. Presumably, that’s why we went on strike…to fight for our right to be paid for work that producers and broadcasters want for free (i.e. – webisodes etc.), not to penalize the at home viewing audience for burning a movie off of Turner Movie Classics and lending it to your Mother.

• MYTH: There are high-profile, respected performers in Canada opposed to copyright reform.

• • TRUTH: A few performers do oppose the amendments. However, many performers understand the importance of bringing Canada’s copyright law into the 21st Century and support the amendments to the Copyright Act. These performers appreciate that the reforms are about CHOICE. The amendments will still allow those performers who choose to do so to give away their work for free. However, other performers will have the CHOICE how, where and for what compensation their work is distributed.

The truth is that ACTRA only advertises the “high-profile, respected performers” that agree with them. I get that. I understand that. I even support that approach believe it or not. BUT – I don’t support using the very same propaganda against its own membership!

• MYTH: ACTRA is acting in the best interests of big business.

TRUTH: ACTRA’s obligation is to act in the best interests of performers. This new legislation will help performers, and foster respect for the value of their creations. This is true for every performer, whether he or she is well established or just starting out in their career. ACTRA continues to fight for better protection for performers through laws that will protect the integrity of their work, and ensure that they are fairly paid for it.

Let’s get this straight….ACTRA’s #1 obligation is to act in the best interests of ACTRA. Not every performer is an ACTRA member. To say that “this new legislation will help performers”, is….again…disingenuous. ACTRA couldn’t know that at the time of publication, and regardless of the fact that the legislation looks much different than what they were predicting, they obviously plan on maintaining their position.

To maintain a position despite the facts, is a frightening prospect that makes me wonder if the “game plan” was drawn up by people who have no idea what it’s like to *actually* live as an artist in this country. The implications as citizens notwithstanding, ACTRA has shown its hand and its intention to play the game as a proxy for the small few that have been pushing for these changes.

If ACTRA actually read the blogs and media that they rail against, they might just see that Canadians (and much of their own membership) completely disagree with them.