Motion No. 431
That, in the opinion of this House, the government should draft legislation deleting sections 30.8(8) and 30.9(6) of the Copyright Act.
Mr. Speaker, it gives me a great deal of pleasure to stand and speak to the issue because the minister of heritage in her wisdom has decided not to do anything about it. I draw to the attention of the House the fact that she is sitting on her hands with respect to the issue.
I will briefly describe what Motion No. 431 is about. In 1997 when the Copyright Act was amended and brought up to standard by Bill C-32 two clauses were inserted, namely clauses 30.8(8) and 30.9(6). The issue is about copyright and the fact that artists should be able to gain from commercial playing of their performances.
I want it to be crystal clear: I and the Canadian Alliance Party are in favour of the principle of copyright and compensation for people whose performances are played by commercial radio stations in any form, particularly where gain is made by the performance.
During the hearings we looked at two issues. First, we looked at prerecorded recordings which are covered by section 30.9 of the act. Second, we looked at ephemeral recordings which are covered by section 30.8.
Ephemeral recordings are things that just happen. For example, let us suppose a Santa Claus parade went by a television camera and the camera captured the image but also captured a band playing White Christmas or another popular song in both video and audio. It would then presumably be replayed on a cable network at a later point.
Prerecorded recordings are obvious. They occur where people perform for the purpose of putting their music on some kind of medium which can be physically carried, sent through the mail, walked down the street or put into a tape player, CD player or whatever the case may be.
We looked at the fact that there are times when music which is typically in digital format is transferred from a CD to a direct drive, MP3 or other device. When music is transferred digitally it is called a transfer of medium.
I will restate for the third time that I and the Canadian Alliance are in favour of fair compensation for artists whose music is played on radio stations when the playing of the music yields revenue to the radio station. The artists should get to share in the revenue. I believe there is agreement on the part of all parties with respect to this.
Sections 30.8 and 30.9 of the Copyright Act focus on when the digital image of music is transferred from one medium to another but not heard or played. That is what the exclusion is about.
I will read from the act as it exists:
30.9 (1) It is not an infringement of copyright for a broadcasting undertaking to reproduce in accordance with this section a sound recording, or a performer's performance or work that is embodied in a sound recording, solely for the purpose of transferring it to a format appropriate for broadcasting, if the undertaking
(a) owns the copy of the sound recording, performer's performance or work and that copy is authorized by the owner of the copyright;
(b) is authorized to communicate the sound recording, performer's performance or work to the public by telecommunication;
(c) makes the reproduction itself, for its own broadcasts--
I will not read all the terms and conditions but, as technology advances and as we transfer this music, which is still in an unheard electronic digital format when it is being transferred from a CD to an MP3 player for other reasons, they are clearly there to get around the problems.
However, the collectives who were involved in the copyright hearings asked that the following clause giving this exemption be inserted:
This section does not if a licence is available from a collective society to reproduce the sound recording, performer's performance or work.
In other words, if I were Bryan Adams and I had a recording that was to be transferred and I was not a member of a collective, I, as the artist, would not be able to go after this unintended copyright fee because it is an unintended copyright fee. No value is received for this transfer of medium.
What has happened is that most of the action on this has been because the artists are generally members of a collective. What was intended to be an exclusion really is not an exclusion after all because the collectives are now pursuing it. This is really unfortunate.
I go back to the oral remarks of David Basskin of the CMPA to the Standing Committee on Canadian Heritage on November 7, 1996. On page 8 he stated:
Music publishers recognize that such copying [Radio transfers of format] is integral to the operation of radio stations, and also realize that any publisher foolish enough to demand payment for such copying would likely find himself frozen out of the station's playlist in short order.
Here is a commitment by somebody who was in a position of authority saying that he would not do this.
On November 7, 1996, he further stated:
I cannot speak for everybody, but I think I can speak for my board of directors who represent the largest and best-known interests. On the radio side, we don't seek to change the status quo. If this results in an agreement at a very low or gratis rate, I think we'd be entirely happy. I can't predict, but we'll certainly try our best and we'll keep the committee apprised of our work in this regard.
Not once but twice in that same committee this member said that his collective was undertaking not to do what it in fact was doing. It is presently before the copyright board trying to get a fee attached to the transfer of medium.
One collective, SODRAC, which was in place in 1997, said that it had an arrangement with CBC stating that when it had a transfer of medium with CBC it would pay for it. There was pressure from SODRAC literally days before the legislation came to a conclusion in committee to insert clause 8 into the legislation. The CMRRA, which is the Canadian Mechanical Reproduction Rights Agency, said that not only was it not collecting royalties but that it also had no intention of ever doing it. These collectives existed at the time but collected royalties for different things. After clause 8 was included and clause 9 as another clause, it developed a new sideline which allowed it to collect from another source.
This is completely unfair. We pointed out in committee that the insertion of these clauses would basically allow the collectives to supersede, wipe out or negate this very logical, rational and reasonable exception. When we pointed that out we were told by the collectives that they would not do this. This is a law that simply cannot stand because the collectives have not kept their word. In actual fact I could never understand why clause 8 and clause 6 were put in in the first place.
The Minister of Canadian Heritage should realize that this is an unfair form of revenue collection from the commercial broadcasters. It is unfair and unwarranted and is ill-found money. The collection of this accidental fee was never intended by the legislators, myself included, who were on the committee nor by the members of the House.
When talking about business, we are talking about a bottom line. Any business in Canada has a responsibility to pay its taxes, fees, rent and to pay its royalties.
This is the fourth time, but I want to make it crystal clear. I and the Canadian Alliance are not opposed to the collection of royalties. We believe that a person has a right to his or her property. If that property is being used for commercial purposes and there is commercial gain, there should be payment to the holder, the owner of that property.
By virtue of these two clauses of exception, those copyright holders are able to get their hands into an area to extract money which was never intended by the legislators.
I have brought forward this motion to prompt the heritage minister, to prompt the heritage department and to prompt my other colleagues in the House to make the necessary change so that our copyright system is fair and balanced.