Maryse Beaulieu's Report from Québec Part 4b
Previous: Beaulieu's Report from Québec Part 4a • Next Part: Beaulieu's Report from Québec Part 4c
We interviewed representatives from seven collectives. In alphabetical order, they are: ArtistI, COPIBEC, SOCAN, SODART, SODRAC, SOGEDAM, and SoQAD. Music is the most widely represented, with SOCAN and SODRAC managing copyright, while ArtistI and SOGEDAM manage neighbouring rights. The visual arts follow, with SODART and SODRAC, which has a department dedicated to this field. Finally, COPIBEC and SoQAD are alone in their respective sectors in Quebec.
There are enormous differences between and among collective societies. Some represent only creative artists, performers, or their assignees, while others include publishers among rights holders. How they are organized, the size of their membership, and the income they generate are also very variable. In addition, the territoriality of collectives seems an interesting indication of the history of their development. Collective management did not develop in the same way in all sectors. The relative youth of a number of the collectives interviewed (most were created in 1990s) means that they are still in some stage of development, and thus the landscape and the relationship between author and user are changing. It is beyond the scope of this report to go into great detail on the development of collectives in Quebec, but the fact that many of these organizations are still in a development stage must be kept in mind.
What follows is some information about each collective, including a brief description of its respective activities.
The collectives we met with are all non-profit organizations, except for SoQAD.
Membership mechanisms are varied. For four of the collectives, it involves assignment of rights; in two other collectives, a mandate is used; and one collective asks for an exclusive licence. All collectives in the music sector operate through assignment of rights; thus, there is a coherent approach in that sector. We include here collectives that manage neighbouring rights.
SODRAC’s and SOCAN’s members include writers, composers, and publishers. The COPIBEC collective also has both authors and publishers among its members. The other collectives’ memberships are composed only of creative artists, performers, or their assignees.
During our interviews, we noted that the way in which categories were divided and what is understood by membership are often rather misleading simplifications. For example, a number of authors are self-published, which in no way demeans their status as authors, but it shows that a single individual might wear a number of hats. Another example is playwrights, a number of whom also do translation and adaptation. There are few translators and adapters who are not also authors. In visual arts, artists’ practices are widely varied, and in many cases they do not want to be confined to a single discipline. These examples illustrate the difficulties that are often posed by what is believed to be a watertight categorization.
There are many links between collectives and artists’ associations. In the great majority of cases, an artists’ association was behind the creation of a collective, sometimes with other partners. This being said, the closeness of the tie between collective and artists’ association differs from one pair to another. Of course, artists’ associations have a role that is considered more political, while collectives are, in a sense, a mechanism for collection and redistribution of royalties. Collective management is a business. In general, the younger the collective, the closer the relationship with the artists’ association; a greater distancing seems to occur over time. The fact that artists’ associations are often behind the creation of collectives is explained by the fact that the associations defend artists and the revenues that the use of their works generates.
According to collectives, users’ perception of them is generally negative. One respondent emphasized the practical aspect that the collective plays in payment of royalties.
It seemed that users’ perceptions were the most negative in the field of visual arts. It might be presumed that practices in these fields are related to the comments that the collectives made. The scope of the collective’s repertoire and the relative simplicity of acquiring rights are other issues that should perhaps be considered.
ArtistI reported that during the interval between joining and receiving a distribution of royalties, members had to be informed about the mechanics of managing the new rights, and why it seemingly too so long. The perception of the collective by its members thus since evolved.
Issues related to globalization and new technologies are very broad and do not have the same resonance in every sector. In addition, these two realities affect many facets of copyright. We suggest here only a few paths for reflection that were reported by respondents. Nevertheless, the difficulty with simply identifying the issue as a whole quickly becomes obvious. The music sector is the one for which issues related to globalization and new technologies are the most tangible, at least at the moment.
Concretely, the decision regarding Tariff 22 had not been handed down at the time when we met with France Lafleur of SOCAN. The unfavourable decision handed down by the Supreme Court will delay collection of royalties. Collectives will have to file another tariff for Web sites. This is certainly not the best possible scenario for authors. Most of SODRAC’s revenues come from sales of recordings, which have declined sharply; the collective expects to feel the effects during the current year. There has also been an impact with regard to private copying.
Collectives also use new technologies as part of their operations, and payment of fees on line has become a reality for many. Also emphasized was the need to form groups in the context of globalization and new technologies. Of course, there are already international copyright organizations and many exchanges, but the current context is intensifying this trend.
It was also suggested that one of the results of globalization is standardization of copyright, which is advantageous in some cases and disadvantageous in others. In the publishing sector, globalization is creating a concentration of firms, which has an impact on collectives. Rights holders also hesitate to assign management of electronic rights. The fear is that it will not be possible to control uses.
Finally, whether it is music, visual arts, or books, copies are now of very high quality, which had not previously been the case.
Some collectives have tariffs, while others have grids, but in all cases the use of works has a monetary quid pro quo that is evaluated in the light of various parameters. SOCAN’s tariffs, for example, have been approved by the Copyright Board and are therefore publicly available. The royalties to be paid by users for “equitable remuneration” and private copying is also established by the Copyright Board. Outside of these cases, the amounts asked by collectives are the result of agreements negotiated or established by the collective which indicates the cost to the user – although users may negotiate with the collective to determine the amount to be paid. On this level, collectives have a range of attitudes, many of them dictated by the laws of the market and the collective’s negotiating power. This enters into contractual matters.
The grids and scales that are not public are often relatively inaccessible. The prices are available on request. Certain types of use may also be displayed on organizations’ Web sites. Practices vary.
Collectives that are not obliged to file a tariff may nevertheless do so. Several collectives reported that that the act of going before the Copyright Board and filing a tariff can constitute a tactic in the negotiation process. Little was made by respondents of the cost linked to the process of taking a tariff from filing through to approval. There is no generalized practice among collectives for negotiating prices. For some, however, this is their daily lot and it can be difficult to obtain the price requested.
It is not really possible to make generalizations regarding difficulties linked to payment. However, SODRAC reported that lower revenues for record producers in recent years have had an impact on payment of fees. This is an aspect linked to the issues raised by new technologies.
SOCAN remarked that radio and television stations pay their fees. But there is more non-payment for general tariffs. On the other hand, COPIBEC, for which revenues from the educational sector comprise about two thirds of its revenues, does not have difficulty receiving payment. It is therefore likely that the type of user has an impact on the diligence in making payment.
Among the smaller collectives, SoQAD does not have difficulty receiving payment, and SODART has few accounts in arrears. There are thus no major problems in this respect.
Collectives have a variety of monitoring practices. When there are agreements, inspection mechanisms are integrated into the system. The mechanisms differ from sector to sector. In some cases, there is no perceived need for monitoring; in others, monitoring mechanisms are organized and exist at several levels, ranging from shadowing to visiting specialty stores. Overall, however, collectives do not spend a great deal of energy developing monitoring mechanisms.
Most collectives have agreements. As mentioned above, the threat of filing tariffs or the filing of tariffs may, for some, be part of a negotiating strategy. The scope of negotiating activities varies from one collective to the next. Some have a great amount of experience, while others have very few agreements and work mainly in the context of granting individual licences.
There was no statement to the effect that agreements are not respected. However, in the case of SoQAD, which has an agreement with the ministry of education, the schools are often unaware of the fact that there is an agreement between the collective and the ministry. It may therefore be ineffectual.
With regard to new technologies, in one case it was mentioned that no mechanism has been integrated into the general agreements, although the intention to work in this direction is there. In reality, it is through specific agreements that clauses aimed at new technologies are introduced.
The awareness of new technologies is also variable. The issue is therefore not a constant. With the appearance of new services, collectives try to set guidelines for uses. For example, when players that traditionally fit into the broadcasting sector develop new services, the uses governed by the agreements must be re-evaluated. In the field of reprography, it is clear that a number of users would like to access material electronically. University course packs were given as an example. There are fairly major modifications that need to be made.
Except for the music sector, where a drop in record sales has enabled counterfeiting to be quantified, sectors could not give estimates of illegal uses. It is not easy to assess such uses. SOCAN mentioned that when it filed for Tariff 22 it had absolutely no idea what amount of money it might involved. This is therefore basically unknown territory, and the uses being made of the new technologies are evolving.
Digitization facilitates counterfeiting in the case of printed materials. The example was given of course packs that are scanned digitized and then circulated electronically. It is known, therefore, that the new technologies amplify counterfeiting, but this cannot be quantified. It seems that confusion reigns. People associate downloading with the fact that they are paying royalties on blank tapes or CDs and believe therefore that they are acting legally.
There is no doubt that the introduction of many exceptions to the Copyright Act in 1997 has affected rights holders. When it comes to quantifying exceptions, aside from the theatre sector where the loss of revenues linked to introduction of an exception is estimated at 25 percent there is no available estimate of the losses to creators. On top of the lack of income, time resources have had to be mobilized to interpret these exceptions. The unmanageable nature of many exceptions was also emphasized as well as excessive detail nature of some provisions and mechanisms.
Respondents mentioned the difficulties in interpretation posed by the use of artistic works in reports, critiques, or newscasts, for example. Ephemeral recording is also a battlefront that has been bitterly disputed and seems to be resurfacing.
Exceptions, an extremely sensitive subject for artists, always leads to a loss of revenues and a form of expropriation for rights holders. The introduction of numerous exceptions in 1997 is another breach in the positive recognition of creators’ rights copyright. The interpretation of exceptions, which is discussed below, also causes great anxiety.
In some cases, it is the artists’ association which founded the collective that makes representations on behalf of artists regarding the review process of the Copyright Act. Opposition to the expansion of exceptions and the maintenance of gains are important. COPIBEC estimated that the proposal to broaden fair dealing to educational purposes could cause a loss of $25 million to both COPIBEC and Access Copyright. SOCAN has a lobbyist defending its interests. The collectives all feel that they must be present to make the interests of rights holders heard and, at the same time, they are feeling great pressure from users.
According to one respondent, the extended licence represents an interesting solution, notably for management of new electronic rights. Another respondent wondered how this could be applied. Respondents either were in favour or felt they were not concerned.
One respondent in the music sector reported that the system works well. A survey is taken monthly on practices regarding reproduction for private use in Canada. This process, though cumbersome, provides documentation and evidence for presentation to the Copyright Board during determination of remuneration. Respondents generally felt that this system should be broadened to other sectors and include all supports used for reproduction.
These decisions, on the whole, represent a rollback for authors. If there is a pattern in these decisions, this is it. The emergence of a users’ right and the ruling not to interpret fair dealing restrictively are elements that change, or upend even, the economy of copyright. COPIBEC and Access Copyright intervened in CCH arguing that the possibility of obtaining a licence from a collective would prevent application of the defence of fair dealing, but this was rejected by the Court. Collectives alleged, as an Australian court had already recognized, that making self-service photocopiers available constitutes a violation of copyright, but the Supreme Court also rejected this argument.
Because the fair dealing exception is no longer to be interpreted relatively restrictively – a departure from the cardinal rules of legislative interpretation – it is not known how the ruling will affect the revenues of collectives and rights holders. COPIBEC and Access Copyright are now experiencing the consequences of CCH: the federal government is refusing to pay royalties for all single copies of works based on the CCH ruling and the interpretation that the Court made of the exception to fair dealing.
The people questioned had differing points of view about the future. Most said that they are not pessimistic although they felt that things are difficult at present. The new technologies make controlling uses of creators’ work difficult. Maximum protection is wanted for works as a whole, and yet use of works without remuneration is more and more of an accepted reality. There is a paradox there, and it is difficult to predict what will happen in the long run. One respondent, who stated her pessimism outright, emphasized that users’ demands are constantly increasing. There is also more and more tension between users and collectives. Movements such as Copyleft are growing, and this is causing concern.
It is hoped that there will be no new exceptions enacted. It is felt that there may be too many collectives and that users will use this to justify and obtain exceptions from the government. Some fear was also expressed regarding the advent of neighbouring rights and the fact that this may hurt authors. It was mentioned that the culture of neighbouring rights is not yet established in Canada, although in Quebec rights holders are showing a growing interest in and better understanding of these new rights.
It is easy to see that various aspects of reform are being considered and that solutions are being actively sought. Not everyone shares the same point of view, but all seem to agree that the current period is a critical one.
Foreign markets, notably in France, are closed to writer-composers because performers cannot use material from Quebec to break into that market. This is a trend to be noted.
In the establishment of tariffs for the music sector, there are many comparisons with the United States and American practices. The low royalties generated for music in film is one example. One respondent discussing the situation of musicians underlined two main problems with regard to neighbouring rights. Musicians are obliged to prove their repertoire, and the allocation negotiated between the different performers has never been ratified by musicians.
Most broadcasters pay a royalty of only $100 on their share of advertising revenues under $1.25 million in the case of public performance or communication to the public by telecommunication of performances of musical works or sound recordings. This constitutes another form of exception, introduced by legislators as “special tariffs”.
It seems to be received opinion that copyright takes precedence over neighbouring rights. This concept, nevertheless, is present in the Canadian landscape.
Previous: Beaulieu's Report from Québec Part 4a • Next Part: Beaulieu's Report from Québec Part 4c
©2005 John Lorinc and Maryse Beaulieu. This study was produced by the CCC and DAMI© for Canadian creators. You may reproduce this work for non-commercial, purposes, without alteration or amendment, in whole or part, provided you give credit to the authors and source, so please feel free to disseminate and share freely. A licence for commercial use of this work is required and may be obtained from Access Copyright, Copibec, the Creators' Copyright Coalition, DAMI© or the authors. This study was conducted with funding from the Department of Canadian Heritage • Webpage design: Patrick Davidson • The outline map of Canada used in the logo is from The Atlas of Canada, as compiled and produced by Natural Resources Canada, and is used with permission
Lorinc-Beaulieu Report:
Main Navigation
[ top of this
page ]
[ CCC home ]