Maryse Beaulieu's Summary Report

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Summary Report Presented to
The Creators’ Copyright Coalition (CCC)
and
Droit d’auteur / Multimédia-Internet / Copyright (DAMI©)

by
Maryse Beaulieu
January 5, 2005

The Creators’ Copyright Coalition and DAMI© feel it important for the voices of creators to be heard in the current debate on copyright. Copyright has been in the news in recent years, and it goes without saying that the advent of the Internet has meant, more often than not, that it is in the headlines. It is not simply the right to respond that artists’ organizations are demanding here. The discourses regarding copyright come from various sources, but artists are privileged parties whenever these questions are addressed. This text and the studies on which it is based, are intended to give creators a voice in that discussion.

Questions concerning copyright should not become the prerogative of experts, relegating artists to the sidelines. It would be detrimental both to artists and to society as a whole. The texts that concern copyright are not necessarily easy to understand. Domestic law is affected by international obligations flowing from treaties. So the normative environment is complex, and this means the subject can become tedious and veer toward the purely technical.

These studies commissioned by creators’ organizations are therefore meant not only to take into account the legislation concerning copyright, but also to be documents that will be accessible to a general public. The fact that artists and their representatives are speaking here of the realities experienced in the field constitutes a deterrent against slipping into a discourse that is too technical – which, of course, has its place but which not should take over the entire debate.

Artists are a distinct group. They deal with issues involving copyright on a daily basis. It is their works and performances that set them apart. It is as creators that they hold rights. Some may argue that this is obvious, but I would say, on the contrary, that some arts are often taken for granted because of their nature, and are therefore, paradoxically, ignored.

It is important at this point to speak parenthetically about the terminology that will be used in this document. The constellation of terms that are sometimes used for those whose voices will be heard is complex: “creators,” “artists,” “authors.” It is not my intention to open a broad debate here on this tricky issue where boundaries are not always obvious. I will use the term “creators” in the body of the text, a term that includes performers. I am aware of the difficulties that one choice or another may pose, especially because the normative universe includes both authors and artists. Without wishing to dodge the question, we should note that the report from English Canada talks of “creators” while the Quebec report uses the terms “creative artists” and “performing artists,” groups that are not comparable in every way, but that are nevertheless very similar. Since one terminology or another is called for, I have chosen the term “creators.” However, when these reports are discussed individually, I use the terminology of the respective original text.

It was important to the creators’ organizations that the situation of their members be documented. Even though there is copious literature on copyright, few texts represent the point of view of creators. Documentation that covers many artistic practices is even rarer. The studies commissioned by the CCC and DAMI© fill this void and supply information over a wide spectrum. It is from the angle of creators that copyright is viewed here – a focus that obliges the reader to have empathy and not to make presumptions about what will be said. Of course, the realities of creators are depicted, but this assumed point of view does not detract from the rigour of the texts in any way. Written from this perspective, these texts effectively paint a portrait of creators’ working conditions in Canada, a detailed snapshot of their profession which nevertheless does not claim to be exhaustive.

Although authors are generally owners of rights conferred upon them by the Copyright Act, creators and money form a rather odd couple. This mismatch is not new, and it endures with the new media generated by new technologies. To talk of money is important and must not be avoided. For instance, economic rights, in spite of their nature, do not guarantee equitable remuneration. As for moral rights, these can be waived. Contractual practices also have an organic connection with rights, and it proves to be important to make a bridge between copyright and contracts. The contract is the instrument through which the Copyright Actis operationalized. These issues will also be discussed.

To be clear, the writing of rules of law establishing a legal system is based on legislative policy that is founded on values and choices. There is nothing inevitable, deterministic, or impossible about this. And in this spirit, creators must be involved and heard, since they are at the heart of the issue of copyright.

What creators want, above all, is to practise their art, and to be constantly at the barricades defending their rights is extremely demanding for them. Much energy has been expended in recent years, and there does not seem to be any end in sight. In spite of everything, creators are making their presence known. They want to be listened to, but even more, they wish to be heard.

In this report, I first present the report Creators and Copyrightby John Lorinc, then the report from Quebec, CCC-DAMI© Research Project on Artists’ Working Conditions. There are methodological differences between the two reports. The roads taken differ, and so these texts differ; each contributes in its own way to depicting the current situation of creators in Canada. Finally, I discuss the central ideas the two reports have in common.

What creators experience and the many difficulties that they report occur in a context that is certainly not neutral. “Market economy,” “convergence,” and “globalization” are terms we hear every day; but there is also a geography to the dominant discourse that favours certain parties over others. We must be aware of existing paradigms that muddy the waters and reveal a short-term view that cannot and must not be encouraged.

The texts: An attempt at typology

The goal of the project was to offer the reader comprehensible texts that do not sacrifice complexity to readability, that privilege the untidiness of the field over an overly Cartesian typology. The texts have much in common yet display diversity – that is what seems to be the subtext. They are, in a word, asymmetrical. The objectives are similar: to document the situation of working artists. This required going into the field to collect information in order to faithfully describe the realities that creators experience. This report is a summary of two reports, one from Quebec and the other from the rest of Canada. It is not a substitute for the original texts whose scope and analysis offer the reader essential material for situating creators in their environment. Rather, it is a reflection of the two. While it is intended to be a synthesis, I have tried to remove myself from the parent texts in order to push the discussion a bit farther. The notion of choice has been mentioned already. The upcoming reforms to copyright are likely to privilege choice, and so documenting the situation of artists will enable the possibility of enlightened choices being made.

Creators and Copyright
by John Lorinc

John Lorinc’s text is dense. It must be read carefully since the daily realities of many artists are described in it. One feels very clearly the presence of these separate universes, which, without being mutually exclusive, have their own distinct customs. In order to conduct his study, Lorinc interviewed artists and representatives of artists’ associations and copyright collective societies. He also consulted secondary sources, and he cites a variety of primary sources. In order to illustrate his comments, Lorinc frequently draws examples from reality. The experiences of creators are, in fact, the raw material for the study. Lorinc defines his text thus:

Obviously, this survey is not exhaustive. Nor is this document intended to be read as a policy brief, a legal opinion on existing collective agreements, or a quantitative analysis of creators’ economic circumstances. And while most of the sponsoring organizations have formal positions on copyright reform issues, this report will not attempt to reconcile or harmonize these views, nor present a detailed parsing of the fine points of copyright law. Lastly, I do not pretend to depict the concerns of every category of creator – for example, architects, computer games designers and storytellers, as well as the thousands of individuals who make art only for themselves or their friends.

- John Lorinc, Creators and Copyright

Lorinc delivers the results of his research with all the rigour and versatility that the subject requires. His text is divided into three parts. The first provides a context. The second looks at the sectors of photography, visual arts, theatre, film, and television, performers, writers, and music. Lorinc thus segments his text by sector and describes the issues in each with regard to copyright. In the last part, Lorinc analyzes the impact of the amendments made to the Copyright Act in 1997 in terms of exceptions, the state of collective management in Canada, moral rights, and legislation regarding the status of the artist.

In the first part, Lorinc introduces the reader to the political and legal context. He offers a brief history in order to situate the emergence of copyright legislation in Canada. He also discusses the amendments made to the Act over the years, notably the reforms of 1988 and 1997. The adherence of Canada to international treaties on copyright and their effects on domestic statutes are mentioned, as are major reforms made elsewhere in the world, notably by our neighbours to the south. Lorinc also takes a look at recent jurisprudence through rulings on important issues in the CCH, the Society of Composers, Authors and Music Publishers of Canada, the BMG Canada Inc., the Robertson, Théberge,and Desputeauxcases. As a number of these were made by the Supreme Court of Canada, they are very important decisions.

In addition, a new process of reform of the Act has been underway since 2001. The thorniest question currently being discussed involves the use of online material used by educational institutions. In March 2004, the Standing Committee on Canadian Heritage tabled an interim report dealing with some questions: ratification of the WIPO treaties; changes to put photographers on the same footing as other rights holders; amendments to make Internet service providers responsible, under certain conditions, for the content that they put online; and the introduction of an extended collective licence for educational institutions to cover uses of works found on the Internet. The reform process is still ongoing, and we cannot know what the future will bring. However, it is the context for the next, central part of Lorinc’s report. In this part, Lorinc analyzes the seven sectors, offering a brief portrait of each, and then examining in greater detail the stakes at play for creators in each of them. Here is an overview.

Photography

In many cases, photographers work in several worlds at once in order to earn a living. Advertising and art photography are generally identified as being at the extremes of a continuum of professional practices. This is the environment in which photographers work. Structural changes in the media industry have affected them inasmuch as there are now fewer and bigger players. Electronic rights are now demanded of creators, and the remuneration attached to these uses is rather symbolic. The advent of new technologies has also had a major effect. Film and darkrooms have given way to expensive digital equipment that must be updated very frequently. This constitutes an extra financial burden that clients certainly do not assume in its entirety. Moreover, digitised images are easily used, often without permission. Moral rights have been weakened as a result; the work is not often associated with its author and the integrity of the work is breached more easily than before. The fact that photographers are not on the same legal footing as other authors is problematic and should be the object of amendments that make photographers the initial rights owners of their works.

The situation of illustrators is also briefly described in this section. Illustrators and photographers both belong to CAPIC (Canadian Association of Photographers and Illustrators in Communications). Besides their work for book publishers, illustrators also work in the media and for advertising agencies. Like photographers, they often work in diverse environments. There is no “standard” contract; illustrators must negotiate individually. The results of negotiations are therefore highly variable.

Visual arts

In this sector as well, many artists fund their artistic projects from income provided by more commercial and market-oriented jobs. It is noted that artists receive reprography royalties.

The relationship between artists and museums and galleries is extremely important. The exhibition right was instituted in 1988 during Phase I of the reform of the Copyright Act,over the objections of these public institutions. When museums acquire works for their permanent collections, they often ask artists assign their rights, invoking budgetary constraints. And when museums put works online, artists are not paid as a general rule. Another issue is the “remix” culture, which consists of using other works in a new artwork. This practice invites the use of certain works without permission. In the Théberge case, a Supreme Court decision, we have a demonstration of the erosion of artists’ moral rights. Meanwhile, judging from the federal government’s Section 92 report, a “droit de suite”, which would provide artists with a portion of the price paid upon subsequent sales of their work, does not seem to be about to become a reality.

Live Theatre

The Playwrights Guild of Canada, working with the Association québécoise des auteurs dramatiques (AQAD) and Access Copyright, has developed an online publishing service for scripts. This service makes available texts that would otherwise be much more difficult to access. For a fee, users may purchase the right to print one copy of the text. This streamlined distribution that appropriates new technologies has proven to be positive for authors. Not that many plays by Canadian authors are performed in a given year, and playwrights frequently have to work in related fields to make a living. An emerging trend is for theatres to seek participation rights from the playwright whose play was commissioned or presented as a premiere production. This enables the theatre to receive a share of that play’s royalties for a period of, typically, between five and ten years. This practice, which originated in the United States, is spreading. Other individuals involved with the mounting of a play are also beginning to demand the right to participate in royalities, all of which tends to shrink further the playwright’s piece of the revenue pie.

Current practices in live theatre respect the moral rights of the author. Electronic rights are not an issue, at least for the moment. Current exemptions for educational institutions, on the other hand, are real threats.

Film and television

The many film shoots coming from the United States have led to huge changes in the field of film and television. The regulatory framework and tax incentives have played a primary role in stimulating production. More recently, however, there has been a downturn, and the Canadian government has again been asked to help stimulate domestic production.

In the film sector, authorship is a particularly important issue. The Copyright Actdoes not define the author of audiovisual works. It is on the status of the “director” that a number of the discussions converge. Screenwriters are protected under the Copyright Act.Collective agreements also provide a framework for practices in this field. The Canadian Screenwriters Collective Society, created in 2000, collects royalties for secondary uses. Agreements with foreign collective societies are particularly important in this area.

The advent of new technologies has had an impact on the work of directors and screenwriters. For screenwriters, the extra writing required for websites is now covered by a collective agreement, and disputes over unauthorized uses are settled by the Writers Guild of Canada. Meanwhile, the National Film Board is digitizing its collections and would like to develop a Web site for managing royalties. Because the Copyright Act is silent on the status of directors, they have neither control over this type of use nor access to the revenues that will eventually be generated.

It seems that Canadian productions have fewer difficulties than Hollywood blockbusters with the illegal downloading of works. The challenge for the Canadian movie industry remains access to screens.

Performers

Neighbouring rights, which were introduced in Phase II of the reform of the Copyright Act in 1997, affects performers. Performances for audio recordings benefit from certain protections. Organizations such as ACTRA and Actors Equity (CAEA) represent performers, and many types of performance fall under collective agreements. Performers are also affected by the advent of new technologies. New practices are arising: video games drawn from films for which voice-overs must be recorded, as well as new forms of online advertising.

The growing popularity of digital versions of films is an issue. Low-budget productions have always existed and union organizations have tried to take account of this reality, but the “democratization” of these technologies is exerting extra pressure to reduce the costs of hiring actors, and this phenomenon may become problematic.

Writers

Lorinc emphasizes the very diversified environment in which writing is practised. He discusses newspapers and magazines, databases, books, poetry, and textbooks, along with uses for educational purposes on the Internet.

Magazines and newspapers

Relations between freelance journalists and editors of newspapers and magazines are more formal than they once were. The contracts that freelancers must sign cast a wide net and often strip freelancers of all of their economic rights. Moral rights are also affected by these practices. The digital environment has definitely had an impact, and contracts signed by freelancers covering new uses do not translate into better financial conditions. Internet uses and the business model to be deployed have not yet been developed, and much unauthorized use has been noted.

Databases

The use of materials in databases has been questioned by freelance journalists. The class-action suit launched by Heather Robertson was aimed at obtaining a ruling on whether use by electronic means of texts is an electronic version of the paper publication or a new use. Robertson, a Toronto freelance journalist, went to court in 1996 over whether articles written for the Globe and Mailand found in other databases constituted unauthorized use of those articles. The Ontario Court of Appeal ruled in her favour in October 2004. The case is still before the courts.

Books

Book publishers are on the lookout for developments in their industry in media other than paper. It appears, however, that books as we know them are still preferred by readers. Publishers nevertheless ask authors to assign electronic rights although these rights are often not clearly defined and their extent is not always easy to determine. If publication on demand becomes viable, this could change relations between publishers and authors; currently, when the print run of a book is exhausted, the rights revert to the author. In the future, publishers may ask for exclusive rights in perpetuity.

Poetry

Poets feel vulnerable because their texts are often short. Some younger poets use the Internet as a means of dissemination. Certainly, the smaller market for poetry must be taken into account.

Textbooks

Textbooks have their own niche, and unauthorized use is a widespread phenomenon. The granting of licences by Access Copyright in the education field allows money to be recovered that would otherwise be lost. Authors of textbooks generally receive a lump sum that is not associated with the commercial success of their texts. The publishers, however, have not gained favour with creators because they themselves have not been very respectful of creators’ copyright.

Educational use of the Internet

The educational use of copyright-protected materials that are made available on the Internet without protection is an important subject. The education lobby would like an exemption to allow this use of material. Creators, of course, are opposed. Access Copyright has proposed that the Copyright Actbe amended so that a system of licences can be negotiated with educational establishments regarding use of materials on the Internet, and the Heritage Committee’s Interim Report echoed this idea. This is an issue to be followed.

Music

The music sector occupies a privileged position. As in other sectors, creators make their living from a variety of sources. Moreover, a number of organizations exist, both collective societies and professional associations. The music sector benefits from a well-established and smoothly running structure. The new technologies have hit this sector head-on, and the issues raised have been widely publicized in the media. Business models are being developed and the music industry is experiencing major structural changes. Sites where music can be downloaded for a fee have been set up.


The last part of the Lorinc report is divided into subsections. The impact of amendments to the Act in 1997 are discussed from four angles: consequences of the exemptions introduced to the Act through Phase II; the state of collective management in Canada and the capacity of collective societies to generate revenues for creators; the state of moral rights after Thébergeand Desputeaux; and the relevance of adopting status of the artist statutes as a means of increasing artists’ control over their works.

Exemptions

The exemptions introduced to the Copyright Actwere intended to be responses to public policy objectives. Questions must be asked about the technique used, since certain types of use and their costs could be negotiated between users and collective societies, for example. The search for a balance between rights holders and users should not result in free access. Exemptions have a cost, and this means that creators have a gap to make up. In this regard, it is striking to note that the Section 92 review is silent on quantification of costs related to exemptions.

The state of collective management

Collective societies are diverse, ranging from large organizations to very small ones. Tariffs may be set by the Copyright Board or negotiated between users and collectives. These collectives manage large sums of money, but not all the funds collected go to the creators; management fees are also a consideration. The high number of collective societies is another issue. We will have to see how these evolve in the future given the relatively limited nature of the Canadian market. Finally, how collective societies adapt in order to obtain and manage electronic rights will be key. A system of extended collective licences could be an interesting route according to one author, but the Interim Report of the federal government, issued on 24 March 2004 is mute on the question.

Moral rights

The connection between moral rights and economic rights is central. The Thébergeand Desputeauxrulings have had an important impact on them. The new technologies also make works eminently alterable. Moral rights seem to be more fragile than ever. In this spirit, it is perhaps time not to remodel these rights, but to reflect on the role that they must play in the legislation.

Status of the artist legislation

In the early 1990s, the federal government adopted the Status of the Artist Act.It was intended to be a supplementary tool for improving the living conditions of artists. The Act is addressed to artists who are independent entrepreneurs. Rules were enacted to provide a framework for the relationships between artists and producers falling under federal jurisdiction. Quebec already had two pieces of legislation regarding the status of the artist that predated the federal statute. Saskatchewan also has its own statute. Ontario is considering writing one, and the adoption of such a statute was part of the electoral platform of the Liberal Party of Ontario elected a year ago. In this context, it is important to consider which is the most effective tool for artists: collective management, status of the artist legislation, or a combination of the two, as in Quebec.

Lorinc’s overview shows the extent of the impact of copyright issues on creators. Although each sector has its own set of practices, there are certain common issues. The new technologies affect sectors to different degrees, yet they constitute an important issue for all creators. This is the context in which the exemptions were introduced in 1997, and are now threatening to become a legislative technique. Moreover, the recent decisions by the Supreme Court generally disadvantage artists in favour of users. These are the important elements. I shall return to them below.

CCC-DAMI© Research Project on Artists’ Working Conditions:
Report from Quebec

by Maryse Beaulieu

The report from Quebec was designed differently. Directed interviews were conducted with representatives from artists’ associations and collective societies, and with several government representatives. Separate interview guides were prepared for the artists’ associations and the collective societies, as the missions of these two types of organizations are not the same. The government representatives provided less formal assessments. The report from Quebec thus gives results for each of these three types of participants. The intent is to depict the realities lived by creative and performing artists with regard to copyright and contracts, both individual and collective. Questions regarding globalization and new technologies were also addressed. The Quebec report, thus, is not structured by sector but by organization. It must also be said that the Quebec legislative reality differs from that in other Canadian provinces because two provincial statutes on status of the artist cover a large part of the field. This specificity must be kept in mind when looking at artists’ living conditions.

The Quebec report is organized quite simply. After the executive summary, the objective and context of the study are explained and the methodology is described. Finally, the information gathered is presented in three parts: artists’ associations, collective societies, and government representatives.

The interviews were held, for the most part, from late May to mid-June 2004. I conducted 22 interviews, divided as follows: 12 artists’ associations, 7 collective societies, and 3 interviews with four government representatives, who, with their respective assignments, are in touch with the issues under investigation. This study addressed two main subjects: copyright and contractual practices. The materials were organized so that the results were divided by reference group and by subject.

What emerges from these directed interviews? The common denominator, of course, is the artist. Equally obvious is the plurality of artists’ experiences. It is clear that there are common threads, but the reality is far from monolithic. Issues involving copyright and contractual practices are directly linked in all sectors. I attempted to take these things into account by organizing the material in such a way that examples could be used to illustrate what artists’ representatives said without resorting to anecdote. A contract, taken in its entirety, is a sort of snapshot of the relationship between artists and users. It structures uses and practices that are directly connected to the reality of the field and gives a sense of the current state of affairs. Although copyright is of primary interest in this report, it is embodied in broader contractual relations, and I will sometimes note practices that, without being about copyright per se, seem relevant. Below are the points that I consider central in this report.

The impact of new technologies : a reality with a variable geometry

The new technologies are often the lens through which copyright is seen. There is a deep concern about the emerging new media in the field and also a sense of the disparity between emerging uses and existing legal protections. New technologies do not have the same impact in all sectors, however. Time is also a variable in the sense that future development of higher-performance or more accessible technologies will once again change the landscape and may affect sectors that, for the moment, are more or less untouched. For without minimizing the impact of new technologies, we can say that they are not of concern in all fields though they are the window through which issues linked to creators’ rights are viewed by the public.

Moral rights: uses vary by sector, and very distinct practices are reported

Although patrimonial rights are bread and butter for artists because they are economic in nature, moral rights are also affected by contractual practices. There does not seem to be a systematic waiver of moral rights, but their scope is definitely being diminished. There is more pressure on moral rights in environments where business activity is intense; due to the dictates of commerce, attempts are made to obtain as much flexibility as possible, and works are becoming more like merchandise. The properties that are on the market are less closely tied, thus, to moral rights.

The idea that a contract is automatically fair should be rethought

The idea that a contract is automatically fair implies that the parties to the contract have equal strength and that the contract resulting from the negotiations between the parties will be just and equitable. Given this premise, it is not surprising that status of the artist statutes designate mechanisms to provide a balance in individual contracts in which the rules are normally dictated by the parties. Act S-32.1 and the federal Status of the Artist Actcontain an obligation to negotiate with a view to obtaining collective agreements or scale agreements. Act S-32.01, which applies to literature, visual arts, and arts and crafts, sets out a number of components that must be written into the contract. These provisions depart from the general rules concerning contracts and certainly have a protective function. The existence of these provisions and the formalism that govern individual contracts have not, however, led to in-depth changes.

Collective societies and artists’ associations: two modes of appropriation

It seems clear that the most effective modes of intervention in contractual matters are collective mechanisms. It appears that the most conclusive modes for artists exist within organizations, whether they be collective societies or associations that negotiate collective agreements, that have sufficiently strong bargaining power for there to be real negotiation.

Although collectives and artists’ associations are organizations based on different premises, they are both tools that enable artists to strike a better balance in their contractual relations.

Establishing the value of copyright: a persistent difficulty

It is interesting to note that uses related to new technologies are often part of a group of uses for which large sums are in play. The importance of establishing a value for these uses tends to be underestimated. The fact that there is de facto access, free of charge, exerts a pressure on the value of use.

Central ideas of the Two Reports

It is important to find the common central ideas in the two reports. What must one retain from these texts? It seems possible to postulate a priori that the situation in Quebec and in other Canadian provinces is comparable, without seeking to create artificial parallels between the realities presented in the two reports.

Circulation of works and economic benefit: a two-speed system

One might think that the increased circulation of works would bring increased profits to creators, but this mathematical logic does not seem to apply. The increased use of works and their circulation in the virtual world do not translate into substantial economic gains. The pace of changes in recent years, notably with regard to new technologies, makes it difficult to follow emerging practices and provide them with a contractual framework. The value of these uses is still to be determined.

Moral rights

It must certainly be kept in mind that new technologies make moral rights more fragile, in terms of both the paternity of the work and its integrity. Contractual practices are also modulating moral rights. Pressure from the marketplace and the circulation of goods seems to put creators at a disadvantage.

Exemptions

The exemptions added to the Copyright Act in 1997 have opened a major breach because they have weakened the spirit and the letter of the Act, which was adopted initially to protect authors by according them rights to their works. First, creators’ work is expropriated without compensation and the revenue linked to exempted uses is thus forgone. Second, the signal sent to users with the introduction of exemptions is bad, as the justifications can assist other users of copyright-protected works who do not wish to pay royalties. Exemptions thus create holes users try to enlarge through further revisions of the Act; they multiply the situations, presented in Kafkaesque terms, for which exemptions provide the solution.

Contractual practices

What clearly emerges is that negotiating power is a key. Collective management, collective agreements, and scale agreements constitute the most efficient means for creators to obtain a stronger negotiating position. It must be taken into account that Quebec has two statutes dealing with the status of the artists: An Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters (Act S-32.01) and An Act respecting the professional status and conditions of engagement of performing, recording, and film artists (Act S-32.1). Obviously, this fact alone does not mean that no collective agreements exist in the rest of Canada. In fact, the federal statute on the status of the artist, the scope of which is quite narrow, applies to all of Canada. The fact remains, however, that the Quebec’s status of the artist statutes have specificity. In addition, Quebec’s legal system is based on civil law, while in the rest of Canada common law governs private law.

Individual negotiation is chancy and is generally detrimental to creators. Contractual practices are an important proof of this, and the uses that arise must also be observed. The party with the greater negotiating power may contractually obtain an assignment of economic rights and a waiver of moral rights. A very wide range of rights may be signed over, and the assessment of the monetary compensation is purely contractual. It may go so far as to be free of charge.

Conclusion

Is the Copyright Act – which, in principle, organizes and deploys a system to protect authors – still fulfilling its role? Less and less, it seems. For, with each revision of the Act and each Supreme Court ruling, creators are seeing their rights eroded in favour of the users of their works. Creators feel more and more marginalized by a statute that treats them like an afterthought, and which is being constantly broadened to protect new classes of works such as software and databases, and many more of rights holders who are not creators. In addition, new technologies and globalization are posing new challenges.

In this already difficult context, creators are thus confronted with the task of convincing legislators to return to the primary mission of the law, and to seek legislative solutions to new challenges that respect these primary rights, and to remind them that reform is based, above all, on choices of policy. For, as was said at the beginning, there is neither determinism nor inevitability here. It is not the rule that should dictate what the law will be, but the body that makes the law. Here, parliament, in its wisdom, must step forward.

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