CCC and DAMI© Research Project
on the Working Conditions of Creators in Quebec and Canada

Creators and Copyright in Canada

Prepared for the
Creators’ Copyright Coalition
Bill Freeman, chair

by John Lorinc
November, 2004

Author’s Note

The following report was commissioned by the Creators’ Copyright Coalition and DAMIC, an umbrella organization of national artists’ groups. It will present a sector-by-sector description of the concerns of various categories of creators, including areas such as digital uses, contracts, and legislative gaps in existing copyright law. The report also presents the experiences of some individual working creators to illuminate a selection of the rights issues they face in their professional lives.

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.

Part I: Introduction

The interests of creators and producers are neither identical nor even parallel.

Throughout history, human beings have felt compelled to express themselves by creating works of art – good, bad and indifferent. It is not within the scope of this report to examine the reasons for one of the defining qualities of the human condition. Suffice it to say that the expectation of financial gain is just one of many complex motivations for creators. Indeed, the vast majority of creative work never reaches “the market.”

The commercial entities that deal in marketable creative works – publishers, music labels, media conglomerates, theatre companies, etc. – function in much more straightforward ways. With a few exceptions, these companies seek out creative works that can be expected to attract audiences, then, devise strategies for marketing and distributing them. Such firms often make a substantial creative contribution to the “finished product” (editing, sound mixing, etc.). And some have extremely high standards, a fact of corporate life that enhances our culture generally. But the overriding motive for these firms is to earn a profit for their shareholders. They achieve this goal the way companies in all sectors do: by maximizing their revenues, minimizing their expenses, and protecting their assets from rivals.

The foregoing distinction may seem obvious. Yet it bears noting because of the emergence of an unfortunate dynamic in the current global debate over copyright reform and the highly challenging issues posed by digital technology. In Canada, as in many other countries, the discussion has been largely cast in bi-polar terms, with “users” (everyone from libraries to file-swappers to “electronic frontier” activists) in one corner, and copyright owners in the other. Due to the nature of our policy/political process, the copyright owners camp has been dominated by the media and entertainment industries, which can afford to hire lawyers, lobbyists and experts to represent their interests to decision-makers. There’s nothing wrong with self-interested advocacy per se. But as this debate has unfolded, the views of the creators themselves have been overwhelmed by those of producers, publishers and media conglomerates, and assumed to always coincide. The Creators Rights Alliances in Canada and the U.K., and similar coalitions elsewhere, have attempted to open up the debate, and draw attention to areas and policies where creators’ interests have not been fully articulated, or differentiated.

There are certainly issues where creators and producers’ views overlap, but their interests do not coincide as a general rule. As many artists understand from professional experience, their own goals do not necessarily match those of companies such as publishers, film studios, etc. This is why we have book contracts, performers’ guilds and negotiations over the allocation of royalties or other revenues generated by copyright works.

It should also be noted that creators and their producers or publishers have fundamentally different perspectives on the broader culture. A record label may see the universe of songwriters and musicians in the way that a mining company would regard a geographical region considered to be rich in, say, diamonds. They stake a claim and then attempt to extract the minerals in such as way as to maximize return on investment.

Creators, by contrast, exist within a culture, broadly defined, and their work is shaped by the way their own ideas interact with whatever they find in that ambient environment – be it the work of other artists, new technologies, political trends, etc. Creators draw on the culture in unpredictable ways, and so it is in their artistic interest to have as much access to that culture as possible. The cultural environment is healthiest when artistic work can be disseminated as broadly as possible without undermining the rights of creators to reap an economic benefit, as well as ensure that their moral rights are respected (i.e., that they receive credit and their works are not altered without permission).

If their works have a commercial existence, creators naturally want a fair share of the proceeds of copyright. Professional freelancers must maintain control of their intellectual property and their moral rights in order to earn a living. But other creators, because they do not generate a living wage from their work, will view these issues from a range of perspectives. Some teach, and rely on being able to use copyright work in an educational context. There are those who may deliberately use or transform the work of other artists (house music, collages, video art, documentaries, etc.) to produce new forms of art or speech, an approach that may involve collaboration with other artists, on one hand, or copyright or trademark infringement, on the other. And some artists will derive their primary creative income from other sources altogether, e.g., in the case of high profile musicians, ticket sales and merchandising revenues generated by tours.

All of these variations take on yet another layer of complexity when the discussion comes to include the Internet. For instance, a growing number of creators, especially younger artists, hold opinions about the Internet’s capacity to distribute creative works that has put them sharply at odds with established artists’ groups, and even some high-profile artists, in the debate over piracy, unauthorized copying and digital uses. This perspective places such artists in the rapidly growing “copyleft” movement, which promotes such ideas as “open-source” or free software and the advent of “creative commons” licenses that permit certain types of copying. Others have appropriated the aims of the copyleft movement to question the very future of copyright as a meaningful legal construction.

Stepping back, these are global issues in every way. Digital technology has altered so many creative forms. It respects no boundaries and few conventions. Meanwhile, the growth in the worldwide trade of cultural `goods’ – fueled by the ever expanding influence of enormous media/entertainment conglomerates – situates basic questions about copyright and creators in an international corporate context. Still, Canadian creators must first attend to what’s happening at home, and so the following report seeks to provide a domestic perspective in this difficult and dynamic debate.

The Political and Legal Context

As of the fall of 2004, Canada has arrived at a crucial moment in the evolution of its approach to copyright policy. Because of rapid advances in new digital technologies, these issues have a direct impact on a wide range of powerful media industries, as well as public institutions and the thousands of creative individuals who comprise this country’s intellectual and cultural life. These challenging debates aren’t merely about copyright technicalities such as royalty fees and permissions. Decisions made in Parliament and the courts affect both the public’s ability to access creative works, as well as a creator’s ability to control his or her intellectual property, and benefit from it economically. In other words, copyright law has a crucial role in determining the expression of ideas and the movement of information, broadly defined, within society.

To understand where we are at this moment, and how we got here, it’s important to briefly review the recent history of copyright policy in Canada.

Canada’s Copyright Act was enacted in 1924. According to the Department of Canadian Heritage, the law exists to provide “a legal framework within which creators of literary and artistic works, including films, books, sound recordings, information products and computer programs are entitled to payment for the use of their works. It establishes the economic and moral rights of creators to control the publication of their works, to receive remuneration and to protect the integrity of their endeavours.”

The origins of Canada’s copyright law can be traced to 1710, with the enactment of the Statute of Anne, when English legislators established copyright rules to regulate the book trade to mollify the concerns of booksellers and printers about unauthorized competition. The law also established statutory time limits governing the exclusive rights enjoyed by authors and hence by publishers/printers and booksellers, and thus introduced the concept of the public domain. In effect, the political motive behind copyright legislation was to constrain the commercial clout of the publishing industry, although early judicial decisions also recognized the rights of authors. The concept of a balance between creators and producers rights emerged from common law legal decisions involving contested rights to the publication of a poem composed in the mid-1700s.

As a judge at the time wrote, “It is just, that an author should reap the pecuniary profit of his own ingenuity and labour. It is just, that another should not use his name without his consent. It is just that he should judge when to publish, or whether he will publish…”

Canada’s copyright laws, at the same time, are also rooted in the 18^th century French liberal tradition of “moral rights.” This formulation holds that creators are sovereign individuals and enjoy an inalienable right to have their authorship of a work respected. Moral rights were first enshrined in international law at the Rome Congress of the Berne Convention, in 1928. Apart from their connection to human rights theory, moral rights address the principle of an author’s need to protect his or her reputation: the right to be identified as the author of a work or to have his or her anonymity protected; the right not to be published without consent; and the right to have the integrity of the work respected. Copyright is the only sort of intellectual property right to be associated with such concepts.

A moral rights clause was added to Canada’s copyright law in 1931 as part of the ratification of the Berne Convention, and such provisions exist in a handful of Quebec laws. The best known test of Canada’s protection for moral rights occurred in 1988, when the Supreme Court of Canada ruled that artist Michael Snow’s moral rights had been violated when red ribbons were tied around the necks of the Canada geese sculpture installed in the Toronto Eaton Centre. But two recent court rulings (see below), as well as mounting creator concerns about the ease with which digitized works can be altered without the author’s permission, have led to calls for a strengthening of the moral rights provisions in the Copyright Act.

Early copyright statutory provisions focused on the printed word, and contained no provisions governing the use of copyright material, nor riders about broader public policy objectives linked to intellectual property. In 1924, the new Canadian law protected the authors of literary and artistic works from unauthorized copying. But it also included a “fair dealing” defense, which allowed individuals to make copies for private research or study without seeking permission from the rights holder. In the early 1930s, the law was amended to regulate the tariff appeal process for composers and music publishers, and to collect royalties from the public performance of musical works.

In 1988, the federal government enacted the first major set of amendments to the Act, and these illustrate how far copyright law has evolved. The changes included an exhibition right for artistic works displayed in museums or galleries; explicit protection for software programs; and measures to improve the collective administration of copyright, and to expand it to cover other works and uses beyond the performance of music.

A year later, following the approval of the Canada-U.S. free trade agreement, the law was again amended to require cable and satellite companies to pay for the retransmission of copyright works. In 1993, Parliament passed a further amendment to the Act to clarify the definition of musical work to include both acoustic and “graphic” (i.e., scores) representations of music, and to make all cable and satellite transmitters liable for royalties.

In 1994, after the North American Free Trade Agreement came into force, the Act was changed to allow a rental right for sound recordings and software (i.e. permitting the lending or rental of such works through libraries, rental chains, etc. or the prohibition of lending or rental) as well as increased protection against the importation of pirated works.

A year later, the members of the World Trade Organization established the “Trade Related Aspects of Intellectual Property Rights Agreement” (TRIPS) – a multilateral framework with an arbitration mechanism. The agreement exists not only to promote protection for intellectual property rights, but to encourage WTO nations to see these as a means to an end, which is the development and dissemination of new technologies “to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare…” As a Creators Rights Alliance commentary on TRIPS notes, the agreement represented a change of intent with regard to copyright. “Historically, IPRs (intellectual property rights) have not been burdened with objectives other than the protection of creators’ rights and the public interest in access to information and cultural heritage.”

The second phase of Canada’s copyright reforms were enacted in 1997. The amendments, contained in Bill C-32, included a broad range of reforms benefiting various industries as well as rights owners. Book publishers were granted a so-called “distribution right” allowing them to sue booksellers that circumnavigated exclusive distribution arrangements negotiated between Canadian and foreign firms. Performers and producers won the right to collect royalties on music broadcast by radio stations and other public performances – a “neighbouring right.” Traditionally, only composers and song-writers were entitled to receive royalties for the public performance of their music.

The legislation, furthermore, established a levy on blank tapes, cassettes and disks sold in Canada, with those revenues divided up among music producers, composers and lyricists, and recording artists. This provision essentially recognized the fact of widespread unauthorized copying of recorded music, and established a compensatory – as opposed to legally punitive – solution designed to provide revenue to copyright owners for foregone record sales.

But the most historic component of C-32 involved the enactment of a series of “exceptions” to the provisions of the law. These covered a range of “uses” deemed to be in the public good: education institutions were granted exemption for the use of copyright materials for some instructional purposes, such as overheads and tests; and an exception allowing the reproduction and use of radio and TV and news commentary broadcasts for up to a year from the taping date without payment of royalties. Non-profit libraries, museums, libraries and archives were granted a “single copy exemption” in certain circumstances so they could make duplicates of rare or unpublished works to maintain collections or participate in an inter-library loan system; and the right to reproduce entire articles from newspapers or magazines that are at least 12 months old, for private study or research. These institutions were also given limited liability with respect to the use of self-serve photocopiers.

Lastly, individuals with perceptual disabilities, hearing loss and learning disabilities were included in the new legislation, through an exception that allows the copying of a literary, musical, dramatic or artistic work in an alternative format, such as a talking book or a Braille text. The proviso in the law is that the alternate version of the work is not already commercially available in Canada.

All together, Canada’s copyright legislation is considerably expanded from the original legislation. As amended, the law establishes a range of related rights that don’t involve copying per se, various mechanisms for collecting royalties, legislated protections for both industries and individual rights holders, and provisions governing uses and users, both individual and institutional.

Where it fell silent, however, was on any special treatment for the realm of “digital uses.” The federal government decided to deal with this matter in the next round of reforms, when (or so the reasoning went at the time) there was a greater sense of clarity about the immensely complex copyright issues arising from the advent of the Internet. At the time, of course, the dominant digital medium was the Web, and technologies such as Napster, peer-to-peer (p2p) file-sharing, MP3, CD burning, and DVDs were in their infancy.

Since C-32 received royal assent, there have been numerous critical developments in the realm of policy directed at digital issues, as well as all rapid technological changes that are well known. In 1997, Canada signed two World Intellectual Property Organization: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), both negotiated shortly after the TRIPS agreement came into force. Parliament has yet to make the legislative changes that would allow Canada to ratify either treaty. Both treaties came into effect in 2002. Canada’s slow pace in making the necessary amendments has been increasingly noted abroad by its trading partners.

The WCT and the WPPT aim to curb unauthorized downloading of copyright works, such as music files. They clarified or established the so-called “making available right.” In effect, this new exclusive right provides creators, producers and performers with the right to authorize others to make their work available to the public – for example, if someone uploads a commercially available song to a p2p server, the copyright owner would have the legal means to exercise this right to permit or prohibit that posting. The WIPO treaties also established the principle that it should be illegal to tamper with digital encryption systems (“technological protection mechanisms”) installed to prevent unauthorized copying or with digital rights management systems.

(A 2003 study for Industry Canada, written by Marcel Boyer, of the Universite de Montreal, observed that a dearth of hard data makes it “extremely difficult” to predict the economic impact of these treaties on authors, photographers and publishers. But he concluded that strong and transparent copyright laws will “foster cultural development and diversity as well as contributing to the social well being of all.”)

In the United States, in the meantime, several pieces of legislation – including the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension – were approved by Congress. The DMCA (1998) implements the WIPO treaties. The Sonny Bono law extends the term of copyright to “life of the artist plus seventy years”, (the so-called Disney rule thereby protecting Mickey Mouse from falling into the public domain). There are also tougher legal mechanisms to fight unauthorized digital copying, such as a requirement that Internet Service Providers (ISPs) can be forced to disclose the names of individuals suspected of copyright infringement on the Internet. The European Union, meanwhile, adopted a handful of directives covering such issues, including extension of copyright to life plus 70 years, which is the new world standard.

The global scope of both the Internet and the media/entertainment industry, as well as the growing number of multi-lateral treaties governing IPRs, are now determining to a significant degree the broad parameters of copyright policy reform within Canada.

Still, in the past few years, much of the nuance in the domestic debate over copyright policy has come from a series of landmark Canadian court cases that have tested the definition of fair dealing; the ability of rights holders to prosecute those parties alleged to be involved in illegal downloading; the link between commercial online databases and copyright infringement; and the legal extent of the moral rights enshrined in Canadian copyright law and international covenants. These include:

• The fair dealing case involved a lawsuit launched in 1993 by three legal publishers against the Law Society of Upper Canada, in Toronto. The publishers alleged that the Society’s Great Library infringed their copyrights by (i) authorization of copyright infringement by patrons using the library’s photocopiers; and (ii) copying legal decisions and faxing them on a fee-for-service basis to lawyers without being licensed. In March, 2004, the Supreme Court overturned an appeal court decision and ruled that the LSUC was acting legally.
  
  The decision, moreover, extends far beyond the world of legal publishing. The court effectively expanded the “fair dealing” defense, which had never before been tested at this level. The ruling also interpreted the definition of “originality” in the Act – a test that is of great concern to creators. And it established a significant precedent -- that an institution which provides the technical means for copying isn’t, in turn, necessarily liable for any unauthorized copying that may take place. Supporters of the ruling have described it as establishing a code of user’s rights. And the fact is that fair dealing also benefits creators (including academics, journalists, etc.) who rely on the use of material in library collections for professional purposes. Despite that, creator organizations and some legal experts feel the decision ultimately tilts the balance of copyright law away from rights holders.
• In 2002, the industry association representing the major record labels sued Canada’s five largest ISPs, demanding the names and addresses of 29 people who, the record companies alleged, had posted hundreds of music files on the Internet. The action mirrored similar high-profile lawsuits launched by the Recording Industry Association of America (RIAA), citing provisions in the DMCA. The U.S. lawsuits -- which resulted in substantial fines imposed on individual file swappers, some as young as 12 -- provoked enormous controversy, and the accusation that the recording industry was waging a legal war against music fans. In Canada, by contrast, the Federal Court, in March, 2004, ruled that it would not compel the ISPs to disclose the names of alleged file sharers. The decision, regarded as a victory for file-swappers, is under appeal.
• In 1995, the Society of Composers, Authors and Publishers of Music of Canada (SOCAN), which is the leading music industry rights collective, filed an application with the Copyright Board to impose a levy, or tariff, on Internet Service Providers. The reasoning was similar to the case in favour of levies on blank media: because Internet users “communicated” music via computer networks, the owners of those networks should pay a royalty to compensate rights holders for unauthorized copying. The process took over six years considering the so-called Tariff 22 proposal, and, in 2002, SOCAN appealed its rejection of the levy to the Federal Court. The Federal Court ruled that in certain cases ISPs would be held liable if they cache copyright-protected works (i.e. temporarily store digital files containing copyright works).
  
  But in June, 2004, the Supreme Court over-turned that decision in a 9-0 verdict, arguing that ISPs can not be held liable for the communication of copyright material over their networks even when they cache copyright works. Still, the court made a number of significant rulings that benefit copyright owners in general. One is that a communication takes place in Canada even if it comes from a source outside the country – i.e. that Canadian rights owners have the ability to license those kinds of transmissions. Secondly, ISPs will be held liable if they function as more than mere conduits for copyright work. Lastly, the court implied that the federal government needed to modernize Canadian copyright law to ensure right owners’ works are protected when they are used on a medium such as the Internet, which didn’t exist when the law was drafted in the 1920s.
• In 1996, Toronto freelance writer Heather Robertson initiated a bid to launch a $100 million class action lawsuit against Thomson Corp. asserting copyright to articles written by freelancers in The Globe and Mail that were included on Thomson CD-ROMs and InfoGlobe, an electronic database available to subscribers. Robertson argued she had not authorized the republication of her articles on the database, and that the Globe owed her royalties for these uses. At issue is whether freelance writers, photographers and illustrators retain the rights in their works that would allow them to control their copyright after first publication, as per long-standing practice. As well, the question tested in this action is whether the database is merely an electronic version of the newspaper, or if it is a substantially different product, with discrete copyright requirements.
  
  In October, 2004, the Court of Appeal of Ontario upheld a lower court ruling which found in favour of Robertson’s copyright infringement claims and challenged a central pillar of the Globe’s defense of its actions, i.e. that the database is merely an electronic version of the newspaper, and that perpetual re-publication of freelance articles is an implied element of the original contract between the writer and the newspaper. As a PWAC official noted in response to the ruling, “Unlicensed re-use of freelance writing has been a blight on the industry, making it harder and harder for writers in Canada to make a living at their profession. In many ways it’s a shame the courts have had to rule on something as fundamental as a person’s ownership of the work they have created.”
  
  This freelancers’ class action against Thomson – which is still subject to further appeals -- mirrors another class action suit involving the Montreal Gazette, but also the famous Tasini case in the U.S., in which freelance writers sued the New York Times and two other publications for selling their articles to commercial databases (including Lexis/Nexis) without permission or compensation. The publishers defended their actions by arguing that including such articles in a database is merely a revision of the original work. But in a landmark 7-2 judgment handed down in 2001, the U.S. Supreme Court ultimately ruled in favour of the freelancers. According to the majority opinion, databases are not just altered versions of the original publications (by contrast to microfilms), and thus freelance contributors retain the right to authorize the republication of their articles in these kinds of electronic information products. As University of Ottawa associate law professor Daniel Gervais points out, the decision didn’t prevent the publishers from using the material, but “forced” the two sides to negotiate terms that provided freelancers with suitable compensation.
• In the latter-1990s, the prominent Quebec painter Claude Théberge sued three Montreal commercial art galleries for copyright infringement arising, he said, from a process whereby the ink from paper posters of his paintings was mechanically transferred onto canvas; these “paintings” were then sold, even though Théberge had not authorized this kind of commercialized reproductions of his work. His case against the galleries was upheld by Quebec courts, but in March, 2002, the Supreme Court of Canada overturned those rulings on a 4-3 vote that split down linguistic lines.
  
  Writing for the majority, Justice Ian Binnie argued that no infringement had occurred because no additional copies of his work had been produced from the ink transfer process. He also stated that moral rights, while representing “a continuing restraint on what purchasers can do with a work once it passes from the author,” can not masquerade as economic rights. The dissenting justices pointed out that the copyright law’s provisions on reproduction make no mention of the number of copies produced, but rather the act of making a copy. “Fixation of the work in a new medium,” wrote Justice Gonthier, is therefore the fundamental element of the act of ‘reproduc[ing]…in any material former whatever’ what already existed in a first, original material form. That type of conduct amounts to plagiarism and constitutes infringement…”
• The other salient moral rights case is Les editions Chouette (1987) inc. v Desputeaux, handed down by the Supreme Court in March, 2003. It involved the authorship of a series of children’s books by illustrator Helene Desputeaux. In that case, the illustrator was commissioned to produce the books, but the project led to a contractual dispute over whether or not the president of publishing house was a co-author of the works, which had spawned a television show and other commercial spin-offs. An arbitrator ruled that the illustrator was only a co-author without looking at the books to judge the nature of authorship. Desputeaux’s appeal ended up in the Supreme Court. Its judgment upholding the arbitrator’s decision overruled a Quebec Court of Appeal verdict, in which it was pointed out that the right to be credited with authorship, “just like the right to respect for the name [,] has a purely moral connotation connected to the dignity and honour of the creator of the work.” As Desputeaux’s lawyer Normand Tamaro observes, “Since Desputeaux, in Canada the status of an author can…rest on a vacuum. An author can also be deprived of his rights without the decision maker being concerned with seeing his works.” Subsequent Supreme Court rulings have re-affirmed this verdict.

This brings us to the present day. Since 2001, the federal government has been moving, very slowly, towards the enactment of a new set of amendments to the copyright rules. The government has conducted extensive public consultations and issued discussion papers on digital issues and the adequacy of existing copyright rules.

Without question, the most contentious issue that has arisen involves the use of online material by schools, universities and colleges. Computers and Internet access are standard equipment in educational institutions, and the content on them ranges from subscriptions to online encyclopedias for elementary school libraries to university course websites and electronic course-packs. Moreover, students at all levels now rely on material found on the Internet for projects, assignments and presentations. Canada’s copyright law exempts educational institutions from specified types of copyright infringement. It authorizes collectives such as Access Copyright to negotiate blanket licenses with school boards and universities. There is, however, no special treatment for educational users of copyright material on the Internet.

With the rapidly expanding use of the Internet for educational purposes, the Council of Ministers of Education of Canada began urging Ottawa to extend the existing exception to school use of the Internet. Groups representing copyright holders (publishers, authors, etc.) strongly disagreed with this proposal, warning that such a move could lead to widespread unauthorized electronic copying of textbooks and other copyright work that can be uploaded onto the Internet. They further argued that copyright holders should not be expected to subsidize educational institutions, which must pay for all sorts of other resources and equipment, from desks to software licenses.

In the spring of 2004, shortly before the dissolution of Parliament, the House of Commons Standing Committee on Canadian Heritage released an “interim report” that represents the latest iteration of formal policy-making.

The report proposed a series of recommendations (to be discussed in more detail later in this report) to “modernize” Canada’s copyright legislation. These included:

• formal ratification of the WIPO treaties;
• changes in the treatment of photographs and photographers under the Act;
• amendments that would make ISPs liable for copyright infringement of content transmitted on their networks, subject to some conditions;
• a set of rules establishing an “extended collective licensing” system that would allow copyright collectives to authorize and collect fees from educational institutions for the use of copyright works available over the Internet, but to also structure these licensing arrangements so users would not be charged when accessing online material that is clearly intended to be used without charge or in the public domain (all collectives have well-established administrative policies designed to exempt public domain material from licensing agreements).

As of this writing, the timetable for the adoption of these and other recommendations remains uncertain given the present minority Liberal government in Ottawa. But Canada is the only G-8 country that has yet to ratify the WIPO treaties – a process that involves harmonizing Canadian legislation with the provisions of the treaties – and the glacial pace of reform is quickly becoming a source of international embarrassment. Among other things, the WIPO treaties reaffirm the principle that exemptions in national copyright laws must be limited and minor, and not intended to damage the economic interests of rights holders.

Meanwhile, recent Canadian court rulings have prompted artists to call for additional legislated protection of their moral rights, and a re-consideration of the fundamental principles animating the moral rights provisions in the act. Creators also see the need for a critical re-examination of the impact of the Act’s various exemptions on the livelihoods of the creators who produce work that has been, in effect, stripped of part of its economic value in the name of a public policy objective.