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Claude Brunet Plays Blood, Sweat and Tears

By Christopher Moore | March 16, 2008

Went down to the Access Copyright annual meeting at the Harbour Castle in Toronto the other day, and heard the keynote address by Montreal lawyer Claude Brunet of Ogilvy Renault

Brunet is a wise, humane, and articulate (in at least two languages) student of copyright, but his mood on Friday was grimly philosophic. Stressing he was speaking his own mind and saying things that could conceivably offend his clients, among others, he said that to those who write, create, compose and publish and who wish to be remunerated in proportion to the value they provide, he had little to offer these days beyond the Churchillian values of “blood, toil, tears, and sweat.” Brunet looked out over a world where public opinion has turned decisively against creators’ interests, where academia sustains anti-copyright philosophies and practices, where governments prefer users’s interests over creators, and where the courts are keen to introduce new loopholes and exemptions to erode the copyright process.

Brune believes in the enduring importance of copyright to a creative, idea-driven society. He believes above all in the British/European tradition that sees copyright as a moral right, and he looks askance at the American tradition that makes copyright purely an economic transaction. He regrets the influence of American notions upon world copyright policy in recent decades, arguing that it has led to a world in which loopholes proliferate on one hand and corporations sue grandmothers on the other.

Brunet believes copyright should facilitate access to work, not close it off, and it should not be driven by loopholes and litigations. He does not favour padlocks and technological protections as either practical or desirable ways to sustain copyright principles, and he endorses processes that provide both secure access and reliable remuneration. He recommended (well, he was speaking to Access Copyright) collective licensing, a tradition still too weakly developed in the United States, but one in which everyone who is covered by a license is guaranteed access and where remuneration is negotiated. He was scathing about recent decisions of the Supreme Court of Canada that seemed intent, American-style, on developinging new exemptions and permissions in order to gut licensing processes that already exist in Canada and that provide users with guaranteed access and fairly negotiated rates.

Nobody listens to copyright lawyers, he said ruefully, as he moved toward his close. And even though no one who speaks for copyright should expect an easy reception these days, he argued, it was particularly necessary for creators of works to go out and make the case for copyright.

It was only here, at Brunet’s peoration, that I found myself resisting. I don’t know precisely who his clients at Ogilvy Renault’s IP department are, but it’s a high-end firm, it’s going to represent high-end publishers and producers who can pay its billing rates. And many of those publishing/producing corporations have based their business plans, no doubt with advice and drafting from law firms like Ogilvy Renault, on assaulting and obliterating creators’ copyrights. So many of our largest publishing corporations, in journalism, in periodicals, in mass media, in educational publishing, in academia, simply will not publish unless they receive a surrender of rights and a waiver of moral rights — two of the American inventions that Brunet finds so inimical to the great European tradition of copyright as an author’s personal right.

Should we creators, I found myself wondering, exert ourselves to use our voices and influences to defend the rights of organizations that make war on our rights? Professors Geist’s free-lunch Facebook mob is a rather remote and theoretical threat to our livelihoods, it sometimes seems, compared to publishers who are daily in creators’ faces, waving their surrender-all-rights, waive-moral-rights contracts as the sine qua non of being published at all.

Indeed, the problem goes beyond the publishers to Access Copyright itself. As Professor Friedland’s analysis of its distribution policies recently set out so clearly, Access Copyright itself actually encourages and rewards publishers who attack the copyrights of their creator partners. The more successfully publishers, many of them American-owned and directed and imbued with the American sense of copyright, can destroy creators’ copyrights, the more Access Copyright takes the money it raises in the name of creators and delivers it to publishers instead (as the AGM reports on distribution made dolefully clear once again). Even our copyright collectives sometimes seem to give only lip service to the idea that copyright is worthy of respect, unless it is publishers’ copyrights.

I share Claude Brunet’s humane sense that copyright ais one of the beneficial institutions that underpins a creative, culture-rich, idea-driven just society. It’s a rich and profound concept. But I find it hard to motivate myself to go again and again to defend that vision, when so many of maitre Brunet’s own clients give only hypocritical lipservice to the whole idea of copyright, when it involves respecting copyright as well as benefitting from it.

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