As the long-awaited Copyright Bill C-32 enters its final phase of approval in the Senate, actra and the Canadian Music Publishers Association are accusing the broadcaster lobby of trying to kill it.

After 10 years of discussions and amendments to Bill C-32, it arrived April 7 at the Senate’s Transport and Communications Committee, headed by Lise Bacon. If there are further amendments to the Bill, it will be sent back to the House of Commons. If, as is expected, an election is called in the coming weeks and the bill hasn’t been approved by the Senate, it will be scrapped.

‘Any further amendment to this bill will basically kill it,’ says Sandy Crawley, president of actra. ‘It will foul up the whole thing. That’s what, I think, is being attempted on the part of the broadcast lobby. They’d like to see it fail.’

David Baskin, executive director of the cmpa agrees. ‘If it goes back to the House, it is dead,’ he says. ‘It would be nothing short of tragic for this much effort to come to naught after so many have worked so hard on this bill. The broadcasters are trying to use their friends in Ottawa to carve up the rights of people out there who are ready to make deals and do business.’

The Canadian Association of Broadcasters has been outspoken in its opposition to certain parts of the bill and recently joined forces with the education lobby, which has a completely different set of concerns, in calling for amendments.

However, cab president Michael McCabe denies that association wants the bill to fail. On the tight political timeline, he says, ‘that’s a problem they face and we face. Pressure will be on to pass the bill without amendments and then we’re hung out to dry. That’s a reasonable scenario – that the Senate will jam it through, the way it was jammed through the House. If the Senate sees there should be amendments, then the government has to decide if it can find some time in the House. They have the power to limit debate time.

‘If the government is determined to get it through before an election is called (even with amendments), it can.’

Bill-32 took a decade to be drafted and is hotly contended, in large part because it is very complex, difficult to understand and updates some sections of the Copyright Act that hadn’t been reworked since the 1920s.

Presented by Deputy Prime Minister Sheila Copps and Industry Canada Minister John Manley, the bill, with its package of 76 amendments, was approved by the Commons Heritage Committee in December.

Amendments include a levy on blank audio tape cassettes to remunerate creators for private copying of musical works, provisions for royalties to producers and performers of sound recordings, and statutory recognition of contractual economic rights of performers in cinematographic works.

One issue for the cab is that of the ‘ephemeral exception.’ Television stations currently make monthly payments comprised of 2.1% of their gross revenues to Quebec’s sodraq and the cmrra for rights to music used in television productions. However, in theory, currently if broadcasters tape a program with music for later broadcast – such as a concert, church service, a telethon or a skating performance – they have to pay for that right to tape.

Radio

In radio, in theory, broadcasters must pay for the right to transfer music to a new format, which is done regularly in order to play the music on the air. The cab lobbied for an exemption on this clause, and got it. The new bill states that as long as a program is used within 30 days, no new fees need be paid.

However, according to McCabe, in another clause, the bill says that no new fees need be paid unless a collective is in place to collect those fees. In Quebec, the collective sodraq did take tva to court for a breach of this copyright clause and tva was ordered by the court to pay up.

‘They gave us the exemption in one part and then gave it away,’ says McCabe. ‘There’s a very narrow area where there is ephemeral use, to play a program in a later time zone or at a better time of the day. We’re already paying in the order of $20 million a year for the reproduction rights.’

Baskin says the broadcasters are making much out of nothing.

‘Broadcasters presently make copies of all kinds of works. No music publisher that I represent (and I represent 85% of the marketplace) ever pursues compensation for that degree of copying. In my view, the ephemeral exception is a tumor, however, it’s reasonably benign. What the broadcasters want is a full-blown melanoma on our heads. The broadcasters are out there raising the specter that we are getting ready to sue them left and right for something that we are currently ready to let go. We have no intention of doing that.’

Money can be made

Says McCabe: ‘They can say now that they won’t collect, but if publishers here see that sodraq is able to collect, don’t you think they’ll start to think that this is an area where money can be made? Our concern is that other collectives will be formed. Our read is that it could cost anywhere between $10 million and $15 million based on sodraq contracts projected across the country.’

Crawley maintains the ephemeral exception issue is ‘a complete red herring. They’re raising it as if it’s a big issue and it’s not. The broadcasters lost the argument on neighboring rights. That’s the big issue and why they want to see the bill fail.’

Baskin agrees. ‘The broadcasters are hypocrites and thieves,’ he says. ‘These rights are in place in 80 countries. They want to steal music because it’s more convenient and desirable to get it for free.’

Neighboring rights, an issue that affects radio, essentially involves payment to performers and producers when their music is aired. The current fees collected from broadcasters go mostly to composers.

‘Our initial concern had been neighboring rights, but we don’t really have a problem with that anymore,’ says McCabe. ‘We believe in principal that our airtime sells the cds and concert tickets and that that is a fair exchange for the artist and record company. We are like their promotional arm. But it’s not an issue now. We still disagree in principal, but so what.’

Crawley and Baskin both say a major concern is passing this bill now so they then can go to work on the next phase of amending copyright law, which involves the digital universe.

‘Everyone has made compromises on this bill,’ stresses Baskin. ‘But we have to get on with it. This is only phase two, and phase three includes key issues – Canada’s obligations under international copyright treaties, the extension of the term of copyright and the implications of the information highway.’