Brief concerning the proposed new Canadian copyright legislation, Bill C-32

To be presented on behalf of FSAC/ACEC, 1996

 

1.Preamble

The study of Film as an academic discipline in Canadian universities and colleges dates from the late 1960s, when courses in film history and criticism were offered at QueenÕs University, York University, Brock University, the University of Western Ontario, McMaster University, and other institutions. During the 1970s, individual courses and academic programmes in Film were introduced in almost every institute of higher education in Canada, and these courses and programmes continue to this day. In addition to courses dealing specifically with Film, films are regularly shown in courses relating to other disciplines, such as Literature, History, Communications and Media Studies, Sociology, Psychology, and so on. }}Programmes in Film Studies generally begin with an introductory course intended to familiarise students with basic aspects of film history, the language and techniques of film as an artistic medium, and the significance of film as a social and cultural phenomenon. Later on, courses are offered on such topics as: National Cinemas (Canadian, French, American and so on); major film genres (comedy, Western, musical, etc.); film theory and criticism; documentary film; major film directors, women and minorities in film; film and the other arts (literature, music, painting, etc.); and a host of other subjects. Several institutions also offer courses in filmmaking, which can involve the viewing and analysis of already existing films.

 

The normal pattern for teaching Film is for students to view a feature-length film, or a selection of shorter films, once a week, and for the viewings to be followed by lectures, class discussions, seminars, and individual re-viewings or close analysis of excerpts for the purpose of written assignments, essays, tests and exams. Though in theory, hundreds of films are suited to this purpose, in practice, as in courses on Literature, Art, Music and so on, a core of key or classic works is constantly drawn on which represent significant developments in film style and technique, or are of particular historical or national significance, best characterise a particular genre or illustrate the work of a major film artist. Just as it would be impossible to offer a course on the History of the English novel without access to the works of Charles Dickens, Jane Austen or Thomas Hardy, so there are key films and filmmakers that are central to any serious study of Film.

 

2. Problems

From the beginning of Film teaching in Canadian universities in the late 1960s, up to the late 1980s, films were usually shown to students in the 16mm non-theatrical format, though a few universities had access to the 35mm format used in commercial theatres. As the teaching of Film rapidly expanded in the 1970s, the range of films available for viewing on 16mm also expanded, with the result that, by around 1980, it was possible to offer a rich and representative variety of films from all periods of film history and from most significant national film traditions. Films were rented from a wide range of distribution companies, for a screening fee that rose from an initial amount of around $50 for a single classroom screening (for which students, by law, were not charged admission) to $125-150 by the 1980s.

 

From the mid-1980s onwards, with the introduction and widespread adoption of video, this situation has changed drastically, and for the worse. Many of the smaller 16mm distribution companies, which provided films of particular interest to film teachers, have gone out of business, with the result that many important films are no longer available for rental. At the same time, the 16mm holdings of the major Hollywood studios were acquired by one or two large distribution companies who now control the Canadian market in this field. Over the last few years these companies have significantly reduced their stock of 16mm films, on the grounds that this format is no longer profitable and can no longer compete with video as a source of rental income. One result is that virtually no new (1990 onwards) films are available on 16mm, and the existing 16mm prints are not replaced once they are worn out and no longer fit for viewing. In the past ten years, the stock of 16mm films that can be shown in the classroom has shrunk alarmingly, and there are now huge gaps that make it impossible to teach certain areas of Film with any degree of completeness.

 

In order to do their job properly and satisfy the needs of their students adequately, film teachers have been forced to turn to videos and, more recently, laser discs as a means of showing the films that need to be taught. This is not the place to debate the merits or otherwise of videos as a substitute for the screening of a 16mm or 35mm film, though most film teachers would agree that the experience is inevitably an inferior one; it is a fact of life with which we have to cope as best we can. In the past few years, most universities have built up their own collections of videos and lasers to compensate for, or supplement, the shrinking repertoire of 16mm films available for rental Ð or for rental in a condition that adequately reproduces the image and sound quality of the original. 16mm films are often rented out today Ð at a standard rate of $165 per screening Ð in a totally deplorable condition, scratched and torn, the colour faded or almost entirely lost, with scenes missing or incomplete, and an almost inaudible soundtrack filled with extraneous noises. Faced with this, many teachers prefer to resort to videos or Ð when possible Ð laser discs that at least give an adequate idea of what the film should look and sound like.

 

Current Canadian copyright legislation Ð at least as it is interpreted by the major distribution companies Ð does not give film teachers the right to show their students videos or laser discs Ð even when these have been legally purchased by their institutions Ð without paying a Public Performance fee (normally $75 per screening) to a company that claims copyright to the film. This fee is demanded whether or not the company has a 16mm print of the film in viewable condition available for rental and even in circumstances where the company cannot provide a video or laser disc of its own for screening Ð in which case teachers are sometimes "authorised" to rent a video from a video store Ð and then pay the company $75 for permission to show it. This situation, which involves, in effect, our paying a double copyright fee, appears to us unreasonable and unfair. We hope that the new copyright legislation will attempt to redress the inequities involved.

 

3. Possible Solutions

The Films Studies Association of Canada has no wish to deprive distributors of revenue to which they are rightfully entitled; our members have enjoyed good relationships with most distribution companies in the past and hope that this may continue. Where distributors continue to provide 16mm copies of films, in acceptable condition, for showing to our students, we will continue to rent these films. In a time of shrinking university budgets, however, we find it unreasonable that, once we have legally purchased a video or laser disc that will be shown only in a classroom situation, with no admission charge, and for educational and non-commercial purposes only, we should also be expected to pay an additional $75 to an outside source every time this film is screened.

 

The sections "Fair Dealing" and "Educational Institutions" in Bill C-32 attempt to deal with some of these problems, but the language employed is ambiguous and subject to multiple interpretations. Sub-section 29.4 (1), for example, states that "It is not an infringement of copyright for an educational institution or a person acting under its authority to make a copy of a work ... (b) as an image projected using an overhead projector or similar device for the purposes of education É" Does this mean that an instructor can show a laser disc or video to a class by means of a video projector? Sub-section 29.4 (2) states that "It is not an infringement of copyright for an educational institution or a person acting under its authority to reproduce, perform in public or communicate to the public by telecommunication a work É for any purpose related to the giving of an assignment, test or examination É "The wording here would appear to allow for the showing of a video or laser disc, but the issue is then complicated by the further statement that the exemption does not apply "if the work É is commercially available in a medium and of a quality that is appropriate." Does that mean that, if a distributor cannot provide a good quality 16mm print of a film, we are then free to show our own video or laser disc instead?

 

The problem could be partially addressed by the addition of a sub-section (d) to 29.5 (dealing with live performance, sound reproduction and televised performance in an educational setting) that would read: "d) the performance in public of a cinematographic work available commercially." It would be much more satisfactory, less contentious, and less ambiguous, however, if Bill C-32 were to contain "Fair Use" provisions similar to those offered in U.S. copyright law (Section 107 of the U.S. Copyright Act of 1976) or adopted wording similar to that contained in (17USC110) that permits the "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a non-profit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audio-visual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title and that the person responsible for the performance knew or had reason to believe was not lawfully made." This permits an instructor to show his or her students a video or laser disc that has been legally purchased or rented, without additional payment of copyright fees. Similar wording, offering an educational exemption of this kind that would also allow for future developments in electronic communication and reproduction, would solve most of the problems outlined above.

 

Respectfully submitted,

Graham Petrie
Professor, President FSAC/ACEC