Copyright in music and other cultural industries has often been associated with how creators are able to protect and monetize their work. In music, this was never more apparent and problematic than during the rise of file-sharing and streaming applications, and the shift to a digital economy.
But in this digital age, how are creators faring? Many artists and creators have argued that the current copyright framework is ill-adapted to the realities of the online world. How are copyright laws working to protect creators and ensure that they receive fair compensation?
In the latest podcast in our 'In Conversation with Gowling WLG' series, global IP partner Ryan Steeves speaks with Patrick Rogers, CEO of Music Canada, the trade association for Canada's major record labels: Sony Music Entertainment Canada, Universal Music Canada and Warner Music Canada.
In their discussion, Patrick and Ryan explore the music ecosystem and the significance of helping to protect intellectual property within Canada's cultural industries. Patrick tells us about the importance of copyright in the global music industry, why copyright reform is so important to artists (and all creators), and what is being done in Canada and around the world to "rebalance the ledger" and restore fairness to creators. And after nearly a decade spent in federal politics, Patrick offers up his perspectives on effective advocacy, and how to work with governments to "move faster and fix things".
Transcript
Ryan Steeves: Hi everyone and welcome to our In Conversation with Gowling WLG series. My name is Ryan Steeves and I am a lawyer in the Ottawa, Canada office of Gowling WLG. In this series of Podcasts we try to probe, generally speaking, the world of intellectual property and throughout the series we are trying a build a picture of how the IT world works and gain insight into trans-development and hear from leaders in various intellectual property industries globally.
And today, we are extremely fortunate to have someone who I am fortunate to call a friend, this is Patrick Rogers and Patrick is the newly appointed CEO of Music Canada and Music Canada is a trade associate for Canada's major record labels here in Canada - Sony, Universal and Warner.
Patrick has been with me in Canada for about five years now since 2016 and he has been largely in charge of. in his past time and earlier days when he was in Canada informing. and really putting into practice Music Canada advocacy strategy and so there is a number of amazing achievements that Patrick has spearheaded over that time, in such a short time.
But a lot of this stems from Patrick's previous experiences in career, in federal politics in Canada. And he has had. he has worked sort at every level you can imagine within federal politics. In many important offices like the Prime Minister's office, Director of Policy and so, politically I think, he has had a number of jobs that have really made him a leader in the music industry and generally speaking the culture industries in Canada because he brings that perspective of what it takes to. generally speaking, help these industries get better.
And so, with that long-winded intro, Patrick, I will say one more thing, is that. Patrick who is a good friend of mine and I have to disclaim - I worked with you in Canada a number of years ago. with Patrick, closely and I have to say that Patrick is one of these people that. is the reason we do Podcasts, really.
Patrick, you have some fascinating experiences that I think a lot of our listeners will find very insightful today, so thanks for being here.
Patrick Rogers: Thank you so much Ryan for that introduction. I am always happy to talk about. well, you know, the machinery of government and how we can help the culture industries succeed here in Canada and around the world. It is a big part of what we do.
Ryan: Yes, of course. So first, for our listeners, I guess what I will. here is what we are going to talk about today. Three main things: Who you are, that is who is Music Canada? And what are you doing in terms of shaping advocacy and a conversation around policy making and about a high level and then we will look at what is actually happening in Canada with respect to copyright. This is the driving force of the music industry which is an interesting concept in itself that we will get you to talk about and how listeners and maybe other industries or other jurisdictions can even draw parallels to what they are facing. And then we will touch on why reform generally is so hard to do. How is it so hard that industries need to go through such challenges to get meaningful change than legally speaking through advocacy and why that is so hard? So let us just get right into it.
First of all I want to say kudos to the Music Canada team. You are a trade organisation for the major labels in Canada as well as the artists and their partners but you have really pivoted during COVID to move your focus away from some of the more traditional work that Music Canada has done to just trying to help the most vulnerable music sector right? Maybe you can talk a little bit about that shift lately.
Patrick: Yes, I mean I think for us COVID obviously it has affected everyone in incredibly personal ways, you and I are sitting here on a zoom call from our own homes, something that we never .. Places that with our jobs we rarely saw and now we do, we see the inside of them now all the time. And with COVID in Canada in the music experience it obviously, you know that day where the world shut down, at least here in North America, was the week before our great national celebration of music, The JUNOs. And so to have that be the first thing that was wiped out was a real marker for us. And our members, as you said, Sony, Warner, Universal here in Canada were very clear from the very beginning that it was going to be our friends in life, it was going to be our artists, it was going to be the technicians, the venue owners, the people who make a living by people gathering en masse to listen to their craft. They were going to be the ones who were going to be hurt the hardest. And you know lots of people have got lots of things wrong at the very beginning of this pandemic but we got that right. And so we have invested our time, our resources, our advocacy skill, our legal skill to making sure that everybody in our sort of eco system was being represented during some pretty tough conversations. And I will just quickly give you the best example of that was that in Canada we have the Canada Emergency Relief benefit, now the Canada Relief benefit. And initially artists' royalty payments was going to affect the calculation of how they got their money. And we were able to jump in and say hang on this is not a reasonable understanding of income, this is, you know, treated by the tax code as embellishment and can we make that work. So we put a real emphasis on that and I think that is the best example of where we have been able to help.
Ryan: That is great, wonderful. And I guess so kudos to your team for taking on that ..all the shift. I mean, you are always engaged in that kind of work it seems at Music Canada but I want to get to one of the more, I call it traditional for lack of better words, roles that Music Canada has played. And that is copyright generally speaking. And copyright is such an important thing and many people maybe do not realise it. When people hear copyright in music I mean they go back to you know illegal streaming days. But there is so much within the governing statutes and that is the Copyright Act in Canada that dictates how people in the music industry get paid and how they earn a living. And so maybe you can just talk about why copyright is so important to Music Canada and its members.
Patrick: Yes, I mean we capture this by saying that we believe artists should be paid when their music is played. And it is the Copyright Act that makes that happen. It is the words on those pages that are the most important to ensuring that that happens and you know for us here in Canada there is a couple of words on those pages that stop it from happening. And so we have a couple of exceptions that reflect you know moments in time from 1997 when radio was the biggest, was the only place you could hear music that was not in your own home and we think those things should be changed. And you know all we are ever looking for is a functioning framework that represents the best principles internationally so that people get paid.
Ryan: Right, ok. And one of the more recent activities going on in Canada right now is the Copyright Act has a provision that says the law needs to be reviewed every five years by a parliamentary committee. So as I understand it in June of 2019 the Government finished what was a fairly comprehensive review from more than 50 stakeholders days and days of hearings and put together a report with recommendations on what the focus should be in reviewing or I guess in implementing changes to the Copyright Act.
And so I know a number would be very important to you but there was one line in this report that stuck out to me in the forward actually which said that the Copyright Act impacts Canadians every day shaping what we see and hear in enhancing our systems for the creation and use of content. And that really stood out to me as to what your goals are, right. I mean it is the fact that copyright impacts artists down to the word, a single word in an Act and so I just wanted to know your thoughts on that concept and how it impacts your approach to legal reform.
Patrick: Yes, I think that the sort of principles behind the Government's review were really strong, there was an understanding in a pre-COVID time as far away as that feels right now, that artists were in need of some support there. Not just music artists but publishers, like publishing and that sort of cultural community that things had gotten out of whack a little bit. And you know I had looked to the Heritage Committee's report, chaired by Julie Bruzan where they called out that the Government needed to provide some more support to move some levers here to make sure that, as we say, that artists get paid when their music is played. And so it was really great to see that that line that you quoted, top artiststalk about the creation, talk about making sure that people are able to make a livelihood out of this and less of the sort of mumbo jumbo about users rights and those kinds of things.
Ryan: Right, ok. And maybe quickly, you know Recommendation 1 I thought was very interesting because Recommendation 1 to refresh your memory is actually removing the requirement to have a five year review. So a five year review leads to the first recommendation being to end the five year review. And at the first pass it was concerning to see because it is hard enough to get a review done because of the fear that it leads to this mass debate that no-one can ever agree on.
But in a way you know I have talked about this before that you know there is no merit to this concept that okay we are not going to wait the five years to make changes, if there is a change, if something is leaking we need to fix it. So, what do you think about that concept? Maybe, you know not even as much as Recommendation 1 but this idea that something that affects people so much in their daily lives needs to be adjusted more than every five years?
Patrick: Yes, look I think it is fascinating because quickly on the five year review. I am in favour of writing down somewhere that Government has to do it because I think copyright is too easy to avoid. I mean we are four years into the five year review at this stage and so I think that speaks to the need for some kind of checking. But, that being said, I think there is a growing understanding that this idea that copyright in and of itself is just this sort of teetering house of cards and that any one change might interfere with you know the entire structural stability of the entire programme. That is not true for the criminal code. That is not true for the Income Tax Act. I do not think that we have to do this and I think that it does .. I think we are heading to this place, but I think it leads to really unhelpful horse trading. I think it is a really unhelpful sort of feast in the making within the gross scheme and so sign me up for more pressing relevant copyright changes, I think we would be very supportive of that.
Ryan: Right, ok. And that is a whole other conversation about the pace with which technology changes and this lagging statute that is just constantly trying to catch up right?
Patrick: Well I mean I am . this is one of my most proudest Government accomplishments that in 2012 the Government that I worked in made use of the VCR at legal in Canada. You know I think that it is the perfect example of how you know technology and societal use outpace Government.
Ryan: Right, ok. One of the last points I want to touch on under this heading of you know why copyright matters to you and to your members as well as I would say the cultural industries generally. You said something I thought was fascinating and so on point during your Committee appearance and this is what I have always loved about and respected about you Patrick is that you are one of these rare people who can come in to something with very little understanding but craft it in a way that everyone can understand better. And your comment at the Committee was "I hope this Committee in Government will return to that work soon" meaning the review and implementing changes "because the pandemic eliminating opportunities to tour for artists, the fallacy that artists don't need copyright protections when exposed from the myth that it always was". So that being that artists are going to be fine because they can tour.
But what is . copyright laws are so vitally important as we talked about a couple of words would turn on a, turn something so vital for artists to earn more money. So I just thought that was such a great comment and maybe you can elaborate it a little bit for a few minutes on what you mean by this fallacy.
Patrick: Yes, I mean long before you and I joined the Music Canada world other colleagues of ours were fighting this fight on the creation of rights for artists and the push back on them has always been that copyright is you know a place of major corporations and shady businesses in the background and that artists do not even really want to be involved in that. You know you have to be a lawyer to really understand it and what they want to do is be out on the road. And you know our former boss and our past colleagues would sit at committees and provide names of artists who you know who had fallen ill or women who had decided to have children and leave the road and you know saying that these people need and deserve copyright. And you know opponents of strong copyright protection for artists would say oh those are Corner cases. Well in roughly one year ago we turned off touring around the world and we are seeing artists say that they you know wish to have stronger copyright and here we are, these are no longer Corner cases and we are as committed to this now as ever.
Ryan: Yes, ok. Well that is . I am so grateful Patrick you know and I think that is a perfect segway into the next topic which is you know why is this such a challenge, why is getting things done such a challenge. And you have such a unique perspective I think for our listeners whether they are in Canada or in any jurisdiction listening because of your understanding of the machinery of federal Government and the approach to policy making and how Government works. When I left Music Canada you will probably remember this Patrick, you gave me a book, 'Beauchesne's Parliamentary Rules and Forms'. And I loved it because you included a note on the inside and I will not read it exactly but this bit says "here's a new fancy book but please don't use it just call me".
And you know that just goes to show what you bring to this industry. First and foremost the action to just make it better but secondly an understanding of you know how things can get done in a positive way that do not just benefit people you are representing and working with but everybody in the eco system. And so I want you to talk a little bit about first of all why is it so hard to get things done when you are an industry. Why is it so hard? So maybe you could talk about the machinery of Government and how that is so hard.
Patrick: Yes, so I think what I will do is to take you through my personal journey in a copyright hearing and sort of knock off a couple of these points. I mean in minority Government in Canada, so where the Government does not have enough votes on their own to pass legislation, they need opposition votes. We had a copyright reform bill similar to the previous five year review. It was long overdue, it needed to be done. The copyright is not politics and so if somebody who was not invested in the file I just saw this file from afar and saw there were really committed stakeholders on either side and no-one seemed happy via any changes, nothing was ever enough. And when you are a Government writ large and you have 100 things that need to get done, the ones that are going to make no-one happy and the ones that do not seem to provide any political win at all, those go to the bottom of the list. And you know I think my experience has been with people who are content experts and are true believers. That line is infuriating when I see it. And you know you have been in meetings with me where I make them even angrier because I get the giggles when people are infuriated by it. It is the most simple political explanation I can provide and people hate it.
And so then when I went to Heritage as a director, and you know I went from parliamentary affairs and the Prime Minister's office to the director of policy of heritage. And I took my first ever briefing in copyright and I am told by officials it is really hard, I will never understand it and you will know when you have done it right because everyone will be mad at you (laughter). Well I cannot imagine a least. a less exciting way to be a political staffer to do something. And so yes back to the bottom. the top line.
So then when I ended up on the outside. at Music Canada and trying to provide some of this world view, the unwillingness of industry sort of at large to like buy into "people do not care", buy into "this message is not working", buy into "we need to meet people at their level" rather than just be self-assured in our own correctness. That holds back music, that holds back cultural industries, that holds back railroads. you know. no matter whether you are here in Canada or in Australia or anywhere else. If you are not willing to meet government where there are at, you are not going to be successful.
Ryan: Right. You described to me a long time ago about you know. thinking about a meeting with officials or staffers in your particular department of government and you know trying to come up with a message that resonates with them to get them to leave their office and tell a colleague "listen to what I just heard" and to pass it on and to create traction out of an idea.
And, you know what, for someone who did not have as much experience within government and getting something done that way, I was.. You know we are supposed to be here to help right. help make the government. help the government make informed decisions and you know some of the challenges you have described are. is that. sometimes it can turn into a gate keeper function as oppose to just. almost preventing the unintended from happening as oppose to helping the intended happen you know. is that a fair assessment for how you would advise people looking to help their organisation or business head into government and effect change? Like a caution.
Patrick: Yes, yes, I think you have to understand all the pieces, right and I think you have to understand the formal role those pieces play and then you have to understand the sort of (laughs) what we write in our Canadian textbook 101 and then you know how it actually works and I think that is a worthy look. You know, for us, we have a bureaucracy in Canada that is to advise on technical issues to political decision makers and then enact decisions by political decision makers whether they agree with the bureaucracy or not.
And so you know I think on copyright nobody wants to break copyright. Nobody wants to be the one who changes the word and has it go terribly wrong and officials are sort of in charge of making sure that young inexperienced political staffers who were the advisors and administer of natural resources yesterday and they are now the advisors of the minister of Canadian Heritage do not mess up a system that is roughly working. Where it gets into trouble is when you know officialdom becomes the sort of guiding line and not the goals of the government. That is when it gets really tricky because you are not really sure who to talk to.
Ryan: Right, I remember you had given me a pep talk once before I headed out to have a meeting with an official. You described the goal of the meeting, right, as to get that political interest and support for something that matters, industry wide. You know you have industry acceptance of something, it just needs to happen. You need to convince that person to "pull the sword out of the rock" and that example has always stuck with me. And I apply that in many firms to my current role here with Gowling WLG in litigation in any context and so I want you to describe this fascinating metaphor of "pulling the sword out of the rock", because a lot of people can learn from this.
Patrick: So, I mean, I think yes. it has got a couple of steps to it, right. I mean the first step is. political step are not actually waiting for you to walk in their door today (laughs) and give them new work.
Ryan: They are not?
Patrick: I mean. they have got. (laughs) yes exactly. They have got lots to do. They are you know some of our most talented young people charged with massive responsibility here in Canada and they are meeting with you on the shoulder of other important meetings that they are likely more excited about. And so, based on that, you have got to go to them with a message that says "we are this group of people" and you know for Music Canada that is. we are the representatives for the major labels and none of this is a magic trick. Everything is out in front of you.
We like to work with our partners in the rest of the music industry and therefore would like to tell you about this coalition of people who agree on the following things. We have tried to slay this dragon that is seriously threatening this group of people who are not only great stakeholders, but also voters, which is always something important to remind people of. And we have tried the following things on our own. We have done this and we have done this and we have done this and upon our research we have discovered that there is a sword in the stone that will slay this dragon and we promise not only this group, but the town down the way will also support this action. And we have looked and you are the only person who can pull this sword.
Now, as I say, this is not necessarily a perfect path. It will not always work but the stakeholders who came to me with that message were the ones that I was always a little more interested in. Because, when it turns out, you do the homework and you can do something about it and it has been lined up that people are interested in doing it and the costs of slaying that dragon are not out of the norm for the government. You stand a way better chance of doing it. Which does not sound that impressive but Ryan I will tell you the opposite approach.
The opposite approach is "hey, why don't you know this? And why are you doing this wrong? And here is 57pages of legal arguments about why your government is bad, so fix it. Shockingly, the one works better than the other.
Ryan: Yes. May be not too shockingly (laughter). Well, may be in the last few minutes we can discuss them. you know, I want to ask you about where we are at with the copyright review? Well, I guess we are under reform hopefully and I know there are still many difficulties ahead for you and for your members and for the people you are working with.
So, what do you expect in the coming months, coming year, hopefully not too long, with implementing some of these great recommendations, because I know there are a number that touch exactly on what your partners artist members need to have happen immediately or if not 20years ago right. So you talk about 1997 being when some changes were made. So if we are talking about just updating some provisions that were updated that long ago. So, you know, I am just interested in your thoughts on the short term challenges as we look to put a bow on a review and move to reform.
Patrick: Well, I think one of the biggest things is just sort of trying to close the book on the parliamentary review. The government inserted a new white paper process. Music Canada and our office of colleagues and friends are looking forward to taking part in that. But a white paper is a long way away from legislative change. Obviously also in Canada and with the US connection there is a 13month period that started in July for the enactment of what we call here "Kusmar" and USA Embassy for our American colleagues and you know that includes term extension for our songwriter friends.
So, we are very interested in seeing that enacted as negotiated without sort of attempts to lessen the negotiated value of it and we hope that changes are made to the copyright act but reflect the things that we are in, the shifting paradigms of this report under the Heritage.
I tell you one on the non-copyright areas that sort of affects this is the ongoing global interest in the regulation of the internet. And, our big push is to make sure the government is doing that work and laying that ground work for what sort of lies in the future without forgetting about the significance and importance of that underlying copyright framework.
Ryan: Yes, okay, fascinating. You know Patrick, this has been. you know we could extend this for hours I think and dig into each of these topics with you. I really appreciate your time and I just want to say that you are doing excellent work and in the short time that you have been made CEO, which is very deserving, you bring such a fresh view and fresh perspectives and fresh ideas to Music Canada. And all of the partners that you rallied around to Music Canada in the name of just improvements for the lives of creators. So, I just want to thank you and wish you all the best. So thanks for joining In Conversation with Gowling WLG today.
Patrick: Well thank you and thank you to Gowling WLG for their efforts in trying to help lay these conversations out and hopefully we can all find a way to work together again soon.
Ryan: Absolutely, thanks Patrick.
Patrick: Thanks.
Our 'In Conversation' series delves into the world of intellectual property, speaking with leading figures in industry. Throughout the series, we build a picture of how the IP world works, gathering insight into the latest trends and developments.
Missed the earlier episodes?
Subscribe to Intellectual Property: In conversation with... on: Apple Podcasts | Spotify | Google Podcasts
Register for updates from our intellectual property team to receive the series direct to your inbox, as well as the latest market insights from Gowling WLG's leading IP professionals.
Your global IP resource centre
The world has changed and with it the way we and our clients work. With digital channels replacing face-to-face meetings, our response has been to provide a comprehensive resource hub where you can stay connected with us as your legal partner.
Whatever your need, Gowling WLG has the tools to harness the full potential of your intellectual property. From our IP Law Hub you can access our complete library of articles and videos, subscribe to updates or register to join us at live webinars. You can also find an IP professional near you if you need to discuss a legal matter. We're here to help, so please get in touch.
Read the original article on GowlingWLG.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
