Law Times

Law Times • June 22, 2015 Page 7 www.lawtimesnews.com COMMENT Surprise copyright changes have no place in omnibus budget bill By J. aidan o'neill and ariel ThoMas For Law Times here was great surprise in the Canadian copyright community when lawyers dis- covered, hidden away in the omnibus federal budget legislation tabled in the House of Com- mons on April 21, a provision proposing to amend the Copyright Act to extend the current term of copyright protection afforded to sound recordings and musical performances to 70 from 50 years. If, as is all but certain, Parliament adopts the budget, record labels and musical performers will benefit from an additional 20 years of copyright protection. As such, sound recordings released in the mid-1960s will have an- other 20 years of existence during which their exclusive copyrights will continue. According to the explanation provided by the government in its budget proposal, this 20-year term extension approximates the term of pro- tection afforded to other copyright owners who benefit from copyright protection throughout their lives plus a period of 50 years following their deaths. Whatever the merits of this proposal, it came as a sur- prise as there had never been any public discussion of such an idea and the recording industry does not appear to have ever publicly promoted it. In 2012, after seven long years of effort and following extensive consultations with a wide range of stakeholder groups, the government substantially revised the Copy- right Act pursuant to the Copyright Modernization Act. Then in June 2014, the standing committee of the House of Commons on Canadian heritage issued a report on the Canadian music industry. At no time was there any mention of a possible term extension for record labels and music performers let alone any discussion as to whether or not this might be a useful legislative change. Instead, the proposal to amend the Copyright Act has come completely out of the blue with the sole ap- parent justification being that musical performers who made recordings in the mid-1960s are starting to lose their copyright protection, a situation that was equally applicable to any previous period. It is unfortunate that the government chose to amend the Copyright Act in this way without any prior consul- tation with interested stakeholder groups or bothering to provide anything other than a cursory explanation as to the supposed justification for such an important legislative change. In our view, any amendments to the Copyright Act should follow a measured and balanced exchange of views within the copyright community as to the relative merits of the proposed change. Until very recently, copyright lawyers could only speculate as to why the government would choose to act in this manner. Certainly, if this was such an im- portant issue and was so high on the government's leg- islative agenda, it could have very easily incorporated it into the 2012 amendments to the Copyright Act or raised it in the meetings held by the standing commit- tee in 2014. None of that ever happened. In this context, it is of some interest that the record- ing industry's principal trade association, Music Can- ada, issued a news release immediately following the tabling of the budget in which a number of prominent Canadian recording artists thanked the government for having introduced the term extension. We now know, of course, that unlike most other stakeholder groups, the inclusion of this measure in the budget could not have come as a complete surprise to Music Canada. This is for the simple reason that Music Canada specifically requested the term exten- sion pursuant to confidential lobbying efforts made directly to the prime minister. As University of Ottawa law Prof. Michael Geist has disclosed, on the same day the government tabled the budget in the House of Commons, the prime minister sent a letter to the president of Music Canada thanking him for his "recent letter regarding the copyright term for sound recordings." The prime minister stated: "I have reviewed the material carefully, and share your view that the current term of copyright protection for sound recordings falls short of what is required to protect artists and ensure they are fairly compen- sated for their work." He then indicated that the budget included a term extension for sound recordings. Although the recording industry is obviously happy with the 20-year term extension, its introduction in the budget raises the thorny question as to whether the gov- ernment should now reconsider the terms of copyright protection for other rights holders. For example, as soon as the government tabled the budget, the Society of Com- posers, Authors, and Music Publishers of Canada an- nounced that while it welcomed the government's "com- mitment to increasing copyright terms in Canada," it was concerned that it "only referenced sound recordings and not the rights of creators and their publishers." As such, SOCAN indicated its expectation that "this discrepancy will be addressed when the relevant legislation is intro- duced." Unfortunately for SOCAN, that did not occur. Whatever the relative merits of the copyright term extension proposed in the recent budget, this is a mat- ter that should be the subject of informed public debate and discussion as with all other previous amendments to the Copyright Act. That is particularly true in circum- stances such as these in which stakeholder groups, other than Music Canada, had no prior notice that the govern- ment was even considering such an amendment. From a strictly legislative and procedural perspective, this represents poor public policy on the part of the govern- ment. Simply put, such an important proposed change has no place in an omnibus budget where it is unlikely to receive the legislative attention it deserves. LT uJ. Aidan O'Neill and Ariel Thomas, both of Fasken Mar- tineau DuMoulin LLP's Ottawa office, practise primarily in the fields of intellectual property, communications, and media law with a focus on tariff proceedings before the Copyright Board and related judicial review applications to the Federal Court of Appeal. u SPEAKER'S CORNER Can upward mobility and downward dog coexist? uring a recent mental-health week webinar at the Law Society of Upper Canada that I partici- pated in as a panellist, a question came from a young lawyer about a firm's yoga room in the office for associates and employees to use. The young lawyer expressed concern that if staff actually made use of the room, they feared their colleagues or superiors might look upon them with disapproval. Many participants at the event nodded knowingly as they listened to this scenario. The situation is absurd and yet unsur- prising in the current law firm landscape. A firm goes to the trouble of setting up a wellness-promoting space and employees are suspicious of its true intent or at least the potential negative impact on their careers. How did we get here? Is it not possible that a yoga room is just a yoga room without underlying sinister motives or outcomes? And even if the intentions are good, can the legal profession tolerate people who openly or even enthusiastically seek balance and health? Those in the audience at that event knew that while many in our profession now speak in forceful terms about the need for balance and wellness, including many employers who tout how much they value such efforts, the reality on the ground belies these promising words. I have written in this space in the past about the concerning trend of law as busi- ness as opposed to a profession. Professions have ethics, mentorship, a focus on client in- terests coexisting with but not overshadow- ing profit motives, and collegiality among colleagues and clients. Businesses focus on profit first and foremost. This is in no way about deval- uing the legitimate business con- siderations inherent in operating a law firm. It's simply to remain mindful of the fact that a profes- sion demands more than just the pursuit of profit. A pure profit motive for a law firm dictates that if associates won't work and bill the hours required of them, there are lots of others lined up waiting to take their place and meet those often superhuman expectations. High productivity, an indicator lauded as a sign of an efficient marketplace, es- sentially translates into fewer people doing more work. Ed Poll, a management con- sultant and coach who assists law firms to become more profitable, described the issue of associate profitability in terms of a raw calculation: billings minus the associate's total compensation and direct and indirect expenses equal net profit. "Generally within three years of hiring, new lawyers should become net-profit contributors," he noted. The goal of high productivity may seem reasonable in a competitive economy, but human beings are more complex and in truth, an obsession with efficiency invari- ably leads to rapidly diminishing returns. In a study on productivity, DeskTime found the most productive people operated best in spurts, working for 52 minutes and then taking a break for 17 minutes. The most productive people didn't even work eight- hour days. The study concluded: "Con- centration is like a muscle, it needs to rest to be able to function, and it shouldn't be overworked, otherwise it'll simply burn out and take lon- ger to get back into the swing of things." In another study that looked at construction projects, those that employed a 60-hour week for extended periods were 24 per cent less productive than those using a 40-hour week. At 50 hours a week, workers were eight per cent less productive than those who didn't put in overtime. Not only do outsized work demands affect productivity, so, too, do the associate's quality of life and family relation- ships, a fact that often leads to dissatisfac- tion and eventual departure from the firm. Turnover inevitably costs firms in profound ways. The law society's retention of women in private practice working group recount- ed studies estimating the cost of four-year associate turnover at $315,000 with women more likely than men to leave firms prior to becoming partners. In 2006, a Catalyst study on f lexibility at Canadian law firms made some inter- esting findings. "Nearly two-thirds of all lawyers report difficulty managing the demands of work and personal/family life. Despite the self-reported importance of work-life balance, more than half of partners and two-thirds of associates said they 'often' or 'very often' put work before personal/family life. Many lawyers faced with the choice about where to work say that a top priority is finding a firm where the environment respects and supports family and personal commitments." In speaking to the issue of what associates ideally want, the study found almost three-quarters of them said partners needed to accept that lawyers with dif- ferent working styles could be successful. Almost 10 years later, it doesn't feel like the culture has shifted much. The result is that in my therapy prac- tice, I work with lawyers overloaded to the point of breakdown, depression, addic- tion, and other inevitable impacts of the productivity obsession. At some point, a person doing the work of two people will break down from the weight of that bur- den. Given the costs firms absorb due to lost associates, there must be a better way not only because it's the right and humane thing but it's ultimately good business. At the law society event I mentioned, having answered a number of questions on this topic, I asked the approximately 1,200 or so participants how we could start a movement. If this many legal profession- als attend a mental-health and wellness discussion, why can't we build on that mo- mentum? We need to change this culture one lawyer at a time. That young associate needs to walk by the yoga room and see the managing partner in there. Does anyone want to join the movement? LT uDoron Gold is a registered social worker who's also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He's avail- able at dorongold.com. T The Lawyer Therapist Doron Gold D

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