Making Canadian Music Industry Policy 1970-1998

Richard Sutherland

Graduate Program in Communication Department of Art History and Communication Studies McGill University Montreal

August 2008

A thesis submitted to the Faculty of Graduate Studies in partial fulfillment of the requirements of the degree of Doctor of Philosophy

©Richard Sutherland, 2008

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Abstract

This dissertation is a history of the development of the Canadian federal government’s music industry policies from about 1970 to 1998. Over this period the government undertook a number of significant initiatives that mark the emergence of the Canadian music industry as a distinctive object of federal policy. The resulting account is not a single, linear narrative but unfolds in three separate but related streams, based on the following policies: Canadian content quotas for radio, the Sound Recording Development Program (a funding program to support the production and marketing of sound recordings), and revisions to

Canada’s copyright regime, such as neighbouring rights and a home taping levy.

Each of these policies has a distinct history, originating in different areas of government at different times. Together, they do not form a consistent whole as much as an overlapping set of separate “policy assemblages,” incorporating distinctive policy instruments and particular configurations of the Canadian music industry.

Drawing on Michel Callon’s work on the construction of markets, the dissertation explores the various ways in which the Canadian music industry enters into cultural policy through its associations with other extant policy formations. Canada’s music industry appears in various roles in this history – as a supplier of programming for broadcasters, as a sector comparable to other

‘cultural industries’ such as film production and book publishing, and as the representative of the rights of artists and creators. Finally, the dissertation examines the ways in which these conceptions begin to cohere through the efforts

iii of government and the industry representatives to coordinate them. The larger policy assemblage that results is, nonetheless, a temporary and provisional configuration of the complex and shifting set of relations that make up both policy and the Canadian music industry.

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Résumé

Ce travail dresse un historique des mesures prises par le gouvernement fédéral canadien dans le domaine de l’industrie musicale, de 1970 environ jusqu'en 1998. Au cours de cette période, le gouvernement met en place plusieurs mesures décisives qui font de la production musicale un secteur spécifique de la politique fédérale. Le texte qui suit n'est pas un compte rendu chronologique; il s'organise en trois parties distinctes mais interdépendantes, qui recensent trois types de mesures : le quota de contenu canadien pour les programmes radiophoniques, le programme d’aide au dévelopement de l’enregistrement sonore

(un programme qui finance la production et le marketing des enregistrements sonores), et les corrections apportées au régime canadien du droit d'auteur : droits voisins, droits à la copie pour usage privé. Ces mesures ont leurs histoires propres, nées à des périodes différentes dans des ministères différents. Considérées dans leur ensemble, elles ne forment pas un tout cohérent, mais plutôt une collection d'"agencements politiques", qui combinent procédures politiques et aménagements propres au secteur concerné, celui de la production musicale au

Canada.

S'inspirant des recherches de Michel Callon sur la construction des marchés, notre travail explore les différentes filières par lesquelles la production musicale canadienne a pris place dans la politique culturelle grâce à son association avec d'autres institutions déjà en place. L’industrie musicale canadienne joue plusieurs rôles dans notre travail : pour les diffuseurs, celui de fournisseur de programmes,

v pour les autres secteurs de la vie culturelle (cinéma ou édition), celui de confrère, pour les artistes et les créateurs, celui de représentant légal.

Enfin, ce travail examine comment ces conceptions commencent à se fédérer, grâce aux efforts combinés du gouvernement et des professionnels. La plateforme politique qui en résulte reste néanmoins une configuration provisoire et fragile des lignes de force qui sous-tendent le monde de la politique et celui de la production musicale canadienne.

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Acknowledgements

I got started on this road thanks to a tiny classified ad in the Toronto Star, reading “Music Association seeks clerical help.” So, first of all I would like to thank the Canadian Independent Record Production Association (CIRPA), not just for the job but also for the best possible introduction to music business in Canada, especially where this intersects with policy, as well as for the support that continued long after I ceased to work there. Without their generosity in opening, without reservation, their files and archives to me, it is doubtful whether this dissertation could have been written. My thanks to Donna Murphy, Brian Chater,

Mary Vrantsidis, Sharon Hookway, Fiona Leitch and Al Mair for being willing to share all this knowledge with me.

I would also like to acknowledge the support of the Association for

Canadian Studies for providing a travel grant in 2005 that allowed me to make the necessary trip to Toronto to access the CIRPA files. Media@McGill and the

Beaverbrook Foundation also provided financial support at a crucial time in this process. The Faculty of Communication and Culture at the University of Calgary has not only provided me with a livelihood through all this but also a collegial and supportive atmosphere in which to work. In particular, my thanks go out to Dr.

David Taras and Dr. Rebecca Sullivan for encouragement and advice over the years.

It has been my privilege to pursue my studies in the Department of Art

History and Communication Studies at McGill University and I would like to

vii thank the faculty and staff for all their assistance. In particular, I would like to thank my supervisor Dr. Will Straw. His timely advice and guidance helped to give shape and focus to a sprawling project, while allowing me to take my own path with this. I am also deeply indebted to him for his generosity and friendship over the past six years. In the words of two other former students, Dr. Straw represents the best of Canadian scholarship.

Finally, I’d like to thank my family for their support, interest and patience throughout this process – my parents, John Sutherland, Christine Sutherland and

Jane Coull and to Jim and Timothy and Julia, as well as to Larry and Eleanor

Bryan. I have to extend a special thanks to Anne Laurent and family for translation. Above all my children Joel and Aphra and my wife, Dawn Bryan, have not only put up with countless disruptions to their lives, not to mention a frequently distracted and occasionally grumpy father and spouse. Through all this, their support and interest has been constant. I dedicate this dissertation to them.

Table of Contents

Abstract……………………………………………………………………………ii

Résumé……………………………………………………………………………iv

Acknowledgements………………………………………...………………….….vi

Table of Contents………………………………………………………………..viii

Introduction: The Distinctiveness of Canadian Music Industry Policy………...…1

Chapter One: Policy Assemblages and Configurations of the Canadian Music Industry………………………………………………………………...…34

Chapter Two: Creating a ‘Canadian’ Music Industry: Canadian Content Regulations, Part I...... 89

Chapter Three: The battle for FM: Canadian Content Regulations, Part II…….126

Chapter Four: Funding a Canadian Music Industry: The Sound Recording Development Program & Canadian Talent Development………………….…..163

Chapter Five: From Branch Plants to Creators’ Rights: Changing Canada’s Copyright Law, Part I………………………………………...………….……...215

Chapter Six: From Policy to Legislation: Changing Canada’s copyright Law, Part II……………………………………………………………………..268

Conclusion: Outside the Policy Assemblage…………………………………...321

Bibliography…………………………………………………………………….347

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Introduction: The Distinctiveness of Canadian Music Industry Policy

The dissertation is an examination of the policies of the Canadian Federal government regarding the music industry, centered for the most part on sound recording. The period under examination will cover approximately 1970 to 1998, which is to say roughly the period covered by the hearings that led to the implementation of Canadian content regulations for radio broadcasters through to the passage of the second phase of revision of the Copyright Act, which reintroduced both neighboring rights and a home taping right. The end is also marked by an increase in the level of Canadian content programming required of radio broadcasters. This is the period in which much of the development and articulation of Canadian music industry policy takes place and, not coincidentally, the industry becomes able to articulate its interests politically. This is not a period of continuous development but is marked by particular episodes in which various forces coalesce as policy announcements, programs, legislation or regulation.

Within the substantial quantity of academic work on Canadian cultural policy the lack of any book length work on music industry policy is notable, as is the lack of any such work on the history of the Canadian music industry itself

(Audley, 1983; Straw, 1993). This absence is not unique, given that the book publishing industry here is similarly underrepresented, at least where policy is concerned. It is principally in contrast to Canada’s broadcasting and film industries and their associated policies that the music industry appears underrepresented in academic literature.

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There are several scholarly studies of Canada’s film industry by scholars working firmly within the context of communication studies. One may also point to a large amount of scholarship on broadcasting, a natural concern for communication studies as a discipline. These accounts tend to be unitary inasmuch as they with deal with culture more or less as a single entity. They focus on documents that pertain to culture and to cultural policy in general terms (most notably the Massey Commission’s Report), or they draw their examples from a particular cultural industry and let that act as a metonym for the whole. This is usually the audiovisual sector; that is, film and television. Even in more general accounts of Canadian or Québecois cultural policy (for instance, Allor & Gagnon,

1994; Wagman, 2006) the audiovisual industries are given prominence as exemplary of cultural policy and of cultural industries. The privileged position of audiovisual industries (specifically film and television) in scholarly accounts of

Canadian cultural policy is the result of a number of factors. Certainly film and television were among the most salient concerns for policy makers during the period in which Canadian cultural policy first comes to prominence, from the

1950s through 1960s. Within the academy the lack of attention to music policy may be due to music’s relative isolation as a discipline, one that was until fairly recently concerned almost exclusively with the formal properties and history of

European art music. One might even point to a dominance of the visual in communications scholarship (Sterne, 2003: 2-3). In any case the result is that our sense of Canadian cultural policy has to a large extent been formed in respect of

3 the particular history of the audiovisual industries in Canada and of the policies pertaining specifically to them.

The nature of the discourse might offer us some clues to this imbalance. In his account on Canadian film policy So Close to the State(s) (1998), Michael

Dorland relates the history of this policy’s development in an account that is largely an analysis of the discourse that surrounds that industry in Canada. One of its most striking features is the extent to which it is one of failure. And this is failure on two counts. First, the industry itself is seen in terms of failure, incapable of sustained production of commercially and culturally successful feature films.

Where we have achieved success in the former, we fail in the latter and vice versa.

Such failure has occasioned much debate about what the nature of a Canadian film industry should be. Arguably, this discourse of failure is what motivates the creation of Canadian film policy itself. On the other hand, Canadian film policy has also been discussed largely in terms of failure: failure to create a distinctively

Canadian national cinema, failure to stand up to Hollywood interests in creating a favorable environment for exhibiting feature films, failure even to adequately articulate the fundamental aims of the policy and the terms under which success could be achieved. This is a discourse to which Dorland himself contributes. In academic accounts of broadcasting one might point to Marc Raboy’s Missed

Opportunities (1990) as emblematic, although Raboy’s concern is less with the creation of Canadian culture than with the failure of our broadcasting policy to adequately serve the public interest, caught up as it is in debates between the state and private enterprise that leave no role for the public, except perhaps as

4 consumers. Indeed one might point to Raboy’s work illustrating not so much a discourse of failure as a failure of discourse.

Such failure may, according to Dorland, act as the key characteristic of the discourse, as though at times the most noteworthy feature of Canadian film or television entertainment has been its relative absence, its failure to develop. It is also on the basis of failure that one may invoke a problematic of government, the need for the state to intervene. In this way, the continuing discourse on the difficulties of the Canadian film industry, as well as of the policies meant to deal with these difficulties, plays a role in maintaining government involvement in the sector.

Inasmuch as the Canadian music industry lacks an extensive body of literature, so too does it lack such an elaborated account of failure. This is not to say that the music industry has been without its problems (far from it in recent years) nor yet that these problems are invisible. However, these difficulties are presented in more equivocal terms. During the period under examination – roughly 1968 to 1999 – it is difficult to identify much in the way of a crisis for the

Canadian industry. Fluctuations in revenue were generally in relation to that of the global music industry. In policy terms the industry achieved much over this period, including copyright revision, increases in Canadian content and the creation and renewal of subsidy programs. Since then of course the advent of music downloading (among many other factors) has indeed brought about something of a crisis for the sector over the past decade but, again, this is a problem for the industry globally, not just in Canada. And, for all the pessimism

5 around the fate of the international music industry, Canadian artists and, in particular, domestic independent scene has never seemed so vibrant and relevant.

Bands such as Stars, the New Pornographers or Broken Social Scene have achieved significant critical and reasonable commercial success both within and outside of Canada. In government documents and the instances in which they appear in academic literature or in the popular press, the Canadian music industries and Canadian artists are often spoken of in terms of their success, without this sounding forced or even especially surprising. Canadian music musicians have over the past several decades made up an impressive roster of internationally successful recording artists and songwriters (in recent years,

Shania Twain, Celine Dion or Avril Lavigne have been regular denizens of this roster). Canadian consumers (and, just as important, consumers in other countries) actually buy significant numbers of recordings by at least some Canadian artists.

The music industry may not be unique among cultural industries in this respect (Canadian literature and to some extent publishing are also seen as successful in similar terms) but what is perhaps more unusual is the extent to which the policy regime pertaining to the music industries has also been seen as successful and even integral to their development. In particular, Canadian content regulations for radio have frequently been accorded an immense role in building the success of our music industries. Journalist Ritchie Yorke’s claim that the introduction of these regulations led to “unprecedented interest in Canadian talent” with “quite literally world-shattering” results (1971: 12) is perhaps the most forceful assertion of the success of a cultural policy, Canadian or otherwise.

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It is, however, not out of line with other assessments from the popular media, politicians and even, on occasion, the industry itself. Whatever the relative merit of the assessment of success (in respect of the music industry) or of failure (in respect of film or television production), this says a great deal about the extent of the role we accord policy in the development of our domestic popular culture and cultural industries, and of a very close identification of the two. Much of this supposed success may rest on too easy an identification of these artists with the

Canadian recording industry. For just one example, Shania Twain’s career as a recording artist developed almost entirely outside the context of the Canadian industry; an analogous situation would be to credit the Canadian film industry with the successes of James Cameron, Mike Myers or Jim Carrey. The conspicuous success of certain recording artists then has led to a sort of complacency about the state of the industry in Canada. It may simply be that the relationship of music to many Canadian cultural policy issues remains largely unexamined.

We are speaking here of federal policies and indeed it is at the federal level that most relevant policy exists. At the provincial level music industry policy has generally taken the form of funding programs similar to the federal government’s

Sound Recording Development Program. At the municipal level, one may occasionally find similar initiatives. For the most part, however, federal policies have been of most concern to the music industries because of the federal jurisdiction over matters such as broadcasting, trade and intellectual property. It is also possible to look at other policies, often municipal, governing liquor licences

7 and zoning, which may have important implications for live performance and talent development. Traditionally, these have not been seen as either music industry or cultural policies, although Straw makes a case for considering such elements as an important aspect of culture (2005).

Perhaps even more singularly than a discourse of failure, what a history of

Canadian music policy also lacks is the volume of discourse oriented around textual representation of identity. This is in contrast to film (or, for that matter, literature) where such questions of essence have been exhaustively discussed, whether in terms of form or of thematic content. Canadian music has rarely been subject to such debates (Straw, 2000). Again, this is not to claim that in film, literature or television we have successfully established the terms of a Canadian identity. What is notable is how little we have even tried to do this through music.

It is tempting to explain this difference in terms of the nature of musical expression in comparison to that of literature or the audiovisual arts. Both of the latter are understood as meaningful as signifying systems. Individual words or images can reference specific objects or events. The nature of the objects or events they represent is one of the key features of their relation to cultural identity. The contiguity of literature and audiovisual media as signifying systems even allows similar techniques of critical appraisal, extending to accounts of political and ideological representation (Miller, 1993).

But there is no very little carryover of critical language from literary studies or audiovisual media to music because music appears to lack much of the explicitly referential aspects of both literature and film. Notes on a scale,

8 harmonies and other musical elements have no agreed on referent the way that words do. As De Nora has pointed out, music does signify but only occasionally in a systematic way that allows for a straightforward interpretation (2000: 23-24).

In musical terms there is no way, apart from the tune of ‘O, Canada’ perhaps, of referring to the nation. Lyrical texts may provide more straightforward markers of

Canadianness and one can certainly find these in the work of artists such as the

Tragically Hip or Blue Rodeo. For a number of Canadian listeners, who can be counted on to recognize such references as place names or hockey players, these may form an important point of identification and national pride. However, such references would, arguably, still constitute a small minority of Canadian musical output. Identifying a particular style or motif as quintessentially Canadian inevitably as has been done with the country-oriented rock of Blue Rodeo or

Gordon Lightfoot leaves out many Canadian musical artists working in other styles, such as Nelly Furtado or Chromeo (Straw, 2002). Testa and Shedden

(2002) also amply demonstrate that attempts to define ‘Canadian rock’ in aesthetic terms have not been especially successful.

Notwithstanding the claims of Darius Milhaud or Randy Bachman to be able to identify Canadian music by ear (Keillor, 2006: 11), attempts to isolate an essentially Canadian musical style have been relatively unsuccessful – either because the style in question encompasses only a very small proportion of

Canadian musical output or because the style is only marginally distinct from those of other nations or territories. To be sure there are some regional styles of music, for instance in Quebec, as well as in Newfoundland and the Maritimes but

9 they are mostly marginal to Canadian musical practice and, I would argue, can only be closely identified with the region by a limited number of its own inhabitants or by those who take a particular interest in these genres. Attempts to identify such a national essence in music are notable for their relative rarity –

Elaine Keillor’s recent Music in Canada (2006) or Barclay, Jack, and Schneider’s

Have Not Been the Same (2001) spring to mind but even here, discussion of essence is less the rule than the simple furnishing of examples of Canadian musicians and their careers. Keillor, who initially suggests that there may be an identifiable Canadian style in either ‘refined’ (her term) or popular music, in the end confirms that it has been impossible to identify a distinctively Canadian soundmark.

It is not simply the case that music inherently resists such identification with a regional or even national identity. There are numerous examples of music serving as a focal point of discourse around these matters. National identity as musical identity has even occasionally figured within the rock tradition in nations such as Germany (as 1970s Kosmische Musik) or Britain (for instance, the initial

British Invasion and more recently 1990s Britpop) (Harris, 2003). In Brazil music has been central to the state’s attempts at constructing and representing both national and regional identities. From a policy perspective, the relative importance of music in this regard was bound up with its use as broadcast programming.

However, in this case the style of the music, the persona of the performers and lyrical as markers of a distinctive identity both regional and national, have long been matters of concern for critics of music and culture (McCann, 2003).

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Two other reasons militate against music’s fitness as a form for working out national identity in Canada. Classical (or ‘serious’ or ‘refined’) music is concerned largely with a European tradition, both in terms of the style of music, as well as the origin of the works performed. Moreover it has generally been difficult to introduce audiences to works composed since the very early Twentieth

Century. Canada is doubly impeded in this regard both in terms of location and the timing of its development. Modern works by Canadian composers certainly exist but they are a marginal segment of an increasingly marginal tradition.

Popular music has other difficulties, similar to those that Beaty and Sullivan discuss in terms of television (2006: 68). It has been regarded as inherently trivial and lowbrow, even offensive at times. If in his examination of popular culture

Theodor Adorno was scornful of nearly all of its forms, he reserved his most scathing critique for popular music and such elitist attitudes are discernible in

Canadian cultural policy as well. In the Massey Report popular music is notable for its near total absence. The Fowler Report is itself less than complimentary about the form; comments on popular music programming such as “apotheosis of the jukebox” (Canada. Royal Commission on Broadcasting [C.RBC], 1957: 46) are fairly typical of this attitude. This in itself may help to explain why Canadian music industry policy is seemingly so slow to develop: either its forms are removed from us both historically and geographically or it is not something to be dignified with inclusion under cultural policy.

The relative absence of such concerns around Canadian music then is conjunctural. A lack of interest in identity is not endemic to Canadian cultural

11 matters, as the examples of literature and film attest. Nor is it inherent to music’s relationship to the nation, as our Brazilian example shows. It may be Canada’s failure to develop a distinctive folk music (or at least to exploit such a music) that results in this lack of discourse around identity worked out in terms of the content of music itself. It may be our considerable similarities to and commonalities with the United States that masks our distinctiveness; Canadian music (either popular or ‘serious’) has never been expected to be particularly different or distinctively

Canadian in terms of its content. For the most part identification with music in

Canada may rest less on territory than on other affiliations. Lawrence Grossberg, discussing rock music’s political dimension in America, locates much of music’s meaning in its relationship to the relatively affluent and comfortable lifestyle of the American middle class, seen in its regular, quotidian aspect (1993), a lifestyle which Canadians by and large share.

In any case the CRTC’s Canadian content guidelines, which are as close as we get to any definition of a national musical identity in policy terms, make no reference to the actual content of the work, either lyrically or musically, concerning themselves with the nationality of the creators and the recording location (Canadian Radio-Television and Telecommunications Commission

[CRTC], 2001). Nor do guidelines for federal government funding make any stipulations regarding the actual content. If Canadian music is meant to reflect

Canadian identity (as it clearly is in these regulations), the precise means by which this happens are not specified. The lack of a clear sense of national identity in terms of Canadian music may be more marked than in other cultural forms.

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What is even more marked is the particular manner in which cultural nationalism is present in Canadian music industry policy. This reconfigures some of the debates that characterize discussions of Canadian cultural policy, with the result that some of the characteristic oppositions of these discussions that recede in importance or disappear altogether.

The idea of the domestic Canadian industry contra an international entertainment industry is one of these. One might suppose that the domination of

Canada’s sound recording industry by foreign based multinationals would be as central a concern for policymakers as it appears to have been in audiovisual industries, but although such domination has been invoked at times in policy discussion, there has been no move made to end it. Rather, the multinationals have more often been enlisted both by government and the Canadian sector in achieving policy aims. Although the independent sector has on occasion worked to distinguish itself from the multinationals, their relationship through this period is predominantly one of cooperation and mutual support. In fact the multinationals’ Canadian operations are not simply foreign. Prior to the period under examination, most of these companies had a well-established Canadian presence in terms of marketing, distribution and manufacturing. They have for the most part been truly branch plant affairs, distinct from operations in other countries, with a considerable investment in their presence here in terms of jobs, facilities and capital. Arguably this gives them a certain Canadianness, at least in a material sense (Bliss, 1970). But what is even more important is that Canada’s domestic industry has relied on the presence of these branch plants and the

13 manufacturing and distribution networks they set up over through the 1960s and

1970s (Straw, 1996). These networks have been the major conduit not only for the multinationals’ own recordings but for those of most of the Canadian independents of any importance. This is well recognized by both the industry and policymakers.

It might also be suggested that there is a lack of popular concern because the companies involved are truly global rather than American, with owners based in

Europe and Japan rather than in the United States and thus they are less likely to invoke fears of American domination. But the fact that until the late 1980s most of these companies were in fact American-owned made little difference. The origin of the artists may also play a role in creating a sense of the music industry as more international. Since the Beatles, at least, it has been hard to think of popular music as exclusively American. In any case, the result is that we have been much less exclusively concerned with countering American cultural influence in terms of music. This is not to say that the issue has never come up.

However, foreign ownership and control has not formed the basis of Canadian music industry policy. Certainly, the Canadian-owned sector has very seldom invoked the majors as their opponents.

It is perhaps more surprising that this lack of opposition here works both ways. Notably, the Canadian representatives of the multinational recording industry have never opposed Canadian content quotas on radio; rather, they have generally supported this policy. This multinational industry sells records by

Canadian artists as well, at times more than the Canadian-owned companies, as it

14 happens (Statistics Canada).i And most of the best selling Canadian artists are signed to these multinational companies. A similar situation exists in book publishing, but whereas redressing this state of affairs has been among the central policy concerns for that sector, it is, again, not among the primary aims of music industry policy. The multinationals and their dominance are not seen as the key problem facing the Canadian music industry.

If the Canadian music industry has an opponent, in policy terms at least, it has often been the domestic private broadcasting sector, specifically radio.

Opposition to Canadian content quotas, to neighbouring rights or to higher performing right tariffs has come, not from a foreign-owned industry seeking to preserve its dominant position in Canada, but from a domestically-owned industry which sees itself, quite rightly, as bearing the costs of these policies. This adds a number of complications to the positions in debates over Canadian nationalism. In one sense it becomes a more internal matter, a question of arbitrating between two domestically based industries rather than simply between Canadian and foreign interests – although, oddly enough, one can often find the multinationals ranged alongside their domestic counterparts in arguments against radio. In any case, the fact that private broadcasting itself has been of fundamental concern for Canadian cultural policy has had an enormous influence on the development of policies for the Canadian music industry. We will explore this at greater length in the first chapter and, indeed, throughout the dissertation.

Another focus of cultural policy discussion in Canada that is of even less importance here is the tension between public and private production, which

15 characterizes so much of the discussion around broadcasting policy (Raboy,

1990). Sorting out the roles and relative strength of the public and private broadcasting sectors has occupied policymakers in Canada since the 1920s and continues to be a concern as the CBC struggles to find a role for itself in a system now dominated by private interests. At times, the role of private and public production has been a matter of concern in the development of Canadian film policy. This was particularly salient in the struggles over the function of the

National Film Board and the development of policies aimed at supporting a private production sector (Magder, 1993; Dorland, 1998). But, although the effects of these policy discussions can be traced in some aspects of Canadian music industry policy, this opposition is itself of little relevance. The state has never engaged directly in the production of music as it did with film through the

National Film Board or with broadcasting through the CBC (unless one counts the extremely limited output of CBC Records), nor has it ever seriously considered doing so. The music industry has perhaps the most distant relations with the state of any of the cultural industries in this regard.

Much of the difference in policy discourse pertains to the particular history of the music industry. Each cultural industry stands in a somewhat different relationship to the art form it commodifies. Film is very difficult to separate, if not conceptually, at least practically, from its industry. Very little film production occurs outside the context of an industry. Film evolved in an industrial context and generally speaking the resources necessary to produce and to distribute it have been on a large scale. The form has only occasionally escaped from these

16 industrial circumstances of production. This is even more the case with broadcasting, which has generally has not existed outside of an industrial or institutional context. Even book publishing has a relationship with literature going back nearly five hundred years. The music industry is a relatively recent development, emerging only in the late 18th Century, and then only marginally.

Music’s commercial aspect has never seemed integral to it, acting merely a middleman between the artist and audience, simply another one of music’s endless mediations. We can see this in the our ongoing Internet utopianism, in which it has been all too easy to imagine the music industry away altogether, leaving artists free to interact directly with their audiences. The reverse was the case for a long time more or less normal for policy makers until the late 1960s: whatever policy addressed the music industry, did so with little or no reference to music or culture.

The result is that what we see with the music industry is a different trajectory in its relation to a concept of culture generally and thus of its treatment by policy. Ira Wagman, who has very sensibly questioned the relevance of the

Massey Commission for subsequent cultural industries policy, still refers to its report as the last major instance where the language of the humanities predominated in the development of cultural policy (2006). Culture gradually emerges as a policy object in Canada over the late 1920s through to the early

1950s, a period bracketed by two Royal Commissions (Aird and Massey). During this period the discourse around culture is one of humanism, invoking non- quantifiable terms such as character or civilization. Subsequently, as techniques of

17 social science such as statistics and even more so economic and accounting practice come to occupy a larger space in policymaking, cultural policy is enunciated in terms of economics, its contribution to balances of trade, its status as commodity, this process starts in earnest in the 1950s and 1960s. Both Dorland

(1998) and Magder (1993) have also referred to this economization of Canadian cultural policy over the 1960s and 1970s. As well, Raboy (1991) references the results of such a shift in his description of the policy changes in broadcasting brought about by the Fowler Commission (137). He also points to the later administrative changes to cultural policy that see the emergence of the

Department of Communications as the major site of cultural policy development and the emergence of the term ‘cultural industries’ in policy discourse in the late

1970s (270).

My purpose is not to contradict these accounts; far from it, they offer a valid analysis of the direction of much Canadian cultural policy. However, we do not see the same process in regard to music industry policy and the rationales for it.

The music industry did not make the same transition in terms of policy discourse.

If cultural policies regarding film, broadcasting and publishing become progressively economistic over the period from 1950 to 1980, then those policies of greatest importance for music industry were already well entrenched in this territory. Raboy’s identification of the introduction of the term ‘cultural industries’ into cultural policy may help indicate what occurred here. In reviving

Horkheimer and Adorno’s term ‘culture industry,’ French sociologists pluralized it, as well as toning down its more pejorative associations (Hesmondhalgh, 2002:

18

15). The term enters into government policy in the 1970s as documents published by the Council of Europe and UNESCO attest (Miège, 1983). What significance might this discursive development have with the emergence of a music industry

(sound recording in particular) as a fully articulated object of policy? Even as the term allows for distinctions among the various kinds of commercial enterprises involved in the production and circulation of culture, it provides a designation for a general class of industries. It is as a cultural industry that sound recording (and by extension its associated industries of music publishing, etc.) becomes intelligible as a potential site for direct policy intervention, comparable to industries such as broadcasting, film production or book publishing.

Thus the Appelbaum-Hebert Committee’s Report’s discussion of the need for sound recording policy seems to be driven at least in part by the need for a recognition of its comparable significance to other cultural industries (Federal

Cultural Policy Review Committee [FCPRC], 1982). It is significant that the first cultural policy measure explicitly developed for a Canadian music industry, the

Sound Recording Development Program (SRDP) of 1986, was most similar to the measures previously developed for film production and book publishing: subsidies through government grants and loans for the production of recordings by Canadian artists signed to Canadian record labels, alongside limited grants for companies to market these recordings internationally.

In contrast to what occurred with other cultural industries programs, the administration of much of the fund was left to two private foundations: FACTOR

(created by the Canadian Independent Record Production Association (CIRPA) in

19 collaboration with a number of major radio broadcast chains) and MusicAction,

(its Quebec equivalent, set up by the Association du disque, de l'industrie du spectacle québécois et de la video (ADISQ), again in collaboration with private radio). Although FACTOR can point to over $600 million in worldwide retail sales generated by the recordings it has funded since its inception in 1982

(Foundation to Assist Canadian Talent On Record [FACTOR], 2004), this still pales in comparison to the size of the industry generally – far less than the retail sales for the Canadian music industry alone in any one of the past ten years.

At the time that program was introduced, other policies that we would consider integral to the music industry had already been in place for some time.

Audley noted that as of 1983, the two most important extant federal policy instruments dealing with sound recording were 1) The CRTC’s Canadian Content policy and; 2) the 15% tariff on the importation of finished discs and tapes, arising from their classification as manufactured goods (1983: 172). Canadian content regulations in radio broadcasting were enacted in 1970 and this development is often seen as far more momentous both for the Canadian music industry and for

Canadian cultural policy. We will discuss these regulations presently but the regime of tariffs on the import of manufactured goods that Will Straw also identified as the most important for the sound recording sector date back to the

19th Century (1996). If, as I suggest, we expand the scope of the discussion beyond just sound recording we should also include copyright laws pertaining to the music industry, which date back to before Confederation. It is only retrospectively, however, that we see these as essentially music industry policies.

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Certainly neither tariff regulations nor copyright were conceived specifically with a Canadian music industry in mind. Neither affirms the sound recording industry or music publishing industries as a specifically cultural industry. The tariff policy takes no account of sound recording as a specifically cultural nor is copyright at this time of much concern to policymakers as a key component of cultural production. Yet their importance for the industry is clear.

The major commodity form for music through much of the Twentieth

Century was as a mass manufactured object, cylinder, disc or tape. As such it was subject to the trade barriers on manufactured goods erected around the time of

Confederation, which formed a central component of Canada’s economic policy for much of its history. Inasmuch as these laws encouraged development of pressing plants and distribution systems within Canada by the major multinational record companies, they have indeed had a tremendous effect on Canada’s sound recording and, hence Canada’s music industries. Even after the dismantling of these barriers through trade agreements such as NAFTA, this distribution network has, until very recently, remained more or less in place. This is clearly not conceived as cultural policy. The industry’s products simply come under its provisions as they emerge as manufactured goods. Here the commodity form of music (the sound carrier) was caught up in policy simply by virtue of its being a manufactured good. It mattered not at all whether the recordings manufactured and distributed here were from masters recorded by Canadian or by foreign artists.

Imported masters themselves attracted no special treatment and import duties were assessed in terms of their intrinsic value rather than with regard to their

21 actual use as molds for further copies. As late as the 1980s, recordings were still classified under Textiles and Footwear for tariff purposes. It is also worth noting that despite the exemption of culture from the Free Trade Agreement and

NAFTA, the tariffs on manufactured recordings were removed.

The 1923 Copyright Act addresses music as intellectual property, and its owners as music publishers. Copyright has also been of crucial importance to the music industry in Canada and elsewhere. It provides the legal framework for its economy, guaranteeing property rights of musical works and recordings, which enable the artificial scarcity necessary to exploit them as commodities. This law could also be seen as more significant inasmuch as it represents recognition of

Canadian sovereignty in this area, taking over from the British government. But copyright has a very different relation to national culture than the other policy measures under examination. Increasingly copyright is developed trans-nationally, with a disposition to the economics and trade of cultural goods, and with little or no concern for their expression of national identity. The Berne Treaty (on which much of this act was based), with its principle of equal treatment for works from all signatory countries is in some senses at odds with a cultural policy framework concerned with the privileging of Canada’s indigenous cultural output. It is part of a regime to ensure orderly trade of non-material property. Furthermore, an examination of copyright policy shows that until the 1980s, it was more or less sequestered from cultural policy generally, its administration and policy development entirely outside of the cultural policy apparatus (it was overseen by the Department of Agriculture for some time and was the exclusive jurisdiction of

22

Consumer and Corporate Affairs from 1967 to 1980). As late as 1982 the

Appelbaum-Hebert Committee Report, despite its economic orientation, confines its discussion of copyright to a three-and-a-half page appendix to its chapter on the political economy of culture (Canada. Federal Cultural Policy Review

Committee [C.FCPRC], 1982). It is only in the 1980s that the Department of

Communications becomes involved with the copyright revision process. Even so copyright remains only partially a cultural policy concern.

Instead of a process of economization, I would suggest that the Canadian music industry, as a concern of policy, becomes encultured from the late 1960s through to the 1980s. It becomes an object of cultural policy. Again, part of this is that cultural policy evolves in an economistic direction such that the music industry becomes intelligible as a part of culture. However, during this time there are also some other key developments that bring the music industry into a cultural policy framework. One of the traditional concerns of cultural policy, national identity, becomes a policy concern for music and by implication the music industry. The introduction of Canadian content regulations for radio has frequently been assessed as an epochal moment, perhaps the epochal moment, in the development of Canadian music policy. I agree, not because it straightforwardly achieves the viability of a domestic music industry but because it marks the music industry’s entry into association with cultural policy.

In February 1970, the CRTC proposed a new set of regulations for radio broadcasters that would see them devote significant portion of their programming to Canadian music. The concept of Canadian content was hardly new having been

23 a feature of television policy for a decade, one of the major innovations of the

CRTC’s predecessor, the Board of Broadcast Governors. Precisely why regulations for radio, the older medium, were comparatively slow to be enacted remains a difficult question. In 1962, the Board of Broadcast Governors decided not to pursue a Canadian content regime for private radio and the question was not revisited again for several years. It is possible that this is simply a case of the regulator picking its fights. Caught up in trying to set the tone for the new and rapidly developing private television sector, the BBG may have felt that radio, with a more entrenched set of interests and practices, would be less amenable to policy change and perhaps of less importance in the long run. We will discuss this too at greater length in chapter two.

As a policy, the regulations were meant to establish the “Canadian content and character” of the radio airwaves in line with the objectives of the Broadcast

Act; they were and are a broadcast policy. That they involved the music industry at all was a result of the prevailing use of music, and in particular commercially produced sound recordings, as programming by radio stations, especially private broadcasters. This situation had become predominant in the postwar throughout

North America, due at least in part to the pressures exerted by television’s arrival.

Thus if the nation’s radio airwaves were to be made Canadian this would have to be done in terms of music. And as radio had left the production of this programming to the music industry, it became apparent that this would be the source of this material. By this route an industry that had barely received any mention at all in cultural policy documents up to this point was brought into

24 relation with one of the most central and longstanding policy issues, the national character of the Canadian broadcast system. This is the first time in policy terms at least that the music industry had been mobilized as an instrument of Canadian culture and the industry’s role would still take some years to develop. At the initial hearings the involvement of the music industry was limited to testimony from the Canadian Music Publishers Association (CMPA), one of the performing rights, collectives and a journalist, alongside two of the less articulate members of the group Lighthouse.

This is, however, only the beginning of the process of enculturation. For one thing, the music industry was still not the object of the policy (that object was and still is radio broadcasting). Rather, the music industry played a number of supporting roles in this policy. First, it was the assumed supplier of Canadian musical programming - for which role no particular provisions were made at the time. Second, it was seen as a possible beneficiary of the policy– although this was an ancillary effect. Related to this second role, the music industry was, somewhat later, positioned as a means of measuring the policy’s success – in the form of record sales. In this way the music industry played the equivalent of a market externality – a condition or effect of a certain transaction but not directly involved.

In his work on construction of markets Michel Callon (1998a) elaborates the economic idea of market externalities into the notion of ‘overflows.’ For Callon the construction of a market is a process of framing of trying to limit the myriad entanglements and associations that all objects and actors come with, or more

25 precisely are made of if we follow Callon’s ontology. However, this process of framing is not, and can never be, complete and thus must undertaken again and again. This is a useful notion to us, first, as it helps to describe the relation of the industry to this policy, an externality arising its association with radio broadcasting. Through its close association with radio broadcasting, as supplier and beneficiary of airplay, the music industry is very much an externality to this policy. Second, this notion allows us to posit the productive nature of policy. One might argue that a good deal of the music industry’s more thorough enrollment in cultural policy over a decade later also stems from an attempt to account for the overflows from Canadian content. Much of the formal justification for

FACTOR/MusicAction and later the Sound Recording Development Program is to ensure an adequate supply of programming necessary to maintaining Canadian content levels on radio (Communications Canada, 1985).

With these policies we begin to see the problems that attend any analysis of

Canadian music industry policy. The diverse origins and policy frameworks that make up its key components make it difficult to generate a unified account of its history. Although I have chosen to discuss the policies separately and to highlight the different conceptions of the industry at work in each, I will also try to show the extent to which these policies overlap and affect one another. There are multiple lines which connect them and which form a kind of unity. The multiplicity of the policy does not allow us to ignore the fact that we do use the singular term ‘Canadian music industry’ and that even if this is in some sense misleading it does itself frame out a certain reality. The account here simply

26 identifies some of the elements from which it is composed and the traces the processes by which these are configured. This also is a key process in policy development and advances by the same means of framing, negotiation and translation. This is the underlying narrative of the dissertation, that the Canadian music industry understood as an entity is assembled gradually, sometimes blindly and sometimes deliberately and that this entity is, as much as anything, a matter of policy. The unity that emerges, fragile and temporary as it may be, is grounded in the policies, at least in the spaces where they overlap and interfere with one another, not the other way round.

It is the outside connections of each of these policies, those associations that go beyond notions of a Canadian music industry or its attendant policy, which constitute their distinctiveness. Another element that is key to much music industry policy is the extent to which it is composed of lines of force that emanate from elsewhere. Music and the music industry are only rarely important enough to initiate the ongoing policy process – they depend upon their connections in order to be recognized in policy development – whether these are broadcast sovereignty, employment or intellectual property. Music is usually at best a manifestation or small element of these other concerns.

Chapter One lays out the theoretical and methodological framework that reflects this diversity and heterogeneity. Where much Canadian cultural policy research has tended toward extracting general thematics, we will attempt to develop a methodology that embraces the multiplicity of discourses, interests and agencies at work even in a small segment of public policy. Moving from accounts

27 of the ubiquity and multiplicity of music itself, the chapter will examine the sociology of association, or Actor-Network Theory. As well as drawing on

Callon’s notion of construction of markets, we will also utilize the work of

Annemarie Mol (2002), who has developed an account of ontological multiplicity in terms of medical practice and on the work of John Law (2004), a more general methodological account, as well as some work by Latour and Callon (1991) which presents Actor-Network Theory in a policy context. From here we develop a methodology that depends upon tracing various networks of associations and defining the policy frames that describe the shape these networks.

This is elaborated in terms of a brief account of some of the possible configurations entailed by the term ‘Canadian music industry.’ This is necessary as background to the discussion of policy as it introduces us to its various components and a number of the interests involved. The industry’s plural nature

(Straw, 1993; Williamson & Cloonan) will be a feature of this account. Not only are there a number of music industries that can be distinguished by function (such as sound recording, music publishing and so on), there are also sectors that can be distinguished according to national ownership, specifically the Canadian owned and multinational sectors—a crucial distinction for policy. All of these components assume different configurations of the industry that are captured and enacted by various policies. These policies and the versions of the industry that they assume can be coordinated to some extent, but this occurs outside of a deliberate policy discourse.

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Our next task is to turn to the particular policies and to begin to trace their development. In each case we will be able to see not only the distinctive and specific history of each but also the ways in which they interfered with and affected one another. As much as possible I will try to avoid being redundant but these histories will overlap at many points. We will be retracing the same time period in some cases. Some events will figure in two or more of these histories.

We will most certainly encounter many of the same actors in each chapter. As we traverse this terrain repeatedly, certain landmarks will become more familiar and we will see them in a slightly different way each time.

Chapter Two and Chapter Three will deal with the CRTC’s Canadian content regulations for radio. Chapter two deals with the period during which the policy was first developed through to the end of the 1970s. Chapter three follows some of the policy’s subsequent adjustments, renewals and revisions. Again, this policy has been identified by a number of politicians, analysts and scholars (and indeed by many in the industry) as the most significant and distinctive of the

Federal Government’s policy instruments for culture. As a policy for the music industry, it certainly is distinctive inasmuch as it uses another industry (radio broadcasting) as a policy instrument. This is one instance where an analysis forward from the policy into its actions on subsequent developments is extremely useful.

Canadian content has played a key role in defining the relationship between the radio and recording industries in Canada. Conceptions of the policy have changed substantially, as have industry conditions, with the result that we can

29 detect an evolution in the rationales for the policy, even as its essential characteristics as an instrument have remained relatively constant. The chapter will discuss Canadian content’s character as broadcast policy and its importance for invoking (perhaps more than creating) a Canadian music industry through its overflows. We will discuss its influence on the emergence of pressure groups representative of the industry and their expanding role in policy development.

Chapter Four will discuss the process leading up to the creation of the

Sound Recording Development program in 1986 and subsequent developments in that program to 1998. There are at least two major aspects to this. One is connected to the ongoing development of Canadian content regulations and the relationship between radio broadcasters and record companies. This directly involves the history of FACTOR and MusicAction, the private foundations that administer much of the fund on behalf of the government. The other is the emergence of the music industry, particularly sound recording as a more fully articulated object of government policy.

Chapter Five and Chapter Six are a discussion of the ongoing process of copyright revision Chapter Five provides some background of copyright and its relation to trade in the Canadian music industry. This chapter also outlines the formation of Canadian copyright policy from the late 1970s through to 1986.

During this time copyright reform became an increasing concern within the music industries. Chapter Six covers the period from 1987 to 1998, which is the period during which the legislative program laid out by the government was enacted.

This occurred in two phases, one in 1987 and the other in 1997. For the most part

30 this involved the creation of a number of new rights consisting in music, particularly in sound recordings, including ‘neighbouring rights’ (a performing right in recordings that allows record companies and performers to collect a levy from radio stations for their use of recorded music) and a home taping right

(allowing the collection of a levy on the sale of blank recordable media such as cassette tapes and CD-Rs) among others. The process also regularized some of the administrative aspects of copyright. One of the most interesting aspects of this ongoing policy development is the degree to which it begins to position music industries more in terms of economic concerns such as trade and the value of intellectual property. It is also the one area of policy of most concern to the multinational record companies working in Canada and demonstrates the close working relationship between the international industry and the independent sectors in both French and English Canada in matters of policy interest. This chapter should begin to anticipate the growth of concern with new technologies that increasingly occupied policy as the 1990s ended.

The Conclusion will deal with the ways in which a unity (albeit a fragile and temporary one) of Canadian music industry policy emerges out of these various strands. This will serve to pull together what is by admission and intention a somewhat fractured narrative. At the same time I hope to discuss this fragility and temporariness in anticipating the pressures that would begin to effect even greater transformations in the music industries over the next few years. These are pressures that would render some earlier policies irrelevant, magnify the

31 importance of others and generally transform our notion of what the Canadian music industry is, as well as its future prospects.

Despite my earlier comments on the facile identification between government policy and the music industry’s success, there remain any number of close connections between the two. Policy has shaped the industry here, as it has internationally, and will only continue to do so. The challenge is to properly trace these connections, to avoid simplistic assumptions. It is too easy with policy to assess it in terms of its stated aims such that we ignore its unintended consequences, both positive and negative. More importantly, it prevents us from seeing policy both as a constructed process in the period before and after its enunciation, which is where its actual connections to its aims and its objects exist.

The aim of this study then is to pay attention to these connections. The result should be a description that is not only useful for describing Canadian music industry policy but suggestive for understanding other areas of policy development.

A Note on Background and Sources

Much of the background knowledge and inspiration for this study comes from a number of years spent working in the Canadian music industry, and specifically, six years with the Canadian Independent Record Production

Association (CIRPA), from 1990 to 1996. CIRPA is an industry association for the Canadian-owned recording sector, which has been deeply involved in lobbying Federal and Provincial governments since the 1970s. Much of the activity of the association concerned policy development and consultation and the

32 experience served as an excellent introduction both the music industry and to the policy making process. This is perhaps the reason why the specific aspects of

Canadian music policy are so central to this project. This is to declare both an interest in the subject and to acknowledge that some biases may persist, despite my best efforts. Nonetheless the experience has been valuable in allowing me to identify a number of the major issues and to have a sense of the ‘lay of the land,’ as it were, with regard to Canadian music industry policy.

In formal terms the analysis is based largely on documentary sources drawn from government, industry and the media. A great number of these were obtained thanks to a travel grant from the Canadian Studies Association, through which I was able to collect much of this material was collected in the Spring of 2005 from

CIRPA’s files and archives. Other material (such as publications and a fair amount of government material) was accessed from the University of Calgary

Library and from a number of online sources, both government and private. There are a number of uses for such documents. The first is that they provide an account of what happened during these years, a record of the actions and events. In many cases this is a record of utterances, of what was said. The second is that they serve as a source of information about the intentions, opinions and knowledge of the actors involved, from which we can begin to construct a sense of the interests in play and the ways in which these were expressed in various actions. Finally, not all, but a great many of the documents are also artifacts, having had their own form of agency that played a part in events, whether this is to enshrine laws, regulations, to announce a policy or to intervene in a hearing. This last aspect is in

33 some senses especially important as it both allows some direct interaction with some of the agents in the history and to acknowlege that not all the agency in these matters is held by persons.

i Statistics Canada figures show that in 2000, foreign controlled companies earned revenues of $74 million from sales of Canadian artists, as compared to $63 million earned by Canadian controlled companies from sales of Canadian artists (2005).

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Chapter One: Policy Assemblages and Configurations of the Canadian Music Industry

In one of the more perceptive accounts of Canadian cultural policy John

Meisel and Jean Van Loon (1987) pay tribute to the complexity and contingency of the policy-making process.

There is no single source to which a curious, scenting culture

hound can run when tracking down cultural policy in Canada.

Nor is there any hallowed tablet enshrining the principles

underlying the government’s approach to the arts. There are

several reasons for this, the chief of which being that no

explicit, consciously defined cultural policy actually exists.

That is not to say that no such course of action is in place but

merely that its rationale has never been defined, and possibly

perhaps never even perceived. Cultural policy in Canada did

not spring ready-made from Athena’s or Athlone’s brow but

developed slowly, almost imperceptibly, not only like the

British Empire in a fit of absent-mindedness, but also to some

extent, in a philistine fog of lacking interest.

(306)

A glance at the directory page of web site for the Department of Canadian

Heritage (the government department broadly charged with cultural policy) offers support for their view. It shows an extensive with entries as disparate as the

“Canadian Aviation Museum”, “Holidays and other important dates (Public)”,

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“Patriotic songs” and the “World Anti-Doping Agency” (Canadian Heritage,

2008a). It is hard to imagine single rationale or principle that might plausibly unite all of these, let alone the dozens of other entries. Another student of

Canadian cultural policy, Bernard Ostry writes, “At the core of…culture is the notion of human imagination, creative mind. The realm of imagination is limited only by the bounds of desire and revulsion…” (12) This, as Ostry admits, covers a lot of ground. Culture does challenge our ability to say much about it generally, even if we are discussing it only in relation to Canadian policy. Yet one may certainly find insightful and informative overviews, such as Ostry’s or Meisel and

Van Loon’s. In some respects, the history of Canadian cultural policy lends itself to such an approach. It appears to be relatively recent in its origins– with the Aird

Commission on broadcasting in the late 1920s and the establishment of the

National Film Board a decade later as precursors but really only coming into its own with the Massey Commission at the end of the 1940s It also appears, for all its variety to be relatively encapsulated, administratively speaking. For the most part federal cultural policy has been administered by one department at a time, albeit a succession of them (the Secretariat of State, the Department of

Communications, and since 1993 the Department of Canadian Heritage), and through a number of boards or agencies that report to it, such as the CRTC, the

Canada Council, and so on. Indeed, administration may, as Adorno notes in relation to culture, have a great deal to do with creating an apparent unity of the field (1991). At least two of the most comprehensive studies of Canadian cultural policy are the reports of government appointed bodies, charged with formulating

36 cultural policy, the report of the Massey Commission (Canada. Royal

Commission on National Development in the Arts, Letters and Sciences

[C.RCNDALS], 1951) and that of the Applebaum-Hebert Committee (C.FCPRC,

1982).

Yet Meisel and Van Loon’s quote argues against any simple notion of a unity of purpose or conception in cultural policy and, as such, serves as a useful directive for this dissertation in a number of respects. The authors’ declaration that “no explicit, consciously defined [Canadian] cultural policy exists” is, of course, not meant to deny the existence of cultural policy in this country but expresses skepticism about the degree to which its development has followed an orderly and coherent process. They are certainly not the only scholars to have noted the degree to which Canadian cultural policy lacks a coherent principle. But

Meisel and Van Loon are here primarily concerned with offering an historical description of Canadian cultural policy and eschew the temptation to offer a critique on these grounds. This is at odds with much of the work examining

Canadian cultural policy, which does assume a critical stance (the reference in the introduction to a discourse of failure is a part of this) and seizes on this incoherence and lack of explicit definition as a challenge. Broadly speaking,

Canadian cultural policy scholarship has tended to address this in one of two ways. The first, generally more practical in its orientation, is to suggest that the policy itself is therefore flawed and should be reformed in order to render it explicit and coherent. The other approach is to look for an underlying rationale or explanation in which the seeming incoherence can be resolved or explained. This,

37 of course, does not preclude offering a critique of existing policy – it very much depends on what is identified as the source of policy development. But, whatever their differences, both approaches find the messiness of cultural policy problematic and set about tidying it up.

In the introduction we discussed some of the difficulties that music industry policy might present for a tidy account of cultural policy, both in terms of its integration within the field generally and in terms of its own internal coherence. It is important not to lose our sense of these difficulties, to explain them away within a larger framework for policy; the differences and incoherence are important. At the same time, it would be impossible to argue that music industry policy has nothing to do with other cultural policy or that music industry policies have nothing to do with each other. To this end we will propose a kind of analysis that explores these connections without attempting to efface or minimize the distinctiveness of specific policies and of their irreducibility to a single all- encompassing framework. Such an analysis allows us to trace the particular interactions, negotiations and compromises that go into making a particular policy. This has certain advantages in that it identifies the individual interests and actors at work in making policy. We can begin to identify what is at stake for these interests in a given policy outcome and we can imbue them with a degree of agency such that these outcomes are no longer seen as simply inevitable.

This dissertation focuses solely on the relatively small range of policies that pertain to the music industry. One of the justifications for a study of this kind is the belief that we can capture something through this narrow focus that eludes

38 more general accounts. As I indicated in the introduction, Canadian music industry policy appears to present us with a distinctive history in relation to other branches of cultural policy, including that of other cultural industries. As with the histories of broadcast or film policy discussed in the introduction, there are particular moments or developments that give this body of policy its distinctive configuration. This distinction is, I argue, worth attending both for its own specificity and for what it may tell us about the multiplicity described by the term

“Canadian cultural policy.” This concern with specificity and multiplicity does not just define the limits of the study; within Canadian music industry policy we find a number of elements, each of them complex and distinctive in their own right, even as they relate to one another.

Theoretical Perspectives

Much of the analysis of cultural policy is critical in nature though for different reasons. For instance, economists, especially neoclassical economists see no special status for cultural products, and, opine that as such they ought to conform to standards of trade like any other commodity. Much of the work on

Canadian cultural policy from this perspective is prescriptive in nature. It aims to set Canadian cultural policy in line with principles of open and free markets. For economists such as Globerman (1983; 1987) or Acheson and Maule (1999),

Canadian cultural policy, especially that concerned with the cultural industries, often appears simply as a barrier to the proper functioning of the market for cultural commodities both within Canada and internationally. One might argue that such a view of cultural industries is simplistic. While an increasing body of

39 work has problematized the distinction between the economic and the cultural this does not involve a reduction of either one to the other (Amin & Thrift, 2004; Du

Gay & Pryke, 2002; Lash & Urry, 1994. Although Globerman, along with

Acheson and Maule may claim to bracket the specifically cultural aspects of cultural industries policy in favor of a purely functionalist view conforming to economic principles, it can be argued that these principles themselves rest on a set of cultural assumptions values and beliefs about the manner in which societies ought to be governed. But there are also difficulties with a rationale for cultural industries policy founded purely on the grounds of identity and national sovereignty. Such grounds ignore the ways in which culture itself plays out in economic terms and how much of the culture we consume is produced in a commercial context). As Miller & Yúdice put it (2002) “…commodities are always cultural and cultural products are always commodities” (73). It might be more productive to view cultural industries policy as a site where the interpenetration of culture and economy is worked out in practical terms.

Either approach on its own may also risk offering an overly homogeneous account of cultural policy and too easily assume a unity of conception in policy development. Kevin Dowler’s article The Cultural Policy Apparatus in Canada

(1996) is a call to search for a ground for Canadian cultural policy, which Dowler finds in the problematic of the security of the state, and an explicit response to the classical economic perspective that Globerman and others have brought to

Canadian cultural policy. “In the absence of security in either the military or the economic realm, culture was to provide the bulwark of security against absolute

40 dependency…the rationale for a Canadian cultural policy is to be found in the security interests of the state.” (1996: 330). Rather than repositioning economic arguments, Dowler shifts to a discursive framework that posits an altogether different rationale. Yet, despite their considerable difference, Dowler shares some basic assumptions with Globerman and his ilk. Chief among these is the idea that the rationale for existing Canadian cultural policy is fundamentally not economic.

There is also (at least between Dowler and the economistic position) a desire to establish a coherent account of Canadian policy, although in Dowler’s case this has more to do with clarifying our understanding of policy rather than clarifying the policy itself. Dowler’s response to Globerman is to justify Canadian cultural policy, if not on economic terms, at least in terms of a single coherent principle, so as to render its rationale transparent. When Dowler asserts that “[a]lthough a sector-by-sector analysis can be valuable…the genesis of a cultural policy apparatus and its logic cannot be derived in this manner” (344) he implies both an overarching logic and a single originary moment for cultural policy. The aim is to establish a conceptual foundation for Canadian cultural policy that finds its rationale in a clearly articulated problematic of security, that of the state at least.

In its invocation of a singular rationale for cultural policy, Dowler’s position is entirely consistent with one side of the debate over cultural policy in this country. While the grounds for his position may differ, the basic stance Dowler adopts is similar to that of many other writers on this issue such as Paul Audley

(1983) or even Dallas Smythe (1981), not to mention any number of government documents on culture and cultural industries. In all these accounts culture has a

41 privileged, if ambiguous, place—privileged in that it becomes fundamental to the continued viability of the Canadian state, ambiguous inasmuch as it is at the same time extremely vulnerable. Dowler’s position is taken in response to the work of economist Steven Globerman, who questions the lack of “basic guiding principles” for cultural policy in Canada (cited in Dowler: 328). What Globerman is after is a rationale conforming to classical economics, of course, and Dowler is right to suggest that a foundation of this kind is not forthcoming. However,

Dowler’s own response is in its way equally reductionist. This is not to deny that security on these terms may be one of the lines that run through much Canadian cultural policy, or that it is a line worth investigating, as Dowler suggests.

However, to offer it as the originary moment for cultural policy apparatus means leaving out a great deal, notably, in our case, copyright, which does not fit well into this paradigm.

There is another move available here. Rather than trying to answer

Globerman’s objections by articulating a basic principle of cultural policy formation one might simply suggest that cultural policy does not need to be or can in fact be as clear and consistent as he would like. The vagueness of the rationales for Canadian cultural policy that Globerman complains of is perhaps a feature of the policies under examination here (although it is unclear that any substantial body of policy could meet the standard of absolute clarity Globerman desires).

But I would argue that much of this vagueness arises from the attempt to unite them under a single problematic. What seems to be vagueness is in fact complexity. Culture, as we have already noted, is a notoriously complex term, and

42 a number of its definitions and connotations are at work in various pieces of cultural policy in varying degree. Even within the cultural industries policy, culture may appear variously as way of life or artistic expression, among other meanings. This holds true even within the narrow realm of music industry policy.

Part of the vagueness arises also from the very exercise of abstracting a rationale from policies themselves. As individual instruments, policies such as Canadian content regulation or the creation of a home taping levy are targeted at specific problems. We could subsume all this under a more general policy objective of assisting the Canadian music industries but this is somewhat circular reasoning and not especially informative. Analysis such as Globerman’s is rooted in an ideological commitment to a pure market-oriented framework for policy development. Within this particular context one might also view his insistence on a clear economic rationale as part of the discursive shift toward economization that Wagman documents (2006). Wagman discusses this development as an epistemological one for policy makers themselves but this quantitative, instrumentalist orientation has also been a dominant feature of scholarly policy analysis as well (Fischer, 2003: vii). The assurance that measurable economic data offers is tempting both to policymakers and academics alike. By shifting the terrain to a more discursive framework Canadian cultural policy scholars may offer a double challenge to such an analysis.

To some degree Canadian cultural policy scholarship has acknowledged the cultural implications of economic practice but it has often done so within a political economic framework that can be equally reductionist. The work of

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Dallas Smythe (1981) characterized the domination of Canada’s ‘consciousness industries’ as a component of a comprehensive campaign to establish a more organized and monopolistic capitalism globally, largely through the agency of

American-based multinational corporations. Smythe sees Canada’s cultural dependence (exercised largely through the ‘consciousness industries’) both as a form of capitalist domination in its own right and as a means of naturalizing our economic (and political) dependence in economic matters generally. Pendakur’s

(1990) account of Canada’s film industry was clearly influenced by Smythe’s work. A more nuanced study by Ted Magder (1993) preserves the critical perspective but challenges the notions of dependency in Pendakur’s work (and by extension Smythe’s).

These works (particularly Smythe’s and Pendakur’s) illustrate both the strengths and weaknesses of this political economic approach to cultural policy.

By offering an account that involves economic, cultural and political practices and pursuing the connections between these spheres, tracing relationships among them, political economy challenges the narrow rationality of economism.

However, by subsuming culture and politics under its own form of economic determinism, political economy also assumes a monolithic aspect that ignores the multitude of viewpoints, rationales and associations at work in policy formation.

More recently Canadian cultural policy studies has seen a turn to the work of Michel Foucault, particularly governmentality, as an alternative that does not, in the final analysis, depend upon economics as the underpinning for policy analysis. This approach to policy studies has informed a substantial amount of

44 scholarship since Foucault introduced the idea in the 1970s. Broadly speaking it follows on Foucault’s previous work, such as Discipline and Punish. There,

Foucault looked at the techniques used in the administration of justice rather than offering a theory of justice. One traces a shift in orientation that is an effect of these techniques rather than what directs them. Governmentality applies the same procedure to governments generally: if we wish to understand what the liberal state is and its difference from earlier forms of government we can best do this through analysis of its actual techniques of government or policy apparatuses themselves rather than in outlining a general theory of state. Foucault’s framework of governmentality challenges the notion of the state as a singular and bounded entity, outside or above society. Following Foucault, Rose and Miller have argued against an “essential necessity or functionality” of the state (1992:

176). Rather, the state derives its character from the various purposes to which it is put and the specific techniques it utilizes in its relations with society. The rationales under which the state governs may share some regularities in terms of the ways they are articulated but they are not systematic and closed. This approach has the virtue of freeing us from the obligation to construct an account axiomatic enough that it could be enunciated separately from the policies themselves.

As an approach to policy studies governmentality (and Foucault’s discursive approach generally) has had a number salutary effects. Its concern with description of policies makes it less inclined to the aporias of political economy

(either left or right). Foucault does not look at policies as simply serving a

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‘common good’ or ‘public interest.’ Instead he points to “…a plurality of specific aims…a whole series of specific finalities, then, which become the objective of government as such” (1991: 75). One of the attractions of governmentality for cultural studies and for cultural policy studies was that it opened the possibility of looking at cultural policy not merely as a peculiar outgrowth of economic and class interests but rather as a technique of cultivating certain forms of subjectivity, such as citizenship. One could take this in a number of ways. For Tony Bennett, this offered an entrée into working with policymakers to effect this sort of change as well as suggesting the importance of culture as a technique of government,

(1990; 1992/1993; 1998). It is the latter that has been of most interest to Canadian scholars of cultural policy. In Allor and Gagnon’s L’État de Culture (1994) the authors employ a discursive analysis to demonstrate the centrality of culture to the policies of Quebec provincial governments from Lesage to Levesque. Culture is invoked not only in language or arts policy but also in financial and social policy generally. Policies of all kinds become a means of enacting a Québecois identity.

Cultural policy itself achieves a new importance in furthering both the expression and cultivation of this identity. Culture can also be seen here as standing in a new relationship to other policy fields, less marginal to governmental than in more economically oriented accounts.

For Michael Dorland (1998) governmentality offered a way out of the seemingly closed and gloomy analysis of more political economic approaches of the left such as dependency theory. To earlier scholars in this tradition such as

Dallas Smythe and Manjunath Pendakur, the parlous state of Canadian culture,

46 particularly film, was an effect of Canada’s status as a cultural and, ultimately economic, dependency of the United States. Hollywood films served an economic function as a lucrative form of entertainment in their own right, as well as a means of securing economic dependency on a wider scale. In this account, the failure of a viable Canadian film industry was a matter of policy inasmuch as the Canadian state was seen as helpless in the face and complicit with of the patterns of global capital domination. Dorland credits Ted Magder with offering a more refined and nuanced version of dependency that saw the state as not merely bowing to the interests of global capital but negotiating among a number of complex and contradictory internal interests in developing its film policy. However, Dorland, following Foucault, suggests that there are discontinuities developments in film policy (specifically the creation of a feature film policy) that are best explained through an examination of government practices, rather than in an explanation of the Canadian state. The creation of the Canadian Film Development Corporation is for Dorland the result of a new government orientation to culture and in the techniques by which it was governed.

There is much in governmentality that informs the theoretical approach adopted in this dissertation. Again, Dorland’s description of the state (similar to

Rose and Miller’s) as a “fundamentally historically discontinuous as opposed to coherently conceptual entity… complex, contested and changing articulation of the techniques of governance…” (20-21), is very much in keeping with constructivist and, in some sense, pluralist orientation I will be pursuing here. But conceptual incoherence has its limits in Foucault’s governmentality and Dorland

47 arrives at these limits quite rapidly. For all that he critiques much Canadian film scholarship for its essentialist and idealist conception of Canadian cinema, he moves relatively quickly towards a singular framework for Canadian cultural policy. Within a couple of paragraphs of the above quote Dorland is offering a generalized rationale for the field – that of security in the face of fear of domination and even annexation by the United States (21).

If it has successfully avoided the reductionism of classical economic or political economic approaches, then governmentality literature has fared no better inasmuch as it moves too quickly to a highly generalized discussion of cultural policy largely in terms of national sovereignty and identity. The temptation to do this may be one of the hazards of Foucault’s approach, which for all his expressed pluralism (1991: 53-54) can too often be used to assume that discursive formations have cohered and stabilized. As well, as Sterne has pointed out, although Foucault’s own work is highly specific the concepts it invokes are often vague or “generalized logics or mechanisms [such as] disciplinarity, medicine…[or] sexuality (2002: 72).i The tendency among a number of those who use governmentality in theorizing Canadian cultural policy is to attempt to describe a process whereby culture as a whole becomes an object of concern for

Canadian policy. Undoubtedly Foucault concerns himself general transformations: in governmentality changes in governmental logic and rationalities of government are of more interest than individual policies. This is equally true for many scholars working within the framework of governmentality, which frequently invoke the diversity and range of governmental practices and

48 techniques but with a view towards offering the common rationality that underlies them. In Powers of Freedom, (1999) Nikolas Rose offers just such an example.

Throughout much of this work, Rose challenges the notion that governmental practice is worked out in any conceptually coherent way; policies do not connect through “a coherence of origin or singular essence” and to analyze the programs and apparatus of government “is not to seek for a hidden unity behind this complex diversity” (276). Such an approach is reiterated throughout the book. Yet at the same time Rose offers an account that attempts to position the various practices of government evolving over the past two centuries under a general thematic of freedom, inasmuch as he wishes to position freedom as an effect of this manner of governing.

There are also implications for using Foucault’s work for more recent history. Sterne has noted that, “his work clearly does not address itself directly or specifically to present incarnations of individual institutions” (2002: 72). The difficulty here is that, as Rose has pointed out, policy development often proceeds in an ad hoc manner to address very specific problems with rationalities emerging after the fact so that “various tactics…[appear] to take part in a coherent logic”

(Rose, 1999: 27). In retrospect any body of policy may acquire the appearance of unity but this appearance is one of long historical perspective. This may be especially true if one is speaking of unity in terms of an epistème. Foucault describes an epistème as “the total set of relations that unite, at a given period, the discursive practices that give rise to epistemological figures, sciences and possibly formalized systems.” (1972: 211). Governmentality itself occupies the place of

49 our modern episteme in Foucault’s account (Law, 2004). This tendency to totalization is just as much a feature of governmentality, both in Foucault’s own limited work in this area, as well as in that of many of the scholars who have taken up this approach, including Dowler and Dorland. But if such unities only become apparent long afterward, it raises the question of whether we can identify them in such recent developments as Canadian cultural policies, which extend back barely eighty years. More fundamentally, how useful is such an approach, based on coherent rationalities, for describing how policies develop at the time?

At this point it is worth pointing out that, although Foucault’s method offers the possibility of a unified account of government rationality, it may be that

Dowler and Dorland, and to some extent Allor and Gagnon are mistaking this rationality for rationale. That is, Foucault is more concerned with the manner or character of thought or practice than he is with the reasons for a policy or set of policies. In seeking to offer a blanket rationale of national security for cultural policy, Dorland, and more especially Dowler, are back within the terrain of conceptual coherence that is in some sense at odds with Foucault’s work. In particular, Dowler’s reductionist account of cultural policy and search for an originary moment that will justify it is extremely odd in the context of governmentality. In this regard, Ira Wagman (2006) offers what may be an approach more in keeping with Foucault when he describes the transition from policymaking oriented toward humanistic principle to one justified in terms of quantitative, economic data, a transition from the 1950s through the 1960s.

Dorland also suggests something of this kind in his fourth chapter

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(“Reconfiguring the Public Sphere”) (1998), which outlines the growing role of the private sector in cultural policy and the declining role of state controlled agencies in production. Both these uses of Foucault are much more successful in resisting the urge to offer a coherent principle under which Canadian cultural policy emerges. In fact, Wagman, focusing squarely on techniques of government and their attendant disciplines for generating useful knowledge, offers a very useful blurring of the bounds of cultural policy in pointing out the extent to which its techniques and instruments have been borrowed from industry. He points out that the term Canadian content begins life as an industrial rather than cultural term, applied initially to activities such as automobile manufacturing. What

Wagman suggests is that cultural policy is not entirely cultural – a point we saw in the introduction and to which we will return.

However, governmentality remains vulnerable in terms of the way it deals with specificity. Sterne’s critique still stands, as does his assertion that “…the

Foucauldian paragdigm brackets questions of outcome in particular contests between particular subjects” (2002: 64). In The Body Multiple, Annemarie Mol offers a critique of Foucault’s work again on the grounds that Foucault is inattentive to the operations of particular actors. She is frankly skeptical about a singular episteme in which society “hangs together” (62), challenging both the generality and its structural, abstract character of the notion. Following Latour,

Mol claims that where knowledge and practices are concerned, “[Actors] may pick through what is on offer and take bits and pieces. They do not get overwhelmed by a coherent episteme” (64). The coherence of the networks thus

51 formed is “a material and a practical matter, not a question of logic” (65).

Foucault’s episteme is too general and his logic too abstract to offer a sufficiently textured and specific analysis for this project. Instead, we turn to Actor-Network

Theory, which rather than playing down Foucault’s constructivist and pluralist tendencies, intensifies them.

It is Michel Callon’s work on markets that provides our most useful entry into this theoretical perspective and a productive way of thinking about policy development. In The Laws of the Markets, Callon’s two essays concern the role of economics not so much in describing as in actively shaping the economy. Callon’s work is part of a body of work along with other scholars such as Bruno Latour and John Law (as well as Annemarie Mol) under the label of Actor-Network

Theory. Among Callon’s claims about markets, Latour’s claims for science and its objects (1987), as well as in Law’s concerns about methodology generally (2004), is the common assertion that the methods and techniques of study are not external to their objects but inextricably bound up with them and with the knowledge so produced.

So far, this is in keeping with Foucault’s constructivist orientation. The difference is in how the construction is described. As Mol’s critique would suggest, Actor-Network Theory is less given to abstractions than Foucault’s work.

For instance, Callon’s analysis of markets is less concerned with the logics or discursive regularities and more with the means by which these are transmitted.

Instead of simply describing what the logics are, Callon identifies the institutions and who develop, transmit and implement the ideas of economics in constructing

52 markets – for instance, workers and managers inculcated with economic theory via their training, not only as economists but also in other more practical fields such as accounting.

Policy does present a somewhat different case than any of these other fields inasmuch as, unlike science or methodology, we already expect policy to shape its objects – it is never simply a form of knowledge about them. However, Callon’s work on markets does provide an important point of connection with policy and offers some ways to think about its relation with its objects and the means by which it is developed. The link between policy and the construction of markets is perhaps easier to grasp than that with physical sciences. This link is strengthened by the way in which Callon describes markets. Markets depend on the presence of calculative agents to organize them and engage in the activities that make up a market. Calculative agency involves making decisions based on information.

Callon adumbrates it thus.

“(i) establish a list of possible states of the world…(ii) rank

these states of the world (which gives a content and object to

the agent’s preferences); (iii) identify and describe the actions

which allow for the production of each of the possible states of

the world.”

(Callon, 1998a: 4)

Callon does not mean by this simply to recreate the calculating individual who populates classical economic theory. First, Callon does not believe in this kind of

53 agency as an ahistorical reality but one that emerges under certain circumstances.

Second, the ability to calculate is not simply lodged in individual subjects but is a collective enterprise involving “material practices.” The point here is that calculation allows what Callon terms the ‘framing’ that is a necessary aspect of constructing markets. Framing is a setting of limits that allows the exchange to take place by detaching the exchanged objects from the network of their existing relationships and setting boundaries on the transactions such that they do become calculable. For instance, if one purchases a car, it is detached from its previous owner and the context in which it was produced. Framing also enacts the associations of commensurability necessary for exchange, via mechanisms such as pricing and currency.

Policymaking is not so directly concerned with exchange (although constructing markets can be an important aspect of policy, including cultural policy). However, Callon’s description of markets is embedded in an approach that sees all forms of action as framing. That is, to act is in a sense to frame as it involves enacting certain relations and detaching or suppressing others. It is not especially difficult to make the case for policy as involving calculative agencies similar to those at work in the construction of markets. Policy is also broadly calculative inasmuch as it attempts to envision a list of possible states, and to identify the actions necessary to bringing them about. The process is more or less the same. As Ostry puts it, policy “makes it possible to introduce reason and order into what we are already doing” (3). Moreover, policy making as we have shown does have a strong calculative aspect, in increasing use of the language and terms

54 of economics, as Wagman’s work suggests. As well, Callon’s work itself suggests such an application. First, he questions the conventional divide between the state and the market, noting that states are deeply involved in the construction of markets, playing a constitutive role rather than acting simply as an external other which regulates them from the outside (Callon, 1998a: 41). Further, in at least one example, government plays the central role in the maintenance of a market (in this case that for British beef during the mad cow disease crisis) through trade policies, certification of quality or safety and even outright personal endorsement of the product (1998b: 260-262).

It is interesting to note that the term frame has also been taken up as an analytic in interpretive policy studies. Drawing on the work of Erving Goffman

(as does Callon), Fischer defines the frame as “a principle of organization ‘which governs the subjective meaning we assign to social events” (2003: 144). Frames allow transactions because they provide a basis for mutual understanding. Just as importantly, “frames…select out some parts of reality at the expense of others”

(Ibid.). Schön and Rein (1994) have suggested that a reflexive awareness of frames is a useful way of identifying and potentially resolving disputes over policy. Callon’s use of framing has many similarities with this current in policy studies; framing enacts a certain version of reality by excluding others. Where his use is distinctive, and perhaps more elaborate, is in its relation to other aspects of

Actor-Network Theory, which looks to distributed forms of both agency and ontology. The versions of reality picked out and suppressed by frames work in terms of the associations and relations of the various elements. Indeed each

55 element is understandable more as a nexus of certain lines of association rather than a discrete object.

“The actor’s ontology is variable: his or her objectives,

interests, will and thus identity are caught up in a process of

continual reconfiguration, a process that is intimately related to

the constant reconfiguration of the network of interactions in

which he or she is involved.”

(Callon, 1998b: 253)

Thus in the framing that occurs in constructing a market, the severing of certain associations and creation of others means that the identity of the actors is not given but is in play as well.

This associative aspect becomes more important in framing’s counterpart, which Callon terms overflowing. Framing, Callon suggests, is never final. It is difficult to completely sever the associations of the various elements of a frame.

Associations overspill the boundaries and so the effects of a transaction are always more than what is assumed by calculation; actions have consequences that are unforeseen. Callon relates this to the economic concept of market externalities; that is, that which lies outside the frame of a particular market but is affected by it. A classic example would be the effects of pollution from a factory, which may not have been accounted for in its operation and financial planning. If such effects are to be accounted for they must be measured and related to the costs of doing business. Over-spilling begets more framing, as one tries to account for

56 these externalities. But as these elements are brought into the frame, they carry with them yet more associations that cannot be completely suppressed. Thus there is never a final framing of markets.

This model is an attractive one applied to policy development. It allows us to capture the (limited) purposive nature of policy development, as well as the absent-mindedness and ignorance, to which Meisel and Van Loon (1987) refer in reference to cultural policy development. It helps us to describe a process by which policy develops without assuming a particular rationale or a necessary endpoint. This avoids the same kind of instrumentalism that governmentality and other interpretive approaches also attempt to avoid. At the same time it renders the policymaking process a productive one, not just the working out of the implications of an overarching rationale. The combination of purpose and of unforeseen consequence seems particularly apt to Canadian music industry policy, where the ostensible object frequently begins as an externality, affected by policies designed for other purposes. The effort to account for the music industry in policy terms is, at least in part, what seems to drive policy development.

More recently Callon, Millo and Muniesa (2007) have invoked the use of

Deleuze’s idea of agencement or ‘assemblage’ as a way of describing the means by which markets are constructed. Their take on the assemblage reinforces the notions of distributed agency and variable ontology that is a feature of Actor-

Network Theory. Likewise, they highlight its material aspect, “constituted by fixtures and furnishings, by elements that allow the tracing of lines and constituting a territory” (3). Deleuze’s assemblage has strong affiliations with

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Foucault’s dispositif (or device), but it is more fluid, unstable and less orderly.

This emphasis on flows as opposed to structures is perhaps the central feature distinguishing Deleuze’s thought from that of Foucault (Deleuze, 1986/2006:

280). Deleuze also emphasizes the plurality of asssemblages, an important aspect for us (1962/1983: 3-4). This is also a feature of Callon’s claim of ontological variability for actors and one reason why the framing he describes with reference to constructing markets is never complete. Clinical practice might seem like a long detour for an analysis of cultural policy but such coexistent multiplicity is perhaps most fully elaborated in Annemarie Mol’s ethnography of atherosclerosis

The Body Multiple. Mol depicts different versions of the disease enacted by different contexts (clinical or pathological), by different techniques of diagnosis

(ultrasound, as opposed to symptomatology or blood pressure measurements) or by different treatments (surgical procedures such as endarterectomy as distinct from other therapies such as the walking treatment). While there is significant overlap between all these different versions, they do not necessarily describe the same object. This is not, however, to say that they are fragmented or have nothing to do with one another; they connect, but not in any single way.

Different assemblages coexist and overlap in a way that allows us to move from one to another. The process by which we can effect this movement is the same process by which policy develops. We use here the term ‘translation’ in the sense developed by Michel Callon in a number of articles over the past several decades (1980; 1986). Callon himself borrows the term from Michel Serres, where it appears as a major concept in his early work. Brown has characterized

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Serres’ use of the term as “the process of making connections, of forging a passage between two domains, or simply as establishing communication” (2002:

5). Callon mobilizes the term for a sociology of association (another term for

Actor-Network Theory). If an actor is defined through “the network of interactions in which he or she is involved”, then translation is the mechanism by which interactions are formed and transformed. Callon describes translation as

“creating convergences and homologies by relating things that were previously different” (1980: 211). Elsewhere Callon refers to translation as a process of

‘displacement’ and ‘transformation’ (1986: 215). Interests are changed and altered in the process. The result of translation is “a situation in which certain entities control others” and “the right of a few to express and represent the many silent actors of the social and natural worlds they have mobilized.” (Ibid: 216)

The associations that make up policy and the configuration of the assemblage that it enacts are the result of these processes of translation, which takes many forms – not only through political delegation but also through a multitude of devices of persuasion, force, negotiation and demonstration. From among the infinity of actors, interests and associations that are possible certain configurations, assemblages or frames, cohere, stabilize and persist, although only a few are more or less irreversible. They are, as already noted, open to contestation and it is the relative strength of these associations that is being tested.

The relative power of the actors in the process is relative to the strength of their claims to representation. Here one might suggest that the various state agencies’ relatively powerful position in policy development is buttressed by the strength of

59 their claim to represent the public interest – however attenuated or indirect this may be. It is not that the state’s claim is inherently different from those of the various interest groups; it simply claims to represent a larger group and this claim is that much harder to dispute. To some degree this helps to answer some of

Sterne’s concerns with governmentality. Representation is a central feature of

Actor-Network Theory’s account of knowledge and action. It is the means by which it bridges the gap between generality and specificity that Sterne finds in governmentality.

Thus we may begin to see how policy asemblages form and cohere. In this sense we find ourselves not all that far from governmentality. But one difference is that we are relieved of the task of describing an épistéme to contain these developments. In fact, we will be far more modest in our claims as to the extent to which a single assemblage extends. Another difference between this approach and governmentality would be an emphasis on the making of policy rather than an attempt to “discover a system.” The approach in this account is to avoid looking for a single rationale for Canadian music policy. There is very little evidence for such a rationale and in any case, there is little to suggest that this is the way policy gets made. What this looks like methodologically is that instead of outlining regularities we trace connections which may be in terms of ideas but which must also have some route of transmission that is not simply ideal but material, often, but not necessarily institutional. We look for the way in which the practices and entities converge to form both the Canadian music industry and in particular those policies that are a part of it. Canadian music industry policy does through this

60 period acquire some kind of unity – but this is achieved not by logic but by specific devices and actions that allow it to be framed as such. Nor is this unity fully achieved and irreversible.

The assemblages formed by various policies and the Canadian music industries are at the heart of this account. To say that together they form assemblages is to suggest that policies are in this sense not external to their objects. This removes the sense of policies acting upon certain objects as an outside force. It assumes continuity between industry and policy so that ultimately they are not really separable analytically. This is not to say that policy is without effect but these effects can only be understood within the set of associations that make up a policy and through which its agency is distributed. As we shall see, it is difficult to either explain or assess Canadian content regulations considered without reference to a certain set of relations between musicians, record labels and radio broadcasters, as well as recording studios and music publishers. The policy inserts itself in these relations and thus changes their configuration. It is in this sense that we might credit the policy’s considerable role in the development of a

Canadian music industry. To some extent policy enacts certain versions of the

Canadian music industry but this must be qualified. Policies do not enact these versions all by themselves. Borrowing from Law, we might say that they participate in the enactment of these versions (2004: 45).

But the main question here is how the policies themselves develop – not just before enactment but also afterwards. This also creates continuity with the object.

Policies also exist in a set of relations to each other and this is also useful for

61 understanding what they are. There is another overlapping assemblage of policies more generally, which hang together, not simply through the logic of government but through the instruments, and equipment that make it up. Thus, although

Canadian music industry policies have a distinctive history and shape, they are enmeshed in a set of relations with other policies as well, some of them ostensibly cultural, some of them not. The number of associations is very great and their nature equally various. Canadian content regulations for radio evidently relate to other broadcasting policies, largely by virtue of their being administered by the same branches and agencies of government. If there is a consistency in their enunciation this happens through such associations. Following Callon’s ideas of framing and overflowing, policies beget their own externalities, which generate more policies in an effort to stem the flow. We will also see this at work in the way the various policies under examination here relate to each other, as well as to other sets of policy altogether. This supplies us with one set of actors in the policy development process: the various bodies departments, agencies and commissions that carry out the work of government. In the case of copyright, we might identify a number of these, including the Copyright Appeals Board, the Department of

Consumer and Corporate Affairs, the Department of Communications and various fractions within each of these, as well as, no doubt many others.

There is, of course, absolutely nothing controversial in asserting that policy development is carried out by government. But policy development is not simply internal to the state’s various fractions. In assuming continuity with the policy object we also assume that the policy development is a result of those associations

62 as well. Here we should mention the considerable role, not only of the industries that make up the ostensible object of these policies, but also that of their representatives. In his account of pressure groups, Pross (1992) charts the rise of sectoral concerns in policy as the task of governance becomes more complex, technical and less understandable in terms of a general public interest. He asserts that government policy is increasingly defined more by sector than simply by geographical location. Although our elected officials represent interests defined by region, the administrative structure of government, populated by both cabinet ministers and bureaucrats is far more about various sectors of society and economy, only occasionally defined in terms of geography. As Pross notes, articulating the interests of those directly involved in these sectors has fallen increasingly to interest groups. Such groups play a considerable role in this history as interlocutors of government and as figurations of the sector. Their function of defining and articulating the interests of various components of the

Canadian music industry makes them an invaluable source of information to the government and allow the government to identify a group to whom they can address their policies.

Spokespersons for the industry are generally associations, charged with responsibility for representing their interests to governments, the public or to other industries. The ability of an association to speak on behalf of a ‘music industry’ generally (that is to enroll the interests of a number of distinct groups, including creators) rests on a set of assumed and relatively stable relationships that made up a certain configuration of the music industries. That most of these

63 have been primarily representatives of the recording sector speaks to its powerful role at the center of the dominant configuration of music industries over the last few decades. But it has not generally been feasible in Canada for any single group to claim to speak on behalf even of a single recording industry in this country.

This is because by far the largest part of the industry in Canada is made up of a few multinational record companies and the more numerous Canadian-owned independents only account for a small part of the market. This has been further complicated by the presence of a distinctive market in the province of Quebec.

There are several kinds of groups (here distinguished by function) that make up this set of actors. First, there are those groups whose primary function is to act as spokespersons. This would include the Canadian Recording Industry

Association (CRIA), l’Association du disque, de l'industrie du spectacle

Québécois et de la video (ADISQ), the Songwriters Association of Canada (SAC) or the Canadian Music Publishers Association (CMPA). Second are those which function primarily as collectives: as mentioned previously, Society Composers,

Authors and Music Publishers of Canada (SOCAN), Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada (SODRAC), the

Canadian Musical Reproduction Rights Agency (CMRRA), or the Audio-Visual

Licensing Agency (AVLA). Of these, SOCAN and SODRAC have been the most inclined to involve themselves in lobbying, perhaps because the others are more administrative units of larger entities (AVLA of CRIA; CMRRA of CMPA) than stand-alone bodies. There are also unions such as American Federation of

Musicians (AFM) or the Alliance of Canadian Cinema, Television and Radio

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Artists (ACTRA) and, finally, there are coalitions made up of other associations, such as the Canadian Conference for the Arts (CCA) or the Music Copyright

Action Group (MCAG).

This function of representation is not uncontested. To a large extent, what is important is whether it works or not. Can your claims to represent a group be challenged by others? Do those whose interests you claim to represent agree? To contest such claims is also a matter of representation, inasmuch as it aims at reconfiguring conceptions of the industry and announces different configurations.

In any case, the claim to represent even only one of the music industries is an attempt to include a number of different interests even as it excludes others. The representation of the music industries in Canada has thus been characterized by coalitions, which allow for more flexible and complex modes of representation.

Individually and collectively, these groups play strong role in policy development by articulating the concerns of the sector. In order to play this role, these groups must be able to legitimate their claims to represent these interests. To do this they must, to use Latour and Callon’s terminology (1981), ‘enroll’ a set of diverse interests and ‘translate’ them into their own. In our representative government, such questions are decided through elections and party politics. The process is far less clear and structured where such interest groups are concerned, yet this is still a political question, even if it is plays out within sectoral interests rather than amongst the general public. Again, this process of translation is central to our account, as it extends to the policy making process generally. Latour has suggested elsewhere (2005) that groups are constituted precisely by such

65 representation and it is certainly true that without representatives to speak for them, such groups are seldom recognizable, unable to act within the policy making process. Latour’s suggestion is based on Pierre Bourdieu’s account of political representation (1983/1991), which describes this process as “an act of magic” (204). The difference is that Bourdieu is largely critical of this process, while Latour is not.

Other forces are at work in policy development. In keeping with the material aspect of Deleuze’s assemblage, many of these other agencies are material or technical. Agency is by no means restricted to persons and groups of persons (one of the more contentious claims of Actor-Network Theory). These include the specific technologies involved, the objects with which we collaborate to make, circulate and exploit music. Radio transmission, compact discs, cassette recorders and many other technologies are necessary components of the assemblage. Their influence on the policy making process and their place in the relationships that make up the assemblage is considerable. Again, an account of

Canadian content regulations that leaves out the technology of radio broadcasting is very nearly meaningless. Likewise, copyright assumes the technical means of reproduction and has become increasingly preoccupied with defining these means.

Technical questions are thoroughly intertwined with policy in all of the cases studied here: Canadian content regulation, the Sound Recording Development

Program and Copyright. But to begin to clarify some of the relationships, it is perhaps best to examine their place in the music industries and at the same time to provide some background leading up to the period under examination.

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Configurations of the Music Industries

At the beginning of this chapter I suggested that the tendency to describe culture as a singular object of policy does violence to the diversity of the field, as well as that the music industry’s distinctive history and set of issues demands its own history. However, even within this more narrowly defined field we run into the same challenges. Trying to identify an originary moment or rationale for music industry policy is difficult, not because we cannot find any but rather because we can find several. The different histories of the policies present a challenge to the time frame of this account, from the late 1960s to the 1990s – one could start much earlier. Canadian copyright policies pertaining to music date back to before Confederation. The tariffs on imported manufactured goods, which both Paul Audley (1983) and Will Straw (1996) have identified as amongst the most important for sound recording were part of the more general framework of the ‘National Policy’, aimed at developing a manufacturing base in the Canadian economy in the country’s first decades. One might also start later, the first policy developed to address explicitly the Canadian music industry, the Sound Recording

Development Program, commences only in 1986.

The different time scales are only part of the problem. These policies originate within different sectors of government, with differing frameworks and are in most cases concerned with fairly specific aspects of the music industry in

Canada. Some of them apply to the music industry only incidentally, and all are embedded in different administrative institutional contexts. This presents a conceptual challenge. We risk losing the specificity of the policies in an overly

67 generalized account. But the argument here is not that there is no shared ground among these policies – they are certainly connected. Moreover, it is during this period during which the music industry first emerges as a quasi-autonomous and quasi-unified object of policy. The different policies begin to link up and converge. The term music industry policy may still mask a multiplicity but this multiplicity becomes more coordinated. There is also the risk that there is potentially no limit to the multiplicities we can extract from even as narrow a field as this. However, we can at least identify certain assemblages that achieve some wider currency. At least some of these can be traced through music and the music industry to policy and by starting here we look at how policy has selected from among these many possibilities. Some of these cluster around certain conceptions and enactments (hence the structure of this dissertation around Canadian content, the Sound Recording Development Program and Copyright) but throughout there will be an effort not only to discuss these policies in their distinctiveness but also to trace the ways in which they overlap and interact.

At least one reason for the variation in the policies is, again, the elusiveness of their object. John Williamson and Martin Cloonan (2007), argue convincingly against the conception of a single ‘music industry.’ Instead, they insist, we should refer to music industries in the plural, encompassing a set of related yet distinct activities around making money from music. In their own research on the Scottish music industries they identify eight distinct sectors: artists, composers and orchestras, live music, the recording industry, the media, other creative industries, ancillary services, education and retail (311). One could perhaps subdivide these

68 sectors even further or add others to the list – such as music publishing, instrument manufacturing, not to mention electronics manufacturing and communications companies, including ISPs and mobile service providers who derive at least some of their income, whether directly or indirectly from music.

Williamson and Cloonan’s point is by no means a new one. Other scholars have long suggested that the term should be pluralized (Straw, 1996). Moreover, the music industries are a moving target – their precise makeup and configuration is always changing (Jones, 2002). New uses for music and refinements in its commercial exploitation emerge and interact with existing ones. The history of musical commerce in the 20th Century includes forms as diverse as vaudeville, sound recording, instrument manufacture and radio broadcasting, among many others, and it is not only the particular forms but also the relations between them that mark important changes in this history. Many of those businesses involved with music commercially are also deeply involved in other kinds of business. For instance, Apple is indisputably involved in selling music yet it is also a computer manufacturer, a purveyor of information technology. What counts as a music industry is by no means clearly demarcated.

It is not enough to simply pluralize our terminology and conception. The music industries can be defined in any number of different ways at any given moment, depending on which elements and which relationships are emphasized or suppressed. Rather than thinking of the music industries as a plurality we should start thinking of them as a multiplicity (Deleuze & Parnet, 1977/2007). We will elaborate how this might be understood. The elusiveness of the object then is not a

69 result of fragmentation or absence but arises from a proliferation of connections and relations that may be configured in any number of ways. Again, while these differing configurations connect with each other and share many common features, they do not necessarily add up to the same object but they do not separate cleanly into distinct objects either. As we will see, conceptions of the music industry expressed by these policies are sometimes at odds with one another but they certainly overlap. Such multiplicity is not specific to the music industry (although the particular manner in which it is multiple may be). But the

Canadian music industry may offer a good route into examining these ideas in a policy setting because its multiplicity is more apparent and accessible.

Notwithstanding their specificity, the various assemblages that make up music policy have many associations, not only with each other but also with other areas of cultural policy. Again, there is a great deal of interaction and overlap rather than fragmentation and isolation. The challenge remains not to move from this to assume an absolute consistency or coherence. Cultural policy remains multiple, as does music policy. So we will have to address this multiplicity, largely because it is more or less impossible to ignore. We can begin to see the degree and extent of the multiple configurations available to policy by examining the successive concatenation of each of the terms of the policy object: “Music”, “Industry” and

“Canadian.”

Music

The industry’s ostensible commodity, music, is perhaps one source of this multiplicity. It is not so much that music resists a singular definition (although it

70 does) as that its forms and mediations are so various and so thoroughly intertwined with different activities. The means by which we make or listen to music, the situations in which we do so, the uses to which we put it are countless.

Christopher Small’s ‘Prelude’ to his book Musicking adumbrates a number of situations from the symphony concert, to supermarket Muzak, to listening to a

Walkman, to a church service and so on (1-2). Their very diversity is meant to challenge any essentialist notion of music, which Small reconceptualizes as activity rather than an entity (hence the title of the work). The formal, enclosed confines of the concert hall may appear first on the list but this situation has no priority over the other examples that Small offers. Whistling in the street, listening to Top 40 on your car radio or composing a concerto all partake equally of music. Again, this is not to suggest that music is more or less multiple in nature than other forms of art. It is simply that in the absence of any plausible alternative as to its essence, music’s multiplicity becomes our only recourse. In reference to sociologies of art, Antoine Hennion (2003) has pointed out that the elusiveness of music’s object has positioned differently in terms of debates over the production and reception of art; “music has nothing but mediations to show” (83). Like

Hennion, Small also emphasizes music’s associativeness. Music is not only a ubiquitous and diverse activity, it is also rarely autonomous. The examples he provides are notable also for the way that is associated with commerce, religion, patriotism or simple everyday activities such as working or walking. The occasions on which we use music bring it into contact with all of these spheres. If we were to remove music from these associations there would be almost nothing

71 left of it. The supposedly more purely musical confines of the concert hall, in which music is the focus of attention, are something of an anomaly rather than the norm. Even there, music’s autonomy is somewhat illusory. Concerts are, for all their silencing of the audience, intensely social events that mark participation of the members in a certain community. Music may be the focus, but it is not the only one. So when we music, to use Small’s construction, we are almost certainly doing something else as well, whether that is shopping, praying, working or walking. Much of music’s significance derives from this associativeness and this appears relatively early on in Canadian cultural policy, as in this passage from the report of the Massey Commission.

…[M]ost Canadians now in their thirties or older will recall

that the church organist and the church choir provided much of

the music of their earlier years… The great musical events of

the year were usually the concerts given by the local church

choirs, aided by a visiting celebrity…can we recall the final

number of the concert with the entire school assembled on the

rising tiers, charging into The Maple Leaf, a semi-tone too

high and half a beat too soon…[In] this new world of

television, of radio and of documentary films, it will be

unfortunate if we hear no more our choir and our organist in

valiant and diligent practice of the Messiah, making together a

gracious music that reaches us faintly but with great sweetness

across the quiet of an early winter night.

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(Canada. Royal Commission National Development in the

Arts, Letters and Sciences: 19-20)

Just as important, the means by which we make music involve us in a multiplicity of associations both human and non-human. Again, the concert involves not only the performers and audience but also a score, instruments, and by extension the composer and the instrument makers. Beyond this it also requires the hall itself, the staff who maintain it, those who built it and the many other actors involved in promoting and sponsoring the occasion. Setting up an event seemingly devoted to music, in a space where it can be the center of attention, isolated from other distractions from the activity of dedicated professional musicians, requires an enormous amount of participation of those we would normally consider outside of music, a point which Small also emphasizes (9).

This is no less the case with the other examples, Small provides. The Muzak in a grocery store requires speakers, playback devices, a whole technical and administrative infrastructure that reaches into any number of areas of manufacturing, engineering and commercial activity. Even the woman whistling while doing housework is herself a complex individual defined by many things besides music. Again, we can find references to the apparatus of musicking thirty years later in the Applebaum-Hébert Commission.

Recordings…[are] a pervasive feature of the social and cultural

landscape. Recordings…are with us at many times and in

many settings both private and public. Sometimes we play

them on sound equipment in our own homes, but just as often

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we hear them broadcast over the radio or publicly aired in

restaurants, department stores, elevators or airplanes. If we

wish we can even listen to recorded sound while jogging,

bicycling or walking down the street.

(Canada. Federal Cultural Policy Review Committee: 235)

The kinds of mediations mentioned in this passage, illustrate not only a considerable transition in the conception of music in Canadian cultural policy over thirty years but also indicate an awareness of the presence of a music industry in the form of recordings and broadcasting and of its importance to much of our everyday musical activity. The music industry is not external to music; it is merely another collection of the various mediations that make up music. Focusing on those with an industrial aspect helps to narrow our scope considerably but there are still many a great many such mediations.

Industry

The Canadian music industry is an open-ended set of configurations of such mediations, made up not only from diverse set of elements but standing in varying relationships to each other also. Thus any two elements might be related to each other in a variety of ways. The music industry is made up of associations but these are not stable and the borders are porous. Following Callon, the ontology of an actor is “intimately related to the constant reconfiguration of the network of interactions in which he or she is involved” (1998b: 253). This means that the interactions of the music industry and of its elements are a continually changing

74 object. Even if we settle on a limited list of actors (or elements, or mediations), their ongoing interactions, not only with each other, but also with networks that extend beyond our framework, mean that the defined object is in a state of flux.

There are many definitions possible and that these are somewhat unstable. One might term the various conceptions of the music industry configurations.

Although multiplicities are primarily coexistent, historical change is certainly one dimension of the difference between configurations – a recognition that what constitutes the music industry may change over time. The word industry itself possesses a certain periodicity, associated with the Industrial Revolution, which takes place roughly from the late eighteenth through mid-nineteenth

Centuries in Western Europe and parts of North America. That period saw new techniques in production that allowed for the automation of manual processes, such as spinning or weaving. Braudel (1979/1982) asserts that the difference between industrial and non-industrial production is largely one of scale, with the increase in scale made possible by technology, that industry is shorthand for

‘large-scale industry’ (297). What we seem to be dealing with then, is an increase in the scale of production brought about by technological processes – ‘organized mechanical production’ as Raymond Williams puts it (1976: 167). The music industry also belongs to a special class of industries, the cultural industries. The attempt to distinguish cultural industries from other forms of cultural production is complicated by the supposed nature of the commodity. Benjamin, who saw the industrialization of art occurring from the latter half of the nineteenth century on, attempted to assess the impact of the processes of industrialization on art. His

75 assertion that industrialization in art came after that for other kinds of commodities, and that it required a separate analysis, implied that the artistic commodity was essentially different from other kinds (1968). His approach also suggests that industry intervenes at the stage of reproduction rather than production. Frith’s brief history of music’s industrialization in the twentieth century (1992) describes this period with little or no reference to earlier practices around the commercialization for music. The implication is that before the advent of the now dominant aspects of the music industry, such as sound recording and radio broadcasting, music was more or less outside the framework of industrialization. Attali (1977/1985) also suggests that the concept of a music industry is more or less synonymous with the network of ‘repetition,’ an economy dominated by sound recording and its logics beginning in the late nineteenth century. It is still possible to argue that prior to sound recording music was simply imperfectly commodified by the commercial practices such as live performance – given its ephemeral nature – or music publishing, inasmuch as a score is only directions for a music performance rather than music itself. Live performance always has to be done over again, which means that it has “a fixed productivity level, so its costs go up as the productivity of the economy improves. In itself, therefore, the activity of performing cannot be profitable, and capitalists will stop investing in it.” (Ibid: 83-84) This is precisely the same difficulty identified by

American economist William Baumol, the so-called ‘cost disease’ of live performance (1984). While it has been argued that electrical amplification has provided some gains in productivity for live musicians (Laing, 2003), these

76 improvements are at best incremental. Productivity gains in line with those of the economy generally are achieved only through mediation, that is broadcast and recording, which allow for the same performance to reach much larger audiences dispersed spatially (broadcast) or both spatially and temporally (recording).

From a certain perspective this period is more or less that of the industrialization of music as a whole. The point of this is that the commercialization of music remained more or less at a craft or artisanal stage prior to the introduction of the technologies of sound recording and broadcasting.

But the result is that activities such as live performance become, in Attali’s words,

“auxiliar[ies] of repetition” (85). Miège (1984/1989) offers a critique of this definition of cultural industry that sees industry intervening only at the point of reproduction, transmission or distribution. The problem with such a view is that it ignores the intervention of capital at the level of production, before ‘the stage of reproduction or distribution.’ (Ibid: 41). Most cultural production is now mostly industrialized in its very conception. This is not so very different from Adorno’s conception of the culture industry and its products which are conceived in industrial terms, not merely reproduced through them (1941/2002). Though he has little to say about its origin, Miège’s implication is that industrialization is a historically determined state, the logic of which now informs almost all of cultural production. But, bearing in mind Miège’s more varied typology of cultural commodities, industrialization might conceivably start before the technologies of recording and broadcasting, with earlier commodity forms of music. The music industry, the elements that comprise it and their relationships change over time.

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Even if we accept Attali’s assertion that recording and broadcasting render other kinds of music commodities auxiliary, this scenario took some time to develop and it did so in the context of an existing music industry. If we look at the music industry in Canada in the late nineteenth century (the earliest it is really possible to assert the existence of such a thing) we would include instrument manufacture, music publishing and, perhaps, some aspects of live performance as the most prominent elements alongside the still nascent commodity form of sound recording. All of these are present in the music industry today in one form or another but there have been a number of new ones added, the relationships and relative importance of these have also been reconfigured in the process such that what they comprise is also very different. For instance, music publishing, which occupied a central position in the configuration of the music industry at this time, has been transformed almost beyond recognition in the intervening period. In the late nineteenth and early twentieth centuries it would have been tied to instrument manufacture, especially the piano, which provided a means for playing its scores

– a relationship noted by Weber (1978). It was also tied to live performance, which provided an outlet for musical compositions and potentially a publicity vehicle for particular titles. These connections were ramified by copyright laws, which gave composers and publishers certain rights concerning public performance of their works, and by business connections, ranging from informal alliances to ownership. However, these connections tended to support the printing and marketing of sheet music, which was the central activity of music publishers then but which accounts for only a very small fraction of that business today.

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Today music publishing now generates most of its income from its relationships with the sound recording and broadcasting industries, which over the period from the 1920s to the 1950s came to displace music publishing as the most powerful elements of the music industry (Garofalo, 1999).

This is only one example of how the music industry changes over time. A host of other types of business within and on the peripheries of these are in constant flux as technologies, business practices and cultures change. This ties the music industry into other types of industry, other networks of association, and it is through these connections that the music industry is first drawn into policy. If, during the first one hundred years of Canadian history, there was a music industry active in this country and policies that governed certain of its aspects, these policies were more or less completely subsumed under a number of other frameworks. Even if they were not defined as music industry policy at the time, we need to account for their development and their constitutive role in the creation of music industry activity in Canada during this earlier period. Many of the elements of a Canadian music industry, many of the relationships that would define such an entity, were already in place. And even as these configurations begin to cohere, they do so at different speeds. The configuration that places the recording industry at the center is a gradual development that shows up in policy over this period but it occurs in Canadian content first, followed by the Sound

Recording Development Program and, finally, by copyright revision. Even as this is happening, the industry is undergoing other changes, which will challenge the dominance of this configuration.

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Deleuze means the concept of multiplicity, however, not to be so much successive as simultaneous (Deleuze & Parnet, 1977/2007). If there are simultaneously different versions of the Canadian music industry it is not simply because we can choose to look at different elements that this designation might encompass, such as sound recording, or music publishing or live performance.

What matters at least as much are the associations between the elements. For instance, when Weber notes the relationship of piano manufacturing and music publishing in the nineteenth century, he notes the ‘increasing needs of music publishers’ as one force that led to the popularity of the piano. We could take this in a number of ways, all of them legitimate, but tying the two types of industry together differently. First, as we noted earlier, the piano provides a way of performing the scores printed by music publishers. In this sense a market for the piano creates a market for sheet music. There is a line in this configuration that runs from instrument manufacturing to music publishing via the purchasers of both. It could also mean that an abundance of popular compositions written or arranged for the piano provides an inducement to purchase a piano, as it provides a purpose for having one. In this case the line travels from music publishing towards instrument manufacturing. But Weber could also mean that in order to create a larger market for their sheet music, music publishers encouraged and participated in the manufacture of pianos at some level in order to bring about the first configuration. What matters here is not so much the two elements involved as the line described by their association and its direction beyond either element.

This brings other associations into the picture, which are also described by Weber

80 also, such as the mechanized mass production of pianos in Britain and America

(enabled in part by superior materials), which furthered the instrument’s adoption.

One could point to the activities of musicians such as Mozart or Beethoven, whose performances of their own compositions created a demand for these pieces.

The line not only joins the elements together, it also suggests a direction by tying them together as a result of the kind of relationship it assumes. Although there is a certain causality assumed by our discussion of Weber’s example, this is less the issue than the fact that there is multi-dimensionality to the relationship even between just these two elements. There are two points to emphasize again. First, the dimensions are not reducible to one another. Second, the relationship depends on each element’s other associations.

Canadian

Inevitably much of what we have just described applies to the development of the music industry worldwide over the past century and must be understood in that context. The music industry in Canada has never operated in a vacuum. In a sense it has always been merely one small component of a highly integrated global industry. To speak in economic terms, Canada has generally been a net importer of music and, hence, of the products of a music industry that exists mostly outside of the country. Where an industry has existed in Canada it has often been in the form of branch offices of foreign companies, as with the major record labels and music publishers or in the form of licensees of such companies, still largely reliant on these for their products. Such relationships entail not only the flow of musical goods such as recordings, sheet music, instruments or

81 playback devices but also of business practices and even personnel. Music is part of a global flow of culture and media and this has been the case since before

Canada existed as a nation. We can also see evidence of this participation in the increasing number of treaties and conventions around copyright goods (including music) to which Canada is a signatory. These also serve to increase Canada’s integration into a global music industry. To discuss the development of music industry activity in Canada during this period is therefore to speak of changes that were taking place in the music industry generally over the same time.

Our concern, however, is with Canada’s music industry specifically and we cannot entirely subsume this history under that of the global music industry. For all the various flows across our national border, the fact of Canada as a political, economic and physical entity intervenes in the process, diverting or slowing the currents. Trade barriers and fluctuating exchange rates are just two of the more obvious and specific factors that come along with political sovereignty. More general conditions, such the relatively small size of the market and its large territory all affect the diffusion of music of the technologies for making or reproducing music and even of musical styles. Differences in affluence, awareness, interest and access are all inflected through nationality and region such that the Canadian case cannot help but be somewhat different. Canada, although to a large extent integrated with a global music industry, has never been at the center of this industry. As is the case with our status as a net importer of music, this hardly makes us unique but does distinguish us from some a number of other territories such as the United States or even Britain. There are other features of

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Canada that do make our situation unique. Most notably the existence of a predominantly Francophone community in Quebec has led to a bifurcation of the music industry in this country (Straw, 2000: 178).

Until the 1960s here was little or no identification of much of what we would consider central activities comprising the music industries (instrument manufacture, sound recording or indeed music publishing) as specifically

‘Canadian’, particularly within context of culture. If any cultural significance was attached to the nationality of musicians or composers this did not extend to the nationality of the companies engaged in recording or publishing their work. In policy terms at least, identification of Canadianness in the products of the music industries was largely of the industrial-material kind that Wagman refers to

(2006). That is, ‘Canadian’ referred to the place of manufacture of the material manifestations of these works, whether as sheet music or phonograph discs.

Again, this is apparent in the relative lack of any reference to these activities in earlier cultural policy documents such as the Massey Commission Report

(C.RCNDALS, 1951). So although there were music publishers and record companies active in Canada throughout the twentieth century, these industries were for the most part engaged in the marketing and manufacture of music from outside of Canada. Such activity was hardly likely to mark these industries as

Canadian, at least in the sense of promulgating a Canadian culture. Nonetheless these industries would form the basis for the ‘Canadian’ music industry that emerged as some kind of unity in both policy and in popular consciousness.

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But even after ‘Canadian’ becomes a part of the discourse around the identity of the music industry in this country it is hardly a straightforward designation. There are different versions of it at work. As an adjective applied to the industry it may refer to Canadian-owned firms or it may refer both to these firms as well as to the local operations of international or multinational companies. As with any other branch-plant operation, the Canadian operations of the multinationals have expended considerable resources to Canadianize themselves in terms of infrastructure and labour (Bliss, 1970). Their territorial location is by no means irrelevant and their distinction from their parent companies has to some extent been recognized in policy (tariffs on manufactured goods for instance). As we noted in the introduction, their presence here has been an integral feature of the industry in this country. However, other versions of the

Canadian music industry would restrict the designation to those firms owned and controlled by Canadian nationals, which would exclude these foreign-owned companies. Again, we can find this in certain policies, such as the Sound

Recording Development Program.

There are aspects of other policies make little or no distinction between

Canadian and foreign owned firms (Canadian content or copyright), focusing instead on the nationality of artists. But nationality also has its different versions here. The openness of the designation with respect to artists creates even more ambiguity (an American citizen such as Neil Young who has not resided in

Canada for forty years is still officially Canadian under Canadian content regulations, as are recent immigrants from the United States such as Win Butler of

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Arcade Fire). The lack of consonance between Canadian artists and a Canadian industry further muddies the water – either of these artists would be a case in point. Young’s Canadian status is recognized in policy (Canadian content regulations), yet his success (in Canada or elsewhere) owes little or nothing to either to Canadian policy or indeed a Canadian music industry. Likewise, Win

Butler and his group, though resident in Canada is signed to American independent label, Merge Records.

Conclusion: Specific Configurations, 1970

Finally, what are the operative configurations of the music industry at the point at which Canadian music industry begins to come to the notice of policymakers? Two somewhat attenuated episodes mark the emergence of the

Canadian music industry as a quasi-autonomous and quasi-unified object of policy. The first is the enactment of Canadian content regulations in 1970 and of the discourse immediately before and after introduction of this policy. The other concerns the removal of neighbouring rights from the Copyright Act – a process that took place from 1968 to 1971. In the former case we see suggestions that there was no such thing as a Canadian sound recording and in the latter case, we hear assertions about the lack of any Canadian character on the part of the firms accounting for the mass of the market for sound recordings in this country. Based on this we can attest that even if there is no Canadian music industry as such prior to this period, there was certainly music industry activity in Canada. Each of these episodes also involves the development of government policy based on distinct but related conceptions of a Canadian music industry. These conceptions identify

85 particular configurations of the music industry that were to a large extent already in place. We will discuss these episodes in greater detail in the appropriate chapters but for the moment we can identify in basic terms the elements and the relationships that made them up, as well as the place of policy in these relations.

To some extent all of the policies we will discuss later concern themselves with radio broadcasting’s relationship to music industries – sound recording and music publishing, chiefly. This is already a clear theme in both episodes. But each case deals with a different aspect of that relationship. Any relevance of Canadian content regulations for the music industry assumes that it is the industry (both music publishing and sound recording) that supplies the music that radio broadcasters play. This indeed had generally been the case for commercial radio since the mid 1950s Any assertions that the policy could assist the music industry or Canadian artists is premised on the notion that airplay promoted record sales.

Again, this was generally accepted – record company promotional practices had for some time centered on obtaining airplay for their recordings. This relationship, outlined admirably well by scholars such as Paul Hirsch (1972) is indeed of primary importance at the time. This association, often characterized as symbiotic, had not always been the case. When broadcast radio first appeared, it was generally seen as competitive with recordings (Sanjek and Sanjek, 1991). The idea of neighbouring rights rests on the same elements in association (sound recording and radio broadcasting). Again, there is the assumption that radio relies on a sound recording industry for its programming but here the assumption is that radio benefits more from using the recordings as programming than the recording

86 industry obtain in terms of promotional value from this – hence the rationale for royalties for airplay. Nonetheless, between these two episodes we can see a certain consistency on the part of the government who moved to eliminate these rights as soon as the recording industry began to assert them. Indeed there are a number of common assumptions that underlie both episodes and begin to provide a sense of how the industry was pictured by policy makers. The view of the industry enacted here is that music industry is primarily a recording industry and that the creative inputs for this industry emanate largely from composers and songwriters and to a lesser extent from performers. Record companies are at the center of the process and derive their income from the sales of recordings to consumers, and they depend upon radio stations to promote these recordings. It is not an unreasonable or incorrect version of the industry but it is far from complete and it ignores certain other versions of the relationships between these players. It is broadly consistent with the version outlined in Hirsch (1972) and one of those that Garofalo (1999) identifies in retrospect; it is still to some degree a valid construction. In both cases the industry is also presented as dominated, at least at the time, by foreign corporate interests.

But what is also interesting here is that despite the simultaneity of the two episodes there is very nearly no reference to the other in the discussions around each issue. In the CRTC hearings on Canadian content in the spring of 1970, the only mention of copyright occurs with regard to performing right societies representing music publishers, such as CAPAC. No reference is made to the confrontation between the federal government and the Canadian Record

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Manufacturers Association (CRMA - the forerunner of CRIA) over performing rights in a sound recording (so-called neighbouring rights). In fact, the CRMA itself did not take part in the CRTC hearings. At the same time, during the

Commons and Senate debates and committee hearings concerning Bills S-20 and

S-9, concerning amendments to the Copyright Act, there are only fleeting references to the Canadian content regulations just then coming into force. Part of the reason for this separation is indeed the different venues in which they took place (or the different state apparatuses, if you like): one the arms-length broadcast regulator with quasi-judicial status and the other the legislative assembly. Such separation is one way in which the government itself preserves the multiplicity of the conceptions and avoids some of the conflicts between them.

This is where the versions of the industry begin to diverge. Canadian content takes the lack of a Canadian music industry as a point of engagement, a situation that can be addressed by policy. The debates over neighbouring rights take this situation as a reason to exclude the recording industry from culture. The recording industry appears, albeit indirectly, as a vehicle for promulgating

Canadian culture in the former case. Commentators and witnesses, both opposed and supportive, broadly assume that as the regulations are enacted, record companies (major or otherwise) will sign Canadian talent. The recording industry plays a useful role in furthering Canadian national culture. The debate around the removal of neighbouring rights from the Copyright Act downplays the cultural aspect of the record industry. Inasmuch as nationalism appears here, it is directed against the recording industry, identified as both alien and essentially uncreative.

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But the uncreative aspect is merely a justification for removing cultural considerations from the debate. If recording companies add little or nothing to the creation of culture, then a bill that is against their interests will have no deleterious effect on culture. Nationalist anxiety is primarily economic here – directed at the prospect of Canadian-owned broadcasters paying foreign-owned record companies who will then take most of the monies out of the country, with negative effects on the balance of trade.

The policies are different in terms of their version of the music industry.

Canadian content, begins to associate that industry with cultural, nationalist concerns, focused on the role that the various components make in the production and diffusion of culture, whereas the other posits a music industry that is centered largely on the manufacture of physical goods, copied from originals developed in other countries. One points forward to a place for industry in cultural policy, whereas the other looks back to at least ignore and at most deny any such association. Both views will persist to some degree and it is their engagement and partial integration that characterizes the development of Canadian music industry policy over the next thirty years.

i Sterne’s critique of governmentality and of cultural policy studies is largely concerned with its lack of an account of representation. Although this is more of a problem for the cultural policy studies of Tony Bennett, etc., which requires an actual engagement with the state in policy development (On what basis? Whom do you claim to represent in this?), the gap between the general categories of Foucault’s thought and specific interests of individuals that results, is very relevant here.

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Chapter Two: Creating a ‘Canadian’ Music Industry: Canadian Content Regulations, Part I

Canadian content regulations for radio command a crucial place in the history of Canada’s music industry policy. This is so not only for their role in making the airwaves accessible to Canadian music, but also for highlighting the period during which Canada’s recording industry underwent considerable expansion. Indeed, we ascribe to these regulations a tremendous efficacy, holding them to be the cornerstone of policy for the music industries. They have been credited with the development of an English-Canadian recording industry in the

1970s, for instance the claim that the industry was simply “spawned” by the regulations (Grasky, May 11, 1974). While undoubtedly such claims are simplistic, the regulations did play an important role in this expansion. Just as important for us, in terms of policy development, they are of fundamental importance in definitively bringing Canadian popular music and the music industries into the ambit of cultural policy and Canadian nationalism. As we discussed earlier, prior to these regulations, neither had figured within the cultural policy discourse. Ultimately, the policy would also play a role in establishing new forms of relation between broadcasters and Canadian record companies, resulting in both a part of the rationale, as well as the administrative form, of subsequent policies to support the recording industries. Although a policy explicitly aimed at the music industries would not emerge for some fifteen years after the regulations were first announced in 1970, one can clearly detect their influence on that development via a number of associations. This influence was perhaps even more a result of its limitations and even failures than of its success.

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The durability of the radio regulations is notable as is their more or less unchanged status since their initial formulation. As enacted, beginning in 1971, the regulations required AM radio stations to devote 30% of musical programming to Canadian selections. Selections are defined by the four point

MAPL system devised by Stan Klees of RPM Weekly. Briefly, the components of

Canadian content for radio are, according to the MAPL system:

M (music) -- the music is composed entirely by a Canadian.

A (artist) -- the music is, or the lyrics are, performed

principally by a Canadian.

P (production) -- the musical selection consists of a live

performance that is (i) recorded wholly in Canada, or (ii)

performed wholly in Canada and broadcast live in Canada.

L (lyrics) -- the lyrics are written entirely by a Canadian.

(CRTC, 2001: 1)

Apart from a very few adjustments, which we will document in the next chapter, the MAPL system remains much the same now as in 1970. The application of these regulations was widened to encompass both music-based television (in

1983) and became the predominant programming policy for FM radio (in 1991).

As well, the level for radio increased to 35% in 1998.

The Policy Context Ryan Edwardson (2008) presents an excellent history that encompasses not only the radio regulations but also broadcast policy within a larger context of

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Canadian cultural nationalism. This history also includes other art forms (as well as their attendant industries), and, just as important, the field of education, particularly universities. The extent and breadth of this history support one of the major claims of this account, that the creation of Canadian music and the support of a domestic music industry were hardly the inspiration for the policy. While music plays a highly visible (or should it be audible?) role in this history, it is hardly the most important aspect and is, in relative terms, a latecomer to this process, merely one of a suite of the cultural means by which policy has pursued

Canadian nationhood (5). Moreover, music and the music industry were enfolded into Canadian content policy through an association with broadcasting rather than in their own right.

Radio was one of the first areas of government intervention in culture

(Edwardson: 11). The popularity of the medium and the proximity and availability of American programming prompted concerns about national sovereignty.

Concern with Canadian programming is implicit from the beginning of Canadian broadcasting policy with the Aird Report stating that “…the primary purpose [of the Canadian Radio Broadcasting Company] should be to produce programs of high standard from Canadian sources” (Canada.Report of the Royal Commission on Radio Broadcast [C.RCRB], 1929: 13 – italics mine). The broadcast system that ensued was dominated by public broadcasting for nearly the next three decades and as the originator of much of its own programming, the Canadian

Broadcasting Commission (CBC) ensured a steady supply of Canadian programming. Canadian content regulations were created to deal with a system in

92 which private broadcasters had begun to play a much greater role. In the wake of the 1957 report of the Royal Commission on Broadcasting (the Fowler

Commission), John Diefenbaker’s newly elected Conservative government moved to reshape the broadcasting regime in Canada to make room for an increasingly prosperous and influential private sector (Raboy, 1990; Stewart & Hull, 1994).

The major element of this change was the creation of a separate regulatory authority for broadcasting (previously the CBC had overseen the system), the

Board of Broadcast Governors (BBG). This marked the transition from the

‘single-system’ of Canadian broadcasting, in which the private sector had played a subordinate role to the CBC.

During its ten years of existence, the BBG inaugurated a regime of broadcast regulation that would be continued and refined under its successor the

Canadian Radio-Television Commission (later the Canadian Radio-Television &

Telecommunications Commission) CRTC). Much of this regulation was concerned with managing competition within what was increasingly a private system, particularly with the still new medium of television. More relevant to this account, the BBG was also responsible for introducing the first Canadian content quotas in broadcasting, again in television. These were first developed in the summer of 1959 and proposed 55% Canadian content, assessed over each week

(Stewart & Hull, 1994), to be phased in over three years. Private broadcasters were the most vocal and steadfast opponents of the regulations (Ibid.); nonetheless, they had been designed with the private broadcasting sector in mind.

Raboy (1990) asserts that they were developed by a free-market minded regulator

93 to show that private broadcasting could be made to serve the national interest just as well as a public broadcaster (145). Certainly the quotas were seemingly unnecessary for the CBC, which was already programming Canadian content well in excess of these targets (66% and 85% for the English and French networks, respectively (Stewart & Hull, 1994: 31)). This points to a substantial increase in the private broadcasting sector’s political influence and status over the period.

The most marked sign of this was the growing prominence of the association representing their interests, the Canadian Association of Broadcasters (CAB), formed in 1926, to negotiate with music publishers over the newly instituted performing rights for radio broadcast (Allard: 1-2). Since then the group had evolved to advocate on behalf of private broadcasters generally. With the establishment of the BBG, CAB moved to ensure that their voice would be among the loudest the BBG heard, scheduling regular, informal meetings with the BBG and its staff members and cultivating a consultative rather than adversarial role with the new regulator (Allard: 36). The strategy was largely successful; the BBG consulted regularly with both the CBC and with CAB, which acted on behalf of private broadcasters. This culminated in the so-called “Troika” of the three organizations, which began deliberating on an overall direction for Canadian broadcasting policy in 1963, after the Liberal government returned to power.

Having concerned itself with television first, the BBG turned its attention to radio. Hearings on radio policy took place during 1961 on various matters, including programming regulation. But in November 1961 the BBG announced that there would be no similar content requirements for radio. Its explanation was

94 that “while [it] considered various methods of enforcing a Canadian-content minimum for radio stations, it was unable to conclude that any of the possible alternatives was administratively feasible” (Limits Relaxed…, November 11,

1961:16). Edwardson notes that in the proceedings of the Standing Committee on

Broadcasting and the Arts, the explanation proffered by the BBG was that “a percentage format might not be the best way to measure [Canadian content] in radio.” (2008: 313, n. 47). Another explanation offered after the fact was the BBG felt that small stations would have difficulty meeting the quota (Braithwaite, April

18, 1963) – which first raises the issue of the supply of Canadian music. Instead, the BBG opted for a more informal method, directing stations to report at the end of each fiscal year the ways in which each had “promoted and insured the greater use of Canadian Talent” (Limits Relaxed…, November 11, 1961: 16). This measure would have later consequences for the formalization of Canadian Talent

Development (CTD) measures and, ultimately, the administrative structure of the

Sound Recording Development Program (SRDP). For the moment, however, the measure was in a sense a substitute for the more concrete and definite measure of content quotas.

It is difficult to say just what the BBG found “administratively unfeasible” about content quotas for radio. Presumably, similar measures for television and indeed for the commercial content of radio were not so difficult to enforce. Nor would the enforcement of such regulations on radio ten years later seem to involve such insuperable difficulties. Another aspect that may have made the imposition of such quotas a low priority was the nature of the programming, made

95 up of “rock ‘n’ roll and other canned “popular” music” (MacDonald, March 19,

1959: 35). The relatively low opinion of such programming held by policy makers is conspicuous in policy documents of the period. The Fowler Commission, writing in the mid 1950s, was generally critical of the increased reliance of radio stations on disc jockeys, recorded music, and of the preponderance of popular music generally – a fact broadcasters seem to have been well aware of even as they submitted briefs to the hearing; CKEY referred to their popular music programming as “the recorded folk music of the American continent”(Canada.Royal Commission on Broadcasting [RCB]: 46). The

Commissioners were not persuaded. Commenting on the evidence they received, the Commission noted that private broadcasters were criticized for programming that was “unimaginative and contained too high a proportion of disc jockey and give-away types of programmes…tending to level off their programme standards at the lowest common denominator” (C.RCB: 41). Such comments indicate a conflation of Canadian content with higher culture, as does much of the Fowler

Commission’s report, (what Edwardson refers to as Masseyism in reference to the elitist tone of the Massey Commission’s report (2008: 9)), It also suggests the perception that if private radio’s programming was deficient, it was in so in nearly every respect, not simply in a lack of Canadian material. This was certainly evident in the BBG’s 1959 warning about cracking down on “rock ‘n’ roll” stations (MacDonald, March 19, 1959). But although the Commission and the

BBG noted and disapproved of the situation, neither did much to address it.

Generally the BBG showed itself reluctant to regulate radio on most matters,

96 choosing, as one Globe and Mail article put it, “to use persuasion rather than regulation” (Stations Considering Directive from BBG, July 20, 1961: 8).

There was no discussion of the implications for a domestic recording industry in the debate. The idea that Canadian content on radio could be mobilized to stimulate the production of Canadian phonographs does not seem to have occurred to either policy makers or to anyone else for that matter. The BBG had announced in a clarification of the regulations for Canadian content in television that “The purpose of Canadian content regulation is to stimulate

Canadian production” (BBG, June, 15, 1962: 1). Yet this had a very different context in television at the time, during which the television stations produced the majority of the programming themselves. It remains the case that most television programming is still specifically created for television and paid for by broadcasters. The situation for private radio was quite different inasmuch as stations did not produce their musical programming themselves, nor did they pay for it (beyond the copyright tariff paid to performing rights organizations CAPAC and BMI Canada). Rather, musical programming came in the form of commercially available phonograph records, produced by record companies. That there were few commercial recordings produced in Canada appears to have been accepted as simply a fact and if there was a sense that Canadian radio could do more to help artists, there was no suggestion at the time that this assistance could extend to a music industry.

After the election of Pearson’s Liberal government in 1963, debate and discussion over broadcast policy renewed. Consultations between the BBG, CAB

97 and CBC (the “Troika”) were followed by the Fowler Committee on

Broadcasting. W.H.N. Hull, in collaboration with the BBG’s erstwhile chair,

Andrew Stewart, published a history that defends the body’s record. But even they admit that by this time the BBG had come to be perceived by many in government and public as ineffective, hamstrung by political wrangling and lack of direction from above (1994: 20-25). The BBG’s perceived reluctance to regulate private broadcasters (the lack of Canadian content for radio being a case in point) and the lack of clarity in its relationship with the CBC were among the criticisms leveled at it. Alongside of these defects were the pressures on the broadcasting system introduced by new technologies such as cable television. All of this led the Fowler Committee to recommend that the BBG be replaced by a new regulatory authority as part of a new policy regime for broadcasting (Raboy:

162). Out of this came the government’s White Paper on Broadcasting in 1966 and two years later a new Broadcasting Act that established the Canadian Radio and Television Commission. The replacement of the BBG by the CRTC in 1968 may not have been all that radical – after all many members of the Commission were simply moved over from the BBG. Nonetheless, the CRTC under the leadership of recently elected Prime Minister Trudeau’s long time associate,

Pierre Juneau, seemed to be more willing to address some of the issues that had languished under the BBG.

The CRTC’s formation introduces an important actor into Canadian music industry policy. From its inception up to the mid 1980s the broadcast regulator was the instrument of government of the most relevance to the Canadian music

98 industries. This was largely a matter of default – in the absence of any policy aimed specifically at the music industries, Canadian content regulations served as the closest point of contact with government. However, the CRTC as a broadcast regulator could only address the Canadian music industry via conditions imposed on radio broadcasters (through Canadian content or through off air requirements such as Canadian Talent Development). It was not then, nor is it now, the mandate of the CRTC to support the Canadian music industry but to regulate the broadcast industry. This imposed limitations on the CRTC’s ability to develop a Canadian music industry. It could not commit any government money to the industry, nor could it set policy outside the powers granted to it through the Broadcasting Act.

The music industry would always remain to some degree an externality in the policy frame of Canadian content.

The Industrial Context

As such, the policy’s effect on the Canadian music industry depended on a configuration of the music industry and radio broadcasting that had evolved over the past several decades. There are a number of dimensions to this relationship and all were involved with the policy to some degree. It was via these dimensions that the music industry could become an object of the CRTC’s attention at all. But they were not enough on their own; popular music (and the music industries responsible for creating it) would also have to become seen as a possible vehicle for the expression and cultivation of a Canadian cultural identity, in keeping with the wider aims of the Canadian content project that Edwardson describes (2008).

In policy terms the regulations that resulted were aimed at ensuring that radio

99 broadcasters assisted, in the words of the Broadcasting Act, in the creation of a broadcasting system that was “predominantly Canadian in content and character”.

The form and conception of these regulations are premised on that medium’s use of music as programming. In order to be effective the policy had to mobilize this fact, to translate it in service of the Broadcasting Act. Music has been a staple of radio programming since the practice of broadcasting first developed in the late teens and early twenties. The degree to which radio relied on music would vary over the decades but even today it remains the predominant element of programming. This basic relation encompasses a number of particular and distinct associations, which together assemble into a configuration of interests, conflicts and alliances. These relations have their own history of development, which substantially overlaps but which are not entirely congruent.

First, there is a supplier and user relationship. Those who produce music such as performers or songwriters supply the material that radio broadcasts.

However, by the time radio appeared, access to both performers and compositions was mediated by a number of enterprises involved in the commercialization of music, including booking agencies, music publishers and record companies. Much of the music available for broadcast was owned or controlled by such enterprises through a combination of economic and juridical arrangements. In some degree this arrangement was vital to radio as it helped both to stimulate production of musical material on a scale suitable to an industrial enterprise such as broadcasting, as well as to organize its marketing in a way that made it accessible.

Copyright, is another aspect of the supplier/user relationship and one that had to

100 some extent already been addressed by policy through copyright law, in Canada as elsewhere.

The question of the value of music to radio has been informed by another, converse relationship between the two industries. Radio also serves a promotional role for music industries with the result that these industries have devoted considerable resources to securing airplay for their material. In light of the considerable revenues from performing rights coming to songwriters, one form of pay for play that arose around radio was that of ‘cutting in’ the performer or programmer – that is, giving them a partial songwriting credit in exchange for their use of the composition. Such arrangements were eventually termed ‘payola’, first by Variety in 1938 (Sanjek & Sanjek: 74). Radio’s considerable power as a promotional tool became increasingly a feature of its relationship with the sound recording industry, which gradually displaced music publishing as the most lucrative sector of the music industry. This situation led to the music industry

‘payola’ scandals in the United States in the late 1950s but it also underlay one of the most celebrated aspects of Canadian content as a policy – that is, its role in stimulating the growth of a Canadian recording industry. Such an effect, even if it was not the expressed intent of the CRTC in developing the policy at that time, was certainly a theme in media coverage, even before the regulations were announced. In 1968, a series of articles by Walt Grealis in his weekly trade magazine for the music industry in Canada, RPM outlined some of the benefits that would accrue to Canadian artists and companies from such regulations. Later that same year, Ritchie Yorke published an article in The Globe and Mail “Can a

101 law put Canada on the hit parade” that began with the question “Why is there virtually no domestic record-producing industry in English Canada?” (August 24,

1968: 1). The article clearly pointed the finger at Canadian radio stations, which had little or no Canadian music on their playlists. The assertion was that without the publicity and promotion afforded by airplay, Canadian recordings were unlikely to sell and without that prospect, Canadian artists were unlikely to be recorded. Again, this assertion contains at least two other assumptions. One was that the implicit acknowledgement that the recording industry was now at the centre of the music industry. The other, more explicit assumption was that airplay was the essential element in promotion of recordings.

This is the same music industry configuration on which Paul Hirsch based his analysis of the recording industry, in particular his description of the role of

“surrogate consumers” (1972: 651). Hirsch points to such use as arising from marginal differentiation between products, regulation of access to consumers by

“independent gatekeepers” and prohibitions, either economic or legal, against direct advertising to consumers (652). Radio with its wide and easy access to consumers played the role of gatekeeper for the music industry. In relation to the sound recording industry, this role had greatly intensified and was arguably at its height at the time of both Hirsch’s research and of Canadian content regulations.

This intensification takes place partly as the result of radio’s turn to disc jockey’s and recorded music in the wake of television (Douglas, 1999; Fornatale and Mills,

1980). Earlier in its history the radio broadcasters had been more responsible for creating their own programming. During radio’s ‘Golden Age’ (about 1933-1948)

102 in particular, radio networks produced much of their popular radio programming themselves. With television’s arrival a great deal sponsorship and advertising revenue (and along with them programming resources) departed from radio, which began to utilize recordings as a relatively cheap form of programming. The rise of rock & roll in the 1950s coincided with radio’s turn to records. The independent labels (who were largely responsible for producing rock and roll records) were generally such low margin operations that direct advertising was not an option and devoted most of what budget they had to promotion (Sanjek &

Sanjek: 87). With the gradual ascendance of rock over the 1960s and the major labels growing involvement in this genre, radio promotion solidified its position as the primary marketing strategy of the recording industry.

As we noted earlier, many Canadian radio stations, like their American counterparts, also turned to recordings as the predominant form of programming.

Rock and roll had also become a more popular choice of music in Canada by this time, with stations such as CHUM in Toronto leading the way. CHUM’s Top 40 rock and roll format, adopted on May 27, 1957, led, eventually, to its becoming among the most influential stations in the country (Farrell, 2001). As in the United

States, record companies targeted the station as a promotional vehicle for their latest releases. Anecdotal accounts such as Farrell’s refer to myriad tactics for gaining airplay included playing records for station representatives with , of course, with much verbal persuasion but such tactics could be much more elaborate, including arranging on-air artist appearances, promotional events and involving stations in concert promotion (2001: 166-168). The parade of record

103 company representatives indicates their considerable involvement with radio but it is also apparent from Farrell’s account that very little of this effort involved

Canadian artists. And although one would hardly expect a book as anodyne as

Farrell’s to mention it, there seems to be little evidence of ‘payola’ practices in

Canada. A front-page item in the Toronto Star in December, 1959, referred to meetings between the Board of Broadcast Governors and the Canadian

Association of Radio and Television Broadcasters (as CAB was then known), giving the industry a clean bill of health (McGuffin, December 5, 1959). The consensus, according to the industry and regulators, was that Canadian stations were simply not important enough to warrant such tactics (Bell, November 14,

1959). This is perhaps not that surprising, given that much of the ‘payola’ in the

USA involved ‘cutting in’ practices such as giving disc jockeys songwriting credits or other financial interests in the music. The companies involved with this did not operate directly in Canada and so opportunities for this kind of influence were simply not there. Nonetheless the influence of stations such as CHUM on the music market was considerable, especially as rock and roll expanded in popularity. Their use of promotional devices such as the CHUM chart, had an effect on record sales which was taken up by retailers such as Sam the Record

Man, a family business moving out of appliances and exclusively into records

(Farrell: 164). More than any other association with the recording industry, it was this promotional aspect that led to the assertions of Yorke and Grealis that a healthy music industry in Canada depended on access to airwaves.

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Implementation

The first extended discussion of the relationship between airplay and the music industries under the authority of the new Commission occurred during June

1969 at the CRTC hearings on FM Broadcasting held in Montreal. At this stage the CRTC was considering FM as a possible vehicle for Canadian content. At the time of the hearings FM radio accounted for only a fraction of the stations and listenership in Canada and, in this nascent status, the imposition of more demanding programming regulations was less threatening to the broadcast industry. In fact, Allen Waters of CHUM, who had operated an FM station alongside their AM service for five years, stated that “FM is ideally suited to showcase Canadian talent,” although he went on to say that “the amount of each broadcasting would have to be dictated by the size and scope of the talent pool available and the resources of the licensee” (CRTC, 1969: 182). Other broadcasters were more circumspect in this regard. The commissioners specifically raised the issue of Canadian content quotas with a number of witnesses. They also heard from the proprietor Canada’s most prominent independent of the day, Phil Anderson of ARC Records, who detailed the difficulties faced by a company marketing Canadian music in the absence of support from broadcasters.

At the present time, and in the past years, Canadian produced

talent has received no serious support, or at the most,

inconsistent local support from broadcasters in both AM and

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FM. For the sake of the future of Canada, an English-Canadian

music industry must be developed, but it will not develop

without the very active co-operation, either forced or

voluntary, of the broadcasters.

(CRTC, 1969: 216-17)

Anderson’s description was framed in nationalist terms, invoking the tremendous interest in music on the part of youth and its mobilization in service of Canadian unity and identity. These were terms the CRTC commissioners evidently found compelling (Commissioner Cormier went so far as to personally congratulate Anderson on his brief (CRTC, 1969: 229)). But when, some months later, on January 12, 1970 the CRTC proposed Canadian content regulations, they were for AM radio stations. Beginning October 1, the proposal called for 30% of programming to be either performed, composed, written (as in lyrics) by a

Canadian or recorded in Canada, with the requirement that one year later, two of these four conditions be met in each selection. The Commission called for hearings to be held in Ottawa to hear the input from the various parties affected by the regulations. Some weeks later, on May 22, 1970, the Commission announced the regulations – more or less unchanged from their original form. What was different was that they were to begin taking effect in January 1971, rather than

October 1970. Yet they still had the same three-year gradual rollout.

All of the configurations and of the relationships between radio and the music industry to which we referred earlier were in play at the hearings into

Canadian content held April 1970 in Ottawa. The interests various actors involved

106 in them were not consistently present, however. Apart from the CRTC itself the most prominent role in the hearings was played by the broadcast industry. The majority of witnesses were broadcasters. As well as the CBC/RDC, which sent a delegation of 8 witnesses, there were also about ten presentations from private and community broadcasters at the hearing. Private broadcasters’ interests were also represented by the Canadian Association of Broadcasters (CAB), which sent a delegation of thirty-four, including mostly private broadcasters – by far the largest at the hearings. This is hardly surprising – these were after all broadcast regulations first and foremost and their most immediate impact would be upon radio broadcasters.

The question of supply was a central one in the 1970 public hearings held by the CRTC on the introduction of Canadian content regulations. It was clear that if there was to be music on radio, the bulk of this was to be produced under the auspices of other industries, notably music publishing and sound recording.

The notion that a music industry is necessary for the supply of music for broadcasters underpins one of the arguments against Canadian content regulations advanced by the Canadian Association of Broadcasters (CAB) during the hearings. In CAB’s presentation on April 16, 1970, CAB Vice-President of Radio,

Don Hamilton claimed that “Canadian broadcasters…do not…have the support of a major film and recording industry essential to predominance in the pure

“entertainment” field.” (CRTC, 1970: N56). In his testimony Hamilton adumbrated the various components of the music industry, as well as the stages involved in creating music that could be programmed by radio stations. He

107 referred to “the basic elements in the music industry” as “A creator; the

“publisher”; the performers; their “agents”; and the recording industry” with the

“key factors” being the publisher and the agents of the performers, particularly in terms of “their interlocking relationships with promotion and publicity.” (CRTC,

1970: N60). Throughout his testimony Hamilton outlined a configuration of radio in relation to other cultural industries as suppliers not only of programming, both directly (as in recordings or compositions) and in terms of developing the talent that would appear on radio. He likened the broadcasting station to “a dairy in that it buys raw materials from various sources in various places and melds these together in its final product” (Ibid.). This notion of music as “raw material” for radio programming was reinforced by testimony from other witnesses from the

CAB delegation (although radio clearly did not ‘buy’ its music). It is also clear that this ‘raw material’ was not to be sourced from performers or songwriters directly but via the music industry, composed of record companies, music publishers, booking agents and others. In fact, far from ‘raw material’ it demanded a certain amount of processing before radio could use it. We must acknowledge that much of the testimony from Hamilton and other witnesses from the broadcast industry was aimed both at pointing out the difficulty that radio programmer’s would have in meeting a proposed requirements and at diminishing radio’s responsibility for developing Canadian talent. However, there was nothing incorrect in this account of radio’s relation to its programming, especially with regard to then current practices among North American broadcasters. Even in the early years of broadcasting, the use of music on radio was considerable and if

108 much of it was not produced under the auspices of a record company, the vast majority of the compositions that these performers played were already the product of another music industry, publishing.

Among the other witnesses appearing at the hearings were delegations from the Canadian Music Publishers Association (CMPA), the Canadian Association of

Publishers, Authors and Composers (CAPAC), as well as one Canadian music publisher, Laurentian Music’s Bob Hahn. The presence of these organizations speaks to the considerable importance of music publishing’s association with radio - another aspect of the supplier/user relationship and one that had to some extent already been addressed by policy through copyright law in Canada, as elsewhere. There were a number of aspects to the testimony at the hearings from music publishers and copyright collective. CAPAC could speak well to the question of the supply of Canadian music, at least as far as composing credits went. However, there was another agenda: to convince the CRTC to include a copyright ownership component in the regulations. The rationale was that this would ensure the maximum economic benefit to a domestic industry by encouraging radio to play songs owned by Canadians, thus directing more of the performing rights income to Canadian-owned publishers, as well as the songwriters. However, the CRTC did not include a copyright ownership component in the final regulations. In fact, the CRTC has steadfastly refused to consider copyright rendering decisions or formulating policy, pointing out that these are the jurisdiction of the Copyright Board. Nevertheless, these Canadian content policies have had considerable impact on copyright holders.

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We have here a picture of some of the key actors in the music industry, generally and particularly in Canada, as well as of the various kinds of associations between them that had evolved over the previous several decades. At the centre of these associations was radio broadcasting’s role as at once the major industrial client for the music industry’s products and as its primary promotional vehicle. These roles were not entirely compatible. Although one might generally describe the situation as symbiotic, such a description masks the complexity of the various arrangements and of the very different constructions of the relationship that each picks out. The assumed symbiosis, the relationship of exchange, is between the music industry (in which we can include all the elements Hamilton described in his presentation at the CRTC hearings on Canadian content: creators, publishers, performers, agents and the record industry) as supplier of programming and radio as the promoter of the music industry’s products. The exchange on this level is seen as roughly equal. However, even in the configuration of the industry presented in the hearings we find the matter of copyright, that is payment made by radio stations to copyright collectives in exchange for their use of the music industry’s products. This exchange of payment for use contradicts the symbiosis of the other exchange. The industry and radio have lived with this contradiction though not always easily and depending on what configuration of interest prevails, one version or the other is predominates. It should be clear that it is difficult, if not impossible to reconcile these interests absolutely. These practices are different versions of the relationship between radio and the industry. Canadian content emphasized one over the other

110 in its version of the music industry. The publishing industry’s request for a copyright ownership element in programming was not granted. Instead, the

Commission chose to enact a policy that privileges the version of the relationship of exchange of programming for promotion. The efficacy of the policy for creating a recording industry is founded precisely on this version but it also suppresses the other relationship in its deliberations. The idea of payment by radio to the music industry for use of its music is excluded from the discussion, although there were certainly consequences for the users and owners of copyright in Canada. However, the CRTC’s suppression of this relationship, as we saw, was not at odds with developments in copyright at the time, particularly as they concerned the sound recording industry

Given the importance to recording industry ascribed to the regulations both before and after their enactment, it would appear surprising then that at the hearings in April 1970 the recording industry was essentially absent. None of the major labels attended the hearings and the one independent record company,

Bravo Records, was run by John Lombardi, the proprietor of the Toronto ethnic station CHIN. The American Federation of Musicians also testified, as did two members of the group Lighthouse. Journalist Ritchie Yorke acted as the major advocate of the policy from a music industry point of view, testifying both to the adequacy of the supply of Canadian music, as well as to the necessity of radio support to create a viable Canadian music industry. Yorke’s testimony aside, there are surprisingly few references to the regulations’ role in the creation or support of a domestic music industry role in the CRTC’s announcements or in the policy

111 documents that lead up to them. This is perhaps because in policy terms the regulations were primarily designed to bring private radio into line with the terms of the Broadcasting Act, and its explicit reference to broadcasters making predominant use of Canadian programming. The effects of the regulations on the music industry were in this sense ancillary. In fact, during the hearings leading up to the adoption of the regulations, much more testimony and debate focused on the availability of Canadian recordings, that is the ability of the recording industry to supply the necessary programming. Don Hamilton of CAB said as much in his testimony when he asserted that “There will never be anything that is really

‘Canadian music’ until we have a Canadian publishing and a Canadian recording industry” (CRTC, 1970: N66). However, this would not be strictly accurate – if there was not yet a Canadian recording industry, there certainly was a recording industry in Canada and there was certainly a great deal of commercial musical activity. The tension between radio’s dependency on the supply of Canadian recordings and its role in stimulating production of these recordings was not resolved at these hearings and would, indeed continue to figure in the development of the regulations.

The 1970s: Creating a Canadian Recording Industry

In order to understand how and if the regulations achieved the aim of stimulating production of Canadian music, we might examine the development of the Canadian music industry, during the first few years of the regulations. A look at this period illustrates how the music industry either coped with or took advantage of the conditions brought about by Canadian content regulations as the

112 policy was phased in gradually and began to take effect. In the first year one component would have to be met for the selection to qualify as Canadian content.

In the second two components would have to be met. In the third year 5% of the programming would have to meet at least one of the music or lyric requirements.

Even early on one can find the any number of testimonials to the efficacy of the regulations in this regard. “The CRTC…has created such a demand for Canadian music that our…industry has opened its studio doors wide to anyone who can hum O Canada.” (MacFarlane, May, 1971: 78). “Credit the Canadian Radio-

Television Commission with propelling an infant Canadian industry into early maturity.” (Roseman, February 19, 1972: 11).

In economic terms the role of the regulations was to produce a demand for

Canadian recordings on the part of consumers – though we must remember, not in a generic sense but specifically for those acts receiving airplay. The regulations were well placed to do this, inasmuch as their object, radio broadcasting, provided one very important intermediary between the producers and consumers of popular music. But this means that the policy also depended on a music industry to supply the recordings for radio to play and consumers to buy. Thus when we talk about creating a Canadian recording industry it is not only the actions of policy makers, but also those of radio programmers, record companies, managers, artists and, ultimately, consumers which play a role.

Perhaps, as much as anything, Canadian content regulations helped to create a ‘Canadian’ recording industry as a notional entity. Rather than simply create a recording industry in Canada (which already existed to some extent) it

113 promulgated a nationalist rhetoric, an identity for the industry that could be used as a strategy for marketing or for politics. This may be less a function of the regulations themselves than of the discourse surrounding them, from the calls for regulation made by journalists such as Ritchie Yorke or Walt Grealis to the ongoing debates around the effectiveness and fairness of the regulations that continue to this day. But prior to the regulations, the music industries in Canada had carried on largely outside a discourse of nationalism. The regulations brought

Canadian nationalism and the music industry together and made it a central element of the relation between the music industry and radio broadcasting. This is a crucial moment, as it would identify a healthy domestic music industry as an expression of Canadianness.

It may seem an obvious point to make but the regulations intervene in the

Canadian music industry inasmuch as they forced Canadian radio broadcasters to become more involved with Canadian recorded music. The important word here is

Canadian – like their American counterparts, radio stations here were already utterly dependent on recorded music for their programming. Above all, it is this relationship that allowed Canadian content to work as a stimulus to a Canadian recording industry. Requiring radio stations to devote nearly a third of their programming to Canadian content made them reliant on Canadian music to a much greater extent than previous. The health of the music industry became, quite literally, a measure of the success of the CRTC’s policies. The music industry could do this by remaining outside the direct ambit of broadcasting policy. The music industry was no longer a complete externality but it did not yet have the

114 means of becoming a full participant in the policy assemblage of Canadian content.

While there certainly had been some Canadian hit singles before 1971 by artists such as the Guess Who or Gordon Lightfoot, they were few in number and the majority of them were successes first in the USA before being picked up on by

Canadian radio stations. This is because the major influence on Canadian programmers was the same as that for their American counterparts: the charts from trade magazines, such as Billboard, Cashbox and Radio & Records. There are a number of accounts of the depths of disdain that Canadian radio programmers had for local Canadian records, including one instance where, handed a local group’s disc “the disc jockey took the record, smashed it and told the group to piss off” (Yorke, 1971: 4). At the April 1970 hearings around the proposed regulations, what had been apparent as much as disdain was a general ignorance of Canadian music on the part of many broadcasters. Many of the broadcast executives who testified had no clear knowledge of the amount of recorded Canadian music available for programming, despite insisting that there was not enough of it. Such a lack of knowledge speaks to a general indifference, which, in the absence of any pressure to correct it, was entirely understandable.

Canadian radio in the late 1960s did not need to be and so was not generally concerned with Canadian music – the one major exception being Standard

Broadcasting’s Canadian Talent Library but the purpose of that initiative and of its recordings was not to form the basis of a market for recorded music with consumers.

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One sign that the regulations had indeed stimulated a greater degree of interest in Canadian recordings from broadcasters were the attempts that some of them made to enter the record business in the wake of the regulations’ enactment.

The Canadian Association of Broadcasters announced plans for a large record company, Astra, which was quietly shut down after a couple of years, having achieved very little of anything. CHUM Ltd. formed Much Records, which issued several recordings before folding. CKEY, owned by Maclean –Hunter, launched

Ampersand Limited, issuing two albums that failed to sell. (Roseman, February

19, 1972) It was evident relatively quickly that the broadcasters themselves were not going to be the main suppliers of their own programming. Again it is worth noting that, despite the testimony at the hearings, the regulations themselves did not specify at all from where Canadian programming was to come. The primary concern had been to get broadcasters to play more Canadian content on the air.

Reference tools such as the Canadian Music Index were produced by CAPAC and the Canadian Association of Broadcasters to assist Canadian radio stations to find enough material qualifying as Canadian content. With thirty odd versions of

Gordon Lightfoot’s song “Early Morning Rain” to choose from, broadcasters could no longer quite so easily assert that there was no Canadian content available. They could and did assert that many of these recordings were not suitable for broadcast (and to some extent they may have been quite right!) but they were no longer free to simply ignore Canadian recordings; they now relied upon them to supply a large portion of their musical programming.

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If we now wish to extend the effects of the policy beyond a greater presence for Canadian music on the airwaves we have to look at the music industries. The level of involvement on the part of radio broadcasters would have to be equally matched by the recording industry. This would involve some transformations on its part as well. The Canadian record industry has two distinct sectors, the so- called major labels, branch offices of multinational recording companies, and a much smaller though more populated sector of domestic independent labels. As

Larry LeBlanc wrote in a report on Canadian content to the CRTC in 1990, the recording industry in Canada constitutes two very separate businesses, the one consisting of the leasing of master tapes from other markets for release in Canada and the other consisting of the production of original material. This distinction constitutes much of the difference between the major multinational labels and

Canadian independents, although there are obviously important exceptions. To produce a substantial body of Canadian popular music recordings, major labels would have to expand into Canadian production and the increasing number of entrepreneurs engaged in managing and promoting Canadian acts would have to turn to recording.

By the 1960s there was a fair amount of popular music making in Canada, with vital live scenes springing up in several of its major cities, particularly

Toronto. With numerous live venues, an interested audience and the convergence of musicians from all over Canada, the Yorkville and Yonge Street scene was a setting for the development of a great deal of talent, both musical and entrepreneurial (Jennings, 1997; Yorke, 1971). But at this point the scene was not

117 particularly well associated with the two businesses that dominated the music industry, radio and records, especially not within Canada. This live scene would, however, leave two important legacies to the establishment of a Canadian recording industry: first, an abundance of talented artists, some of whom would go south to the US to further develop their careers and begin to record and some of whom would remain in Canada and form an experienced talent pool for an industry here. Second, this scene provided a training ground for a number of individuals who promoted and managed these artists, though again, mostly in terms of live performance. If we want to see one important effect of Canadian content regulations, it was that they forged a connection between this local scene and Canadian broadcasters. The regulations translated the local scene into a national one.

Prior to the 1970s, the only English - Canadian independent label to issue more than a few singles was ARC Records, Anne Murray’s first label. By the early 1970s a sizeable number of independent labels and production companies were involved in the recording of Canadian acts. Straw (1993) notes that most of this first crop of independent labels centered their operations on one or two major acts. True North Records had Bruce Cockburn. Aquarius Records had its only major success in the 1970s with April Wine. Anthem Records was and is sustained by the success of Rush, and so on. What appears to have happened was an evolution of the role of the individuals involved in various non-recording aspects of the music business to make recording a part of their activities. Bernie

Finkelstein, for instance, had been managing a number of Canadian artists such as

118 the Paupers for years, as well as co-managing the Riverboat Club (one of

Toronto’s premier venues). Aquarius was a partnership between Terry Flood and

Donald Tarlton, already the dominant concert promoter in Montreal. Perhaps the most emblematic of these companies in this regard is Attic Records, formed by

Tom Williams and Al Mair in 1974. Mair was at the time Gordon Lightfoot’s manager and had also been active in the Canadian music industry for a number of years before forming Attic. Unlike many other independents, Attic never relied on a single artist as its primary source of revenue (Mair’s duties as Lightfoot’s manager were to remain separate from Attic’s operations). Instead, its strategy was based upon the expertise of its principals to discover and exploit talent, that is to, operate a record company like the major labels, but on a smaller scale.

What was the role of Canadian content regulation in this transformation? It helped to make radio a viable promotional vehicle for the recordings of the acts these individuals were involved with. The independent producers as they developed their acts could now more reasonably expect that their recordings would have access to the airwaves. But again, this depends on the presence of an entrepreneurial class already involved with Canadian music. The regulations did not create this class but helped to push the activities of its members toward recording and make it a more central part of their activities. And to some extent their entry into the recording business was already underway, even before the regulations. Certainly this is the case with Aquarius Records, which was already in the works as early as 1969 and Nimbus 9, the production company responsible for the Guess Who’s output through the successful phase of the group’s career. In

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1970, twenty-one of these small companies had formed a loose affiliation as the

Canadian Independent Record Producers Association (CIRPA), both in response to the new regulations and to fight against the broadcasters’ entry into record production. CIRPA would not become a more formal affair until 1976 but its initial formation provided some sense of cohesion among this sector, a sign that a domestic Canadian industry was taking shape with an awareness of shared interests and concerns among its members.

As well as the independent Canadian labels, Canadian content regulations influenced the major labels’ involvement in Canadian music. Again, some of this involvement predates the regulations. The majors were not proactive in the development of Canadian content because their primary business then, as now, was releasing foreign owned masters in Canada; they had no presence at the hearings leading to Canadian content. At the time, the foreign-owned sector’s primary policy concern was with its first, failed, attempt to institute performance rights in sound recordings (neighbouring rights). In the ensuing debates and hearings, the major labels were excoriated as foreign interests, interested in the rights simply as a means of funneling money out of the country. Clearly they were not deemed to be Canadian. This is a situation the labels would attempt to remedy in the coming years. The Canadian Record Manufacturing Association, which acted on their behalf throughout the process, changed its name to the Canadian

Recording Industry Association (CRIA, a slightly less ‘industrial’ designation) in

1973 and worked to raise its public profile. At first CRIA was still mostly concerned with copyright and piracy issues, but it was also concerned with

120 rebranding its members as part of a Canadian industry, playing a key role in making the Juno Awards a much more high profile event and one which largely showcased the major label artists.

Obviously many industry observers and perhaps some parties within the

CRTC hoped that the new regulations would move the major labels to invest more in Canadian talent. This was borne out by increased production budgets by the majors over the early 1970s. In the immediate wake of the regulations, Columbia assigned an increasing proportion of its recording budget to English Canada and tripled the overall amount from 1971 to 1974. RCA doubled its budget in 1971.

GRT invested fifty thousand dollars in Canadian acts in 1971. In particular

Capitol Records took a leading role in promoting Canadian music, increasing its

Canadian recording budget by 70%, signing distribution agreements with several new independent labels such as Daffodil Records and using marketing tactics, the

Sounds Canadian campaign, that made the Canadian nationality of acts such as

Anne Murray, Edward Bear and Gary Buck a selling point (Jennings, 2000: 54-

55). By 1972, Canadian artists accounted for 15% of Capitol’s sales in Canada.

(Roseman, February 19, 1972: 12).

Some of this increased investment was short-lived. For instance, by 1974

Polydor Canada had trimmed its roster of Canadian artists from 15 to 2 (Grasky,

May 11, 1974). One should point out that investment in Canada by these multinationals has waxed and waned over the years depending on a number of factors, including global strategy of expansion or cutbacks or simply trends in the industry. At the time, major labels were to some extent willing to credit Canadian

121 content regulations for their increased interest but contemporary accounts also suggest that there was simply an acknowledgement that there was a considerable talent base in Canada, particularly in Toronto. The same scene that provided a training ground for much of the entrepreneurial class that would make up the independent recording sector also spawned, of course, a fair number of artists, a number of which were becoming major stars in America by 1970. Gordon

Lightfoot and the Guess Who were already successful in Canada and abroad. Joni

Mitchell, Neil Young and The Band migrated to the United States and developed their recording careers entirely within that context. However, their Canadian origins and close connections with the Toronto scene were likely not lost on record company executives in search of new talent. A Globe and Mail article of

January 3, 1970 (six weeks before the regulations were announced) in which it was claimed that Toronto is “being talked about as the next major recording centre of North America.”(Kirby, January 3, 1970: 25) As well, figures cited by

Allan Wood of the Canadian branch of the musicians union also claimed that from

1965 to 1969 there had been an eightfold increase in fees paid to members for phonograph records – from $250,000 to $2,000,000 (CRTC, 1970: G-22). All of this suggests that interest in Canadian music on the part of the music industry was already growing in advance of the regulations. Indeed, according to the chart analysis carried out by Ritchie Yorke, there was considerable growth in Canadian acts charting in the USA took place the year before the regulations had been enacted, from six entries in 1969, to thirteen in 1970 (1971: 220).

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Generally the 1970s saw a remarkable increase in the size of the recording industry globally. In Canada it more than doubled from $57 million in sales in

1971, to $130 million in sales by 1974 (Grasky, May 11, 1974). Caught up in general expansion of the recording industry internationally, Canada’s major label branch offices were concerned with expanding their presence in Canada, consolidating their control over the manufacturing and distribution network

(Straw, 1993). While this did not in and of itself necessitate the production of

Canadian acts, the increased presence of the majors encouraged their involvement in the market generally and developing talent was one of their many functions. As well, Canada, as an English language source did have more export potential in its artists than many markets. The regulations were well-timed to take advantage of this period of growth in the industry. They almost certainly provided some extra incentive on the part of the major labels to develop Canadian talent, but if these labels could just as easily have ceded this role to domestic companies, given the fact that the costs of developing artists remained high and the odds of success low

(McDonald, May 11, 1971). Perhaps what the regulations helped to mobilize in particular was the ability of the major labels to bring Canadian artists to an international audience.

By 1973, when the regulations were fully in effect, the CRTC, in its annual report, could point to a number of benchmarks pointing to a developing industry.

Canadian recordings accounted for 25% of the now $125 million dollar industry.

Foreign performing rights royalties (a measure of the popularity of Canadian music internationally) were up by a nearly half-million dollars since 1969 (CRTC,

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1973a). At the hearings for FM Policy in late 1973, there was no more talk from broadcasters about the lack of a Canadian music industry, as had been the case at the hearings for Canadian content in 1969. The industry itself was considerably more represented at these hearings, even if, apart from the two copyright collectives, this representation was not especially organized. Sam Sniderman of

Sam the Record Man, gave at least anecdotal evidence of the popularity of

Canadian music and its relative availability. Peter Steinmetz, an entertainment lawyer active in popular music, could claim not to speak “on behalf of the

Canadian record industry” (CRTC 1973b: 78) – suggesting that such an industry did indeed now exist. That said, he asserted that it remained “largely a branch plant industry, owned and controlled by foreign record companies and media conglomerates (Ibid: 76).

The Québecois Music Industry in the 1970s

The impact of the Canadian content regulations was arguably less marked in

Quebec – in large measure because broadcasters there were already a substantial percentage of recordings by French-language artists. At the hearings in 1970,

CKCV, Quebec manager, J. M. Alain, claimed to be playing fifty-percent

Canadian content already, although he did not want this to be “rigidly enforced

(CRTC, 1970: Insert 22: 1). Although his claim could not, of course, be verified, this number was several times what some of his English-Canadian counterparts felt was practicable. At the 1973 hearings on FM policy, CAPAC general manager, John Mills, provided some measure of this in comparing the rise in numbers of members and revenues over the period 1968 to 1972. In English

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Canada, some 283 composers and lyricists shared revenues of $174,298. In 1972, the number of composers and lyricists had risen 88% to 531 and revenues were up

249% to $608, 092. Quebec’s composers and lyricists actually outnumbered those in English Canada at 342 in 1968 and 567 in 1972 (a gain of 66%). This had also been the case for revenues in 1968, when Quebec composers and lyricists shared

$189,466. This rose 169% to $510, 192. (CRTC 1973b: 169). As Mills’ numbers show, there was considerable growth in Quebec’s musical activity but not to nearly the same extent as in English Canada. Nonetheless, Quebec’s artists also benefitted from the expansion of major label activity in the 1970s. Major labels were active in signing Québecois artists. Capitol Records, for instance, had half a dozen Quebec acts on its roster, most notably Beau Dommage, who were in fact their best selling Canadian act in 1974 (Jennings, 2000: 57). All the other major labels were heavily involved in the French-language market in Quebec during this time (Tremblay, 1995) and one of these, PolyGram, was based in Montreal. In

1974, Quebec, it was estimated, accounted for 30% of Canadian record sales with big names such as Robert Charlebois and Ginette Reno (Grasky, May 11, 1974:

H1). As with English Canada, Quebec’s independents also played a role in the expanding industry.

As far as the notional aspects of a “Quebec” music industry are concerned, the Canadian content regulations were perhaps of less importance, also. Cultural nationalism in Quebec played out very differently than in the rest of Canada at this time, as Quebec developed its own sense of nationhood. Yet, its geographic boundedness and linguistic isolation allowed Quebec’s music industry its own

125 space and made it easier for it to define itself as a distinctive entity than in English

Canada. Nonetheless, the CRTC intervened in broadcasting in Quebec as well. In

1973, it enacted regulations French-language Vocal Music for French-language broadcasters (separate from Canadian content regulations) arrived in 1973, set at

75% of selections between 6 am and 6 pm. Such regulations emphasized, as

Grenier has argued, a concern with preserving diversity in the Canadian broadcast programming that was a hallmark of CRTC policy throughout its existence

(1993). It also demonstrated the distinctive conditions that governed the Quebec music and broadcasting industries.

Conclusion

Through much of the 1970s Canadian content regulations were touted as highly successful and responsible for much of the expansion of music industry activity in Canada, both domestic and multinational. It was arguably the most public and lauded of the CRTC’s policies. However, even before the end of the decade the policy encountered some limits in terms of its efficacy, as well as the

Commission’s willingness to extend and enhance its application. We will deal with some of these challenges in the next chapter.

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Chapter Three: The battle for FM: Canadian Content Regulations, Part II

Canada’s music industry continued to expand through much of the 1970s, again in keeping with international trends, achieving sales of $578 million in 1978

(ADISQ, 1989, cited in Menard, 1998: 5). But in 1979, the industry began to register its first major decline in sales in several decades. Shrinking revenues led major labels to reduce their rosters and workforce in most territories and Canada was no exception. Major labels released 33% fewer albums in Canada in 1979 than in 1978 and this decline in output was especially marked with respect to its

Canadian releases, which declined 47% that same year (Grenier, 1993: 210).

Independents would pick up some of the slack eventually but, even so, the number of Canadian recordings declined 15% between 1978 and 1984 and, sales declined by 17% (Communications Canada: 1987: 51). By 1979 Canadian content, it seemed, was not enough to ensure either the prosperity of the music industry or indeed to secure a steady supply of Canadian recordings. This limitation would, at least in part, bring about the development of other policies more directly concerned with Canada’s music industries, a subject we will pursue at length in the next chapter.

Some of the other challenges to the regulations emerged out of developments in broadcast media and the responses of the Commission to these changes. The rise of FM radio and the entry of music television via cable both altered the relationship of music industries and broadcasting on which the initial regulations had been based. In addition, the music industries themselves began to

127 play more of a role in the policy discussion, moving from beneficiaries to advocates of the regulations. In particular the Canadian Independent Record

Production Association would adopt the advocacy of these regulations as part of its core mission. Through most of the 1970s, the CRTC’s only consistent interlocutor on the issue of Canadian content had been the Canadian Association of Broadcasters but with the growing involvement of this new voice in the conversation, the Commission was increasingly forced into a position of arbitrating between the interests of broadcasters the same Canadian music industry that it claimed to have created.

Television

There were attempts to develop a Canadian music presence on television during this period. However, television, in general, proved to be less amenable to the promotion of Canadian music. Both CBC and CTV were somewhat inept in their popular music offerings generally and it took some time before they properly integrated the growing sense of Canadian popular music into their programming.

CTV’s first major music offering, Rollin’ on the River, was hardly Canadian at all. Produced for broadcast in the United States, as well as Canada, it featured largely American stars such as Kenny Rogers and First Edition. 1973’s Shake,

Rattle and Roll, with the veteran Canadian singer Bobby Curtola, had a fairly short run. CBC tried out a number of short-lived music-based shows, including

Right On!, starring Martin Short and a year later, Music Machine, with recording artist Keith Hampshire. It would take a much more concerted effort to really harness the power of television of as a promotional vehicle for the Canadian

128 music industry. The most salient example of this occurred as the Juno Awards gradually evolved from a small private ceremony run by Walt Grealis of RPM

Weekly, the trade publication for the Canadian music industry, into a televised event on CBC in 1975. This evolution involved a power struggle between Grealis, who wished to keep the awards a relatively low-key industry affair and CRIA and others in the industry wishing to maximize the promotional value of the awards.

The arrival of the Junos as an annual televised event (and one that still attracts much higher ratings than the equivalents for Canadian film or television) marks one of the high profile attempts to cultivate a recognizable Canadian popular music and Canadian music industry among the public (Young, 2004). Awards shows and a growing sense of industry, were also a feature of the Quebec industry at this time. In 1978 l’Association du disque, de l'industrie du spectacle québécois et de la video (ADISQ) was formed to provide cohesive representation for the

Quebec entertainment industry and to oversee the province’s music award’s show, the Felix Awards. These awards proved to be both high profile and intensely fraught and organizing them took up much of the time of ADISQ, especially in its early years. Quebec television was generally more integrated with its popular music industry and provided an important promotional vehicle in this regard.

However, these shows aside, it would not be until the arrival of MuchMusic in

1984 that English Canadian popular music would have a sustained presence on

Canadian television.

Straw (1988) has questioned music television’s commercial impact, nevertheless it is clear from testimony at the time, that its arrival was believed to

129 be of extreme significance to the music industry – itself newly recognized in its guise as a cultural industry as a vehicle for Canadian cultural policy (Wagman,

2001). This new promotional vehicle for music alongside radio was deemed capable of turning around a decline in the success of Canadian artists, as one letter from a record label executive to the CRTC suggests.

The recent success of MTV in the U.S. has had profound

impact on the area of record promotion. MTV's use of video

clips has forced U.S. radio stations to play artists that weren't

being played. The impact of the combined video exposure and

radio play affects the U.S. charts. Canadian broadcasters watch

the U.S. charts t o help identify potential hits.

(Personal Communication: Al Mair, Attic Records December

22, 1983).

As a result, the rationale for Canadian content regulations for radio as a music industry policy (i.e., the promotional value of media exposure) was already in place for music television, at least in the minds of the music industry. In their particulars, the regulations were very similar. As with AM radio, the Canadian content level was set at 30%, although, like the earlier regulations this was to be attained gradually: 10% to begin with and then increments over the next five years. For music television, the Commission adapted the MAPL system to include two additional components to the original four – the nationality of the director or production company, as well as the location of the video production facilities. To qualify as Canadian content, a video had to qualify in three of the six elements (in

130 at least two of the MAPL categories and in at least one of the video production categories). Finally, the Commission directed CHUM to establish VideoFACT, a separate foundation funded by the licensee, which would administer funds to produce Canadian music videos for programming on the service (CRTC Decision

84-338). This was broadly in line with the Canadian Talent Development initiatives required of radio stations.

The issue of supply of Canadian material did arise at the hearings. It was, if anything, more acute for music videos than for recordings and the music industry witnesses acknowledged as much themselves. Yet, the Commission felt this could be addressed by a) taking a gradual approach to Canadian content, b) enlisting the efforts of the licensee in production and c) the music industry finding the promotional value of music videos sufficient to devote the resources necessary to create them. The Decision stated that “to stimulate increased activity in the

Canadian production industry, the applicant promised that a minimum of 10% of all music video clips will be Canadian, rising to 20% by the end of the third year of operation” (CRTC, April 2, 1984a: 3). In this case, at least, the broadcaster and the Commission viewed Canadian content as a means of stimulating supply, not as impractical due to the lack of it. This stood in contrast to the dialogue being carried on at radio, where a limited supply was successfully used by broadcasters as a rationale for lowered Canadian content on various FM stations.

Of course, the challenge to Canadian content on cable was not coming from the licensees of Canadian stations so much as from the cable carriers who wanted to offer as many of the already extant foreign (mostly American) channels as

131 possible. Much of the difficult work of maintaining Canadian content on cable television was achieved, not so much in the licensing of individual stations such as MuchMusic, but rather in the decisions over the number and nature of which channels cable companies would be allowed to offer and how these would be balanced against Canadian offerings (CRTC, April 2, 1984b). A full discussion of this is well beyond the scope of this dissertation, however, we can note here that perhaps as important as the decision to impose Canadian content regulations on

MuchMusic was the Commission’s decision not to allow MTV into the Canadian cable system. This, and the decision to license only one music television service, ensured a monopoly for MuchMusic. The fact that, like radio stations,

MuchMusic would not have to pay to produce much of its programming

(notwithstanding their contributions to VideoFACT), made Canadian content regulations a relatively small price to pay for CHUM Limited.

FM Radio

If the extension of Canadian content to MuchMusic was relatively straightforward, the application of the policy to FM radio was anything but. What stood in the way of Canadian content’s application to FM radio was, as much as anything, the CRTC’s own policies. As early as the 1960s, interest in FM was growing, based on its superior signal and higher fidelity. FM was particularly well suited to growing urban markets because the signal could travel through solid objects such as large buildings, unlike AM. The increasing interest and audience was part of what spurred the CRTC to develop a policy for the medium. However, in contrast to Canadian content regulations for AM, the Commission moved fairly

132 slowly to develop a policy for FM. Although the CRTC’s first FM hearings were held in June 1969, some months before the Canadian content on radio hearings, the Commission did not begin to articulate an FM policy until 1973. When that policy emerged it was more concerned with the diversity and quality of programming, rather than with questions of the Canadian origin of the material.

This might be seen as the vestiges of a ‘Masseyist’ version of Canadian nationalism in private radio regulation. Earlier we saw that the CRTC had considered using FM radio as a vehicle for Canadian content prior to the enactment of the AM regulations. The idea that FM should have a programming ethos distinct from that for AM radio was an important component of CRTC policy. The BBG had also wrestled with questions about FM and the degree to which it should be regulated separately from AM radio, without ever resolving the issue definitively. One idea was that the service would lend itself to “higher quality” programming, presumably in keeping with its higher quality signal (Cote,

February 24, 1961) – a notion very much in keeping with the generally low opinion of AM radio programming. Nonetheless, the CRTC’s Canadian content regulations assumed that AM was the dominant radio band and that it would remain so for the foreseeable future. Indeed, in 1970 only 53% of Canadian homes even had FM radio receivers (CAB, 2005: 13). While the commission opted for a wider impact in applying the quotas to AM, they were still committed to developing a policy for FM as a distinct service from the AM band.

The Commission held hearings in Ottawa at the end of October, 1973, with appearances from a number of witnesses including broadcasters, advertisers and

133 some members of the music industry, considerably more than in 1970. The tone of the proceedings was quite different also, with CAB in particular, in a far less confrontational mood, promising “a new spirit of cooperation” (CRTC, 1973b: 3).

The Commission then took the next year to develop the policy, which was finally released in January 1975. The emphasis on diversity and quality seemed broadly in line with the high culture predilections of earlier Canadian cultural policy, with the implication that the popular music recordings that formed most of the programming for AM stations would not predominate on the FM band. In particular the 1975 policy document in particular set itself against the notion of radio as background.

It was assumed that the vast majority of the radio audience is

“on the go” and that people listen sporadically, using radio as

background for other activities…The Commission considers

that this assumption has prevented radio from developing

programming types and forms to meet other kinds of listening

needs… [and] has led to radio programming which is imitative

rather than innovative.

(CRTC, 1975: 10)

To bring about this kind of programming were a host of regulations. Unlike

AM regulation, which specified little or nothing about the particular formats of the stations, the FM policy set out a number of these and categories of programming. Evidently the emphasis was to be on encouraging and managing diversity in the offerings on FM radio. First, stations would be required to

134 provide 40% ‘foreground’ programming (as distinct from music programming).

There were restrictions on commercials. Music programming was sorted into a number of different categories with different Canadian content requirements for each.i Finally, applicants for FM licenses were obliged to spell out their proposed programming practices with regard to these categories and formats, along with their undertakings for developing Canadian talent, in a detailed “Promise of

Performance.” This would be used to assist the Commission in awarding or renewing licenses and the intention was that broadcasters would be held to these commitments through the duration of the license.

The number of requirements, the fineness of the distinctions (for instance, it was unclear precisely how one would distinguish between Folk-oriented and Jazz- oriented and Folk and Jazz) and the rigor with which they were assessed set FM radio on a very different and much more regulated path than its AM counterpart.

This set up a nearly endless series of adjustments to the details of the policy that are still ongoing. Most important for this account, in 1979 as the second phase of the policy’s introduction ended, the commission, “on the basis of the individual submissions of broadcasters and upon consideration of the levels of Canadian music available in relation to the different musical services proposed” (CRTC,

April 20, 1979: 5) lowered Canadian content requirements for Category six music to levels that ranged from 10% to 20%. The exception was Country, which remained at 30%. This drastically reduced Canadian content requirements for

FMii.

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The complexity of the requirements also made them more difficult to administer and to enforce. Broadcasters found them increasingly irritating and irksome as they removed much of the flexibility they felt they needed to compete.

In an appearance before the Parliamentary Standing Committee on

Communications and Culture in 1983, CAB Vice-Chairman of Radio, Jim Sward asked committee members to consider the conditions under which FM radio in

Canada operated.

[I]t is common for a private FM broadcaster to be required to

ensure that more than 60 different, separate mathematical

criteria are met for each broadcast day. Very few of these

criteria pertain to Canadian content or things Canadian. Almost

all are explicit program content directives from the CRTC.

There are minimums, maximums, and ratios of percentages,

hours, minutes and seconds, plus a complex set of definitions

to be understood,…, The calculator, the computer, and rational

rigid pre-planned programming has replaced the intuitive,

reactive and creative skills of our craft.

(Canada.Parliament. House of Commons Standing Committee

on Communication and Culture [C.P.HCSCCC], 1983: 56:7)

At the same time, as CRTC Chairman John Meisel noted some days later, despite the regulations there was no shortage of applicants for FM stations, nor had anybody abandoned their license (C.P.HCSCCC, 1983: 59: 16).

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The fact that FM was becoming increasingly popular did nothing to diminish the pressure to reform its regulation. In 1983 the CRTC struck a committee, under the leadership of Commissioner Jim Robson, made up of private broadcasters and representatives of the music industry to study and make recommendations on streamlining FM policy. The committee eliminated many of the music categories and simplified the regulations.iii Overall, the result was a win for radio, which saw much of the regulation for FM reduced (or at least made more flexible) and the low Canadian content levels, neither raised nor lowered, but maintained at 20% for most FM stations, except those with a country format, which remained at 30%. This position was, according to the document released by the CRTC, a recommendation by “participants from both the broadcasting and recording industries” (CRTC, April 5, 1984: 3). The importance of the committee, however, was not simply its effect on FM regulation but the also in the fact that a great deal of its membership was taken from the ranks of the music industries in both English Canada and Quebec, alongside of broadcasters. In addition to nine members of CAB, the Association des radiodiffuseurs communautaires du

Québec (ARCD), and one independent broadcaster, the committee included representatives from L'Association canadienne de la radio et de la télévision de langue française Inc. (ACRTF), ADISQ, CRIA and CIRPA (CRTC, April 5,

1984). There were a number of issues that were of interest to the music industry members, not only Canadian content levels but also the description of the categories and the overall use of music on FM in relation to the ‘foreground’ and

‘mosaic’ programming the Commission required. For its part the Commission had

137 pronounced the consultation “useful” and indicated that they had “gained a better understanding…of the complexities of the music industry” (CRTC, April 5, 1984:

1). Even if the policies did not yet reflect this to any great extent, the music industry’s interests and concerns were beginning to become more of a feature in the deliberations around broadcast policy. Alongside of this, music industry representatives were serving on a Department of Communications Task Force on the Broadcasting. Such forums supplemented the increasing number of interventions from these associations – evidence of their growing status in a consultative role where broadcast policy was concerned.

Music industry groups particularly CIRPA continued to intervene in licence renewal and application hearings, especially those regarding Canadian content.

Throughout the 1980s, the position of music industry groups such as CIRPA and the CMPA with regard to radio programming was very simple. Canadian content was to be maintained or increased, if possible, and all other programming considerations were deemed to be the concern of broadcasters. Most broadcasters, for their part, continued to work at keeping Canadian content levels as low as possible for FM. The cooperative atmosphere of the Consultative committee, however, began to fall apart. Many broadcasters applied for lower levels upon renewing their licenses and in many cases the CRTC appeared to agree to this. As the CRTC allowed a number of FM stations renewing their licenses to lower their

Canadian content levels during this time, the music industry became increasingly concerned, claiming they had only agreed not to ask for increased Canadian content on the understanding that broadcasters would continue to meet the levels

138 at which they were currently licensed (Lapointe, November 23, 1985). The situation reached something of a crisis in September 1985, when the Commission allowed four urban FM stations (CIRK-FM and CKRA-FM in Edmonton, CJAY-

FM in Calgary, and CFNY-FM in Brampton, serving the Toronto area) to lower their Canadian content commitments: from 30% to 25% for CKRA-FM and

CJAY-FM (CRTC, September 27, 1985a; CRTC, September 27, 1985b) and to

20% for CIRK-FM (CRTC, September 27, 1985a) and CFNY-FM (CRTC,

September 27, 1985c). In all cases the CRTC agreed with the applicants in their assertions that they had difficulty in finding sufficient Canadian material in their formats. In November of the same year CIRPA took the unusual step of appealing these decisions to Cabinet, arguing that there was more Canadian music than ever and that broadcasters should have little trouble meeting requirements. While the appeal was unsuccessful, it was one of the few instances in which federal government involved itself directly with the issue of the Canadian content regulations. Even if Cabinet refused to set aside or return the decision, this could be taken as broad support for the CRTC’s decision. A letter from federal

Communications Minister, Marcel Masse to one of the lawyers involved in the appeal, which referenced “…the problem of the shortage of available Canadian recordings in some genres of music, “suggests that he, at least, concurred with the

CRTC in its reasoning (Personal Communication: Marcel Masse April 17, 1986).

This rationale of a shortage was also of benefit to the Canadian music industry, as it underlay the development of the Sound Recording Development Program

(SRDP), which had recently been announced.

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Revision of FM and radio policy generally seemed to be ongoing throughout much of the decade. In 1986, radio policy was reviewed yet again, in an effort to further simplify the regulations and music industry groups were once more involved in consultations with the Commission. Again, the major concerns centered on programming and the use of music, which were of interest the music industries. At this time, the music industries were responding to a proposal by

CAB to lower Canadian content requirements for country FM stations to 20% to bring them into line with other popular music formats. CAB’s major premise for seeking this reduction was a shortage of suitable country music recordings. In

1986, the new regulations further simplified and watered down some of the programming requirements.iv The CRTC did not lower the level of Canadian content for Country stations, and agreed to undertake a study of the matter

(CRTC, March 19, 1986). But the thrust of FM policy remained the same: FM was to remain a distinct service from AM, with varied and diverse programming.

The difficulty was that FM was no longer the alternative to AM; it had become the mainstream, particularly in urban markets, where the profits for radio were much healthier. In 1987 there were still only half as many FM stations as AM stations, and with lower revenues. However, FM stations were 23% more profitable than their AM counterparts. The CRTC for its part was, for the moment, more concerned to maintain diversity and variety in FM programming in order to maintain its distinctiveness. However, it was becoming abundantly clear that, not only was the FM policy’s emphasis on diversity over Canadian content at odds with the situation in the broadcast industry, but it was also a policy which

140 had few if any supporters outside the CRTC itself.

Despite music industry misgivings, it appeared that the CRTC had not completely abandoned Canadian content regulations. The Commission showed some degree of resolve with regard to Canadian content in September 1987, when in a series of decisions, it renewed the terms of license of 30 AM and FM stations for various lengths of time far below the standard five years. These short-term renewals were in response to the stations’ non-compliance with Canadian content regulations, and failure to keep complete logs of their on air broadcasts. Many stations had apparently been scheduling their Canadian content such that the majority of the selections ran overnight (from 10 pm to 6 am). Issuing a Public

Notice, commenting on this, CRTC Chairman André Bureau called the non- compliance of broadcasters “completely unacceptable” and noted that radio regulations had recently been considerably streamlined to make compliance easier

(CRTC, September 24, 1987: 1).

The announcement of a new federal broadcasting policy in 1988 signaled an ongoing commitment to Canadian content generally on the part of the Mulroney government. Such support was not necessarily inconsistent with the Conservative government’s free market orientation. As with Raboy’s assessment of the first

Canadian content initiatives in the 1960s, these measures were developed with the private sector in mind (1990). In this light, a renewed commitment to Canadian content might be seen as a replacement for the considerable cuts to the CBC budget that the government had undertaken four years earlier. In addition, this commitment could be used to substantiate the Conservative’s claims to have kept

141 culture “off the table” in free trade talks with the Americans, thus appeasing

Canadian cultural nationalists. Nonetheless, the market-oriented principles of the

Conservatives were in evidence in the document. While much of the thrust of the new policy was aimed at television, the document stated, “… the fundamental issues in radio are economic. Radio broadcasters should be able to adapt to changing circumstances … supported by the regulatory environment”

(Communications Canada, 1988: 19). Taken together with the report’s overall commitment to Canadian content, it seems that the federal government agreed with broadcasters and the music industry that rigid regulatory maintenance of varied and diverse programming was not in keeping with the broadcasters’ needs.

Signs that the federal government was also firming its support for Canadian content on radio came late in 1989 when, once again, the CRTC lowered

Canadian content for an FM station (in this case CHEQ-FM in Smith’s Falls) from 30% to 25% (CRTC, November 9, 1989). Once again, CIRPA appealed the decision to cabinet and this time the decision was sent back to the CRTC for consideration. The CRTC, in its mid-1990 reconsideration of the decision, directed CHEQ-FM to adhere to 30% Canadian content for its Category 5 music selections (CRTC, June 6, 1990). However, by this point, the rules for FM with respect to Canadian content were about to change considerably.

On February 16, 1990 the CRTC issued Public Notice 1990-20, A Review of the Policy for FM Radio (CRTC, February 16, 1990). The general thrust of the review and of its recommendations was that FM radio (and the broadcasting industry) had changed so greatly since the enactment of the CRTC’s policy in

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1975 that many of the requirements and regulations were no longer useful. The notice contained a number of specific proposals related to FM radio. Among other matters, the Commission recommended that a number of the popular music categories (which had been reduced already from eight in 1984) be combined. For music, there remained a pop/rock category, an easy listening category and a country category and a variety category for those formats that did not answer to the above. The Commission solicited comments regarding loosening the hit/non- hit ratios for Canadian selections, as these were currently impeding airplay for successful Canadian tracks. They proposed that programming requirements be assessed daily rather than weekly. Finally, the Commission proposed that

Canadian content for FM stations be increased – to 30% for pop/rock and to 20% for instrumental easy listening (country, of course, already had a 30% Canadian content requirement).

The broadcasters’ reaction to the proposed changes was cautiously favorable. While they were hardly enthusiastic about increased Canadian content, they were prepared to accept it in exchange for the elimination of many of the other format regulations. What they did ask for was a weekly rather than a daily assessment. The music industry was, not surprisingly, supportive of raising

Canadian content levels to 30% for most FM stations, asking indeed that higher levels be imposed on specialty and classical music stations. In contrast to the broadcasters, music industry representatives asked that Canadian content be assessed in three-hour blocks throughout the broadcast day to ensure that

Canadian content was not ‘ghettoized.’ The policy that emerged was broadly in

143 line with the initial proposal. The hit/non-hit ratios were also adjusted such that all

Canadian recordings were to be regarded as non-hits, which would allow them to be played as often as a station wished. In the event, the radio broadcasters got what they wanted in terms of a weekly assessment but were directed to play at least 25% Canadian content from 6 am to 7 pm (CRTC, December 19, 1990).

This episode is significant inasmuch as it brought policy much more into line with the current state of the radio industry in Canada, in which FM had a much greater role. Although there were some tensions between the various parties involved, there seems to have been a great deal of consensus on the policy on the part of the various players from the beginning. Broadcasters did not offer any particular resistance to the idea of 30% Canadian content and music industry representatives did not push for a level higher than that proposed by the CRTC.

While paying lip service to the CRTC’s previous emphasis on FM as offering as an alternative to AM, the changes were at least as concerned with leveling the playing-field for AM stations, which had been suffering in comparison to FM stations. If Canadian content won out over such concerns it is likely because there was strong support from an articulate and organized domestic music industry, whereas there was little support for the original aims of the CRTC’s FM policy.

Even the submission from the Canadian League of Composers concerned itself simply with ‘ghettoization’ of Canadian content on the CBC – seemingly an acceptance of the fact that private broadcasting was not generally a vehicle for classical music (Personal Communication: Patrick Cardy, May 10, 1990). As the

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Commission was increasingly placed in the role of arbitrator amongst various interests, its role in developing policy internally was diminished.

The 1990 FM Policy established Canadian content as the preeminent programming regulation for radio. At the same time the CRTC’s initial proposal evidenced some of the limitations of Canadian content, in particular the issue of new Canadian artists obtaining airplay. This concern arose with the elimination of the application of Hit/Non-Hit status to Canadian selections and whether this might dispose stations simply to playing tried and true Canadian material to the detriment of newer artists. This issue was not addressed by the new policy.

However, this would become an increasingly important issue for Canadian content, although some eighteen years later the matter has yet to be resolved. The

Commission sought opinions on whether broadcasters might commit to on-air exposure for new Canadian talent (CRTC, December 19, 1990). But the concern shows a development in the Canadian broadcasting and music industries and in their relationship. With a growing number of Canadian selections available, supply was no longer a particular concern, especially given the increasing popularity of ‘classic’ and ‘gold’ radio formats that relied much more on older material. In this circumstance, while Canadian content regulations could ensure a steady flow of performing rights royalties to Canadian songwriters, they were perhaps of less use in harnessing radio’s promotional potential.

It was increasingly evident that the top tier of Canadian artists, such as

Bryan Adams, Celine Dion (or, indeed, established stars who had made their careers more or less entirely outside the Canadian industry, such as Neil Young or

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Joni Mitchell) qualified as Canadian content just as much as new and emerging artists, although it was clear they would get airplay even without the regulations.

Some in the industry began to call for changes to the regulations that would encourage radio stations to play new and emerging Canadian artists, instead of relying on established artists and older songs. In a sense it is possible to view the policy as a victim of its own success: with a considerable number of internationally successful Canadian artists, there were questions about how necessary the policy was. Some of this was not so much the fault of the policy as it was a reflection of changing practices in radio programming, which had come to rely increasingly on ‘classic’ or ‘gold’ formats. Such formats relied much less on current hits and programmed a high proportion of material from the past, much of it ten to twenty years old. Canadian content regulations as formulated could not address this issue. It was becoming apparent that without some means of getting new artists on radio, that the regulation were out of synch with Canadian Talent

Development policies or federal programs such as the Sound Recording

Development Program. Without access to the airwaves, these acts were in much the same position as Canadian artists prior to Canadian content and the monies spent on production of masters were wasted. Canadian content regulations had already been deemed insufficient on their own to maintain a Canadian music industry (a matter we shall pursue at length in the next chapter). Here we can see questions about the efficacy of the regulations, given the nature of radio programming practices and the various, sometimes competing, needs of the music industries, the regulations were in this regard too wide in their application.

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The 1990s – New Pressures on Canadian Content

In the wake of the new regulations for FM, the Canadian content regulations had their most public controversy since their initial introduction. This episode is worth noting as it illustrates the degree to which the music industry had matured, and the tensions that resulted. The facts of the case concerned singer Bryan

Adams – Canada’s most successful recording artist at the time and, perhaps, ever.

Adams was currently topping the charts around the world with his album Waking

Up the Neighbours and its even more popular hit single “Everything I Do (I Do It

For You),” when it emerged that under the MAPL system, the song did not qualify as Canadian content. This was because it was recorded in the UK, and the songs were all co-written (music and lyrics) with the album’s producer, South

African Robert “Mutt” Lange. The situation apparently enraged the singer who seemed to suggest that he, personally, had been accused of not being Canadian.

Adams lashed out at the CRTC, government policy on music and the entire

Canadian music industry, as did his manager, Bruce Allen – long a controversial figure, and already hostile toward much of the Canadian music industry. There were accusations that the Canadian music industry and policies such as Canadian content fostered mediocrity and resentment of truly successful artists. If there had been no particular resentment of Adams prior to the incident, there certainly was afterward.

The industry’s response was to point out the considerable benefit Adams had received from the Canadian content regulations earlier in his career as an emerging Canadian artist. Evidently Adams needed no support from Canadian

147 content at this stage in his career, the song was already at number one and could hardly have benefitted from a Canadian content designation. But the situation did appear ridiculous and made for a captivating story pitting artists against bureaucracy. This was exacerbated when it emerged that had Adams credited the lyrics and music separately, taking sole credit himself for one of these, the song would have met two of the four criteria and thus qualified. This also raised questions with some about the way Canadian content was determined. If because of seeming arbitrary categories, material by a Canadian superstar was excluded, what did Canadian content actually mean? The ability of Canadian content to define Canadian and to encompass the various definitions of a Canadian music industry again showed signs of reaching its limits here. In this instance Canadian content regulations were criticized for being too narrow.

In response to the controversy the CRTC asked for input from the music industries, which duly constituted a taskforce to examine the issue. This taskforce included the Canadian Country Music Association (CCMA), CIRPA, CRIA,

CMPA, the Songwriters Association and SOCAN (the collective formed by the recent merger of PROCAN and CAPAC). The breadth of music industry representation and the absence of broadcasters were notable here – further evidence of the degree to which the music industries had become central to policy deliberations on Canadian content. The taskforce reported back to the CRTC, recommending that the regulations be modified such that a 50% contribution by a

Canadian in the lyrical of musical composition allowed it to qualify for the full point. This rendered the song Canadian. A call for comments followed. CAB’s

148 response was to suggest more sweeping changes to the MAPL regulations, such that Canadian designation for the artist would be sufficient to make a record

Canadian. What was perhaps more interesting is that this suggestion was subsequently picked up by CRIA. Even as the taskforce (on which he was serving) met, CRIA’s president Brian Robertson appeared to be distancing himself from its findings. In an appearance before the Parliamentary Standing

Committee on Communication and Culture, Robertson was asked whether the

Canadian content regulations should be tightened or made more flexible. His reply suggested a different position from that of the taskforce.

[The policy] certainly has some idiosyncrasies, but I don’t

think you can blame the CRTC. I think you have to look at the

pressure they receive from the Canadian production sector in

terms of maintaining the two-out-of-four criterion. I tend to

think that if one out of four had been suggested, they may have

gone along with it.

(C.P.HCSCCC, 1991: 4:17)

This difference would emerge even more strongly at the next major review of radio policy in 1997. For the time being, however, the Commission held to the taskforce’s recommendations and elected to make only those changes sufficient to render Adams’ recordings Canadian (CRTC, April 30, 1992).

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While this incident demonstrated a considerable level of cooperation among the various fractions of the music industry, the Bryan Adams incident illustrated the degree to which there could be competing interests in the industry around the criteria for Canadian content. This would emerge even more strongly at the 1997

Review of Radio. In many respects the hearings were a strong success for the music industry. The Canadian content levels for most popular music were raised to 35% and broadcasters were directed to maintain this level on weekdays from 6 am to 6 pm (CRTC, April 30, 1998). Broadcasters, led by CAB, had asked that the Canadian content levels not be raised but that they be set to a rate twice that of the market share for Canadian recordings (rounded off to the higher ten), which averaged around 15%. Thus they were asking for the 30% level to be maintained.

Again, broadcasters were emphasizing the dependence of their industry on the supply of recordings, but this time with the added dimension that what constituted an acceptable supply depended upon existing consumer demand. There was no suggestion in this proposal that radio had a role to play in stimulating that same demand. It may be that the rationale for this position derived from the recent enactment of neighbouring rights in the latest round of copyright revision. The situation of radio paying record companies and performers to play their recordings also challenged radio’s promotional value (of course, in the copyright debate, radio’s value as promotion was a central theme in the broadcasters’ position).

CAB also asserted in their briefs that the supply of Canadian recordings was unreliable and volatile, such that they could not be expected to meet strict levels at all, let alone higher ones. In exchange for more flexibility in Canadian content

150 requirements, CAB offered to increase off-air promotional efforts, including setting up an Internet retail store for Canadian recordings. Similar to what CFNY had argued in 1985, broadcasters proposed they could do more to promote recordings off the air than on it (CAB, September 30, 1997). Even so, CAB had negotiated a considerable decrease in its overall Canadian Talent Development commitments only two years previously. All of this was presented in the context of radio as an industry in financial crisis. Radio revenues had suffered through the early 1990s and the industry claimed to need concessions to allow it to recover.

Alongside requests for less stringent (or at least not enhanced) programming commitments, the industry proposed a number of measures that would limit competition from new entrants and allow for greater consolidation in the industry, particularly within single markets.

In previous reviews of radio policy music industry representatives had contented themselves with commenting on matters pertaining to Canadian content programming and Canadian Talent Development – those areas of broadcasting policy that most directly affected their constituency. Indeed, this had been

CIRPA’s strategy through much of the 1980s. At this hearing, music industry representatives challenged radio, not only on these matters but also on their proposals concerning ownership and competition. The thrust of the music industries’ arguments is found in the title of ADISQ’s submission to the hearings

“Encores, plus des privilèges; Encore, moins des responsibilités (More privileges, fewer responsibilities) (November 3, 1997). Radio was asking to renegotiate

Canadian content and other programming commitments on market conditions

151 rather than policy objectives. At the same time they wished to be free to consolidate ownership, limit new entries into markets and to buy and sell licenses with as little constraint as possible. The music industry groups opted to take a similarly broad approach. In doing so, these groups showed how fully they taken on the role of radio broadcasters’ opponents on a broad range of issues. As already suggested, some of this was doubtless a spillover from the debates between the same actors on copyright issues. The financial health of both industries was a key issue in the presentation of arguments for and against neighbouring rights. Studying the finances of radio (much of which was in private hands) was difficult for the music industry. They had, however, assembled a considerable dossier on the financial operations of broadcasters to support their arguments in favour of neighbouring rights. Given that the CAB proposals were all grounded in the assumption that the radio industry was in crisis, the music industry’s approach was to attack the entire basis for CAB’s position.

The CRTC, in their role as arbitrator, showed itself quite willing to allow broadcasters more flexibility in terms of ownership within limits. However, there were no concessions to broadcasters on programming regulations, which were either strengthened (Canadian content) or maintained (French language vocal music). In both cases the Commission maintained that the supply was sufficient and that airplay constituted valuable exposure and support for the artists and the industry. As far as the radio broadcasters’ pleas of poverty were concerned, the

Commission reasoned that programming Canadian content did “not generally involve large incremental direct expenses since radio stations do not have to pay

152 for the production of the recordings. Therefore, playing Canadian music is a contribution to the Act’s objectives that radio can make, even in times of economic difficulty” (CRTC, April 30, 1998: 41: Item 93). Moreover, Canadian

Talent Developments (which we will deal with at more length in the next chapter) were enhanced in one respect with the imposition of a fee of 6% of the value of the transaction in transfers of ownership.v

Another interesting development was the emergence of various differences in opinion various sectors of the music industry regarding the way in which

Canadian content was defined. The diverging positions of the various fractions of the music industries illustrated that their interests did not coincide and that their agreement on issues, as had been the case through much of the past decade, was by no means automatic. The coalition of interests that characterized their lobbying and advocacy was beginning to break down. With respect to the MAPL system

CRIA, were of the opinion that the artist component should be given more weight than the others (CAB went further and asked that this component be sufficient for

Canadian content designation) (CAB, 1997; Personal Communication: Brian

Robertson, Canadian Recording Industry Association [CRIA]. September 29,

1997). The advantage to CRIA’s members in this was that their growing roster of

Canadian artists of international stature, such as Bryan Adams or Celine Dion, could continue to count as Canadian content, even while utilizing foreign songwriters or studios. ADISQ asked for a thorough review of MAPL in order to develop a system that more accurately assessed the issues of production and ownership of recordings. The Alberta Recording Industry Association suggested

153 tightening the regulations to make Canadian residency a requirement (1997).

CIRPA, along with SOCAN and SPACQ wanted the status quo (CRTC, April 30,

1998). SOCAN and SPACQ’s motivation is relatively straightforward – as representatives of composers and lyricists, their revenue benefitted from the

Music and Lyrics designations in Canadian content. CIRPA, as the representatives of the Canadian-based recording industry (including a number of recording studios, as well as record companies with fewer options to record abroad) also had sound motives for leaving the requirements as they stood. The Commission agreed, arguing that ARIA’s suggestion of a residence requirement for the Artist designation would be too difficult to assess and enforce (CRTC, April 30, 1998).

At the same time they concluded that privileging the artist would not help further one of the policy’s main rationales, that of supporting a Canadian music industry.

This support was no longer simply one of promotion. For songwriters, music publishers and their representatives, Canadian content, as we saw earlier, represented tangible revenues through performing rights. With the recent enactment of neighbouring rights, the same applied to record companies and performers. There were few claims made at the hearing for the direct promotional benefits of radio, by either broadcasters or by the music industries. Indeed, radio’s role in this regard had declined somewhat since the introduction of the regulations in 1971. Increasingly tight programming policies and an increased reliance on classic, gold or oldie formats further diminished radio’s requirements for new music. The use of other media and marketing techniques also provided other promotional options for music. And again, mindful that any claims they made

154 about the promotional value of radio might be used against them at hearings on copyright, the music industry representatives either simply assumed Canadian content’s importance or pointed to it as a compact between broadcasters and

Canada – the presence of artists on the air in exchange for the use of a scarce resource – the airwaves.

As suggested earlier, an issue that remained unresolved was how to get new artists on the radio. Agreeing with the music industries’ position, the CRTC was supportive of new artists getting airplay but was worried that giving broadcasters a bonus in Canadian content compliance for doing so might reduce Canadian content levels overall (April 30, 1998). The Commission’s answer was to reiterate the importance of Canadian Talent Development and to wait to see whether the new Canadian content levels would have any impact before introducing any new regulations. The issue of how to get newer artists on the radio was not specifically a problem of Canadian content but one that faced record companies in every market. Nor was it a particularly new problem – airplay had long been far more limited than the number of new recordings (hence some of the imaginative and, occasionally dishonest methods used by the industry over the years to obtain it).

The issue was not solvable in the terms of Canadian content. If some observers complained that Canadian content resulted in a narrow selection of established

Canadian artists receiving the airplay, it was also true for radio generally that established artists dominated. This shows just one of the limits of Canadian content as a policy.

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There were also other limits, some of which the policy had already run into and others which were about to become far more evident. Inasmuch as the regulations depend on a particular configuration radio broadcasting and the music industry, there have always been issues that they could not address. The expansion and refinement of Canadian content on radio during these hearings were in contrast to the policy’s application to new media. If there was a way of ensuring a considerable Canadian presence on these media, it was not to be found through the same quota regime. The Canadian content regulations assumed not only certain configurations of music industries and radio broadcasters, but also the technology of broadcasting. The model was developed with broadcasting in mind and worked less well, the further one got from this form of media. Although it was applied to an entire broadcast system, its unit of measure was the programming of single stations. Where it could be applied to single stations or channels, the regulation was relatively straightforward to apply. This was the case for MuchMusic when it was first licensed. For regulators, the question was simply one of setting the appropriate level for the station.

The difficulties arose with the provision of other new services, many of which originated in the United States. This was brought home to both the music industries and to the Commission with the application for digital cable radio in

1992. Two cable companies, Shaw Cable and Cogéco, proposed to offer digital audio cable services, licensed from American companies. Shaw’s service consisted of thirty channels from Digital Music Express (DMX), to which they proposed to add five channels of their own with higher Canadian content levels,

156 ranging from 30% to 100%. Cogéco was set to offer thirty-eight channels from

Cable Digital Radio (CDR), with seven more of their own, ranging from 50% to

100% Canadian content. Both proposals were at odds with existing Cable regulation, which stated that the “overall number of television channels allocated to the distribution of Canadian services on any cable undertaking, excluding the community channel and the Canadian alpha-numeric services channel, must be greater than the number of channels allocated to the distribution of non-Canadian services” (CRTC, April 2, 1984b: 5). They were also at odds with the manner in which Canadian content guidelines for radio, being both lower in level (CIRPA’s estimate of DMX being 8 %) and essentially ‘ghettoized’ on several channels.

Both applications met with concerted opposition from the music industries, both on the basis of Canadian content and with the low level of rights payments, as well as the threat that CD quality sound at $9.95 per month might pose to their sales. Nonetheless, the CRTC approved both services in June 1993 (CRTC, June

25, 1993), a decision that resulted in 3 appeals to cabinet (two of them from representatives of more or less the entire spectrum of the Canadian music industries). Cabinet returned the decision to the Commission asking it consider, among other matters “why the said undertakings cannot make greater use of

Canadian music content” (Canada. Privy Council, September 23, 1993: 1). There were new hearings, with amended submissions from both applicants (both with higher levels of Canadian content). Cogéco, reasoning that with increased

Canadian content they could not compete with Shaw nationally, asked for an exclusive regional license in Quebec and the Atlantic Provinces. Shaw maintained

157 that they wanted a non-exclusive national license. The Commission rejected

Cogéco’s bid on the basis that an exclusive regional license departed substantially from the initial bid. As for Shaw’s application, for the CRTC to accept their bid while rejecting Cogéco’s would have left Shaw with a de facto national monopoly and it was deemed that this being so, their levels of Canadian content were not sufficiently high. The CRTC rescinded its initial decision in August 1994 (CRTC,

August 23, 1994). This rather convoluted process demonstrated the limit of the ability of Canadian content to deal with an increasingly globalized media environment, where the majority of offerings did not originate in Canada. The alternatives were either to reject the service altogether or to allow it with

Canadian content levels that were far below those for conventional broadcast or even cable. This episode would be replayed over again, with almost exactly the same scenario when satellite radio was introduced to Canada a decade later – only this time, cabinet would uphold the CRTC’s initial decision.

The Internet posed an even greater challenge for Canadian content. In 1994, in anticipation of the new media, the government set up the Information Highway

Advisory Council (IHAC). IHAC included a Working Group on Canadian

Content and Culture. The Working Group issued its report in 1995, recommending that in order to ensure a Canadian presence on the information highway, that the CRTC’s mandate and role be reaffirmed and extended to cover the new media (Industry Canada, 1995). Depite this recommendation in 1999, after holding hearings on new media, the CRTC itself made the decision not to regulate the internet with respect to content (CRTC, May 17, 1999). The

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Commission reasoned that the Internet did not pose issues of spectrum scarcity and that there was a large amount of Canadian material available (even if, proportionally this amounted to only about 5%). However, the tremendous difficulties inherent in imposing any kind of meaningful content regulation on the

Internet must have been obvious to the Commissioners. Canadian content was not an especially useful policy for ensuring Canadians could access to the Internet as providers of content. Instead of quotas, the government would turn to programs for promoting and developing a Canadian presence on the new medium. Simply put, Canadian content regulation was based on a very different technological model and it was not adaptable to the Internet’s open architecture. As this new technology became increasingly widespread and prominent it somewhat marginalized Canadian content regulations’ in terms of their relevance. This was so even for the music industry, which was becoming increasingly preoccupied with the effects of the Internet at this time. Generally speaking, after 1998, the issue of Canadian content on the radio would begin to recede somewhat as the media environment shifted towards the Internet and other computer media.

Conclusion

The specific effects of Canadian content regulations are difficult to assess because there are simply too many factors involved. Certainly, since the introduction of the regulations there have been a considerable number of successful Canadian musical artists, although a number of these have little to do with the regulations or indeed the Canadian music industry. The majority of sales of recordings have continued to be those of foreign artists. Canadian artist’s share

159 of sales, as CAB pointed out in the 1997 review of radio, has never come close to reaching the 30% level of the Canadian content quota. Nor could the policy, as formulated distinguish between new artists and old, those signed to major labels or to Canadian owned ones. But it is at its limits that Canadian content becomes productive in terms of requiring other policy. As we discussed earlier, the CRTC could only indirectly assist the Canadian music. Even as an externality (as supplier or beneficiary), this industry remained important as both enabling the policy to be sustained (by supplying the necessary programming) or as a measure of the policy’s success (through increased sales of recordings). So although the music industries remained somewhat outside the policy frame of Canadian content, it was through the regulations that these industries were able to connect with cultural policy. And although the CRTC, and Canadian content in particular, proved unable to address the financial fragility of Canada’s domestic music sector, the policy itself provided part of the rationale for supporting the industry by more direct means. This issue would be addressed by other policies, both from the CRTC and other fractions of the federal government — the subject of our next chapter. By the early 1980s it was clear that the production of Canadian artists would still fall largely to the chronically undercapitalized domestic independent labels and that airplay alone would not guarantee their success. As a result, and in part to make the Canadian content sustainable, new initiatives such as the Sound

Recording Development Program were brought into being. Canadian content’s initial effect would also be apparent in the administrative structure for these programs, disbursed largely by FACTOR, a private foundation set up by the

160 independent recording sector and Canadian broadcasters. Similar to what we saw in the 1970s music industry in the wake of the regulations, Canadian content’s importance in policy terms to some extent lies in the actions of others that it mobilizes.

i FM Content Categories, 1975 0 News 1 Community Service 2 Backgrounding 3A Hobbies 3B Sports 4 Human Interest 5 Spoken Word – Other

6 Music General (CRTC, 1975:26) - 61 General Popular - 65 Rock and Rock-Oriented - 66 Country and Countriy-Oriented - 67 Folk-Oriented - 68 Jazz-Oriented 7 Music – Traditional/Special Interest - 71 Classic - 72 Opera - 73 Operetta Musical - 77 Folk - 78 Jazz - 79 Non-Classic Religious 8 Production 9 Advertising and Station Contests (CRTC, 1975: 29)

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Program Formats –for both AM and FM (1975) Gramophone Format – Presentation of musical compositions without any discussion by an announcer of the nature or quality of the music. Rolling Format – The same as the gramophone format except that it is also characterized by the presentation of so-called “surveillance material”, such as time and weather announcements. Foreground Format – Characterized by the presentation of one particular theme, subject or personality for at least fifteen minutes without interruption by unrelated matter except station or program announcements or advertising material. Mosaic Format – Any other kind of format of presentation of program material. (CRTC, 1975: 13) ii Implementation of the FM Radio Policy, 1979 Foreground and Mosaic programming, combined, was reduced from 40% to 33% for independent licences and from 60% to 50% for joint FM licences. Canadian Music: “While retaining the 7% requirement for category 7 music, the Commission, during Phase I, established new norms for category 6 music. It did this on the basis of an evaluation of the individual submissions by broadcasters, and upon consideration of the levels of Canadian music available in relation to the different musical services proposed by the various applicants. These levels are as follows: Traditional MOR 15% Contemporary MOR 20% Middle-of-the-Road 15% Easy Listening 10% Country 30%” (4). Repeat Factor and Hit/Non Hit Status: A maximum repeat factor 18 per week per song. New Canadian selections that have not achieved “hit” status were exempted from this consideration. “By “hit” the Commission means any musical composition in category 6 that has reached any of the top 40 positions in a major national or international trade magazine” (CRTC, April 20, 1979: 7). iii 1984 Consultative Committee Recommendations The Consultative Committee recommended that the Subcategories of Popular Music under Category 5 (Music-General) be: Subcategory 51: Pop & Rock – Softer

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Subcategory 52: Pop & Rock – Harder Subcategory 53: Country & Country-oriented.

Additionally, the Committee recommended the following definitions for formats playing Category 5 music: Group I – Stations devoting 70% or more of their music programming under Category 5 to Subcategory 51. Group II – Stations devoting 70% or more of their music programming under Category 5 to Subcategory 52. Group III – Stations devoting 70% or more of their music programming under Category 5 to Subcategory 53. Group IV – Stations with specific musical programming plans relating to Category 5 (but not falling into the above categories. (CRTC, April 5, 1984) iv All Canadian material was exempted from “Hit” status, allowing unlimited repeats of these selections, instead of just 18 times per week. As well, for FM, selections that had entered the Top 40 more than 2 years previously were also exempted from “Hit” Status to allow greater diversity of programming (CRTC, March 19, 1986). v Hit/Non-Hit ratios were not addressed at this review, as they had been discussed earlier in the year. At that time, the CRTC opted to maintain the current 49% ratio for hits on FM radio but adjusted the definition of hit. To the following: “A hit is any selection that, up to and including 31 December 1980, reached one of the Top 40 positions in the charts used by the Commission to determine hits. All other selections will be considered as non-hits for purposes of determining compliance with a station's Promise of Performance” (CRTC 1997-42: 31). This applied to all commercial FM stations, except for English stations operating in Ottawa/Hull and Montreal.

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Chapter Four: Funding a Canadian Music Industry: The Sound Recording Development Program & Canadian Talent Development

The gradual enrollment of the music industry into the policy community around Canadian content regulations disguised the fact that it was only indirectly affected by these measures. It is true that the Canadian music industry clearly benefitted from them. At the same time policy relied upon the music industry to generate the necessary supply of recordings to maintain the requirements placed on radio broadcasters. However, the regulations could neither guarantee that sales would result from the airplay, nor could they guarantee that there would be an industry capable of supplying the necessary programming. Although it was clear that the regulations assumed that the programming would be produced by music industries, there was no specific requirement to this effect; in rejecting the efforts of music publishers to specify Canadian copyright ownership, the Commission kept nearly all of the industrial considerations outside of the regulations. The

Production element, as well simply required that the recording be made in Canada but without any specification as to the circumstances or under whose auspices. As we saw in the last chapter, the regulations did not apply solely to recordings made by Canadian-owned companies but equally to recordings made by major labels, by artists who had little or no association with Canada other than by birth. All of this supports the assertion that if Canadian content regulations were important for the Canadian music industry, they were not a Canadian music industry policy.

In describing the various measures undertaken by the federal government, the 1982 Report of the Federal Cultural Policy Review Committee (commonly

164 known as the Applebaum-Hébert Report) noted that these “…constitute[d] only the bare beginnings of a federal policy for Canadian sound recordings” (236).

Likewise, in 1983 Paul Audley, having identified Canadian content regulations and the tariff on imported finished discs as the most important policies affecting sound recording, noted that there were “…no loan capital assistance programs, no significant cultural grants and no tax incentives either for investment in Canadian- controlled recording companies or for investment in the development and production of Canadian-content recordings” (173). All of the instruments that

Audley identifies are forms of subsidy and all were established instruments of

Canadian cultural policy, having already been applied to other cultural industries such as feature film or book publishing. However, at this stage, the question was not how the government might fund a sound recording industry but whether it would fund it in the first place.

Much of the impetus for funding, from the industry’s point of view at least, came from a chronic lack of access to capital, at least for the Canadian-owned, independent labels – a difficulty that neither Canadian content regulation nor the tariff on finished discs could address. This situation was exacerbated by the decline in record sales that began in 1979, alongside, as Grenier (1993) points out, a general recession and a period of high interest rates in Canada. The years from

1979 to 1984 saw a 15% decline in the number of Canadian content recordings released annually (Communications Canada, 1987: 51). This was accompanied by a decline in Canadian recordings’ share of the market, which declined from 17% in 1982 to 11% in 1984 (Ibid.). For the Canadian owned sector, their share of the

165 market for recordings also declined (despite a spike to 22% in 1982) to 11%, the lowest levels since Statistics Canada had begun collecting these figures in 1977.

One of the effects in Canada of the 1979 crisis in the international recording industry was a greatly reduced role on the part of the major labels in releasing

Canadian recordings (Grenier, 1993: 210). Their release of Canadian material declined 47% from 1978 to 1979 and generally remained low throughout the

1980s. Despite the difficulties the multinational firms underwent during this period, they managed to remain generally profitable and retain their dominance in market share, based on sales of foreign-owned masters (Audley, 1983: 156-157).

As large multinationals, often divisions of yet larger conglomerates, these companies had relatively little difficulty with financing. The same period saw the

Canadian-owned sector increase its share of the output of Canadian albums from an annual average of 627 through the late 1970s to an average of 764 through much of the 1980s (Ibid.). On occasion this greater role in production carried over into sales, as happened in 1982 (Communications Canada, 1987: 53). This was based on the success of acts such as Triumph, Bob & Doug MacKenzie and

Chilliwack among others. There was even talk of a ‘Canadian invasion’ into the

US at the time (Goddard, March 18, 1982). There was certainly no shortage of record labels. In 1983, CIRPA estimated that there were approximately 250 record labels in Canada (although many of these were “vanity” labels, run by the artists themselves)

(CIRPA, 1984: 9).

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But the successes were difficult to maintain because of ongoing structural problems for the industry around access to capital. In a 1979 proposal for a tax incentive for the Canadian-owned recording sector, CIRPA outlined not only a highly concentrated industry, but also the costs and risks that independent producers faced in producing recordings. CIRPA estimated that a master record album in Canada cost $35,000 to produce (CIRPA, 1979: 2) and a further $20,000 to promote (Ibid: 3). In order to recoup these costs needed to achieve sales of

50,000 units (Gold Status). On average, they claimed, only 10% to 20% of the

530 recordings released by their members in 1977-78 had recovered its costs

(CIRPA, 1979: 3). Thus the risk to record labels was generally very high. The major labels could spread this risk among a much larger number of releases, but this was not a possibility for the small Canadian labels. The riskiness of these ventures and the fact that the small labels rarely had assets that would be acceptable as collateral for lenders restricted their ability to compete with the larger companies, which, as just mentioned, had much better access to the capital necessary to produce and promote their releases.

As we mentioned in the introduction, the arrival in Canada of a music industry policy was relatively late in comparison to other cultural industries. Film had attracted the attention of government early on, first with the Canadian

Government Motion Picture Film Bureau in 1918, later and more significantly with the creation of the National Film Board in 1938 (Magder, 1993). In this instance government was directly involved in production. Dorland’s account of the creation of the Canadian Film Development Corporation (CFDC, later

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Telefilm) in 1967 shows the government moving from engaging in production through its agencies to a policy of support for film production in the private sector. The Canadian book publishing industry had also benefited from government assistance from the 1970s on through the Canada Council, as well as through the Book Publishing Industry Development Program. With the creation of the Sound Recording Development Program (SRDP) in 1986, we have for the first time a policy aimed primarily and explicitly at a music industry in Canada, specifically, the recording industry. Its creation not only indicates a desire to foster the growth and stability of this industry but also serves as an acknowledgement of its existence. This is important for understanding the timing of the program as well as the form it took – essentially a form of subsidy for the industry. There are several factors in this acknowledgement. First, there is the growing activity of a Canadian owned recording sector. During the late 1970s, when the global recording industry suffered its first major setback since the

1950s, the independent Canadian-owned sector took on a greater role in the production of Canadian recordings. Alongside of this was the sector’s increasing dialogue with the federal government through the agency of groups such as

CIRPA and ADISQ. Finally, as the articulation of the term ‘cultural industries’ came into being, there was a term that allowed the government to classify the industry and allow it to take its place alongside film and television production and book publishing. In a sense, this marks the stage at which the recording industry becomes encultured. The choice of subsidy as the instrument for addressing the industry was modeled on Canadian Film Development Corporation/Telefilm, as

168 well as the Book Publishing Industry Development Program. However, the SRDP would also have some distinctive features.

The SRDP grew into a program providing approximately $10 million in annual funding to Canada’s music industries until it was superseded by the

Canada Music Fund in 2001 (Canadian Heritage, 2008b). These funds were in the form of both grants and loans, primarily for the production of master recordings, although there were a number of other programs as well for marketing, music video production, and tour support, among other activities. The programs were available only to Canadian-owned companies and were project-based – for producing the work of Canadian recording artists. The most distinctive feature of the SRDP has been that it has been largely administered not through a government department, agency or crown corporation but through two private foundations: the

Foundation to Assist Canadian Talent on Record (FACTOR), for English Canada and MusicAction for the francophone sector. This arrangement continues to this day with portions of the Canada Music Fund – the New Musical Works

Component and the Collective Initiatives Component (Canadian Heritage, 2008b).

Whereas Canadian content was vague and indirect in relation the Canadian music industries, the Sound Recording Development Program was specific and much narrower in what it addressed. The policy names only one of the music industries directly, sound recording, although there were components that applied to other industries, such as publishing and performance. Garofalo, comments on this ascendance of record companies to a central role in the music industries from the 1950s on (1999). Sound recording had become the center of a configuration of

169 music industries. It was not simply that record sales generated the largest amount of revenue, but that the recording, as the dominant commodity form of music drove almost all other aspects of commercial activity around music, from live performance to music publishing. If music publishing remained an important and lucrative aspect of the business its role had become increasingly ancillary – dependent for revenues on sales of recordings and on the airplay these received.

Increasingly, the larger publishing companies were divisions of record companies.

Although it was generally run at arm’s length from the record company, publishing was seen as a way of maximizing revenues by capturing more of the proceeds arising from sound recording. Thus, when a policy developed specifically for the music industries emerged, it addressed the dominant industry: sound recording, which was seen as the crucial point of intervention for the music industries generally. The program was also restricted to Canadian companies, recording Canadian artists. Foreign-owned companies were excluded from receiving funding under the program; however, they could still benefit from the program indirectly. First, the majority of the independent labels receiving funding under the SRDP had major label distribution. In fact, with viable distribution as a requirement for many of the programs, the major labels were essential to the policy’s proper functioning. Second, artists whose careers benefited from the grants and loans might well eventually end up on major labels. While Canadian content defined its categories mostly in terms of the creators and performers, the funds disbursed under the SRDP were for the most part given not to individual artists but to the labels they recorded for. In contrast to the Canada Council, the

170 program was targeted at building a viable industry, not simply as a means of furthering Canadian artistic expression.

In this we see a more precise and narrow conception of the industry than in

Canadian content regulations. Here ‘Canadian’ means Canadian-owned; foreign- owned labels are relegated to infrastructure, as distributors. Sound recording is privileged as the defining activity of the music industry, both in terms of the program’s name, as well as the bulk of the funding. The relationship between music industries and radio broadcasting is still operative and is a feature in the rationale for the SRDP, as well as in its administrative structure. The SRDP inherited some of this from Canadian content regulations and other broadcast regulation. If, as we suggested, the limits of Canadian content’s efficacy necessitated other, more direct measures, the policy did bequeath other legacies.

Chief among these was the high level of involvement of radio in the Canadian music industry. As unwilling and obstructive as it may have been in this regard, the radio industry was still required to play Canadian music and thus had an interest in seeing that there was an adequate supply. We will explore these aspects of the policy and of this aspect of its development but first we will examine some of the more general developments in cultural policy in the context of which this occurred.

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The 1982 Report of the Federal Cultural Policy Review Committee and the

Industrialization of Culture

One of the first references to a policy for the cultural industries occurs at the very end the throne speech of the Clark government in October 1979, which promised that “[t]he Canadian Film Development Corporation Act will be amended to significantly increase private sector participation in the corporation and to broaden its mandate to encompass development of the recording and publishing industries in Canada” (Canada. Parliament. House of Commons

Debates, 1979: 6). The Progressive Conservatives’ stated emphasis on a greater role for the private sector in producing Canadian culture is reminiscent of the

Diefenbaker government’s moves to establish a greater for role for private broadcasting twenty years earlier. That process had led to the establishment of the

Board of Broadcast governors and a much-reduced role for the CBC. Lasting barely two months as a minority government Clark’s government did not have time to institute any policies as momentous. However, it did initiate the first full- scale review of cultural policy in Canada since the Massey Commission from

1949 to 1951. David MacDonald, the Secretary of State and Minister of

Communications in Clark’s government, instituted an advisory committee on cultural policy chaired by Canadian composer Louis Applebaum to prepare for larger policy review. When the Liberals returned to power in 1980, Francis Fox succeeded David MacDonald. Fox “transformed [the advisory committee] into the

Federal Cultural Policy Review Committee” (Raboy, 1990: 270), adding Quebec

172 writer and publisher, Jacques Hébert as co-chairman, alongside Applebaum, and scaling up the committee’s scope and mandate.

Wagman has suggested that the 1982 Applebaum-Hébert report marked an important transition in Canadian cultural policy toward an emphasis on “the marketing and distribution of cultural products” (2001/2003: 214-215). Further, he notes that it is at this point that sound recording is first acknowledged in

Canadian cultural policy as a cultural industry alongside others such as film or publishing. As we suggested in the introduction the coincidence of these two developments is key in the development of music industry policy. Whereas the report presented a new view of publishing or film as commercial, and not simply cultural, activities, the opposite is the case for sound recording, which, when it appeared in policy at all, had done so as a manufacturing industry. The measures that had most directly affected it (apart from the Canadian content regulations) were the tariff on manufactured goods and copyright law, neither of which were within the realm of cultural policy at the time. There was virtually no reference to recordings or to the recording industry in the earlier Massey Commission’s report and the only subsequent point at which one could associate the music industries with cultural policy came was via the broadcasting policy of the CRTC. Thus, the

Applebaum-Hébert report marks the point at which the federal government first addressed sound recording as culture. Arguably, it is the consideration of the commercial aspects of culture that makes this possible, as it created a common ground between sound recording and the other cultural industries. Indeed the term

‘cultural industries’ (which, as discussed in the introduction, was entering the

173 policy discourse of the time (Raboy, 1990: 270)) is the conceptual form of this ground. The Applebaum-Hébert report, with its emphasis on industrial and commercial aspects of culture, thus laid much of the foundation for the development of the Sound Recording Development Program, not only in terms of specific recommendations but also in setting the basic parameters of the program, which was not targeted to musicians or to composers but to those companies engaged in the commercial exploitation of their work.

The Applebaum-Hébert report’s first three chapters set out a broad vision of cultural policy and served as context for the more specific, sectoral recommendations that followed in subsequent chapters. The committee viewed the role of cultural policy as encouraging both the quantity and quality of creative activity in Canada, leaving the definition of creative activity deliberately vague.

The overall vision for Canadian cultural policy was to be open-ended and inclusive. Perhaps the strongest statement in this regard was found in the first chapter.

In recent years, preoccupation with policy coherence and

coordination has led to what we believe has been a dilution of

cultural policy goals. We have observed a tendency to treat

cultural policy as a means to other ends – social, economic

and political…

(C.FCPRC: 8)

There is, as a result, much less emphasis in the report on issues of national

174 identity and unity, which had dominated many earlier cultural policy documents.

Creativity and culture were presented as worth pursuing in their own right.

Nonetheless the report did acknowledge that cultural activity did have social, economic and political implications and they discussed these at length in the next two chapters. The second chapter dealt in large measure with government’s role in promoting creativity, offering a rationale, as well as outlining the ways in which this had been and could be done. The third chapter’s discussion of the political economy of culture was salutary in addressing the very real economic dimension of cultural activity (a matter which the Massey Commission’s report had done its best to ignore or exclude). With an emphasis on promoting creativity, cultural industries were acknowledged as one among several spheres within which such creativity could take place.

Certainly, the report’s chapter on sound recording demonstrated an awareness of the industrial dimension of sound recording. The introductory passage, aimed at establishing sound recording’s pervasiveness, spoke of music’s use in commercial spaces, such as “restaurants” and “department stores”

(C.FCPRC: 235). The significance of recordings was grounded not just in social or aesthetic terms but also in the use of sales figures ($580 million dollars in

Canada in 1980). This is already very far from the tone of the Massey

Commission. The industrial aspect is carried through in the discussion that follows. The sound recording sector was divided into markets (mass and specialized – the former, essentially popular music genres and the latter, classical, jazz, children’s and folk music), with reference to the considerable role of the

175 multinational companies and their domination of the mass market through their control of manufacturing and distribution. The report was at pains to emphasize the importance of distribution in the diffusion of music, the considerable costs involved in production and the marketing practices of retail – no doubt informed, not only by witnesses and submissions, but also by the considerable expertise of committee member Sam “The Record Man” Sniderman, head of one of Canada’s largest music retail chains. The central role of technology in the sector also received meaningful discussion, as the report commented on the difficulties raised by recordable audio-cassettes, and speculated on the possibility for digital distribution in the near future.

This certainly identifies sound recording as an industry and situates musical activity within the market. But the report’s recommendations embraced private industry and popular music rather less enthusiastically. There were seven of these.

The first was that the CRTC continue to apply Canadian content regulations. The report recommended the federal government “assist Canadian-owned companies to distribute recordings of “pop” music and of specialized materials” (C.FCPRC:

241) and that “for specialized recordings only” provide financial assistance for production. The CBC was enjoined to “increase its production of quality recordings by Canadian artists and improve its promotion and distribution of such recordings” (ibid.). The report also recommended federal assistance for efforts by

Canadian record companies in international marketing. The report also asked for expanded loan programs to studios to allow them to upgrade their technology.

Finally, the report suggested a levy on blank audiotapes and videocassettes,

176 combined with a discount voucher for purchase of Canadian recordings and film productions, not unlike the recommendation for box office levy on foreign films

(Magder, 1993: 149-150)). These recommendations would form the basis for much of the SRDP. Not all of them would be adopted and some of them were changed considerably in the process. But the report clearly set the terms of the argument: sound recordings were an important form of cultural expression;

Canadian musicians and composers relied for the most part on Canadian-owned companies to access this. Therefore, some federal support for a Canadian-owned recording industry (along the same lines of what was offered to book publishing or film) would help to further Canadian culture.

In the Applebaum-Hébert report the case for a policy for sound recordings was still largely based on cultural nationalist grounds – the domination of the sound recording sector by foreign interests and foreign artists. It is still possible to find vestiges of the high culture bias of ‘Masseyism’ in some specific recommendations (not to mention much of the discussion of ‘mass’ versus

‘specialized’ markets). Direct subsidy for production was only recommended for recordings in the ‘specialized’ market. A number of the recommendations leaned heavily on public sector institutions, particularly the CBC to take on much of the distribution and marketing, as well as production of Canadian music. Cultural industries were acknowledged to exist but many of the recommendations were made in despite of them. This is a case where, as Miller and Yúdice suggest, cultural policy is made “precisely because of the dominance of [the] entertainment industries” (2002: 72). However, the means of addressing this situation assume a

177 more commercial or industrial dimension. Already the discussion and the nature of the recommendations show concerns that are not simply cultural but concerned with the economic wellbeing of the sector and of the country. The report makes reference to economic benefits, as well as cultural ones, to ensuring that copyright royalties do not always flow out of Canada.

Despite the awareness of these industries, the report still demonstrated some blind spots with regard to the industry, especially with regard to the relationship between the independents and the multinationals. Although it proposed no measures to limit their operations, the report clearly labels the dominant multinational labels as the opposition. It ignores the extent to which the businesses of the multinationals and Canadian independents were intertwined.

While acknowledging that “Canadian record producers find it expedient to turn to the multinationals for distribution” (C.FCPRC: 240), the report downplayed just how crucial the multinationals’ distribution infrastructure was. If the Applebaum-

Hébert report represents a shift in cultural policy thinking in Canada, a number of longstanding tendencies in cultural policy were still in evidence.

Perhaps the most important, if unofficial recommendation of the report was its call for “…federal government recognition of the cultural importance of the

Canadian sound recording industry and a stronger commitment to assist the industry…” (C.FCPRC: 245). This was a clear call to move sound recording (and through it other music industries) on to the cultural policy agenda. Just as important for the policy, it suggested that sound recording was central to musical activity and expression. There was already some motion in this direction, which

178 the report duly noted, including a sound recording section in the Department of

Communications’ Cultural Industries Directorate. The Department’s funding of a

Canadian record catalogue for use by retailers was one specific measure but there was not much more than this for the government to point to in terms of direct support for the industry. The report would provide some of the impetus for developing a more coherent strategy, integrated within the larger aims of cultural policy the report espoused. Yet the sound recording policy that eventually emerged was just as much the product of the industry’s own concerns. For the most part these were neither nationalist, nor especially cultural, but economic.

Industry practices also played a role in shaping the specifics of the policy – the kinds of programs and interventions it utilized to assist the industry. These are the aspects that cannot be traced to an overall conception of cultural policy and yet they are crucial elements of the particular policies.

FACTOR & Canadian Talent Development

At about the same time as the Applebaum-Hébert committee was preparing its final report, the broadcast and music industries were working together outside of any government initiative to develop their own model for funding the domestic sound recording sector. According to LeBlanc (2007), the initiative was the idea of Attic Records’ Tom Williams, who, early in 1982, suggested to several Toronto area broadcasters that they could benefit from channeling their Canadian Talent

Development expenditures to the recording industry (6). These broadcasters,

CHUM, Rogers and Moffatt, approached CIRPA and the CMPA to pitch the proposal and to “discuss problems between the two industries” (Personal

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Communication: CIRPA Executive Meeting Minutes February 11, 1982: 4).

FACTOR’s creation would eventually prove to be at least as important as the

Applebaum-Hébert committee in determining the form and nature of the government’s sound recording policy. The foundation was formed by several of the larger Canadian radio broadcast chains – CHUM, Moffatt Communications and Rogers Radio, in collaboration with CIRPA and the CMPA. The foundation was announced on May 4, 1982. Starting with $200,000, FACTOR offered loans for up to 50% of the costs of production of recordings by Canadian artists. These loans, plus 1% of sales, were to be paid back once the record started selling. The fund was administered by CIRPA for its first four years, overseen by a board made up of members from the three radio companies, as well as CIRPA and

CMPA. Applications were judged by juries drawn from the broadcasting and music industry sectors, which then passed these recommendations to board for allocation of funding. FACTOR was advantageous for both sides. From the music industries’ perspective, it helped to address the lack of financing that was emerging as the biggest challenge to the Canadian-owned sector (Goddard, 1982).

For broadcasters the issue was how to best use Canadian Talent Development money to ensure a supply of recordings to meet Canadian content requirements.

Thus FACTOR, despite being a private initiative, owed something to two CRTC policies: Canadian content regulations and Canadian Talent Development. We have already discussed Canadian content at some length; however, Canadian

Talent Development is an important policy and has its own history, which we can outline briefly here.

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Canadian Talent Development as a formal requirement emerged only very gradually. The notion that broadcasters should play a role in encouraging and nurturing Canadian artists and entertainers goes back to the beginning of

Canadian broadcast regulation, and is also at the root of Canadian content regulation. Both the Massey Commission (Canada.Royal Commission on

National Development in the Arts, Letters and Sciences [C.RCNDLS]: 299) and the Fowler Commission (Canada.Royal Commission on Broadcasting[C.RCB]:

69) reiterated such concerns. In 1961 the Board of Broadcast Governors decided against Canadian content regulations for privately owned radio stations. Instead, the BBG opted for a more informal method, directing stations to report at the end of each fiscal year the ways in which each had “promoted and insured the greater use of Canadian Talent” (Limits Relaxed…, November 11, 1961: 16). The measures taken by stations did not need to be reflected in terms of their programming. It is at this stage that the distinction arises between on-air and off- air support of Canadian talent by broadcasters. In fact, such measure were in a sense a substitute for the more concrete and definite measure of content quotas.

However, when on-air support was eventually required and regulated in the form of Canadian content regulations in 1970, the CRTC did not do away with the idea that stations should continue to support Canadian talent in other ways. With the development of FM policy, such commitments were made part of the promise of performance and FM broadcasters were expected to spell out proposed programs in advance.

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Canadian Talent Development was assessed in terms of financial commitments by broadcasters, although there were no specific guidelines as to what the amount of these commitments should be. By 1982, when FACTOR was set up, Earl Rosen of CIRPA estimated that there was about $50,000 in Canadian

Talent Development monies for each major radio market and a total of about $3 million to $5 million nationally (Lacey, May 5, 1982). The initiatives were often locally oriented, in keeping with the aims of cultural and broadcast policy in the postwar period. Talent competitions, scholarships, support for local orchestras and so on were just some of the ways in which the money was spent. Many of these were of questionable value. For instance, although talent competitions may have rewarded winners with the opportunity to record and press a single, these recordings were seldom, if ever, successful commercially and rarely led to sustained careers for the artists involved. The recording industry had always been fairly skeptical of such procedures, feeling that the business of talent spotting and development was a task best done by itself. Rival broadcasters were also understandably reluctant to play records that were produced under the imprimatur of their competition. It was often hard to distinguish CTD projects from station promotions, and the Commission seldom followed up with assessment of their effectiveness or real contribution.

FACTOR offered a clear improvement on such initiatives inasmuch as it offered more targeted and potentially longer-term benefits for Canadian musical talent. As a result, the initiative was lauded by government when it was announced in 1982 (both in the Applebaum-Hébert committee’s report and by the

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CRTC). FACTOR showed the radio broadcast and music industries cooperating not only with each other but also with government aims, making use of private support mandated by government policy. It suggested that broadcasters were prepared to cooperate in supporting Canadian talent without taking the less popular step of becoming directly involved in its production (anxieties over which had occasioned the creation of groups such as CIRPA in the first place). It provided concrete evidence of the ways in which Canadian content and CRTC policy could be mobilized to foster the growth of a Canadian recording industry.

FACTOR saw the rationalization and expansion of the informal and local practices that had typified Canadian Talent Development rationalized and expanded into a national initiative that could benefit broadcasters more generally, as well as the music industry. The interest from the independent recording sector was intense. Before the end of its first year, the foundation had made 50 loans to

38 companies, at an average of $6,800 (19 CIRPA Members…, February/March,

1983). Over the next few years, FACTOR expanded its base of support as more broadcasters channeled their CTD monies towards the foundation. It also expanded its regional presence across Canada, attempting to elicit more applications from companies outside Ontario. In the spring of 1985, FACTOR merged with Standard Radio’s Canadian Talent Library, effectively doubling its annual budget to about $1 million and becoming FACTOR-CTL for a brief while.

The Canadian Talent Library (CTL) was perhaps the most notable and important initiative prior to FACTOR. The Canadian Talent Library had to some extent anticipated some of FACTOR’s aims, inasmuch as it was far more

183 organized and effective than most other CTD initiatives. A response to the BBG’s exhortations to support Canadian talent, the Canadian Talent Library was started in July 1962 by J. Lyman Potts, under the aegis of Standard Broadcasting CFRB in Toronto and CJAD in Montreal. The Canadian Talent Library was perhaps the best example of trying to apply the logic of television programming to radio – that is, to have radio create Canadian recordings itself, without a separate recording industry. CTL recorded dozens of long playing records by Canadian artists through the 1960s and 1970s. Through much of its early history these consisted of covers of songs already made popular by established American artists. Although a few of its titles were made commercially available, the vast majority of records were intended specifically for radio airplay, not only on Standard’s stations but on any station that cared to rent them. This worked well enough on Standard

Broadcasting’s two stations, which played adult-oriented easy listening but for hit parade stations such as CHUM, they were too conservative (“about one generation out of style,” according to Globe and Mail writer Dennis Braithwaite

(April 18, 1963: 25)). Moreover, the fact that they were not commercial recordings meant that they were not hits and thus unsuitable for that format.

Nonetheless, the Canadian Talent Library made several hundred recordings over the years. For the most part the recordings were for airplay only but a number of them did see commercial release. When CTL merged with FACTOR in 1985, they ceased to actively record themselves but pooled their monetary resources with those of FACTOR.

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The Creation of a Sound Recording Policy

In the summer of 1985, it became apparent that FACTOR was likely to be a major element in the government’s plans for a sound recording policy. This was notable inasmuch as FACTOR was a private foundation and it would administer much of the funding committed to sound recording policy. There was certainly precedent for arms-length cultural agencies, such as the CBC, the Canada Council or Telefilm, however, all of these were crown corporations, set up by the government. FACTOR had been created outside of the government and was not directly answerable to it. The constitution of its board and its structures of governance were already in place. This gave the music industries and radio broadcasters a much more direct say in how government monies would be spent – which projects would be chosen and, ultimately, the design of the programs. To determine how this unusual arrangement came about, we need to retrace our steps and look at the policy development process over the early 1980s.

One of the first approaches to the federal government for financial assistance on behalf of the Canadian recording sector was a request for a tax measure – a Capital Cost Allowance for investment similar to that enjoyed by the film industry at the time. In October 1979, CIRPA presented the government with this proposal. The proposal appears to have been inspired, at least partially, by statements by the Conservative party, recently come to power, made while in opposition about funding a recording sector with a 100% Capital Cost Allowance

185 for “investments in sound recording ventures (CIRPA, 1979: 1). What CIRPA proposed was much the same as what the film industry had, a 100% tax write-off for investors in the first year. The proposal was made at the height of the “tax shelter boom” in Canadian film (Magder, 1993). During a period when the production of tax-shelter financed Canadian films reached its greatest level of activity with 66 feature films produced with a total $171.8 million budget (Ibid:

184). Clearly these measures were attracting considerable investment for film production. CIRPA pointed out that a similar measure for sound recording could be even more successful, given that Canadians spent 45% more on records and tapes than on films and that major labels had a larger profit margin than did

Hollywood studios (CIRPA, 1979: 4). The proposal suggested that the tax measures might result in another one hundred to two hundred Canadian albums released in a year, at about $40,000 to $50,000 each, such that the total tax claims would be in the region of $5 million annually. CIRPA estimated that this would result in $1 million in lost revenues that could be made up through the extra economic activity generated by the investment (Ibid: 8).

Yet the proposal was not successful and there were a number of reasons for this. First, as sympathetic as the Clark government may have been to such measures, it was not in office long enough to enact them, falling on a non- confidence motion in the House of Commons in December 1979. By the time the

Liberal government had returned to power early in 1980, the shine had begun to come off the tax shelter boom for Canadian film. As Magder puts it, “Too many expensive films, too many mediocre films and too few outlets for distribution and

186 exhibition”(1993: 190), resulted in a collapse in the financing. Film policy drifted away from this measure as the Canadian Film Development Corporation and

Revenue Canada tightened up the requirements for qualification as a Canadian film both for financing and tax purposes. By 1981, the Capital Cost Allowance had been reduced by the Liberals to 50%. At the same time, during this period the music industry’s ability to lobby effectively for these measures was insufficient

(Personal Communication: CIRPA General Meeting Minutes November 3, 1980:

4). Yet CIRPA continued to favour tax relief for investors over direct subsidy through the next two years. As late as mid-1982, their stated position was that the

Department of Communication should, “deal in public policy issues and not to become active in the business, as they did with the establishment of the Canadian

Film Development Corporation” (Personal Communication: CIRPA Executive

Meeting Minutes June 7, 1982: 6). CIRPA and others in the music industry would continue to propose a tax credit for the industry with every subsequent major policy review but with liitle effect.

In part this resistance to direct government assistance may have arisen from a reluctance to have the viability of recording projects assessed by government bureaucrats or under guidelines that may have been more concerned with

Canadian themes. In any case, CIRPA’s response to the Applebaum-Hébert report continued to stress tax incentives and it “strongly opposed” the CBC or the government becoming more involved in music production or marketing (CIRPA

Pushes…, February/March 1983: 4). Nonetheless CIRPA was in agreement with the report’s main thrust that “all forms of music should be considered “culture”

187 and that the economic and cultural policy of government should be based upon the policies followed in the book publishing and film industries” (Ibid.).

It was by now clear that for the Canadian-owned sector in English Canada,

CIRPA was assuming the role of the main interlocutor, not only for the CRTC on

Canadian content issues (as we saw in the last chapter) but also for the government itself, as the momentum for a record policy increased. This role was perhaps assisted by the Department of Communications’ recruitment of CIRPA’s

President John Watt in 1980 as its new Record Policy Advisor. CIRPA’s representativeness was limited to English Canada, largely Ontario centered, and the vast majority of independent record labels in Canada were not members. But the industry itself was also largely located in Ontario and CIRPA’s membership did include most of the successful English Canadian owned labels. This included some of the earliest independent labels formed immediately after Canadian content regulations, such as Aquarius, Attic, True North and Anthem Records, as well as newer entrants such as Solid Gold and Stony Plain Records. As a representative of a Canadian music industry CIRPA had an advantage over CRIA, inasmuch as it was unimpeachably Canadian – members had to be at least 50%

Canadian-owned. As representative of record labels, it was also in line with the sound recording dominant configuration of the industry already operative in policy, hence more central to policymakers concerns than groups such as the

Canadian Music Publishers Association. In any case, there were no real rival groups claiming to represent the industry, although certain prominent figures in

Western Canada, notably Bruce Allen, manager of BTO, Loverboy and Bryan

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Adams, opposed the group and its influence. CIRPA’s major challenge in terms over the 1980s was indeed regional representation and this was achieved more through alliances and relations with ADISQ, as well as with provincial associations in the Western and Atlantic Provinces than through CIRPA’s own membership, which remained predominantly Ontarian.

By 1981 the Department of Communications was also assisting CIRPA with projects such as the Canadian Record Catalogue (a computer generated database and directory of commercially available Canadian recordings) and a study of the independent sector. CIRPA was also accessing money from the Department of

External Affairs through the Program for Export Marketing Development

(PEMD), to fund its presence at trade fairs, particularly MIDEM, in France. But it was the creation FACTOR that substantially strengthened CIRPA’s credibility in its role as music industry representative. CIRPA’s close and cooperative relationship with radio in this venture gave the association the imprimatur of the broadcast industry’s approval. This suited policymakers in both the CRTC and the

Department of Communications, both of which were very much of the view that the two industries were inextricably associated in policy matters. This, and the fact that it was clearly representative of Canadian companies only, gave CIRPA the authority to address governments on behalf of the English-Canadian recording industry, as fragile and marginal as that industry was. CIRPA’s relationship with government was, however, still an evolving one and the fitful progress of the policy’s development reflected the imperfect lines of communication between the two parties.

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The various initiatives, such as MIDEM and the Canadian Record

Catalogue, as well as FACTOR, anticipated a number of the recommendations of the Applebaum-Hébert Committee and were duly lauded by the report. But, as the report pointed out, they did not amount to a policy. The initial steps in developing that policy were already underway by 1981. In the summer of that year, the

Department of Communications announced a major study of the Canadian recording industry to be conducted by the accounting firm Woods-Gordon. The purpose of the report was to identify the problems facing the industry and to collect financial data on the companies involved. It was this report that would serve as the basis for the discussion paper that eventually emerged in 1985. In the meantime, however, the recording industry waited as the anticipated policy was delayed again and again. Initially it was to be announced in the fall of 1983 but postponed to February 1984. At the same time, there was little information about precisely what measures it would contain, beyond strengthening the private sector industry in the industry. Then in the spring of 1984 Billboard reported that the

Francis Fox, the Minister of Communications, had postponed the policy for the foreseeable future (Lapointe, May 19, 1984). The reasons given in the article were the Liberal leadership campaign to replace Pierre Trudeau (in which Fox was actively campaigning on behalf of John Turner) and an anticipated federal election immediately following. With these activities taking priority, the new policy was shelved for the time being. This was a distressing development for the industry, which had been led to expect a policy shortly and because the anticipated review of the Copyright Act (the recording industry’s other major

190 priority) was also delayed. But it was also distressing in the way that the story came out, as it caught the industry and its representatives by surprise without any prior warning, calling into question their relations with the department. At the same time the government did announce the new film industry policy, evidence of the rather low priority given to sound recording, even within the confines of cultural policy.

The 1984 election brought a new Conservative government under Brian

Mulroney, with very different priorities from the Liberals and a much stronger emphasis (at least in terms of political rhetoric) on lean government and the free market. This left the status of a new record policy decidedly unclear. Initially, the

Conservatives seemed unlikely to develop a policy for sound recording. Among their first acts was to cut CBC’s budget substantially (Raboy, 1990: 294). The government’s support for free trade with the United States also seemed not to accord with new programs to support or protect Canadian cultural industries from international competition. However, things did move forward more rapidly for the policy under the new government. July 1985 saw the release of a Discussion

Paper on the Initiatives for the Radio and Sound Recording Industries. This was the first clear look at the federal government’s plans for the sector and it contained a number of measures refining and extending the recommendations made by Applebaum-Hébert report.

The discussion paper was consistent with existing cultural policy in emphasizing the co-dependence of the sound recording and radio broadcasting industries. This was enunciated not simply in terms of the industrial relationship

191 but also in terms of policy, pointing out that the “attainment of Canadian content requirements is directly tied to the availability of sufficient quantities of Canadian recordings” (Communications Canada, 1985: 4). As well, it affirmed in the most direct terms yet the centrality of sound recording to the music industries – responsible not only for $600 million in retail sales annually but driving also “an economy of close to $1 billion, inclusive of live performance, music publishing, recording studios, packaging and associated merchandising revenues” (Ibid.). Nor was this all, as the paper then outlined recordings’ “indirect” support of radio broadcasting, and audio equipment sales and rentals. The prominence given to the economic impact of sound recording and radio is notable, far outweighing the rationale offered in terms of culture (which was restricted to a short passage following a discussion of the industries’ employment impact). Government was here emphasizing the industrial aspect of cultural industries.

There were fifteen specific recommendations in the paper. Not all of them were relevant to the sound recording; four were applicable to radio only. Of the eleven pertaining to sound recording, five were more or less present in the

Applebaum-Hébert report, while the others were responses to the recording industry’s concerns. Recommendation iii) called for the government to stimulate sound recording and radio production programming through a funding program.

Recommendation iv) reaffirmed support for Canadian content and French- language vocal music requirements, while calling for a review of all radio regulation with the aim of enhancing flexibility and innovation for radio programmers. Recommendation v) called for financial support for the

192 development of the sound recording industry. Recommendation vi) called for comments and proposals regarding tax instruments to encourage investment in the sector. Recommendation vii) called for support programs specifically targeted to

‘specialized music.’ Recommendation viii) called for consideration of a co- production regime similar to that in place for film and television production.

Recommendation ix) called for international marketing support for recording companies. Recommendation x) proposed production funding for music videos.

Recommendation xiii) called for skills upgrades and training to enhance the competitiveness of the sound recording and radio broadcasting industries.

Recommendation xiv) called for the elimination of tariffs on some recording, sound and touring equipment used by the music industry. Finally, recommendation xv) called for program support for service organizations that represented and assisted these industries – CIRPA and ADISQ among them. All of the programs were targeted specifically at the Canadian-owned sector.

Just as important, the report recommended FACTOR-CTL as an appropriate vehicle for the administration of some of these programs, in particular those aimed at recording, radio programming and video production. The report, as was becoming customary in policy documents, lauded the private foundation before going on to suggest that, “it would be appropriate for the government to contribute its support to such initiatives” (Communications Canada, 1985: 12).

The reasoning was that this would maximize the production achievable by federal funding, through contributing to an existing program rather than duplicating it.

This was clearly in keeping with the wishes of the industry and perhaps the

193 boldest proposal in the paper. The only difficulty with this proposal was the lack of a similar initiative in Québec’s French-language sector. The paper suggested that support for FACTOR-CTL was contingent on the creation of a similar mechanism for French-language productions. If FACTOR ended up as the approved vehicle for the SRDP’s production monies, this was likely also because it aligned with the government’s perception that the music and broadcasting industries were inextricably linked – a position that the music industry promulgated in its stance on Canadian content and, which the broadcasters had come to accept also. The effect of this was that, not only would the music industry administer much of its own funding, but also that broadcasters would be involved not only in the development of policy such as Canadian content regulation, which directly affected them, but in the disbursement of government subsidies to the music industry. That the music industry itself initially encouraged such involvement shows that they themselves acknowledged this interdependence.

However, the discussion paper, although it was the first detailed proposal from the government on what a record policy might look like, was not the final step. It did not specify a budget, and there were a considerable number of details still to be worked out.

CIRPA, in its response to the paper made note of some of the policy’s omissions, particularly copyright, which had come to occupy an increasingly central place in the music industries’ policy concerns. Generally, however,

CIRPA’s response was in accord with the paper. The association urged the government to adopt the recommendations as policy and to implement them as

194 quickly as possible. The only clear point of disagreement was with a recommendation for co-production arrangements, as CIRPA felt these were unnecessary for music and could only detract from the level of Canadian content in recordings and on radio. The last element of CIRPA’s response was a proposed budget for the programs, which they suggested needed to be funded for at least five years to achieve its objectives (See Table 1, below).

Table 1 FACTOR/CTL/MusicAction Canada $3,000,000

Loan guarantees and interest subsidies $1,500,000

VideoFACT $750,000

Tour support $500,000

Marketing support $500,000

Industry support (associations) $500,000

Other programs $500,000

TOTAL $7,500,000

CIRPA, 1985: 16 Some points of negotiation remained and it was not yet clear the extent to which the department was prepared to accept the paper’s recommendations. One of the necessary first steps for the music industries was to create a funding body for French-language production. This was initiated fairly quickly, with the creation of MusicAction in the fall of 1985. The terms of MusicAction were the same as those for FACTOR, with a board made up of representatives of broadcast industry and representatives of the music industry (in this case from ADISQ and

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SPACQ). The decision to set up another organization to administer the fund in

Québec both recognized and reinforced the separation of the English and French- language recording industries in Canada. Québec’s industry had evolved quite differently from that in English Canada over the 1980s. The involvement of the major labels in the French-language market declined even more precipitously than it did in English Canada (Grenier: 1993). In Québec, the domestic independent sector assumed not only their role in producing local talent, as in the rest of

Canada, but also took on much of their distribution function as well. Québec’s independents were thus less reliant on the major label distribution infrastructure.

The markets were distinct in other ways, without a lot of crossover of artists from

Quebec to English Canada or vice-versa. With a few exceptions (for instance,

Donald Tarlton who maintained interests in both English Canadian and French

Canadian industries through his separate labels, Aquarius Records and Tacca

Musique), there was not a great deal of overlap between the two industries in business terms. ADISQ and CIRPA had collaborated on the Canadian Record

Catalogue to some extent but as the project wound down, so too had much of their contact with each other. Arguably already more robust than the English-Canadian industry, the Québec industry was both vertically and horizontally integrated. An

Ernst & Young report on the Canadian music industry described the Québec recording industry as part of a larger Québec entertainment industry rather than a sector of the Canadian recording industry (1995: 70). It already had access to government funds through the Quebec government’s SODIC (Société Québecoise de Developpement des Industries Culturelles) program established in 1979, to

196 provide low interest financing to cultural industries in the province. The impetus for MusicAction was driven not by cooperation between the music industry and private broadcasters but specifically by the need to access and enable the new federal program. Canada’s biculturalism was a strong element in cultural policy and in terms of music industry policy it is most apparent in this particular policy assemblage. Any federal program for the Canadian-owned recording industry would have to address the French as much as the English industry – but through distinct, if similar, channels.

The music industry continued to put pressure on the federal government to act on the discussion paper. Yet even as they came close to achieving recognition of the status of their industry and a program comparable in structure if not in size to other cultural industries, CIRPA continued to evince misgivings about the program. In a letter to Gerald Caplan, head of the Federal Taskforce on

Broadcasting Policy, Earl Rosen, CIRPA’s executive director indicated that the policy had “shortcomings” and didn’t “address the real structural problems of the industry” (Personal Communication: Earl Rosen, CIRPA December 4, 1985). The real priorities for the Canadian music industry, as far as CIRPA was concerned, were a modern copyright regime and adequate exposure on radio (particularly on

FM radio, which was at this time successfully lowering Canadian content levels in many licence renewals). There appeared to be some misgivings on the part of the industry that the adoption of a funding program for the recording industry might be used as a rationale for a less stringent Canadian content regime. CFNY’s recent successful reduction of their Canadian content was justified partly by their making

197 increased contributions to FACTOR-CTL, and the CRTC in making its FACTOR-

CTL contributions part of its Promise of Performance, allowed CHUM’s Windsor station to use the same rationale in lowering its Canadian content, resulting in a situation where the foundation rather than strengthening Canadian content was undermining the policy. CIRPA wrote to the CRTC asking that FACTOR-CTL contributions not be made mandatory and Rosen reiterated his concerns in a letter to Communications Minister, Marcel Masse on December 21, 1985 (Personal

Communication). While this issue did not in the end derail the new program, the issue of broadcaster support for the foundation would remain an issue for sound recording policy.

Another point of negotiation emerged early in 1986, with the government’s insistence that the program be administered by the Department of

Communications. CIRPA and other music industry representatives wanted to make sure that federal funding to FACTOR did not merely match the broadcasters’ contributions. The government then announced its intention to administer the fund through Telefilm – a move that met with hostility by the industry. There was also the issue of how the funds would be divided between the

English and French Canadian industries. In the end these problems were generally resolved positively for the industry. The government’s contributions were considerably more than those of the broadcasters. The government also agreed that the production funds were to be administered by FACTOR/MusicAction, which split the money 60/40 between them. The funding was announced as part of the federal budget in May, 1986 and the contract between FACTOR-MusicAction

198 and the government for the Sound Recording Development Program (SRDP) was signed on September 26. The budget allocations for the programs were somewhat lower than those proposed by CIRPA, totaling $5 million annually instead of $7.5 million (See Table 2 below).

Table 2

Record Production $2,600,000

Radio syndication programming $200,000

Music Video Production $500,000

Foreign Tour support $450,000

Foreign Marketing support $350,000

Business Development $500,000

Classical Music production and

distribution $400,000

TOTAL $5,000,000

(CIRPA, 1987a: 29)

The first four programs were to be administered by FACTOR/MusicAction. The foreign marketing and business development programs were to be administered directly by the Sound Recording Development Program, working out of the

Department of Communications and the Classical music production program was to be administered by the Canada Council. The loan guarantees and interest subsidies proposed by CIRPA were not addressed by the SRDP, nor were the

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Industry Support programs for associations such as CIRPA. These would be addressed later, but under other programs. CIRPA’s proposal for tax incentives was not addressed either. Generally, the program was a somewhat scaled down version of what CIRPA had proposed, with some compromises in terms of its administration.

The lack of an industry association support component was of particular concern to CIRPA as one of the initial effects of SRDP monies on FACTOR’s governance was that CIRPA ceased to administer the foundation. CIRPA’s board felt that the association could not continue to lobby effectively on behalf of the industry if it were at the same time acting as the government’s agent for the SRDP program. As a result, CIRPA was left without much of its operating revenue, which it had derived from administering FACTOR-CTL. The situation was addressed in 1988 when the Canadian Sound Recording Services Organizations

(CSRSO) program was announced. This provided CIRPA with what amounted to a yearly operating grant in return for providing research on issues facing the sound recording industry. Other elements of the discussion paper’s proposals were also gradually phased in. The Cultural Industries Development Fund (CIDF) was created in 1991 to provide access to capital for businesses in the cultural industries, through loans. It also included a consulting component. The program was administered by the Federal Business Development Bank (FBDB).

Unfortunately, where the sound recording sector was concerned this program was not especially successful and resulted in very few applications and fewer loans – about 20 of the 119 handed out over the program’s first two years. This was

200 blamed on insufficient promotion of the program in the sector, as well as on the fact that most of the most sound recording businesses were too small to meet the program’s requirements (Task Force on the Future of the Canadian Music

Industry, 1996: 22)

The SRDP was certainly well-received by the community. In 1988, a new generation of independent Canadian acts were emerging. A number of these had accessed the program along the way, including Parachute Club, Skinny Puppy,

Grapes of Wrath and Blue Rodeo (Quill, April 9, 1988). Many of these acts were associated with a number of new independent labels, such as Nettwerk and Risqué

Disque – an expansion of activity in the independent sector for which on behalf of the program, its then director, Mel Shaw was happy to take credit (Ibid.). By

1990, this increased activity was also evident, perhaps, in renewed major label interest in partnering with independent labels, and in the revival of some of the first Canadian independents, such as True North, which moved back into being a record company after several years of concentrating on artist management

(LeBlanc, January 26, 1991).

A major issue that the program faced in its early years was finding stable administration for FACTOR after the resignation of Earl Rosen – who remained with CIRPA. The first executive-director after Rosen, Gary Muth, resigned before taking the position and his replacement, Mel Shaw (former Stampeders manger and proprietor of Music World Creations), agreed to serve only for a year (Quill,

April 9, 1988). This problem was solved with the appointment in 1988 of, Heather

Sym (Ostertag), who has run the foundation ever since. The program’s progress

201 through the next few years was, in many respects, relatively uneventful. Funding was renewed in 1991 – although only for three years instead of five. This was thought to have been more to do with an ultimately unsuccessful attempt on the

Federal Government’s part to move responsibility for culture to the provinces as part of the Charlottetown Accord, than because of any particular defects in the program itself. Again, there were funding cuts to the program in 1993-94 – a part of across-the-board cuts to all government programs undertaken by the new

Liberal government under Jean Chretien. More notable was the transfer of most of most of the remaining SRDP programs (Foreign Tour Support, Foreign Marketing

Support and Business Development) to FACTOR/MusicAction’s administration in the fall of 1993. The rationale for this was efficiencies in administrative costs.

But there had also been a number of problems with the administration of the

SRDP office in Montreal, with slow processing of application and funding. Thus, the music industry’s representatives such as ADISQ and CIRPA had both pushed to have the programs moved to FACTOR/MusicAction, which could be more responsive to industry’s needs. This move and the cancellation of the CSRSO in

1994-95 (with the transfer of the funds to the SRDP) meant that by 1995 all of the government’s programs for the music industry were under the control of a private foundation overseen by the music and broadcast industries. The program did even better the next year, with the gradual easing of budget concerns and, just as important, the appointment of a strong Heritage Minister in Sheila Copps, sympathetic to the music industry’s concerns.i On November 1, 1996, the SRDP’s budget was doubled with an additional $5 million per year for the next five years.

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Even so the program, and the overall level of funding to the music industry remained relatively low in comparison to that for other cultural industries. Even with the additional funding, the program received only $9.5 million per year.

Government spending on film and video amounted to $240.4 million and $167.5 million for literary arts in 1993-94. This may, perhaps, have been the price for its arms-length relationship with the government. FACTOR/MusicAction remained outside the civil service and could not command the kind of influence and connections within the Department of Canadian Heritage available to senior administrators of bodies such as Telefilm or the CBC. Within the music industry the SRDP remained much less of a priority than either Canadian content or copyright reform. In this respect, the highly targeted and strictly defined program limited its relevance for much of the Canadian music industry. The program did not apply to the major labels, which benefited only indirectly through the increased distribution traffic of some of their independent clients, or, occasionally, through signing artists whose careers had been developed through FACTOR assistance. The majority of the programs were aimed at record labels and production companies – only a few programs were of any direct benefit to music publishers. Even, CIRPA, which most clearly represented the targeted sector spent far more of its time and resources on copyright and Canadian content issues.

In its assessment of the impact of the program in 2000, the federal government concluded that the program had generally been a success in terms of its own objectives (Economic Council of Canada, 2000: F1). The SRDP had helped to increase the number of Canadian content releases on the market and it

203 had also strengthened the Canadian-owned independent sector, particularly for the larger companies, whose profitability and market share increased overall.

Although the market share for Canadian independents overall did not increase, the assessors felt that the program had contributed to maintenance of market share for the sector. The fund had contributed to a greater variety of recordings, both stylistically and regionally. Generally, there was also a greater number of successes for Canadian releases in terms of broadcast and sales. However, these effects were generally modest. The program’s initial achievements in broadcast success were not sustained and there was little impact in terms of English-

Canadian chart success. The fund had not generally succeeded in improving the lot for the smaller companies, nor had it been able to lever significant private investment in the sector, as had originally been hoped.

Canadian Talent Development and FACTOR

Perhaps the more interesting aspect of FACTOR through the 1990s was less to do with the SRDP and much more to do with the broadcasters’ support through

Canadian Talent Development. After the establisment of the SRDP,

FACTOR/MusicAction was now in a peculiar position of being answerable to the federal government, as well as to the broadcasting and music industries – accountable to broadcasters and to government in terms of funding and to the broadcasters the music industry in respect of its mandate and governance.

FACTOR did not cease to be the vehicle for some broadcasters to fund Canadian music production when it assumed responsibility for the largest SRDP programs, nor did the gradual shift of all the SRDP programs to FACTOR and MusicAction

204 change this. Although CIRPA, along with the CMPA retained vested seats on

FACTOR’s board, the ceding of administrative control of the program weakened the music industry’s control of FACTOR, while leaving broadcasters’ role more or less untouched. This state of affairs created tensions as the two sectors were increasingly in opposition on major policy issues – to some extent Canadian content but even more so, copyright. FACTOR, which had been emblematic of the cooperation of the two sectors for its first five years, would increasingly become a bone of contention as other policy debates intensified.

One of the first instances of this occurred in 1990, when FACTOR declined to take an active role in supporting the calls for increased Canadian content that were a part of the Review of FM policy. From the music industry’s point of view, supporting this aim was entirely consistent with Foundation’s basic aims and mandate, pointing out that the original letters patent called for FACTOR “to stimulate public interest in and awareness of Canadian music” and “to increase public demand for Canadian records, performers and compositions” (Personal

Communication: CIRPA Presentation – FACTOR/MusicAction Seminar –

Montebello, Quebec. September 25, 1989: 3). Not surprisingly, the broadcast members of the board viewed things quite differently. FACTOR officially maintained a non-political stance in these matters and the music industry board members were unsuccessful in changing this. At the same time the Canadian

Association of Broadcasters had used FACTOR in their 1989 policy brief Taking the Lead, as an example of how its members contributed to the music industry in

Canada. In 1990, CAB asked FACTOR to endorse its Canadian Music Strategy.

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This request was also turned down, leading to something of a stalemate between broadcasters and the music industry. The music industry felt that given the broadcasters’ diminishing proportional contribution to the fund, their representation on the board should also be reduced concomitantly. The difficulty was that passing such a resolution through the FACTOR/MusicAction board would be very difficult, requiring cooperation from the broadcasters who were hardly likely to cede their symbolic involvement in the program. The other option was to get the government to push for diminished broadcaster representation. This was also difficult. The government viewed FACTOR/MusicAction as emblematic of cooperation between the two industries and they were reluctant to sanction any change in the foundation’s governance that might call this into question.

Canadian Talent Development and FACTOR/MusicAction participation in particular gave broadcasters a platform for involvement in policy discussion around the music industry. CAB, while not wishing to expand the Canadian

Talent Development commitments of its members, continued, unilaterally, to develop strategies for the music industry that stressed radio’s considerable commitment to both on-air and off-air support. This was not especially successful where Canadian content was concerned, given the CRTC’s move to raise the requirements for FM in 1990. However, the issue of Canadian Talent

Development did complicate the two industries’ debates over copyright issues, neighbouring rights in particular. Neighbouring rights would impose payment from broadcasters to record companies and performers for using their recordings and it was in the broadcasters’ interests to see that it was not enacted.

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Broadcasters were able to claim that they were already doing a considerable amount for the Canadian music industry through their Canadian Talent

Development commitments, as well as through Canadian content. For the music industry, the challenge was to keep the two issues separate – positioning CTD and

Canadian content as obligations imposed on broadcasters by government regulators in exchange for the use of a limited resource, the broadcast spectrum and neighbouring rights as payment to owners of intellectual property in exchange for its use. This position was difficult to maintain given that the music industry did claim to benefit from broadcast policies. However, they were aided in this by the CRTC’s longstanding policy of not taking copyright into consideration in developing policies or making decisions. Thus the interference of the policies with one another was limited by the different instruments used to enact them.

Much more conflict revolved around the issue of Canadian Talent

Development itself. There were actually two issues here. First, there was the overall level of Canadian Talent Development on the part of the broadcasters – money which was set aside as part of the Promise of Performance for FM stations and, which was also imposed by the CRTC as conditions on the transfer of ownership of stations. The second concern was the amount of this money that actually went to FACTOR/MusicAction. This second issue was much more important to the music industry as it was this money that was of most benefit to it.

Some of the other CTD projects involved support for local orchestras or scholarships for music students – laudable in themselves but of little relevance to the industry. Other CTD projects were of doubtful value to anybody- there was

207 talk of a station in British Columbia claiming a contest in which the prize was a cow as a Canadian Talent Development initiative (Personal Communication:

CIRPA Board Meeting Minutes June 24, 1994). Less colorful but more serious perhaps was Toronto station CISS-FM’s use of advertisements featuring country artists as Canadian Talent Development (Personal Communication: Brian Chater,

CIRPA May 5, 1995) – a campaign that was arguably aimed more at promoting the station than the artists involved. Part of the difficulty for broadcasters was that until 1990 at least, there were no clear guidelines from the CRTC as to what constituted an acceptable Canadian Talent Development initiative. In the review of FM policy, Commission attempted to address this with a list of the kinds of activities that would generally be acceptable, but it still reserved the right to review such activities on a case-by-case basis as part of the Promise of

Performance of FM stations.ii Support for FACTOR and, later MusicAction was only one of the activities that qualified – one that represented a rationalization and industrialization of Canadian Talent Development, the purpose of which was to use it toward the music industry as the channel for assisting Canadian musicians.

Broadcasters had also asked for some financial guidelines as well but the

Commission opted to put these off until the impact of the new Canadian content levels had been assessed (CRTC, December 19, 1990)

The broadcasters’ contributions to FACTOR/MusicAction were made at the time of license approval or renewal and this was not a constant figure by any means. Generally, the amount grew over the first ten years of FACTOR’s existence, peaking at $1,091,523 in 1991-92 (Task Force on the Future…: 39).

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Contributions to MusicAction were actually at their highest in 1988-89 at

$457,050 but after that year were subject to more fluctuation (perhaps as a result of the much smaller base of broadcasters on which the fund drew). Overall, the peak of the broadcaster contributions to Factor/MusicAction came in 1991-92 and declined thereafter, falling by 14.5% the next year, by 12.3% again the year after and by about 8% per year for the next two years. There were a number of reasons for this decline. First, the voluntary nature of the contributions meant that certain broadcasters could direct their CTD monies elsewhere. As well, in the first half of the 1990s radio suffered from shrinking advertising revenue, due in part to a recession, as well as to increasing competition from other media. From 1990-

1995, advertising revenue for radio declined by 1.9%.

In April 1995, the CRTC proposed a review of the Canadian Talent

Development regime. Citing the financial difficulties that radio had recently experienced, as well as their own increasing administrative burden, the

Commission proposed a lightened and more streamlined approach (CRTC, April

21, 1995). The total financial commitment from radio broadcasters for Canadian

Talent Development was approximately $11 million - $7 million of this from license renewals and the remaining $4 million from new applications or transfers of license. Of this only about $1.8 million went to FACTOR/MusicAction or to other third party organizations, such as provincial music industry associations.

While broadcasters had asked that all of their CTD commitments be voluntary, the

Commission was concerned particularly about the contributions to these third party organizations and the impact on them if broadcasters were relieved of their

209 obligations in this regard. They proposed that CAB develop a mechanism for ensuring that commitments to these organizations continue at the level of at least

$1.8 million and called for further comments in advance of a hearing. With this amount in place, the thrust of the proposal was to more or less eliminate CTD as previously constituted. The CRTC set a deadline of June 20, 1995 for CAB’s proposal or for any other comments.

The CRTC’s decision in November confirmed their proposals and contained

CAB’s plan for ensuring an industry wide commitment of $1.8 million. This provided set amounts for station’s contributions based on the size of the market they served, with the maximum contribution of $27,000 for stations in the largest urban centers and the lowest set at $400 for those stations in the smallest markets.

The Commission set up a process whereby stations could apply to the

Commission to change their conditions of license, relieving them of previous

Canadian Talent Developments in exchange for commitments under CAB’s new scheme. The CRTC set a deadline of February 16, 1996 for private broadcasters to raise the necessary $1.8 million. There had been some concern that the plan as laid out by CAB required the participation of nearly all private stations to raise the necessary amount and that there might be some difficulties in reaching the amount before the deadline. This indeed proved to be the case and it was necessary for some of the larger broadcasters to top up their contributions in order to make up the amount (CRTC, August 19, 1996). The broadcasters commitments contained pledges for over $1 million for FACTOR/MusicAction, with $770,800 of this going to FACTOR and $288,200 to MusicAction. Based on anxieties over the

210 relatively small amount pledged to MusicAction, the Commission moved to make commitments to MusicAction a condition of licence for French-language stations but left English-language stations with the choice of where their third-party commitments should be spent. This differentiation (as well as the last minute financing by broadcasters) occasioned another Appeal to Cabinet from CIRPA, which was granted in November, 1996. While agreeing with the CRTC’s general approach to Canadian Talent Development, Cabinet indicated that they wanted the

Commission to “have a second look at one important aspect of this new approach

- whether radio licensees should give similar treatment to FACTOR and

MusicAction” (Canadian Heritage, November 15, 1996). The CRTC in its reconsideration elected to maintain their position (CRTC, April 11, 1997).

FACTOR, they claimed was likely to be able to maintain its overall commitment from broadcasters. CIRPA appealed to Cabinet again, but this time the appeal was declined.

CIRPA’s opposition to the reduction of Canadian Talent Development had been more or less carried on singly. The only other music industry groups involved had staked out different positions. ADISQ were obviously concerned with the Quebec industry, and the preferential treatment for MusicAction was by no means objectionable to them. The Songwriters Association of Canada expressed concern that its own status as a potential recipient of CTD monies was being overshadowed by the Commission’s emphasis on FACTOR/MusicAction.

The broadcasters also had a strong argument to make inasmuch as the new government money for the SRDP program would more than make up for any

211 insecurity over their own future contributions. As well, with the enactment of neighbouring rights looking likely, the music industry would be receiving more money from radio. It is difficult to imagine that either the federal government or the CRTC were not taking account of these developments in their decisions, notwithstanding the separation of the policies administratively and conceptually.

With the doubling of the government’s contribution to the program there was no danger that either FACTOR or MusicAction would be out of pocket from broadcasters. However, the entire episode demonstrated the degree to which

FACTOR had moved away from its beginnings as a venture between the radio and music industries and had become more or less a government program, albeit one administered privately. The 1997 Review of Radio yielded more solace for the music industry. In maintaining the benefits test for the transfer of licences, the

CRTC mandated contributions for, three percent of the value of the transaction to be committed to FACTOR/MusicAction or other suitable third parties and the other three percent to be used for a new fund that would be directed at the promotion and marketing of Canadian artists. This after two years of negotiation between radio and the music industries (including major labels, as well as independents) would result in the establishment of the RadioStarmaker fund in

2001.

Conclusion

The SRDP is in many respects the most narrowly conceived and targeted of the policy assemblages under examination here, with its focus on the Canadian- owned sound recording sector. As suggested at the beginning of the chapter, the

212 policy served to bring the recording industry into cultural policy far more explicitly and directly than Canadian content. It offered a definition of a Canadian music industry that did not depend solely on the nationality of the creators, as with Canadian content. Instead it emphasized the Canadian ownership and location of the businesses involved as a crucial feature of this definition. Although this still excluded the better part of the music industry in Canada the policy did recognize the music industries, particularly sound recording, as important and vital cultural industries, contributing to Canada’s culture and economy as much as either televisual or literary endeavours, addressing one of the original goals of the

Applebaum-Hébert Committee, as well as of the industry’s representatives.

The policy, with its industrial focus also reflected the increasingly economic orientation of Canadian cultural policy. As with Canadian content, it assumed the preeminence of the private sector as the site for production and dissemination of

Canadian culture. Even though it resulted in government subsidy for this activity, there was, after the initial recommendations of the Applebaum-Hébert report, no suggestion that this would be carried on by the public sector directly. Even more explicitly than Canadian content it assumed that Canadian music would be created by private industry and devoted resources to assist with this. This emphasis on production furthered the perceived aims of Canadian content with respect to the music industry. Creation, or the production of culture remained the underlying aim of the policy – again in keeping with the overall vision articulated by

Applebaum-Hébert. However, Canadian cultural policy was becoming yet more economically oriented and the increasing importance of copyright would shift the

213 emphasis from production to compensation – from the act of creation to the rights of creators.

i In the fall of 1993, Prime Minister Kim Campbell’s Conservative government changed the name Department of Communications to the Department of Canadian Heritage, with responsibility for all federal cultural policies. One major policy change was to move oversight of telecommunications to the Department of Industry - not a popular move with the cultural industries, already aware of the coming importance of telecommunications for the provision of cultural content. ii Types of Initiative Generally accepted by the Commission

Type of Initiative Initiative Generally Direct Generally Accepted - Accepted - Program - Station-produced - Interviews Concert, - Artist features Drama, etc. - Historical, other - Poetry, Drama Canadian features - Canadian countdown - Album Sweeps Promotion - Artists, Concerts & New Recordings Talent Contest - Concert - Promotion - Record Production - Interviews - Video Production - Recording Time - Prizes Concerts - Musicians & staff pay - Interviews - Hall Rental - Promotion - Recording for airplay Record or Video - Studio time - Use of station studio Production - Musicians fees - Production costs - Record pressing - Record distribution Scholarships & Grants - Cash donation Industry Talent - Cash donation Organizations* * e.g. Musicaction, FACTOR, Videofact, Country Talent Development Foundation, Alberta Music Project, etc... Grants to local arts - Cash donation - Promotion association

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Use of studio facilities - Audio tape for artist - Time in studio Seminars - Hall rental - Promotion - Guest speakers CRTC PN 1990c: Appendix I: 20.

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Chapter Five: From Branch Plants to Creators’ Rights: Changing Canada’s Copyright Law, Part I

Copyright has always been an important issue for the music industries and provides much of the basis for their existence. Copyright is the framework within which the music industry operates and thus of fundamental importance as a policy

(Frith & Marshall, 2004: 1). Its importance has only grown as the music industries have derived more and more of their income from the exploitation of rights as opposed to record sales (Frith, 1992: 73). In this dissertation the focus is music copyright policy in Canada, but in order to understand this field it is necessary to set it in context of international copyright laws, as well as to clarify the basic parameters of this branch of law. Copyright is an assemblage mixing together aspects of art, commerce and technology as a juridical entity. In their discussion of the origins of copyright Kretschmer and Kawohl identify a number of factors that led to the establishment of the concept: individualism (the rise of the notion of the individual artist or creator), trade (inasmuch as it helped to establish the means of circulation for works and ideas) and technology (in the first instance, the printing press) (2004: 22). We can briefly explore these aspects here as they apply to Canadian copyright policy developments from the 1970s to the 1990s.

Individualism, may well have helped to spur the development of the concept of the author and hence author’s rights in their creations as a form of property, an idea developed by Locke, as well as Fichte, among others (Kretschmer & Kawohl,

2004). One of the major justifications for copyright is that it promotes creativity and innovation by ensuring payment for those who engage in such activities

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(Towse, 2004). This gives copyright obvious relevance for cultural policy – although, as we shall see, this was slow to be acknowledged in Canada. This aspect of copyright, the protection of authors or the alternative term, ‘creators’ is also of tremendous rhetorical importance in debates over the policy. The argument that copyright is fundamentally for creators (especially ‘Canadian creators’) is employed repeatedly in the presentations and briefs of the various interest groups involved in the issue and enjoys the same prominence in many of the government’s policy documents. This remains problematic because in the case of music at least, it has generally not been creators themselves that have lobbied hardest for copyright but their various agents or employers – the music industry and its various representatives. This is important because although there are some inalienable rights granted to authors in respect of their creations (moral rights), the ownership can be and frequently is sold, as artists are not often capable of exploiting their rights themselves (Towse, 2004).

This economic aspect of copyright is also visible in the extent to which it has been caught up with international trade over its history. More than our previous two policy assemblages, copyright involves the international music industry, operating both inside and outside Canada. Policies such as Canadian content or the Sound Recording Development Program, whatever their similarities to policies in other countries, are designed and developed in Canada. Copyright on the other hand has been largely developed internationally through treaties and conventions. Canada’s copyright revision is in large measure a process of enacting, through legislation, policies which were largely developed elsewhere.

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Thus copyright is also an area that concerns our relations with other countries, especially in terms of trade. Copyright also challenges the boundaries of cultural policy, inasmuch as it is not especially concerned with issues of national identity

(except perhaps in an economic sense). This is reflected in the history of copyright in Canada, which remained more or less outside the cultural policy framework until 1980, at which time the Department of Communications assumed shared responsibility for copyright and gradually integrated it into cultural policy.

Finally, technology is of tremendous importance in copyright. As the term might indicate, copyright is concerned with reproduction. Initially this would have been conceived in terms of printing, which made mass reproduction of texts practicable for the first time. It is relatively easy to extend this notion of mechanical reproduction, first to the printing of scores and subsequently to the manufacture of discs. However, there are different forms of reproduction that occur through other media. For instance, performing a work (although ephemeral) is a form of reproduction, as is broadcasting a work. The development of copyright law has in many instances been a response to the emergence of new media and has evolved various branches for dealing with these different forms

(Frith, 2004). As these forms proliferate so have copyrights and the revenue streams these represent for copyright owners. For music publishing, rights income

(much more than printed scores) has been its primary revenue stream since at least the late nineteen twenties when broadcast radio and talking pictures both emerged as new commercial means of exploiting music – alongside existing forms of exploitation such as sound recording and vaudeville. The process continues today

218 as international bodies such as the World Intellectual Property Organization

(WIPO) and various national governments attempt to deal with the situations created by new technologies and, just as important, our deployments of these.

Types of copyright in Music

For music there are a number of rights grouped under the general category of copyright. The two main streams are copyright (in the narrow sense of the right of mechanical reproduction) and performing rights (the right to publicly perform works). The former are somewhat older, dating back at least as far as Britain’s

1709 ‘Statute of Anne’ – arguably the first copyright law (Kretschmer & Kawohl,

2004). Rights of reproduction applied primarily to literary works at this time and were gradually extended to cover the publishing of musical works, as this evolved into a business over the eighteenth century (Ibid.). Performing rights date back to the nineteenth century, again in Britain, and were first applied to dramatic works.

Performing rights were given to authors, playwrights or composers over public performance of their works. Radio’s use of music has also generally been characterized broadly as public performance under copyright law, since the origin of broadcasting in the 1920s. The other major division of rights that apply to music is between the rights that obtain in performances (including recordings) and the rights that obtain in works or compositions. Each has a separate regime with its own distinct suite of rights and its own history. For instance, there is a difference between “American Woman,” a composition written by Burton

Cummings and Randy Bachman, which can and has been performed and recorded by any number of musicians and the original recording of “American Woman” by

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The Guess Who, the band to which both songwriters belonged. Each of these is governed by a distinctive set of rights and institutions. The rights in a composition have a longer history, obviously, going back to the early years of music publishing in the late eighteenth and early nineteenth centuries. As Frith has pointed out, the music industry was a rights business before it was a record business (2002: 30). The rights in a recording go back only to the early twentieth century, following the development of sound recording technology in 1876 and the ensuing establishment of a business based on the sale of recordings of music.

Copyright in sound recordings was not specifically recognized in the USA until

1976 and not in Canada until 1988, although the 1923 Copyright Act, did refer to

“records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced (Copyright Act, 1923: Section 4(3)). In addition, many of the rights in the recording are termed “neighbouring rights,” based on the notion that the recording is not a primary but derivative work. The copyright in neighbouring rights is equivalent to that granted to composers and publishers for performing rights but in this case it is granted to performers and to record companies. One of the major differences is that although most copyright regimes recognize performing rights for compositions, they do not extend these to cover recordings or performances. This issue is amongst the most important for the development of copyright in Canada over the period under examination.

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Collective Copyright Administration

Another development from performing rights of great importance for music industries was the collective administration of copyright, that is groups of rights holders forming a society to collect performing rights from various users on the behalf of composers and publishers. The rationale for collective administration was both to simplify the process for creators and users, as well as to achieve the power of collective bargaining for copyright owners. The first such society was the Société des Auteurs, Compositeurs et Éditeurs de Musiques (SACEM) in

France in 1852. The United States and Britain formed such collectives on behalf of songwriters and publishers later in 1914: the Performing Right Society (PRS) in Britain and the American Society of Composers, Authors and Publishers

(ASCAP) in the USA. The classification of radio broadcast as public performance, in terms of copyright, was introduced in Canada with the 1923

Copyright Act. This led to the establishment of collective copyright administration in music in Canada with the formation of the Canadian Performing Right Society

(CPRS) in 1925. One of the first actions of the CPRS was to approach broadcasters with demands for royalties for their use of copyrighted music.

Private broadcasters faced with this collective action formed their own association early in 1926 to represent their interests in this issue (Allard, 1976). This was the origin of the Canadian Association of Broadcasters (CAB), which would go on to become one of the most powerful lobbying organizations in Canada, representing private broadcasters interests on a wide range of issues. Initially CAB sought to fight the imposition of the royalties but eventually reached an agreement with the

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CPRS to pay them. The matter of what the rate should be was referred to a federal commission, which resulted in the creation of the Copyright Appeal Board to arbitrate such claims (Allard, 1976). Thus this relationship of supply and use resulted fairly early on the creation of three important actors in the Canadian music industry and policy matters: CPRS (later CAPAC), CAB and the Copyright

Appeal Board (later the Copyright Board). Disputes between performing right societies and broadcasters over the value of that use have been more or less ongoing. In the United States matters came to a head in the early 1940s with the withdrawal of permission to broadcasters to use ASCAP controlled music (Sanjek

& Sanjek, 1991). The dispute was eventually settled but resulted in the creation of a second important performing rights society controlled by broadcasters,

Broadcast Music Incorporated (BMI) in 1941. An affiliated organization, BMI

Canada, was set up in Canada with the assistance of CAB. The name was changed to PROCAN (Performing Rights Organization of Canada) in 1977, as the organization shed its ties with broadcasters and became a non-profit organization

(SOCAN, 2008). CAPAC had meanwhile established its own affiliation with

ASCAP, largely the result of financial assistance from the latter after the CPRS nearly bankrupted itself in an unsuccessful suit against Famous Players in 1927.

The two collectives merged in 1990 to become SOCAN (Ibid.).

International Treaties

As we said earlier copyright legislation has been shaped by international treaties and conventions. These are a reflection of copyright’s considerable entanglement with trade issues. As Acheson and Maule suggest, the first

222 copyright law in Britain was, at least in part, a response to concerns by English publishers over competition from printers in adjacent territories such as the

Netherlands and Scotland (1999: 258-259). Still, copyright gained a much more international dimension with the Berne Convention (signed in 1886), wherein a number of European countries laid out a common framework for copyright that included recognition of the intellectual property rights of each others’ nationals.

This is what is know as ‘national’ treatment – each country agrees to treat the nationals of other participating countries as they would their own nationals. A number of the rights we are concerned with here were formulated through such treaties, in particular the Rome Convention of 1961, which lays out the principles for neighbourng rights. Passage of Phase II of copyright revision in 1997 allowed

Canada to ratify this convention and thus participate in an international regime of rights collection and distribution pertaining to these rights, a Canadian collective would collect the right on behalf of rights holders in all participating countries and would in turn receive payments from these countries based on their own media’s use of recordings by Canadian nationals. This type of arrangement is termed

‘reciprocal’ treatment. More recently Canada’s revision of copyright has focused on ratification of the World Intellectual Property Organization’s two 1996 treaties, one on copyright generally with respect to digital technology (WCT) and another specifically dealing with performances and phonograms (WPPT), which deals with the distribution of music over the Internet. Copyright is not simply a matter of treaties but legislation. As a body of law, it is also applied and to some extent shaped by the courts in terms of its interpretation, as well as in the awarding

223 injunctions or damages for infringement, where these are not specified by statute.

In Canada, the application of copyright is to some extent governed by a quasi- judicial body – the Copyright Board of Canada (formerly the Copyright Appeal

Board), as well as by the courts.

Copyright in Canada

The task here is to look at copyright as it pertains to the Canadian music industry. Of the three policy assemblages, copyright has by far the longest history, dating back to before Confederation. This is not, however, a continuously eventful history. The pace of copyright revision has increased over the past two decades, as has the level of attention it receives, but for most of the last century, copyright reform has been addressed only occasionally by the Canadian government; one of the characteristics of this history is the slowness with which this process of revision has been carried on. From the early 1920s until 1988, there was very little significant revision of Canada’s copyright laws. Although some aspects of the revision process occurred between these two dates, there is no escaping the perception that the federal government was more than usually slow in its deliberations. Ron Basford, the Minister for Consumer and Corporate Affairs in

1971, suggested one possible explanation for this.

A revision of the Copyright Act, in frankness, does not enjoy

the highest priority with Members of Parliament. This is often

the difficulty in passing legislation through Parliament, and

usually the reason why some of these acts are so out of date.”

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(Canada. Parliament. Senate. Standing Committee on Banking,

Trade and Commerce [C.P.S.SCBTC], 1971:31:9)

Copyright has shaped the music industries in Canada as much as it has elsewhere. At the same time, the development of music copyright in Canada is shaped by Canada’s particular characteristics as a market for music. Canada’s particular geographic location and political circumstances result in a copyright regime that is by no means unaffected by international frameworks but has also been designed to meet these circumstances. This is visible even in the 19th century. As a British possession, Canada came under the jurisdiction of the mother country’s copyright law, with obligations to respect the rights of British authors and publishers. Yet, at the same time Canada’s proximity to the United

States meant that it was generally much easier to import American editions of

British works (musical or literary). These were of course unauthorized, as The

United States did not at that time recognize the copyrights of other nations. The impossibility of entirely stemming this flow led in 1850, to the Canadian legislators allowing the import of these editions but with a tariff of 12 ½ per cent that would reduce their attractiveness to importers and consumers somewhat

(Cutler, Smith & Weatherly: 106-108). This was affirmed again after

Confederation and upheld by Britain’s Imperial Council. However, British authors and publishers continued to find the situation an irritant to trade, by no means an unusual situation in Canada’s early trade relations with its imperial master as the

Dominion attempted to shape policies that reflected the needs of its own citizens and economy rather than the dictates of British interests (Innis, 1956). As

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Britain’s influence over Canada’s trade has waned, American influence has waxed. This influence, as much as any has shaped our music industry and the policies that pertain to it.

Bill S-9 An Act to Amend the Copyright Act

At the end of the first chapter we referred to the episode in which the largest record companies in Canada attempted to collect neighbouring rights (the performing right in a sound recording), which resulted in the removal of these rights from the Copyright Act. The events in this episode occurred just before and after the introduction of Canadian content regulations and, like them involved an aspect of the relationship between radio broadcasting and the music industry. This is one of the many points of overlap between copyright and the other policy assemblages we have examined. But in this case the issues were very different.

The debate over neighbouring rights was not concerned with ensuring the presence of Canadian music on the airwaves, nor yet with the establishment of a

Canadian sound recording industry. Instead, the debate centered on the rights conferred on sound recording by copyright and extended into concerns over the industrial production of music and the balance of trade. The companies involved in the attempt to collect the right were, for the most part, Canadian branches of multinational labels. So far, most of our attention has been focused on the

Canadian-owned music industry, which was both the major interlocutor with the government for Canadian content and the SRDP and the main beneficiary of the latter. Copyright presents a different case from these. One result of copyright’s international aspect is that the major labels and their representatives have been far

226 more involved in Canadian this area of policy than in either Canadian content regulations, which were of relatively minor importance to them, or the SRDP and other funding programs, from which they were excluded. But this international aspect has not meant, as with film or book publishing policy, that the international industry stands in opposition to the Canadian industry. Rather, the two have generally worked together with broadly similar objectives where copyright is concerned. Opposition is more of an issue between music publishers and record labels and, even more so, between broadcasters and the music industry. Both sides have played the nationalist card in the debates over copyright reform.

The struggle over the removal of neighbouring rights which ended with the passage of Bill S-9 in 1971, amending the Copyright Act, received nothing like the attention of the Canadian content regulations, which took place at roughly the same time. Yet it also marks an important entry point for the music industry into government policy. Obviously there was extant copyright legislation that involved music. However, these bills, with their concentration on this particular right brought government attention to the music industry with unprecedented degree of focus. The debates and committee hearings in both the Senate and Commons, apart from a great deal of procedural wrangling, concerned not only the relationship of the record industry with radio but the associations between these sectors and performers, songwriters and, to a lesser extent music publishers. As well, the nature of the record industry in Canada and the role played by foreign companies was a major theme throughout these hearings and debates. Much of this discussion was animated by Canadian nationalism and anxiety over the flight

227 of capital from Canada to the head offices of these companies. It is possible to see here, as it is not in the Canadian content hearings, more of the actual deliberations of government as they come to terms with the music industry.

Briefly, in policy terms the justification for the Bills was that the 1957

Royal Commission on Patents, Copyrights & Industrial Designs (the Ilsley

Commission) had recommended the abolition of neighbouring right sin its report.

The copyright reform process had been only fitful at best since the 1923

Copyright Act and all parties agreed that a thorough overhaul of Canada’s copyright law was overdue and far preferable to piecemeal revision. Nonetheless, in 1968 (and again in 1970) the government moved to bring in this highly specific piece of legislation, one paragraph long, which simply removed this particular right. It may simply be that the record companies forced the government’s hand by moving to collect the right but the government’s response to introduce legislation to abolish was almost instantaneous and determined from the outset.

The Minister of Consumer and Corporate Affairs, Ronald Basford, asserted that an argument could be made to the effect that the right did not in fact exist

(H.P.S.SCBTC, 1971: 31: 11) (although this begs several questions: why the

Ilsley Commission had recommended the right’s abolition, why the Copyright

Appeal Board approved a tariff on the basis of the right and, finally and, why, indeed, the government needed a bill to repeal it). One might suggest that the Bills were meant to placate a private media sector, already provoked by Canadian content regulation, or that the CBC’s share of the payments under the tariff might run as high as $840,000, but such considerations were barely raised. Instead the

228 government characterized the right as out of keeping with previous policy recommendations and with prevailing norms of copyright in Canada and the

United States.

In the fall of 1967, the Canadian Record Manufacturers Association

(CRMA) formed a corporation, Sound Recording Licences (SRL) to file for and collect copyright fees from broadcasters for their use of the recordings whose copyrights were controlled by CRMA members. This was in fact a move to collect what was essentially a neighbouring right – a performing right in recordings payable to their copyright owners Although this had been part of

Canadian copyright legislation since the 1923 Copyright Act, the right had never been exercised in this country. When SRL filed in October 1968 with the

Copyright Appeal Board of Canada to collect a tariff, along the lines of PROCAN and CAPAC, the reaction of the government was to introduce Bill S-20 one month later on November 29, which aimed at repealing the relevant section of the

Copyright Act. Within days, negotiations between the recording industry and the government resulted in SRL withdrawing its application and the government withdrawing the legislation for two years, pending the release of a report on copyright (among other matters) from the Economic Council of Canada, which had been commissioned in 1966. Two years later, in the absence of any subsequent report from the Economic Council, SRL filed again with the

Copyright Appeal Board for the tariff and, once again, the government introduced a bill in the Senate (this time Bill S-9) with much the same purpose as the earlier one. This time the Bill was passed, during which time, not only had the Economic

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Council filed its report which recommended removing the right, but also the duly filed tariff with the Copyright Appeal Board was approved (albeit at a rate much reduced from that proposed by SRL) and their decision appealed by broadcasters to Federal Court. The passage of Bill S-9 in the House of Commons on December

21, 1971 rendered all this irrelevant.

The government’s position, to remove neighbouring rights from the

Copyright Act, was based on certain assumptions about the nature of the sound recording industry in Canada and its business practices. One of these, also addressed in the Canadian content hearings, was that foreign, primarily American interests dominate the sound recording industry. Whereas this was seen as a situation to be addressed by Canadian content, it was simply an accepted reality for Bills S-9 and S-20. The other assumption is that the sound recording industry primarily a manufacturing industry, that is, one that intervenes in culture only at the point of reproduction (Miège). Again this may be a somewhat limited notion of the industry; it is, however, not without some truth, however partial. The manufacturing aspect is an important one as it is what made sound recording an industry in the first place.

The Multinational Record Companies in Canada

Foreign domination of Canada’s recording industry is intimately bound up with manufacturing and distribution. The bulk of the recordings sold in Canada have generally been manufactured here so in this sense at least there has always been a domestic Canadian recording industry for over a century. What is imported is the content of these recordings, in the form of master tapes and it is copies of

230 these that have accounted for the majority of sales. Because the product is embodied in a physical object, this has necessitated local distribution and manufacturing networks (Garofalo: 341). The logistics and relative costs of transporting finished product globally, as opposed to manufacturing locally, may have something to do with this. In Canada, with its close proximity to the United

States, this is less of a concern than tariff policy which also encourages local manufacture, although it is undoubtedly a consideration in other markets as well.

In any case, there are numerous ways of setting up and maintaining such local manufacturing and distribution operations. In some cases they may be owned by multinationals or they may be locally owned. The degree of involvement between the owner of the master and the local manufacturer and distributor may range from a one-off licensing arrangement, to longstanding exclusive licensing agreements, to outright ownership. Where multinationals involve themselves in a local market they may elect to undertake distribution but not necessarily manufacturing. We can detect all of these kinds of arrangements in the Canadian recording industry over the twentieth century.

The first thirty years of the sound recording industry in Canada saw the “Big

Three” (Columbia and Edison and Berliner) as the dominant players. Two of these were American companies and the third, Berliner, had strong ties to Victor

Talking Machine Company, arguably the largest American recording company at the time. To some degree all three companies manufactured both the equipment and discs in Canada. The reason for this was the tariff regime on manufactured goods, erected as part of John A. Macdonald’s National Policy some decades

231 before and still very much in place. The result was that it was generally less expensive to manufacture goods in Canada than to import them from elsewhere and so the industry developed in Canada largely along these lines. What was generally not a feature of the industry was a concerted effort to develop Canadian recording artists. The exception to this occurred in the late teens as Berliner sought to free itself of its dependence on Victor and to avoid paying out so much in royalties to that company (Moogk, 1975: 69-70). Berliner began to record both

French and English-speaking artists, mostly in Montreal. These recordings began to dominate the Berliner catalogue, apparently to the irritation of Victor whose sales in Canada declined as a result. This situation did not persist, as Victor eventually bought out its Canadian partner in 1924.

Through much of the thirties, the recording industry suffered from a major decline in sales of both equipment, as well as discs – a result both of the depression and of competition from radio. During this time much of the sector went out of business both in Canada and The Canadian market remained dominated by foreign recordings but these were for the most part marketed at arms length through licensees with manufacturing facilities in Canada, most notably Compo Company, a pressing plant set up by Herbert Berliner as an independent concern in 1918. Compo was the sole Canadian record company to survive the depression, thanks in part to its status as Canadian licensee for multinationals such as Brunswick and Decca during this period. In 1939 the

American-owned manufacturing company Sparton took on manufacturing and distribution of the newly revived Columbia label, after its sale to CBS. As late as

232 early 1960s the bulk of record manufacturing in Canada was carried on by such companies. Through this period only Victor, or RCA Victor as it had become, maintained a consistent Canadian presence. The music industry in Canada then was, indeed a manufacturing industry for the most part. Companies such as

Compo continued to record Canadian artists through its Apex and Sun labels but their main business was the manufacture of foreign recordings under license.

What began to change was the major labels became much more involved in the distribution and sales aspect of the record business. This development occurred not just in Canada but elsewhere.

The most sustained effort to take control over the distribution of recordings on the part of the majors began shortly after the Second World War and became one of the most fundamental aspects of their dominance of the music industry.

During this time the major labels gradually began to establish more of a presence in Canada. Columbia opened its own offices in 1954 and in the same year Capitol

Records consolidated its presence, becoming Capitol Record Distributors of

Canada Ltd., after the restructuring brought on by EMI’s purchase of the parent company. The US branch of Decca was also active in this regard, purchasing

Compo Company in 1954. When MCA took over Decca in 1964, they built another pressing plant in Cornwall, Ontario to supplement the Compo plant in

Lachine (Moogk, 1992). British Decca had established its own offices in Canada, via its London Records subsidiary in 1948. This process accelerated in the late

1960s. EMI recordings had contracted their manufacturing in Canada to RCA

Victor but took over this function themselves in 1967. Likewise Columbia took

233 over its own manufacturing from the Canadian manufacturer Quality Records in

1971. The arrival of other companies as a direct presence in Canada, such as

Polydor in 1966, GRT in 1969 and A&M in 1970 furthered the domination of the international recording industry here furthered the process of assumption of control over distribution, in Canada as elsewhere.

One of the most compelling reasons for taking more direct control of distribution in Canada was the realization that licensing one’s catalogue, although relatively low risk, left most of the profits with the licensee. When Warner

Brothers decided to start setting up its own distribution system in 1967, it began with Canada. Warner Brothers Records was among the last of the majors to enter

Canada but its strategy was part of a larger trend in the industry to consolidation of control over the various functions of marketing sound recordings. The following passage illustrates the advantage of setting up its own Canadian subsidiary and is highly relevant for the balance of trade issues that were raised in the debate.

“Compo had sent back 12 1/2 percent of suggested list minus

tax for all of its sales of WB albums. Our Burbank label had

enjoyed only that percentage and paid its record artists out of

it; Compo kept three times that amount. After Warner opened

WBR of Canada, the new company sent not only the same 12

1/2 percent to Burbank but also all of WBR/Canada’s

profits…WBR/Canada started making money after one month

234

in business.” [Emphasis in original]

(Cornyn, 2002: 189)

By 1970, most aspects of the recording industry in Canada were in the hands of the multinationals and they clearly dominated the market (estimates of

95% of the Canadian market are difficult to substantiate but are not out of line with subsequent figures). They had come to dominate the manufacturing and distribution aspects of the business as well. If, as Yorke suggests, a much higher number of Canadian-based artists were successful by this time, the majority of these were also signed to major labels, such as Gordon Lightfoot (Reprise), Anne

Murray (Capitol), or their recordings were issued by these companies under license – the arrangement for the Guess Who’s releases (Nimbus 9/RCA). Clearly, in this aspect at least, the general picture of the industry painted by the opponents of neighbouring rights had more than a little basis in fact. Rights payments would have gone primarily to these companies, and with no legal requirement to share it with the artists; the money could have been passed on to their head offices.

Much of the opprobrium against the recording industry that emerged during the debates over Bill S-9 was directed at multinational record companies.

Canadian companies were deemed worthy of some level of support, even if this was merely notional. The nationalist discourse that is the decisive factor in the creation of Canadian content regulations is visible here also but is much more focused on economic factors such as outflow of capital and balance of trade.

There is a clear reluctance on the Minister’s part to use copyright as an instrument of cultural policy.

235

…Parliament has done much to assist performers in this country.

I put forward not lightly the fact of the CBC, which is a far more

important assist to Canadian performers and talent than could

ever be gotten from a performing rights society.

(Canada. Parliament. House of Commons. Standing Committee

on Justice and Legal Affairs [C.P.HC.SCJLA: 43: 19)

The dominance of the multinational record labels, particularly the American ones, in Canada is a given in this debate and is used as a justification for repealing the right – but only negatively. That is, the foreign dominance removes any justification for the right in terms of helping Canadian culture. Issues, such as support for performers or a Canadian recording sector, were assiduously bracketed off by the supporters of the bill, dismissed as more or less irrelevant to the case in hand.

Both sides also use the United States as a reference in terms of its own regime of copyright laws. Not coincidentally, the Americans also had a copyright bill before congress at the time that also considered the possibility of neighbouring rights. One of the assertions of supporters for the Canadian bill was that the Canadian record manufacturers’ move to enact their performing right was aimed at influencing the outcome of the American legislation. That is, by showing that Canada had a similar right and that it was workable the record industry in

America, which largely controlled the principals in SRL, could overcome resistance to such a right in the United States. There is some merit in the argument, considering the timing of the move, as well as the fact that although the

236

Canadian tariff was relatively low (especially after the Copyright Appeal Board approved a tariff that was less than a tenth of that asked for by the record manufacturers) the potential revenues in the United States would be substantial.

A Manufacturing or Creative Industry?

Another important aspect of the particular configuration of the music industry posited here concerned the role of music publishing. This role was not particularly closely examined during the hearings. The publisher’s role was more or less subsumed under that of the writer/composer and it was broadcasters’ and record companies’ obligation to writers and composers that was discussed. The comparison of this role with that of record companies as owners and administrators of copyright was hardly drawn. Given that music publishers claimed a 50% share of the performing rights collected by CAPAC and BMI, too close a comparison with the record companies might have undermined the position of Bill S-9’s supporters that record companies were not entitled to a performing right. As for the opponents of the Bill, their concern laid with justifying the rights of performers in comparison to writers or of claiming some degree of creativity in the recording process. It is worth noting that whereas the

Bill’s opponents made little reference to music publishers, music publishers themselves did not appear as witnesses at either the Senate or Commons committee hearings. In the latter case, this may have been the result of an extremely tight schedule for the hearings, the result of which that only a limited number of witnesses were able to appear. However, the bill put publishers in an awkward position. Opposing it could result in derogation from their own revenues

237 through performing rights, given the unwillingness of the government to impose more financial constraints on broadcasters.

This illustrates, at least, that publishing companies had a divergence of interest from record companies in this case. There were strong affiliations between the two sectors. However, the claim that most of the music publishing industry was affiliated with the recording industry, or that all of the record manufacturers had publishing companies was somewhat simplistic. Only two of the major labels (Capitol/EMI and Warner Brothers) had substantial publishing interests at this time – dating back to the 1930s and, in Warner Brothers’ case at least, predating their involvement in the recording industry. Many large music publishers were not under the control of record companies nor necessarily was it the case that recording artists who wrote their own songs were expected to publish with their record company’s affiliate. Generally speaking, music publishing’s role in the music industry was not a strong feature of the configuration posited by this

Bill. It was present but in a role that saw the sector as increasingly a sideline and ancillary activity, displaced by the recording industry. This resonates with the second of the phases that Garofalo outlines in his history of the music industry in the twentieth century (1999: 319). Both the claim that most publishers were simply affiliates of the recording industry, used to maximize its profits, and the claim that performing rights were necessary for writers and composers who had no other way of earning substantial income from their creative work, assumed that recorded music, whether sold to consumers directly or played by radio stations,

238 was the main commodity form of music around which the music industry was centered.

We have already described the relationship between record companies and radio stations in terms of the former providing programming for the latter and receiving promotional exposure for their products in return. To reiterate an earlier point, performing rights challenge the validity of this conception of a symbiotic relationship by imposing additional obligations on the radio stations as users of copyrighted material. Again, the decision to be made here was about which particular version of the relationship between radio (as well as television in this case) and a certain segment of the music industry would prevail. In the event the accepted version was settled along similar but not identical lines. The value of the promotion and programming were judged to be more or less equal. Bill S-9 passed and the neighbouring right was removed. This was grounded in the rationale that the record company was, in the words of the report from the

Economic Council “in the business of selling a physical item such as a disc or a tape and it is this activity that should reimburse him” (Canada. Parliament. Senate.

Debates March 30, 1971: 803). This privileging of the material aspect of the recording industry was again, not incorrect in itself. This had always been the substantial part of their business and underlay much of the structure of the industry both in Canada and abroad. It also underlay other policy frameworks in which the industry was already caught up, i.e., the tariff on manufactured goods.

What was more or less suppressed in this account was the degree of record label involvement in the creative process. Throughout the debates and committee

239 hearings, legislators and some witnesses expressed the view that the bulk if not virtually all of the creative input in a musical selection was from the composer of the work and that recording the work added little or nothing to it in terms of creativity. This is suggested in the testimony of W. Z. Estey, Counsel for the

Canadian Cable Television Association, who supported the Bill.

When you make that work into a piece of sheet music…you

have not created anything intellectual at all; you have just

created a device by which the intellectual process can be

repeated for some one else’s benefit…or you do it by recording

where you have a pianist sit down in front of a microphone and

the vibrations are translated onto the surface of the disc or the

record…

Senator Connolly (Ottawa West): Do you restrict the

intellectual work to the work of the originator – for example,

the author of the piece of music?

Mr. Estey: Yes.

(C.P.S.SCBTC, 1971: 28:8).

This was not so very different from the view expressed by the government when it presented Bill S-9 the House of Commons: “…the question is really one of the principle that no performing right should exist in a record, that is, the purely mechanical apparatus upon which sound or images are recorded, as distinct from the intellectual and human input to those products. They are already taken care of by the other performing rights societies.” (Canada. Parliament. House of

240

Commons. Debates: October 29, 1971: 9183). The performer was grudgingly allowed a certain level of creative input by legislators. However, although most could agree that this might justify some level of recompense from those using the recording, a performing right was seen as an inappropriate vehicle for this. In large measure they were justified by the fact that the performing right in a sound recording as it occurred in the Copyright Act, said nothing about the performer but only the owner of the copyright, which was almost always the record company.

But, again, the record company was repeatedly positioned as simply a manufacturer with little or no role in the creation of the original recording. We can see attempts to convey a sense of the creative aspects of the recording process and the role of the record producer but this role is never satisfactorily articulated in the hearings and is distinguished sharply from that of the record company, which is reduced simply to the role of mass reproduction of masters, equivalent not to a publisher of books but to the printer (C.P.HC.SCJLA, 1971: 43:20). The recording industry is conceived as thoroughly industrial and, inasmuch as this is the case, outside of the creative or cultural realms.

As confused as much of the debate and testimony may seem and however slanted it may have been, there was an attempt here to delineate the various functions of the music industry and their relationship to each other. The conception of the record company presented here bears some similarity to

Hirsch’s description of the industry, with creative inputs from outside the record company and with promotional functions delegated to media gatekeepers. Their description of the recording industry included an extended description of record

241 production and promotion – what Hirsch calls ‘boundary spanning’ activities

(1972: 650). This description is also consonant with Hirsch’s in that it leaves the manufacture and marketing of records as the central functions of the record company.

From these assumptions we can construct a certain configuration of the music industry as assumed by this particular episode. The view of the industry enacted here is that music industry is primarily a recording industry. The creative inputs for this industry emanate largely from composers and songwriters and to a lesser extent from performers. Record companies are at the center of the process and derive their income from the sales of recordings to consumers, and they depend upon radio stations to promote these recordings. This industry is a manufacturing industry and is dominated by foreign, mostly American interests.

In the aftermath of Bill S-9, the Canadian Recording Industry Association

(CRIA, as the CRMA became in 1973) focused its copyright concerns on issues of piracy, rather than neighbouring rights, a preoccupation broadly in line with that of the industry internationally (Laing, 2004). During the hearings and debate over the bill, the industry and some legislators (notably Warren Allmand, who had at least one record manufacturing plant in his constituency) had raised concerns that Bill S-9 would remove the right of reproduction from recordings, although this does not seem to have been the case. Nonetheless, maintaining and defending this right became more of a preoccupation for CRIA. Pirated product involves the unauthorized duplication of recordings by commercial entities and can involve everything from manufacturing counterfeit copies of releases to repackaging

242 selections or even importing recordings from other territories to compete with domestically released editions. In 1973, the association estimated a loss of $5.5 million to the Canadian industry through pirated product, mostly from the United

States (Melhuish, 1974: 68). CRIA set up a network of representatives to detect piracy and, where necessary, engaged in legal action to stop it. These activities were in line with those of similar organizations in other countries such as BPI in

Britain or the RIAA in the United States. However, while continuing to keep copyright activities a high priority, there was not much in the way of an active lobby on this issue by the music industry until the 1980s.

Keyes and Brunet -The Rise of Creators’ Rights

The government’s major activity on this front during the period was the publication of a report by A.A. Keyes and C. Brunet Copyright in Canada:

Proposals for a Revision of the Law (1977). Whereas neighbouring rights might have seemed a dead issue with the passage of Bill S-9, Keyes and Brunet recommended that they be reinstated – but for Canadian recordings only. A

Canadian recording in this case meant “one where the majority of the elements going into its production, including music, performers and the facilities use are

Canadian…Moreover, a Canadian record producer, (the owner of the right) should be defined accordingly” (88). Keyes and Brunet also suggested that if such a right were extended to non-Canadian recordings that this should be done on a reciprocal basis; that is, only to countries that also collected the right and so would also pay it to Canadian artists and producers. This solution (prophetic inasmuch as it was what would eventually become the law) suggested that while

243 protection for sound recordings consistent with that for other artistic works was desirable, concerns over trade imbalances remained a legitimate concern.

In other music-related copyright issues, Keyes and Brunet recommended that compulsory licensing in mechanical rights be maintained – mostly as there seemed to be no appetite on the part of those most affected, music publishers, for its abolition. A compulsory licence stipulates that copyright owners must allow their works to be used, as long as they are remunerated for it. In the case of the compulsory licence in mechanical rights, the law stipulated that once a work had been recorded for the first time the music publisher (or whoever controlled the copyright) had to allow it to be recorded by anybody else who chose to do so, just so long as they paid. This system was introduced in the United States in 1909 and was introduced to Canada not long after. Compulsory licencing was designed to prevent music publishers from restricting the trade of the nascent recording industry. The system included statutory mechanical royalty rates – that is, rates prescribed in the law. In Canada, the rate of 2¢ per copy per song, had remained more or less unchanged since 1923. Keyes and Brunet made a number of recommendations that were aimed at updating and revising the system to make it fairer and to take account of technological innovations since that time. Although they recommended that the rate be changed to a percentage of the retail price of recordings, they did not consider making the licence non-statutory and they recommended its administration by the Copyright Appeal Board. In fact, although

Keyes and Brunet were apparently unaware of it, some music publishers in

Canada were already taking steps to fight both compulsory licensing and statutory

244 rates in Canada, setting up the Canadian Music Reproduction Rights Agency,

Incorporated (CMRRA) in 1975. This organization, owned by the Canadian

Music Publishers Association (CMPA) was created to negotiate with record labels over mechanical royalties and other issues and to collect these royalties on behalf of music publishers. Previously, this had been undertaken by the Harry Fox

Agency, which continues to perform this function in the United States. The creation of CMRRA was another sign of a maturing Canadian music industry.i

There were other issues of concern to the music industries but these involved, for the most part, tightening definitions or adjusting existing rights.

Keyes and Brunet’s report still addressed copyright outside the envelope of cultural policy. Despite its being produced under the aegis of the Department of

Consumer and Corporate Affairs (certainly an improvement on the Department of

Agriculture, which had overseen copyright in Canada in the nineteenth and early twentieth centuries), the report did acknowledge the cultural dimensions of copyright. Keyes and Brunet indicated in the Preface that “creators’ rights” were the “central preoccupation” of their approach to copyright (iii). The report explicitly, if briefly, asserted the importance of copyright for those involved in artistic creative endeavours and it made reference to ‘cultural industries’ – one of the earliest such references in Canadian policy (1977: 15). In so doing the report eased off from the more categorical assertions made by the government during the passage of Bill S-9, regarding the separation of copyright from cultural matters.

As Rushton has shown, this assertion of creators’ rights was also in contrast to the

Economic Council’s report of 1970, which had characterized cultural goals as a

245 potential “smoke-screen” for material interests (cited in Rushton: 324). While the

Economic Council’s pronouncement had not denied any relevance for culture, their position did render such concerns secondary to economic ones and, just as important, it offered a sharp distinction between them as though cultural goals and material interests had nothing to do with one another.

But that distinction was beginning to erode somewhat as the notion of cultural industries became more prominent in cultural policy. We discussed the explicit acknowledgement of the industrial aspects of culture in the Applebaum-

Hébert report. What occurs with copyright is a move from the opposite side converging on a culture/industry hybrid. Evidence of the evolving government position came with what is perhaps the most important change in the copyright policy during the period – the decision to share responsibility for copyright between Consumer and Corporate Affairs and the newly reorganized Department of Communication in 1980. Whereas the Minister of Consumer and Corporate affairs had been quick to dismiss cultural concerns around neighbouring rights as irrelevant, these arguments now at least had to be heard. The involvement of the

Department of Communications in the file suggested that copyright could be an instrument for addressing Canadian culture.

Yet government was not fully ready to embrace copyright reform as part of the mainstream of cultural policy. The Applebaum-Hébert report restricted its consideration of copyright issues to a few general observations deliberately sequestered from the rest of the report in a brief appendix to Chapter 3, although it did partially address home taping and mentioned in passing mechanical rights and

246 the compulsory licensing regime around them. This absence was no doubt partially born of the wish not to duplicate the work being done on copyright elsewhere in the government. However, there was still a sense in which the report’s authors felt that it could be addressed separately from the rest of cultural policy, despite the fact that, as was clear in their comments, that the cultural community in its presentations to the committee viewed copyright as extremely important and a fundamental element of any cultural policy regime. The separation of copyright from other policy, at least where the music industry was concerned, extended as far as 1985 with the Department of Communications’

Discussion Paper on Initiatives for the Radio Broadcasting and Sound Recording

Industries. Here there was no mention of copyright whatsoever. In this case, the omission of copyright in the department’s assessment of policy is more puzzling.

It is difficult to accept this as simply wishing not to interfere with the work of the

Sub-Committee on Copyright, given that the paper did discuss policies such as

Canadian content, which was undergoing almost constant review at the time, and which was governed by an arms-length regulator in any case. Certainly, the complexity and diversity of the copyright file demanded special attention but the government seemed determined for the time being to treat it as an entirely separate issue, even if it had important implications for culture.

Copyright Policy Development in the 1980s

Government’s openness to culture in this area of policy made it possible for the music industry to invoke these concerns in their lobbying. Just as the role of the music industry in production of music offered justification for government

247 support, the music industries’ concern to protect intellectual property could more easily be translated into arguments for support of Canadian culture but this was difficult for any one segment to achieve on its own. There were several issues that made the translation difficult. First, government may have been more open to hearing culture-based arguments for copyright but these were (in keeping with the

Keyes and Brunet report) along the lines of creators’ rights and the music industry could not be straightforwardly identified with creators. As well, the concern with the protection and support of Canadian culture limited the ability of some of the segments to present a case for enhanced copyright, specifically the major labels as represented by CRIA. Because of their size, they would almost certainly derive the greatest benefit from many of the measures. For others the issue may have been limited resources to mount such a campaign – certainly for CIRPA and the

CMPA. The other issue of course was the divergent interests concerning particular aspects of copyright, in particular, the divide between the recording and publishing sectors.

Attempts to overcome this divide began in the early 1980s. Reasoning that conflicts among various sectors could perhaps slow down copyright reform, a number of groups in the music industry moved to resolve some of the issues between them and to present the government with a united front on this issue. In

1982, a letter to Communication Minister Francis Fox and to Consumer and

Corporate Affairs Minister André Ouellette signed by the heads of ADISQ,

CIRPA, CMPA, CRIA, SDRM, laid out a common position on copyright reform.

This included a relatively generic call protection for intellectual property from all

248 unauthorized uses and more recognition for the rights of creators (Personal

Communication: Letter from M. Gelinas (ADISQ), V. Wilson (CIRPA), G.

Ullmann (CMPA), R. Kerr (CRIA), May 17, 1982). More specifically, the letter addressed the issue of mechanical licensing of musical works (the rights paid by record companies or makers of other mechanical contrivances such as piano rolls to music publishers for making recordings of these works), as well as to the principle of ‘compulsory licensing,’ established in the 1923 Copyright Act, and which we discussed earlier.

Mechanical rights also served to define and set a value on the sound recording industry’s relationship with music publishing – again, a case where the composition served as the basis for the recorded performance. The right recognized that record companies derived more benefit from this relationship but statutory rates and compulsory licensing were designed to prevent music publishers from exploitative practices that might starve the new recording industry. During the early twentieth century, when these measures were brought in, music publishers were the most dominant sector of the music industry and already a relatively concentrated industry. But by the 1980s, the rate was clearly out of date, taking no account of either inflation or of the change in bargaining positions between the music publishing and sound recording industries in the intervening period. Keyes and Brunet had recommended maintaining compulsory licensing, citing a seeming lack of opposition to the current regime and a more recent study commissioned by the Department of Consumer and Corporate

Affairs, had also recommended keeping the current system, while allowing for

249 changes in the rates and the way they were calculated (Berthiaume & Keon: 67)

The music industry, in its 1982 proposal did not suggest abolishing compulsory licensing, but instead offered ways of changing the regime to allow for more equitable rates and measures that would ensure publishers got paid. The proposal suggested that mechanical rates be set by private negotiation of rates between the representatives of the two groups concerned. These could then be ratified by the

Copyright Appeal Board and a statutory licensing regime, which would have government help to enforce payment.

The other matter addressed in the letter to Minister Fox was home taping.

This was an issue which had gradually emerged over the nineteen-seventies as cassette recorders became increasingly popular. This technology, first emerging in

1969, allowed consumers to easily and cheaply copy recordings or radio broadcasts. Blank cassette sales grew in the USA from 150 million units in 1975 to 220 million in 1978 (Sanjek & Sanjek: 240). While record industry revenues were rising, this was not seen as a particular problem but with the industry-wide fall in sales of 1979, home taping offered the industry a possible culprit. The loss, in 1979, of a high profile lawsuit against Sony, brought by Universal and Disney regarding video-cassette recorders showed that, in the USA, at least, the courts were not inclined to view electronics manufacturers as liable for any infringing of copyright that users of their products might engage in and it was unclear that lawmakers saw these practices (provided the copies were not for commercial use), as any sort of problem at all (Ibid. 240-241). CRIA, in turning its attention to home taping, was following the lead of its counterparts in Britain and the USA,

250 however, the practice was viewed as damaging to all sectors of the music industry, as it infringed on the rights of music publishers as much as those of record companies.

It was unclear, however, just how to address this problem. Home taping was, strictly speaking, illegal but the issue of enforcement was problematic. The government’s 1982 study on the issue outlined three possible approaches to the problem: exempt home taping from provisions against copyright infringement; legalize home taping and establish a system of remuneration for copyright owners or; leave legislation as it was (Keon, 1982). The report, citing the lack of reliable data on the actual use of blank media, as well as the absence of home taping provisions in other countries, particularly Britain and the USA, recommended leaving things as they were but remained open to revisiting the issue at a later date

(Ibid). The Applebaum-Hébert Committee had also heard submissions on the issue, as one of its recommendations for the sound recording industry was the creation of a voucher scheme, whereby a tax on blank media, could be recovered by consumers from the purchase price of Canadian recordings (C.FCPRC, 1982:

244-45).ii The music industry’s 1982 proposal, on the other hand, asked for the government to enable copyright owners and creators to collect levies from manufacturers of blank media and taping equipment, as well as from those engaged in commercial rental or lending of recordings.

The music industry’s unified approach to copyright paid no immediate dividends. It did, however, signal the beginning of the coalition building that would become an important feature of the industry’s lobbying efforts, particularly

251 with regard to copyright. Meanwhile the government moved slowly on copyright reform, carefully studying the many issues around the copyright act, with a series of commissioned reports (two of which we have cited). In the spring of 1984, the

Liberal Government published a White Paper on copyright, From Gutenberg to

Telidon (its title a clear acknowledgement of the technological dimension of copyright), under the aegis of the Department of Consumer and Corporate Affairs and the Department of Communications (1984). This was the furthest any government had come to enunciating a comprehensive copyright policy in sixty years and the document laid out plans for a thorough overhaul and updating of

Canada’s copyright laws. Recognizing copyright’s importance to cultural policy,

Communications Minister Francis Fox, also issued a supplementary document, titled Copyright & the Cultural Community (Communications Canada: 1984), highlighting the measures relevant to culture. Several of these were of interest to the music industry, including a rental right in sound recordings, explicit recognition of sound recordings under copyright law and the abolition of compulsory licensing. The government opted not to bring in a neighbouring right, reasoning that in 1971 “90 per cent of the records manufactured in Canada were made from master recordings produced outside Canada. That percentage has not changed appreciably and the decision not to reintroduce the right has been made for the same policy reasons cited in 1971” (Communications Canada, 1984: 6).

Those reasons were, again, the likelihood that such a right would result in an outflow of royalties to other countries, primarily the USA. Additionally, the government’s new policy avoided any decision on home taping. The matter was

252 simply referred to the parliamentary committee that would be studying the paper in preparation for legislation.

Shortly after the publication of From Gutenberg to Telidon, the new Liberal government of John Turner called a general election, which the Liberals lost. This delayed the process of copyright revision somewhat. However, the Conservative government signaled early on in their mandate a commitment to the issue and the process of copyright reform initiated by the Liberals was continued. From

Gutenberg to Telidon served as the basis for a series of hearings by the Sub-

Committee on Copyright Reform through the summer of 1985. Communications minister, Marcel Masse set the tone for the hearings early on, characterizing the copyright revision process as the creation of a “charter of rights for creators” – perhaps a nod to the recent patriation of the Canadian Constitution under the

Liberals, including a Charter of Rights. It was also clearly in line with Keyes and

Brunet’s report. In any case, the theme caught on and was echoed by committee members and witnesses throughout the hearings and ended up as the title of the committee’s final report.

The hearings heard from a number of witnesses on issues relevant to the music industry over June 18 and 19, 1985. The witnesses were drawn mostly from associations and organizations representing the various music related industries in

Canada and represented a fairly wide cross-section of the sector. There was not a great deal of evidence of a music industry coalition in the testimony from these groups. It was not only that they found themselves in opposition on some of the issues; there was no overall agenda and different priorities with respect to

253 copyright. This perhaps should not be especially surprising, but it does contrast with the earlier effort to present a united front with respect to copyright, as well as with the relatively coordinated and unified approach the industry would assume later on in the copyright revision process. Despite the Sub-committee grouping the testimony under a single theme, ‘The Music Industry,’ the testimony amply demonstrated a plurality of activities and interests contained within that term.

Much of this was perhaps a result of the particular rights and issues under examination. Some of the rights under examination addressed the relationships between various music industries, for instance music publishing and sound recording, or between performing rights collectives and concert promoters; other rights were of concern only to some sectors and not to others; and there were still some areas of agreement and unanimity.

For the performing rights societies, CAPAC and PROCAN one of the major issues concerned the extension of the performing right to include cable transmission, which, under the current law, did not constitute public performance.

However, much of the testimony from these societies and most of the questioning from the committee members concerned the nature of the very nature of these entities and the whole question of collective copyright administration. Such collectives as we discussed earlier had evolved in order to more effectively represent the rights of composers, who were individually in a weak bargaining position relative to most users of their work. However, the collectives did raise issues with respect to competition. In the past, there had been a number of challenges to collectives, in the United States in particular. Such concerns were

254 natural as the effectiveness of collective negotiation rested on the societies’ control of much of the available repertoire. In Canada, the two societies controlled almost all the copyrighted musical repertoire to the extent that users of music targeted by their tariffs had little choice but to pay. The fact that there were two societies was a result of battles between the first performing right society in the

United States, ASCAP (with whom CAPAC was affiliated) and broadcasters, who created their own society, BMI (with whom PROCAN was affiliated). The committee was especially interested in the insistence of the societies on exclusive negotiation rights for all types of public performance on behalf of members. That is, individual members could not make side deals with particular users such as concert promoters or radio stations but must participate in the tariff collection and distribution schemes of the society to which they belonged. This discussion was of interest to the committee as it tried to determine the role that collectives could play in an enhanced copyright regime and whether this could be made compatible with Canada’s existing competition laws. Related to this issue, was an attempt to clarify the role of the copyright board. Put simply, the sub-committee wanted to determine what aspects of copyright administration the government should regulate and to what extent.

The most divisive issue at the hearings was compulsory licensing. The united front on this matter from three years previous had more or less collapsed.

This issue defined music publishing and sound recording as opposing interests and the previous rapprochement between the groups had done nothing to change that – even with a negotiated settlement they would remain fundamentally

255 opposed where this was concerned. If anything the testimony at this hearing allowed each side to define much more clearly what it saw as its interests. Not surprisingly, the groups representing music publishers or songwriters such as

CMPA and SPACQ, wanted to see the abolition of compulsory licensing, as did the agencies charged with negotiating mechanical rights agreements, CMRRA and

SODRAC. There was no reason for music publishers to attempt to restrict recording, rather music publishers’ aim was “ to obtain, not restrict, recordings”

(Canada. Parliament. House of Commons. Sub-Committee on the Revision of

Copyright [C.P.HC.SRC], 1985: 20:17). Moreover, the publishers contended, the life cycle of popular songs had changed a great deal since the nineteen-twenties.

The 25, 50, 100 versions of “Yesterday” are not there any

more. “Yesterday”…perhaps would have had 400 cover

versions; “Stardust,” 600 cover versions. The average song,

say “Careless Whispers” by Wham or whatever, will perhaps

get half a dozen covers and not important covers. It would not

appear on Frank Sinatra album because this style of doing

business has declined.

(C.P.HC.SRC, 1985: 20:20)

In other words, a song (notwithstanding its fundamental importance to making a hit record) rarely got more than one shot at being a hit. This change substantially weakened the position of publishers in insisting on exclusive deals, such that a

256 compulsory license was no longer necessary. What publishers and their organizations insisted on, above all, was the right to negotiate the value of their works with various users, whether this was with record labels on mechanical rights or with broadcasters on ephemeral rights (the right of broadcasters to make copies of programming materials to facilitate broadcast). With constraints such as compulsory licensing it was difficult to know what this value was.

…the [music publishing] industry must re-educate itself to and

learn how to do business again in the trade of songs. I think

that is, if you like, in the long term, the strongest benefit that

will come out of the abolition of the compulsory licence.

(C.P.HC.SRC, 1985: 20: 18)

On the other side, those groups representing the interests of record companies, CRIA and ADISQ were in favour of retaining the compulsory license.

ADISQ ventured the opinion that once an author had made to the decision to have a song published “the work no longer belongs to him to some extent. It belongs to a community” (C.P.HC.SRC, 1985: 20:53). For ADISQ, the author’s rights extended to remuneration for use of the composition and to having the integrity of the work respected – in essence, a moral right. CRIA’s argument was less philosophical perhaps, based more on the reasoning behind compulsory licensing in the first place – to protect against monopolistic practices on the part of music publishers – bolstered by a submission by the Director of Research and

Investigation under the Combines Act, which raised the possibility of this occurring again, should compulsory licensing be abolished (C.P.HC.SRC, 1985:

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20:64).iii The exception to this record label/music publisher split was CIRPA, which supported the abolition of compulsory licensing, despite its membership being primarily record labels. This stand is perhaps less surprising when we note that the considerable overlap in the members of the delegation of CIRPA and those of the CMPA and CMRRA at the hearings. CMPA shared a number of board members. Al Mair, president of Attic Records and CIRPA board member, testified on behalf of the CMRRA (an agency he had helped found) and Brian

Chater, a music publisher and CMPA board member, testified on behalf of

CIRPA (on whose board he also served). It may be that the independent labels were more heavily reliant on music publishing as a part of their business.

However, Brian Chater’s justification of the support for a measure that seemed against the interests of CIRPA’s members was based on extending the implications of the compulsory licensing system to cover the situation of creators and copyright owners generally.

…down the road somewhere we could be trapped. By we, I

mean creators in general, whether it be record producers or

music publishers or whoever. We could be trapped by

compulsory licensing if there are very, very few users and

they had a great deal of power over us by virtue of their

great amounts of money…

(C.P.HC.SRC, 1985: 20: 44)

There was much more general agreement across the industry on the issue of home taping, with no group in the music industry opposing the measure. Most of

258 the groups were also quite clear that if such a measure were to be adopted that it should be a royalty payable to the music industry, not a tax collected by government. CIRPA expressed the view that, if collected by the government the levy would simply become a tax (C.P.HC.SRC, 1985: 20: 4). ADISQ referred to

Québec’s tax on videocassettes, earmarked for cultural support that had simply never been disbursed (C.P.HC.SRC, 1985: 20: 53). In this respect the music industry was at odds with the recommendations of the Applebaum-Hébert

Committee’s recommendation. Again, such unanimity was not particularly surprising given the degree to which all the segments could potentially benefit from it. In essence, such a right worked to unite the interests of the music industries as rights holders. Finally, CRIA also called in their brief and their testimony for the reestablishment of neighbouring rights, despite the position taken by the government in From Gutenberg to Telidon. What is perhaps surprising is that neither CIRPA nor ADISQ had much to say on the matter at the hearings. The other support for this issue came from ACTRA, who were seeking similar rights for performers rights in performances – a longstanding position of the union.iv

The various conflicts between the groups and the divergent interests they represent made it necessary for each of them to speak credibly as representatives of the Canadian creative community. There were a number of strategies for achieving this. CRIA, in particular, worked hard to establish its Canadian credentials, pronouncing themselves “deeply committed to stimulating and developing Canadian artists and music both in the domestic and international

259 markets” (C.P.HC.SRC, 1985: 20: 61), as well as referencing their involvement in setting up the Canadian Academy of Recording Arts and Sciences (CARAS) and the Juno Awards (Ibid.). By claiming to represent those responsible for 95% of the records sold in Canada CRIA also bolstered its claim to represent the music industry in Canada. Other representatives had less of an issue establishing their

Canadian or Québecois status but had to establish their relation to the creative community in the context of the committee’s thematic of a charter of rights for creators. ADISQ acknowledged a difference between its constituency and artists but reminded committee members of the importance of the business interests involved.

So, if in the charter of rights the creator is the first one in the

chain, the most important person, yes. We must also

remembers that we live on the North American continent and

that once a work has been created, it should be produced and

sold…We cannot isolate a creator from the methods of

production that surround him. This is very important to

remember.

(C.P.HC.SRC, 1985: 20:59).

Brian Chater’s straightforward identification of record companies and music publishers with creators, quoted above (p. 257), is less nuanced than ADISQ’s position perhaps but aligning one’s interests with creators was by no means a bad strategy at these hearings or subsequently, as it turned out.

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Philip Rushton, following Landes and Posner’s (1989) law and economics position, claims that copyright revision in Canada during the 1990s did not include a sound analysis of the costs and benefits of new rights but was based primarily on the promulgation of the principle of creators’ rights (1997).

Certainly, there is evidence that creators’ rights were paramount at this earlier stage also. Marcel Masse’s pronouncement at the beginning of the hearings indicated which way the government was leaning, and this was borne out in the title of the Committee’s report A Charter of Rights for Creators. Much more than

From Gutenberg to Telidon, this report’s recommendations consistently recognized creators’ control over their works and their right to recompense for their use. The recommendations went much further to meeting the demands of the music industry than From Gutenberg to Telidon. Sound recordings were to be given full and explicit copyright protection, including the re-establishment of neighbouring rights on a reciprocal basis (C.P.HC.SRC, 1985, 27: 49-51). The compulsory licensing regime was to be abolished (Ibid: 35). A home taping regime based on royalties was recommended (C.P.HC.SRC, 1985, 27: 76). In all of this the recommendations were fairly consistent. The report privileged creators or, depending on how you viewed, it redressed the imbalance in their favour. So while the Sub-Committee’s recommendation went against broadcasters on neighbouring rights, in which they were the users, it favoured them in retransmission rights, where they were the creators. Likewise the sound recording sector lost as users in terms of compulsory licensing but gained as creators through recommendations on rental rights, neighbouring rights and the home

261 taping levy. The whole music industry benefited from the recommendation to establishing a home taping levy, based on copyright.

With the new rights came a reaffirmation of the important role of copyright collectives in their collection and distribution. As the report put it, “the formation of collective societies of copyright is the best solution to the problems created by modern reproduction technologies” (C.P.HC.SRC, 1985, 27: 85). Collectives were to be regulated by the Copyright Appeal Board (with the name now shortened to the Copyright Board), allowing them exemption from the provisions of the Combines Investigation Act. However, this regulation would not extend to intervention in the collectives’ administration, simply to adjudicating between parties when a proposed tariff was in dispute and then setting a rate. The Board itself was to be an independent body, reporting to Parliament. The whole thrust of this was to privatize copyright and to limit the government’s regulation of it.

Collectives, acting as representatives of creators, were to be given maximal freedom to negotiate with users. The users themselves would benefit from simplified administration through blanket licenses, allowing broad access to copyrighted works (Ibid.).

The ministers responsible for copyright, Michel Côté in Consumer and

Corporate Affairs and Marcel Masse in Communications, responded to the sub- committee’s report early in 1986. As far as the music industry was concerned, the government’s response endorsed most of the report’s recommendations. The government agreed in principle with neighbouring rights but left open the question of whether recordings of foreign origin would be dealt with on a national

262 or reciprocal basis. For home taping and record rental rights, however, the government’s response read somewhat ominously, “The government recognizes the merit of the Sub-Committee's objective to compensate creators but- will have to examine the best way to implement it” (Consumer and Corporate Affairs

Canada & Communications Canada, February, 1986: 14). Even with such caveats and qualifications, all of this took government policy a long way from 1970, when the recording industry’s relation to creators was denied and that of music publishers to the creative process acknowledged only grudgingly. Along with the move to recognize copyright in sound recordings was a recommendation that

“The owner of the copyright in a sound recording should be the individual or entity principally responsible for the arrangements undertaken for its making”

(C.P.HC.SRC, 1985, 27: 52) – in other words, the producer or record label.

Moreover, the government had come to believe that copyright, if not exclusively a cultural policy, was at least central to the production of Canadian culture. The anxieties over balance of payments (allayed somewhat by the use of reciprocal rather than national treatment) were subordinated to a policy aimed at stimulating

Canada’s cultural and other copyright industries (including computer software developers, for instance). Committee member Liberal MP Lynn MacDonald provided the lone dissenting opinion. Her concern was that no detailed analysis had been undertaken with respect to the inflow and outflow of royalties that might affect Canada’s balance of trade – this despite the report’s recommendation to follow reciprocal rather than national treatment in these rights and the fact that the

United States, likely the major beneficiary under national treatment, had not

263 enacted a number of these rights, including neighbouring rights (C.P.HC.SRC,

1985, 27: 100). MacDonald also favoured a home taping regime based on a tax used to support programs, rather than a levy collected by copyright owners – again, because this could be directed solely to supporting a Canadian industry

(Ibid: 101).

Conclusion: Copyright, Privatization and Free Trade

MacDonald’s Dissenting Opinion was a reminder that trade was still an important consideration in extending copyright. Her concern was perhaps understandable in light of the government’s announced intention to enter into discussions on free trade with the USA. Canada’s cultural industries were seen as especially vulnerable in this regard. Despite the decision to apply reciprocal treatment to these rights, American negotiators might still demand national treatment under the terms of a free trade agreement.v In any case copyright might well benefit Canadian creators but under an increasingly international copyright system, these benefits would have to be extended to creators of other countries as well to some extent, a fact pointed out by CAB in their presentation to the Sub-

Committee (C.P.HC.SRC, 1985: 22: 53-54). Societies such as CAPAC and

PROCAN, as well as agencies such as SODRAC and CMRRA, collected on behalf of their international counterparts, not just their Canadian members.

Measures such as reciprocal rights might mitigate the balance of trade in this respect but copyright was not and could not be a policy designed to defend

Canadian culture from foreign interests. John Mills, general manager of CAPAC, pointed this out in the hearings.

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…there is this feeling that somehow we can control the

outflow of money from the country by a Copyright Act. But

you cannot…the only way you are going to control it is not by

the Copyright Act but by regulations such as the Canadian

content requirements…

(C.P.HC.SRC, 1985: 19:46)

In this respect, the Liberal government in 1970 had been correct to suggest that copyright was not an instrument for the benefit Canadian creators specifically. In fact, bringing in certain rights would definitely benefit foreign copyright owners much more. For instance, there was some speculation that the Conservatives might use copyright measures (in particular the recognition of retransmission rights for television and the revenues this would bring to American producers from Canadian cable companies) as a trade-off for introducing other, more protectionist cultural policies (Greenspon: D8).

For a government with a stronger ideological commitment to free market principles and to free trade in particular, copyright reform made a certain amount of sense. Just as Hart says with regard to Free Trade, one could say equally of copyright that it “fit in well with the government’s other initiatives in the economic area” (2002: 372). Copyright might seem like an odd fit with initiatives such as reducing government subsidies and a general program of privatization and deregulation. However, despite the high-minded sentiments expressed about

265 rights for creators, copyright was a decidedly business-oriented approach to cultural policy. The program of copyright reform adopted by the Conservative

Party was arguably more in line with its values than were cultural policies such as

Canadian content or the SRDP. Instead of government programs copyright encouraged the construction of a market for culture and provided the means by which it could be effectively commodified and valued through negotiations between creators and users. Collectives and tribunals, although by no means perfect market instruments, were necessary concessions to the characteristics of intellectual property (indeed, copyright as an artificial monopoly is itself such a concession). These are, using Callon’s terminology, the devices necessary to construct a market in intellectual property (1998a: 20-21). This, as much as anything else, motivated the copyright reform process from the government’s standpoint (Consumer & Corporate Affairs Canada & Communications Canada,

1984: 1; C.P.HC.SRC, 1985, 27: xi). Copyright encouraged the production of culture by private individuals or companies, rather than through government- funded institutions. The measures proposed by the sub-committee had emphasized limited, arms-length regulation, making it easier for copyright owners both to set a value on their property and to pursue remedies for the infringement of their rights through the courts. Of all the cultural policy measures taken by the

Mulroney government (and they did indeed have a very mixed record on cultural policy), copyright reform was perhaps more compatible with their economic program than any other, both in its market orientation and its inescapable orientation toward international trade.

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By early 1986, the Mulroney Conservatives had considerably furthered the copyright revision process begun by the previous Liberal government. Canada now had an updated copyright policy much more capable of dealing with recent advances in technology and more comparable to that in many other regimes. The

Sub-Committee’s report and the government’s response had boldly asserted the rights of creators, overriding concerns about the balance of trade and the disruption to existing practices. With the policy in place all that remained was for the government to draft and pass the legislation. This, however, would prove to be a much longer and drawn out process than most would have imagined at the time, stretching over a decade, three prime-ministers, two general elections and several pieces of legislation. By the time the government had addressed the bulk of the issues outlined in the report, the environment in which the music industry operated was beginning a fundamental shift that the existing policy could hardly begin to address.

i Similarly, in Québec, the collection of mechanical rights had been carried on since 1970 by S.D.R.M. Canada Ltée, an affiliate of France’s mechanical rights agency (Société pour l'administration du Droit de Reproduction Mécanique des auteurs, compositeurs et éditeurs). In 1985, this body was replaced a Canadian agency SODRAC (Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada, inc.). SODRAC operates somewhat differently from CMRRA or Harry Fox, inasmuch as it represents songwriters and composers (not just music publishers) – another element perhaps of Québec’s distinct music industry. ii This was conceived as broadly similar to a proposed box office tax, to be used to fund the Canadian film production industry (Magder, 1993: 149-150). The Applebaum-Hébert report complained that issues of provincial jurisdiction (not to mention strong opposition from Hollywood) prevented that policy from being enacted (C.CPRC: 253). A measure similar to that of Applebaum-Hébert’s voucher scheme was undertaken by the Ontario government in 1979, where half of the purchase price of a non-winning lottery ticket would be discounted from the sale of Canadian records, books or admission to Canadian films.

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iii Indeed, when, with the encouragement of the government the two sides sat down to negotiate an agreement on mechanical royalties the following year, the Combines Investigation Branch found this to be price fixing – forcing the government to make legislative changes to the Combines Act, should it wish the process to continue (O’Connor: C12) iv ACTRA had been calling for reform of the Copyright Act in this regard for many years. See for example, their testimony before the Senate Committee on the Media in 1970. v As indeed they eventually did with the blank tape levy, but without success – see Acheson and Maule, 1999: 274)

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Chapter Six: From Policy to Legislation: Changing Canada’s copyright Law, Part II. Coalition Building: the Music Copyright Action Group

From 1986 until 1997, the Canadian music industry was engaged in an intensive and ongoing lobbying campaign to see the recommendations contained in A Charter of Rights for Creators, enacted as legislation. After the government’s response to the Sub-Committee’s recommendations was published in February

1986, the music industry eagerly awaited the introduction of a comprehensive copyright bill. In anticipation of the copyright legislation, the music industry had begun to assemble a coalition of various representative groups to ensure that the legislation was passed and that the interests of the various sector were properly addressed. The Music Copyright Action Group (MCAG), as it was called included among its members the American Federation of Musicians (AFM), the two performing rights societies CAPAC and PROCAN, the CMPA, the Canadian

Country Music Association (CCMA), CRIA, CIRPA, SODRAC and SPACQ. In the fall of 1986, the group met with the current Minister of Communication, Flora

MacDonald in Ottawa and followed this with regular meetings with Deputy

Minister Alain Gourd over the next several months. This coalition building was based on a growing cooperation between the various sectors, involving some compromises in their positions on some issues. Chief among these, perhaps, was

CRIA’s about face on compulsory licensing. By the spring of 1986, CRIA’s

Executive Secretary Brian Robertson was on record as supporting abolition of the compulsory license (O’Connor, December 23, 1986). CRIA accepted the idea that compulsory licensing would be abolished and, with the government’s

269 encouragement, began negotiations with the CMRRA in the spring of 1986 on a new mechanical licensing. These negotiations were derailed when the Combines

Investigation Branch determined that the resulting agreement would constitute price fixing. Resolution of this issue would require legislation, giving the music industry added incentive to press the government on the matter. An equally involved but less divisive effort at coalition building involved CIRPA’s and

SPACQ’s interventions on behalf of PROCAN and CAPAC at tariff hearings in

1986, not only achieved higher rates for television and CBC use of music but showed a relatively cooperative relationship between various sectors.

The formation of the MCAG and the cooperation among the various sectors that it represented is perhaps one of the most significant developments in the music industry’s efforts at obtaining copyright reform. There had been lessons for the industry in the Applebaum-Hébert Report, as well as that of the Sub-

Committee’s Charter of Rights for Creators. Creativity was evidently the theme of two of the major policy documents to emerge in the last few years. As the music industry associations lined up on the side of creativity and the rights of creators, this provided these groups with a consistency that made their message much easier to comprehend and, hopefully, endorse. CRIA had also learned lessons from their experience with neighbouring rights from 1968 to 1971. During that episode, the organization and its members had been vulnerable on two fronts.

First, they were seen as essentially outside the creative process. Second, they were perceived to represent foreign, predominantly American interests. In a sense this was still true, however, in company with these other groups, representing not only

270 the Canadian sector but also musicians, composers and lyricists, the size and foreign status of CRIA’s membership stood out less. CRIA brought something to the table as well. Their membership, the major labels, undoubtedly accounted for the majority of records sold in Canada. Their presence in the coalition lent it credibility inasmuch as it could claim to represent much of the Canadian recording industry as whole in monetary terms. This carried considerable advantage when dealing with government, as Williamson and Cloonan suggest

(2007: 307-308).

Yet the MCAG did not represent all sectors of the music industry; concert promotion, instrument manufacturing and retail were absent from the coalition. In part this was because their interests did not converge where copyright was concerned. Either copyright was irrelevant (manufacturers), of secondary importance (retailers) or detrimental to their interests (concert promoters). While, in the strictest sense of the term, none of the members of the MCAG could be called creators, they were copyright owners and to some extent their interests aligned with those of creators, especially in comparison to enterprises such as broadcasting. The Canadian music industry defined itself increasingly as a copyright industry, including those elements concerned with the exploitation of rights – not so much creators themselves as those entities acting as their agents

(unions, publishers, collectives) or employers (record companies). The music industry’s increasing preoccupation with copyright and its growing reliance on rights revenues fed each other. As it obtained more rights, its income from such

271 sources grew and as this income grew, the extension and protection of these rights became more of a priority.

This transformation was more marked for the sound recording industry and those representing performers. The music publishing industry had already undergone a similar process much earlier. The growing similarity of their business models may have helped to bring the two industries together as a coalition of rights holders. This is not to say that relations between the various sectors were always smooth. Music publishers and record companies still lined up on opposite sides of mechanical rights when it came to paying them and the negotiations between the CMRRA and CRIA over mechanical licenses were often extremely intense. Nor did the coalition hold together as it began. By 1989, the membership was much reduced, down to a rump of CIRPA, CRIA and the CMPA, now joined by ADISQ. The ties between CIRPA and the CMPA (who shared several board members) helped, as did a growing cooperation between CIRPA and the performing rights societies on Canadian content issues (Personal Communication: letter from Brian Chater, CIRPA, to Paul Burger, CRIA, December 29, 1992).

The groups still had different, sometimes, conflicting priorities in terms of rights and it required some effort on all sides to maintain a cooperative if not always cordial relationship. Nonetheless, these members represented the most activist organizations as far as copyright was concerned and their ongoing collaboration ultimately proved to be quite effective in securing most of their aims in the face of some considerable opposition – most notably that of the broadcasters and their lobby group CAB, still among the most powerful interest groups in Ottawa. From

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1990 to 1997, the MCAG acted as the conduit for many of the statements from the music industry on copyright. The group published a newsletter – more of a serial statement of their policy positions and, perhaps most important, the group organized and funded a serious lobbying effort in Ottawa, hiring first Neville and

Associates in 1990 and later The Capital Hill Group to coordinate their efforts there. The costs for lobbying were shared by the four members of the group, joined in 1993 by SOCAN.

Phase I of Copyright Reform: Bill C-60

Faced with an enormously complicated task and an overloaded legislative agenda the Conservatives broke their copyright revision plans into installments and decided to move on what they viewed as the least contentious recommendations from the report. Even so, the first phase of revision was not tabled in the House of Commons until April 1987. When Phase I was unveiled, many of the measures the music industry had been hoping for, such as neighbouring rights, rental rights and a home taping levy, were missing. The major provisions of Bill C-60 as far the music industry was concerned were the abolition of compulsory licensing and a specific if limited recognition of copyright in sound recordings. As well, the bill contained the necessary measures to allow suitable exemptions from the Combines Act for copyright collectives to operate effectively. Although the first phase had targeted what the government felt were the least contentious copyright issues, the bill still had difficulty in its passage through Parliament. The issue was not anything to do with the music industry but arose over museums’ and libraries’ concerns over the burdens

273 imposed on them by new reprographic and exhibition rights. The Senate, responsive to these concerns threatened to hold up or even block the legislation.

This led to an even more broadly based coalition of arts group to take out full page newspaper ads calling on legislators to pass the Bill without further delay

(To the Senators of Canada, April 19, 1988). The Bill was duly passed by the

Senate on June 1, 1988 and received Royal Assent shortly thereafter.

As Bill C-60 had not provided a great many measures for the music industry, the music industry’s eagerness to see it passed was born as much from a desire to get on with the next set of revisions as support for what the legislation actually contained. The bill’s rationalization of the copyright regime was, however, quite welcome, especially its reaffirmation of the centrality of collective copyright administration. The effect of this had been the formation of a number of new collectives, such as CanCopy, to administer new rights granted under the Act.

This, however, was not the case with the music industry, in fact, the number of collectives declined as CAPAC and PROCAN announced their merger in 1989.

The new entity was called the Society of Composers, Authors and Music

Publishers of Canada (SOCAN). While, discussions on a merger had begun as early as 1984 (PRO Canada, 1992), the assurances of the government and the measures in the Act to protect collectives from charges of monopolization may have helped to bring about the union. SOCAN was immediately one of the most powerful entities in the Canadian music industry, with control (at least where public performance was concerned) over virtually the entire repertoire of copyrighted music in Canada.

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One of the effects of delaying the most contentious of the music provisions to Phase II is that over the next several years, copyright revision itself became increasingly identified with the music industry and its issues. Not only was the industry expending much of its lobbying efforts on the matter, policy on copyright became increasingly a matter discussion between government and representatives from the music industry and broadcasters. The other effect of course was that, as most of its contents were problematic, Phase II would be much more difficult to enact than Phase I. The rights music industry sought all had difficulties associated with their enactment. In the case of neighbouring rights, there was concerted opposition from the broadcasters, who quite naturally had no desire to pay more for their music programming. Opposition to the home taping right was perhaps less organized and articulate; there was, however, a powerful sentiment among some areas of government that such a measure would be unpopular with consumers, who, of course, were also voters. The path of copyright reform over the next several years was a slow one and the various rights followed different paths on their way to becoming legislation. This slow pace was increasingly exasperating for the music industry, which had been led to expect a more rapid pace of legislative action. During the hearings on the first round of copyright legislation in 1987, the Minister of Communication, Flora MacDonald, had testified that a second phase of copyright revision was “imminent.” By the fall of

1991, CMRRA general manager David Basskin was able to quip, “our government helps us understand the deeper meanings of the word ‘imminent’ with every passing month when nothing happens” (Melhuish, 1991: 15).

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The Home Taping Right.

There were a number of reasons for the government’s cautious approach to a home taping right. The idea of compensation for home taping was still relatively new and entailed a number of issues around how it should be collected and distributed. Relatively few countries had instituted such a right and among these there were a variety of regimes. In 1987 the music industry could point to only a handful of nations collecting the right, most prominently Germany, although other countries such as Britain and France were considering these measures at the time

(CIRPA, 1987b). So as the government moved to develop a home taping levy it had few models to follow. As we outlined last chapter, the major distinction among the various regimes was between taxes collected by governments and tariffs collected by collective copyright societies. Each of these had certain advantages and drawbacks. A government tax could be directed towards Canadian creators and industry exclusively. However, there was no guarantee that governments would direct all of the monies collected towards this end, as ADISQ had alluded during the hearings with respect to the Québec sales tax on videocassettes. A tariff administered by a music industry collective theoretically allowed those creators most affected by home taping the most direct access to the compensation, although there were problems with this approach as well. There was no reliable way of determining precisely which works were being copies by consumers of blank tape and to what extent. Proposals for distribution relied on following the formulae generated by performing rights societies, offering a

276 general guide to the popularity of various selections. Either way, these measures made government nervous because consumers would not necessarily distinguish between a tariff and a tax and new taxes were generally unpopular with voters.

This concern would continue to vex the issue of a home taping right. Each of these approaches raised a number of other questions, such as how either tax or tariff would be collected. New government agencies or new collectives might be required in each case and the question of how to best deploy or divide the revenue between various sectors the revenue would arise. Finally, there was the question of how much the tariff should be and whether this should be a statutory rate, spelled out in legislation, or a rate negotiated between representatives of rights holders and tape manufacturers. Should it be collected on both hardware and software? Was it to be collected on cassettes only or on other forms of recording tape? Again, as a fairly novel measure it was difficult to look to any established model.

At the hearings themselves and during this period, there was little debate on home taping, as no organized opposition to such a right had clearly emerged at this point. Yet it must have been obvious to the government that manufacturers and importers of blank tape would likely object, and that consumer groups might take issue with either a tax or a tariff that would greatly increase the cost of blank tape. The music industry groups testifying at the Sub-Committee hearings had all been fairly positive about a home taping levy and had generally favoured a tariff collected by the industry, as opposed to a tax. Not a great deal was said about rates but in the wake of the government’s response to the Sub-Committee’s

277 recommendations, some numbers began to circulate in the media. CRIA was clear that in exchange for legalizing home taping, the rate had to be fairly significant.

CIRPA proposed a rate of about $1.50 per tape wholesale, or $2.00 to $2.50 retail

(Quill, May 8, 1986).

The development of new digital formats added more urgency to the case for a home taping right. This was a serious concern for an industry for which, so far, digitization had been an enormous benefit. One of bright spots for the music industry in the last decade had been the development of the compact disc, the first digital format to be widely used for entertainment. CDs offered consumers high fidelity, noiseless playback and a convenient interface, as well as a much smaller and more durable format than either cassettes or vinyl. CDs, introduced in 1982 touched off a revaluation of record companies’ back catalogue, as older titles were digitally re-mastered, repackaged and sold to consumers to replace their vinyl collections (and at a premium price).i Exclusive control over digital media gave the recording industry some advantage in terms of the quality of playback over home-recorded cassettes. This exclusivity ended with the arrival of Digital Audio

Tape, or DAT. This new format, introduced by Sony and Matsushita, was of concern because digital recordings would offer the same pristine sound quality of compact discs, the newest fastest growing format for the recording industry. One of the drawbacks to cassettes in relation to vinyl and compact discs was their relatively low sound quality. DAT copies would sound just like the original.

Moreover, the copies themselves, being identical, could be copied endless times with no loss in sound quality whatsoever. The American government took

278 preemptive action against the Japanese made machines by insisting that they be fitted with an anti-copying device and imposing a one hundred per cent duty on the devices. Canada was slower to act, as the government debated whether to address the new technology through the Copyright Act or by other means. In any case, the American action obviated Canadian measures, as, on its own, the

Canadian market was too small to sustain North American sales of the device

(Bueckert, May 6, 1987). The threat from DAT did not in the end materialize and the format was confined largely to audio enthusiasts and to professionals as relatively inexpensive means of creating digital masters. Nonetheless, home taping remained a considerable threat, according to the industry. CRIA estimated

$200 million in lost sales each year, roughly one-third of the total market for recorded music in Canada at the time (Ibid.).

In order to provide some support these numbers and further the case for a home taping right, the MCAG commissioned one of its members, CIRPA to undertake a study of the matter, A Study on Home Taping (1987b), which included a consumer survey conducted by FOR/CAST Communications Research. The survey found that 63% of those surveyed had home taped in the last year, using on average 9.5 tapes (CIRPA, 1988: 1). The survey was the heart of the study, as it suggested that the majority of the population engaged in the practice of home taping. However, the study was also designed as the music industry’s brief on home taping, an attempt both to inform and persuade politicians and bureaucrats on this issue. As such it provided a general overview of the practice and included material on other countries’ responses to the problem, a history of policy

279 development in Canada and, finally, recommendations to the government on how best to deal with the problem. The recommendations were wide in scope, calling for a royalty (collected on both equipment and on tapes and administered through a copyright collective) with national treatment for other countries and a provision that “all new recording equipment for domestic use…contain an anti-copying device” (Ibid: 54). The national treatment regime would have benefited both

CRIA and the foreign-owned music publishers, who would otherwise not receive revenue for American repertoire or recordings under reciprocal treatment.

Despite the considerable amount of effort expended by the music industry toward convincing government on the matter, home taping remained far more problematic than the other rights sought by the industry. As the delay to the second phase of copyright revision drew on, home taping was for a time dropped from the proposed reforms. In the fall of 1990, the Department of

Communications informed industry representatives that a home taping right would not be part of Phase II revisions. Much of the reason for this was anticipation by the government that the levy would be perceived as a tax. For a government in the middle of introducing an unpopular and controversial Goods and Services Tax (GST), any hint of anything resembling yet another tax on any consumer goods was a difficult proposition politically. In this respect although the

MCAG study may have offered support for a right in principle, the widespread occurrence of home taping may have convinced the government that the imposition of a levy might have a widely felt impact and therefore been seen as a concomitantly greater liability politically speaking.

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A home taping regime of a kind did received support from unexpected quarters. The Canadian Association of Broadcasters weighed in on the issue in

1989 in their five-year plan Taking the Lead, which proposed the government place a tax on blank tapes and use the monies raised, “to establish a program to support Canadian music at roughly the same funding level as the anticipated proceeds from this tax” (CAB, 1989: 56). CAB’s proposal harkened back both to the Applebaum-Hébert Committee’s report in 1982, as well as to the recommendations in Lynn MacDonald’s dissenting opinion in the Sub-

Committee’s 1985 report on copyright revision. As a tax a home taping levy was no more likely to be accepted by the government in any case. However, in context of the document in which it appeared, CAB’s proposal was used merely to present an alternative to neighbouring rights, to which they remained vigorously opposed.

What CAB’s proposal perhaps does illustrate is that it was very easy for them to propose such measures. There was little or no constituency organized to oppose a home taping levy. If home taping seemed less contentious than neighbouring rights, it was because there was much less public debate on the matter. Inasmuch as there was resistance, this was within the government itself but that resistance counted for a great deal.

The situation for a home taping right was complicated further when in

August 1991 the US introduced the Audio Home Recording Act, following a negotiated agreement between the music industries and electronics manufacturers.

Basically, the agreement provided a home taping right restricted to digital audio recording equipment and media. Provisions included legalization of digital home

281 recording, the imposition of a levy on both the machines and a requirement that all machines manufactured in or imported to the USA contain the Serial Copy

Management System (SCMS), which made copies made on the machine from being copied themselves. At the time of the Bill’s introduction the only digital media available in the market was DAT, which had not proved especially popular

(perhaps a result of the 100% import tariff on the equipment). There were two more recordable digital audio media planned for release in 1992 – Digital

Compact Cassettes (DCC), developed by Philips and Mini Disc (MD), which was a Sony product. The royalty rate was set at 3% of the wholesale price for blank media and at 2% of the wholesale price for the equipment, to a limit of $8.

Hardware manufacturers did not oppose the Bill because it appeared unlikely they would be able to launch the new formats in the USA without such measures

(Congress poised…, October 3, 1992).

The effect on the Canadian situation was that the Department of

Communications offered to reinsert a home taping right of the same scope into

Phase II package of copyright revision, provided the music industry and electronics manufacturers could come to an agreement similar to that reached in the US. Some meetings between the two groups did take place over 1991 and

1992. However, these were inconclusive.ii The music industry was not generally disposed to take the offer in any case. Their view was that the rates were both very low and that the total market for digital recordable media would remain relatively small for the foreseeable future, especially in comparison to cassettes.

The estimated value of a digital home taping right for Canada was about $5

282 million at best, and considerably less after the costs of setting up and running a collective were factored in, leaving the industry to share about $3 million in total annually (Personal Communication: Memo from Brian Chater, October 29,

1991)iii. In any case, it was still unclear whether even a digital right would be acceptable to other government departments, particularly to Finance – the

Department of Communications wanted to bring a negotiated agreement to cabinet in advance of approval of the measure. In the end the industry’s official stance remained a commitment to a full home taping right.

The campaign to ensure that home taping was included in the second phase of copyright revision fell to ADISQ, which had passed a resolution early in 1992 that it would not accept a deal at the rate agreed to in the USA, nor a deal that excluded analog media. The association began a public campaign on the matter, pushing the federal government, particularly Québec-based cabinet ministers, to bring in the right. This coincided with Department of Communications decision to reopen the issue and study further the financial implications of an analog regime.

The issue remained an open one throughout the next two years, with the

Department vacillating between various proposals that included a full analog and digital regime, a digital only solution or no home taping right at all. It was at the very end of Kim Campbell’s Conservative government, in October, 1993, that

Canadian Heritage Minister Monique Landry announced a full home taping right would definitely be included as part of the second phase of copyright revision.

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Neighbouring Rights

Neighbouring rights were perhaps the central feature of the second phase of revision and if not the most problematic of the rights, surely the most contentious in terms of public debate. Much of this arises from their continuity with other music industry policy. Inasmuch as they concerned the relationship between radio broadcasting and the sound recording industry, neighbouring rights carried on the same general debate as in policies such as Canadian content regulation or

Canadian Talent Development and thus the debate over neighbouring rights was entangled with those policies as well. The growing importance of rights income to the music industry that Frith notes (1992) underlay the importance ascribed to neighbouring rights. As the largest industrial user of music, commercial radio was the central target of the music industry’s attempt to secure a robust rights regime and it was from commercial radio that most of the opposition to the new rights came. The question was the relative value of recordings as programming for radio, versus the value of airplay as the major promotional vehicle for marketing those recordings. Evidently the answers from policy makers were somewhat different in the case of neighbouring rights than Canadian content. Both sides engaged in a kind of doublethink in this respect. The music industry played down the promotional value of airplay in the neighbouring rights debate while insisting on its necessity for the industry in presentations on Canadian content. One of

CAB’s main arguments against neighbouring rights was that Canadian music had benefited tremendously from radio airplay, all the while offering various reasons to the CRTC why broadcasters should be able to play less of it.

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As with the home taping levy, neighbouring rights were judged too contentious to be part of the first phase of copyright revision. This was based almost entirely on the determined opposition of Canada’s private broadcasters. It was clear at the Sub-Committee hearings that broadcasters’ opposition to neighbouring rights remained as strong as it had been in 1970. CAB, speaking on behalf broadcasters, dismissed CRIA’s claim to have spoken with “certain major

Canadian broadcasters,” who had “indicated that they would not object to a performing right if it would serve to stimulate the record industry” (C.P.HC.SRC,

1985: 22:48). CAB’s position was that if the record industry continued to employ a large staff whose job it was to persuade radio to play their records, then clearly that airplay had some value, and that this was sufficient to offset recordings’ value to radio stations as programming. Throughout the period leading up to the enactment of neighbouring rights, this argument served as the basis for CAB’s position – radio did at least as much for the music industry as the music industry did for radio. This could be translated into cultural policy terms (i.e., the protection and promotion of Canadian culture) via radio broadcaster’s obligations under broadcast regulation, Canadian Content and Canadian Talent Development.

Through these measures radio could claim, with some justice, to be already supporting Canadian artists and a specifically Canadian music industry. This was connected to another persistent theme in CAB’s position, which raised the issue of the outflow of royalties to other countries, which had been raised as an objection to neighbouring rights both by broadcasters and the government in 1970. CAB

285 asserted in many of their briefings and policy documents that the majority of the money collected under neighbouring rights would leave the country.

The difficulty with CAB’s position in this regard (aside from the point that broadcasters could mitigate this outflow substantially by playing more Canadian music) was that the Sub-Committee’s recommendations clearly indicated that the right was to be administered reciprocally. Despite several attempts by the music industry, there was no neighbouring right in the USA, nor did it seem likely that there would be in the near future, which meant that no royalties would flow to US copyright owners or artists. This was both an advantage and a disadvantage for the music industry in attempting to secure the right here. The advantage was that, under the Rome Convention of 1961, the right could be treated reciprocally rather than nationally - again, Canada could opt not to pay Americans because they did not collect the right themselves. Estimates of American programming on

Canadian radio were that it accounted for about 50% of the music (Canada

Nixes…, August 22, 1992). This meant that overwhelmingly most of the revenue collected would stay in Canada. This was a potential trade irritant with the United

States, given that under NAFTA, the government was generally committed to national treatment in copyright matters. Certainly, in accepting the recommendations of the Sub-Committee on the Revision of Copyright in 1986, the government had reserved the right to determine whether they would treat the right reciprocally or nationally (Consumer and Corporate Affairs Canada &

Communications Canada, February, 1986). In any case, the government does not seem to have ever seriously considered introducing the right except on reciprocal

286 terms. The disadvantage of the lack of the right in the USA was one of example.

The argument (one which had been used by broadcasters in 1970) was that if the

Americans, our closest neighbours and largest trading partner, did not see fit to bring in such a right why then should Canada? This argument also carried some weight in the context of growing economic integration with the USA under the

Free Trade Agreement and, later, NAFTA. In fact there had been several attempts to bring in such a right in the USA, including one at about the time Canada removed the right, but none had ever come close to success in the face of determined broadcaster opposition. Despite the Americans’ lack of such a right, by 1990, there were over thirty countries recognizing neighbouring rights, including many in Europe. The fact that there was an international treaty, the 1961

Convention for the Protection of Performers, Producers of Phonograms and

Broadcasting Organizations (the Rome Convention) also gave the government more of a template for the administration of the right than was the case for home taping. This was generally an advantage for getting the right recognized in Canada as, unlike the home taping levy, the right was relatively consistent from territory to territory and had been in place long enough that the possible effects of recognizing the right in Canada were easier to assess.

However, the broadcasters remained a powerful lobby in opposition to neighbouring rights and the government was slow to move on introducing a second phase of copyright revision to introduce the new rights. It was clear that the government’s enthusiasm for copyright revision had waned, and as a result it made a number of suggestions that would not involve any immediate plans for

287 legislation. For instance, in the spring of 1990, the government proposed a “task force” to study the Phase II revision (an odd choice given the still relatively recent parliamentary hearings and government response on the matters) then dropped the idea in the fall. In an effort to diffuse some of the contentiousness, the government called on the music industry and broadcasters to begin negotiations on a neighbouring right in advance of legislation. The government indicated it would then ratify whatever the parties came up with. This approach was consistent with the principle of free negotiation between rights holders and users that the music industry groups had asked for in the 1985 hearings and which the

Sub-Committee’s report had endorsed. The government may have felt that it was best to let the parties come up with a solution between them and to take itself out of the picture until the various issues around the right had been settled. It would then be difficult for the government to be accused of siding with one side or the other. In practice the approach was less than ideal because although the music industry were more anxious to reach an agreement that might allow them to start collecting the right, even in advance of legislation, without a firm timetable, the broadcasters were in no hurry at all to conclude a deal.

Early in the negotiations between MCAG and CAB the radio stations insisted on a structure that would scale the rate of the tariff to the size of the station and its ability to pay. According to one account this offer created some difficulties within the MCAG, as CRIA were willing to go along with it, whereas the publisher members of the group felt that this structure might compromise the flat rate structure that SOCAN charged for performing rights (Personal

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Communication: CIRPA Board Minutes, October 29, 1990). For the time being the MCAG insisted on a flat rate for all stations and talks broke off early in 1991.

A subsequent invitation to resume meeting was repulsed by the music industry, as there was no new proposal on the table from broadcasters. In September 1991, however, at the behest of the Department of Communications, ADISQ, CRIA and

CIRPA offered a compromise of their own that went some way to meeting the broadcasters’ demands for a sliding scale. The proposal was that stations with less than $1 million in annual revenues pay only $100 on their first $500,000 of revenue and a flat rate on revenues in excess of this amount. Stations with more than $1 million in revenues would pay the flat rate and stations with more than $3 million would pay a “graduated fee.” In addition, the proposal promised, in exchange, to support broadcasters before the CRTC in applications for relief from

“promise of performance” commitments (i.e., Canadian Talent Development

Contributions), excluding those payments made to FACTOR/MusicAction

(Personal Communication: Fax from Brian Robertson, CRIA to Michael McCabe,

CAB, September 18, 1991). There are two important points about this proposal.

First, the scale proposed was fairly similar to what was contained in the eventual legislation. Second, as we saw in Chapter Three, the broadcasters obtained just such relief from Canadian Talent Development from the CRTC in 1995, two years before the enactment of neighbouring rights in Bill C-32. Whether there was any connection between the two events is difficult to say. However, the government announced its intention to introduce the legislation at much the same time as the

CRTC announced their review of Canadian Talent Development and the

289 broadcasters in discussion with the Commission would have been able to assert that the music industry had made just such an offer and that they viewed Canadian

Talent Development as expendable. But at the time it was made, however, the proposal did not result in any immediate agreement. Broadcasters remained publicly (and presumably privately) opposed to neighbouring rights in principle while the music industry continued to press for their rapid introduction with as few restrictions as possible.

On the legislative side little progress had been made either – due in part to a cabinet shuffle that saw Marcel Masse moved to the Defence portfolio and Perrin

Beatty installed as the new Minister of Communication in the spring of 1991.

These changes required cabinet ministers to be briefed once again on copyright before making recommendations to cabinet. The process repeated itself with

Mulroney’s retirement and Kim Campbell’s installation as party leader and prime minister in 1993. By 1994 time the Liberals returned to power under Jean

Chretien, the Bill had not progressed much further. Through much of that year, the music industry again went through the steps of briefing the new minister,

Michel Dupuy on copyright.

The appearance of Arthur Donner and Fred Lazar’s report Neighbouring

Rights: A Financial and Economic Analysis, provided yet more information on what a neighbouring rights regime might look like. While the report acknowledged that under current conditions “a neighbouring rights regime would have only marginal impact on the further development of the sound recording industry in Canada,” it did suggest that in light of “the evolution of the

290 information highway in Canada,” that a comprehensive system of rights, including neighbouring rights regime was perhaps necessary (Donner and Lazar:

2). Donner and Lazar’s report did suggest however that the radio broadcasting industry’s ability to pay should be taken into account (2). Like the proposal from the recording industry, the report recommended some form of waiver for smaller stations with revenues under $1 million and additionally recommended a phase in period in two stages both to allow broadcasters time to adjust to the payments and to prevent the possible derogation of payments to SOCAN for performing rights.

The report also noted the possible trade implications of the right and recommended collecting the tariff only on eligible material (i.e., Canadian material and that of countries with the right), so as to avoid creating a trade irritant with the United States. While not all of the recommendations of this report were followed, they did provide the government with a non-interested brief that was generally amenable to introducing neighbouring rights. Here is perhaps the clearest answer to Acheson and Maule’s bewilderment over the government’s decision to proceed with neighbouring rights (1999: 274), to which we referred in

Chapter One. Donner’s and Lazar’s study justified the rights not so much in terms of their immediate effect but rather in terms of their implications for the future of cultural industries. Implicit in their rationale was, once again, the shifting emphasis of the music industry from a business model based on sales of records to one based on administration of rights. The development of new media lent some urgency to this shift as it was already becoming apparent that computer-mediated communication might well eventually displace physical means of distribution. In

291 this environment a robust rights regime was regarded as essential to maintaining a viable business model for the industry.

The Trade Route: Retransmission Rights for Music and Record Rental Rights The government was preoccupied throughout much of 1989 to 1992 primarily with constitutional issues, but also with the difficult introduction of the

Goods and Services Tax, the implementation of the Free Trade Agreement with the United States and the expansion of the agreement under the North American

Free Trade Agreement (NAFTA), which was signed in 1992. Both treaties were important in expanding the rights of copyright owners in the music industry, illustrating the degree to which copyright law continued to be influenced by trade.

The extension of the performing right in musical works to cable should have occurred in 1989, shortly after the Free Trade Agreement with the USA was implemented. Instead, this development was delayed to 1993, with the passage of

Bill C-88. This legislation closed a loophole in copyright protection created by some careless wording in the legislation implementing the Canada-US Free Trade

Agreement in 1988. That legislation created retransmission rights, establishing the rights of copyright owners with respect to cable transmission. This was another instance of introducing copyright via trade agreements and, again, this provision of the treaty harmonized Canadian law with that of the USA, which had retransmission rights in place since 1976 (Krasilovsky and Shemel: 114-115).

This measure would have extended performing rights in musical works, to cable transmission, as requested by the performing right societies and recommended by the Sub-Committee on Copyright Revision. Unfortunately, the wording of the

292 legislation used the following definition of music “any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced.” (Copyright Act, 1923: 2.33) – the definition of musical work as given in the Copyright Act. However, retransmission over cable was not defined as ‘performance’ (which would have brought it within the provisions for broadcast media) but as ‘communication.’ This meant that as the legislation stood, the only conditions under which cable would pay for music would be instances where they transmitted pictures of scores or charts. Although this was clearly not the intention of the legislation, it meant that performing rights societies were unable to collect royalties from cable companies, even as these were becoming a greater and greater component of the media.

In 1989, PROCAN and CAPAC operating under the assumption that they were entitled to these payments approached cable operators for payment. In doing so, they ceased to accept further payment from music video stations MuchMusic and MusiquePlus, both of whom had agreed at the time of their initial licensing to pay performing rights royalties to the societies, even in the absence of any legal requirement. (Personal Communication – Mark Rubinstein, MuchMusic to Rick

McMillan, SOCAN: May 15, 1991). When the performing right societies filed the tariff with the Copyright Board, the Canadian Cable Television Association filed a lawsuit with the Federal Court to prevent the Board from hearing the application. Although the Federal Court upheld the Copyright Board’s right to rule on the tariff, the decision was appealed, first to the Federal Appeal Court, who upheld the initial ruling, and then to the Supreme Court (Copyright Board

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Canada, April 19, 1996). This appeal was still pending when the government introduced Bill C-88 to amend what was clearly an oversight on their part.

SOCAN, while fighting the court case had been quietly working on Parliament to address this matter. Paul Spurgeon, SOCAN’s counsel at the time said they had worked to ensure that they had the support of all parties even for a bill with such small scope. (Canada. Parliament. House of Commons. Standing Committee on

Canadian Heritage [C.P.HC.SCCH], 1996: 34). The legislation changed the definition of a musical work to “any work of music or musical composition, with or without words and includes any compilations thereof” (Copyright Act, 1993

S.C. 1993, c23, s 1(1)). This less restrictive definition of musical work allowed

SOCAN (as the two societies had become) to collect the right. In 1997, the first year the tariff was collected, SOCAN received $14.7 million from the cable industry – this however included back payments. In 1998 SOCAN collected $6.3 million for the year (Canadian authors’ society…, 2000: 12), representing 8.2% of the society’s total revenues that year.

Another trade related change to copyright occurred with the North

American Free Trade Agreement (NAFTA), which introduced a rental right for sound recordings. This, as with retransmission rights, brought Canada into harmony with the United States where such a right had been in existence since

1984 (Krasilovsky and Shemel: 112-113). Rental rights first became an issue with the growing incidence of home taping, and this intensified with the introduction of compact discs, which could be rented out repeatedly without suffering any deterioration in quality. By 1983 recording rental was a growing business in North

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America and there were an estimated 200 stores in the US (Hull, 1998: 225).

Anxious to avoid the situation in Japan, where albums sales dropped in the wake of record rental’s growth, the American industry lobbied successfully to have this right introduced. Under American legislation, copyright owners in recordings had the right to prevent their recordings being rented commercially. This was an interesting situation as it constituted a clear exception to the ‘first sale doctrine.’

Generally, under this doctrine, the purchaser of a copyrighted work can resell, lend or lease it without the copyright owner’s permission and this continues to be the case with videocassettes and DVDs – perhaps in part because the rental business model for audiovisual media preceded a model based on direct sales of copies to consumers. However, in the congressional hearings leading up to the enactment of rental rights in the US, the industry had persuaded legislators of a clear link between home taping and record rental (Krasilovsky & Shemel, 2000:

185). Using the same arguments the Canadian music industry had asked for a similar right since 1987. A CRIA brief on the matter “The New Piracy,” as well as

CIRPA’s Study on Home Taping (1987b) targeted record rental as an issue associated with home taping, claiming that CD rental stores (which generally rented CDs for between 99¢ and $1.99) usually also sold blank tape (CIRPA,

1987b: 49). CIRPA’s study estimated that across Canada six to eight new rental stores were opening each week (Ibid.). The right was extended to Canada under

Article 1706: 4 of the NAFTA. When the treaty came into force in 1994, CRIA’s membership, the multinational labels, opted to refuse to rent their recordings, which effectively precluded any viable record rental business in Canada. The

295 rental right was supposed to be part of the second phase of copyright legislation in any case and its enactment was welcomed but this had been perhaps the lowest priority among the various new rights they were seeking and instead of this piecemeal approach, the industry was still seeking a more comprehensive update of the Copyright Act.

The Passage of Phase II Copyright On December 22, 1994, Michel Dupuy the Minister of Canadian Heritage and John Manley, Minister of Industry, announced the government’s intention to introduce legislation to amend the Copyright Act “as early as possible” in 1995

(Canadian Heritage, December 22, 1994: 1). The proposed amendments were outline in only the most general terms. The government promised additional rights for performers, producers and broadcasters, as well as exemptions for various groups, and, finally, a home taping right. The announcement was welcome as was the news that the music industry’s major priorities would be included in the legislation. According to an a memo to the MCAG from its lobbyist, the legislation was to be introduced by the end of the spring session in advance of the expected referendum on Québec sovereignty. For this to occur, the legislation would have to be drafted by early May (Personal Communication: Fax from

Capital Hill Group to Brian Chater, January 23, 1995). However, drafting of the legislation moved extremely slowly and in May, there was still no legislation or any sign that it would be introduced in the immediate future. In fact, there were some benefits for the music industry from this delay. There were concerns that the bill might offer rights to creators that were either so watered down or so restricted

296 as to be useless. The MCAG’s position was to have the new rights legislated in the widest form possible and then, with the rights in place, to negotiate rates and conditions with the users or to present these through the Copyright Board. The industry was anxious to avoid any exemptions to the rights’ application or any statutory rates that would preclude negotiations or arbitration through the

Copyright Board. One specific concern arose over the continued desire of the

Department of Finance’s wish to set a statutory rate for the home taping levy (this time at a rate of 25¢ per 60-minute cassette). But by the fall, the statutory rate on home taping had been dropped. Another concern arose in November as the USA enacted its own form of neighbouring rights legislation – the Digital Performance

Rights Act. This law applied only to digital transmissions, such as Muzak or services such as Digital Music Express and as such was not sufficient to bring the

US within the terms of the Rome Convention of 1961. CAB, however, seized on the fact that the act exempted conventional radio from such payments (CAB,

November 2, 1995). But amongst all this the main concern for the music industry was that Canada’s draft legislation had still not appeared by the end of 1995.

Early in 1996, two occurrences moved the political process forward: the government began a new session of Parliament with a new legislative agenda, and

Michel Dupuy was replaced as Minister of Canadian Heritage by Deputy Prime

Minister Sheila Copps. Copps’s appointment proved to be of considerable importance. In her response to the Throne Speech on February 29, 1996, Copps identified copyright revision as a top priority. At this point events began to move more swiftly. Bill C-32, An Act to Amend the Copyright Act was introduced on

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April 25, 1996. Even Copps’s temporary resignation (to stand for election again over a broken Liberal promise to repeal the GST), did not derail the process and the Bill received its second reading in the Commons on June 4. Committee hearings commenced later in June but were suspended for the summer recess. In the case of Bill C-32 another key development was the strong support of the Bloc

Québecois for measures in the bill aimed at enhancing the rights of creators

(Cabinet du Chef de l’Opposition, March 23, 1996). This meant that not only the governing party but also the Official Opposition supported the Bill. In Parliament, most of the opposition to the Bill would come from the Reform party, who were inclined to support the broadcasters’ contention that the neighbouring right was an unnecessary imposition on broadcasters (finance critic Monte Solberg was himself an ex-broadcaster), and to view the home taping levy as essentially a tax, leveled indiscriminately at consumers whether they infringed copyright or not. The latter view was articulated most forcefully by Jim Abbot (the Reform MP for Kootenay

East) in his questioning of Sheila Copps on Bill C-32 during the committee hearings that followed the bill’s second reading.

One of the concerns we all must have is relative to issues

such as fairness. Does it really make sense to go after

churches, seminar providers or people wanting to change

medium?... What this bill basically says is I'm guilty until

proven innocent. I'm guilty. I must be giving this tape to

somebody else rather than using it for my own pleasure.

(C.P.HC.SCCH, 1996: 21: 11:25)

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Of interest to the music industry in Bill C-32 were sections dealing with neighbouring rights, with private copying and an extension of the rental right to performers, composers and lyricists, as well as a section dealing statutory damages for infringement. The neighbouring rights regime was broadly in line with the recommendations from Donner and Lazar. Neighbouring rights (referred to here as performers and producers rights) were to be applied to radio broadcasting and to commercial establishments using recorded music. To address the concerns radio broadcasters, the bill set the tariff for the right at $100 on the first $1.25 million of a station’s revenues, with the rate on revenues over that amount to be set by the Copyright Board after a hearing. The right was to be phased in over a period of five years after the rate was set - at 20% of the tariff the first year and rising in 20% increments over the next four years (Canadian

Heritage, April 25, 1996). This neighbouring rights regime was the minimum necessary to allow Canada conform to the Rome Convention the Protection of

Performers, Producers of Phonograms and Broadcasting Organizations (the Rome

Convention) – there were by this time, as the government’s announcement stated, approximately fifty member countries of this convention, including Britain,

France and Japan (Ibid.). The announcement neglected to point out that the United

States was not among these, but this was an important point, nonetheless. Again, the right would be reciprocal and this meant that there would be no distribution to the USA and the right would not apply to their share of repertoire (approximately

55%). This provision more or less guaranteed that the bulk of the revenue would remain in Canada.

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The home taping provisions (referred to as private copying) proposed amendments to legalize home taping in exchange for a levy on all blank audio media (not on devices), “made or imported and sold in Canada” (Canadian

Heritage, April 25, 1996). The tariff would, again, be set by the Copyright Board and distributed to performers, producers, songwriters and publishers through their collectives or professional associations. In respect of international obligations, the home taping right was a hybrid. For composers, lyricists and music publishers the new right was to be administered nationally to all member nations of the Berne

Convention, the World Trade Organization, the Universal Copyright Convention and the North American Free Trade agreement. Given that there was no international convention governing private copying rights, for performers and producers (record companies), the right was to be distributed only to Canadian nationals and “to countries designated by the minister” (Ibid: 8). Again, the right had been crafted such that most of the revenue would stay within the country.

The announcement referred in some of its background figures to the recently published final report of the Federal Task Force on the Future of the

Canadian Music Industry, A Time for Action, which was released just as the Bill was about to be introduced. The task force had been formed by the Department of

Communication, late in 1992, after complaints by the music industry calling for equal treatment in the wake of a similar study commissioned on digital radio.

Chaired by CIRPA and CRIA, the group also had representation from ADISQ,

CMPA, the Guild des musiciens du Québec, Union des Artistes, SOCAN,

SODRAC and a number of other sectors including and musicians, and retail. They

300 were given three years to produce a final report, with recommendations for

Canadian music industry policy. The document proved to be valuable in a number of ways for the industry. It provided the first real comprehensive policy statement produced with the participation of a wide range of sectors within the Canadian music industry, with representation from both the English-Canadian and Quebec industries, from record labels, creators, music publishers and music retailers.

More than any previous document, A Time for Action posited the music industry as a unified whole, one of its most important results, politically. The report was also the first policy document to present the various components of Canadian music industry policy in depth and as a whole, addressing the SRDP, Copyright and Canadian content together. Finally, the report provided a reference point and a context for the industry representatives as they prepared for the committee hearings on Bill C-32 that followed its second reading. As the government’s citation showed, the report served as an excellent brief to politicians and bureaucrats, its recommendations backed by figures and statistics generated by reports from Ernst & Young, Ekos Consultants and Nordicity Group. Although its scope went well beyond copyright in terms of policy, the report could not have been better timed to help further the music industry’s position in this regard.

Many lobbyists and interest groups have asserted that it is often too late to effect meaningful influence on policy at the point where legislation has been introduced (Pross, 1992). At this stage the government has usually committed itself to a course of action and it is politically embarrassing to reverse it so publicly. However, at this stage it was still more than possible that the bill could

301 be amended considerably and the rights granted to the music industry watered down, or wider exemptions to them granted. Generally, the industry’s objectives were addressed in the legislation but they too wished to see some revisions to the bill as it stood, particularly around the gradual phase in of neighbouring rights and virtually all of the section dealing with exceptions and exemptions. This meant that lobbying remained intense over this period but the focus now shifted from bureaucrats and cabinet ministers to MPs, in particular members of the Standing

Committee on Canadian Heritage who would hold the hearings on the Bill. After the summer recess, these hearings resumed in October 1996.

In the Committee Hearings on Bill-C32 it was clear that the tape manufacturers had no organized lobby. The Canadian Recording Media

Association (CRMA) appeared on October 22 and indicated as much in their presentation. This was a group made up of the Canadian branches of major tape manufacturers such as Maxell and BASF.

…admittedly we are here late in the day - to express our strong

objection to the proposed private copying levy in Bill C-32.

We are late because our industry was not consulted by the

government with respect to the levy proposal.

(C.P.HC.SCH, 1996: 27: 1837)

This suggests that the tape manufacturers had been caught off-guard by the legislation. In this they contrasted sharply with the broadcaster and music industry groups, many of which had been fairly deeply involved in the consultation process

302 around copyright reform for at least a decade. Unlike CAB, who had also formed around the issue of a copyright some seventy years previously, the CRMA did not appear to have a large organization and full time lobbyists who could both dialogue with government and develop counterproposals to those of the music industry. As the levy applied only to blank media and not to equipment, the electronics industry was not involved, which might also have increased their presence and their resources. The CRMA disputed some of the figures offered by the music industry, asserting that the figure of forty-four million blank cassettes sold in Canada annually was too high. But the difficulty with their presentation was that they could offer no concrete counter proposal other than to slow the process down and revisit the issue with discussions involving themselves, government and the music industry. While this might have been an effective tactic earlier on in the policy development process, at this point it may simply have been too late. Nor did the tape manufacturers enjoy a great deal of support from other interests – indeed, CAB were broadly supportive of a home taping tariff, as it allowed them to continue to argue that it was here that the industry should seek to expand rights revenue from this source, rather than through neighbouring rights.

The only other opposition to the levy came from educators groups, who were more focused on exemptions rather than the levy itself and from the Consumers

Association of Canada. While the latter potentially represented a large and important constituency in this issue, its small size and scant resources did not allow it to present an effective brief or presentation. There were no hard figures to back up their assertions that the music industry figures overestimated the

303 incidence of home taping among blank tape consumers nor, again, were there any concrete counterproposals in terms of policy options (C.P.HC.SCH, 1996: 38).

Neighbouring rights occasioned far more debate, largely because of CAB’s considerable presence. Unlike the opponents to home taping, CAB was able to support their brief with extensive material (their brief contained four appendices, containing a number of recent studies by research firms such as Decima). The broadcasters’ opposition to neighbouring rights continued to be based on two arguments. First, CAB argued, airplay provided a benefit equal to or greater than that which they derived from using music as programming. Further, they claimed that the radio industry’s current financial difficulties meant that payment of these rights would put some stations’ survival in jeopardy and at the very least mean cutting costs in other areas. Taking a leaf from the American Digital Performance

Rights Act, CAB, since January 1996, had proposed a neighbouring rights regime that exempted radio.

The CAB does not dispute the need for a Neighbouring

Right, or the threat of new copying and distribution

technologies, like the Internet, to the future revenue of the

sound recording industry. We are not asking legislators to set

aside this legitimate right for record companies and

performers. However, we are asking legislators to recognize

that commercial radio is not part of the future threat to the

music industry. Indeed, radio has always been a key factor in

increasing sales of recordings

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(CAB Radio Board, 1996:4).

This proposal was perhaps a way of addressing the rationale for neighbouring rights expressed in the Donner and Lazar report, while preserving the status quo for the relations between radio and the music industry. CAB’s initial proposal had also included continued support for FACTOR/MusicAction, along with enhanced, if unspecified on-air promotion of new artists (despite having recently relieved themselves of such commitments in monetary terms), although these measures were not mentioned here.

However, while this remained CAB’s position, it seemed unlikely at this stage that the neighbouring rights regime announced in the bill would be dropped altogether. Thus, while not abandoning their opposition to neighbouring rights, the association then went on to propose a number of measures that would mitigate the consequences for their members. A number of these were in fact already in place in the Bill in Section 68 – mostly in the form of directions to the Copyright

Board as to factors to take into account in its deliberations. Such factors included assessing the value of airplay for promoting music (Bill C-32, 1996: 68 (2) b) ii)); that rights not be imposed such that because of regulatory concerns, any station be put at a particular financial disadvantage (Ibid: 68 (2) a) ii)). CAB proposed that the rate also be set with respect to the conditions particular to each market and that these provisions be extended to performing rights generally. The other measures already in the Act that mitigated the introduction of the new right were the five-year phase in period and the waiver on the first $1.25 million in revenue.

CAB proposed first that the phase in period be extended to ten years and that the

305 waiver amount be increased or decreased each year based on fluctuations in the

Consumer Price Index.

Much of the broadcasters’ brief, as well as their presentation to the Standing

Committee were also concerned with securing exemptions for ephemeral rights and format transfer rights, allowing them to make temporary recordings of their programming for rebroadcast or to transfer music to a hard disk or similar medium to facilitate broadcast. Similar to provisions in the United States, where such an exemption existed, the broadcasters wished to be able to keep copies for up to six months. While making such copies had been industry practice, broadcasters were increasingly concerned that with the introduction of statutory damages, they could find themselves facing considerable liabilities for such technical infringements. The music industry groups (particularly the CMPA) were opposed to any exemption on these grounds (P.C.HC.SCCH, 1996: 37), claiming the broadcasters’ practice of making copies infringed reproduction rights. They asserted that the scope of what broadcasters were doing went well beyond temporary copies and was simply viewed as an exemption for broadcasters using music as part of their own program production. Instead of an exemption, publishers and record companies wanted the opportunity to negotiate an agreement with broadcasters.

In general, the bill was an enhancement of the music industry’s interests and the various groups involved had a considerably easier task than CAB inasmuch as they were not suggesting any radical amendments. They did offer objections to the breadth and scope of some of the exemptions (the other major part of the bill).

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However, their attention was mostly directed to the sections dealing with neighbouring rights. In particular, the industry wished to excise most, if not all of the provisions directing the copyright board in terms of their deliberations

(CIRPA, August 30, 1996; CRIA, August 30, 1996). This was not just an issue for the record companies and artists’ groups but also for music publishers, composers and their collectives, who maintained that such directives set a dangerous precedent for compromising copyright (Personal Communication – Michael Rock

SOCAN to the Honourable Sheila Copps, October 31, 1996). As well as challenging the $1.25 million blanket exemption, the music industry proposed a reduced three-year waiting period.

While much of the material contained in the sound recording industry’s presentations and briefs concerned neighbouring rights and attempts to limit the restrictions on their collection, there were important sections addressing the home taping right. Although the industry had been pushing for such a right since the late

1970s, there was some ambivalence about the proposed regime. The industry’s main reservations came from the legalization of home taping in Section 80(1) of

Bill C-32. The objection to this was that, in essence, it compromised the industry’s exclusive right to reproduction, replacing the right, in this case, with a right of remuneration (that is, the right to get paid) and in their view the level of remuneration was unlikely to adequately recompense them for lost sales. Their preference was for a statutory license rather than an exemption. Here also the major reason for concern was the implication for their rights in the future with respect to emerging technologies. Therefore, both CRIA and CIRPA were

307 particularly concerned to position the home taping levy as a transitional step, most clearly articulated in CRIA’s testimony before the Standing Committee.

In the future, private copying regimes may be phased out and

replaced by direct licensing. Until that time, however, a

private copying regime that is founded on the simple concept

that corporations that profit from the sale of blank audio

recording media and individuals who benefit from private

copying of sound recordings should contribute and

remunerate producers of sound recordings, composers of

music embodied on those sound recordings, and

performances that are fixed on those sound recordings.

(C.P.HC.SCCH, 1996: 26: 13:00)

This cavil served as an indication of the degree to which the home taping levy sat uneasily within copyright, just as, from the other side, did concerns that the levy exacted payment from those who did not tape music. But such issues were certainly not enough to cause the music industry to abandon its support for the bill. The only group expressing serious doubt over the provision was the

Songwriters Association of Canada, which felt that the levy would be insufficiently high to provide adequate compensation (Songwriters Association of

Canada (SAC), September 1, 1996).

Generally, the unity of the coalition of groups representing the music industry was tested only slightly through this period. One of the issues threatening to divide them was the wording of Section 90, dealing with non-derogation of

308 existing rights in relation to the new rights conferred by the Act. This had been a key concern of performing right societies, as well as music publishers. This section was included to insure that broadcasters and other users could not make arguments to the copyright board that, in view of the new neighbouring rights paid to performers and record companies, they should be allowed to correspondingly reduce their payments to songwriters and music publishers. The concern was real inasmuch as CAB had already made the point in their lobbying material that neighbouring rights would result in ‘double payments’ to those artists who also wrote their own material (CAB, November 2, 1995). While there was no argument from record companies that existing rights should be protected,

CRIA indicated a concern that the provision created a ‘hierarchy of rights’ and might potentially limit exclusive reproduction rights and rental rights in sound recordings (Personal Communication: Ken Thomson, CRIA to Danielle Bouvet,

Industry Canada and René Bouchard, Heritage Canada, July 22, 1996). This was resisted by both SOCAN and CMRRA and in the event the section remained unchanged.

Another potential point of conflict emerged between recording artists and record companies. Artists had not played an especially large part in the music industry’s lobbying efforts, which may appear surprising given the frequent invocation of ‘creators’ rights.’ There were, however, difficulties with directly enlisting musicians as spokespersons for the campaign, nicely summed up by the

CMPA’s David Basskin in a communication with the organization’s executive.

You may recall that CRIA's letter from major performing

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artists (Bryan Adams, Tom Cochrane, Celine Dion, Anne

Murray, k.d. lang, Oscar Peterson, Buffy Sainte-Marie,

Michelle Wright, Geddy Lee, Alex Lifeson and Neil Peart)

urged the Government to introduce neighbouring rights for

the primary benefit of "emerging artists". In retrospect this

looks like a mistake. It let CAB argue (not without logic) that

the primary beneficiaries of neighbouring rights would be

established, not emerging artists. CRIA, CIRPA and ADISQ

are going to have an uphill battle.

(Personal Communication: Bulletin from David Basskin to

CMPA Executive Committee, January 15, 1996)

The issue was that artists sufficiently well known to be recognizable to politicians and the public were also those generally perceived not to need the rights income.

Nor had the artists themselves generally organized to engage in the debate directly, leaving the task to their unions or to the industry. One exception perhaps was the ad hoc Artists Rights Coalition, consisting largely of Vancouver area musicians (most prominently Bill Henderson of Chilliwack, who was then also

President of SOCAN). This group did submit a brief to the Standing Committee and communicated with music industry interests to ensure that artists’ interests were taken into account. Some of the divergences of interest between the industry and recording artists emerged in the Canada column in the November 16, 1996 issue of Billboard. The column reported that some record companies remained dissatisfied with provisions in the Act that stipulated neighbouring rights be paid

310 directly performers’ collectives and would prefer to see performer’s rights administered through their record companies (Personal Communication: Fax from

Al Mair, Attic Records to Bill Henderson, Artist’s Rights Coalition, December 3,

1996). However, such controversies did not become especially widespread, nor did they change the coalition’s position. There was no quarrel within those groups designated as creators or owners about the rights. The differences in opinion were not great enough for any group to break with the others. In general this was because the rights, for the most part did not define relationships between these creators and record companies so much as between rights holders and rights users, such as tape manufacturers and broadcasters.

The Committee’s hearings concluded in early December and the resulting amendments to Bill C-32 were tabled on December 12. Many of these changes were technical but there were some significant changes where the music industry was concerned. The broadcasters received limited ephemeral rights and format transfer exemptions. These were, however, somewhat constrained, stipulating strict record keeping on the part of broadcasters and allowing them to keep copies for only thirty days before destroying them and, above all, applicable only in situations where a license was not obtainable from a collective society already.

The section directing the Copyright Board (Section 68) in various considerations of the new tariff was curtailed and in particular the clause directing it to take into account the value of airplay was excised altogether. The Committee adopted the sound recording industry’s suggestion for a sped up phase in of three years, with the rate at 33.3% in the first year of the tariff, rising to 66.7% in the second year

311 and to 100% in the third year. A measure of the Bill’s acceptability to the music industry was the immediate and generally positive response from the various groups. CAB, on the other hand, remained uncharacteristically silent on the Bill until after 1997. By that time CAB seemed to have accepted that neighbouring rights were more or less inevitable but maintained a campaign to acquire a meaningful ephemeral exemption.

Overwhelming the major remaining concern for the music industry and other supporters of Bill C-32 at this stage was whether it would make it through the various legislative stages in time. A federal election was seen as more or less certain in the spring, which after the Christmas break gave the bill only a few weeks to receive Third Reading in the Commons and then to make it through the

Senate. A number of groups, particularly those seeking wider exemptions, threatened to hold up the Bill in the Senate but this threat failed to materialize and the bill received Royal Assent on April 25, 1997, exactly a year after its introduction.

Collecting – Setting up the Neighbouring Rights Coalition of Canada and the

Canadian Private Copying Collective

The passage of Bill C-32 was a major victory for the music industry, particularly the recording industry. However, its passage entailed an enormous amount of work, especially around setting up the means for obtaining, collecting and distributing the new rights. Plans for this had begun well before the legislation was passed, or even introduced. Even so, most of the attention of the various groups involved had been focused on getting the legislation passed and

312 much of the work of setting up collectives could not be done in advance of this.

Both the home taping levy and neighbouring rights required hearings before the

Copyright Board to approve and set the tariffs before any collection of these could begin. Hearings on a given tariff also required an extant and authorized collective to file it in the first place. Setting up these collectives was a laborious and expensive process but it had to be done in advance of receiving any revenue. As well, the groups had to be set up to recognize the various interests involved and to ensure that the rights were distributed along the lines laid out in the legislation.

The collective for neighbouring rights was already some way along to this before the passage of legislation. The various interests involved had held talks over the summer and fall of 1996 and there was some discussion then about the basic principles on how the collective would operate. The initial idea was to have a “SOCAN-like” collective, which would act on behalf of all the copyright owners and distribute revenues to each individual member. Indeed, the government had briefly floated the idea that SOCAN could administer the new right as a means of achieving the most efficient administration (SCCH: 34,

November 5, 1996). However, SOCAN demurred as this would have meant a major change in the society’s mandate governance, moving it from a collective of composers, lyricists and publishers to one including performers and record companies. Additionally, having SOCAN administer both neighbouring and performing rights would have invited just the sort of derogation from performing rights that SOCAN and its members were anxious to avoid. Nonetheless the society did remain the model for how a proposed collective for neighbouring

313 rights might operate. In September 1996, CIRPA at the request of the Artists

Rights Coalition agreed to the following five principles for the collective: that the right be assigned to a collective; that the revenues from the right be split 50/50

(this was indeed mandated in the Act); that the members be paid directly by the collective; that the board be made up equally of members representing artists and record companies and; that administrative costs would be shared equally by the two groups (Personal Communication. Memo from Brian Chater, CIRPA to Marc

LaFrance, Burt Harris, Bill Henderson, September 6, 1996). CRIA agreed to the same terms on October 28, 1996.

However, this model proved to be unworkable. The major obstacle was that the need to file a tariff in time to start collecting the right in 1998. The deadline for this was August 31, 1997, which left very little time to proceed. As a means of keeping administrative costs low and streamlining the necessary work of constituting a collective, the various groups involved decided to make up the collective from existing collectives and unions already representing artists and record companies. The resulting organization was called the Neighbouring Rights

Coalition of Canada (NRCC) or the Société canadienne de gestion des droits voisins (SCGDV). It was made up of five member collectives: 2 representing record labels and producers: the Audio-Video Licensing Agency (AVLA) and

Société collective de gestion des droits des producteurs de phonogrammes et vidéogrammes du Québec (SOPROQ) and three representing the artists and musicians: Alliance of Cinema, Television and Radio Artists (ACTRA),

American Federation of Musicians (AFM), Société de gestion collective de

314 l'Union des artistes (ARTISTI) (CIRPA information document on the private collectives). The AVLA, was owned by CRIA and, in the interests of expediency, it was agreed that CIRPA members would join the AVLA in order to participate in the collective. In any case many of them already were members.iv The new collective filed a tariff with the Copyright Board in August 1997 for five years at a rate of 3%, 3%, 3%, 4%, 5% of revenues, covering approximately 45% of radio’s repertoire (the balance being American). The Copyright Board held hearings in 1998 and released its decision in August 1999, retroactive to January

1, 1998 (Copyright Board of Canada, August 13, 1999).

Of all the rights enacted under copyright revision, home taping continued to be the most problematic, even after the legislation passed. The main difficulty at this stage, however, was not with opposition from consumers or tape manufacturers but concerned administration of the right. This was complicated because the right was to be distributed both to songwriters and music publishers, as well as to record companies and performers. There had been some dispute over precisely how the right was to be shared among these various interests, although most of that was more or less resolved by the time the Act was passed. What had not been resolved was the question of who would collect the right. As this was a new right it was not the clearly within the mandate of any existing collective, although a number of these could claim to represent various sectors of the music industry. Nor had the language in Bill C-32 specified who would collect the right.

…each collective society may file with the Board a proposed

tariff for the benefit of those eligible authors, eligible

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performers and eligible makers who, by assignment, grant of

licence, appointment of the society as their agent or

otherwise, authorize it to act on their behalf for that purpose,

but no person other than a collective society may file any

such tariff. (Bill C-32, 1996: 83 (1))

The lack of a designated collective left something of a vacuum. In July

1997, SOCAN sent out a letter informing its members that it was prepared to administer the right on behalf of any of them that wished it to. This plan was not greeted with enthusiasm by the rest of the music industry sectors, as it would complicate both the collection of the right, as well as the hearings in front of the

Copyright Board that would actually set the rate of the tariff and the conditions attached to its collection. The sound recording sector or performers were not receptive to the idea SOCAN administering the whole right, as the organization was mandated to serve the interests of its membership of songwriters and music publishers. Nor was it clear that music publishers wished to have SOCAN administer the right on their behalf. SOCAN’s move raised the specter of several different collectives, each filing separately with the Copyright Board for its share of the tariff, as well as collecting it from the various tape manufacturers and importers – the least efficient means of administering the right. The sound recording sector and performers were not in a position to file for a tariff themselves in any case. They were only partly represented by rights collectives

(CRIA’s Audio Visual Licensing Agency, which mostly administered the rights to music videos or reproduction of recordings by companies such as Muzak, was one

316 example). Much of the independent sector was unaffiliated with any collective, as were many of the performers. Moreover, these sectors were preoccupied with setting up another collective to collect the new neighbouring right in sound recordings and performances. The sentiment of much of the industry was that a new collective be set up to deal with the home taping right on behalf of the entire music industry, as this would involve the most effective representation and the lowest administrative costs. It would be a complicated arrangement, not only because of the various sectors to be represented but also because, while the sound recording and performers share of the tariff was to be collected and distributed for

Canadian nationals only, the songwriters and publishers share was accorded national treatment

All of this delayed the industry’s preparation to file for a tariff and to start collecting it. This was further complicated by some contradictory wording in two sections of the Bill as to when tariffs were to be filed with the Copyright Board.

Section 53 of the General Provisions in the Act, stated that the tariffs would

“become effective at the beginning of the year following the coming into force of that paragraph, regardless of when the tariffs are so certified” (Bill C-32, 1996:

53). However, Section 83 stated “A collective society in respect of which no proposed tariff has been certified pursuant to paragraph (8)(c) shall file its proposed tariff on or before the March 31 immediately before its proposed effective date.” (Bill C-32, 1996: 83(4)). There was some doubt, as a result, as to exactly when the collectives would be able to start collecting the tariffs and whether they had already missed the deadline for 1998. In the event, the

317 government delayed proclaiming the home taping provision of the Act until 1998, in part because of this ambiguity and the music industry were thus deprived of revenues from the right until 1999. In the interim the industry had established the

Canadian Private Copying Collective (CPCC), a “collective of collectives,” to administer the right. The CPCC filed with the Copyright Board and collected the right from manufacturers and importers of blank media and distributing it to various collectives, who would in turn distribute it to their members. Depending on the particular track, the CPCC might make up to twelve different payments to various collectives (Canadian Private Copying Collective, 2008).

Conclusion

The process of copyright revision, especially the second phase was the largest and most coordinated action undertaken by the various sectors of the

Canadian music industry and more than any other had served to unite them. The extent to which they had been able to mount an effective counter to CAB demonstrated the effectiveness of their organization over this period. As we have already detailed, this unity was already beginning to show signs of stress, although more in other areas such as Canadian content. Despite some friction between recording artists and record companies the coalition of interests had served the industry well. The collaboration would continue to pay benefits, as

CIRPA and ADISQ moved to update federal policy in line with the recommendations of the Music Industry Task Force. CRIA became more involved in other areas of policy, collaborating with CIRPA and CAB on the Radio

Starmaker Fund. But what was apparent even before the legislation passed was

318 that the environment in which the music industry operated had changed drastically.

Events had once more overtaken government policy on the industry as Brian

Robertson of CRIA had said on the occasion of Bill C-32’s passage “Phase Two brings us into the 1990s. It doesn’t bring us into the next century. This was just a catch up process” (Lorinc, April 26, 1997: C17). Virtually all of the representatives of the industry had stressed the importance of moving quickly to the third phase of copyright revision in order to deal with the Internet, which had over the 1990s changed from a fairly obscure network to a popular medium and a major vehicle for investment. The position of the record industry groups on the home taping levy as a provisional, temporary measure, indicated that they were already anticipating the changes that would be necessary to deal with the coming digital media environment. Donner and Lazar had pointed out the important implications for neighbouring rights in this environment but for these to be meaningful the rights had to be extended to the new medium through new legislation and new forms of rights. Some of the steps toward this had already been undertaken elsewhere. In 1996 the World Intellectual Property Organization

(WIPO) drafted two new treaties with the new media in mind: the Copyright

Treaty and the Performances and Phonograms Treaty. These conventions carried a much more robust rights regime for music copyright, granting rights holders exclusive rights of distribution and ‘making available,’ (World Intellectual

Property Organization [WIPO], 1996). The new treaties also dealt with technological controls such as digital rights management (DRM) and included

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‘anti-circumvention’ measures meant to prevent hacking DRM protections. The

Canadian government had signed the WIPO treaties late in 1997 but had yet to develop any legislative program around them. Canada had also taken steps to develop policy on the new media, setting up the Information Highway Advisory

Council in 1994 to study the issues raised by convergence and new media. As the

Canadian music industry was setting up its new collectives to deal with these new rights, the Americans passed legislation based on the WIPO treaties, the Digital

Millennium Copyright Act, which leapfrogged over the provisions Canada had just passed to impose a fairly stringent rights regime on computer-mediated communications.

Despite the example of the United States and numerous calls for a quick transition into Phase III, and promises that copyright revision would be an ongoing process, there was no further action from government on this issue for several years. Just as Phase I had seemed to exhaust the resolve of the previous

Conservative government on copyright, so Phase II seemed to satisfy the Liberal government that it had done as much as it could on the matter for the time being.

The measures in Phase II had addressed most of the outstanding issues left over from Phase I in 1988 and the government had not since refreshed its policy framework for copyright. Nor had the contentiousness of copyright abated with the passage of Phase II. If anything, copyright was become an increasingly controversial and high profile. The controversy would not peak for some years to come but as the effects of digital media on the industry became apparent and as some jurisdictions, particularly the United States began to invoke the measures in

320 the Digital Millennium Copyright Act in response, copyright revision would no longer be put off by the government because it was of little interest but rather because it attracted too much interest altogether.

i It is also worth noting that it was standard practice for record companies to charge higher deductions against royalties for packaging on “new media” devices such as compact discs, than on vinyl LPs or cassettes (Krasilovsky & Shemel). Thus record companies also paid lower royalties to artists on these sales. ii Doubtless the negotiations were also complicated by the fact that by this time three of the major labels were divisions of electronics manufacturers - Sony had bought CBS (renamed Sony Music), Matsushita had just purchased MCA and Philips had long been a major shareholder in PolyGram. iii In the medium term at least the Canadian approach seemed to have been vindicated. The American legislation was described in 2000 as “a great disappointment” and having “produced negligible financial returns” (Krasilovsky & Shemel, 2000: 78). Much of this was due to the failure of either DCC or MiniDiscs to catch on as a widespread format. It may have been that consumers were unable to decide between the two rival formats, or that neither offered a sufficient advantage over existing technologies for the price. In any case Philips abandoned its DCC format in 1996 and Sony’s MiniDisc remained a marginal format, alongside of DAT. iv In addition to the NRCC a Québec based collective Société de gestion des droits des artistes-musiciens (SOGEDAM) filed a tariff with the Copyright Board on behalf of a small number of Québec musicians who had assigned their rights to the organization. The Board ruled that while SOGEDAM clearly represented these rights that in the interests of a single-payment system that is easier for users to administer that SOGEDAM should claim its payment from NRCC rather than collecting on its own behalf.

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Conclusion: Outside the Policy Assemblage

In 1970, at the hearings on Canadian content, a number of witnesses had asserted that there was no Canadian music industry. By 1998, it was no longer possible to make such a claim, nor had it been for some time. The Canadian- owned sector still accounted for a relatively small proportion of the total sales of recorded music in Canada (usually between ten and fifteen percent), but its existence was hardly in doubt and a number of the more established Canadian independents, such as Attic, Stony Plain and True North had been in business for twenty-five years or more. In terms of the policy community, the sector was very well represented by ADISQ and CIRPA. Just as important, the exclusion of the multinational record labels from the notion of a ‘Canadian’ music industry had changed. Whereas in 1970, these companies’ Canadian operations had been excoriated as alien both to Canada and to culture, they were now seen not so much as intruders as partners – a necessary element in the development of a

Canadian music industry.

Much of this was a result of a number of highly successful Canadian recording artists. A short essay by Sheila Copps in New Perspectives Quarterly’s

Fall 1998 issue pointed to popular music as the bright spot in Canadian cultural production, citing Celine Dion, Alanis Morrissette, Shania Twain and Sarah

McLachlan as examples of internationally successful Canadian musicians (18).

This may have overestimated both the government’s and the Canadian industry’s involvement in this international success, at least in the case of Alanis Morrissette or Shania Twain. Nonetheless Copps’s piece could point to some measure of

322 international success for Canadian recording artists and claim at least a modest role for government policy in this.

This dissertation has traced the development of the federal government’s music industry policy over the period from 1970 to 1998. As the introduction and the first chapter suggested, this was not a single, unified narrative but the entanglement of several policy clusters or assemblages that came, gradually to be associated with each other. Each of these policy assemblages has its own course of development as policy, involving different instruments of policy and different fractions of government through much of this development. Each also incorporates a distinctive configuration of the Canadian music industry. We have described these in detail but it is worth reminding ourselves of what they were before examining the ways in which they began to cohere.

In Canadian content regulations, the Canadian music industry was conceived as those business engaged in activities that result in the production of musical works and recordings by Canadians. The policy (a broadcasting policy) was developed by the government’s broadcast regulator as an extension of a broadcast policy initially targeted at the programming of Canada’s private television industry. The policy addressed the music industry indirectly, primarily as the supplier of musical programming for private radio, which had turned to recorded music as its main form of programming over the previous two decades.

Although much of the discussion around Canadian content concerned a recording industry, it is important to note that compositions and music publishing were equally important in the way that the policy was designed – two of the four

323 elements making up the MAPL system concern the composition of the musical selection and the policy stipulated a minimum percentage of Canadian compositions as part of the quota in its early form. Canadian content may have been credited with creating a Canadian recording industry but there was no concern with the structure or ownership of this industry, it could include a foreign-owned (and even foreign-based) music business so long as it produced recordings written and/or performed by Canadians to be played on the radio.

The Sound Recording Development Program (SRDP) had a more narrow conception of the Canadian music industry, inasmuch as it was Canadian-owned and centered largely on the activity of sound recording. This policy addressed the music industry as an industry, not simply as a means of producing Canadian recordings (although that was certainly one of the aims of the policy). Although the policy had some connection with the CRTC’s Canadian Talent Development initiatives, it came out of a shift in cultural policy that increasingly viewed cultural industries as crucial to the production of Canadian culture (Wagman,

2001). The policy’s purpose was to assist the Canadian-owned industry directly in the production and marketing of Canadian recordings, based on the assumptions that recordings were produced industrially and that a Canadian-owned industry was the sector most closely associated with Canadian artists.

Finally, copyright revision encompassed a view of the Canadian music industry as involving both domestic and foreign owned businesses, engaged in both music publishing and sound recording. The configuration of the music industry here was both more international and more business-oriented in scope.

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The issue of production of Canadian recordings was less of an issue here, receding from its primary importance in Canadian content regulation and the

SRDP. Copyright revision for the music industry was concerned with ensuring that Canadian copyright owners controlled and received remuneration for use of their products. It is evident in the discourse around the policy, from the episode around neighbouring rights occurring 1968-71 onwards that a great deal of the music industry activity in Canada involved the international music industry. As the pace of copyright revision intensified in the 1990s, there was the accompanying realization that the Canadian-owned sector was also involved in a global music industry and that copyright law was a key element in this integration. This is why trade issues were such an important consideration in the development of copyright policy.

Policy Assemblages and Coherence

As I discussed in the first chapter, there are many versions of the Canadian music industry that policy might engage with. Each of the policy assemblages described involves different of the Canadian music industry to some degree, despite some obvious overlap between them. To some extent these differences arise from the nature of the policy – the fraction of government that carries it out; the kind of instruments employed and the intent behind it. The differences may also arise from the policy object – how, as well as who or what responds to the policy. This is not always known in advance and the interaction is an ongoing, dynamic process. Schön and Rein (1994) describe the policy design process as “ a

“conversation” between the designer and his materials” (166). In this context it

325 means that neither policy nor its object are outside the process; both are equally part of the assemblage, responding to one another to create new environments and issues to which to respond. Given this, one might expect the various policy clusters we described to move further and further away from one another on their different paths. Certainly, they never completely merge, however, at various points these assemblages interfere with one another. We saw a number of examples of this throughout – such as part of the music industry’s 1991 proposal to broadcasters for neighbouring rights, emerging as the CRTC’s policy for reducing and rationalizing Canadian Talent Development commitments for broadcasters. Attempting to preserve each assemblage from interference and the conflicts it might entail is as much of an issue in managing these policies as the attempt to make them cohere. Mol describes the means for achieving this separation between various enactments of atherosclerosis in terms of administrative, disciplinary and even physical divisions that allow them avoid coming into direct conflict (2002: 87ff). In our situation this is achieved by utilizing different parts of government – different agencies or departments – in each policy. The CRTC and the Copyright Board are both examples of agencies with strictly defined areas of responsibility that allow the separation of Canadian content and copyright in terms of administering policy. This may have been frustrating to broadcasters or the music industry representatives in those instances where they would have liked to the issues from one policy taken into account in another – for instance the CRTC’s decision to license Shaw’s and Cogéco’s digital audio cable offerings despite lack of adequate copyright payment. But it

326 also worked to their advantage on occasion. As we described in Chapter Six, both broadcaster and record label representatives had to reverse positions on the relative importance of airplay, depending on whether they were discussing

Canadian content or neighbouring rights.

Yet there were also attempts to coordinate these policy assemblages and to construct a larger assemblage from them. Again, there were a number of ways in which this wasachieved. Some of these attempts came from government. The change in responsibility for copyright revision from the exclusive jurisdiction of the Department of Consumer and Corporate Affairs to a shared responsibility with the Department of Communications allowed copyright to figure more prominently in cultural policy generally. Even after this occurred, CIRPA had to make the case that copyright revision should be included as a key element in a Canadian music industry policy (CIRPA, 1985). Indeed, a great deal of the impetus for coordinating these policies arises from groups such as CIRPA, including CMPA,

CRIA and others. Whereas government divided these responsibilities administratively, many of these groups had some degree of involvement with all of the policies, either individually or in coalition. This forced a degree of coordination of the different policies from their end, through setting lobbying priorities, responding to the interests of their membership or intervening on each other’s behalf. It was these processes of enlisting and translating the numerous and various interests of member companies and persons that allowed the formation of a Canadian music industry at the policy level. Although by the

1980s, it was no longer an issue of whether there was a Canadian music industry,

327 there remained ambiguities over what precisely what that industry consisted of.

The difference was that by that time government agencies such as the CRTC or the Department of Communications had somebody with whom to carry on a policy discussion. Over time we see the Department of Communications (later the

Department of Canadian Heritage) emerging as the primary interlocutor for these various industry groups. The transfer of responsibility for culture to this department in 1980 and its ongoing oversight of the CRTC were the key developments here. Again, on neither side was this process ever complete. There was, however, a relatively stable formation in the actors involved that allowed a conceptual unity for Canadian policy to emerge.

As we said earlier, the formation of the Task Force on the Future of the

Canadian Music Industry in 1992 and the publication of its report A Time for

Action in 1996 is perhaps the best marker of this conceptual coherence. The task force’s title is one indication of an attempt at inclusiveness. Instead of the Sound

Recording industry (as in the SRDP, which nevertheless did involve some programs involving live performance and music publishing) we have the Music industry – a term which is much more inclusive and open-ended. Undoubtedly there is a rhetorical strategy behind the use of this much more expansive term, as

Williamson and Cloonan, suggest. Although the scope of the report was more or less restricted to the activities of sound recording and music publishing, this was certainly never spelled out anywhere in the report – one can easily imagine the term ‘music industry’ including live performance (which hardly figures in the document) and even instrument manufacture (which does not figure at all). The

328 singularity of the term, music industry, also implies a unity that we have problematised throughout this dissertation. It was certainly more inclusive than previous articulations of music industry policy, not least because it involved the multinational record labels as full participants in the process – a sign of their growing involvement in Canadian music industry policy, largely through copyright revision.

If there is a unity in policy terms it is because documents such as this help to make this so, both through their creation and their contents. The document addresses all three policy assemblages, subsuming their various intentions and goals under a general rubric of three objectives.

a) strengthening Canadian composition and songwriting and

the performance by Canadians of musical works in both

English and French and in a diverse range of music styles

and genres;

b) ensuring that effective provision is made through

appropriate policy measures for such works to be

recorded, distributed, marketed and broadcast through

both existing and new distribution systems in Canada; and

c) providing for adequate levels of financial compensation to

creators, performers and producers for the use of such

recorded works through all channels of exploitation.

(Report of the Task Force on the Future of the Music

Industry: ii)

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These general goals emerge from the exercise of generating a comprehensive set of recommendations on policy. They set out a framework for understanding the diverging intentions and effects of the various policies. The point is not that this was difficult to do or required considerable reinterpretation of the policies.

Indeed, none of this seems to do violence to the policies from the point of view of the music industry’s interest. The important point is that the report actually did articulate such a framework and such a point of view and that the structure of the task force was important in generating this view. This report was the music industries expressing their interests in terms of policy objectives. Although it was commissioned by the Department of Communications, the work of the task force was carried out by industry representatives and the substance of its recommendations came from the industry and its interpretations of the various studies that went into its making. As we said earlier, it was perhaps easier for the industry to construct such a document than it would have been for the Department of Canadian Heritage, which would perhaps have been more limited by its administrative and jurisdictional barriers.

There was another important element that the policy assemblages shared.

All to some degree concerned the Canadian music industry’s relation to radio broadcasting (which is explicitly referred to in objective b), above). There were two reasons for this. First, from a policy point of view, as I argued in Chapter 2, private radio’s use of recorded music provided the link between the music industry and the sovereignty over broadcasting that was central to Canadian cultural policy. Canadian content helped to make the music industry more than

330 simply a manufacturing business. The second reason for this was the industrial relationship that underlay the policy. Radio was the music industry’s most identifiable externality. Radio was, as in Hirsch’s analysis the primary means by which music promoted their products to consumers (1972) and at the same time it was the single largest industrial user of these products. Within this general framework the policies could interfere with one another by way of creating new effects and rationales. For instance Canadian content policy shifted within this framework from a means for ensuring promotion Canadian artists to a means of guaranteeing a level of copyright revenue for the Canadian music industry. As I suggest in the introduction and demonstrate throughout the dissertation, this meant that radio broadcasters and their representative were deeply involved in the policies and their discourse – occasionally as collaborators, frequently as opponents.

As important as the relationship between the music industry and radio broadcasting was and is, the music industry also has also maintained a host of relationships not governed by cultural policy. Copyright was only gradually integrated into the cultural policy framework but many other, perhaps even more fundamental aspects of the industry remained invisible to cultural policy. Some of this might be a result of a policy that implicitly and explicitly place sound recording at the center of music industry activity. Will Straw has noted that

“Studies of the recording industry frequently take the existence of record companies as a point of departure, overlooking those processes through which…record ‘labels’…emerge from combinations of other activities in which

331 music or recordings are involved” (1993: 53). Such activities are generally less to with recording than with live performance and the various functions involved with this – booking agents, managers, venues, and so on. These activities were important not only as a source of music labels but, at least as important, the source for the performers who make their recordings. Nevertheless, such activities are hardly addressed by federal music industry policy.

This is not the only aspect of a Canadian music industry to have remained outside the cultural policy frame. What is also left out are the more material and mundane (arguably the most ‘industrial’) aspects. For instance, the manufacture and physical distribution of sound carriers (records, tapes or discs) is surely a key issue for the music industry – the predominant material form of the music commodity. However, as we saw with the neighbouring rights episode in 1970, manufacture was held to be external and incidental to the creative process. Even in the 1990s, manufacturing was sufficiently outside of the cultural policy frame that even with an exemption for cultural industries under NAFTA there was an elimination of tariffs on compact discs. The implications of this for the Canadian music industry were potentially profound. With the ability to source product from the USA, major labels could potentially abandon their Canadian offices and run a continental distribution network from their United States-based divisions. The difficulty for Canadian labels would then be to secure distribution contracts with major labels as the volume of sales they would generate, while significant for a

Canadian only system, would not be sufficiently attractive in a market more than ten times the size. Moreover, this situation would more or less preclude sub-

332 licensing of foreign releases for the Canadian market by Canadian independents – a considerable source of income for many of them. For a number of reasons this has not occurred – a low Canadian dollar for much of the period, and the considerable manufacturing capacity in Canada may both have contributed to this.

Yet such a scenario would have had an impact on the industry at least as great as any of the issues addressed by existing music industry policies. Likewise, the restrictions on supplies of shellac, imposed by the USA during the Second World

War, had a considerable effect on the music industry in that country but that measure is not generally thought of as a music industry policy (Sanjek & Sanjek,

1991: 79).

These examples illustrate the limitations of these music industry policy assemblages. These policies are concerned with only a relatively narrow range of configurations of the music industry but are vulnerable to changes from the many other relations that compose the music industry. No policy assemblage can be comprehensive; there are always relations that overflow. Despite the change in nomenclature, the overall unity that resulted in this account has sound recording at its center and is concerned primarily with relations to industrial users. This is a characteristic that is perhaps a result of the music industry’s own practices. From the music industry’s point of view, radio’s importance initially from its role as a mediator between these music producers and their audiences. As a mass media

‘gatekeeper’ radio provided a workable medium for marketing recordings in a situation of high uncertainty over demand for any one product (Hirsch, 1972: 650-

652). Consumers and consumption remained relatively incalculable where

333 particular records were concerned. A large proportion of record companies’ marketing efforts was trained on these radio ‘gatekeepers’ rather than at consumers directly. Although this had been gradually changing over the previous decade, this was still predominant practice. This did not really change with music video – it just displaced some of the effort toward these other gatekeepers.

The Canadian Music Industry in 1998

The year 1998 marks the high water mark for Canadian music industry policy based on a configuration of a music industry centered on sound recording and largely concerned with the industry’s relationship to industrial users, primarily radio broadcasting. The industry could point to recent legislation that substantially increased the scope and application of copyright in music. As the collectives began filing for the rights enacted by Bill C-32, this opened up new and potentially significant streams of revenue for the industry. Although the amount of revenue was comparatively minor in comparison to that from record sales, many in the industry hoped that these rights, once established, would provide the basis for more substantial revenues in the future. As well as providing the music industry with more access to private sources of revenue, the government has also recently enhanced its own support for the Canadian sector. In renewing the Sound Recording Development Program late in 1996, the Liberal government doubled the level of funding to just under $10 million annually – still a relatively small amount in comparison to those for other cultural sectors but a welcome increase all the same. Finally, the CRTC’s decision to raise Canadian content for the most popular radio formats from 30% to 35% reaffirmed the

334 government’s commitment to its most longstanding Canadian music industry policy. These Canadian content levels would not only maintain a strong Canadian presence on the airwaves but would also ensure that a high proportion of already existing and newly created rights revenue would flow to Canadian creators and industry. If these policies were of benefit to the industry then this was overshadowed by perhaps the worst years for the Canadian (and global) music industry since the depression.

In 1998, the industry seemed generally in good health. Sales were slightly down from 1997, from a retail value of US$977.5 million to US$969.3 million

(IFPI, 1998: 4; World Market survey, 1999: 8), but had generally climbed over the previous several years. Billboard’s report on the Canadian music industry at the beginning of 1999 was generally upbeat, citing the increasing international profile of Canadian artists and companies (Leblanc, January 16, 1999). Yet, only three years later Will Straw’s overview of the Canadian music business in late

2001, showed an industry in crisis (2003). The article’s title “No Future,” expressed the gloomy outlook, for the global music industry generally and for

Canada’s music industry in particular. The years since 1998 have been perhaps the most difficult for the music industry particularly sound recording since the

Depression. By 2001, sales declined to US$659.9 million (IFPI, 2002: 4), a drop of nearly 10% from the previous year and down 32% since 1997. What changed in the interim was perhaps a number of factors, a slowdown in CD sales as consumers had largely replaced their older vinyl or cassette collections or competition from other forms of entertainment, such as DVDs or videogames.

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Overwhelmingly, however, the music industry blamed the decline on uncontrolled and unpaid copying and sharing of music over the Internet. The rapidity and extent of the effect suggests the limitations of the industry and government policy.

Digital Media and the Challenges to Canadian Music Industry Policy

The challenge to the Canadian music industry and to this policy assemblage did not come from mass media such as radio but from the users of a medium that did not exercise this gatekeeper function – the Internet. Over the Internet, exposure often occurred simultaneously with consumption – a convergence of promotion and distribution. Some of the difficulties in distinguishing between the exposure to a work and its reproduction are expressed well in the Report of the

Canadian Content and Culture Working Group of the Information Highway

Advisory Council.

Rental is the transfer of a particular copy from person A to

person B. This does not occur on the Information Highway, as

the transmission of a work results, rather, in the making of an

additional copy of a work by person B. In other words,

accessing or downloading a work constitutes a reproduction

and not the rental of an original copy. However, the ease of

digitization and the growth in distribution channels will put

more copies of works in the hands of more users, thereby

increasing the potential for unauthorized commercial rentals

outside the scope of the Information Highway.

(Industry Canada, 1995: 28)

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In a library, for example, it is argued that browsing a

book or magazine article is an activity that takes place prior to

photocopying. This analogy, however, is faulty: in a library,

rarely would users read an entire work and then photocopy it.

In a digital world, users can browse an entire work, an exercise

that in fact constitutes a use of the work. Other parties were of

the view that, if browsing a protected work incurred copyright

liability, it would limit users' ability to preview a work in order

to determine whether or not it is of interest to them. It should

be noted, however, that it would be in the commercial interests

of the creator, as well as the user, to make portions of their

works available for browsing (e.g. sampling) free of charge.

The creator has a strong promotional incentive to permit

browsing of a portion of their work in a digital environment

without payment.

(Ibid: 29-30)

As the above quotes suggest, policy makers in government and industry were already, to some extent, aware of these issues. However, the ‘information highway’ envisioned in this process was a far more orderly entity than the Internet that was taking shape at this time. What is missing from the above passage (and from the report as a whole) was any sense of the difficulty of controlling content and the extent to which consumers had both the means and the inclination to make such content available or to produce their own ‘unauthorized’ copies. The

337 interactivity of the new media was acknowledged in the Working Group’s report but only to a limited extent and, hardly at all with respect to copyright issues.

Among existing policies, the home taping levy came closest to reflecting consumers’ behaviour in this respect and to proposing measures for dealing with it. But home taping remains an awkward policy, insufficient for rights holders who say it does not offer nearly enough compensation for lost sales and irritating to consumers who resent its preemptive, collective measures. Consumer behaviour may have been the justification for the policy, yet there were few means to address such behaviour at an individual level. There is no way to determine if somebody is going to use a tape to privately copy music and, if so, what music they copy. Consumers were not targeted directly; rather, industry

(tape manufacturers and importers) remained the point of intervention. If the policy is transitional, as CIRPA and CRIA described it in their presentations to the Standing Committee on Bill C-32, it is so not just in the sense they intended, as provisional and temporary, but also as a transition between two paradigms of mediation, one concerning industrial users and the other individual consumers.

The robust rights regime pursued by the industry and recommended by

Donner & Lazar (1994), was not sufficient to meet the challenges of this environment. If Canadian policy makers seemed generally unprepared for the impact of the Internet in this respect, one could also argue with some justice that even the fairly direct and vigorous measures proposed under WIPO and adopted by the United States in their Digital Millennium Copyright Act were insufficient to deal with this new and rapidly developing configuration. Unauthorized

338 replication on a scale far beyond the scale envisaged by foes of private recording took place in the United States as much as in Canada. Notwithstanding their anti- home taping campaigns, the music industry had focused a great deal more attention on organized, mass replication, or piracy over the years (Straw, 2003).

As effortless, private copying proliferated among consumers, the industry shifted its efforts; even so tactics such as suing individual downloaders or uploaders, arguably, has had little impact on the practice of file sharing. As Sheryl Hamilton has argued, as copyright has become a much more personal and pervasive issue, legislative solutions have as yet not adequately come to terms with this development (2007).

The widespread adoption of digital technology, as well as the various forms of convergence this allows underlies many of the recent challenges to the industry. The most salient feature of digitization for the music industry may have been file sharing over the Internet since the late 1990s. However, digitization has been both a longer and more elaborate process. For the music industry, digitization underwent a major development with its embrace of the compact disc format in the early 1980s. The industry undertook a massive collective project of digitizing content as it reissued much of its existing catalogue in the new format.

Music was the first entertainment product to undergo this process. The industry benefited greatly from this first wave of digitization as compact disc proved popular with consumers and led to many repurchasing recordings they already owned on vinyl or cassette (Burnett, 1996: 45-46). The pursuit of high fidelity resulted in copies that were identical with masters. The result was that when

339 digital networks started to become popular, music was already well along in the process of being ready for transmission – a process completed by the development of compression protocols such as MP3. This allowed not only unauthorized copying but also resulted in the development of a small but growing legitimate digital market for music, which has resulted in other changes for the music industry. In the digital environment, the major labels have ceded their control over distribution. This function has been taken over by companies such as Apple,

Amazon or Wal-Mart. Even in physical distribution, the role of the major labels has declined. The major labels no longer carry on manufacturing and the logistics of distribution in Canada. This role has fallen to other companies, such as Cinram, who started out as a disc manufacturer. As a result, the major labels’ presence in

Canada has declined physically – they no longer operate the extensive warehousing and manufacturing operations that territorialized them on Canada.

As noted in the introduction the current difficulties facing the music industry are hardly unique to Canada. As well, we have seen that the extension of major label control over distribution in the 1960s and 1970s, and industry downturn in 1979 occurred throughout the global music industry. Globalization has been a feature of the Canadian music industry for virtually its whole history, not in the sense of abolishing a distinctive Canadian market but rather in terms of its integration within a larger, global one. Much of Canadian music industry’s connection to the global music market has come via the major labels, which dominate most of the national music markets worldwide. During much of the period examined in this dissertation the major labels worked to establish their

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Canadian credentials, expanding their roster of Canadian artists (although this has varied at times), publicizing the Juno Awards and, of course, working closely with the Canadian sector on lobbying efforts. But with the dismantling of the major labels’ distribution networks, the basis for their Canadian presence, and indeed for their dominance has changed. At the same time as they have reduced their physical footprint, the major labels sign fewer Canadian artists than previously, having trimmed back their domestic rosters considerably in the past several years.

Their operations are smaller, and have become more marketing and sales-oriented

(LeBlanc, February 14, 2004, March 10, 2007).

The major labels have also increasingly aligned themselves with the position of the global industry where policy is concerned. This has been most visible in copyright but has also been apparent in their position on Canadian content. What has happened over the past several years is a partial collapse of the loose but workable coalition among the representatives of different music industries in Canada during the 1990s. CRIA’s position on Canadian content was beginning to diverge from that of their independent counterparts at CIRPA and

ADISQ but this split became more apparent in 2006, when CRIA became more insistent on regulations that would privilege the artist as the primary basis for

Canadian content designation. This would allow their internationally prominent

Canadian artists to qualify as Canadian content while pursuing careers abroad and collaborating with non-Canadian production and writing teams. CRIA also asked that its members’ artists be given the same access to programs funded by

Canadian Talent Development money as those on Canadian-owned labels.

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Tension over this led to the departure of the six largest independent labels from

CRIA (all of them CIRPA members, as well). At about this time CRIA began to advance a position that called for the abolition of the home taping levy as legitimating the theft of copyrighted material. This led to a letter from eleven music industry groups, distancing themselves from CRIA’s statements (Personal

Communication: letter from Solange Drouin, ADISQ, April 12, 2006).

At the same time, creators of music (songwriters and performers) have moved to distinguish and define their interests separately from those of the industries, either by forming new associations or by existing associations advancing distinct positions. In the past two years a number of new organizations have emerged – the Canadian Music Creators Coalition (CMCC), a group of relatively well know Canadian recording artists; the Canadian Independent

Recording Artists Association (CIRAA), claiming to speak on behalf of the many artists who record but not under the auspices of record labels, either multinational or independent. Where music is concerned creators have generally played a subordinate role in copyright lobbying. Associations representing the industry were happy to speak on behalf of creators (i.e., performers or songwriters) because it strengthened their case morally. To be seen as acting on behalf of creators is far more appealing than simply for the industries that exploit their works. This was effective only so long as artists were willing to let them do so. In negotiations between industries (such as broadcasting and either sound recording or music publishing; sound recording and music publishing or; sound recording, music publishing and tape manufacturers) artists were generally not directly

342 involved. But for many artists (especially in regard to opposition to infringement carried on by private individuals) there is an increasing unwillingness to let the representatives of industry speak on their behalf. Thus we see groups such as the

CMCC distancing themselves from the position of their record companies with regard to issues such as Digital Rights Management or litigation against individual uploaders of copyrighted material. The formation of these new groups reflects an increasing divergence of interests that are no longer translatable into those of a single entity. This challenges the ability of any one organization or even coalition to speak on behalf of the music industries. One can read the extent of the changes facing the music industries in the fragmentation of coalitions and the proliferation of representative groups. That there were always a number of these groups showed the plurality of the industry but the changes show that some of the affiliations that were unopposed before have started to detach; the commonality of interest is no longer there. Developments in information technologies are responsible for some of this disruption. By introducing new elements into the configuration of music industries, they have not only allowed for new relationships to emerge but they have weakened some existing ones.

It is not only in copyright that the new media challenged Canadian music industry policy. Canadian content also became problematic in this new environment. Again, the Report of the Canadian Content and Culture Working

Group, spoke of privileging carriage of Canadian services, but in terms of the

Internet such policies were very nearly meaningless. There was no way of ensuring a set level of Canadian content on the system, let alone its predominance,

343 as with broadcasting. The report also recommended reaffirming the CRTC’s role as regulator of such undertakings (9). Such recommendations, however, meant very little in the face of the CRTC’s decision in 1998 not to regulate Internet content. While this may have been taken as an abdication of responsibility, it was arguably as much a recognition of the degree to which the instruments at their disposal were simply insufficient or inappropriate for the Internet. On other new media, in particular satellite radio, Canadian content has been applied but not to the same standard as on broadcast. When the Sirius Canada and XM Radio

Canada (along with an application by CHUM/Astral Media) applied to provide

Canadian satellite radio service in 2004, a scenario unfolded almost identical to that with Shaw and Cogéco’s digital cable radio a decade earlier. In the summer of 2005 the Commission licensed Sirius and XM with much lower levels of

Canadian and French-language content than in conventional broadcasting, leading to another Appeal to Cabinet by the music industry. In this case, however, the appeal was not successful. The result was a Canadian content level below 10% across the system and concentrated in a handful of channels produced by the

Canadian operations.

All three of the policy assemblages treated in this dissertation continue along much the same lines. Copyright revision that would see Canada’s ratification of the WIPO Treaties of 1996 has twice died on the order paper in

2005, with the fall of the minority Liberal government and most recently in the

Autumn of 2008, with the Conservative Party’s election call. Funding programs have diversified beyond the SRDP somewhat. In 2001, the Minister of Canadian

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Heritage announced the Canadian Music Fund, which added a new stream of funding for the Canadian music industry, the Music Entrepreneur Program, targeted at the more established independent labels (requirements include five years of continuous operation and unit sales in excess of 200,000 in the previous year) and administered separately from the SRDP. The existence of this program is perhaps another sign of at least a core of successful and stable Canadian-owned music businesses (Sutherland & Straw: 154). Canadian content, as just mentioned, still applies to broadcasting but has been absent or much diminished in its application to newer media. Perhaps the greatest difference in music industry policy is a growing orientation to trade. The creation of the Trade Routes program in 2001 (cancelled by the Conservative government in the Summer of 2008) marked a joint venture between the Departments of Canadian Heritage and

External Trade in an effort to enhance Canadian cultural industries’ access to foreign markets.

In the new configurations of the industry brought on by globalization and digitization there have emerged some new and marked divisions between existing music industry policies. On the one hand we have a Canadian content regime applied to the broadcasting system. Canadian content is founded on a program of cultural sovereignty applied to a broadcast system that is restricted both in terms of the number of entrants and the nationality of the undertakings. Canadian content is aimed at preserving the access of Canadian cultural producers to their own media. To date, the CRTC has shown no signs of relaxing or reducing

Canadian content requirements for conventional radio broadcasters. This stands in

345 some contrast to the export-oriented approach, which aims at securing the access of Canadian cultural producers to other markets. This is a feature not only of programs such as Trade Routes, but was also behind the rationale of the overall low Canadian content on satellite radio. One of the arguments used by the licensees in their applications was that the Canadian channels would become part of the American system, thus offering Canadian music greater exposure in that market.

At the same time, as it continues with its longstanding Canadian content requirements for radio and a more limited regime for satellite radio, the CRTC has no content requirements whatsoever for the Internet. The disparities in the application of Canadian content over different media suggests an approach that is, once again, not founded on a conceptual coherence of the policy but rather on the vagaries of what different media will allow in terms of content regulation. In the adoption of an existing foreign system such as satellite radio, the imposition of

Canadian content regulation can only be extremely limited. In an open and globalized system such as the Internet, Canadian content is simply not possible. In essence the CRTC has enacted officially what is currently the case with copyright

– clear enforceable tariffs and regulations, licensing use and extracting payment from institutional owners who operate in a relatively closed system. In the more open system of the Internet, there are currently in Canada no enforceable rules to guard against copyright infringement. It is still unclear what the general prohibitions against such use on the Internet proposed by current copyright legislation will achieve in terms of addressing the situation. Developments such as

346 these show the different age of the policies and the media to which they apply. To a large degree the music industry is still in terms of policy inhabiting the world as it was from 1970 to 1998. Whereas in other respects it is trying to cope with the world that has emerged since, and which policy has yet to address.

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