I'll give you the floor in two minutes from now.
[Translation]
We also have with us, from CMRRA-SODRAC Inc., Mr. David Basskin, president; Mr. Alain Lauzon, vice-president; Mr. Casey Chisick, legal counsel; and Mr. Martin Lavallée, legal counsel.
Good morning and welcome.
We also have with us Ms. Marian Hebb, from the Artists' Legal Advice Services.
Good morning, I'm delighted.
[English]
We're going to start first with Ms. Margaret Atwood, from Dubai. I will give you the floor for five minutes, and after that we'll have other witnesses, also for five minutes. At the end of all of the presentations, the members of this committee will be able to ask questions of everybody.
Madam Atwood, you have the floor for five minutes. And thank you very much for being with us from Dubai.
:
Thank you very much, good evening.
[English]
Thank you for inviting me.
I address this committee from the position of an author who has been involved in publishing since the 1960s, both as writer and as publisher, and who has lived from the proceeds of writing--fees and royalties--since the early 1970s.
I am in the 10% of North American authors who live from writing. Even those within that 10% often end up with tiny incomes. The loss of a thousand dollars is significant to them.
A writer with a salaried position at a university may have a different view. I frequently allow free use of my copyrights. When I make such gifts, that is my choice.
One, I will speak only about the extension of fair dealing to include education, however interpreted.
Two, I am in favour of cheaper education for students. But if cheaper education is a public good, all should contribute, not just authors.
Three, removing authors' copyright for education, without compensation or choice, would not be fair dealing. It is not fair--why only authors?--and it is not dealing. It takes two to deal.
Four, a copyright is property. It can be owned, sold, licensed, and inherited. There are only four ways in which property can be removed from its owner without consent: one, theft; two, expropriation, which does however include some payment; three, confiscation, as from criminals; and four requisition, as in a war.
If this copyright property grab is confiscation, what criminal act has the author committed? If requisition, what is the war? If theft, those authorizing the stealing should be charged. If this property grab is expropriation for the public good, as in land or highways, etc., the public should pay.
Five, the author will be compensated, we are assured. How? There is no mechanism proposed and no recourse for unfairness except through the courts. Given what I have said about tiny incomes, it is obvious that authors could not afford this, whereas big educational institutions, floating as they do on public money, can.
Six, finally, if the government can snatch the property of authors in this way, without consent or payment, who and what will be next?
Thank you.
:
Thank you, and good morning.
My name is David Basskin. I'm the president of CMRRA-SODRAC Inc. (CSI). With me are Alain Lauzon, CSI's vice-president, and our legal counsel, Casey Chisick, and Martin Lavallée.
CSI represents the reproduction right in musical works—songs. Broadcasters, including commercial broadcasters, the CBC, pay audio, and satellite radio at present pay CSI when they reproduce works in our repertoire.
Since 1997, the act has required payment only if a blanket licence is available. A single payment licenses the millions of works in our repertoire.
Broadcasters pay CSI either pursuant to tariffs certified by the Copyright Board of Canada or through negotiated agreements. They paid CSI $17.6 million in 2009-10.
The commercial radio broadcasters want you to strip away our rights. Why? They'll tell you that the copies they make are worthless. That's nonsense. Expert evidence, accepted by the Copyright Board, extensively documented the benefits that broadcasters receive from these copies. For one example, through voice tracking, broadcasters can produce a four-hour program in just 20 or 30 minutes.
They'll tell you that it's unreasonable and unsustainable to continue paying seven-tenths of one percent of their earnings for the right to make copies. Unreasonable? They pay 5.7% of their revenue to all collectives for the music that makes up 80% of their programming. Unsustainable? When the commercial radio tariff was introduced, the industry enjoyed average pre-tax margins of 10%. In 2009, in a severe recession, their margin was 21.2%.
And there's this: the broadcasters want a double standard. They license the reproduction rights in their broadcast programs to media monitoring companies. They receive a royalty of 10%, and for 2011 to 2013 they want a 40% increase, to 14%, ten times higher than the 1.4% they themselves pay to reproduce music, seven-tenths of a percent for songs and seven-tenths of a percent for recordings.
There's no similar exception that applies to Canadian broadcasters' reproduction rights.
However, even if the broadcast mechanical right were left as it is, other provisions in would undermine the rights of our members. Alain Lauzon will speak to those other provisions in the bill.
:
Modernizing the Copyright Act should aim to create a stable, innovation-friendly environment without eliminating existing or potential royalty sources for creators.
The current law is technologically neutral and this principle should not be called into question. What constitutes copying or reproduction today should remain so as technologies continue to evolve.
In determining the value of various types of reproductions, the courts have thus far applied a range of economic values established on the basis of the reproductions' utility and effectiveness in the eyes of various users. However, Bill creates numerous exceptions that do away with royalties.
More specifically, section 32 of the bill, which authorizes technological reproductions, should be withdrawn. At the very least, the wording should be revised to ensure that it covers only transient reproductions without real value. If not, the subjective notion of "facilitate a use" will prompt certain broadcasters to think that the reproductions they currently pay for will be free of charge.
Section 22 of the bill, which authorizes multiple backup copies, should be reviewed. Why should multiple copies be authorized when a single copy is sufficient?
In addition, section 22 would allow "commercial intermediaries" such as YouTube to keep on developing profitable business models by distributing non-commercial user-generated content without compensating the rights holders.
One of the solutions proposed in our brief would be to allow these intermediaries to reproduce existing works if they obtain a licence from a collective society.
A straightforward solution aimed at fixing the current bill would be to stipulate that the exceptions created by the bill would only apply if a collective society were unable to issue a licence.
The collective licensing system has been in place for several years now and has not brought about a market collapse. Collective licensing is the best solution to reach a balance that would support innovation while ensuring compensation for rights holders.
Thank you for your attention.
:
Artists' Legal Advice Services is a summary legal advice service that provides free legal service to artists of all disciplines: musicians, visual artists, writers, actors, and dancers. We are therefore acutely aware of how difficult it is for artists to earn a living.
The preamble of Bill mentions two goals that are in the public interest, which could conflict but can be compatible: for rights holders, recognition, remuneration, and the ability to assert their rights; for users, further enhancement of users' access to copyright works.
Everyone wants easy access to copyright works. That can be achieved by either collective administration or by statutory exceptions. Both provide the same ease of immediate access to consumers, but collective administration also provides creators with remuneration that's either negotiated with users or fixed by the Copyright Board.
Rights-holder-run collective societies administer collectively licences or tariffs, which replace multiple, low-value transactions that could otherwise be between the individual rights holders and users, but in fact it's often impossible for individual creators to negotiate individual licences for secondary uses of their work.
Most independent professional creators in this country earn less than $20,000 a year from their professional work, many of them far less, and comparatively few considerably more. Cutting back further on creators' rights with new exceptions will make it more difficult for them to support themselves. ALAS submits that statutory exceptions should be considered only where individual licences are not practicable and collective administration is not available.
We live in times of rapid technological change. Copyright legislation should remain neutral to changes in the marketplace and not introduce exceptions that will prevent creators from earning revenues from new or future business models. The preamble to Bill refers to the Copyright Act as an important marketplace framework law, affecting many sectors of the knowledge economy through clear, predictable, and fair rules.
It is hard to see how some of the proposed exceptions can be considered clear or the outcomes predictable, leaving aside the question of fairness. For example, there's no guidance in the proposed legislation to consumers or rights holders on how the new fair dealing exception for education might relate to existing educational exceptions or to the new ones proposed in Bill C-32, or whether it relates to them at all. No one will know what this new fair dealing for education means until the courts tell us.
We do know that savings for education mean less money in the pockets of creators. There are other exceptions for education in the current Copyright Act, which Bill proposes to revise at the expense of creators, because they either remove or reduce the ability of collective societies to license schools and post-secondary institutions for certain uses.
To take an example, the updated version of the interlibrary loan exception in Bill would allow a single library to supply the same copyright material copied from either print or digital publications directly to the computer of every student or other person across Canada who might choose to order it from his or her school, university, or local public library. We all want digital delivery from libraries. Creators will be among the most frequent users. But their collective societies, which today license photocopying in libraries, should have a reasonable opportunity, following the update of other provisions of the Copyright Act, to offer licences for digital delivery.
The exception for user-generated content, or mashups, is a brave step to recognize current realities, intended to catch up with consumer behaviour by allowing existing works to be used in the creation of a new work by a different author for his or her non-commercial purposes. But much stronger restrictions are needed to make any user-generated content exception fair to the original author. A new work that uses an existing work by another author, also often including performances by artists, should remain private unless there is permission or payment. Collective societies should collect royalties for the creators from a disseminator such as Google-owned, advertising-rich YouTube.
Another extraordinarily broad exception will allow everyone to reproduce any work without compensation to the author or performer for private purposes. This reproduction is subject to some restrictions, but without the clear, predictable, and fair rules promised in the preamble to the bill, it will be left to individual litigants to find out what the courts may allow as a private purpose. Digital locks are not an acceptable substitute for clear law.
Creators mostly do not want to use digital locks. They want users to access their work freely, but not for free. A collective administration model already exists for the private copying of music, although it badly requires updating for the digital environment.
All of the exceptions I have mentioned are intended to exempt users from licensing and payment for uses that currently are or could be administered efficiently by collective societies, subject to the oversight of the Copyright Board.
Copyright provides the legal foundation for creators' business models and is the economic basis for all of the creative industries. Particularly in the digital environment, collective administration of secondary rights plays a critical role. Confiscating creators' rights means more copying and less licensing of Canadian works. Artists and other cultural workers will find it harder to survive as their markets shrink and jobs disappear. Inevitably there will be fewer made-in-Canada works for all of us to benefit from.
Thank you.
:
First of all, describing the royalties that are paid as “punishment for innovation” is an interesting way of looking at it. We obviously disagree.
Broadcasters are taking advantage of remarkable technology that has developed in the last few years that enables them to save a great deal of money and resources. They don't have to have a room full of CDs or vinyl records anymore. They don't have to pull the records from the shelf and line them up in the order they're going to be played. Nothing gets lost; nothing gets rolled under a filing cabinet.
The operational advantages go beyond that. In the world of broadcasting, advertising pays the bills, and the advertisers are naturally very interested to know that their ad went at the correct time. In the old days, before automation, somebody had to be there with a clipboard writing it all down, and lots of errors happen any time you do that.
In the world of automated broadcasting, the system generates precise documentation: your commercial aired here and here and here and here. Advertisers demand that; the system delivers it. That's fine. I think it's great. I love computers.
Copies of music are at the absolute heart of this system. Copies of songs and recordings are necessary to make this system go. Broadcasters are taking advantage of the technology, and they're compensating those who create the music. To me that's value for value.That's a fair proposition.
To say that paying royalties is punishment for innovation is like saying it's punishment to pay for electricity to light up the building. It's part of the operating environment. We're happy to enable them to take advantage of these technologies, but as for what broadcasters pay, particularly small broadcasters, let me remind you that the most recent decision of the Copyright Board says that on the first $625,000 of revenue, broadcasters pay us, CSI, one-third of one percent of their income. So for a small station that makes, for example, half a million dollars in sales, that's $1,500. This is a relatively small component, and I would say it is very fair value for the fact that they get to make copies of every song in the world.
:
Please stop cutting off my microphone. Thank you.
They're not saying that at all, Ms. Atwood. In their appearances here, they've indicated that they represent people who are both writers and educators and that they want to be fair to both sides.
I think it's safe to assume that the rules established by the Supreme Court of Canada and the Berne three-step test...I'm pretty confident that our educators, our educational facilities, and our provincial governments will follow the law. They have a good record in that regard.
I want to say what establishing education as an inclusion under fair dealing does. It allows education. It opens the door to the use of new technologies in the classroom without fear of liability. This relates to new, electronic materials that could be used, things that are freely posted on the Internet. It allows some of these things to be presented to a classroom for educational purposes. It's about taking our education to the next level. It's not, and it has never been, according to the witnesses we've had before us, about taking away the revenues that are established for copying. The Supreme Court has established that copying is not fair dealing. The six-step test for the Supreme Court is well established and is consistent with the spirit and nature of this bill, as is the Berne three-step test. I encourage people coming in to say it's going to wipe out educational revenues to first learn what fair dealing is.
Ms. Hebb, you have a comment.
:
Yes. I have a point of order specifically concerning the exchange between Mr. Del Mastro and Ms. Atwood, but this should also apply to all of our meetings.
When one witness speaks to us by videoconference, it is hard for that person to answer questions and to explain his or her point of view if that person's interlocutor constantly interrupts, especially when the latter leaves the microphone on and tends to always leave it on
Mr. Chairman, it then becomes impossible for the witness to state his or her point of view as the volume of the witness's microphone is much lower than that of the microphone of the person asking the questions.
This concerns the debate we are having today, but I would like us to take this into account in all cases in future where an individual is invited to testify by videoconference. We have to respect the witnesses and the fact that they are taking the time to speak to us.
:
Chair, I will be very quick.
And thank you, witnesses.
To the CSI, you've indicated that in addition to ephemeral recording exception, a number of other provisions in the bill are giving you some concern that they would actually threaten the broadcast mechanical right.
I'm wondering if what you're actually trying to present here is that unless those provisions are withdrawn, the actual broadcast mechanical right would be threatened, even if the proposed amendment to the ephemeral recording exception is abandoned. Can you elaborate?
[Translation]
Does someone want to answer my question?
:
Thank you, Mr. Chairman.
Good morning, ladies and gentlemen.
The broadcasters talked to us about the smallest stations, ephemeral copies and so on. They are ephemeral but they are becoming increasingly eternal. I think that the issue is whether copies of all kinds—there are apparently a dozen types—have a value. That's central to the debate.
For example, it happens that larger stations sell smaller stations entire programs that they've produced. They can be four-hour programs that, with the current technology, require only 30 minutes of musical production and reproduction. That is happening and it can earn revenues. How much is that sold for?
It's probably big stations that sell productions to small stations. How does that in fact take place?
:
Thank you for listening to my testimony.
I am briefly going to outline a few basic principles of copyright. First, I remind you that copyright is the main piece of legislation designed to give economic value to the work of authors, performers and their talent, as well as to the investment of producers, broadcasters, publishers and so on.
In my view, this bill clearly dilutes the economic value of the work and of this entire chain of stakeholders. It places us before a legal puzzle—and I am weighing my words here—as a result of which producers, broadcasters, service providers, educational institutions and users reduce the position of the author and rights holder, particularly as a result of the increase in the number of exemptions, which are not associated with compensation. Even though you know this, I consider it a good idea to remind you that copyright is based on a simple principle. It is a right of ownership that has been recognized for hundreds of years and that confers the power to grant permission. The author gives his permission because there is a right of ownership at the outset. The issue behind that is the acknowledgement that a work has an economic value.
Copyright has always been built on this model, on this economic exchange. The incomes of authors are sporadic, and this is what is being jeopardized by this bill. The rise of new technologies can obviously change the situation somewhat. This is a culture in which works are accumulated and are free of charge, in some cases. And yet there are no studies showing that, with the Internet, consumers are being deprived of works and are becoming acculturated. On the contrary, we realize that legal purchases are increasingly being made. So we see that the Internet is not a kind of lawless area where everything is permitted, but that, on the contrary, the law and its rules are firmly established there. With these new technologies, copyright can absolutely transpose the rules that prevailed in the 20th century. The Internet has not changed the basis of copyright.
I believe it is important to focus on the bases of copyright. And one of those bases is collective management. It is the natural economic relay of this model of exchange between authors and users which has been applied for nearly a century, since the 1930s in Canada. This is what simplifies the exchange. It is the equation between access to a work and compensation for the author. We even see that, in France, agreements have been signed quite recently between YouTube, Dailymotion and the collective societies. This clearly shows that, if we leave the rights to the authors, the users and user networks will necessarily negotiate with them. Access will not be cut off. In France, everyone has access to YouTube and can post works there, but authors are compensated under that model. People don't realize that this economic model is viable and functional. I believe it is important to emphasize that point. We must preserve and even reinforce this economic model.
Bill —and a number of people have had occasion to say this—is becoming much too complex, in my view. I was hoping that this bill would help clean up the situation, but I see that, on the contrary, it is contributing to a certain amount of disorder. The act is becoming opaque, and Parliament curiously is extremely interventionist. It is quite curious to see that it is interventionist in this very specific economic sector, whereas it is much less so in most other sectors. You all know the requirement in a democracy that an act must be clear and well understood in order to be complied with. In this instance, that is not necessarily the case.
I would like to draw your attention to one effect, an instance of confusion in the act, and to the extent of the exemptions it provides for. Subsection 38.1(2) of the current Copyright Act provides as follows:
(2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had not reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.
In my view, in the current state of the bill, defendants will quite easily be able to say that they thought they were dealing with an exemption, that the bill has become so strange and complicated that they thought, in good faith, that they were entitled to do what they did. Then the judge may perhaps decide to impose a fine not of $15,000, but of $200. This bill will indeed have very concrete effects. Perhaps later we can talk about the three-step test, which is obviously still a problem. I know a number of people have emphasized that fact.
On that point, I would simply add that, when we analyze the economic effects of an act, we don't wonder in each case whether they are significant or not. We examine the whole. If there is a systemic effect, that's where we see that the effect is significant.
In closing, I would say that the bill emphasizes the following right for authors in the visual arts, among other things. This following right is absent for reasons that I am unable to understand. This isn't a measure that is costly for the government, on the contrary. The point is to let people in the sector organize matters amongst themselves.
Thank you.
:
Thank you, Mr. Chairman.
As a collective society that administers and distributes to performers who have taken part in a published sound recording royalties from fair compensation from the private copying and right of reproduction system, Artisti has a number of concerns with regard to Bill .
The first of those concerns relates to the private copying system. The private copying system was put in place in 1997 to enable users to make copies of musical works for their personal use and, at the same time, to grant compensation to rights holders in the music sectors for those copies of their work.
Since the private copying system was implemented, royalties from that system have been a crucially important source of compensation for rights holders. Between 2002 and 2007, royalties from private copying constituted more than 50% of amounts from Canadian sources distributed by Artisti to its Canadian members. However, that is now less and less the case.
The private copying system has been outpaced by technology. Currently, only sales of blank CDs generate royalties. However, they are used less and less to copy music. The medium now preferred for making copies is the digital audio recorder, such as the iPod, which is virtually excluded from the system. Consequently, royalties from private copying are declining at an incredible pace, despite the fact that users are still making as many copies of musical works. We had requested that the amendments made to the Copyright Act correct this problem, but Bill does not correct this unfair situation. What is worse, it adds to the problem.
If Bill is passed, everyone will have a right to reproduce for private purposes any work, performance or sound recording, if the original version has been obtained lawfully, and if certain other criteria are met. However, this new exemption will not apply in the case of private copies of musical works made on a blank audio medium such as a CD. Furthermore—Mr. Legault will have the opportunity to talk more about this—it will also be possible to make copies of programs for later viewing or listening, for example.
The introduction of new exemptions covering certain reproductions made by consumers, which does not involve changing the system of royalties for private copying has the harmful effect of in fact creating three separate private copying regimes, two of which do not provide for any financial consideration for creators. There is the present regime which provides for the payment of royalties on audio media such as CDs. There is also the new exemption for reproductions for private purposes, which permits reproductions on a medium or device other than those provided for under the existing system, but which does not provide for compensatory royalties. Lastly, there is the new exemption which permits reproduction for later listening or viewing, without compensation for rights holders.
If Bill is passed, these three exemption regimes will stand together, each with its own set of non-standard rules. Consumers will not understand them and will ultimately do what they want in any case because there will be no way for rights holders to ensure that reproductions done in homes are performed lawfully. The complicated aspect of the exemptions and the absence of any logic in the proposed amendments runs counter to at least one of the principles stated in the preamble to Bill , that the act should contain "clear, predictable and fair rules".
There is no logical justification for this distinction between the various copies made by consumers for personal use. A copy, whether it is made on a blank CD or on a digital audio recorder, is still a copy, and rights holders should be able to receive royalties for the use of their work, regardless of the medium used. Furthermore, Artisti is of the view that the proposed new exemptions would not pass the three-step test contained in the international treaties to which Canada is a party.
Artisti's second concern is the exemption for reproductions made by broadcasters. Bill provides for the deletion of subsection 30.9(6) of the current version of the act. The deletion of this provision seems to indicate an intention to eliminate broadcasters' current obligation to pay royalties for reproductions made for broadcasting purposes. It goes without saying that this measure would deprive Artisti's members of a source of revenue since broadcasters are currently required to pay them royalties for the reproduction of their performances.
Lastly, Artisti's third concern pertains to the exemption provided for in section 68.1 of the Copyright Act. In the 1997 reform, Parliament introduced a right to fair compensation requiring broadcasters to pay royalties for using music by distributing it over their airwaves. However, section 68.1 of the act currently provides for an exemption that releases broadcasters from the obligation to pay royalties on the first $1.25 million of their annual advertising revenues.
This situation is utterly unfair as it concerns solely the royalties intended for performers and producers of audio recordings, whereas the royalties paid to authors and composers are subject to no such exemption.
The same is true for the royalties collected by broadcasters.
Artisti deplores the fact that this unfair and obsolete exemption has not been deleted from the act despite its requests to that end.
Thank you.
:
Thank you, Mr. Chairman.
Thank you for having us.
The Copyright Act must be amended. There can be no doubt about that. It is obsolete. It no longer meets Canada's international obligations and has not been adapted to the digital universe.
However, there are a number of elements in Bill that do not meet stated objectives or comply with the international treaties that Canada has signed. In addition, Bill C-32 generally runs counter to social choices made in the past, including the decision to promote collective management in order to guarantee creators a right to compensation for the uses made of their works.
Today, by adding exceptions without providing for a right to compensation, and by absolving certain players in the new economy of all responsibility to the detriment of creators, Bill runs counter to the modern orientations that Canada has adopted in the field of copyright.
Bill creates new exemptions for private copying. I will limit myself to the possibility for users to make private copies for later listening or viewing. The problem with this new exemption is that the numerous conditions for its implementation cannot readily be verified. How could a rights holder determine whether a user has retained the copy solely for the time necessary to watch the program at a better time? And what does "the time necessary" mean? A week, a month or a year? It's not defined.
It will clearly be impossible to verify whether the conditions of the exemption are met. Consequently, rights holders will be able to exercise no control over copies made by users, and, in actual fact, consumers will ultimately do what they want.
The bill provides for no compensation for rights holders whose works, performances and sound recordings are produced in that manner. And yet it would have been possible to expand the private copying system to include audiovisual copying as is the case in France.
Another stumbling block in Bill is the issue of technical protection measures and recourse offered to rights holders. Bill C-32 contains provisions prohibiting the circumvention of technical protection measures.
However, this opportunity for rights holders to put these measures in place is quite theoretical, in the case of performers, because they are not the ones who make the media incorporating their performances available to the public.
I would also like to emphasize that virtually none of the works that have been produced to date are equipped with these mechanisms or locks. And virtually all works circulate on the net through illegal downloading networks. This therefore means that it will never be possible to protect those works, which nevertheless enjoy immense popularity.
Bill does not come close to creating the necessary incentives for these TPMs to be effective in Canada. Most rights holders cannot afford to institute proceedings to collect to the paltry sums provided for under Bill C-32.
Another matter addressed by Bill is Internet service providers and their obligations with regard to copyright violations. The proposed amendments provide for a "notice and notice" system rather than a "notice and withdrawal" system that would require the service provider to withdraw the material in violation of copyright, as in the United States, for example.
The creation of this kind of obligation would have given rights holders real means to put a stop to the violations, and to do so quickly, thus limiting the economic damage caused. Internet service providers are absolved of responsibility for copyright violations that are committed on their networks, whereas they benefit from them to a large degree.
In another connection, Bill introduces new rights for performers. Although the UDA approves these additions, it deplores the fact that they are applied only in cases where the performance is fixed in a sound recording.
Consequently, performers whose performances are fixed in a medium including a visual aspect, such as music DVDs and digital audio files containing videoclips, do not enjoy the exclusive right of reproduction or other rights created by Bill . This distinction is unfair and serves no purpose.
Furthermore, with regard to these new rights, Parliament should have ensured that the rights initially granted to performers could actually benefit them by providing that those rights could not be assigned before they were even created by the act.
The utility of this kind of transitional provision is not merely theoretical. There are practices in the industry whereby producers request that performers assign all copyright over their performances.
Lastly, Bill grants moral rights to performers, a fact that the UDA is very pleased about. However, we note that the moral right of a performer is recognized only where the performer's performance is given live and fixed in a sound recording.
It follows that artists whose performances are included in an audiovisual or cinematographic work will not enjoy a moral right over that performance.
The UDA notes that Bill provides that performers may be led to waive their moral rights, which poses a serious problem from the standpoint of Quebec's civil law.
In conclusion, I would say that, unless it undergoes significant amendments, Bill should be abandoned. While it claims to be modern and to favour creators, it in fact favours the users and businesses that benefit from their work.
Thank you.
:
It's a theoretical solution because developing software to install a digital lock costs money. These aren't big producers. The performer in this case isn't necessarily always the producer. The performer can't afford to do it, unlike the producer who can.
Furthermore, you know that the major sound recording producers have abandoned the digital lock model. I'd simply like to emphasize that for every digital lock there is a key. From the moment there is a key, creators can allow copies to be made, which will be distributed over the Internet.
So the solution, in the field of copyright in general and even in the book sector, is to provide access to works. That's the solution that has been selected. On the other hand, the idea is to provide for a right to compensation, which grants access to works and enables creators to be compensated.
The digital lock route is therefore a dead end street for us and one that the major producers have even abandoned. Consider the example of iTunes and Sony, which have decided to remove digital locks from their CDs and downloads to permit wider distribution in response to consumer dissatisfaction.
:
It is extremely weakened.
The right to property is always exchanged for compensation. A model that we can think of and that respects that is the blanket licence. Some countries are increasingly moving toward that model, under which access is granted and, in exchange, compensation is paid to the collective societies.
So that's entirely conceivable. As I said earlier, I haven't seen any study showing that citizens, consumers, have access to fewer works. I would say that, on the contrary, what we're seeing is that authors are receiving less revenue.
In my view, the Copyright Act is not an act that will suit everybody. It's an act based first of all on the principle of the author's ownership.
First of all, good afternoon, everyone.
Good afternoon, Mr. Azzaria. I wanted to answer one of the questions that you asked at the end of your presentation. Then I'll put some questions to my friends from the UDA.
You're wondering why the government hasn't included the following right in its Bill . That's because, as you noted, all revenue is taken away from artists under Bill C-32.
For the government, this is a loser-loser-loser situation. There is no respect for artists. Earlier we saw how Mr. Del Mastro addressed Ms. Atwood.
Furthermore, with this bill, the government impoverishes artists and culture; it establishes a main barrier to prevent the Copyright Act from being modernized; it prevents itself from combatting illegal downloading and also fails to comply with international treaties.
This kind of loser-loser-loser situation is incomprehensible. Bill strips artists of all their revenue streams and gives them no others.
Mr. Legault and Ms. Morin, welcome. I've had a question for you for some time.
The , James Moore, has often said that Bill addresses four of the six concerns of the UDA and Artisti. Now that you're here together, you'll be able to answer me.
Is that true? And what are those concerns?
:
There have been many technological revolutionaries in history. University courses are full of studies about Gutenberg, Thomas Edison, and Henry Ford. I'd suggest Karlheinz Brandenburg should be included.
Karlheinz Brandenburg perfected the MP3. He took audio analog files and with very high rates of compression and a very low bit rate he destroyed one of the biggest entertainment industries in history, without meaning to, but that was the effect, because it was so easy.
Let's suppose a friend comes over to my house and says he's got this great CD I should listen to. I put the CD in my computer and I make a copy. It takes all of 20 seconds. I give his CD back to him. Then because I think it is a great song, I e-mail the song to my daughter, saying that she should really check out the song. She listens to the song and thinks it's great, and she might e-mail that song to two or three of her friends.
It could be argued that this is all lost revenue, or it could be argued that some people actually would buy a copy. It's hard to define exactly what's going on with the copying. It seems to me there have been numerous attempts to, as the record industry says, put the genie back in the bottle. They thought they would ignore the technology, and that didn't work. Then they decided they would sue a lot of kids to teach them to respect the rules, and 35,000 lawsuits later, the kids moved on to other things and it didn't restore the market.
Now the Conservatives are working on this belief that if they shut down isoHunt and they put digital locks in place, somehow the market will come back. I think that is an absolutely naive belief. That's not to say anybody supports what's happening with isoHunt, but I don't know anybody who goes to isoHunt. The copying that's being done all across Canada, all across the world, is by people trading music because they love it.
I'm asking what our solution should be. It seems to me in 1997 Canada came up with a solution when cassettes were being recorded, and that was minuscule compared to what's being copied today. The copying will go on regardless of isoHunt, regardless of lawsuits, regardless of shutting down BitTorrent. Does it not seem that we need to have a revenue stream in place that we've already had as a principle to ensure that artists get something out of the copying? Isn't that the principle of the private copying levy?
:
Part of the solution would definitely be to have an exemption in the private copying system for everything that can potentially be used to copy music, for all devices that are designed, created and marketed to make copies of musical works. That's one of the possible solutions.
On the other hand, you're getting into a broader debate, concerning illegal exchanges that are currently being done over the Internet. In their briefs, the UDA and Artisti have advocated a basic solution in which there should at least be a "notice and withdrawal" system. Such a system would make it possible to withdraw content as soon as there is any indication of illegal activity on the Internet and thus to prevent files from being increasingly exchanged and from being accessible to more people illegally. That's one option.
We also advanced a model during the consultations that had been developed in France by Mr. Patissier. That model also calls for payment of financial consideration that would be collected by Internet service providers. They benefit—perhaps involuntarily—from the significant economic impact of illegal downloading. Whether we like it or not, with illegal downloading, there is very high bandwidth use and, as a result of that heavy traffic, providers can charge ever-increasing amounts to download more content.
:
Thank you, Mr. Chair, and thank you to our witnesses for being here this afternoon.
Professor Azzaria, in your opening statement you used some terms and descriptions of Bill . For example, you said you thought it was a bit of a legal puzzle. You also said you thought it was opaque. I might suggest that those descriptions more appropriately apply to some of the presentations we've heard before this committee, including the ones today.
In any event, I'd like to try to get some more specifics, because you've made some broad statements.
As well, in your opening statement you said you thought the bill needed a little bit of housekeeping, but then in a response to a question you suggested the whole thing should be scrapped. Which is it?
:
I'm going to answer in French.
In my introductory remarks, I merely set the table. We can definitely say that the bill is confusing, that it is unclear, as I said earlier. And here is evidence of that.
When I present this bill to my law students, they have to take two or three hours to understand what it means. It's quite something for law students not to understand a federal bill. They have to refer to the act, ask each other questions and discuss the matter amongst themselves in order to arrive at an understanding of what it might mean. They wind up thinking that a judge may explain it to them one day. There's a problem here. I could give you a number of other examples.
I've already cited the example of the definitions of "fair dealing for the purpose of... education", "lesson" and "for instruction", which are in the bill and are being added to other existing definitions.
For example, the difficulty in understanding the aim of the proposed subsection 27(2.3) constitutes evidence for a legal proceeding. I challenge all of you to explain what the proposed subsection 27(2.3) means. It is one way of prohibiting Internet service providers from providing Internet services.
:
I was here when Mr. Manley came and testified before the committee. Personally, I'm trying to get a more comprehensive perspective. That's why I'm telling you that, when we look at the whole, we see that it is opaque.
Some might say that they're very pleased because they're saving $25 million, of course, but, on the whole, it may not be that true.
I would even say that, in Quebec, I'm not sure the education community is that pleased about the technical protection measures, for example. I've heard a lot of people from that sector in Quebec, in the universities, among other places, say that this is a problem. People are being told that they have access to works, that they qualify for exemptions, but that, if there is a technical protection measure, they will no longer to be able to enjoy that work.
When you dig a little below the surface, you realize that there definitely isn't any consensus. The consensus is based on details. In my view, the people applauding are only there for very specific interests. I'm trying to offer you an overview that addresses the effects that this act could have.
:
Professor Azzaria, that's a very interesting concept you're suggesting--
A voice: It's radical.
Mr. Ed Fast: --that the Supreme Court of Canada has no higher court that supervises it, especially coming from a law professor.
Let me ask you one other question, and that has to do with your statement. You made a statement that Bill , with the amendments it makes, does not comply with our international obligations. Yet, on the other hand, you said that we are, with this bill, in fact implementing the WIPO treaties.
So you're saying that there somehow is non-compliance, and yet, on the other hand, there is compliance with WIPO. Which is it?
A voice: It's opaque.
Mr. Ed Fast: Is it opaque? Is that your position?