:
Good morning, everyone.
We're going to call this ninth meeting of the special Legislative Committee on to order.
I'd like to wish everyone a happy new year, now that we're back in action, moving this bill through the legislative process.
As part of that, we now have a new clerk, so I'd like to introduce to the committee our new clerk, Andrew Chaplin. Welcome, Andrew.
For the first hour we have a number of witnesses. We have Alain Pineau from the Canadian Conference of the Arts. We have Bill Freeman from the Creators' Copyright Coalition, as well as Marvin Dolgay, president of the Screen Composers Guild of Canada.
We will have five minutes from each of our witnesses and then we'll start the questions around the table.
Mr. Pineau....
My name Alain Pineau and I'm the national director of the Canadian Conference of the Arts.
I will jump immediately to the second paragraph.
When it comes to copyright, we at the CCA have members who are rights holders and members who are rights users. So we are quite sensitive to the position you may find yourselves in as lawmakers when it comes to this prickly pear.
[Translation]
It is from the broad and unique perspective of the Canadian Conference of the Arts that I come here to comment on Bill . I will concentrate on the big picture and let our member organizations propose specific amendments to ensure the Copyright Act really works for the benefit of the Canadian creative economy, of Canadian consumers and, obviously, of our artists and creators who should be at the centre of our preoccupations.
Copyright is a key piece of any national digital strategy and should be one of the cornerstones on which Canada defines its place in the global knowledge economy. Failure to amend the legislation and salvage 's more positive provisions could severely compromise Canada’s cultural and economic performance.
I am going to skip the next two paragraphs.
[English]
Let me start with the positive.
First, we all agree that it is high time that Canada update its Copyright Act, and we thank the government for attempting once again to bring this important piece of legislation up to date and in line with our international obligations. We share the urgency, but not at any cost.
Second, it is clear that Bill satisfies a number of people, particularly in the corporate world and the entertainment, software, recording, and cinematographic industries. Our members rejoice that those components of the cultural sector are satisfied with the bill, so I am not here to dispute the lists of happy campers, which Mr. Del Mastro has quoted often, both in the House and here, but I will point to the still longer list of people for whom Bill C-32, as it now stands, is hurtful.
Third, on the positive side, Bill contains elements that are viewed as positive by artists, creators, and cultural workers in general. I refer here to the distribution right, the reproduction and moral rights for performers, the length of protection of sound recordings, and the rights to photographers.
Let me now move to the negative aspects of Bill . The bill's main flaw is that it fails to recognize the existence of at least two very different kinds of markets. The bill proposes a one-size-fits-all approach, which clearly satisfies the big players and all international company interests but which is far less important to the majority of Canadian artists.
The proponents of the bill argue that it gives artists and creators the tools necessary to protect and monetize their work and develop new markets: they simply have to put digital locks on their works and resort to the justice system to have their rights respected. Locks trump exceptions, which has Professor Geist up in arms and does not satisfy the education community either.
But since locks are not an option for most artists and individual content creators, the bill is rightly perceived by them as a de facto expropriation of their property rights without compensation.
The lock-litigation approach is disconnected from the realities of life of most Canadian artists and creators. The world of most Canadian artists is not that of Ubisoft or that of CRIA. Forty-two per cent of Canadian artists are self-employed. They don't have the resources to monitor Internet and wireless users to see if they are infringing their property rights. Because they are busy creating their art and developing new business models that seize upon the opportunities of direct access to their audiences, they don't have the time or financial resources to launch complicated court cases against those who illegally copy their work, whether for commercial or non-commercial use.
[Translation]
The unprecedented YouTube exception and the broad fair dealing purposes included in C-32 turn current copyright law on its head by signalling to users that they can infringe copyright as much as they want until someone sues them for damages. Even these are limited by the bill in such a way as to favour intentional infringement. To have their rights respected, the creator, publisher or producer must demonstrate that the market for their works has been significantly damaged, a notoriously difficult burden of proof.
The challenges they may face are perfectly illustrated by the case of Claude Robinson, who has been in litigation for the past 15 years to defend rights, which this bill will jeopardize further if not amended.
[English]
For those of you who are not familiar with Claude Robinson's case, I've added a summary at the end of this presentation, which of course I will not read.
The precarious situation of self-employed artists was recognized by a previous Conservative government when it adopted the Status of the Artist Act in 1992. This act created the possibility for individual artists and self-employed creators to be represented by collectives.
In order to facilitate access to their works and ensure proper compensation, over the past 20 years artists have established a number of organizations responsible for collecting and distributing royalties to artists and for defending their interests in front of regulatory bodies and tribunals. Collective societies provide consumers with easy access to copyright-protected content and rights holders with efficient management for many uses of their works, replacing numerous uneconomic, low-value transactions between creators and consumers, for their mutual benefit.
One of the core problems--
Marvin Dolgay and I are representing the Creators' Copyright Coalition. Mr. Dolgay is a musician and composer and the president of the Screen Composers Guild of Canada. He's one of Canada's leading composers of music for film and television. He's also the vice-chair of the CCC.
I'm Bill Freeman. I'm a former chair of The Writers' Union of Canada, and I'm the chair of the Creators' Copyright Coalition. I write books for children, adult non-fiction, plays, and documentary film scripts.
We're here representing the CCC, an organization of 17 of the major creative groups, which represent about 100,000 creators.
I understand that you have received our broader brief. I'm not going to go into that in detail. I'm just going to make some additional comments.
When Canadians think of creators, they usually think of the rich and famous, but Marvin and I are much more typical. Like small business people, we earn our living from different sources. We do a little better than most, but surveys show that incomes of creators are low, somewhere between $15,000 and $20,000 per annum, from their creative works. Many have alternate jobs. That's how they support themselves and their families.
Creators believe that copyright legislation should be designed to encourage creation. Writers, musicians, visual artists, actors, and other creators are on the very cusp of the digital revolution, and that revolution should stimulate a flurry of new creations. But if exceptions are created in the Copyright Act so that there's no protection for their work, it could become a dead zone for professional creators, because they cannot earn a living from the material distributed on the Internet. At the moment, we fear that Bill will create that dead zone.
Let me make three general points about Bill C-32. First, every creator we know about wants his or her works to be widely distributed. We don't want it locked up. That's why they've gone to such effort, after all, and the pain, to create their works. But they do want to be paid for what they do. The principle guiding the act should be payment for use. It's as simple as that. Bill C-32 goes in the opposite direction in some cases by making a host of new exceptions, and those exceptions will be damaging to many creators.
Second, Bill C-32, frankly, is filled with confusion. We've been told by lawyers that it's overly broad and unclear in many places and will lead to complicated litigation that will cost millions of dollars and will take years to resolve. That's probably the worst thing you can do, because creators will have to pay for their share of that litigation. All that will happen is that you'll enrich the lawyers, and it'll come out of our pocketbooks.
Third, the Internet has changed the business model for almost every creator. The secondary use of material--that is, the chapter of a novel excerpted in a public school or the song on the radio or the audiovisual clip--is increasingly how works are being distributed today. There's nothing wrong with that. It's collective societies, though, who manage those secondary rights for creators, and the legislation, we feel, should strengthen the collective society. Bill , in many instances, does just the opposite. It weakens SOCAN, certainly Access Copyright, and all the other collective societies that manage rights.
I'm going to ask Marvin to make some comments on the impact of Bill .
:
Thank you, Bill, and good morning to everybody.
I earn my living solely as a creator. I'm a musician and a screen composer. Like the vast majority of my colleagues, I'm not a big star, I'm not a household name, I have no T-shirts to sell, nobody pays big ticket prices to see me, and there are no product endorsements in my future.
In actuality, we make our primary living from secondary income streams. I'm a member of SOCAN, SODRAC, CFM, and ACTRA. These collectives efficiently distribute the revenues collected from our rights to us. Be aware that even with all these revenue streams, none of these income sources provide a decent living on their own. We rely on the strength of our combined collectives.
Bill , as written, is meant to modernize consumers' access and use of copyright-protected works. Let me be clear: we want the consumer to consume our works. That is how a successful business model works. However, our ability to make a living could be stripped away with Bill C-32's pages of exceptions, while others are making money from our content.
YouTube generates money from content, but the bill creates an exception so we do not get paid. Broadcasters generate money from content, but the bill creates an exception, so we lose our income from broadcast mechanicals. Digital recording devices generate money from the very existence and essence of our content, but the bill creates an exception that effectively eliminates our private copying royalty income. Again, we do not get paid. Educators value and use our content in the classroom, but, again, we do not get paid. This is not balance.
What my colleagues and I need is simple. We need to be treated like any other legitimate business sector that creates a product of value. We want our end users to have access to our work and we need to be paid accordingly for its consumption. I'm not a lawyer, a lobbyist, a politician, or a bureaucrat. I'm not an educator, a broadcast or ISP executive or employee, but if I were, there would be no question that I would be paid for my work.
We are very small businesses, and in order to survive we must be allowed to have the tools to receive payment for the success of our inventory.
Mr. Freeman and I look forward to answering any of your questions. Thank you very much.
Mr. Pineau, you have indicated in your presentation that the major problem with Bill is that it fails to recognize the existence of two very different kinds of markets. You have said that the bill proposes the same solutions for both markets. When I was reading that, I told myself that it really is a key aspect. It really is a question about striking a balance between creators and broadcasters. And we learned that this had been the case for all legislation on copyright.
You are saying that creators are the injured party. You used the example of the digital lock. Could you tell us more about the imbalance you have noticed, especially in terms of digital locks? We see very clearly that the bill is certainly not built around remuneration for artists. In fact, as you also mentioned, they are being deprived of sources of income.
We are also under the impression that the people who designed the bill think that families are going to buy two identical CDs or they will download things twice if there's a digital lock. I prefer not to start labelling this way of seeing things, but let's just say that it's completely ridiculous.
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I have to say that it is ultimately a technical matter. Once we have the big picture, perhaps there will be obstacles to overcome. We haven't explored that avenue. I'm not sure whether it can be done or not.
In our view, it is better to continue living in the present state of uncertainty. I am going to continue recording my shows so that I can watch them the next day and not go to prison. We will continue to lose income, but at least we won't be eliminating the $126 million that are currently flowing through the system. It has been proven that these figures are reliable; we have taken a close look at them. Everything is distributed in amounts of roughly $400,000 or $500,000. I don't have the exact numbers; we would have to add up the numbers from the various associations and those who get money.
I think that's what you have to consider. What is good for some is not good for others, for whom things are more complicated. Right now, I am telling you to do what's good for some. It is unfortunate, but you are elected to deal with difficult problems. And let's come back next year.
Thank you, gentlemen, for coming today.
The issue of establishing a new copyright regime goes to the original issues of what copyright was based on, which is remuneration and the public's right to access those works.
The government says this bill will restore the market. But it seems to me, from my many years of trying to feed my family on copyright, that a market is based on remuneration. You can't create new business models unless there's a way that you actually get paid for it. And the criticism we're hearing is that this bill, while giving certain rights for people to access works, has been called an attack on collective licensing.
Is it an attack on collective licensing?
:
I think there's little doubt that it is an attack on collective licensing.
Frankly, what we had been hoping in the creator community was that the legislation would strengthen collective rights licensing, because that's the way so many of us are getting income. It's the way the material is being distributed out there, and it's making it easy for distribution. We were quite surprised to see how it really is.
I've already given my view on the educational exemption. I would support the idea that Alain was talking about of clarifying it. Yes, we would support that. But this is going to be very damaging. I'm not a lawyer. I'm not going to speculate how it should be done, but please, please address this.
I think Marvin might have something to add about collective licensing in his field.
As a beginning remark, my Conservative colleagues are caught in some sort of time warp when they keep talking about iPod taxes. We're now in 2011. That was taken off the table a long time ago--
Voices: Oh, oh!
Mr. Marc Garneau: --and very, very clearly.
[Translation]
When we say businesses, we mean small, medium-sized and large businesses. We know that large businesses start off as small businesses. We recognize their fragility and we are trying to give them a chance to grow.
[English]
There may be parallels with artists. There are single artists who are individually self-employed. They may not want to become big organizations and may be happy to stay at that level, but I think what is true is that they are a little more vulnerable than larger organizations.
Now, one of the points that I keep hearing--and you brought it up today--is the issue that if you feel your rights have been violated, you have the option of going to the courts. However, most individual artists say repeatedly that this is an onerous and expensive process.
I have a question. You belong to associations and groups. Is there any service provided within those organizations and groups, if your rights have been violated, to provide resources to you to help with the litigation process? Or are you literally on your own?
Good morning and welcome, gentlemen.
Since I probably have less than five minutes to ask some questions, I want to go back to two specific issues.
First of all, I feel that anyone who calls royalties taxes is being intellectually dishonest. That’s like contravening minimum wage legislation and saying that increasing the minimum wage is a tax imposed on companies. That scares people too.
As to the question asked by the member on the government side about the $126 million, that's already proof that, when the government prepares a bill, it does not consider all its potential impacts once it is implemented.
I think he wanted Mr. Pineau to give him the figures because the government probably had not done its job.
The objective of the act was to ensure that the knowledge economy, broadcasters, consumers and creators get their money’s worth in an equitable way. The media have changed so quickly.
Let us remember that, at the first meeting of the committee when the ministers came, we clearly saw that innovation and technology played a major role; they pretty much came first. If the government went further, technology should allow creators to be compensated appropriately. They would just have to adjust the technology so that creators can be remunerated accordingly.
The question I ask myself is this. I have looked at most of your recommendations. They have to be adjusted for international treaties. On some points, doesn't the government go beyond international requirements? Are there any places in the world the government should follow and get some ideas on how to compensate its creators properly?
:
I regret not being able to answer your question on international examples as specifically as I would like. There are international examples that should not be followed, such as the United States. It is proven that the system they have adopted does not work; it is not a solution.
Somewhat controversially, France is adopting some measures that involve... Again we are talking about taxes. The people who are affected, the large companies, are talking about a tax on profit when it actually contributes to making works accessible to the public, by taxing the people who make money from the system at the source. And the people who are making money from the system are the distributors. Basically, that is where we have to go look for the money. Then we can give everyone the right to make copies as they please. We must adjust the amount charged at the source.
At home, we have a mechanism called the Copyright Board that is highly respected. For years, as part of a quasi-judicial process, this organization has created a balance between parties, specifically between the interests of users and those of consumers. That tribunal has an appeal process. There's a whole system in place. Why not use it wisely?
The direction the French seem to want to take is to collect the royalties at the source, from those who make money using the system, and make things accessible to everyone. It's a way to collect money just like the way taxes are used to fund the university system or the hospital system. I pay like everyone else and I use it when I need it, and it costs nothing, or almost nothing. It is a revenue collection system that goes hand in hand with expenditures and would make access easy in the case of intellectual property.
:
Thank you very much, Mr. Chair. Thank you to the witnesses.
I was interested to hear Mr. Garneau's comment that it's 2011 and they no longer support the iPod tax. It's almost like a weather forecast sometimes, Mr. Chairman. In 2010 they were arguing in support of corporate tax reductions as a means to create jobs. We know that is apparently now the devil. Apparently it's 2011, and that position has also changed. It is interesting, though; you never quite know what you're going to get when the positions are rapidly changing.
But you know what you're going to get with our party. You're going to get consistency, in particular when we stand on behalf of an industry and try to recreate a market that is under threat. That's what Bill C-32 seeks to do.
It was interesting that Madam Lavallée pointed out that the bill is really about industry versus creators, but there's a very important third aspect to copyright, which is the consumer. It needs to be fair to all three parts and it needs to be balanced. That's what we've really sought to do.
I was interested when we talked about fair dealing. First of all, I want everyone to know that a lot of the debate we seem to be having here revolves around the fact that I don't think people understand fair dealing. There's some confusion with it even here, with the members on this committee. But if you look, for example, at the education exemption on fair dealing, people keep on going back to the fact that you'll be able to make copies of entire works and there will be no compensation. That is fundamentally false. It's not true. Copying is not fair dealing--and it does not wipe out that collective. In fact, the educational institutions are not seeking to have those collective funds taken away.
Mr. Angus thinks we should get into and open the Pandora's box on fair dealing. What I'd like to know is whether you support the Berne standard and the five-part test that was established by the Supreme Court. Because this is the basis for fair dealing. That's what the bill works with. If you support that, and the bill doesn't take away fair dealing--in fact, it doesn't amend fair dealing--then I'm just not quite sure what the concern is.
:
There is fair dealing currently in the act--you are absolutely right--but by introducing elements for research and for comment and that sort of thing, there are a number of exceptions allowed that the tests can apply to. Yes, the three-step test should be included in the act.
My understanding is that by introducing education as part of fair dealing you allow a number of people, like the one who was quoted a minute ago, to say they can push the envelope. It is interesting that nine ministers of education, not ten, are for that particular clause. In Quebec, there is a recognition that there is a system in place, that there is a fair compensation that is due, and that we should maintain the system.
I'm no lawyer, but you have a number of legal opinions on the table, including from the Barreau du Québec, which says this will lead to litigation. I believe there are other witnesses who will be here in the coming days who will support the same point of view.
That brings me back to my original message: it doesn't work for individuals to go and sue in front of the courts when there is so much ambiguity built into the law itself.
:
Thank you, Mr. Chairman.
Mr. Chairman and members of the committee, thank you for inviting us to meet with you today.
The CMPA represents the interests of almost 400 companies engaged in the production and distribution of English-language television programs, feature films, and interactive media productions in all regions of Canada. In 2009-10, the industry was responsible for over $3.8 billion in production volume and the creation of over 90,000 jobs.
Our members produce Degrassi, Corner Gas, The Rick Mercer Report, and This Hour has 22 Minutes, to name a few. Our entire industry is also on tenterhooks to see whether Barney's Version and Incendies--both independently produced films--take home Oscars later this month at the Academy Awards.
As an association whose members are both owners and users of copyright, we recognize that copyright reform involves an exceptionally delicate balancing act. We will limit our remarks to five key issues that we believe are key to getting the balance right.
First, the CMPA fully supports the TPM provisions of Bill . Protection for TPMs is critical to ensuring choice for both creators and consumers in the digital marketplace. TPMs enable independent producers to experiment with different business and content delivery models. They also provide a vehicle for maximizing the range of content and services available to consumers.
Where TPMs are overused or misused, consumers can and do respond by allocating their entertainment dollars elsewhere. But without them, the digital marketplace risks becoming a digital desert where less and less high-quality, professionally produced Canadian content gets made. This would be a huge loss, not only for Canadians but for consumers and citizens, and also for international audiences who love the content our members produce.
Second, we were very pleased to see that parody and satire would be added as protected activities under the fair dealing exemption. This would bring an end to the current uncertainty regarding parody and satire in Canadian copyright law, which can have a chilling effect on free speech, including political speech.
We're confident that all members of Parliament would support an amendment that would give Rick Mercer an even freer reign than he has already.
Reynolds.
:
We know there has also been much comment about the addition of education to the fair dealing exemption. We share the widely held concern that its ambit is too wide if left undefined and would likely lead to considerable and costly litigation. Placing some definitional parameters around the provision is necessary and will provide much needed clarity for all concerned.
Third, we think that Bill C-32's inclusion of an enabling infringement section constitutes a very big step in shutting down the digital black market in Canada. Like other stakeholders, we would propose to slightly amend the section so that it would apply to services that are designed or operated primarily to enable infringement or that induce infringement. We would also recommend that the hosting and caching exceptions in Bill C-32 should explicitly not apply in circumstances where the service provider is enabling infringement.
As currently drafted, the hosting and caching provisions could inadvertently end up shielding massive commercial enablers, which we know is not the intent of the bill.
Fourth, while we fully appreciate the rationale for the user-generated content exception, our members are deeply concerned that it sets the creative bar way too low for what would constitute such content. What none of us want is a provision that might, for example, inadvertently permit a user to upload full seasons of Degrassi or Corner Gas to the Internet. In that scenario, the only thing that's being generated is lost revenue to the people who make Degrassi.
At a minimum, the exception should only allow an individual to create original, transformative, user-generated content for the person's personal, non-commercial use if all of the permitted acts can be considered fair dealings under the existing copyright law test.
Fifth, we would urge the committee to consider whether a notice and notice regime is really a sufficient mechanism for deterring widespread online copyright infringement. The simple fact of the matter is that merely sending letters to serial infringers is unlikely to get them to see the error of their ways. We therefore recommend that a provision be added to the bill that would allow an ISP to benefit from the bill's safe harbour provisions only if the ISP has adopted and implemented a policy to prevent use of its services by repeat infringers.
John.
Thank you for coming today. At the outset I'll say congratulations. I think the productions that are coming out of Canada in the last four or five years are almost unparalleled in terms of the quality of work that's come out of Canada since I can remember. I don't know why it is, but it seems to me there's a real renaissance in Canadian film, television, and independent productions. Of course, we want to make sure that continues.
I have a number of questions in terms of just trying to figure out how we're going to do this. The question of TPMs is certainly crucial to this bill. We certainly support the need to use TPMs to protect business models, to ensure that the investments creators make aren't just sent up the chimney as soon as their works are released.
You talk about support for the parody and satire provisions, yet if there's a digital lock on a product, they won't be able to excerpt it for parody and satire. Is there a balance so we can say if someone's doing it for parody and satire, they can circumvent the digital lock, or do you just say you have parody and satire, but if there's a digital lock, they don't have that right?
:
Again, I'm not an artist per se.
I thank you for your comments with respect to the quality of Canadian content having improved in the last few years. That's certainly something we're very proud of, and it makes our job of representing producers much easier when there's a broader public acceptance, both domestically and internationally, of our work. I really do appreciate those comments.
I think the difference with parody--and this goes back to the whole idea of definition--is that we're really trying to understand a true creative new use of something or making a really new work in the context of parody versus, again, abusing a mashup type of provision to effectively steal a copy of something, put a new top and tail on it, and say, “Now introducing season five of Degrassi”, and calling that a mashup. The difficulty in this conversation is it's a continuum. Where do we find that balance?
I think this committee is probably going to have some very interesting clause-by-clause work to do in that area, and we would be very interested in contributing to that process to the extent that we can, but we couldn't possibly answer for you today exactly how we would do that.
:
I guess it's that issue of the continuum, because I've spoken with documentary filmmakers who are very concerned about the digital lock provisions preventing them from being able to excerpt works that are under copyright. If anything has a lock on it, they're not going to be able to use it. I asked one witness, and they said, “You can take a screen shot of a computer.” You can't do quality work with a screen shot of a computer.
That's a legitimate work, where you're creating a new work, and you're going to have to make reference. If you're going to do a history of Canadian movies, you're going to have to be able to show those movies. If right now they're only under digital lock, you're going to have to find a way to do that. That, to me, is fundamentally different from saying, “If you don't like a digital lock, you can just take it off, and then you can go and do what you want with the film.”
Do you, as an organization, see an ability for us to narrow the language so that we are making sure it's not actually interfering with the ability of artists to create works?
:
As we said, Mr. Angus, I do not think Canada has a culture of suing kids for doing something like that.
I think the work of this committee, the work of this government, and this whole discussion brings about public debate on this very issue and a broader understanding, hopefully, in the minds of all consumers, particularly young consumers, of the activities they're undertaking and that they're not of neutral effect.
You say that these activities will continue. No doubt those attempts will continue until we change attitudes.
I think the work of this committee is both carrot and stick, if I can put it that way. It is about trying to create a bill that is fair to consumers, keeps consumers interested, and doesn't disincentivize them, in some respects, from wanting to consume Canadian content. By the same token, recognize that if we destroy those business models, we are not going to have any content for them to consume.