INDU Committee Report

Dissenting Report from the Official Opposition Conservative Party of Canada on the Statutory Review of the Copyright Act

The Conservative Party of Canada members of the Standing Committee on Industry, Science and Technology would like to thank all the witness who appeared before the committee on this study, as well as all of those who submitted written briefs. Overall, we feel this final report includes many good recommendations that will improve Canada’s copyright regime for users and rights holders alike. However, there were two specific items for which we could not support the recommendations in the report and in light of these concerns are presenting the following dissenting recommendations.

Artist Resale Right

We heard from several witnesses who requested Canada introduce an Artist’s Resale Right (ARR) in Canada. This right exists in some other nations and provides for a payment to go to the original artist when a gallery or art dealer sells a piece to a customer. Specifically, the artist would receive a piece of every subsequent sale after making the original sale themselves. The suggested number we heard from testimony was 5% of the sale being returned to the original artist.

The Committee heard several objections to an ARR in Canada. The first is that the sale of a painting or sculpture is a sale of a tangible good, as such, it is not appropriate for this topic to fall under a copyright review. While a creator may maintain copyright on a work, such as a song and license that work, they maintain the original version. If an artist sells a painting, that painting is now owned by another and they possess ownership rights. It is our opinion that copyright law is not the proper avenue to address this request.

A second problem is that, as a tangible good, for the Federal Government to implement such a right could face constitutional challenges. Section 91(23) of the Constitution Act, 1867 provides Parliament with the power to legislate over copyright matters, but the ARR could fall under provincial legislative powers under its section 92(13). If a province wished to proceed with such a right that would be their prerogative to do so, but it is outside Federal jurisdiction.

There was also the challenge of not having enough time in the study to explore alternative recommendations to an ARR. There could be other policies the Federal government could enact that could achieve the goal of an ARR, namely to ensure artists are justly remunerated. This issue merits further study.

The Conservative members of the Committee do not think it is appropriate for the Federal Government to implement an ARR in Canada.

Recommendation 1

That the Government of Canada not follow recommendation 9 in the main report and do not seek to implement an Artist’s Resale Right in Canada.

Crown Copyright

Other than the unanimous agreement from witnesses that the Copyright Board should be reformed, the only universal point of agreement among witnesses was that Government should not continue to enforce Crown copyright. There was disagreement over how specifically the Government would change the Crown copyright rules, but no witness supported maintaining the current regime. While we heard from witnesses that the Committee should hold off on changing Crown copyright until certain court cases are ruled on, we feel it is important enough a topic to make a recommendation at this time.

The concept of copyright is designed so that creators of works can be remunerated for those works in a free market. Without protections, those works could be stolen and used by others for their own profit. These protections do not need to exist when the creator is the Crown. Works created by the Crown are inherently funded by the public and created in their interests. As such, they must belong to the public, and be freely accessible at any time. All laws, documents, official orders and court decisions are the property of the public and must be available to them.

We do not feel that creating an open license for Government created works is sufficient. This will still express Government ownership of these works, when the owners are the public who paid for their creation. There are also already adequate protections to ensure that sensitive material, such as works created by the Ministries of Defence or Health, are withheld from public view. There do not need to be any copyright protections of those works. If the government determines they have lost classified material, they are not going to remedy that situation through copyright protections.

Works that are funded by Government, but that Government does not directly create, such as those created by Government funded research or grants, should also be publicly available. Works that are paid for by the public and produced for the public good belong to the public and should be freely accessible by them. We also believe, however, that in certain cases when producing a work has significant cost, Government may employ a cost recovery model for public access to that work.

Recommendation 2

That the Government of Canada introduce legislation amending the Copyright Act to completely abolish Crown copyright.