[Recorded by Electronic Apparatus]
Thursday, October 24, 1996
.1106 
[Translation]
The Chairman: Order! I will now call the meeting of October 24th to order. We are here to hear witnesses for our study of Bill C-32, An Act to amend the Copyright Act.
Today we will start by hearing from ACTRA, the Alliance of Canadian cinema, television and radio artists, represented by Mr. Alexander Crawley, president.
[English]
Mr. Crawley, the floor is yours.
[Translation]
Mr. Alexander Crawley (President, Alliance of Canadian Cinema, Television and Radio Artists (ACTRA): Thank you very much, Mr. Chairman. Good morning.
[English]
Ladies and gentlemen, thank you for this opportunity to represent our important concerns with this bill.
The way the location of this hearing keeps shifting, perhaps they're trying to give you a metaphor for the difficulties of dealing with copyright legislation. It's a bit of a maze. But I'm glad we're all here.
In addition to the written submissions of August 31, 1996, ACTRA wishes to make the following additional comments to the parliamentary committee reviewing Bill C-32.
ACTRA, the Alliance of Canadian Cinema, Television and Radio Artists, has represented professional self-employed performers and broadcast journalists working in Canada throughout both recorded media and live broadcast media, primarily in the English language, for over 50 years.
We have worked with successive governments and public agencies throughout that time in order to promote public policies and legislative measures that support the cultural and economic development required of any mature and respected country.
We believe Bill C-32, properly amended to attain the balance it intends between the interest of copyright owners and creators and those of various categories of users, can be a confident step along the path towards appropriate structural support for our cultural and economic development.
ACTRA supports the position of the Union des artistes that exceptions to the application of rights protections ought to be used sparingly and only where acceptable arrangements between rights owners and certain categories of users are not available.
Bill C-32 seems to give the proposed exceptions pride of place and to consider rights protection in light of the needs of users. We believe the object of the law ought to be exactly the reverse, that exceptions be designed as a last resort, to be negotiated by users and performers collectively.
This process of legislation has from the beginning been founded on principles of equity. The notion of equity and of equitable remuneration as it appears in the Rome Convention is simple to understand but very much compromised in this draft legislation. Remuneration should be equitable to the use of performances, and the derisory amounts that would be paid by the majority of broadcasters for the use of recorded performances cannot in all honesty be called equitable.
Obviously, we're referring to the bill as it's proposed. We're confident that you're going to adjust that.
We believe once a right is established in law, it is not acceptable to then compel the right owner to effectively subsidize the arts of culture and broadcasting. Performers nearly 40 years ago met all the arguments that today have been put by the Canadian broadcasters, and we do not now, in 1996, recognize them to have any more validity.
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We therefore fully support the approach put forward by ADISQ with regard to the scope of rights payments by broadcasters to performers and producers of phonograms. We might also point out that broadcasters are also the beneficiaries of this legislation, having been given their own specific protections in proposed section 21 of this bill.
Several of the interveners in this process have suggested to the committee that the introduction of performers rights constitutes a barrier to the use of works. We would remind you that in 52 separate jurisdictions, most notably in the European Union, performers' rights have long been established and enshrined in domestic legislation with no deleterious effect on the cultural industries in those jurisdictions. Moreover, we believe performers' rights protection enables talent to flourish and in turn play its major part in the vibrant and growing entertainment industries.
We must also point out that the failure to recognize performers' rights in audio-visual works under the neighbouring rights section is not rational. We are very familiar with the political realties that prompt this omission, and we are working diligently with our fellow performers' organizations around the world to bring about recognition of this historic anomaly so that it may be redressed. Again, we note that in a large number of countries, including all the member states of the European Union, performers' rights in audio-visual have existed for very many years.
In this regard, we associate ourselves entirely with the submission made by the Canadian Conference of the Arts, and in particular their comments on private copying and the blank tape royalty. We accept that the inclusion of such a scheme for audiotape is a first important step, but believe an audio-visual blank tape royalty is needed urgently. We would urge its inclusion.
The industries clustered around new communications technologies militate for rights legislation that enables the flow of various information between jurisdictions, including artistic works. The international treaty process is currently wrestling with the complex issues that arise partly as a result of these developments in communications technology. We fully expect this committee, and those who follow you, will be back at the copyright table - oh, joy; I'm sure you're glad to hear it - as soon as progress at the international level is made. We would like to see Canada take a lead internationally to promote the important principles dealt with in this legislation and in the treaty negotiations as a whole.
That said, we will attempt some practical suggestions that will make Bill C-32 ready to serve its interim but very necessary purpose. First, the need for immediate action.
ACTRA reminds the committee that performers have been waiting an unconscionable length of time for concrete action on performers' rights. The statutory recognition of such rights is essential to afford performers and our organizations the opportunity to pursue just remuneration under our negotiated agreements. We therefore urge that all necessary steps be taken to have the bill become law by early spring 1997. Performers have waited long enough.
Second, the need for ongoing reform. ACTRA welcomes the introduction of performers' rights. However, we must emphasize the point that our support for Bill C-32 is premised on the recognition that while this bill is a step in the right direction, it is only a first step and must be followed up soon. The information society is no longer a matter for futurologists - it's here.
It has become commonplace that technological developments in the production, distribution, storage and reproduction of audio and audio-visual works pose a challenge for legislators seeking to provide the creators of these works the protection that is the central purpose of copyright law. While we agree that rigorous application of the concept of technological neutrality ought to extend the usefulness of appropriate legislation, ACTRA welcomes the recognition on the part the federal government that Bill C-32 is not designed to address all the issues raised by the advent of the so-called information highway.
We propose that the government establish an orderly continuum of reform so that it will be possible to develop and enshrine incremental changes on an as-needed basis to the legislation governing copyright. A formal recognition, as in automatic review, might be a consideration.
I'd note that this is of course not uncommon. We adjusted this legislation to make NAFTA and the FTA possible, and there's no reason why it can't be done. But what I'm suggesting here is that, as you know, it's not considered to be, shall we say, the most politically sexy subject, and we're afraid it may fall off the table unless you put a mechanism in the legislation itself that more or less forces our political leaders to take their responsibilities in this area seriously.
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You know as well as any, and probably better, that it takes time to fully comprehend the implications of certain choices in the realm of intellectual property regulation. Successive regulators may need a discipline to ensure that they are prepared to wrestle with these issues on an ongoing basis.
Finally - and this is the true technical meat of this brief - there is the enforcement of performers' rights. ACTRA stated in its initial brief to the committee that Bill C-32 lacks an appropriate mechanism for the enforcement of contractual rights. Existing enforcement mechanisms are inadequate because of the expense and the delays of civil litigation, and a practical enforcement mechanism is required.
I want to give you a case history to illustrate this point before I finish up. About a dozen years ago, right here in Ottawa there was a company called Crawley Films, which no longer exists. I hasten to add that at the time I'm talking about, it was not under the stewardship of my family.
Crawley Films produced an animated children's series and paid all the rights to the performers and the remuneration and so on for a five-year period. They paid the composer of the score and so on, and proceeded to market this product. However, without informing the performers or our organization, ACTRA, it undertook to sell this product to a well-known Canadian broadcaster who is just short of having a network in this country - without naming names - for a period of ten years, as if it were unencumbered and as if the rights had been cleared for ten years.
When it hit the fifth year and we noticed that a couple of dozen performers were owed payments, naturally we got in touch with the broadcaster. He pointed out to us that he had no legal arrangement with us. We were merely protected by contractual obligations to the producer, who, alas, no longer existed.
There is, of course, a civil mechanism, but it was quite clear that for the collection of in that case approximately $140,000, to be distributed by two dozen people, the way commercial and administrative things work in this country for self-employed individuals such as us, we would have had to take individual cases to collect $2,000 or $7,000 on behalf of each individual. As you know - some of you are probably legalists if you're politicians - it's not feasible for us to spend $10,000 to collect $2,000. There's the nub of the problem. I could give you other cases.
So that is why we need an enforcement mechanism that provides an incentive for broadcasters, as a typical category of user, to make sure to clear the rights, to make sure the rights are unencumbered, before they proceed to exploit the works appropriately.
In our view, the Copyright Board must be provided with the statutory duty to hear complaints of performers and their societies in a summary manner in respect to violations of performers rights under part VII. The legislation needs some teeth, in other words, in order to fulfil its stated aims of protecting the rights holder. A performer, or his or her representative organization, would thus be able to file a simple complaint in a prescribed form and the board would be provided with the resources to investigate the complaint, make findings of fact and order compensation to be paid.
In addition, the tribunal ought to be provided with the statutory power to grant injunctions in appropriate situations and act as a receiver for amounts due as a result of any order. In other words, the tribunal should act as a one-stop enforcement agency in order to avoid confusion and multiplication of legal proceedings.
ACTRA thus proposes amendments to part IV of Bill C-32 so that the Copyright Board be statutorily empowered to award remedies as provided in new proposed section 34(1) of the bill, which reads as follows:
- Where a right has been infringed, the right holder is, subject to this Act, entitled to all remedies
by way of an injunction, damages accounts, delivery up and otherwise that are or may be
conferred by law for the infringement of a right.
Again, we are not here to stop distribution or use. We are here simply to ensure that such uses that take place have been properly authorized and that the users have every incentive to comply with their contractual obligations.
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In conclusion, ladies and gentlemen, ACTRA acknowledges the difficulties legislators face in reconciling the many divergent interests inherent in any exercise such as this. Performers have always been willing to negotiate fair terms for the engagement of their services. Indeed, Canada has shown itself to be a leader with the introduction of the Status of the Artist Act, which enables such negotiated agreements to bind the parties in practical, enforceable relationships that foster strong professional standards in an industry that, let's face it, drives the development of the oft-cited ``knowledge economy'' we are led to expect in the next century.
We sincerely hope Bill C-32 can add another missing piece to the structural support artists need to carry out our work. ACTRA stands ready to consult with the legislature, with any of you individually, with the government and all its agencies, to adjust the proposed bill and support its implementation in a forthright and timely manner.
Respectfully submitted this 24th day of October 1996.
Thank you very much. I'd be pleased to answer any questions you may have.
The Chairman: Thank you, Mr. Crawley. Mr. Leroux.
[Translation]
Mr. Leroux (Richmond - Wolfe): Thank you, for your brief and your comments,Mr. Crawley. I think that the committee also hopes that, through its work, it can be very active and ensure that the bill is dealt with properly. We hope that this long-awaited bill will in fact be passed by the House of Commons and implemented.
I would like to ask you a few questions that come to mind following your comments. But please tell me first whether you agree with those who say that the bill, which authorizes so many exceptions for holders of rights, performers and others in such important areas as education, libraries, archives and so on, sends out a negative message that encourages people not to assume their responsibilities with respect to the recognition of rights and to the requirement to negotiate with collective societies and representatives. The contention is that the bill conveys a dual message: it encourages people not to assume their responsibilities with respect to the recognition of rights holders, on the one hand, and on the other hand, it talks about negotiations. Do you agree with this analysis of the bill?
Mr. Crawley: Of course, we agree completely.
[English]
It's clear that exceptions - just listen to the language of it - ought to be exceptions. Unfortunately, this bill does seem to come down on the side of users instead of serving its primary function - to protect the creators of works that have value and to ensure that they have value.
One of the important roles of any piece of legislation, and certainly of political leadership in any context, is to educate the public as to the merits and the important issues that relate to whatever the issue is that's being legislated. In this case, there's no question that intellectual property education is a priority for the public to understand as well as all our related industries, from production to distribution to retailing. They must understand that rights legislation is there in order to provide growth for the industry.
As the member has suggested, we have collectives that are quite prepared to recognize their social responsibility in arriving at arrangements with educational institutions and with libraries. We fully comprehend the need for preservation copies and all of that type of activity, but there's a basic disrespect for our initial ownership, and in the case of performers, our own bodies, our own voices, our own images.
As we understand it, copyright legislation is there to protect the works and to create an economic incentive for artists of various kinds to engage in the work in the first place and create the value. We really believe there is an imbalance. I think it's partly a result of, we would say, from a cultural perspective, inappropriate reorganization of government under the Mulroney Tories and carried on by the current government, which has divided responsibilities for this issue between Industry, the old Consumer and Corporate Affairs, and Heritage, which used to be the Department of Communications, more appropriately. We preferred that earlier version and we hope we can get back to it by some insightful leadership in the future.
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So I think this is where the bias comes from. Consumer and Corporate Affairs always had the responsibility to look after the needs of users, as in consumers, or as we prefer to think of them, ``citizens''. That bias, I'm afraid, by dividing the policy development responsibility between those two ministries, has created an imbalance in this legislation.
We're very happy to see the heritage committee taking a close look at this. We hope you can rebalance it so that the legislation can serve its primary function. I assume there's accord around here that the function of copyright law is first of all to protect artists.
[Translation]
Mr. Leroux: To continue along the same lines, Mr. Crawley, a few moments ago you did suggest that you might consider accepting some exceptions. You said that in certain exceptional cases - you did use the word "exceptional" - that exceptions could be made. Could you please give me a specific example of an exceptional case of this type.
[English]
Mr. Crawley: Let's take the broad example of preservation copies, which is, I know, what the heritage associations and so on, a subsector of our cultural industries, have put forward to you. It's quite clear that any artist of any discipline would see the merit of making sure, especially when their work is in the recorded media in the first place, that a copy of that was preserved, because even CD-ROMs deteriorate after awhile. Obviously, one needs to preserve our early material.
For instance, as the vice-president of another organization that submitted a written brief to you, the Alliance for Canada's Audio-Visual Heritage, I can tell you that we have cultural treasures in this country that are disappearing. They're literally falling apart physically because the rights issues around them aren't clear. Obviously, the work that has to be done to clarify those rights has to flow from modern legislation.
That's an example of where obviously the rights holders in a given work could be approached to recognize the merits of a case that a copy has to be preserved. They wouldn't expect any economic remuneration from the preservation of that copy.
By the same token, we certainly want our works as Canadian artists to be available to Canadians, particularly young Canadians through the educational system. We recognize that it's in our interest for them to become familiar with our works and our experience and our talents.
We have always been open - in another context, as writers through CANCOPY agreements and so on - and willing to arrive at a reasonable arrangement with educational institutions for the appropriate dissemination of our works. But to ask us to simply give them carte blanche, to say that this is now free for you, and by the way, it's in digital format - which means, as you are fully aware, perfect copies can be made from it - is just too much of a leak in the boat.
Why would a young person go out and buy, for instance, a copy of a Canadian film they found interesting and was available in their school library on laser disc when they could simply take it home, shove it into whatever latest recording device they may have, and take a free copy? We take all those things into account - single copies for private use and all of those things traditionally part of a copyright regime.
Of course we are going to recognize those principles through our collective societies by organizing appropriate arrangements. If you look at our 54-year history, I think you'll see that we have always been willing to lean over backwards as organized artists to promote cultural development in this country. Certainly education and preservation would come under those headings. So those are two examples of these types of arrangements.
To simply take that right away from us a priori is really not very forward-thinking. It shows ultimate disrespect for the creators of the works.
We heard from our previous attendance that this committee seemed to be coming around on this issue, recognizing the principles at stake here. So we hope we will see some improvement in this bill and some narrowing of the scope of exceptions.
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[Translation]
Mr. Leroux: You spoke about the idea of an on-going review. We know that between 1924-1925 and 1985, nothing whatsoever happened. Nothing at all was reviewed. Now the second phase is underway. The bill provides that the legislation should be reviewed again in five years. Are you suggesting that the review provided for in the bill be part of an on-going review process and amended along these lines rather than being a one-time review after five years?
[English]
Mr. Crawley: Thank you very much for informing me. I always learn something when I come to the Hill. I must confess, I haven't done my due diligence on this. I didn't realize that mechanism was there.
I'm a professional freelance performer myself, and I don't pretend to be an expert on such mechanisms. But I'm reassured to hear that this has been considered in the bill.
I hope we won't have to wait five years. We very much expect that an international arrangement will come into play, possibly within one year. We may want to do adjustments to this bill collectively as a country. We may want to make some adjustments to this bill in light of that. I would hope that nothing in the bill would prevent us from doing so.
I'm reassured to hear that this automatic review is there. Thank you very much, sir.
[Translation]
The Chairman: Mr. Arseneault.
[English]
Mr. Arseneault (Restigouche - Chaleur): Thank you, Mr. Chairman.
Welcome, Mr. Crawley. I enjoyed your presentation.
I want to clarify a few things. When you listen to the witnesses, depending on which side of the table they sit on, whether they are creators or users, they have different opinions. But they do have one opinion that's common to both - that is, the bill favours the other side more than theirs. Either the creators are saying that or the users are saying that. We have to strike a balance.
You indicated that it wasn't a balanced bill at the present time, and that you hoped the committee would balance it off even more. You seemed to indicate two areas of great concern. The first was the idea of exceptions. Certainly that point of view has come forth from the creators. The users are preoccupied with that area as well.
We're talking about performers' rights here. It's a major step for Canada. It's a step we should have taken many years ago. Historically, other countries are ahead of Canada when it comes to performers' rights, as you indicated. Do other countries with performers' rights have exceptions in their laws? Are there no exceptions at all? Can you give us a perspective on that?
Mr. Crawley: I can. I can't give you highly technical information on that, although someone with me today was here with Union des Artistes the other day, and may be able to help with that.
Certainly there are exceptions. A whole variety of mechanisms has been laid out. People think the simple concept of les droits voisins applies the same in every jurisdiction. Obviously, there are many different approaches to this. There are exceptions, because artists -
The Chairman: Mr. Crawley, can I interrupt. If Ms Sand wants to join in, she is by all means welcome to do so.
Mr. Crawley: I'll give her the chance in a minute. In fact, it's timely that Katherine is here with me. She represents 70-odd performers' organizations throughout the world, and we're all working towards and concerned with these issues.
I'll let her give the details, but I would say virtually throughout the world artists have been willing to recognize that they want their works to be enjoyed by people of various economic situations, in educational applications, as I noted in my last answer, and so on.
So there are exceptions. It's not a seamless web. We're working on it. We're working in every context. Legislators all over the world are trying to make sure, now that we're in the information age, that information will be able to flow between our jurisdictions.
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There are exceptions. Realistically, we would not expect the concept of exceptions to disappear from this bill, but our analysis is that the balance is there in favour of exceptions, almost as if exceptions were considered first in the policy development and then protections were given a secondary role. I think it has something to do with where the responsibility resides within government. That's a large issue we can't solve at this committee, quite clearly. However, I think you can do something about it in this bill.
Perhaps Katherine can give you something on the international aspect.
Ms Katherine Sand (Secretary General, Fédération internationale des acteurs): One of the things this bill will do - we hope - is to bring Canada up to speed and enable it to become a signatory to the Rome Convention, which continues to be a very important instrument for the protection of performers' rights, despite the fact that it's rather old now - older than me, in fact, about 36 years old. It's not what one might call state-of-the-art legislation; nevertheless, it includes some important principles we are glad Canada is choosing to embrace, some very classic and important rights.
In terms of exceptions, I think Sandy put it very clearly in the answer to the previous question, that of course there are cases in which states may provide for certain limited exceptions - again, this is enshrined within the Rome Convention - for certain specific, limited uses. Sandy enumerated those perfectly, in fact, and doesn't really need my help, but private use is of course one aspect touched upon.
Second, there's the use of shorter excerpts in connection with the reporting of current events. That's something we might want to look at again, since the use of copyright material in the media is rather different now. The implications of digital technology obviously have to be considered.
The next, of course, is the provision for the ephemeral fixation by broadcasting organizations. This is included in your legislation. It's something we have some concerns about in the context of new technology. We believe there may be room for abuse if the exception is drawn too widely.
Then there are the exceptions for the sole purpose of teaching and scientific research. I think those are principles that have to be considered, but they shouldn't determine the structure of the legislation. One of our exceptions, as Sandy has said, is that they should be exactly that, and the performers and users collectively should be able to negotiate the scope of those exceptions in such a way that they do not undermine the protections afforded in the law.
Mr. Arseneault: I don't think there's an ephemeral exception in the law, as such. Is that your understanding?
Ms Sand: No, I'm sorry. It's being argued for.
Mr. Crawley: The broadcasters are looking for it. We understand in the case of radio that they want to transfer the work onto a hard disc and so on. But as experienced legislators, you must be aware that you don't put every situation into a law. It's broad principle we need to protect.
We are grown-ups. Artists are grown-ups. You've heard from some very articulate people.Mr. Turgeon the other day said it very passionately. We agree with virtually everything he said. We want to be realistic. We're not going to achieve all of that in this bill. At the same time, that category of user, the broadcaster - who's obviously getting some rights as well in this, and has much better resources to lobby for its position than we do, let's face it - ought to recognize that they're seeking a legal protection when there's a perfectly fine process for them to negotiate that.
We're not going to stop the flow of works through to being broadcast. We're simply asking for the first time, historically, to address the anomaly that they have a business that is highly profitable, despite some recent times they've had, and that is totally driven by our works. They turn around and sell advertising for it. That's fine. There's a certain promotion aspect. We know all about that. We've heard that story for many years.
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I'm reminded, however, of even our own public broadcaster coming to ACTRA only a few years ago, explaining to us that they had the opportunity to put a program on the air in Japan with NHK, and wasn't that exciting? Unfortunately, they wouldn't be able to pay us for it - but wasn't it great for our careers that some 10-year-old television series was going to be broadcast in Japan? Wasn't this wonderful?
It shows a basic disrespect. Everyone knows artists' primary drive is not a commercial one, but it's used against us so often. This is why we form strong organizations to try to redress that.
In terms of the ephemeral exception, we believe we're mature enough in this country that we don't need it. We're grown-ups. We can look after our artists. We understand. We're not going to stop the flow of works. We'll negotiate something with them so that there's no impractical cost there.
Mr. Arseneault: Mr. Crawley, I know my time is limited -
Mr. Crawley: I'm sorry. I do tend to go on a bit.
Mr. Arseneault: - but in terms of the exceptions, I think you've put your point forward quite well.
The other area is the Copyright Board being used as the enforcement mechanism. Is that type of procedure used in other countries very often, and what is the clear-cut advantage you see?
Mr. Crawley: First of all, I'll ask Katherine to think about it, although I don't expect her to be an expert on our particular Canadian version of copyright regulation.
We're very proud of the work our board does, by the way. We believe under this law it is being expected, I think, and ought to be expected, to take on a further responsibility as this intellectual property regulation becomes more complex. It therefore needs more resources to do so.
However, we are arguing for that ``one-stop shopping'', as we called it in the brief, because of the peculiarities I hope my case study with Crawley Films and Teddy Ruxspin illustrates. Canada is playing a leadership role in terms of the balance that has to be struck between contractual rights and intellectual property rights for artists. We've taken a step led by, let's face it, the Province of Quebec, which enabled the statut de l'artiste back in the 1980s. Finally, the federal government is seeing fit to put its model on the table, but we have had no luck getting provincial governments other than Quebec to recognize their responsibilities in this area.
This makes enforcement of our voluntarily bargained contracts very difficult to enforce in provincial labour jurisdiction. Until they recognize the merits of cultural development by instituting status of the artists there isn't a practical way for us to enforce our rights. We're therefore seeking the federal protection of actual intellectual property rights protection in order to have a place to go.
By the way, it's not going to put a huge strain on the resources of the Copyright Board. All it's going to do is send a clear signal to the CanWest Global-type people that it's no longer feasible for them to save themselves a few hundred thousand dollars at our expense. Now there's an incentive for them to say, well, if we don't have to go the board...and we're going to have to pay anyway, because clearly the contract states that certain payments are forthcoming.
So the simple institution of the mechanism would create the incentive. I don't think it would have to be used, or I would hope it wouldn't, by our honourable broadcasters -
Mr. Arseneault: But then it would be held once the law is passed recognizing performers' rights.
Mr. Crawley: No, not necessarily.
I'd love to talk with you further about this - perhaps when we have more time.
The Chairman: Mr. Peric.
Mr. Peric (Cambridge): Thank you, Mr. Chairman.
Mr. Crawley, what is the average income of the 10,000 members in your organization? I know they are probably starving artists and so on.
Mr. Crawley: Let me try to clarify that for you. It's not that meaningful, but the average income of members in our jurisdiction - they also practice their craft in other jurisdictions, such as live music performances; we have many members in common - is $11,000 per year. That's a bit distorted, because in fact many of them make far less than that, and a few make a bit more. It is possible to make a living as a professional artist in this country, but nobody is getting filthy rich on it, I assure you.
So the average is $11,000, hardly enough to bring up a family on.
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Mr. Peric: Can a company hire the artist on a full-time basis and pay him as a full-time employee to create and to perform for, say, a broadcaster?
Mr. Crawley: No. We have recognized, first of all, the integrity of the fact that our careers are self-directed. We are self-employed individuals. We have historically chosen to organize ourselves collectively on the basis that we are representing self-employed individuals. Each one of us is competing with each other member, as it were, for every job.
So there's no incentive for a performer to hire themselves to a company, because no job lasts more than two or three years at most.
Mr. Peric: Can I be hired for a certain period of time, for, say, two or three weeks to create a specific piece for a broadcaster and get paid for it?
Mr. Crawley: You can. If you want experienced professionals, you can't avoid recognizing our rights as self-employed individuals. There is a certain amount of non-union production at the lower level of production in which people are simply hired, their so-called performances are recorded, and they're paid off. The person can go on and exploit that work in any way they see fit without any further redress. Professional performers certainly don't indulge in that type of work.
Mr. Peric: Would they collect royalties for their work at the same time?
Mr. Crawley: No. That's the point. That's why that type of arrangement is relegated to very low-level production value - local commercial activity or information programming for a specific purpose for a small company or something. We're trying to educate them that it really is cost-effective to pay an actor as little as $200 a day to fulfil any obligations.
In a case like that, royalties are never payable because the product has lost its shelf life long before the period provided for in our initial contract. But if a performer works without the protection of a negotiated agreement, they're not going to collect anything later. That's the reality.
Mr. Peric: Thank you.
The Chairman: Mr. McTeague.
Mr. McTeague (Ontario): Mr. Chairman, in the interests of time I will be extremely brief.
It's rare that I have an opportunity to ask a question when I find that the presentation has been so well delivered. I hope that doesn't affect your ego or anything like that.
Sir, I wanted to follow up on what Mr. Arseneault said with respect to the Copyright Board, which you would give perhaps near-judicial powers and enforcement, etc. I was wondering if that precludes other creators from having a similar board or if you could see or envision perhaps in this board other creators having the same right or the same privilege for the sake of expediency, as you've outlined.
Mr. Crawley: Our suggestion is in a particular case. I tried to explain to you very quickly why we need an enforcement mechanism that creates an incentive for users not to unfairly exploit or infringe. I believe existing categories of rights holders are adequately protected by the current law or the law as proposed. I don't know that you need to add any more responsibility to the board. The board obviously already has quasi-judicial status. It sets tasks and so on for our composers and authors.
But, no, I wouldn't presume to speak for those other categories of creators. Everyone always wants more than they can get, don't they.
Mr. McTeague: I guess my concern is other creators who would want the same thing. They'd probably wonder what sets the performers apart here.
Mr. Crawley: But they already have it. Let me explain something to you. I'll go back to my case study, that animated series.
At the time it was discovered that Crawley Films - I hate the fact that it was called Crawley Films, but it was - had sold this thing to a broadcaster and didn't clear the rights, and the next five-year time period began, there was an immediate recognition on the part of the broadcaster that they had to satisfy the composer of the original score, Brian Huggett. Some of you may know of the Huggett family.
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There was never a question of him having to bring legal proceedings. They knew, because he was protected under copyright law, he had a case. They simply made an arrangement and paid him what was owing.
By the same token, they also knew we were in a situation where there was no mechanism under law for us to cost-effectively recover that $140,000. So they walked away from it. If I were in their position, if I were clever I'd probably do the same thing. You have to create the incentive in law. You're familiar with that concept.
I don't want to muddy this up by thinking about ``other creators'', as in authors, composers and so on. We believe they're well protected under Berne. We don't want to see any of their rights or their position taken away. By the same token, they're way ahead of performers in terms of modern legislation.
Mr. McTeague: Speaking of rights, one of the practices that seems to be part of the industry is the right or the desire or the need to assign. I'm familiar with proposed section 19 of our bill. It suggests that 50% be dedicated to the actual performer.
Do you see this as being strong enough to prevent assignment from taking away the 50% going to the people who really need it and for whom this bill seems to be created?
Mr. Crawley: I don't think it's the job of the law to make sure that performers organize themselves collectively in the appropriate way and impose their rights. Our ultimate goal - and perhaps several decades down the line we'll get it, maybe sooner - is in fact an inalienable right to equitable remuneration under copyright law. We don't have those words in this bill, and we fully understand why. We know the realpolitik of it.
As long as the bill says, yes, these payments are due and they must be equally divided between performers and producer, I think we're mature enough to work out the mechanisms in a cost-effective way. First of all, if you enlarge the scope and make it more than 13¢ a day to cover all of us, as Mr. Turgeon so eloquently pointed out the other night, we will find a way to make sure individual performers are not abused. We've done this historically and we'll do it again.
[Translation]
The Chairman: I will allow you to ask one final question, Mr. Leroux.
Mr. Leroux: A question and a half?
The Chairman: Certainly.
Mr. Leroux: If I understand the example you gave regarding Japan correctly, before being able to distribute elsewhere, producers have to settle copyright issues at home. That is more or less what you said. Before producers can export or distribute their product abroad, they have to settle any copyright issues at home first.
In the remedies you mention, you say that the exclusive right to collect levies with respect to copyright must be recognized. In addition, you refer to an instrument you find... In any case, my question is about this instrument, namely injunctions. You ask for the power to file injunctions against broadcasters and distributors. Do you think this is the only instrument available? Is it necessary or essential in the current situation?
[English]
Mr. Crawley: This is the classic third-parties problem performers face. Inevitably a work changes hands in the course of its shelf life, shall we say, to use a mechanistic term to describe a work of art. We need a mechanism to be able to pursue our rights that reside within that work.
We do see that Bill C-32 has taken an admirable step in this direction by attaching our contractual obligations to the work, in concept at least. But we're calling for the power of injunction, which we hope we will not have to invoke very often, just to send the message clearly to those third parties that they'd better check and make sure there are no liabilities attached to the work before they exploit it.
Katherine, would you like to add to that from your vast knowledge?
Ms Sand: As you say, one solution to this would be to give performers an exclusive right over their performance. In the absence of that, I think what's being proposed is quite a sensible and efficient stopgap, a way of making the rights meaningful in law.
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As Sandy said, this is an increasing problem in our business. There are now chains of distribution that are extremely complex, and I think the injunction proposal is designed to give time to establish that the rights really have been cleared and where, if anywhere, in the chain the rights have not been cleared. That's very essential.
Of course, in the digital environment, once you've broadcast, once it's gone out, it's after the fact, and you may well have made it possible for copies or retransmission to take place. Then it's much too late.
This is a not a devastatingly swingeing measure being proposed, but it is a way of making this law more efficient. It seems quite a practical solution to me.
[Translation]
Mr. Leroux: Thank you, Mr. Chairman.
[English]
The Chairman: Before you leave, Mr. Crawley, I would like to ask you for a brief comment.
Following on Mr. Arseneault's question about exceptions and the fact that many people have said they don't want the exceptions, you yourself appreciate that there's a need for some form of exception. At the same time, you say you should be left to negotiate your own arrangements, as grown-ups, between you and the broadcasters and so forth and the occasional authorities through some form of collective system.
How do you see the two in a marriage? Do you see the exception as a type of safety net, where you'd have the collective, the exception would stay there, and if you use the collective then the exception would apply? Can you tell me what you have in mind in practical terms?
Mr. Crawley: We would support the position put forward on this by Union des artistes. To characterize it as you have so eloquently done, the exceptions are the safety net - not the other way around. You might wish to simply allude to the fact that where various categories of rights holders have organized themselves into collectives for the purposes of stewarding those rights, no exception need apply, and the arrangements can be negotiated.
Surely we're a sophisticated enough jurisdiction that if those negotiations break down there are various measures of mediation and arbitration that can be applied if necessary. I don't think it will be necessary. We would certainly favour the recognition that exceptions be limited to cases in which it's either difficult to identify the rights holders or no collective applies in the jurisdiction.
The Chairman: Thank you very much, Mr. Crawley, and thank you, Ms Sand, for appearing today. You have helped our discussions significantly. We appreciate it.
Mr. Crawley: Thank you very much. Please don't hesitate to use the addresses on the front of the brief, including e-mail, if you wish any clarification.
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The Chairman: I'd now like to welcome the Committee of Major Legal Publishers: Mr. Glen Bloom from Osler Hoskin and Harcourt; Ms Geralyn Christmas, vice-president, editorial, Canada Law Book Inc.; Ms Ruth Epstein, publishing director, Butterworths Canada Ltd.; Mr. Yvon Blais, Les éditions Yvon Blais Inc.; and Ms Laura Wright, Carswell (Thompson Professional Publishing).
Mr. Bloom, the floor is yours.
Mr. Glen A. Bloom (Committee of Major Legal Publishers): We thank you for letting us share with you our views on the provisions of Bill C-32 that are of serious concern to the Committee of Major Legal Publishers.
The committee consists of the following four publishers of legal information who actively compete in the Canadian Market for legal publication: Butterworths, CCH Canadian, Carswell (Thompson Professional Publishing) and Canada Law Book. Each member of the committee publishes highly specialized technical legal information for lawyers, law libraries and government. To provide even greater access to its publications each member of the committee has joined CANCOPY.
The committee's submissions have been endorsed by additional publishers who are not members of the committee: Les éditions Yvon Blais Inc. of Montreal - Yvon Blais, president, is here evidencing his support - Western Legal Publications Ltd. of Vancouver and Maritime Law Book Company of Fredericton.
In general, the committee supports Bill C-32. The committee recognizes that in certain circumstances exceptions are proper. However, in our view certain of the exceptions as currently drafted require amendment to clarify the policy intent and to protect the legitimate interest of creators.
We will highlight, in our oral presentation, the two principal concerns from the committee's brief and conclude with our views on the submissions of the Federation of Law Societies of Canada requesting an additional exception.
To assist you in considering the committee's brief, we will first describe the publications of the committee's members: reports of judicial decisions; consolidated and annotated statutes; textbooks, manuals, digests, journals and the like; and electronic products such as CD-ROMs and certain on-line services. In addition to those publications, committee members offer same-day photocopy services for law reports.
The preparation and publication of law reports involves considerable expertise and skill. Geralyn Christmas of Canada Law Book will describe the process for you.
Ms Geralyn M. Christmas (Committee of Major Legal Publishers): Thank you very much, Glen.
It is quite a complex process. We publish for markets as small as 250 paying subscribers. We enter into arrangements with the courts across the country to supply us with paper copies of judicial decisions. Typically, they charge us a fee and we pay it.
We make a computerized record at the publishing house of each decision so that we know what we have received. In-house lawyers review each decision, note publication restrictions and determine which of our external law report editors, most of whom are academics or practising lawyers, should review the decision for possible publication in one of our law report series.
A member of the editorial board outside of the publishing house reviews it, decides on publication according to guidelines and decides who should headnote the case - that is, do a brief digest of the case and classify it. That person's selection is based upon legal expertise.
Selected decisions, the cases we will publish, are edited by our own editorial staff. Case and statutory references are verified and supplemented. Quotations are checked and the judgment is copy-edited. Judicial personnel are contacted if there are apparent inaccuracies in the law - and that, we do occasionally find. They are very busy, judges.
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The external editor writes the headnotes, classifies the case and returns it to Canada Law Book for editing. We typeset, proofread, revise and compile the case and prepare indices that go into the paper part. We then print, bind and distribute.
We promote the law reports to the legal market and ensure that the market is aware of the availability of the legal information.
Mr. Bloom: The statutes of Canada, as you will be aware, are generally available from a variety of sources, including the web site of the Department of Justice, although they are not always in consolidated form. Frequently, the only source of consolidated statutes of Canada - for example, the Criminal Code and the Income Tax Act - are those compiled and published by committee members.
As mentioned in our brief, the total size of the Canadian marketplace for legal publications is small and fragmented. The demand among lawyers and the public for diverse, specialized legal publications is as great in Canada as in the United States, yet the Canadian marketplace is approximately the size of the market for legal publications in the state of Ohio alone.
I'll turn now to the two issues that are of significant concern in our brief. First, the definition of library. The committee endorses the policy of confining the library exceptions to non-profit libraries. This is sound policy. However, a library that operates for profit, that operates profit centres or that is controlled by one or more commercial businesses should share its profits in the use of copyright materials with authors and publishers.
We are concerned that the definition of ``library, archive or museum'' contains a serious loophole. There's a good argument that a library established as a non-profit corporation controlled by its shareholders but not by only one shareholder would fall within the definition and could therefore take advantage of the library exceptions. Let me give you an example.
A library is established as a non-profit corporation by shareholder lawyers who practise for profit. In order to facilitate pooling library resources and serve each lawyer shareholder with photocopies of legal publications, the library could rely on exceptions enacted by Bill C-32. This would have a serious effect on the number of subscriptions for legal publications, and lawyers would profit from use of copyright materials without sharing their profit with the authors and publishers.
In brief, we recommend an amendment to the definition of ``library, archive or museum'' that would exclude such a library and confine the definition to a library that is truly a non-profit entity operating in a non-profit environment.
Our second major concern relates to document delivery services. Recently, many libraries have begun to offer revenue-generating documenting delivery services for legal publications at a fee in excess of the cost of reproduction, in many instances in direct competition with the photocopy services offered by committee members. Such services are currently being offered by libraries controlled by lawyers practising law for profit, such as the County of York Law Association library and the library of the Law Society of Upper Canada, and by university law libraries. These libraries do not share their revenue with authors and publishers of the legal information.
In our brief we propose an amendment to proposed section 30.2, which would allow a document delivery service that provides copies at a cost not exceeding the direct cost of making and supplying the copy. Of course, that exception would be confined, at least in our view, to a true non-profit library.
We also ask that you give serious consideration to the additional recommendations contained in the committee's brief. We do not propose to discuss them in our oral presentation, but we'd be pleased to answer any questions you have on those recommendations.
I would like to turn to the second matter we wish to address - the case for an exception for lawyers. As you will be aware, the Federation of Law Societies of Canada has requested an exception to enable lawyers to make copies of legal publications. The federation justifies this request as providing access to legal information. We vigorously oppose this request.
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As previously indicated, members of the committee make technical legal information widely available throughout Canada in both print and electronic form. Committee members have never taken any objection to lawyers making copies of legal information for handing in to a court. Simply put, access to legal information now readily available by reason of the publications issued by committee members should not be turned into a right for lawyers to copy legal publications.
Lawyers and law libraries who decline to subscribe to the committee's legal publications but who wish to have copies of extracts of these publications could do so lawfully through a reprography licence with CANCOPY or through the photocopy services offered by committee members.
Acceding to submissions by the Federation of Law Societies of Canada this would put at risk the continued existence of a viable, competitive market for legal publications. Document delivery services have caused a significant decrease in the number of subscriptions of Canadian law reports.
In addition, we have serious doubts that by enacting the exception sought by the federation, Canada would breach its obligations under article 2 of the Berne Convention.
We recommend that the issue of an exception for lawyers be fully considered by the government and all parties interested, together with the issue of Crown copyright in phase three of the copyright revision process.
We would be pleased to answer any questions you have on the issues raised in our oral presentation or in our brief.
The Chairman: Thank you, Mr. Bloom. Mr. Leroux.
[Translation]
Mr. Leroux: Thank you for appearing before us and for your brief. I think your suggested amendments and your points about the bill are quite clear. The approach adopted allows for a significant number of exceptions. Individuals and groups have told us that exceptions sent out a signal that was very difficult for major sectors, such as libraries, museums and archives, to interpret. They maintain that exceptions remove some responsibility with respect to the recognition of copyright and the negotiation process.
You do say in your text that some exceptions could be recognized if they are clearly identified. You mention that in the case of libraries, there is a Copyright Act in the United Kingdom which requires people to fill in a card stating that the material will be used for private, study or research purposes. The exception contained in the bill provides that there could be cases where, since there are no regulations, no one can decide, except the individual himself or herself who says that the material will be used for study purposes. So this individual is given the benefit of the doubt.
Does this example not lead you to think that all the exceptions might become a veritable jungle, and that, to all intents and purposes, many exceptions are not applicable, because they would be very hard to implement, in the area of libraries, among others? Does the example you mentioned with respect to copyright in the United Kingdom not suggest that there would be a huge amount of paperwork involved? So it would become a question of paper management. Can you explain how we could follow the UK example without it becoming an incredible administrative nightmare?
[English]
Mr. Bloom: In the instances in the U.K. where the photocopies are sold to the library patron, the library would of necessity be obliged to keep records for revenue purposes.
The documentation required under the U.K. regulations could likely simply be added to a receipt format set up by the library. We believe those practices in the U.K. are operating to some degree of efficiency. Certainly in many instances we do not wish to encumber the library, but we believe the procedures and the process set out in the U.K. legislation is a practical solution that provides the protection we wish to have for the publishers.
[Translation]
Mr. Leroux: I will now turn to a different subject. In your paper, you say that the bill could have a negative effect, and you use the word ``major'', and an economic impact on financial stability.
Can you describe and quantify this effect of the bill, and tell us what you would consider a ``major'' impact on profitability, and, to use your expression, financial stability?
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[English]
Mr. Bloom: Perhaps I could have Geralyn Christmas respond. She has some statistics that might be of interest to you in relation to particular publications.
Ms Christmas: Canada Law Book has been a law report publisher since 1898. One of our law reports is the Canadian Patent Reporter, the only report series that deals with intellectual property cases. In 1984 we had 340 subscribers to that publication. Today we have 258 subscribers. That does not mean the number of people practising intellectual property law has gone down, because it has not. It is because people are getting their information from other sources, and photocopying services certainly are one of those sources.
The other thing I can say, to give you an illustration, is that if three of those 250-odd subscribers decide to cancel their subscriptions and rely on another source - for example, a document delivery service for their material - I lose 2% of my annual revenue on that publication. It is not insignificant, yet I still have all the costs.
[Translation]
Mr. Leroux: Thank you, Mr. Chairman.
[English]
The Chairman: Mr. Peric.
Mr. Peric: I have no questions.
The Chairman: Mr. McTeague.
Mr. McTeague: Thank you, Mr. Chairman.
If the patient is ill, he would ask for the advice of the physicians, except the physicians happen to be the people here before me today.
I wanted to get an idea of what your definition of ``library'' is. More specifically, though, since you have difficulty with that definition, as it is not related to profit, how would you amend it? What wording would you use to make the changes that you seek?
Mr. Bloom: This is a rather technical point, and I hope we've conveyed the technical solution in our brief. Currently, essentially all that is required is a small amendment to say that a library is a non-profit entity that is not controlled by one or more entities operating for profit. So with a law association library or a private library set up as a non-profit corporation by a group of law firms, for example, there is not one entity controlling that library in that circumstance. There is a group of entities all operating for profit. So it's a rather simple amendment that we have suggested, and one that is followed in the Australian legislation that we have referred to in our brief.
Mr. McTeague: Among the membership of your committee, is there actual competition for, say, the patent information that you were describing earlier? Do Carswell and CCL do the same thing?
Mr. Bloom: Maybe I'll just hand out to Carswell and to Butterworths their copy of the Copyright Act, and I'll turn to Laura Wright of Carswell to answer the question.
Ms Laura Wright (Committee of Major Legal Publishers): This is as the legislation stood at the time that it was published. This is an instance of an area in which we do directly compete - with Butterworths in this case. An alternate consolidation of the statute is available to the marketplace. In connection with the illustration that Geralyn had on the patent cases, I was going to mention that Carswell attempted to enter the market with a competing law report publication, but we gave up because we couldn't get enough subscriptions to make it profitable.
Mr. McTeague: I'm interested in getting comments from you on how you would see your industry a year or two from now, from a financial standpoint, if this bill went ahead as proposed unamended? That is, what do you foresee if it went ahead without the two proposals that you have come forward with today? Will there be four or five of you here? Give me an idea of the financial impact.
Mr. Bloom: Let me first indicate that these publishers do compete. Certain of them are private, so financial information is not widely available. I will ask Butterworths' Ruth Epstein to address the question in a general scope.
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Ms Ruth Epstein (Committee of Major Legal Publishers): Across the board and in all subscription products, we've seen an ongoing decrease. I don't want to overstate that it's all related to photocopying - obviously, it's not - however, we hear directly and very bluntly from our subscribers that they've discontinued their subscriptions because they're photocopying our publications at the library, or that they used to have three subscriptions and now have one. We're seeing this pervasively, with law reports as well as commentary treatises and so on.
In terms of quantifying it in dollars, as Glen said, that's something we don't want to get into. It is a significant change in our business, though.
Mr. McTeague: I have just one final point, if I may, Mr. Chairman. I wanted to ask if law schools in general have been diligent, at least from the point of view of law students, in terms of observing the copyright practices as they currently exist. Is this also really an important area for you?
Mr. Bloom: I will answer from my personal experience in teaching copyright at the University of Ottawa. I secured permission from everyone for that casebook that I put together. In addition, the university paid a royalty to CANCOPY, but Geralyn can give you a broader answer to that question.
Mr. McTeague: I see Professor Finnie has taught you well.
Some hon. members: Oh, oh!
Ms Christmas: If I may, we - and many of the other legal publishers - have recognized that excerpts from our materials go into student materials created by law schools. We have asked that people seek permission, but we have never charged them. To give you an example, Osgoode Hall Law School in Toronto has never sought permission from us to put anything in their casebooks in-house.
To give you another example, we mount our databases on an on-line information service called Quicklaw, by QL Systems Limited. It is made available to students in law schools for free; they are given a free password. In reviewing the documentation that I receive as the copyright holder, I saw that a student in B.C. was using up inordinate amounts of time in our labour law publications, and I asked that it be investigated. We found out that he had decided he was going to article at a labour law firm and that it would be very handy to download the whole contents of all our labour material and take them with him. So there is a problem in law schools, and I think they should be doing more to educate their students about the realities of copyright law.
Mr. McTeague: Thank you for those answers.
The Chairman: Mr. Arseneault.
Mr. Arseneault: I'd like to follow up a little bit on the financial thing. With regard to losses, we heard from other witnesses - industries and artists - about the losses that they can incur with regard to blank cassette tapes, for example. There are 44 million blank cassette tapes. It's estimated that somewhere around 39 million of those, or whatever, are used to copy music, and then there's an estimated loss. There seemed to be some statistical information to back that up. Do you have any information, any studies, that would indicate how much loss is incurred to your industry as a result of the document delivery services, of the copying that has been going on? Do you have any estimates of that?
Ms Wright: We have never done a formal study to determine whether or not the amount of lost business that we have incurred over the last few years is directly attributable to photocopy services. Because we are very closely connected and have close relationships with our marketplace, we do know it goes on. As people trying to run a business that delivers the information, we are very conscious of and monitor our decreasing lists. And this is not just in law reports. It's in many of our major case indexing services and in many of our major loose-leaf services that have external authors who analyse and comment on the law. Actually, it's across the business. We feel that in order to protect it we must take some measures to try to control, or at least be able to monitor better, what is going on in the marketplace and to supply the services we initially supply.
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The Chairman: Ms Christmas, do you want to add?
Ms Christmas: Yes, if I may. On the other side of it, we do have a bit of information on what revenue is being made by some of the document delivery services.
The courthouse library in Vancouver declares in its financial statements for 1994, I think it was, some $600,000 in revenue from photocopying of materials. What they photocopy we don't know, except most of their library consists of our product. It does include revenue they get from free-standing photocopiers in the library, but it doesn't also include revenue from document delivery service.
We have information from the Law Society of Upper Canada that in 1994 they made some 105,000 pages of photocopies. What they got for that, because their tariff varies depending on the mode of delivery, we do not know.
Mr. Arseneault: Okay. Thank you very much.
[Translation]
The Chairman: Do you have any further questions, Mr. Leroux?
Mr. Leroux: I would like to ask whether you share the view of some groups that the exceptions will lead to more disputes and legal action.
[English]
Mr. Bloom: Maybe I can answer the question. From the presentations before you, you've seen that probably nobody's happy. None of the creators are happy and none of the users are happy. That's probably a good thing. It probably means there's some balance in there and you need some tinkering around to address the concerns those groups have made before you. You'll never get a bill everyone is happy with.
[Translation]
Mr. Leroux: Are you answering in the affirmative? Are you saying that in the present situation... Do I need to be represented by a lawyer?
[English]
Mr. Bloom: I'll express my bias. I am a lawyer. I answered as a lawyer.
Mr. Bélanger (Ottawa - Vanier): There used to be a Speaker in the House who was hated equally by both sides. That didn't necessarily make him a good Speaker. That's not the case with the current Speaker, of course.
Strictly out of curiosity, how would you react to the proposal - well, there's no formal proposal on the table by any group, but they've hinted around the edges - of a per-copy charge for libraries of all kinds; let's say, for the sake of argument, a penny per page or a penny per copy made, as a regime which would then take care of all the rights? How would your group react to that?
Mr. Bloom: That's an easy question to answer. As we indicated at the outset, each of the members has joined CANCOPY, the reprography collective. CANCOPY is charged with the responsibility of collectively administering the reprography rights, entering into agreements with the users that would define, given the status of the user and the nature of the use, the per-page or other rate. This is something that is to be set in the commercial marketplace. There's protection both for CANCOPY and for the user in that circumstance, and for the general public at large, in that the Copyright Board has overriding supervisory jurisdiction and a role to arbitrate, if there is a dispute, to ensure the royalty is fair and reasonable. That's probably a good compromise.
Mr. Bélanger: So you'd rather leave it to the market to set?
Mr. Bloom: Yes.
The Chairman: Thank you very much, Mr. Bloom.
Mr. Bloom: Mr. Chair, if I may, I would like to conclude with one comment. Yvon Blais has joined us here and he has recounted to us a rather interesting story. Les éditions Yvon Blais is the publisher in Quebec with the largest number of legal titles, and he has some experience that some of the committee members do not have. Although committee members direct their publications of a highly technical and specialized nature principally to lawyers and law libraries, les éditions Yvon Blais has an experience that transcends that, to get the publications more generally to the public.
[Translation]
Mr. Yvon Blais (Les éditions Yvon Blais Inc., Committee of Major Legal Publishers): Unlike the other two members of the Committee, I represent a small company which I own and which has - and I'm not ashamed to mention this - sales of approximately $4 million annually, and which employs 50 people.
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The situation you have been hearing about today is one I am experiencing at the moment. Photocopying and the usurpation of copyright means that potential authors are reluctant to write, to develop copyright and prefer rather to do consulting work. It is like the Hygrade principle: the less there is, the less can be supplied. Everything that goes into producing a book is paid so that the book can be sold, so that the author can make an income and thereby produce more books. All markets are tried.
When the Civil Code of Quebec was renewed, I prepared a little pocket code of some 1,600 pages containing legislation of interest to most consumers and citizens. We sold here wherever we could. We even sold several tens of thousands of copies in Price Club. For us, that was an interesting opportunity to see whether there was a secondary market other than lawyers. There may be one, but you have to be able to finance your project.
The Montreal Bar is planning a service whereby its members would pay for their photocopies in order to increase the Bar's revenues through our texts. Furthermore, we give them these texts, because they told us that they could not afford to buy them. The situation is getting a little ridiculous.
I don't want to reduce this to petty concerns, but in my experience, fewer and fewer law texts that advance our theoretical knowledge are being produced. That certainly does not benefit the general population. I think we have to strike a balance. But when lawyers tell us that they cannot afford -
Mr. Leroux: What you mean is that you give your book and they can photocopy it abundantly, resell it and make money.
Mr. Blais: That's what they're thinking of doing. There's a Crown Corporation that's been doing that for ages. They photocopy our books.
Mr. Leroux: That's in the part of your brief where you say there's a major impact?
Mr. Blais: A very major one, if it's allowed. If at a given point all libraries, including the Law faculty library at the University of Montreal had photocopiers working on two shifts, 16 hours a day... There's an inconsistency there. These are books protected by copyright. Someone wrote them. That aspect has to be monitored.
The Chairman: It's rather ironic to see professors of law infringing on copyright.
Mr. Blais: Yes.
The Chairman: That's the law.
An honourable member: [Inaudible - Editor]
Mr. Leroux: It sells for $20. Of course, if you take tens of thousands...
Mr. Bélanger: There's a contradiction there: a five-hundred page pocket book!
Mr. Leroux: You need big pockets.
The Chairman: Anyway, Mr. Blais, I congratulate you on your marketing operation. I was on your mailing list for a long time and I got your lists regularly. I know that you're trying to broaden the scope of your activities.
Mr. Blais: We have to work hard to save jobs and our sales.
The Chairman: Any questions for Mr. Blais before we adjourn?
Mr. Leroux: Excellent testimony.
The Chairman: Yes, you were quite eloquent in your testimony.
Thank you very much, Mr. Bloom and colleagues. Thank you very much Mr. Blais for appearing before us today.
[English]
Mr. Bloom: Thank you.
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The Chairman: May I call the meeting to order, please.
[Translation]
I would like to welcome the Société des auteurs, recherchistes, documentalistes et compositeurs as well as the Association québécoise des auteurs dramatiques and the Union des écrivaines et écrivains québécois. Representing these organizations are Mr. Robert Gurik, president of AQAD; Mr. Pierre Lavoie, general director of UNEQ; Ms Rose-Marie Lafrance, director of the service des droits for UNEQ and Mr. Yves Légaré, general director of SARDeC.
Mr. Robert Gurik (President, Association québécoise des auteurs dramatiques): The three associations that have signed this brief represent over 1,700 authors in the audiovisual, theatrical and literacy fields. In fact, they are the very basis of copyright legislation. They are the first authors to actually be recognized.
They are also professional unions certified at both the federal and provincial levels under status of the artist legislation and two of them also act as collective copyright societies.
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The Association des auteurs dramatiques was founded on December 10, 1990 and has 80 to 125 members who represent the entire playwright profession in Quebec.
The Société des auteurs, recherchistes, documentalistes et compositeurs, also known as SARDeC was created in 1949, represents creators in the audiovisual field and has signed collective agreements with the CBC, the National Film Board, Radio-Québec, the Association des producteurs de film et de télévision du Québec and TV5.
The Union des écrivaines et écrivains du Québec was founded in 1977 and has some 900 members: poets, novelists, essayists, authors of dramatic works, authors of children literature, authors of scientific and practical works and authors of school manuals.
The result of technological development has been an explosion in various ways in which works may be exploited and more often than not this has increased the opportunity for piracy. The creators of those works have therefore been clamouring for the legal framework that is needed to control the unauthorized, unpaid use of there works.
Unfortunately, Bill C-32 does not reflect what creators and artists were seeking. It introduces new rights, but those rights are only very partial and incomplete. The introduction of a system of residuals is only the matter of justice for artists, but Parliament has limited the royalties to be paid by broadcasters to a symbolic sum. In addition, residuals should have been made the subject of a separate part of the bill so as to avoid any confusion with copyright.
Bill C-32 deals with the right to rent out computer programs and sound recordings (section 2.5) but it is silent on the question of renting out other types of works such as books, optical disks and so on. This is a major omission, given how widespread this practice is in the other sectors.
The provisions relating to private copying do not apply to authors of audiovisual materials, even though home recording of audiovisual works hurts the sales, rentals or rebroadcasts of works, and, accordingly, hurts our authors' incomes, so that authors will have to wait for a hypothetical phase III for their needs to be met.
The Copyright Act is the legal foundation on which creators in all sectors of activity rely. It is a fundamental tool of development. It is deplorable that Parliament would have deliberately chosen not to respond to the entire range of needs expressed, thus giving the impression that some sectors are not worthy of protection.
The bill is more like a patchwork quilt than a revision. This country is dragging its feet about adopting a modern law that is capable of meeting the challenges of the 21st century, and is falling farther and farther behind a great many European countries.
Mr. Pierre Lavoie (General Director, Union des écrivaines et écrivains québécois): I will continue, Mr. Chairman. Dangerous exceptions: In addition to the omissions, there are exceptions that weaken the position of authors and amount to a net loss of ground in comparison to the existing situation. For our members, it would certainly have been preferable for Parliament to refrain from revising the Act. In fact, the exceptions distort the Copyright Act whose objective is no longer to protect works, since users' rights will now prevail over creators' rights.
Copyright is a property right and Parliament has more or less expropriated it by force of arms without compensating the authors. It is also a right set out in the Universal Declaration of Human Rights and an instrument of cultural development. Lastly, it is the source of earnings for authors and the cultural industry. The more exceptions to the Act that Parliament introduces, the more it erodes the earnings of creators and the viability of the industry.
By presenting the exceptions as the result of an attempt to strike a balance between rights owners and uses, Parliament is wrongly confusing the Copyright Act with consumer protection legislation, forgetting that the consumers involved are not individuals but public institutions, for the most part. The bill unduly strengthens the position of the users. Instead of negotiations between the parties, it gives preference to imposing conditions that are unfavourable to creators and thereby sanctions the illegal practices of public institutions that have dragged their feet in regularizing their dealings with the owners of the rights.
Parliament is confusing access to work with exemption from payment. The authors want their works to be used and want to benefit from that use. Educational institutions are demanding the right to expropriate authors' rights, even though copyright represents only a portion of the cost of reproduction - paper, photocopier and so forth. Educational institutions show more respect for other property rights than for intellectual property.
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The introduction of new exceptions also sweeps away, with the wave of a hand, all the efforts made in recent years by copyright societies to standardize the terms on which works may be used. By bringing copyright owners together, collective societies have helped to ensure compliance with the law and made inventories of works available to users that are extensive enough to meet their needs.
In 1988, Parliament more or less endorsed the efforts of collective societies to bring copyright owners together by exempting them from the Competition Act. It also implemented the necessary regulatory mechanisms to promote free negotiation by establishing the Copyright Board to arbitrate disputes.
Canadian collective societies have not abused the benefits given to them by the 1988 revision and there is nothing to justify adding 15 pages of new exceptions. Reproduction fees paid to UNEQ and CANCOPY are also amongst the lowest in the industrialized nations. The new exceptions simply make the situation worse.
The revision of the Act was supposed to reaffirm the importance of intellectual property, not to fossilize the application of that concept. The bill fails to take into account the existence of agreements among copyright owners and users, or the scheme of those agreements. Rather than promoting free negotiation, it establishes rules that are pointless at best, and devastating at worst, and will be a yoke around the neck of the parties. Parliament has remedied nothing, and is introducing a whole string of new problems.
The brief then gives an overview of the main exceptions and points out how vague and inappropriate they are, and how complex they will be to administer. It details the effects of some of those exceptions on existing agreements.
Mr. Yves Légaré (General Director, Société des auteurs, recherchistes, documentalistes et compositeurs): To summarize, if we had to describe the impact of these exceptions, we would say that their addition will paralyze the development of collective management societies; disputes over interpretation and legal actions will multiply, and we will be forced to conduct rearguard actions rather than meeting the challenges of the information highway head on.
The approach taken by Parliament is a pointless interference in negotiations between users and copyright owners, and it tilts the balance of power against copyright owners. The result will be that relations between copyright owners and users will become increasingly litigious.
The future does not look good. The effect of the advent of the information highway will be in explosion in the number of users. Parliament has been extremely slow to react to the technological transformations that have occurred, and when it does act, it doesn't deliver all the goods. Rather than imposing sanctions for unlawful users, it is legalizing them.
By drawing on American, British or Australian legislation, the bill brushes aside our problems of cultural development and the peculiarities of our market. By cutting into our sources of income, Parliament will be helping the foreign competition to the detriment of the industry at home.
The bill puts the government in a questionable position. The exceptions are for the benefit of public institutions funded by the various levels of government. Certainly, expropriating a part of authors' rights will reduce costs. As well, a new form of mandatory contribution is being imposed on authors, and so the government is picking the pockets of the creators by stealth.
Lastly, this bill suggests a lack of cultural vision. For some years, we have been seeing all the instruments that have helped our culture to flourish fall by the wayside. Cuts to institutions' budgets are threatening our ability to produce. The development of the information highway and the 500-channel universe will challenge our entire regulatory structure and generate increased competition from foreign cultural products.
Now we have a revision of the Copyright Act that is designed more to expropriate than to protect authors' rights. The authors who were hoping that the revision of the Copyright Act would reaffirm the importance of their contribution by providing them with adequate protection were wrong.
Thank you.
The Chairman: Mr. Leroux.
Mr. Leroux: First, thank you for having provided us with this brief and thank you especially for reminding the committee of what the copyright bill's fundamental goal should be and finally, for reminding us that the significant parts of this bill will end up completely changing the very nature of what is a copyright, a copyright holder, fair entitlement on the part of the authors, and their fundamental right to having the ownership of their works recognized.
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When the bill was tabled, the Official Opposition was pleased to see that it has taken the right direction - one that had been asked for by many people - in introducing the principle of neighbouring rights.
We also immediately noticed that the bill was a major step backwards in terms of copyright. All of a sudden we were faced with an explosion of exceptions, the result of which has been to totally expropriate, in some sectors of society, authors' rights, especially in the area of education, libraries, archives, etc.
We affirmed that this bill sent an extremely negative message to society as regards recognition of copyright and, more particularly, we felt that it allowed people to shirk their responsibilities as far as recognition of copyright and recognition of the need to negotiate with collective societies were concerned.
I would like to take this opportunity to delve into the concrete aspects of the exceptions contained in the bill, since you have focused a great deal on these exceptions. I would like you to give us some examples of dangerous exceptions and provide us with your comments.
We are seeking to adopt this bill in the House, providing the conditions are right. We will not adopt it at any cost. We must ensure that it can give back... We often hear that we recognized and defined copyright better before the bill. We must ensure that justice is done as far as copyright is concerned and that this right is recognized. We have to find the means that will enable us to do this.
This morning, I would like you to tell us how we can achieve the objective of passing the bill while at the same time ensuring that we meet the fundamental objective of ensuring that copyright is respected. I would like to tackle this issue, in concrete terms, right now.
In addition, I would like to deal with the clearly defined specificity of the respective areas of copyright and neighbouring rights in the text, which you have mentioned. In your opinion, there has been some slippage in the terms that makes the wording less clear. However, we know that this is fundamental. We said that if there were to be neighbouring rights, we had to ensure that they did not encroach upon copyright. I would also like to know how we can do this, in concrete terms, in the bill.
Mr. Légaré: Your question is quite broad. With respect to the exceptions that we have analyzed, our position is that the wording cannot be changed, improved, etc.
In our eyes - and you talked about a message - , all of these additions are, first of all, sending a dangerous message. We must not forget that the current Act provides for only a few exceptions, for study purposes and private research. Despite this limited number of exceptions provided for in the legislation, many institutions used them to steal works for years and it was only by conducting studies, doing analysis and even slamming our fist on the table that we managed to rectify the situation.
The message in itself is therefore dangerous. If you examine certain exceptions in detail, and we did this in our brief, some jeopardize existing agreements.
The message that is being sent is that the Copyright Act is difficult to manage and that the legislator therefore has to provide for all kinds of exceptions. However, practice has shown that when users and holders of rights sit around the same table, they can cover all of the requirements, all of the users and decide amongst themselves which things will constitute an exception for which payment will not be made, as opposed to an exception to the law versus a payment.
If we were to examine certain exceptions, such as copying a poem on a blackboard, it is clear that no collective society would ever think about trying to exact payment from some educational institution for writing a poem on a blackboard.
However, when we talk about exceptions as regards multiple photocopies, certain clauses of the bill open the door to risks and dangers threatening already existing agreements, agreements that generate a few million dollars a year for the community of authors.
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We are saying that you should leave it up to the parties to resolve these things amongst themselves. We do not intend to tell you, today, that if you were to change the wording of such and such an exception, that it would be all right. We think that these exceptions are not acceptable and, in addition, even the most harmless looking exceptions, aside from the negative message that they will convey, could give rise to interpretations, bickering and lawsuits.
Instead of providing more money to the authors, this bill will line the pockets of the lawyers who are going to think about all of the new opportunities for educational institutions, archives and libraries.
Mr. Leroux: I'll ask this question because you mentioned already existing agreements. Could the current bill jeopardize the agreement between the Department of Education and UNEQ, between the Fédération des cégeps and UNEQ as far as reprography is concerned, between universities and UNEQ, between CANCOPY and UNEQ and, as far as reprography is concerned, with the federal government, for the use of works, and between the Association des auteurs dramatiques and the Department of Education? In your opinion, will the agreements with SODRAC and the Department of Education, the agreements which moreover exist in Ontario, in Manitoba and in Alberta, be nullified by the bill?
Ms Rose-Marie Lafrance (Director, Entitlements, Union des écrivaines et écrivains québécois): UNEQ believes that the exceptions as drafted in the bill open the door to a lot of interpretations that will blow big holes in our existing agreements with the educational sector and it will also create problems with press reviews.
Just take the example of the agreement that CANCOPY and UNEQ have jointly with the federal government. The bill says that it is now possible to photocopy articles for press reviews. However, part of this agreement deals exclusively with articles which, day after day, are clipped and photocopied to make thousands of copies for the federal government. This alone would result in a loss of $500,000 which we currently received under this agreement, which is not one of our major agreements.
On the education side of things, the exceptions, as they are drafted, ensure that educational institutions are no longer compelled to pay copyrights.
Clause 29.4(2) refers to the giving of an assignment, test or examination on the premises of an educational institution. What else do educational institutions do but to give assignments, tests or examinations? And everything that is done in a classroom, is it not done because one day there will be a test or an assignment related to it? We could interpret this part of the bill as a means of giving permission to include dozens of articles in a collection of texts without anyone having to pay copyright, since this item would be used for tests and school assignments.
In this respect, the current agreements that UNEQ has with the education sector represents approximately $2 million per year.
Mr. Gurik: The agreement that the Association québécoise des auteurs dramatiques has just signed with the Quebec Department of Education provides, in the same fashion, payment of copyright for any partial or complete representation of dramatic works for educational purposes and extracurricular activities given in teaching establishments. The interpretation of this new wording with respect to exceptions jeopardizes this agreement that we have just signed.
Mr. Leroux: These exceptions include such things as ``for educational purposes''. That jeopardizes...
Mr. Gurik: Exactly. The interpretation may be broad or limited, but this exception jeopardizes our agreements in a direct fashion.
Mr. Légaré: For example, on page 21 of our brief, we refer to clause 30.3(1). This provision states:
30.3. (1) An educational institution...
Mr. Leroux: Is that in your summary?
Mr. Légaré: Yes, on page 9.
Mr. Leroux: Under dangerous exceptions?
Mr. Légaré: Yes.
Mr. Leroux: You have classified them by clause?
Mr. Légaré: Yes. Hence, it states:
30.3. (1) An educational institution or a library, archive or museum does not infringe copyright where:
a) a copy of a work is made using a machine for the making, by reprographic reproduction, of copies of works in printed form;
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``By reprographic reproduction'' that already gives a fair degree of latitude.
b) the machine is installed or with the approval of the educational institution, library, archive or museum on its premises for use by students, instructors or staff at the educational institution or by persons using...
If I were the representative of an educational institution, after reading this article, I wouldn't be that easily convinced by someone from the Union des écrivains claiming that multiple copies and individual copies have to be paid for. We know that in some educational institutions where there is no photocopying centre, reprographic machines are easily available.
As I was saying, the dangerous thing here is that the bill puts our rights in a kind of straightjacket. After all, what is the purpose of the Copyright Act? It tends to cushion the risk taken by creators. The author is on his own and for the period he is writing his play, in the middle of the night or for the two years he may devote to it, he doesn't know whether it will work out, whether it will played a single time and he'll make $10 from it or whether it will be played for 20 years.
If it is a success, how can the risk that he has taken be turned to his benefit? By Copyright legislation which prevents the theft of his work. When we negotiate, we attempt to do so in relation to the various uses and our assessment of the risk. Is there any risk involved in allowing transcription free of charge on a blackboard? No.
If we observe two or three years later that there was indeed a risk because the blackboard was considered to be a cathodic screen, we can decide to go back and negotiate with the users. We can explain to them that henceforth, because of their misinterpretation of their right and because the particular use which seemed harmless at the beginning has now become the rule, they will have to pay for certain costs. But if you attempt to provide for such a case in the Act, considering the speed with which revisions of the Act take place, it is quite possible that we will still be facing the same problem in 20 years.
Mr. Leroux: The bill calls for a review after five years. So a mechanism is in place. But that doesn't change the root of the problem.
Mr. Gurik, let's take the example of a cegep that wants to put on one of your plays. At the present time, in order to comply with copyright, they must obtain authorization from you and establish a tariff, depending on whether it is a school exercise or a performance. Under the present legislation, would a cegep or a high school be able to put on one of your plays without consulting you?
Mr. Gurik: Yes, if they were using it for educational purposes. They could interpret the wording and claim that they want to put it on as part of their class study of the play whereas normally they would have to pay for it.
It almost amounts to dual taxation for authors. As a citizen, he's expected to support the educational system through his taxes and then to provide support as an author through a compulsory donation. It's almost a kind of discrimination. It amounts to being taxed twice.
At the present time, when one of my plays is performed for educational purposes, whether it be an exam or something else, whenever it is used as educational material, I am paid for my work because it is my work. That is normal. The work isn't done by someone else, it is mine. So it is paid for under the agreement we concluded with the Department of Education. This exception constitutes a danger for such a payment.
M. Leroux: It's easier to understand based on a concrete case.
A certain number of organizations have concerns that are more social or humanitarian in nature. Could an agreement like that also jeopardize the agreement between SODRAC and the Canadian National Institute for the Blind, amongst others? People are concerned with those aspects, not only organizations in the educational field but other organizations also.
Secondly, I'd like you to tell me how this agreement works. Is this agreement satisfactory at this point? Give us an example showing that free negotiations make some things work, things that the bill would compromise. Do you have any examples?
Mr. Légaré: SODRAC is in a better position to answer than we are. Certainly when SODRAC negotiates with organizations for charitable purposes, the negotiations concern amounts that are sometimes more symbolic than anything else. What we know is that those symbolic amounts allow the reproduction of a great number of works for people with perceptual disadvantages.
So we are able to adapt and adjust depending on the user and the use made by the user. It's also always based on a potential market. Of course, more fabulous the use is, the bigger the market is because it's in direct competition with the cultural product, whether a book or a play or whatever, whereas in the case of those markets that don't have any commercial value, we will adjust.
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We are perfectly capable of establishing variable rates and if those rates are ridiculous, the Copyright Commission can certainly examine and question them.
Mr. Leroux: You're talking about a responsibility for your knowledge rather than the reverse.
I'll come back to the matter of neighbouring rights and copyrights later.
Ms Lafrance: I'd simply like to add a point about the ability Yves spoke about to adapt to the requirements or needs of our users. If we look at the history of the agreements on reprography in Quebec, we'll see that UNEQ has made considerable changes to the way it works in order to bring about maximum simplification of the agreements to answer the requirements of the users.
Strictly for photocopies, for example, at the outset we were asking for the exact number of pages. Today, having come to an agreement with the educational facilities, it was decided to drop that requirement and simplify it to make its management as flexible as possible. We do some polling and agree on a lump sum.
Same thing for repertoires. The educational facilities did not want lists of titles anymore. So we dropped that method and we now go by exclusion lists.
So we're quite able to negotiate agreements that meet both the needs of the creators and of the users. In that respect, we have just signed an agreement with Quebec universities based on a real partnership between users of protected works and copyright owners.
We have agreed to stop illegal photocopying and meet regularly to pursue our agreement. I think this approach is very innovative.
So a bill like this one should not serve to upset our efforts and our attempts to innovate in the area of collective management.
The Chairman: Mr. Bélanger.
Mr. Bélanger: I must recognize that it's very clear and very well presented. My questions will be of a more philosophical nature just to find out exactly to what point you're intransigent or flexible.
I'm putting my questions without knowing what the answers may be although I'm told that's very dangerous for a politician. But I'll do it anyway.
I imagine it doesn't happen often, but does it ever happen that an author refuses the use of his work, whatever it may be?
Mr. Gurik: That happens in the sense that... Don't forget that there is an economic right that goes with the work as well as a moral one. Take the example of a play, an area I know. If I have a play and, all of a sudden, it's put on, performed and read in a fascistic way even though I am against fascism, my moral right is under attack. I can refuse because my text is going to be distorted even though the words are all there. The substance of my text is going to be distorted and, at that point, I can refuse that my play be produced. There's a moral right attached to each work.
Mr. Légaré: Generally, that does not come up from the kind of users covered by the exceptions. In other words, an author may refuse to have a producer make a movie based on his novel. However, when you're talking about the exceptions covered by legislation, it's often a matter of petty rights. The work is printed, it exists and someone's talking about making a photocopy. For the author, this is a petty right. On the other hand, if you want to publish, the author's right to choose his own publisher, for example, NRF or Gallimard rather than Belfond is what is in question. So there's generally no refusal for the kind of rights covered by the Act.
Mr. Bélanger: Let's talk about this petty right. Can the Copyright Board force the author, in the case of these petty rights, to sell his right, if I may use that expression? Does the Copyright Board have that authority today? I don't think so.
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Mr. Légaré: Not to my knowledge. However, as I was saying for those authors who might refuse... In other words, what an author seeks in publishing a work is to reach an audience. He hopes to get some income from that audience. Normally, he's conscious that a representation in a big theatre will be a more paying proposition than one in a little theatre out in the boondocks and photocopying a page from his book will produce less income than selling the same book.
So the problem really rises in terms of the payment and adequacy of this payment compared to use. Sometimes, in effect, use may be granted for free, when the author consents through his collective society, for a specific use.
Mr. Bélanger: Do you share the principle that seems to b e underlying in this bill, which is that, in the end, there's a difference between copyrights and neighbouring rights? In the case of neighbouring rights, use cannot be refused; what the bill is offering is compensation. Do you agree with this nuance which is more than a nuance and with this marked difference between copyrights and neighbouring rights?
Mr. Légaré: Of course, as far as the author is concerned, the right to authorize or forbid will always be something essential as such. As I was saying, its application depends on certain kinds of use. But as far as we are concerned, the right to authorize or forbid is, in fact, indisputable.
Mr. Bélanger: Do you believe that performers would also want to have this right?
Mr. Légaré: We said nothing about neighbouring rights except that we're happy that they're in the bill. It's only fair and legitimate that performers be paid for a performance.
As to how that is done, I think that generally speaking the people from the Union des artistes will make their own representations on that.
Of course, the performer can't prevent a work from circulating. His performance, as such, doesn't mean that he will be the only one to play that role. A work will always continue to be used, notwithstanding the performer. But his performance, as such, belongs to him, of course.
Mr. Gurik: And the ideas he's putting forth are not necessarily his while the ideas written down by an author are his.
Mr. Bélanger: From that point of view, the bill seems to suit you.
Mr. Légaré: We think that introducing neighbouring rights, as it does, will perhaps not make for good neighbours. It would have been better to make neighbouring rights something more distinct from copyright. So you're going to be leading to bad blood between good neighbours that way.
Mr. Bélanger: Here's a hypothetical question. Once again, it's the kind of questions that can be dangerous not only for the answerer or but also the answeree. What would you think about a provision in the bill specifying that the exceptions are in force for a certain set period of time, say five or ten years and that they won't be after that? In other words, there'd be a period of five or ten years during which agreements could be negotiated everywhere as is the present case. Would your reaction be the same?
Mr. Légaré: No. In the old Copyright legislation, a lot of the uses were prohibited. Despite those prohibitions, it sometimes took up to 20 years to get results. With a solid legal basis, it took 20 years for us to get together and get organized and for us to be sufficiently organized and strong to negotiate with public institutions whose means were way beyond ours. That's why one of the questions that frequently comes back, the thing about a balance, always sounded a bit fallacious to me.
So if it sometimes took years to organize and that the situation still isn't settled and we give them the possibility of doing whatever they want for five years, do you think that in five years we'll be in a better position?
The other thing from Parliament I can't understand is that, generally, Parliament intervenes when it has been shown that the parties are unable to agree and that they're flinging lawsuits at one another from all points of the compass. Then it steps in with regulations or establishes guidelines. To my knowledge, to date, the courts have not been witnessed to endless chicanery between the educational institutions and the holders of rights. What practice has shown is that when the educational institutions show good will, and where there is also a political will to settle a matter, they sit down with the holders of rights and agree to a framework for users and user fees.
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That's what practice has shown. A parliament comes in with a framework that does not jive with that practice which shall not cease to astonish me because everyone is affirming more and more that the state should abstain from useless interventions.
Here, we have the authors intervening. I wonder if it's because it's a matter of intellectual property that it's held in lower esteem. Is it because these are the kind of authors who don't make a practice of storming the walls? I can't see why Parliament is bringing these practices under regulation in this way.
Mr. Bélanger: That's clear enough. Thank you, Mr. Chairman.
The Chairman: Mr. Leroux.
Mr. Leroux: I'm happy to hear your opinion because it's surprising to see how much, of the last decades, the message from governments was to tell the parties to come to an agreement. The state doesn't always have to intervene in negotiations. That's the message being delivered to just about all sectors. Here, we have a bill where government interference is complete in major, sensitive sectors. It is, in fact, very surprising.
To continue in the same vein as my colleague, I'm trying to find out what we could do for this bill to be satisfactory while attaining its objectives.
I'd like to come back to the principles of collective societies. What we'd like is for all the exceptions to be withdrawn from the bill and to come back to positions where collectives and negotiations are recognized. That, at least, is our position and the objective we're aiming for. If we can't manage to convince the government to withdraw all the exceptions in the bill, what would you say to an amendment providing that the exceptions apply where there is no collective society? Where you have collectives, that would have priority.
Mr. Légaré: That seems difficult to implement. Let's not forget that practices are not carved in stone. Some years ago, photocopiers did not exist, there was no photocopying nor collective societies to manage that thing. You say there is no right except when there is a collective society. Maybe that collective society doesn't exist yet. Uses practice in a given area might just be getting underway which means that you'd have to be asking for a right that does not yet exists. A collective society would be set up to demand a right that does not exist. That looks like reverse logic to me.
Basically, even right now, there are possibilities. If collective societies don't exist, they won't be collecting for use. Generally, if the use is petty and there is no major volume, it's not worth setting up a collective society. If we're talking in business terms, you need enough volume to justify setting up a collective society. If you get major volume and it becomes dangerous for the industry's survival, a collective society will be set up.
So, in my opinion, it's reverse logic. Copyright exists. In its application, it will vary depending on use. Because neighbouring rights, that we support, do not bring in anything for the authors we represent, what we were asking Parliament concerned the private copying of audio visual material and you have not given us that.
At the very least, we are asking for things to be brought up to date and that something be done to protect us in the event the information highway allows for some use that is not covered. But there is nothing in there in that respect. You are legislating past problems that we were already managing to settle. For 15 years, the societies have been trying to organize and get together and act so that schools would only have to deal with one provider to have access to a right rather than having to call up 2,000 authors, publishers or producers. So we were getting together. So how are you dealing with these 15 years of efforts? By settling the past and adding exceptions. The future, just forget it.
There are provisions on damages and they are interesting. Maybe the issue of limited damages is worth further exploration.
Mr. Leroux: Talking about the future, I will repeat the comment I made to the committee and my colleagues. There is a provision in the bill for reopening it in five years. So the law will have to be reviewed five years from now. That does not necessarily correspond to a third phase, because we were told that it would not necessarily correspond to phase III.
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My concern, however, is that within the next five years, all kinds of people involved in the area of new technologies will try to find a way to slip themselves into the exceptions. That opens the door to exceptions that, bearing in mind the spirit of your chapter headings, I would call dangerous for everything that's not found in the bill as it stands and concerns modern technology and new technology. The risk is it will give people time to prepare their lobbying and learn how to become an exception. That's a concern we have and I wanted to share it with you because of this perspective offered by the bill.
The Chairman: Mr. Légaré, do you have a comment?
Mr. Légaré: Yes. In view of the new technology and the information highway, I think everyone will agree that what's going to be important is the development of content as such. Actually, in our brief, we quote the previous minister of Heritage Canada who, just as others did, saw that the content was important.
The perenniality of the content is for a good part, based on the Copyright Act. Insofar as this legislation won't be revitalized and will deprive the authors of their rights, who will be providing the content? Will it come from other countries?
The fundamental error in this approach made up of exceptions is that it is based on American, English or other laws. Our market just isn't the same. When Americans publish a book, they have a potential audience of 60 or 230 million readers. In Canada, it's 30 million readers. And if we make a distinction between the Francophone and Anglophone markets, we're talking about seven million on one side and 20 million on the other. We don't have the same market. So we must make sure that all the markets will be properly exploited and regulated.
The Americans have the latitude to give certain books to schools or allow photocopying because, in any case, their market will ensure their survival. UNESCO figures show that any country of fewer than 30 million people has problems in ensuring the survival of its culture. This legislation makes things even harder for us. You are blocking our access to our markets. You are assigning too much risk to the creator.
The Chairman: Mr. Arseneault.
Mr. Arseneault: I have a brief question for Mr. Leroux. Did I correctly understand you to say that the Bloc is opposed to all exceptions without exception.
Mr. Leroux: You know the opposition. If you don't mind, we will...
Mr. Arseneault: Well, it would seem that...
Mr. Leroux: Mr. Chairman, are we being allowed to debate?
The Chairman: Later. We'll end this here.
Mr. Gurik, Mr. Légaré, Mr. Lavoie, Ms Lafrance, your testimony was very clear. There is no mistaking: it was very clear, very eloquent. Ms Lafrance, you gave us the example of your contract with the federal government. According to your interpretation of the bill, it would be responsible for your losing $500,000. We will certainly follow up on these things and check them out. We thank you for coming.
I would just like to set things straight. When speaking about the exceptions, people said that they covered some fifteen pages. I'm not being partisan; I'm only going by what was said. What must be recognized is that there were already exceptions that were simply amended. There are five or six pages of exceptions in the present Act. But I will concede that a lot of exceptions were added.
Mr. Leroux: Thirteen?
The Chairman: I beg your pardon?
Mr. Leroux: Thirteen or 15? You said 15.
The Chairman: No, no. There are five pages in there on exceptions that already exist, and that amendments are being sought for. I was just making that clarification.
In any case, thank you very much for having appeared before us and explained your point of view very clearly and quite eloquently. Thank you for coming.
Mr. Légaré: Thank you.
The Chairman: The meeting stands adjourned.