Evidence of meeting #7 for Bill C-11 (41st Parliament, 1st Session) in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was copyright.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Alain Lauzon  General Manager, Society for Reproduction Rights of Authors, Composers and Publishers in Canada
  • Martin Lavallée  Director, Licensing and Legal Affairs, Society for Reproduction Rights of Authors, Composers and Publishers in Canada
  • Elliot Noss  President and Chief Executive Officer, Tucows Inc.
  • Jean Brazeau  Senior Vice-President, Regulatory Affairs, Shaw Communications Inc.
  • Jay Kerr-Wilson  Legal Counsel, Fasken Martineau, Shaw Communications Inc.
  • Cynthia Rathwell  Vice-President, Regulatory Affairs, Shaw Communications Inc.
  • Stephen Stohn  President, Executive Producer, Degrassi: The Next Generation, Epitome Pictures Inc.
  • Gerry Barr  National Executive Director and Chief Executive Officer, Directors Guild of Canada
  • Tim Southam  Chair, National Directors Division, Directors Guild of Canada
  • Greg Hollingshead  Chair, Writers' Union of Canada
  • Marian Hebb  Legal Counsel, Writers' Union of Canada

5:10 p.m.

National Executive Director and Chief Executive Officer, Directors Guild of Canada

Gerry Barr

One of the important examples in legal precedent would be in Films Rachel Inc. v. Druker & Associés Inc. et al, in the Superior Court of Quebec. In a dispute between the creator and the producer, the holding was that the writer and director of the film under consideration was the author, and therefore the first holder of copyright.

The federal Status of the Artist Act equates directors responsible for the overall direction of audiovisual works with authors of artistic, dramatic, literary, or musical works, all of whom are authors under the current act. An amendment to recognize writers and directors as authors will bring the Copyright Act into line with other federal legislation that also recognizes the authorial nature of the director's role, so there is some judicial and also legislative recognition of this core idea of authorship for directors and writers in film.

The Canadian film industry also operates on the basic working assumption that directors and screenwriters have authors' rights. The DGC negotiates collective agreements that provides payment for directors for uses made of their works. The transfer of exploitation rights to producers through these contracts recognizes that directors are the first owners of copyright—in other words, the authors of the work. Screenwriters' contracts also recognize their copyright ownership of audiovisual work, including profit-sharing provisions allowing for the collection of residual payments.

A technical amendment for Bill C-11 on this question creates no new rights, but it brings important clarity to the question of authorship. The amendment we're suggesting would end up in subclause 2(2), with a definitional reference that defines “author” as follows:

“author”, in the case of a cinematographic work in which the arrangement or acting form or any combination of incidents represented give the work a dramatic character, means the writer and director of such cinematographic work.

As we noted earlier, such an amendment is necessary to give full effect to some of the changes in the government's proposals in Bill C-11. For example, the bill aims to clarify what constitutes an infringement of moral rights, but moral rights attach only to authors and performers, and without a definition of “author” for audiovisual works, directors and screenwriters are unable to assert moral rights for their work.

Bill C-11 introduces a number of provisions regarding digital rights management information. DRM information is akin to a kind of digital watermark, providing information about the work and an ability to track it, and one of the important pieces of information is the author of the work. The provisions in Bill C-11 that prohibit the removal or altering of rights management information are of value to directors and writers who wish to protect their rights and royalties collected in other jurisdictions, so we need to be identified in the act as authors.

Audiovisual creators should be dealt into all of these protections that authors of other works enjoy under the act. It's particularly important in a digital age, in which content can be sent around the world with new-found ease and at a time when piracy and worldwide distribution are but a mouse-click away. Clarity on the issue of authorship is vital to protect Canadian creators, including directors and screenwriters.

Thank you, Mr. Chairman. I hope there will be some questions on this general area.

5:15 p.m.

NDP

The Chair Glenn Thibeault

Thank you, Mr. Barr.

We will go now to the Writers' Union of Canada for 10 minutes.

5:15 p.m.

Greg Hollingshead Chair, Writers' Union of Canada

Members of the committee, hello, bonjour. I'm Greg Hollingshead, chair of the Writers' Union of Canada, which represents approximately 2,000 Canadian book authors. I'm a writer myself, and for 30 years, until I retired, I was an English professor at the University of Alberta. With me today is Marian Hebb, our legal counsel.

Thank you for inviting me to talk to you. I know you've been hearing a lot about the expansion of fair dealing to include education and I know you're tired of the subject, but I hope that as a teacher, writer, consumer, and creator I can cast some light on how and why this broad exception is likely to launch an unintended assault on the intellectual property of Canadian writers.

When Bill C-11 was introduced, the Honourable James Moore, Minister of Canadian Heritage, stated that when laws are clear, consumers know what the boundaries are. He also said that it is wrong to not allow people to protect what they have invested in. He was talking about digital locks, but he inadvertently put his finger on exactly what the Writers' Union believes this new education exception fails to do: give students and teachers sufficient guidance concerning what is lawful and what is not when it comes to copyright. By so failing, it fails to respect the property of creators.

A few years ago a short of story of mine appeared in a print anthology for colleges and universities. For the rights to my story I had been paid for its appearance in successive editions, but in recent years fewer instructors have been using print textbooks in courses. Instead, the instructor creates a course pack—like this one from my own university, for consultation later if anyone's interested—which is a compilation of photocopied texts for distribution to students taking a particular course. This one provides sections or chapters of books, plus one essay from a journal.

In 2010 Canadian universities and colleges copied over 100 million pages from close to 120,000 unique titles for paper course packs alone; however, increasingly these days, instead of offering a course pack, an instructor will post in digital form the text she wants to teach and discuss on a website devoted to the course, a website accessible only to those teaching or taking the course.

This same short story of mine is now available through a licensing agency representing authors and publishers for any teacher in the world who chooses to include it on a course site. For this digital use my publisher and I are paid a fee, just as I was paid a fee for the use of my work in a traditionally published text, and just as I was paid by our national licensing agency, Access Copyright, which issued a licence to the university or college so that its instructors could make use of my work in a course pack or for distribution of multiple copies in the classroom.

This is all good. Whether in a course pack, for distribution of multiple copies to the class, or on a dedicated website, texts for a particular course are now provided much more efficiently and at a lower cost to the student. The student gets easy and cheaper access to professional Canadian texts. The writer and publisher get paid for their work, for their product. The institution doesn't need to do the work of securing the rights to individual works or worry about its staff or students violating copyright. The problem arises because Bill C-11 fails to make clear what sort of reproduction for educational use constitutes fair dealing and what sort does not.

As an educator myself, I know that teachers are not the enemies of creators. The working teacher believes that creators should be compensated for their work. She understands that this means schools paying for a blanket licence to copy.

Teachers want to pay, and they have said as much to this committee and to the Bill C-32 committee. The question is what they need to pay for, and that is what Bill C-11 does not as yet define. The Writers' Union of Canada believes that it needs to do so and that it is for Parliament, not the courts, to decide what the education sector needs to pay for.

The larger context here is that we're all living in a culture of free digital information and entertainment. In this digital climate, human behaviour can't be counted on any more than digital locks can be counted on in the realm of books, when you can buy a printer with a scanner for under $100.

I can assure you from first-hand experience that if Bill C-11 passes unamended in this respect, the result will be a perfect storm of unauthorized copying in the schools. It's no secret that the noisiest opposition to Bill C-11 has been from people who have come to assume that free access to everything digital is their right. It's no secret that students today have grown up in a culture that has encouraged them to expect free use of everything they can download.

It's also no secret that over 50 colleges and universities, by refusing to pay collective licensing fees, have been doing another kind of downloading: downloading onto the working teacher the responsibility, the time, the extra labour, and the liability for clearing the rights to the works she teaches.

However, how many teachers are going to the trouble to clear those rights when the institution they work for has rejected collective licensing, when the website for any particular course is next to impossible to police, and when, to all appearances and by all reports, Bill C-11 is on the way to loosening up restrictions around copyright in education in ways that nobody can perfectly predict?

Just last week this committee was addressed by educators who talked about the copying, for classroom use, of a few pages here and a few there as a trivial matter that should be considered fair dealing, but you have to look at the aggregate. Multiply this practice by the number of classrooms in this country, where nearly 250 million pages of books are copied annually in Canadian schools, and there alone you have lost revenues to writers and publishers in the tens of millions of dollars annually.

A few pages here and a few pages there is not about ease of access to materials; it's about payment for copying. The educators are asking you to excuse them from paying for what they are already licensed to do.

In its CCH ruling, the Supreme Court named damage to the market as only one of six or more factors to be considered when deciding if a dealing is fair, and not as necessarily the most important factor. A dealing may be considered fair that does damage to the market, and a few pages here and a few there in the classroom would be dealing that would do major damage to the market. The potential for damage to the market and the uncertainty of continuing investment in Canadian publishing that will result from unclear legislation are too great for Parliament to leave to the courts.

We ask you, the members of this committee, to clarify the legislation to make it evident that uses being paid for today will continue to be paid for tomorrow. Otherwise, the money the schools will save will come directly from the pockets of those who can least afford it—in this case, Canadian writers, who earn, on average, less than $20,000 a year from their writing.

The Writers' Union of Canada has taken an active role in the creation of and, along with 67 other Canadian arts organizations, is a signatory to a document sent to you in January, which has been referred to by other members of this panel. It contains proposed amendments that address our concerns.

The Writers' Union has also submitted to you a brief today to address this and other issues in Bill C-11, including user-generated content and digital delivery by libraries.

5:25 p.m.

NDP

The Chair Glenn Thibeault

Mr. Hollingshead, you're out of time. You're past the 10 minutes. Hopefully, if you have any remaining comments, you can put them in during the question period as well.

Thank you to the witnesses. I'm wondering what Joey Jeremiah would say if he knew that he had been mentioned so much by people sitting on this committee, but we'll move forward now to Mr. Moore for the first round of five minutes.

5:25 p.m.

Conservative

Rob Moore Fundy Royal, NB

Thank you, Mr. Chair.

Thank you to our witnesses. We've had very interesting presentations so far.

Mr. Stohn, you said that you love mashups, but then you drew a distinction between ones that you love and ones that you don't love. Can you talk to the committee about how you define mashups, why you love them, and why there are some that cause concerns?

5:25 p.m.

President, Executive Producer, Degrassi: The Next Generation, Epitome Pictures Inc.

Stephen Stohn

The ones that we love—and they're all over the Internet—tend to be about three minutes long. We have a couple that the fans are very enamoured with, so they'll go back. The fans do incredible work, and it takes a lot of time. They take copies of the show, and they may go over 20 or 50 different episodes, taking little moments from them and putting them together in a three-minute video that glorifies this particular relationship or this particular couple. They'll put a Faith Hill song underneath it, and these were all patent infringements of copyright in the old days. We love it because a fan who is willing to take that amount of time is valuable and has invested in the characters on our show. That kind of activity is enormously positive to us.

What would not be enormously positive is a 10-hour mashup in which somebody says, “Oh, now here are my 10 favourite episodes of Degrassi”. They put them up, and every once in a while they pop up and say, “Okay, now here's episode two; you're really going to like this one, because Joey does this”, and then they go on.

That's really what we're talking about. I think we all clearly know the ends that we want to achieve. I'm not sure of the exact wording and I leave that to experts, but I think if we can eliminate that side, we can go for the real mashup.

March 5th, 2012 / 5:30 p.m.

Conservative

Rob Moore Fundy Royal, NB

Obviously, since Degrassi first came out—and I'm talking about the first one—there have been a lot of changes. You mentioned being on the forefront of new media, and how, while working in the traditional sense, you're also, from the sound of it, exploring every opportunity to promote through new media.

Can you talk about some of the copyright infringements you've dealt with, say, on your shows in the past, and the impact of those infringements on business?

5:30 p.m.

President, Executive Producer, Degrassi: The Next Generation, Epitome Pictures Inc.

Stephen Stohn

We are a small company, so we ourselves don't issue cease and desist letters, except to services like YouTube, which, in the United States, has a content ID regime. You can give them a notice, and then they'll follow up and provide some consistent application of what should or should not be on the service. We don't go after the Megauploads or the isoHunts.

In the United States, our broadcaster is one of the Viacom companies. We understand that the Viacom lawyers may do some of these activities on our behalf and on behalf of many other shows, but we don't get involved in that.

It is not the case that even 100,000 infringing uploads have the direct impact of stealing 100,000 videos from BestBuy. I have to acknowledge that there's something different when we've got a marginal cost of zero, in terms of producing an episode, and they take that episode. Yes, we've lost an opportunity, but would those 100,000 people have bought the episode or not? Is there some value in the fact that it's going forward?

I know I'm talking heretically, because we all say it's absolutely horrible. Sure, when the show becomes even better known, there is some value, but in the end there are sites that over a 24-hour period have 600,000 illegal files being uploaded. These kinds of enormous numbers create an entire alternate universe of “free”. We try to make our content available all around the world legally, but we just can't compete with free.

5:30 p.m.

NDP

The Chair Glenn Thibeault

You have 10 seconds, unfortunately.

5:30 p.m.

Conservative

Rob Moore Fundy Royal, NB

I will take those 10 seconds to thank you for your answer.

5:30 p.m.

NDP

The Chair Glenn Thibeault

Thank you, Mr. Moore and Mr. Stohn.

Mr. Benskin is next.

5:30 p.m.

NDP

Tyrone Benskin Jeanne-Le Ber, QC

It's a bit like old home week here. I also did a film with Tim Southam, which was called Island of the Dead, for those of you—

5:30 p.m.

Voices

Oh, oh!

5:30 p.m.

Chair, National Directors Division, Directors Guild of Canada

Tim Southam

Check it out.

5:30 p.m.

NDP

Tyrone Benskin Jeanne-Le Ber, QC

It's still available on Amazon.

There seems to be a climate in which artists, creators, and rights holders asking for remuneration within the business model are thought to be a bit of an irritant. From my perspective, the business model exists because there is content, and vice versa. If there is no content, there is no reason for people, radio stations, or whatever to exist.

If we go back to the old days of television, it really was about the advertising. There were shows in between the advertising. Soap operas are called soap operas because Procter and Gamble and other soap manufacturers sponsored them. The leads would come out and say they used such and such.

In any case, the content is a very important part of the business model. Do you agree or disagree?