Bill C-11 Committee on March 5th, 2012

[Stephen Stohn]

I'll start.

I don't have those overall figures, although I know our associations do. Hopefully in their briefs those types of figures are available.

What I'll say very briefly, and then let the others carry on, is that over the past few years, the licence fees that television broadcasters can pay have lowered. They have lowered for two reasons. They started lowering when specialty and cable started to become a force, when there were only the four big networks in the United States. Actually, at the time there were only three. They commanded the audience and they could pay enormous licence fees. As the market became more fragmented and moved into specialty and cable, their audience also fragmented, and the amount of the fee they could pay per show lowered. That is happening again in a second generation, as there is fragmentation because of the Internet.

If you want the same type of quality, particularly for the big-budget dramas, and I'll include Degrassi in there, that those fees ideally will be replaced in some ways. We can lower costs to a certain extent, but if we want to keep the quality up in order to really engage the audiences, that money needs to be replaced—and it can be replaced, through digital revenues. Indeed, it can possibly be more than replaced.

[Phil McColeman, Conservative, Brant, ON]

Mr. Barr, would you comment?

[Gerry Barr]

I think piracy has a vampire effect on revenues for creators and producers of creative work.

Perhaps you'll allow me, Mr. McColeman, to make use of the opportunity to just respond a little to my colleague Mr. Stohn.

The section of the standard agreement called “Reservation of Rights” reads as follows:

(a) Nothing in this Agreement or any Contract for Services to which this Agreement applies shall diminish any otherwise existing rights of the Director to collect any of the so-called “author's share” of secondary use payments in connection with any Motion Picture

So author's share is—I can say it—“author's share”, and that's a copyright acknowledgement.

[Phil McColeman, Conservative, Brant, ON]

I'll go over to you, Mr. Hollingshead, or...?

[Greg Hollingshead]

I'm going to let Marian Hebb field this one.

[Marian Hebb, Legal Counsel, Writers' Union of Canada]

I'd just like to say that the statutory damages provision is extremely important to the Writers' Union. There is a great deal of piracy on the Internet now. We hear about music a lot, but it's also happening with books and with articles and so on, so it's very important.

Statutory damage is something that's very easy for a creator to follow up with, because it doesn't cost very much to do, but the statutory damages provision has been weakened quite substantially by some things that I'm sure you don't think about. One of the things is that there is a distinction now between commercial and non-commercial infringers. It's left so that statutory damages are only with respect to non-commercial infringements, but there are huge non-commercial infringements done by big corporations. As well, there are big non-profit organizations that also do infringe copyrights, so that distinction is something we'd really like you to look at again and reconsider.

As well, it seems very unfair to writers if a whole lot of writers have had their works infringed but it's only the first guy who gets to the court and says, “Hey, we want to be able to elect to have statutory damages” who can get the damages. People who come along later against that particular infringer will get nothing, so—

[The Chair, NDP, Glenn Thibeault]

Thank you, Ms. Hebb.

Mr. McColeman, you're out of time, unfortunately.

Just as a reminder to the witnesses, we have a dynamic PV officer, so you do not need to touch your microphones. We'll make sure the mike's on for you. Is that okay? It's just a reminder.

We are now moving to Mr. Cash for five minutes.

[Andrew Cash, NDP, Davenport, ON]

Thank you, Mr. Chair.

Thank you all for being here.

I think it's important for this committee to hear in the real world how artists and writers and filmmakers and producers actually earn a living, because for every Degrassi out there, there are a lot of producers and directors and writers who are still struggling.

I'd like to start by congratulating all of you for your success and for the ability and capacity you've brought to your respective industries. I think it's really important. I know you're all active as mentors as well; that's important too.

I want to pick up on a couple of comments for some clarification, first of all with respect to mashups.

Mr. Stohn, your feeling is that in your world, at least in terms of Degrassi, mashups have been really helpful. It's in a sense the community conversation, if you will.

In your view, is this practice monetized? In other words, are people doing this for commercial uses?

[Stephen Stohn]

The kind of people I was describing are absolutely not. They don't end up making any money. YouTube, of course, may.

[Andrew Cash, NDP, Davenport, ON]

Sure. Okay.

I'm wondering, Mr. Barr and Mr. Southam, how you regard mashups. Do you share the same attitude as Mr. Stohn on mashups?

[Gerry Barr]

In a couple of quick words, yes. In the general sense, the issues are the revenues that attach to the sites that aggregate mashups, and then people go there. Of course they then become monetizable. Their participation is monetizable; ads appear, and that sort of thing.

The other thing is this digest idea that Mr. Stohn was talking about. It's certainly within the realm of possibility that digests would be published; that would represent a financial drain as well, so I would like to associate myself with what he said about that attempt.

[Andrew Cash, NDP, Davenport, ON]

Before you get into it, Tim, it's important to underline from our side that our position is that we want to see artists get paid. If some organization out there, an isoHunt or a Megaupload, is making money off the work of artists and producers, then that needs to be dealt with.

However, what you're talking about is a very different thing. I want to clarify that, because sometimes the distinction gets muddied; in fact, the distinction is muddied at a certain point, and one of the jobs we have here is to try to make that distinction.

I wanted to get into this issue of authorship for a second. What we're seeing in this bill is a right that musicians and content creators and owners of music have that's there, and no one's disputing that it's there. It's also a right that has been monetized, and no one's disputing that; however, this bill creates a loophole that users of the content, namely broadcasters, can walk through in order to not pay for that right, a right that has already been adjudicated by the Copyright Board.

What makes you think that codifying authorship of film or audiovisual works would ultimately be protected when actually what we're seeing in this bill is the reverse—that musicians are losing $21 million here at the stroke of a pen?

We think that is wrong. We think this is a bad direction to go, and not just for musicians. I mean, this isn't about paying twice for something—

[The Chair, NDP, Glenn Thibeault]

You have 20 seconds left.

[Andrew Cash, NDP, Davenport, ON]

Go ahead.

[The Chair, NDP, Glenn Thibeault]

I thought I would help you out.

[Gerry Barr]

That the right is codified will not guarantee that it is effectively used. The absence of codification of a right will certainly muddy the waters and make it much more difficult for those who legitimately have the right to assert it for both moral purposes and revenue purposes, and it's for that reason that we're asking for it. It's not that it would create a new right, but it would bring some very useful clarity to bear, not only in respect of the monetization of rights but also in respect of the amendments the government has advanced.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Barr. I'm sure as a director you can appreciate time.

We will move on to Mr. Braid for five minutes.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you, Mr. Chair. Thank you to all the witnesses for being here this afternoon.

Mr. Barr, I will start with you. It's good to see you again.

[Gerry Barr]

It's good to see you.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

On this issue of authorship for audiovisual works and the notion of authorship for writers and directors, is your concern primarily TV and movie, or is it—

[Gerry Barr]

It's for film on all platforms. It's audiovisual work, yes.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Are there any other jurisdictions around the world where writers and directors are defined as authors in similar legislation? Could you speak to that?

[Gerry Barr]

Yes. The most obvious example would be the European community, where effectively and as a matter of policy all members of the community will identify. They may identify a number of creators who may claim authorship of an audiovisual work, but a director is identified in every case. This is in every case. In some cases, screenwriters are identified, although not in all cases. In Great Britain, producers and directors are identified. That's where Mr. Stone and I come together, as it were.

In the United States, there's a fundamentally different system. Royalties are channeled to producers in the United States, but are split by producers with writers and directors. There is an array of designation around, but I could fairly say that you will never find it the case that directors are not included, except here. This is consequential.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Okay. Is it a compensation issue, though? It sounds as though the compensation framework, in the vast majority of situations today, is negotiated. In that case, why is this so important?

[Gerry Barr]

It is negotiated. The industry takes account of authors' rights. We do negotiate routinely. It may mean more than 100% of the original fee for a director in Canada to sell the use of this copyright. In the United States, it could be up to 300% of the original fee, so it's a very significant piece of the story. However, where it is not negotiated—and there are many examples—it all falls on the floor.

Our collecting society in Canada, the Directors Rights Collective of Canada, regularly receives remittances from European collecting societies for compensation and royalties based on directors’ rights, so we receive, but we can't give: we have no ability to collect in Canada for directors. That creates an asymmetry that really undermines the copyright system globally, because reciprocity is at the heart of this working system. National collecting societies collect for all, and then assign those revenues. We get revenues from Europe, but we give none back. Zero.