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.
General Manager, Society for Reproduction Rights of Authors, Composers and Publishers in Canada
I'm not in the business of the performing right, but as legislators, you decided in 1997 to bring in other rights, which were the rights to the performing artist and the record companies, or what we call neighbouring rights. Up to a certain point it was in the law. It has an effect; for sure, that will increase.
The second thing—
Conservative
General Manager, Society for Reproduction Rights of Authors, Composers and Publishers in Canada
The second thing is SOCAN. They had an increase in the rate in the last five or six years. They have had that rate for the last 20 years, and the reproduction right at SODRAC is obviously another right.
We're having this discussion in Canada, but all around the world and in Europe, there is no discussion about that. They are paying the neighbouring rights, they are paying the reproduction rights, and they are paying the performing rights. They are all paying that. It's only here that we're having this discussion.
NDP
The Chair NDP Glenn Thibeault
Thank you, Mr. Lauzon and Mr. Lake. Unfortunately, we're well over the five minutes.
That will conclude our second round of questioning.
With that, I'd like to thank our witnesses for coming today. Your perspective and thoughtful input to this committee are much appreciated.
To the committee members, we will now break for four and a half minutes. We will start at five o'clock on the dot to ensure we can get through the entire second round in the next session.
With that, we will suspend.
NDP
The Chair NDP Glenn Thibeault
Ladies and gentlemen, members, and witnesses, welcome to the second half of the seventh meeting of the Legislative Committee on Bill C-11.
I'd like to welcome all of our witnesses: from Epitome Pictures Inc., Mr. Stephen Stohn; from the Directors Guild of Canada, Mr. Gerry Barr and Mr. Tim Southam; and from the Writers' Union of Canada, Mr. Greg Hollingshead and Ms. Marian Hebb. Welcome, everyone.
I know you've briefed by the clerk that each organization will have 10 minutes to present, so we will give you that 10 minutes.
We will start with you, Mr. Stohn.
Stephen Stohn President, Executive Producer, Degrassi: The Next Generation, Epitome Pictures Inc.
Thank you very much.
Epitome Pictures Inc. is a small business. We're a mom-and-pop shop: I'm the president, and my wife is the CEO. She's more important than I am, as it should be.
We have been in business for nearly a third of a century. We're a television production company. The one that you would know the most is the Degrassi series that we produce.
I'm also the chair of Orange Lounge Recordings, which is a record company that does the things that a record company does on the Internet, including using all the facilities available—the Topspins and the iTunes and every conceivable form of exploitation of digital rights.
We also do an innovative co-venture with Sympatico in which we produce video concerts of artists who come into Toronto. We bring them into the studio and do live sessions with them, which are then broadcast on the Internet. They're called Live at the Orange Lounge. Dozens of Canadian acts have done this. Some are well known, like Nelly Furtado and Avril Lavigne, while others are not as well known. There are many famous international acts, and I include Katy Perry, Amy Winehouse, the Pussycat Dolls, and OneRepublic. That's just to say I'm immersed in the digital world.
Coming back to the television production side, our Liberty Street series, which started in 1995, was the first series in the world to launch simultaneously on air and with a website. Our Riverdale series, which we started in 1997 and which starred some very famous and talented Canadians—including, most notably, Tyrone Benskin—was the first series in the world to launch a companion web video series. It was a weekly series and, in effect, a behind-the-scenes soap opera. The new version of Degrassi, starting in 2001, launched a groundbreaking website, at a cost of more than $1.5 million, to enroll fans in the Degrassi school and engage them in interactions with our fictional characters. In effect, it was a proprietary Myspace long before Myspace was ever invented.
Degrassi was the first series in the world to produce video webisodes presenting ongoing stories that featured our main sets, main cast, and main writers, and being shot with our main crew. Degrassi was also the first series to make full episodes legally available in Canada both for download and streaming. We've experimented with various alternatives since then, including making episodes available on the Internet prior to broadcast. Then we tried a week prior. We tried 24 hours prior; we tried 24 hours after; now we simply go simultaneous on iTunes and on the web. An entire season of Degrassi, which is now 45 episodes, is available in Canada on the MuchMusic website for free. There's advertising, but an entire season is available for the fans.
If you search “Degrassi” on Google, you'll get over 11 million hits. We have over three million “likes” fans on Facebook. Interestingly, if you search “Degrassi mashup” on Google, you'll get more than a million hits.
The list goes on. We have very active Twitter accounts where our writers provide Twitter feeds for our characters. We do vlogs and blogs. We have a Degrassi game already in the iTunes App Store. We have another co-viewing app coming out this summer. We're doing everything digital we can think of.
I'll note that our new series, The L.A. Complex, which launches next month in the United States, will launch simultaneously on The CW, which is an over-the-air network, and on iTunes, Amazon, all the download services, and also on Hulu, which is a Netflix type of service.
I mention all of this not to pat ourselves on the back, but rather to make it clear that while we are grateful for the legacy modes of distribution—we love our television broadcasters, and they are a linchpin—that is not where we are fixated at all. We are and intend to always be on the absolute forefront of the new media. I am not a university professor who has well-intentioned but perhaps ultimately misguided theories about what might or might not work on the Internet; I am part of a passionate, active, and engaged team that is immersed day in and day out in the practicalities of the digital world.
I have two key take-away messages that I would like to put to you today.
First, we producers are devastated by the torrents and the cyberlockers who take the shows that take us so much time and effort to produce, make money from them, and return nothing to us. More and more every day we rely on return of our investment from digital rights—from legal, authorized streaming from broadcaster websites, from Netflix- or Hulu-type services, from legal, authorized downloads from iTunes or Amazon-type services, and from dozens of other legally authorized digital services that make Degrassi available today; therefore, the first key take-away from us is to please pass Bill C-11 as a matter of extreme urgency.
The second key message is also a plea: please make all the technical changes necessary for the intent of Bill C-11 to actually be carried into effect.
I am not here today to discuss commas here and reasonables there. I leave that to the experts, such as my brilliant friend Barry Sookman, and to our CMPA producers' organization, and to others such as Music Canada and the Motion Picture Association - Canada. It is my understanding that if implemented today as currently drafted, Bill C-11 would have the perverse effect of inadvertently sheltering the very websites, services, and illicit activities that the government was intending to eliminate, so please give us absolute clarity that the BitTorrent sites like isoHunt and the cyberlockers like Megavideo will be put out of business in Canada.
Finally, I'd like to discuss mashups. We love mashups. As noted before, there are myriad Degrassi mashups available throughout the web; to us, they are a confirmation of our fans' loyalty and engagement, and that is something we embrace and applaud vigorously.
What we don't love is drafting in Bill C-11 that we are told may permit all, or substantially all, of an episode to be downloaded or streamed under a wraparound loophole in the mashup language. We also don't love anyone making money from these mashups, including through placing advertising around or adjacent to the mashups, without our being mandated to share in that revenue. We need revenues from our digital endeavours to continue producing our shows. We can't compete with material that is free and we don't want others making money from our hard work and investment without being allowed to share in the return.
In summary, our plea is to pass Bill C-11 urgently, but to please include the technical amendments necessary to clearly eliminate torrents and cyberlockers and to ensure that the mashup exception truly applies only to what the government and all of us really mean by a mashup, not to wraparounds and other loopholes.
Thank you very much for your invitation to make these comments.
NDP
The Chair NDP Glenn Thibeault
Thank you, Mr. Stohn.
Now we will go to the Directors Guild of Canada for 10 minutes.
Gerry Barr National Executive Director and Chief Executive Officer, Directors Guild of Canada
Thank you.
Members of the committee, my name is Gerry Barr. I'm the national executive director and CEO of the Directors Guild of Canada. With me today is Tim Southam, a director of both television and feature film on both sides of the border and chair of the Directors Guild national directors division. To anchor him for you, for those of you who watch House, his most recent work was in evidence in last week's episode, so if you're a fan of that show and want any backstory, he's the guy to go to.
This is, of course, a series that has more than 50 million viewers around the world, and it's a classic example of what the Canadian audiovisual industry can do in terms of both level of quality and dramatic series.
DGC is a member of Mr. Stohn's “day in, day out” crowd. As a national membership-based labour organization, it represents over 3,400 key creative and logistical personnel in the film and television and digital media industry, and we're pleased that after more than a decade and numerous attempts, copyright legislation in Canada will be updated with the passage of this bill.
Bill C-11 brings our copyright regime into compliance with WIPO treaties. It takes steps to protect creators from content theft, it rightly classes parody and satire as new categories for fair dealing, and it attempts to modernize Canadian copyright laws for a new digital age. All of this is very welcome.
The preamble to the bill sets out the importance of “clear, predictable and fair rules” to support creativity and innovation as well as the importance of legislation that “provides rights holders with recognition, remuneration and the ability to assert their rights”.
Naturally, we strongly support those principles, but we're here to say that Bill C-11 still needs some help to live up to those important goals.
As an organization with members who both create and use copyrighted works, we know that copyright reform is a balancing act, and we're here today to ask for technical change to ensure that Bill C-11 contains the clear rules that are called for in that preamble.
Clarity is at the heart of effective copyright legislation. Creators and copyright holders need to know where they stand and what limitations are in place to benefit users' access to the works they create. The absence of clarity leads inevitably to having courts decide these matters. Costly time-consuming litigation benefits no one—not creators, not users, not others in the production chain—and should never be seen as preferable to clear and predictable legislative rules.
Technical amendments can protect rights holders' revenues and their ability to control how and where their work is disseminated, as well as protect users from unintentionally infringing on those rights. To that end, the DGC is one of 68 arts groups supporting the package of amendments submitted to this committee by the Canadian Conference of the Arts.
I'd like to turn to Mr. Southam for a few words.
Tim Southam Chair, National Directors Division, Directors Guild of Canada
Thanks, Gerry.
If anyone is looking for House, it's House M.D. and it was last Monday. The series continues until its season—and, in fact, series—finale sometime in April. It is not a homegrown series, but we do have Flashpoint and Rookie Blue and, of course, Degrassi, which is the great pioneer in Canadian-made homegrown TV series that have completely won over the world in the last decade and a half.
Today we'd like to discuss an issue that is not covered by the CCA submission, yet is of huge importance to the DGC. This committee review creates the opportunity to provide clarity with respect to issues of authorship of audiovisual works. For most works in which copyright subsists under the act, the author is self-evident. For example, the writer of a novel, the sculptor of a sculpture, the painter of a painting, or the composer of a musical score is, in each case, clearly the author of that work.
We haven't the same clarity with audiovisual works. The rights of the works' creators are not acknowledged under the Copyright Act with the same clarity. It's time that this gap in the act was closed. The DGC believes the technical amendment very narrowly framed to define the authors of an audiovisual work as the work's credited director and writer will do just that.
The director and screenwriter, of course, create the audiovisual work. The writer begins with a blank page, and characters, dialogue, and story elements emerge. The director imparts a three-dimensional vision to the work. Casting, selecting location, staging, editing, sound design, scoring, visual effects, colour correction—all aspects of committing the work to the screen—fall to the director.
Defining the authors of the audiovisual work is key to giving full effect to some of the amendments included in Bill C-11 regarding the recognition of moral rights and the use of digital rights management systems. It's important also to say that statutory recognition of authorship brings codification and clarity to the already existing rights of directors and writers as recognized in legal precedent and industry practice.
National Executive Director and Chief Executive Officer, Directors Guild of Canada
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.
NDP
The Chair NDP Glenn Thibeault
Thank you, Mr. Barr.
We will go now to the Writers' Union of Canada for 10 minutes.
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.
NDP
The Chair NDP 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.
Conservative
Rob Moore Conservative 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?
President, Executive Producer, Degrassi: The Next Generation, Epitome Pictures Inc.
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.
Conservative
Rob Moore Conservative 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?
President, Executive Producer, Degrassi: The Next Generation, Epitome Pictures Inc.
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.
Conservative
NDP
NDP
Tyrone Benskin NDP 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—
NDP
Tyrone Benskin NDP 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?
