When Ferne was addressing the committee before we broke, she indicated in her presentation the concerns that RACS has with the UGC provision and the proposed distinction in the statutory damage provision between non-commercial and commercial infringement. I'd like to lay out an illustrative example that will help demonstrate some of the concerns we have with those two provisions.
If you will bear with me, I'll run down some facts for you. Here is our facts scenario.
Imagine on the one hand that you have a thrash metal indie band of young performers. They are just beginning to get a significant following of fans on the local scene, and have a website where they make half a dozen of their recordings available to the public for free digital download. They want to get their sound out there, and they would never think to attach a digital lock to their recordings.
On the other hand, you have an anti-Semitic, neo-Nazi organization that's headed up by one individual. This individual loves thrash metal and thinks it would be clever to mash up the band's six songs and mix in some of his own lyrics. The lyrics don't qualify as hate speech, per se, but they are objectionable to the band. He uses the mash-up as the soundtrack of the organization's own website, and it's heard all around the world online. His purpose is solely non-commercial.
Let's go through some analysis, first with the UGC. If the UGC provision becomes law, he'll be able to assert the UGC provision as a defence to the band's claim of infringement because, one, his purpose is non-commercial; two, he credited the band as author and performer of the songs in the mash-up; three, he had reasonable grounds to believe the songs he downloaded with the consent of the band didn't, and don't, infringe copyright; and four, he similarly didn't think the mash-up had any adverse effect on the band's songs.
It would be up to the band to demonstrate that the mash-up does have an adverse effect on the band's songs, and if they wish to challenge the organization's mashed up use of their songs, they would need to go to court. The band's case would be put at a disadvantage because the UGC provision does not make express reference to the band's moral rights in their songs and the performance of those songs, particularly their right to prevent prejudicial associations with objectionable causes like this one.
Now on the statutory damages provision, if the revised statutory damage provisions become law, the band would be confronted with the fact that they can only seek a maximum of $5,000 against the individual for all violations of all six songs. When you consider that it would cost the band thousands of dollars to pursue the claim in small claims court with a lawyer, query whether they'll be able to afford to do that under the law proposed by the bill.
At RACS, we think the government doesn't intend the foregoing consequences, of either the proposed introduction of the UGC provision or the proposed reduction of the statutory damages provision.
As we mentioned before, RACS supports the book of amendments that the Canadian Conference of the Arts has submitted to this committee. There are two amendments that address squarely the statutory damage provision and the UGC provision.
Those are our comments. Thank you.