Thank you very much.
Good afternoon. My name is Alexander Crawley. I am executive director of the Professional Writers Association of Canada.
We represent the interests of Canadian freelance writers of non-fiction works and have been doing so for 35 years. We welcome this opportunity to offer our perspective on this reform process that is so vital to Canada's success in adapting our law to enable a thriving digital economy.
We will begin by reflecting on the committee process itself and will then highlight the issues that most affect writers and the direction we feel you must take to balance and strengthen Bill C-32. Finally, we will tell you what we like in Bill C-32.
First, we take you back to the observation of a witness you heard on the first day you opened the process beyond politicians and civil servants. Professor D'Agostino, of IP Osgoode, accurately informed you that individual creators are caught between corporate users of their works--that is, publishers, manufacturers, distributors, and retailers, and in the digital area, web-based services and ISPs--and the final recipients of our works, the individual users as consumers and as citizens. We need a law that clarifies our relationship with both types of users.
With appropriate recognition of our rights, we can negotiate with our industry partners, but we can't sustain our businesses without the fundamental principle, in the law, of compensation for use.
Next, we remind you of the testimony of freelance writer Douglas Arthur Brown on December 13 of last year. Mr. Brown provided clear evidence that illegal copying in the education sector is a real danger that is going on even now, and that by adding the term “education” under fair dealing, this bill will bring about a huge spike in such market-destroying behaviour.
We finally go to February 1, when Bill Freeman, freelance writer, and Marvin Dolgay, freelance composer, clearly outlined how this bill, as drafted, imperils their livelihoods and--more significantly, from the public interest perpective--imperils the very possibility of a new generation of creative Canadians sustaining themselves and a digital economy.
Our members' writings appear in magazines and newspapers of every size and description and in every region of Canada, online and in print. Digital technologies make their replication easy and efficient and provide the diversity of voices that give Canadians access to the rich and varied perspectives on which a healthy society depends. All of our writers encourage the copying of these works by educational institutions, corporations, government agencies, ancillary publications, online aggregators, and, of course, individual Canadians, but as with any small business, they need to be compensated for these uses of their property.
A strong system of collective rights administration is by far the most practical method of assuring appropriate compensation for these secondary uses that abound in the digital marketplace. We can and will continue to negotiate primary uses with our partners in industry. Everyone recognizes that models are changing and that the new tools can allow creators to reach the market much more efficiently than ever before. Indeed, we think we can compete with old models if we are allowed to develop our businesses through appropriate recognition of our rights in our own works.
For PWAC, the Professional Writers Association of Canada, these are our priority issues with Bill C-32.
First is the addition of “education” as an exception under fair dealing. This will deprive PWAC members of between $500 and $5,000 a year in income from secondary uses through our collectives. If the committee can't find its way to delete this provision for political reasons, we ask that at a minimum you define its application in such a way as to strengthen, not weaken, collective rights administration.
Second, on the test for fairness under fair dealing, we support the inclusion of the Berne three-step test that fulfils our international obligations, and we are heartened by indications that the committee will invoke it through the amending process. We certainly hope you do. We prefer CCH, by far, for obvious reasons.
Third, concerning the limit to statutory damages, the recent settlements in the class action suit Robertson v. Thomson and a subsequent suit involving Torstar Corporation and other publishers showed the level of damages to freelance writers that infringement can cause. The amounts there come to over $15 million paid to freelancers by major Canadian publishers. We have provided copies of the Supreme Court decision, in the first case, for your better understanding of the issue.
We have no objection to the concept of limiting damages for individual non-commercial infringement, but the system currently in place for institutional and commercial infringements should be retained.
With respect to the safe harbour provisions for ISPs, we need those who deliver our works to their markets to actively support the principle of compensation for use. Notice and notice will not change the culture of rampant illegal copying. We need a graduated response that contains a real incentive to diminish it. Better yet would be a new business model based on a true partnership with ISPs along the lines proposed by the Songwriters Association of Canada, but we understand that this is beyond the scope of this committee.
These are our primary issues with Bill C-32, as drafted.
On the positive side, we do appreciate some of the provisions of the bill that extend rights recognition to our fellow freelancers, such as photographers and performers. However, we fear that the weakening of our markets through the new exceptions undermines even these gains.
As to the much debated technical protection measures, we acknowledge that our industry partners in the corporate sector may find them useful, but they do not give individual creators the tools we need to fully exploit digital technology through innovation.
Thanks for your attention. I'll be glad to answer your questions, to the best of my ability, on our oral presentation or on the written brief we have provided.