Bill C-32 (40th Parliament, 3rd Session) Committee on Feb. 17th, 2011

[Jill Golick, President, Writers Guild of Canada]

Bill C-32 undermines collective licensing. The introduction of proposed section 29.22 is only one example. Collective licensing, whether legislated or free market, is a very simple solution to so many of the issues facing us. It allows consumers easy access to content and it provides remuneration to the creators of that content. Collective licensing has been working well in many sectors for decades. I know this because I get cheques for secondary uses in other jurisdictions through the Canadian Screenwriters Collection Society. Collective licensing is a working model for consumers' use of content and creator compensation, and it should be the model we embrace in the digital world.

However, even if there is collective licensing for audiovisual works, as a screenwriter I would not be entitled to it, because the author of the audiovisual work is not defined in the Copyright Act or this bill.

Like photographers' rights, the lack of definition has been an anomaly from the beginning. The Writers Guild of Canada and the Directors Guild of Canada agree that the screenwriter and director are co-authors of the audiovisual work. This is the situation in many jurisdictions around the world. By failing to define authorship, the bill fails to offer audiovisual works the same protections as other works. For example, proposed section 41.22 protects rights management information, which allows us to track the use of our work and subsequently earn royalties around the world. Without a definition of authorship, this proposed section's prohibition against removing the author's identity is meaningless for audiovisual works. After 12 years and several rounds of copyright reform, it's time to recognize the screenwriter and the director as co-authors of the audiovisual work.

It has been said that this bill is good for creators because it gives us locks that we can use to protect our works against piracy. For the record, as creators we have no control over whether a lock is added. That's the decision of the copyright owners, and while digital locks may preserve the existing business models for a time, the patterns of distribution are changing. Even owners may not realize the full value of the work. Protection against piracy only addresses part of the problem. There must be compensation for copying.

[The Chair, Conservative, Gord Brown]

We are going to have to cut you off there. We will be able to get into it a little bit in the questioning.

Thank you.

Now we'll hear from the Association des producteurs de films et de télévision du Québec.

You have the floor for five minutes.

[Brigitte Doucet, Deputy General Director, Association des producteurs de films et de télévision du Québec]

Good afternoon. My name is Brigitte Doucet, Deputy Director General of the Association des producteurs de films et de télévision du Québec, the AQPFTQ. With me today is Patrick Boie, Director of Communications.

From the outset, I must apologize to the interpreters. I'm going to skip certain passages of my brief.

The APFTQ has been active for 40 years and represents more than 140 production businesses operating in both official languages and in all sectors of audiovisual production in Quebec.

The APFTQ has filed a brief that states its position and also proposes legislative amendments, and those amendments and our positions are addressed under five component headings concerning our industry.

The first component concerns the new rights that benefit performers. They have been added to comply with Canada's international obligations, but those same obligations state that these new rights should not apply to the field of music or to the audiovisual sector. However, the bill has not made the necessary adjustments to ensure they do not apply to the audiovisual sector. We are asking the government to make those amendments. Our proposals are provided in our brief.

The second component concerns piracy. It appears to be the government's intention to fight or at least limit piracy in Canada, and we believe that the bill, as drafted, does not achieve its objective. It is true that one specific clause of the bill provides that services that facilitate piracy violate copyright. However, one of the conditions that must be met cannot be met since, on the one hand, consumers are required to commit an illegal act by using those services and, on the other hand, there is a new exception, private copying, which legalizes what consumers do in the context of mass piracy. Consequently, any chance for rights holders to obtain justice is short-circuited.

To combat piracy, we propose a number of measures, details of which are provided in our brief. In our view, services that facilitate piracy are clearly illegal. Those services must be subject to a system of pre-established damages and they must have a deterrent effect. These services must not be released from liability through the system of exemptions for Internet service providers. Lastly, any act by consumers to make content available and to reproduce content when they pirate protected content must clearly be made illegal.

In addition, the circumventing of technical protection measures, which should be illegal under the bill, is, we believe, afforded minimum protection as it concerns only access to works and not other protected acts such as reproduction. A number of emerging business models are based on creative and functional protection measures. To allow digital exploitation to be deployed, it would have been desirable for any circumvention of protective measures to be illegal. However, we believe the bill must at least ensure that the circumventing of measures that protect access to work remains illegal.

The third component addresses all the new exemptions provided for under the bill. As you will see in our brief, we believe that a number of those exemptions should not be added, but if the government intends to maintain them, we are submitting a series of adjustments to provide a framework that will prevent potential abuses.

The fourth component proposes a new system for financing the digital use of works. This system would consist of annual contributions from government and annual contributions from service providers that profit from digital content. As an exceptional contribution from government, the APFTQ asks that a significant portion of the sums collected in the next awarding of the fourth generation telecommunications spectrum also be paid into the fund to finance the production of new content that can be digitally exploited and to compensate rights holders for certain digital uses of their works. Further details are provided in the brief, and we will be pleased to discuss them as necessary.

Lastly, the APFTQ reiterates the demand we have submitted on numerous occasions, and on which we have the agreement of directors and screenwriters, that the issue of who is the author of the cinematographic work be resolved once and for all.

There is no mention of this point. The only way to determine with any certainty who the author is is to submit the issue to a court at the very end of a production, for it to determine who are the creators who make it so that a complete work is protected. This is impossible. It cannot be done, and it is not being done.

We are therefore sailing on troubled waters. At times it may be the director, at others the screenwriter and, at still others, the courts have determined that the producer was the author. One can imagine situations in which the costume or set designer might be the author. We have a different solution to resolve the situation—

[The Chair, Conservative, Gord Brown]

Merci. We'll have to move to questioning.

[Brigitte Doucet]

You can see that in our brief.

[The Chair, Conservative, Gord Brown]

Mr. Garneau will have seven minutes.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chairman.

I'll begin by speaking to the representatives of the ARRQ. In your testimony, you discussed the exemptions, and you emphasized that that caused problems. I would like to discuss that with you in a little more detail since there are a number of exemptions in this bill.

First let's talk about the exemption for parody. Is that an exemption that's on your list?

[François Côté]

Our list doesn't contain those details. Parody is like a citation. A citation is a citation. What we object to is the use of a work and its transformation without the payment of royalties. A parody generally identifies the work to which it refers.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Very well. With regard to content generated by users, what are called mash-ups, what is your view on that exemption, which incidentally is unique in the world?

[Caroline Fortier]

It's the YouTube exemption?

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Yes.

[Caroline Fortier]

It's another form of, not parody, but almost. In fact, content is used in the background and new content is created. No consideration is given to the rights associated with the first content used. So this is a use which, in our view, is illegal and unacceptable.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Would a framework or a much more refined definition of what this kind of exemption constitutes be acceptable to you? Or are you simply opposed to material on YouTube, unless royalties are paid to you?

[François Côté]

That's it. To refuse to allow our material to be put on YouTube, but first to recognize the origin of the original work and then to pay the licences.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

All right.

Let's talk about the exemption for the education sector.

[François Côté]

We pay for education. Teachers are paid and the people who write school text books are paid. The people who make education tools have to be paid for their work. However, I don't mind that there are special tariffs to promote education, but the authors must not be made to go hungry. We have to pay the people who take part in the education of children.

I don't think the exemption can be complete. The education sector should have to pay to use works.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Very well. I don't want to cause a fight, but I'd like to know your opinion on authors. Who are the authors? We are dealing with two appreciably different views here. Can you briefly give us your arguments? Then we'll hear those from the other party.

[François Côté]

In our opinion, the authors are, first of all, people. Moreover, the act states that they are persons, not organizations. They are persons who create the document. In our opinion, the two main authors are the director and the screenwriter. Our view is entirely the same as that of the Writers Guild of Canada. We share the same opinion.

Certain arrangements have been made in other countries. In fact, anyone who makes the slightest contribution to the making of a film takes part in its creation. However, you also have to consider the people who have an effect on the work as a whole. Who has an effect on the work as a whole? That's definitely the director and the screenwriter. Then there is research to be done. The director and screenwriter absolutely have to be considered. They alone can be considered as authors.

[Brigitte Doucet]

In fact, our position is slightly different, although it is not opposed to that. A lot of subtle distinctions must be drawn. There are differences between film and television, for example.

In television, one can imagine a television program for which the director, for example, does the airwave transmission. The airwave transmission is clearly identified in France, but not here. Airwave transmission does not enjoy copyright. One can imagine a television program like what we call a "chair show" in French, where someone only writes linking texts. That may be a welcome and the introduction of the person who is going to do his number. We believe that is not subject to copyright. There could be a television program where the director and screenwriter would not have copyright. At the same time, if you write that the authors must specifically be the director and the screenwriter, that my have the effect of assigning rights where there are none or, on the contrary, of stripping rights from those who should have them. I'm omitting the details, but I could discuss this at length.

The solution we are proposing is that an exemption be included in the act, as there currently is one in the case of an employer. An employer who pays people to create a work is the primary rights holder. He's not the author, but he is the primary rights holder for the purpose of subsequently exploiting that work.

In our view, the producer is in the same situation, with one exception, and that is that our industry consists mainly of freelancers. So we can't automatically enjoy the exemption appearing in the act. In the same respect as an employer, we pay everyone who takes part in preparing the work and, we are ultimately the ones who exploit it. That, in short, is our position.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you.

The Documentary Organization of Canada spoke quite a bit about the issue of digital locks.

I just want to make sure that I understood clearly that you believe there should be provisions for circumventing digital locks for non-infringing purposes.

Am I clearly understanding what you were saying?

[Lisa Fitzgibbons]

That's correct.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

You work on documentaries. In your case, you often borrow material that comes from various sources.

[Lisa Fitzgibbons]

That's the very essence of the material that documentarists work with. Generally, if they are making a documentary that takes the form of a criticism, they will have to cite certain works. In certain cases, we have literary works and authors cite other authors. We are not questioning the citation right. Documentarists need to cite visual material, whether it be from archives or photographs. We believe that, to have access to that material, documentarists should not be penalized, should not be treated like criminals.

[The Chair, Conservative, Gord Brown]

Thank you.

Madame Lavallée will have seven minutes

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you very much, Mr. Chairman.

First of all, I have a question about the co-authors of an audiovisual work.

Mr. Côté, I'm particularly proud to see you here because I know you are one of the directors of Passe-Partout, a program that my children grew up with. Passe-Partout holds a particularly important place in the lives of my children and in mine. I also watched the program and I could recite the nursery rhymes my children learned.

What's being done in other countries with regard to the copyright of directors and screenwriters? Who is the director, who is the author of a film or of a television program?