Bill C-32 (40th Parliament, 3rd Session) Committee on Feb. 1st, 2011

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

My understanding is that the other difference from the record industry or the literature industry, if I may say so, is that when you make your film and it comes out, all creators, all artists have already been paid whereas in the record industry, when the record is on the market, no one has been paid yet usually, even if its creators have worked on it for a year.

Am I understanding the difference correctly?

[Reynolds Mastin]

We can confirm that for our industry, but we don't really know how the record industry operates.

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

So let's talk about your industry. I will talk to the people from the record industry about the other component.

That means that when you start filming, most people have started getting paid and, when your product is on the market, from day one, everyone has been paid. Is that right?

[John Barrack]

I guess if I were the performer, I might view it differently. I think I've been partially paid at the time of production, and I'm waiting to be partially paid; the other part of my payment will come after the product has been distributed. I guess the concern, if we have some TPMs, is that I'm not going to see those second payments. I'm not going to necessarily want to stay in Canada. I'm not going to want to continue to contribute to great Canadian content.

[Reynolds Mastin]

The basis of our industry, essentially, is that we divide the world into territories, and we license for a specific market. In those territories where the market has evaporated because we don't have the right frameworks in place for copyright, then the ability for the producer to actually recoup that investment in the film is gone. Any residual payments owed to performers also evaporate.

[John Barrack]

Quite simply, if you're an international distributor of a Canadian film or television program, you're not going to want to buy that program, you're not going to want to pay the Canadian company, if it's already in the world. If it's already gone into the world for free, why would you pay that Canadian company for those rights? That's when we lose a critical mass of talent in this country and our ability to continue to reinvest.

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

Before I close, I would like to talk to you about the education exemption. If I understood correctly, you are in favour of defining the word “education” better. So the education system has also been a great market for you. In fact, when your films are screened in schools, you usually collect some royalties. In addition, as you know, respect for the value of artistic works and the price we should pay to access them is an excellent principle to be instilled in young people and in the education sector.

[Reynolds Mastin]

You're absolutely right; the proposal we put on the table here was developed in a spirit of compromise, if you will--namely, that if we're going to have an additional head under fair dealing for education, we feel that the minimum thing required is that there be clear definitional parameters placed around education.

[John Barrack]

Again, we're not looking to make a bunch of lawyers--

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

Let's suppose that instead of writing the word “education”, they use the words “educational institution” or they define it. Basically, that means that educational institutions or schools, who currently pay for copyright, will no longer pay. We could be smart alecks and say that this will end up in court, but we know they have little chance of winning in the end.

[The Chair, Conservative, Gord Brown]

Okay, very quickly; we have to wrap up.

[John Barrack]

I think that gets back to Mr. Del Mastro's point. What we're hoping is that this bill will have sufficient specificity to eliminate the need for that kind of litigation and to make it very clear, whether we import certain tests into the bill or otherwise, that there is a copyright attached to the use of copyrighted materials in an educational context.

[The Chair, Conservative, Gord Brown]

Thank you.

Mr. Angus, go ahead for seven minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

Thank you for coming today. At the outset I'll say congratulations. I think the productions that are coming out of Canada in the last four or five years are almost unparalleled in terms of the quality of work that's come out of Canada since I can remember. I don't know why it is, but it seems to me there's a real renaissance in Canadian film, television, and independent productions. Of course, we want to make sure that continues.

I have a number of questions in terms of just trying to figure out how we're going to do this. The question of TPMs is certainly crucial to this bill. We certainly support the need to use TPMs to protect business models, to ensure that the investments creators make aren't just sent up the chimney as soon as their works are released.

You talk about support for the parody and satire provisions, yet if there's a digital lock on a product, they won't be able to excerpt it for parody and satire. Is there a balance so we can say if someone's doing it for parody and satire, they can circumvent the digital lock, or do you just say you have parody and satire, but if there's a digital lock, they don't have that right?

[John Barrack]

Again, I'm not an artist per se.

I thank you for your comments with respect to the quality of Canadian content having improved in the last few years. That's certainly something we're very proud of, and it makes our job of representing producers much easier when there's a broader public acceptance, both domestically and internationally, of our work. I really do appreciate those comments.

I think the difference with parody--and this goes back to the whole idea of definition--is that we're really trying to understand a true creative new use of something or making a really new work in the context of parody versus, again, abusing a mashup type of provision to effectively steal a copy of something, put a new top and tail on it, and say, “Now introducing season five of Degrassi”, and calling that a mashup. The difficulty in this conversation is it's a continuum. Where do we find that balance?

I think this committee is probably going to have some very interesting clause-by-clause work to do in that area, and we would be very interested in contributing to that process to the extent that we can, but we couldn't possibly answer for you today exactly how we would do that.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I guess it's that issue of the continuum, because I've spoken with documentary filmmakers who are very concerned about the digital lock provisions preventing them from being able to excerpt works that are under copyright. If anything has a lock on it, they're not going to be able to use it. I asked one witness, and they said, “You can take a screen shot of a computer.” You can't do quality work with a screen shot of a computer.

That's a legitimate work, where you're creating a new work, and you're going to have to make reference. If you're going to do a history of Canadian movies, you're going to have to be able to show those movies. If right now they're only under digital lock, you're going to have to find a way to do that. That, to me, is fundamentally different from saying, “If you don't like a digital lock, you can just take it off, and then you can go and do what you want with the film.”

Do you, as an organization, see an ability for us to narrow the language so that we are making sure it's not actually interfering with the ability of artists to create works?

[Reynolds Mastin]

Our concern is twofold, and we recognize that this is a very difficult issue. The first part is what that language would look like and whether it would, for all intents and purposes, eviscerate the TPM provisions in place. We looked at a variety of different options in that regard and we always came to the same conclusion, which is that in attempting to find that balance, the moment you begin to water down that provision, there are all kinds of opportunity for those who are not going to break the locks, purely for fair dealing purposes, to use it for purposes that none of us here want. That's sort of the first issue.

The second is that we certainly recognize documentary filmmakers, because we represent them. Some of them, but not all of them, have a lot of concerns about this. It depends on who you speak to. One thing to bear in mind is there are ways of obtaining copyrighted material other than through the fair dealing provision, whether it's through the licensing of that material from the copyright holder or seeking permission from the copyright holder to use that material in your documentary. It's not a perfect solution, but it's not as if it's TPM protected, in which case there's an absolute bar against the documentary filmmaker using that material.

[Charlie Angus, NDP, Timmins—James Bay, ON]

We won't continue going on with this, but I know, having spoken with John Greyson, that he's very concerned about having to ask the permission of some copyright holders who'll say, “No, you're not doing parody and satire of my work, so end of story.” We put in a provision for parody and satire, and someone who doesn't want to be parodied says no. So I do believe we're going to have to come back to this.

I'm interested in the issue of the commercial infringement versus personal use, because I think we're all agreed we want to make sure that widespread commercial infringement is not destroying our business markets. The problem we again go back to is that your biggest threat is your fans. They're posting stuff because they love it. That's going to continue as our business models are changing. For example, Facebook--who would have thunk it?--is now the number one driver of eyeballs to online content.

How do we ensure that we're not destroying the very fan base that actually wants to support? This is their way of getting the works out there so you guys are remunerated, without, basically, suing the kids who love Degrassi and want to put it out there so they can see it.

[John Barrack]

As we said, Mr. Angus, I do not think Canada has a culture of suing kids for doing something like that.

I think the work of this committee, the work of this government, and this whole discussion brings about public debate on this very issue and a broader understanding, hopefully, in the minds of all consumers, particularly young consumers, of the activities they're undertaking and that they're not of neutral effect.

You say that these activities will continue. No doubt those attempts will continue until we change attitudes.

I think the work of this committee is both carrot and stick, if I can put it that way. It is about trying to create a bill that is fair to consumers, keeps consumers interested, and doesn't disincentivize them, in some respects, from wanting to consume Canadian content. By the same token, recognize that if we destroy those business models, we are not going to have any content for them to consume.

[Charlie Angus, NDP, Timmins—James Bay, ON]

In terms of the provisions in this bill to go after commercial infringement, do you believe that it's sufficient? Again, going back to personal use, we have seen in the United States, which is very litigious, that it has very much poisoned the waters in terms of going after statutory damages. We have seen all kinds of people dragged in with their lawsuits.

Of the latest 100,000, most of those are people who just get a bill saying pay us $5,000 or we will sue you for $1 million. You don't have the power to stand up to Sony when they send that bill.

There is nervousness that we are going to see that. I agree with you that we are not a litigious culture. But how do we make sure that we have enough ammunition to shut down widespread commercial infringement without overstepping the bounds...? Again, the kids who actually love Degrassi and want to post it don't think they're doing anything wrong.

[The Chair, Conservative, Gord Brown]

We'll have to wrap up in just a second.

[Reynolds Mastin]

Madame Lavallée indicated that we had seven asks. I am realizing that there are eight, actually.

[Charlie Angus, NDP, Timmins—James Bay, ON]

That's why I led you to it.

[Reynolds Mastin]

Thank you.

One thing that we think is very important in order to target commercial infringers is to ensure that the statutory damages provisions in place in the bill also apply to those who enable infringement.

We want to make sure that those secondary liability provisions also have statutory damages provisions supplied to them.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll move on to Mr. Braid for seven minutes.