Evidence of meeting #12 for Canadian Heritage in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was work.
A recording is available from Parliament.
Conservative
The Chair Conservative Gary Schellenberger
I will now call this meeting to order.
Before we get into the meeting, I must say welcome back from summer, everyone. It seems a short time ago that we met; it was shortly after the House was recessed that we met, and we didn't even ask for overtime pay, did we?
Oh, Mauril did?
I presented the last report from Mr. Kotto to the House last week. It was my first opportunity.
Yes, Mr. Bélanger.
September 25th, 2006 / 3:35 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
It's a bit unusual, but I would inquire formally if you are aware of the rumour, and whether or not you can substantiate that rumour, that as of this moment the Minister of Heritage might be involved in a public announcement somewhere regarding funding of the programs in her department.
Are you aware of any of that?
Conservative
The Chair Conservative Gary Schellenberger
I'm going into a little bit of a preamble here. Our gentleman here has to have a little bit more time before we start our meeting on copyright.
Again, I must thank my nominator, Scott Simms, for nominating me as chair. It's a tremendous honour for me to be the chair of the heritage committee. I'm sorry I didn't quite reciprocate in the way that I should have maybe with a nomination, but I am very pleased, again, to chair this committee, which we seem to have gotten along so well with.
There are a couple of things we are going to do today. We will carry on our meeting with the officials who will be here today until 5 o'clock. At 5 o'clock we'll switch into a little other business we have to do. We have some scheduling we should look at, or that at least everyone should have to peruse.
In regard to the next meeting, it goes back to some of the suggestions that were made at our last meeting about where we wanted to go as a committee.
Also today I'll be reporting a draft schedule of meetings for October, and I'll be outlining a museum study to be presented to members, as well as an operational budget proposal for a railroad museum study, and this is with the expenses. I think Mr. Scarpaleggia has made a request that a railroad museum from his area might want to come here, and I know Mr. Abbott has suggested a railroad museum from his area.
I have a couple of other things to put forward when we get into museums. It may be that each one of us could think of a small museum in our riding that we might ask to come as a witness. Then we would all know where we're coming from around this table. I think if there's a museum in your riding that could come, that would maybe represent something we might want to do. It's something to think about. Maybe down the way we could invite some of those people here when we come to discussing small museums.
Again, I have one announcement, and I'm going to make it now, regarding our meeting on Wednesday with CBC Radio-Canada. It's been requested by the CBC that the meeting be extended by 30 minutes. So I'm proposing that the meeting would run from 3:30 p.m. until 6 p.m. I don't know whether I can stay for the whole time. If I can't, I might have to ask one of my vice-chairs to chair the final part of the meeting.
That gives you a little bit of insight into where we're headed. I was going to bring some of these things up a little bit later, but we're going to talk about some of them from 5 o'clock until 5:30 p.m., to see where this committee will be going in the next little while. We do have estimates. We do have some of the those things that we can talk about at that time.
That said, I think I've taken up the time I had to take up.
Again, welcome to the Standing Committee on Canadian Heritage, meeting 11, it says, pursuant to Standing Order 108(2), a briefing on copyright.
Our witnesses I invite to the table are from the Department of Canadian Heritage and from the Department of Industry. Take your positions, please.
Danielle Bouvet Director, Copyright Policy Branch, Department of Canadian Heritage
Thank you, Mr. Chairman. I also thank the committee members. We are pleased to appear before you this afternoon to give you an overview of the Canadian Copyright Act, as well as the international obligations that it entails.
Today's presentation is purely technical. You have read the presentation that was handed out to you. This presentation describes the current Canadian Copyright Act. This presentation makes no reference at all to the history of this legislation over the past few years, nor does it refer to anything that might happen to this legislation in the future. This afternoon, our aim is to describe the legislation as it stands today. We are really confined to the present.
I gather that there will be a second sitting next week. At that time, we will be pleased to deal with the issues that might have to do with the history of the Copyright Act. This afternoon, we will give a 101 course on the current legislation.
The presentation will last more than 10 minutes. As it will be rather long, we beg your indulgence. If you have any questions, we will be pleased, Albert Cloutier, my colleague from Industry Canada and myself, to answer them during the presentation.
Let me begin without further ado. I invite committee members to turn to page 5, as the first pages give a quick view of the table of contents in which today's subject matter is covered quite exhaustively.
Page 5 deals with—
Bloc
Luc Malo Bloc Verchères—Les Patriotes, QC
Let the staff know that I do not have a copy of the presentation.
Director, Copyright Policy Branch, Department of Canadian Heritage
Without further ado, let us go to page 5, which deals with the principles of the Copyright Act.
Let me begin by saying that the Copyright Act is a framework law that deals with many sectors, such as the artistic community, authors, artists, writers, cultural industries like film and music, information technology, service providers like Sympatico, Rogers, Telco and Telus, the fields of education and research, museums, libraries and consumers in general, just to name a few. Besides, we can also mention foreign stakeholders, given that works by many foreign authors are being used here in Canada. These people are very interested in the way our country meets its obligations in copyright matters.
Thus, we are dealing with legislation that affects a great number of people and has an obvious impact on Canada's economy. This act, which came into force in 1924, has two fundamental principles, the first one has to do with control and remuneration for rights holders. The term “control” refers to the highest degree of protection pursuant to the Copyright Act. When an exclusive right is granted to a rights holder, it gives him the right to accept or refuse the way in which his work will be used. This is a very important right. As a whole, rights holders want to have as many exclusive rights as can possibly derived from this legislation.
The right to remuneration has been somewhat reduced, to the extent that a rights holder can no longer accept or refuse that his work be used. He is only allowed to receive remuneration in exchange for the use of his work. This is an important distinction to draw. In our Copyright Act there are cases where the rights holder only receives a right to remuneration.
A corollary to this basic principle has to do with the dissemination, or access to works. This involves any means that can facilitate the use of works through the application of emerging business models that allow users to keep better track of works and to be in a better position to pay the appropriate fees. Here I am referring to management companies that have been set up to facilitate access. There are also individual licences and a host of business models that can facilitate the use of works. This concept also extends to exceptions and limitations, whereby certain categories of persons can use a copyright without having to ask for the rights holder's authorization.
Page 6 deals with jurisdiction in copyright matters. First, let us note that the Copyright Act belongs to a set of laws dealing with intellectual property. Some examples are given here. We should also note that in Canada, copyrights falls exclusively under federal jurisdiction.
I really want to emphasize the fact that this is a legislated right. In other words, unless a right's holder has a right that is specifically provided for in the legislation, he cannot exercise any kind of control over his work. Let me explain this. For instance, there are no royalties for renting audiovisual works in Canada. Thus, any retailer can rent out films, without asking for any authorization for anyone who took part in creating the film, be it the producer, the manager or anyone else.
This is why the field of copyright is constantly evolving and adapting to new kinds of use. Since this is a statutory right, if some kind of use has not been provided for in the legislation, creators cannot exercise any kind of control over this kind of use.
Page 8 deals with departmental responsibilities. The responsibility for this file is shared between two departments. The Ministry of Industry is responsible for intellectual property as a whole, including copyright. The Copyright Act identifies the Minister of Industry as the minister responsible for this legislation.
The Minister of Canadian Heritage is responsible for the formulation of cultural policy as it relates to copyright. He is given this responsibility pursuant to the incorporating act of his department, namely the Department of Canadian Heritage Act.
Albert Cloutier Director, Intellectual Property Policy Directorate, Department of Industry
In the next section of the presentation we'll discuss what kind of material is actually protected by copyright and what is the nature of that protection—in other words, what rights are inherent in the copyright.
First, I'd like to mention that ideas themselves are not protected by copyright; it is the expression of the idea that is actually protected. By way of example, we can think of software. There are many ways of executing certain instructions to do certain things, but it's the way the author chooses to create the program that is protected, not necessarily what the program does.
The same is true with a literary work. There are certain stories that in a sense are universal and very much belong to the public. But what is expressly protected are the words used by the author to tell the story.
Copyright protects a variety of works: literary works, dramatic works, musical works, artistic works, and combinations of those works, as well as combinations of facts. Although a fact is not typically protected by copyright, the combination of those facts may give rise to protection as a compilation.
These are the works of creation, but copyright also protects what builds on that creation and enhances it. Thus the way a performer actually performs a musical work is protected, as is the way that performance is recorded. As well, the way it's communicated through a broadcast signal may be protected. These latter types of protections, which are not the works themselves, are sometimes referred to as neighbouring rights.
On page 9, there are some examples from each category of works. While you may wish to read through them, there are a couple of points worth noting. Under “Literary works”, for example, copyright obviously protects works of fiction, but it also protects academic material, and computer programs are recognized as literary works.
Under “Compilations”, I want to draw your attention to the fact that a database of facts can be protected, where the arrangement and selection of the facts that go into the database give it an original character. Although each individual fact is not protected, the database as a whole may be protected as an original work.
In terms of what I've talked about regarding neighbours, when we talk about performances, there are the performances of actors, musicians, dancers, and singers. They get a type of protection that's more limited in scope than the work they're actually performing. Presumably that's in recognition of the special originality and creativity that attaches to the underlying work. The same is true for sound recordings and broadcast signals, which benefit from protection.
On page 11, we start to describe the rights inherent in copyright. Copyright is not a monolithic single right; it's sometimes referred to as a bundle of smaller rights that cover very specific kinds of activities. Not all uses of a copyright work are protected by the Copyright Act.
The list on page 11 is not exhaustive but identifies perhaps the most significant rights. It includes the right to control the reproduction of a work, which is probably the most important right in copyright. Reproduction in the paper world obviously refers to photocopying, but the right is crafted in a way that's technologically neutral. When you have a digital reproduction of a work, it's also covered by the Copyright Act.
The second right, communication to the public by telecommunication, is something that covers what we traditionally think of broadcasting, and until the later 1980s was actually referred to as a broadcasting right, but subsequently it's been broadened to be more technologically neutral and is now a communication to the public by telecommunication right. That right not only governs traditional broadcasting, but communications that take place over the Internet. We have confirmation of this through a decision of the Supreme Court of Canada when it looked at a tariff that would have been applied to Internet service providers. While the court concluded that Internet service providers are not communicating works, it still recognized that the right does apply to the Internet environment.
A third important right is the public performance right. Again, in a traditional setting we think of the performance of plays or perhaps a work of choreography in the form of a ballet, but it also extends to venues where you might have some kind of electronic performance. For example, if you're talking about a sports bar where there's a widescreen TV with a sports event going on in the background, in that case there's the public performance of the sports event as a work, so the use of that work is controlled by the rights holder. In contrast, a private performance in one's own home is not covered by copyright, and that's the distinction there. Ultimately, the list is finite, and anything that's not on the list is not protected by copyright.
I won't go through the other two. There are illustrations, but again this list you see here is not the full list you would find in the act.
Pages 12, 13, and 14 give some sense of the more limited right that's granted to the neighbours. So performers, until their performances are actually recorded, have the right to control their broadcasts to the public.
Director, Intellectual Property Policy Directorate, Department of Industry
Sorry, which...? Just the latter part?
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Yes, their performance is protected until.... I just missed that last sentence.
Director, Intellectual Property Policy Directorate, Department of Industry
Okay.
Until a performer actually consents to the recording of his or her performance, they have the right to prevent its broadcast or they have the right to control the broadcasting of that. That right actually disappears once they consent to its recording. So it's a limited right to control the communication to the public of the performance. In that way, they're treated somewhat differently from the author of a work who has a much stronger right to control the broadcast of their work. Once they've consented to its fixational recording, as I call it, then they have a right to control the further reproductions of their performance that may be based on that recording.
Were there further questions?
On the next page, in terms of sound recordings, music labels have the right to control the publishing, the reproduction, and the renting out of their sound recordings.
As Danielle mentioned earlier on, there are in a sense two kinds of rights that may be conferred. One is an exclusive right that gives the rights holder the ability to control the use of the work. A more limited right is the right to be paid for the use of the work, but you don't actually have the ability to refuse permission to use the work. Currently, for the communication of musical works, there is a right to be paid, but there is no right to say no. That's the case for both the performer and for the label. They can't deny a broadcaster, for example, the right to broadcast their recording or their performance, but they do have the right to be paid. That payment is established by the Copyright Board of Canada, which is an independent, quasi-judicial tribunal that's been established precisely to fix copyright royalties, among other things, for the purpose of setting royalties for the communication of music. There again, it's an important distinction between the creator of the work who does have an exclusive right versus the neighbour who has a much more limited right.
On page 14, it talks about the rights in broadcast signals. By a signal here, we're not talking about a work as such. We're literally talking about the electromagnetic waves that are used to communicate some copyright material. The nature of the protection here is basically to provide broadcasters with protections against the theft of their signals. So they can say no to the recording of their signal, to the rebroadcasting of their signal, and the performance of their signal in a public place where there is an entrance fee. In the example I had given previously--the sports bar--where typically there is a cover charge, they have the right to prevent the public performance of that.
Conservative
Jim Abbott Conservative Kootenay—Columbia, BC
I know we don't want to get into heavy Q and A at this point, but you raised the issue of an electromagnetic signal. Has there been any jurisprudence on the difference between an electromagnetic signal and whatever the heck digitization is, and does the medium of the transfer of the information or image have any impact? Has that been looked at, and does it make any difference, or do we just ignore the difference between whatever a digital signal is and whatever an electromagnetic signal is? Do you understand my question?
Director, Intellectual Property Policy Directorate, Department of Industry
I think what you're alluding to is, is there a difference in the treatment of, say, webcasting versus more conventional broadcasting.
Conservative
Jim Abbott Conservative Kootenay—Columbia, BC
Yes, except that in the case of webcasting versus the more conventional, we're talking about the end result. I'm talking about the technical medium and the difference between the two. Has there been a look at that? Does it make any difference? Should we ignore it?
Director, Intellectual Property Policy Directorate, Department of Industry
At this point in time I'm not aware of any jurisprudence that talks about the distinction. Of course, for other categories of rights holders, as I mentioned previously, the communication right is a technologically neutral right. It's been interpreted so as to apply on the Internet, but that doesn't deal with what the broadcaster emits in terms of a signal; it deals with the content that's actually being disseminated.
Conservative
Conservative
The Chair Conservative Gary Schellenberger
We can have the questions after. I'd just as soon have the presentation and we'll have the questions after.
Thank you.
Director, Copyright Policy Branch, Department of Canadian Heritage
Page 16 deals with moral rights. Following what my colleague said about economic and neighbouring rights, moral rights have only been granted to authors of works in Canada. No one holds any neighbouring rights. For instance, no artist, no producer of a sound recording, no radio broadcaster holds any moral rights in Canada. Only authors hold moral rights, which can be divided into three categories: the right of attribution, the right of integrity and the right of association.
The right of attribution is the right to be associated to one's work, to be identified as the author of a work. The right of integrity is the right to prevent anyone from modifying, altering or changing a work in a prejudicial way. I am emphasizing this term because if the change is not prejudicial to the author, no recourse can be applied. As for the right of association, it is meant to prevent any prejudicial use of a work by associating it with some product, service or cause.
In Canada, there was a cause célèbre involving an author who had created geese that were displayed at the Toronto's Eaton Centre. Now during the Christmas season, the Eaton Centre had decided to tie little red ribbons to the little geese. These red ribbons that were added were deemed to go against the author's moral right. This is an illustration of how this right is implemented.
Page 16 gives criteria for protection, which are the basic requirements for copyright protection. This deals with originality; of course, the work must be original. A mere copy of reproduction of someone else's work would not satisfy the standard of originality. Fixation of the work is also required in order to benefit from protection pursuant to the Copyright Act. We must note that protection of a work arises automatically upon its creation. This is very different from patents, for instance, where the potential patent holder must apply to the patents' commissioner who, after studying the file, will say whether this inventor can become the patent holder for a given invention. In the copyright field, as soon as the standard of originality has been met and the work has been fixed, protection arises, without any need for any authority to declare whether or not this work is truly a work as defined by the Copyright Act.
In Canada, copyright can be registered. Registration is optional. The creation of a work is in itself sufficient for its protection under the legislation. However, if someone wants more security, he can register his copyright with the Intellectual Property Office. Let us also note that it is unnecessary to mark a work with a “c” symbol in a circle to protect it. Here again, we see that the originality of a creation suffices under the Copyright Law.
Who is the author of a given work? It is the person who created this work, for example someone who wrote the lyrics of a song, or someone who has created a computer program. However, there are exceptions to this legislation. For instance, in photography, the author is the one who owns the original plate, or what is sometimes called the “negative”. But what happens to copyright in a digital setting where there are no more plates or negatives. In such cases, the owner of the camera is the author of the photographic work.
Who is the copyright holder? Once again, generally, the copyright holder is the author. However, the legislation has provided for situations where the first copyright holder could be someone else, tout the extent that there is no agreement to the contrary. Let me explain.
When working in an employee-employer relationship, the employer would be the first copyright holder for any document prepared by his employee, to the extent that certain criteria are followed, specially regarding the employer's supervision of the work done by his employee. If there is no agreement to the contrary, the employer would be the first copyright holder.
When dealing with patents, agreements to the contrary frequently occur, but normally, when the work is done in an employer-employee relationship, the employer would be the first copyright holder.
As for works prepared or published under the direction of the Crown — like the work done by consultants for the Crown —, the Crown would be the copyright holder.
There is another exception. In the case of photographs and portraits, the person who commissioned the photo is the first copyright holder. If, for instance, you get married and you ask a photographer to take your wedding pictures, as you are the one to order the photos from the photographer, you would be the first copyright holder. We must note that in fact, photographers often sign agreements to the contrary. Photographers very frequently want to be the first copyright holders for the photos, but even when that happens, we must know that the legislation is very clear regarding the fact that the one who commissioned the photo is the first copyright holder.
Let us go on to the duration of protection for works. In general, works remain protected for 50 years after the author's demise. This means 50 years beyond the author's life span. There is a technical detail; we should know is someone passes away on September 25, 2006, the protection will continue to the end of a calendar year. Thus, the 50 year period would begin on January 1st, 2007. When the period of protection expires, the work comes into the public domain. This is a standard formula for copyright. When the work is in the public domain, anyone who wants to use this work can do so without asking permission from the author or from the copyright holder.
But we must be careful, because this rule is not as simple as it may appear. For instance, in the case of Beethoven, who died a very long time ago, his work has been in the public domain for a very long time. But if, on the other hand, a producer of song recordings, or a symphony orchestra, for instance, were to make a recording of Beethoven 9th symphony, in such a case, neither Beethoven or his succession would have any rights regarding that work, the producer of the song recording who has done the work needed to produce this new version of the work would benefit from protection. Likewise, all the musicians, as artists, could be protected by the Copyright Act, for a 50 year period.
I mentioned other matters, namely neighbouring rights. Protection is somewhat shorter for artists and producers, it covers 50 years after the first fixation of the audio recording or after the execution, if it has not been fixed, or, for audio recordings, 50 years after fixation. Of course, for audio recordings, individuals are very rarely involved. Most cases involve corporations, and the protection lasts for 50 years. Thus, neighbouring rights are more restricted and less protected than the rights of authors.
Director, Intellectual Property Policy Directorate, Department of Industry
The rights set out in the Copyright Act are subject to certain exceptions and limitations. These exceptions may be in the nature of allowing a use in a certain context without requiring not only the consent of the rights holder, but also without requiring payment of the rights holder. In some cases, a limitation may derogate from an exclusive right such that the use can be made, but there still is a requirement of compensation.
I'll discuss a few examples to illustrate some of this.
There's a general exception that applies broadly to all the rights in the act and that's what we refer to as fair dealing. It's possible for somebody to use material in a limited way for the purposes of research or private study or news commentary or criticism. This provision was recently looked at by the Supreme Court of Canada in a case called CCH, which is a legal publisher, versus the Law Society of Upper Canada. The situation was that the law library at the Law Society was making reproductions of certain case material from the books published by law publishers for client lawyers. The court held that even though this was a commercial context, because the lawyers were doing it to derive revenues, it was nonetheless fair dealing in this context because it was done for research and private study.
Apart from this general exception, there are some very specific exceptions that have been put into place for the benefit of a number of public institutions, such as non-profit libraries, archives, museums, educational institutions, and persons with perceptual disabilities. In that category, for instance, a school or a teacher can perform a sound recording in the context of a class for the benefit of students. That doesn't require payment or consent of a rights holder. They can also turn on the television so that they can watch a news program, even though normally this would be considered the public performance of that program in the classroom, and there's no payment or there's no consent required.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Can they make copies of articles from newspapers and magazines?
Conservative
Liberal