Hello. Thank you for this opportunity to appear before the committee.
As someone who has never voted for anyone who was ever elected, it's nice to participate in the democratic process--although, as the Pirate Party, as you know, was recently given status, you guys should all watch your backs.
My name is Brett Gaylor, and I'm a filmmaker and web producer based in Montreal. I split my time between a private film production company called EyeSteelFilm, one of Canada's most successful documentary production companies, and the Mozilla Foundation, the creators of the Firefox web browser.
My most recent film, Rip! A Remix Manifesto, deals with many of the issues this committee struggles with on a day-to-day basis. Despite my reference to my colleagues in the Pirate Party, Rip does not fly the Jolly Roger. It does not advocate the abolition of copyright, nor do I believe in that.
In the tradition of Canadian point of view documentary, Rip is not journalism. It is not fair and balanced. It is my personal, impassioned plea for copyright reform. I set out to make the film eight years ago, because I believed then, as I believe now, that our copyright system is fundamentally broken. It does not make sense for those of us who grew up in the digital age. Not only does our current legal environment make an entire generation feel like criminals for experiencing culture in ways that seem as natural to us as turning on the tap, it criminalizes, and in some cases, when paired with digital rights management technologies, prevents the creative reuse and expression of culture.
I believe that this creative reuse, re-expression, and re-contextualization of culture using digital technology to be an important skill for today's generations of Canadians. It is an expression of a media-literate citizenry that has grown up with a medium that is not top-down, consumer-centric, or one-way, like television or radio. It is a two-way, participatory, interactive medium. Websites like Wikipedia and YouTube, and creative audiovisual works that combine or “mash up” the media landscape, are examples of the kind of democratic discourse we ought to celebrate in today's youth. But our laws criminalize and prevent it. Whether or not you agree with my position on copyright reform, I think all parties should know that there is an economic argument for reform in copyright, and in particular, in fair dealing.
Let me back up a little bit. Rip was created by our private, for-profit company, EyeSteelFilm, in Montreal. In addition to Rip, we have produced several award-winning films that have been broadcast nationally and internationally, have played in theatres, and have sold on DVD. They are films such as Up The Yangtze, Taqwacore, and Last Train Home. Rip was also produced as a co-production with the National Film Board of Canada. Additional funding came from arts councils and private broadcasters, who pre-licensed the film.
Since being released in 2008, my film, Rip, has played at over 25 major international film festivals, has been broadcast on television in at least 20 countries, and has played theatrically across this country as well as in the U.S., the U.K., and Australia and across Europe. It's available at Blockbuster and Rogers stores right across the country, and was recently nominated by the Academy of Canadian Cinema and Television at the Genie Awards.
The film was also released under a Creative Commons licence, meaning that the audience is free to download and remix the film. In fact, using these licences before the film was even made, we solicited remixes and contributions that actually comprised a large part of the material in the film itself. Because of this licence, the film can be found on both commercial television broadcasts and through web portals, such as Hulu in the States, but also through file-sharing networks and aggregators, such as the infamous Pirate Bay.
Due to this approach, we estimate that the film has been seen by some six million people around the world, and the figure could indeed be much higher. It has been a success by any measure, both financially and in terms of having Canadian content reach the broadest possible audience.
I'm proud of the accomplishment, but at the same time, I'm nervous. Here's why. The film is a complete and utter legal nightmare. Rip walks the walk in terms of both style and content. To make the argument that remixing is an age-old process and that culture always builds on what came before, we told the story through remixing. To show that Walt Disney's Snow White was based on a story from the public domain, we showed a clip from the film. To show how Walt created Steamboat Mickey, and thus the Mickey Mouse character, by riffing on Buster Keaton's Steamboat Bill, we showed both films. And we showed countless examples of contributions from our collaborators on a website called opensourcecinema.org, the website we use to facilitate collaboration.
Our problem, however, was that we were Canadian. Unlike our filmmaking colleagues in the United States, who can rely on fair use, which protects this kind of expression and makes exceptions to the copyright law to allow critique, parody, and satire, the landscape is much murkier for those of us working up here. We're left wondering if the current fair-dealing exceptions for studying or newsgathering apply to us. We are, after all, a unique hybrid of art and journalism. And for those of us who want to see our work reach a broad audience, this is a big problem. The reason is that our work must be covered under errors and omissions insurance to play on television, at film festivals, in theatres, or in other commercial venues.
To get errors and omissions insurance, a lawyer must attest that the film does not violate the Copyright Act and open itself to a lawsuit. While we did feel that Rip was fair dealing, particularly in light of the CCH v. Law Society of Upper Canada College decision, many lawyers would say it's not. The case law on the subject is light.
To further complicate matters, while we were editing the film, the government tabled Bill C-61. While the bill was silent on fair dealing, it did impose stiff fines for circumventing digital rights management software, which was a necessary process for me to extract archival materials from DVDs and other formats. By giving the software to do that to my editor, I could have been incarcerated. I don't think anyone in this room would want a Canadian filmmaker in jail rather than at the Genies.
As I said, we did feel that Rip was legal under our interpretations of fair dealing, but as you can see I'm a copyright activist, and thus have had to devote a lot of time to this study. My other Canadian documentary colleagues have enough challenges without becoming experts in copyright law.
This problem has become a major focus for DOC, the Documentary Organization of Canada. In an internal survey, which you can find on their website, 85% of respondents said copyright is more harmful to them than beneficial. The survey was done in 2005, and at that time cost of copyrighted clearance for music and archival music consumed up to 25% of the budget of many documentaries. Eighty-two percent of respondents said that Canada's copyright laws discourage the production of documentaries. Not one person said they encourage it. This is of course because documentary filmmakers need access to historical documents to build the arguments of their film, reflect on issues in contemporary society, and interpret the media landscape we now live in.
The survey also found that in 2005, nine films of the National Film Board of Canada were removed from circulation because the cost of renewing the copyright on the material was prohibitive. I know anecdotally that renewing copyright on material prevents many films from being streamed on the NFB's extremely popular website.
In response, and again in light of the CCH decision that called on user communities to define their own best practices, DOC has done just that, and prepared a best practices and fair dealing document that gives guidelines for filmmakers who wish to exercise fair dealing in their films. The document has been produced in collaboration with the University of Ottawa, and was created with broad consultation within the film industry, not just from documentary filmmakers but all sectors.
Unfortunately, I only received a copy of it this morning; otherwise, we would have submitted it to be translated. I would be happy to send that document to any committee members who wish.
Using this document, we hope to see many documentary filmmakers push the boundaries of fair dealing. Indeed, in addition to Rip, we have seen another popular film, Reel Injun, make use of fair dealing and indeed secure errors and omissions insurance for the film. It is the type of film that would be impossible without building on copyrighted material. It is a critique of the portrayal of aboriginal people in Hollywood films. I ask you, how could this filmmaker make the film without showing the films he is critiquing? Like me, the director, Neil Diamond, had to go to great expense and put himself, his colleagues, and his financial supporters at risk to tell that story.
In terms of what you can do as parliamentarians to support our efforts, I'm here begging you for a change in the landscape of fair dealing: to create language that is illustrative of the types of exceptions that the law would allow rather than exhaustive. This would leave room for the types of innovations that documentary filmmakers need in order to continue their tradition of excellence.
The documentary film industry is extremely efficient. With minimal public support, we create green, entrepreneurial, and far-reaching work. We employ a broad spectrum of Canadians, and our work creates a dialogue and interest in issues of the day. I urge you to read our best practices in fair dealing and to support reasonable reforms to fair dealing to allow us to do our work.
Thank you very much.