Canadian Heritage Committee on April 20th, 2010

[Roanie Levy, General Counsel and Director, Policy and External Affairs, Access Copyright]

I will start. Following me will be Danièle Simpson, and then Glenn Rollans, followed by Marie-Louise Nadeau, and then André Cornellier. We will try to keep it at 10 minutes or less.

Good morning. Thank you for the opportunity to appear before the committee.

My name is Roanie Levy. I am general counsel and director of policy and external affairs at Access Copyright.

Access Copyright is a not-for-profit organization established in 1988 by publishers and creators--authors. We have a dual objective. The first is to facilitate dissemination, access to and use of published works and our Canadian cultural heritage by the public, including the education sector. The second objective is to ensure that authors and publishers are reasonably compensated so they can continue this vital role.

Many people have testified about the opportunities and challenges presented by digital media. Notions such as business models, technology, industrial financing, new players, access, interoperability, jurisdiction and others have given rise to much discussion and will continue to do so.

Although the focus of these meetings was not copyright as such, virtually every meeting has mentioned the Copyright Act and the need for amendments to it, perhaps to the despair of committee members.

One fact concerning copyright seems to be emerging. Some witnesses have come back to the subject a number of times. And that is fair dealing. For the most part, you have heard witnesses come before you and ask for a simple and cumulative change to the fair dealing provisions. You have heard that the addition of a single word, such as “notamment” in French, or of two words, “such as”, in English, would resolve the matter of the access needs of consumers and users of copyright-protected works.

Today you will hear that not only is this proposed amendment not simple and will not resolve the problem of access needs of consumers and users but, what is more, that such a change would have a considerable impact on the ability of creators and copyright holders to monetize the use of their works.

Adding the words “such as” can be so detrimental to existing and future business models that over 50 Canadian organizations, representing hundreds of thousands of artists, choreographers, composers, directors, educators, illustrators, journalists, musicians, performers, photographers, playwrights, producers, publishers, songwriters, videographers, and writers from across the country, joined forces to submit a paper during the copyright consultations, warning against expanding the fair dealing list.

These hundreds of thousands of creative Canadians are asking this government to provide a secure legal environment that allows them to continue to earn a return on their work without fear of spending their time, energy, and the return they do earn, on litigation.

First, I will provide a brief explanation of how fair dealing works in Canada. The permitted purposes under Canada's fair dealing provisions allow dealing with a work when the purpose is for research or private study, étude privée ou recherche; criticism or review, critique et compte rendu; or news reporting, communication des nouvelles. A user can make a copy of work without permission or payment for one of these purposes, provided the dealing is also fair.

Adding the words “such as” to the current fair dealing purposes turns the list from an exhaustive list of five purposes to an illustrative list. This is a significant change to Canada's current fair dealing provisions. It is not simple, nor is it incremental, as some proponents of an open fair dealing provision contend.

Let me explain why. Adding the words “such as” creates a lose-lose situation for everybody, creators and users alike, since everything becomes uncertain and is subject to expensive litigation. That's because an open-ended fair dealing provision—or “fair use”, as it is called in the U.S.—puts into the hands of the courts what should be determined by Parliament.

Let us take a moment to consider how this constant moulding of the fair dealing exception by the courts would happen. The courts would essentially determine whether a particular use is fair as a result of a conflict between two private parties. With the evidence that is needed to resolve that particular individual and private conflict, the courts would set or reset where copyright ends and fair dealing begins.

Moreover, in the context of private litigation, the courts would never be able to make decisions that take into account the political issues involving major public policy considerations or public policy issues with economic, social, political, tax, employment, and cultural implications, as well as implications affecting investment and innovation and the preservation or promotion of specific cultural values throughout the country, including Quebec, among aboriginal people, and in Atlantic Canada.

So not only is the setting of the boundaries between copyright and fair dealing an abdication of political decision-making, with huge implications for a multicultural country like Canada, but the courts do not have the capacity to do it justice.

This is not just speculation about what would happen. We are already living with the uncertainty created when court decisions based on a particular set of facts are applied by users to a different set of facts. For example, the decision by the Supreme Court of Canada in CCH, a decision that others have mentioned to you, has significantly increased the difficulty faced by Access Copyright to negotiate licences for the photocopying of works in all industries.

The right of publishers and creators to collect, for example, $20 million a year for the copying of their works in the elementary and secondary sector is in jeopardy. The ministries of education are arguing that as a result of the Supreme Court of Canada decision in CCH--that involved lawyers--the 265 million pages a year of published works that are photocopied by teachers is fair dealing.

This $20 million was the value set by the Copyright Board, which is an expert tribunal, as a fair and reasonable rate to pay after it analyzed extensive evidence on the use and value of the works photocopied by teachers in elementary and secondary schools. Often these uses are a substitute to purchasing books. This value also factored in an allowance for fair dealing.

The educational publishing sector relies on these revenues to sustain its investment in Canada. This is a sector where Canadians have unique and important needs across the country, and the capital investment required to serve those needs is large. Nevertheless, the outcome of the $20 million a year is in the hands of the courts.

Expanding fair dealing by adding “such as” or adding extensive new purposes will significantly exacerbate what is already a very difficult situation for creators. It would change from five permitted purposes to all uses of works, or extensive new uses, being subject to a court's interpretation of fairness.

So what some are calling flexibility is, in practice, a liability for both creators and users of copyright. An open-ended fair dealing provision leaves copyright owners and users guessing where copyright ends and fair dealing begins.

This is why Lawrence Lessig, a well-known advocate of free culture, says that fair use, which has an open-ended list of purposes, amounts to little more than “the right to hire a lawyer”. David Nimmer, a well-known copyright scholar, also calls fair use a “fairy tale”, whose complexities have required four separate visits to the U.S. Supreme Court, and yet have resulted in a system whose “upshot would be the same...had Congress instituted a dartboard rather than the particular four fair use factors embodied in the Copyright Act...”. Nimmer was referring to the illustrative list in the U.S. Copyright Act.

The truth is that this level of uncertainty is not good for anyone. The full impact of an open-ended fair dealing provision may be difficult to predict, but the fact there will be unintended consequences is wholly predictable.

Adding the words “such as”, or adding to the list of purposes things like education, teaching, or private use, would significantly undermine existing and future business models. It has the potential to impede on collective administration of copyrights, which is of growing importance in a digital environment. Collective administration can be relied on to meet the needs of users by providing easy and affordable access to works, with the certainty they are not infringing copyrights, and to at the same time compensate rights holders for their creative efforts and investments. Expanding fair dealing would also negatively impact the private copying regime and cause confusion in existing contracts between creators, rights holders, and users.

Faced with similar pressures by users to expand fair dealing, almost every country or jurisdiction that has considered an open-ended fair use model has rejected or not adopted it, including, recently, Australia, the United Kingdom, New Zealand, and the European Union. They rejected it for the reasons I've just described, but I would like to read for you one of the reasons given by the U.K. government when it rejected the idea of moving to a fair use model in 1981: “In view of the difficulties already experienced by copyright owners in protecting their rights, the Government does not feel it would be justified in making an amendment which might result in further encroachments into the basic copyright”.

I think you will agree with me that to say copyright owners are experiencing difficulties in protecting their rights today is an understatement in today's digital environment. The statement made in 1981 that I cited above is truer today than it ever was, so it is not surprising that the U.K. government rejected the notion again when it revisited the issue, this time in 2008. Canada should do the same.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you for that.

Our next presenter is Danièle, please.

[Danièle Simpson, President, Vice-President, Union des écrivaines et écrivains Québécois, Société québécoise de gestion collective des droits de reproduction]

Good morning. My name is Danièle Simpson. I am president of Copibec and vice-president of the Union des écrivaines et écrivains du Québec. I would like to thank you for this opportunity to present the views of those two associations on the impact of digital development on the book industry.

The Union des écrivaines et écrivains du Québec, UNEQ, has been in existence for 33 years and was recognized in 1990 as the association most representative of literary artists in Quebec under the Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters.

Copibec, the Société québécoise de gestion collective des droits de reproduction des oeuvres littéraires, was created in 1997 by UNEQ and by the Association nationale des éditeurs de livres. It represents more than 850 Quebec publishers and 17,000 authors of books, newspapers and periodicals, including visual artists who publish in them. It also represents the authors and publishers of some 20 countries through bilateral agreements with foreign management companies. Copibec annually redistributes nearly $13 million to rights holders.

The current concern of players in the print world, whether they be authors or publishers, is the reduction, through the expanding notion of fair dealing and the adoption of new exemptions, of the incomes they need to pursue their creative activities, on the one hand, and their distribution activities, on the other. There appears to be some confusion in user's requests between what is accessible and what is free, as though the only way to ensure that those works are accessible is to make access to them free of charge.

This confusion, if adopted by legislators, would have dramatic consequences for the book industry. Imagine, for example, that the reproductions of works in the education industry were considered a matter of fair dealing. That would result in a loss of $9 million for authors and publishers, and place Copibec in a precarious situation as royalties from the education sector represent 70% of its revenue. We would thus run the risk of having no company in Quebec whose primary responsibility is to protect the right of authors and publishers of literary works. As a result, authors and publishers would have to take charge of the matter personally, with the financial burden that would entail.

In its last survey conducted in 2004, the Observatoire de la culture et des communications du Québec showed that [part missing] creative activity was the main source of income for only 9% of writers and that 60% were required to carry on a second occupation to support themselves. In those conditions, how could we justify depriving them of more income?

As for publishers, you must understand that the production costs of a textbook and teacher's guide can reach $1 million. Expanding the notion of fair dealing would risk not only invalidating current agreements that Copibec has signed with the Department of Education, but would also considerably undermine the publishing industry in Quebec, which only has access to a small market, but whose existence is essential to the survival of its culture. It would also hurt all workers in this industry.

Now let us consider the situation, again in education, of these reproduction costs for the Ministère de l'Éducation, des Loisirs et du Sport and for postsecondary institutions. Out of a total budget of $14 billion, the department of education pays $3 million for primary and secondary schools to compensate them for the use of $68 million copies of books, newspaper articles and artistic reviews or works, that is less than $3 per student. Add to that $70,000 for the performance of dramatic works in the schools and $600,000 for the reproduction of musical works, and you get a total of less than 0.0003% of the department's budget. For the colleges, the rate is $10 per full-time student for 21 million copies, and for the universities, $23.50 per student for 86 million copies. As you can see, there is a lot of reproduction of works in education. It represents more than 175 million copies a year, the equivalent of 875,000 200-page books. However, the cost represented by the fair compensation of rights holders is very small.

Once again, in these conditions, how can we justify depriving authors and publishers of necessary income?

The Copyright Act has established a satisfactory balance between the rights of creators and those of users. Switching from the fair dealing model to the fair use model, as some are requesting, would introduce into Canadian law a foreign concept that has far from unanimous support in its country of origin, whereas there are methods in Canada that reflect the values of Canadians. This would cause confusion and uncertainty that would undermine the energies of creators and users alike.

The present Copyright Act is currently designed to protect the public interest by ensuring access to works. Its goal is not to satisfy the personal needs of users that do not wish to pay for the content they are seeking, whereas they do not hesitate to pay for the cost of digital media. It is this spirit of the act that must be retained, particularly since there is no problem of access to works.

The management societies adequately play their role as a single window providing access to a broad range of national and foreign works and exempting uses, by signing a comprehensive licence, from having to request permission from every rights holder to use that person's work. Nor is there any surprise regarding rates since they are negotiated with users in advance. Furthermore, nearly all revenues are then paid to rights holders both here and outside Canada.

The management companies are thus entirely able to deal with the technological changes, but what is particularly true is that there is no justification for making access free of charge exclusively for users by unfairly expropriating from authors the revenues to which their work entitles them.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Now we will go to Glenn, please.

[Glenn Rollans, Partner, Lone Pine Publishing]

Thanks very much.

I'm probably the one you're going to have to shut up, because I'm not reading from a prepared statement. I'll try to stay within the time limit.

I really appreciate the chance to talk with the committee today. I've been a working writer and publisher for about 30 years. I'm a partner in Lone Pine Publishing, a company from Edmonton that works across Canada and the United States. We're a member of the Book Publishers Association of Alberta and of the Association of Canadian Publishers. Both of those associations are among the groups that Roanie mentioned as signatories to the document concerning issues around fair dealing.

But I recognize that today we're talking principally about opportunities and issues in the digital environment. I wanted to mention that my background includes recently being a partner in Les Éditions Duval, an Alberta-based educational publisher in the K to 12 sector, and also a former director of the University of Alberta Press. So I have a fair scope in terms of academic issues in publishing, educational issues, and issues in what we call “the book trade”, which is the bookstore world of book publishing.

And in digital issues, education is well ahead of the trade. Perhaps 20% to 30% of that sector is now in a digital format. As early as 1995, Les Éditions Duval did three levels of Cree language education as interactive digital resources. In contrast, Lone Pine, at this stage, has more than 300 titles of its list of about 800 titles in e-pub forms, but we haven't released any of those editions into the digital marketplace.

That's not because there aren't opportunities there. I see the digital world as having some really spectacular opportunities. I think in education we've seen that resources can be not just more portable but more effective. They can have more functionality built into them. They can potentially be more beautiful. I think design in digital environments is coming along.

The questions around whether they can actually support professional producers are unresolved. For Lone Pine at this stage, the reason we have 300 or 400 works in digital form but haven't released them is that the rules of that marketplace are, I think, significantly underbaked at this stage.

If Canada is going to be a leader in the digital economy, in my mind we have to be a leader in copyright protection for producers of original resources. That includes writers and visual artists, and publishers, who have a creative role in the creation of resources. Where people hold copyright and are secure about the rules in the marketplace, I think they're going to be very energetic participants.

In the book trade, we're only about a 1% to 5% digital economy at this stage, and that's different from sector to sector. In scientific, legal, technical, and medical publishing, it's a much higher percentage than it is in the book trade. Even in the trade in general, there are hot spots. Romance, for example, is a hot spot for digital resources, and office workers tend to download them at lunchtime. You can see these incredible spikes in the download rates for some publishers at lunchtime. There are matches for certain kinds of reading.

In the trade in general, my sense is that publishers are going to participate more confidently in digital business if they're adequately protected. That means having some expectation of reasonable compensation and also some expectation that, when they let the cow out of the barn in digital form, it is going to both improve access and improve, in a sense, their business possibilities. The business that a publisher does flows through to its writers, designers, editors, salespeople, and retailers. It has huge spinoffs and it's important to protect those, in my mind.

I do want to talk specifically about fair dealing, so I'll come to the end of my presentation and just mention our view on the role of collectives as well. I think collectives like Access Copyright or COPIBEC have a huge role in this economy.

Lone Pine has huge opportunities because we are a natural history publisher and a gardening publisher. We have huge opportunities in the digital world to disaggregate content and repackage it as applications or small downloads for users. This is a really common opportunity in education as well.

In an expanded fair dealing environment, the expectation of users that small uses will be uncompensated I think goes way up; this is what we've seen in some of the test cases in the United States, for example, under their fair use environment.

As publishers, we're often charged with not entering wholeheartedly into digital business models or not creating them. Those models exist, but they're not functioning very well, and they won't function well until there is confidence in the publishing world in entering that market. They'll function for people who are creating works as part of their ordinary employment as an instructor or professor, but they won't function for people whose profession is writer, illustrator, photographer, or publisher.

If you expect a business model that runs on micro-tariffs, then micro-uses have to be compensable. They have to be paid for. If they're not, and if a higher proportion of uses are small uses, the undercutting of the revenue base for people who make their living in this world is going to be pretty extreme. and many of us won't be able to make a living.

I think that in the fair dealing and expanded fair dealing environment we're going to see some sectors test the limits of fair dealing very strategically and with a cost-benefit approach to it. Large educational systems. like the provincial ministries, and large educational institutions have already shown that they are very interested in this issue. I see it as ironic, because for the knowledge and information they want to access and that creators want them to access, it's a two-way street. There's no satisfaction in being a writer or a publisher if you don't have people using your material.

But if we enter that world and are dealing with primary customers who are showing an interest in having a larger and larger proportion of their content delivered for free, the irony is that the very knowledge they're seeking—when it comes to a transaction in money terms—is the thing they put the least value on. They're paying for ISPs, which are huge players in this economy. They're paying for professionals, for information professionals and libraries and so on. They're paying for the devices they use: the projectors in classrooms, the hand-helds, and the computers.

Everything in the system is paid for up to the point to where what is a relatively modest expenditure—the expenditure, as Danièle mentioned, on educational content—is where they draw the line, where they don't want to pay.

As a parent with three students in university, I can sympathize with the expense issue. It's very expensive when you think in terms of dollars spent. In value terms, I think of the value received. In grade schools, we're spending annually across Canada only about $50 per student on educational resources. In universities, where it approaches $1,000 per year as a proportion of the educational budget, the value that's returned is enormous. I think the value equation has to be kept in mind as well as expense.

I think Roanie mentioned that expense can be a bit of a canard in this discussion, because when you talk about millions—and Danièle mentioned this as well—millions are big numbers, but when they're matched against billions that are spent, are they too big a number? When they're spread across the community of creators and publishers in Canada, I think the record is that those are underpaid professions, and the issue starts with how much we're spending on those things.

So we do see a very strong association—or I see it personally—between advocates for expanded fair dealing or for increasing the number of exceptions in the Copyright Act. For example, an educational exception would completely undercut the educational publishing world. That prospect is one of the reasons that I'm not an educational publisher anymore.

But we see a connection between that and concern about collectives, so I want to emphasize just in passing at the end of this that when I hear about Access Copyright or COPIBEC from the outside, I hear about them as monolithic institutions, agencies that are bullying the system. They're very small in comparison to the system and they are true collectives. They're places where we come together, so that when it comes to litigation, which is a terrifying prospect for me under an expanded fair dealing environment, we have a chance to pool our resources, and when it comes to licensing, we have a chance to pool our resources and bring some order to a system that needs order.

Expanded fair dealing is a place where the rules will be very unclear. I think the relationship of mutual interests between users of copyright and creators of copyright really demands good fences. Good fences make good neighbours. What I'm looking for in what comes down in terms of the new copyright is those good fences: clarity definition, not open-ended definition.

Thank you very much.

[The Chair, Conservative, Gary Schellenberger]

Thank you. That was right on 10 minutes. That's very good.

Now we'll go to Marie-Louise, please.

[Marie-Louise Nadeau, Director, Playright, Société québécoise des auteurs dramatiques]

Good morning.

The Société québécoise des auteurs dramatiques was founded in order to manage a financial agreement entered into by the Ministère de l'Éducation, des Loisirs et du Sport, MELS, previously the MEQ, on copyright payments owed for theatre plays performed by students in Quebec schools. That agreement, in addition to enabling SOCAN to pay royalties mainly to authors from Quebec, but also from Canada and other countries, sets out guidelines for the use of dramatic stage works and their transmission in any medium whatever.

We have the management authorizations of 250 Quebec and Canadian playwrights for, among other things, school performance rights, reprography rights and telecommunications and digital rights. We also have a management agreement with COPIBEC for copies of theatre plays for study purposes and of theatre plays for study and rehearsal purposes in both paper and digital formats.

Before we signed our agreements with MELS, that is prior to 1994, and with COPIBEC during the 2000s, there were simply few or no royalties for dramatic authors in the education sector. Currently, however, the application of fair dealing exemptions, including under section 29.5 of the Copyright Act, deprived dramatic authors of plays staged in Quebec schools of 55% of their potential income.

Between the 2006 and 2009 school years, 887 of 1,950 performances in Quebec schools, or 45%, owed copyright royalties. That's a lot when you know that a playwright in Quebec earns an average of $5,000 in copyright royalties a year. It's clear to us—and the figures speak for themselves—that playwrights are already contributing a lot to fair dealing. We are convinced that expanding fair dealing, in addition to causing confusion among some users already confused about existing exemptions, would be dramatic—pardon the pun—for authors and our small organization dedicated to defending their rights.

We do not have the financial or human resources necessary to prove, on a case-by-case basis, that such and such an organization erred or misinterpreted fair dealing. In the area of digital rights, we currently authorize users to record performances for archival purposes. We authorize, on request, the distribution of excerpts of two or three minutes on the Internet, provided the user undertakes to respect the work distributed.

But how to retain current control over the transmission of dramatic works via the Internet if fair dealing is further expanded? How can we justify to playwrights a decline in their rights that results in a further loss of income and control over the distribution of their works, both on stage and via the Internet? Don't make cuts to what has been acquired over the years. The system works well. It's a matter of survival for us and respect for the works of playwrights.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much.

We'll move to André, please.

[André Cornellier, Co-Chair, Chief Executive Officer of La Maison de l'image et de la photographie, Canadian Photographers Coalition]

My name is André Cornellier. I'm an artist and a photographer. I'm also a director of UMA, La Maison de l'image et de la photographie, and I represent the Canadian Photographers Coalition, which represents 14,000 workers in the photography industry.

Thank you to the distinguished members of the committee for hearing us today.

You are asking about what is affecting our industry in the digital age and what you can do to help us. I will talk about one thing you could do to help us and one thing you should not do.

First, let's talk about how you can help us. Photographers from here do not have the same rights as other Canadian artists or other photographers in industrialized countries. Subsection 10(2) of Canada's Copyright Act provides that copyright belongs to the person who owns the negative. There is no negative in the digital age. Furthermore, why would copyright belong to the person who buys the film rather than the artist who created the work? Is copyright given to the person who supplies the guitar or the artist who composes the work?

The present government introduced an amendment, in the spring of 2008, in Bill C-61, which repealed subsections 10(2) and 13(2) and restored copyright to the photographer. We would like the present Conservative government to make the same amendment in the next bill, particularly since the Liberals also proposed that amendment in 2005 in Bill C-60.

Now let's talk about what the government should not do. The government should ensure that the Internet is accessible to everyone everywhere. It should ensure that the information highway is accessible everywhere at an affordable cost. That will assist in the development of commerce and Canadian culture. At the same time, it must resist the idea of making content free of charge. When the government builds roads and highways for goods and services to be accessible everywhere, what is transported on them is not free of charge. Making something available does not mean making it free of charge. It means that what is not available in a region is now available there and that people can now buy it.

What is the interest in building a refrigerator if it becomes free of charge because you transport it on a highway? Does selling shoes rather than giving them away undermine the shoe business? Does that make it so no other companies create new shoes?

The same is true for the Internet. Creating the information highway does not mean that what is transported on it must be free of charge. The right to own and enjoy one's inventions and creations is a fundamental right for a fair business. This actually encourages creation. Is the claim being made that you encourage creation by making everything free of charge? Where then is the encouragement?

When we advocate compliance with copyright, we're told that we are undermining creation, that we understand nothing, that we should deal with the new ideas and new needs of the digital revolution. A seminar was held in Toronto on April 29 and 30, 2008. It was attended by all segments of Canadian culture, representing all opinions on copyright. More than 140,000 creators in all fields were represented there: music, visual arts, performing arts, writing, film and video. There were also promoters of a free Internet, those who are opposed to copyright. There were the promoters of the Creative Commons. There was Mr. Geist, there were “appropriationist” artists and a number of representatives of the next generation, the young generations. All ideas and all ages were represented there.

One young artist, in his twenties, made a presentation on one of his creations. It was a three-minute video. He had taken hundreds of images off the Internet and had assembled them in layers. His creations consisted of numerous recombined images. The video images were collages. Hundreds of collages one after the other composed a symphony of highly coloured images. He explained that, if he had had to request copyright permission for each of those images, it would have taken him months and cost tens of thousands of dollars. He therefore asked that copyright be abolished on the Internet and that an exemption be introduced so that he exempt from copyright since it was holding back his creativity.

We told him about a hypothetical case. If a company, such as Ubisoft, for example, created a new electronic game and, liking his pictures, decided to take them off the Internet and include them in their software, to use them to package a product or whatever else, that shouldn't be a problem for him. He answered without hesitation that he would sue them.

On January 30 last, I was in the offices of a young design firm in Montreal. During a conversation, the two designers, knowing that I worked for the recognition of copyright, told me that I didn't understand the needs of their generation. One of them told me he was making music and that they preferred to distribute their music on the Internet so that people could download it free of charge so that they could make themselves known. As a result of that, the old models that I supported were no longer valid. There should be no more copyright.

I asked him if there would be a problem if a group in Canada or the United States liked their music and wanted to record it and distribute it on a CD and over the Internet. He answered without hesitation that he would sue them.

There are hundreds of examples of this kind. They all say they don't want copyright so as not to inhibit their creativity or the distribution of their creations, but they all want to sue those who appropriate their works. How could they sue if there was no act protecting them?

This doesn't show that they don't want copyright; it shows only one thing: ignorance of copyright. When you carefully listen and try to understand their thinking, you understand that they want to be able to decide when to share their creations free of charge and when to profit from them. The right to decide where, when and how you want to share your creations is called copyright.

Current copyright effectively achieves its mission and protects creators old and new, those of yesterday and those of tomorrow. It enables them to give away their works free of charge or to profit from them and to create new original works. Do not open the door to all these exemptions that are asked of you. The exemptions you create today to allegedly facilitate creation will in future turn against those who requested them and they will not be able to protect their own works. Giving permission to plagiarize encourages plagiarists, not talent. Real artists have never been afraid of any constraints. Respect for rights encourages creation. If you give in today to requess for exemptions, in 20 years, they'll be the first ones to criticize you, and rightly so, for not protecting their creations and their property.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much.

The first questioner is Mr. Coderre, please.

[Denis Coderre, Liberal, Bourassa, QC]

Thank you, Mr. Chairman.

First, I must admit I find it abnormal that we can consider, even if for only a moment, not only removing the ability to create, but also not protecting the creator of a work. The very basis of that creation is that person's ability to distribute it; it is revenue. We must not get into a free for all. Personally, I have always wanted to protect the creator above all. That's the very basis of everything.

I have a 17-year-old daughter and a 14-year-old son. So you can see me coming with this generational debate over access. I sense that there is unfortunately a culture that trivializes access. Rights and privileges are confused. It's a privilege to have access to a work. On the other hand, I put myself in the position of consumers. The clearly want greater distribution. Consumers must have access to the creation of a work and become a kind of standard-bearer for it. That's what we're talking about in terms of balance.

I have no problem with the issue of power relationships or with the possibility that we can give you the necessary tools to defend yourselves and a certain degree of protection. If you don't have that negotiating ability, you're at the mercy of someone else.

We get the sense that technology is moving much faster than the law. As a result, the law we change today will be moot in a year or two. I remember all the work we've done. You talked about Bill C-60, and it's still the same thing. At the time, we were talking about cassettes and CDs. Now we have iPods and iPads, and ultimately we don't know what will be coming. This is an issue that seems philosophical, but I think is important as a legislator. What is your definition of flexibility?

Ultimately, we need a business model so that you can protect yourselves while giving us decent access to that work for educational or other purposes. But put yourselves in our position.

I'm going to start perhaps with Ms. Levy and Ms. Simpson, since they live from these exemptions. How do you define this flexibility? There is a definite evolution. I want to protect the creator and allow wider distribution. Ms. Levy, perhaps, to start with?

[Roanie Levy]

First, I think there's a difference between flexibility and neutrality of the legislation with regard to technology. Those are two completely different things. I think that people often confuse the two and believe that we need flexibility to adapt to everything that might arise and that we can't predict. On the contrary, we perhaps need legislation that is technology neutral.

What we can do is describe the uses that are permitted, rather than have any “flexibility”. Ultimately, that flexibility creates such a vague situation that no one knows where copyright stops and fair dealing begins, for example. Ultimately, it is left up to the courts to decide whether, in future, fair dealing without compensation should be permitted. We're trying to control a future that we don't know by leaving it up to the courts.

That is simply not a solution to the problem. First, it shouldn't be up to the courts to shoulder that responsibility. They don't have the ability to do it. In addition, they wouldn't have the necessary impact studies to assert that a particular use would or would not involve compensation as a result.

I understand the challenge. It is indeed a major challenge. However, the solution is not to grant flexibility that hands the problem over to the courts.

[Denis Coderre, Liberal, Bourassa, QC]

My problem is that—

[The Chair, Conservative, Gary Schellenberger]

Our questions and answers are for five minutes. We're over five minutes.

You asked a couple of other people to comment, Mr. Coderre. I'm going to allow that a little, and I'll do that for everyone in the first round.

[Denis Coderre, Liberal, Bourassa, QC]

I'm talking about flexibility, Ms. Simpson, because, in a way, I believe we have to adapt. An act must also in a way have a living character. Otherwise, we may have to have the same debate every year because technological progress is too fast.

[Danièle Simpson]

What Roanie just said is that the act should be technologically neutral. In particular, people have started thinking that flexible is synonymous with free and have skipped stages. From the moment they do that, we're no longer heading in the right direction. Flexibility does not mean that something is free of charge. We should aim for flexibility only in terms of flexibility not in the sense of something being free.

[Denis Coderre, Liberal, Bourassa, QC]

All right.

Ms. Nadeau.

[Marie-Louise Nadeau]

The situation is specific to the performing arts. I said that the dissemination of excerpts of theatre plays was already permitted. However, I can tell you that, in our field, we've already defined what that should be. A theatre play is a theatre play and it should be performed on stage. Our problem is that the application of exemptions deprives authors of income; that's clear. We've already addressed that aspect.

For theatre plays, we have agreements with Copibec concerning the paper medium that work very well. That's already in place for us. We're saying that we don't want any expansion because, for the user, for a school teacher, it's already complicated as it is with the current exemptions. We provide a lot of information on this subject on our web site, with specific examples. The Department of Education does it as well. So we're continuing along that path.

[Denis Coderre, Liberal, Bourassa, QC]

We won't touch that.

[The Chair, Conservative, Gary Schellenberger]

Madam Lavallée, you'll have seven minutes.

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

Ms. Levy, do you know why the Copyright Act is complicated? It's because we don't clearly see the underlying principles or the orientation the current Minister of Canadian Heritage wants to take with his new copyright bill, which we have in front of us and which will be introduced in a few weeks or months.

And yet it's simple for the Bloc québécois. We have three principles. The first is that artists, creators and crafts people must be compensated for their work. In our minds, that's fundamental. Creators must also be able to create rather than sue people who violate their copyright. The second principle is to promote dissemination, in all possible ways, while bearing in mind that music and works of art are not free of charge. Lastly, we must discourage professional pirates and little crooks who consider these works free of charge. If we created a new Copyright Act by taking these three principles into consideration, I believe that creators, artists and crafts people would be well served.

You also talked about fair use and fair dealing. I'm pleased to have the opportunity to talk about them. I find this complicated. I've asked people to explain the difference between those terms to me. I've been told the following: fair dealing corresponds to the Canadian act as we know it. The French translation of that is “utilisation équitable”. The list of exemptions would be closed. Fair use apparently corresponds to the American system as we currently know it. The translation of that is “usage équitable”. The list of exemptions would be open. There is the use of the expression “such as”, which is translated in French as “notamment”. In Canada, some people have said that England, Australia and New Zealand studied it and then rejected it.

I would like to know whether my interpretation of those two definitions and my explanation are correct.

[Roanie Levy]

Absolutely. That's precisely the difference between fair dealing in Canada and fair use in the United States.

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

So if I use the terms “fair dealing” and “fair use”, people who know copyright would understand me.

[Roanie Levy]

Yes, that should be the case.

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

All right.

Do you have any other comments, Ms. Simpson.