Evidence of meeting #8 for Canadian Heritage in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was copyright.
A recording is available from Parliament.
General Counsel and Director, Policy and External Affairs, Access Copyright
No, no, quite the opposite. It's not a question of boxing the courts into a corner. What happens is that you give free rein for the courts to determine--
General Counsel and Director, Policy and External Affairs, Access Copyright
--what the policy should be, as opposed to Parliament determining what the policy should be. That is an important distinction, a very important distinction. The courts are not elected officials.
Liberal
Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL
Okay. I think what we end up with at that point, by providing legislation that way, is that we get to revisit it every two or three years, and it has to evolve with the coming technology, whatever that may be.
There was an article in “Legal Report” some time ago--you were quoted in it, actually--regarding the case about parodies and how parody is a form of copyright infringement. You said, and I quote:
The law is not clear. In my opinion, [an exception for parody] is there. But we don't have a lot of case law in Canada.
You're calling for “a specific limited exception for such works”.
General Counsel and Director, Policy and External Affairs, Access Copyright
That's an example where you could have an exception created for parody. There is, in fact, no clear exception for parody in our Canadian legislation. Some argue that it is embedded in fair dealing; others say it is not. This is one of the problems with fair dealing: you never know.
You never know. Even if it's open-ended, as a user, you never know whether you're in or you're out. So there are two ways of approaching providing, ensuring, access when we're actually dealing with a policy position where we feel we need to ensure and allow access as opposed to it being an issue of payment.
If access needs to be provided for a work, for example, in the case of parody, there is a justifiable public policy reason why access should be allowed. Then you could create what I call “four corners exceptions”. What are they? Those are exceptions that are defined in such a way that people know whether you're in the box or outside the box. If you're in the box, you don't need to worry as a user; you don't have to ask for authorization or pay. If you're outside of the box, then we're dealing in an area where you need to ask for authorization and, at times, payment as well.
Those are four corners exceptions and we have examples of them in our Copyright Act. So this is an example: for a good public policy reason, you create a four corners exception that says there's an exception for parody.
Conservative
Liberal
Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL
Oh, you know what? I wanted others to comment, perhaps.
Liberal
Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL
I had another subject, but I don't have the time. Perhaps others would like to comment on that.
Ms. Simpson.
Conservative
President, Vice-President, Union des écrivaines et écrivains Québécois, Société québécoise de gestion collective des droits de reproduction
I'd like to add something to what Roanie said and I'm speaking right now solely on behalf of the artists. If there is any expansion of this notion of fair dealing, you will strip artists of income and you will also impose on them the financial burden of proving that they own those rights. This is becoming absolutely impossible. In any case, very few artists can afford that. Claude Robinson is an extraordinary being.
Conservative
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Quite curiously, you conclude with the one case I wanted to talk to you about, Claude Robinson. I'd like to summarize that case for the people around the table because not everyone knows the story of Claude Robinson. Mr. Del Mastro, do you know the story of Claude Robinson?
No. We do have two solitudes.
Claude Robinson is an artist who was extremely prolific 14 years ago and who, to assert his copyright, had to sue Cinar, an international animated film company. You may have heard about it because it was a scandal here in Ottawa. The company was accused of fraud and of using nominees.
Claude Robinson sued Cinar. In fact, he has been suing them for 14 years. He is a creator, an artist who has produced nothing in 14 years because he has had to become an investigator and lawyer to defend his case. He won at trial, but the rich and powerful international companies, including Cinar, appealed. He still has to defend himself in court. He has no more money. Imagine.
In Quebec, there has been a solidarity movement as I believe there only is in Quebec. Two hundred and fifty thousand dollars has been collected for him. The amount is even $262,000 because I took up a collection in the Bloc québécois. This copyright problem is obvious in Quebec and very well known. Everyone talks about Claude Robinson. We must not transform our artists and creators into lawyers.
You tell me that fair dealing would transform artists into lawyers. Is that correct?
General Counsel and Director, Policy and External Affairs, Access Copyright
That's correct.
Bloc
General Counsel and Director, Policy and External Affairs, Access Copyright
That is why we'll let the non-lawyers answer to the challenge of actually turning them into lawyers.
Partner, Lone Pine Publishing
Thank you.
I'm not sure whether you are pausing for an answer, but my—
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Wait a minute, I don't have any translation; I don't know what happened.
Partner, Lone Pine Publishing
I think this may respond to several points or questions that have been made. I think you do run the risk, if not of turning them into lawyers, then of turning them into litigators, where they're always in court working to clarify the system.
I think the question of flexibility and the question of adaptability will be partly answered by any specific answer to the question. If the Copyright Act comes out with clear borders, if the limits of fair dealing are clearly expressed, and if the exceptions to infringement are clearly expressed.... We've mentioned parody as an exception that would be very easy to countenance and an educational exception as one that would be very difficult to countenance.
I think if those things are clear, along with a reinforcement of the role of collectives, I think what you're going to see is an end to some of the litigation that's going on in the background—or in the foreground now—and an end to some of the prospect of litigation. If the rules are clear, people will get back into a working relationship between creators and users of copyrighted, protected work. Users, especially large-scale users, aren't going to be tempted to call a halt to the discussion about what they might pay for a resource while they work to see whether they can get it without payment.
Those rules, if they leave grey areas but reinforce the role of collectives and the role of the transaction between copyright holders and copyright users, will send people back to the bargaining table, in a sense, where we will, as suppliers to people who use information, be offering the information at a reasonable price with reasonable terms of use. If the response is that they'd like different terms, then we would talk about that.
Collective licensing is one way to work around that; direct licensing from an owner, such as a visual artist to a user, is a way around it; and the ordinary price that you see on the back of a book or an online digital book is a way to do it.
So in a sense, an update could simply be a reconfirmation of the terms that are in the Copyright Act now. That would work to some extent as an update, clarifying the field of play and getting people back into a reasonable relationship.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I have a lot of comments to make, but I absolutely want to ask Mr. Cornellier a question. Mr. Cornellier, you represent photographers, but here we're not talking a lot about photographers.
Conservative
