Evidence of meeting #118 for Canadian Heritage in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was back.
A video is available from Parliament.
Liberal
The Chair Liberal Julie Dabrusin
I call the meeting to order.
We are beginning our 118th meeting of the Standing Committee on Canadian Heritage. Today we are continuing our study of the remuneration models for artists in creative industries.
We have a couple of things we have to do off the top. I apologize for our late beginning. We did have votes. We have one more vote that we must do in committee before we can get started, which is for the election of our vice-chair.
Mr. Clerk, would you like to begin?
The Clerk of the Committee Mr. Michael MacPherson
Yes. Pursuant to Standing Order 106(2), the first vice-chair must be a member of the official opposition party.
I am now prepared to receive a motion for the first vice-chair.
The Clerk
It's moved by Mr. Shields that Mr. Steven Blaney take the first vice-chair.
(Motion agreed to)
I confirm Mr. Blaney duly elected as first vice-chair.
Conservative
Steven Blaney Conservative Bellechasse—Les Etchemins—Lévis, QC
Thank you very much.
Thank you, Mr. Shields.
Liberal
The Chair Liberal Julie Dabrusin
We have with us today two witnesses. To begin, we have Bryan Adams with us in person. Thank you for coming.
We have with us, from Vanderbilt University Law School, Daniel J. Gervais, who is with us by video conferencing.
Why don't we begin with your presentation for us, Mr. Adams?
Bryan Adams Artist, As an Individual
Okay. Thank you very much, Madam Chair and members. Thank you for having me here today. It's very kind.
I've invited Daniel along because Daniel is an expert in copyright law.
I have a proposal to make to the Canadian government for an amendment to the Copyright Act. I've been trying for the past 10 years to get a moment like this to be able to tell you about it. It's quite a simple proposal, and I'll get into it by just going through the PowerPoint presentation I have here for you.
It's a proposal for an amendment to the Copyright Act in subsection 14(1). Under the current copyright law, authors and composers who transfer or assign their copyrights by contract must wait 25 years after death to get them back. That's what it is. If you write a script or you write a book or you write a song and you assign your copyright to a company, you have to wait 25 years after you die to get it back. I can say it again, but I think twice is enough.
In comparison, the current U.S.A. copyright law was changed in January 1978. The U.S. government decided that copyright should revert back to the author and composer, upon request, 35 years after assignment. After you've given it to a company or you've made a deal for your book or your song, 35 years later it returns to you, and you can decide whether you want to continue with that company or keep it for yourself.
My proposal is that we change one word in the Copyright Act, in subsection 14(1), from 25 years after “death” to 25 years after “assignment”. It's one word. That's all we need to do. That way we get into the final part of my presentation, which is the reasons for change.
Before I do that, should we ask Mr. Gervais to make any comments or should I continue my proposal?
Liberal
The Chair Liberal Julie Dabrusin
It is up to you how you'd like to do it. You can go through your entire presentation if you'd like, and have Mr. Gervais present after you, or if you'd like to go back and forth, you can do it that way as well.
Artist, As an Individual
Well, at this point maybe I'll let Mr. Gervais come in, and then we can go through the reasons for change.
I'll give you the floor, Daniel.
Professor Daniel J. Gervais Milton R. Underwood Chair in Law, President, International Association for the Advancement of Teaching and Research in Intellectual Property, Vanderbilt University Law School
Thank you, Bryan.
I have prepared opening remarks, which I sent to the clerk. Should I proceed with those at this time?
Prof. Daniel J. Gervais
Great.
Thank you very much, Madam Chair and honourable members of the standing committee. I thank you for the invitation to testify today. I'm really sorry I couldn't be there in person.
As you very well know, copyright policy is a very difficult balancing act—or perhaps I should say a series of balancing acts between, for example, creators and those to whom they entrust the commercial exploitation of their work. Other balancing acts are those between, for example, those commercial exploiters and the public, between major online intermediaries and copyright owners, between educators and copyright owners, and between librarians and copyright owners. There's a long list, but today I really want to focus on what Bryan just mentioned, which is the balance between creators and those to whom they entrust the exploitation, the commercial use, of their work.
Copyright is meant to encourage new creators to try to make a living by creating new art and more established creators to continue to produce the works we all enjoy and from which we learn. Copyright is directly linked to many forms of human literary and artistic creation. We all know how important that is in a society. Therefore, how policy affects the creation of new works of art and literature is crucial to both cultural and economic progress.
There's one point I really want to emphasize. It's true that some quality contributions to human progress are created by amateurs, people who don't create for a living, but that is not the rule. Talent, however you define this term, has not been distributed evenly. It is true that even abundant talent needs time to be honed, nurtured and developed. One example I like to give is Mozart, who started composing as a child but did not really write anything we still listen to, two and half centuries later, until he was 21. The nurturing of talent over decades is a very important function that copyright policy can accomplish. I for one will take Denys Arcand, James Cameron or Denis Villeneuve any day before even the cutest video posted to YouTube, if I can put it that way.
There is a strong cultural argument in support of creators, but of course there is a sheer economic argument as well. In this knowledge economy, creativity is replacing the production of material goods. Therefore, as a matter of both human and economic development, policy should ensure that those who can and will push their creative limits, including in developing new art and knowledge, can do so.
That takes me directly to this topic of section 14. A key feature of copyright rights is that they are transferable—except for the moral right, of course. Transferability is meant to allow authors to work with commercial intermediaries such as film production companies, record labels, book and music publishers, and so on. Those companies market the work of authors and allow authors to monetize their talent and their craft and, in doing so, to make a living and continue creating. This is often the key mechanism that allows authors to be authors—to have the time to dedicate to this unique function that is so important to human cultural and intellectual progress.
The ability to transfer and license third parties is essential to the copyright system in Canada and elsewhere in the world. To take just one simple example, novelists and essayists who want their books published by a publisher must be able to give these publishers some sort of exclusive right. Almost all transfers of copyright happen on the basis of an open contractual relationship and negotiation. This means that the parties bargain from their respective positions. Their clout will vary according to a variety of factors. To take an example, if you're an unknown author publishing your first novel and working with a major publisher, you probably consider yourself very lucky and will just sign anything put in front of you.
It is also true that in most cases it's very difficult to predict the commercial success of a new work. Countless novels, for example, were rejected by publishers. Marcel Proust, Rudyard Kipling, Louisa May Alcott and so many others were all told they had no chance to make it as writers, yet their works have been read by millions and are still widely read today. Many great songs were rejected by music publishers and became major hits. This means there is undoubtedly a risk in investing to develop new authors and in producing new works from established ones.
The question Bryan and I raise today is this: how long is the reasonable period of commercial exploitation that is necessary to allow a publisher or producer to recoup investment and make a profit?
Many national laws around the world recognize that letting an assignee keep copyright for its entire duration makes very little sense. Even the United States, as Bryan mentioned, which is not the most author-friendly jurisdiction in the world, has adopted a reversion provision in its 1976 Copyright Act.
I'll read one sentence from the U.S. Congress report on this new act. It states, referring to a reversion provision:
A provision of this sort is needed because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has been exploited.
Also, under U.S. law, says the report, this right “cannot be waived in advance or traded away”. Whichever method is chosen by the legislator, the law must recognize the unequal bargaining position of authors and its unfairness. Allowing the rights to revert to the author after a reasonable period of time is a very powerful way to limit this unfairness.
Other countries have opted to limit the contractual ability to transfer rights, especially to future works. That's probably because they assume that an author would only agree to such a transfer if she had no choice due to her unequal bargaining position. This is the case, for example, in Belgium, France and Spain, to name three. Germany goes further and provides authors a right to revoke an authorization given to a publisher if a new form of exploitation appears, and over the decades that follow the transfer of a copyright, this situation is almost certain to arise.
The Canadian act, like the 1911 U.K. act from which the original Canadian statute is derived, provides reversion, but in most cases the provision is essentially meaningless. As Bryan explained, the author must comply with a difficult condition to exercise this right. Namely, he or she must first die and heirs must then wait 25 years.
There are many rebalancing efforts that could happen in copyright, but I respectfully submit that it is time to rebalance this relationship between authors and those who exploit their works by contract. The U.S. requires a 35-year period. Canada could, in my respectful submission, do better and institute a 25-year reversionary interest.
There are a number of administrative requirements in U.S. law that need not be adopted in Canada. In my submission. there are only three important conditions for reversion that should be adopted. The first is that the reversion should happen only by request of the author. The second is that the assignee be given sufficient advance notice of the author's intention. The third is that a public notice be made available, which is perhaps a function that could be entrusted to the Copyright Board of Canada, for example.
Those were my introductory remarks. I am at the committee's disposal to answer any questions, of course, including about any other aspects of author remuneration. Thank you very much.
Liberal
Artist, As an Individual
We have the last page of our proposal.
As Daniel has just said, 25 years is plenty of time for copyright to be exploited by an assignee. The second point is that an author or composer can see a further potential financial benefit of their work in their lifetime and reinvest in new creation, and this would happen by having a reversion—it's an incentive. This is the single and probably the most efficient subsidy to Canadian creators at no additional cost at all to the taxpayers.
I don't know if we need to get into it at this point, but the U.S. industry is benefiting from additional advantages compared to Canada. Authors, composers and songwriters are benefiting from the fact that they are getting their copyrights back earlier than Canadians are.
That wraps up my presentation, ladies and gentlemen. Thank you very much. If you have any questions, I'm at your disposal.
Liberal
The Chair Liberal Julie Dabrusin
That's wonderful.
Thank you very much.
We will now begin our question and answer period.
Mr. Breton, you have the floor for seven minutes.
Pierre Breton Liberal Shefford, QC
Thank you, Madam Chair.
It's a pleasure to be back on this committee. I thank our two witnesses for being here with us today.
Mr. Adams, I want to thank you particularly for joining us at this table. We are honoured. I congratulate on your 40-year career, your 14 studio albums, your 70 million albums sold worldwide, your 5 Golden Globe nominations and your 3 Academy Award nominations. These are very impressive achievements, which make Canada proud.
Artist, As an Individual
I'm not getting any of the translation in my earpiece. I'm sorry.
I'd like to propose that I get my guy to come in and help you guys get this audio equipment worked out.
Liberal
Pierre Breton Liberal Shefford, QC
The music industry has clearly evolved a great deal over the past years.
Could you tell us a bit about the evolution of the music industry you observed since the beginning of your career over the past 40 years, particularly with regard to the remuneration of artists?
Do you have any other suggestions to make, aside from the ones you made earlier with regard to subsection 14(1) of the Copyright Act?
Artist, As an Individual
I'm sure I could get into giving you many suggestions on what to do for remuneration, particularly with the Internet, but at this stage I think this would be a very big step in the right direction to help composers and authors in Canada to own and control their work and at least have the opportunity to decide if they want to or not going forward.
The one point I want to make is that it's all right for someone like me who's had a long career, as you described. I'm really not standing here today for myself as much as I am standing for the young artists and authors of Canada who are coming forward. If a change did happen, it would affect me on some level, but it would definitely benefit the younger generation more going forward.
It's a bigger question. Your question is a very big question: what could we do going forward to help? It's another discussion. It really is.
Liberal
Pierre Breton Liberal Shefford, QC
As an international artist, have you seen models elsewhere in the world that we could consider here?
Could you tell us about those models?
Artist, As an Individual
Yes.
The most evident one is obviously the American one, as I described. I think it's a good starting point. Even that platform, as Daniel said, is not the most author-friendly country, but at least it's better than what we have.
When I first discovered that this was in existence, I was a little bit puzzled. I couldn't understand why anyone would even want to create something that was so difficult for songwriters, composers and authors. Why would you want to limit their creativity on any level? It's important that everyone understand that in some cases, some people may create only one or two things in their lives. They might write The Catcher in the Rye, and it might be the only thing they will ever do in their whole lives, but it's such an influential and powerful piece, influencing so many other people and other writers and inspiring people, that it's important that it be their destiny to control it eventually. At least it would be inspiring to think that it would come back to them. Do you see what I'm saying?
When you as a young writer sign something over, as I myself did...I was 15 or 16 when I signed my first songs over to another publisher. I was just happy to pay my rent. That's it. People ask me what the single most exciting thing is that ever happened in my career. I can tell you it was the day I could pay my rent. I was grateful. I still am. I think I've answered the question.
