Canadian Heritage Committee on Nov. 27th, 2018

[David Yurdiga, Fort McMurray—Cold Lake, CPC]

Thank you, Madam Chair.

Thank you, witnesses, for your submissions.

I just want to focus on copyright at this moment. Even if we redo the Copyright Act to give it more teeth, who's responsible for the cost? Not only the cost, but when it's outside of Canadian jurisdiction, how is it enforceable? As was mentioned earlier, they're bouncing around. Once they change, do you have to start a new lawsuit? There are so many questions.

I'm not sure if the copyright actually has more teeth. Enforcement is another issue.

Ms. Zagar, could you please comment on that?

[Jessica Zagar]

You raise a good point, because no two litigations are the same, and you never really know what is going to happen in the context of that litigation. There are always going to be challenges presented. As you've said, even if the Copyright Act is amended to allow for de-indexing and blocking orders, there's still going to be an enforcement aspect of it.

The proposals are really about giving it some teeth so that artists have a chance of getting an effective remedy more quickly and before the harm becomes disparate. The Google and Equustek case went on for years, trying to stop the harm.

Amending the Copyright Act to allow for a rights holder or an artist to apply, within a due-process framework that clearly sets out the steps required to obtain that order, is really meant to give them that little push to get them over some of the initial hurdles, so that they can get to that relief more quickly.

I really think amending the Copyright Act would benefit that type of relief, because it takes some of the uncertainty out of the process, in terms of whether or not the court even has jurisdiction to grant that type of order. The Copyright Act will specifically provide for it, and that would be in line with what some of our international counterparts who have already taken steps to allow that type of relief have done.

[David Yurdiga]

Mr. Knopf.

[Howard Knopf]

I actually will be talking about this more tomorrow at the other committee, but Ms. Zagar made as good a case, I suppose, as can be made on this. The Equustek decision was extremely problematic but it does show that the existing law does work. It works maybe even too well in the case of Equustek, because hard facts make bad law. That was a silly little IP case that ended up having worldwide consequences.

I take issue with what Ms. Zagar said about characterizing this as being about artists. These lawsuits are brought by great big huge multinational record companies. Let's not fool ourselves. These are not about individual artists. Everybody always speaks for individual artists, but it's big multinationals—and those are now down to three big multinational record companies. These companies are worth hundreds of millions or billions of dollars. They are not impoverished, and they go after it when they think they can get money out of it. We're seeing a proliferation of troll-type activity in Canada now that is driving normal people crazy with demands for $5,000. The enforcement is getting out of hand actually. We're getting too much.

It's not just companies that enforce the law. In extreme circumstances there are criminal provisions even now. There have been forever in the Copyright Act, so if somebody starts selling counterfeit DVDs out of the back of a truck at a flea market, they can be arrested and charged criminally. That's been the law for a very long time, and there's nothing wrong with that. The criminal law has occasionally been pushed too hard too fast by our system, by overzealous police at the insistence of certain collectives, but by and large, with a few notable exceptions, it's been used appropriately and it's there for really bad situations.

If we're going to have more enforcement—I'll talk about it tomorrow—there are moderate models that can be looked at perhaps, such as the existing Australian model, not the new proposed one, that would make sure that proper judicial proceedings are undertaken by judges and that we don't have some kind of self-appointed tribunal making these decisions and invoking effectively industry-sponsored censorship. There are safeguards that need to be put in place to make sure it is all very judicial and that it follows the rule of law.

I don't think we have a big enforcement problem, and all the existing data shows that so-called piracy is vanishing. The industry finally figured out how to deliver movies and music very cheaply and easily to people, and people want to get things conveniently and easily and honestly, and so the kind of BitTorrent activity and other so-called pirating activity that we hear histrionics about is almost not an issue anymore.

[The Chair, Liberal, Julie Dabrusin]

That brings your time to an end.

Mr. Nantel, you have five minutes.

[Pierre Nantel, NDP, Longueuil—Saint-Hubert, QC]

Thank you, Madam Chair.

I want to thank you all for being here. I'm always surprised to hear such diametrically opposite views. I wish all the committee members good luck in shedding light on this issue and finding the best possible solution.

Mr. Forget and Mr. Bischoff, have the presumptions set out in section 34.1 of the Copyright Act always existed? Isn't this demand from directors and screenwriters exacerbated by the massive online distribution that we're seeing today?

[Samuel Bischoff]

I'm going to respond in French.

To some extent, the issue is indeed exacerbated by the proliferation of new content distribution platforms, and in some cases foreign platforms. This obviously shows the need for some certainty regarding the authors' identities, for the sake of their rights. In a market that's constantly shifting toward digital technology, the clear knowledge in advance that, for example, the screenwriters and directors are in fact the original authors of the work would ensure that these rights are respected, no matter what the future holds for us.

[Pierre Nantel, NDP, Longueuil—Saint-Hubert, QC]

I'm not a lawyer. Honestly, during some meetings I'm quite comfortable with the subject, but during other meetings, such as this one, I'm at a complete loss. The legal issues are far beyond my skill level. That's why I'm wondering about this.

Are we facing a situation that's somewhat similar to the situation that I experienced when I worked in music and the concept of neighbouring rights emerged? This is about moral rights, which may be compensated, and the need for structures to ensure that our creators receive their fair share.

I told you that I wasn't a lawyer. Could we have the most specific examples possible? If you don't have them this morning, could you send them later to all the committee members through the clerk? Have any other countries already studied the issue? Regarding the example of neighbouring rights, we all know that these rights exist in Canada, but unless I'm mistaken, they don't exist yet in the United States. This means that money is being accumulated for performers and producers. However, in our country, performers and producers end up being paid. Is this the case elsewhere when it comes to moral rights and the rights of screenwriters and directors?

[Dave Forget]

Yes, there are other examples. We'll be happy to provide them later. However, I want to point that the reason we're seeking to clarify the current text is twofold.

First, take the example of the Directors Rights Collective of Canada, which has 1,300 members. The DGC is made up of 700 directors. As a result, the collective includes directors who aren't covered by the DGC's collective agreement. This shows that, outside the framework of the collective agreement, content is being produced and directors need their rights protected.

We're seeing a second risk. Each time a new distribution platform appears, it again raises issues regarding compensation and remuneration.

We think that a clarification such as the one we're proposing would make it possible to avoid these situations in the future, including the examples you just provided. We don't have any specific requests in this regard, but this could set the stage for the future and ensure that directors and screenwriters are well compensated.

[The Chair, Liberal, Julie Dabrusin]

That concludes your five minutes, Mr. Nantel.

I'd really like to thank all the panellists for their presentations today.

I apologize for the delay. There were votes. I appreciate your patience in coming and in waiting for us until we all got here.

We are going to suspend briefly while we set up for our next set of panellists.

Thank you.

[The Chair, Liberal, Julie Dabrusin]

Again, I'm trying to keep us clicking along, because we did start a bit late.

We have with us, as part of our second panel, Professor Jeremy de Beer from the faculty of law at the University of Ottawa.

By video conference, we have Michael Geist, Canada research chair in Internet and e-commerce law, faculty of law, University of Ottawa.

We also have with us Scott Robertson, president of the Indigenous Bar Association.

I would like to begin with the video conference in case we run into any technological issues.

We'll begin with you, Michael Geist, and then we will go to the panellists here.

[Dr. Michael Geist, Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual]

Thank you, Chair.

Good afternoon. My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law. I am a member of the Centre for Law, Technology and Society. I appear in a personal capacity as an independent academic representing only my own views. I'm sorry that I'm unable to appear in person today, but I'm grateful for the opportunity to participate via video conference in your study on remuneration models.

I have been closely following the committee's work on this issue, which will undoubtedly provide valuable input to the industry committee's copyright review. Last week I was dismayed to hear witnesses claim that Canada's teachers, students and educational institutions are engaged in illegal activity. I believe this claim is wrong and should be called out as such.

I'd like to address several of the allegations regarding educational copying practices, reconcile the increased spending on licensing with claims of reduced revenues, and conclude by providing the committee with some recommendations for action.

First, notwithstanding the oft-heard claim that the 2012 reforms are to blame for current educational practices, the reality is that the current situation has little to do with the inclusion of education as a fair dealing purpose. You don't need to take my word for it. Access Copyright was asked in 2016 by the Copyright Board to describe the impact of the legal change. It told the board that the legal reform did not change the effect of the law. Rather, it said, it merely codified existing law as interpreted by the Supreme Court.

While I think the addition of education must have meant something more than what was already found in the law, its inclusion as a fair dealing purpose is better viewed as evolutionary rather than revolutionary.

Second, the claim of 600 million uncompensated copies—which lies at the heart of allegations of unfair copying—is the result of outdated guesswork using decades-old data and deeply suspect assumptions. The majority of the 600 million—380 million—involves kindergarten-to-grade 12 copying that dates back to 2005. The Copyright Board warned years ago that the survey data is so old that it may not be representative. Indeed, it's so old that there are now cabinet ministers who could have been the actual students in the K-to-12 classes at the time they were last surveyed on copying practices.

Of that outdated 380 million, 150 million involves copies that were overcompensated by tens of millions of dollars as determined by the Copyright Board and as upheld by the Federal Court of Appeal. Education has had to file a lawsuit to get a refund of those public dollars. I can only imagine the public response if the federal government was found to have overpaid for services by tens of millions of dollars and failed to take action to recoup that money.

The remaining 220 million comes from a York University study, much of which is as old as the K-to-12 study. Regardless of its age, however, extrapolating some dated copying data from a single university to the entire country is not credible. It would be akin to sampling a few streets in the chair's or Mr. Nantel's ridings and concluding that they are representative of the entire country.

Third, the committee has heard suggestions that the shift from print course packs to electronic course materials, or CMSs, is irrelevant from a copying perspective. I believe this is wrong. The data is in fact unequivocal. Printed course packs have largely disappeared in favour of digital access. For example, the University of Calgary reports that there are only 53 courses that now use printed course packs, for a student population of 30,000.

Why does this matter? There are three reasons.

First, as universities and colleges shift to CMSs, the content changes too. For example, an Access Copyright study at Canadian colleges found that books comprised only 35% of the materials. The majority was journals and newspapers, much of which is available under open access licences or licences through other means.

Second, the amount of copying in a CMS is far lower than with print. While Access Copyright argues that there should be a 1:1 ratio—for every registered student the assumption is that every page is accessed, even for optional readings posted on the site—the data and, frankly, common sense tell us that this is unlikely.

Third, a CMS allows for incorporation of licensed e-books. At the University of Ottawa there are now 1.4 million licensed e-books, many of which involve perpetual licences that require no further payment and can be used for course instruction. Tens of thousands of those e-books are from Canadian publishers, and in many instances universities have licensed virtually everything that's offered by Canadian publishers.

This means the shift from the Access Copyright licence is not grounded in fair dealing. Rather, it reflects the adoption of licences that provide both access and reproduction. The licences get universities access to the content and the ability to use it in their courses. The Access Copyright licence offers far less, granting only copying rights for the materials you already have. With increased spending—and everybody agrees there has been increased spending since 2012—why do some copyright collectives report reduced revenues? There may be several reasons.

First, as I mentioned, some of the licensing is perpetual, which means that payment comes once rather than on an annual basis.

Second, many of the works aren't being used or copied. For example, UBC has reported that 69% of their physical items have not be used since 2004.

Third, despite the shift to digital, Access Copyright's payback system excludes digital works. In terms of eligibility, its rules exclude blogs, websites, e-books, online articles and other similar publications. Only print editions can be claimed. Moreover, the payback system also excludes all works that are more than 20 years old on the grounds that they are rarely copied.

Fourth, Access Copyright has refused to adopt transactional licences, thereby sending licensing money elsewhere. Education is spending millions each year on transactional licences, which permit specific copying for courses, yet Access Copyright hasn't entered that market.

Fifth, consistent with what this committee heard from Bryan Adams, it may be that part of the problem lies with the relationship between authors and publishers, with authors undercompensated for digital revenues.

Let me conclude with a few thoughts on solutions to remuneration.

First, efforts to force the Access Copyright licence on educational institutions through statutory damages reforms should be rejected. Education institutions, like anyone else, should be free to pursue the best licences the market offers, an approach that is in the best interests of both education and authors. At the moment I believe that comes directly from publishers and other aggregators, not the collected.

Second, the government should work with Canadian publishers—

[The Chair, Liberal, Julie Dabrusin]

Mr. Geist, I just wanted to give you the heads-up that you're in your final minute. I can see that you have a little to cross through.

[Dr. Michael Geist]

I'm good.

You should work with publishers to ensure that their works are available for digital licensing in either bundles or through transactional licences. Indeed, sometimes digital licences are the only source of revenue, since I mentioned that payback doesn't compensate for older works. Often there are no sales of some of those older books, so those digital opportunities provide an opportunity.

Third, government should continue to work to pursue alternative publishing approaches that improve both access and compensation. For example, last week's economic update announcement of funding for Creative Commons-licensed local news should be emulated with funding for open educational resources that pay creators up front and give education flexibility in usage.

Finally, non-copyright policies should be examined. For example, how is it that Canadian content rules for film and television production still treat Canadian book authors as irrelevant for CanCon qualification?

I look forward to your questions.

[The Chair, Liberal, Julie Dabrusin]

Thank you.

We will now go to Mr. de Beer, please.

[Professor Jeremy de Beer, Full Professor, Faculty of Law, University of Ottawa, As an Individual]

Thank you very much to the honourable members of the committee for providing me the opportunity to speak here today about remuneration models for artists and creative industries.

My name is Jeremy de Beer. I'm a full professor at the University of Ottawa Faculty of Law and a member of the University of Ottawa's Centre for Law, Technology and Society. Before becoming a law professor, I was legal counsel at the Copyright Board where I saw first-hand how remuneration models are applied in practice. For the last 15 years, I've taught courses covering copyright in the creative industries. I've advised collecting societies, user groups, numerous government departments and international organizations on copyright law and policy. Of particular note to this committee, I'm an author. I've written five books and more than 50 articles and book chapters and dozens of other works. Based on that, I have three main points to submit to the committee today.

First, the root cause of many artists' problems is not copyright; it's unfair contracts. Second, any copyright reforms that this committee considers or recommends should rebalance Canadian law following the term extension of copyright in the United States-Mexico-Canada Agreement. Third, I urge this committee to recognize the unique rights of indigenous artists by clearly stating that nothing in the Copyright Act or this committee's work derogates from existing and treaty rights of the aboriginal peoples of Canada.

The problem is contracts, not copyrights. Based on my experience as a teacher, an adviser, or a researcher and a writer, I can tell you that one of the biggest problems facing authors and many artists is not piracy by Internet downloaders or educational institutions. The biggest problem for many creators is with the publishers, producers and other powerful intermediaries who siphon much of the market value of copyrighted works.

While arguing in the name of authors and artists about value gaps or freeloading teachers, many intermediaries conveniently ignore the power imbalances and the unfair contracts that harm real creators.

Doctor Rebecca Giblin, an Australian professor who advocates for the interests of artists, calls out the core problem as, and I quote: “a manifestation of trickledown economics, that theory of horses and sparrows: feed the horses enough oats and some will fall through to feed the birds.”

As a result of this approach, she explains, what we have are fat horses and starving sparrows. I suggest to committee members that they read Dr. Giblin's work to better understand why it's dangerous to conflate the interests of artists with those of investors and how we can secure for artists a fair share without compromising incentives.

Many of the solutions to the problems facing artists are outside of copyright, contracts being one example.

My second point is about rebalancing copyright after the USMCA. As you know, the United States-Mexico-Canada Agreement requires Canada to extend the term of copyright protection by 20 years. The windfall will cost Canadian consumers and taxpayers tens and possibly hundreds of millions of dollars per year, most of which will flow to foreign publishers, record companies and other investors.

While the terms of copyright protection in Canada and the United States will soon be aligned, other aspects of our law are out of sync. Most importantly while the United States has a flexible fair use system to protect the interest of all stakeholders, including artists, who create new works by building on what's come before, Canadian copyright law contains no such safety valve. Rather, Canadian creators are at a disadvantage in having to rely on a closed list of limited exceptions.

While you've been asked by some groups to whittle away at these flexibilities even further, the smarter move is to shift to a similar fair use system that will balance American copyright. At an absolute minimum, given the expansion of copyright protection in the USMCA, Canada must preserve the flexibilities already in place in our copyright law.

On the topic of recognizing indigenous rights, my final point to the committee is an emphatic endorsement of what I believe you will hear from Mr. Robertson, on behalf of the Indigenous Bar Association. The time is now to ensure that Canadian law is fully consistent with the rights of aboriginal peoples of Canada.

The way to do so is not through paternalistic measures that purport to tell aboriginal peoples how to protect and grow their cultural and creative industries. The appropriate measure is at minimum a non-derogation clause, an explicit statement acknowledging that nothing in the Copyright Act derogates from the rights of aboriginal peoples of Canada to determine for themselves, based on indigenous or Canadian laws, how to govern traditional knowledge, cultural expression and creative works.

Thank you very much.

[The Chair, Liberal, Julie Dabrusin]

Thank you.

We will now go to Scott Robertson, from the Indigenous Bar Association,

Go ahead, please.

[Scott Robertson, President, Indigenous Bar Association]

Thank you, Madam Chair and members of the committee, for the opportunity to speak with you today.

I would like to begin by acknowledging the Algonquins' unceded territory, on which we gather today, and call upon their laws and teachings to guide us in our discussions.

My name is Scott Robertson, and I am a Haudenosaunee from Six Nations of the Grand River. I'm a practising lawyer and the president of the Indigenous Bar Association.

The IBA represents a membership of indigenous lawyers, scholars, law clerks, judges and elders from across Canada. Our mandate is to promote the advancement of legal and social justice for indigenous peoples in Canada, in addition to promoting the reform of policies and laws affecting indigenous peoples. It is on this basis that I will address the remuneration of artists, specifically those issues relevant to indigenous artists.

One of the overarching principles of the Canadian Copyright Act is to ensure that creators receive a just reward for the use of their works. Many of the intervenors who have appeared before your committee have eloquently expressed the need to fairly compensate artists for their efforts. As we have heard, there are many good reasons for doing so, and Canada has much to learn from the rest of the world to assist in accomplishing this goal.

Copyright emphasizes a western legal tradition of protecting individual property rights, and frames those rights as artistic endeavours. Not all indigenous nations share in this fundamental concept of intellectual property rights.

It is important to be clear that indigenous artists and creators are entitled to the same protections as all other artists. However, there is a further complexity to be considered when examining the endeavours of indigenous artists.

What may seem to be a purely indigenous artistic endeavour may actually be a form of medicine, astronomy, ecology or even geography. These essential teachings are sometimes recorded in stories, dance, painting and other so-called creative forms. Canada's laws need to create a space to ensure that these teachings are protected, not just for the creative and artistic pursuits and purposes but also for the knowledge and laws that are passed on.

Canada was founded on three legal traditions—common law, civil law and indigenous law. Despite this multi-juridical founding, indigenous legal traditions have been largely ignored in many Canadian laws, and in some cases indigenous peoples have been prosecuted for living their laws.

Missionaries, government agents, anthropologists, art historians, art collectors and others have all played a role in defining, subjugating and then appropriating the tangible and intangible cultural heritage of indigenous peoples.

As set out by Robin R.R. Gray, while some form of appropriation between cultures occurs at a basic level:

appropriation of Indigenous cultural heritage in the context of settler colonialism has almost always been about power—the power to produce knowledge about Indigenous cultures, the power to control the means of knowledge production and the power to set the terms of its use-value within society.

On the west coast of Canada, the appropriation of totem poles in the market economy occurred at the same time that the government agents and others were confiscating indigenous cultural heritage. Between 1884 and 1951, the potlatch ban in Canada created the conditions to support the mass expropriation of indigenous cultural heritage.

While indigenous peoples were being prosecuted for practising their laws, non-indigenous peoples were commodifying their cultural heritage, like the totem pole, for monetary gain. In so doing, the totem pole has been taken out of context through displacement, through the western curatorial practice of preservation and through the misrepresentation of its image as a symbol of primitive and universal indigeneity or as an icon of Canadian identity.

Residential schools have also had a devastating impact by impairing the intergenerational transfer of cultural expression within indigenous communities, further reducing the power to produce knowledge.

Professor Heidi Bohaker, an ethnohistorian from the University of Toronto, often shares her experiences of Anishinabe women crying when they see for the first time the repatriated items of their ancestors and an acknowledgement of their diminished knowledge and skills.

All parliamentarians, and this committee in particular, have a role to play in ensuring that those laws that may potentially impact indigenous peoples and their cultural expressions are fully canvassed and resolved with a view to advancing reconciliation and further ensuring that the power balance to control the means of knowledge is restored.

There is a concern amongst some indigenous communities that intellectual property rights in themselves may cause harm to indigenous peoples.

In order to address these historical wrongs and to foster support for indigenous artists that respects and honours their laws and concepts of intellectual property, this committee should undertake a wide and meaningful consultation with indigenous peoples. Artists who generate creative work need to be consulted to determine the kinds of protections and amendments needed to ensure them the power to control their knowledge. Failing to do so may lead to untoward and inappropriate taking of knowledge under the guise of artistic reinterpretation.

In closing, I would like to draw upon the teachings of Professor John Borrows, who, in considering whether western intellectual property rights may actually provide protection of indigenous knowledge, stated the following. I quote:

In the end, what may simplify the challenge is that the debate that must occur is not about the validity of the norms currently advanced by intellectual property law; it is about whether they should be the exclusive values brought to bear on the protection of Indigenous knowledge and cultural expression. In the context of the traditional knowledge protection debate, adopting a methodology that does not discount Indigenous values from the outset is surely the first step in avoiding procrustean outcomes that will neither avoid unfair appropriation nor help to protect Indigenous cultures.

There is much work to be done by this committee to reconcile indigenous laws and give voice and expression to those indigenous principles that protect the transfer of knowledge and art in a loving and respectful manner.

We have a path forward. We just need the courage to walk it.

The IBA would like to thank the committee for the opportunity to speak with you today, and I would be willing to take any questions.

Thank you.

[The Chair, Liberal, Julie Dabrusin]

Thank you.

We're going to our question-and-answer period, but as some of you may have noticed, we have lost Mr. Geist. The technicians are still trying to connect. That's exactly why I like to try to start first with people who are away from us. I am hoping he will pop back into the conversation shortly.

On that note, we will be beginning with you, Mr. Long, for five minutes.

[Wayne Long, Saint John—Rothesay, Lib.]

Thank you, Madam Chair.

I will confess that all of my questions were written and designed for Mr. Geist.

Mr. de Beer and Mr. Robertson, these questions are for both of you.

What more can we do, beyond a non-derogation clause, to protect indigenous copyright holders?

Mr. de Beer, I'll start with you and then go to Mr. Robertson.

[Prof. Jeremy de Beer]

I think one of the first things we need to do is amend our stance on the international stage. I think Canada has been reluctant to do what needs to be done in forums like the World Intellectual Property Organization, the specialized agency of the United Nations responsible for intellectual property. There are negotiations that have been under way for far too long toward a treaty that would protect traditional cultural expressions and other forms of traditional knowledge. Canada has been an obstructor of progress by aligning ourselves with countries such as the United States in that particular context.

[Wayne Long]

Okay.

[Prof. Jeremy de Beer]

I think we need to amend our approach internationally and lead by example, respecting the rights of indigenous people.

[Wayne Long]

Thank you.

Mr. Robertson.

[Scott Robertson]

I don't mean to be glib, but I would say that we have all the tools at our disposal. We recognize aboriginal rights under section 35 of the Charter of Rights and Freedoms. We recognize indigenous nations as being self-governing bodies. They, themselves, control intellectual property within their own domain and have been doing it for thousands of years. It's just a matter of recognizing and acknowledging that through our own Copyright Act.