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.