Industry Committee on May 31st, 2018

[The Chair, Liberal, Dan Ruimy]

Thank you very much. Our apologies. Voting is always fun at this time of year.

Welcome, everybody, to meeting 119 of the Standing Committee on Industry, Science and Technology as we continue our fascinating, in-depth review of the Copyright Act.

We have with us today from the Professional Writers Association of Canada, Christine Peets, President; and from the Canadian Council of Archives, Nancy Marrelli, Special Adviser, Copyright.

Before we begin, Mr. Jeneroux, you had something you wanted to say.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Yes, thank you, Mr. Chair. I apologize to the witnesses for the few moments that this will take.

I do want to take the opportunity because of the exceptional circumstances that I believe we find ourselves in. I'm sure when the witnesses booked their travel a few weeks ago, they weren't anticipating that there would have been a pipeline purchase by the government at this point in time, so I want to take the opportunity to move the motion that we put on the Order Paper last Tuesday. The motion reads:

That the Standing Committee on Industry, Science and Technology undertake a study of four meetings to review, among other things: the overall cost of buying and expanding the Trans Mountain Pipeline project, the costs related to oversight (crown corporation) of the project, and how this decision will impact investor confidence in Canadian resource projects; and that the Committee reports the findings back to the House and make recommendations on how to restore investor confidence.

I believe, again, it's imperative at this point in time, with the uncertainty in the energy sector created by the situation that the Prime Minister and the Minister of Finance have unfortunately put us into, that this be something we undertake urgently so that we have that study before us, and we're able to advise the House of Commons appropriately.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

First we have Mr. Graham and then Mr. Baylis.

[David Graham, Liberal, Laurentides—Labelle, QC]

I'm not really clear that it's relevant to having the witnesses here at this time. It's quite rude to the witnesses to do that right now.

[The Chair, Liberal, Dan Ruimy]

Go ahead Mr. Baylis.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

I move that we adjourn the debate.

[The Chair, Liberal, Dan Ruimy]

Debate will be adjourned, and we will move forward. Okay?

[Brian Masse, NDP, Windsor West, ON]

Given that, Mr. Chair, I'm going to move my motion. If we're simply going to do that kind of a tactic, I will move my motion, which I have tabled in the committee.

[The Chair, Liberal, Dan Ruimy]

May I jump in? As we talked about earlier, after the witnesses, you can move your motion at that time so we're not wasting the witnesses' time. We agreed to allow that out of camera so that you can move it in public, then we can actually debate it, but it's your call.

[Brian Masse, NDP, Windsor West, ON]

Do we have to vote on the motion? Procedurally, we can't talk about his motion now.

[The Chair, Liberal, Dan Ruimy]

We have to vote on the motion to adjourn the debate.

[Brian Masse, NDP, Windsor West, ON]

That's where I was coming from.

[The Chair, Liberal, Dan Ruimy]

My apologies.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

On a point of order, are we voting on my motion to adjourn the debate?

[The Chair, Liberal, Dan Ruimy]

To adjourn the debate, yes.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Are you all in favour of it?

[An hon. member]

No, not all.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Well, you just said it, so they're all in favour of my motion.

[The Chair, Liberal, Dan Ruimy]

Stop. It's not debatable. It's a vote on the motion to adjourn the debate.

(Motion agreed to: yeas, 5; nays, 4)

[The Chair, Liberal, Dan Ruimy]

On that note, Mr. Masse, can we move forward?

[Brian Masse, NDP, Windsor West, ON]

Yes, we can move forward.

[The Chair, Liberal, Dan Ruimy]

Thank you.

To our witnesses, we are going to start off with Christine Peets. You have up to seven minutes. Thank you.

[Christine Peets, President, Professional Writers Association of Canada]

Good afternoon. Thank you for this opportunity to speak to you as you undertake this very important task.

I am here on behalf of the Professional Writers Association of Canada, known as PWAC. Our organization represents more than 300 non-fiction writers from coast to coast to coast. Copyright is an extremely important issue to us, as it affects our members’ income and the respect that should be accorded us. We earn our living through our writing, and can only do so successfully when royalties are paid because we own the copyright. When we lose the right to claim the work as our own, income and respect are eroded.

Each year, PWAC members receive a repertoire payment as creator affiliates of Access Copyright, an organization that PWAC helped found. In the past 15 years, I have seen my payment diminish from several hundred dollars to less than $100 annually. Payments are based on the amount of work I report for the period being reviewed, which has fluctuated in part due to the fact that there are fewer print publications in Canada. Those that remain often have onerous contracts. Many publishers have instituted contracts giving almost all rights to the company and none, or very few, to the writer. This is common with our members.

To give you a concrete personal example, in 2009 I was presented with a contract to continue writing for a publication that had employed me since 2004. I reluctantly signed the contract but not before questioning it. I was being asked to give up all rights to material I had written. My client wanted certainty that I wouldn’t be able to sue them if or when they reused my writing. Is this fair?

The company claimed that it now needed to secure these rights because of what became known as the Heather Robertson case, a class action suit launched in 1996. Ms. Robertson was the plaintiff against several major media outlets that reprinted her work electronically without permission or payment. Other writers were similarly affected. The case was finally settled, after 13 years. There have been similar lawsuits in the United States, and there very well could be another one in Canada. Should freelancers have to engage in lengthy and expensive lawsuits against media outlets in order to protect their copyright and income?

Contract issues may be beyond the scope of this committee, but I hope this helps to illustrate the importance of protecting our copyright. As B.C. PWAC member Connie Proteau wrote to me, “It is important that our creative professionalism continues to be respected and appreciated by...fellow Canadians who read and learn from our works. We need strong copyright laws to protect works that are available in print format.”

To that I would add that we need strong copyright laws to protect all work, whether in print or electronic format. If writers are not fairly compensated and properly respected for their work, they will produce less work. Why would anyone continue to work without income or respect for the work? This could have a significant impact on the Canadian material available to Canadian readers, who may then look increasingly to other countries for their information. Ultimately, it could affect the quality of work being published, and perhaps the viability of our publishing industry. Canada needs a strong writing and publishing sector that contributes to the economy by providing both personal and corporate incomes that increase tax revenues.

Ontario PWAC member Michael Fay reminded me that our association and other writers' organizations played a critical role in the 2012 review of the Copyright Act, when copying restrictions and procedures were set. It is important to remember not only the user but the creator with this current review.

Another PWAC member from Ontario, Lori Straus, put it this way: “People copy creative work because it speaks to them and because it’s easy to do. It’s much harder to copy a KitKat: the effort wouldn’t be worth it.”

Finally, I would like to share with you another perspective. This was brought forward by B.C. PWAC member Ronda Payne. She draws an interesting comparison, as follows:

No one debates who built a building or tries to usurp its ownership. What makes it acceptable to do so with the written word? It’s not. We put just as much effort into writing as the architect, the contractor or the building owner [puts into their work]. When the building owner allows others to use his space, he is paid in the form of rent or a lease, or the sale of the building. As writers, we should be afforded the same recognition of our ownership and rights. When someone takes our work, without even considering payment to the creator, it’s the equivalent of squatting in a building. I want people to appreciate my work, but I also want to be compensated for it. I deserve to be paid for the work I do.

Thank you very much for your time.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We'll move now to Nancy Marrelli.

You have up to seven minutes.

[Nancy Marrelli, Special Advisor, Copyright, Canadian Council of Archives]

Thank you.

The Canadian Council of Archives, the Conseil canadien des archives, the CCA, is a national non-profit organization representing more than 800 archives across the country. Membership includes provincial and territorial councils across Canada, the Association des archivistes du Québec, and the Association of Canadian Archivists.

I want to talk first about technological protection measures or TPMs. Provisions introduced in 2012 prohibit the circumvention of TPMs, or digital locks, even for non-infringing purposes, such as preservation activities used by archivists to protect our holdings. This draconian measure is of grave concern in the digital environment, where obsolescence is both rapid and disastrous for long-term access. Of course, long-term access is what archives are all about.

Let me give you a fictional example of this problem. An archives holds a copy of a CD on the history of a small company that built birchbark canoes for over 150 years. It was the main industry in the town that grew around the factory. The CD was created by a group that came together briefly in 1985 as the company closed down. The only existing CD was deposited by the last surviving family member of the owners, and it includes photographs, oral history interviews, catalogues, and film footage, which are the kinds of materials commonly found in archives. The group disbanded after fire destroyed its office and all the original material it had collected. The original material has disappeared, and all that is left is the CD.

As the CD approaches obsolescence, the archives wishes to ensure that the contents are preserved for posterity. However, the CD is protected with a digital lock and the archives cannot locate the creators. It cannot circumvent the digital lock to preserve this unique material. As the CD becomes obsolete and the files become unreadable, we will lose this important part of our documentary history.

We recommend that the Copyright Act be amended so that circumvention of TPMs is permitted for any activity that is otherwise allowable under the act. Archives are allowed to reformat materials and reproduce them if they are in an obsolete or about-to-become obsolete format, but we're not allowed to use that exception if we have to circumvent a digital lock in order to do so.

I want to talk a little about crown copyright. Crown works are works that are prepared or published by or under the direction or control of Her Majesty, or any federal, provincial, or territorial government department. Copyright in crown works never expires unless the work is published, in which case the work is protected for 50 years from the date of the first publication.

Canadian archives hold millions of unpublished crown works of historical interest, including correspondence, reports, studies, photographs, and surveys—all kinds of works. We've been promised changes to crown copyright for decades and decades. Crown copyright provisions, as they stand now, do not serve the public interest in the digital age. They're long overdue for a comprehensive overhaul.

We recommend that the act be amended immediately so that the term of protection for crown works is 50 years from the date of creation, whether or not the works are published. We further recommend that there be a comprehensive study to identify problem issues, to consult with stakeholders, and to recommend solutions that serve the public interest in the digital age. We need to change these rules.

I want to talk a bit about reversion, which is not a very well-known provision in the Copyright Act. When transferring historical materials to archives, many donors assign the copyrights that they hold in those materials to the archives. Subsection 14(1) of the Copyright Act, reversion, is a little-known relic inherited from the 1911 British act. It provides that where an author who is the first owner of copyright in a work has assigned that copyright, other than by will, to another party—and the example I'll give is a contract to an archival repository—the ownership of the copyright will revert to the author's estate 25 years after his or her death. The estate will own the copyright for the remaining 25 years of the copyright term.

This provision cannot be overridden by additional contract terms. It's clearly undue interference in the freedom of an author to enter into a contract, and it's an administrative nightmare for archival institutions and for donor estates. It's just one of those things that's there, and people are not even aware of it.

We recommend that subsection 14(1) be repealed, or at the very least that it be amended to permit the author to assign the reversionary interest by contract, which is not currently allowed.

Regarding indigenous knowledge, it's a bit of a landmark day after yesterday's vote on the UNDRIP provisions. Canadian archivists are concerned about copyright protection of indigenous knowledge and cultural expressions: stories, songs, names, dances, and ceremonies in any format. We have all of these kinds of materials in the Canadian archives.

The foundational principles of copyright legislation are that copyright is owned by an author for a term based on the author's life. In the indigenous approach, there is ongoing community ownership of creations. Archivists are committed to working with indigenous communities to provide appropriate protection and access to the indigenous knowledge in our holdings, while at the same time ensuring the traditional protocols, concerns, and wishes of indigenous peoples are addressed.

We urge the federal government to engage in a rigorous, respectful, and transparent collaboration with Canada's indigenous peoples to amend the Copyright Act to recognize a community-based approach. The archives community will very happily participate in this process. We're eager, in fact, to do so. This is an issue that we believe needs to be resolved.

Thank you.