Good afternoon.
My name is Éric Lefebvre. I am the secretary-treasurer of the Guilde des musiciens et des musiciennes du Québec. I am pleased to appear before you this afternoon. On behalf of the members of our association, thank you for this opportunity to provide you with our comments on the review of the Copyright Act. I am also pleased to take part in this meeting with Alan Willaert, the vice-president from Canada of the American Federation of Musicians, with which we have been affiliated for over a century.
We understand that the Standing Committee on Industry, Science and Technology must review the Copyright Act. It is important to note that the designation of the performers' performances as a copyright category is relatively new. Actually, since September 1, 1997, the Copyright Act provides for certain rights that performers can exercise over their performances. Those rights were improved in November 2012, when new exclusive sound recording rights were introduced.
To that end, we know that the Copyright Act provides for two categories of rights for performers. First, there are the so-called exclusive rights, which mainly deal with the fixation, reproduction, distribution and the making available of the artist's performance in certain situations. Second, there are two rights to remuneration, one for the public communication of marketed sound recordings, also known as equitable remuneration, managed by the music licensing company Re:Sound, and the other for private copying, managed by the Canadian Private Copying Collective. Of all those rights, the equitable remuneration is still now the most significant, having given rise to several Re:Sound tariffs certified by the Copyright Board of Canada.
It should be noted that, in addition to the royalties paid by collective societies, the Guilde negotiates remuneration for the use of musicians' recorded performances under its collective agreements.
The royalties for performers under collective agreements have been negotiated for several decades. The 1997 and 2012 amendments to the Copyright Act changed part of the legal framework, but our concerns have not subsided, as Alan Willaert eloquently illustrated a few minutes ago.
The concerns are simple: musicians are getting poorer every year. We see that the new rights granted to performers do not improve their remuneration. Either the structural changes of the music industry initiated by Google, Amazon, Facebook, Netflix and Apple are ensuring that the middle class of musicians has now become a class of poor artists, leaving a few ultra-rich artists and producers with 95% of the revenues generated by the industry, or the new rights that benefit performers still have no impact because of legislative provisions or regulations being passed that have the opposite effect.
Let us explain. What is the use of the right to remuneration for private copying of sound recordings if the plan applies only to blank CDs, which no one uses for reproduction any more? The Supreme Court has already indicated that the legislation is technologically neutral. Why is there a double standard when it comes to regulatory amendments to benefit artists and creators? It is important to ensure that all reproduction media, such as SIM cards, USB sticks or hard drives, are covered.
Similarly, in 2012, new exclusive making available and distribution rights for performers were introduced to enable the enforcement of the rights on the Internet and on existing media, such as CDs. One wonders what those rights are for, if the money from streaming remains at subsistence level and the responsibility of Internet service providers is still not recognized because of their status as intermediaries.
Finally, what is the point of the new exclusive distribution rights if, as I indicated earlier, the main source of music listening is now streaming? As confirmed by the survey on online consumption of copyrighted content, commissioned by the Canadian government in 2017, in the three months leading up to the November 2017 survey, 11.2 million Internet users streamed music online. Clearly, this reality has an impact on the sale of sound recordings, both in the form of CDs and online downloads, which are still the only ways to obtain remuneration in compliance with the regulations.
It is important to obtain compensation from Internet service providers, which are taking unfair advantage of the situation. Mechanisms must also be put in place to rebalance the forces at play, while no longer using legislation to weaken the rights of rights holders through case law that puts the rights of users and creators on equal footing, as in the case of literary works, or that allows an industry to continue to decline, as in the case of music.
To achieve that objective, we recommend that the government accept the following proposals: amend the Copyright Act so that the private copying levy applies to all media used to reproduce a recording; amend the Copyright Act so that the private copying levy applies to all reproduction devices and sound recordings; and finally, make Internet service providers liable, from a more technical point of view, by eliminating the exemption they enjoy under section 31.1 of the Copyright Act.
We also support our federation's recommendations on amending the definition of sound recording, which must allow for royalty payments when a sound recording is incorporated into an audiovisual production, or on an exemption that currently benefits broadcasters in the case of neighbouring rights.
We often hear people say that copyright is extremely complex. In fact, it has become complex because of the amendments made to the legislation over the past several years, diluting the effectiveness of those rights. Among other things, too many exceptions are now in effect.