Industry Committee on Oct. 15th, 2018

[Dan Albas]

I have a family member who has passed away, and I still have his artwork at my office. Your argument sounds very attractive, but then again, how does government institute something that is fair to everyone? Being practical is not a side issue.

If you cannot practically say that this person created this piece of art at this time, and then be able to trace that back so the person is compensated, we are going to have the same issues we see with this other issue. You're claiming there's an intergenerational unfairness when someone exhibits work that was created before the 1988 line versus after.

[David Yazbeck]

I don't see that as being a discriminatory problem. You're correct to point out that it would seem to me that the older a piece of art is, the greater the difficulty with authenticating it. I understand that, but when I was talking about the exhibition right, that's a very bright line, that date in 1988. Here we're talking about a whole host of other factors that might affect the authenticity of a piece of a work of art. It's not according to a bright line in a statute that Parliament has passed. It's according to those other factors. That's why I don't see that as being a charter-offensive problem. It could still be a problem, but it's not charter-offensive.

You referred to the government getting involved in assessing this and determining authenticity. The proposal that we've made is for the government to not be involved. It would be a copyright collective that would administer this system.

[Dan Albas]

I would suggest that CRA has had issues where people donated wonderful pieces of art, had them priced and whatnot, and then there were all sorts of issues with authenticating whether or not that was the correct price. Ultimately, you're asking government to actually enforce a policy that will benefit the artist, so I do think it's important to know the mechanics of how this will work.

With regard to the issue of resale, how are people supposed to track this? For example, if I were an artist and I sold a piece to Mr. Lametti—with his great sense of artistic talent—and then in 20 years he passes away and one of his descendants has that piece of art, which they then sell privately, how then am I supposed to benefit from that? Again, it doesn't go through a brokerage house.

We're placing the onus on the individuals who receive it. Sometimes they don't know what to do with it—just like some people who have a grandfather or grandmother who passes away with a whole gun collection. They don't know where it came from and now they have all these laws and requirements they're supposed to follow.

Can you explain to me how government is supposed to keep your proposal consistent with its intent, but carry it out in a practical way?

[David Yazbeck]

To be clear, the proposal that we've made is that government is not involved in the actual operation of the artist resale right. Secondly, the proposal that we made does not apply to private transactions like you just mentioned. It only applies to public transactions through an auction house or a commercial gallery.

The third point is that on Wednesday representatives of CARFAC and RAAV—which together represent visual artists across this country; CARFAC being outside of Quebec and RAAV being within Quebec—are making a presentation. I would encourage you to ask the same questions of them, particularly April Britski who is the executive director of CARFAC. She will be in a better position to respond to them than I am, being relatively new to this.

[Dan Albas]

I do realize that, but you come to a parliamentary committee with a suggestion, so I would hope that you would be able to speak to some of these things.

It will be the government that will have to enforce this resale right between different brokerages and different auction houses. I will tell you, there are a lot of issues relating to FINTRAC and to all these other things—onerous rules that are thrown onto people with the best of intentions that are not always done. Many of these federal rules are probably being circumvented right now, in large part because of the difficulty of keeping up with them.

I respect the fact that you can't speak to some of these practical concerns. I will ask some of those questions, but it's really incumbent upon a proponent to come forward and answer these practical questions if they want to see their proposal taken seriously.

[David Yazbeck]

I appreciate that. I'll go back to the first point I made in response, which was that, in my opinion, the inherent validity and importance of the artist resale rights is a distinct issue from the practical problems of implementing it. We're here to advocate for artists and the resale right.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to move to Mr. Lametti. You have five minutes.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you.

Mr. Yazbeck, help us define the parameters of potential resale rights. Is it only works of visual art? You're not extending it to books, for example, or things like that.

[David Yazbeck]

No.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Will it apply to traditional format or also digital?

[David Yazbeck]

I know we had a brief discussion about that not long ago. That's a question that one of your colleagues here mentioned. I apologize, but I'm not in a position to respond to that in any detail. I would think that it would be applicable. Practically speaking, I would defer to my colleague, Ms. Britski, who will be here on Wednesday.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Okay, we'll remember that. Do try to give it some thought, though.

[David Yazbeck]

Yes, I will.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Is there also potential again to respond to some of Mr. Albas's concerns? According to the Berne Convention, you don't currently need any formal requirement for copyright. For the traditional right, which is exhausted on first sale, we could probably live with that—no registration requirement. That being said, we do have an easy place to register—in CIPO, the Canadian Intellectual Property Office. Might it be part of the solution to register an artistic work in order to benefit from the right of resale?

[David Yazbeck]

It may be. That's something that I would certainly want to give some thought to.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

I'll go back to Ms. Sokoloski.

You're well aware that the Supreme Court of Canada had pronounced on fair dealing with a 9-0 decision in 2004. This made it immediately clear to the whole educational sector that it was quite likely that the collective societies—Access Copyright and Copibec—were actually charging for a portion of work that they didn't have a right to charge for because it fell within the right of fair dealing. That was settled in 2012 before the act came into place, in which using research and private study under fair dealing.... The Supreme Court of Canada held virtually all of the copying—and Access Copyright also agreed in much of the settled part of the claim moving up to the Supreme Court of Canada—that was happening in the K-to-12 sector was, in fact, fair dealing.

Even if we were to eliminate the word “education” from the fair dealing act, what should we do with the Supreme Court decision?

[Robin Sokoloski]

I think the two recommendations that I brought forward go hand in hand. If we did exclude education from fair dealing, then I think we would need to go back to how it was with the collective. We would need to create a better mechanism, which we had before 2012 with Access Copyright and other collectives, to have Access Copyright work with the arts community to define what that needs to look like.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

And to work with the educational sector, which is something that Access Copyright and Copibec never wanted to do before.

[Robin Sokoloski]

Everything I recommended is basically urging everyone to come back to the table.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

What do you think we should do with the very legitimate purpose of fair dealing, which is to make certain small amounts of copying available for the educational sector? There's a fair argument to say that we're just working that out. Over the course of a number of Supreme Court of Canada judgments plus the 2012 changes to the Copyright Act, we finally have come to terms with what fair dealing means. This is in fact part of the spirit of the Anglo-American copyright system that we have in place in Canada. The most creative countries in the world, like the United States, Israel, South Korea and Singapore, all have regimes that are wider than fair dealing. They have fair use.

[Robin Sokoloski]

Yes.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

I'd take fair use in a minute, if truth be told. There's a good argument to say that now we finally have a position such that the educational sector and artists can actually work this out in good faith moving forward, perhaps even forcing some of the collectives to come along with them, and along those same terms, and let's just see how it works out. It's too early to tell. There was overcharging before. There's been a reaction now. Let's see how it goes moving forward.

[Robin Sokoloski]

Because Access Copyright represents our members, we work very closely with them. There is another side to the work they're doing, on the innovation side with blockchain technology, to ensure that there is authentication with the work so that the resale right could potentially move forward, and there are ways to ensure that that kind of information is put in place. As I said, all of these recommendations I put forward are for all of us to come together around the table and to have these conversations so that we can work together around innovation to decide how best we can move forward. Right now there's so much divisiveness that it's impossible. That's what's creating the real problem, I think.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Okay. Thank you.

[The Chair, Liberal, Dan Ruimy]

For the final two minutes, Mr. Masse, go ahead, please.