Industry Committee on Oct. 15th, 2018

[Robin Sokoloski]

Yes, but the fact that the tariff is currently not being paid excludes the fact that all of a sudden, those rights holders are not being paid for the use of their work, because the tariff is not currently being paid because the work is being copied under those copying guidelines that have been created by the education sector.

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

But the education sector is purchasing, as you know, a variety of other kinds of materials, including, in all likelihood, copies of that play in question.

[Robin Sokoloski]

Certainly. Yes, they are purchasing it. The Playwrights Guild of Canada has a bookstore called the Canadian Play Outlet and they will purchase one copy of the play digitally and then won't purchase any preceding licences for additional copies of that play.

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

If they purchase a digital copy of the play they're probably purchasing a licence to use the play.

[Robin Sokoloski]

No, they're purchasing one copy of the play. There is definitely an option to buy several copies from us to license it for photocopy. They are not doing that. That is what's happening right now.

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

Okay, thank you.

[The Chair, Liberal, Dan Ruimy]

We're going to move on to Mr. Chong.

You have five minutes.

[Michael Chong, Wellington—Halton Hills, CPC]

Thank you, Mr. Chair.

I want to talk about the whole issue of textbooks, Madam Sokoloski. It is clear that there has been a precipitous drop-off in educational publishing revenues, both from the evidence I've read in witness testimony heard by this committee and from research our analysts have done. It's pretty shocking how much the educational publishing sector has been affected by the 2012 copyright law. You mentioned 600 million pages being copied without remuneration for authors. There has been the court decision with York University that still has to be put into effect. You combine all those things and it paints a clear picture that the 2012 changes that included education under fair dealing have had a profound impact on the industry.

Your recommendations and those of other witnesses are clear: Remove education from the fair-dealing provisions in the law.

I want to dig a little deeper into what's going on. I was shocked to find out that our local school board no longer purchases textbooks for high schools. I was completely floored. I don't know how you go through high school without a textbook. I have three young children in school. In primary school they received handouts, and they end up at home at the bottom of their backpacks combined with the dribbles of drink boxes, running shoes, sweaty gym clothes and all that stuff. Trying to make sense of it all sometimes is frustrating.

I went through school with textbooks and those were the core of how I learned, so I was astounded—apparently it's not restricted to our local school board. It's many school boards across the province that no longer purchase textbooks. Then I come to this committee and find out about including education under fair dealing and about the precipitous decline. I have been thinking about this for a number of weeks.

Are the secondary and post-secondary sectors not purchasing textbooks because of the costs, or is this a new fad they are embarking on? Obviously the loophole or the change to the 2012 law allowed them—and their interpretation thereof allowed them—to not purchase as many textbooks as they did prior to the 2012 change. Setting aside that change in law, what is driving this precipitous decline in the purchasing of textbooks in high schools and universities? Is it to reduce costs for students and the system, or is it because of a fad that we don't need textbooks and we'll just assembly multimedia online materials and that's how we'll educate students?

[Robin Sokoloski]

I don't want to speak on behalf of educators because I'm not one, but I would certainly say that if you go through a course pack, you will find several Canadian authors included who have not been compensated, and haven't received any royalties for their work in those course packs.

[Michael Chong]

I went to U of T and we got course packs for certain courses that were provided by the professor. You'd go to the bookstore at St. George and College Street, or one of the local photocopy shops and you would get this course pack. At that time, were the authors of those articles remunerated for those course packs?

[Robin Sokoloski]

Yes.

[Michael Chong]

Are they today?

[Robin Sokoloski]

In our opinion and based on the research that has been done, no.

[Michael Chong]

What do you think is driving this precipitous decline in revenues?

Is it cost savings or is it a new fad in education, where people are moving away from textbooks and using online materials and other multimedia materials to educate?

[Robin Sokoloski]

It boggles my mind as well. At this level of education, I think that we should be encouraging the growth of knowledge, otherwise it's going to be on a steady decline, in terms of the quality of the work that is being provided to our students.

I don't have an answer for you because I'm not coming from that perspective.

I would say that there is also certainly something that is happening that I am concerned about, as a representative for artists. There is an entitlement for free content and that everyone should have access to it. Access doesn't necessarily mean free. I think we just need to all work together better, to find ways to ensure that access is available, so that those rights can be obtained.

I would like to think that it's not a matter of cost. I think the model of iTunes proves the fact that if you make something available that's quick, so that you can just click a button, people are willing to pay for it. The optimistic side of myself hopes for that.

[The Chair, Liberal, Dan Ruimy]

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

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Thank you very much.

Mr. Longfield began to ask a question that I was going to ask about first nation dances, as we pursue how we deal with first nations' copyright. We haven't done a good job of it in the past. We're trying to wrap our heads around it. We know that there were some examples of various groups that are more susceptible to issues and one of them would be the first nations.

If you think about, back in the black and white TV days, there were a lot of first nations dances being used in various westerns. There would have been absolutely no compensation or permission asked for it, as well.

I appreciate your comments as we delve into that. We do have some really good dance people, as well. Richard Kim in Sault Ste. Marie is world renowned and Tanya Kim is his sister. There are a lot of other artists.

We talked about different forms of technology that have been thrust upon us in different situations. We were discussing the photocopier before it could be utilized in a way to photocopy entire volumes of works. That used to be a new technology for a grey-haired guy like me. It was never possible before. We saw a lot of that happening in the past. I think there are more policies, items and laws associated with that nowadays.

There are new technologies, like Spotify, Google, a number of other Apple products and whatnot. Could you describe how they have affected your organizations? Is it better now or is it worse compensation for your particular group?

Does anyone want to start?

[Patrick Lowe]

I am in Quebec. Are you talking about iTunes and Netflix especially?

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Any one of those new platforms that are on the Internet, yes.

[Elisabeth Schlittler]

I can help Mr. Lowe a little.

For a management society, the technology in itself is not the problem. The real question is the need for legislation that allows us to negotiate with the owners of the technology. In Europe, to go back to that example, we have agreements with Netflix and with other platforms, including iTunes. The technology is not the problem. We need a legal lever that allows us to negotiate with all the owners or inventors of new technologies. With a level of that kind, the sky is the limit for us.

We were talking earlier about the new platforms that are using or distributing works. For a collective society, it is always possible to go looking for royalties. For us, that is not a problem. I may sound a little smug in saying so, but we really believe it. Everything is possible if we are given the possibility of doing what we have to do.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Would anyone else like to comment on that?

David, I have a specific question for you. You mentioned there was a charter challenge that was in place based upon senior artists, as you called them. Where is that charter challenge? Is it just being thought of? Is it in the process? What are you basing your argument on?

[David Yazbeck]

There's no actual legal challenge on the go. It's just a thought or a consideration or an analysis. The essence is that the legislation clearly draws a distinction between artists whose works predate 1988 and artists whose works don't. That on its face may not be considered discriminatory, but the fact of the matter is that it is highly likely and it's logical that works created before 1988 are more likely going to be works of older visual artists.

As a result, this is an arbitrary line. Lawyers don't like to be absolute like this, but it's probably one of the most arbitrary lines you can draw. There's a date that's fixed in 1988 and if you created something before that, you're out of luck. Most of those people are likely to be older. Or it will be their estates that are losing out on that benefit as well.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Thank you very much.

Mr. Albas, you have five minutes.

[Dan Albas]

Thank you, Mr. Chair.

I'll actually pick up with Mr. Yazbeck on exactly that, this artist resale right. It's not a new idea. Earlier in your presentation you did talk about the exemption being arbitrary. You just mentioned that picking a date in the 1980s was simply drawing a line in the sand, and that there are some intergenerational issues.

My thinking is that you're asking to put through an artist resale. First of all, it's almost impossible to authenticate a piece of art made 100 years ago. I guess we would apply the 70 years past the life of someone to say that they would receive some remuneration on it. You'd still have issues with authentication, with determining who actually created a piece of art, and with who the money should go to if they don't have an estate or any living children. Wouldn't we have the same intergenerational issues that you have right now with this other issue? It seems to me that this is the only way the government could say, with respect to a resale, that from this point on we will then make sure that 5%—or whatever the number ends up being—will go to the artist, their estate or their family.

How are we going to avoid the same issue?

[David Yazbeck]

There are a bunch of pieces in there. First of all, the question of authentication is a practical issue, and it could be a difficult issue, but to me it's a different issue. It's not an issue of principle that we're talking about here.

Second, in my opinion, the absence of the artist resale right also tends to have a negative impact on older artists. I will give you an example. In a lot of cases, as artists' careers develop, they become more well-known and their art becomes more valuable. Yet even though their art is more well-known and more valuable, they do not benefit from that because it was sold 30 years ago for $20 and now it's selling for $50,000. There are many examples in our brief.

I don't see that as resulting in discrimination because the resale right does not take into account how old you are, and at what point you created the artwork. According to our proposal, when it gets resold at some point down the road, we will gain something from that.