Industry Committee on Nov. 26th, 2018

[Kevin Chan]

Yes. I would bring you back, sir, to what I mentioned earlier in the opening statement about how we have individuals who review all the reports, and that's precisely to try to get the balance right.

I think, though, this concept runs into challenges when we're talking about something that's at scale. When you have a service that is global in nature and you have millions of pieces of content, if not more, being uploaded on a daily basis, then you do want to make sure you're doing things to better protect rights holders. This is a way for us to kind of get at the simplest or easiest things to engage with.

I agree with you that context is important, and that's why we have individuals who review every report that's sent to us.

[David de Burgh Graham]

I'm out of time. Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

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

[Dan Albas]

Thank you. I'm actually going to take up the line of questioning of MP Graham. I'm going to start with Mr. Kee.

Mr. Kee, there is a group of people who do reaction videos. They film their reaction to a new music video that comes out, or a new movie or whatnot. There are quite a few people who like to hear and see these reaction videos, but obviously the Content ID system that YouTube employs often will flag that content and take it down. Obviously, these things are allowed under the Copyright Modernization Act that happened here in Canada in 2012, under which reaction videos were allowed.

In regard to how YouTube—and Google itself, I guess—flags and takes these down, doesn't that raise questions about whether the system you're utilizing is complying with the law or in fact just taking down content that people are spontaneously generating themselves?

[Jason Kee]

Well, number one, I would be reticent to say any individual example is a clear case of fair dealing, because that would be a case-by-case instance. For example, it's theoretically possible that a react video may use a sizeable portion of the original content. As a consequence, it may not actually be an example of fair dealing.

However, you raise a fair point with respect to how we balance those individual rights. This is again why the appeals process is critically important. What happens is this: If it is appealed and if the rights holder decides they are not going to release this claim, then the individual user who got flagged incorrectly can then reject that, in which case the video is permitted and the rights holder would have to file a formal takedown notice to remove that video. At that point it goes to a counter-notice provision, because we therefore have a dispute between two rights holders that we actually have to let them sort out between themselves.

[Dan Albas]

It's interesting that you talk about this appeal process, because my office has been reaching out to content creators to hear their concerns, and some of the feedback we've had is contrary.

We heard from a creator who paid for a licensed audio clip to use in a video. They used the clip legally with a licence and got a copyright strike. Another creator, a music label, had used the same sound clip in another work, and the system detected the same sound and took down the video for infringement. They appealed but were told their only recourse was to sue the label. They paid for the proper royalties, did things right and were still unable to upload their video unless they sued a major corporation.

If we're going to believe that your automatic system functions well, you have to address these kinds of instances. Why is there no actual person you can appeal to in these kinds of cases, or is this just a case of people not understanding your system?

[Jason Kee]

Again, it is difficult to comment on a specific example. I am a bit surprised by the outcome, simply because to get to that, you have to go through a formal counter-notice whereby you are provided the opportunity to formally submit a response saying that the takedown request is incorrect, at which point the default goes to the claimant and it would be restored without the necessity of engaging in a lawsuit.

Again, it's hard to comment on that theoretically or hypothetically.

[Dan Albas]

I would point out that when people are operating in the space and know their business quite well and are paying out all the costs and whatnot, including making sure their tariff is covered, the expectation is that they would be able to meaningfully deal with this.

To simply dismiss as a hypothetical that these things are happening.... I recognize the issue, but perhaps I could talk to the individuals in question and maybe encourage them to raise it to you, because a lot of content creators are not making it through your systems, and that needs to be addressed.

[Jason Kee]

I think it's a fair system.

To the point that Kevin raised, we're dealing with these issues at scale—again, 400 hours of content are uploaded to YouTube every minute—and as a result it's a massive system that needs to be dealt with on an automated basis at the front end.

That said, once you've gone through an appeals process, there are opportunities to interact with individuals, especially through the appeals, so please, as I said, I invite you to put them in touch, because I'd like to understand the specifics that happened here.

[Dan Albas]

Okay, that's fair. Thank you.

How much time do I have, Mr. Chair?

[The Chair, Liberal, Dan Ruimy]

You have five seconds.

[Dan Albas]

Okay, then I have a quick one for Mr. Kee.

We've heard from many witnesses that they make very little from views of ad-supported content on YouTube. There are stories of needing millions of views just to get $150.

I don't expect you'll tell us your ad rates, but are you receiving much more per view from advertisers and only paying pennies, or are the per-view ad rates equivalently small?

[Jason Kee]

We're on a purely revenue-sharing basis. Essentially there's a proportional share that happens between the creator and the platform, so we're receiving only a proportion of what they are receiving.

It isn't on a per-view basis, because not every video will have an ad shown against it, and depending on the specifics of where their ad is being seen—it also works through an auction system—there is a high degree of variability in the actual rate they'll see.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

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

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

Thank you to all of you for the presentations.

On May 8, 2018, the Fédération nationale des communications, FNC, which represents workers in Canadian communication and cultural industries, stated that Facebook and Google absorb a large majority of advertising revenues that previously went to newspapers and other news outlets, which has deprived the news industry of helping to sustain itself.

Along similar lines, News Media Canada referred to news aggregators, or your company operators, as free riders.

As part of their submission, FNC suggested creating a new category of copyright work, a journalistic work, which would provide journalists a collective administered right for remuneration for the dissemination of their works on the Internet.

If such a right existed, would it oblige Google, Facebook and other online service providers to pay royalties for news articles? How might this affect your operation?

Article 11 of the European Union's proposed directive on copyright in the digital single market would affirm the copyright of publishers for digital use of press publications. Would this include the publication or distribution of publications on Facebook and Google News? How would we ensure compliance with this new law? It was proposed.

I don't know if you're familiar with it, but it certainly would elevate and perhaps help the news agencies that are being shared on your platforms.

[Kevin Chan]

I'm happy to take that, sir. Thank you.

I actually did, in fact, spend a day with the FNC, with their president and a few other people, at a recent conference in Montreal with respect to misinformation and digital literacy, and that proposal was in fact shared with me.

The conversation we had about it for us boils down to there being a misunderstanding of the way that published content—in this case, let's say news articles—is shared on Facebook.

As you probably know, Facebook itself is not putting news articles onto Facebook. It gets on Facebook in one of two ways. One is that the publisher itself—let's say it's La Presse or Radio-Canada or The Globe and Mail or the CBC—chooses to put published content on Facebook, or an individual, a user, decides to share something onto the platform. What I shared with colleagues in Montreal was that I'm at a bit of a loss as to how such a mechanism would work if, at the end of the day, platforms are not the ones that are actually putting individual pieces of content on the platform, and that it's actually individuals or publishers. You can imagine very quickly that if the system is based on how much somebody happens to put on a particular service, then it just seems as though we would not be—

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

I get that—sorry to interrupt—but in earlier testimony, you mentioned that other people also put things on your platform, which you sometimes flag and take down. I'm just saying that as an example.

[Kevin Chan]

Okay, I see, sir.

That's right. I think for the content we're talking about, rights holder content, if it shouldn't be on Facebook—we've talked a lot about music this afternoon—it would be taken down.

Obviously if a publisher had, let's say, a firewall around their content on the website, and then somehow somebody nonetheless was able to share their content on Facebook, we would obviously want to make sure we were in compliance and we would take down that content. In this case, when people are able to share news articles on Facebook, what I'm saying is that they have allowed for that sharing. They've allowed for people to take a hyperlink or a URL and put that somewhere else—for example, on Facebook. That actually, incidentally, sir, drives a lot of traffic to their sites.

I do want to say one other thing, if I may. We do take our responsibility seriously with respect to the news ecosystem. We know that many Canadians do, in fact, get at least some of their news from Facebook, so we are investing in partnerships. For example, we have a partnership with Ryerson University, with their School of Journalism, as well as with the Digital Media Zone, in which we're working with entrepreneurs to see what kind of innovative business models may emerge for the news ecosystem. That's the kind of work we're engaged with. We just finished with the graduating class of 2018. There are five start-ups that I think are going to make a really good run of it as businesses.

Those are the things we're looking at. I think the challenge with the proposal that I've heard is that it kind of relies on publishers and users to decide how much a particular piece of content is shared. Any kind of business model that's based on that would be at odds, I think, with how sharing actually works.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to move back to Mr. Albas for seven minutes.

[Dan Albas]

Thank you again, Mr. Chairman.

Thank you to all the witnesses.

Mr. Kee, I'm going to keep going back, because it seems a lot of the feedback I've had from people is mainly about YouTube.

Obviously, we're reviewing the Copyright Act. Many people will video themselves playing a video game and then stream that, and there seems to be a bit of a grey zone. Do you believe it would be helpful for Parliament to put an exemption in for that kind of activity? There currently exists one for mash-ups and for content creators to put their mash-ups out. Do you think that is something that would give a little bit more certainty to that practice?

[Jason Kee]

To be honest, I wouldn't necessarily want to comment on it. There would be certain classes of creators that would benefit from that, primarily game creators. On the other hand, you would have video game companies that may feel very differently about it. My understanding is that—and bear in mind, as Mr. Nantel will know, that I actually used to work for the video game industry—they have, generally speaking, a fairly permissive attitude towards this particular type of activity, largely because when a video game creator is making a video of them playing the game, it's not competing with the actual game itself, and they actually view it as marketing.

[Dan Albas]

I'm not asking about video game developers, though. As a platform, what is your perspective? People are taking their content—the video game they play, their reactions to it, their friends playing on it—and then loading it up onto your YouTube system. Do you think platform certainty would be helpful with regard to the practice?

[Jason Kee]

Basically, Google doesn't have a view on it, simply because it's a question of whether or not there's an exception that allows gaming creators to benefit from utilizing that class of work themselves versus whether or not you're removing the ability of the games industry itself to benefit from this activity.

[Dan Albas]

Mr. Chan, do you have any suggestions on this?

[Kevin Chan]

No, sir, we don't really have a comment on it.