Thank you, Mr. Chairman.
Good afternoon, members. I'm also here for my third time this week. As a former prime minister said, I guess that gives me a three-peat.
I won't repeat what I said at the Senate banking committee and yesterday at the heritage committee, but I will repeat one thing I said yesterday, which was this.
There’s no “value gap” in the copyright system. However, there’s a serious what I call “values gap” in the fake news that is being disseminated these days about IP in general and Canadian copyright revision in particular.
Today I'll talk about a few other issues and flag some that I'll include in my written brief in more detail when I submit it on or before December 10 of this year.
For today, number one, we need to clarify that Copyright Board tariffs are not mandatory for users. The elephant in the room—the second elephant today—is the issue of whether the Copyright Board tariffs are mandatory. They are not. I successfully argued that case in the Supreme Court of Canada three years ago, but most of the copyright establishment in Canada today is in denial or actively resisting that ruling.
A tariff that sets the maximum for a train ticket from Ottawa to Toronto is just fine. We used to have such tariffs before deregulation, but travellers were always free to take the plane, the bus, their own car, a limousine, their bicycle or any other legal and likely unregulated means.
Choice and competition are essential not only for users but for creators. Access Copyright charges educators far too much for far too little, and it pays creators far too little. In fact, they only got an average of $190 for 2017 from Access itself and from their share of the publishers' portion.
There is intense litigation ongoing now between Access Copyright and York University, which is now in the appeal stage, and other litigation in the Federal Court involving school boards. Unfortunately, York failed in the trial court to address the issue of whether final approved tariffs are mandatory.
Hopefully, the Federal Court of Appeal and, if necessary, the Supreme Court will get this right in due course, but we can't be sure. The other side is lobbying you heavily on this issue, including with such devious and disingenuous suggestions as imposing a statutory minimum damages regime of three to 10 times the amount, on the totally inappropriate basis of symmetry with the SOCAN regime, which is the way it is for good reasons that go back for more than 80 years, but would be totally inappropriate for tariffs outside of the performing rights regime. In fact, Mr. Hayes has pointed out problems even with the SOCAN regime.
I urge you to codify and clarify for greater certainty—as lawyers and statutory draftspersons like to say—what the Supreme Court said in 2015, consistent in turn with previous Supreme Court and other jurisprudence going back decades, which is that Copyright Board tariffs are mandatory only for collectives but optional for users, who remain free to choose how they can best legally clear their copyright needs.
My second point today is that we need to keep current fair dealing purposes in section 29 and include the words “such as”. The Supreme Court of Canada already included the concept of education in fair dealing before the 2012 amendments kicked in. The U.S.A. allows for fair use “for purposes such as”—and I'm emphasizing those words—“criticism, comment, news reporting, teaching (including multiple copies for classroom use)”.
I ask you to ignore siren calls urging you to delete the word “education” from section 29 and urge you to add those two little words “such as”, as our friends and neighbours in the U.S.A. have had for 42 years.
My number three point today is that we need to ensure that fair dealing rights cannot be overridden by contract. In 1986 the Supreme Court of Canada, in an important but not well-known case, ruled that consumers cannot lose their statutory rights by contracting out or waiving their rights in the case of, for example, when it comes to everybody's right to pay off their mortgage every five years. We need to clarify and codify a similar principle that fair dealing rights and other important users' rights and exceptions cannot be lost by contracting out or by waivers.
Number four, we need to explicitly make technical protection measures—TPMs—provisions subject to fair dealing. We need to clarify that users' fair dealing rights apply to circumvention of technical protection measures, at least for fair dealing purposes in section 29, and for many if not all other exceptions provided in the legislation as appropriate.
Number five, we need mitigation for the nation. My friend Jeremy started using the word “mitigation” after the USMCA came in, and he made some good points. We need to mitigate the damage done by copyright term extension under both the Harper government, where it was buried deeply in an omnibus budget bill—heard of one of those recently?—and by this government in the USMCA. These concessions could cost Canada hundreds of millions of dollars a year, and even worse now, must be given to the EU and all our other WTO TRIPS treaty partners because of the most-favoured-nation and national treatment principles to which Canada is bound. One small mitigation measure might be the imposition of renewal requirements and fees for those extra years of protection that are not required by the Berne convention.
Number six, we need to look carefully at enforcement issues. I know that you're under immense pressure from some very well-funded, powerful and aggressive lobbyists and lawyers on site blocking. I'm not convinced that we need any new legislation on this issue, but I am looking into it carefully and may perhaps write more about it. In the meantime, you should be looking at the existing though not the proposed provisions in section 115A of the Australian Copyright Act, and U.K. case law.
We may also need to address the issue of mass litigation against thousands of ordinary Canadians who happen to be associated with an IP address that is the subject of a notice under paragraph 41.26(1)(a) and who are alleged to have infringed a movie that could be streamed or downloaded for a few dollars. This litigation is not akin to a parking ticket. There are systematic efforts to extract thousands of dollars by way of so-called settlements from terrified Internet account holders who may have never heard of BitTorrent until they get that dreaded registered letter in the mail. These efforts may succeed in many cases because access to justice is very difficult in these circumstances. If the government would only do its job on the notice and notice regulations, that might be a good start.
Number seven, we need to repeal the blank media levy scheme. We need to get rid of the zombie-like levy scheme in part VIII of the Copyright Act and stop listening to the big three multinational record companies who conjure new kinds of taxes on digital devices, ISPs, Internet users, the cloud and whatever else looks lucrative. Even the U.S.A. doesn't entertain such fantasies.
I'm getting to my last point now.
We need to stop this five-year ritual of review. I don't always agree with Jeremy on everything, certainly not on certain aspects of this study about the Copyright Board, but I do very much agree with him on this. We have had two major and two medium-scale revisions to copyright law in Canada in the last 100 years, two and two only in the last 100 years, and a few more focused ones in between.
There's no need for a periodic copyright policy review. It's lucrative for lobbyists and lawyers, but it's a waste of time, including Parliament's time, and that's important. Reacting reflexively and prematurely to new technology is usually very dangerous. If we had listened to the whining of the film industry in the early 1980s, the VCR, the video cassette recorder, would have become illegal, and Hollywood as we know it might have committed economic suicide. Who can forget, at least some of us of a certain age, the famous words of the late movie industry lobbyist, Jack Valenti, who said that the VCR was to the American entertainment industry as the Boston strangler was to the woman alone.
Particular issues can be addressed as needed, which is the way most other countries cope with copyright.
I thank you for your patience, and I look forward to your questions.