Evidence of meeting #140 for Industry, Science and Technology in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rights.
A video is available from Parliament.
4:45 p.m.
Liberal
The Chair Liberal Dan Ruimy
Thank you.
We're over time a bit, but we still have time for more questions.
Ms. Quach, you have seven minutes.
4:45 p.m.
NDP
Anne Minh-Thu Quach NDP Salaberry—Suroît, QC
Thank you, Mr. Chair.
Thank you all for being here.
Some of you have mentioned the economic repercussions of extending copyright from 50 to 70 years after the death of a creator.
Do you think that Bill C-86 will make a change in terms of access to fair use?
If so, what will change? Will these changes improve fair use?
4:45 p.m.
Emeritus Professor of Economics, Department of Economics, Université de Montréal, As an Individual
I believe that fair use should be defined legally and thoroughly to avoid useless legal battles. The economic problem, fundamentally, is that fair use is a type of expropriation of the creators' intellectual property.
We have to find a way to compensate fair use. Some might think that the user is not the one who should be paying royalties for the work used, or that someone else should pay.
When we have or add exceptions, even when we add “such as”, as someone else has suggested, or we tack on other exceptions to copyright, we expropriate creators' intellectual property without giving them any compensation.
In economic terms, the problem is that we have to decide who else should pay the authors, the composers and the artists, the rights holders and the creators for fair use.
The principle of fair use is not problematic in economic terms. It becomes a question of compensation. Someone has to pay, but who?
4:50 p.m.
NDP
4:50 p.m.
Emeritus Professor of Economics, Department of Economics, Université de Montréal, As an Individual
Absolutely, and they've worked on fair use in terms of reproduction for private use.
I can make a copy for my private use for research purposes and someone will pay for that, such as equipment suppliers. The equipment supplier who helps me to make copies for research purposes will pay royalties to compensate authors, composers and artists.
In France, for example, reproduction for private use generates $300 million CAD per year in compensation for authors, composers and artists, whereas here in Canada, it is $3 million.
In my slides, which I did not have time to show you, I explain that federal regulations passed in 2012 state that microSD cards are not “audio recording mediums”, which is costing authors, composers and artists $40 million per year. No one is paying for that.
4:50 p.m.
NDP
Anne Minh-Thu Quach NDP Salaberry—Suroît, QC
Thank you, Mr. Boyer.
I will let the other panellists respond as well.
4:50 p.m.
Prof. Jeremy de Beer
Thank you very much, Ms. Quach.
I understand Professor Boyer's position but I take a different view. I don't think that exceptions and limitations like fair use are expropriations of proprietary rights. The default situation is not that a copyright owner has the right to control every use of its work and every time you limit that it's an expropriation. The default is the opposite.
The default position is freedom of expression and the liberty to do whatever you want. We provide copyright protection as an incentive to encourage investments in creativity. To quote a phrase that the Supreme Court of Canada has used from my former graduate supervisor, Professor David Vaver, “user rights are not just loopholes”. I think that's important. It's a different view of the issue.
4:50 p.m.
Partner, Hayes eLaw LLP, As an Individual
I use this often for students. When you think about copyright it's an island and the island has a bunch of little bays, little cut-outs and little eddies and things in it but the island is still the nature of the rights. The island isn't a bigger island that you're cutting parts out of.
The copyright is the entirety of what is granted, including the things that have been carved out of it, these little bays and eddies. It's not an expropriation to look at an exemption. It is a part of the grand bargain between society and creators and users.
4:50 p.m.
Counsel, Macera & Jarzyna, LLP, As an Individual
Yes, I enthusiastically disagree with Professor Boyer here. Fair dealing is user rights. The Supreme Court of Canada said that very eloquently and very famously in the 2004 CCH case. They are users rights as much as the right to be paid is a creator right. They are equal and they balance each other.
Professor Boyer is wrong about the $40-million cost of the SD card exception. I was very much, maybe mainly, responsible for the regulation that made that happen. Give me one good reason, Professor Boyer, why the SD card in my phone so I can take pictures of my cat or my grandson should have a tax on it? Why does that need to go to Access Copyright or some other collective? It doesn't make any sense.
Also you mentioned an issue in term extension. I'll give you a very good example right now of why it's important to make the public domain as big as possible. We have a president in the United States who has everybody worried about a lot of things right now—I don't even like to say his name. All of a sudden a certain book by George Orwell, 1984, has become very popular again for obvious reasons. That book has long since been in the public domain in Canada but Americans have to pay $30 or whatever for it and fewer of them will get access to it.
It's very important to get access to the public domain as soon as possible. Even if it's not a popular book like 1984, to have it overprotected by copyright means it's going to be harder for university students, teachers and researchers to get hold of it. There is going to be more uncertainty. There will be a cloud over it. It's going to enter the dreaded category of what we call “orphan works” where somebody owns a copyright but nobody knows who or where to find them. We need to get into the public domain as soon as possible. That's why I'm suggesting the imposition of formalities for that final term of 20 years.
4:55 p.m.
Liberal
4:55 p.m.
David de Burgh Graham Laurentides—Labelle, Lib.
Thank you.
A comment we've heard a bit is that the five-year revision is too often. I'd like to point out that it has the advantage of giving every MP who ever comes to the House the opportunity to talk about it.
4:55 p.m.
Voices
Oh, oh!
4:55 p.m.
Laurentides—Labelle, Lib.
I also want to follow up on a point that Mr. Albas raised. He commented that the testimony here is under Crown copyright. I think that's not actually the case. We're not subject to the Crown. We're subject to the Speaker.
I'll put that thought into the analyst's head. Perhaps we could revise what copyright we release our report under.
4:55 p.m.
Laurentides—Labelle, Lib.
Just for fun.... At the start of the report it always states that the Speaker grants permission under his copyright.
4:55 p.m.
Laurentides—Labelle, Lib.
Through the chair, yes.
Mr. de Beer, you mentioned that 150 years is an awfully long period of copyright. I tend to agree with that assessment, although it does assume that people are producing stuff from birth to get to 150 years, so maybe it's only 135.
4:55 p.m.
Prof. Jeremy de Beer
That's a good point.
4:55 p.m.
Laurentides—Labelle, Lib.
What is a reasonable period for copyright? What value does society get out of copyright surviving life in the first place?
4:55 p.m.
Prof. Jeremy de Beer
That's a great theoretical question, but as I mentioned in my remarks, I'm a pragmatist. There's an international agreement called the Berne convention, which sets the minimum term that any member of Berne, which includes Canada, can have. That is the life of the author plus 50 years. That's the international standard. That's what Canada should stick to, in my view.
Mr. Knopf's idea is a great one. If we're going to extend that, there's no reason why we can't make the extension of copyright term subject to formalities. We can't do that for the first life plus 50 under the Berne convention, but it's a brilliant idea to make that happen for the second. It would create all kinds of positive ripple effects—namely, moving towards a registry of copyright as exists for every other kind of property right in the world. We can deal with the problem of unlocatable owners or orphan works and begin to treat copyright like a commodity, like the property right that it is. We can only do that if it's registered. Putting that in as a condition of the extra 20 years of protection is a brilliant idea.
I don't think this committee needs to do that, incidentally, or recommend that. That's part of the NAFTA or the USMCA implementation, but you can certainly consider it.
4:55 p.m.
Laurentides—Labelle, Lib.
That's fair. You're suggesting that copyright should be a proactive rather than a reactive thing—not an automatic thing.
We had one person here some weeks ago talking about the fact that there are labels under ACANs with copyright for life plus 70 years. Should copyright require registration to even apply in the first place, or can we do that?
4:55 p.m.
Prof. Jeremy de Beer
We are not allowed to do that under the Berne convention. We can impose formalities for the life of the author and the first 50 years, but if we're going to extend to life plus 70, we certainly can and we certainly should.
4:55 p.m.
Laurentides—Labelle, Lib.
Thank you.
Mr. Boyer, I have a question.
If I understood correctly, you basically believe, for example, that all products under copyright are not equal and that the length of copyright should not be the same. Did I understand correctly? Each product is different.
4:55 p.m.
Emeritus Professor of Economics, Department of Economics, Université de Montréal, As an Individual
Of course, every product is different, but the underlying principles used to calculate royalties should be the same.
All products are different in economic terms, including the various forms of artistic expression which comprise the goods or assets under copyright. That said, the underlying principles of competitive value and fair remuneration which, for an economist, mean competitive remuneration in competitive markets for the asset or product sold, should also apply to goods and services under copyright protection.
The practical application will vary, whether it is a composer, an artist, a producer, an author of printed textbooks or of a novel, and so on, but the underlying principles are the same.
I don't know if that answers your question.
5 p.m.
Laurentides—Labelle, Lib.
Yes, more or less. Thank you, Mr. Boyer.
I have questions for everyone and I don't have enough time to ask them all. I will just carry on.
Mr. Knopf, you mentioned in your comments something about looking at the Copyright Act in Australia as it exists, not at the proposal. What is it in the Australian proposal that you don't want us to see?