Thank you, Mr. Chair.
I wish this were a debate about Access Copyright, so I could spend my seven minutes replying to what you've just heard.
Thank you very much for the opportunity of having me appear today.
I’m a senior partner in the law firm of McCarthy Tétrault. I also teach intellectual property law at Osgoode Hall Law School. I know about copyright in theory and in practice, and I want to share some of my thoughts with you today.
A key reason copyright exists is to create a framework encouraging creators to develop and make works available and to ensure they are paid appropriately for their creative efforts. You have heard many arguments in favour of broad exemptions and free uses of works. In these remarks, I want to provide some guidance to help you analyze many of the conflicting submissions you've heard, especially by those who oppose reasonable framework laws required to support a vibrant creative community and functioning markets for creative products.
I intend to focus on decoding for you certain norm-based appeals and misleading arguments made to oppose reasonable framework laws.
You have heard appeals for exceptions to copyright relying on the norm of fairness; however, a fair dealing is a free dealing, and a free dealing should be understood for what it is. Free is not necessarily fair, nor is it fair market value. Courts in Canada have developed a unique, expansive framework for determining what is a fair dealing. But whether something is fair as a matter of law cannot be dispositive as to whether it is actually fair and in the public interest. This is especially true because the Supreme Court of Canada has ruled that a dealing can be fair even if it has an adverse effect on the market.
You should not conclude that the addition of “such as” in the fair dealing exception, as some have advocated for, would be no big deal and would simply add flexibility to the act. The appeal to the flexibility norm reflects a judgment that compulsory free dealings should be expanded to uses not expressly permitted or even imagined by Parliament. This was rejected in 2012, after being opposed by practically the entire creative sector, including in a major submission to the reform process.
You have heard appeals for exceptions in the name of balance, but the concept of balance does not provide any useful guidance for copyright reform any more than it provides a principled framework for reforms to tax, energy or other laws. You should be mindful of norm-based appeals for reforms based on balance where not supported by principled justifications. Supreme Court decisions on copyright often refer to balance, but some mythical balance in itself is not what the court teaches. Rather, the court teaches that the complementary goals of copyright are to encourage the creation and dissemination of works and to provide a just reward for the creators. These are the goals this committee should focus on.
You have heard that exceptions are needed to promote access to works and to foster innovation. Creators fully support a framework that promotes broad access and innovation, but free access as a guiding norm is not consistent with encouraging new investment by creators or paying them properly. Broad exemptions and limitations in rights also result, as Georges just indicated in his remarks, in value gaps, where creators cannot negotiate market prices and are not adequately compensated, or compensated at all.
Opponents of creator rights often justify piracy, arguing that it is fundamentally a business model, and that creators should, in effect, make content available at prices that compete with those who steal and distribute their content. This business model defies basic economics. A similar argument against providing creators the rights and remedies they need is that they are successful even despite piracy or because they’re paid for other uses or have other revenues. The “they are doing just fine” argument is really a normative judgment that creators should not have a copyright framework that will enable them to achieve their full potential—what they could produce and earn but for piracy and uses not paid for.
The “they are making money in other ways” argument is another normative judgment that creators should not be paid for valuable uses of their works by others, such as when they innovate to bring new products to market, even though those innovations don't cover the lost revenues on the other uses.
The bottom line is that the smoke-and-mirror arguments are premised on the normative judgment that it is justifiable to acquire and consume a product or service for free, essentially forcing the creator to subsidize uses and even piracy on a compulsory basis. These are assertions most people would never advance outside of the copyright discourse.
You are told that laws that would help tackle online piracy, such as site blocking, should not be enacted. There are over 40 countries that have court or administrative website-blocking regimes. This is not some experiment, as one witness has told you. These remedies support functioning marketplaces that are otherwise undermined by unauthorized pirate services. Numerous studies and courts worldwide have found website blocking effective in countering piracy and promoting the use of legitimate websites, and to be fully consistent with freedom of expression values.
We can learn from international experience. The United Kingdom is currently studying expanding its regime to include administrative blocking. Australia has just enacted a law to expand its site blocking to search engine de-indexing.
When people oppose reasonable remedies against blatant online theft and leave no stone unturned arguing against creators having a framework law that enables them to control the uses of their works and to be paid a fair market value for such uses, you should question why. In particular, you should question what moral compass and values underlie these arguments and whether they comport with norms that this committee is prepared to accept for copyright or in any other situation.
I thank you for the opportunity to appear today, and I look forward to any questions you might have.