Thank you.
Good afternoon, and thank you for the opportunity to speak to you today about copyright. With 186 witnesses having appeared before this committee, I hope everything has not been said.
I am the director of the art school of Laval University in Quebec City, and was previously a professor in the law faculty at Laval University for 15 years.
I will start with some general comments.
Making law is about ideas, priorities and objectives. A neutral standpoint does not exist, and a proper balance does not exist. Dozens of testimonies gave you dozens of points of view that were called balanced; none were neutral. The legislator is always making choices. That's nothing new. You all know that, of course.
Copyright law takes into account authors' rights, art practices, the concept of property, the concept of work, the concept of labour, the concept of public, and technologies. Copyright law is a cultural policy, and there are many ways to build a copyright law with these concepts.
Copyright was, historically, a way of providing revenues for authors through reproduction, retransmission, etc. In Canada, for the last 20 years, copyright has been impacted by three forces: law, jurisprudence and technology.
First, here are a few words about the law. The 2012 modifications enforced many new exceptions, among them fair dealing in education, and none of them included remuneration for authors. It was a major step back for authors.
In jurisprudence, I will remind you that, in the 1990 case Bishop v. Stevens, the Supreme Court of Canada quoted an old English decision, saying, “the Copyright Act...was passed with a single object, namely, the benefit of authors of all kinds”.
But there was a shift in 2002. The Supreme Court in the Théberge case wrote:
Excessive controls by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole....
In 2004, in the CCH case, the Supreme Court invented a user's right, saying, “The fair dealing exception, like other exceptions in the Copyright Act, is a user's right.”
Théberge and CCH are based on a mythology that the authors may hide their work and not let the public get access to it.
Third is technology. With the Internet, access to art and the democratization of creation are great, of course, but they are pushing aside authors' rights and remuneration. We have witnessed the arrival of a new type of author who is not interested in copyright protection—such as Creative Commons, here before this committee—and doesn't need remuneration. With new technologies, legislators, not only in Canada, have kind of abdicated and let private corporations make the law. This is the case with Google, which redefined fair use and remuneration with Google Books, Google News, Google Images, and YouTube.
There is a shift that benefits everyone—the public, Internet providers and Silicone Valley corporations—except the authors. It's what we call a value gap. The combined result of law, jurisprudence and technology is a decline of copyright protection for authors.
I suggest that making the law means working with studies. What were the economic effects of the 2012 amendments? Did authors get more or less royalties?
Since the arrival of the Internet, authors' incomes have decreased. We did a study a few years ago in Quebec with the INRS and the ministry of cultural affairs, showing that revenues are becoming micro-revenues. I think Access Copyright, Copibec, L'Union des Écrivains and a lot of people came here to tell you that revenues have decreased.
On the other side, what are the revenues of Internet providers and Silicone Valley corporations? Did they decline?
Artists should be better protected as a social and cultural value. This is not a question of balance. The message is quite simple. If art matters, we must care about authors. The general principles of the Canadian act respecting the status of the artist should be followed.
I'll run through a couple of proposals.
First, as a general proposal, you should make the wording of the Copyright Act much simpler. The wording is quite a mess at some points. One example is that no one can really explain the distinction between non-commercial purposes, private purposes, private use and private studies. Confused and complicated rules are usually not followed.
Second, you can fix what was, in my opinion, broken in 2012. Take away all the exceptions of 2012, or keep them but add a remuneration mechanism. Canada has to comply, as you know, with the triple test of the Berne Convention. The idea is to replace authorization with a royalty, a global licence model like the private copying regime of 1997. The private copying regime was a way to answer to a technology that gives the public the possibility of reproducing work themselves and provides remuneration to the rights holders.
Third, add a resale right. I think RAAV and CARFAC testified in that sense. A resale right is a tangible way of expressing support for visual artists.
Fourth, create a fair dealing exception for creative work, which means to clarify the right to quote for visual artists and musicians.
Fifth, give a greater role to copyright collectives. They are the tangible way of making copyright functional by giving access and providing royalties. Perhaps you could think about extended collective licensing, and that could be an answer.
Sixth and finally, think about perhaps including a provision for professional authors, something that would be more coherent with the Status of the Artist Act and the notion of independent contractors.
I will conclude by saying that the question for us is to see from which perspective we are looking at copyright. The challenge is to act, as you know, like a legislator and not like a spectator.
Thank you.