Industry Committee on Dec. 3rd, 2018

[Ariel Katz]

In my experience, it does, yes.

Academic publication suffers from an underlying kind of absurdity. Most of the studies are funded by the the public. They pay our salaries. They pay the grants that we get to do those studies. We do all the work.

Then, because of the way the commercial publication industry is structured, we get commercial publishers, to whom we tend to assign the copyright. They become the copyright owner, and then they sell it back to universities and to the public at steadily increasing prices that are non-sustainable. The authors don't see a penny out of those subscription fees that we continue to pay.

The public is paying twice. First, the public is paying for the research, and then the public is paying for getting access to the research. With the people who write those studies, their goal generally is to get them disseminated as widely as possible, but then you get the paywalls interfering in between.

Generally, this is something that academic authors, in my experience, would support.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Mr. Albas, you have five minutes.

[Dan Albas]

Thank you, Mr. Chair.

Going over to the Bar Association, we've heard testimony that notice and takedown doesn't work. In fact, I've heard from creators who have had the system abused by rights holders and copyright trolls. These systems are often automated and throw out takedown notices without an actual person checking on whether the site includes infringing content.

Why should Canada embrace such a framework?

[Steven Seiferling]

Once again, we admit that neither system is perfect. The notice-and-takedown system is not perfect, and the notice-and-notice system is not perfect.

You're perfectly correct in saying that there are automated systems out there that are sending out notices under the notice and takedown. There are algorithms that are programmed to scour and search YouTube-type sites to automatically send out those notices—the DMCA notices, in the U.S. That happens.

If you craft a notice-and-takedown system, you can put checks and balances in place that prevent that type of abuse. They've talked about the fair use exceptions in the U.S., and a requirement for the intermediary to possibly consider those fair use exceptions in the U.S. before the takedown. That's one of the things they've looked at. That might not be the best solution, but you could put some checks and balances in place.

The end of the line—the overall answer—is that the notice-and-takedown system is more effective than the notice-and-notice system.

[Dan Albas]

Okay.

Again, we have an example of where a TV network took a clip from YouTube, inserted it into a network TV show, and then sent a takedown notice to the original uploader for violating their own copyright.

Sir, I'd just simply point this out: If it's not necessarily working in the ways that we'd want it to in the United States, why would we be looking at it here?

Anyway, on to Mr. Sookman—

[Steven Seiferling]

Can I respond to that?

[Dan Albas]

Mr. Sookman, you have written extensively on the negative impacts of piracy and why efforts like site blocking are needed. We've heard testimony that music piracy is falling due to options like Spotify.

Do you believe that the only way to lower the instances of piracy are options like site blocking? It sounded from your testimony that you don't believe it is a competitive market issue but an issue of law.

[Barry Sookman]

When it comes to piracy, there's no silver bullet. Multiple tools are needed to address piracy.

You can look at the statistics. Let's say you look at TV piracy. The Armstrong Consulting report showed that the loss is between $500 million and $650 million per year. These are real numbers in just one segment, TV piracy, because of Kodi boxes and pirate streaming sites that are foreign.

You can have litigation against them and get an injunction against a site that's under a rock somewhere and that no one can find, and it's not going to be effective. When you look at the source of this massive piracy, you see that generally it is foreign. Since there isn't another effective remedy that you can get, I do believe that the most effective remedy, the one that's been recognized around the world as being effective—not the only one—is site and de-indexing orders.

[Dan Albas]

Mr. Sookman, I appreciate that you have both the theoretical and the practical experience of working in this space, and I value that, but the CEO of Valve Corporation, Gabe Newell, said that “there is a fundamental misconception about piracy. Piracy is almost always a service problem and not a pricing problem.”

He argues that if products are conveniently available in the form that consumers want, people will pay for it. Here is someone who is out there fighting in that marketplace and looking for that share, who is saying that it's fundamentally a service issue rather than a legal one.

[Barry Sookman]

That's a great narrative, and those who oppose effective rights and remedies often use that narrative. I don't accept it. If you look at the Canadian marketplace, you see that it has a plethora of rights as far as TV and streaming go. We have Netflix and a lot of other services, and in the music space we have a lot of different services, yet we have a tremendous amount of piracy.

I'm not saying that having competitive products and services available isn't something we should have and that it isn't a factor in reducing unauthorized services. Of course it is, but should legitimate operators be required to lower their prices to compete with those who are stealing their product at the price of zero? No. We don't say, for example, that manufacturers of spare parts who could be doing stuff at Oshawa should have to compete with chop shop dealers who are stealing cars and then selling those parts at discount rates. I—

[Dan Albas]

I would also argue, though, sir, that there's a difference when you're talking about real property versus something that is digitally created. The transactional costs often work out differently. I would like us not to muddy the waters. As you very rightly point out, there's a difference when someone has a real product that has been stolen and then changed, but we are talking about products and services that are often intangible in nature.

Thank you.

[Barry Sookman]

We have—

[The Chair, Liberal, Dan Ruimy]

Thank you very much. I'm sorry.

Mr. Jowhari, you have five minutes. You'll notice the theme. We have to keep it short.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Oh, I wasn't on the list. Sorry.

[David de Burgh Graham]

I could do it, if you want—

[The Chair, Liberal, Dan Ruimy]

You have five minutes.

[David de Burgh Graham]

I'll go back to the very beginning. Mr. Katz made extensive comments about Access Copyright, and Mr. Sookman expressed an intention to respond. While I don't want to get into a debate like we had before, I kind of do.

Mr. Sookman, if you could take a minute to respond to the earlier points and why you disagreed so vociferously, perhaps we can get into the weeds on this a bit. I think it's important for us to do that.

[Barry Sookman]

I'll give you a couple of points, given the time I have.

First of all, he said that there's no repertoire, and I've already dealt with that. Boards have certified tariffs, and they've looked at the repertoire. To say that they have no repertoire is just not right.

Second, the board, Mr. Graham and everyone else, has taken into account in certifying tariffs.... When a board certifies a tariff, they look at the usage across the sector—whatever it is, education or others. They take into account fair dealing, and they take into account other licence uses, and where there are reproductions they exclude those from considering the rates. In one tariff, they concluded that fair dealing was 60%, so they set the rate based on 40%, a much lower rate.

Access Copyright collects—or used to collect, or had a right under the tariffs to collect—against institutions the amount of the tariff, so what we have going here is a mechanism whereby individual authors and individual publishers cannot make a claim for royalties. They need to collectively license. The Access Copyright regime was something that worked well, until 2012. Authors were being paid, and publishers were being paid, Then it dried up, and it dried up as—

[David de Burgh Graham]

Mr. Sookman, I don't have much time. I'd love to have another three hours on this, I really would, but we don't have time.

Mr. Katz's point earlier was that he is a copyright holder and Access Copyright collects for him but he has not granted them permission to do that. How do you respond to that?

[Barry Sookman]

He hasn't been paid because the educational institutions are not paying. If they did, he would he get paid.

[Ariel Katz]

I haven't given them permission to collect on my behalf, but they do it nonetheless.

[The Chair, Liberal, Dan Ruimy]

Mr. Katz—

[David de Burgh Graham]

Mr. Katz is making the point that I wanted to make. We're talking about Access Copyright claiming copyright of all the material that's in the universities and anywhere else prior to 2012. It's the same thing. That fact hasn't changed, but the great majority of the producers of that content aren't members of Access Copyright and have not given that permission to Access Copyright, so on what basis can it collect money that is not distributed to all those copyright holders just because they haven't registered?

[Barry Sookman]

Access Copyright doesn't represent every author in the world, but it represents—

[David de Burgh Graham]

It's just in Canada.