Evidence of meeting #142 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 board.
A recording is available from Parliament.
Professor, Faculty of Law, University of Windsor, As an Individual
We thought so.
Liberal
Liberal
The Chair Liberal Dan Ruimy
Knowing Mr. Longfield, he'll probably set up coffee with you.
We're going to move to Mr. Albas.
Central Okanagan—Similkameen—Nicola, CPC
Thank you, Mr. Chair. I'd like to split my time, if I can, with Mr. Lloyd.
Thank you, everyone, for your presentations.
Ms. Chapdelaine, I'm going to start with you. You argue that Canada should adopt fair use-style provisions. That is something we've started to hear quite a bit. Can you state why you think that fair use is a superior system?
Associate Professor, Faculty of Law, University of Windsor, As an Individual
It's superior for the reasons I mentioned earlier. There's no limited purpose to begin the analysis as to what would be a use that can be done without the authorization of the copyright holder. We would develop it with our own values and our own legal system. We're not suggesting that we would have to copy what has been done in the U.S., but as an approach at the legislative level, we think it's a good start that would be less limiting and more flexible.
Central Okanagan—Similkameen—Nicola, CPC
Ms. Tawfik, in your brief, you state that scientific works should be available after “a reasonable period of time”. Could you state what the “reasonable period of time” is in this context?
Professor, Faculty of Law, University of Windsor, As an Individual
Well, it's reasonable time, obviously, to give the publisher or whomever the return on their initial run. There have already been practices in the context, for example, of the arts and humanities law publishing, where after a period in which the journal gets a return, you can deposit it in an institutional repository, with attribution, for publicly funded research.
Central Okanagan—Similkameen—Nicola, CPC
I totally understand that the context may differ by industry and industry norms. The challenge for anyone in government is that obviously there needs to be a delineated line at some point, and it's the line in the sand that we're often contemplating on behalf of the government. Can you give any indication in the case of scientific works?
Professor, Faculty of Law, University of Windsor, As an Individual
For pure science, I can't, no.
Central Okanagan—Similkameen—Nicola, CPC
Your brief also states that the risk of being liable to statutory damages for infringement “creates a serious chill on socially desirable activities”. Can you explain what you mean by “socially desirable activities”?
Professor, Faculty of Law, University of Windsor, As an Individual
Again, it's obviously the other side of the coin: users being able to adapt or do whatever copyright permits them to do without the threat or the fear that they will be subject to statutory damages without the plaintiff having to prove them. Anything that short-circuits the regular system is potentially chilling on those people who want to adapt, create, build on knowledge, and use what's out there in a way that is legitimate within the confines of what's reasonable and fair but without these hammers hanging over their heads, which would be huge damages.
Again, this is not to suggest that people who are downloading music or whatever for commercial purposes—there was a big case in the United States involving this—should not be subject to whatever the remedies are. The hammers that are incorporated, and the statutory damages as a hammer, would have a chilling effect on those who might do things that are legitimate but would be inhibited from doing them.
Central Okanagan—Similkameen—Nicola, CPC
Okay. Thank you for that explanation.
One of the concerns I've raised a number of times is with content ID. Many of the platforms have said they are doing the best they can within the contextual environment they're operating in.
One of the cases is where someone pays a tariff for a sound clip and then finds that, even though they've paid the tariff, they can't post the content because Sony or another company will have it pulled down. Another, more extreme, example I cited at the last meeting was a YouTube clip that a network television show clipped, put it in the show, and then had the original clip taken down because it was violating their content.
How do we deal with this? A lot of smaller companies—and not even companies, just creators themselves—are posting real, innovative work but are unable to defend themselves. Can you give us any ideas on that?
Associate Professor, Faculty of Law, University of Windsor, As an Individual
What we're recommending is an administrative body that would have oversight to address such complaints, basically. In cases where it would inhibit user-generated content, which is one of the possibilities under our act, there should be rectification of the information to allow the copyright work to be posted or whatever. That's the oversight part of giving true remedies to users that we were referring to.
Central Okanagan—Similkameen—Nicola, CPC
I like the word “remedies”, too.
It's over to Mr. Lloyd.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Thank you.
Thank you for the opportunity to speak to you as witnesses.
Mr. Sheffer, you've laid out a case about institutional abuse in copyright. I think most Canadians would agree that education, as a fundamental principle of fair use, is completely legitimate. If the committee were to recommend clarifying the scope of what we mean by “education” to mean an individual's right to education, as opposed to an institutional right to use education as fair use, do you think that would have a significant impact on the rights of authors?
Hebb & Sheffer, As an Individual
Yes, I think it could. I think what you just described squares nicely with the proposal I'm suggesting would work, and it's the one that Access Copyright gave you.
Nobody is disputing a student's ability to make a copy of a work for that student's education and private study—research and what have you. What creators take exception to is when institutions engage in massive copying of copyright-protected works, then turn around and put them in course packs, sell them to students and call it fair dealing.
December 5th, 2018 / 5:35 p.m.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Do you think that our government—at all levels, but I guess mostly federally—is doing enough to protect the cultural tapestry of our literary sector in this country? Are we really at risk of losing what makes us unique as Canadians in the literary sense?
Hebb & Sheffer, As an Individual
Yes. I think if the education exception is allowed....
I will just back up for a second. If there's one thing I could leave this committee with, it's that if you haven't already read the York University case, I implore you to do that. You can see exactly how York University—the third-largest institution in this country, with 50,000-plus students—has actually used their fair dealing guidelines.
There's no disputing the findings of fact. I really implore you to read that decision, because if that is allowed to stand as something that's fair dealing, then yes, creators are definitely harmed by that.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
That's what I have left for my questioning. Thank you.
Liberal
NDP
Brian Masse NDP Windsor West, ON
Thank you, Mr. Chair.
Thanks for being here.
Let's just finish with Mr. Sheffer. Really, at the end of the day, your concern is that the publication they're using is actually creating income for them, and a source of revenue and so forth, but at the end of the day the people are not getting any compensation for that. Is that really the...?
NDP
Brian Masse NDP Windsor West, ON
I just wanted to make sure.
I'm going to skip over to artificial intelligence, actually. We haven't heard a lot about that, so I want to spend a little time here on it. Thank you for raising that. It hasn't been raised a lot.
Can you highlight what the concern is? We've heard an argument that if you're the creator of the artificial intelligence, you should then be the owner of the work of the artificial intelligence. Could you perhaps talk a little about that?
Professor, Faculty of Law, University of Windsor, As an Individual
That's a position we don't uphold. Copyright can't be the policy vehicle or legislative vehicle to deal with everything that's emerging in technology or otherwise today.
Artificial intelligence as technology can be protected through patents, and there are other ways of protecting the technology itself. Copyright, really, is about incenting human beings to create and disseminate, etc. To the extent that we have moved into areas in which copyright is actually protecting technologies, or software and those things, it has already created a distortion not only in the way in which copyright originated, but also, frankly, in its fundamental principle, the intention behind it.
We're not saying that one could never hold copyright in a work that's produced through artificial intelligence, but the copyright tests should not be changed. We should apply the same tests. If a human being has exercised sufficient skill and judgment in the creation of that work using artificial intelligence, then they should be able to claim copyright. If it's just that they've produced the technology that enables the artificial intelligence to create something new, then our position is that copyright ought not to extend to that.
If there is a need to protect the creative output of a robot, then other mechanisms can come into play, not copyright.
NDP
Brian Masse NDP Windsor West, ON
It's an interesting aspect that we haven't gone into a lot.
I raised this argument at the beginning of these hearings. Especially when we look at artificial intelligence and the massive government and public subsidization of research into that technology and its products, we see there is an argument for the public expectation for some of that to be shared as well, in my opinion. When we do these public-private partnerships, there is a considerable amount of public resources—be it money, infrastructure, or processes and government resources and so forth—that the public has paid as part of that equity. There needs to be a little discussion there.
I want to quickly turn, with the rest of my time, to sharing information coming from the government. We heard just prior to your coming to the table here that apparently there have been some work and some studies done. I was asking about the USMCA and the extension of copyright and what information they were using for it. There has been no particular study, but they have some government information and documents and so forth. We still don't even know what that is, although government resources and research have been used to do that.
How does Canada rank as a government, among our neighbours and other Commonwealth nations, with regard to disclosure of public information of government materials, research and other types of work that have been done?
