Industry Committee on Dec. 5th, 2018

[Martin Simard]

Go ahead, Mark.

[Mark Schaan]

We can both take that.

Yes, the legislative effort related to Bill C-86 was conceived and worked on by the Department of Canadian Heritage, the Department of Innovation, Science and Economic Development Canada, and the Copyright Board.

[Brian Masse, NDP, Windsor West, ON]

And at the end of the day, you just decided to leave those out.

[Mark Schaan]

Obviously, at the end of the day, the government holds policy authority for the overall process, and so they came to decisions that they felt were in the best interests of the overall system and that reflected what we heard from all parties.

[Brian Masse, NDP, Windsor West, ON]

This is what the Prime Minister said:

We will not resort to legislative tricks to avoid scrutiny.

Stephen Harper has...used omnibus bills to prevent Parliament from properly reviewing and debating...proposals. We will change the House of Commons Standing Orders to bring an end to this undemocratic practice.

Here we are again today, back to going through a process on which we are actually spending our time and resources. We are now seeing a legislative requirement—not even a regulatory requirement, which I've been asking for for a period of time, whereby we could have actually seen a proper fix. It's very disappointing and frustrating, especially given the fact that we have this opportunity in front of us.

I want to move now to the USMCA.

Mr. Schaan, you mentioned two and a half years for implementation. Is that ratification of the agreement by the United States or by Canada, with regard to the USMCA? How long does the two and a half years...? What triggers the start time?

[Mark Schaan]

It's from the signing of the agreement. Is that correct?

[Martin Simard]

It would be the coming into force of the agreement, so that would have to be the mechanism. We can come back to you with the exact.... It's the three countries, so I would assume that when the three countries have ratified it through their Parliament, the USMCA, or CUSMA, would come into force. I would have to confirm the understanding of the coming into force of the agreement.

[Brian Masse, NDP, Windsor West, ON]

Okay. That's fine, to make sure that it's not just.... People who have a vested interest, a financial interest, in this are going to want to know when the two and a half years starts exactly, whether it's Canada, the United States, or Mexico that is the final signatory to that deal. If they sign on, it will still have to wait, because in the U.S., Congress still has to pass it. It's also highly debatable whether this will be passed.

What particular studies were done by the department—and will you table those—about the economic implications of a two-and-a-half-year notification process and introduction of that change? What has the department done with regard to studying the economic repercussions for those affected by the two and a half years?

[Mark Schaan]

Obviously, we take a broad analysis of the overall impacts of trade negotiations. On the specifics of the enhanced term of protection, it's very difficult to model.

[Brian Masse, NDP, Windsor West, ON]

There was no study done, then, on the two and a half years.

[Mark Schaan]

There was considerable analysis of the overall provisions, but not a specific modelling of those, because it's very difficult to do.

[Brian Masse, NDP, Windsor West, ON]

Why two and a half years—and not three years, or three and a half years, or one and a half years—or why have a notification process for the transition? Why two and a half years versus any other option?

[Mark Schaan]

The transition period was negotiated among all parties, and it was agreed that this was a sufficient time period to allow for appropriate study and implementation.

[Brian Masse, NDP, Windsor West, ON]

Would you be willing to table that information so that we can see what the decision-making process was based upon? If there is no actual study for the two and a half years, in particular, it would be interesting for the financial interests of people who are involved in this to know exactly why two and a half years and what data was used to accumulate that actual decision at the end of the day.

[Mark Schaan]

There was no economic modelling done of a transition period of two and a half years. Two and a half years was a dialogue between those who would have to implement the system to understand how long we thought we would need to consult appropriately.

[Brian Masse, NDP, Windsor West, ON]

There you have it.

Thank you, Mr. Chair. Those were all of my questions.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Before we break off, because we didn't have a full round of questions, if any of the members have any questions they want to submit in writing, could we get them in by Friday at noon to the clerk, and then we could submit them to our panellists?

On that note, thank you very much to our first panel. There is lots of work ahead of us.

We will suspend briefly to change panels, and we'll come right back. Thank you.

[The Chair, Liberal, Dan Ruimy]

We will resume.

We're moving into the second panel. With us we have, as individuals, Warren Sheffer, from Hebb & Sheffer; Pascale Chapdelaine, associate professor in the faculty of law at the University of Windsor; and Myra Tawfik, professor in the faculty of law at the University of Windsor.

You will each have seven minutes to present. Again, we're going to do the same pattern, with one round of seven minutes.

[Warren Sheffer, Hebb & Sheffer, As an Individual]

Thank you Chair, and members of the committee, for giving me an opportunity to address you today.

I've practised law for 15 years. For 12 of those years, I've worked in association with my colleague Marian Hebb. Together, we are Hebb & Sheffer. My practice largely consists of advising and representing authors and performers who are the original owners of copyright.

In addition to my regular practice, I've spent over a decade serving as duty counsel with Artists' Legal Advice Services, known by its acronym ALAS. At ALAS, a small group of lawyers provide pro bono summary legal advice to creators of all artistic disciplines.

I also currently sit on the board of directors of the West End Phoenix. The West End Phoenix is a not-for-profit, artist-run broadsheet community newspaper, produced and circulated door to door in the west end of Toronto. It contains great writing, illustrations and photography, and the occasional great crossword puzzle. This is a copy of it, here. Our tag line is “Slow print for fast times”.

The West End Phoenix is solely funded by subscriptions and donations. Our freelance contributors include well-known voices like Margaret Atwood, Claudia Dey, Waubgeshig Rice, Michael Winter, rapper Michie Mee, and Alex Lifeson of the iconic Canadian rock band Rush. Other contributors are emerging writers like Alicia Elliott and Melissa Vincent.

The West End Phoenix pays decent rates and prides itself on seeking from authors only a six-month period of exclusivity within which we may publish their works. Our freelancers remain the copyright owners, as they should. After the six-month period of exclusivity, they are free to relicense their works to other parties or to sell or self-publish their contributions for extra income.

The West End Phoenix will typically pay a few hundred dollars for an article, which may seem modest. However, reliance on modest streams of income is a reality for most of Canada's professional writers.

Indeed, many of the creators I work with or have advised at ALAS, or who contribute to the West End Phoenix, rely on several streams of income to get by. For example, there are royalties from publishers and collective licensing, public lending rights payments, speaking engagements, and part-time work in or outside of the publishing industry.

As a lawyer to Canadian authors, I'd like to speak with you today about the general decline in their average income and its relation to the education exception in the Copyright Act. I'd also like to propose a statutory correction to help fix that decline in income, which accords with what the Supreme Court of Canada has declared about the purpose of the Copyright Act.

Specifically concerning the act's purpose, the Supreme Court stated in the 2002 Théberge case, and has repeated in other cases since that time, that the Copyright Act is meant to promote:

a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated).

In my view, the federal government missed the mark badly in 2012, when it boldly introduced into the Copyright Act education as a fair dealing exception. Prior to that 2012 amendment, education sector representatives testifying before legislative committees were insistent that the education exception would not be about getting copyright-protected works for free, and that, instead, the exception would only facilitate taking advantage of teachable moments without disrupting the market for published works.

In other words, using the language of the Supreme Court of Canada employed in Théberge, the exception was to be about ad hoc dissemination of works of art and intellect, and not about systematically appropriating benefits or royalties from creators.

The past six years have shown that notion, that it would do little harm, to be patently false. Royalties have been appropriated from creators on a massive scale.

We know from the Writers' Union of Canada's recently published 2018 income survey that the average net income from writing currently sits at $9,380, with a median net income of less than $4,000. We also know from that same survey that the authors' royalties earned in the education sector have declined precipitously with the implementation of the education exception.

In that regard, Access Copyright reports in its 2017 audited financial statements that since 2012 the amount of revenue collected from the K-to-12 and post-secondary sectors has declined dramatically, by 89.1%.

I won't repeat or drill down into all of the other lost income figures, which I know this committee has been supplied by the Writers' Union of Canada and Access Copyright. Instead of repeating numbers you've already seen or heard, I'd like to focus on the education sector's 2012 fair dealing guidelines, which the education sector unilaterally crafted.

In substance, these fair dealing guidelines look substantially similar to the Access Copyright licences that the education sector negotiated and paid for prior to 2012. In short, the education sector has substituted their own fair dealing guidelines for Access Copyright licences.

As you know, the fair dealing guidelines are the centrepiece of the litigation between Access Copyright and York University. In that matter, the federal court found that York created the fair dealing guidelines to reproduce copyright-protected works on a massive scale without licence, primarily to obtain for free that which they had previously paid for. The federal court also found that the guidelines were not fair, either in their terms or in their application. The Federal Court of Appeal will hear that matter next March.

I ask this committee to absorb the consequences of the declaration that York seeks in the appeal in the name of fair dealing, and I would ask that you consider what such a declaration would mean for artists who make publications like the West End Phoenix possible.

As you likely know, York and others in the education sector wish for the Federal Court of Appeal to declare, for example, that it's presumptively fair for York to take a publication like the West End Phoenix and systematically make multiple free copies of entire articles, entire illustrations and entire poems, and then include those works for its own financial benefit in course packs that it sells to students. It's hard to see how anyone could possibly find such an arrangement fair, let alone for Canadian creators getting by on incomes that are very low and declining. However, that has not stopped education bureaucrats from trying to get their fair dealing declaration.

Given the damage done since 2012, I think it's critically important that Parliament make it clear in the Copyright Act that the kind of institutional copying that is the subject of the York litigation does not qualify as fair dealing.

The statutory amendment I propose to fix the damage caused would simply make fair dealing exceptions inapplicable to educational institutions' use of works that are commercially available. In my view, the proposed amendment that Access Copyright submitted to this committee, in its submission dated July 20, 2018, would achieve that goal.

Thank you for your time and consideration.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to move to Pascale Chapdelaine.

[Myra Tawfik, Professor, Faculty of Law, University of Windsor, As an Individual]

If you don't mind, we'll do it together. I will start the presentation and then hand it over to Pascale.

[The Chair, Liberal, Dan Ruimy]

Okay. Go for it.

[Myra Tawfik]

Thank you.

Mr. Chair and members of the standing committee, thank you very much for having invited us here to address you regarding the review of Canada's Copyright Act. My colleague Pascale Chapdelaine and I are both law professors at the University of Windsor, and we're appearing here to elaborate further on the recommendations that we made in two briefs that were co-signed by 11 Canadian copyright scholars. Together, we represent a multidisciplinary group that includes librarians, copyright officers, communications scholars as well as legal scholars.

We'd like to begin our remarks with three overarching principles that guide the specific recommendations contained in the briefs, some of which we will elaborate on further in a moment.

We approached our submissions in light of three governing principles. The first is a matter of process with a view to expanding the framework of our law. We recommend, or urge that you consider, a process of consultation with indigenous peoples. In this respect, meaningful consultation must be had with Canada's indigenous peoples, which would seek to implement Canada's obligations under article 31 of the United Nations Declaration on the Rights of Indigenous Peoples. In the context of copyright, this means suitable recognition and protection of indigenous traditional cultural expressions, particularly those that are not currently protected by the act.

Second, in relation to the existing framework, there are two overarching principles that should govern. I'll address the first one, and then I'll turn the floor over to my colleague, who will address the second.

First—and I think everyone seems to be in general agreement about this—copyright involves a balancing act of various interests and is an integrated system of incentives whose overarching policy objective is to advance knowledge and culture.

I have been a law professor at the University of Windsor for close to 30 years. My primary area of research and teaching has been focused on copyright law. For the last 15 years, I have been studying Canada's early copyright history to try to tease out from the archival records an understanding of the policy rationale that led to its first enactment at a time when we could boast no professional authors and no publishing industry.

What, then, would have motivated those early parliamentarians to provide for copyright? At its inception, copyright was literally for the encouragement of learning. It was introduced to provide incentives for schoolteachers to write and print schoolbooks and other didactic works to encourage literacy and learning. This meant not only encouraging book production per se, but making sure that the books were affordable: in other words, accessible to the readership.

I am in no way suggesting that this history can automatically be transplanted to current constructions of copyright, but I believe that the foundational principles remain as relevant today. Copyright back then, as now, was not and should not be about rewarding creators for the mere fact of having created. In a similar vein, copyright back then was not about providing a monopoly to printers and publishers as an end in itself. Creators in industry were the means to a larger public policy end. In order to fulfill the law's overarching policy, copyright, which is a monopoly right, needs to be counterbalanced with the establishment and maintenance of robust spaces that can't be captured or owned. It's in this public interest that intellectual property rights should remain limited rights, and there's nothing suspect or ahistorical about this—to the contrary.

Copyright is a calibrated system that mediates the competing interests of creators, industry and users with the ultimate goal of advancing knowledge and facilitating innovation. The user side of copyright policy is integral to the system and manifests itself in our fair dealing provisions and the other statutory limitations and exceptions to copyright.

[Pascale Chapdelaine, Associate Professor, Faculty of Law, University of Windsor, As an Individual]

Mr. Chair and members of the committee, to continue on the theme of a balanced approach to copyright introduced by my colleague Myra Tawfik, allow me to briefly present the journey that has brought me here today.

My many years of practice as a lawyer, during which I ensured the protection of the intellectual property of my clients, as well as the findings of my academic research and my doctorate in law, which led to the publication of a book on the rights of users of copyrighted works in 2017 at Oxford University Press, allow me to assess the issues at stake, both on the side of copyright holders and on the side of users and the public. My remarks are, therefore, in line with this perspective.

Copyright has unique characteristics, but it should not be treated in an exceptional way. It is part of a framework of law and established standards that it must a priori respect. Any derogation from these principles must be taken seriously and cannot be done without thinking about the ramifications it may have on the credibility and legitimacy of copyright, in the eyes of the public as well. Recognizing that copyright must respect fundamental rights, the Canadian Charter of Rights and Freedoms and freedoms, property law and contract law is in fact one of the corollaries of the balanced and measured approach that we advocate in our brief.

My colleague and I will now address specific recommendations in passing that reflect these two guiding principles of a balanced system that must respect fundamental rights and general laws. I will start by making a few recommendations, as contained in the brief, with respect to solidifying exceptions to copyright infringement and user rights.

The specific recommendations made in our briefs regarding the rights of users of copyrighted works are in fact a continuum of the evolution in Canada toward a more balanced approach to copyright, recognizing that users play an integral part in fulfilling the objectives of copyright. We promote continuing an evaluation of recognizing the rights of users, but to the extent that it does promote the objectives of copyright—to the same extent that any expansion of the rights of copyright holders should be made only to the extent that it promotes the objectives of copyright, that is, the promotion of the creation of works and their dissemination to the public.

To begin, a fair use style of approach should replace fair dealing provisions. Eliminating a closed list of specific purposes—such as research, private study, criticism and parody, as in our current act—and replacing them with illustrative purposes, while maintaining a test of fairness justifying some uses of works without the authorization of the copyright holder, would continue to protect copyright holders' interests while offering more adaptability to include new purposes. For example, as we were contemplating, addressing text mining and data mining would come to mind. It wouldn't need to be added each time new technologies evolve. That would also be in keeping with the principle of technological neutrality.

Second, the act needs to clarify that copyright owners cannot contract out of exceptions to copyright infringement, and certainly that would be the case in non-negotiated standard form agreements. A “no contracting out” approach recognizes that exceptions to copyright infringement are an important engine to ensure that copyright respects fundamental rights and other interests that are essential to optimizing users' participation to the objectives of copyright. Such an approach has been taken by other jurisdictions, recently the U.K.

Third, and consistent with a “no contracting out” approach to user rights, technological protection measures should not override exceptions to copyright infringement, as they currently do to a large extent. Copyright holders choosing to secure access and use of their works through TPMs should have the obligation to provide access to the exercise of exceptions to copyright infringement through built-in architecture or other mechanisms.

Fourth, in relation to the constraining effects of TPMs on the legitimate exercise of user rights, specific remedies need to be built into the act when copyright holders fail to provide access to the legitimate exercises of user rights. In addition, proper administrative oversight should be in place to monitor automated business practices of copyright self-enforcement—here, content ID used on Google platforms such as YouTube comes to mind—to ensure that non-infringing material is not inappropriately removed and that freedom of expression is protected.

Just as copyright owners benefit from a wide range of legal remedies when their rights are infringed, it goes without saying that users should also have recourse against copyright owners when their rights of use are not respected. Unfortunately, this is not the case in the act at this time. The creation of specific remedies for users in the act would rectify this imbalance and crystallize the need to respect the rights of users of protected works. Specific remedies for users are provided for, for example, in legislation such as that of France and the United Kingdom.

[Myra Tawfik]

I'll just briefly highlight a couple more of our recommendations before concluding.

Again, and similar to the overarching approach upon which we have based our assessment of the Copyright Act review process, one of the recommendations we make is to introduce a provision relating to open access to research and scientific publications, especially in the context of publicly funded research. The federal government has already introduced a tri-agency open access policy for publicly funded research. Our recommendation is to provide for this type of open access provision as a principle within the Copyright Act, and this could be done in a manner that doesn't unduly interfere with the reasonable expectations of the copyright holder in that the publications could be deposited in an institutional repository after a reasonable period of time, with appropriate attribution.

In a similar vein, new technologies and new practices like text and data mining, which allow you to capture large amounts of data that offer insights and innovative solutions to pressing problems, have become important research methods for researchers at academic institutions. The risk of copyright infringement for reproducing copyright works when scraping, mining or downloading is an inhibiting factor that should militate in favour of a reasonable measure to remove some of the copyright barriers to this kind of research.

Finally, with regard to works generated by artificial intelligence, we take it that the rationale underlying copyright is to incentivize human beings to create, disseminate and learn, so we recommend that works entirely created by AI should not be subject to copyright protection. If a human being has exercised sufficient skill and judgment in the way in which they use software or other technologies to produce an original work, then the established copyright principles would apply. There is no policy consistent with history, theory or practice that would justify expanding copyright to works entirely created by artificial intelligence and without any direct human intervention.

The recommendations made in our briefs are modest and incremental steps to maintain a fair balance between the rights of copyright holders, users and the public interest. They are consistent with governing principles that inform our approach to the law. This approach advocates for a continuum on the evolution of copyright that takes a broader approach to competing interests rather than constantly increasing the protection of copyright holders as soon as new technologies emerge, without any consideration of the impact of such enlarged protection on copyright users.

This concludes our remarks. We'd like to thank you very much for hearing us out, and we'd be happy to answer any questions you may have.

Thank you.