Evidence of meeting #143 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 works.
A video is available from Parliament.
Liberal
Partner, Cassels Brock & Blackwell LLP, As an Individual
If what you're referring to is temporary copying for technological processes, exception 30.71, that's a good example of an exception that is framed really broadly in a way that is prone to misunderstanding or abuse.
An example is broadcasters arguing that all of broadcasting, from the ingestion of content until the public performance of the work, is one technological process and, therefore, all copies need to be exempt. It may be that, properly framed, an exception like that is an appropriate mechanism to deal with data mining and artificial intelligence. We have to be very careful to frame these exceptions in such a way that really targets them toward the intended purpose and doesn't leave them prone to exploitation in other senses.
Liberal
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
As I've mentioned, my preference would be for a broad-based “such as” approach. I do think we need something. Even if we do have it, “such as” should include informational analysis.
I saw the Prime Minister on Friday speaking about the importance of AI. Quite frankly, I don't think the U.K. provision goes far enough. Almost all the data we get comes by way of contract. The ability to, in effect, contract out of an informational analysis exception represents a significant problem. We need to ensure that where you acquire those works, you have the ability.... We're not talking about republishing or commercializing these works. We're talking about using them for informational analysis purposes. You shouldn't have to negotiate those out by way of contract. It should be a policy clearly articulated in the law.
Conservative
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Okay. That changes everything.
Mr. Geist, there seem to be a lot of negatives to the collective model. If there weren't a collective model, it seems there would need to be a collective model because the transaction costs of an individual artist or writer are so high that they would need to band together. Is there any alternative to the collective model in your academics that you could propose as an idea?
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
The market is providing an alternative right now. I mentioned the 1.4 million licensed e-books that the University of Ottawa has. Those are not acquired through any collective. They're acquired through any number of different publishers or other aggregators. In fact, in many instances we will license the same book on multiple occasions, sometimes in perpetuity, because the rights holder has made it available for this basket of books and for that basket of books and for another basket of books. In fact, authors are doing it all the time, or publishers are doing it all the time right now.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
It does seem very appealing. I like that sort of free market movement idea, but from what we're hearing from the authors who have spoken to us, it doesn't seem.... I'll come back to you.
Mr. Chisick, could you comment on that? Is that a good enough alternative for an author, licensing it through e-books as a replacement for collectives?
Partner, Cassels Brock & Blackwell LLP, As an Individual
From what I'm seeing from authors who are struggling with developments in the market, it may not be a complete solution. There is no question that transactional licensing, particularly in the book publishing area, has made strides over the last decade or so. It doesn't seem to be capturing the full value of all the works that are in use, though. It's something that, arguably, needs to exist alongside a collective licensing model that can pick up the residue.
In other areas of licensing, market-based solutions haven't been effective yet at all—for example, in music, where the entire viability of an author's or an artist's career depends on the ability to collect millions and millions of micro-payments, fractions of pennies.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
What about authors defending their work from copyright infringement? For the average authors, is it within the realm of their financial resources to pursue that litigation without a collective licensing model? Is that something they could do?
Partner, Cassels Brock & Blackwell LLP, As an Individual
No, it isn't. It's almost impossible for all but the most successful artists or frankly, the most successful rights holders, by which I mean publishers and others—the 1% or very close to it—to actually pursue remedies for copyright infringement. Ironically, that's one of the reasons, in the previous round of copyright reform in 1997, that attempts were made through policy to encourage artists and authors to pursue collective management.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
I do want to give Mr. Geist a chance to rebut because it would only be fair, I think.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
I appreciate that. Thank you.
It's not that I'm saying that no collectives ought to exist. I think there is a role for them. I'm saying that what we have seen, especially in the academic publishing market, is that they have been replaced, in effect, by alternatives. That is the free market at work. Together with some students, I did studies looking at major Canadian publishers, including a number that came before you, and virtually everything they were making available under licence is what our universities have been licensing.
When you get certain authors saying, “I'm getting less from Access Copyright, why is that?”, we need to recognize that a chunk of Access Copyright's revenues go outside the country, a chunk go towards administration, and then a big chunk goes to what they call a payback system, which is for a repertoire. It doesn't have anything to do with use at all. It simply has to do with the repertoire. That repertoire excludes any works that are more than 20 years old and excludes all digital works.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
What about defending people, like Mr. Chisick was talking about? It's outside the realm of 99% of authors to defend themselves, if their works are being infringed in copyright. What's your replacement for that? What's the alternative?
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
In many instances, where those works are being licensed, the publishers do have the wherewithal to take action, if need be. However, the notion that somehow we need collective management, largely to sue educational institutions, strikes me as a bit wrong.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
With all respect, I don't think anybody is credibly making the case that educational institutions are out there trying to infringe copyright. In fact, we see some educational institutions, even in Quebec, that have a collective management licence with Copibec and are still engaged in additional transactional licences because they need to go ahead and pay them. The bad guys here or the infringers, so to speak, are not the educational institutions.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
I'm not convinced that there are major infringers in the area of book publishing.
Partner, Cassels Brock & Blackwell LLP, As an Individual
To be clear, the point that I made about licensing and collective management existing alongside one another is that it's not primarily for the purpose of enforcement. I agree with Professor Geist. The purpose is to make enforcement unnecessary, by making sure that all of the uses that are capable of being licensed and that are appropriate to license are licensed in practice.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
May I also add that one aspect that is not often mentioned, I believe, is that with all these new licences that publishers are giving to universities, perhaps one of the sources of discontent is that I'm not sure the money trickles down to the authors who sign up with the publishers. You have licences between publishers and universities or any kind of group and, yes, you look at the terms. Again, licensing for having your book on the shelf in the library is different from licensing for having the book used in a classroom, but put that aside. I'm not sure the current structure actually helps the authors, who may not necessarily see the money for all these licences.
Liberal
The Chair Liberal Dan Ruimy
Thank you very much. It's nice to see all the heads go up and down at the same time.
Ms. Caesar-Chavannes, you have five minutes.
