Thank you, Mr. Chair.
My name is Bob Tarantino. I'm here with Catherine Lovrics. We are here in our capacities as former chair and current chair, respectively, of the Intellectual Property Institute of Canada's copyright policy committee. We are speaking in those capacities and not on behalf of the law firms with which we are associated, or on behalf of any of our respective clients.
We'd like to thank you for inviting IPIC to present to you our committee's recommendations with respect to a statutory review of the act.
IPIC is the Canadian professional association of patent agents, trademark agents and lawyers practising in intellectual property law. IPIC represents the views of Canadian IP professionals, and in our submissions to the committee we strove to represent the diversity of views among copyright law practitioners in as balanced a manner as possible.
You have our committee's written submissions, so in this speech I will be highlighting only a few of the recommendations contained therein. That being said, I'd like to provide a framing device for our comments, which I think is important for this committee to bear in mind as it deliberates, and that is the need for evidence-based policy-making. The preamble to the 2012 Copyright Modernization Act described one of the purposes of its amendments as promoting “culture and innovation, competition and investment in the Canadian economy”.
However, the extent to which any of those desired goals have been achieved because of changes to the act in 2012 remains unknown. There is little to no publicly available empirical data about the effects of copyright reform. We recommend that work commence now in anticipation of the next mandated review of the act to ensure that copyright reform proceeds in a manner informed by rigorous, transparent and valid data about the results, if any, which copyright reform has already achieved. Parliament should identify what would constitute success in copyright reform, mandate funding to enable the collection of data that speak to those identified criteria for success and ensure that the data is publicly accessible.
As noted in our written submission, we think some easy and granular fixes can be made to the act that will facilitate copyright transactions. Those changes include allowing for the assignment of copyright in future works and clarifying the rights of joint owners. The remainder of my comments will highlight four bigger picture recommendations, each of which should be implemented in a way that respects the rights and interests of copyright authors, owners, intermediaries, users and the broader public.
On data and databases, it is now trite to say that increasing commercial value is attributed to data and databases. However, the current legal basis for according copyright protection to them remains uncertain. Consideration should be given to amendments that effect a balance between the significant investments made in creating databases and avoiding inadvertently creating monopolies on the individual facts contained within those databases or deterring competition in fact-driven marketplaces. One approach to this issue that we flag for your attention is the European Union's sui generis form of protection for databases.
Regarding artificial intelligence and data mining, continuing with the theme of uncertainty, the interface between copyright and artificial intelligence remains murky. The development of machine learning and natural language processing often relies on large amounts of data to train AI systems, the process referred to as data mining. Those techniques generally require copying copyright-protected works, and can also require access to large datasets that may be protected by copyright.
We recommend that the committee consider text and data access and mining requirements in the context of AI. In particular, we refer you to amendments enacted in the United Kingdom that permit copying for the purposes of computational analysis.
Relatedly, whether works created using AI are accorded copyright protection is ambiguous, given copyright's originality requirement and the need for human authorship. A possible solution is providing copyright protection to works created without a human author in certain circumstances. Again, we refer you to provisions contained in the copyright legislation of the United Kingdom and to the approach the Canadian Copyright Act takes in respect to makers of sound recordings.
One the $1.25-million tariff exemption for radio broadcasters, the first $1.25 million of advertising revenue earned by commercial broadcasters is exempt from Copyright Board-approved tariffs in respect of performer's performances and sound recordings, other than a nominal $100 payment. In other words, of the first $1.25 million of advertising revenue earned by a commercial broadcaster, only $100 is paid to performers and sound recording owners. By contrast, songwriters and music publishers collect payments from every dollar earned by the broadcaster. The exemption is an unnecessary subsidy for broadcasters at the expense of performers and sound recording owners and should be removed.
Regarding injunctive relief against intermediaries, Internet intermediaries that facilitate access to infringing materials are best placed to reduce the harm caused by unauthorized online distribution of copyright-protected works. This principle is reflected in the EU copyright directive and has provided the foundation for copyright owners to obtain injunctive relief against intermediaries whose services are used to infringe copyright. The act should be amended to expressly allow copyright owners to obtain injunctions such as site blocking and de-indexing orders against intermediaries.
The act should be amended to expressly allow copyright owners to obtain injunctions such as site blocking and de-indexing orders against intermediaries. This recommendation is supported by a broad range of Canadian stakeholders, including ISPs. Moreover, more than a decade of experience in over 40 countries demonstrates that site blocking is a significant, proven and effective tool to help reduce access to infringing online materials.
I'd like to thank you again for inviting IPIC to present you with our comments today.
We're happy to answer any questions you may have about our submission.