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.
December 10th, 2018 / 4:40 p.m.
Celina Caesar-Chavannes Whitby, Lib.
Thank you very much, Mr. Chair.
I want to thank all the witnesses. I have five minutes, so I'm going to try to ask as many questions as possible.
Mr. Chisick, at the opening of your statement, you said that you agreed with the views from many of the witnesses who came ahead of us. In your opinion, what didn't you agree with, as we look to consider some of the recommendations that we are going to put forward?
4:40 p.m.
Partner, Cassels Brock & Blackwell LLP, As an Individual
That's a great question. I'm certainly concerned. I disagree with the view that Dr. Geist has expressed about term extension, for example. The example he gave about the author waking up and deciding not to write because of a 50-year term post-mortem rather than 70 years may be true, but the term of copyright is highly relevant to the decision of the publisher as to whether to invest and how much to invest in the publication and promotion of that work.
It may or may not be relevant to the writer—although I'm sure there are writers who do wake up wondering when they're going to have to get a different job—but from the commercial aspect of things, that's becoming more and more difficult every day, considering the level of investment in the dissemination of creativity, which is also a critical part of the copyright system. In my view, the extension of term from life plus 50 to life plus 70 is something that's long overdue.
Some before the committee have been suggesting that copyright in an audiovisual work ought to go to the writer or the director or some combination thereof. I disagree with that for similar reasons. It all has to do with the practical workings of the copyright system and how these ideas would work out in practice. As a lawyer in private practice dealing with all sorts of different copyright stakeholders, my primary concern is not to introduce aspects of the system that will get in the way of or perpetuate barriers to successful exploitation of commercial works. It's so important now in the digital era to make sure that there's less friction, not more.
4:40 p.m.
Whitby, Lib.
Thank you very much.
Dr. Geist, you talked about the windfall that would be created with the life plus 70. How do you recalibrate the windfall that would be created by the USMCA? More specifically, can it be recalibrated within the confines of the act?
4:40 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
It's a great question. There are really two aspects.
First, is there an implementation that would meet the requirements that we have within the act that would lessen some of the harm? When Mr. Chisick says it's about a company making a decision about whether or not to invest in a book, perhaps that's fine for any books that start getting written once we have term today, but this will capture all sorts of works that haven't entered into the public domain yet. They are now going to have that additional 20 years where they already made a decision and now get that windfall.
We ought to consider if there is the possibility of putting in some sort of registration requirement for the additional 20 years. As Ms. Gendreau noted, there are a small number of works that might have economic value. Those people will go ahead and register those for that extra 20 years, because they see value. The vast majority of other works would fall into the public domain.
Moreover, when we're thinking about broader reforms and getting into that balance, recognize that the scale has already been tipped. I think that has to have an impact on the kind of recommendations and, ultimately, reforms that we have, if one of our biggest reforms has already been decided for us.
4:40 p.m.
Whitby, Lib.
If each of you were to make one recommendation that we should consider as part of the review, what would it be?
I'll let you start.
4:40 p.m.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
The one recommendation I would make would be to make sure that digital businesses—wherever they are—that are actively making business decisions on the basis of works that are protected by copyright should become liable for some payment. Yes, if they are totally passive then they are totally passive, but I think that by now, the experience we have is that a lot of people who are claiming to be passive are not, and are therefore avoiding liability. That would be my greatest concern.
4:40 p.m.
Whitby, Lib.
Can I go over to...? No?
It's the same question. Anybody who's ready for it, go ahead.
4:40 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
Sure, I'll jump in.
I would say we need to ensure that the Copyright Act can continue to adjust to technological change. The way we best do that is by ensuring we have flexibility in fair dealing—that's the “such as”—and ensuring that fair dealing works both in the analogue and digital worlds. That means ensuring that there's an exception in digital lock anti-circumvention rules for fair dealing.
4:45 p.m.
Partner, Cassels Brock & Blackwell LLP, As an Individual
I think that introducing a provision in the Copyright Act for site blocking and de-indexing injunctions is a critical piece. I say that because so much potentially legitimate exploitation is still being diverted to offshore sites that escape the scrutiny of Canadian courts. I don't know why anybody would argue that's a good thing. Putting a balanced system in place in the Copyright Act that deals with the concerns Dr. Geist highlighted about over-blocking and freedom of expression and so on, while still making sure that Canadians can't accomplish indirectly what they can't do directly, strikes me as a very positive development in the act.
4:45 p.m.
Vice-Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
We'll put in a recommendation that really is a practitioner's problem. There are some technical fixes to the act that I think would allow for a great deal of certainty, and those may not be issues that were raised generally before this committee.
4:45 p.m.
Vice-Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
The first relates to clarifying the rights of joint authors and joint owners under the Copyright Act. Currently, under the Copyright Act, absent an agreement, what are the rights of joint owners of a copyrighted work? Can they exploit a work? Do they need the permission of another joint owner? I think that's a problem of which we're acutely aware as practitioners, and of which our client may not be.
The other is rights in commissioned works and in future works. Particularly with respect to future works, I think that oftentimes agreements will cover a future assignment. Technically, whether or not those are valid under the act is a live question. I will put those forward on behalf of IPIC.
4:45 p.m.
Liberal
4:45 p.m.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Thank you.
My apologies to the other witnesses. I'm not picking on you enough, but I'll go with Mr. Chisick.
I had some questions about the reversionary right. A Canadian artist appeared before the heritage committee to talk about his concerns with the reversionary right, and I was wondering if you could further comment on what the replacement is and what the impact of it is.
4:45 p.m.
Partner, Cassels Brock & Blackwell LLP, As an Individual
I assume you're talking about Bryan Adams—
4:45 p.m.
Partner, Cassels Brock & Blackwell LLP, As an Individual
—and his proposal to adopt an American-style termination regime.
That's one of the possible approaches. What the American-style termination regime has to commend it over the current system that we have in Canada is that at least it requires some positive act by the artist to reclaim those rights. There's a window within which the rights can be claimed. Notice needs to be given, and it allows people to order their affairs accordingly. I think that the timing of Mr. Adams' submission was off. I think that it would be ill conceived to allow for termination after a 35-year period, the way it is in the United States. I think that's too short, for a variety of reasons, including reasons related to incentives to invest, but that's one approach that could be looked at.
Another approach to be looked at is the approach that's been taken almost everywhere else in the world, which is to eliminate reversion entirely and leave it to the market to deal with those longer-term interests in copyright. I don't think it's any coincidence that in literally every other jurisdiction in the world where reversion once existed—including in the United Kingdom, where it was invented—it has either been repealed or amended so that it can be dealt with by contract during the lifetime of the author. Canada is the only remaining jurisdiction, as far as I know, where that's no longer the case. That, too, should tell us something.
4:45 p.m.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Mr. Geist, maybe you could comment on that briefly. You were talking about repealing or amending Crown copyright provisions. I was hoping that you could elaborate on the application of Crown copyright. It's something that has been talked about at committee but never really fully so. Then, talk about the impact of how we can improve things by possibly getting rid of it.
4:45 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
Sure. I'll touch on Crown copyright in just a second.
I did want to pick up on this reversion issue. It does seem to me that the U.S. is a market where there's quite a lot of investment taking place in this sector, without concern about the way their system has worked, which has given rights back to the author.
You asked earlier how individual creators handle enforcement issues, and the notion that we should take an approach that says, “You ought to handle everything. You ought to be able to negotiate every single right with large record companies or large publishers,” leaves them without much power.
If there's consistency between Professor Gendreau's comments about part of the problem being the agreement between authors and publishers as we move into the digital world and your question about what Bryan Adams is doing, it's that, in a sense, we're looking in the wrong place. Much of the problem exists between creators and the intermediaries that help facilitate the creation and bring those products to market—the publishers, the record labels and the like—where there is a significant power imbalance and these are attempts to try to remedy that.
With respect to Crown copyright, I served on the board of CanLII, the Canadian Legal Information Institute, for many years, and what we found there was that the challenge of taking legal materials—court decisions and other government documents—represented a huge problem. In fact, there were some discussions regarding that earlier today on Twitter, where people were talking specifically about the challenge that aggregators funded by lawyers across the country face in trying to ensure that the public has free and open access to the law. This represents a really significant problem. This is typified by a Crown copyright approach where the default is that the government holds it, so you have to clear the rights. You can't even try to build on and commercialize some of the works that the government may make available.
4:50 p.m.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Are there any legitimate reasons to have a Crown copyright? It seems there could be some good reasons why it should be kept.
4:50 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
My colleague Elizabeth Judge has written a really good piece that traces some of the history around this.
Initially, I think some of the concerns were to ensure that a government document could be relied upon, that it was credible and authoritative. I think that is far less of an issue today than it once was.
I also think that the kinds of possibilities we had to use government works didn't exist in the early days of this in the way that it does today. We think of the development of GPS services or other kinds of services built on open government or government data. The idea that we would continue to have a copyright provision that would restrict that seems anathema to the vision of a law that has adapted to the current technological environment.
4:50 p.m.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Let's say the government develops something of value to the government that would lose its value if it were to be subject to open provisions. Do you think there is still some legitimacy to Crown copyright in those cases?
4:50 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
We are the government. The public is funding this. One of the things that I was so excited to see from Treasury Board, I believe it is, just over the last few days was taking a new position on open-source software where the priority will be to use open-source software where available. I think it recognizes that these are public dollars, and we ought to be doing that where we can. So too with funding Creative Commons licensed local journalism, which is another example of that.
Even if there are areas where we can ask, “Can't government profit?”, copyright is the wrong place to be doing it. We shouldn't be using copyright law to stop that.
