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 / 5:10 p.m.
Laurentides—Labelle, Lib.
That's enough for this.
Mr. Chisick, you mentioned at the very beginning that you are certified to practice copyright law, specifically. Just out of curiosity, who certifies lawyers to practice copyright law?
5:10 p.m.
Partner, Cassels Brock & Blackwell LLP, As an Individual
I didn't say that I'm certified to practice copyright law. What I said was I'm certified as a specialist in copyright law. That's a designation that was given to me by the Law Society of Ontario.
5:10 p.m.
Laurentides—Labelle, Lib.
Okay. That's what I was curious about.
Do we have 10 seconds to get into...? No, we don't have 10 seconds.
Thank you.
5:10 p.m.
Central Okanagan—Similkameen—Nicola, CPC
Thank you, Mr. Chair.
It's always a mad dash to get in as many interventions as we can.
I will address this question to the Intellectual Property Institute. You support changing safe harbour provisions yet we were told by a major tech company that they simply could not operate without safe harbour. Do you think a legal framework that denies Canadian consumers access to services is acceptable?
5:10 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
Thank you for the question.
I think we recommended an assessment of whether the safe harbour provisions should operate without reference to any of the other mechanisms, such as the notice and notice regime, within the act.
I think the answer to the particular question you posed about consumers is probably no.
5:10 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
We don't want consumers to be disadvantaged in that way.
I think it's an open question: How do we ensure entities and individuals don't shelter themselves under the auspices of those safe harbour provisions in a way that doesn't reflect the steps they take or the policies they put in place with respect to policing infringement on their platforms?
5:10 p.m.
Central Okanagan—Similkameen—Nicola, CPC
Yesterday on Twitter—I didn't have the opportunity, and this is outside of your role, because I don't think you were speaking on behalf of the Intellectual Property Institute—I posted a CBC article outlining the case of someone who was suing the company that makes Fortnite for allegedly using a dance that he invented.
I put it out there and we did hear from the Canadian Dance Assembly. They wanted to see choreography of specific movements that could be copyrighted by an individual artist. You seem to say that it would be under a particular provision. Could you just clarify that a bit, so it's part of the testimony?
5:10 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
I'm happy to do that.
Let this be a lesson to those who willy-nilly engage on Twitter with members of Parliament.
Yes. Choreographic works are protected if they are original. They are protected as works under the Copyright Act. I would also note that performers' performances are protected under the Copyright Act without the need for originality. I'm not sure there's a current gap in the legislative scheme, which would mean that dance moves are not protected.
5:15 p.m.
Central Okanagan—Similkameen—Nicola, CPC
I think what the Canadian Dance Assembly was pointing out was that if someone choreographs a particular dance and posts it on YouTube, then someone else uses those moves in a performance of some sort, some credit should be due or some sort of copyright owed to the original person.
I think it would be very, very difficult to say who created a particular work of choreography or a dance. I even gave the example of martial arts.
I asked indigenous groups if it might cause huge issues for a particular community if someone were suddenly to claim copyright for a very traditional dance. There were some questions as to whether copyright would even apply to indigenous knowledge.
5:15 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
I think we need to separate the analytical question of whether something would qualify for protection under the act from the practical reality of enforcing any rights that might be afforded under the act. I think those are two very different inquiries.
I would like to just freelance a little bit here and pivot on the point that you've made. I think it ties into some of the other questions that have been put forward here today.
Speaking personally, I think there is a tendency in the copyright community for the ratchet to go only in a single direction, and for rights to continually expand. I think we have to be cognizant of the fact that all of us—whether as individuals, as consumers, as creators or as entities who disseminate or otherwise exploit copyright—simultaneously occupy multiple roles within the copyright ecosystem. We both benefit and—I hesitate to say we are the victims—bear the burden of those expanded rights.
It's not always the case that copyright is the proper mechanism for recognizing what are otherwise entirely justifiable claims.
5:15 p.m.
Central Okanagan—Similkameen—Nicola, CPC
I certainly agree with that.
Ms. Gendreau, in your presentation you argue that online platforms should be liable for infringing work on their platforms in the same way traditional broadcasters are.
Do you not acknowledge that a TV station where a producer determines everything on the air is different from a platform where users upload their content?
5:15 p.m.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
They are different in the sense that they are leading different activities. They're not programming the way broadcasters are programming.
What we're facing is precisely something different because we have, again, an industry that exists because there are works to showcase or to let go on and disseminate through its services. It is making money, and it will be obtaining the possibility of making business out of these works and maybe is not paying for that primary material.
It's like mining royalties. Mining companies have to pay royalties because they are extracting primary resources. I think we have to see that our creative industries, our creative works, are our new primary resources in a knowledge economy, and those who benefit from it have to pay for it.
5:15 p.m.
Central Okanagan—Similkameen—Nicola, CPC
Ms. Gendreau, you cannot create an equivalent between a physical asset that once it's mined is exclusively taken away versus an idea or a piece of work that can be transmitted where someone isn't less off. We've been told that if such a system would be in place, online platforms would have no choice but to seriously restrict what users can upload.
Do you feel severely restricting innovation is a reasonable outcome in this case?
5:15 p.m.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
No, I don't think it would limit innovation or dissemination. I think on the contrary it would guarantee payment to creative authors, and because creative authors would be receiving payments for the use of their works, they wouldn't be trying to sue for negligible types and silly uses that have given a very bad name to copyright enforcement.
If copyright owners knew that when their works were being used they were being remunerated, then if they saw somebody making a video with their grandchild dancing to some music, and they nevertheless receive some sort of payment, they would not sue that grandmother and make a fool of themselves.
5:15 p.m.
Central Okanagan—Similkameen—Nicola, CPC
Thank you for that.
Mr. Geist, you have strongly argued against extending statutory damages to Access Copyright. If the worst penalty they are allowed to seek is the amount of the original tariff, then won't educational institutions just ignore the tariff because the only penalty is their having to pay what they would have to pay to begin with?
5:20 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
No. First off, educational institutions are not looking to infringe anything, as I've talked about. They license more now than they ever have before. Statutory damages, by and large, are the exception rather than the rule. The way that the law typically works is that you make someone whole. You don't give them multiples beyond what they have lost.
Where we have statutory damages right now within the copyright collective system, it's part of a quid pro quo. It's used for groups like SOCAN because they have no choice but to enter into this system, and so because it's mandatory for competition-related reasons, they have that ability to get that.
Access Copyright can use the market, and as we've been talking about, it is now one of many licences that are out there. This has become so critical, as we've learned over these months, the different ways education groups license. The idea that it would specifically be entitled to massive damages strikes me as incredible market intervention that's unwarranted.
5:20 p.m.
NDP
Brian Masse NDP Windsor West, ON
Thank you, Mr. Chair.
It's good that we're talking copyright. I feel that I've been infringed in my right to have a repair bill passed. There was a voluntary agreement instead. Bill C-273 was amending the Competition Act and the Environmental Protection Act to provide aftermarket service for vehicles, for technicians, for information technology. It's an environmental thing, but also a competition issue and so forth. It is pretty germane to today, because even the United States was allowing this under their laws in terms of gaining this information. I could get a vehicle fixed in the United States at an after-service garage, but I couldn't get it done in Windsor. We spent several years getting that amended, but I see that it's been moved towards I guess the larger picture of things, which is the ability to alter and change devices.
I do want to move on a bit with regard to the Copyright Board. I know that some of the testimony today was kind of removed from that, but what was interesting about the Copyright Board coming here was that they asked for three significant changes that weren't part of Bill C-86. One of the things—and I'm interested to hear if there would be an opinion—was that they wanted a scrub of the actual act, which hadn't been done since 1985.
Are there any thoughts on the Copyright Board's presentation and the fact that they don't feel that Bill C-86 is going to solve all the problems they have? They had three major points. One of them was on that. Also, the protection of their ability to make interim decisions and not be overturned was another thing they mentioned. I don't know if there are any thoughts on that, but that's one of the things that I thought was interesting about their presentation in front of us.
Anybody...? If nobody has anything because you're happy with the way it's going to be, then it's going to be that way. It's fine.
5:20 p.m.
Partner, Cassels Brock & Blackwell LLP, As an Individual
I've expressed in another forum certain concerns about Bill C-86 that are not necessarily the same as those that were expressed by the board. I don't think Bill C-86 is perfect by any means in terms of addressing the issues with the Copyright Board, but I do think it's a good start. That's the kind of legislation that certainly should be reviewed within a relatively short time frame—probably five years is about appropriate—to make sure that it's having its intended effect.
Perhaps I should have studied the transcript of that appearance a little more closely. Do I understand correctly that the suggestion was the act itself be scrubbed and that we start afresh?
5:20 p.m.
NDP
Brian Masse NDP Windsor West, ON
That's their suggestion. It's to go through it and make it consistent. I think their concern is—
