Thank you.
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.
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 / 4:50 p.m.
Liberal
Terry Sheehan Liberal Sault Ste. Marie, ON
Thank you very much for all your testimony. It is good to have you here towards the end as well because it allows us to ask you questions about what we heard. We've been coast to coast to coast, hearing from various people with great ideas.
We heard from the Fédération nationale des communications, the FNC. They proposed the creation of a new category of copyrighted works, a journalistic work. That would provide journalists a collective administration. It would oblige Google and the Facebooks of the world to compensate journalists for their works that are put on the Internet through them. Do you have any comments about that? Also, in particular, how might it compare to article 11 of the European Union's proposed directive on copyright in the digital single market?
Michael, I'll start with you.
4:50 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
I think article 11 is a problem. I think where we've seen that approach attempted in other jurisdictions, it doesn't work. There are a couple of European jurisdictions where it was attempted. The aggregators engaged in this simply stopped linking, and the publishers ultimately found that it hurt more than it helped.
I think we need to recognize that journalists rely on copyright and fair dealing in particular just as much as so many other players. The idea of restricting in favour of journalism really runs significant risks, given how important news reporting is.
I think it's also worth noting that I look at some of the groups that have come forward to talk about this. Some of them are the same groups that have licensed their work to educational institutions in perpetuity. To give you a perfect example, I know the publisher of the Winnipeg Free Press has been one of the people who have been outspoken on this issue. The University of Alberta has a great open access site about everything they license. They have quite literally licensed every issue of the Winnipeg Free Press in perpetuity for over a hundred years. In effect, the publishers sold the rights to be used in classrooms for research purposes, for a myriad of different purposes, on an ongoing basis.
With respect, it feels a bit rich for someone on the one hand to sell the rights through a licensing system and on the other hand ask, “How come we're not getting paid these extra ways and don't we need some sort of new copyright change?”
4:55 p.m.
Liberal
4:55 p.m.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
What we've seen, of course, is the slow disappearance of the traditional media under the influence of online media.
It was said that in our last provincial elections in Quebec, 70% or even 80% of the advertising budget of the political parties went to service providers based outside of the country.
We're seeing closures of newspapers, and the media have difficulty keeping on giving us current news. We're now being presented with the idea that because the media are having some difficulty, because they're closing down, they should be receiving government subsidies to help them. We have people not buying newspapers or lacking access to traditional media, while the advertising revenue is going to outside companies that are not paying taxes here. The government is losing its tax base with that process and moreover is being asked to fund these newspapers and media because they need help to survive. Guess who's laughing all the way to the bank.
I think the idea of a right to remuneration for the use of newspaper articles is a way to address this kind of problem. It may not be technically the best way to do it, I'm sure, but I think there are ways to ensure that media, who have to pay journalists and want to get investigative journalism done in the country for our public good, are able to recoup the money and make sure that theirs is a real, living business, not one that is disappearing, such that people are being fed only by the lines they're getting on their phones.
4:55 p.m.
Liberal
Terry Sheehan Liberal Sault Ste. Marie, ON
That's very interesting.
We've talked a lot about protecting indigenous knowledge and culture through copyright. We've had a lot of testimony. I was going to read some of it, but does anybody have any suggestions concerning indigenous copyright?
This can perhaps go back to you.
4:55 p.m.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
This is a very sensitive issue and a very international issue. It is very difficult to deal with in a concrete manner because of many fundamental aboriginal issues with respect to copyright that differ from the basis of copyright as we know it. However, we can look for inspiration to our cousin countries. Australia and New Zealand have already attempted to set up systems that would help first nations in the protection of their works.
My only concern is that we must not forget that there are also contemporary native authors. I wouldn't want all native authors to feel that they are being pushed out of the current Copyright Act to go to a different kind of regime. I think there are different policy games at play here.
4:55 p.m.
NDP
Brian Masse NDP Windsor West, ON
I'm going to go back to Crown copyright.
In the United States, they don't even have it, in effect. I think people think about the academic aspect of this, but how does it affect us also with respect to film and private sector ventures?
Perhaps you can quickly weigh in. I know we only have a couple of minutes. It's more of an economic question than is given credence.
4:55 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
Trying to navigate through the thickets of whether the National Archives owns something or what form of licence a particular item might be available under poses enormous challenges for certain sectors, such as documentary filmmakers—even with legal advice.
5 p.m.
Partner, Cassels Brock & Blackwell LLP, As an Individual
It's made that much more complicated by the lack of uniformity in licensing, by the fact that in order to license certain types of works you need to figure out which department of which provincial government you need to go to to even seek a licence, let alone worry about whether your inquiry will ever get a response. It poses enormous challenges, which I think may be associated with vesting copyright in entities that aren't really that invested in the idea of managing it.
5 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
To go even further, the Supreme Court of Canada will hear a case in February, Keatley Surveying Inc. v. Teranet Inc.—and for disclosure, I've been assisting one of the parties involved—which deals with Ontario land registry records. In fact, we have governments making the argument that the mere submission of surveys to the government as part of that process renders those cases of Crown copyright.
Not only are we not moving away from lessening Crown copyright. We have arguments before the court wherein governments are trying to argue that private sector-created works become part of Crown copyright when they are submitted subject to a regulation.
5 p.m.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
I would think also that there's already in the Canadian system a licence scheme that allows us to reproduce statutes with the government's permission—without seeking a specific permission. However, this is a very tiny aspect of the Crown copyright.
I think that lots of countries can live without the equivalent of a Crown copyright. This is a system where they have reinforced Crown copyright in the U.K. I don't think we should follow that train. I think it makes sense, because they are government works, that they should belong to the public, because the government represents the public. I mean, the public is the fictional author of these works. I think it also creates problems with not only statutes, but also court documents and judgments. There are interesting cases of judges who copy the notes of their lawyers. There's been a case on that, which was really interesting.
5 p.m.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
Despite all of that, I don't think we would be losing much by abrogating many issues of Crown copyright.
5 p.m.
Voices
Oh, oh!
5 p.m.
Liberal
The Chair Liberal Dan Ruimy
Thank you.
We still have time, so we're going to do another round. I rarely ask questions, but I would like a question put on the floor here.
In regard to the five-year legislative review, we've heard different thoughts. Very quickly, I want to get your thoughts on that. Should it be a five-year legislative review? Should it be something else?
5 p.m.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
Of course, Parliament can do anything and decide not to have five-year review next time.
I've been thinking about that, and I think that in this instance a five-year review is important. In my eyes, the clock has gone so far on the side of giving rights that it's not even Swiss cheese anymore. It's Canadian copyright cheese. It's full of holes everywhere.
We've had a bit of an example: If you don't use the private copying exception, then perhaps we can use the incidental copying exception. I mean, it's just that if one doesn't work, let's try another.
5 p.m.
Full Professor, Faculty of Law, Université de Montréal, As an Individual
I think that for this kind of situation, a review now is something that we would need.
Do you want to do this exercise every five years? I'm not so sure.