Industry committee  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.

Industry committee  I don't think, sitting here right now—maybe I'll come up with something more intelligent when I'm done—that anything particularly turns on 50 versus 70 in my view.

Industry committee  They are. That's right. They are, so my view is that the exception needs to be adjusted, not repealed but adjusted, to make very clear that any service that plays an active role in the communication of works or other subject matter that other people store within the digital memory doesn't qualify for the exception.

Industry committee  Okay.

Industry committee  I would agree with that. I mentioned reversionary rights in my presentation, and I don't want to be understood as necessarily suggesting that the way to deal with reversionary rights is to eliminate reversion from the copyright altogether. That's one possible solution, maybe a good solution.

Industry committee  If I may, I agree with Professor Geist that the most important aspect of the fair dealing analysis by far is fairness, but there's a reason that Canada is one of the vast majority of countries in the world that does maintain a fair dealing system. There are really only, last I checked, three or four jurisdictions in the world—the U.S., obviously, Israel and the Philippines—that have a fair use system.

Industry committee  Obviously, as a lawyer in private practice, I have to be careful about the examples I give, because many of them come from the real lives of my clients and the companies they deal with from day to day. What I can tell you is that it has been my experience that certain services—and I gave a couple of examples, both services that are engaged in cloud storage with a twist, helping users to organize their cloud lockers in a way that facilitates quicker access to various types of content and potentially by others than just the locker owner, as well as services that basically operate as content aggregators by a different name—are very quick to try to rely on the hosting exception or the ISP exception, the communications exception, as currently worded to say, “Sure, somebody else might have to pay royalties, but we don't have to pay royalties because our use is exempt.

Industry committee  The problem is this. The Copyright Board conducted an overall valuation of all of the copies used by radio broadcasters. It determined that if it were forced to allocate value among the different types of copies, some value would go to backup copies, some value would go to main automation system copies and so on and so forth, until you get to 100%.

Industry committee  I'm sorry. I didn't understand your question.

Industry committee  I understand the question. This requires a review of 20 years of Copyright Board radio broadcasting tariffs, which obviously we don't have time for here, but the point of the matter is that, until 2016, radio broadcasters paid a certain amount for all of the copies they made. It was only in 2016, after the 2012 amendments had come into force, that the Copyright Board felt that it had to go through the exercise of slicing and dicing those copies and determining what value was allocable to which.

Industry committee  I'm happy to be here. Thank you for inviting me back. My name is Casey Chisick. I'm a partner at Cassels Brock in Toronto. I'm certified as a specialist in copyright law and I've been practising and teaching in that area for almost 20 years. That includes many appearances before the Copyright Board and in judicial reviews of decisions of the board, including five appeals to the Supreme Court of Canada.