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Date: August 10, 2009 11:00 a.m.
Windsor Foundation Global Classroom
Halifax, Nova Scotia
Principals: See participant list
Industry Minister Tony Clement hosts a round table on copyright
Download: Audio Recording (MP3, 40.8 MB)
Colette Downie: Good morning, everyone. My name is Colette Downie. I'm the Director General of Marketplace Framework's Policy Branch at Industry Canada, and I'm your moderator today. There are a number of you obviously that have been invited to share your views as part of the consultation process and we're all looking forward to hearing from you. We have translation services available at the back. You'll see them at the back, and please feel free to participate in the official language of your choice.
To ensure that we have a high-quality translation, we ask that you speak clearly and slowly if possible and into the mic. But of course we're looking for as free-flowing a discussion as possible. But also to ensure that our time here this morning, and we have a strict 90 minutes, is productive and because we want to hear from all of you, I ask that you keep your remarks brief and focused on the issues that are of particular importance to you. We'll be using translation services and the mics to record the discussion this morning and, as consistent with the invitation that you all received, it will be recorded and posted in both official languages on the Copyright Consultation Website as an audio file.
Photos taken this morning may also be posted on the Website and for all of these reasons I ask that you introduce yourself before speaking so that particularly it's clear from the audio who is making what points. So as I said, we have 90 minutes this morning. I may be intervening to ask that you wrap up if time is ticking away and it looks like we're running out of time. And now over to you, Minister.
Hon. Tony Clement: Thanks, Colette. Good morning, everyone. Thank you for being here in sunny Halifax. We call it liquid sunshine where I come from, so we'll make the most of this of course and this is week three of nationwide consultations that my Cabinet colleague James Moore and I are doing together and we've been speaking to Canadians across the country on how we modernize ourselves on the copyright legislation. We've done a couple together. James and I were in Vancouver together and we were in Gatineau together and I've done a separate one in Calgary. This is another one that I'm doing and I'll be doing a town hall in Toronto in the next couple of weeks or so.
So we are getting about, which is the way it should be, and of course we're here at historic Pier 21. I can't continue without at least mentioning what a symbol this is for those of us who are immigrants, including myself, to have this kind of facility now on its way to becoming a national, a truly national museum which is great, and hopefully it'll be inspirational to us as we have a new start when it comes to our copyright legislation as well. So far, the forums have been great.
Voice of Translator: I can also say that over the course of the years we have made some amendments to the Copyright Act legislation. However, because of the rapid evolution of technologies, we have to redo this exercise in order to adapt it to today's needs while taking into account the needs of the future. This is the topic of our discussion here today, a discussion which we hope to have with you.
Hon. Tony Clement: We are looking for your, as Colette mentioned, your best advice and we really come at this with very little in terms of preconceptions or in our point of view we really want to get to a better place but at the same time keep what is working now and of course modernize with a view to making sure that whatever we come up with will be able to stand the test of time. I guess if I have one preconception or prejudgment, it's that we don't want to be going at this year after year and decade after decade, we want something that will be forward-thinking enough to the best of our ability to anticipate from a general-principled perspective what we have to reflect and grapple with in terms of technological change for the future as well as the present.
So we do have a little bit of work ahead of us. We have launched a new Website for those unable to take part in the town hall meetings, so I'm going to cite that Website right now in English at least, copyright.econsultation.ca. And we've started to get some pretty good… we're getting about 30 to 35 submissions a day which includes the long weekend which, I don't know, there are lots of Canadians with lots of time on their hands I guess. But with the rainy long weekends we've had, maybe that explains it all. So as of August 5th we've had about 725 formal submissions and that's only week three. I'm told that in 2001 the consultation only had 700 submissions in total. So in three weeks we've already exceeded that number. And what else can I tell you? We've got the online forum which has had about… we've topped out at about 675 participants in that at any one time, which is great, and we're also live on Twitter, there are lots of tweets going on and that gives us some instant feedback as well.
So I think we're right in the middle of it and I don't want to take any more time because what I want to do is I'm going to give Paul fair notice. We're going to go sort of clockwise around this way and start with Paul, go around the room. If we have time at the end, what I always invite is a little bit of a free-for-all just to allow people because you do have some formal presentations on behalf of your associations that I know you want to make, but it gives us a chance to maybe comment on one another's presentations a little bit at the end if we have time for that. So without further ado, Paul Sharpe will start us off.
Paul Sharpe: My name is Paul Sharpe. I am Director of Freelance Services/Membership Development for the American Federation of Musicians of the United States and Canada. I wish to thank the Minister for the opportunity to participate in this extremely important and certainly much-needed process. Before going further, a couple of things. As Minister Clement has noted, I'll certainly be very brief because we have a great number of presenters here tonight and so… or this afternoon and so I'll be very brief.
I did however want to, mostly for the benefit of those that will participate by listening to a download of the blog or possibly downloading the transcription of course of these proceedings, I wanted to give a brief background first of all before making comments on the copyright in regards to AF of M. So I'd like to present a brief overview of the AF of M simply as this: The AF of M was established in 1896 and with a current membership of over 90,000 is the largest organization in the world representing the interests of professional musicians.
Musicians from Montreal were the first Canadians to join the Federation in 1897. Toronto musicians later were granted a charter in 1901. Today, an extremely diverse Canadian membership of nearly 17,000 is served by 27 affiliated Canadian locals whose leadership is elected directly by its membership. The AFM Vice President from Canada elected by Canadian leadership from the locals, and only Canadians, oversee the full-time operation of AFM Canada located in Toronto, Ontario.
I come to Halifax this morning after an extremely enjoyable weekend spent in attendance at the Dutch Mason Blues Festival held this past weekend in Truro, Nova Scotia, which allowed me to be here today. I was joined there by the leadership of AFM Local 571 here in Halifax which represents approximately 750 musicians in the Province.
Of course, copyright, as you can imagine, and the reform and the ongoing consultation process were slightly hot topics of discussion, but nothing, I repeat nothing could detract from the real reason we and thousands of music fans over the weekend were there. And that of course was simply for the music, and if we stand for anything, it's simply that. The music created and performed by an exceptionally talented and gifted diverse group of Canadians and North Americans, many starting off their careers who are faced with a different set of problems in regards to shifting technologies and the way that their music will be used and distributed, others that are veterans of many, many years including 40 years together of Downchild Blues Band of course from Ontario celebrating their fortieth anniversary together this year, it affects them quite differently but overall it affects all creators in all types of medium.
Now back to the AF of M briefly. Whether it be agreements negotiated under the terms of federal status of the Artists Act or through voluntary recognition by our members, employers or engages, AFM has stood by the simple basic principle that when performers go to work like any other worker in Canadian society, for any purpose, they must be fairly compensated for those efforts. Further, the intellectual property created through those efforts must be fully protected from unauthorized reuse and/or new use of any type. Just because technological advances suddenly make infringement simple and extremely widespread, this should not cloud the fundamental principles behind copyright, nor should it strip copyright holders of their rights.
So in regards to copyright reform itself, what are some things that AF of M Canada is suggesting could be done to foster innovation and creativity, best foster competition and investment and best position Canada as a leader in the global digital economy. It is AFM Canada's position that without a viable and sustainable business structure that providers creators as well as makers with fair and equitable financial compensation and protection for their rights, creativity and innovation could be stifled.
We suggest that we start with a full implementation of the WIPO Treaties, WPT as well as WPPT. As we're all aware, Canada signed on to these treaties some 12 years ago, in 1997, yet has failed to implement them. This must be done and it must be done as expeditiously as possible.
As a member collective of the Neighboring Rights Collective of Canada, NRCC, we fully support the expansion of programs that would provide additional sources of revenue to creators and performers. Further, the private copying levy should be expanded and enhanced. Many of our members participate in audio recording sessions as side musicians and/or featured artists. To date, this regime has been extremely beneficial to these performers. And in mention to the younger performers that I saw in Truro over this weekend, it may be crucial to them making a decision to stay in the music business or find some other occupation where they can actually support themselves and pay their bills.
So we are very much in favor of expanding the current levy to include hard drives, flash drives, MP3 or 4 players, iPhones and additional storage or playback devices would be a very logical step in our opinion. In regards to ISP liability, which is of course a hot topic, we support the notice and takedown approach. On the topic of new performance rights and extended licensing, we feel existing tariffs fall short of properly compensating performers for their performance as presently described in the WPPT.
An example of this is the video game industry where Canada ranks third in the world behind the U.S. and Great Britain as the largest producer of video games with over 250 companies producing games. We implore the government to consult with the certified representatives of these musicians under federal status of the artist, which would be AFM Canada, to establish appropriate tariffs and a licensing regime to equitably recompense those performers for their performances. And finally, AMF suggests inclusion of language that extends all aspects of copyright to both existing and future technologies, methods of delivery or distribution, transmission, storage and reproduction.
I will close by summing up a common thought that both the officers and staff have with their member musicians in Canada. We're all extremely excited about the possibilities that all these new technologies bring us. Certainly AF of M Canada is very much aware of those possibilities and wants to encourage the government to embrace these in positive ways but in a fair and equitable way both of course to creators as well as users and we certainly do believe and we're optimistic that a made-in-Canada solution can be found. For our members, AFM Canada is that solution for 17,000 musicians who now hold their own ability to vote on items separately and autonomously to represent Canadian musicians. With that, I again thank you very much and we encourage further consultations which is extremely healthy.
Hon. Tony Clement: Thanks, Paul. I appreciate your comments. Now we'll move directly to Wendy Noss from the Canadian Motion Picture Distributors Association.
Wendy Noss: Good morning. My name is Wendy Noss and I am the Executive Director of the Canadian Motion Picture Distributors Association. The CMPDA serves as the voice of the six major international producers and distributors of movies, home entertainment and television programming in Canada. In other words, the folks who make a lot of the movies you and your kids are enjoying this very rainy Summer and who are significant contributors to the over $1.5 billion of foreign production volume in Canada last year contributing to the total of over $5 billion in production volume in this country, in turn generating over 130,000 full-time equivalent jobs.
These numbers are only in respect of production, but the economic benefits of our industry go well beyond production alone. Numerous related industries benefit through film and television distribution, the thousands of people employed in movie theaters, retail sales, manufacturing, broadcasting, film festivals and on and on.
I recognize that we have only a short time to make an introductory statement. I'll try to keep to the time limit called for. But please do not misinterpret the brevity of the comments as in any way being reflective of the significance of this issue. The critical need to move forward now with copyright legislation that's fully robustly in line with the international consensus of our major trading partners implements the WIPO Treaties and ensures that ISPs play a meaningful role in discouraging massive online infringement is vital. It's vital to creators, to the continued existence of a healthy film and television industry in this country and lastly to consumers.
I want to applaud both you and the Minister of Heritage, your staff and officials for devoting so much of your time this Summer to concentrate on this important issue, and know that in our industry we share your goal of Canada developing into a leader in the digital marketplace where one day our reputation might be for something other than it is today, where one day we might be known for thriving, legitimate, innovative online markets.
As Canada seeks to build out its broadband infrastructure, it must have a legal infrastructure that reflects the reality of copyright in the digital age. As you move forward with legislation following the consultations, we hope that you can look beyond the claims of those who portray copyright reform as a zero-sum game with creators versus consumers. That unfortunately has led to so many myths and misconceptions. The reality and experience around the world demonstrates this is simply not the case for creators and consumers of filmed entertainment.
If there is one benefit to Canada being so behind in the development of a legal framework than other countries like the U.K., France, the rest of the EU, the United States, Australia and on, it is that we can see what has happened in those countries where WIPO-compliant copyright laws have built upon common-sense principles to provide a framework that is designed to reduce digital piracy, promote investment and economic growth in cultural products, provide clear, predictable and fair rules that support creativity and innovation and a high level of copyright protection to stimulate intellectual creation and dissemination of cultural products.
When you hear that for Canada to implement similar legislation means the sky will fall, means content will be locked up, means consumers will lose, I would suggest you look at what has actually happened in those countries for consumers. Go beyond the anecdotes and look at the markets. Sites that facilitate massive illicit infringement of the property rights of others have been shut down and a dizzying array of innovative legal online offerings have developed. Significantly, consumers in those countries, consumers in those markets have far more legitimate choice in accessing films and television programs online when they want, on the device they want, in the format they want.
These sites and services cater to every manner of consumer choice, including ad-supported viewing, rental viewing, streaming, download to own, subscription and they do so at a variety of price points depending on the kind of access or copying capability that the consumer desires. I'm not just talking about iTunes, but Amazon, Cinema Now, Blockbuster, Net Flicks, Juiced, Hulu, Crackle and so many more. Last year in the United Kingdom even the supermarket chain Tesco added our studio's film and television series to their download-to-own service. These new and innovative business models all rely on technology, the very technical protection measures so fundamental to the WIPO Treaties to protect against digital piracy and at the same time allow creators to reach as many consumers as possible when, where and how they want.
And finally, as you move forward to legislation, I hope that you and Minister Moore will look further to jurisdictions where governments that have recognized the future of the digital economy have also concluded that they cannot and should not turn a blind eye to the reality of online piracy. Promoting ISPs to work affirmatively with rights holders to try and change behavior is central to moving from illicit downloading to legitimate alternatives.
We have worked hard to build a thriving production industry across this country ranging from the site we're in now, Halifax, where Titanic, one of the most successful films of all time was shot by one of our members, to the Lake of Bays, the location used for the acclaimed Canadian-produced Away From Her, to Coquitlam, British Columbia, the site of the award-winning Juno, and the ability of this industry to remain vibrant, to remain healthy, to continue to deliver content to consumers in new and innovative ways are both dependent upon a copyright framework that discourages mass piracy and encourages legitimate commerce – more jobs, more entertainment choices and more opportunities for the creative professions. Thank you.
Hon. Tony Clement: Thank you very much and thank you for slipping in a reference to my own constituency in Lake of Bays there. That was… I encourage everyone to at least mention Parry Sound-Muskoka at least once.
Wendy Noss: You'll notice the Coquitlam one as well.
Hon. Tony Clement: Yes, I noticed that for James, exactly. That's perfect.
Voice of Translator: Now Annie Morin who has a few words.
Annie Morin: Yes, good morning. My name is Annie Morin. I'm the President of the Board of Directors of the Canadian Private Copying Collective or CPCC…
Voice of Translator: …an agency responsible for collecting and distributing private copying royalties to songwriters, performers, music publishers and record companies. The CPCC also represents the interests of these rights holders in respect of issues related to private copying. The Collective appreciates the opportunity to participate in this round table to share our views on the need to amend the Copyright Act. The private copying levy, which has been an important part of the Copyright Act for over a decade, provides an effective framework for individuals to legally make copies of music for their personal use and for music creators to receive fair compensation for their work.
The royalty for private copying is not a tax, it is a revenue which doesn't go to the government and which does not serve to finance public services. It's a small amount which is charged to the consumer in exchange for a product, a private copy of music which has a real value. If these copies had no value for the consumer, then they wouldn't make any copies. And so from these fees goes to those who have created the music. In this sense, the private copying levy is really a mechanism whereby music creators are able to receive some compensation for this unstoppable use of their work.
Thanks to a very small amount, relatively speaking – we're talking about private copying – which is imposed on blank CDs or blank cassettes, the revenue which comes from this support is distributed to 100,000 music creators. And so we're not talking about two or three important music stars who are getting this amount, we are talking about some 100,000 musicians who get money for the private copies that are made of their music.
Most music creators using a few thousand dollar or less each year, it is still crucial for the great majority of them allowing them to continue to create music. The problem we currently face with the Copyright Act is a strange-powered (ph) one. The private copying levy does not cover all copies. Private copies made onto digital audio recorders, DARs, are not covered by the private copying provision of the Act. Since most private copying now done in Canada is done with DARs which include MP3 players such as the iPod, this means music creator receive no compensation at all for this popular use of their work. In fact, of the 1.5 billion copies of song that are made each years, right holders receive nothing for the 70% of these copies that are made onto DARs.
Unless the Act is changed, this figure will only increase as fewer and fewers copies are made onto CDs and audio cassettes every year. Furthermore, as CDs and audio cassettes become obsolete, the revenue that right holder currently receive will eventually disappear. The only way to fix this problem is by amending the Copyright Act to include the technologies that people now use for the private copying of music.
A poll was carried out in 2006 by a firm. The services were hired by the Private Copy Association and that showed that 60% of people firmly believe that music creators should in fact receive some compensation when private copies are made of their music. So there is a majority which believes that they should be able to make all the copies they want without the creators receiving anything. But most of those people in fact were in favor, so there is a minority who believes that they should be able to copy anything.
…amend the Copyright Act will recognize and protect the rights of artists to be fairly compensated for the use of their work. The private copying levy needs to be updated, not eliminated as some have suggested. The private copying levy allows Canadian to make the copies they want while providing compensation to the right holders whose music is being used. By providing these revenues to artists, songwriters, record companies and music publishers, the private copying levy is effectively ensuring that all right holders receive at least some compensation for their work. The private copying levy strikes a balance between Canadians' desire to copy music and the right of copyright holders to compensation. To maintain this balance, the private copying levy must be extended to permit the application of the levy to digital audio recorders. This is a fair solution for both right holders and consumers.
Once again, thank you for inviting us to this round table and allowing us to exchange ideas with other colleagues around the table. Thank you once again.
Colette Downie: Thank you, Annie, for your contribution.
Hon. Tony Clement: Ian McKay of the Neighboring Rights Collective. Thank you.
Ian McKay: My name is Ian McKay. I'm President of the NRCC, and the NRCC for the people who don't know is a not-for-profit organization that through its members represents tens of thousands of music creators, artists, record companies for the public performance and communication of their music through collective licensing. And artists/creators of music are relying on these types of revenue streams more and more as other sources of income like CD sales decline. These revenues have become an essential part of the compensation for artists.
It's been spoken that copyright law is about encouraging innovation and new business models, and I believe that organizations like the NRCC exemplify some of these new business models. We're making large investments in systems so that we can track hundreds of thousands of microtransactions and make sure that the money gets back to the creators at the lowest cost possible.
So I as well wanted to thank the Ministers for the chance to participate in this. We will be submitting some written submissions, so I'll just touch on a few highlights here. There's lots of talk about balance in copyright and it sometimes seems to be unclear what is meant by balance. As Wendy suggested, copyright is often presented as a zero-sum same where giving protection to creators takes away from consumers, and I believe that that's a fundamentally wrong way to look at it. Copyright is there to encourage creators to create and disseminate their work because they know that they're going to be protected and compensated, and this benefits everyone. This benefits consumers.
Other people have referred to… sometimes compensating creators is referred to as a tax, and we seem to have developing a generation of Canadians that believe that they've got the right to content for free. Well, I would like my cable TV for free, I'd like to not have to pay for my restaurant meal, but all of these would go out of business if that was what happened. There was a contributor, I think it was in the Vancouver round table, who said that copyright law must be reasonable and people must see it to be reasonable or people would evade it like with tax law, if people don't see that as reasonable they'll evade paying their taxes.
Well, again I think this is fundamentally wrong. Legislation is not about popularity. Legislation is not about what people necessarily want, it's about setting frameworks for enabling society to work. And I think that's really important. Internationally, I'd echo everybody else's comments in terms of it's imperative that we're on a level playing field with the rest of the world and that the WIPO Treaties are fully implemented here.
In terms of a couple of specific comments related to our position at the NRCC, the Copyright Board is a very important organization for us obviously. As collective licensing becomes a more and more important component of compensating creators, we need a robust and well-resourced Copyright Board. Once again, if our aim is to be innovative, we need faster processes.
Currently, it can take several years from the start of a tariff application to the rendering of a decision, and the problem with that is that the information used for a tariff application can be way out of date by the time of the hearing and by the time of a decision, and as one example of that in the area of Webcasting and streaming, the business models and the technology are moving so fast that if you have a process that takes three to five years to get a tariff on that, it's out of date and it's not innovative. So we would be looking for a strong commitment from the government to investment in the Copyright Board so that the Copyright Board can ensure timely innovation.
And one other issue I wanted to highlight that is specific to us is that in Section 68.1A of the Copyright Act there is what we would refer to as the $1.25-million exemption for commercial radio. As you may know, the rights of performers to compensation for the performance and communication of their work only dates back to 1997. Songwriters have enjoyed these rights for many decades but the performers it's much more recent.
In the 1997 legislation, which introduced performance rights, it also made them worth less by saying that commercial radio stations only have to pay $100 in royalties on the first $1.25 million of revenues. This exemption does not apply to songwriters, so it's arguably unfair as between different creators of the same work. It seems that it was meant as a transitional provision and it was certainly enacted before the massive consolidation of the commercial radio that we've seen in the last 10 years, years in which commercial radio has made record profits and years in which we've also seen a massive decline in recorded music sales.
So it's our submission that that exemption, the $1.25-million exemption, unfairly subsidizes commercial radio and gives them a free ride at the expense of the artists and makers. And just to give an idea of what it means in concrete terms, we estimate that this $1.25-million exemption has cost performers and makers almost $60 million in lost royalties since 2003. So it is our submission that this exemption should be removed from the Copyright Act to put performers and makers on a level playing field with songwriters and music publishers. Thank you.
Hon. Tony Clement: Thank you very much, Ian. I appreciate that. Moving on to Paul Taylor, the International Alliance of Theatrical State (ph) Employees.
Paul Taylor: Thank you. My name is Paul Taylor and I am an international representative for the International Alliance of Theatrical Stage Employees…
Hon. Tony Clement: Stage employees. Sorry about that.
Paul Taylor: …Stage employees, moving picture technicians, artists and allied crafts of the United States, its territories, and Canada. IATSE is one of our abbreviations. We're also commonly referred to as the IATSE or the IA. The IATSE was founded in 1893, 1898 in Canada and now has nearly 120,000 members, 16,000 of whom are in Canada, making it the largest trade union in the entertainment industry. The IATSE represents workers in a number of crafts with the majority employed in motion picture and television production. Our members are integral to the production, distribution and exhibition of motion pictures and television.
We represent workers, not actors, writers, producers or directors. We represent working men and women who earn their livelihood in the motion picture and television industry. Our members include men and women who work on big-budgeted foreign-service productions from the United States such as X-Men in Vancouver and Mummy 3 in Montreal, as well as on domestic television and motion picture productions such as Trailer Park Boys in Halifax and Corner Gas in Regina.
In the debate regarding copyright reform, we often hear rhetoric about the corporations, the influential music software and Hollywood lobbies or we hear about the interests of creators, producers, distributors, publishers, performers, artists and consumers, but rarely do we hear reference to the interests of our members, the working men and women whose livelihoods are put at risk by digital piracy and unauthorized, unpaid-for file sharing.
Besides the famous actors and actresses, the number of individuals employed on the production of a given motion picture may be anywhere from 200 to 1,000 employees. They are not in front of the camera but supply the absolutely necessary labor to make movies.
Our members in the U.S. depend on residual payments to fund their health and retirement benefits, piracy, whether from DVDs or illegal downloads, is costing our members literally hundreds of millions of dollars in benefit contributions. The impact to our Canadian membership is seen in the threat of piracy to the overall health of the industry. For our members, there is no job security. They depend on a healthy industry to find enough employment to make ends meet. When the industry suffers because of piracy, that is when movies do not get made because of piracy, our members suffer because they find themselves out of work.
In 2005 alone, piracy cost our industry $6 billion. A recent study revealed that in 2005 piracy cost the U.S. movie industry more than 141,000 jobs and $5.5 billion in annual lost wages. The IATSE rejects the notions that piracy is a victimless crime or that file sharing is a reality that will not go away. We believe that it is theft and we stand with the movie and music industries in support of strong new legislation to combat digital piracy. In particular, we support legislation that would conform with the WIPO Internet Treaties and ratify these treaties, including implementation of the protection of TPMs.
Any new legislation must also contain a strong legal framework governing the responsibility and liability of online service providers that ensures they play a role in preventing copyright infringement, including providing rights holders with an expeditious and effective means to stop the widespread dissemination of infringing material.
We also believe that the notice and notice system is inadequate. We strongly disagree with those who say that this system has been used successfully. And finally, we support legislation that would contain notice and notice… sorry, notice and takedown provisions to enable rights holders to have an expeditious and effective means to stop widescale infringement online. On behalf of the IATSE, thank you for this opportunity.
Hon. Tony Clement: Thank you, Paul. Sorry about the misnomer there at the beginning.
Paul Taylor: That's all right.
Hon. Tony Clement: I think it's… is it Dan? You're next there. Nimbus Publishing.
Dan Soucoup: Hi. My name is Dan Soucoup. I'm with Nimbus Publishing, I'm the Manager. We're the largest book publisher in Atlantic Canada. There are about 25 professional book publishers in Atlantic Canada and perhaps anther 200 across Canada. We represent over 400 active authors in Atlantic Canada with another 3,000 authors actively writing in the region. As we move, and we are moving into digital platforms for delivering content, we may be one of the last areas that is moving but we're moving quite strongly into this area at the moment. We, the book publishers of Atlantic Canada, and throughout Canada are looking for a fair copyright regime that will support a new business model that we're currently developing and it will allow us to continue to produce content. So that's really all I have to say. I just think that we're looking for a fair regime going forward. Thank you.
Hon. Tony Clement: Thank you very much, Dan. I appreciate that. Is Gerald here or… I think, Mr. Keenan, you're up next. Thank you.
Brad Keenan: My name is Brad Keenan. I'm here on behalf of ACTRA which is the Alliance of Canadian Cinema, Television and Radio Artists. ACTRA is also a not-for-profit organization. Our 21,000 members across Canada are English-speaking artists whose performances cross all platforms – film, television, sound recordings, radio and digital media. Our leadership at ACTRA is also membership-driven, made exclusively from members on our Executive Board and National Council that are Canadian performers.
So with that said, we just want to assure you that we consult with our members who are working artists on a regular basis. They are telling us that they want an effective and balanced Copyright Act that allows them to get paid when they choose to, or alternatively, have recourse against individuals that think our members should work for free.
So many a times I've been asked and our members have been asked why is copyright reform significant to ACTRA, and the primary reason is because it's an opportunity to ensure that performers are fairly paid for their work as audio and audio visual artists and they have rights to protect the integrity of their work and image just like performers in most of Canada's trading partners such as the European Union. We want the work of our members to be consumed by the public in every corner of the world and our members want their work to be consumed on multiple platforms, but especially in these economic times, like you and me, our members can't afford to work for free unless they choose to do so.
Having said that, Canada needs fair copyright laws that balance the interests of Canadian consumers with the right of Canadian creators and makers in their creative works. In an increasingly digital world, effective copyright law will make sure artists' rights are not just protected but strengthened.
Since we'll also be making a written submission, I'll briefly outline four areas that ACTRA believes copyright law should be reformed to start achieving this balance. First of all, as many of my friends have already said earlier today, we must implement the WIPO Performances and Phonograph Treaty and the WIPO Copyright Treaty. There is no good reason for Canada's conspicuous failure to modernize our copyright law in keeping with international norms, something we signaled we would do by signing the WIPO Internet Treaties back in 1997.
In implementing the WIPO Treaties, Canadian copyright law must provide performers a full range of economic and moral rights in sound recordings. In addition, economic and moral rights for performers in audio visual works must be established at WIPO and in Canadian copyright legislation. It does not make any sense that performers in audio visual works have fewer rights than their counterparts in sound recordings. Having rights for AV performers is essential to fostering economic, viable creative industries. Many European countries already have rights for AV performers. ACTRA does not seek any double payment for performers. Where the use is covered by a collective agreement, that agreement should prevail. Where use is new, performers would have the right either to negotiate fees or seek royalties through the Copyright Board.
Copyright law helps performers and other artists by fostering respect for the value of their creations. This is true for every performer, whether he or she is an international artist or just starting out. Without protections for performers and creators, we risk much more than further harming our international reputation with our trading partners, we risk damaging our arts and culture industry at large. Starving artists can only produce work for so long; at some point, the bills need to get paid.
Second of all, as you have heard from my colleagues at the CPCC and the AFM, the private copying regime is essential to the livelihood and work of creators. This model is an excellent framework for how all creators could get paid for their works. We urge you to update and expand the private copying regime commensurately so it will apply to all technologies that are ordinarily used by Canadians for private copying so that creators are fairly compensated. Blank CDs, mini discs and cassettes are becoming obsolete because they are no longer the common method for copying music. Hence, less money is already not making its way to the creators.
Again, we stress that creators want their work to be consumed and copied onto various platforms, they just want to be fairly compensated along the way. We must build on existing royalty systems so that income flows to artists regardless of how digital media develop. Third, we need strong penalties for those who facilitate, induce and encourage online copyright infringement against the will of creators who do not want to work for free. While copyright infringement done for private purposes harms performers, ACTRA believes the government should concentrate on copyright reforms that facilitate effective a legal framework that produces works that consumers can access and creators can get paid for. An effective legal framework will drive innovation which will drive opportunities for our members to work.
Finally, we need effective complaint-based mechanisms for rights holders who object to their work being made available online without their authorization. However, we believe it is not the job of the ISPs to determine the legality of material being transmitted through their networks. Somehow there's a misunderstanding that copyright law just protects big business. From ACTRA's perspective, a member-driven organization, we want to make sure performers have a share in the economic value of their work. If we value the significant contributions of Canadian arts and culture in this country, we need to support laws which protect artists' works.
ACTRA doesn't believe we need to adopt a U.S.-style approach to copyright, but rather we should look to European models premised on supporting arts and culture in developing a made-in-Canada copyright law. Canada's current copyright law is older than Napster which arguably singlehandedly revolutionalized the digital media world. It needs to be modernized and balanced for the sake of both artists and consumers. On behalf of the members of ACTRA, thank you, Minister Clement, for your time along with the government staff here today. Thank you.
Hon. Tony Clement: Thank you. I appreciate your comments. That's very helpful. Thank you. Now I'm going to move to the other side of the room. I gather… oh, Barry, yes, yes. Barry.
Barry Sookman: I'm Barry Sookman and a partner with the law firm of McCarthy Tetrault. I'm also an Adjunct Professor of Copyright at Osgoode. I've been studying and writing about digital issues and copyright for over 20 years including most recently on vacation at my cottage which is about an hour drive from your riding, Minister.
Hon. Tony Clement: There we go.
Barry Sookman: I've acted in the course of these 20 years for users, intermediaries and rights holders but the views I'm expressing here today are my own views after considerable study. Minister, we're at a crossroads when it comes to copyright. We need to decide up front what our goals are for the cultural industries and develop policies to achieve these goals. We can support them with effective policies and legal frameworks or let them wither and die by a thousand cuts. In my view, we should follow the lead of the U.K. which aims to be a global center for the creative industries as part of its digital written initiative.
To achieve this, the U.K. government set a specific goal of reducing piracy by 70 to 80%. It proposed workable policies to achieve those goals. We should establish similar goals for a digital Canada copyright framework. As requested, Minister, I'm going to give you my best advice as to how to achieve this.
Hon. Tony Clement: I appreciate that.
Barry Sookman: I think we need to implement a notice and notice system backed up either by legislation or by agreement between ISPs and rights holders, a nuanced graduated response process similar to what the U.K. and New Zealand are implementing. The U.K. determined that 66% of illegal downloading would stop with a notice and notice regime backed up by potential sanctions. It calculated that implementing a graduated response system would increase industry and tax revenues by hundreds of millions of pounds.
Opponents to graduated response object that this system is draconian. However, the proposals the U.K. and New Zealand are finalizing are nothing of the sort and have been misrepresented as being nothing but a draconian three-strike system. They provide for hearings and flexible remedies which would not necessarily involve any termination of user access to the Internet.
We should also implement a notice and takedown system that fully respects due process considerations. Notice and takedown is very effective in dealing with infringements on systems being hosted by service providers. It's complementary to the notice and notice regime. I can vouch for notice and takedown from considerable experience with rights holders who've had problems and I can tell you, Minister, that when they have a problem they are delighted that the problem occurs on a U.S. server and not on a Canadian one because they have remedies.
Opponents claim that notice and takedown deprives content posters of due process. But what are they comparing notice and takedown against? We are living with notice and takedown here today because ISPs who do not remove infringing content when they become aware of it may be liable for infringement anyway. The process is just not as formalized as it is in other countries. A formalized notice and takedown regime would actually protect content posters better by spelling out the specific legal framework that would apply. The Supreme Court in the Tariff 22 case recommended that Canada implement a notice and takedown process calling it an effective remedy to resolve what content should be removed from Websites. Further, a study prepared by Industry Canada determined that a notice and takedown regime could adequately balance the interests of rights holders and users.
I also believe we should provide protection against circumvention of technological measures that are required by the WIPO Treaties and that comport with international standards. Critics of TPMs allege they're no longer needed in the digital landscape. Minister, they should get out more and see what's happening. Critics also argue that there is considerable flexibility in how to implement the Treaties. For example, they argue that we can prohibit circumvention only for the purposes of infringement. No country that has implemented the Treaties, not even Denmark as you have been told by the libraries, has taken this course.
In any event, Minister, these proposed anorexic forms of implementation would do nothing to support the objective of fostering the policy of e-commerce in digital products. So what's the point of implementing protection for TPMs that would be completely ineffective?
I have a couple of short points on exceptions and how to deal with them. I do believe that we need to protect ISPs when they act as innocent intermediaries. The exceptions, as drafted in Bill C-61, do need amendments. There was an attempt to make them technologically neutral and, as a result, they inadvertently were so broad that they could in their current form legalize all P to P file sharing on the Internet.
As for other exceptions, there have been calls for a general fair-use exception. This exception, as you may know, is only available in a few countries worldwide. Nevertheless, it has been held up as being a technologically-neutral silver bullet that would satisfy the plethora of specific exceptions that have been asked for. But would it simply replace one problem with another? There has been a lot written about the significant problems with fair use including a study for Industry Canada.
In my view, it would be unwise to try to solve the current challenges posed by digital technologies by adopting an exception that has proved to be problematic, at least without considerable study of the implications of taking this approach. In my view, the government should follow the practice, the current practice of considering each exception based on the three-step test. It is not only our treaty requirement, it provides a sound policy framework for considering exceptions. The test permits exceptions to be made in special cases that are narrow in scope that can be justified on a sound policy rationale and which do not undermine a present or future market for the work.
In conclusion, Canada is at a crossroads when it comes to copyright. I believe we should follow the lead of our leading trading partners which believe that copyright can foster legitimate vibrant markets for cultural products and has set specific goals backed up by specific policies and laws to achieve this objective. Not taking this road would be a mistake of long-term tragic proportions for all stakeholders including creators and users. Thank you, Minister.
Hon. Tony Clement: Thank you. I appreciate that very much. Marc Belliveau.
Marc Belliveau: Voice of Translator: Good morning, Mr. Minister. Good morning to all participants here in Halifax. Welcome. My name is Marc Belliveau. I'm a lawyer with Stewart McKelzey. I am also a musician and I've been working for 15 years in the copyright field. Today I'm not speaking on behalf of Stewart McKelvey nor on behalf of their clients nor on behalf of any lobby groups. I have no prepared remarks.
Marc Belliveau: I've worked in copyright law and I've represented musicians, songwriters, sculptors, software developers, authors, photographers and so I've gotten some knowledge about copyright and where we've gotten and where we come from. But again I don't have prepared remarks and I'll say it in English as well. I don't speak on behalf of my firm of which I'm a partner, Stewart McKelzey, but if there was one thing that I could recommend to the group that's trying to reform the Copyright Act, it's that we have to do away with calling Canadian citizens, perhaps mostly teenagers, thieves, pirates and criminals, and whatever solution government comes up with, that language is hopefully going to be part of the past.
As I said, I represent a lot of creators. I know a lot of musicians, and it's an unfortunate vocabulary that's evolved, and I'm not taking sides. I'm just saying that a lot of people come to me and say well you're a copyright lawyer, is it illegal to do… So whatever we need to do with the Act is defined for the average Canadian, apparently mostly teenagers, what is a thief and a pirate and a criminal, because I think that language is just… it really lowers the debate, and we talk about advancing society, the interests of society, the knowledge of users, the rights of users, and too often those interests are belittled in the vocabulary that puts them in their places is this piracy, this language of being a thief and a criminal. So if we can do away with that, I think a lot of users of copyright will be able to enjoy their users' rights without being branded as criminals. Those are my remarks.
Hon. Tony Clement: Thank you very much, Marc. I appreciate your addition to this discussion. We'll move to Johnny Stevens.
Jonathan Stevens: Good morning, everybody. Thank you very much, Minister Clement, for including us. My name is Johnny Stevens and I work with Music Nova Scotia. We're an industry association. We represent over 1,200 members, musician members in the province. I didn't realize I as coming today until just about an hour ago. I would have worn a suit and prepared some more comments. But I do thank you nonetheless.
This is a very obviously a hot-button topic in our office. We talk about it all day long. I also teach a copyright music publishing class at the Nova Scotia Community College, Waterfront Campus. So it's very much in the forefront and I have some comments here from my Executive Director, Scott Long, who couldn't make it. Music Nova Scotia supports the management of digital rights so that creators, all creators, can receive their share of royalties for their intellectual property. We certainly do not support the widespread or any kind of widespread prosecution of consumers. It's counterproductive. We support levies put onto ISPs and mobile carriers for legal access to content. We travelled all over the world this past year studying this year. We've been to Germany, we've been to the U.K., we've been to Iceland, we've been to the United States.
We've seen innovative ways that these countries are dealing with the issue of digital rights and management. We've seen companies use their customer and consumer retention funds and marketing funds to pay for legal downloads as part of a service-renewal package. We think that, you know, we definitely will support anything that pays creators. That's paramount. It's the business, it's what we work in. We feel that there is or could be a potential issue with the distribution of royalties where we're dealing with music, film, publishing. There are many, many sectors that are affected by this. So the distribution of royalties is a big issue. We obviously don't have the solution. We feel monetization is the only way and that distribution of funds to artists is obviously very important. And that's it. We'll be submitting formal comments.
Hon. Tony Clement: And that's, I should have said at the outset we certainly are encouraging all groups to provide formal submissions. If they're not available at the round table, that's fine. We can post them online after the fact. So I appreciate your attendance.
Jonathan Stevens: Thank you.
Hon. Tony Clement: Yes. I think we're ready for Marian Hebb now.
Marian Hebb: My name is Marian Hebb. I'm a lawyer in private practice and for 30 years I've been advising authors and authors' organizations including a collective copyright society including authors and publishers on copyright on their other concerns. Bill C-61 startled but did not shock writers with its radical provisions for format shifting. A book, a magazine, a newspaper, substantial chunks of them can be downloaded from the Internet by a single individual onto a variety of devices for private use unless doing so were to breach a contract or circumvent a technological measure.
Bill C-61 also contained a provision that would allow non-profit libraries to deliver articles and extracts from books over the Internet directly to patrons of other libraries. This free digital delivery, bizarrely called Internet library loan, would be an enormous boon to library users, a group that contains writers. But this free digital delivery is also an enormous problem for writers who need payment for their work in order to continue to produce it.
In the United States, entire library books may become accessible in libraries with the proposed Google book search settlement which promises free access at terminals in public libraries and access through subscriptions in other libraries or other institutions. Canadian library patrons will eventually expect no less than this. In response to pressure from educators for free access to publicly-available materials on the Internet, Bill C-61 introduced an exception from copyright for schools for legitimately-posted materials unprotected by technological measures.
No one wants to complain about this accessibility or any of these means of accessing works from the Internet, certainly not many professional writers. But they do have a worry. Many people don't want to pay for copyright material they download and believe that everything found on the Internet should be free. None of these proposed means of delivery, format shifting, digital delivery to library patrons, or students accessing publicly-available copyright material are shocking. What would be shocking is if they were to happen without any payment to the authors whose works are used in these ways. Creators need to be paid for school, library and other uses and consequently are looking for ways to monetize the Internet.
The Internet has made copying very easy. It is not possible for an individual writer to monitor all uses of his work on the Internet, but copyright collectives representing many copyright holders can protect their collective interests while offering licenses that provide easy access to their work to schools, libraries and others and provide payments to rights holders.
Existing collective societies including Access Copyright representing writers and publishers and other rights holders of literary and artistic works, grant licenses, collect payments and distribute payment to rights holders, mostly based on surveys of use. Collective societies frequently grant blanket licenses which do not require schools and other users to check the list of rights holders who are represented by the collective prior to using their works. This exposes the collective society and licensed users to the risk of being sued by a rights holder whose works are not represented by the collective society.
Our current Copyright Act limits this liability for educational institutions in the analog world but not for the collective itself. These risks will be greater in the digital environment, so we need new mechanisms to limit liability for the collective and all its licensed users. Collective licensing also avoids the need for most exceptions. Other exceptions can apply only where a collective license is not available. One exception that writers would like to see would be an exception for parody. This is justifiable because a writer is not likely to grant a license to another writer to make fun or parody his own work.
The collective model has worked well in the past and with minimal supportive legislation from Parliament is a model that could be transferred easily to the Internet. This would likely mean a small subscription increase payable by users to their Internet service provider to cover most copyright material that they can download freely from the Internet. That money would go to collective societies and would be distributed to the writers and other rights holders they may represent. Everyone would have easy and lawful access to most materials on the Internet but writers and other rights holders would be paid. Thank you very much.
Hon. Tony Clement: Thank you, Marian. I appreciate that. Coming down to the final stretch here. Don, you're up for the Songwriters Association.
Don Quarles: Thank you very much. My name is Don Quarles. I'm the Executive Director of the Songwriters Association of Canada which is the only national non-profit organization that represents and is run by songwriters. We're celebrating our twenty-sixth year this year. A side note, my wife of 25 years was born and raised in Parry Sound. I thought I'd just mention that.
Hon. Tony Clement: I'm detecting a trend here.
Don Quarles: Minister Clement, both you and Minister Moore have already heard from our Vice President, Bill Henderson, at the Vancouver round table who made the following points on the SAC's file-sharing proposal. Internet technical experts agree that unauthorized file sharing cannot be stopped without shutting down the Internet. Point two, thought we stand behind copyright all the way, we also see file sharing as a golden opportunity for creators. Point three, file sharing is the most efficient distribution system of the largest repertoire of music ever assembled and it's available to virtually anyone. Point four, the only problem with file sharing is the creators and rights holders are not being paid. And point five, we have a plan to make file sharing legal and a win-win situation for all stakeholders including consumers and creators.
Here is just a little bit of detail on how monies would be collected and paid out to creators and stakeholders. All that would be required to monetize file sharing would be a small monthly end user license fee that could be either bundled into monthly ISP broadband or mobile accounts, mobile access fees or billed monthly to a credit card. The fee of a few cents a day translating into a few dollars a month would create a pool of several hundred million dollars a year. The exact fee would be determined by the Copyright Board after hearing from all the stakeholders including consumers.
That pool would be fairly and accurately distributed on a pro rata basis to creators and rights holders much like existing collectives such as SOCAM do today. The information to make such distribution is already being collected in a way that does not invade privacy of file sharers by third-party organizations such as a company in California called Big Champagne. Such distributions would bring the entire music industry in Canada back to full health. It is good for creators, record labels, consumers, ISPs and all the other stakeholders and rights holders and it would put the era of lawsuits and other repressive measures against consumers music behind us once and for all.
Over the last two years we've communicated these ideas to consumer advocates and organizations in Canada and we have their support. Many of Canada's independent record labels and artists are also on our side. They know this simple and elegant plan is the only sensible and fair solution to this problem which certainly has now vexed our industry for probably about a decade. This proposal will foster innovation and creativity and further enhance Canada's creative economy. What's most important to note is that not only is this proposal good for music creators, rights holders and those of us who are also consumers and lovers of music, but it is WIPO-compliant.
This conversation is not about why we should get paid – that's certainly been established for decades – but how we should get paid. We ask that the Government of Canada work with us to make it a reality and thank you on behalf of the Songwriters Association of Canada and Canada's music creators. Thanks very much.
Hon. Tony Clement: Thanks very much, Don. I appreciate your addition to the discussion. And last but not least, Mr. Hilliard.
Michael Hilliard: Thank you, Minister. My name is Michael Hilliard and I'm Corporate Counsel for Microsoft in Canada. I appreciate the opportunity to participate in this round table and share with you a few thoughts on the importance of copyright reform in Canada.
Companies such as Microsoft rely on strong, certain and stable copyright regimes in countries where it does business in order to protect its significant investment in innovation. It is the view of Microsoft and many others that innovation is crucial to the betterment of society and is essential to the modern economic health of countries such as Canada. Given the importance of copyright, it is disappointing that Canada signed the WIPO Copy and Phonogram Treaties some 12 years ago and still has not implemented them. Key provisions that are essential to technology industries as well as to artists and creators and the workers who operate in those industries and which were identified over 12 years ago as being important have yet to be passed into our law.
We were pleased with the introduction of Bill C-61 which was in our view a marked improvement on the earlier Bill C-60. Bill C-61 generally took the right balanced approach to copyright reform by providing incentives for creators to deploy innovative electronic delivery of copyright content by extending to Canadian consumers new exceptions to enable them to make reasonable use of the content for private, educational and research purposes.
Moving forward with copyright reform, Microsoft is not advocating for any new or revolutionary changes to copyright. The changes we support are already those that are required as a result of WIPO Treaties and changes that have already been discussed for many years and have found their way in one form or another into the last copyright Bills. I will briefly touch on three key areas of concern for Microsoft.
First, technical protection measures. Both WIPO Treaties require that signatories provide effective legal remedies against the circumvention of effective technological measures. WIPO's own guide on these treaties states that these treaties require effective remedies against the circumvention of both access controls and copy control measures. These technologies allow for things like the creator of a work to prescribe certain conditions to its use, to attach a mechanism for charging a fee, for listening to or viewing the work, or permissions for a particular number of uses of a particular recipient. These are many of the innovative business models to which Wendy alluded. And these models such as subscription services, downloads, rental services, file-on-demand, pay-per-view and future digital and online business models are enabled by technical-protection measures and they are only workable if the integrity of these controls are respected. Canada should adopt strong and effective measures to prevent the circumvention of TPMs, both access and copy controls.
Turning to the issue of limitations of liability, such provisions are important for the development of innovative Internet-based services. However, care is needed in drafting such provisions to ensure that exceptions are not so broad to include activity that is widely regarded as unlawful. Barry referred to this in his comments about Bill C-61. In Microsoft's view the Internet and other digital network service providers who profit from providing services that enable or facilitate communication of infringing copies – so for example providers of software that help users locate infringing music, movies or software files – should not qualify for exemptions or limitations on remedies. Accordingly, provisions which seek to limit liability, ISPs or search engines should be carefully crafted.
Finally, with respect to statutory damages, Bill C-61 sought to cap statutory damages in respect of copyright infringement done for private purposes to $500 in total. Capping damages for infringement of this nature may be necessary to balance the rights of creators and users. In fact, it may be that this cap is appropriate where the value of the work infringed is substantially less than $500. Perhaps it was likely intended to address movies and music. However, where the value of the work infringed substantially exceeds $500, such as software, the limitation of liability removes the deterrent effect of statutory damages in respect of such work. Microsoft Canada recommends that if caps on statutory damages are to be introduced in future copyright Bills, consideration of these types of works and their value should be taken into account.
To conclude, Canada is widely regarded as an innovator country. Although natural resources play an important part in our economy, many of us believe that an equally important strength to the future of Canada's economic success is its ability to innovate. One of the conditions that will encourage and drive innovation will be the updating of our copyright regime to reflect the realities of the digital world. On behalf of Microsoft, I wish to express my appreciation for the opportunity to share our views and participate in this round table. Thank you.
Hon. Tony Clement: Well, thank you, Michael, and thank you, everyone, for participating in this round table. It's very interesting. We certainly got more presentations relating to the perspective of the creators than we've typically had in these, so it's good to have a different mix than some of the other round tables that we've done and I do appreciate everyone's involvement in that. We do have just over 10 minutes for a chance maybe for folks to comment on other things that they've heard. If there's something that has come up from other presenters here this morning that you might want to comment on because it was something that you'd heard for the first time or you had not included in your remarks, now is a good time to do that. So is there anyone who wishes to add anything or comment on somebody else? This is… we're Canadians, so we're all going to be polite and civil to one another, but if there is something that has come up that you did want to add something to or relate to, now is a good time to do that. Would anyone like to start off on that? I have one.
I know, I guess it was… yeah, Barry. In your remarks you had commented actually on the fair use or the fair dealing and that's the first time that I think it came up at this particular round table. We have had a lot of commentary on that in other round tables. Does anybody want to either reply to Barry or agree with Barry just on his comments? He basically… Barry, if I can paraphrase perhaps something that you had said, you basically warned that that's not the panacea, that that's not the silver bullet that perhaps some of the other presenters at some of the other round tables have let it out to be. So if anybody else wants to comment on fair use or fair dealing… Yes, Dan?
Dan Soucoup: We certainly… as book publishers, we certainly find it comes up a lot in educational situations and there does seem to be a sense that it really is a free-for-all. You can do whatever you want. So if there is a very limited sense of what fair use is, it doesn't seem to be out there. There seems to be a sense that educational curriculum people can seem to think they can do whatever. It's just a comment I have.
Hon. Tony Clement: Sure. I appreciate that. Barry, did you want to…
Barry Sookman: Minister, if I can expand on my comments on fair use. I had to be real circumspect because of the time, but the problem with fair use is that it's open-ended and it's vague and it leaves businesses, consumers, copyright owners unsure about what the law really is and there are enormous potential transaction and legal costs associated with figuring out what's legal and what's not. Maybe it makes sense in the U.S. where they have entities that can afford to spend millions of dollars figuring out what their rights are, but transposing that model to Canada could be a real problem.
Let me tell you what one scholar recently said in the States. The scholar said the doctrine seems ill-defined at best and empty at worst. Another wrote both abstractly and concretely, fair use has been spectacularly unsuccessful as a substantive player in copyright theory and practice. Fair use has become too many things to too many people to be of much specific value to anyone. And so my remarks were meant to indicate that we probably should be a little careful before we jump into a model that currently is in major disarray in a major country that's implemented it. At least we should study it first before simply adding the words "such as" before the fair-dealing exception has been proposed.
Hon. Tony Clement: Thank you. Paul, did you have your hand up? Anybody else on this one or any other topic? Yeah, Marc?
Marc Belliveau: Minister, just the… we have fair dealing in Canada but when clients call us to see whether… us lawyers to see whether they sit within the fair-dealing exception, we typically run to the cases and perhaps it's time to take the cases and put it in the legislation or clarify, and if it's not fair use then maybe it's expanded fair dealing. But there needs to be more clarity.
Hon. Tony Clement: Okay. I appreciate your comment there. Marian?
Marian Hebb: I would just add that fair dealing in Canada seems to work and I think we can see that because we haven't had many legal cases on what it is. People figure it out and come to conclusions. I don't think it's a big problem, and we are now confined to four different purposes. There were four purposes I think. Five? Four? Anyway, that fair dealing is within. I mean if it was opened up to education and learning, we would have a great deal of confusion in trying to figure out what would be covered by collective licenses and what would not be. And I think it's a can of worms and a can of worms we haven't had so far in Canada at any serious level and I would suggest that we just leave things as they are and where we feel that we do need an exception, and I mentioned one in my comments about parody which I think is an important one, parody is allowable now despite some people thinking it isn't, it depends on how much you use and a clever parodist has no problem. So I think we should just leave things as they are and not borrow trouble.
Hon. Tony Clement: Okay. Yes?
Brad Keenan: On behalf of ACTRA, we would support exactly what Marian and Marc and Barry just said. To avoid adopting any U.S. approach such as fair use, let's stick with a made-in-Canada approach in fair dealing and stick with the number of cases that have come forward so far.
Hon. Tony Clement: Okay. Any other comments? Yes, Don?
Don Quarles: I just have one other comment about… ultimately what we hope to see is certainly in the music industry we would… we've seen the sort of merging of creators and consumers, they're trying to get closer together.
Hon. Tony Clement: Sure.
Don Quarles: And I think that's probably why we've come to the place we've come to. I think our objective is obviously to create an opportunity where it becomes a business opportunity as much as it is to those of us who are fans of music to get access to the music we like. And I realize the government is under great pressure to implement WIPO and part of the reason we developed this proposal was to ensure that all the rights holders and all of those that are on the business end of things would benefit from it as well as consumers. And I mean I don't even like the word consumers and users because quite frankly it's all of us who love music. So that's all.
Hon. Tony Clement: And that's a good point. It's one of the observations we've made is that those divisions are breaking down somewhat. You know, we're all, even those of us who are amateurs are busy creating things, either literary or music or whatever it is, or using our video cameras, our cell phone cameras. So that creativity is now being spread out with the technology to a lot more people and so some people now have an understanding of what it's like to be a creator as well as a consumer which is a good thing. Anybody else wish to comment? Yes, Barry?
Barry Sookman: Minister, we've got under four minutes. I do have one more comment.
Hon. Tony Clement: Sure.
Barry Sookman: And that's what the next steps are and where we go from here. You've obviously gotten, as you mentioned, a significant amount of input from Canadians and that's a fabulous thing. And the question is: What's the best way of approaching copyright reform in light of everything that we've been told? And my suggestion is the following: Years ago we had a Section 92 report that outlined a phased approach for copyright reform. Given these consultations, I think now we'd be in a spectacularly better position to now identify what should be the reforms we want to tackle and what should be the priority for those reforms and what needs to be studied. So I'd recommend that we take the Section 92 report and revise it, setting priorities.
The second thing I'd recommend is that where certain issues have already been studied and studied in depth like protection for ISPs and WIPO, that we move ahead with those as well as some of the exceptions for private access for users that already have been thought through, and then make a commitment to study a lot of these other issues that have come up, but because if we try to tackle all of the issues at once it may be years or decades before anything gets done, and the insight of the Section 92 report was to try to break copyright down or at least issues down into areas that can be managed, focus on them, do the research and then move forward in an incremental manner.
Hon. Tony Clement: I appreciate your input on that. That's important too, that we don't want to have another stillborn initiative on this because quite frankly none of us are getting any younger and we really do have to actually get to a final point on some of these issues. I appreciate that.
I see no other commentaries. Let me just thank everyone again for your participation. We will be posting this at the usual site once we've completed the translation, as I understand it, and this will be part of the body of the consultations and of course we're always adding submissions to the site as well so that people have an understanding of the various points of view out there. So I just want to thank you for a successful conclusion and remind folks, at least for me anyway, I think my next one is in Toronto in two weeks' time or thereabouts where we'll be doing both a round table and a town hall meeting. I know that James is continuing with his. We have done one in Winnipeg yet?
Colette Downie: We've done Winnipeg and we have Edmonton and Peterborough.
Hon. Tony Clement: Very good. Okay. So thank you again and thanks for participating.
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