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Date: September 1, 2009 1:00 p.m.
150 George Street
Principals: See participant list
Dean Del Mastro, Conservative Member of Parliament and Parliamentary Secretary to the Minister of Canadian Heritage hosts a round table on copyright.
Download: Audio Recording (MP3, 45.9 MB)
Nicole Frenette: Good afternoon. I'm delighted to introduce Dean Del Mastro, Parliamentary Secretary to the Minister of Canadian Heritage who will shortly open the discussion by offering some opening remarks. Before I turn it over to Mr. Del Mastro, I would like to introduce myself and generally describe how this round table process will roll out today. I'm, my name is Nicole Frenette. I'm your moderator today and the Director of the Policy, Planning and Research Directorate at the Copyright Policy Branch at Canadian Heritage. Among it's other duties, the branch is responsible for advising the Minister of Canadian Heritage on the framework of copyright policy.
There are a number of you here today and you have been invited to share your views on copyright reform as part of the consultation process and we are looking forward to hearing from all of you. We are also using simultaneous interpretation services and microphones in order to record the discussion this afternoon. As indicated in the invitation you each received, this discussion will be posted on our internet in both official languages and this will be on the copyright consultation website. It will be both an audio file as well as written transcripts. Photos will be taken this evening and they may also be posted on the website.
We have simultaneous interpretation services that are available so please feel free to participate in the official language of your choice. And I will put a lot of emphasis on this but to help ensure a high quality of translation, we ask that you speak slowly and clearly. We also ask that you introduce yourselves by name and also the organization that you represent. We would like this discussion to be as free flowing as possible as it is intended to canvas your views on copyright reform.
To ensure that our time is productive and because we want to hear from all of you, I ask that you keep your remarks brief, so approximately five minutes, and focused on the issues of importance to you. Our round table will last approximately ninety minutes and I may intervene asking you to wrap up your comments so that everyone has an equal opportunity to share their views. So at this time what I recommend is that we go, do a round table so that you can introduce yourself and the organization that you represent and then I will ask Mr. Del Mastro to say a few words.
Craig McTaggart: Good afternoon, I'm Craig McTaggart with Telus Communications company.
Chris Tabor: Hello, my name is Chris Tabor. I'm the Director of the bookstore at Queen's University and I am here on behalf of Campus Stores Canada.
Graham Stairs: Hi, I'm Graham Stairs, President of Finkelstein Management. I'm here today representing the Music Managers Forum Canada.
Kristian Clark: Hi there. My name's Kristian Clark. I'm Executive Director of Canadian Artists Representation, (inaudible). I work for the Ontario office but I'm here speaking on behalf of the national organization.
Jason Bird: Hello, my name is Jason Bird. I'm Manager of Library Services for Kawartha Pine Ridge District School Board.
Victoria Owen: Hello, my name is Victoria Owen. I'm the head librarian at the University of Toronto Scarborough Library and I'm here today representing the Ontario Library Association.
Robert Labossière: Robert Labossière, I'm the Executive Director of the Canadian Art Museum Directors' Organization.
Howard Knopf: I'm Howard Knopf. I'm a copyright lawyer from Ottawa.
Chris Pang: Chris Pang representing CanWest Broadcasting.
Stuart Wuttke: Good afternoon, I'm Stuart Wuttke with the Assembly of First Nations.
André Cornellier: André Cornellier (inaudible) Canadian Photographer Association of Photographer and also the Canadian Coalition of Photographer.
Elliot Noss: Elliot Noss from Tucows.
Susan Wheeler: And I'm Susan Wheeler with Rogers Media.
Dean Del Mastro: Obviously, I think I went around and introduced myself to just about everyone. Welcome to Peterborough. We have set this briefing up. Obviously we're going out, we're consulting broadly across the country about copyright. It's obviously a very important issue to both industry and to creators of intellectual property and so forth. We have entered into this so that we can listen, so that we can find common ground and ultimately so that we can come up with a piece of legislation that I think everyone can be happy with.
We're working for, looking for compromise and common ground and as Minister Clement said, we are out visiting the pastures to find the grass root solutions for this and I look forward to hearing your comments and obviously I'll also look forward to hearing some of the reactions of various witnesses to testimony we hear from other witnesses. And I think that's the way that we start to find common ground is by putting together, starting from areas that we agree and working on some areas where maybe we have some divergent opinions and coming to consensus. So I look forward to hearing what you have to say.
Nicole Frenette: Mr. McTaggart.
Craig McTaggart: Good afternoon again. Craig McTaggart. I'm Director of Broadband Policy at Telus Communications company. Telus appreciates the opportunity to meet with you today Mr. Del Mastro and department staff and we congratulate the ministers on their commitment to public consultation on this important topic.
Telus is a member of the business coalition for balanced copyright or BCBC and the representative of our coalition presented the general principals that we believe in at the Gatineau round table. But in addition to those principals, I want to highlight some specific issues that affect our operations as a wireline and wireless telecommunications provider across Canada. And I want to start with two things on which there appears to be emerging consensus or close to it and the first is what might be called personal use rights. It's important to us that our customers are able to make and use personal copies of legitimately acquired entertainment products such as CD's, DVD's and downloads.
And whether that's given effect to by way of an expanded user right of fair dealing which is the preferred approach of our coalition or by way of a personal right to platform shift which was the right, the approach we saw in Bill C–61. We think it's essential to recognize that these are common consumer practices and the time has come to recognize that. However, I want to emphasize the words legitimately acquired products because as I'll discuss in a moment, Telus and other major telecommunications carriers in Canada already cooperate with rights holders in their fight against the theft of their products and we support strong penalties for commercial scale infringement.
The second thing I want to mention is NPVR services or network based personal video recorder services. NPVR services are poised to become the next step in the evolution of home television recording following in the steps of the VCR and the PVR, very common consumer products. But with NPVR's, the difference is where the storage device is located. In this case it's in a carriers facilities instead of in your living room. Otherwise, the functionality is almost identical, yet Bill C–61 to our surprise and regret, inexplicably would have prohibited NPVR services as a matter of fair dealing despite their many potential benefits for both consumers and rights holders.
And at Telus we've been wondering aloud why the Canadian Government would deny it's citizens the benefit of an innovative form of fair dealing, particularly one that has twice confirmed, been confirmed to be legal in the United States. And based on my reading of the transcripts of the consultations so far, I don't think anyone who has come before you has said a word to defend the ban on NPVR services in Bill C–61. I hope we can consider that along with references to video cassettes in the act to be behind us.
So I want to go on to two other things that are obviously more contentious, the first one is graduated response. So recognizing the reality that with peer to peer file sharing, there is nothing to take down because there are no central servers where files are located. Several of Canada's major ISP's including Telus starting working with the music, film and software industries eight years ago to develop the notice and notice service that we've been providing at no cost ever since.
Now some rights holders, including some who have indicated that they have no intention of enforcing their rights in court, want to download enforcement responsibility onto ISP's by way of what are called graduated response systems. These systems would see ISP's cut off their customers based only on allegations of infringement and in so doing, would cut off everyone who accesses the internet from that connection. You've heard from many interveners why that is not an advisable policy and I don't have time to say much more about it except that ISP's simply can't be put in the position of determining whether a law, any law has been broken or not.
Perhaps an independent third party such as the CRTC could be that arbiter. But any such policy would almost certainly be vulnerable to legal challenge under both human rights law and constitutional law as we've already seen in Europe. The reality is that Canada's major ISP's already cooperate with rights holders within the limits of the law, including personal privacy law and the telecommunications act which itself limits what ISP's can do with respect to their customer's traffic without the specific authorization of the CRTC.
So that last thing I want to mention is that in our view it would be undesirable to extend the blank media levy to consumer electronics devices and particular network connected mobile telecommunications devices like phones and smartphones and netbooks and laptops and where do you draw the line. These devices are increasingly featuring memory that can be used to store media files and they could well become a significant platform for the secure delivery of licensed media in the future.
And we worry that extending the blank media levy to those kinds of network connected devices would stifle innovation in our industry and would increase device prices, potentially putting innovative devices out of the reach of some consumers. And in fact, a regressive tax like that couldn't come at a worse time as our industry are rolling out next generation, high bandwidth networks that will support significantly increased data functionality and importantly, new opportunities for the legal distribution of licensed content. Thank you very much for the opportunity to share these views and I assure you that Telus will continue to be engaged in this process.
Chris Tabor: Again, hello. My name is Chris Tabor and I'm the Director of the Bookstore at Queen's University and I'm here on behalf of Campus Stores Canada. It's a national trade association dedicated to providing a unified voice for Canadian post secondary, institutionally owned and operated campus stores. Campus Stores Canada has almost one hundred member stores nationwide meaning if you know one of Canada's million post secondary students, you probably know someone that is served by this organization.
I'd like to thank you very much for having me here today. Updating the copyright act will have an effect on how most Canadians including our students go about many daily tasks so we believe it's important to hear from as broad a base as possible. It may interest this group to know that in 2008, 2009, the US Federal Government in approximately twenty-three of it's states each considered legislation affecting access to and the affordability of course material. I'm very happy to be here to talk about how the Canadian copyright act can affect access to learning materials in Canada.
I'd like to speak about four elements that we think are critical to successful copyright reform; parallel importation, fair dealing, the future proofing of the legislation and finally, crown copyright. First, the parallel importation of books. Currently the copyright act allows distributors to establish import monopolies on books from authors around the world and in turn, outlines what these import monopolies may charge for the cost of books. Books imported by those other than these exclusive importers are referred to as parallel imports. Section 27.1 of the copyright act makes the parallel importation of new books an offense provided that those exclusive distributors adhere to the regulations promulgated under the act.
Specifically they stipulate that an importer can charge a book seller the price of the book and the country of origin, plus the difference in the exchange rate between the two countries, plus an additional ten percent if it's from the US or an additional fifteen percent from the UK. Campus Stores Canada considers this to be a private tariff established by public policy and calls for it to be removed. It is paid for from the wallets of Canadian students and their families and is collected primarily by foreign private interest. It allows distributors to receive an additional ten or fifteen percent in pure profit from the products before risking losing a sale to a parallel importer. Importantly, it's important to understand that the returns here, there's no appreciable benefit to the artists or authors who have created the works in question, nor does this tariff accrue to the public, or general revenues of the Canadian Government.
Second to fair dealing. Fair dealing allows, as you know, allows individuals to make copies of portions of copyrighted works for specific purposes, including reporting the news, review and criticism and most relevantly for post secondary students, research and private study. As I'm sure you can understand, this makes fair dealing an important academic right and it's restriction will limit the ability of students and others to carry out the sort of research that is critical to their studies. In the past decade, we've seen remarkable advances in digital collections of libraries and these digital reference materials have dramatically enhanced the depth and scope of library holdings.
The success of these technologies has been built on their ease of use, the reliability and the access they provide to otherwise inaccessible materials. However, elements included in previous attempts to update the copyright act included provisions that would replace this simplicity with complexity and uncertainty. Campus Stores Canada firmly believes that fair dealing is an important user right, ensuring all researchers, most notably post secondary students are able to use the materials necessary for their work, with the confidence they will not inadvertently violate copyright. Placing limits on this right will create a chill in the research environment, creating an uncertainty among student researchers as to what is fair dealing and what is a copyright violation. Copyright exists to encourage innovation. Restricting fair dealing in this way does exactly the opposite.
A great deal has changed in the distribution of course materials in the ten years since the copyright act was last updated. It's important that any changes to the legislation be flexible enough to respond to evolving technologies. Campus Stores Canada believes a strong Canadian commitment to the principals of fair dealing will help future proof the legislation from evolving technologies and safeguard Canadians from more restrictive legislation and standards, developing in other jurisdictions.
Finally on the issue of crown copyright. Campus Stores Canada holds the position that works produced by the Canadian Government belong to all Canadians and as such, Canadians deserve to benefit from them without additional fees. I'd like to thank you again for allowing me to speak today. I look forward to discussing these issues. Any questions you may have.
Graham Stairs: Hi, I'm Graham Stairs. I'm Vice-President of Finklestein Management and I'm here today representing the Music Managers Forum Canada. Music Managers Forum Canada was founded in 1997. I was one of the founding members. Music Managers represent, we have over a hundred artist managers in our organization and we represent over two hundred and fifty artists. That includes such Canadian music hall of fame music artists as Bruce Cobourn, Rush and the Tragically Hip as well as acts like Blue Rodeo, Great Big Sea, Simple Plan, Our Lady Peace, 5440, Black (inaudible) Kings and others. We represent artists in all musical (inaudible).
The WIPO copyright treaty was adopted in 1996 and we believe that supporting the ratification of WIPO copyright treaty is a given. The survival and growth of the Canadian music industry requires both a legislative component and a business model component. And as was mentioned earlier, if we're walking in a pasture, this is potentially where we start stepping in it.
We believe in fair compensation for unfettered access to content, meaning people can pay for their content, sorry, meaning people who pay for their content can put it on their iPod, burn a disk for the drive to the cottage, but not for file sharing. And this is where I'll probably disagree with some of my colleagues here. We feel that it's a little disingenuous that the ISP's liability for unauthorized use and profiteering with our content. So we feel that there's a certain responsibility the ISP's have in distributing our content. We support for the private copying regime and we feel that the business model, some form of licensing needs to be developed. I think that some of my colleagues, you know, have some fear on some of these issues but we feel that we're here in good faith and we're willing to discuss our position. Thank you.
Kristian Clark: Again, my name's Kristian Clark from CARFAC. Firstly, I want to thank the government for performing these consultations and specifically Nicole and Dean for bringing the show to Peterborough. CARFAC was incorporated federally as a not for profit corporation that is the national voice of Canada's professional visual artists. As a not for profit association and a national art service organization, our mandate is to promote the visual arts in Canada, to promote a socio-economic climate that is conducive to the production of visual arts in Canada and to conduct research and engage in public education for these purposes. CARFAC was established by artists in 1968 and has been recognized by the status of the artists legislation. CARFAC is guided by an active board elected by the membership.
I would like to break up my submission into two distinct sections. Firstly, I would like to articulate CARFAC's support of the Creators Copyright Coalition, the CCC and secondly, I would like to outline a key market drive suggestion specific to the visual arts sector called the resale right. The Creators Copyright Coalition is an alliance of sixteen professional associations of individual creators and performers and copyright collective societies active in the theatre, the visual arts, the applied arts, literature, music, recording and audio visual, radio, television, film and commercials. Together these associations and collectives represent more than one hundred thousand creators, authors and performers who are copyright owners. CARFAC is an active partner in this important coalition.
The CCC defends the interests of authors and performers in the revision of the Copyright Act of Canada. In it's platform document from January 2008 titled Platform on the Revision of Copyright Reform, a con position of the associations and collective societies is presented. Members of the CCC believe that the making of art and contemporary Canadian culture is a vital part of life and an essential ingredient of the information economy. If the new copyright reforms enhance and protect the rights of creators then they will encourage art, contribute to our culture and enrich the lives of all Canadians.
What sorts of copyright changes does CARFAC and the CCC believe would best foster innovation and creativity in Canada? Firstly, affording photographers, print makers and portrait artists the same rights as other visual and media artists. Improving compliance and recognition of the reproduction right. Improving compliance and recognition of the exhibition right. Extending protection and reaffirming creators moral rights, and reenforcing and expanding the licensing responsibilities of copyright collectives in the digital environment.
Finally, as was mentioned before, ratifying the WIPO copyright treaty, the WCT. I strongly encourage the government to consider the detailed recommendations that are outlined in the platform document which can be found at creatorscopyright.ca. And specifically in regards to the artist resale right, what kinds of changes would best position Canada as a leader in the global and digital economy? While the proposed changes in Bill C–61 address most of Canada's international obligations, it did not include a resale right which was included in the (inaudible) convention to which Canada is a signatory. Fifty-four countries worldwide have already signed on to the resale right including the United Kingdom, Ireland, Australia, New Zealand and the State of California which I guess technically is not a country.
Far from being a leader, Canada risks lagging behind the rest of the world. The resale right would entitle visual and media artists to receive a percentage royalty payment from all subsequent public sales of their work. It is common for visual art to appreciate in value over time as the reputation of the artists grows. Canada's Aboriginal artists in particular are losing out on the tremendous profits being made on their work in the secondary market.
Colleagues living in isolated northern communities tolerate impoverish conditions while their work dramatically increases in value. This same situation motivated the Australian government to reconsider, or sorry, to consider the resale right after the late Clifford Possum, Charlie's Painting, Warla Goulong (ph), sold for two point four million in 2007, thirty years after the artist sold their work to the Commonwealth Bank for a mere twelve hundred dollars. The artist in his estate received nothing for the recent sale.
Once established in Canada, artists would be able to benefit from reciprocal arrangements with other countries where the resale right exists and where the artist's work may be resold. For example, if a British artist's work is resold in France, that artist is able to benefit from the resale right there because it has been adopted in both countries. However, if that same artist's work sells in Canada, they are not able to receive a royalty here because we currently do not have the resale right. Thank you.
Jason Bird: Hello. Thank you for the opportunity to speak here today. My name is Jason Bird. I'm the Manager of Library Technical Services for Kawartha Pine Ridge District School Board based here in Peterborough. Our school board stretches from Courtice to Brighton and up to Apsley serving thirty-three thousand students by over forty-five hundred dedicated teachers, staff and administration. I oversee library services for all of our schools including cataloguing, catalogue management, database administration, contract negotiation and all matters related to copyright.
Overseeing copyright at a school board is a daunting task. I pay for our board's license with Access Copyright for photocopying, our license to SOCAN which allows our schools to be able to play popular music at events. Out of this we pay for two licenses from Audio Ciné Fête and Visual Education Center to cover educational use of studio films in the classroom. With these licenses I oversee compliance to rules and regulations therein, by our teachers, staff and administration. The reason why I'm telling you this is that KPR pays a great deal for our copyright licenses and by doing so, respects the creators right to be paid for their work. Added to this, KPR spends hundreds, oh I'm sorry, I'm sorry. I forgot, sorry. Added to this, KPR spends hundreds of thousands of dollars on library material for it's schools and our central learning resource center which I also supervise.
This consists of fiction and non-fiction books and magazines for the K–12 grades and also professional books and journals from vast subject areas and many publishers for teachers and management. With this, in January 2009 the Ontario Government kept an election promise to give money to elementary school libraries for print material. Over the planned four years of this program, sixty million dollars will be spent on books in Ontario schools. Furthermore, KPR holds one of the largest educational video libraries within a school board in Ontario and continues to invest in Canadian educational documentaries, additionally paying for PPR, public performance rights for everything we purchase.
Over the past decade, school libraries have been increasingly spending money also on full text databases, e-books and other electronic information such as NAXOS music library. Together, K–12 libraries school board resource centers and provincial consortiums spend millions of dollars on digital collections. This is an ever increasing area of K–12 library service. Forty-five percent of my collections budget goes straight to digital material. In Bill C–61, the government made it illegal to circumvent technological protection measures. Digital locks have a negative effect on fair dealing from a library's digital collections.
The new copyright act needs to balance creators rights and fair use of material and thus make it illegal to circumvent TPM's for educational use of library material. With the electronic world our students live in, our teachers must be able to connect with their students within their digital information environment. Our new copyright act must enable teachers to freely show and compile clips of audio visual material for educational purposes without fear of legal action. Therefore teachers need to be able to use and make compilations of clips of television programs, advertisements, podcasts, video and audio, films, video games, and video games for educational instruction only.
A similar exception exists within the American Digital Millennium Copyright Act that was granted during a three year review of the DMCA in 2006 and also exists within the legislation under the Ontario, or sorry, Ontario, the Australian Copyright Council. Although the exception in the US specified film and media studies professors, I believe this exception should extend to teachers and staff within the K–12 sector and to all forms of electronic information. Our new copyright law needs to enable teachers and school board staff to connect with students for educational instructions in their digital environment.
Now my next point is educational use of the internet. Our new copyright act much keeps section 30.04 Bill C–61 enabling the educational use of the internet exception. This also links to teachers and school board staff being able to connect with our students, but specifically with the information out on the web. Our students spend a great deal of time on the internet, this is obvious. But if we are not able to teach them about proper use of the internet, critical thinking of content, varying perspective through the web and internet etiquette and email chat, etc., we will not be able to get them ready for the digital world that awaits them as an adult both in the workforce and in daily life. With this, any attempt for a digital license on non restrictive material on the internet from collectives is really a form of regulation of the internet.
By doing this, only those that can afford to pay this license of content from the internet would be permitted to use the internet for education. This is kind of related to CRTC policy 2009 329 where the CRTC ruled there would be no regulation of broadcasting on the internet. I realize a collective license is not the same as the CRTC regulating the internet but their policy ruling emphasizes this. This also relates to net neutrality. In the recent statement, CRTC Commissioner Timothy Fenton stated, the rights of Canadians to talk and communicate across the internet are vastly too important to be subjected to a scheme of government licensing.
If there was a digital license to the internet, the only content our teachers would be able to access would be, sorry, if there was a digital license to the internet, the only content our teachers would be able to access would be advertisements. If a library system like KPR's were to pay for such a license, restrictions would hamper use at least. Furthermore, digital licenses would be incredibly difficult to regulate from content to creator to payment. Does this mean our review on chapters.ca would be subject to payment. With this there are other issues to consider which brings me to my final point.
Interact comments and copyright. Our new copyright act must make online interactive comments made from suggestion, review, reference or critique, free from copyright infringement but also freeing the owner of the software provider and our website and the creator from any form of infringement or ability to gain from such action. An example of this in a library setting is a new library catalogue's ability to allow a patron to electronically comment on a book just read. These comments can go into the catalogue record of a said book for all to see on line.
This is much like amazon.ca or chapters where readers write comments on material. In my own school board, we are presently launching and training our teacher librarians on a new web based library catalogue. This catalogue enables students to write a review on the book they read with teacher librarian approval. This review is for suggestion purposes but is also a teaching and exercise tool to teach students and give them the ability to practice reviews. What other school boards who use this catalogue have found, is that the kids just love seeing their written comments on line and thus encourages more reading.
This form of suggestion review reference critique and learning assignment must not be subject to copyright infringement by the student or teacher writing the comment, the teacher approving it, software provider and the school board administering, authoring and managing it's use through it's integrated library system or catalogue. By allowing interactive comments to be subject to infringement, the new copyright act would be hampering the present and coming generation of students from interacting electronically with their peers and their preferred medium about what they've learned and enjoyed.
This should be part of the new act, sorry, this should be part of the new act, this should also be, sorry, for public and academic libraries because public libraries where I used to work are also starting to do this and academic are considering this feature. My final comment is thank you. Thank you for allowing me, representing Kawartha Pine Ridge District School Board to participate in this copyright round table. I look forward to seeing the act that comes from your deliberations and this process and I hope I was able to inform and enlighten your perspective on K–12 education and library services. Thanks.
Victoria Owen: Thank you. I'm Victoria Owen representing the Ontario Library Association and thank you for the opportunity to provide input on the copyright consultation. Libraries, was I on? Was I on already? Libraries spring from a country's public policy as it pertains to education, culture, access to knowledge, national heritage and preservation. The responsibility of libraries is to represent our role and ensure that our nation's information policy is in harmony with other public policy objectives that directly impact our work.
The Ontario Library Association supports the Canadian library community which has been clear in it's position on the importance of fair dealing. We would like to see the copyright act reinforce the Supreme Court's unanimous judgment in a CCH case which identified fair dealing as a user right and supported it's broad interpretation. The ability of users of copyright material to exercise their fair dealing rights must not be compromised in new legislation and in order to achieve this, Canadian legislation must allow for circumvention for non infringing purposes. Digital locks can prevent users from interacting with copyright materials in ways that are perfectly legitimate.
Copyright law must not make it illegal to circumvent, to circumvent a digital lock in order to use a copyrighted item for non infringing purposes. We will, this will allow us to meet our WIPO treaty obligations and Canada would only penalize the use of, the breaking of digital locks for infringing purposes. Digital locks will also hamper access for the perceptually disabled. Digital locks make it very difficult for the perceptually disabled to make use of digital resources. The difficulty with digital locks in Canadian copyright legislation is that while we may meet our treaty obligations, we must be mindful not to trigger any charter challenge as it pertains to access.
Canada needs to maintain it's current level of protection from standard form contracts so that our statutory rights are not eroded by an imposed contract and these are standard form contracts like click through licenses, shrink wrap licenses and contracts. The copyright act should allow for the rights to, should specify that the rights given to users will prevail over standard form contract, a contract that is actively negotiated by both parties can be allowed to prevail.
Another point is that people or institutions such as libraries and their staff should not be liable for statutory damages when they honestly and not unreasonably believe that they're using a work within the bounds of fair dealing or some other exception. Digital locks on digital objects represent two specific problems for libraries. They prevent libraries from maintaining long term accessibility to digital materials, even after the copyright holder may have gone out of business. Libraries should be able to migrate materials in formats that are approaching obsolescence to new formats. They should not have to wait until the original format is fully obsolete. This makes it more difficult to find equipment to read or convert the materials. And the circumvention for digital locks for this purpose should also be permitted.
As well, digital locks can prevent a library from making digital materials usable by people with print disabilities. In order to assist persons with print disabilities to benefit from a copyrighted work, it should be permissible for a library or an educational institution to convert the work into any format that is useable for a disabled person. Again, it should be permissible to circumvent digital locks to do this.
Libraries can say with certainty that we are publishers biggest customers. We are a major market and we are the most stable source of funding for publishers. For many public and academic libraries, funding comes from government sources, ultimately from the taxpayer, which leads us back to where I began with public policy, to reflect our society's values and achieve our society's objectives. Librarians are not seeking anything free, we're the largest market and what we do actually enhance as a market for culture, we create the readers.
For example, public libraries in Ontario alone purchase more than sixty-five million dollars annually. Libraries contribute to copyright collectives, twenty-five million a year from the Canadian public library sector. Another example is the Ontario Library Association's Force of Reading Program that has had the single biggest economic impact on children's publishing in Canada ever. OLA's force of reading program generates one point four million dollars annually in new Canadian book sales and no other program has done that.
The strong economic impact of a robust fair dealing policy has been documented in two other studies; the US Computer and Communication Industry Association study and the Gowers Review in 2006. The Canadian public supports all of the book publishing grants, Canada council grants, the public lending rights, the public substantially supports creators in Canada. It is our public policy. It is also our policy to support education and lifelong learning. Our country's policy statements refer to this and what balances this support are the exceptions and limitations for other public policies objectives such as fair dealing for research and private study and access for the print disabled. Libraries are in a unique position. We are the biggest market in Canada for information and cultural products. We are the marketplace and we create the market and we act and speak on behalf of our users. Thank you.
Robert Labossière: My name is Robert Labossière from the Canadian Art Museum Directors Organization or CAMDO. I'm thanking you to be able to be here. I know that the Toronto, Ottawa and other forums were filled very quickly so I'm glad that you added this one on and that many of us were able to prepare a little bit better. Most people here will be better prepared than I am but I do have a few notes. And really to raise issues rather than, and questions rather than to give you a specific position.
Our organization represents the directors of public galleries and art museums across Canada so it includes everyone from Matthew Teitelbaum who's the Director of the Art Gallery of Ontario or Kathleen Bartels at the Vancouver Art Gallery to Jennifer Woodbury who is the Director of the Art Gallery of Southern Manitoba in Brandon Manitoba and here in Peterborough we have Celeste Scopilates who is the Director of the Art Gallery of Peterborough.
Museums are in a somewhat awkward position with respect to these issues because they're both producers, not unlike recording companies and publishers, they work with artists to bring art to the public and they're also creators of original content, producing curatorial exhibitions, producing curatorial statements, books, catalogues and so on. But to put them into comparison with a commercial world, it's really inappropriate because in fact we have more in common probably with libraries than universities because we are public sector institutions for the most part, publicly funded and serving the public on a not for profit basis.
So a lot of the discussion at the table, particularly around circumvention and those sorts of things are very difficult for us to wrestle with because they're more about industry, they're very heavily engaged with technology in ways that most art museums would not be. And it raises a question for me whether or not the copyright act even can be modified successfully in order to deal with such a dramatic change in the environment. I wouldn't be the first person to say maybe we should just scrap it and start over again. I don't know if that's a possibility but at a certain point, you begin to wonder about the patchwork. There are amendments upon amendments upon amendments and additions and at a certain point, you lose sight of what the underlying fabric was. It's just a patchwork.
So on, you know, just in terms of concept and moving the discussion, you know, the difference primarily to me is that the copyright act was designed to address the issue of the elicit copying of discrete objects like books or recordings. Whereas now we're in an environment where technologically its not really about discrete objects, it's a continuous flow of data. And that's a very substantive change and really, you start to think about it more in terms of the flow of this data and the regulation of the flow of the data. Now, you know, how you develop a piece of legislation around those sorts of flows, I mean maybe you need to look at different models but anyway, I thought I would just throw that out there.
For many art museums and other non profit institutions, universities and libraries I think are also grappling with the administrative complications, the administrative costs of dealing with copyright. It has become so complex and administratively burdensome that you begin to wonder if in effect, what's happening is a kind of a stifling of the flow of information, stifling of creativity, innovation, these are the hallmarks of copyright. So how do you measure those sorts of impacts? That's very problematic as well. I think that there is a need for research.
I mean you will get much, a lot of detail from the technology side of things, the ISP's, the communications companies and so on who are constantly testing their markets and know where their content is going. In our sector, it's a little bit more difficult to do that and I would argue, you know, obviously we're on a, the government is on a fairly short time frame, very ambitious to try and bring in new legislation. But I think the, on our end, there's a need for research to really be able to gage the extent to which the copyright act in it's present form is helping or hindering the distribution of content, what those administrative costs really are, how complex is it, how many more staff positions are involved, those sorts of things. It doesn't require, you know, extensive research, it could be done very quickly but none the less, we need to know more.
One of the primary things that the art museum community has to deal with, something that Kristian addressed earlier is the exhibition right. The exhibition right is a very important part of the copyright act in so far as it entrenches an artist continuing right over their work to have it exhibited. And it's an unusual piece of legislation relatively speaking. There are a few jurisdictions that have an exhibition right to the same extent that Canada does and the question that arises in my community is whether or not there should be an exception for public institutions like art galleries. The out, the net result of the exhibition right is the institution of artist fees, exhibition fees which public galleries pay routinely and happily though we negotiate often what the amount of those fees might be.
So the principal there is that there should be some method for artists to be compensated, creators to be compensated in an ongoing way whenever their work is exhibited because that contributes to their incomes. The problem with that is the amount of compensation and the extent to which that compensation actually fulfills the objective that it was designed for. In other words, is it substantively improving the position of creators. Is it providing the incentives that they need to keep creating and so on. And again, there's a lack of research that really would be able to verify whether or not those goals are being achieved. There are certainly many indicators which suggest the contrary, that the lot of creators in Canada have not been and is not being improved by the existence of the copyright in it's present form. That's fair problematic.
The exhibition right and the reproduction right go hand in hand because in our community, there's also the issue of the digitization of collections which is important new trend and new, not that new but obviously many museums are trying to embrace that, they're trying to make their collections get them out of the basement and available to the public and doing that on line is a very important, very important to them and to their ongoing viability, their role in their communities.
So with respect to, just to turn back to kind of the core of much of the discussion here about circumvention measures, a lot of it is about having, being able to crack those circumvention measures for non commercial purposes as was stated earlier. But I think there's also another side to that which is the, if you have a regime in which circumvention measures, digital protection becomes standard, the problem for creators who are not working at the same industrial and commercial levels as others is that they will then be in a situation where they have to capture or protect their own content in the same way. And we really don't have the resources to do that. So I think you have to look at it, you know, as you have within this overarching framework of copyright, you have in a way, a bubble which needs to be addressed because it concerns, and the practical limitation are different. Thank you.
Dean Del Mastro: (inaudible) might be concerned. I know we're running a little long and I know that we're giving poor Nicole some concerns here on time here. I will extend so that we can have a discussion but if we can just keep the comments maybe three or four minutes, if you can try to do that, then we'll have more time. Because I do have a number of questions and I'd like to get some interaction between the guests as well so that we can have a little broader discussion. So please Mr. Knopf, go ahead.
Howard Knopf: Thank you Mr. Del Mastro. I think I've got about five minutes and I hope you'll indulge me here. I'm Howard Knopf. I've been a copyright lawyer for about thirty years, been active in government in academia at WIPO and I've been involved in some of the most interesting and important recent copyright cases at all levels including Supreme Courts of both Canada and the United States. I am the Chairman of the Canadian Bar Association Copyright Committee but I'm not here today in that capacity nor am I here on behalf of any of my clients which range from owners to users and from the largest, very largest of corporations to the most modest of individuals. I'm here today only because I care a lot about copyright and I care a lot about Canada.
Now in order to succeed in this revision effort with the short time lines, we need above all to simplify what we're doing and I have half a dozen, very specific and I hope very positive suggestions along that line. Number one, the fair dealing provisions should be simplified by making them clearly and inclusive and inclusive and illustrative list and not exhaustive. This can be done very simply by including words such as quote, such as, and words such as quote, teaching, including multiple copies for classroom use, end quote as we see precisely in the United States law.
We also need an exception for satire (inaudible) which our courts unlike the US courts have denied us. This simplified approach would eliminate the need for pages upon pages of complex, unnecessary and even harmful particular exceptions that certain parts of the educational community believe would actually be helpful, despite the much more helpful approach of the Supreme Court, that the Supreme Court of Canada suggested and quite explicitly in the Landmark CCH case in 2004. That approach would also help museums, libraries, archives. It would make all kinds of things very simple and very much shorten the process of drafting and give everybody around here who's been asking for these things, exactly what they need.
Number two, the levy provisions for the current law should be simplified by their elimination. They're an obsolete relic from an analogue and continental European socialist collective approach that has been rejected in the USA, UK and Australia. By keeping the levies and we're still, by adding a so called iPod tax, we will greatly hinder WIPO ratification because the national treatment principal required will ensure that Canada's levy liability will literally be doubled at a possible cost of hundreds of millions of dollars a year. The levy scheme is wholly contained in part eight of the copyright act, just snip it and it's gone. It's that simple and the door will then be open for WIPO ratification.
Number three. Levies should be, sorry, remedies. Remedies should be simplified so that the punishment fits the crime. Statutory minimum damages should be simply eliminated other than in circumstances where there's clearly provable commercial scale and for profit activity involved. Canada is not a place where it should even be theoretically possible to have a two million dollar judgement for downloading twenty-four songs against a single mother as we saw a few weeks ago in Minnesota. The Canadian music industry failed in a similar attempt a few years ago, now it wants the law changed to make it easier the next time. Don't give them the opportunity because they will surely use it. And don't even think about three strikes or graduated response. That'd be like taking away the family car cause the teenager gets a speeding ticket. It doesn't make any sense, it's a political disaster, minefield.
Number four. The circumvention debate should be simplified by making circumvention clearly legal for any legal purpose such as fair dealing, time, space, format shifting, bypassing regional coding, access for the blind or other perceptionally handicap persons, archiving for back up purposes and of course, repairing a computer when certain companies try and download malware onto it in the name of DRM and TPM, anti-circumvention. Any product that is capable of substantial non infringing use should be legal, otherwise we'll never see again such innovations as photocopiers, VCR's, personal computers, iPods, etc. To simplify the DRM, TPM circumvention debate, we just need to remember one simple principal which is that Canadians need protection from DRM and TPM and not for it.
Number five. We need to clarify and simplify the complex question of whether copyright law can be used to control or even prevent free trade and legitimately articles sourced from abroad where the copyright involves only the packaging or labelling or other merely incidental aspects, elements or aspects of the product. Copyright law was never intended to restrict free trade and competition in products such as chocolate bars or wrist watches.
Number six. Above all we need to simplify it by ensuring technical neutrality and clear general language. Our 1921 legislation which was based on the classic 1911 British template comprises the core of our current legislation and it's still pretty good, it still works quite well. It was short, elegant, largely technologically neutral, even at a time of very, very great technological ferment a century ago.
So, to conclude, Canada has a choice now which is to have one of the best new copyright laws anywhere in the world, or to have one of the worst such as Bill C–61 would have given us. We do not need another fifty page quote made worse in Canada, end quote, in comprehensible, C–61 type rewrite of the failed US DMCA approach. We should emulate the best of the US and other statutes, not the worst. My half dozen suggestions could be drafted in a matter of days, not weeks or months. If the bill is more than half a dozen pages long or so, we will already be in big trouble. We already have one of the strongest and best copyright laws anywhere in the world, let's take this opportunity to make it even better. Thank you for your attention.
Chris Pang: Thank you. My name is Chris Pang and I'm here representing CanWest Broadcasting. Just by way of background, we're one of Canada's largest television broadcasters and our television business encompasses our conventional television network, global, as well as eighteen speciality channels, including some of the country's most popular, and of course the online sites and each portals of each of those services. We're also Canada's largest publisher of paid English language newspapers and in addition, our online brands and sites are a leading source of news and specialty content aggregated at canada.com. All of which is to say we're significant users of and owners in copyright content as well as broadcast television signals.
Despite the fact that we're a newspaper publisher, I'm going to restrict my comments today to broadcast related matters. We see our relationship with content creators as symbiotic. They create compelling audiovisual content and I should point out that members of just about all of the talent guilds that have appeared at these round tables have worked on programs exhibited in our media. We promote broadcast and provide exposure for the content which in turn generates revenues from which copyright payments are made back to the creators. Audience get built and created and the cycle begins again. We certainly want this relationship to continue now and in the future and we think that copyright reform can certainly play a part in ensuring that it does so.
The preamble to Bill C–61 stated that the copyright act should support creativity and innovation through clear, predictable and fair rules. That sums up well the direction we think copyright reform should take. On the user side, we think that clear, predictable and fair means ensuring that the total tariff burden placed on us fairly reflects the value being gotten, both the value being gotten from us as the user of the content and also the value being gotten from the creator in terms of the promotion and exposure that it provides to them.
We look at radio where I think it was mentioned in a previous town hall that up to a eleven different payments to different groups are required to play a song in the multi platform world. As a television broadcaster and digital company, we get concerned that we head down a similar road for audiovisual content. Even today, CanWest pays well over a million dollars monthly to clear performance and communication rights for music that plays in our television programs and that's only one tariff for specialty and conventional television. Already in Quebec some television broadcasters face reproduction tariffs and most recently, the neighbouring rights collective for Bose commercial television tariff number nine which if they are successful in getting certified as currently proposed will mean an effective doubling of our tariffs which are already over a million a month. And that's only what's being proposed to date.
So the concern is kind of a proliferation of novel tariffs and under the current act, we just don't know if this is the tip of the iceberg or not and I guess that speaks to the whole issue of certainty and predictability that obviously we would love to see addressed in some fashion as part of the reform. And it's not just television or radio. The same concerns apply for use of audiovisual content for digital platforms. And so we support reform for a single use, single payment structure for copyright tariffs that does recognize that the value pie rightfully should be split amongst the various parties but that an ever increasing pie becomes unsustainable at some point. We understand that we have to pay for the fair value of copyright content that we use including music. We simply want to ensure that we continue to have a fair value exchange now and in the future.
I'll just have one more brief point and I'll leave content aside and look at it from an owners perspective and basically say that we do support changes to the act to recognize a broadcasters right to be compensated for retransmission of our local television signals. I know it's an issue fraud with baggage and it continues to be part of the CRTC regulatory agenda but I would be remiss in not at least mentioning it in this context since after all, it can be couched as a communication right issue under the copyright act. Suffice to say, it's an important issue for CanWest given the continuing structural declines in our conventional television revenue model. I'll leave it at that recognizing that full consideration of that issue is probably beyond the scope of the session. Thank you.
Stuart Wuttke: Good afternoon. Once again my name is Stuart Wuttke. I'm with the Assembly of First Nations. The Assembly of First Nations represents over six hundred and thirty-three First Nation communities across Canada. We represent the First Nation leadership and also it's citizens both on and off reserve. The Assembly of First Nation is of the position that the current copyright reform package that's focusing on digital technology is too narrow for our purposes. At the outset, the Assembly of First Nations has been involved in many a discussions with respect to copyright intellectual property, traditional knowledge and use of genetic resources at the international level under WIPO and the convention of biological diversity.
We have been working towards and advocating for an internationally binding legal regime to protect Indigenous peoples traditional knowledge, use of genetic resources, knowledge of our medicines and other intellectual property related issues. Mainly because we feel that current intellectual property laws including copyright are too narrow and do not adequately protect First Nation cultural expressions including our traditional knowledge, environmental knowledge and knowledge of our genetic resources.
First Nation cultural expressions such as dance, songs, performances, stories, legends, oral histories are frequently appropriated by third parties, reproduced, copied, adapted, commercialized by third parties without any benefits flowing back to First Nation communities or inventors. And we see that as a continued problem. AFN and many First Nations people are seeking adequate intellectual property laws that, including copyright that provide meaningful redress to infringements by third parties of our intellectual property rights.
However, Canadian current copyright laws foster the misappropriation of First Nations innovations and created endeavours and allows for the granting of erroneous or invalid intellectual property rights by third parties and non Native people. At this point I would like to provide some comments on the incompatibility of current copyright laws with respect to First Nation peoples and our cultural expressions. First of all, the originality requirement. Many of our stories, our traditions, our performances go back generations, hundreds of years, perhaps thousands of years.
Originality requirement under current intellectual property regimes sort of prevents any protections for our cultural expressions. A requirement that there should be known authors is also equally problematic in that our intellectual property, our cultural expressions, our stories, etc., our songs, may not have known authors. The ownership itself requirement is an interesting component of that who actually owns our traditional expressions is a problematic. In so far as recordings, film and other current copyright protections, it's usually the producer that owns those, not the First Nation communities that are the inventors of these cultural expressions and stories.
Another problem with current copyright laws is the fixation requirement that our oral traditions, the way they are preserved and protected and promoted in our own communities today are not necessarily fixed in media, in books or film or anything like that. And because there is no fixation with respect to our traditional cultural expressions, it's not copyrightable or protected under any intellectual property type regime which is problematic. There are also, current copyright law, one of it's objectives is to foster innovation, creativity and eventual public domain of works. And there's also the ability under current copyright law to allow for imitations and adaptations of themes and concepts surrounding peoples works and works that are protected under copyright. And we feel that those adaptations and imitations of First Nations traditional cultural expressions is, amounts to theft in our view.
The public domain is also an issue with respect to cultural expressions where as I mentioned previously that, and the objective is to ensure that all works enter the public domain at some point. With respect to traditional cultural expressions by First Nations and many indigenous peoples around the world, there is an inherent interest to ensure that that knowledge and ownership vests in the community in perpetuity and that the public domain concept is something that's foreign to us and something that's at odds with many of our aspirations.
And last of all, the time limits with respect to current copyright and other intellectual property. The terms themselves are not something that First Nations people would like to see as far as, you know, a period of time after the death of an author but we would rather seek the ownership of our intellectual property, our traditional and cultural expressions in perpetuity and that the rights flow from our communities from generation to generation in the future.
As with past discussions, the Assembly of First Nations would like to work with federal government and other people to develop an international, I should say, develop appropriate legal mechanisms that would afford appropriate protections and meaningful protection for First Nations innovators and creative endeavours. These would include further work and discussion on ownership and perpetuity, prevention of unauthorized use of traditional and cultural expressions, prevention of insulting or offensive use of third parties of our cultural expressions, preventions of distinctive characteristics of First Nations cultural expressions, prevention of third party obtaining erroneous intellectual property rights over our innovations and our expressions, and seeking unauthorized disclosure of secret cultural expressions.
In our view, an appropriate resolution of many of the issues with respect to First Nation cultural expressions and the protection of that would be the recognition of our customary legal regimes and laws with respect to intellectual property of First Nations peoples. However, given the governments continued appetite to look at these issues and address them in a meaningful way with First Nations people, we feel that if the government continues to exercise it's powers for First Nations people under section 9124, the AFN is of the opinion that the duty to consult and accommodate is a requirement that the Federal Government has to pursue in these discussions and on these issues. And at the very least, there should be a duty to look at our concerns and develop and discuss meaningful options with First Nation communities.
The continued authentic cultural expression of First Nations peoples is very important to many First Nations communities. And to just add some context to this of it's importance, throughout the past with respect to the residential schools and the toll that's had on many First Nations peoples and the, trying to stamp out the Indian in the Indian child, along with the sixty scoops where there was forced adoption among many First Nations children, these events have had immense impact on our communities, caused quite, devastation.
One thing that, one of the main elements that has kept our communities together and our cultural identity in tact is our cultural expressions, our stories, our dance, our performances, our artwork. And because of, we are able to maintain those and we are maintaining the authenticity of those, our cultures, our languages continue to flourish in many areas of Canada. That is the reason why many First Nations people want to see the continued protection of the authentic cultural expressions of their communities to ensure that this transmission of knowledge can be passed on from generation to generation, includes our histories, our stories, our identity.
And the imitation of that, the adaptation of that and continued allowance of that under current intellectual property regimes or patents or trademarks or whatever, really prevents First Nation communities from holding onto their history and disseminating that for future generations which we see as a problem. And that being said, we would like to work with the Federal Government to find meaningful solutions with respect to these issues and thank you for your time.
André Cornellier: Good afternoon. Thank you for having this. My name is André Cornellier. I'm the Chair of the Canadian Association of Photographer Administrator in Communication known as CAPAC and Co-Chair of the Canadian Photographer Coalition. In each capacity I'm here to congratulate the government for including provision for photographer in the last and act to amend the copyright act. And I ask that you continue to support future legislation.
The coalition represents fourteen thousand professional photographers, over ninety-five percent of which are small business people. The coalition primary concern is how the current copyright act places photographer at the (inaudible) relative to our international peer and other Canadian creator. Photographer are the only exception in the Canadian copyright act, the copyright of a commissioned photograph being awarded to the person who commissions the work and not to it's creator. Furthermore, in almost every industrialized country including Australia, France, United Kingdom, United States, photographer retain first ownership of their copyright and commission work.
Because of these provisions, international photographers are able to generate revenue from licensing additional rights through stock photographing and library sale. The provision containing in Bill C–61 would have had (inaudible) in equality and would have created a fair balance between creator and user. Bill C–61 would have provided Canadian photographer with first copyright in their commission work while at the same time, providing Canadians with assurance that their photo could continue to be used for traditional purpose.
I would like to give you a point of view of a small business person which I am, from the copyright act right now, how is it worked. Since ten years ago, the photography became digital and because of that, we have to invest about a hundred to a hundred and fifty thousand dollars a year more than we used to. We used to buy a camera that would last twenty-five years, thirty years. Now we have to buy a camera every two years, plus computer, plus software, plus website. Those money have to be generated from new income. In all other country, since photographer have their copyright, they can put their work into start library, like Geddes and Corbis and all that and sell their work everywhere in the world.
An agency like Cossette, it's a Canadian agency, spend over a million and a half a year, in buying stock photography. And most of that stock photography comes from Geddes and Corbis, American companies. So if Canadians cannot participate in that market, we don't have the revenue that these, the other photographer have, and we cannot sustain the spending that we have every year to compensate. So for us it's a very urgent matter because mostly of that problem and the recession right now and we would encourage the government to pass that law very soon. We have just, we would like to discuss, we did start to discuss with the department, a little technical adjustment in what was presented in C–61 and we'd like to discuss it further with your department. Thank you.
Elliot Noss: Thank you. Elliot Noss with Tucows Inc. Tucows is the largest wholesaler of internet services in the world and when I talk about internet services I'm talking about domain registration, hosted email, digital certificates, things of that nature. Again, in my role there as CEO, I get a unique opportunity to see internet services markets around the world. We have thousands of customers in over a hundred countries around the world and I get to see the internet services distribution networks throughout the world.
One of the unique perspectives that that gives us is as it relates to some of the things that are discussed here with ISP, levies and the role of service providers as policemen, I'm going to try and focus my remarks there. I do want to make two other preparatory comments. First, we have a submission that we'll be making that we blogged yesterday on the company blog. I would urge all of you to take a look at it, Tucows News. There is more general comments about copyrights and innovation and certainly listening to some of the comments around the table would really urge everybody here to take a few minutes and read those comments.
In my role I've gotten to see, play a very early part in policy through cape in the early ISP formation in Canada and for the last ten years, very active in ICAN which regulates domain registration and is somewhat unique in terms of governance and the internet. And it's given, again, a couple of unique windows. There's lots of talk in the previous round tables, some here, about the role of service provider as both policeman and tax collector and I have a couple of comments specific to those. First, when we're talking about service providers as policemen, we need recognize that we are not solely talking about access providers.
There we are also talking about web hosting companies and other internet service companies who have very different structures from those of internet access providers. Those tend to overwhelmingly be smaller businesses. There are thousands of them in Canada, they employ tens of thousands of people. They do not have legal departments. They do not have, you know, great regulatory lawyers like we see some of the largest access providers have today who can speak for them. All they are are small businessmen trying to help real Canadians, real Canadian businesses, small businesses like we hear about here today, use the internet and make it more effective and easy for them.
To turn those people, to turn those small businesses to any greater policing role than they have today is a burden that hurts them when they are competing with service providers from all over the world which they are, when you're selling web hosting services. And it also favours larger companies at that point and hurts the smaller businesses.
Next, the role of service providers as tax collectors. Again, an unnecessary burden on these service provider businesses. And it's very important that we think about the world that we may see, not the world we live in today. Today in Canada and with all due respect to those around the table, Canada has a disastrous broadband situation today. It's one of the worst in the OECD and that's just the start of the story because what it is, is it's also significantly worse than a lot of newly developing and developed countries and that's the real shame.
I have seen access markets all over the world. In order for our, for the Canadian broadband market to improve, it will need to become more competitive that will naturally introduce newer and smaller entrants. We cannot place tax collection burdens on the industry, big or small. We will only hurt our own broadband situation which is again, horrible today. And I'll tell you that the biggest restrictions on distribution innovation in the country today are not a lack of copyright protection, but it's our bisontine rights structure that we've heard something about, and our poor broadband.
The last thing I want to talk about and I've read a number of the transcripts of the various round tables, public forums, is I want to talk about you guys, I want to talk about Nicole and I want to talk about Dean and I want to talk about the rest of the people who are here on behalf of the government. You have a unique opportunity here. I really applaud you for putting on this consultation and doing it in a way that is very internet savvy. You are embracing the tools that are in front of you. That's half the battle. That's the easy half the battle. What we've seen in politics as it's become more open to public input and less subject to capture by special interest and lobbyists, is we've heard the voice of the people which is now easier to find, make itself known.
We saw this in the backlash to C–61 and we are certainly seeing this in the participation inside of this process. But again, that just puts all of you in the position where you can do something. And what I'd really urge you to do is to take the opportunity to be brave because I promise you, if you listen to the voices that you're hearing, it's very easy to know what the right thing to do is. And I should note, that if I would have, if Howard Knopf would have been good enough to provide his comments in advance, I might have chosen not to show up today so there's a nice set for you. It's easy to know what the right thing to do is, it's hard to do it.
And I promise you that as you move toward doing that and listening to what people are saying, to what Canadians are saying, you're going to receive threats and you're going to receive all sorts of scare tactics from the rights cartels and the vested special interests. That is their job. That is their responsibility. One of the things that we've seen in our view and in ICAN is that if you give rights to special interests, they will use them. And not only will they use them, they will abuse them. And that is their job. It's your job to focus on listening, to separating the truth from the noise and landing us with legislation that is great for the Canadian public. Thank you.
Susan Wheeler: Thank you. My name is Susan Wheeler and I'm here on behalf of Rogers Media. Rogers Media owns and operates fifty-three radio stations, the OMNI television and City TV television stations, five national specialty services and Canada's premium magazine publishing and sports entertainment properties. My colleague, Ken Thompson participated in the Toronto round tables earlier last week and made representations on behalf of Rogers cable, broadband and wireless properties. We thank you for inviting Rogers to participate in these round table discussions and share our views as a broadcaster and cable internet and service provider.
As broadcasters we are both owners and users of copyrighted materials. We are also a key link between owners and users of copyrighted material by helping to create value for these works in the aggregation, promotion and exploitation of content on multiple platforms. We therefore have a unique appreciation for the balance that is required to ensure both users and creators copyright interests are respected. Given the volume of issues that have been discussed in these consultations, I will limit my comments to two key areas that are of significant importance for broadcasters. One, the need to limit the liability for incidental digital activities and two, the need to streamline collective administration for copyright payments.
So first I'll turn to incidental digital activities. What does this mean? Well, for radio broadcasters it means receiving a digital music file from a music label and transferring it to our computer servers to make, to prepare for broadcast. Under the current copyright laws, this simple activity triggers a copyright payment based on what is known as the reproduction right. Radio stations now face six copyright payments for the same activity, putting music on the air. Four of these are for the reproduction right and are payable to the same rights holders who also receive payment for the broadcast itself. In our view, this unfairly penalizes broadcasters from embracing new technologies and finding a more efficient way to reach their audiences.
We are asking for an exemption to be included in the new legislation that would ensure the process of making digital files broadcast ready, does not trigger additional payments over and above those already made for the broadcast of the music. I want to be very clear that broadcasters believe in fair payment for the use of copyrighted materials. In seeking this exemption, we are not trying to deprive rights holders of payments for the legitimate use of their works. Radio broadcasters make significant payments to rights holders for the broadcast of their music and have been extremely supportive of music artists through both on air promotion exposure and direct funding to Canadian music artists.
Last year alone, the industry contributed over twenty-eight million in Canadian content development funding for the creation of sound recordings and domestic and international touring and showcasing. Broadcasters gain no revenues from reproduction or transfer of digital files. Revenues flow from the broadcast itself. Changing the format of the music file to prepare for broadcast is incidental to the main activity which is the broadcast.
We are calling for a balanced approach to copyright that will limit users liabilities for these kinds of incidental activities that are required to be performed in order to exploit content using new digital technologies and platforms. We believe this is essential to encouraging innovation and fostering the development of new business models for cultural products which will in turn benefit all stakeholders of the system.
The second issue is collective administration. Any new copyright framework cannot effectively be implemented without clear parameters on how to value the rights. As I mentioned earlier, radio broadcasters face six different tariffs for the broadcast of music. Over the years, radio broadcasters copyright payments have increased with the number of rights holders who have filed tariffs. This is the logical. Music is a single value to broadcasters. It does not increase or decrease in value depending on the number of rights holders claiming payment. Moreover, until recently these tariffs have all been subject to separate proceedings creating huge inefficiencies in time and costs.
This has resulted in long delays in copyright board decisions which were then applied retroactively creating huge business uncertainty as it relates to copyright liability. Broadcasters are operating in a fast changing, media environment and are under constant pressure to adapt their business models to this new reality. In this environment, cost control and certainty are extremely important. Predictability and certainty regarding copyright liability is essential to ensuring broadcasters can properly manage the risks and the opportunities created by the new digital environment which in turn, will ensure they can continue to create value in the system for copyrighted materials.
We strongly believe there's a need to rethink our current approach to collective administration and develop a more efficient system that allows broadcasters to make one single, fair payment for the use of content. Thank you. That concludes my remarks and we thank you very much for allowing us to participate in these round table discussions. Thank you.
Dean Del Mastro: I just would note it's 2:30. Let's tentatively extend till three o'clock and we'll see if that gives everybody an opportunity to participate in a little discussion. I have a number of questions that I'd like to lead the discussion off with. Mr. Knopf, obviously I have heard you provide evidence before. You never disappoint with your presentations. It would seem, and Mr. Noss noted this, you came forward with a number of suggestions that for some groups, many that I've spoken to that are not here and some that are present would consider non starters in copyright negotiation. Is, in your view, the suggestions that you've made, are they compliant with WIPO, are they meeting are WIPO obligations or are they somewhat lack in that regard?
Howard Knopf: Every one of them is compliant with WIPO of course and I, there's no reason in the world why we shouldn't implement and ratify WIPO. The question is how you go about doing it. I mean do we want WIPO plus max and beyond as some have called for or do we want WIPO in a way that will help Canada. There's absolutely nothing I've suggested that would be contrary to WIPO.
Dean Del Mastro: Well just again, if you look at issues like format shifting and that's been brought up a number of times, digital locks and so forth, it would seem that under your provisions, your recommendations, that these would kind of be fair game, like go ahead. Digital locks would be something that you would largely be opposed to I would think by your suggestions and certainly format shifting would be something that would be a given under your suggestions.
Howard Knopf: Format shifting is perfectly legal in the United States which is the country that's putting the most pressure on us. The United States made it legal in 1984 to do a lot of the things that they're telling us now, they don't want us to do and their Supreme Court suggested, Supreme Court confirmed that. Sorry, what was the other point you just mentioned?
Dean Del Mastro: Well digital locks, we've heard a number of witnesses talk about digital locks.
Howard Knopf: Digital locks, well we've heard a number of people around the table, perhaps less controversial than myself, say that it should be okay and it is okay under WIPO to allow circumvention for purposes that are non infringing, that are legal. WIPO actually says very little about, I don't have it in front of me, but it says very little about what actually has to be done in terms of anti-circumvention. If somebody circumvents for infringing purposes, then they're liable anyway for infringement and that should be enough. If somebody circumvents for infringing purposes, maybe there should be an additional liability for the act of circumvention. But if they circumvent for non infringing purposes such as a blind person trying to, you know, do their job or do their homework or just get something out of life, I don't see why there should be a liability there and there's nothing in WIPO that would suggest that there needs to be.
Dean Del Mastro: Mr. Noss, just an extension from that, you mentioned that you have international experience in this regard. I have sat in on numerous meetings with my American counterparts as part of the Canada US group. We often get painted as a bit of a intellectual property right offender. We're not protecting it. Is that your experience? Because it would seem that the suggestions that you're making make most of what we're kind of, most of the activity that's currently being conducted in Canada would virtually make it legitimate with the exception of piracy of downloaded materials. Like we can't be as bad of an offender as we're painted as if these are the suggestions you're coming forward with.
Elliot Noss: That's right, and I think there's a couple of an emotional point there. If you part what you just said, what you really said was, you know, there's nothing that's really wrong except for the thing that's actually against the law. I think that would be right, that would be good law. One of the things that we experience, especially inside the ICAN process is how extremely powerful and politically connected the intellectual property lobby is. And you know, we see the rights cartels out in full force here.
For better or worse, and again I stress, I don't begrudge them their position, I think that's their job but I think that what we need to recognize is every time we strengthen these laws, what we do is we do create employment and generally for lawyers, not for artists. And you know, we have seen inside the ICAN process time and time again when there is something that the intellectual property community doesn't like and they're unsuccessful with inside of ICAN, they go right to the Hill. And here the Canadian, the largest Canadian lobbyists are really extensions of the large US rights holders.
So you know, it's a question of, it's really where I was going when I said look, they're going to threaten you and they're going to, you know, tell you about the terrible fates that will befall you. But at the end of the day when you stand behind people and users, you end up on the right side. I'll tell you that, you know, I've been in the internet since the beginning of the internet, since the first browser and the world neatly breaks into two groups, those who love the internet and those who fear it. And I can tell you that at the end of the day, the very rights holders who are most struggling against the change that we're talking about here are the ones that you will be doing the greatest favour for, by taking forward looking legislation because that will drive them to innovate instead of having them looking back in their rear view mirrors at the way the world used to be.
Dean Del Mastro: Okay, that's very good. Mr. Stairs, I just wanted to get your comments on some of this. I noted that you indicated format shifting as long as there's fair compensation for content, your group is okay with format shifting. Now I'm just kind of curious as to how far does that go because that was different from what I've heard from a lot of people in the music industry that are not frankly okay with format shifting and certainly what Ms. Wheeler was discussing, I believe Mr. Pang brought it up as well about when they go to reformat things so it's broadcast ready, they're often paying additional tariffs and so forth. That is a form of format shifting. Where does your group stand on this and if you feel if you want to contrast any of your views or agree with, perhaps, what you've heard from Mr. Knopf or Mr. Noss, I'd be interested to hear that.
Graham Stairs: Well you know, I mean it's kind of interesting to hear a lot of the comments. I mean I heard words like burden, I heard words like fair, you know, I mean first of all, I mean you have to understand that there are different groups within the music industry. So when the group representing the four multi nationals says they want to sue their customers, that's not something that we endorse nor is it something that we want. So to tar the entire Canadian music industry with that, you know, is neither fair nor appropriate.
The other thing is, you know, when I hear Mr. Noss talk about rights cartels, I'm just wondering who the heck he's talking about because I see corporations at this table, I don't see a rights cartel in my suit. Certainly, you know, although we represent large artists like Bruce Coburn or Bryan Adams, the majority of the artists that we represent are what I call working musicians, working artists. And you know, our organization is not nor is remotely a cartel. What we're interested in is protecting the content. I mean, and if I, and as much as we don't want to look back, I have to look back slightly.
I mean if you look back at the 60's in Canada, this was a very regional music industry. There was no infrastructure in place and part of the reason why we now have the infrastructure that we enjoy is because of content regulations at radio. And trust me, when some of the people at this table sale that they embrace and want to work with artists, radio did not at that time. They opposed it and they thought they were going to disappear and not exist again and yet they still make profits. But that Canadian content regulation allowed our industry to grow and a lot of the artists that benefit from factor which Rogers rightly pointed out, they contribute to, wouldn't have existed without that content regulation.
So I mean just to get back to your original point, I mean we're not here to be policemen as Mr. Noss says. You know, we're not interested in that. What we are interested in is you know, and I think a lot of people seem to forget, it goes right back to the content providers. You know, what we're interested in is allowing them to be able to exist to survive. It's not a question of, a majority of them, to be, you know, so. What we're really saying is yes, we're okay with copying for personal use. What we're not interested in is when people file share and you know, we're not going to go take them to court and sue them but we need some kind of protection in the same way that Canadian content regulations originally allowed innovation.
And that's another word that's been used around this table about stifling innovation. Well you know, if artists aren't allowed to survive, then that's stifling innovation. And we have a small, we have a large geographical area but a small population. In terms of music sales, we're about six in the world and we all have to in order to survive, do business outside of Canada. So we also are seeing people and how they do things and they all envy our factor system and which our artists are able to use government funding to make music and create content. But you know, as you were pointing, saying before, a lot of our colleagues in international territories, look at us as a third world country as far as copyright goes.
Dean Del Mastro: I was, and I don't want to attribute that comment to myself, I've heard it and what I'm interested in knowing is, is it accurate. And just on the broadcast ready portion and that was a comment that Ms. Wheeler made, I have heard that many times from broadcasters, that they're paying large fees to put files into broadcast ready formats, in effect, to format shift from how it's presented to them into a broadcast ready format. Does your group have a position on transition, format transition into broadcast ready format?
Graham Stairs: Well see, we represent artist managers and artists so we're not the record label so we're not as concerned about that, you know, I mean we're really not.
Dean Del Mastro: Well that's good. I mean what I'm looking to find out is if you have a position I'd like to know it and if you don't, then it's okay to say you don't.
Graham Stairs: You know, I mean I don't object to that but I think, you know, when I started in this business twenty years ago, things were a lot simpler. You know, then all I had to do was worry about whether the band showed up on time and they played and they got paid. Now I have to worry about, you know, an artist make up and the video, I have to worry about a lot of things over the internet, it's a lot more complex.
So I mean I understand, you know, that you want to cut down on your administration, I'd love to cut down on my administration as well, but the reality is you know, and somebody mentioned neighbouring rights earlier. I mean that's a right that the United States doesn't pay for, that we do. There are a lot of rights that have to be paid for. I mean that's just the reality. It's a complex reality but it's something that the, I mean, and we all have to keep remembering that all this complexity all filters back down to one simple person, the person who created that content originally. And you know, like I really think that we have to bear that in mind.
Dean Del Mastro: Thank you. Mr. Clark, I just had a question, you talked about resale rights. You said that C–61 didn't address resale rights. I just, I have some alarm bells going off a little bit because I think that that may potentially put us into, maybe explain how that works for me in other jurisdictions. Because, you know, I, I mean I'll give you a real simple example. You know, I've owned properties, real properties and sold them and people that have purchased them from me have subsequently flipped them and made a profit on them and I've never been entitled to anything further.
I mean I think that there was always a notion that when I sold it, I, you know, I attempted to get fair value for it. And when that they transferred onto the next person, if they then, if fair value for that somehow changed, that was to their benefit but if they lost money on it, it also didn't affect me either. So if I sold a real property and somebody then took a loss on it, I wasn't responsible, I didn't have to share in the loss either. Can you explain a little bit about how you see this working and why you think it's something that's necessary?
Kristian Clark: I mean I think you give a great comparison but I do, I do think that the exception was made for this type of property because the reality is, that artists around the world don't make a lot of money and that's not news to anybody here. The average income of an artist, a visual artist in Canada is about thirteen thousand dollars a year from his artwork. And I look to a country like the UK and before I cam to this consultation, actually looked at the collecting society in London that collects this money for this artist resale right there.
I think that the most recent statistic was that they had generated over ten million pounds which is just under twenty million dollars for sixteen hundred artists since 2006. So I think the European community has made some type of exception when it comes to cultural property or artistic property, recognizing that artists are not generating enough income from, you know, be it intellectual property or the initial sale of their artwork.
Dean Del Mastro: One of the things that's been brought to my attention and this may interest Mr. Labossière at the end, I hope I said that right. There are museums, certainly ones that I've attended, exhibitions, where you can actually put money into a machine beside an art piece, put the money in, hit the button and get a reproduction of that art piece. It's an income generator for museums and there are a number of people that are, that I've talked to in and around parliament, especially around state owned art pieces and things that would be owned by, for example, the Government of Canada around reproduction. Do you see a potential for, would that be something that your group would support providing that there was an opportunity for some kind of a share in revenue and Mr. Labossière, would you see that as an opportunity for your group to generate additional revenues. I'm just kind of interested in that.
Robert Labossière: So just for clarity you're talking specifically about, like print vending machines basically.
Dean Del Mastro: Essentially, that's what they are. They've got them in England and I've seen it.
Kristian Clark: Well I can't see it being a huge income generator for the visual arts community. I'd actually never heard of it before but maybe Robert has something else.
Robert Labossière: Yeah, it's kind of, the Gallery shop at the AGO has a print on demand type of service where you basically scroll through available images of works in their collection and you can order them and they're printed and framed and so on. I think it's important to kind of consider what works generally are being sold by that mechanism and they're generally more antiquities than contemporary work. Not in all cases.
Dean Del Mastro: If you're going to extend perpetual rights, and Mr. Wuttke mentioned that, and I think when we start talking about resale rights, I think we're getting into a perpetual right or an estate right. And I just wonder how that would implicate art museums, state owned collections because state owned collections obviously were purchased from creators at some point. They may belong to the state now but at some point, they were purchased from the creators and I just wonder, you know, how we address some of that.
Kristian Clark: I mean the estate benefits for fifty years and then that's it. I mean I think the Assembly of First Nations has put forward the idea that it would like this type of perpetual protection but that does not exist currently in the copyright act. So …
Robert Labossière: I think that, the reservation that I have about moving down that road is that it applies an entrepreneurial, commercial model to a sector where really it has been publicly, it's more in a public interest, it's a public trust and that, you know, museums have them and publicly institutions generally have made great strides over the past thirty years in terms of generating self generated revenue, successions of economic crisis, recessions have partly precipitated that, particularly through the 90's. And I think that, you know, my members have been very resourceful in terms of developing their revenue streams. At the same time, to say that they should be pushing harder, faster, further down that road, I think is problematic because it cuts to the fundamental core mandates of those organizations.
Dean Del Mastro: Okay great. Mr. Wuttke, I just wanted to ask you, just kind of an extension from this. I'm just kind of curious and maybe you can provide me some additional information as to kind of how you're, how you would propose some of the protections that you're speaking of. I'm just kind of confused as to how, as a Canadian, how could I police something that would be inherently Canadian internationally or how could I ensure that nobody could ever reproduce that if I can't attribute it to a specific individual. And I'd be very interested, I'm not saying that you don't have a valid point or that your position on it isn't something that should be looked at, I'm just struggling with how you could actually establish it and has the AFN actually looked at how you could actually establish rights over works that aren't necessarily attributed to a specific creator.
Stuart Wuttke: Yes, we have been working at the, with the intergovernmental committee in WIPO on genetic knowledge, folklore and traditional knowledge. And the way we see this sort of unfolding in the future is the establishment of an international regime. As has been mentioned here, I mean there is really no protections right now for First Nations with respect to a lot of their expressions such as you know, songs, stories that type of thing. Sure they can, someone can copyright that which does happen and those rights are attributed to a person not the community which is problematic.
There have been some movement towards going through contracts and using contract laws and other mechanisms to work with indigenous communities to use their knowledge or their expressions. But we found that that doesn't prohibit someone from voiding that contract or not even voiding it but breaching that contract and going to a different country and copyrighting it there or filing a patent somewhere else. That continues to happen. And contract law in itself is not an adequate mechanism to protect indigenous peoples traditional knowledge and cultural expressions.
Because of that, we are advocating for the establishment of an internationally, legally binding regime that sort of protects us, these aspects of intellectual property which are currently void in many jurisdictions. There has been some willingness amongst some third world countries, African group for instance, Brazil and other countries to develop an international regime and hopefully there'll be bilateral treaties with respect to those types of things developing in the next little while.
But we see that Canada having Indigenous peoples and also to ensure that, you know, our cultures are respected, our knowledge is respected and protected and it's, there's a, you know, it's not misappropriated in any way, I think there's a vested interest in that cause as people mentioned, I mean there is an element to you know, Canadianness and having a country move forward together into the future and without these protections, really we'd be left out of the Canadian framework as always.
Dean Del Mastro: I look forward to receiving your suggestions on that just cause I need to understand how you could, and maybe Mr. Knopf, sorry, if you had some comments on that, from a legal perspective how you could …
Stuart Wuttke: Before I go, I do have some written comments I can give you after the meeting.
Dean Del Mastro: That would be great, I'd appreciate that.
Howard Knopf: (inaudible).
Dean Del Mastro: No, if you wanted to, I just saw your hand up, I recognize you there.
Howard Knopf: Thank you. I just wanted to follow up and give you a better answer to your earlier question if I may. It'll just take me a second. You had asked me about format shifting. The case I referred to from the United States in 1984 was the Sony case, was really about time shifting. But interestingly enough, on the very subject of format shifting, just three or four years ago in the famous Grokster case in the US Supreme Court where I actually co-authored one of the briefs, Mr. Varilli (ph) who was the very famous lawyer for the US recording industry, the RIAA, the counterpart of Canada's CREA (ph) stated very clearly to the US Supreme Court that he saw nothing wrong with shifting CD's that somebody owns over to their iPod. And Mr. Henderson of CREA has said the same thing in Canada. So what I've said today is perfectly consistent with what they've said and I'm frankly a little flabbergasted, I think I was caught off guard when you said things like that are a non starter because they're acceptable even …
Dean Del Mastro: They certainly are, and I can tell you I've had somebody in my office wave a finger at me and ask me why I don't understand that that's stealing. So I can tell you with some groups that that's …
Howard Knopf: Well the groups that I would have thought would be most upset about it have said it's perfectly fine which are the IRAA and CREA. And if they're happy, I think just about anybody would be happy.
Dean Del Mastro: Sometimes you have to understand, I'm going to play devil's advocate with you, I'm not going to attribute any comments that I make today to myself but they're certainly comments that I hear a lot and when I talk to groups I can tell you that several of the suggestions that you've made for some groups are non starters. And they get quite emotional about it.
Howard Knopf: Well that's unfortunate because I really was kind of restraining myself today, the things that are actually, for suggestions that I think are actually quite viable and would actually help to get this legislation passed.
Dean Del Mastro: Very good. Mr. Pang, I'd be interested to get CanWest's views on network PVR's. It seems to be a natural revolution of the broadcast system. And I, you mentioned at the end, you talked a little bit about what we commonly refer to as fee for carriage and I'm just curious as to why, my concern with the broadcast industry is not it's immediate health, it's its long term future in Canada unless we start to take advantage of some of the new technologies, stop looking backwards and see how to make money on old models and start looking forward as to how we make money on new models.
It would see network PVR's extend a real opportunity to broadcasters for example, to get new advertising content on something that could be watched over and over again. Greater reach to Canadians obviously as they'll be able to view shows on their schedule which doesn't always work, as you know, in broadcasting, once a minute in broadcasting has gone by, it's lost forever. But within the environment of a network PVR it would seem that that time continues and it just, and it rotates. It seems to be a new model and I'd just be interested to see what CanWest views might be on network PVR's and some of the opportunities that exist for new revenues.
Chris Pang: And that's a great question. And I think from a regulatory perspective, people in our company are pursuing that and trying to get new revenue models which it's on demand which I think is essentially what you're talking about but also in respect of consumers at home with their PVR's. And it comes down to kind of a consumer issue I think because for better or for worse, I mean over the past several years, it's kind of what people at home have gotten used to be able to do is to sit there with their PVR and to record a show.
And so if, I guess the question is, if we attempted to advocate for a change in that, somehow to reign it back in, I think there would be significant consumer backlash. It's because it's grown up just like time shifting has grown up over the past, you know, several years. And so I think we would look at it along with a total package of the reforms and in particular, we just want to make sure that other areas get treated on the same principals like Ms. Wheeler was talking about, kind of incidental reproduction.
And the fact is, just like a radio broadcaster, television broadcaster has many technical processes as well to get it into broadcast ready state, we don't make any money by doing those technical processes. We generate our revenue from exhibiting it. And so again, it's kind of an incidental use, it's kind of a, you know, ancillary use. So if we treat that on the same principals as the PVR issue, then you know, it's something, it's a proposition that we could probably look at to give us that exception on the reproduction side of things. So we would look at it as a, you know, as a holistic package of reforms.
Dean Del Mastro: Ms. Wheeler, you see network PVR's and so forth as an opportunity for broadcasters to bring in some new revenue. We know that, we talked a little bit about some of the cash strapped operations specifically on conventional television. Is that an opportunity?
Susan Wheeler: Absolutely. You know, I'll recognize that we have a bit of a different perspective as both a cable provider and a broadcaster but certainly we do see that a multi platform future for television content and it is about exploring new business models and new ways of monetizing our content. And certainly video on demand and PVR's are, have to be embraced in order to facilitate that, otherwise they're not going away.
So it's better to embrace it then it is to try to put it under a barrier as to prevent it or to try to preserve what we're comfortable with or what is the status quo. I just wanted to comment though however on Mr. Knopf's reference to Mr. Henderson's parent support for transfer format. It's a bit surprising since the AVLA which is basically the collective that represents the makers of sound recordings which are primarily Mr. Henderson's constituents, filed a tariff recently that if approved would require radio broadcasters to pay fifty-six million dollars a year for just the reproduction right. That's actually more money than we currently pay now for the communication and performing rights to the authors composers. So it is a bit interesting that he would take that position, yet file a tariff before the copyright board.
Dean Del Mastro: I have met Mr. Henderson and others respect to those issues so I'd be interested to see, I do believe his view would be somewhat different but I don't want to attribute any views to him. Mr. McTaggart, this may, ISP's is a, as policemen ISP's, as enforcers, is it something that is even realistic, is it as Mr. Noss says, going to give us a third world broadband system, prevent …
Dean Del Mastro: Sorry, just to correct that, keep us from moving out of third world into the first world, cause we're in the third world now with broadband.
Dean Del Mastro: You may not agree with that observation but just to get your comments. If we were to look at ISP's as tax collectors as some have indicated or as policemen of intellectual property rights, in your view, is that going to prevent investment into the industry and ultimately kind of cap access for Canadians?
Craig McTaggart: Well just to start obviously, I would disagree with Mr. Noss' comments about the industry but I don't want to take any of today's time to talk about that. I'm going to send him some enlightening information that I hope might educate him about the facts on the ground. But you know, with respect to ISP's role, no less than authority than the Supreme Court in the tariff 22 case said that in their role as access providers to the internet, ISP's are not responsible for what the customers do, they're not liable as a matter of copyright law.
And that general principal has served Canada well and absolutely anytime new administrative costs are added on that divert resources from productive purposes, that's a drag on our ability to invest and innovate. And ISP's find themselves in the middle of a lot of issues. There are a lot of groups that would like to make ISP's responsible for their particular concern and to solve their problems. There are some rights group that want to tax the revenues of internet services to fund the production of audiovisual content which would run counter to the Supreme Court's finding that ISP's are merely conduits. And it's a similar situation in the case of copyright enforcement.
I think what's important to note about graduated response type policies is that they are requests for ISP's to act extra judicially. They're requests for ISP's to act in the absence of a court order or some kind of legal justification for what they're doing. And you know, that's just another way that it's simply not something that ISP's can do and I think if you, it's not difficult to realize that the public is strongly against ISP's medaling in their content in any form and certainly spying on internet customers usage to enforce the rights of others, particularly others who have made it clear that they don't want to pursue their rights in court and they wonder why people don't see a credible threat. So I'll leave it at that.
Dean Del Mastro: Thank you very much. I just at this point, getting to what I was just going to go to. I'd just open the floor for anybody that has a comment arising from any of the discussions, if they've got anything they wanted to clarify just before wrapping up now would be a time for that.
Chris Pang: Just to follow up on your earlier question about the network PVR, I guess it occurs to be that one aspect about future monetization of that would, I think we would obviously be against any measures that could circumvent or block out existing revenue models, like the advertising that when you record your show on your PVR, you can get through it without seeing. So I think that's one thing. And kind of related to that is, I think they're doing really wonderful things these days with ratings, measurements and meters and that type of thing.
And I'm not quite sure whether we're there right today. I seem to think I read something or read something that we were or if we're not, we're certainly pretty close to actually being able to measure viewings PVR wise and if we are able to do that and it's reliable, certainly there's ratings there that we can then monetize and sell with advertising. So again, that's down the road. I'm not quite sure what the status of that is but if it's not there today, I think it's coming.
Dean Del Mastro: Thank you. Go ahead.
Howard Knopf: I didn't get a chance to mention it in my remarks but there's a wonderful new book out by a friend of mine in the United States, a friend of many of us, William Patry a very great copyright scholar, happens to be senior lawyer at Google. But this was written in his own capacity it touches, it's called Moral Panics, The Ongoing Copyright Wars or something like this. But the main title is Moral Panics, it's available right now and it touches on many of the issues we've heard about today which are, is basically the long, long history that goes back to the printing press and then to the player piano and then every new advance since then about how vested, vested copyright based industries, I won't call them cartels although some of them are.
Some of them are not cartels, it's a technical word. But in any case, they do their best to stifle innovation. They litigate and they lobby and they try to legislate against innovation until they finally figure it out that it actually helps them and then they usually end up making tons of money. We see that in this very exercise right now, the groups that are proclaiming that they're acting in the interest of creators or they're proclaiming that they're acting in the interest of innovation or actually trying to stop it dead in it's tracks because they're trying to preserve and bail out, not just a failing but in some instances, a dead business model.
And I strongly urge you to have a look at that book because you know, the old adage about those who don't, no history are condemned to repeat it and we've seen this with the VCR back in the 1980's. Jack Valenti wanted it outlawed. He said the VCR was to the American industry entertainment industry, like the Boston Strangler is to the woman alone. And had he gotten his wish, the movie industry probably would have gone bankrupt. But he didn't get his wish and the move industry went on to thirty years, twenty-five, thirty years since then of unparalleled prosperity, mostly because of technological advances that he tried to stop.
Dean Del Mastro: And we all got to find out how technologically challenged our parents were as my VCR flashed twelve o'clock for like five years. Anyone else, please go ahead Ms. Owen.
Victoria Owen: So it's Victoria Owen from the Ontario Library Association and I have been heartened by the support across the country from the previous round tables and other fora that have been going on in the consultation process with regards to the support for fair dealing, for a robust sense of fair dealing and that has been from all, pretty well from across all stakeholder groups. So I think that we should ensure that it's not undermined by our copyright legislation with any of the digital locks or the contracts that we've talked about. So I think that's a very positive step in terms of having some kind of a general agreement.
Dean Del Mastro: Okay, great. Please go ahead.
Chris Tabor: A question for Mr. Noss. You're selling a lot of internet services, broad spectrum of product. Do you see, if we don't get some answers to this legislation getting in place, do you see forum shopping, people going to jurisdiction where, you know, these laws are not archaic. We have servers for reasons that are unclear to me sitting in Delaware because there's something about Canadian servers. We have Americans due to the patriot act having data on our servers. Do we see businesses collapsing because we're rushing. These borders are pretty hard to police, these electronic ones.
Elliot Noss: Yeah, we see forum shopping today, we see jurisdiction shopping as it relates to services, we have Canadian data center for most customers outside of the US for email because they're afraid of the patriot act and if you're a US customer, you insist on it beating you there because you need to comply with it. We see that today. What we also see is jurisdiction shopping very clearly around enforcement of rights, around internet services. Domain names which is our largest business sit at the center of internet services, almost no internet service exists without them.
And what we see there in terms of the use and abuse of legal systems and jurisdictions is staggering and shameful and I wish I could say that it wasn't, you know, again, maybe I'm just a bit battle hardened. I wish I could say that it wasn't the rights holders who were, we experience the most abuses from in terms of that jurisdiction shopping. And right now by the way, I should note that the Canadian copyright laws as they are, not as strict as they are in some other jurisdictions, are a protection for us as a company and for Canadians in terms of expression of free speech, fair use, etc. The fact that we're located here and the domain names are located here.
Dean Del Mastro: Thank you. Anyone else? Please go ahead.
Stuart Wuttke: Thank you. Stuart Wuttke with the Assembly of First Nations. As our, my intervention sort of signified, there are a number of gaps and voids in the current copyright legislation that really don't afford protection to intellectual property of the First Nations people. And I think that, and we would urge the government to look at these issues and incorporate some of the changes in the copyright act to accommodate some of our interests to fill these voids in a sense. Thank you.
Dean Del Mastro: Anyone else? Go ahead.
Kristian Clark: I just wanted to quickly thank Graham and echo, I think, a comment he made earlier about, I think the importance of cultural content on a lot of these networks. I know there are many colleagues in this room representing certain corporations who certainly don't believe in any type of tax or levy placed on the consumer, placed on them to support the existence of cultural content. I believe it was called an unnecessary burden but I think that a lot of people are going onto those pipelines in order to access cultural content. And so I think in fact, it has a lot of value. Thank you.
Dean Del Mastro: Thank you.
Unidentified Male: (inaudible).
Dean Del Mastro: Certainly.
Elliot Noss: Thank you, I just want to be clear. I have no, in fact I'm greatly in favour of tax dollars used to support cultural industries. My only observation is using the service provider as a tax collector. Let that come out of the general coffers.
Dean Del Mastro: Mr. McTaggart.
Craig McTaggart: One more thing. You know, we've heard others talk about the proliferation of tariffs and the fact that tariffs can be piled on one above the other even though there is no new value that the tariffs relate to. And that's something that we experience quite seriously as a distributor of digital music, one of the largest distributors of digital music in Canada. And it's a little known fact that if you buy a CD in a store and walk out with it, there is no tariff added onto that act. But if you buy that CD online and you download it, there is a tariff added on. So far only one but there are folks lined up to add their tariffs onto it as well.
So we have a situation where distributors of legitimate content who are trying to support the distribution of content and monetization of it are forced to add on to the retail price an amount for a tariff where there is no new value associated with it. It's simply the process of delivering the file to the customer. So that's something we pejoratively characterize as a digital delivery tax. It's a serious problem, it's a technical one and it can be expressed simply but it's resolution is quite a technical one, it relates to the implementation of the making available right under the WIPO treaties. It's something that lends itself better to submission on paper and we've done that before and we'll do it again.
Dean Del Mastro: Thank you. I'll just, unless anybody feels they've been left out, I'll just close things off and thank everybody for coming to Peterborough. This is my home town, I'm very proud of it. You're only minutes away from the world tallest hydraulic lift lock. I encourage that you travel east and maybe take a look at it, stop at a store or a restaurant and tell some folks that you're happy to be here. I just, obviously the discussions today were very informative. I want to thank everybody for presenting their views and for giving us more to think about frankly and I think that's important, I think it's important that we consider everyone concerned in this, what will obviously be very sweeping legislation and try and come up with an act that is uniquely Canadian, that is also something that we can be very proud of. So thank you very much, I really appreciate your participation today.