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I would like to begin by thanking the committee for inviting the Canadian Civil Liberties Association to appear this morning to present its views. I will be as concise as possible so that everyone has a chance to be heard.
Founded in 1964, the Canadian Civil Liberties Association is a national organization dedicated to the protection of civil liberties in Canada. It has expressed its views on a number of occasions in the past with respect to the need to protect freedom of expression, the right to access to information and the protection of privacy. It is in that context that it is making its submission today.
With me this morning is Mr. Howard Knopf. He is a member of the Association and specializes in copyright law.
The CCLA has five submissions to make with respect to the bill.
Our brief is currently being translated, but you will receive it shortly. I will try to be as specific as possible, and I will, of course, be available to take your questions. The first part of my presentation will be in French, and the second, in English.
The membership of the Canadian Civil Liberties Association includes artists, authors, as well as educators, teachers and members of the public. It therefore has a special interest in the possibilities and repercussions of copyright reform.
Our first concern is that consideration must be given to the fact that we are all, in different respects, both consumers and producers of copyright. It is therefore important that the legislation properly recognize that duality in each community.
Copyright is obviously a core issue in terms of the debate and discussion that occurs in society. We know that the people who produce copyright have been consumers in the past and will be again. A society that seeks progress and innovation wants to ensure that all its members have full and easy access to information that allows them to expand their reflection and their social contribution.
[English]
CCLA wants to make five submissions.
The first is on freedom of expression. We note with great interest and approval and happiness that there is a recognition of parody in the bill and that parody and satire are protected and included in fair dealing. Our perspective has been that much criticism in our society, much freedom of expression, is expressed in the form of parody and through a sense of humour, and indeed a lot of political criticism takes the form of parody and satire. It is very important that they be protected under fair dealing.
I think, however, we are inviting the committee to consider the inclusion of the words “such as” in the fair dealing provisions under proposed section 29, with a view to ensuring support for the way the Supreme Court has considered the matter in the CCH decision, to support a constant recognition that fair dealing ought not to be a closed category, and to allow some flexibility in the system. In our view, that would be a way to ensure a proper interpretation of section 29 without causing a dramatic change.
We further note that Bill does not contain a blanket immunization against statutory minimum damages for educational institutions, such as exists in other jurisdictions--the United States, for example. This indeed would be a way to better protect the access to information through the mechanism of education.
Finally, with respect to fair dealing, an exception CCLA is particularly concerned about is the proposed educational exception for educational use of publicly available material. It is good, and we should have it, but the law is for everyone. To specify an exception just for educational use raises the prospect of this being interpreted a contrario in a way that would invite a different interpretation for the other provisions of the act, so that's a concern.
I think it's a concern that could be met by more cumbersome language that could be specific without changing the generality of what has been done, but it would be cumbersome language. Our view is that it's not necessary to have specific exceptions for education. Generally, I think people can download what's publicly available if it's done as fair dealing, and there's no need for the specific educational exceptions.
The second part of our submission is with respect to digital locks. In our submission, digital locks ought not to trump users' rights. The anti-circumvention provisions of Bill , as they presently stand, may trump users' fair dealing rights and other users' rights. This was confirmed, I think, in testimony that you heard before.
In this context, I think we have to make sure that we give the citizens the ability to protect themselves against threats. It's completely insufficient to say that Bill would allow for these exemptions--
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That's fine; I understand.
With respect to fair use, which you were discussing earlier with my Liberal colleagues, that is what you're looking for. The words “such as” translate as “tel que” in French. However, the situation in the United States and Canada is totally different. The United States has a population of a little more than 300 million, whereas Canada has 23 million Anglophones and 7 million Francophones. Furthermore, it's a well known fact that lawsuits are as natural as breathing in the United States, whereas here, we just don't follow the same practices.
In my vocabulary—and I'm pretty good in that area—that would be the equivalent of the French word “comme”. In other words, it is not restrictive. Those are only examples. The point is, it could be a whole range of other things, just as it could also be that. That is what the words “such as” mean. Of course, everyone will want to take advantage of the words “such as”. Do you believe that private corporations are not going to try and take advantage of this? Why, when they can afford a lawsuit here and there—and a great many of them can—would they not?
In order to please a lot of people, by allowing them to access a wide variety of documents free of charge, you seem intent on having the words “such as” added, but perhaps you haven't taken the time to reflect on what copyright started out as. Creative works belong to their creator. No one can take them away from them. Works can be temporarily ceded or transferred to someone else in exchange for money or in other ways. Creators may decide to sell their works, but those works will always belong to them. When people buy a CD, they are not buying a musical work; they are purchasing the pleasure of listening to it. People do not buy Luc Plamondon; they buy the pleasure of listening to his music on a CD. If they copy that work, or they use it in a school or somewhere else, the least they should do is pay the author for that work. I was going to say that it remains his for life. Let's just say that is almost the case.
You seem to want to respond to that.
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It was the same last week, and if I come again, it will still be the same.
Mr. Fast, that was a very good question. First of all, it's not the intention of the CCLA to diminish the income of writers and people who deserve income. The question is, how many times extra do they need to be paid, and do they need to be paid at the cost of educational quality?
As to including the word “education”, it's not a question of whether it goes far enough or not. We've suggested that from the way the court cases are going right now, including the word “education” won't make any difference. I have no idea why anybody's upset about it. If the Federal Court of Appeal decision and the Copyright Board decision stand, the word “education” means nothing, because the Copyright Board has decided that multiple copies or anything prescribed by a teacher doesn't pass the fairness test, so the word “education” is simply window dressing, if it's there.
We suggest that we adopt some of the better practices of the U.S. legislation. In our view, the courts and the board have got it wrong. We should specify that “education” may, if it's fair, include multiple copies in the classroom, and if the professor says you really should read this, that may be part of fair dealing if it meets the six-part fairness test of the Supreme Court of Canada.
So we're suggesting a bit of a narrowing of the word “education”, which should take away some of the irrational fears while overcoming the extremely restrictive condition imposed by the Copyright Board and upheld last summer by the Federal Court of Appeal. The problem with that restrictive interpretation is not that it's going to cost a lot of unnecessary money that does not get paid in the United States or China or the countries we need to compete with, but that it puts a chill in the classroom. Teachers think they can't tell the student to read something, because it's going to cost the institution a fortune. Let us suppose that an important article comes out on the front page of The Globe and Mail; if Madame Des Rosiers in her law school class has to teach something about an important event that happened that day, and it's timely to hand out something from the newspaper, the Copyright Board will say that those are multiple copies and that you can't do it.
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Here is a very good example of why we need to allow consumers to exercise the benefits of technology by enjoying the software that they've paid for or that their family has sent over from India with regional coding, as well as by using their hardware.
In 1982—I'm answering your question, Mr. Angus, but it's also relevant to the previous question from Mr. Fast—Jack Valenti, who was the head of the Motion Picture Association of America, very famously told Congress that the VCR was to the American entertainment industry and the American economy as the Boston Strangler was to the woman alone. He wanted to have the VCR crippled at the time by removing the TV tuner part of it. He said, “Oh my God, people are going to tape things in the afternoon and watch them at night”, and Sony said yes, that was the idea.
We all know what happened: two years later, the Supreme Court said to Jack that it was good technology and it was going to go ahead; it was fair use. The rest is history. Congress and the Supreme Court saved the motion picture industry from its own foibles. Everybody was better off by allowing consumers to use this new technology.
What we're saying is that consumers should have the right to use the hardware and the software that they have legitimately acquired, so if they want to make a copy of an expensive Blu-ray to protect it from being scratched by the dog or broken by the kid, there's no problem with that. There should be no problem with that. If they want to make a copy to play in their car and they've already paid for it, there should be no problem with that.
Will the industry get it right by itself? Mr. Valenti showed that if they can possibly get it wrong, they will, to everybody's detriment—not just theirs, but society's.
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Well, I think the Valenti example is excellent, because yesterday's pirates are now the ones demanding protection. We can go all the way back to when Hollywood was an outlaw pirate haven escaping the Thomas Edison Corporation copyrights. They created Hollywood. Then Sony were the pirates who were going to strangle the Hollywood industry because they were pushing the VCR technology. Now Sony, of course, wants to sue every kid who downloads one of their movies. What goes around comes around, and it will continue on into the next generation.
I hear my colleagues over on the other side with their blind faith in the market. It doesn't correspond to reality. When young people who buy a product try to access it and find there's a lock on it, they're told to go and talk to Sony and work it out with them. What they do is simply go and download it.
I don't know if you have seen the Herefordshire, U.K., study on downloading music; young people don't mind paying for music, but they want access. If you deny them access, they'll get it anyway.
I'm interested, though, in terms of the digital lock provisions. I know article 10 of the world copyright treaty says that within states that are signatories to the world copyright treaty, exemptions that have been defined in national law can be carried forward into the digital realm. An example is the right to parody and satire. The right to be able to extract something for parody and satire can be carried forward. It's within the WIPO Copyright Treaty. Many of our WIPO-compliant countries—19 or 20 of them at least—have language that clarifies the role of the digital lock. It protects the digital lock from counterfeit and prevents people being able to take works unfairly, but it defines the rights and guarantees the right of a nation state to allow the exemptions that have been created by law to exist.
With regard to the Conservative position on digital locks, would you suggest that it's not even more extreme than in the United States, where recently there were definitions of right of fair use to limit digital locks?
My question here is this: how do you see Canada defining digital locks in terms of our obligations internationally?
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Mr. Angus, I agree that the WIPO treaties permit much more flexibility than is in this bill. We agree with that. There's no problem under the treaties about having exceptions as long as they meet the three-step test and other provisions of law, so we can allow for fair dealing and for backup copies as long as they don't impair the market or cause economic harm. We can allow for all of those things, and we can allow consumers to protect themselves.
You mentioned the example of Sony. Much more recently than 1982, just three or four years ago, Sony famously issued this CD with the so-called rootkit on it that destroyed millions of people's computers. It didn't just phone home; it went further. It crippled a number of people's computers. The irony was that under the U.S. law at the time, it was actually illegal to try to repair your computer, because you would be interfering unduly with the TPM. That's an extreme example. Obviously corporations don't wish to do that in the marketplace, but it happened.
Yes, we can have these exceptions, and those who say we can't are simply wrong in law, both international and domestic. The WIPO treaties have a great deal of flexibility, and if you read the detailed analysis, the legislative history of the WIPO treaties, which has been set out quite well in Professor Michael Geist's book, that's very clear. We can have those exceptions that allow users to do something that would otherwise be infringing.
Good afternoon. My name is Alexander Crawley. I am executive director of the Professional Writers Association of Canada.
We represent the interests of Canadian freelance writers of non-fiction works and have been doing so for 35 years. We welcome this opportunity to offer our perspective on this reform process that is so vital to Canada's success in adapting our law to enable a thriving digital economy.
We will begin by reflecting on the committee process itself and will then highlight the issues that most affect writers and the direction we feel you must take to balance and strengthen Bill . Finally, we will tell you what we like in Bill C-32.
First, we take you back to the observation of a witness you heard on the first day you opened the process beyond politicians and civil servants. Professor D'Agostino, of IP Osgoode, accurately informed you that individual creators are caught between corporate users of their works--that is, publishers, manufacturers, distributors, and retailers, and in the digital area, web-based services and ISPs--and the final recipients of our works, the individual users as consumers and as citizens. We need a law that clarifies our relationship with both types of users.
With appropriate recognition of our rights, we can negotiate with our industry partners, but we can't sustain our businesses without the fundamental principle, in the law, of compensation for use.
Next, we remind you of the testimony of freelance writer Douglas Arthur Brown on December 13 of last year. Mr. Brown provided clear evidence that illegal copying in the education sector is a real danger that is going on even now, and that by adding the term “education” under fair dealing, this bill will bring about a huge spike in such market-destroying behaviour.
We finally go to February 1, when Bill Freeman, freelance writer, and Marvin Dolgay, freelance composer, clearly outlined how this bill, as drafted, imperils their livelihoods and--more significantly, from the public interest perpective--imperils the very possibility of a new generation of creative Canadians sustaining themselves and a digital economy.
Our members' writings appear in magazines and newspapers of every size and description and in every region of Canada, online and in print. Digital technologies make their replication easy and efficient and provide the diversity of voices that give Canadians access to the rich and varied perspectives on which a healthy society depends. All of our writers encourage the copying of these works by educational institutions, corporations, government agencies, ancillary publications, online aggregators, and, of course, individual Canadians, but as with any small business, they need to be compensated for these uses of their property.
A strong system of collective rights administration is by far the most practical method of assuring appropriate compensation for these secondary uses that abound in the digital marketplace. We can and will continue to negotiate primary uses with our partners in industry. Everyone recognizes that models are changing and that the new tools can allow creators to reach the market much more efficiently than ever before. Indeed, we think we can compete with old models if we are allowed to develop our businesses through appropriate recognition of our rights in our own works.
For PWAC, the Professional Writers Association of Canada, these are our priority issues with Bill .
First is the addition of “education” as an exception under fair dealing. This will deprive PWAC members of between $500 and $5,000 a year in income from secondary uses through our collectives. If the committee can't find its way to delete this provision for political reasons, we ask that at a minimum you define its application in such a way as to strengthen, not weaken, collective rights administration.
Second, on the test for fairness under fair dealing, we support the inclusion of the Berne three-step test that fulfils our international obligations, and we are heartened by indications that the committee will invoke it through the amending process. We certainly hope you do. We prefer CCH, by far, for obvious reasons.
Third, concerning the limit to statutory damages, the recent settlements in the class action suit Robertson v. Thomson and a subsequent suit involving Torstar Corporation and other publishers showed the level of damages to freelance writers that infringement can cause. The amounts there come to over $15 million paid to freelancers by major Canadian publishers. We have provided copies of the Supreme Court decision, in the first case, for your better understanding of the issue.
We have no objection to the concept of limiting damages for individual non-commercial infringement, but the system currently in place for institutional and commercial infringements should be retained.
With respect to the safe harbour provisions for ISPs, we need those who deliver our works to their markets to actively support the principle of compensation for use. Notice and notice will not change the culture of rampant illegal copying. We need a graduated response that contains a real incentive to diminish it. Better yet would be a new business model based on a true partnership with ISPs along the lines proposed by the Songwriters Association of Canada, but we understand that this is beyond the scope of this committee.
These are our primary issues with Bill C-32, as drafted.
On the positive side, we do appreciate some of the provisions of the bill that extend rights recognition to our fellow freelancers, such as photographers and performers. However, we fear that the weakening of our markets through the new exceptions undermines even these gains.
As to the much debated technical protection measures, we acknowledge that our industry partners in the corporate sector may find them useful, but they do not give individual creators the tools we need to fully exploit digital technology through innovation.
Thanks for your attention. I'll be glad to answer your questions, to the best of my ability, on our oral presentation or on the written brief we have provided.
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Thanks for the invitation.
[Translation]
Copibec is a copyright collective society representing over 25,000 Quebec authors and publishers. It administers the rights of reproduction on paper and digital reproduction of newspapers, books and magazines, including the artistic works that they contain. Bill calls into question each of the fundamental principles underlying copyright.
By introducing approximately 40 new exceptions, it takes away the exclusive right of authors to decide for themselves whether or not they will authorize the use of their works. It also strips creators and other copyright owners of compensation that they already receive, as in the case of use for the purposes of examinations or distance education. These exceptions jeopardize substantial revenues by introducing fair dealing for education purposes—a vague and unnecessary concept. They compromise the development of new markets or existing markets, such as the reproduction of a work to display it for educational purposes or training, the production of non-commercial user-generated content, or reproduction for private purposes. What will be left of the fundamental principles which underlie copyright if authors are denied the right to dispose of their works as they see fit and to receive compensation? All that is left is the right to put digital locks on their works.
That solution does not suit the copyright owners represented by Copibec. Why? Because it is impossible to put a digital lock on a 200-page book or on the hard copy of a magazine. Furthermore, copyright owners have generally decided to provide digital books without locks to better meet consumer needs by fostering interoperable formats. Quebec publishers prefer to incorporate a watermark into the digital version of a book to allow traceability in cases of infringement. However, this is not a solution that copyright owners represented by Copibec consider acceptable, particularly because the largest users of literary works are institutional users or individuals, who almost always make copies for non commercial purposes. Bill C-32 provides for pre-determined damages ranging from $100 to $5,000 for these purposes, which is clearly less than it costs to institute court proceedings.
The bill attacks another fundamental principle of copyright: collective administration. By eliminating or jeopardizing the payment of large amounts to creators, the bill weakens copyright collectives, which withhold a percentage of the royalties collected to carry on their operations. And yet copyright collectives are an essential link in the chain, when it comes to copyright administration. That is what the legislation acknowledges in its definition of “commercially available”, which is found in section 2 and includes both purchasing a work on the market and obtaining a work through a license granted by the copyright collective. It is odd that Bill eliminates all references to collective administration in every case where mention is made of commercially available work.
If access to copyrighted works is guaranteed, why propose so many exceptions? On the contrary, use of exceptions must be sparing and carefully thought out, because they always involve an expropriation of rights. That is why the international community adopted strict rules in that area under the Berne Convention, signed by Canada in 1928, which have been since been included in many different treaties, including the well known WIPO treaties.
It is therefore surprising to see that the three-step test was not even considered during the drafting of Bill . That test provides that exceptions must be limited to special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
The proposal to broaden fair use to add education will jeopardize the collection of more than $10 million in Quebec. It will certainly cause unreasonable prejudice to copyright owners and probably breaches Canada's international commitments. That is certainly the view of a number of stakeholders, including the International Association of Scientific, Technical and Medical Publishers, the International Publishers Association and the Quebec Bar, to name only a few.
Teachers will also have to cope with the vague wording of this provision, which will only be defined over time, through long and costly court proceedings. This provision is unnecessary, because access to copyrighted works is already guaranteed through the licenses administered by copyright collectives across Canada.
Last December, Ms. Line Beauchamp, the Quebec Minister of Education, Recreation and Sport expressed her disagreement with the education exception proposed in Bill . Very recently, the Quebec Federation of School Boards, an important representative of users, as well as all the primary and secondary French language schools in Quebec, also expressed its opposition to Bill . I am going to give that organization the last word. Here is how it stated its position:
The adoption of this change would not only adversely affect the right of authors to allow or disallow the use of their work, but also adversely affect their right to fair compensation. We understand that the government wants to facilitate access to copyright-protected works, but we believe that access to a copyrighted work must occur in a context where the author's rights are respected. Accepting the principle that access to copyrighted works is synonymous with offering them free of charge would negate the importance of authors' contribution to our children's education, and weaken the school publishing sector. Moreover, the concept of fair use for education purposes is imprecise and would not allow educational institutions to apply clear rules to copyright administration, something that current agreements with copyright collectives now enable them to do.
Thank you.
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Good morning, and thank you for this opportunity to address you.
The Union des écrivaines et des écrivains québécois is a professional union founded in 1977 which now represents almost 1,400 writers.
The UNEQ is recognized as the association most representative of artists working in the field of literature under the Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters—R.S.Q., c. S-32.01—and consequently speaks on behalf of all Quebec writers.
In the brief we are presenting today, we have chosen to analyze the clauses that concern us one by one, in order to clearly demonstrate the extent to which writers will lose out if the bill is passed in its current form.
The government is seeking to add to the Copyright Act a whole host of exceptions with the apparent goal of balancing the rights of creators and the interest of consumers. However, the vast majority of these exceptions provide neither for remuneration nor the possibility of control by the author of the work, which we automatically consider to be contrary to the spirit of an act that is supposed to protect creators.
Furthermore, the terms used in the often imprecise wording of the bill force copyright owners to look to the courts to define the scope of these exceptions. They will have to do that at their own expense, in order to receive only minimal damages, compared to the cost of such proceedings.
Thus there will not be an appropriate balance struck between creators and users, and only after lengthy legal proceedings will we know what is legitimate and what is not.
We would now like to look at the bill in detail, starting with clause 29, which concerns fair dealing for the purpose related of education, satire or parody.
It should be noted, to begin with, that the lack of any definition of the term “education” will enable any organization that offers training to claim that its purposes are educational and thus avail itself of the fair use provisions. Furthermore, free access to these works will deprive writers of fair remuneration. Because literary works circulate extensively in the educational sector, the latter represents a significant source of income for authors. To consider depriving them of the compensation they deserve when their works are the raw material of education is unacceptable. We are therefore recommending that the term “education” be struck from clause 29.
The addition of clause 29.21 aims to legalize the use of protected content by users who wish to use this content to create a new work which is then disseminated digitally at no profit, but with no due consideration for the fact that such new works may betray the spirit of the works used, something that simply mentioning the source cannot remedy. Such an exception violates an author's moral rights and should be removed.
New clauses 30.01 and 30.04 apply to educational institutions. The first one makes it possible for these institutions to communicate a protected work as part of a lesson using telecommunications. The institution must take measures that can “reasonably be expected” to prevent students from further disseminating the work, but no penalty is imposed should it fail to do so. Furthermore, the fact that educational institutions will not be obligated to pay authors for such use constitutes unprecedented prejudice which no one else involved in education would accept.
The second clause allows institutional institutions to use works available on the Internet for education purposes. At the present time, a work is protected under the Copyright Act as soon as it exists in some material form, whatever that may be. Clause 30.04 removes that protection in an educational setting. Yet collective administration would, in both cases, afford access to these works while compensating authors. We therefore recommend that clauses 30.01 and 30.04 be removed.
Clause 30.02 extends the license to photocopy by treating digital reproduction and print reproduction as one and the same thing, thereby allowing their costs to be assessed on the same basis, without regard for the possible dissemination of the work. We recommend that this clause be re-drafted to make a clear distinction between digital reproduction and print reproduction, with compensation adjusted accordingly.
As regards levies for private copying, the UNEQ believes that a modern Copyright Act should extend levies to new digital formats and provide compensation to all artists. in all areas, including literature.
With respect to those measures aimed at making Internet service providers accountable, the UNEQ believes that the notice and takedown system is the only one that ensure adequate protection of works disseminated over the Internet. The notice-and-notice approach is too weak and forces creators to police the web themselves, a burden that is disproportionate.
In summary, the UNEQ believes that Bill , which purports to modernize the Act, actually greatly increases the number of exceptions, thus depriving writers and artists of fair compensation; denies their right to approve or not the use of their works; remains vague as to the meaning of the terms used in the bill, leaving it up to the courts to interpret them; sets laughable fines, compared to the costs that would be incurred; removes any accountability for Internet service providers; ignores Canadian copyright collective societies' successful negotiations; and endangers the book industry and the development of new markets in the educational sector.
We are therefore asking that Bill be completely overhauled so as to provide adequate compensation for the use of copyrighted works and to ensure that any exceptions are consistent with the terms of the Berne Convention. We are also asking that collective administration be recognized as the safest way to guarantee respect for the rights of creators and access to their works.
Thank you for your attention.
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Let's come back to education now.
If I'm not mistaken, you are asking that the term “education” be deleted from Bill . We agree with you on the fact that this is a step backward that presents a risk for creators, and that it is not balanced in that respect. However, for other reasons, we don't go as far as to suggest removing that term, because education is important. What we want to do is limit the impact on creators as much as possible.
Do you have something in mind?
The solution I have been thinking of is in two parts. First of all, “education” would be defined in as restrictive a fashion as possible, excluding professional training. Second, the test would have to be as rigourous as possible, in order to limit use of this exception.
Do you have any comments on that?
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Thank you very much. Since I only have seven minutes, I am going to move quite quickly.
Ms. Messier, I'd like to talk about fair use. Ms. DesRosiers, who appeared before you, told us that she saw no reason why fair use, applied to the educational sector, would take away compensation from artists. She even said that by adding the words “such as” or “tel que”, in French, something which would bring our system closer to the one in the United States, would allow artists, and people who aspire to become artists, obtain more information.
I then asked her how these artists would be remunerated. I obviously did not get a very convincing answer. I would like to hear your views on this. How can we take away royalties from our creators, while exempting the education sector from having to pay them, and at the same time tell them that they will continue to receive them?
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I have great hopes for it. Of course, the magazine industry in Canada depends on freelancers to a huge extent. The smaller ones can't afford staff writers, and the larger ones have been through some difficulties. They have been letting go of staff and using more freelancers.
We are always working with them to try to improve the rates. We don't think they're overly generous, but we're quite happy to do that. We're not asking for the copyright law to change that relationship.
Actually, magazines have the greatest penetration of any Canadian cultural product, compared to films or even television, in terms of viewers. I think the most recent figures are that 50% of magazine reading, or more, is of Canadian magazines, and that's all good for us.
We're facing some difficulties, but we think this shift into digital is going to make for better partnerships. The costs of distribution will be less. We hope that our partners in Magazines Canada will continue to invest in quality and pay us for that quality, and that people will actually seek compelling works.
We're actually quite hopeful, all things being equal, that if we get a good copyright bill, it will help us to build those new business models.
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As Mr. Knopf mentioned in the last panel, the courts don't always get it right, but I think in this case at least they moved towards an appropriate decision. The second half of that class action case is about to be settled, we hope, for about $5 million.
I did give the clerk some copies of the judgment in the first case, which was Robertson v. Thomson. That was about $11 million, and it did take a dozen years to do.
Ms. Robertson and PWAC and other organizations that were supporting that suit identified the fact that publishers were using electronic rights without permission, so of course the contracts now try to take our rights in perpetuity, for all purposes, for anything that has ever been invented. It's obviously up to us to stiffen our spines as the small business people that we are.
There's an imbalance in the negotiating power. We work on that in various ways. We'll form a union if we have to, but we'd rather come to terms with our partners in the industry on reasonable terms. It's an ongoing issue; I don't think anything you can do here will change that appreciably, but certainly we need to have that fundamental recognition for digital or electronic copies of our works. We need to have our rights in those works recognized, and some aspects of this bill obviously put that at threat.
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Thank you very much, Mr. Chairman.
Thank you to the witnesses today.
There has been a lot of talk about how artists or creators would have to spend all their time in court trying to defend their rights, but really the purpose of establishing statutory damages in the law—and I'm sure you have an understanding of statutory damages—is not actually having a burden of proof to show that you've suffered a monetary penalty. You don't have to quantify that, which in court is always, frankly, the most difficult thing to establish in this type of case. The fact that there are statutory damages put into this bill does provide protection and discourages people from infringing copyright.
You talked a little bit about some of the exceptions. I'm interested in getting your opinion on technical protection measures. You didn't touch on those, but I would like to know what your position is on them.
I'm also concerned that there is a misunderstanding that inserting education within fair dealing actually attacks the collective, which is not the case. In fact, as I have said many times to the committee, if you look at the ruling of the Supreme Court of Canada and then look at what was established in Berne, the bill is entirely consistent.
I would very much like, though, to get your opinion on technical protection measures.