Okay. Thank you very much, Madam Chair and members. Thank you for having me here today. It's very kind.
I've invited Daniel along because Daniel is an expert in copyright law.
I have a proposal to make to the Canadian government for an amendment to the Copyright Act. I've been trying for the past 10 years to get a moment like this to be able to tell you about it. It's quite a simple proposal, and I'll get into it by just going through the PowerPoint presentation I have here for you.
It's a proposal for an amendment to the Copyright Act in subsection 14(1). Under the current copyright law, authors and composers who transfer or assign their copyrights by contract must wait 25 years after death to get them back. That's what it is. If you write a script or you write a book or you write a song and you assign your copyright to a company, you have to wait 25 years after you die to get it back. I can say it again, but I think twice is enough.
In comparison, the current U.S.A. copyright law was changed in January 1978. The U.S. government decided that copyright should revert back to the author and composer, upon request, 35 years after assignment. After you've given it to a company or you've made a deal for your book or your song, 35 years later it returns to you, and you can decide whether you want to continue with that company or keep it for yourself.
My proposal is that we change one word in the Copyright Act, in subsection 14(1), from 25 years after “death” to 25 years after “assignment”. It's one word. That's all we need to do. That way we get into the final part of my presentation, which is the reasons for change.
Before I do that, should we ask Mr. Gervais to make any comments or should I continue my proposal?
Thank you very much, Madam Chair and honourable members of the standing committee. I thank you for the invitation to testify today. I'm really sorry I couldn't be there in person.
As you very well know, copyright policy is a very difficult balancing act—or perhaps I should say a series of balancing acts between, for example, creators and those to whom they entrust the commercial exploitation of their work. Other balancing acts are those between, for example, those commercial exploiters and the public, between major online intermediaries and copyright owners, between educators and copyright owners, and between librarians and copyright owners. There's a long list, but today I really want to focus on what Bryan just mentioned, which is the balance between creators and those to whom they entrust the exploitation, the commercial use, of their work.
Copyright is meant to encourage new creators to try to make a living by creating new art and more established creators to continue to produce the works we all enjoy and from which we learn. Copyright is directly linked to many forms of human literary and artistic creation. We all know how important that is in a society. Therefore, how policy affects the creation of new works of art and literature is crucial to both cultural and economic progress.
There's one point I really want to emphasize. It's true that some quality contributions to human progress are created by amateurs, people who don't create for a living, but that is not the rule. Talent, however you define this term, has not been distributed evenly. It is true that even abundant talent needs time to be honed, nurtured and developed. One example I like to give is Mozart, who started composing as a child but did not really write anything we still listen to, two and half centuries later, until he was 21. The nurturing of talent over decades is a very important function that copyright policy can accomplish. I for one will take Denys Arcand, James Cameron or Denis Villeneuve any day before even the cutest video posted to YouTube, if I can put it that way.
There is a strong cultural argument in support of creators, but of course there is a sheer economic argument as well. In this knowledge economy, creativity is replacing the production of material goods. Therefore, as a matter of both human and economic development, policy should ensure that those who can and will push their creative limits, including in developing new art and knowledge, can do so.
That takes me directly to this topic of section 14. A key feature of copyright rights is that they are transferable—except for the moral right, of course. Transferability is meant to allow authors to work with commercial intermediaries such as film production companies, record labels, book and music publishers, and so on. Those companies market the work of authors and allow authors to monetize their talent and their craft and, in doing so, to make a living and continue creating. This is often the key mechanism that allows authors to be authors—to have the time to dedicate to this unique function that is so important to human cultural and intellectual progress.
The ability to transfer and license third parties is essential to the copyright system in Canada and elsewhere in the world. To take just one simple example, novelists and essayists who want their books published by a publisher must be able to give these publishers some sort of exclusive right. Almost all transfers of copyright happen on the basis of an open contractual relationship and negotiation. This means that the parties bargain from their respective positions. Their clout will vary according to a variety of factors. To take an example, if you're an unknown author publishing your first novel and working with a major publisher, you probably consider yourself very lucky and will just sign anything put in front of you.
It is also true that in most cases it's very difficult to predict the commercial success of a new work. Countless novels, for example, were rejected by publishers. Marcel Proust, Rudyard Kipling, Louisa May Alcott and so many others were all told they had no chance to make it as writers, yet their works have been read by millions and are still widely read today. Many great songs were rejected by music publishers and became major hits. This means there is undoubtedly a risk in investing to develop new authors and in producing new works from established ones.
The question Bryan and I raise today is this: how long is the reasonable period of commercial exploitation that is necessary to allow a publisher or producer to recoup investment and make a profit?
Many national laws around the world recognize that letting an assignee keep copyright for its entire duration makes very little sense. Even the United States, as Bryan mentioned, which is not the most author-friendly jurisdiction in the world, has adopted a reversion provision in its 1976 Copyright Act.
I'll read one sentence from the U.S. Congress report on this new act. It states, referring to a reversion provision:
|| A provision of this sort is needed because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has been exploited.
Also, under U.S. law, says the report, this right “cannot be waived in advance or traded away”. Whichever method is chosen by the legislator, the law must recognize the unequal bargaining position of authors and its unfairness. Allowing the rights to revert to the author after a reasonable period of time is a very powerful way to limit this unfairness.
Other countries have opted to limit the contractual ability to transfer rights, especially to future works. That's probably because they assume that an author would only agree to such a transfer if she had no choice due to her unequal bargaining position. This is the case, for example, in Belgium, France and Spain, to name three. Germany goes further and provides authors a right to revoke an authorization given to a publisher if a new form of exploitation appears, and over the decades that follow the transfer of a copyright, this situation is almost certain to arise.
The Canadian act, like the 1911 U.K. act from which the original Canadian statute is derived, provides reversion, but in most cases the provision is essentially meaningless. As Bryan explained, the author must comply with a difficult condition to exercise this right. Namely, he or she must first die and heirs must then wait 25 years.
There are many rebalancing efforts that could happen in copyright, but I respectfully submit that it is time to rebalance this relationship between authors and those who exploit their works by contract. The U.S. requires a 35-year period. Canada could, in my respectful submission, do better and institute a 25-year reversionary interest.
There are a number of administrative requirements in U.S. law that need not be adopted in Canada. In my submission. there are only three important conditions for reversion that should be adopted. The first is that the reversion should happen only by request of the author. The second is that the assignee be given sufficient advance notice of the author's intention. The third is that a public notice be made available, which is perhaps a function that could be entrusted to the Copyright Board of Canada, for example.
Those were my introductory remarks. I am at the committee's disposal to answer any questions, of course, including about any other aspects of author remuneration. Thank you very much.
It's a bigger question, as your colleague was talking about.
I'll be honest with you: it was never easy. In the beginning for me it wasn't an easy thing to become recognized. As Daniel mentioned, many authors got kicked out the door. It happened to me here in Canada as well. People were just not interested. It's an artist's legacy. You have to go back.
In fact, when I signed my first contract, it was for $1, because legally in Canada, to make a contract happen you have to have a dollar. After a couple of years, I said to the president of the record company, “You know, I signed that contract for $1. You never sent it.”
He said, “I'll send it.” I have it on my wall. I have the $1 cheque. I never cashed it.
That's what it comes down to. You sign for a pittance in the beginning. If you're lucky and if you have a machine behind you, you can create a lot of interest. Yes, social media is a very big aspect for artists these days, but there are no guarantees and there are no guarantees in the long term of how long you're going to be there.
I've had a really blessed career, and I thank the Canadian public for that, because I've been able to continue to make music and be recognized in this country and around the world, so I'm grateful. I'm one of the few, so I'm here without having asked any of my colleagues in the business what their opinions are on this. I've come up here on my own to say I think we can do better in Canada.
To answer your question and that of Mr. Breton—both excellent questions—I would say that the big change consists in the fact that there are almost no mechanical royalties now for authors, that is to say the royalties authors got when they sold CDs. Those royalties were a very important source of income, because they were shared 50-50 between authors and publishers. Nowadays, the mechanical royalty has almost disappeared, if you compare the percentage to what it used to be. Currently, we have to deal with online streaming. There are two problems with streaming: one is the size of the pie, and the other is the share of the pie that is given to authors. These are two extremely important issues.
As for collective management, one of its advantages is that the government, through the Copyright Board of Canada for instance, can intervene with regard to the share that is given to each group of rights holders. There are indeed several models elsewhere in the world. In its1911 law, the United Kingdom had a rights reversion clause, which we have been discussing today. Unfortunately, it removed it in 1956.
In Europe, there are different mechanisms, that is to say that there is a limit on an author's power to transfer his or her rights. Some people feel that is too strong in intervention. However, the Europeans have adopted the viewpoint that in the beginning of his career, an author will sign practically anything, as Mr. Adams said. Their viewpoint is that an author is not allowed to sign any document that transfers all of his rights, because when he does so, he is in a weak position. And so European countries, particularly on the continent, limit the author's power to transfer his rights. As I said initially, Germany goes much further. It gives the author the right to take back his rights in certain situations, even if the contract does not allow it. And so, there are several ways of recognizing that an author at the beginning of his career is in a vulnerable position.
I think I'll start the presentation by telling you a little story about how this all unfolded and how I got involved.
In 2017 I visited the Millbrook Cultural and Heritage Centre. Millbrook First Nation is a small first nation in my riding, but very progressive. They have a wonderful cultural and heritage centre, and Heather Stevens is the manager and curator. They have a lot of artifacts on display. She was explaining the artifacts to me, and she showed me this—I've passed the picture around for everybody to see—in its own glass display case.
I was admiring it, and Heather told me that it wasn't the real one, but a replica. The real one was in Australia. She told me they'd been trying to get it back since the 1990s. Because of different barriers, they hadn't been able to repatriate it.
I thought that was not right, so when I came back, Joel and I checked to see if there was any legislation or any government program or policy that would help a small first nation like Millbrook reacquire their artifacts. We knew where they were—they were legally in Australia and everything—but just in general, we wanted to find out if there was any way the government could help. There was no way.
We decided to draft this private member's bill, mostly just to give a voice to indigenous peoples and to know that there's a strategy on behalf of the government to help them get their artifacts back. We started it out that way, with the very small goal of just adding a voice—that's the way I like to put it—to indigenous peoples' voices.
The amazing thing was that when I tabled the motion at first reading, I spoke for two minutes and 37 seconds. I talked about the robe and I talked about it being in Australia, just to introduce the bill. Three weeks later, the Australian embassy called and asked if the ambassador could come and see me. I told them, “Of course”. I didn't connect it. I just thought she was doing her job and making good connections. She came in, she sat down, and we talked for a little while. All of a sudden, she told me that she'd been in touch with the Melbourne Museum, where the robe is, and they were prepared to begin negotiations to repatriate that robe. I was floored. I couldn't believe it. Two minutes and 37 seconds in the House was better than 30 years of trying on behalf of indigenous people.
It was a profound moment for me when she said that. I couldn't believe it. She gave me the name of the people in Melbourne to contact. She was very outgoing. When I asked her why she had done this, she told me that in Australia they have a thriving indigenous community. They have a rich heritage and rich culture, and they want their artifacts back. How could they ask Canada or other countries to please return artifacts if they wouldn't return theirs? As a result, that process is under way.
The magic to me is this. We have here a young aboriginal woman from Nova Scotia, from Millbrook band, and she is negotiating with a young aboriginal woman in Australia. It's not Australia to Canada or Canada to Australia: it's first nation to first nation, 15,000 kilometres apart. To me that's very meaningful. I think it's an indication of where we're going as a country and as a globe with respect to indigenous relations and respect.
We've already had an impact with Bill , even though it hasn't passed. We don't have this robe back, but we're well on the way to getting it back. I'm optimistic that we are going to get it back, and the other artifacts with it.
I've passed around this article. It's not in either official language. It's in Chinese. This private member's bill was picked up in China. I know what it's about because it has my picture in it.
Voices: Oh, oh!
Mr. Bill Casey: They also spelled my name right, which is the important thing.
That's the impact it's had. We had calls from Germany. We had calls from Britain, the U.S., and all over asking about the details of the bill. We had a call from the Secretary General of the Commonwealth Association of Museums, which represents 52 countries with thousands of museums. They suggested that they may use this bill as a template for other countries that are trying to get their artifacts back—especially African countries, which have seen many of their artifacts taken all over the world.
Therrefore, we've already had an impact. We had one family call and tell us that they have indigenous artifacts and they don't know what to do with them. This bill would provide a place for them to go. The family told us that they want the artifacts to go back to the proper people, to go back to the people they came from. They don't know what to do.
This bill will help to provide that doorway that people can go to if they do have artifacts to return.
Yesterday I received an email from Chief Dean Nelson, who says:
||...I am the political chief of the Lil'wat people
That's in Mount Currie in British Columbia.
|| I thank you for your efforts in the introduction of this Bill C-391. I am currently pursuing the very same action of repatriation. If there's anything we can do to [help] strengthen these efforts, please [let us know].
We've heard from indigenous peoples all across the country. When we started, we consulted with just our local indigenous community, but since then we've consulted with dozens of museums and indigenous communities to make sure that we did this right.
When we first started, we didn't realize what a big thing this might end up being. It was just to add a voice. That was our goal, just to add a voice, but it seems that countries around the world are really anxious to have their artifacts repatriated.
In a coincidence, I went to the Indigenous Tourism Association meeting last spring, and the number one issue to them was repatriation of artifacts for economic purposes—not for heritage and culture so much, but for economic purposes, because people who want to come to first nations are really interested in the history and the heritage and they want to see the artifacts. They want to see the history. The young people want to see how things were made. They want to see the talent. They want to see the processes that were in place in the 1500s, 1600s and 1700s. That's what this artifacts issue is really about.
In the U.S., they did it a little differently. They developed the Native American Graves Protection and Repatriation Act, which requires confiscation of artifacts. Our bill does not require confiscation. It would mean that if artifacts are available or have been obtained through nefarious approaches, the Government of Canada has a structure and a policy to help first nations bring them back.
Millbrook First Nation has about 1,500 to 2,000 people; it depends on how you count them. They're incredibly innovative and imaginative and they do a wonderful job, but still, they're 1,500 to 2,000 people and they do not have the resources to take on something like this repatriation of the robe. However, if this bill passes—I hope you'll help us with it—they will have some place to go to in order to ask for advice on storage, repatriation, restoration and safekeeping.
I'm sure you all heard about the museum in Brazil that burned to the ground a week or so ago. A whole lot of Canadian aboriginal artifacts were lost in that fire, priceless artifacts that are gone forever and ever because they weren't stored properly. Maybe we can save some future losses if we can have this bill passed and we can get those artifacts back in our own hands and properly stored.
It's been a thrill to be involved with this issue. It's been a thrill to talk to aboriginal peoples all across the country and all around the world about this. It's been very gratifying to me. What started out to be a small thing to just add a voice has turned out to be something really meaningful, and I appreciate your attention to it.
I have to hand it to Heather Stevens. She's done a great job on this.
Heather, thanks very much.
Joel, too, you did a great job.
With that, I'm going to finish my remarks. I welcome your interventions and questions and everything else.
Thanks very much.
Hello and good afternoon, Madam Chair and committee members.
My name is Heather Stevens. I'm a Mi'kmaq woman from Millbrook First Nation in Nova Scotia, as Bill said. I am here before you this afternoon to address Bill . In doing so, I'm going to tell you a bit about me and the story behind the bill.
I am the operations supervisor at the Millbrook Cultural and Heritage Centre, which is located in Millbrook First Nation. Within the centre, we have artifacts from our Mi'kmaq people that date back 7,500 years. Think about that. It's a long time ago.
I'm going to go off my notes just a bit. We have an archeological dig taking place just outside of our location at Mi'kmawey Debert. In Mi'kmawey Debert, artifacts dating back 13,600 years for our people were uncovered. Mind you, we don't have them in our centre yet either. We're hoping to get those as well.
We are fortunate and honoured to have in our centre these artifacts from 7,500 years ago.
I am here today to bring light to our struggle in trying to have a priceless piece of our Mi'kmaq cultural history returned to its mother country. The Mi'kmaq regalia that we are now trying to acquire is being held at the Melbourne Museum in Australia. This regalia dates back to about the 1840s. We have a picture of it in our museum, as Bill said, but the true piece is in the Melbourne Museum, tucked away somewhere.
When I first started at the Glooscap Heritage Centre and Mi'kmaq Museum, which is now the Millbrook Cultural and Heritage Centre, I was a programs assistant. At that time, the picture of this regalia was in the same display case, and I often wondered why there was just a picture. Why didn't we have this historical regalia displayed here for our people from all over Mi'kma'ki, which in our language is “the land of the Mi'kmaq”, to see, touch and experience that part of our history at first hand?
The answer I received from those in previous endeavours of trying to acquire the regalia in partnership with the Confederacy of Mainland Mi'kmaq and the GHC was that “We have tried, but there's too much red tape and it's just not worth the fight anymore.” That frustrated me so much, but in the position I held, my hands were tied.
When I was eventually put in my current position, I made it a point to have not only me but the entire staff speak to all visitors to our centre about the regalia. In doing so, we were hoping that eventually someone would listen and help us. That day came at the end of last year when MP came to the centre on a different matter. I had been chosen to give him a tour of the museum. When we reached that particular display case, I spoke to him about the value of the piece and the struggles that I had gone through to no avail. At that point, I saw a light in MP 's eyes that I had never seen before. That light was hope.
From that point on, MP has worked with me on moving forward with regard to acquiring this priceless historical Mi'kmaq regalia and having it returned to its rightful place. Over a short period of time, I made a connection with another first nations woman of the Worimi Nation, who is employed at the Melbourne Museum, and spoke with her about the regalia. She could relate to the meaning and the desire to get it back home where it belongs. She's so very excited to be a part of having this artifact returned to its rightful place.
As of right now, the movement is slow, but I am very optimistic that if this bill passes, we are going to open a door that is going to let other first nation communities get back the material history that is rightfully theirs, and they will be able to share that history with others. Sharing this history among the Mi'kmaq people and others could uncover direct descendants of that regalia and other historical properties.
The feeling is about recognition of wrongdoing and moving forward with a part of reconciliation for first nations. I, as well as many other first nation people, feel that this would be a step in the right direction, a step to allow us to reconnect with our past, which was taken from us so long ago.
That's it. Thank you very much for your time, Madam Chair and committee.
Right. Thank you. I only wish.
It's great to see how Truro has come back economically and has returned to some of the economics that it used to have. It's interesting to see that.
As you know, I spoke in the House in support of this particular bill. In my riding, I have a significantly large indigenous museum in Blackfoot Crossing. In terms of some of the issues—I spoke about it and you've probably listened to some of us speak about it—and the interest in the repatriation of artifacts, I think what you've provided in service is excellent, but how do we strengthen things to make sure that when these artifacts are collected, they are again used for this?
That's part of the problem that Blackfoot Crossing has. They have a wealth of artifacts. Some of them have come from the Glenbow Museum in Calgary, which has one of the largest repositories of indigenous artifacts, but as some of it has come back to them, it's not on display. I've been in there. I know that they're displaying some of the things, but a lot of things they aren't. How do we build this relationship as they're returned to encourage their display?
The second part of this is that when we talk about cost, I think there needs to be.... It's not just the transportation that wasn't addressed, but the expertise in our museum sector, in a sense, because the museum wasn't consulted on this. We need to find a way to support not just the return but also the storage, display and safekeeping. It's not just about returning it. We need a support mechanism through our museum association to strengthen the repository they're going back to.
I think this bill needs to be strengthened in the sense of support, because we have a tremendous museum organization with tremendous skills, but it's not being transferred in this piece of legislation or accounted for. I think that's something we need to do.
Lastly, maybe I'll comment. I own a significant piece of art. It's from an indigenous person who gave it to me. Is this something that I should be concerned about? Holding it personally, could there be...? What is the state of holding aboriginal art that's significant? Am I at risk now of having that requested back? That's something that we have to be careful with here, because there's significant indigenous art out there that is very valuable.
Those are my comments, if you'd like to respond.
Thank you, Madam Chair.
Mr. Casey, I'd like to begin by saying that for me as an MP, and for anyone here on the Hill, the happiness in your eyes is wonderful to see; you are pleased with your success, and rightly so. By focusing on issues in our ridings, we sometimes come across causes like this one, that deserve particular, and even national, attention. I might even say international, because Australia would like to have the artifact back.
With that said, I think, like my colleague Mr. Shields, that communities will indeed be able to care for the objects when they are back. I can't help but think about the museums study, in this connection. I was told that the report on that study was tabled this morning; bravo! I expect that the report on cultural centres will also eventually be tabled.
There was a lot of debate about the issues and risks of having interpretation centres or museums of that type in locations that are far away from large centres. Would this not be a good opportunity to give a national profile to the eventual repatriation of this type of artifact to those museums, and to obtain the financial support of prestigious partners? Does exhibiting repatriated artifacts in showcases and display cases installed with the public's help not constitute a great opportunity to inject new life into our small community museums?
I do, but first of all we want to bring them back from Australia and other countries if we can.
I live in Nova Scotia, but this robe is known to aboriginals in Nova Scotia, P.E.I., New Brunswick and Newfoundland. They know it well. This robe is something they talk about. It's part of them. It's part of their culture. If we're successful at repatriating it, it will come to Millbrook, but it will be shared with the whole of Atlantic Canada because it's a Mi'kmaq artifact and they treasure it, and I don't blame them.
People talk about it. I was at an event on Saturday night with Native Council of Nova Scotia aboriginals. They had dancers there, drummers and performers, all in replica regalia. With this they could have more accurate replica regalia. It was an incredible thing.
I don't know if you have powwows where you live, but we have powwows, and they are absolutely incredible. They bring back the traditional ceremonies and culture of dancing and singing and artifacts and artwork. They are incredible. They're just starting, but they are building and increasing. Millbrook has one of the most impressive powwows every summer, and it's just amazing. Even this event on Saturday night—it was a dinner—was amazing with the dancers and the culture available, even though it was just in a hotel. If they had the real, genuine artifacts, it would be so much better.
As I say, if this particular robe comes back to Millbrook, there will be a celebration all over eastern Canada.
I think you can tell that I would like it to go a long way. This calls for that strategy. I'm calling for the strategy you're calling for, and that includes all of those things you listed and the resources that would be necessary. We're talking about a lot of different things.
We just agreed with the United Nations Declaration on the Rights of Indigenous Peoples. We're going to adopt that. In there it says we have to take special measures to help the economies of first nations. This is a special measure. If we can help them establish what you're talking about—facilities with artifacts on display—that's going to be a huge draw.
Everybody is interested in indigenous history, it seems. I am for sure, and I know most people are, but they don't have the resources. Everything we're doing, everything we're saying we're going to do, points to this. It points in this direction. We've adopted it. We've agreed to take special measures.
The number one issue for the Indigenous Tourism Association was artifacts. I had no idea that would be it, but I had just tabled my Bill . I went to this meeting in Centre Block, and that was the number one issue. They didn't know about my bill, but their number one issue was restoring their artifacts so that they could put them on display and attract tourists. This will help pay for it. It could be a viable business plan. They have these artifacts on this display and it's going to cost this much money. It might be a positive economic business plan you could put forward and finance in that way.
The strategy is to help first nations like Millbrook figure that out. I'm not calling for a lot of money to be spent on it, but I'm calling for a strategy to help first nations. For sure, there will be cases where it's just not viable. If that robe was $500,000 or $600,000 10 or 15 years ago, it would probably be much more today. There's no way we could support that, but by adding a voice, which the House of Commons has done, maybe we're going to get it back for zero dollars.
Fortunately, Millbrook does have a properly built facility that has environmental controls and fire protection and everything else, but you're right that a lot of them don't. Maybe it's part of the strategy to help work on that. If we recognize the artifacts as a tremendous resource and a tremendous asset—and they are—then maybe these resources will be available to develop them. How's that for an answer?