Good afternoon everyone. Welcome to Montreal.
Pursuant to the order of reference adopted on Wednesday, December 13, 2017, and as prescribed in section 92 of the Copyright Act, we are here today to conduct a statutory review.
Today marks our first meeting for the purposes of that review. We are hearing from Richard Prieur, Executive Director of the Association nationale des éditeurs de livres; Guillaume Lecorps, President of the Quebec Student Union; and Benoit Prieur, Executive Director of the Association des distributeurs exclusifs de livres en langue française.
You aren't brothers, are you? No.
Also joining us is Nicolas Sapp, from the University Secretariat at Concordia University. He is a lawyer and partner at ROBIC, LLP.
You will each have five to seven minutes for your presentation. After that, we will move into questions. You can speak in English or French, as we have interpreters on hand.
We will start with the Executive Director of the Association nationale des éditeurs de livres, Richard Prieur.
You may go ahead. You have seven minutes.
That's reassuring, Mr. Chair. I thought I had just five minutes, so I won't go quite as fast.
Mr. Chair, members of the committee, thank you for inviting us to appear before you today.
I am the executive director of the Association nationale des éditeurs de livres, or ANEL for short. We represent a hundred or so of Canada's French-language publishers, large and small, scattered across four provinces.
Joining me is our President, Nicole Saint-Jean, and Éveline Favretti, a project manager at ANEL.
Canada's francophone publishers publish more than 6,000 titles every year, ranging from novels, how-to manuals, and poetry to essays, school manuals, scientific textbooks, and art books.
ANEL has always called on the federal government to reassert the importance of copyrights and strengthen the country's copyright regime by bringing Canada's legislation in line with global trends, so that creators are supported by a legal framework that provides the stability to innovate in creating, producing, and distributing Canadian books.
In 2012, we proposed a number of amendments to Bill , in our brief to the relevant parliamentary committee. None of those amendments was implemented. We hope that our efforts today will be more fruitful. We hope that, this time around, the government will be more receptive to the concerns of the cultural sector and that the Department of Canadian Heritage will contribute to the review in a robust way.
To that end, since 2012, we have repeatedly called on the department to undertake a comprehensive study of the impacts stemming from the review of the Copyright Act. That study now seems to be materializing. Our only fear is that we will not know the outcome until after this series of consultations is complete.
I have a few points I'd like to discuss with you. First of all, I will share with you the impact of the act internationally, taking into account the merits of cultural diplomacy. Next, I will illustrate what the act has failed to achieve, as well as the damage it has done. I will conclude with what our publishers hope to see as a result of this review.
From an international standpoint, Canada's legislation is to be avoided at all costs. ANEL participates in a variety of international trade fairs and, for more than 30 years, has taken part in the prestigious Frankfurt Book Fair, where Canada will be the guest of honour in 2020.
We engage in cultural diplomacy, but everywhere we go these days, particularly in Europe, our hosts are palpably concerned about the damage Canada's legislation is doing. The critics are unanimous and include France's publishers association—the Syndicat national de l'édition—the Federation of European Publishers, the International Federation of Reproduction Rights Organisations, known as IFRRO, which brings together collective management organizations around the world, and the International Publishers Association, to which we belong and whose vice-president you will be hearing from tomorrow, I believe.
Canada's legislation is the model to avoid. Even worse, it contaminates the sector by encouraging other countries to integrate copyright infringement exceptions in their regimes, such as the fair dealing for education provision.
What the 2012 legislation has failed to do is curb piracy. Not only is piracy proliferating, but the tools deployed to deter violators are ineffective. By placing the burden of proof on owners whose copyright has been infringed, by keeping penalties to a minimum, and by imposing an obligation to notify on Internet service providers through the notice and notice regime, lawmakers have missed the mark. If the government is unable to tighten the rules to combat piracy, the only alternative will be to expand the private copying regime.
Now let's turn to the damage Canada's legislation has done.
First of all, the act has led to the excessive involvement of the courts in copyright matters. Our copyright collectives are dealing with a growing number of cases. Money is being gobbled up in legal fees to defend the rights of copyright owners and publishers. At the same time, universities—who could put the money to better use—are also pouring money into court actions that the Copyright Modernization Act should have sought to prevent.
As a result, these court actions are weakening copyright collectives, which are being egregiously depicted as greedy, when their mission is simply to ensure that rights holders are fairly compensated.
Unlike what is happening in the rest of Canada, in Quebec, the copyright collective Copibec is managing to negotiate agreements with the vast majority of Quebec universities and colleges, as well as the education ministry. Even though the compensation set out in the agreements is being scaled back, the fact remains that Quebec has shown a willingness to respect the role of copyright collectives.
Finally, let's discuss the exceptions, specifically, the fair dealing exception for the purpose of education.
On this issue, lawmakers shirked their responsibility to deliver clear legislation. How is education defined? That question remains unanswered. How is it that the reproduction of short passages provided for in the exception has led to such explicit interpretations as that of Université Laval, which set its threshold at 10% of a work or an entire chapter? The door is wide open to the most unreasonable interpretations. Some institutions have even become experts at teaching how to stretch out what constitutes a short passage. What's more, some in the educational community claim that publishers have seen their profits rise since the legislation was passed. Their analysis of the figures, however, bears greater scrutiny.
What do we expect from lawmakers? A few things, at the very least. We expect them to do their job and work towards ending piracy. We expect them to give Canada's legislation some teeth. If lawmakers cannot manage to adopt even potential solutions, we expect them to finally recognize that private copying compensation is not a tax, but a way to support culture. We expect them to review the principle of fair dealing for the purpose of education by setting out a narrow definition for education and restricting the freewheeling interpretations of the educational sector. Lastly, we expect lawmakers to recognize the vital role copyright collectives play on behalf of creators and to accept that mandatory exceptions, such as fair dealing for the purpose of education, must go hand in hand with mandatory compensation.
Good afternoon, Mr. Chair and members of the committee.
Thank you for having me today and for giving our union the opportunity to share the views of Quebec students on a very important issue, further to your review of the Copyright Act.
My name is Guillaume Lecorps, and I am the President of the Quebec Student Union. Established in 2016, our organization represents 80,000 students across the province of Quebec, from Rouyn-Noranda, Sherbrooke, and Gatineau to Montreal and Quebec City. Not only do we work with associations representing more than 200,000 of the province's university students through our committees, but we also work with a number of federal partners on issues of national importance that affect our members, including copyright.
The current review deals with numerous provisions, but my remarks will focus on a crucial concern to the student community: the principle of fair dealing for the purpose of education.
I'm going to use this opportunity today to discuss the important role of fair dealing from the student standpoint, the benefits of the fair dealing principle, and the various ways of managing copyright.
In a very important 2004 decision, the Supreme Court reiterated the need for the act to take into account two main pillars: the rights of copyright owners, so content creators, and the rights of users. Every single day, Quebec's students balance both of those elements in their dual role as creators and users of content. In fact, they were the ones who, through their campus associations, made it clear to us that they were interested in this statutory review.
Further to our consultations with those associations, Quebec's student community took a clear stand in favour of keeping the principle of fair dealing for the purpose of education as is. In particular, students felt that the principle had led to meaningful improvements in education quality, source availability, and the range of perspectives in universities.
Beyond the financial implications, which are nevertheless significant, Quebec students feel strongly about this issue because they want to make sure knowledge is as accessible as possible.
It is true that Canada's post-secondary students had access to a certain amount of information and knowledge prior to the introduction of the fair dealing provision for the purpose of education. It seems clear, however, that the provision has had a positive impact on both the quality and quantity of available sources in universities.
Keep in mind that this enhanced access to knowledge is the result of a tiny fraction of copyrighted works being distributed and that fair dealing should never be likened to property theft or piracy. The principle of fair dealing can be defined and controlled so as to allow for the fair compensation of copyright owners—compensation that is certainly important in an ever-changing knowledge-based economy.
The establishment of copyright coordination offices by post-secondary institutions such as Université Laval can be an effective way to ensure that the regime is implemented optimally. This approach is in no way intended to disregard the fair share of revenue copyright owners are entitled to for their content; rather, it is an effort to keep that revenue from hindering access to knowledge.
Furthermore, at a time when the Canadian government claims to want to increase the country's participation in the knowledge-based economy, it seems fitting to create a regime that encourages innovation and helps students reach their full learning potential.
The development of open education resources is another effective way of bringing copyright owners and content users together, while promoting content creation and fair distribution.
The Quebec Student Union's 80,000 members are well aware of the impact this legislation will have on them. That is also true for Quebec's university student population at large, which is keeping a very close eye on the issue.
They made it very clear to us that the federal government should prioritize fair dealing in order to make higher learning as accessible as possible, both quality-wise, in terms of education quality, and financially, as regards education affordability.
What's more, as both content creators and users, university students understand how important it is to ensure copyright owners are better compensated for the content they produce. Students, however, feel that the way to achieve sound public policy is to promote access to knowledge and fair compensation for copyright owners, without further straining a segment of the population that is already struggling financially, students.
The Quebec Student Union and its membership are of the view that the principle of fair dealing, as currently set out in the act, should be maintained further to the review being undertaken by the committee.
I would be happy to answer any questions you have.
Honourable members of the committee, thank you for having me.
I am here on behalf of the members of the Association des distributeurs exclusifs de livres en langue française, known as ADELF. We are a membership organization representing Canadian businesses that distribute French-language books in Canada.
Our membership generates $450 million in sales annually and is responsible for more than 700 jobs in Canada, mainly in the Montreal area.
ADELF's board of directors asked me to pass on one key recommendation: that the government keep the Book Importation Regulations, passed in 1999, intact.
I'd like to start by telling you a bit about book distribution and the members of our association.
Distributors are the main business partners of book publishers. Distributors bring publishers' books to the retail marketplace, in other words, booksellers, bookstore chains, school co-operatives, hardware stores, drug stores, big box stores, and websites. Amazon.ca is a client of all of our members.
Our members have distribution agreements with French-language book publishers not just in Quebec and other Canadian provinces, but also in every country of the Francophonie, including France, Belgium, and Switzerland.
ADELF's members bring nearly 42,000 new titles to market each year, and those are only French-language publications.
Our members' catalogues contain more than 703,000 French-language titles, which are available to every Canadian reader in every province. Those titles include bestsellers with tens of thousands of copies sold, but the reality is that bestsellers are the exception, accounting for less than 1% of titles. The majority of titles are sold in very small quantities. In fact, for nearly 90% of books sold in Canada, fewer than 500 copies each are put on the market.
Now, I'll say a few words about the relationship between book publishers and distributors.
In Canada, virtually all Canadian and foreign publishers sign an exclusive distribution agreement with their Canadian distributor. That means the publisher is giving the distributor the exclusive right to represent them in Canada. In other words, the bookseller or any other client retailer must source books from the distributor designated by the publisher in question.
Exclusive distribution has a number of key benefits. First, it helps foster strong distribution networks throughout the country, but, above all, it ensures access to a wide variety of titles across the country. With the assurance that they will reap the benefits of their investment, exclusive distributors can commit to providing greater support for difficult titles that are not guaranteed bestsellers, seeking out more remote and less accessible clients, and so forth.
Since 1999, the Government of Canada has protected the exclusive rights of book importers. The Book Importation Regulations and the Copyright Act help to protect against parallel importation. What is parallel importation? It is a practice whereby an institutional buyer or retailer sources copies through an unlicensed supplier, one who is not the exclusive distributor. Parallel importation undermines Canada's book distribution infrastructure, hindering access to a wide array of titles in Canada.
In order to receive protection under the Book Importation Regulations, distributors must adhere to certain criteria or standards, including specified retailer shipping time frames and Canadian pricing that takes into account the book's list price in the exporting country.
Canada is not the only country with rules protecting the exclusive rights of importers. Quite the contrary. Nearly every OECD country has such rules in place. It is standard practice.
In conclusion, I want to say that the members of the Association des distributeurs exclusifs de livres en langue française do not receive any funding from the Quebec or Canadian government, including the Department of Canadian Heritage and the Canada Council for the Arts. Conversely, we our counting on the federal government to establish a legislative framework that protects the exclusive rights of businesses, while encouraging innovation, creation, and risk-taking.
Mr. Chair, honourable committee members, and members of the public, good afternoon. My name is Nicolas Sapp, and I am an attorney and a partner with the law firm ROBIC. I am not from the University Secretariat of Concordia University. I am here today speaking on behalf of Concordia University, Université de Montréal, and Université de Sherbrooke, which, combined, have approximately 150,000 registered students. These institutions are among Quebec's largest universities.
I thank you for inviting us to share our observations and recommendations.
As you know, the fundamental mission of universities is teaching and research. In this context, documentary resources are key elements that are vital to the whole university community. Quebec universities seek to provide accessible quality education to their students. Accessibility and quality are also two key elements as far as documentary resources are concerned.
Quebec universities are home to users, as well as to creators, authors, and publishers, who all own copyrights. Many of these members of the university community wear both hats. In this context, Quebec universities are extremely sensitive to copyright matters. They acknowledge and respect the rights of copyright owners, but they have an equally important interest in and for the rights of users.
The unique position of universities in copyright matters requires a contextual approach for the following reasons. Because of their roles and functions, Quebec university faculty members publish a large portion of the teaching material protected by copyright for the benefit of students. Faculty, researchers, and students throughout the world use research results to create new knowledge. The dissemination of research results enables students and researchers worldwide to have access to high-quality content, thereby allowing for the sharing of knowledge and the development of an innovative economy. Publications by researchers contribute to supporting the publishing industry.
Now let's turn to scientific publishing.
Scientific publishing is controlled by five major international publishers, which corner the market, having all of the attributes of an oligopoly. Depending upon the discipline, researchers are often required to publish with these publishers to obtain tenure and research grants. The publications of these publishing houses consume a significant portion of university library acquisition budgets and account for a large portion of texts that are put on e-reserve.
In certain cases, in addition to being obliged to relinquish their copyright, some authors have to pay to be published. Accordingly, universities repurchase the research results of these authors at a high cost after having paid their salaries, not to mention the fact that these researchers have been awarded research grants by the government. Researchers produce virtually all of the content found in university libraries.
Next, let's discuss the legislative amendments enacted in 2012.
Quebec universities welcomed the Copyright Modernization Act, which amended section 29 of the Copyright Act, adding, as you know, education to the fair dealing exception.
Quebec universities wish to highlight the goal sought by the legislator, which is basically set forth in paragraphs (c) and (d) of the summary of the act. The paragraphs read as follows:
|| (c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
||(d) allow educators and students to make greater use of copyright material.
Now let's look at Supreme Court of Canada case law.
Quebec universities support the principles applicable to the field of education, which were set forth by the Supreme Court of Canada, namely that the purpose of the Copyright Act is to maintain a balance between the rights of users and the owners of copyright.
The fair dealing exception is a right for users and must not be restrictively interpreted. Schools use materials for teaching purposes. When using publications for students, professors seek to provide them with the educational material that is required for their learning. Professors and students pursue a symbiotic quest with the same goal.
Quebec universities support the publishing industry. They have not reduced their purchases of new materials for their libraries. Expenditures made by all Quebec universities for the acquisition of documentation have grown from approximately $60 million in 2009-10 to $77 million in 2016-17. This represents a nearly 28% increase. The acquisition of digital collections by Quebec universities represents between 85% and 95% of their acquisition budget for the year 2017-18.
Quebec universities consider that respect of copyright is of the upmost importance. They deploy significant and serious measures.
By way of example, Concordia University has taken the following measures: adoption of a policy, guide, and procedures regarding respect for copyright compliance and a policy regarding intellectual property; staff training for librarians, technicians, and clerks to ensure compliance with procedures and processes; implementation of e-reserves of documents using Ares software; and development and implementation of a workflow and follow-up procedure for all texts put on e-reserves, as well as for course packs.
Now I'd like to share the following observations and recommendations.
The purpose sought by the legislator in 2012 is still relevant in 2018. Maintaining this exception is in no way incompatible with the balance sought between creator-researchers, who own copyright, and users, as is evidenced by the harmonious coexistence of these groups in the unique university setting we have described.
Restricting the scope of the fair dealing exception would have significant adverse consequences on the cost of education for students, as well as on the quality of teaching and the content of teaching material.
Finally, educational institutions must have the right to fairly use works in the form of teaching materials for the benefit of students, without fear of litigation. We must stop considering fair dealing as a measure that opposes copyright owners and users, particularly in a university context. Going backwards would be counterproductive and would be a disservice to all. Education in the 21st century requires means that are adapted to a rapidly evolving world.
Thank you for the opportunity to make these remarks. I remain available to answer your questions.
It applies to print books, the ones people purchase from retailers, university co-ops, bookstores, places like Walmart and Costco, and so forth. It corresponds to book sales. I can't wrap my head around the claim that book sales are on the rise and that people are buying more books on the whole. The reality is book sales are down.
Internationally, a country that is setting a good example is Australia, where students clearly objected to the fair dealing principle. They understood that they were the creators of tomorrow and recognized the importance of being fairly compensated for their work.
Universities maintain that they buy a lot of books, but they could afford to buy many more, if they didn't become embroiled in lawsuits against the Access Copyrights and Copibec of the world. Their logic is flawed, as I see it.
The impact on students was brought up, but do you know how much students have to shell out for Copibec? Tuition in Quebec is about $3,000, and I believe the portion students are required to pay Copibec for copyrighted material is around $13.50. Nowadays, that's about the cost of two beers. Back when I was a student, it would've bought four beers. Regardless, what students are paying is $13.50 each. We can talk numbers all day long, but when students are paying $3,000 in tuition and $13.50 of that is going to Copibec for the reproduction of copyrighted material, it's really quite little.
That helps clear that up. Thank you for doing that.
Let's move to the Prieur boys, either one.
In June 2017, BookNet Canada published a report called “The State of Digital Publishing in Canada”. In that study, they found that the sale of digital books has actually begun decreasing from 88% in 2014 to just 54% in 2016. The reason cited for this decline includes Canadians rediscovering the tactile experience of print books as well as digital fatigue.
On the other hand, BookNet found that the sale of audiobooks has skyrocketed, from 16% in 2015 to 37% in 2016.
Recognizing that the data is a little bit old, from 2016, could you comment whether you have seen this trend continue in your sector?
I can't really answer that because French-language audiobooks aren't that popular in Quebec. The decline in digital book sales, however, can be explained in a number of ways.
There was a big appetite for digital books when e-book readers first came out, in other words, tablets, iPads, Kindles, Kobos, Sony Readers, and all the rest. People discovered these devices and got into digital reading through the hardware.
That appetite then eased off. At that point, ANEL did something that the libraries will probably recognize. Quebec publishers, together with other players in the book chain and public libraries, introduced the concept of digital book lending at libraries. All of a sudden, we saw a phenomenal increase in digital book sales, as far as our catalogue went, with every public library in Quebec purchasing digital books. The flip side was that it hurt digital book sales going forward, because people could, of course, access the books for free at their library.
The other problem when it comes to digital books is the lack of data. BookNet Canada does have some data, but the big players in the digital world, the multinationals such as Amazon and Kobo, are extremely reluctant to share their figures, so that makes it pretty hard to determine actual market penetration, at least in the French-speaking population.
As I mentioned earlier, the OCCQ estimated that new book sales represented $600 million, putting digital book sales in Quebec at $7 million. That number, however, is based solely on digital book distributors in Quebec and accounts for a small fraction of the total. All that to say e-books are not as popular as you might think.
As I said, though, piracy is rampant in the world of digital books, which are shared freely on websites like Facebook. We thought the act would help combat that phenomenon, but, quite the opposite, piracy has continued to rise. We contacted the RCMP to see what recourse we had, but the force told us it was completely powerless to deal with the problem. We understand the challenge it represents. The fact of the matter is there is no real front line to address the issue.
Why isn't the digital book market thriving? Why are sales dropping? Because people can easily access digital books for free, whether it's a pirated version or an e-book at their local library.
Thank you, Mr. Chair. Maybe I'll carry on with that discussion.
Generally speaking, the testimony we have received over the last number of weeks in Ottawa and Halifax has been that there has never been a time when universities and others have purchased more. They claim that there has been more spent than ever before.
Now, I know for a fact that the cost of tuition and education has not gone down; actually, it has disproportionally gone up, when you look at the cost of education over this period of time.
Putting that aside, you also have artists who have come to us since that time saying that their revenues are down quite significantly. Last night's testimony in Halifax was that people are losing up to two-thirds to sometimes four-fifths of their royalty income.
We have these kinds of imbalances here. Where do you think the money is going? Or are we—maybe not intentionally—being misled? What is happening? We are being told consistently that purchasing is way up, production is still there, and artists are getting less.
Does anyone want to take a crack at this?
I kid you not when I say that a lot of money has stopped going to creators and authors, whether in the book or music industry, because it's going to those making the hardware, in other words, technological devices.
Some colleges have opted to give every student an iPad. Schools have also begun incorporating digital interactive whiteboards into classrooms. I believe Quebec's education ministry spent more than $200 million on interactive whiteboards and $40 million on educational content. Educational content is akin to literary materials, if you will. What is happening in today's society is that money is being invested in technology, whereas, in the past, that money would have gone elsewhere. When I was in college and university, I read print books. We didn't have iPads or computers. Seeing where I landed in life, you might say it didn't make much of a difference, anyways—that time, I was kidding. At the end of the day, huge sums are being put towards technological devices and equipment, what I like to call hardware.
I can appreciate why universities, colleges, and schools lament how expensive it is. I think that if the government were to really look at where education dollars are going, it would probably find that less and less was going to authors while more and more was going to the Apples of the world. That's a reality.
I'm not sure whether you have any college-age children, but I think they all get an iPad now, don't they?
I'd like to pick up on that point.
All sorts of things are being said, and I think the gentleman raises a very good point. Where is the money going?
Frankly, the Quebec Student Union finds it a bit odd that the decline in book sales is being used as an argument. Although we realize book sales have dropped nationwide, we object to the claim that the decrease is a result of the fair dealing provision. There's no causal link between the two. Mr. Prieur, himself, admitted that the 25% drop in sales occurred over a 10-year period, so, beginning in 2008. The current iteration of fair dealing was not introduced until 2012. On that basis alone, the so-called causal link starts to crumble. We find it strange that it is being held up as an argument.
I'd also like to respond to what Richard Prieur said about Canada being a bad example. In my experience, multiple countries don't tend to follow in the footsteps of one that is setting a bad example. The claim that others systematically, or very often, follow a bad example strikes me as odd. I'd like an explanation of what exactly constitutes a bad example.
In addition, I'd like to respond to the comment that the cost to students is really peanuts. That point was made earlier. The fact of the matter is that universities are spending more and students are paying more. Students are concerned. The Quebec Student Union wants to make sure the new act doesn't create a distorted Robin Hood scenario, in other words, stealing from the poor—students who are struggling financially—to give to other groups who are experiencing hardship. That would be counterproductive.
I'd like to thank the witnesses for meeting with us today.
I'll be asking my questions in English.
Thank you, everybody. I'm going to pick up on the questions my colleagues have asked. The work of this committee will, ultimately, at the end of this, come up with some recommendations on a perspective dealing with copyright legislation, but we've heard a number of things.
We've heard from universities that the copyright legislation has been helpful to enable greater access for their students. We've heard from students and educators that they appreciate having limited access to a wide range of works, so they can provide that to students to enable learning.
We heard that copyright elsewhere and back here is paying less to authors. We certainly have heard from content creators and from authors that their revenues have come down, and from individual publishers that some of their revenues have also gone down. Yet, from a trends standpoint, we've heard that overall revenues have not.
There are gaps here in this particular understanding. We're trying to understand to what extent the act has aided in that, and from where some of those solutions might come.
Yesterday, when we were in Halifax, we heard in testimony that a platform technology could exist out there that would help enable revenues, based on titles and so forth, to go to individual authors on a per chapter basis. That may also help publishers, because those then become transactional licences.
I'm curious. With the advent of technology, and the need for students and young people to learn, and for creators to continue to be incented to create, do people see that platform technology as a solution at all?
We can hardly be against technological and scientific progress. There is evidence that new teaching and instruction methods can be effective, as well as new teaching techniques. Keep in mind, however, you're talking to someone who represents people who earn their living by selling their intellect and producing intellectual content. I'm not against the use of technology and digital platforms. I'm not at all against that. All I am saying is that the people who essentially supply the content for those platforms should be fairly compensated. That's all. There's no other answer I can give you.
From my experience, income is down, and if publishers have less income, then authors have less income.
I can appreciate that money is being invested in new teaching methods, scientific advances, technology, and innovative solutions. Innovation is the very reason for this committee, for that matter. The fact remains that you still need raw material to start with. In order for a book to exist, someone has to write it; someone has to conceive of it. Authors have to take the time to reflect on the subject matter. We are talking about books, but the same is true for music. In the music industry, you have songwriters.
If you take money away from creators, clearly, they won't be happy. Since they are already struggling, they will be less than pleased. You will end up with educational content that is sourced left and right—all over the place, really—thanks to freely available material on such sites as Wikipedia, without any real educational oversight or quality control. Then, you will wonder why flimsy educational content is being used to shape the minds of tomorrow's youth, when that educational content used to be supplied by a serious industry that promoted knowledge and academic development. Pedagogical science is becoming a Chinese buffet of sorts. There you have it, my heartfelt appeal.
I talked earlier about the drop in revenues and I provided figures over a dozen years. Since 2012, there has been a clear increase in drops—in other words, an accelerated decline in sales in the book industry. There was recovery in 2017, and we have since noted that the situation has become more stable.
Is there a correlation to be established? Perhaps, but it is certain that piracy, in all its forms, harms the book sector, the book industry, Canadian books, but also imported books. Here's an example. There are companies in the distribution sector that import books published in France, scientific books that are imported in small quantities of 100 copies or 200 copies and are intended for certain colleges in the regions, for example, where specialized fields are studied. Those are expensive books.
Photocopies and piracy mean that ordering those books is not worthwhile. A distribution house can manage a small order of 200 copies for a school because it knows that the copies will be sold. However, when the sales drop, it is no longer profitable for those schools to order them, and as a result, the books become unavailable in French. People from colleges buy books in English.
That is also one of the traps of piracy in the scientific field, in particular, where the production of books in French decreases until, one day, it is no longer profitable. We may be talking about domestic products or even imported products, and that clearly creates unfair situations for colleges and universities.
Thank you, Mr. Chair. I'll be asking my questions in English.
It's quite clear that we have a dilemma. Our job as the government is to accept witnesses, listen to them, and develop recommendations. Whether that translates into an amendment to the legislation or not, as of right now, isn't an issue.
We've heard from many witnesses that within the “stakeholder landscape”, as I call it, whether it's the creator, publisher, distributor, or the end consumer, the cost to purchase is going up, yet the revenue to the creator of the content is going down.
I have also heard that everyone supports the creators, and wants the creators to continue creating. Everyone wants, to a large extent, the fair dealings to continue, because they give greater access and greater equality. What I'm failing to hear from everyone is a concrete recommendation of how to create that balance.
When I listen to you, Mr. Lecorps, you are saying, “Don't touch it. It's great”. Out of the 80,000 members or 200,000 students in general you support, you specifically say you want to keep the fair dealing, because one day some of those are going to become authors, and you want to make sure they are supported.
Help us. Come with a few recommendations, even one recommendation if you could, of how can we compensate, given the fact that we live in what you called, Mr. Sapp, technological turmoil and the digital era.
Should the creators all go online, go digital, and put a digital lock on it, and then say that if you want to use it, pay me directly, because that was one of the comments that was made. Anyone can give me their comments. You may start, Mr. Lecorps.
Mr. Chair, members of the committee, thank you for giving the Fédération nationale des communications an opportunity to speak to you on the review of the Copyright Act.
The Fédération nationale des communications, or the FNC, represents about 6,000 individuals who work both in media—print media, televison, radio or digital media—and culture—museums, crafts, performing arts or festivals. Today, my main point focuses on the problematic situation for journalism in the digital age and its repercussions on the copyright issue.
The world of information is going through an unprecedented economic crisis that is threatening its survival and, by extension, the foundations of our democratic society. The problem is not that the information is no longer bringing in revenue, but that the money is no longer in the hands of those who produced the information. It is said that, this year, over 80% of advertising revenues will go to Facebook and Google, while they are investing practically nothing in information content. A large portion of the traffic on their platforms stems directly from the sharing of journalistic works produced at a high cost by our traditional media.
In its current form, the Copyright Act does not address that new reality. We now have an opportunity to implement solutions to help journalists and publishers get new revenues for their journalistic works. In Europe, a number of initiatives have promoted the concept of neighbouring rights, which intervene when revenue collection stemming from copyright application is impractical, even impossible. Those new rights aim to obtain from web giants part of the revenues they get from journalistic works that are being shared without the authorization of rights holders.
The FNC's first recommendation is to amend the act to provide for, as in the case of remuneration rights already recognized under section 15 and subsequent sections of the act, the creation of a right to remuneration in exchange for the reproduction and public communication of journalistic works on the web. To that end, and to highlight the substantial contribution of journalistic work to democracy, the act should also provide for journalistic works a definition that would in part be inspired by the definition already found in the Journalistic Sources Protection Act. The definition could read as follows:
||journalistic work: a work resulting from the work of a journalist and consisting in the collection, editing and production of information to be distributed through media, and produced in accordance with recognized ethical standards.
Since the key, when a new right is introduced, rests in the ability of rights holders to have the right applied, and since negotiations between journalists or publishers and web giants is nearly impossible and potential legal proceedings would lead to unaffordable costs, the FNC proposes a second recommendation, whereby the government would support the creation of one or several collectives for managing journalistic works that would bring together journalists and publishers. The 10 collectives could ask the Copyright Board of Canada to set the fees for the reproduction and public communication of journalistic works on the web.
Since the propagation of expert evidences is bogging down the board, and that leads to significant spending, the FNC submits to Parliament a third recommendation, to follow the lead of the Quebec legislator, which imposed limits in terms of expertise in the new Code of Civil Procedure. That way, the board could limit expert evidence by recognizing either expertise produced for the board or common expertise that would be under the board's authority, with each party covering its portion of the costs proportionally.
The combined effect of the above-mentioned measures would simplify the mechanism for the remuneration of rights holders. Although rights holders would lose part of their individual control over their works, since they would have to join a collective to collect fees, they could also more easily obtain compensation for their works being shared on the Internet. As for the web giants, they would benefit from the fact that the amounts they would have to pay rights holders on a daily basis would be balanced and they would not have to negotiate with each and every one of them. That way, social, economic and legal peace would be ensured.
Fourth, the FNC recommends to tighten up the definition of “information location tools”. Since 2012, providers of information location tools have had an advantage over other users.
In fact, the legislator wanted injunction to be the only remedy against a provider of information location tools in case of copyright violation.
There is concern that this exception is an open door to copyright violations, which is the case when an information location tool, in addition to providing website addresses, gives direct access to journalistic works.
As long as a provider is receiving advertising revenue to the exclusion of the owners of websites on which journalistic works are originally published, we are talking about an untenable exception in 2018.
In a context where media revenues are declining, thus compromising the right of the public to quality information, Canadian society cannot afford to wait dozens of years that would be required to give the courts an opportunity to understand, on a case-by-case basis, if not haphazardly, those new provisions of the act. The legislator must take action now and restrict the exception related to information location tools. The survival of properly practised journalism depends on it.
This is why the FNC recommends to tighten up the definition of information location tools to say the following:
||41.27(5) In this section, information location tool means any tool that makes it possible to only locate information that is available through the Internet or another digital network without approving or encouraging access to the content covered by copyright.
Thank you for listening. We would be pleased to answer your questions.
I am here on behalf of the Coalition for Culture and Media, which is a group of organizations involved in the cultural and media environment, representing hundreds of thousands of creators, publishers and producers in Canada.
Those organizations have identified, among other things, urgent amendments to be made to the Copyright Act, as the Canadian cultural community is experiencing the negative repercussions of the most recent changes to the act. Those changes introduced new exceptions that are harmful to Canada's economy, as they affect the normal use of works. You have received the brief that resulted from our reflections.
Our coalition is proposing three areas of focus to provide an economic and legal environment that would guarantee rights holders the conditions they need to innovate and give us with a rich and diversified national culture.
The first area of focus is to recognize the primacy of copyright.
After all, it is shocking to realize that, in the 21st century, we have to reiterate that the primary purpose of the act is to protect creators' intellectual property and allow them to be compensated for the use of their creative work.
The principle put forward is very simple: partial or total use of another person's intellectual property is prohibited, unless the rights holder gives their consent, either for a fee or free of charge. Every time this right is violated, the very structure that protects creators and all rights holders is weakened. We cannot ignore the growing number of players who are giving access to cultural products, for free or not, and are using them to attract, like Internet access providers, without sharing with the creators of those contents the value added to their company.
In a balanced copyright system, there must be true sharing of revenues and a true recognition of the contribution of cultural products and creators' work. Since 2012, we have rather seen a progressive decline in the participation of creators in the economic life of their works. So Parliament should use the five-year review of the application of the act to become a true standard-bearer for the defence and promotion of Canadian rights holders.
The second area of focus concerns the fact that a plethora of exceptions is in conflict with the above-mentioned principle.
In 2012, the legislator introduced a slew of exceptions to the act, under the pretext of modernization. However, the Berne Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the treaties of the World Intellectual Property Organization, or WIPO, to which Canada is party, provide that any limitation or exception to the rights of creators must pass what is referred to as the three-party test. So the exceptions must be limited to special cases, they mustn't affect the normal use of the work and cannot cause unjustified prejudice to creators' legitimate interests. A number of exceptions introduced in the 2012 legislation simply do not pass that test.
The parliamentary revision exercise you are engaged in must become an opportunity to improve the economic situation of creators by reducing the number of non-remunerated or poorly remunerated exceptions contained in the act.
The last area of focus is the urgency of re-establishing the balance and equality in our digital world.
Copyright is not an obstacle to technological innovation and effectiveness. Our areas of focus have nothing to do with the so-called fight to preserve an analog economy by resisting the digital economy. Economy as a whole is being digitized and we are perfectly aware of that. We are often in front-row seats to recognize it and be witness to it.
The act should apply completely neutrally, without favouring or disadvantaging a specific form of technology. The introduction of the principle of users' rights in the act weakens the protection of the economic and moral rights of rights holders. Not only are we being told to now interpret the exceptions in the act broadly and liberally, but even authors' reproduction and communication rights—basic rights—are contested by those same users, who have been challenging the legitimacy of those rights since 2012 and are wondering whether they should not be further reduced.
Those attacks on copyright must stop, and Parliament must reverse the interpretation principles harmful to creators that the courts could set out.
At the end of its review, your committee must propose to Parliament amendments to the act, taking into account the three main areas of focus presented to you today.
It is necessary to reduce and tighten up the number of exceptions in the act such as the exception of fair dealing; regulate economic actions intended for Canadians, even if they come from online services abroad; adapt legislative provisions to the technological realities of the market, for example, by including digital audio recorders in the private copying regime; and finally, force Internet access providers to play a bigger role in the remuneration of rights holders.
Those are just the most urgent amendments to be made to the act. I invite you to listen carefully to the individual coalition members who will appear before you over the next few months. They will propose more specific and concrete solutions to implement in each of their sectors.
Thank you for listening. I will gladly answer your questions.
Mr. Chair, committee members, thank you for giving me the opportunity to address you.
I'm going to tell you a bit about what is happening in the field, from the experience of a music publisher.
I was born in Jonquière, in Saguenay—Lac-Saint-Jean. I'm an entertainment lawyer. I studied law at McGill University. I'm also a musician and composer, which led me to found a music publishing company in 2005 called Third Side Music. It became a world leader in music publishing.
We represent a few hundred creators, maybe more, of 50,000 individual songs, including titles by DJ Champion, Florence K, Zachary Richard, the Dead Obies, Lisa LeBlanc, Toronto's BadBadNotGood, Bedouin Soundclash, Tanya Tagaq, Galt MacDermot and many more.
We are strictly independent. Our company is independently financed and is controlled by its Canadian and Quebec shareholders. Our offices now employ 18 people and are primarily located in Montreal. There is a satellite office in Los Angeles.
A music publisher is like an agent for songs. Our role is to generate revenue for songs and their creators by administering rights worldwide. We have gained special expertise that is called “synchronization”, which is the placement of music in films, TV shows, video games and commercials.
Let me give you a few examples. People who watch hockey have surely seen the commercial for the iPhone Red. This ad is currently shown during every commercial break. It uses a song that we represent called That's it, I'm crazy by Sofi Tucker, a duo from New York.
We recently placed a song by Tanya Tagaq, a singer from Iqaluit, in a commercial for the Apple watch.
The song Ma rose by Florence K was placed in a Ralph Lauren commercial.
I'll also give the example of Toronto's BadBadNotGood, who have worked with Kendrick Lamar, Drake and Rihanna. These are big names in pop music and urban music.
The message I want to convey is that we are real business people. It's a real business. We generate substantial revenue that helps our clients, artists, earn a living. We invest in Canadian culture. We promote Canadian culture around the world. We aren't asking for grants, but we are simply asking for a copyright law that protects the creators' right to compensation in an efficient and predictable way.
My first recommendation concerns the Copyright Board of Canada. On August 25, 2017, the board rendered its decision on the tariff for online music services for the period of 2011 to 2013. So the delay is five years, which is completely unacceptable. It's hard to do business when you have no idea what the tariff will be for a period of five years after use. It should be the opposite, meaning that there should be a decision for the next five years.
The board must have the resources to do its job. It must be required to make decisions regarding a reasonable rate. To speed up the process, I recommend that collectives such as SOCAN and Re:Sound have the ability to enter into agreements directly with music users, without having to have the Copyright Board license the tariffs, which imposes an added delay.
With respect to the decisions made by the Copyright Board, we must clarify the basis on which the board works to make its decisions. It should have to be based on the true value of music rights in an open and competitive market. Rates are currently much lower than abroad, particularly in the United States. They are far too low to support the Quebec and Canadian music ecosystem.
In my opinion, this is tantamount to asking Canadian and Quebec artists and creators to subsidize the business models of giants such as Apple, Spotify, Google, Amazon and others.
I also recommend modernizing the Copyright Act to ensure, as Mr. Lavallée mentioned, that Internet service providers have a business model that is largely based on the dissemination of content by Canadian artists, and should pay royalties for that use. Exemptions should be limited and clarified, but they are far too numerous. The private copying regime should also be made technologically neutral.
In Europe, royalties are required on media such as iPads and iPhones. When someone pays $1,000 for an iPhone, it's not a few dollars paid to creators that will prevent the transaction from taking place. Moreover, in all other countries of the world, copyright is maintained for life and for 70 years after death. In Canada, it's 50 years after death.
I don't think it's normal that the heirs of Canadian and Quebec heritage creators such as Glenn Gould and Félix Leclerc are currently better protected in the United States and Europe than they are in Canada. It isn't just a question of the catalogue's value; it's a question of being able to prevent use of the heritage without the authorization of the heirs. I think that is an important point.
In conclusion, I believe that Canada must adopt modern copyright legislation to enable entrepreneurs in the cultural industries, and especially Canadian creators, to continue to promote Canadian culture in the world.
Yes. There are a few, in fact.
However, understand my situation. I'm not talking on my own behalf or on behalf of my company; I'm speaking on behalf of a coalition. So I'm not speaking for one sector, but for all sectors.
There is the exception of network services. In fact, these people have servers abroad or cloud servers. So there is the whole question of the scope of the Canadian act with respect to reproductions made elsewhere, but which essentially and exclusively serve Canadians. There is also the whole issue of transparency. We are told a lot that it is confidential, how much we can pay and how much income we can earn, but we are not given details in reports.
There is an exception for technological reproduction. Anything resulting from a technological reproduction is an exception under the act.
All these exceptions have a cumulative effect. In short, the giants tell us that they do not really need to sit down at the bargaining table, but they do so to show that they are serious, and they propose a minimal amount. For our part, we tell them that it is not enough. So they oppose, invoking one of the exceptions I just mentioned.
If, during the negotiation, we establish that this exception doesn't apply, then they will move to the second, then they will go to the third, then to the fourth. So there is this cumulative effect comparable to Gruyere cheese—think about the inside of that cheese—and it's very difficult for us, collectively, to sit down, regardless of the platform or sector we represent. The solution keeps coming back: the number of exceptions must be reduced, and they must be made clearer.
A case of technological reproduction was brought before the courts. Most users tell us that their activities are technological. The process, from a to z, is therefore an exception, since they are all reproductions resulting from a technological treatment.
It is this kind of excess that undermines any negotiation we may have with these people.
In the introduction to my presentation, I told you that we had discovered exceptions introduced in 2012 that hurt and reduced our income. This income was fixed either by an administrative tribunal whose function is to assign an economic value to a right, or during free negotiations.
In fact, I'm not commenting on the decisions of each of the sectors that the coalition represents, namely whether they favour any funding or compensation. I reserve this right on behalf of my members.
However, my mandate today is to tell you that there are too many exceptions, that they are too broad and that it is impossible to rely on market forces to determine a solution comparable to what is happening elsewhere in the world.
We said that these companies were the big guys of this world, but these big guys have the world as their playground for negotiation. We realize that this world often asks us how it is that we couldn't get more and that they, they have this or that, private copying in audiovisual, for example. But the answer is very simple: our legislation doesn't allow it.
There are some loopholes somewhere and there is room for interpretation.
I apologize to the interpreters for my Franglais.
I will continue along those lines and respond to your comment.
Each of the artists and creators is quite pro-choice. If they want to give their work for free, they will do so, and if they want to give it at a ridiculously low price or if they want to opt for an open-access program or a Creative Commons licence, they will do so.
There's no problem.
We're trying to protect those who want to live off an economic model and negotiate an agreement with someone who uses someone else's property.
As I told you in my presentation, basically, if someone wants to use someone else's property, regardless of the type of use, they should have the tools to negotiate something on a scale of value, which can range from zero to a maximum value. However, it is fundamentally a question of what the Copyright Act is for and what its primary function is. It's a philosophical question.
Currently, we can't ignore the Supreme Court of Canada's interpretation of the act as currently written. If I may, I will read a quote that shocked us when we heard it.
In 2012, roughly concurrently with the introduction of exceptions to the Copyright Act, the court informed us that it “reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace”.
That's the state of the law in 2012. At the same time, three years later, in 2015, this same Supreme Court tells us that it is not its responsibility, in interpreting the legislation, to do what the legislator, meaning you, chose not to do by adopting it.
In other words, the clearer the legislation and the more targeted the exceptions, the less we will have to fight on just about every point in court, and the less we will have to live with something that says that copyright law—and this is what we've presented to you consistently—should not be author-centric. It's a paradox, and it's nonsense.
This isn't a debate about the digital revolution, and we don't want to go back to the way things were before. On the contrary, we find that in the Copyright Act, for which you are ultimately and jointly responsible, technological neutrality should ensure that, regardless of the technological platform, there is protection that leads to retribution.
Voices: Hear, hear!
I think I see things differently in general terms. As a representative for over a decade, I've witnessed about $10 billion in revenue come into the government from the spectrum auction. In fact, in 2014-15, approximately $7.4 billion alone came from sales at spectrum auctions. The spectrum auction is a public asset. It is no different from our land. It is no different from our water. It is a source of revenue for the general public.
We've had an unprecedented amount of money come into the public realm. Since that time, how much of that has gone to the artistic and creating communities? I think the television fund is a good example of something that was created before. From the spectrum auction, how much benefit do you think artists have received from this public investment that we've had, from the public revenues coming in, as we've seen them struggle going through the digital age and its emergence?
What we're hearing quite clearly, even from testimony in the publishing industry, is that, as we move online, creators are not receiving that money, whereas there seems to be billions of dollars for this oligarchic approach internationally, and there are revenue streams, not only just for the government, but also for others, that are unprecedented.
What have you got from maybe a decade of $10 billion of public money coming in?
I would tend to say that it's all about them.
This comes back to a point I raised earlier: at the root, we must ask ourselves what the primary function of the act is.
It would be a trap to ask ourselves what a nice balance would be and to decide to reduce the 70 exceptions to 30 so that everyone is happy. I don't think that's the heart of the matter.
We want a fair and balanced copyright law, of course, but one that also protects authors, publishers and producers, all rights holders.
If our mentality is that we have a basic right and that then,
we do a whole bunch of carve-outs,
it does not reflect the political will to have strong legislation.
As I explained to Mr. Jeneroux, strong legislation will then allow for negotiations on equal footing, regardless of the players involved. We don't want to give one an advantage over the other. Essentially, the situation must be clear, as you said about the time that the board can take to make its decisions.
You asked which ones, and I listed the ones that were technology-specific. The legislation should be neutral. Why are there specific exceptions to one technology over another?
Basically, copyright is quite clear: a reproduction right, a communication right or a right of first publication relates to recordings, producers, neighbouring rights or copyright. Then there are a host of exceptions that I think should be reviewed. Do we really want to take away rights and weaken the basic protection position that allows creators to negotiate? Shouldn't we review everything, reaffirm the right at the grassroots and then discuss a public right?
I think this choice should be left to creators and rights holders. It shouldn't be imposed by a legislative instrument.
It's not that the solution isn't there, it's that I always wonder about the role of the coalition compared to the role of each of the sectors. I would strongly suggest you ask this question to the Copibecs and Access Copyrights of the world. They will be able to give you an answer.
The other element relates to our general comment. We're talking about “fair dealing”. Do you know the test based on six factors? I'm pretty sure you've heard about it. However, if I ask you to apply it, it may be a bit more complicated. The reason I'm talking about it is that the six-factor test is a test that the Supreme Court has proposed to interpret what constitutes fair dealing. This test was brought before the court three times and led to different results each time. The court has agreed to hear cases year after year to try to clarify its position and interpretation.
This is consistent with the comment made earlier that we shouldn't be there at all. We should have legislation that doesn't lead to interpretation every time we ask ourselves the question. So let's ask the question. If fair dealing is about fair dealing for the purpose of education, there will no doubt be 350,000 questions about what education is. Who would it be in relation to? The student, the university or the educational institution?
All these questions lead to situations in which universities, among others—as we see here in Quebec—will say that, from now on, they no longer have to pay and therefore, they no longer pay. It goes back to Mr. Curley's comment and mine, that it takes away our ability to negotiate. The way to deal with that would be to provide clarification.
You asked to compare what is happening in the United States to what is going on in Canada. Do they have a better relationship? However, there is a fundamental difference between fair dealing and fair use. Here in Canada, we have fair dealing and in the United States, it's fair use. The Americans have set very clear rules that are much simpler than the six-factor test and, in a way, respect the Berne Convention on Copyright.
That's where we get back my answer. I know it's not a straightforward answer, but does it hurt the rights holder? Is it limited in some cases?
When it is written in a law that it is “fair dealing for the purpose of education”, I don't believe, and the coalition doesn't believe, that it meets the criteria of the Berne Convention.
Mr. Lavallée, you talked about a plethora of exceptions. This is how we will proceed.
First of all, there is an act in place. If I understand you correctly, there are certain exceptions that hurt creators' negotiating power. As the chair clearly noted, you may submit those exceptions to us formally in writing. It is all well and good to say that the act needs to be rewritten, but that is not how it works. We will review the act and make recommendations.
You may guide us by pointing out the exceptions that hurt your negotiating power. Tell us how they hurt you and then propose changes. If you can submit that formally to the clerk, we can look at it. Even if we do not agree, it will be in our report. I understand you very well, so I would ask you to do that. Mr. Curley, you may also do that.
Mr. Curley, you talked about the Copyright Board of Canada and that the response times are much too long. Why is that the case? How could the government answer the questions more quickly?
As to the $50 million, the Department of Canadian Heritage will certainly be facing some major challenges in terms of finding an independent organization to administer those funds, since that is not identified in the budget. Even that is a challenge, so I think Canadian Heritage will have to look at this.
As to journalistic independence from the government, I have a few answers. First, the CBC/Radio-Canada has been subsidized by the government since it was created, and I think everyone will agree that it is a model and benchmark for journalistic quality and independence.
In order to avoid the appearance of government interference in the operation of newsrooms, the manipulation of journalistic information or political influence over the news media, we need universal programs that apply to everyone who meets the criteria that define the news media today. This prevents cherry-picking and the appearance of favouritism towards one group or another. That should be the first criterion that is considered when public funds are involved. Of course, the more independent from government that the organization administering those funds is, the better.
In journalism today, people have no more illusions about the future, whether you are talking about print newspaper owners or others. Unfortunately, until there is a new business model that suddenly brings in more revenue to those who are producing news content, we will have to find a way to publicly support the production of news content, while at the same time recovering money from those who are currently making huge profits from our members' work.
There are three consequences, in my opinion.
First, an exercise to reform the Copyright Board of Canada is underway in another forum, and some of us here are involved in that. Briefs and specific recommendations have been submitted in that forum.
Further, I can tell you that there are three consequences of the time the Commission takes to issue its decisions.
The first is the retroactive effect. The money cannot be distributed to rights holders because we cannot take a risk since we do not know what the final decision will be. There is always a provisional decision, in any case. In many cases, amounts are paid, and they are often minimal because we do not know the final outcome.
Second, there is the whole administrative aspect of the adjustment. That means that if the rate is a bit lower or a bit higher, we have to review millions and millions of transactions, especially in the digital era, and try to make corrections to see what the final result will be. The longer this takes, the harder it is to get that information. Distributors can say they do not have the information, that they did not keep the necessary information to give us what we need.
Third is the uncertainty. Often a tariff is used for certain period of time, and when that period is up and the decision is not yet known, it is not just the rate that is important, but also the points of law. So we all go back to court and are not really sure which points of law we should be arguing, and if we should be arguing them again. We do not have the benefit of the decision and there has been no ruling yet on certain points of law.
Most importantly, we really need to find a way to speed up the decisions.
I will limit myself to the comments I made about a practical exception. The reality is that the exceptions have become incomprehensible. You have to reread them constantly to be able to tell someone whether an exception means one thing or the opposite.
We could say that, prior to 1997, the act was written in the French style, since it was based on the Berne Convention, which reflected a certain writing style at the time. Now, all of a sudden, the wording has become exceedingly specific. As any lawyer knows, there is a risk in trying to be very specific. In trying to be very specific, one forgets things that were already included and then things become irreconcilable. The current act has more exceptions that rights.
For the average person, it is certainly incomprehensible. I would like to add something about the final exceptions.
Children at school can use works on the Internet, as they are and without notice. Freedom is great, but we are not teaching our children what copyright means. People do not know how artists actually make a living. Copyright does not mean anything to them. It is not like a paycheque that an employee gets at the end of week's work.
Let me be clear. I am not saying that I want children to pay to consult those works. The simple fact that they can freely use content at school means they will never recognize how a creator earns a living. Since they will not be aware, it will be hard for them to respect the right, even if they are in good faith, because they will not even know that the right exists.
If reproduction and public communication rights were recognized in the Copyright Act and were applied, that would mean that digital platforms would have to pay royalties for copyrighted material. That does not necessarily mean exorbitant tariffs.
The idea of creating a fund for the long-term survival of the news is not at all part of the recommendations on the Copyright Act that we made following the last federal budget.
What we want to see is a way of providing financial support for the news media that create content. Supporting newsrooms is extremely expensive. Journalists who conduct investigations for weeks and months, sometimes without producing an article, run up costs, with very little in the way of advertising revenues thereafter, especially in the digital age.
There are a number of ways to create a sustainability fund for the future of news. We could require royalties from GAFA companies or tax online ads on Google or Facebook, for instance. Such a tax of 5%, let's say, could be paid to the consolidated fund for the future of news or artistic content.
There are ways of making those who profit from Quebec and Canadian content contribute their share. There are also the Internet service providers.
I talked about the creation of the Canada media fund from royalties on cable subscriptions. People are increasingly dropping cable and using content provided by Internet service providers. Why not require those Internet service providers to pay royalties? In many cases, they are the same companies. Why are there no royalties on Internet subscriptions?
These are the kinds of questions we need to ask. There are a number of possible approaches. Now we simply have to take the bull by the horns, muster the political will, and defend our creators and content producers here.
I'm still obsessed with spectrum auctions, because in 10 days from now the government will receive another cheque for 4G allocation from 10 bids coming in, and there will be an upcoming 5G allocation that will probably bring it to over $1.5 billion, which is what's expected.
Do you think there would be support in the creative community to do something I've advocated for, which is, when we're auctioning off the spectrum, to have assets from that spectrum go to the creative community? For example, we are continuing to see the evolution of the spectrum, which in my opinion is a public resource and asset, and hence we are the landlord of this resource. We own it and we are renting it out. If we set the terms and conditions for that to be done, would it be something that the creative community would be open to as a policy, a robust policy, on how they could be included? If this were done, when spectrum is introduced, especially now as we go to 5G, you might have changes and shifts in the artistic community's whole lifestyle, because it's going to change the use of it as well. Wouldn't it actually open the door to have a robust policy on this? I just open this up. Would there be an openness among the community to sit down and do that?