Thank you very much. Our apologies. Voting is always fun at this time of year.
Welcome, everybody, to meeting 119 of the Standing Committee on Industry, Science and Technology as we continue our fascinating, in-depth review of the Copyright Act.
We have with us today from the Professional Writers Association of Canada, Christine Peets, President; and from the Canadian Council of Archives, Nancy Marrelli, Special Adviser, Copyright.
Before we begin, Mr. Jeneroux, you had something you wanted to say.
Good afternoon. Thank you for this opportunity to speak to you as you undertake this very important task.
I am here on behalf of the Professional Writers Association of Canada, known as PWAC. Our organization represents more than 300 non-fiction writers from coast to coast to coast. Copyright is an extremely important issue to us, as it affects our members’ income and the respect that should be accorded us. We earn our living through our writing, and can only do so successfully when royalties are paid because we own the copyright. When we lose the right to claim the work as our own, income and respect are eroded.
Each year, PWAC members receive a repertoire payment as creator affiliates of Access Copyright, an organization that PWAC helped found. In the past 15 years, I have seen my payment diminish from several hundred dollars to less than $100 annually. Payments are based on the amount of work I report for the period being reviewed, which has fluctuated in part due to the fact that there are fewer print publications in Canada. Those that remain often have onerous contracts. Many publishers have instituted contracts giving almost all rights to the company and none, or very few, to the writer. This is common with our members.
To give you a concrete personal example, in 2009 I was presented with a contract to continue writing for a publication that had employed me since 2004. I reluctantly signed the contract but not before questioning it. I was being asked to give up all rights to material I had written. My client wanted certainty that I wouldn’t be able to sue them if or when they reused my writing. Is this fair?
The company claimed that it now needed to secure these rights because of what became known as the Heather Robertson case, a class action suit launched in 1996. Ms. Robertson was the plaintiff against several major media outlets that reprinted her work electronically without permission or payment. Other writers were similarly affected. The case was finally settled, after 13 years. There have been similar lawsuits in the United States, and there very well could be another one in Canada. Should freelancers have to engage in lengthy and expensive lawsuits against media outlets in order to protect their copyright and income?
Contract issues may be beyond the scope of this committee, but I hope this helps to illustrate the importance of protecting our copyright. As B.C. PWAC member Connie Proteau wrote to me, “It is important that our creative professionalism continues to be respected and appreciated by...fellow Canadians who read and learn from our works. We need strong copyright laws to protect works that are available in print format.”
To that I would add that we need strong copyright laws to protect all work, whether in print or electronic format. If writers are not fairly compensated and properly respected for their work, they will produce less work. Why would anyone continue to work without income or respect for the work? This could have a significant impact on the Canadian material available to Canadian readers, who may then look increasingly to other countries for their information. Ultimately, it could affect the quality of work being published, and perhaps the viability of our publishing industry. Canada needs a strong writing and publishing sector that contributes to the economy by providing both personal and corporate incomes that increase tax revenues.
Ontario PWAC member Michael Fay reminded me that our association and other writers' organizations played a critical role in the 2012 review of the Copyright Act, when copying restrictions and procedures were set. It is important to remember not only the user but the creator with this current review.
Another PWAC member from Ontario, Lori Straus, put it this way: “People copy creative work because it speaks to them and because it’s easy to do. It’s much harder to copy a KitKat: the effort wouldn’t be worth it.”
Finally, I would like to share with you another perspective. This was brought forward by B.C. PWAC member Ronda Payne. She draws an interesting comparison, as follows:
No one debates who built a building or tries to usurp its ownership. What makes it acceptable to do so with the written word? It’s not. We put just as much effort into writing as the architect, the contractor or the building owner [puts into their work]. When the building owner allows others to use his space, he is paid in the form of rent or a lease, or the sale of the building. As writers, we should be afforded the same recognition of our ownership and rights. When someone takes our work, without even considering payment to the creator, it’s the equivalent of squatting in a building. I want people to appreciate my work, but I also want to be compensated for it. I deserve to be paid for the work I do.
Thank you very much for your time.
The Canadian Council of Archives, the Conseil canadien des archives, the CCA, is a national non-profit organization representing more than 800 archives across the country. Membership includes provincial and territorial councils across Canada, the Association des archivistes du Québec, and the Association of Canadian Archivists.
I want to talk first about technological protection measures or TPMs. Provisions introduced in 2012 prohibit the circumvention of TPMs, or digital locks, even for non-infringing purposes, such as preservation activities used by archivists to protect our holdings. This draconian measure is of grave concern in the digital environment, where obsolescence is both rapid and disastrous for long-term access. Of course, long-term access is what archives are all about.
Let me give you a fictional example of this problem. An archives holds a copy of a CD on the history of a small company that built birchbark canoes for over 150 years. It was the main industry in the town that grew around the factory. The CD was created by a group that came together briefly in 1985 as the company closed down. The only existing CD was deposited by the last surviving family member of the owners, and it includes photographs, oral history interviews, catalogues, and film footage, which are the kinds of materials commonly found in archives. The group disbanded after fire destroyed its office and all the original material it had collected. The original material has disappeared, and all that is left is the CD.
As the CD approaches obsolescence, the archives wishes to ensure that the contents are preserved for posterity. However, the CD is protected with a digital lock and the archives cannot locate the creators. It cannot circumvent the digital lock to preserve this unique material. As the CD becomes obsolete and the files become unreadable, we will lose this important part of our documentary history.
We recommend that the Copyright Act be amended so that circumvention of TPMs is permitted for any activity that is otherwise allowable under the act. Archives are allowed to reformat materials and reproduce them if they are in an obsolete or about-to-become obsolete format, but we're not allowed to use that exception if we have to circumvent a digital lock in order to do so.
I want to talk a little about crown copyright. Crown works are works that are prepared or published by or under the direction or control of Her Majesty, or any federal, provincial, or territorial government department. Copyright in crown works never expires unless the work is published, in which case the work is protected for 50 years from the date of the first publication.
Canadian archives hold millions of unpublished crown works of historical interest, including correspondence, reports, studies, photographs, and surveys—all kinds of works. We've been promised changes to crown copyright for decades and decades. Crown copyright provisions, as they stand now, do not serve the public interest in the digital age. They're long overdue for a comprehensive overhaul.
We recommend that the act be amended immediately so that the term of protection for crown works is 50 years from the date of creation, whether or not the works are published. We further recommend that there be a comprehensive study to identify problem issues, to consult with stakeholders, and to recommend solutions that serve the public interest in the digital age. We need to change these rules.
I want to talk a bit about reversion, which is not a very well-known provision in the Copyright Act. When transferring historical materials to archives, many donors assign the copyrights that they hold in those materials to the archives. Subsection 14(1) of the Copyright Act, reversion, is a little-known relic inherited from the 1911 British act. It provides that where an author who is the first owner of copyright in a work has assigned that copyright, other than by will, to another party—and the example I'll give is a contract to an archival repository—the ownership of the copyright will revert to the author's estate 25 years after his or her death. The estate will own the copyright for the remaining 25 years of the copyright term.
This provision cannot be overridden by additional contract terms. It's clearly undue interference in the freedom of an author to enter into a contract, and it's an administrative nightmare for archival institutions and for donor estates. It's just one of those things that's there, and people are not even aware of it.
We recommend that subsection 14(1) be repealed, or at the very least that it be amended to permit the author to assign the reversionary interest by contract, which is not currently allowed.
Regarding indigenous knowledge, it's a bit of a landmark day after yesterday's vote on the UNDRIP provisions. Canadian archivists are concerned about copyright protection of indigenous knowledge and cultural expressions: stories, songs, names, dances, and ceremonies in any format. We have all of these kinds of materials in the Canadian archives.
The foundational principles of copyright legislation are that copyright is owned by an author for a term based on the author's life. In the indigenous approach, there is ongoing community ownership of creations. Archivists are committed to working with indigenous communities to provide appropriate protection and access to the indigenous knowledge in our holdings, while at the same time ensuring the traditional protocols, concerns, and wishes of indigenous peoples are addressed.
We urge the federal government to engage in a rigorous, respectful, and transparent collaboration with Canada's indigenous peoples to amend the Copyright Act to recognize a community-based approach. The archives community will very happily participate in this process. We're eager, in fact, to do so. This is an issue that we believe needs to be resolved.
I'm just going to indulge the Canadian Council of Archives, just to thank you for your work. I know that sometimes you probably don't get the glory, in archives.
However, a true story is that when I was on city council, it was our municipal archives that led to the repatriation of the Windsor-Detroit tunnel on the Canadian side, its coming back to public ownership. This is significant because there was an archived document of the original agreement that put it in the private sector, through a P3, which they didn't want to relinquish. By the time we received the tunnel back, it was ready to float down the river because of the erosion on the top. We couldn't find people to replicate the actual exhaust and fan system, and it immediately required millions of dollars. To this day, it pays significant revenue for the City of Windsor and is a critical piece of Canada's infrastructure.
I'll just conclude by saying thank you to you and your members, who probably have not envisioned the glory, but you have actually saved one of Canada's significant pieces of infrastructure.
Ms. Peets, just to pick up on a point that was raised a little earlier—actually, I think it was when we were in Montreal—we heard from an organization that is essentially a platform. If I understand it, their technology remunerates authors based on usage, down to a chapter level.
We talk about access to copyright through a tariff approach. We've certainly heard from institutions that it is a challenge because, while you're right that education isn't free, we also want educational institutions to get the material they want and not to have to pay for duplication, which is what we've heard in some of the testimony.
In your view, could something like that work? There are emerging platforms, and certainly, we're seeing it in the music industry, where there is an ability to compensate on a more transactional and on a more targeted use basis. Can you comment on that?
I won't get into the full (a), (b), and (c) of the motion, but I will get into the general spirit of it. Why I think it belongs here at the industry committee is that the pipeline purchase and the potential expansion of the pipeline will have direct competitive implications not only on the industry itself, that being oil and natural resources, but also on the subsequent markets the products then go to, especially given the fact that we now have public participation in the distribution of the product. That subsidization potentially could affect Canadian businesses.
For example, if in the expansion of the project and the diversion, the products going through the pipeline go to China and are used to produce steel that competes against Canadian industries, or if they're actually fuelling components, it's something that we at least need to have a discussion about and hear some witnesses on.
There are significant consequences with regard to the supply chain, the cost for consumers, and the viability of different products in the market. You have the outright industry itself in terms of how consumable oil and other energy products are used for the production of goods and services, and then, if they are publicly subsidized, you have the actual use and the competition with similar ones that you have to compete against. That's why I believe it would be appropriate to have hearings on this motion.
I will conclude by saying that I will be keeping an open mind in regard to our current studies, but if we can't get this done by the end of this session, I'm hoping that perhaps some meetings in the fall would be appropriate, so that we can provide at least a bit of a lens on the positive, potentially negative, or challenging consequences. Again, it's about amelioration for markets, consumers, and competitors when there is government intervention in this respect.
Well, if I were going to support a motion, I'd have to support Mr. Masse's motion. It's not that Mr. Jeneroux's motion isn't very well written too. They're both excellent motions.
In reality, this pipeline purchase falls under two ministers who are not the ISED . They fall under , at Natural Resources, and , at Finance. That's not to belittle this or to say that it's not an important issue, but it's not our issue any more than it's our issue to study agricultural issues and matters.
In that sense, I would say that we would be against it. We're coming at it with regard to the fact that we're against it strictly because it's not our who is involved. He hasn't been involved in any of the discussions or announcements on it.
It really sits with the and the . Their committees are unto themselves in terms of what they choose to do or not, but that's where this should be done. I would encourage you to speak to your colleagues on those two committees to push it forward.