Good afternoon, and thank you for the opportunity to speak to you today about copyright. With 186 witnesses having appeared before this committee, I hope everything has not been said.
I am the director of the art school of Laval University in Quebec City, and was previously a professor in the law faculty at Laval University for 15 years.
I will start with some general comments.
Making law is about ideas, priorities and objectives. A neutral standpoint does not exist, and a proper balance does not exist. Dozens of testimonies gave you dozens of points of view that were called balanced; none were neutral. The legislator is always making choices. That's nothing new. You all know that, of course.
Copyright law takes into account authors' rights, art practices, the concept of property, the concept of work, the concept of labour, the concept of public, and technologies. Copyright law is a cultural policy, and there are many ways to build a copyright law with these concepts.
Copyright was, historically, a way of providing revenues for authors through reproduction, retransmission, etc. In Canada, for the last 20 years, copyright has been impacted by three forces: law, jurisprudence and technology.
First, here are a few words about the law. The 2012 modifications enforced many new exceptions, among them fair dealing in education, and none of them included remuneration for authors. It was a major step back for authors.
In jurisprudence, I will remind you that, in the 1990 case Bishop v. Stevens, the Supreme Court of Canada quoted an old English decision, saying, “the Copyright Act...was passed with a single object, namely, the benefit of authors of all kinds”.
But there was a shift in 2002. The Supreme Court in the Théberge case wrote:
Excessive controls by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole....
In 2004, in the CCH case, the Supreme Court invented a user's right, saying, “The fair dealing exception, like other exceptions in the Copyright Act, is a user's right.”
Théberge and CCH are based on a mythology that the authors may hide their work and not let the public get access to it.
Third is technology. With the Internet, access to art and the democratization of creation are great, of course, but they are pushing aside authors' rights and remuneration. We have witnessed the arrival of a new type of author who is not interested in copyright protection—such as Creative Commons, here before this committee—and doesn't need remuneration. With new technologies, legislators, not only in Canada, have kind of abdicated and let private corporations make the law. This is the case with Google, which redefined fair use and remuneration with Google Books, Google News, Google Images, and YouTube.
There is a shift that benefits everyone—the public, Internet providers and Silicone Valley corporations—except the authors. It's what we call a value gap. The combined result of law, jurisprudence and technology is a decline of copyright protection for authors.
I suggest that making the law means working with studies. What were the economic effects of the 2012 amendments? Did authors get more or less royalties?
Since the arrival of the Internet, authors' incomes have decreased. We did a study a few years ago in Quebec with the INRS and the ministry of cultural affairs, showing that revenues are becoming micro-revenues. I think Access Copyright, Copibec, L'Union des Écrivains and a lot of people came here to tell you that revenues have decreased.
On the other side, what are the revenues of Internet providers and Silicone Valley corporations? Did they decline?
Artists should be better protected as a social and cultural value. This is not a question of balance. The message is quite simple. If art matters, we must care about authors. The general principles of the Canadian act respecting the status of the artist should be followed.
I'll run through a couple of proposals.
First, as a general proposal, you should make the wording of the Copyright Act much simpler. The wording is quite a mess at some points. One example is that no one can really explain the distinction between non-commercial purposes, private purposes, private use and private studies. Confused and complicated rules are usually not followed.
Second, you can fix what was, in my opinion, broken in 2012. Take away all the exceptions of 2012, or keep them but add a remuneration mechanism. Canada has to comply, as you know, with the triple test of the Berne Convention. The idea is to replace authorization with a royalty, a global licence model like the private copying regime of 1997. The private copying regime was a way to answer to a technology that gives the public the possibility of reproducing work themselves and provides remuneration to the rights holders.
Third, add a resale right. I think RAAV and CARFAC testified in that sense. A resale right is a tangible way of expressing support for visual artists.
Fourth, create a fair dealing exception for creative work, which means to clarify the right to quote for visual artists and musicians.
Fifth, give a greater role to copyright collectives. They are the tangible way of making copyright functional by giving access and providing royalties. Perhaps you could think about extended collective licensing, and that could be an answer.
Sixth and finally, think about perhaps including a provision for professional authors, something that would be more coherent with the Status of the Artist Act and the notion of independent contractors.
I will conclude by saying that the question for us is to see from which perspective we are looking at copyright. The challenge is to act, as you know, like a legislator and not like a spectator.
My name is Ariel Katz. I'm a law professor at the University of Toronto, where I hold the innovation chair in electronic commerce. I am very grateful for the opportunity to appear before you this afternoon.
In my comments today, I would like to focus on dispelling some of the misinformation about the application of copyright law and fair dealing in the educational sector.
Since 2012, Access Copyright and some publishers and authors organizations have embarked on an intensive and, unfortunately, somewhat effective campaign, portraying Canada as a disastrous place for writers and publishers. This campaign, which I call the “copyright libel against Canada”, was built on misinformation, invented facts and sometimes outright lies. Regrettably, it has slandered Canada and its educational institutions, not only at home but also abroad.
I debunked many of the claims in a series of blog posts four years ago, when the campaign started. I encourage you to read them. I also invite you to read the submissions and posts by Michael Geist, Meera Nair and others. I'm happy to provide the links to those.
Nevertheless, the copyright libel persists. It persists because it presents three simple, correct facts, wraps them in enticing rhetoric and half-truths, and then tells a powerful yet wholly fictitious story.
Here are the three uncontroversial facts.
Fact number one is that over the last few years, and especially since 2012, most educational institutions stopped obtaining licences from Access Copyright, and Access Copyright's revenue has declined dramatically. This is true.
Fact number two is that, as a result, the amount that Access Copyright has distributed to its members and affiliates has also declined significantly. This is also true.
Fact number three is that most freelance Canadian authors, namely novelists, poets and some non-fiction writers, earn very little from their writing. This is true.
All of that is correct, but what is incorrect is the claim that the changes in Canada's copyright law and the decisions by universities not to obtain licences from Access Copyright are responsible for the decline in Canadian authors' earnings.
First of all, as you've already heard from some witnesses, even though universities stopped paying Access Copyright, they did not stop paying for content. Indeed, they have been paying more for content than they paid before. Most publishers are actually doing quite well, and some are doing extremely well.
Now you may wonder, if educational institutions aren't paying less for content, but more, then why do the earnings of Canadian authors decrease rather than increase? That seems to be the question that puzzles this committee. I'll try to help you with that.
To answer this question, we need to get into the details of Access Copyright's business model and consider things like these: Which works are actually in its repertoire? Which authors are members of Access Copyright, and which aren't? What type of content is generally being used in universities? How does Access Copyright actually distribute the money it collects?
I'll try to answer these questions. The logic behind Access Copyright's business model has been deceptively simple and attractive. Access Copyright would offer educational institutions a licence that allowed them to basically copy every work they needed without worrying about copyright liability. It would charge reasonable fees for the licence, distribute the fees among copyright owners, and everyone would live happily ever after.
This sounds great, except that this model can work only if you believe in two fictions. First, you have to believe that Access Copyright actually has the repertoire it purports to license. Second, you have believe that a cartel of publishers would provide an attractive service and charge reasonable fees. However, good fictions do not make good business models.
Access Copyright has never had the extensive repertoire it purported to license. As a matter of copyright law, Access Copyright can only give a licence to reproduce a work if the owner of the copyright in that work has authorized Access Copyright to license on her behalf. It would have been a copyright miracle if Access Copyright actually managed to get all the copyright owners to appoint it to act on their behalf. They never have been able to do that.
Access Copyright has always known that it didn't really have the legal power to license everything that it did, but that knowledge has not stopped it from pretending to have virtually every published work in its repertoire. Practically, Access Copyright has been selling universities the copyright equivalent of the Brooklyn Bridge. However, as a matter of copyright, not only can Access Copyright not license stuff that doesn't belong to it or to its members, but its attempt to do that constitutes, in itself, an act of copyright infringement.
Yes, you may find it surprising that Access Copyright has, in my opinion, committed one of the most massive acts of copyright infringement that Canada has ever seen, by authorizing works that don't belong to it or to its members.
For many years, educational institutions were quite content to play along and overlook the limited scope of Access Copyright's repertoire. They did that because the licence agreement contained an indemnity clause. It basically told universities, “Don't worry about whether we can lawfully give you permission to copy those works, because as long as you continue paying us, we will protect you. We'll indemnify you should the copyright owner come and actually sue you. We'll take on the risk.” As long as universities paid the sufficiently low prices, they were happy with this “don't ask, don't tell” policy. They just continued paying and thought that they were protected.
You would expect that if Access Copyright collected money for the use of works that aren't in its repertoire, it would then refund the money to the institution that paid—that overpaid—but that's not how Access Copyright works. Instead, it keeps the money that it collects for works that aren't its own and distributes this money among its own members. This is principally the money that has now all but disappeared and that you hear a lot of complaints about.
At this point, it is important to consider which authors are actually members of Access Copyright, which aren't, and what type of works are actually being used in universities.
In general, except for a handful of courses in the English departments, Canadian universities don't teach Canadian literature. When they do, students actually buy those books. As U of T historian and English professor Nick Mount recently wrote in his book Arrival: The Story of CanLit, “At eleven of Canada's largest twenty universities, English and French, you can complete a major in literature without any of it being Canadian.”
This may surprise you, but it shouldn't. Most Canadian universities are serious academic institutions. The works they typically use for research and teaching are academic works written by academics, some from Canada, but in many cases from elsewhere. Canadian universities are not parochial schools but serious academic institutions. They are members in good standing in the global enterprise of science. The study of contemporary Canadian literature is only a tiny fraction of that enterprise. Moreover, most academic authors, the ones who actually write most of the works that are being used in universities, aren't even members of Access Copyright.
According to Stats Canada, there are 46,000 full-time teaching staff at Canadian universities. Most of those are active authors who write and publish—otherwise they'll perish. Some faculty members are members of Access Copyright, but most are not—
I wish this were a debate about Access Copyright, so I could spend my seven minutes replying to what you've just heard.
Thank you very much for the opportunity of having me appear today.
I’m a senior partner in the law firm of McCarthy Tétrault. I also teach intellectual property law at Osgoode Hall Law School. I know about copyright in theory and in practice, and I want to share some of my thoughts with you today.
A key reason copyright exists is to create a framework encouraging creators to develop and make works available and to ensure they are paid appropriately for their creative efforts. You have heard many arguments in favour of broad exemptions and free uses of works. In these remarks, I want to provide some guidance to help you analyze many of the conflicting submissions you've heard, especially by those who oppose reasonable framework laws required to support a vibrant creative community and functioning markets for creative products.
I intend to focus on decoding for you certain norm-based appeals and misleading arguments made to oppose reasonable framework laws.
You have heard appeals for exceptions to copyright relying on the norm of fairness; however, a fair dealing is a free dealing, and a free dealing should be understood for what it is. Free is not necessarily fair, nor is it fair market value. Courts in Canada have developed a unique, expansive framework for determining what is a fair dealing. But whether something is fair as a matter of law cannot be dispositive as to whether it is actually fair and in the public interest. This is especially true because the Supreme Court of Canada has ruled that a dealing can be fair even if it has an adverse effect on the market.
You should not conclude that the addition of “such as” in the fair dealing exception, as some have advocated for, would be no big deal and would simply add flexibility to the act. The appeal to the flexibility norm reflects a judgment that compulsory free dealings should be expanded to uses not expressly permitted or even imagined by Parliament. This was rejected in 2012, after being opposed by practically the entire creative sector, including in a major submission to the reform process.
You have heard appeals for exceptions in the name of balance, but the concept of balance does not provide any useful guidance for copyright reform any more than it provides a principled framework for reforms to tax, energy or other laws. You should be mindful of norm-based appeals for reforms based on balance where not supported by principled justifications. Supreme Court decisions on copyright often refer to balance, but some mythical balance in itself is not what the court teaches. Rather, the court teaches that the complementary goals of copyright are to encourage the creation and dissemination of works and to provide a just reward for the creators. These are the goals this committee should focus on.
You have heard that exceptions are needed to promote access to works and to foster innovation. Creators fully support a framework that promotes broad access and innovation, but free access as a guiding norm is not consistent with encouraging new investment by creators or paying them properly. Broad exemptions and limitations in rights also result, as Georges just indicated in his remarks, in value gaps, where creators cannot negotiate market prices and are not adequately compensated, or compensated at all.
Opponents of creator rights often justify piracy, arguing that it is fundamentally a business model, and that creators should, in effect, make content available at prices that compete with those who steal and distribute their content. This business model defies basic economics. A similar argument against providing creators the rights and remedies they need is that they are successful even despite piracy or because they’re paid for other uses or have other revenues. The “they are doing just fine” argument is really a normative judgment that creators should not have a copyright framework that will enable them to achieve their full potential—what they could produce and earn but for piracy and uses not paid for.
The “they are making money in other ways” argument is another normative judgment that creators should not be paid for valuable uses of their works by others, such as when they innovate to bring new products to market, even though those innovations don't cover the lost revenues on the other uses.
The bottom line is that the smoke-and-mirror arguments are premised on the normative judgment that it is justifiable to acquire and consume a product or service for free, essentially forcing the creator to subsidize uses and even piracy on a compulsory basis. These are assertions most people would never advance outside of the copyright discourse.
You are told that laws that would help tackle online piracy, such as site blocking, should not be enacted. There are over 40 countries that have court or administrative website-blocking regimes. This is not some experiment, as one witness has told you. These remedies support functioning marketplaces that are otherwise undermined by unauthorized pirate services. Numerous studies and courts worldwide have found website blocking effective in countering piracy and promoting the use of legitimate websites, and to be fully consistent with freedom of expression values.
We can learn from international experience. The United Kingdom is currently studying expanding its regime to include administrative blocking. Australia has just enacted a law to expand its site blocking to search engine de-indexing.
When people oppose reasonable remedies against blatant online theft and leave no stone unturned arguing against creators having a framework law that enables them to control the uses of their works and to be paid a fair market value for such uses, you should question why. In particular, you should question what moral compass and values underlie these arguments and whether they comport with norms that this committee is prepared to accept for copyright or in any other situation.
I thank you for the opportunity to appear today, and I look forward to any questions you might have.
Thank you, Mr. Chair and honourable members.
Although our submission goes into a number of issues that I'm happy to take questions on, I want to focus on two that actually have something of a common theme: the best use of judicial resources, or judges, with respect to copyright law. In the two areas I want to highlight, we have created an unnecessary and burdensome use of the court system, in which court applications are required. We question whether there is something short of court applications that would apply, or that would work in many cases.
The first area, which you haven't heard a lot about, despite the number of witnesses Mr. Azzaria noted, is anti-counterfeiting and imports. You haven't heard a lot on that area.
Currently, where a brand or copyright owner has registered with the Canada Border Services Agency and an uncontested counterfeit is discovered at the time of import at the border, an importer can simply fail to respond, be hard to reach or be non-responsive in their response for a short 10-day period. That's the limit on how long the Canada Border Services Agency will hold goods without a court application. If a court application is not filed by the end of the 10 days, the goods are released to the importer.
The CBA section is proposing that for uncontested counterfeits—we're not talking about a legitimate claim about whether the goods are proper—when we have an affidavit or statutory declaration from the brand owner or the copyright owner, the goods could be destroyed or seized without the need for imposing an additional burden on the courts, and without the need for a court order.
You have heard a lot about the second area that I want to talk about. This is notice and notice.
The Internet is borderless, and our laws are not. Our current system, even with very recent amendments and proposed amendments, only allows us to deal with copyright infringement online when three things exist. Number one, the alleged infringer is in Canada. Number two, the alleged infringer can be identified, so they're not falsifying, masking or spoofing their ID or their IP address, which is pretty common when we're in this type of area. Number three, the rights holder actually files a claim. That's our system in Canada. Once again, we're taking up court time and resources.
The reality is that most infringers are not located here in Canada and they'll ignore a notice provided by an intermediary. Notice and notice ignores the borderless nature of the Internet. If we're going to absolve intermediaries of liability in Canada for infringement claims, the least we can do is adopt a notice-and-takedown system, which allows rights holders a greater ability to protect their copyrighted works and recognizes the issues posed by a global Internet.
Let me give you an example. Let's say that someone goes online to my law firm website and takes my picture. They set up an account on, say, the Toronto Maple Leafs fan site. I'm an Oilers fan, so if you put me on the Leafs website, that's not necessarily appropriate. Then they talk about how much I appreciate the Leafs, with my picture attached.
My recourse as a rights holder is to file a notice with the intermediary, with that website, which they would pass on. I get a limited amount of information back, which I may be able to use to file a claim, if I have identifiable information. The claim is useful only if the person who set up that false account is in Canada, can be identified and has not masked or concealed their true identity. Meanwhile, everyone thinks I've become a Leafs fan.
I use this example somewhat jokingly, but what if we change the facts to associate me, or anybody whose picture is available online, with organized crime or something a lot more problematic than the Toronto Maple Leafs fan site? We have the same enforcement struggles.
By continuing to use notice and notice, we in Canada fail to recognize the global nature of the Internet and its users.
Those are my introductory remarks, and I look forward to any questions you might have on that or any other issues raised by the CBA.
Thank you very much, Mr. Chair.
First of all, I want to thank my colleague and everyone around the table for the last week since we had this news in Oshawa about the General Motors plant. I sincerely want to thank everyone for their comments and for reaching out to me in order to help.
I want to apologize to the witnesses. I know this is a disruption, but this is a huge issue in my community.
I was pleased to hear the make a commitment that he does want to develop a plan. I know this committee. I've been in this committee in the past. It's one of the least partisan committees. I think that if there's something we could do, it behooves us to do it.
I think we heard about the 2,800 job losses in Oshawa, but when you take into account the spin-offs of these jobs—anywhere from seven to nine other jobs for each—it's somewhere around 20,000 total job losses in our community. To put that in perspective, it was announced that 3,600 jobs will be lost in the U.S., but the American economy is about 10 times bigger than ours, so it would be an equivalent of something along the lines of 200,000 jobs in the U.S. Then we heard that Mexico loses basically zero jobs.
I was very pleased to let the committee know that we were able to get down there with our leader Andrew Scheer within the first 24 hours. We met with the mayors and municipal leaders. We met with the leadership at GM and with business communities, and the most important thing we were able to do was get down to the gates.
The mayor, through me, mentions to my Liberal colleagues that if they could get the message to the , he really would welcome a phone call to determine the effects of this closure on our community, the impacts. That's what this study is all about.
The most important thing, as I said, is that we were actually at the gates. It was one of the hardest things to see workers who found out this news on a Sunday evening when they were eating dinner, that they wouldn't have a job in the future. They were going back into the plant for the first time, and one of the comments really stuck to me. It was from a worker; I'll call her C. She was a very young lady, 30 years old. She mentioned to me that she had been working there for six years and that it was a great job, a job that allowed her to put a roof over her head, feed her kids and have a future. This was something that was going to be taken away from her. When I found out that this was happening, I asked her what message I could bring back. She said, “Please fight for our jobs and do what you can.”
So when I found out about this motion towards committee here, studying the impacts.... I think it's fairly obvious to people around the table here that the impacts are not just workers like C., but the feeder plants. I was at one this weekend in Brockville, where I could just see the United States across the way. They're constantly getting attempts to poach them over there...jobs in the community, the restaurants, the retail outlets. There are also impacts with regard to R and D, the billions of dollars that the auto industry spends at our universities and colleges. It's our educational system, future knowledge. If we lose these industries, that knowledge goes away, as well as the jobs of the future.
I think everybody would agree that the impacts are huge. This plant was an award-winning, number one GM plant. If GM can't build a new vehicle or make the case for that in Canada, we have a problem. Having this study go forward, I think, would be helping the . When these companies make these investments, they are once-in-a-generation investments. This is not something that they do for three or four years, or even 10 years. This is decades of investment. I think that if we can really put a highlight on this now [Technical difficulty—Editor].
I think it was Donald Trump trying to interrupt the committee to get his word in here.
We've been listening to businesses talk about different policies that maybe we could look at, whether it's energy cost, steel and aluminum tariffs, regulatory changes, carbon taxes, things along these lines. However, one of the things we know is that Ray Tanguay was appointed the “auto czar”, and he came up with a plan. I think this is something we could take a look at in this study.
All Oshawa workers want is the opportunity to be able to bid on a new investment—a product, a job. In the past, whenever we've had this opportunity, we've been very resilient. We've been very innovative. We've actually won it when we've had the chance to compete. The hope here is that General Motors didn't say they were going to bulldoze the plant; they said there's no product allocation after 2019.
So there is hope, colleagues. Workers and community leaders in my community want to help the with his plan. He was in the House of Commons saying that he's working on it, but we need to start immediately. I don't know if I can tell you how urgent it is. We have to discover the impacts and develop a plan, because the clock is ticking.
With that, Mr. Chair, I want to thank you, and I want to thank our witnesses today for letting me speak up for my community at this very difficult time.
My heart goes out to the families and the workers of Oshawa. General Motors closed in my community after a hundred years of operations, to the exact year. Since 2002, I've been advocating in the House of Commons for a Canadian national auto policy, similar to the calls of the CAW, as well as other economists who have called for this.
Other nation states actually have a specific auto policy. In fact, a number of those states have now usurped Canada's position as the number two auto manufacturer and assembler to move us now to 10th in that model. We've shed tens of thousands of jobs in that tenure. In fact, we have slid so significantly that it has even affected our North American supply chain. That has been unfortunate, because one auto job equates to seven other jobs in the economy. This is the pain and suffering the member for Oshawa sees. My heart goes out to him and his community, because it's not just those who go to the plant every single day.
It's important to note that in a national auto strategy that we laid out with the late Jack Layton back in 2003—even David Suzuki was part of it—in terms of a green auto strategy, specific elements were taken from many other jurisdictions because of the transition. You have workers in Oshawa and other places who have quite literally been the best. They've been the best, as shown through the powertrain awards they've received for their work, and it hasn't been enough. That's one of the problems we're faced with in this industry.
The motion we have in front of us is reasonable in four meetings. In fact, if it could be more comprehensive, that's certainly something I would support. But it's important to note, Mr. Chair, that other countries, again, are still going forward with their policies.
Germany has a policy. South Korea has a policy. The United States has a series of trade barriers, and the most recent USMCA has a series of barriers related to investment. They actually cap our investment and they also create new taxes, which are part of the forthcoming agreement. That would be appropriate, because we are competing. I will note, as the member has noted, that the Ray Tanguay report was tabled in 2017—this is the auto czar. Unfortunately, we haven't seen action on that particular file yet. It's almost a year in the making. It will be a year in the making a month from now.
Time is of the essence. I can remember this debate going back as far as when I found the Liberal auto policy in a washroom here in the House of Commons. It's a true story. This is well articulated in the chamber. We called for one. We almost got one at one point. At that time, Minister Cannon for Paul Martin was ready to table a policy, but when he switched and crossed over to the Conservatives, he never followed through on that.
We still need to have some resolution to having an overall plan. This is the first step to having it. We have heard from the that there would be some interest in doing so. I would encourage us to do the four meetings that are necessary. I would also be prepared to meet additionally to that. I don't think this has to interrupt any of our committee business whatsoever. I would hope that the movers of the motion would accept that.
I'll conclude, so that we can get to our guests, but I think it's important to note that we have an opportunity to do this. We have the time available in our schedule if necessary. I would encourage all members to do so.
Thank you for your time.
I do appreciate the opportunity to speak to this. Our hearts certainly go out to the people of Oshawa. I know that in Whitby there are many organizations that contribute to the ecosystem that is a part of the GM ecosystem much more broadly.
Mr. Chair, as the member for Oshawa has said, the news is hopeful; there has been no allocation of new product, but that can still change. The other alternative is that, if it actually does close down.... The member for Oshawa talked about developing a plan and having these four meetings to investigate the impacts be part of what is necessary to develop a plan.
I really believe that the educational institutions, business leaders, municipal governments, the workers, and people who are involved in the ecosystem should be able to lead the charge in coming up with this plan. They are closest to the source. They are closest to what the impact is going to be, so they really need to be a part of what that plan starts to look like and how it does take shape.
I know there are talks with the , as you noted, to make those phone calls. Again, a made-in-Ottawa solution for what is happening in Oshawa is not reasonable. It will require a long-term strategy to be able to ensure that we have the jobs of today and tomorrow. Those who are closest to the situation can come up with the best plan and the best assessment of what is happening in Oshawa and the surrounding area, the Durham region.
With that, I would move that we call the vote.
South Africa basically has followed something that the United States and Israel have been doing for many years. I argue that it has also been the law in Canada for many years, even though we don't really know that this is the law. We don't have such magic words in the fair dealing provision.
The point is that they would be moving into adopting fair dealing as an open, flexible, and general exception that could apply potentially to any purpose, subject to a criterion of fairness, as opposed to a system where by default, unless Parliament had contemplated a particular use in advance, it is unlawful unless the copyright owner agreed to do that.
The problem with the model that relies on specific exceptions and a closed list of exceptions is that it requires Parliament to have the magic ability to foresee things that happen in the future. When we're talking about innovation, by definition the nature of innovation is that there are things we don't think of as existing today. If innovators, in order to do what they're doing, need to get permission or go to Parliament and get Parliament to enact a specific exception to do that, very few innovators would do so, because if you are a true innovator, the limited amount of time, money, and effort you have, you want to put into your innovation. You don't have the money to hire or entertain lobbyists.
A system that relies on closed exceptions necessarily reflects the interests of the status quo and does not allow breathing room for true innovators. However, an open and flexible system gives true innovators an ability to at least have their day in court. They could come and say that what they're doing is actually fair. They could show the benefits, show why the harms do not exist or are exaggerated and why the benefits outweigh the harm.
They can do that. If they have a good case, they will prevail. If they don't, they won't. However, at least they have the opportunity of doing that. If what they have to do is convince Parliament to allow them to do that, they won't do it.
—then let me tell you why.
First of all, the site-blocking regimes around the world have proved to be effective and to work. Some of the detractors of it oppose site blocking before fair play and say, “Let's have courts do it.” Then they show up before this committee and say, “No, let's not have courts do it.” Therefore, what's the effect? They say, “Let's just leave it.”
When we come to site-blocking orders, although I believe the equitable jurisdiction does exist in the courts, there are questions of public policy that are for Parliament to really flesh out. Let me give you some examples.
There are going to be questions about what type of sites should be blocked. Should they be primarily infringing, or should they be something else? What factors should the court take into account when deciding to make an order? Who should bear the cost of site-blocking orders? What method should be ordered to be used for site blocking? Then, how do we deal with the inevitable attempts to circumvent these orders, which, by the way, courts have said don't undermine their effectiveness?
I believe those questions are fundamental ones for Parliament. Courts can make them up, but we might end up with one or two trips to the Supreme Court and with rights holders and users spending a ton of money.
Australia enacted specific legislation. Singapore enacted specific legislation. The EU has it through all member states. Why? That's because they recognize it's the most effective way to deal with foreign sites that disseminate piracy, and because they want to establish criteria as to what the proper framework is.
We need that framework. Courts can make it up, but there are going to be debates and they may not end up where Parliament would end up. That's why Parliament should deal with it.
I'll give you a couple of points, given the time I have.
First of all, he said that there's no repertoire, and I've already dealt with that. Boards have certified tariffs, and they've looked at the repertoire. To say that they have no repertoire is just not right.
Second, the board, Mr. Graham and everyone else, has taken into account in certifying tariffs.... When a board certifies a tariff, they look at the usage across the sector—whatever it is, education or others. They take into account fair dealing, and they take into account other licence uses, and where there are reproductions they exclude those from considering the rates. In one tariff, they concluded that fair dealing was 60%, so they set the rate based on 40%, a much lower rate.
Access Copyright collects—or used to collect, or had a right under the tariffs to collect—against institutions the amount of the tariff, so what we have going here is a mechanism whereby individual authors and individual publishers cannot make a claim for royalties. They need to collectively license. The Access Copyright regime was something that worked well, until 2012. Authors were being paid, and publishers were being paid, Then it dried up, and it dried up as—