Welcome, everybody. We're going to get started, because we are almost an hour behind—which happens in the House.
Welcome, everybody, as we continue our five-year statutory review of the Copyright Act.
Today we have with us, from the Copyright Board, Nathalie Théberge, vice-chair and chief executive officer; Gilles McDougall, secretary general; and Sylvain Audet, general counsel.
From the Department of Canadian Heritage, we have Kahlil Cappuccino, director of copyright policy in the creative marketplace and innovation branch. We also have Pierre-Marc Lauzon, policy analyst, copyright policy, creative marketplace and innovation branch.
And finally, from the Department of Industry, we have Mark Schaan, director general, marketplace framework policy branch; and Martin Simard, director, copyright and trademark policy directorate.
As we discussed on Monday, the witnesses will have their regular seven-minute introduction. We do have a second panel, so each party will get that initial seven minutes of questions and then we'll suspend. We'll bring in the second round, and we'll do the same thing all over again. We'll finish when we finish, so that will be good.
We're going to get started right away with the Copyright Board.
Ms. Théberge, go ahead.
You have seven minutes.
Mr. Chair and distinguished members of this committee, thank you.
My name is Nathalie Théberge. I am the new vice-chair and CEO of the Copyright Board, as of October. I will be speaking today as CEO.
As you said, Gilles McDougall, secretary general, and Sylvain Audet, general counsel, both from the board, are with me today. I would like to thank the committee for giving us the opportunity to speak on the parliamentary review of the Copyright Act.
First, I'd like to provide a reminder: The Copyright Board of Canada is an independent, quasi-judicial tribunal created under the Copyright Act. The board's role is to establish the royalties to be paid for the use of works and other subject matters protected by copyright, when the administration of these rights is entrusted to a collective society. The direct value of royalties set by the board's decisions is estimated to almost $500 million annually.
The board sits at the higher end of the independent spectrum for administrative tribunals. Its mandate is to set fair and equitable tariffs in an unbiased, impartial and unimpeded fashion. This is not an easy task, especially as information required to support the work of the board is not easily acquired. The board is on the onset of a major reform following the introduction of changes to the Copyright Act imbedded in the Budget Implementation Act, Bill .
If I may, I would like to state how committed the board is towards implementing the reform proposals. Of course, the impact of these proposals will take some time to assess as there will be a transition period during which all players involved, including the board and the parties that appear before it, will need to adapt and change their practices, behaviours and, to some extent, their organizational culture.
This transition period is to be expected due to the ambitious scope of the reform proposals, but we believe that the entire Canadian intellectual property ecosystem will benefit from a more efficient pricing system under the guidance of the Copyright Board.
However, reforming the board is not a panacea for all woes affecting the ability for creators to get fairly compensated for their work and for users to have access to these works. As such, the board welcomes the opportunity to put forward a few pistes de réflexion to the committee, hoping its experience in the actual operationalization of many provisions of the Copyright Act may be useful.
Today, we would like to suggest three themes the committee may want to consider. We were very careful as to choose only issues of direct implication for the board's mandate and operations, as defined in the Copyright Act and amended through the Budget Implementation Act 2018, No. 2, currently under review by Parliament.
The first theme relates to transparency. Committee members who are familiar with the board know that our ability to render decisions that are fair and equitable and that reflect the public interest depends on our ability to understand and consider the broader marketplace. For that, you need information, including on whether other agreements covering similar uses of copyrighted material exist in a given market. This is a little bit like real estate, where to properly establish the selling price of a property you need to consider comparables, namely, the value of similar properties in the same neighbourhood, the rate of the market, etc.
Currently, filing of agreements with the board is not mandatory, which often leaves the board having to rely on an incomplete portrait of the market. We believe that the Copyright Act should provide a meaningful incentive for parties to file agreements between collectives and users. Some may argue that the board already has the authority to request from parties that they provide the board with relevant agreements. We think that legislative guidance would avoid the board having to exert pressure via subpoena to gain access to those agreements, which in turn can contribute to delays that we all want to avoid.
More broadly, we encourage the committee to consider in its report how to increase the overall transparency within the copyright ecosystem in Canada. As part of the reform, we will do our part at the board by adding to our own processes steps and practices that incentivize better sharing of information among parties and facilitate the participation of the public.
The second theme relates to access. We encourage the committee to include in its report a recommendation for a complete scrub of the act, since the last time it was done was in 1985. Successive reforms and modifications have resulted in a legislative text that is not only hard to understand but that at times appears to bear some incoherencies. In a world where creators increasingly have to manage their rights themselves, it is important that our legislative tools be written in a manner that facilitates comprehension. As such, we offer as an inspiration the Australian copyright act.
We further encourage the committee to consider modifying the publication requirements in the orphan works regime. Currently, where the owner of copyright cannot be located, the board cannot issue licences in relation to certain works, such as works that are solely available online or deposited in a museum. We believe the act should be amended to permit the board to issue a licence in those cases, with safeguards.
Finally, our third theme relates to efficiency. The board reform as proposed in Bill would go a long way in making the tariff-setting process in Canada more efficient and predictable and ultimately a better use of public resources. I believe the committee has heard the same message from various experts.
We recommend two other possible means to achieve these objectives.
First, we encourage the committee to consider changing the act to grant the board the power to issue interim decisions on its motion. Currently, the board can only do so on application from a party. This power would provide the board with an additional tool to influence the pace and dynamics of tariff-setting proceedings.
Second, we encourage the committee to explore whether the act should be modified to clarify the binding nature of board tariffs and licences. This proposal follows a relatively recent decision of the Supreme Court of Canada where the court made a statement to the effect that when the board sets royalties within licences in individual cases—the arbitration regime—such licences did not have a mandatory binding effect against users in certain circumstances. Some commentators have also expressed different views on how that statement would be applicable to the tariff context before the board.
We are aware that this is a controversial issue, but would still invite you to study it if only because parties and the board spend time, efforts and resources in seeking a decision from the board.
On that happy note, we congratulate each member of the committee for the work accomplished thus far, and thank you for your attention.
The Department of Innovation, Science and Economic Development Canada will share the time available with the Department of Canadian Heritage.
Thank you very much, Mr. Chair.
Good afternoon, distinguished members of the committee.
It is a pleasure for me to be before you again to discuss copyright. My name is Mark Schaan. I am the director general of the Marketplace Framework Policy Branch at Innovation, Science and Economic Development Canada.
I am accompanied by Martin Simard, who is the director of the Copyright and Trademarks Policy Directorate in my branch.
We are here with our Canadian Heritage colleagues, Kahlil Cappuccino and Pierre-Marc Lauzon, to update the committee on two recent developments that relate to your review of the Copyright Act.
First, we will speak about the Canada-United States-Mexico Agreement and the obligations the agreement contains regarding copyright.
Second, we will highlight the comprehensive actions taken by the government to modernize the Copyright Board of Canada, including the legislative proposals contained in Bill C-86, the Budget Implementation Act 2018, No. 2, which were generally noted as forthcoming in the first letter to your committee on the review and then again more specifically in Minister and Minister 's recent letter to you.
On November 30, Canada, the United States and Mexico signed a new trade agreement that preserves key elements of the North American trading relationship and incorporates new and updated provisions to address modern trade issues. Particularly germane to your review of the Copyright Act, the new agreement updates the intellectual property chapter and includes shared commitments specific to copyright and related rights, which will allow Canada to maintain many of the important features in our copyright system with some new obligations as well. As a result, the modernized agreement requires Canada to change its legal and policy framework with respect to copyright in some limited areas, including the following.
First, the agreement requires parties to provide a period of copyright protection of life of the author plus 70 years for works of authorship, a shift from Canada's current term of life of the author plus 50 years. The extension to life plus 70 is consistent with the approach in the United States, Europe and other key trading partners, including Japan. It will also benefit creators and cultural industries by giving them a longer period to monetize their works and investments.
That said, we are aware that term extension also brings challenges, as stated by several witnesses during your review. Canada negotiated a two-and-a-half-year transition period that will commence on the agreement entering into force, which will ensure that this change is implemented thoughtfully, in consultation with stakeholders, and with the full knowledge of the results of your review.
The provisions on rights management information will also require Canada to add criminal remedies for altering and removing a copyright owner's rights management information to what it already provides in respect of civil rights management information. In addition, there is an obligation to provide full national treatment to copyright owners from each of the other signatories.
The agreement includes important flexibilities that will allow Canada to maintain its current regime for technological protection measures and Internet service providers' liability, such as Canada's notice and notice regime. The government has stated it intends to implement the agreement in a fair and balanced manner, with an eye towards continued competitiveness of the Canadian marketplace.
Moving now to the Copyright Board of Canada. My colleague Kahlil Cappuccino, director of Copyright Policy in the Creative Marketplace and Innovation Branch at Canadian Heritage, will now provide you with an overview of recent measures to modernize the Copyright Board.
Thanks very much, Mark.
Mr. Chair and distinguished members of the committee, as the ministers of ISED and PCH committed to in their first letter to your committee in December 2017, and pursuant to public consultations and previous studies by committees of both the House of Commons and the Senate, the government has taken comprehensive action to modernize the board.
First, budget 2018 increased by 30% the annual financial resources of the board. Second, the government appointed a new vice-chair and CEO of the board, Madame Nathalie Théberge, who is sitting with us, as well as appointing three additional members of the board. With these new appointments and additional funding, the Copyright Board is on its way and ready for modernization. Third, Bill , which is now before the Senate, proposes legislative changes to the Copyright Act to modernize the framework in which the board operates.
As numerous witnesses stated to you as part of your review, more efficient and timely decision-making processes at the Copyright Board are a priority. The proposed amendments in the bill seek to revitalize the board and empower it to play its instrumental role in today's modern economy.
It would do this by introducing more predictability and clarity in board processes, codifying the board's mandate, setting clear criteria for decision-making and empowering case management. To tackle the delays directly, the proposed amendments would require tariff proposals to be filed earlier and be effective longer, and a proposed new regulatory power would enable the Governor-in-Council to establish decision-making deadlines. Finally, the proposed amendments would allow direct negotiation between more collectives and users, ensuring that the board is only adjudicating matters when needed, thus freeing resources for more complex and contested proceedings.
These reforms would eliminate barriers for businesses and services wishing to innovate or enter the Canadian market. They would also better position Canadian creators and cultural entrepreneurs to succeed so they can continue producing high-quality Canadian content. Overall, these measures would ensure that the board has the tools it needs to facilitate collective management and support a creative marketplace that is both fair and functional.
However, the changes do not address broad concerns that have been raised around the applicability and enforceability of board-set rates. Certain stakeholders asked that the government clarify when users have to pay rates set by the board and provide stronger tools for enforcement when those rates are not paid. The ministers felt that these important issues were more appropriately considered as part of the review of the Copyright Act, with the benefit of the in-depth analysis being undertaken by this committee and the Standing Committee on Canadian Heritage.
We look forward to recommendations that will help foster sustainability across all creative sectors, including the educational publishing industry.
At this point, I'd like to hand things back over to Mark to conclude.
Thank you Chair, and members of the committee, for giving me an opportunity to address you today.
I've practised law for 15 years. For 12 of those years, I've worked in association with my colleague Marian Hebb. Together, we are Hebb & Sheffer. My practice largely consists of advising and representing authors and performers who are the original owners of copyright.
In addition to my regular practice, I've spent over a decade serving as duty counsel with Artists' Legal Advice Services, known by its acronym ALAS. At ALAS, a small group of lawyers provide pro bono summary legal advice to creators of all artistic disciplines.
I also currently sit on the board of directors of the West End Phoenix. The West End Phoenix is a not-for-profit, artist-run broadsheet community newspaper, produced and circulated door to door in the west end of Toronto. It contains great writing, illustrations and photography, and the occasional great crossword puzzle. This is a copy of it, here. Our tag line is “Slow print for fast times”.
The West End Phoenix is solely funded by subscriptions and donations. Our freelance contributors include well-known voices like Margaret Atwood, Claudia Dey, Waubgeshig Rice, Michael Winter, rapper Michie Mee, and Alex Lifeson of the iconic Canadian rock band Rush. Other contributors are emerging writers like Alicia Elliott and Melissa Vincent.
The West End Phoenix pays decent rates and prides itself on seeking from authors only a six-month period of exclusivity within which we may publish their works. Our freelancers remain the copyright owners, as they should. After the six-month period of exclusivity, they are free to relicense their works to other parties or to sell or self-publish their contributions for extra income.
The West End Phoenix will typically pay a few hundred dollars for an article, which may seem modest. However, reliance on modest streams of income is a reality for most of Canada's professional writers.
Indeed, many of the creators I work with or have advised at ALAS, or who contribute to the West End Phoenix, rely on several streams of income to get by. For example, there are royalties from publishers and collective licensing, public lending rights payments, speaking engagements, and part-time work in or outside of the publishing industry.
As a lawyer to Canadian authors, I'd like to speak with you today about the general decline in their average income and its relation to the education exception in the Copyright Act. I'd also like to propose a statutory correction to help fix that decline in income, which accords with what the Supreme Court of Canada has declared about the purpose of the Copyright Act.
Specifically concerning the act's purpose, the Supreme Court stated in the 2002 Théberge case, and has repeated in other cases since that time, that the Copyright Act is meant to promote:
a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated).
In my view, the federal government missed the mark badly in 2012, when it boldly introduced into the Copyright Act education as a fair dealing exception. Prior to that 2012 amendment, education sector representatives testifying before legislative committees were insistent that the education exception would not be about getting copyright-protected works for free, and that, instead, the exception would only facilitate taking advantage of teachable moments without disrupting the market for published works.
In other words, using the language of the Supreme Court of Canada employed in Théberge, the exception was to be about ad hoc dissemination of works of art and intellect, and not about systematically appropriating benefits or royalties from creators.
The past six years have shown that notion, that it would do little harm, to be patently false. Royalties have been appropriated from creators on a massive scale.
We know from the Writers' Union of Canada's recently published 2018 income survey that the average net income from writing currently sits at $9,380, with a median net income of less than $4,000. We also know from that same survey that the authors' royalties earned in the education sector have declined precipitously with the implementation of the education exception.
In that regard, Access Copyright reports in its 2017 audited financial statements that since 2012 the amount of revenue collected from the K-to-12 and post-secondary sectors has declined dramatically, by 89.1%.
I won't repeat or drill down into all of the other lost income figures, which I know this committee has been supplied by the Writers' Union of Canada and Access Copyright. Instead of repeating numbers you've already seen or heard, I'd like to focus on the education sector's 2012 fair dealing guidelines, which the education sector unilaterally crafted.
In substance, these fair dealing guidelines look substantially similar to the Access Copyright licences that the education sector negotiated and paid for prior to 2012. In short, the education sector has substituted their own fair dealing guidelines for Access Copyright licences.
As you know, the fair dealing guidelines are the centrepiece of the litigation between Access Copyright and York University. In that matter, the federal court found that York created the fair dealing guidelines to reproduce copyright-protected works on a massive scale without licence, primarily to obtain for free that which they had previously paid for. The federal court also found that the guidelines were not fair, either in their terms or in their application. The Federal Court of Appeal will hear that matter next March.
I ask this committee to absorb the consequences of the declaration that York seeks in the appeal in the name of fair dealing, and I would ask that you consider what such a declaration would mean for artists who make publications like the West End Phoenix possible.
As you likely know, York and others in the education sector wish for the Federal Court of Appeal to declare, for example, that it's presumptively fair for York to take a publication like the West End Phoenix and systematically make multiple free copies of entire articles, entire illustrations and entire poems, and then include those works for its own financial benefit in course packs that it sells to students. It's hard to see how anyone could possibly find such an arrangement fair, let alone for Canadian creators getting by on incomes that are very low and declining. However, that has not stopped education bureaucrats from trying to get their fair dealing declaration.
Given the damage done since 2012, I think it's critically important that Parliament make it clear in the Copyright Act that the kind of institutional copying that is the subject of the York litigation does not qualify as fair dealing.
The statutory amendment I propose to fix the damage caused would simply make fair dealing exceptions inapplicable to educational institutions' use of works that are commercially available. In my view, the proposed amendment that Access Copyright submitted to this committee, in its submission dated July 20, 2018, would achieve that goal.
Thank you for your time and consideration.
Mr. Chair and members of the standing committee, thank you very much for having invited us here to address you regarding the review of Canada's Copyright Act. My colleague Pascale Chapdelaine and I are both law professors at the University of Windsor, and we're appearing here to elaborate further on the recommendations that we made in two briefs that were co-signed by 11 Canadian copyright scholars. Together, we represent a multidisciplinary group that includes librarians, copyright officers, communications scholars as well as legal scholars.
We'd like to begin our remarks with three overarching principles that guide the specific recommendations contained in the briefs, some of which we will elaborate on further in a moment.
We approached our submissions in light of three governing principles. The first is a matter of process with a view to expanding the framework of our law. We recommend, or urge that you consider, a process of consultation with indigenous peoples. In this respect, meaningful consultation must be had with Canada's indigenous peoples, which would seek to implement Canada's obligations under article 31 of the United Nations Declaration on the Rights of Indigenous Peoples. In the context of copyright, this means suitable recognition and protection of indigenous traditional cultural expressions, particularly those that are not currently protected by the act.
Second, in relation to the existing framework, there are two overarching principles that should govern. I'll address the first one, and then I'll turn the floor over to my colleague, who will address the second.
First—and I think everyone seems to be in general agreement about this—copyright involves a balancing act of various interests and is an integrated system of incentives whose overarching policy objective is to advance knowledge and culture.
I have been a law professor at the University of Windsor for close to 30 years. My primary area of research and teaching has been focused on copyright law. For the last 15 years, I have been studying Canada's early copyright history to try to tease out from the archival records an understanding of the policy rationale that led to its first enactment at a time when we could boast no professional authors and no publishing industry.
What, then, would have motivated those early parliamentarians to provide for copyright? At its inception, copyright was literally for the encouragement of learning. It was introduced to provide incentives for schoolteachers to write and print schoolbooks and other didactic works to encourage literacy and learning. This meant not only encouraging book production per se, but making sure that the books were affordable: in other words, accessible to the readership.
I am in no way suggesting that this history can automatically be transplanted to current constructions of copyright, but I believe that the foundational principles remain as relevant today. Copyright back then, as now, was not and should not be about rewarding creators for the mere fact of having created. In a similar vein, copyright back then was not about providing a monopoly to printers and publishers as an end in itself. Creators in industry were the means to a larger public policy end. In order to fulfill the law's overarching policy, copyright, which is a monopoly right, needs to be counterbalanced with the establishment and maintenance of robust spaces that can't be captured or owned. It's in this public interest that intellectual property rights should remain limited rights, and there's nothing suspect or ahistorical about this—to the contrary.
Copyright is a calibrated system that mediates the competing interests of creators, industry and users with the ultimate goal of advancing knowledge and facilitating innovation. The user side of copyright policy is integral to the system and manifests itself in our fair dealing provisions and the other statutory limitations and exceptions to copyright.
Mr. Chair and members of the committee, to continue on the theme of a balanced approach to copyright introduced by my colleague Myra Tawfik, allow me to briefly present the journey that has brought me here today.
My many years of practice as a lawyer, during which I ensured the protection of the intellectual property of my clients, as well as the findings of my academic research and my doctorate in law, which led to the publication of a book on the rights of users of copyrighted works in 2017 at Oxford University Press, allow me to assess the issues at stake, both on the side of copyright holders and on the side of users and the public. My remarks are, therefore, in line with this perspective.
Copyright has unique characteristics, but it should not be treated in an exceptional way. It is part of a framework of law and established standards that it must a priori respect. Any derogation from these principles must be taken seriously and cannot be done without thinking about the ramifications it may have on the credibility and legitimacy of copyright, in the eyes of the public as well. Recognizing that copyright must respect fundamental rights, the Canadian Charter of Rights and Freedoms and freedoms, property law and contract law is in fact one of the corollaries of the balanced and measured approach that we advocate in our brief.
My colleague and I will now address specific recommendations in passing that reflect these two guiding principles of a balanced system that must respect fundamental rights and general laws. I will start by making a few recommendations, as contained in the brief, with respect to solidifying exceptions to copyright infringement and user rights.
The specific recommendations made in our briefs regarding the rights of users of copyrighted works are in fact a continuum of the evolution in Canada toward a more balanced approach to copyright, recognizing that users play an integral part in fulfilling the objectives of copyright. We promote continuing an evaluation of recognizing the rights of users, but to the extent that it does promote the objectives of copyright—to the same extent that any expansion of the rights of copyright holders should be made only to the extent that it promotes the objectives of copyright, that is, the promotion of the creation of works and their dissemination to the public.
To begin, a fair use style of approach should replace fair dealing provisions. Eliminating a closed list of specific purposes—such as research, private study, criticism and parody, as in our current act—and replacing them with illustrative purposes, while maintaining a test of fairness justifying some uses of works without the authorization of the copyright holder, would continue to protect copyright holders' interests while offering more adaptability to include new purposes. For example, as we were contemplating, addressing text mining and data mining would come to mind. It wouldn't need to be added each time new technologies evolve. That would also be in keeping with the principle of technological neutrality.
Second, the act needs to clarify that copyright owners cannot contract out of exceptions to copyright infringement, and certainly that would be the case in non-negotiated standard form agreements. A “no contracting out” approach recognizes that exceptions to copyright infringement are an important engine to ensure that copyright respects fundamental rights and other interests that are essential to optimizing users' participation to the objectives of copyright. Such an approach has been taken by other jurisdictions, recently the U.K.
Third, and consistent with a “no contracting out” approach to user rights, technological protection measures should not override exceptions to copyright infringement, as they currently do to a large extent. Copyright holders choosing to secure access and use of their works through TPMs should have the obligation to provide access to the exercise of exceptions to copyright infringement through built-in architecture or other mechanisms.
Fourth, in relation to the constraining effects of TPMs on the legitimate exercise of user rights, specific remedies need to be built into the act when copyright holders fail to provide access to the legitimate exercises of user rights. In addition, proper administrative oversight should be in place to monitor automated business practices of copyright self-enforcement—here, content ID used on Google platforms such as YouTube comes to mind—to ensure that non-infringing material is not inappropriately removed and that freedom of expression is protected.
Just as copyright owners benefit from a wide range of legal remedies when their rights are infringed, it goes without saying that users should also have recourse against copyright owners when their rights of use are not respected. Unfortunately, this is not the case in the act at this time. The creation of specific remedies for users in the act would rectify this imbalance and crystallize the need to respect the rights of users of protected works. Specific remedies for users are provided for, for example, in legislation such as that of France and the United Kingdom.
I'll just briefly highlight a couple more of our recommendations before concluding.
Again, and similar to the overarching approach upon which we have based our assessment of the Copyright Act review process, one of the recommendations we make is to introduce a provision relating to open access to research and scientific publications, especially in the context of publicly funded research. The federal government has already introduced a tri-agency open access policy for publicly funded research. Our recommendation is to provide for this type of open access provision as a principle within the Copyright Act, and this could be done in a manner that doesn't unduly interfere with the reasonable expectations of the copyright holder in that the publications could be deposited in an institutional repository after a reasonable period of time, with appropriate attribution.
In a similar vein, new technologies and new practices like text and data mining, which allow you to capture large amounts of data that offer insights and innovative solutions to pressing problems, have become important research methods for researchers at academic institutions. The risk of copyright infringement for reproducing copyright works when scraping, mining or downloading is an inhibiting factor that should militate in favour of a reasonable measure to remove some of the copyright barriers to this kind of research.
Finally, with regard to works generated by artificial intelligence, we take it that the rationale underlying copyright is to incentivize human beings to create, disseminate and learn, so we recommend that works entirely created by AI should not be subject to copyright protection. If a human being has exercised sufficient skill and judgment in the way in which they use software or other technologies to produce an original work, then the established copyright principles would apply. There is no policy consistent with history, theory or practice that would justify expanding copyright to works entirely created by artificial intelligence and without any direct human intervention.
The recommendations made in our briefs are modest and incremental steps to maintain a fair balance between the rights of copyright holders, users and the public interest. They are consistent with governing principles that inform our approach to the law. This approach advocates for a continuum on the evolution of copyright that takes a broader approach to competing interests rather than constantly increasing the protection of copyright holders as soon as new technologies emerge, without any consideration of the impact of such enlarged protection on copyright users.
This concludes our remarks. We'd like to thank you very much for hearing us out, and we'd be happy to answer any questions you may have.
That's a position we don't uphold. Copyright can't be the policy vehicle or legislative vehicle to deal with everything that's emerging in technology or otherwise today.
Artificial intelligence as technology can be protected through patents, and there are other ways of protecting the technology itself. Copyright, really, is about incenting human beings to create and disseminate, etc. To the extent that we have moved into areas in which copyright is actually protecting technologies, or software and those things, it has already created a distortion not only in the way in which copyright originated, but also, frankly, in its fundamental principle, the intention behind it.
We're not saying that one could never hold copyright in a work that's produced through artificial intelligence, but the copyright tests should not be changed. We should apply the same tests. If a human being has exercised sufficient skill and judgment in the creation of that work using artificial intelligence, then they should be able to claim copyright. If it's just that they've produced the technology that enables the artificial intelligence to create something new, then our position is that copyright ought not to extend to that.
If there is a need to protect the creative output of a robot, then other mechanisms can come into play, not copyright.
It's an interesting aspect that we haven't gone into a lot.
I raised this argument at the beginning of these hearings. Especially when we look at artificial intelligence and the massive government and public subsidization of research into that technology and its products, we see there is an argument for the public expectation for some of that to be shared as well, in my opinion. When we do these public-private partnerships, there is a considerable amount of public resources—be it money, infrastructure, or processes and government resources and so forth—that the public has paid as part of that equity. There needs to be a little discussion there.
I want to quickly turn, with the rest of my time, to sharing information coming from the government. We heard just prior to your coming to the table here that apparently there have been some work and some studies done. I was asking about the USMCA and the extension of copyright and what information they were using for it. There has been no particular study, but they have some government information and documents and so forth. We still don't even know what that is, although government resources and research have been used to do that.
How does Canada rank as a government, among our neighbours and other Commonwealth nations, with regard to disclosure of public information of government materials, research and other types of work that have been done?