Originally written Dec. 6, 2018
The House of Commons Standing Committee on Industry, Science, and Technology (INDU) is wrapping up its statutory five-year review of the Copyright Act.
By Dec. 12 – the last meeting before the house rises – the committee will have heard from nearly 200 witnesses who have testified on fair dealing, collective bargaining, the Copyright Board, Artists Resale Royalties (ARRs), Artificial Intelligence (AI) renumerations for artists, and concern for Canadian content and creators, to name a few.
Dan Ruimy, the Liberal chair for the committee, said he hopes the committee will be able to table its recommendations to the government by April 2019.
However, exactly what recommendations the committee will be making is still unclear as many testimonies have provided conflicting evidence.
Ruimy said the committee sifts through evidence, pulls out the common themes, and tries to assess where there is real data. Members can also ask the analysists – three sit on the committee – to fill in information gaps with data from Statistics Canada or other governments departments.
While they try and focus on the factual evidence presented, Ruimy said members also hear a lot of anecdotal evidence.
“It’s an emotional subject,” he said. “People will come and say ‘Look, I don’t make enough money. How am I going to survive doing this?’”
The topic of adequate compensation for Canadian creators has come up repeatedly during the study. One solution offered was the implementation of ARRs, on which members heard a variety of opposing viewpoints.
If implemented, ARR’s would entitle visual artists to receive a royalty payment of 5 per cent every time their work is sold publicly, April Britski, executive director of the National Association of Visual Artists (NAVA), advised the committee on Oct 17.
But, at the same meeting, Mark London, director of the Art Dealer Association of Canada argued that an additional fee will hurt an already precarious market. London told members that the regulation will result in an increase of private sales and public auctions moving across the boarder to the U.S., as consumers try and evade the cost.
Others testified that ARRs could benefit Indigenous communities, as industry players make a profit of their artwork, or copies of it, with little to none of the proceeds going back to these communities.
Lou-ann Neel, a Kwagiulth artist from B.C., said that she and other artists in her community would benefit from the revenue of ARRs in her presentation to the committee on Oct. 31. She also voiced concerns about the copying of Indigenous art, saying it is passed down through generations and only certain individuals are given permission by elders to practice and study art.
“Our traditional artforms are owned by our people,” she said. “They are inherited rights that are passed on from one generation to the next.”
Neel said her members were concerned over a lack of support for their work, as there are no organizations to oversee copyright for Indigenous art in the region. She stated that while her artists operate at under-poverty level, the tourist industry in B.C. sells Indigenous artwork with 88 per cent of the revenue not going back to her community.
“People take our art because they don’t know any different,” Neel said. “Any they don’t know any different because we’re not actively and proactively informing Canadian citizens about whether it’s appropriate to take designs.”
Ruimy said that Indigenous artwork is of specific concern for the committee, adding that it hasn’t been discussed under copyright in the past. He wouldn’t reveal whether he thought the committee should include ARR implementation in its recommendations, but he noted that losing Canadian creators over insufficient compensation is of concern.
“I feel for creators. I worry for Canadian creators because as a country that’s part of our identity,” he said. “It’s the same for Indigenous cultures, that’s their identity, we don’t want to lose that.”
The debate surrounding ARRs goes further than simply whether the government should implement them or not; there’s also the question on how they should be implemented and who would control it.
In her presentation, Britski maintained that the ARR is not a tax, and would not be collected, spent, or administered by the government. She said how the fee is administered could be decided upon by the market.
London argued the fee would be placed on the art collectives, who already take a risk buying work, and then suffer twice if it sells for less than they purchased it for – once for the loss of revenue, and a second time for the ARR fee.
Johnny Blackfield, a certified Blockchain professional, said Blockchain – a type of online transaction system used for most cryptocurrencies – could be used to automatically provide ARRs to Indigenous artists. In his presentation, Blackfield explained that artists could register their work on Blockchain where it would be tracked for a lifetime. Every time a sale is made on the artwork, the system will automatically rake off the percentage of the ARR owed to the artist.
However, members again expressed concern over who would operate this system and how Indigenous communities would access it, considering many do not have internet access.
Members also heard various witnesses lamenting the 2012 amendments to the Copyright Act as a failure to creators. Georges Azzaria, director of the Art School at the Université Laval, said the 2012 amendments resulted in significant revenue decrease to artists.
In addition to advocating for an ARR, Azzaria advised members to fix the 2012 amendments by removing them or adding them with a renumeration clause, which slightly varies from an ARR as it seeks to compensate creators for exploited works, as opposed to paying them at the time of sale.
The conversation around artist compensation grew heated on Nov. 26, when members heard from a panel including representatives from Spotify, Facebook, and Google. While members all agreed these platforms were useful, and even essential to creators, they questioned why creators aren’t receiving their fair share of the profits.
Darren Schmidt explained that while Spotify obtains licenses, they can’t be sure if some revenue goes to the artists, or if it’s broken up between the record label and music producer.
But Jeff Price, founder of Audiam Inc., urged members that copyright isn’t being enacted properly. He said platforms such as Spotify often use work without first ensuring they have the copyright. It’s a simple fix, he said. A platform should seek licenses for work and if it can’t find the artist or obtain the license, it can’t use the content.
Despite conflicting testimonies, Michèle Marcotte, the committee clerk, said members like to get both versions at the same time so they can understand all aspects of the sector and try and get everyone’s point of view.
“We did a study that was really useful for members so of course it gave some conflictual meetings sometimes, but that’s the way members wanted to understand the whole dynamic,” he explained.
One recommendation made by several witnesses that went uncontested is the need to simplify language in the Copyright Act.
Nathalie Théberge is the vice-chair and chief executive officer of the Copyright Board – “an administrative tribunal who’s responsible, in part, for establishing tariffs for certain use of copyright material when they’re collectively managed.”
Théberge said the act needs improvement for it to be accessible.
“Scrub it. It’s too complicated,” she said. “Make it more simple so that Canadians and rights holders, who increasingly have to manage their own rights, understand the legislative framework.”
The Copyright Board has also faced scrutiny from some witnesses during the study, and Théberge had the opportunity to address the concerns at committee on Dec. 6.
Dan Albas, the Conservative vice-chair of the committee, questioned Théberge on why the board has taken up to seven years to make a copyright decision – a complaint made by an earlier witness.
Théberge acknowledged that there’s pressure on the board to come to decisions faster. That’s why, she said the board is supporting the changes proposed in Bill C-86, the Budget Implementation Act.
The changes include requiring artists to register their work with the board. While she admitted this policy was controversial, Théberge said the board couldn’t make proper decisions when they didn’t have a full picture of the market. Bill C-86 also proposes regulating time-frames for the board’s decisions, as well as adding a tariff setting system, which will make fees predictable and consistent.
Perhaps more challenging than copyright for visual artwork, the committee has also been tasked with studying copyright and how it applies to AI.
Ruimy said the challenge of this is keeping up with the pace at which AI is developing. “So who owns all that? Who owns the copyright on that?” he wondered.
Myra Tawfik, a law professor at the University of Windsor told the committee that copyright in AI should be applied the same as it is elsewhere.
“Nothing should be changed, we should exercise the same tests,” she said. “If a human being has exercised sufficient skill and judgement in the creation of that work using artificial intelligence, then they should be able to claim copyright of that work.”
When it comes to complicated subject matter, such as AI and machine learning, Ruimy said members don’t need to be experts. Not all recommendations are solutions, he said. Sometimes it’s simply a matter of telling the government that there are unanswered questions and a study needs to be done to further understand an issue.
When the house resumes in 2019, the analysists will draft a 100-page report based on important themes that were discussed during committee, Marcotte said. The report includes witness testimony, as well as briefs that were provided to the committee, of which there are currently over 100. At this point, the report will have some direction based on the limited recommendations members have provided.
The real work begins on Jan. 29, when members will sit down and openly discuss their ideas for the first time. Members have had time to start thinking about the issues and building positions since the study began in Feb. 2017, said Marcotte.
“It’s just a matter of deciding what’s feasible,” he added.
Marcotte said that meetings from the last witness session to the first tabling of the report are usually in-camera – meaning they will not be available to the public – as members decide what recommendations they want to include.
The in-camera sessions are essential for members to give their honest opinions, said Ruimy.
“The ability to have an honest conversation without it being used against you, that’s what’s critically important,” he said.
But, Ruimy also said he didn’t think partisan roles have a big effect on INDU, unlike other parliamentary committees. He said he wasn’t sure where opposition members stood on copyright issues and noted that members have asked similar questions during committee, at times even following up on each other’s questions.
If there are issues, he said they will come out once the report is drafted, at which time opposition members with be able to submit a dissenting report or supplementary recommendations, should they be unhappy with the final draft. However, if things are done right, Ruimy said partisanship shouldn’t come through in the final report.
Marcotte said members would like to table a report as early as possible to receive a response from the government. Once a report is filed, the government has 130 days to respond, he explained. And, with a federal election looming, the committee only has a small window of time to hear back from the government.
Ruimy said that the recommendations need to be back up by data and there needs to be a clear indication of what the implications will be for a given sector. They also need to be actionable items, meaning realistic and attainable goals. The rest is up to the government, Ruimy said.
“All we can do is make recommendations it’s the government that has to deal with the response to that,” he said.
Both he and Marcotte noted the incredible efforts that have gone into the study and the amount of consultation that was done with key actors in multiple sectors.
“It’s a massive piece of legislation and I don’t know if you’re going to make everyone happy,” Ruimy said, later adding, “It’s not about making people happy it’s about what’s fair and how does the legislation reflect that.