On November 27th, 2018, Professor Michael Geist and Jeremy de Beer, members of the Centre for Law, Technology and Society, appeared before the House of Commons’ Standing Committee on Canadian Heritage (CHPC).
The Committee is currently discussing breach of personal information involving Cambridge Analytica and Facebook.
Professor Geist is a Full Professor in the Common Law Section at the University of Ottawa's Faculty of Law and Canada Research Chair in Internet and e-Commerce Law.
Professor de Beer is a Member of the Centre and a Full Professor in the Common Law section at the University of Ottawa's Faculty of Law.
- Prof. Geist's speaking notes are available in his website.
- See below for Prof. de Beer's speaking notes.
- The audio recording of the hearing is available here.
Dear Honourable Members of the House of Commons,
My name is Jeremy de Beer. I am a Full Professor and Member of the Centre for Law, Technology and Society at the University of Ottawa’s Faculty of Law, appearing as an individual.
Before becoming a law professor, I was Legal Counsel at the Copyright Board of Canada, where I saw first-hand how remuneration models are applied in practice. For 15 years I have taught courses covering copyright in creative industries. I have advised collecting societies, user groups, government departments, and international organizations on copyright law and policy. And, of particular note to this Committee, I am an author. I have written five books, more than 50 articles and book chapters, and dozens of other works.
I have three key points to offer the Committee today. First, the root cause of many artists’ problems is not copyright; it’s unfair contracts. Second, any copyright reforms this Committee recommends must rebalance Canadian copyright in light the windfalls of term extension in the United States Mexico Canada Agreement. Third, I urge this Committee to recognize the unique rights of Indigenous artists by clearly stating that nothing in the Copyright Act or the Committee’s work on it derogates from the existing and treaty rights of Aboriginal Peoples of Canada.
Contracts not copyright
Based on my experience as a teacher, adviser, researcher, and writer, I can tell you that one of the biggest problem facing authors and many other artists is not piracy by internet downloaders or educational institutions. Many creators’ biggest problem is with publishers, producers and other powerful intermediaries who siphen much of the market value of copyrighted works. While arguing in the name of authors and artists about value gaps and freeloading teachers, many intermediaries conveniently ignore the power imbalances and unfair contracts that harm creators.
Dr. Rebecca Giblin, an Australian professor who advocates for the interests of artists, calls out the core problem as “a manifestation of trickledown economics, that theory of horses and sparrows: feed the horses enough oats and some will fall through to feed the birds.” As a result of this approach, she explains, “we have fat horses and starving sparrows.” I suggest to this committee reading Dr. Giblin’s recent work to better understand why it is dangerous to conflate the interests of artists and investors, and how we can secure for authors a fairer share without compromising incentives.
In a chapter I contributed to her recent book, “What if We Could Reimagine Copyright,” I endorse market-oriented approaches towards copyright as a means to promote creators’ interests, consumers’ interests, and the public interest. However, such market-oriented approaches may also concentrate power, increase inequality, and marginalise individual creators. I suggest to this committee that the solution to the problem may lie outside not within copyright.
Examples of practical mechanisms to address power imbalances include:
- collective bargaining to achieve fairer contracting;
- class action litigation to enforce creators’ rights; and
- certified branding schemes to promote fair trade and equitable consumption of creative content.
Rebalancing copyright after USMCA
As you know, the USMCA requires Canada to extend the term of copyright protection by 20 years. This windfall will cost Canadian consumers and taxpayers tens, possibly hundreds, of millions of dollars per year, most of which will flow to foreign publishers, record companies, and other investors.
While the term of copyright protection in Canada and the United States will soon be aligned, other aspects of our laws are out of sync. Most importantly, while the United States has a flexible fair use system to protect the interests of all stakeholders—including all artists who create new works by building on what’s come before, standing on the shoulders of giants so to speak—Canadian copyright contains no such safety value. Rather, Canadian creators are at a disadvantage by having to rely on a closed list of limited exceptions.
While you have been asked by some lobby groups to whittle away at these flexibilities even further, the smarter policy move is to shift to a similar fair use system as balances American copyright. At an absolutely minimum, given the expansion of copyright protection in the USMCA, Canada must preserve the flexibilities already in place in our copyright law.
Recognizing Indigenous rights
My final point to the Committee is an emphatic endorsement of what I believe you will hear from Mr. Robertson on behalf of the Indigenous Bar Assocation: that the time is now to ensure copyright law is fully compliant with the rights of Aboriginal Peoples of Canada.
The way to do so is not through paternalistic measures that purport to tell Aboriginal Peoples how to protect and grow their cultural and creative industries. The appropriate measure is a non-derrogation clause: an explicit statement acknowledging that nothing in the Copyright Act derogates from the rights of Aboriginal Peoples to determine for themselves, based on indigenous or Canadian laws, how to govern traditional knowledge, cultural expressions, and creative works.
Jeremy de Beer