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Serge Joyal

The Hon. Serge  Joyal, P.C., O.C., O.Q., B.A., LL.L., D.E.S., LL.M. Appointed to the Senate by the Rt. Honourable Jean Chrétien, Senator Serge Joyal represents the province of Quebec and the Senatorial Division of Kennebec. He has served in the Senate of Canada since November 26, 1997.

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Third reading of Bill C-11, An Act to amend the Copyright Act

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Statement made on 29 June 2012 by Senator Céline Hervieux-Payette

Hon. Céline Hervieux-Payette:

Honourable senators, I would like to add to what has been said about Bill C-11 and to what we heard from a number of witnesses who, despite the short notice, came to shed light on a bill that all my colleagues and I find very complex and very difficult. The government must also find it difficult because it has taken many years for it to finally pass this bill today.

Nevertheless, I would like to say that we are very satisfied, although I believe the evidence we heard indicates that even though this bill may resolve some problems in some cases, it also creates a great deal of uncertainty.

I would like to give an overview of the cultural industry and its contribution to Canada's GDP. As the former head of a school board, I am especially concerned about one particular sector, and that is education.

In general, this industry contributes $46 billion to Canada's GDP and creates 630,000 jobs. I am not referring just to education, but also to music and all creative activities. In the case of books, I do not believe that we realize the importance of this sector of the creative industry in Canada.

Unfortunately, Canada ranks below average in a study of 30 countries. A study released in January 2012 by the World Intellectual Property Organization indicates that, in terms of the general size of this industry we lag far behind the United States, where this sector represents 11.1 per cent of GDP, double Canada's 5.4 per cent; Australia sits at 10.3 per cent.

Cultural industries in other countries account for an average of 5.9 per cent of jobs. In Canada, that figure is 3.8 per cent, compared with 8.9 per cent in the United States and 8 per cent in Australia.

I think it is important to understand how this law will affect Canada's economy and to gauge the impact of implementing it. It is also important for us to be aware of the need to respond to the concerns that most of the witnesses expressed.

Canada has 3,879 recognized authors, and 45,000 Canadian titles are published each year in print and digital formats.

Sales amount to $2.1 billion, and Canadian companies invest $140 million per year in creating and producing books. Authors collect $71 million in royalties and create 9,700 jobs.

It is clear that books are a cornerstone of the industry, yet that segment will be affected by the Copyright Act.

Print media and literature add more value — 40 per cent on average — than most other segments of the cultural industry, but in Canada, they account for just 25 per cent. We can do better. The good news is that Quebec is above the international average with 51 per cent in terms of Quebec creators, authors and publishers. It took us 40 years to reach that level, but I think that is very encouraging for Quebec. In fact, and I may talk about this more later, Quebec is slightly ahead of its anglophone colleagues and has promised to fully respect copyright from a legislative perspective.

Nonetheless, one of the things of concern to the entire industry is the fact that Bill C-11 has introduced 40 new exceptions. When it comes to the law, we do not expect there to be so many exceptions. Observers of the creative sector and people in the political, economic and cultural world consider these exceptions as a way of expropriating copyright.

For all intents and purposes, authors are those who justify the existence of the Copyright Act because without authors there is no industry. If the exception, according to most observers, has become the rule — and this is even more troubling in the field of education — then the bill seems to give educational institutions and all other commercial or non-commercial private training businesses the right to use any copyright-protected work without permission or compensation. It is the one exception that could have the most adverse effects on the publishing industry.

Given the close relationship between books and education, this exception could cause a contraction of up to 20 per cent in the publishing/writing sector in the next two years. That is what is so worrisome, with regard to job creation, to the entire chain of stakeholders in this industry.

As far as collective societies are concerned, copyright licensing agencies were created to facilitate the collection of copyright fees. If, every time a work was used, the user had to send the author the small amount he or she is owed, then with thousands of authors and millions of users, that approach would not work. In Canada, we have collective societies. Every year, those societies collect $41 million and redistribute it to authors and publishers, including $11 million in French Canada. This represents 0.5 per cent of Canada's total education budget.

I am talking about formal education at educational institutions. I am not talking about education in the broad sense because that is another sector and a whole other matter of concern to every witness who came to testify.

This pertains to manuals published for professional training, professional associations, language courses and industries. The Canadian Bankers Association also produces material. Will those who produced this material lose their rights as authors? The bill cannot guarantee that they will not, and that was a concern for all the witnesses who appeared before our committee.

When representatives from copyright collectives appeared before the committee, they told us that there were Supreme Court rulings. Remember that we are talking about the management of fair use. That is what concerns most people who work in this sector, because the bill leads to the free use of works for educational purposes and does not provide any protection for the book industry.

Honourable senators will understand that the authors were also inspired by the opinions of very credible legal organizations, such as the Barreau du Québec, which said:

In several respects the bill introduces legal uncertainty in a way that will lead to greater use of the courts to determine the relations between authors, suppliers and users/ consumers.

The Barreau du Québec recommended:

. . . The addition to section 29 of the word "education" as one of the permitted fair uses of a work gives this provision a very broad and imprecise scope, especially in light of the many new exceptions specifically for the benefit of educational institutions.

Many people, particularly representatives of the copyright collectives, came to tell us that, already, a number of educational institutions are withdrawing from the copyright collection system, except one entire province where the Minister of Education has committed to respecting all copyrights and preventing any educational institution from benefitting from or applying this exception, or in other words, thinking that it can get away without paying anything. Why would only one copy of a publication be purchased for a class of 25 students and the author not receive anything for the other 24? Anglophone and francophone authors who appeared before the committee told us that they receive only the ridiculous amount of 90¢ for a book that sells for $10 in a bookstore. All this to say that the other $9.10 goes to the printer, the bookstores and all the other industry intermediaries, who receive the biggest piece of the pie. The authors have reason to be concerned that they will not be receiving the 90¢ for the other 24 copies.

We also heard about the business model for educational publishers, which do only educational publishing and make up a rather large share of the market. When each educational institution starts purchasing only a single copy of the required textbooks, these Canadian educational publishing houses will simply disappear.

This government brags about creating jobs, and yet an entire sector of the economy is in jeopardy here. All the publishing houses told us that they feel very threatened. When their representatives appeared in committee, they did not come to cry, but they suggested that the government fix this problem by complying with the Berne Convention. This convention states:

It shall be a matter for legislation in the countries . . . to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Canada signed the Berne Convention, but Canada does not automatically take the convention into account in its legislation. Not including these criteria in the legislation downplays the importance of copyright and gives authors cause for concern.

I am spending so much time talking about copyright in the education sector because it is key to knowledge transfer. It is not simply a matter of copying, but also electronic publishing, so that students can have access to educational material through as many means as possible. That is why there are copyright collectives, and these organizations unique to our country are worried about their future, especially since in English Canada, only two universities have renewed their agreements with these collectives and several educational institutions have already withdrawn.

I would like to address Quebec's position, because, honourable senators, when I am here in the Senate, of course it is my duty to represent the interests of my province and francophones. I said earlier that French-language publishing in Quebec has made more progress than English-language publishing, which has to compete with the entire English-speaking world, including the Americans. The Government of Quebec supported new legislation and recognized that it was essential to maintaining a competitive and prosperous economy in Quebec and Canada. However, it wanted better protection for intellectual property rights, particularly in the digital world.

Publishers and all teaching institutions have had to adapt to these new electronic modes of sharing knowledge that comes from the mind of an individual or teacher who puts this new knowledge down on paper, or records it electronically, and then shares that knowledge with students to prepare them for the future. That is certainly one way of sharing knowledge with a wider audience, as long as it is done in a way that is fair and equitable.

The Government of Quebec did not and does not support expanding the fair dealing exception for the purpose of education, because there is no real guarantee. Most of our witnesses interpreted this as being able to get around paying copyright when material is reproduced for educational purposes. For Quebec alone, this would mean a loss of $40 million, and another $25 million for film use.

The Government of Quebec is well aware that it has budget woes. It is having financial difficulties, just like all other provincial governments, but it will not sacrifice authors for the sake of its budget.

I would also like to take a look at ephemeral rights. The Canadian Music Publishers Association is worried as well. As a result of negotiations with users, an acceptable compromise was reached with authors by radio stations and all music broadcasters. Works could be recorded, put together and an exception made for 30 days. This section of the act has been repealed, and we are now also putting our songwriters at risk. God knows that Quebec songwriters have garnered international success — not just Céline Dion, but people like Robert Charlebois and many others.

These people persevered even though it was difficult getting their careers off the ground. But not everyone is a Céline Dion or a Robert Charlebois. Quebec songwriters do not earn much money and need to collect royalties every time their music is played. This exception could block the collection of royalties.

The issue of resale rights was also brought up and concerns me, but was not addressed.

While they are still alive, creators — painters, sculptors and others — do not always enjoy financial success and may even live in poverty.

Then all of a sudden, once they die, their work goes up in value. For example, a painting that was sold for $400 can be resold for $50,000, $500,000 or even a million, but none of that goes to the heirs.

Honourable senators, we will have to take another look at this issue. A creator's work is his legacy. When his work increases in value, heirs should be entitled to a portion of that revenue.

One clause seems very strange to me. It states that when copyright is violated, the maximum penalty is $5,000, a sum that does not generally warrant going to court. With $5,000, a creator would be losing money the minute he hired a lawyer. Going to court would cost well over $5,000. Maybe lawyers in other provinces work for free, but those in Quebec are paid handsomely, so I do not think creators will be in a position to exercise that right.

In closing, I wish I could say that this bill is extraordinary and that it will improve things significantly. The industry will be well served, except for some players, such as non-profit copyright collectives.

In this bill, the words "fair," "equitable" and "just" come up over and over again. Our Conservative colleagues have an extraordinary talent for playing with words because pitting creators' rights against the industry is anything but fair. Contrary to what the Bible says, David has lost the battle and Goliath has won.

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