Bill C-32 (Historical)

Copyright Modernization Act

An Act to amend the Copyright Act

This enactment amends the Copyright Act to
(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

[Marc Workman]

I would say so. I looked at the submission of the CNIB on Bill C-32, which you guys will have access to I'm sure. They raised some of the same issues about TPMs and maintaining a staff with that expertise, the ability to remove digital locks, and the concern with not unduly impairing the technological protection measure. So I think they have some of the same concerns.

[James Gannon]

Absolutely, there is a right medium, which is why I urge the committee to really try to come up with that right language. An example of why this enabling clause is kind of weak is that last year, at the Bill C-32 committee, even the ISPs—these guys who would be sheltered under the safe harbour—came out and said, “You know that enabling clause? You might want to kind of beef it up a little.” They are not the kind of people you'd think would be promoting that kind of amendment, but even they identified that as a necessary change.

When it comes to the safe harbours, there are some amendments you could make that wouldn't cover any of those traditional good guys, like the ISPs or the search engines, but would help in making the bad guys not sheltered under the provisions—specific things, such as if you know about an infringement, do something. If you are a hosting website and I point out that there's some infringement content, do something about it—I don't think any legitimate website would be opposed to that kind of requirement, that you take some action against infringing content once you know about it. That kind of requirement, which we have seen in similar legislation elsewhere in the world, is not found in the current safe harbours.

[James Gannon]

Absolutely. Thanks, Mr. Chair.

Last year, the Legislative Committee on Bill C-32 heard from a number of witnesses about how young people produce and use digital media. It was also said that, because of these new uses, the Copyright Act was in urgent need of reform. And yet, the committee did not hear from many young Canadians. Therefore, I also hope to share with you the point of view of a young Canadian, at the dawn of this new Parliament.

Let's get started with TPMs.

TPMs are technologies designed to control the way that digital media can be accessed and copied. Bill C-11 would make it an infringement of copyright to circumvent the TPM or to manufacture and distribute the circumvention devices. Legal protection for TPMs, or technological protection measures, has been enacted by all of Canada's major trading partners pursuant to the WIPO Internet treaties.

We often hear these technologies being referred to as “digital locks”, but I think that's a total misnomer; we should not think of TPMs as restrictions somehow meant to frustrate consumers but as an essential element of a thriving digital media marketplace. If there's one thing I'd like to accomplish in front of the committee today, it's to get rid of that “digital locks” label and to turn the focus back on what these technologies are and how Canadian copyright should protect them so that we can sustain a vibrant Canadian creative marketplace.

I'll give you a couple of examples.

I wouldn't call the TPM that's used on the Spotify music service a digital lock, because if you subscribe to the Spotify service, you can connect to and stream music from Spotify in unlimited amounts. You have access to a massive catalogue of music that you can stream at any time. What that TPM will do is prevent you from copying that stream and making your own local copy on your own hard drive. Otherwise, the only thing you'd need to do is subscribe to Spotify for a month, copy every piece of music they are offering, and cancel your subscription. The TPM stops you from doing that, but it doesn't stop you from having access to that stream at any time.

Even online video distribution services are using TPMs in very beneficial ways. For instance, through Blockbuster online you can either rent or buy movies from the Blockbuster website. There are not a lot of stores left in real life, but they have an online business now. If you rent a movie through Blockbuster, you get that movie file; it will cost you $3, but you get a TPM on that movie, and it causes the file to erase itself after 30 days. If you buy that same movie, it will cost you a bit more, maybe $20, but that file will not delete itself. Really, it's the TPM that makes that rental distribution model happen: without the TPM, there would be no difference between the rental and the purchase model.

We often hear that these cultural industries need to find new business models for their products; I think they're already here, but they rely on TPMs to make those distribution models sustainable.

That is why it is so important that we catch up to the rest of the world and ratify these WIPO treaties.

Bill C-11 would also create new exceptions that would give consumers greater flexibility in how they could use the media they had legally acquired, new exceptions for things such as format shifting, time shifting, and making backup copies. These are all long overdue additions to Canadian copyright law, but they should only apply so long as the TPM is not circumvented in order to make those new copies.

I understand that some have proposed to remove that condition and to allow the circumvention, or hacking, of TPMs in order to make those backup copies and those format-shifted copies, but allowing that hacking makes sense only if we go back to that digital locks mentality and do not think of these technologies as enablers of those distribution models I was talking about.

I'll give you some examples again. If I can circumvent that Spotify TPM, the thing that's protecting that stream, in order to make my own backup copies, again, I can just copy the entire Spotify music library legally under Bill C-11 and have my own local copy of the whole library they're offering as a subscription model.

Again, if I'm allowed to legally back up that Blockbuster rental, there's no reason I'd ever need to buy a movie. I could just rent movies and make as many backup copies as I wanted. That's why the TPM requirement in these new exceptions is absolutely vital: to ensure the viability of those new business models.

I want to say a couple of things about the enablement clause that I don't think have been raised today. There have been a lot of reports lately about what this clause is, so it's another concept I'm hoping I can clarify right now.

When the the Honourable Tony Clement introduced Bill C-32 a couple of years ago, he talked a lot about going after the bad actors or the wealth destroyers in the copyright world. Those were programs such as Napster and LimeWire, back in the day. Nowadays we have websites such as isoHunt and The Pirate Bay. These are the guys this enablement clause really targets.

On the other end of the spectrum, Bill C-11 also has safe harbours that are meant to protect the good guys. These are ISPs such as Rogers and Bell, or search engines, or hosting sites like YouTube. We know that these good-guy services are sometimes used to transmit infringing content, but it's not their primary purpose. That's why Bill C-11 gives them a safe harbour and protects them from liability.

You really have to think of it as a spectrum. Bill C-11 has the enablement clause to go after the bad guys and then safe harbours to protect the good guys.

However, the problem I want to bring to your attention today is that the bill won't really give enough teeth to copyright holders to go after these bad guys. On the one hand, the enablement clause is narrowly worded, so there's a chance that bad guys such as isoHunt and The Pirate Bay could argue their way out of it in court. On the other end of the spectrum, those safe harbours are very broadly worded. Not only could those bad actors argue their way out of the enablement clause, but they might actually be able to be sheltered under those safe harbours. That would be an unforeseen negative consequence of drafting the bill in its present form.

I can't stress enough the importance of getting the right language when it comes to the enablement clause and to the wording of those safe harbour provisions. It would be much too technical for me to get into all the little tweaks that might be needed today, but I'll give you an example.

The enablement clause right now applies to websites that are primarily designed to enable copyright infringement. That's the current language. However, every time we've seen these websites face lawsuits in other countries, their first argument was always, “Sure, 99% of the people who go to my website are downloading illegal content, and sure, I've made millions of dollars from all the infringement, but it was never my primary purpose. It was never what I primarily designed my website to do. It just so happens to be what it's used for nowadays.” That's why I propose to change the language of the enablement clause to say that websites primarily designed or operated to enable infringement should be liable for the massive amount of infringement that those bad actors are causing.

I urge the committee to look at these and some of the other proposed amendments that have been made to the enablement clause and those safe harbour provisions.

The last thing I'd like to quickly mention are certain technical amendments that are needed to some of the software-specific parts of the bill. These are provisions related to things such as encryption research, network security, reverse engineering, and software interoperability.

Last year at the Bill C-32 committee, witnesses such as the Honourable John Manley and the Honourable Perrin Beatty talked a bit about some of these amendments. I can confirm, both as a systems engineer and as a copyright lawyer, that these amendments are indeed required to those software-specific provisions. I haven't heard a whole lot of opposition to them, so I think they're fairly non-contentious. I'd urge the committee to consider those as well.

I think my time is up. So I would be happy to answer any questions you have on the bill.

[Professor Samuel Trosow, Associate Professor, University of Western Ontario, Faculty of Law and Faculty of Information and Media Studies, As an Individual]

Good afternoon. I want to begin by thanking the committee for inviting me as a witness. My name is Samuel Trosow. I'm a professor at the University of Western Ontario. I teach in the faculty of law, and I also teach in the faculty of information and media studies, which houses the journalism program, the media studies program, and the library and information science program.

Copyright policy is the main focus of my research, particularly as it pertains to new technologies. I'm going to focus my comments today on the aspects of Bill C-11 that most directly affect teaching, learning, and research in our educational communities. Bill C-11 is not a perfect piece of legislation, but I want to focus on something in it that I believe the government got very right, and that is the fair dealing provisions.

Fair dealing is the right to copy works without permission or payment, but only when it is fair to do so. Fair dealing is recognized by the Supreme Court of Canada as an integral part of the Copyright Act and a critically important right for all Canadians. The challenge for copyright policy has been to find the balance between often disparate stakeholders in order to promote learning and progress, to compensate creators, and to encourage new works. To do this, copyright creates a limited monopoly in the sense that owners are given very powerful, exclusive rights over their works, but the monopoly is limited in terms of its length and by users' rights, such as fair dealing.

What you must do is ensure that copyright policies enable new forms of learning and creativity and at the same time ensure that creators of intellectual goods have reasonable levels of protection in the digital environment. This is where the importance of fair dealing really comes into play. There are times when, whatever particular hat we are wearing, we need to access and use information resources. The Copyright Act currently permits fair dealing for the purposes of research, private study, criticism, review, and news reporting.

In the 2004 Supreme Court of Canada decision, CCH Canadian Ltd. v. Law Society of Upper Canada, fair dealing was identified as an important users' right, one that's integral to the overall balance sought in the Copyright Act. This interpretation is consistent with changing practices and quite appropriate in a technology-intensive information environment. But in the context of educational institutions, there remains a degree of uncertainty about the scope of fair dealing, the current language for which was essentially adopted from the 1911 version of the Copyright Act of the U.K. when the Canadian act was passed in 1921.

In the lead-up to Bill C-11's predecessor, the educational community was unanimous that the fair dealing categories needed to be clarified. The suggestion was to add the words “such as” before research, private study, criticism, review, and news reporting, and then to state the six fairness criteria adopted in the CCH decision. Bill C-11 does not go the “such as” route. Instead, it adds three specific things to the list: education, parody, and satire. While I would have preferred the inclusion of “such as”, the current proposal is a very reasonable compromise.

This provision has become a lightning rod for opposition and has given rise to several claims that an expanded fair dealing is all about saving money and that it will result in widespread copying of texts that will disable Canadian publishers and creators. One of the persistent charges being levelled by the opponents of fair dealing is that the educational sector does not want to fairly compensate creators, that schools and teachers and students want to expand fair dealing in order to save money, but nothing could be further from the truth.

Your predecessor committee on Bill C-32 heard from several groups about the massive spending the educational sector devotes to purchasing and licensing resource materials. Ernie Ingles, the University of Alberta chief librarian, told the committee last February that Canadian university libraries spend over $300 million annually on the purchase or licensing of content and that this will not change as a result of changes to fair dealing. The same point that day was made by Campus Stores Canada, which said that fair dealing does not affect the sale of course packs or the sale of text books, and they too saw no reason why this would change. The bookstores supported adding education to fair dealing as an important academic right, and they thought the concerns about mass copying were simply not founded.

Adding education to fair dealing is not about saving money, but the money will be spent in a smarter way and in a manner that will leverage these expenditures to make the content more accessible to more people, nor will the inclusion of fair dealing destroy the Canadian publishing industry and the creators who depend on it. In the United States the corresponding right to fair use for educational purposes is considerably broader than what Bill C-11 proposes. Despite these more liberal terms, well beyond what's being proposed in this bill, there is a thriving and robust publishing industry there.

In terms of suggestions for moving forward, if the committee wishes to clarify and limit educational fair dealing, there is a simple way to do that: include the six factors laid out by the Supreme Court of Canada in CCH into the text of the act. These factors for assessing the fairness of dealing are the purpose, the character, and the amount of the dealing, the alternatives to the dealing, the nature of the work, and the effect of the dealing on the work.

If you think educational fair dealing needs to be further clarified and defined, then by all means put this language into the act.

There is a final concern I want to mention. It's been suggested that educational fair dealing be limited to qualifying educational institutions. I would reject this approach. It would be the wrong thing to do. Fair dealing is a right for all Canadians, not just those privileged to be in an educational institution—a defined and limited term in the act. Fair dealing is not just for a graduate seminar on quantum physics. It's for a hockey coach teaching power skating skills. It's for a seniors centre running programs on nutrition and fitness. It's for a Girl Guides troop learning about the natural environment. It's for an exhibit on local history in a local museum. It's for a literacy program at the public library. It's for anyone engaged in the growing area of lifelong learning.

Yes, the clarification of fair dealing is critical for those working or studying in educational institutions, and there are additional exceptions that apply only there, but fair dealing is an important right for all Canadians from all walks of life, including authors, artists, and musicians, working inside and outside of our schools, colleges, and universities. By listing education within fair dealing's purposes, Bill C-11 strengthens and clarifies the right to the benefit of everyone, despite some of the sensational claims you've been hearing.

This change is of central importance because all of the goals articulated in the government's consultation—innovation, creativity, investment, competition, and global leadership—are best met by turning Canada into a haven for the practice of fair copyright. Canadians in all walks of life should be encouraged to engage in fair copyright practices. Practising fair copyright, which may take on different forms in different contexts, should become the hallmark of a Canadian copyright culture that reflects Canadian values.

As you proceed forward with this legislation, I urge you to pass the proposed fair dealing provision.

Thank you again for your time, and I would be pleased to answer any questions during your question period or subsequently in writing.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Just to clarify, there were over 70 witnesses on Bill C-32, and we will hear from another 60.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

Listen, I was quite shocked to hear Mr. Lake say we had heard from 130 witnesses. He also said that the bill currently before us was the same bill. We invited 130 witnesses to discuss Bill C-32, and here we are today....

[Dean Del Mastro, Conservative, Peterborough, ON]

I'd be fine with that amendment if you wanted to move it, but I'd also be very happy to bring to this debate some background on how this bill was put together, just to remind members of the committee of how it was done. I had the opportunity to meet with Mr. Benskin, I believe in the last Parliament, on this and other matters, and I recognize that he's been on this file for some time.

This bill was put together as a result of the broadest consultation on any government bill that I'm aware of. We entertained submissions from groups, including electronic submissions. In excess of 8,000 submissions came in written form, but we also had meetings in cities right across this country.

We admit the bill is not a perfect copyright bill. There is no perfect copyright bill, because you cannot satisfy every group that has an interest in copyright. You cannot give every group everything it wants. If you do that, you do it at the expense of another group that also has an interest in copyright. That's why the bill seeks balance, and balance means compromise, and compromise isn't perfect. That is what the bill is about.

For members who suggest that we are trying to force this through—some have used derogatory terms that I won't repeat—I suggest that they review the history of recent Parliaments. To the best of my knowledge, the 38th Parliament brought a bill, Bill C-60, that did not go anywhere. The 39th Parliament, to which I was elected for the first time, brought Bill C-61. It did not get passed. The last Parliament brought Bill C-32. It did not get passed either. I think it is incumbent on this Parliament to approach this bill with the sense of urgency that people in this country feel with respect to protection of property rights.

I have met with interest groups from right across the spectrum. Every single one of them knows, and they have known for a very long time, that a new copyright bill was going to be passed and needed to be passed. They support Parliament in acting on it, and that's why I think it's entirely appropriate that this committee approach this issue with the urgency it deserves.

For some 15 years, this country has had its name signed to an international treaty that we have simply not fulfilled, and I think that's unacceptable. I heard another member mention that funds could be wiped out if this bill was passed. I'd suggest that perhaps the member might start his review of the evidence submitted in the last Parliament by looking at evidence provided by the film industry. It showed that more than $1 billion a year is not coming to this country; it is being lost in investment, including in places like Montreal, which has a strong film industry, where we are not attracting that billion dollars. That's thousands of jobs.

Consider the recording industry. We heard from Music Canada, which talked about over $800 million a year going missing. That's coming right out of the pockets of artists, and that's money that's not being invested in this country.

The entertainment software industry talked about thousands and thousands of jobs that are not here right now in places like Montreal and Vancouver, all because we do not have a system that protects the property rights of companies that would otherwise invest in the industry and in the people who own the intellectual property.

For this committee to not approach this bill with the urgency that this situation calls for would be negligent, and it's not something the members on this side of the table are going to support.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

In reading the bill, it becomes clear that a number of statements made by witnesses before the committee charged with studying Bill C-32 were not taken into account. As soon as this bill is passed, rights holders will lose $126 million. Certain messages did not get through, and I think the Conservatives would do well to hear them again.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much, Mr. Chairman.

I'm going to vote against the amendment, because having sat in on the previous meetings on Bill C-32, I can say that the evidence is still, in my view, very relevant. It is recent, and frankly, it's evidence provided on this exact bill, so there's no reason we need to hear from witnesses a second time around on this bill. There's an old saying that nothing is new under the sun, and nothing has changed since they provided this testimony.

There are those who will disagree with the bill and there are those who are patiently awaiting this Parliament, this government, and each and every one of us to adhere to the obligations that we committed to under a previous government in 1997 to ratify the WIPO Copyright Treaty.

We can either stay true to our word, ratify those obligations and move forward, or we can continue to delay and frustrate those who are counting on us to act responsibly. I would be entirely opposed to hearing witnesses a second time. I think it's entirely appropriate to allow them, if they've had subsequent thoughts, to be able to submit those to the committee for its consideration, but this is the same bill and their testimony is recent.

Next week is a break week. I would encourage any members of this committee who did not sit on the Bill C-32 committee to use that time as an opportunity to review the materials we received and to acquaint themselves with that information.

Thank you.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I just want to get some clarification. Could the clerk remind us, going back to Bill C-32, how many meetings we had on Bill C-32? How many witnesses appeared before C-32? Could you remind us what the timeframe was in studying Bill C-32?

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Actually, before I read that, why don't I just quickly read the one before it so everybody is clear on that? There was some crossover there. The one that we passed before was “that the evidence and documentation received by the legislative committee on Bill C-32, An Act to amend the Copyright Act, during the third session of the 40th Parliament be taken into consideration by this committee”. That covers what we are going to take into consideration.

This new one is “that for clarity, witnesses who appeared before or made submissions to the special legislative committee on Bill C-32 during the third session of the 40th Parliament may provide, in written form to the committee, addenda to their original submissions”.

[Charlie Angus, NDP, Timmins—James Bay, ON]

It's very important that we bring forward all the evidence that was heard at Bill C-32 so that people did not put their in their time in vain, but I'm concerned about whether that precludes some organizations--I'm not sure it's all of them--that may want to provide testimony or briefs now under Bill C-11 from doing so. Just because we've received past testimony, does that preclude present testimony in present briefs?

We're speaking in this motion about taking all the evidence from the last time and bringing it forward, but is it going to preclude them from giving us new evidence?

[Geoff Regan, Liberal, Halifax West, NS]

Chair, I move that the motion be amended by adding after the word “submissions” the following: “and that all briefs and amendments submitted during the committee study of Bill C-32 be taken into consideration.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I move that for clarity, witnesses who appeared before or made submissions to the legislative committee on Bill C-32 during the third session of the 40th Parliament may provide, in written form to the committee, addenda to their original submissions.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

For clarity, I move that witnesses who appeared before or made submissions to the legislative committee on Bill C-32 during the third session of the 40th Parliament may provide, in written form to the committee, addenda to their original submissions.