Bill C-11 (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.

Copyright Modernization Act

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the member made reference to the support he had received for the legislation. In part, the legislation does have some merits, but a vast majority of Canadians have shared some overriding concerns with me and other members of the opposition and these need to be addressed.

I made reference to the digital locks, and the member challenged me to list a CD. I suspect that if I contacted my daughter, she might be able to help me out on that issue.

The point is it would have taken a little more courage by the minister to have stood in his place and provided assurances that the legislation would not impact consumers. That is the problem with the legislation. The minister cannot stand in this place and tell 30 million plus consumers that they have nothing to fear in terms of digital locks. The parliamentary secretary is not confident enough in the government's position to provide that guarantee to the Canadian consumer.

I will jump up and defend the Canadian consumer over the selected few individuals or groups that the parliamentary secretary has referenced. I wait for the parliamentary secretary to provide that assurance.

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, I am pleased to rise today to speak to Bill C-11. In many ways, this bill and its predecessors are part of the reason I am here today. In 2006, I came to Ottawa as an artist to discuss copyright with the then heritage minister and the then industry minister. I came with a couple of other artists, Brendan Canning from the Broken Social Scene and Steven Page from the Barenaked Ladies. We came to talk to the government about what it was like to be a working musician and why we did not think suing fans was such a good idea.

One of the interesting things that came out of those meetings was that people were surprised that we did not want to sue everybody. That was the kind of thing the government had been hearing time and time again from those who had its ear, and those who had its ear were then, in 2006, and today, in 2011, the multinational media companies.

It is important to underline the fact that those companies, which employ many people and many of the people they employ are friends of mine and I, therefore, want to see a healthy and vibrant music business, but those companies do not speak for artists. They speak for the shareholders of multinational corporations. Their sole interest is in their bottom line, which is not necessarily the same as the bottom line of artists. It is also not necessarily the same bottom line that consumers have.

For example, we have many people in the arts and culture sector who look at the multinational corporations that, let us be honest, own most of the content that we are talking about here, and they have had historical struggles with these large entities.

One of the things about Bill C-11 and copyright generally is that there is an opportunity here to right some of the historical imbalances that we all know only too well. The musicians who barely eke by while the owners of their content makes millions upon millions. We hear those stories all the time. It has been noted that the music industry, like many of the creative fields, is a great place to get rich if one is lucky but a lousy place to make a living.

The copyright reform that we are talking about today is an opportunity to right some of that but this bill misses that opportunity by a mile. In fact, like the government on so many other occasions in this House, it likes to play politics. It likes to divide, rule, separate, hive off different groups and try to get them to bicker with other groups in its own effort to ram through legislation.

It is heartening to hear that the government is changing its tune about listening to the opposition around amendments. As we know, over the last several months in this House the government has not been interested in hearing anything form the opposition. In fact, when we have good ideas, it just rejects them. Occasionally, at the 11th hour it realizes there are some good ideas and that it had better rush them into bills only to discover that it cannot because it is too late. It is nice to hear that around Bill C-11 there is a willingness to listen.

One of the big issues for us on this side of the House is that artists get paid. I think Canadian society would agree that it is in our interest as a society to see a healthy, vibrant arts and culture sector.

However, when we have artists making below poverty wages to create the content that makes this country the rich and joyous place that it can sometimes be, it is incumbent on us in this place to look at ways in which we can foster a vibrant arts and culture sector so that more of the wealth that is created in this sector ends up trickling into the pockets of artists.

Forty-six billion dollars of Canada's GDP were created in the arts and culture sector in 2007. Twenty-five billion dollars in taxes for all levels of government in 2007 on an investment of $7.9 billion is pretty good. There are 600,000 workers in the sector, 4% of the Canadian workforce. This is perhaps my most favourite stat of all: Canadians spent twice as much on live performing arts in 2008 than they did on sports events. That is one stat that I particularly enjoy saying as often as possible.

The reason I am mentioning these statistics is that the arts and culture sector is a major driver of the Canadian economy, which is partially why this bill is so important and also why we need to take a serious look at the bill because for artists this bill falls short. It falls short for consumers on a number of levels, too, and for businesses as well. There are many ways in which the bill needs to be looked at.

However, I will just step back for a second. When I first came to Ottawa in 2006 as an artist to talk about this bill, I was shocked by what I heard. I heard that the government had no ideas, other than to lock down content and sue consumers. The government asked if we had any better ideas. Since 2006, I think there have been a lot of good ideas but very few of them are reflected in the bill that we see before us.

I come from the music sector. I am a songwriter, composer and producer. Copyright is something that I rely on. It is something that has helped me make a living in this country as an artist, which is something I am very proud of.

We have an opportunity to make this bill a fairer, more balanced playing field for artists. One of the particular pieces of the bill that makes absolutely no sense to us is the broadcast mechanical. Why would the government take $20 million from broadcasters who are making a $2.5 billion a year business here in Canada? Why would it just pluck that out and let it go?

We in our party are against that and we will be tabling amendments at committee that will seek to change that part of the bill because we do not want to see artists not get paid. In fact, the bill takes us a step backward in terms of compensation for artists, instead of looking at the myriad of possibilities that the digital era presents for us in the arts and culture sector.

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Mr. Speaker, my question for the hon. member on our side, who is a talented musician and an eloquent member of Parliament, is specific and broad at the same time. It is about digital locks.

It seems to me, from listening to him and others, that digital locks are bad for consumers because they prevent Canadians from having full access to digital content that they purchased. It seems that they are bad for artistic creativity and bad for innovation. It seems that they are bad for education because they may make criminals out of instructors who access content for educational purposes. Do I have it about right and, if I am wrong, could he correct me?

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, one of the issues that the bill does not really address and one of the opportunities it misses is the idea of blanket licences. I come from a sector where we licence songs through a collective and those songs, whenever and wherever they are played, a portion of a revenue stream comes back to the creators of that content. The problem with digital locks is that they lock up the potential for further revenue streams for artists. Digital locks also do not provide the protection for content creators and owners because, as we have seen happen in the music industry, those locks can be circumvented. This is why the digital lock provision is troubling for us in our party.

[Paul Calandra, Conservative, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, I note that this is the second time the member has had the opportunity to speak to the bill. Far from limiting debate, this is offering more opportunity for him to do that. He has also mentioned that he is prepared to bring forward some amendments.

We also heard the member from Thunder Bay talk about criminalizing Canadians. I wonder if the hon. member might point out the section of the bill that would actually criminalize Canadians.

He also talked about the minister not having the opportunity to speak to artists. I was in the parliamentary dining room today when the hon. member came by my table where I was with the minister and Jim Cuddy who is doing a great concert for us tonight. The minister was there. I am not sure if Mr. Cuddy merits being a Canadian artist.

The member also talked about having had the opportunity to be here before he was elected to this place to talk about copyright. We have been at this a long time. As a member from Toronto, how could he possibly promote anything that would kill hundreds of thousands of jobs in the movie sector in that great city?

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, once again we have the laundry list of questions from the parliamentary secretary. Absolutely, Jim Cuddy is one of our great Canadian artists.

The problem we have here is that the balance with the government is never right. We have a parade of the captains of global industry who do not even need to knock on the door of the government. They get the red carpet every time they drive up to Ottawa.

The problem is that we do not hear enough voices from those who actually make their living on the ground in the arts and culture sector being able to speak to the government. Our job on this side of the House is to ensure we have an engaged debate on Bill C-11. It is also important that we bring some new ideas into this bill and, hopefully, the government will listen.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Mr. Speaker, the parliamentary secretary talked about bringing forward amendments. The Conservatives' record on supporting amendments is about the same as the Indianapolis Colts' record this year in the NFL, which is zero.

The opposition parties understand that there needs to be a change in the legislation, that there needs to be a change in the rules and that we need to adapt to the technology. The rules have not kept up with the technology.

What we and my NDP colleague are trying to say is that this restricts the creative community. It restricts those who make the product, the Shania Twains, the Bryan Adams, the Tragically Hips, or pick a Canadian artist. It is those people who create the product who will be handcuffed by this particular legislation.

I would like the hon. member's comments on that.

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, the issue here is that if digital locks worked and if the downloading of music were the sole issue that was troubling the music industry, then maybe we would have a conversation here. However, they do not work and there are many issues troubling the industry.

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

Mr. Speaker, it is a great honour to rise in this great House once again to represent the people of Timmins—James Bay. It is a great privilege to come on stage right after the hon. member for Davenport. It seems I have been doing that ever since we were 16, having to go on stage with him at Larry's Hideaway and The Edge and all the other places that we played across Canada, and learning very early on that the money artists rely on, the money that comes back in payment, is so little.

Artists live on pennies. It is the accumulation of pennies. That is the fundamental principle of copyright. If we take those pennies away, the ability of artists to maintain careers evaporates.

When the government strikes $20 million that goes directly to artists out of the bill and thinks it is no big deal because the Conservatives' buddies in the big broadcast centres want a better break, the government is not providing any industrial advantage, but it is making it impossible for some artists to continue. Year after year, many artists have to sit down. My colleague and I worked with many great Canadian artists who, after a while, simply could not make it. They count on those pennies coming in to offset the incredible investment they must make as artists; when those revenue streams are not there in sufficient number, or if they are ripped off and are unable to see a balance, then Canadian content is affected.

The debate on copyright has been excellent for Canada and for Parliament. I was here in 2004, when the understanding of copyright was to pass the bill really fast and get it done. There have probably been some advantages, because we now have a House where we can discuss the implications of technological protection measures, and it is important to discuss these kinds of things.

When we pass elements in this House, for example, on technological protection measures, they will have implications. In some areas those implications will be positive. In other areas there will be implications that will be extremely negative. That is the fundamental balance of copyright. To simply say it is one or the other, that it is a black or white world, does not work in the realm of copyright. It never has.

If we go back to the copyright debates that happened in France, England, the United States in the 1700s and the 1800s, the issue was that necessity to find balance between the public good and the private right.

The private right is defined by two basic players. One is the author and the other is the publisher. They are not necessarily the same creator. Who has the right to make a copy? That is the fundamental principle of copyright. Who has the ability to access that artistic work, and how long should the control over it last in order to maintain a public good?

The work is not a piece of property. This fact has been defined in Parliament and has been defined in law. An artistic work is an idea that is put into the public realm. It exists for a period of time during which someone is able to receive exclusive compensation for that work and has that exclusive right, but after a certain time that idea belongs to the larger community, which will base future artistic works on it. That is the balancing act.

In reforming copyright, it is essential for Canada to upgrade its copyright regimentation in 2011. We have a national obligation, because one of our greatest exports--maybe our greatest export, above our oil, gas and gold--is our international artistic reputation. We have produced great artists internationally, so we have a national priority in maintaining that reputation.

There is an industrial component, of course, because we do not simply want to see goods being knocked off, ripped off and traded off. If we put an intellectual investment into a product, we have a right to a response.

There is also the creative community. We have been speaking about it a great deal in the New Democratic caucus, because we believe the fundamental principle of copyright is that our artists should get paid. When we look at artistic copyright legislation that takes away rights that previously existed, we have a problem with it.

It does not mean that the New Democratic Party will say it is against copyright. No. New Democrats support copyright, and we want to make sure that the artist has a right to get paid. However, the other essential element of copyright is the public good, and this is where we will sometimes butt heads with the industrial component.

We have created an incredible digital commons. In terms of the ability of people around the world to communicate and exchange ideas and create on a base of older works, there has been nothing like it in the history of civilization. It has certainly created havoc with older business models.

The other day I was in a record store. I was talking to the owner of the record store about all these young kids who are coming in and asking about Sun Ra and Sister Rosetta Tharpe and Gene Vincent, artists we would never have heard of when we were younger. We did not know these artists even existed, but because of YouTube and the Internet, there is so much more potential. That digital commons must be protected.

Within that digital commons there are obviously some major issues in terms of people trading off works. We have Pirate Bays, where entire works are available and people are not paid for them, but the issue is to not simply lock down content overall. We do not simply let industry decide what rights artists have; we bring it to Parliament. Within Parliament, we decide what rights a citizen should be able to have.

For example, a citizen should be able to have the right to extract, under a digital lock, work for study or for commentary. Anybody in the documentary film industry will tell us they need to be able to extract excerpts from films because they are making commentary on it. That right is defined by Parliament. We have all agreed to that right.

However, a digital lock would simply override that right. The right given in Parliament might not be the right given by the industry. That is not insurmountable, but it is certainly problematic.

We need to define, as most of our European counterparts have done on the digital lock provisions, that it is the right of an industrial organization to put a digital lock in place to protect their product from being ripped off.

This is what we would say. The gaming industry has made enormous investments, and digital locks are essential for that business model. However, if a student breaks a digital lock because he or she cannot see or is partly blind and has to break the digital lock to access the work on a Kindle, that student is not the same as someone who breaks a digital lock to rip off video games.

That was defined in the WIPO convention. It was very clearly articulated that in our international obligations we have to protect the intellectual property but that we can also define legal exemptions within Parliament or within a federal government.

That is the issue on the digital locks; the issue is not to say that digital locks are good or digital locks are bad, but that we need to define the exemptions, just as we have to find out why certain areas of important revenue streams that artists have relied on are being erased. We do not support erasing artists' rights that they have exerted.

In terms of education, there is so much potential in the digital realm. We have an ability to transform a nation as spread out as ours in doing education or library loans. We had never even been able to contemplate these capabilities before.

The problem is that within this bill there are provisions that have to be fixed. Again, it is not that this bill is going to be black or white, but things have to be fixed. For example, a student in Fort Albany who is taking long distance courses and getting course notes over the Internet would be told that after 30 days, that piece of paper would have to be burned up or disappear. However, a student going to Collège Boréal or Northern College in Timmins would be given the paper notes and would get to keep those notes. There cannot be two sets of rights, one in the analog paper world and a lesser set in the digital realm.

We need to clarify that. We have asked many times whether the government would work with us to amend the act, because we are committed to reforming Canada's copyright legislation. At least since I have been here, the position of the New Democratic Party has been that we want copyright to move forward; however, we must amend this bill, because if we do not amend it, there will be many perhaps unintended consequences, and we have seen where those consequences will be.

We are telling the government that if it expects support to get this legislation through, it should show willingness to sit down and go through the problems. There are problems with this bill. There will be problems with any copyright bill.

It is about restoring that sense of balance. We have not seen that yet. That is the fundamental principle of copyright. We will remain committed to the principle of a balanced legislative framework.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, different groups of artists have different needs. The needs of consumers and creators are also different, and heaven knows that this bill is far from perfect. I would like my colleague to speak a bit more about the amendments that are required and that should be made to this bill, even though we know that they will probably be rejected.

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

Mr. Speaker, wherever the bill has erased the rights of artists to be paid, we want those artists' rights to be restored. That is fundamental. We want clarification on the digital locks language. The issue of distance learning has to be amended so it is reasonable.

As we spoke about earlier, the other element is the issue of the fair dealing provisions, particularly in relation to education. The Supreme Court has given a very clear six-step test to clarify what fair dealing is and what it is not. Anybody who has ever dealt with education will know that the fair dealing provisions are perhaps the most explosive. We would like to clarify fair dealing in education and how it conforms, under this legislation, to the Supreme Court test. Many of the artists' groups and many of the education groups may feel a little better, but unless the government is willing to make some of those changes in language, there are going to be problems.

[Paul Calandra, Conservative, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, I would like to congratulate the hon. gentleman because this is, I believe, the third time he has had the opportunity to speak to this bill. That is over an hour of time in this House for him alone on this bill, and I am still waiting for some suggestions with respect to how he and the NDP members opposite would help to preserve and protect the thousands of jobs in the video gaming, movie, TV and video industries, not only in Toronto but across this country. We know it is worth billions of dollars in economic activity. We know we have to protect those jobs. If we expect people to continue to invest in this country, we know we have to update our laws so that they reflect the same laws as our international partners.

Because I have not heard it in the over 60 minutes of discussion we have had so far, I wonder if the member could outline some of the changes that he anticipates would help preserve and protect the hundreds of thousands of jobs and the billions of dollars of investment that are relying on an update to our copyright legislation.

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

Mr. Speaker, I will send the hon. member the Hansard, because I think I just spoke to that point. However, if he wants to know what the changes would be, what we would do is bring ourselves in line with our WIPO-compliant partners in terms of article 10 of the WIPO treaty. That is where the New Democratic Party stands on the issue of digital locks.

Earlier the member said he had never heard of an example of a musical CD that had a digital lock. Maybe he is not aware of it, but he could look up the Sony rootkit. Sony put out CDs that had spyware in them so that it could spy on consumers to find out what they were doing with the music. That spyware actually destroyed entire computer systems. Kids bought a CD to listen to some music, and the corporate digital lock destroyed their computer systems. Sony later said, “Sorry; we didn't mean it”, but that is not good enough. We think that when consumers buy a product, they should be able to play the music and back it up without having to worry that the computer is going to be destroyed because of a digital lock that was placed on their musical device.

[Paulina Ayala, NDP, Honoré-Mercier, QC]

Mr. Speaker, the head of the Union des écrivaines et des écrivains québécois, Francis Farley-Chevrier, believes that the new bill socially devalues the work of authors. He said the following:

The Copyright Act encourages those who have chosen this profession by providing them with an income. If we discard this system, we take away recognition. It is not just a question of money. It is a question of placing a value on the work we do.

What does my colleague think of that?

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

Mr. Speaker, as an example, back in the music days of my colleague from Davenport, cable television never paid royalties to musicians because they said that if musicians had a video on cable TV, it was promoting them and they should have their video on there for free. Musicians were expected to pay $30,000, $40,000 or $50,000 for a video, and they never received payment for it. It was not just that they were being ripped off for the money; when they turned on the television and saw their video, they realized they were making money for somebody else and not seeing a dime for it. That was not right, so at that time SOCAN, the artists' rights organization, fought the broadcast industry for years to get a settlement.

It is a fundamental principle that if people create a work and that work is exploited, they should be paid. That is a fundamental principle. If they create a work and nobody buys it, then they can sing it to their family and the family might like the song; however, if it has a commercial value, the creator has a right to be compensated. That is the principle of justice to the creative community.