Bill C-11 Committee on March 13th, 2012

[The Chair, NDP, Glenn Thibeault]

(Amendment withdrawn)

[The Chair, NDP, Glenn Thibeault]

Now I will open up discussion on clause 47 as amended. Is there any further discussion on clause 47 as amended?

Mr. Lake.

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

Actually, I have a question for the officials. I just wanted to lead in by saying that it has been an interesting discussion and a lot of things have been said. There has been a lot of debate about this particular clause as it relates to the TPMs.

I would just remind the committee that we did hear from several voices expressing that the provision of TPMs will actually allow for more content, more services to be available in more innovative ways. There were several voices that made reference to this over the course of the committee hearings. We heard from one a couple of weeks ago. I'll quote him; he said:

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.

This is an issue where there are voices that have strong positions on both sides. As a committee, we have to make a determination as to the best course of action here.

With the short time I have on this, I do want to go to the officials. The government has the ability to provide new exceptions to TPM provisions through regulation. I know that was one component within the bill. I thought that it might be a good time now, even though that comes in later clauses, to just elaborate on them as they relate to the particular clause we're on.

[The Chair, NDP, Glenn Thibeault]

On a point of order, Mr. Regan.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Chair, just to be clear, my colleague is asking the officials to speculate on what future regulations might exist, by this government or other governments in the future, because of this particular provision—

[The Chair, NDP, Glenn Thibeault]

Mr. Regan, I appreciate that this is not really a point of order; it's more like trying to clarify the question from Mr. Lake. I'll turn it back over to Mr. Lake if he'd like to clarify his question in further detail, but it's not really a point of order.

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

First of all, it's not a point of order. Second of all, it's not accurate at all. What I was asking is for the officials to comment on the provisions in clauses that are in the bill and on the government's ability to provide new exceptions to TPM provisions through regulation. I'm not asking them to comment on what those future decisions might be, but on what is actually in the bill.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Lake.

I will now hand it over to the officials for comment.

[Drew Olsen]

Thank you, Mr. Chairman.

Mr. Lake, what I can do is explain to the committee what is in Bill C-11 in terms of regulation-making powers, if that's okay.

Proposed subsection 41.21(1) grants the Governor in Council the power to make regulations to exclude a TPM or a class of TPMs from the prohibitions that would be established in proposed section 41.1, which is the circumvention of TPMs, the offer of services to circumvent TPMs, and dealing in devices to circumvent TPMs, if it considers that the use of the TPMs in particular circumstances “would unduly restrict competition in the aftermarket” sector.

Proposed paragraph 41.21(2)(a) grants the Governor in Council the power to prescribe when proposed paragraph 41.1(1)(a), prohibition against the circumvention of access control TPMs, would not apply. The factors enumerated in that section must be considered, as well as any other relevant factor. These factors consider the restrictions on the use of protected materials caused by TPMs, and the effect that circumvention of the TPM would have on the market value of that protected material.

Proposed paragraph 41.21(2)(b) addresses the situation where a person who benefits from one of the eight exceptions to circumvent an access control TPM does not have the means to do so. To deal with such an instance, the provision would grant the Governor in Council the power to require a—

[The Chair, NDP, Glenn Thibeault]

Mr. Olsen, I'm sorry to interrupt you. You're reading a little too fast for our interpreters.

[Drew Olsen]

I'm sorry.

To deal with such an instance, the provision would grant the Governor in Council the power to require a copyright owner of material to which access is controlled by a TPM to provide access to such a person. It states: “The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with”.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Olsen.

We're back to you, Mr. Lake.

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

For those who are watching this—and actually, I think there are probably more people watching this than would normally be watching committee proceedings—maybe you can just give a brief explanation of how regulations work, versus actually having to change the law through another piece of legislation.

[The Chair, NDP, Glenn Thibeault]

Mr. Olsen, please be brief, because we're already over time. Thank you.

[Drew Olsen]

Regulations are a power of the Governor in Council--the cabinet, in other words. They can pass a regulation rather than having to amend a statute. It would be a cabinet process. There's a consultation process. They are usually gazetted in the Canada Gazette ahead of time for Canadians to comment on the proposed regulation. Then they are voted on in cabinet and approved.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Olsen and Mr. Lake.

Is there any further discussion? If not, I'll go to Mr. Angus.

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

Thank you.

To clarify, some of the fundamental philosophical issues we've been dealing with in this bill are the direct attack on artists' payments. We heard from the Conservatives yesterday that they felt there should be a ceiling in terms of how much the arts community receives on something that's adjudicated under the mechanical royalties rights, and that they would intervene in the market that has already decided the value of a creator's work and limit it. They would create an exception so it would not necessarily have to be paid, even though we heard that would bring us into court proceedings. We're concerned about that.

We're concerned about the digital lock provisions that are an overreach on rights that are guaranteed under Canadian law, which will also bring us into court action. We're certainly concerned since hearing from the Canadian Consumer Initiative's Janet Lo, who was asked the direct question. She felt this would lead directly to lawsuits against Canadians for engaging in legal acts. This is not about piracy. This is not about people stealing and undermining emerging business models. This is about legislation that is setting up provisions that would leave Canadian consumers, Canadian citizens, open to lawsuits.

We have deep concerns about that, Mr. Chair. The fundamental principle about copyright is the right to make a copy. It is the droit d'auteur, the right of the author to be remunerated. We have seen again and again that this bill has decided that the marketplace—this mystical hand of the market—will decide, but it's not. The market's being set up by the government to favour one set of players over others. The ones they are setting it up against are average citizens: law-abiding Canadians and the creative community, who are the engine of such innovation in our country. They are being directly attacked in this undermining of their royalty provisions. This is why we have expressed such deep concerns about this bill. That's why we have tried to work with the government on realistic amendments, whether it's on perceptual disabilities....

The government has shown no willingness to work with us. We remain deeply opposed to what we think is a fundamentally flawed bill.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Angus.

There are still a few minutes left for any other New Democrats, if they would like to comment. Then we'll move to Mr. Regan.

Mr. Dionne Labelle.

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

Thank you, Mr. Chair.

From the outset, we have been saying that we do not oppose digital locks, just when it comes to imposing a lock on copyrights in schools, on creators' rights as they relate to communication and broadcasting, and on the rights of material producers. Obviously, the Conservatives are the ones imposing these locks.

Mr. Lake said something yesterday about royalties paid to creators. He said that this would take $21 million out of their pockets, that it wasn't much. That attitude shows a total disregard for the reality that artists face in Quebec and Canada. They scrape together whatever they can anywhere they can, and every single penny....

[The Chair, NDP, Glenn Thibeault]

Mr. Lake, you have a point of order?

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

I want to clarify the record: that is not at all what I said.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Lake. That's not a point of order.

Moving on, Mr. Dionne Labelle.

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

Numerous provisions in this bill are going to be debated and will likely prove to be unconstitutional. The province's domain is indeed being infringed upon.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Dionne Labelle.

Mr. Regan, you have five minutes.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you very much, Mr. Chairman.

I'm looking at the regulations section, which would be proposed subsections 41.21(1) and 41.21(2) of the bill. I don't see that any of these give the opportunity for the government to correct the major problems I see with technological protection measures, the impacts on the young mother I described, and the fact that people can't format-shift a movie they've legitimately paid for. You have a provision in cases where the Governor in Council feels that the application would unduly restrict competition in the aftermarket. That is not going to help that mother. It's not going to help the librarian.

You have the additional circumstances like where it could adversely affect the use a person may make of a work when that use is authorized. If they said when that use is lawful, it would be entirely different--in other words, if it's a non-infringing purpose where the person was using something they paid for and was just reformatting or what have you. In this case, you can imagine that a person with a disability would have to get the authorization of the company that owned the software, for example. How practical is that? I really don't see that the possible regulations under this act would resolve or overcome the major problems with it.

Thank you.