Bill C-11 Committee on Feb. 27th, 2012

[The Chair, NDP, Glenn Thibeault]

Good afternoon, ladies and gentlemen and members. Welcome to the third meeting of the committee studying Bill C-11.

We want to remind all members that as part of our first meeting we asked to have all these meetings televised, so I'm expecting you to be on your best behaviour.

With that, I'd like to start by introducing our witnesses today. We have Mr. de Beer, an associate professor at the Faculty of Law at the University of Ottawa; Mr. Trosow, an associate professor at the University of Western Ontario's Faculty of Law and Faculty of Information and Media Studies; and Mr. Gannon, a lawyer at McCarthy Tétrault. Welcome, gentlemen.

I believe we'll start off with 10-minute presentations. I'm giving you my very friendly and nice warning now that at 10 minutes I will step in and unfortunately cut you off if you haven't wrapped up by that time.

We'll start with the first person on the list. Mr. de Beer, if you're ready to get under way, please go ahead.

[Professor Jeremy de Beer, Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

Good afternoon. My name is Jeremy de Beer. I'm an associate professor in the faculty of law at the University of Ottawa.

My research focuses on law, policy, and business issues related to intellectual property, technology innovation, and international trade. I teach, among other things, courses on global intellectual property policy and the digital music business. I'm also a practising lawyer who has worked with copyright stakeholders of all kinds, from creators and producers to intermediaries to end users and consumer groups. Before becoming a professor, I was the legal counsel for the Copyright Board of Canada. That's the economic regulatory agency responsible for the administration of copyright in Canada.

That said, all the views I'm going to express today are my own and are based on my scholarly research and my professional experience.

The Government of Canada should be congratulated for its commitment to copyright reform, and I, like many other Canadians, look forward to the eventual passage of Bill C-11, the Copyright Modernization Act, into law. This committee's work in that context is extremely important, and I'm grateful for the opportunity to participate in the process of making Canada's copyright laws among the most appropriate and effective in the world.

Because I'm not here today representing any particular organization or any particular perspective, I'm not asking this committee for any specific amendments to the bill. However, in an effort to facilitate evidence-based policy-making, I hope this committee will draw its own conclusions about the appropriate course of action suggested by my research and experience.

If I may, I would like to discuss two aspects of the Copyright Modernization Act that have attracted attention from various stakeholders throughout the copyright reform process. The first relates to the provisions regarding technological protection measures in the proposed sections 41 to 41.21, and the second is the addition of the words “education, parody or satire” in the proposed new section 29. I would be pleased to address other issues during the question period, if you would permit me to.

There's no doubt and little controversy about the fact that international treaties to which Canada is a signatory require reforms to provide adequate protection and effective legal remedies against the circumvention of technological protection measures. The only real question is whether Canada ought to adopt the approach taken by some countries, such as the United States, or the approach taken by other countries, such as Switzerland and New Zealand. This is a difficult policy decision.

While there are differences between the anti-circumvention provisions in Bill C-11 and the anti-circumvention provisions in the American Digital Millennium Copyright Act, these approaches are similar for failing to link liability for circumventing technological protection measures with an act of copyright infringement, so Bill C-11, as it's currently proposed, could prohibit the circumvention of technological protection measures even if those measures are applied to materials in the public domain or even if the purpose of the circumvention is a lawful purpose, including the exercise of rights that are provided elsewhere in Bill C-11.

In contrast, recent reforms in Switzerland and New Zealand link circumvention provisions with copyright protection and with copyright-protected works.

My research suggests that there are four reasons to be concerned about the approach currently proposed in Bill C-11. I have provided the committee clerk with copies of some of my relevant publications and I understand these will be translated and distributed to you. Those documents explain the conclusions that can be drawn from this body of research in more detail.

First, this model of anti-circumvention provision is conceptually and pragmatically inconsistent with other parts of Canada's existing and proposed legislation, specifically with rights to engage in private copying under part VIII of the Copyright Act as well as other provisions in the bill. My research contrasting Canadian and American law related to private copying and technological protection measures suggests that if private copying is otherwise allowed by virtue of a levy or other provisions, it ought to be lawful to exercise private copying rights irrespective of the presence of a technological protection measure.

Second, my research shows that there are serious unresolved legal questions about the constitutionality of anti-circumvention provisions if those provisions do not reflect the fundamental contours of copyright as that term is defined in the Constitution Act of 1867 in dividing jurisdiction over matters between the federal and provincial governments. Regulation that is in pith and substance about private contractual matters or technological protection measures trumping the balance of rights established by copyright law risks being invalidated as an intrusion into areas of provincial jurisdiction. The Supreme Court's recent ruling in the securities reference reinforces a risk that under the approach proposed in Bill C-11, these reforms could be ruled unconstitutional. As a worst-case scenario, the baby could be thrown out with the bathwater.

My research suggests that narrowing the provisions to permit circumvention for lawful purposes substantially reduces that risk. It virtually guarantees that the legislation will be upheld as constitutional.

Third, my research suggests that strict anti-circumvention provisions would do little to help Canadians exploit the potential of new markets based on open innovation, collaboration, and peer production, which are identified by many experts in business and management schools as the most promising avenues for economic growth, innovation, and productivity over the coming decades.

Evidence suggesting the contrary—that is, that anti-circumvention provisions are needed to enable new business models—does exist, but it's so far theoretical rather than empirical. Moreover, the research that does exist, the empirical research, suggests that strict anti-circumvention provisions risk the unintended consequence of counterproductively stifling competition by tying digital content to particular platforms, devices, and distribution models. That's a risk that, if possible, I think Canadians want to avoid.

Fourth, my most recent data shows that the majority of experts who have published research about anti-circumvention provisions are not supportive of a model that fails to link circumvention liability with copyright infringement. In a thorough, systematic, and objective overview, I and a team of researchers reviewed almost 1,500 articles published in various databases on this topic.

Our review of approximately 1,500 articles revealed that only a tiny fraction—10%—concluded that they were supportive of anti-circumvention provisions. Thirty-four per cent of authors of these studies were neutral, while 56% of authors in publications such as these were unsupportive of this particular model of anti-circumvention law.

So while this empirical data can't be interpreted to conclusively represent public opinion, or even the views of all stakeholders, it does indicate a substantial consensus among experts who have published research on this topic. The data provided to support that is in the documents that I've circulated to the clerk.

In light of this evidence, the committee may wish to consider whether the approach taken toward anti-circumvention in New Zealand or Switzerland is a more appropriate model for Canada to follow. I would be pleased to provide you with more specific details about how precisely that can be done if the committee wishes to do so.

Before that, the other topic I would like to mention very briefly concerns the implications of adding the words “education, parody or satire” to section 29 of the act, and especially the word “education”. I understand that some stakeholders have expressed worries that these words are too vague and will lead to significant litigation and reductions in revenues collected by authors and publishers of educational materials.

First, if indeed there were extensive litigation required to interpret the scope of the new provision, then it's arguably impossible to conclude yet whether there will be any effect—negative or positive—on royalty payments and revenues in Canada. I can testify as former legal counsel to the Copyright Board of Canada, which is tasked with regulating economic aspects of copyright such as this, that any royalty structures that emerge will be fair and equitable.

I can also testify that the possibility of litigation over the meaning of these new provisions is not a sound basis on which to reject their inclusion in Canadian copyright law. In fact, if there's anything we can predict with certainty, it's that many of the provisions in Bill C-11 will be tested in courts. That's to be expected.

I'm not suggesting that it would not be helpful for Parliament to provide courts with guidance: for example, on factors that it considers relevant to the fairness of any particular dealing with a copyright-protected work. But in my professional experience, I can suggest that it would be dangerous and inappropriate to entrench too much specificity into the definition of categories that must, by their nature, be flexible and fair.

Again, thank you very much for the opportunity to participate in this process. I look forward to elaborating on these issues or responding to any questions.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. de Beer. Congratulations: you are under 10 minutes.

I'll now hand it over to you, Mr. Trosow.

[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.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Trosow.

I need to congratulate you as well, since you kept it under 10 minutes.

No pressure, Mr. Gannon, and with that, I'll hand it off to you.

[James Gannon, Lawyer, McCarthy Tétrault LLP, As an Individual]

Thanks, Mr. Chair.

Good afternoon. My name is James Gannon. I'm a lawyer at the firm McCarthy Tétrault in Toronto. I'm really pleased to be here to speak to you and to answer your questions about Bill C-11.

I hope to shed some light on two specific areas of the law.

First off, I will talk about technological protection measures, TPMs or digital locks, as they are often called.

Second, I want to dispel some of the falsehoods surrounding the so-called enablement clause we have heard so much about recently.

I have just a quick introduction about myself first.

I graduated in 2008 from Osgoode Hall Law School. I've been practising at McCarthy Tétrault since then in the areas of technology law and intellectual property. I also have a degree in systems design engineering from the University of Waterloo.

[The Chair, NDP, Glenn Thibeault]

Mr. Gannon, I will just interrupt you for one second. If you could slow the pace down a little bit to help out our translators, that would be much appreciated. Thank you.

[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.

[The Chair, NDP, Glenn Thibeault]

Congratulations to you as well, because you're under the 10 minutes, as was everyone else.

Before we start the questioning, I need to mention to the members that about five minutes before the end of this meeting today we'll quickly jump in camera to discuss a few items from the previous meeting that need to be discussed. It is my decision to jump in camera at the end to discuss these matters.

With that, we'll begin the first round of five minutes. I believe Mr. Armstrong will be starting the questioning.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thank you, Mr. Chair.

I want to thank you all for being here and for making your presentations. As you know, the bill is very technical. It's long and complicated. Your presentations have been able to make things very clear and concise. I'll ask probably all three of you to clarify some information, starting with Mr. Gannon, the most recent presenter.

You talked about changing the definition away from the term “digital locks”, saying that we should change it more towards protection. You talked about the balance between the enabling part of the legislation and the safe harbour part of the legislation.

I just want you to clarify some points on the difference you elaborated on by saying that the enabling part may be too narrow and we need to expand it a little bit more to catch some of these intentional abusers of the system. On the other side is the safe harbours, where we may want to narrow it so that some of these bad actors can't try to abuse that.

Could you expand a bit on the relationship between those two clauses?

[James Gannon]

Sure. As I said, right now there are four safe harbours. There is one for network service providers, entities like ISPs. There is a caching exception for making cache copies. There is a hosting exception, if you're a hosting provider website like YouTube, and there's also a search engine exception.

Now, in two of the cases, I believe the network services exception and the search engine exception, it says that this exception does not apply if you're enabling infringement. Quite obviously, enabling infringement is what we consider to be the encouraging and inducing of a massive amount of copyright infringement. So it makes sense to say that we won't give you a safe harbour if you are inducing that amount of infringement.

The problem is that this condition, which says that you only get the safe harbour if you are not enabling infringement, only applies to two of the four safe harbours. So it's possible that you could be operating a hosting website and you might be saying, “Sure, Your Honour, I'm enabling copyright infringement, but the hosting exception in the Copyright Act now says that I'm shielded from any liability.”

That's why part of my presentation said that the enablement is not worded strongly enough and sometimes the safe harbours are too broadly worded.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Great. I appreciate that.

To Professor Trosow, in your discussion you said that the bulk of your research talks about your attempt to make Canada into sort of a haven for fair dealing. Could you just define the difference between fair dealing and what some people would term as “free dealing”?

[Prof. Samuel Trosow]

Yes. Fair dealing exists under the law in Canada and the U.S. and elsewhere. In Canada you have to first come within one of the statutory categories: research, private study, criticism, review, news reporting. But the second step you go through is this analysis that's very fact-dependent, that is based in Canada on the six criteria I've set out. You weigh all of those different factors and you make a determination as to whether the dealing is fair.

So the reason I would distinguish between fair dealing and free dealing is that it's not as if, when you meet the statutory requirement of being in one of the categories, you're done, and it's fair dealing, so copy as much as you like. You can't go to a photocopy machine and mass-produce textbooks as a substitute for purchasing them as you would if it were just a one-pronged test. By having those fairness criteria, it's clear that you still have to give a lot of thought as to whether what you're doing is fair.

I think the more we can do to make the public aware of those criteria, the better.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

You also stated that the United States has already implemented or updated their copyright legislation. Their publishing industry, particularly in the area of educational materials—I'm a former educator, so that's why I'm focusing on this—is more free-dealing, the way they have it structured, than what we have currently in Bill C-11. You say that has not negatively impacted their sales and they have done very well with the educational market, I guess one would say.

Really, then, the current legislation, as written in Bill C-11, should not pose any threat to the greater educational publishers in Canada?

[Prof. Samuel Trosow]

I don't think there's any credible evidence that it would do that. In the United States you have “such as”; it's open-ended. You don't have to fit in one of the criteria. It specifically says, “including multiple copies for classroom use”. Then you go on to the analysis of the four factors, which are substantially similar to the six factors of CCH. The case law in the United States makes it very clear that you can't do massive copying that's destructive of the market, just like our last factor here.

So I think the worry that by including education you'll somehow undermine the publishing industry just flies in the face of the reality in a much larger market.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Trosow and Mr. Armstrong.

I'll hand it over now to Mr. Angus.

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

Thank you, gentlemen. It has been a fascinating discussion.

I'm going to have to be very short and quick because I only have five minutes, and there are so many issues we can discuss.

Mr. de Beer, Mr. Gannon helped to provide us with a pretty good example of the use of technological protection measures to break business markets—to steal products—and I think it's an issue that all parties are agreed on. We don't want new and emerging business markets to be sucked up by someone saying that they're going to rent a film and then deciding that rental means an extension: ownership. That's the difference between owning a product and renting a product.

Mr. de Beer, the question is whether or not we're setting up a two-tiered set of rights. If you have certain legal rights that can exist in the analog realm, such as, for example, to extract information for parody, for satire, for research, and that is under a technological protection measure—for example, in a DVD, and you're doing a film review—you can extract information in an analog realm but not in a digital realm.

You mentioned the issue of a constitutional challenge. Do you believe this two-tiered set of rights, if it goes unamended, will be problematic?

[Prof. Jeremy de Beer]

Yes. The issue of the non-technological neutrality of provisions that provide different consumer rights in an offline environment than are provided in an online environment is one of the criticisms you see. I'll just speak about some of the scholarship that my research team and I have reviewed, some of those 1,500 articles.

In those, the vast majority of scholars and researchers point that out as one of the criticisms; it's not the only criticism, but it's definitely one of them. That in itself is one of the factors in the constitutional analysis, but it's really a question of whether the government is going to enact a law that follows the traditional contours of what has conventionally been copyright, or whether it purports to regulate, in pith and substance, property and contracts. That's where the real danger of constitutional invalidity comes into play.

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

It would seem to me that the WIPO treaty talks about exceptions that are guaranteed already in the law: that you can bring those into the digital realm as long as you're not adding new exemptions or, in the case of Spotify, that you would, under the digital realm, be okay to just download the entire content and then cancel your subscription—that would be an overreach.

But within WIPO, many of our trading partners do have the protection for exemptions that are clear and clearly defined. Is that your understanding?

[Prof. Jeremy de Beer]

Yes, I think there's an important issue that we need to separate here. That's the issue of the use of technological protection measures in the marketplace and the use of copyright law to prohibit the circumvention of technological protection measures. Those are two very different things.

Currently, Canadian law is technologically neutral about the use of technological protection measures. It provides no provisions that either support or prohibit the use of these kinds of measures in the marketplace. That's why we have technological protection measures applied to all kinds of businesses, whether it's online streaming—audio or video—or whether it's e-books or DVDs: because there is no prohibition, and that, as far as I know, is not on the table for discussion here.

What we're talking about are legal protections or legal provisions that prohibit the circumvention of technological protection measures. So it's like an additional layer, and if you just imagine concentric rings of protection, we're talking about the outermost ring of protection here. That is one of the issues, or one of the potentially problematic points to raise or that may be raised in—

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

I have a very short time left, but because of your work with the Copyright Board.... We have had a real concern about clarifying the issue of education. Our concern is that the book market is much smaller in Canada, and it's much smaller in Quebec, so if something is affected, it does have ramifications.

Mr. Trosow suggested the CCH decision. That seems to be a really clear definition. It defines what education is. In your work with the Copyright Board, because that's where it's adjudicated—these issues are fought over again and again to really clarify exactly what's fair and what's not—does it help to have a clear definition like the six steps of CCH? How would the Copyright Board look at new legislation and how would they ensure that the issue of fair dealing does not mean open season but also means that it respects the principles that have been defined?

[The Chair, NDP, Glenn Thibeault]

Within 30 seconds, please.

[Prof. Jeremy de Beer]

Very briefly, I have to emphasize that I cannot speak on behalf of the Copyright Board. I'm a former legal counsel; that was before I became a professor. But in my time as the former legal counsel to the Copyright Board, adjudicating precisely these kinds of issues was precisely what the board did. Then, oftentimes, it would go to the Federal Court of Appeal or the Supreme Court of Canada.

In fact, there is a case before the Supreme Court of Canada right now that is part of a series of cases where these types of questions are being dealt with. I have no worries at all that the board and the courts are incapable of dealing with these issues as matters of interpretation. I think that adding the factors considered for fairness' sake—

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. de Beer. Thank you, Mr. Angus.

We now go to Mr. Braid, for five minutes.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you very much, Mr. Chair. Thank you to our three witnesses for being here this afternoon. We've had three excellent presentations.

Mr. Gannon, I would like to start with some questions for you, if I could, please, sir. As you were coming to your 10 minutes, you spoke about the need for us to consider some technical amendments concerning areas dealing with security and encryption research, etc. Could you start by elaborating on that?