Evidence of meeting #3 for Bill C-11 (41st Parliament, 1st Session) in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was copyright.
A recording is available from Parliament.
4:10 p.m.
Lawyer, McCarthy Tétrault LLP, As an Individual
Sure. As I said, right now Bill C-11 contains four exceptions that relate to software-specific or computer-related things—such as encryption research, security, interoperability, and the fourth one....
4:10 p.m.
Lawyer, McCarthy Tétrault LLP, As an Individual
It's in the bill.
The way these are worded—I'm looking at them now. If I compare these to their international precedents in countries like Australia and Singapore, they did pass similar exceptions. They have proven to be sometimes beneficial to allow for some innovative technologies to be developed to allow some uses of computer programs and some kind of incidental copying in order to do things like encryption research and network security and those kinds of things. Their exceptions are much narrower than the way they are currently defined in Bill C-11. Currently in Bill C-11 they are defined with almost no qualification, whereas in jurisdictions like Australia and Singapore, the exceptions are limited to, as an example, making sure the person who is using this, who is cracking software and encryption for the purpose of doing this kind of research, is in fact trained and qualified and has the appropriate skill or education to make these kinds of things...that we are not just legalizing computer hacking, as it would be.
Another condition that seems quite reasonable to me is, if you are going to hack into someone's security network or you are going to hack into someone's computer program in order to do these kinds of research and for other beneficial purposes, you would at least make a good-faith attempt to notify the person and try to obtain the person's permission prior to hacking into their network. Those are internationally recognized preconditions to some of those software-specific provisions.
Again, I'm happy to provide you with a more detailed list of them. That's what I would recommend.
4:10 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Thank you.
In a nutshell, you're suggesting we look at limiting and tightening up the language in that section of this report?
4:10 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Thank you.
Concerning technological protection measures, TPNs, I have a very direct question. Do you believe they help foster and reward innovation when they are used in a business model?
4:10 p.m.
Lawyer, McCarthy Tétrault LLP, As an Individual
Yes, absolutely. We've seen a lot of these business models and we've seen evidence of that from the countries that have adopted them. With respect to the examples I gave during my presentation, I don't think it's a coincidence that none of those services was developed in Canada. We've seen rapid adoption of things like the Apple iTunes store, which does limit the way you buy videos. It does limit it to five devices. Again, I don't think it’s a digital lock to say, “I'm going to let you buy a movie and put it on five devices—but it's five, not 10,000.” People have accepted that model. It's a known restriction. The marketplace has spoken and has been happy to adopt it.
4:15 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
I want to try to bridge something here. Professor de Beer, in his presentation, spoke about examples of anti-circumvention language. The examples were from New Zealand and Switzerland.
Mr. Gannon, are you aware of those examples at all? Can you comment on that suggestion?
4:15 p.m.
Lawyer, McCarthy Tétrault LLP, As an Individual
Sure. Not to say that there’s anything wrong about Professor de Beer's research, but on the first instance, New Zealand was not a signatory to the WIPO treaties, so maybe that's not the correct model to look at.
4:15 p.m.
Lawyer, McCarthy Tétrault LLP, As an Individual
On the second instance, it's true that Switzerland does allow circumvention for those exceptions. Switzerland is also known as a country that has perhaps one of the largest private copying and tariff regimes. A lot of that unauthorized copying, circumvention, and creating new copies is actually compensated for in some fairly heavy levies they have on things like digital media and other things.
4:15 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Professor Trosow, you spoke very passionately about the importance of ensuring that the notion of fair dealing isn't applied only to Canadians studying at educational institutions. Could you elaborate on that?
4:15 p.m.
Prof. Samuel Trosow
Yes. We have general fair dealing, and then we have very, very specific exemptions for libraries, archives, museums, and educational institutions. I think it would be a huge policy mistake to mix the two and say we're going to create a definition under fair dealing, but then limit it to particular types of institutions. The educational process is much broader than what could go on within an institution. I do think the divisions between what goes on inside and outside of institutions are starting to crumble a bit.
4:15 p.m.
NDP
The Chair NDP Glenn Thibeault
Thank you, Mr. Trosow and Mr. Braid.
We'll go now to Mr. Regan, for five minutes.
4:15 p.m.
Liberal
Geoff Regan Liberal Halifax West, NS
Thank you very much, Mr. Chairman.
At the outset, it strikes me that when we talk about the WIPO treaties, one of the challenges we face is coming up with legislation that takes those into account but also respects the fact that they're 15 years old or more. The world has changed quite a bit since then.
Professor Trosow, in your view, would the kind of copying of Spotify that Mr. Gannon talked about be in fact the mass copying that's destructive of the market and be caught by that provision, that test?
4:15 p.m.
Prof. Samuel Trosow
By the fair dealing?
4:15 p.m.
Prof. Samuel Trosow
Mass copying that is not related to any of the categories in the act would not pass the fairness test the way it's been enforced by the Copyright Board and the courts. The Copyright Board has been pretty adamant that they'll only tolerate a certain level of copying before that last factor is violated.
Now, we have other factors, but it would be hard to imagine that happening. I think a court or a copyright board doing a full fair dealing analysis would take into account all of the circumstances.
4:15 p.m.
Liberal
4:15 p.m.
Prof. Samuel Trosow
Well, I think it would be very likely that the fair dealing defence would fail.
4:15 p.m.
Prof. Samuel Trosow
Yes.
4:15 p.m.
Liberal
Geoff Regan Liberal Halifax West, NS
—and therefore it would be not a lawful purpose, basically, or it wouldn't be fair dealing and therefore the person would be infringing copyright.