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

[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.

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

Thank you.

Mr. Boyle and Mr. Cornellier, you have stated this afternoon that Bill C-11 provides for the photographer to be the original owner of the copyright. This is a very significant development. It sounds like photographers have been waiting for it for decades in this country.

[Brian Boyle]

Yes.

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

We talked a lot today about the aspects of Bill C-11 that contribute to business models. Could you elaborate on how this would contribute to the business model for a photographer, for a small business owner?

[André Cornellier]

At this point, any person who commissions the work owns the copyright. For me to have my copyright I have to negotiate it back. Before I start a job I sometimes have to go to a big corporation and ask them to give back my copyright so I can sell it to them. You can understand that there's a little difficulty there. If we have the copyright upfront, it's easier in advertising or in the corporate world to negotiate a fair fee for our work. This is of major importance for our business.

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

Very good.

You've proposed a specific amendment, and I appreciate the very specific language you have included here.

You talked a little earlier about the importance of definitions, but the amendment doesn't seem to contain definitions. When does use become unlimited, and when do adverse effects become substantial?

[The Chair, NDP, Glenn Thibeault]

Answer in 20 seconds or less, please.

[André Cornellier]

Basically, the new amendment says that a person can use the commissioned work as he wants, and he can give permission to anybody to do the same.

That will go on and on. A person can produce 100 copies and give it to 100 people, and those 100 people can give them to another 100 people. There's an unlimited effect there. That is not what the government wanted. It wanted to give the person the possibility to email it, put it on Facebook, and use social media.

Let's say you give the permission to your grandmother. You send an email to your grandmother with a picture, and she then has permission to send it to the grandfather.

[The Chair, NDP, Glenn Thibeault]

I'm sorry, we're well over the time.

[André Cornellier]

I'm sorry.

[The Chair, NDP, Glenn Thibeault]

I have to end it there.

The last round of questioning, and the first round for five minutes goes to Mr. Regan.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you, Mr. Chair, and thank you to the witnesses for coming today.

Mr. Workman, it seems to me that the provision you talked about gives people with disabilities the right to circumvent digital locks, but they're basically saying you can remove the lock as long as you don't take it off. Is that your sense of what the government is doing here?

[Marc Workman]

I can't say for sure. We're concerned about what this means, and we want to better understand. I think there are concerns that you have to take the lock off and put it back on, or do something like that, which may be technically very difficult.

[Geoff Regan, Liberal, Halifax West, NS]

Taking it off is one step, but you've already described how difficult that is. I guess you're saying you can only imagine—perhaps you'll agree—how difficult it would then be to put it back on, if you were able to take it off to begin with.

[Marc Workman]

Yes, absolutely. Then you have to worry about not unduly impairing the TPM, assuming you can take it off in the first place. You have to take it off in the right way, basically.

[Geoff Regan, Liberal, Halifax West, NS]

What impact do you see this having on a regular person with perceptual disabilities?

[Marc Workman]

I really doubt that the tools are going to be out there for the average blind Canadian to use. I think it may be possible for a very few elite blind Canadians to do it, but it isn't even clear that these tools will be accessible for any blind Canadian. We may not be able to exercise the right at all.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you very much.

In relation to this issue of sending material that has been adapted outside of Canada, can you explain why it's necessary? Let's say you had something that was created in Mexico and you wanted to transfer it from Canada to Australia. Why is it necessary to be able to do that rather than being concerned about things that are created among citizens in Canada and so forth?

Give me an understanding of how that would practically work, and what the issue is.

[Marc Workman]

The issue I was pointing to is that a Canadian organization could create a book in an accessible format whose author or copyright holder is an American. We could not then exchange that with someone in Australia.

I think that's an issue. It's going to limit the number of books that could be sent to Australia and potentially they will match the same restrictions. Then someone from Australia couldn't create a book whose copyright holder is a citizen of the U.K. and send that Canada.

In general, I think it limits the sharing of alternative formats across borders.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you.

Mr. Boyle and Mr. Cornellier, you provided us with this very nice book. It's a softcover book with some photographs by fabulous photographers from across Canada who are clearly following in the footsteps of Alfred Stieglitz, Henri Cartier-Bresson, and many other great photographers. They are capturing the decisive moment.

In this book there are images of priceless beauty. They have a market value, as you've stated, and you pointed out that the market value was important to photographers to be able to make a living.

I'm pleased to support those provisions in this bill. I also think the amendment you suggested is one that is not only worthy of support, but I'm going to be surprised if my colleagues on the government side don't end up agreeing to it. I think it is in keeping with the general intent here, and I hope I find that to be true in due course.

Is there any comment on that?

[André Cornellier]

I could not agree more with you. Obviously that amendment is not only for us, it's for both sides. Then both sides know what they can and cannot do.

At this point in time the word “non-commercial” has no definition. If you look, there's not one definition anywhere of that term. There are many situations where the user will say it's not commercial for them, and the photographer will say it is commercial for them.

If they end up in front of a judge, the judge won't be able to say, because both can be right. The funny thing about non-commercial is that both parties can be right and have opposite thinking.

How does a judge make a decision? He doesn't have any criteria. We're trying to put the criteria there, so that people can say, “This is how far non-commercial goes.” It basically helps both parties know where, or where not, to cross the line.

[The Chair, NDP, Glenn Thibeault]

Sorry, Mr. Cornellier and Mr. Regan, we're over time. Thank you.

That ends the first round of five-minute questions. We will start the second round.

I believe starting us off for five minutes is Mr. McColeman.

[Phil McColeman, Conservative, Brant, ON]

Thank you, Chair.

Thank you, gentlemen for being here.

I'm interested in maybe allowing you some time to finish off your responses to my colleagues. You didn't get a chance to adequately or fulsomely talk about where the definitions end and where they begin. Is it 50 copies, or 50 Facebook postings? Did you have a sense of that when you were proposing this amendment?

[André Cornellier]

We have the sense that there's not just one response to that. It's not one, or 10, or 20, or 30; it's a case-by-case scenario. We cannot put in the law that you are allowed 10 copies and after that you stop. Sometimes a photograph copied one time would be a problem. Sometimes a person could make a reproduction of 50, and it wouldn't be a problem. Each case has to be defined by itself.

That's why the wording might not seem very clear, but it is for us. First of all, that wording comes from Bill C-11, from another part of Bill C-11, where they tried to define “non-commercial” for purposes other than photography. Somebody has thought about that and defined the term “non-commercial”. We found out that it applies very much to us. In the example we gave earlier, if somebody asked me to do a photograph of a landscape and he gave it to everybody in the village, it's not commercial for him—he doesn't make any money—but for me it removes all possibility of sending it out.

Napster was exactly like that. Napster was a place that was non-commercial. There was no money there. You would put your stuff on the web and somebody else would pick it up. It was an exchange, but there was no exchange of money. Nobody was making money out of it, but they were removing the possibility for any singer to make money. The same example applies to us. The bill was made for people to access their photograph, put it on the web, put it on the social network, and email it. We have no problem with that, but at some point such a practice could damage my business. Let's give an example. You ask me to do a photo for you, and I do your portrait. You give it to your mother, and she puts it in the dining room, or whatever.

[Phil McColeman, Conservative, Brant, ON]

The bathroom.