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

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

In the last 20 seconds, what I'll do is thank you for taking the time to come before us today.

I will ask if we could get the analysts to do some research on the taxes or levies on iPods and iPads in Switzerland. I would be interested to know what those are.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Lake. We will ensure we get that from the analysts.

I would like to thank our witnesses. On behalf of the committee, thank you for coming and presenting today. It was very informative.

With that, we will suspend for—

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Sorry, I have just a quick request, following on Mr. Lake's request. Mr. Gannon mentioned there are other countries we haven't spoken about. I think those two countries came up just because they came up, but maybe they can do a bit of research on a couple of the other countries.

Maybe you can suggest a couple countries that we could do a comparison of, in terms of alternate—

[The Chair, NDP, Glenn Thibeault]

Mr. Gannon, very briefly, could you suggest a couple other countries?

[James Gannon]

Yes. I brought my binders here today. They have the TPM laws from all across the world.

[The Chair, NDP, Glenn Thibeault]

That's brief. We'll take a look at them. Thank you.

We'll suspend for five minutes.

[The Chair, NDP, Glenn Thibeault]

We'll start our second round.

I'd like to welcome from the Alliance for Equality of Blind Canadians, Mr. Marc Workman, who is the national director. From the Canadian Association of Professional Image Creators, we have Mr. Cornellier. From the Canadian Photographers Coalition, we have Mr. Brian Boyle.

You each have 10 minutes to present, and I'd like to start with Mr. Workman.

The floor is yours.

[Marc Workman, National Director, Alliance for Equality of Blind Canadians]

Thank you, Mr. Chair.

I want to begin by thanking the committee, on behalf of the Alliance for Equality of Blind Canadians, for inviting us to appear. We very much appreciate the opportunity.

My name is Marc Workman. I am the national director with the AEBC. The Alliance for Equality of Blind Canadians is a national organization made up primarily of blind, deaf-blind, and partially-sighted individuals. We advocate on a wide variety of issues at the local, provincial, and national levels. If you want to learn more about us, you can visit our website at blindcanadians.ca.

Copyright legislation and its reform is of deep importance to blind Canadians. Access to printed material, much of which is protected by copyright, is one of the key barriers that prevents blind Canadians from fully participating in Canadian society. That said, if it were up to us, blindness would have nothing to do with this discussion. I would rather not be here today representing blind Canadians. I would rather not rely on an exemption that allows me, the people I ask, or the non-profits working for my benefit to create alternative format versions of inaccessible copyrighted works. Instead, I and other blind Canadians would prefer to borrow books from libraries, just like our sighted counterparts. We would prefer to purchase books from online and bricks-and-mortar bookstores, just like our sighted counterparts. In short, we want to be able to access copyrighted works, just like our sighted counterparts.

Unfortunately, blind Canadians cannot do this today. Less than 10%—and some would say less than 5%—of printed material is available in an accessible format. Those few accessible versions exist only because inaccessible materials are reproduced in an accessible form.

I want you to keep these points in mind as you listen to my recommendations. These recommended changes are necessary only because publishers and copyright holders are creating products that could be, but are not accessible to blind Canadians. Genuine access requires not an exemption, but a commitment on the part of copyright holders and publishers to make accessible products. To sum this up, we do not want to rely on an exemption; we have to rely on one. Because of that I urge you to make the exemption as effective as possible by adopting the recommendations I'll make during the rest of this presentation.

Recommendation one has to do with technological prevention measures, or TPMs. While we support the exemption in proposed section 41.16 of Bill C-11, which permits the circumvention of TPMs for the purpose of producing alternative format versions of copyrighted works, this right to circumvent TPMs for all practical intents and purposes will not be one that the average blind Canadian can exercise.

Breaking the digital lock on copyrighted works is almost certain to be beyond the means of the average blind Canadian. Not only is some level of technical expertise required, which many blind Canadians will not possess, but there is no guarantee that the circumvention tools themselves will be accessible, even to the most tech-savvy of blind Canadians.

Moreover, circumventing TPMs places a burden on those organizations that produce alternative formats for the benefit of blind Canadians, so these organizations will have to hire and maintain staff with the technical expertise to break the digital locks. Even though proposed subsection 41.16(2) of Bill C-11 also provides an exemption to those offering services or manufacturing products for the purpose of circumventing TPMs in order to produce alternative formats, that exemption is granted only to the extent that the services or tools do not unduly impair the technological protection measure. It's not clear exactly what it would mean to not unduly impair a TPM, and the ambiguity concerns us.

Given the general restrictions on circumventing TPMs, we believe it's unlikely that the necessary tools will be widely available and readily accessible to blind Canadians and the organizations working on their behalf. The AEBC recommends, along with many others—and we've heard discussion here today—that the restrictions on circumventing TPMs be tied to actions that would otherwise be violations of copyright. Not only is this balance better for Canadian society in general, but we believe it's the best way to ensure that blind Canadians have access to the tools necessary for them to access copyrighted works, for which they have a legal right to access.

Without this change, the right of blind Canadians to circumvent TPMs to produce alternative formats will almost certainly be a right that few of us can exercise.

Recommendation two has to do with the for-profit production of alternative format materials. Currently section 32 of the Copyright Act exempts only non-profits from having to obtain permission from the copyright holder in order to produce an accessible version of the copyrighted work. As I said, though, under this system, only a small fraction of copyrighted works are ever converted to an accessible format. There is, however, a growing industry of for-profit companies that are involved in the production of accessible formats. The AEBC recommends removing the limitation to non-profits in the exemptions in both the Copyright Act and Bill C-11. We believe this will lead to a significant increase in the availability of alternative format versions of copyrighted works.

Recommendation three has to do with sending alternative formats outside of Canada. The AEBC applauds the attempt to clarify our laws with respect to sending alternative formats outside of Canada. This brings us one step closer to realizing an international agreement that will increase the cross-border exchange of alternative formats. Importantly, this will significantly reduce the duplication of work that's taking place around the world, by which I mean different countries producing the same work in alternative formats.

However, in clause 37 of Bill C-11, proposed paragraphs 32.01(1)(a) and (b) limit the ability of organizations to send alternative formats to other countries. It's limited to those cases where the copyright holder is a Canadian citizen or is a citizen of the country to which the materials are being sent. This limitation places a burden on those organizations that would exchange alternative formats across borders. It forces them to have to establish citizenship before they can send an alternative format outside Canada, but also restricts the number of works that can possibly be exchanged.

The AEBC's recommendation is that the only restrictions be, one, whether the work was legally produced in Canada and could legally be produced in the country to which the work is being sent; and two, whether the work is already available in an accessible format in the country to which the work is being sent. We believe those two criteria should determine whether a work could be sent outside Canada. This would reduce the burden on organizations that send these works to other countries and would dramatically increase the number of works that could be sent.

Recommendation four has to do with large print. Subsection 32(2) of the Copyright Act limits the scope of the section 32 exemption by excluding the making of large-print books. This limitation harms print-disabled Canadians of all ages, but is particularly harmful to older Canadians. This will only become more of an issue as the population ages, and more and more Canadians experience sight loss and become reliant on large print. The AEBC recommends that this limitation be removed from the Copyright Act.

The fifth and final recommendation has to do with the adaptation of cinematographic works. Paragraph 32(1)(a) of the Copyright Act also limits the usefulness of the section 32 exemption by excluding the adaptation of cinematographic works to make them more accessible. We believe this limitation is partly responsible for the extremely limited availability of films that include descriptive video.

For those who don't know, descriptive video is an audio narration of the action that's taking place on screen, which enables blind people to better understand what is being communicated by the film.

The AEBC recommends that this limitation also be removed from the Copyright Act.

Lastly, similar limitations concerning large-print production and the adaptation of cinematographic works are contained in clause 37 of Bill C-11. This clause has to do with sending alternative formats outside of Canada. In proposed subsection 32.01(2), large-print materials and cinematographic works are excluded from the exemption. We believe this subsection should also be removed.

I suspect that my time has nearly run out, so I will end it there and take any questions afterwards.

Thank you.

[The Chair, NDP, Glenn Thibeault]

Great. Thank you very much, Mr. Workman.

Mr. Boyle and Mr. Cornellier, I believe you have a ten-minute presentation together. I'll leave it in your capable hands to start that presentation.

[Brian Boyle, Co-President, National, Canadian Photographers Coalition]

Thank you.

Good evening.

My name is Brian Boyle, and with me is my colleague, André Cornellier. We are both professional photographers.

The true joy of photography is that it can be enjoyed by millions of Canadians, but to do it professionally—like anything else—takes talent, years of training, experience, and financial investment.

We are here as co-chairs representing the Canadian Photographers Coalition. I would like to thank you for the opportunity to provide comment on Bill C-11, the Copyright Modernization Act. We would also like to thank the Government of Canada for introducing this bill, and to offer our support.

Our coalition represents the interests of two professional associations: the Professional Photographers of Canada, or PPOC, represented by myself; and the Canadian Association of Professional Image Creators, also know as CAPIC, represented by André Cornellier. Together, our groups represent over 15,000 professional photographers, over 95% of whom are small-business owners, operating and working in their own businesses across Canada.

These small-business men and women rely on the revenue they generate from their creations to support their families, hire people in their communities, and pay their bills. Bill C-11 corrects a longstanding inequity in Canada's copyright law. Specifically, subsections 13(2) and 10(2) of the current Copyright Act, reflect an outdated and discriminatory view of photography, and Bill C-11 rightly eliminates these from the act.

Currently, section 10(2) deems the owner of a negative to be the author of the photograph. Section 13(2) of the act deems the commissioner of a photograph, not the author, the owner of copyright for commissioned photographs. This provision contrasts sharply with all other works, including musical performances and literary pieces, of which ownership of first copyright rests with the author, even if the work is commissioned by someone else.

In virtually every other industrialized country, including the United Kingdom, France, the United States, and most recently Australia, photographers own the copyright in commissioned photographs, not the commissioner. In essence, Bill C-11 is simply updating our law to reflect international trends and economic realities.

It is worth noting that the last three previous copyright bills, specifically Bill C-32, Bill C-61, and Bill C-60, also proposed to repeal sections 13(2) and 10(2).

[André Cornellier, Chair of the Copyright Committee, Canadian Association of Professional Image Creators]

Good afternoon.

Before I begin, I would like to thank the committee for the opportunity to be here today and the government for including photographers in Bill C-11. That is a very important move, and we are grateful.

I notice that we are in an ideal room, since, right in front of me, I can see the following sentence:

“The spirit of the printed word”, and to show the spirit of the printed word there's an image. I guess an image is worth a thousand words.

In addition to awarding first ownership in copyright to the creators of photographs, Bill C-11 also proposes a new provision, section 32.2(1)(f), which provides individuals who commission photographs, for private or non-commercial uses, broad rights to reproduce these photographs.

We support allowing the commissioner and their family reasonable usage of photographs commissioned for private purposes, particularly in social media.

However, we are very concerned that Bill C-11 does not define non-commercial purposes. We believe this omission will significantly harm small business photographers' ability to earn a living and generate economic growth.

Without defining non-commercial purposes, it allows some unintended reproduction of commissioned photographs that could have financial implications for photographers. This fundamentally alters what should be a balanced approach between the rights of users and the rights of photographers to earn a living. The heart of this imbalance is that users may choose to reproduce the commissioned photographs for purposes that to the user are non-commercial but that have significant commercial implications for the photographer. In these cases, the term "non-commercial" has very different meanings to the artist and the commissioner.

Let's give you an example.

Look at the back cover of your brochure for a second. A photographer is commissioned to photograph a landscape of Port aux Basques in Newfoundland. Under the bill, the commissioner is permitted to reproduce this photograph for private and non-commercial purposes. Mailing a copy to his son, hanging a copy on his cottage wall, or giving a copy to his grandmother who grew up in Port aux Basques—these activities would not have a substantial financial impact on the photographer.

However, if that photograph were to be reproduced several hundred times, it would have serious commercial consequences for the photographer, even though it might be a non-commercial practice for the commissioner. It would affect the photographer's future earnings, because he would not be able to sell similar photographs of the same landscape. All the photographer's potential customers would already have a free copy of the photograph.

To correct this imbalance and in order to clarify what is meant by non-commercial, we have presented a small, technical amendment that reflects the spirit of Bill C-11. In fact, it is drawn from clause 29.21(1) of the bill, called “Non-commercial User-generated Content”, which Bill C-11 seeks to add to the legislation. The wording of our amendment is on page 2 of the backgrounder that you have before you.

This amendment allows for the broad use of commissioned photographs. It also limits only those uses that would have a substantial financial impact on photographers. It sets parameters to ensure non-commercial practices, as perceived by the commissioner, do not have substantial commercial implications on photographers.

However, this amendment supports the desire of the government and consumers to have fair access to their commissioned photographs. We do not believe our amendment alters the intent of the provision; it simply helps provide some clarity to non-commercial uses.

Mr. Boyle.

[Brian Boyle]

In summary, even with our amendment, Bill C-11 awards much broader usage rights for commissioned photographs than for any other copyrighted creation in Canada. Our technical amendment will protect against cases where unlimited usage rights are causing significant financial harm to men and women in small businesses. In other words, with our amendment, Bill C-11 creates a balance between a consumer's ability to use copyrighted work, and a creator's right to earn a living.

Thank you.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Boyle and Monsieur Cornellier.

Now we will start the first round. We're going to begin with Mr. Armstrong.

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

Thank you for coming and for making your presentation. It's great to have representatives of the photographic industry here to talk about this bill.

I know that some of the changes proposed in this bill are things that photographers across Canada have long been asking for, so it must be great to be here to talk about some of the positive changes.

Can you elaborate on how the previous legislation limited the ability of photographers to make a living?

[André Cornellier]

Basically the law, which said that in a commissioned work the copyright was given, by default, to the person who commissioned the work and not to the photographer, comes from 1920. That is something that we have been trying to change for many years.

In fact, nearly every other industrialized country in the world changed this in the 1950s or 1960s. Canada is the only one that has made no change so far. Australia changed it in 1999, but Canada is still standing its ground. So we appreciate that the government is doing this. For us, it's amazing. At least we're now going to be the same as the photographers in other countries. This new act will give, by default, the copyright to the photographer.

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

It not only aligns us with other countries in terms of photography, it also aligns photographers as artists with the way we treat music producers and other producers of content across the country, does it not?

[André Cornellier]

Exactly, and it does that on top of making us the same as other photographers in the world. In Canada, we were the only exception. Writers, musicians, and painters all got copyright, and the only exception was photographers.

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

Right. That was a decision made in 1920, and it's great that we're rectifying that in Canada with this legislation.

[André Cornellier]

It's great.

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

Mr. Workman, I'm going to move on to you.

I'm a former educator, and my school had a great number of visually impaired students. Descriptive video is something I'm very interested in and something I've become aware of in the last few years. How will this legislation impact the spread of descriptive video? You talked about making amendments in that area.

[Marc Workman]

I think there's an opportunity to remove the limitation that exists in the current Copyright Act. Right now, the way Bill C-11 is written, that opportunity isn't being taken advantage of. You have to obtain permission every time you want to convert an inaccessible film into an accessible one by adding descriptive video, so I think the issue here is one of lost opportunity.

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

If we were going to use descriptive video for education, do you believe the education exemption would apply to this use in schools and other educational settings?

[Marc Workman]

I'm not entirely sure. It's specifically excluded from the section 32 exemption, so that suggests they didn't want there to be an exemption for this purpose. But I couldn't say if it could be covered under education.

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

You talked about being able to transfer alternative formats over international boundaries. Are there other countries that have passed legislation, so that they're allowed to trade and move alternative formats that have been made for visually impaired people across international boundaries?

[Marc Workman]

Right now and over the last number of years, WIPO has been working on a treaty to do this very thing, to facilitate the cross-border exchange of alternative formats. It's great that we're bringing our laws into a format where we can sign on to a treaty like that. I would like to see the laws become as open as possible, so that we can exchange as much as possible and not be restricted in what we can do by our laws.

I'll leave it there.