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

[Prof. Samuel Trosow]

It would depend on so many factors.

[Geoff Regan, Liberal, Halifax West, NS]

Sure.

[Prof. Samuel Trosow]

Generally speaking, though, I think that's what could happen.

[Geoff Regan, Liberal, Halifax West, NS]

Okay.

[Prof. Samuel Trosow]

That's if I understand this Spotify example.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you.

Professor de Beer, you talked about the constitutionality of the bill, the technological protection measures provisions, in relation to the possibility of an intrusion on section 92 responsibilities or jurisdiction of the provinces.

I'm wondering what you think about the suggestion Dalhousie law professor Graham Reynolds has made, for instance, that:

If the bill is passed in its current form, users, consumers, follow-on creators, and future innovators can effectively be prevented from exercising their rights...through the application of a digital lock.... Such an amendment risks impoverishing the values underlying the constitutionally protected right to freedom of expression....

What is your view on that constitutional issue?

[Prof. Jeremy de Beer]

That's an excellent point, actually. It's a separate constitutional issue the extent to which any copyright reforms may affect the right to freedom of expression.

Numerous Canadian academics have published on this subject, and I would recommend that the committee take their advice seriously. I'm thinking particularly of the work of Professor Carys Craig at Osgoode Hall Law School, the work of Professor Reynolds at Dalhousie, and the work of Jane Bailey, my colleague at the University of Ottawa.

These are all very relevant concerns. Without more specific context, I'd be reluctant to give you a legal opinion, or even an opinion in general, about whether or not this is a worry. But I can say that in my review of the extensive literature on technological protection measures, this is one of the most frequently cited concerns with strict anti-circumvention provisions: the potential to stifle free expression.

[Geoff Regan, Liberal, Halifax West, NS]

Professor, you mentioned that you've looked at the New Zealand and Switzerland models and that you'd be pleased to provide ideas or suggestions in terms of wording of amendments.

[Prof. Jeremy de Beer]

Yes.

[Geoff Regan, Liberal, Halifax West, NS]

I'd certainly appreciate it if you could do that for the committee.

Professor Geist, for instance, talked about a couple of ways to do this. He actually proposed to the committee last year that the first would involve amending the definition of “circumvention” to allow for lawful purpose...and account for only infringing purposes, pardon me. The alternative approach would be to add an explicit exception for circumvention for lawful purpose.

Which would you prefer?

[Prof. Jeremy de Beer]

If you look at the comparative analysis, the New Zealand legislation is substantially different from what's in Bill C-11 already. It repeatedly references links to technological protection measures that protect copyright, not public domain works, and circumvention for lawful purposes being legitimate. It also mandates a consumer right of access where technological protection measures apply.

The Swiss example is much simpler. It's a shorter provision that basically says none of the prohibitions against circumvention apply where the purpose is a lawful purpose. So it's much simpler. It would be easier to put into Bill C-11.

I like the New Zealand legislation a little bit better. I think it strikes a better balance between protection and competition.

There's a third option that I think is very important should this committee wish to consider it, and that's by elaborating in proposed section 41.21 where the Governor in Council has the power to make regulations. Currently this legislation goes beyond what's in the Digital Millennium Copyright Act in the United States, which has a triennial review process for allowing exceptions to permit circumvention. This bill just basically says the Governor in Council “may” do that.

So one of the things that at minimum this committee could do would be to mandate the Governor in Council to enact regulations providing the same kinds of exceptions as currently exist in U.S. law, as at least a starting point.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. de Beer and Mr. Regan.

That ends the first round of five minutes of questioning. We'll move on to the second round and start with Mr. McColeman.

You have five minutes.

[Phil McColeman, Conservative, Brant, ON]

Thank you, Chair.

Again, thanks to the witnesses for being here.

I'm trying to get this into a language that perhaps the lay people of Canada can understand in terms of what this legislation is set out to do.

Mr. Gannon, I'll start with a question for you, because you talked about a kind of reframing of the context of this in people's minds, a reframing to more of what I would call an opportunity. The restrictions become viewed not so much as restrictions; they become what I would call reference points, which people could then use in a workable business model to move forward from that point.

I'm interested in exploring with you initially what you see coming, if you see anything at all. But what do you see coming down the road for businesses and people who would take those opportunities forward in regard to things that could be of benefit to the economy of this country? What are some of the things you're currently working with that you could see evolving down the road?

[James Gannon]

Actually, I don't think it's that much of a guessing game because, again, one of the advantages we have as a latecomer in ratifying these WIPO treaties is that we've seen the situation play out in other countries. The protection for TPMs was enacted in the United States in 1999, and the EU had their directive in 2001, so we've actually been able to see the results of this type of legislation.

What we have seen is the development of a lot of that economic activity, those sustainable business models, and people actually paying for music, which is something that we haven't had in Canada for quite a while. It's growing in all of these other countries.

We have these really quite incredible technologies that are being developed in order to have a thriving marketplace for things like digital movies and books, and digital video games and all of these platforms. They all rely on a protection, for technological protection measures, and they also rely on having a world standard for those, because if there's ever a weak link in there—and currently that weak link is Canada—that's going to be exploited everywhere in the world.

As we know, the world is flat right now, and because we don't ban right now—especially that ban on devices—Canada is known as a country where you can get chips to hack your video games from. You can develop the software comfortably in Canada, you won't be hassled, and then you can just disperse it over the Internet to all these other countries. A lot of these companies making these chips that allow you to hack video games and hack your programs offer free shipping to North America—and we know why that is.

[Phil McColeman, Conservative, Brant, ON]

So you're saying, with those comments, the sooner the better in terms of setting those new reference points through this legislation...? Is that correct?

[James Gannon]

Absolutely, yes.

[Phil McColeman, Conservative, Brant, ON]

To explore that a bit further in terms of striking the right balance, there has to be what I would consider, from my business reference points, a real core platform of flexibility in terms of being able to react down the road; in other words, that is, to say that this legislation has enough flexibility built into it to react as we go forward. Do you agree with that in terms of one of the platforms that we need to be considering?

[James Gannon]

Absolutely, and Professor de Beer touched on this as well. One of the really great things that I love about Bill C-11 and the TPM protections contained therein is the regulation-making power.

This is something that we haven't seen anywhere else in the world. It's probably one of the most flexible models we see, in that if there's a particular TPM that's really constraining economic activity, the bill lets the government officials and the Governor in Council enact a regulation that says, “All right, that particular TPM will not be protected, and we're allowed to circumvent that”. Or even if there is a particular rights holder who is using TPMs in an anti-competitive way, or in a way that is restricting fair dealing, the regulations allow the government to compel that rights holder to remove that digital restriction or to allow people to make the circumvention of that technology.

It's very flexible, in that if the marketplace adapts in a certain way, the government can react as well and can pass regulations that will allow businesses to flourish instead.

[Phil McColeman, Conservative, Brant, ON]

Thank you for that.

[The Chair, NDP, Glenn Thibeault]

Mr. McColeman, you have about 30 seconds.

[Phil McColeman, Conservative, Brant, ON]

Perhaps I'll just finish off, then, with Professor Trosow.

You've mentioned detractors who say there will be abuse of the fair dealing provisions. Again, I've heard your reaction to that at the table here. Maybe underscoring what you said earlier, do you think there's any validity to that?

[Prof. Samuel Trosow]

I think you're always going to have situations where some people try to abuse the system, and some actors engage in industrial-strength infringement. But I think, for the most part, especially with what's going on in institutions like schools and libraries, people are going out of their way to be respectful of copyright practices. Perhaps they're being too cautious, and that's why they need a little bit of assurance. I don't think it's—

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Trosow and Mr. McColeman. Sorry to interrupt.

Now we're going to Mr. Benskin, for five minutes.

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

Thank you.

My question is for Mr. De Beer, just following up on what Mr. Gannon was saying.

In terms of being latecomers in bringing Canada into WIPO, we have had the opportunity to see examples from other countries. You brought up New Zealand, and Switzerland in particular, which uses the private copy process.

Can you expand on that and maybe talk about whether or not you've seen any hindrance of economic activity due to the private copy regime?

[Prof. Jeremy de Beer]

There are two aspects that are important for divisions on technological protection measures. The first is to facilitate new business models and innovation, and the second is to, wherever possible, avoid any unintended consequences. Whichever solution Canada adopts, those should be the two overriding goals—to facilitate new business models and to avoid unintended consequences.

If you look at the empirical evidence from the United States, there has been a large variety of unintended consequences. There's no empirical evidence—although there is anecdotal evidence—to suggest that technological protection measures have facilitated business models. Notice that I say technological protection measures facilitate some business models, not anti-circumvention provisions. Those are two different issues.

So even though there is anecdotal evidence that technological protection measures have facilitated business models, there's no empirical evidence linking that to anti-circumvention provisions, nor DMCA-style anti-circumvention provisions.

If you look at what the Swiss have done, for example, they are a country renowned for being among the global leaders in science and technology innovation. The Swiss model facilitates new business and it facilitates innovation, while mitigating or limiting any unintended consequences that can arise. That's especially important for Canada, given that these treaties date back to 1996. If we're going to have a flexible approach, as Mr. McColeman said, then we're going to need to have that sort of space. I think the Swiss model does a really nice job at that.

The danger in relying on the Governor in Council's regulatory-making power is that it's inevitably reactionary and it's always in hindsight. There are a number of aspects of the current Copyright Act that say the Governor in Council has the permission to make regulations exempting technologies from the private copying levy, for example. But what we've seen is that there's a significant reluctance to engage that regulatory decision-making power. Even if it's possible, it's reactionary, and we won't realize that there's a problem until it's too late.