Evidence of meeting #9 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.

On the agenda

MPs speaking

Also speaking

  • Ferne Downey  National President, Alliance of Canadian Cinema, Television and Radio Artists, Recording Artists' Collecting Society
  • Warren Sheffer  Lawyer, Hebb & Sheffer, Recording Artists' Collecting Society
  • Martha Rans  Legal Director, Artists' Legal Outreach
  • Michael Eisen  Chief Legal Officer, Microsoft Canada Co.
  • Jesse Feder  Director, International Trade and Intellectual Property, Business Software Alliance

March 7th, 2012 / 5:25 p.m.

Jesse Feder Director, International Trade and Intellectual Property, Business Software Alliance

Thank you.

Mr. Chairman and members of the committee, my name is Jesse Feder. Thank you for inviting the Business Software Alliance to appear today.

BSA is a non-profit trade association created to advance the goals of the software and information technology industries. BSA is active in more than 80 countries, including, of course, Canada. Our global mission is to provide a legal environment in which the industry can prosper.

As technology companies, BSA members are strong proponents of the freedom to innovate. They are also strong proponents of a vibrant Internet. Not only do our companies provide much of the technology that makes the Internet work, but our industry has staked a great deal on the future of cloud computing, which requires a functioning Internet.

The software industry also happens to be the world's largest copyright industry. We are critically dependent on copyright protection and enforcement to safeguard huge investments in new creative products. Combatting software piracy is a big part of what BSA does. With more than $58 billion a year in software theft around the globe, there is plenty for us to do.

Because of our dual interests in promoting innovation and fighting piracy, we know how important it is to strike the right balance between technology and copyright interests. We do not view these interests as irreconcilable.

As we see it, Bill C-11, broadly speaking, has three principal objectives: modernizing Canada's copyright law by implementing the WIPO treaties; addressing online infringement; and revisiting the balance of rights and exceptions in existing law. BSA strongly supports these goals.

When we examine the bill in light of these objectives, we find it to be a good starting place. Nevertheless, there are elements that we believe could be clarified or improved upon, which I will describe further in my testimony.

BSA commends the drafters of Bill C-11 for doing a thorough job of implementing the WIPO treaties. Two elements of WIPO implementation of particular importance for our industry are the right of “making available” that covers the posting of works on the Internet, and the protection of access and copy-control measures from acts of circumvention and trafficking in circumvention tools, which Mr. Eisen already spoke to. These are critical legal tools in the Internet age, and we look forward eagerly to their enactment.

Going beyond WIPO treaty implementation, Bill C-11 includes additional provisions to address online piracy. Although unlicensed software used by businesses is by far our industry's biggest piracy problem, online piracy is a serious and growing problem as well.

At the same time, we recognize that the Internet is used overwhelmingly for legitimate purposes. Enforcement tools need to be crafted in a way that does not harm the Internet or infringe on legitimate conduct.

BSA believes that fighting online infringement works most effectively when it is a cooperative effort by right holders, intermediaries, and end users. Unfortunately, we don't believe that the bill will quite get there.

The bill creates a new cause of action against those who provide services on the Internet that are designed to enable acts of infringement. At the same time, it creates blanket immunities for ISPs, requires ISPs to forward notices of claimed infringement to subscribers, and limits remedies against direct infringers if the infringements are for non-commercial purposes. In effect, the weight of enforcement falls largely on a narrow category of technology providers whose offerings enable infringement; enforcement against direct infringers is made more difficult and uncertain; and ISPs are largely relegated to the role of bystanders.

BSA agrees that those who, by their conduct, induce, encourage, and assist others to infringe, or who build their businesses on others' infringement, should be liable as infringers. We believe that is the kind of conduct the bill has in its sights. Unfortunately, the new cause of action is undercut by the unavailability of statutory damages.

Our biggest concern with the bill is the role it envisions for ISPs. We readily agree that ISPs should not bear the burden of policing the Internet, nor should they face liability for damages for simply operating a network. They should, however, cooperate with right holders by taking action to curtail infringing conduct when it is brought to their attention, or is so blatant and obvious that it cannot escape their notice.

In this context, it's important to draw a distinction between hosted infringement and peer-to-peer infringement.

For hosted content, ISPs should be required to remove files expeditiously, when they receive a notice of claimed infringement, or become aware of facts or circumstances from which infringing activity is apparent. Subscribers should have the right to dispute such a notice, and have the content restored unless the right holder commences a lawsuit. This is the approach taken in many jurisdictions around the world. Experience has shown it to be effective and minimally intrusive.

Content on peer-to-peer networks presents a bigger challenge, since the remedies in that space are far more intrusive. For content that is not hosted on an ISP system or network, notice-forwarding, as proposed in the bill, is a good first step. Beyond that, BSA supports voluntary arrangements between ISPs and content owners to use ISPs' terms of service agreements to sanction repeat infringers. If sanctions are to be imposed on subscribers under colour of law, subscribers must be given a fair hearing before an impartial third party prior to imposing any sanctions.

To create an incentive for cooperation by ISPs, the liability limitations ought to be conditioned on ISPs taking the steps I just described. In addition, right holders should be permitted to obtain an injunction against an ISP to halt infringing activity.

Finally, the provision on immunity for hosting should not apply to liability under the proposed enablement provision. It would not make sense to grant immunity to an entity that, by definition, is a bad actor.

With regard to statutory damages, we are concerned that Bill C-11 would limit their availability against non-commercial infringers. This would have a detrimental effect on the deterrent value of copyright protection. It also would put an unfair burden on right holders in the context of online infringement, where it's often difficult or impossible to quantify damages. Whether or not an infringement is carried out for commercial purposes, it can have a significant commercial impact. We see no justification for holding non-commercial infringers any less accountable for their behaviour.

Time does not permit detailed discussion of the many new limitations and exceptions proposed in the bill, but I would like to make three brief points.

First, computer programs are already subject to exceptions under section 30.6. A number of the proposed exceptions would overlap these existing exceptions. We believe the more specific exceptions of section 30.6, rather than the new general exceptions, are what should apply to computer programs.

Second, the proposed amendment of section 30.6 to override contracts should be stricken. Nearly all software is licensed to users. The licence model has been employed by the software industry since its inception, and has been critical to the industry's success. Licences allow software creators to grant a clear bundle of rights to their customers, including rights more extensive than those in section 30.6. We are not aware of any real-world problems under the existing provision, and urge that it be left alone.

Third, the bill proposes a new interoperability exception inspired by article 6 of the EU's 1991 computer programs directive. The directive contained a number of safeguards to ensure that the exception would not be used inappropriately. Those safeguards ought to be included in proposed section 30.61.

Thank you again for the opportunity to testify today. I'd be happy to answer any questions if the opportunity presents itself.

5:35 p.m.

NDP

The Chair Glenn Thibeault

Thank you very much, Mr. Feder.

I'll now go back to RACS, if you have anything else you would like to add, for about four minutes. That would give you the full ten minutes.

5:35 p.m.

National President, Alliance of Canadian Cinema, Television and Radio Artists, Recording Artists' Collecting Society

Ferne Downey

I'll even take slightly less.

5:35 p.m.

NDP

The Chair Glenn Thibeault

Okay. No problem.

5:35 p.m.

National President, Alliance of Canadian Cinema, Television and Radio Artists, Recording Artists' Collecting Society

Ferne Downey

Thank you so much, Mr. Chair.

If I might, I would love to have our lawyer, please, give you an illustrative example.

5:35 p.m.

NDP

The Chair Glenn Thibeault

Great.

5:35 p.m.

National President, Alliance of Canadian Cinema, Television and Radio Artists, Recording Artists' Collecting Society

Ferne Downey

Thank you.

5:35 p.m.

Lawyer, Hebb & Sheffer, Recording Artists' Collecting Society

Warren Sheffer

When Ferne was addressing the committee before we broke, she indicated in her presentation the concerns that RACS has with the UGC provision and the proposed distinction in the statutory damage provision between non-commercial and commercial infringement. I'd like to lay out an illustrative example that will help demonstrate some of the concerns we have with those two provisions.

If you will bear with me, I'll run down some facts for you. Here is our facts scenario.

Imagine on the one hand that you have a thrash metal indie band of young performers. They are just beginning to get a significant following of fans on the local scene, and have a website where they make half a dozen of their recordings available to the public for free digital download. They want to get their sound out there, and they would never think to attach a digital lock to their recordings.

On the other hand, you have an anti-Semitic, neo-Nazi organization that's headed up by one individual. This individual loves thrash metal and thinks it would be clever to mash up the band's six songs and mix in some of his own lyrics. The lyrics don't qualify as hate speech, per se, but they are objectionable to the band. He uses the mash-up as the soundtrack of the organization's own website, and it's heard all around the world online. His purpose is solely non-commercial.

Let's go through some analysis, first with the UGC. If the UGC provision becomes law, he'll be able to assert the UGC provision as a defence to the band's claim of infringement because, one, his purpose is non-commercial; two, he credited the band as author and performer of the songs in the mash-up; three, he had reasonable grounds to believe the songs he downloaded with the consent of the band didn't, and don't, infringe copyright; and four, he similarly didn't think the mash-up had any adverse effect on the band's songs.

It would be up to the band to demonstrate that the mash-up does have an adverse effect on the band's songs, and if they wish to challenge the organization's mashed up use of their songs, they would need to go to court. The band's case would be put at a disadvantage because the UGC provision does not make express reference to the band's moral rights in their songs and the performance of those songs, particularly their right to prevent prejudicial associations with objectionable causes like this one.

Now on the statutory damages provision, if the revised statutory damage provisions become law, the band would be confronted with the fact that they can only seek a maximum of $5,000 against the individual for all violations of all six songs. When you consider that it would cost the band thousands of dollars to pursue the claim in small claims court with a lawyer, query whether they'll be able to afford to do that under the law proposed by the bill.

At RACS, we think the government doesn't intend the foregoing consequences, of either the proposed introduction of the UGC provision or the proposed reduction of the statutory damages provision.

As we mentioned before, RACS supports the book of amendments that the Canadian Conference of the Arts has submitted to this committee. There are two amendments that address squarely the statutory damage provision and the UGC provision.

Those are our comments. Thank you.

5:40 p.m.

NDP

The Chair Glenn Thibeault

Great. Thank you very much.

We're now going to Ms. Rans, for five minutes and 30 seconds.

5:40 p.m.

Legal Director, Artists' Legal Outreach

Martha Rans

Having had the opportunity to hear Warren's fact situation, I would absolutely say that I deal with those situations all the time. They happen every day. There are a lot of situations in which artists find themselves, where they are not in a position to litigate. They can barely access legal advice.

There are now six clinics across the country. All of us are struggling. We are all operated by volunteers.

I would encourage you all to think carefully about what will happen after this piece of legislation is passed, in whatever form it is, and to fully fund in whatever ways are possible those of us who are actively engaged in making sure that everybody understands the implications of this bill, not just the creators and not just users, but all of us, all the public, everyone—creators or users.

Every single one of us in this room has a stake in what comes out of this room. This week is Open Education Week, a celebration of our access and willingness to share our collective knowledge—knowledge that has been nurtured and sustained by creators. Artists are creators, all of us.

This growing sector has adopted innovative licensing models for the development of educational resources. Licences allow creators to decide how their work can be used. It is a system that creates alternative distribution models, and at the same time recognizes the need to remunerate creators. The widespread adoption of creative commons licences in this area, though limited in others, suggests that people are looking for different ways to interact with copyright.

There are new communities of folks seeking to make it possible for widespread sharing of resources across many platforms and legislative environments. My concern is that our emphasis on enforcement, on behalf of certain industrial models and practices, distracts us from what we should actually be doing, which is ensuring that each of the new models provides direct remuneration to the very creators who are so often left out of the equation, as they are in this bill.

Those in the open education sector, including technologists, librarians, archivists, and educators, have said to me time and again that they want to do this, but the existing models are preventing them from doing so. I can't ignore what they tell me, particularly since so many young and emerging artists and designers tell me the same thing.

Enforcement is not the answer to the challenges that digital technology brings. I am not exactly sure what is. Based on what I've heard and read, it appears to me that many creators and creators' groups, like the CCA's submission before this committee, are indicating that the level and support for TPM and anti-circumvention provisions may be limited. At a minimum, it appears we agree they need to take into account the existing exceptions in the act before you pass this bill.

Creators, as users, should not have to litigate to have access to what they need to create new work. Whether you're a documentary filmmaker, musician, painter, photographer, or anything else, you shouldn't have to litigate to enable access.

5:45 p.m.

NDP

The Chair Glenn Thibeault

Ms. Rans, I have to interrupt you for one second.

Ms. Rans still has about three minutes. I'm going to ask for unanimous consent of the committee to let Ms. Rans complete her statement, and we'll go from there.

Do I have unanimous consent?

5:45 p.m.

Some hon. members

Yes.

5:45 p.m.

NDP

The Chair Glenn Thibeault

Please continue.

5:45 p.m.

Legal Director, Artists' Legal Outreach

Martha Rans

Thank you.

What artists want is to communicate with those who want to enjoy and use their work.

As proposed, Bill C-11 invites litigation in many areas. The burdens of litigation bring fear, confusion, and unintended costs—costs this government and the people of this country will bear. They could create problems where none need to exist and could delay the progress that has been made in best practices.

Will Bill C-11 enable transformative works and alternative distribution networks, as well as provide streams of remuneration through digital reproduction in collective societies? You need to answer that question.

The norms that underlie copyright should be the ones that enable Canadian culture to flourish, help artists make a reasonable living and reach an audience at the same time—not as an either/or proposition—allow for less restrictive personal and educational reuses, and maybe, take a step away from intellectual property solely as commodity exchange and towards meaningful cultural conversations.

Thank you.

5:45 p.m.

NDP

The Chair Glenn Thibeault

Thank you, Ms. Rans.

Thank you to all of the guests and witnesses for being here today. I do apologize for not having time for questions, but we at least got to hear your presentations and testimony, which will be considered by the committee.

Again, thank you.

The least we can do is to offer for you, and everyone here, to have some food on us. Please, eat the meals that are at the back.

To the committee members very quickly, at Monday's meeting we're starting clause by clause, from 3:30 to 6:30. The notice will go out as to where the meeting is.

Also, the amendments to Bill C-11 should be submitted to the clerk 24 hours prior to clause-by-clause consideration and distributed to members in both official languages, so that's Friday by 5 p.m., to the clerk.