Procedure and House Affairs Committee on Feb. 26th, 2009

[Rob Walsh]

Nothing will change because it is question of privilege or of copyright. Do we go to court for copyright matters or do we look at the matter of privilege in the House? The same limitations apply for matters of privilege. What do we do with matters of privilege when they involve third parties? It is a difficult question and I have no real answer.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

If it was not a matter of privilege, we could decide, after debate, not to begin a lawsuit and not to spend considerable sums of taxpayers' money.

[Rob Walsh]

It would be very difficult for the House of Commons to sue someone and seek damages.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

I do not understand what you are telling me.

[Rob Walsh]

If I understood your question correctly, I think it would be difficult for the House of Commons to apply its rules on copyright and privilege by filing a suit in court against third parties.

The clerk knows better than I do the limits on matters of privilege when they involve someone outside the House.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

If I understand correctly, the notice that you are tabling today is intended to broaden access and to allow use of the proceedings on the web, with certain restrictions.

[Rob Walsh]

It would be easy to put an end to the broadcasting on YouTube and to take down the text on Wikipedia. However, it would be difficult to have the courts enforce the rules of the House. In my opinion, all those things are in the public domain. It is a controversy, a big political debate. It is difficult to say that some comments are allowed and others are not.

It is a challenge that this committee has to face.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

You say that it is a political matter, but I think it goes beyond politics. Courts, police, artists are asking the same questions about copyright. Artists' songs are copied and put on the web and so on. This is a matter that is affecting society as a whole.

Thank you, Mr. Chair.

[The Chair, Conservative, Joe Preston]

Mr. Angus, welcome. It's your turn.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Chair.

It's actually a real privilege to be here. I think this is a fascinating discussion, and it really speaks to where we need to be understanding of parliamentary interaction in the 21st century.

At the outset, I'll say that my three daughters never watch television. The only time I ever hear someone say they saw me on TV in the House, it tends to be a senior citizen or older. That's not any form of disrespect. YouTube is where almost everyone in the younger generation watches Parliament. They watch sections, because they're attracted by an issue. There is a wide network of people sending YouTube videos out. I think it's very exciting, because it is interactive and it is their television.

The question before us--and we really have to think carefully about it, because we want to encourage that parliamentary interaction--is that it is a balancing act between the obligation we have as parliamentarians within a jurisdiction, and our privilege and the honour we have of doing that, and the ability to manipulate an image very quickly.

I think the gavel-to-gavel question is important, because a ten-year-old can manipulate a YouTube video and someone ends up saying what they didn't say. Even if it's on a website, it might be damaging to some extent, but on YouTube it can be deadly to a politician's career. It's very easy to do. I don't think it would take anybody with more than a grade 4 education to know how to do it--well, someone who is in grade 4 today, not when we were in grade 4. Someone in grade 4 today can easily do it, but we would be more challenged. We'd have to hire a grade 4 to do it.

So the question, I think, in terms of limitations is on the manipulation of images that tarnishes or manipulates the work of a member, and I think the issue of parliamentary privilege has to come in.

You said you would contact YouTube in those situations. I've met with Google about issues of notice and take-down in the U.S., and notice here. What happens if a third party decides to manipulate a statement in the House of Commons and put it up? You contact them, and then what is the process?

[Rob Walsh]

I can respond only by saying that initially it has to be brought to our attention. I'm beyond grade 4 by several years, and I don't watch YouTube as regularly as those in grade 4 might, nor do my staff. But when it's brought to our attention and we've satisfied ourselves that it's a breach of copyright, which typically it would be, we contact YouTube, and YouTube removes it.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Right. We're looking at copyright, but we're looking at it in terms of the U.S., where the notice of fair use is very well defined. Here we're a little more airy-fairy on it. Some of their fair use, yes, you certainly can make a congressman look like a kangaroo if you want, and that's considered fair use. Here we might consider....

But are we looking at employing copyright against someone's misuse, manipulation of image, because it isn't within a fair use domain? They're not taking something that was accurately said, they're actually manipulating and twisting it and saying this is your member of Parliament. Is that how we engage?

[Rob Walsh]

That's the issue before the committee, obviously, and this generic notice means to put before the committee those choices. You either just say don't touch it, leave it, don't change the content—in which case, fine, you can use it and you can attach any comment to it that you want, but you don't touch it—or you go beyond that and say no, and don't use it for these various purposes that are indicated in that televised text.

That's the decision for the committee as to where you want to go with this. Do you want to accept that as long as they don't tamper with the material they can use it for whatever purpose? Or do you want to say no, you can't use it for electoral or political or so on? I can't answer that question.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I think one of the questions in terms of using it for electoral purposes, as some of our colleagues have said, is that we are elected on the fact that we represent our people and we're seen as fighters for our people, and if we're going to go back and be elected, we have to show that we actually stood up and spoke up. I think it's fair use to use what we've done in the House because we're saying to people this is what we did.

The question, though, and it's a discussion that I think is very fair, is about using other people's image to try to defeat them in an election. There is a notion of artistic right, where an artist can stop the use of a work because it denigrates their art, denigrates their image. Would we apply that notion to bring it to the procedure and House affairs committee if a member makes a challenge? He or she would make a challenge based on “they took my image, misused it, and are using it to try to have me defeated”. Would it come to you as a copyright infringement, or would it come to this committee to establish whether or not that was again going beyond the realm of fair use?

[Rob Walsh]

As a matter of privilege, if a member rose in the House and objected to what he saw on the Internet and thought his privileges were offended and the Speaker were to find it to be prima facie, it would go to this committee for consideration by this committee. Copyright would probably come to our office. If the member came to our office we would try to do something by way of copyright.

[Charlie Angus, NDP, Timmins—James Bay, ON]

YouTube is certainly very exciting, but it also makes you wonder what people do with their days. There was a video on YouTube the other night that I saw where the Minister of International Development was singing a Roy Orbison song. I don't think there was any malicious intent. It was just very odd that someone would spend many hours trying to piece that together.

So I imagine in her case she might look at it and think this is very odd. But she could come to you and say they've made her say something that is outrageous. So this is strictly complaints-driven. Is that how we would police our presence on the Internet?

[Rob Walsh]

We are not driven by any personal rights of the member. We are driven by the rights of the institution in terms of copyright or privilege. So if a person has a defamatory claim by virtue of what's done, that's for the individual member to see to advance through the courts. We only act for the institution, and indirectly, obviously, for members where the institution is made to look bad—

[Charlie Angus, NDP, Timmins—James Bay, ON]

Or ridiculous.

[Rob Walsh]

—by distortion.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Distortion, yes.

I'm satisfied. Thank you.

[The Chair, Conservative, Joe Preston]

Good questions, Mr. Angus.

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

According to the research or briefing note that our researchers have prepared for us, British Columbia and Nova Scotia forbid the use of pictures from the legislature in party advertising, during an election campaign or in any other partisan political activity. Australia does so too, except if the member whose image is portrayed gives express written permission.

Mr. Angus' comments are important. We have already heard of one clearly defamatory advertisement made by one candidate against a member who was also a candidate. It was not on a website. The advertisement come out on the weekend before the day of the election. Luckily, the member got wind of it and was able to obtain an interlocutory injunction from a court, and so on. With the new ways of communicating, if that advertisement had been posted on YouTube,

Forget about it, it's already been blasted. God knows how many places, how many people have taken it and then put it up on their website, their own Facebook, or whatever.

So I come back to your best advice as to whether there's been any challenge of British Columbia's and Nova Scotia's prohibition of the use of the material by political parties in their advertising election campaign or other political partisan activity. And if there has not, what is your best advice, Mr. Walsh, as a jurist, as to the wisdom of keeping this section in your proposed generic notion, but possibly adding “unless it's with the express advice of the member”. Because some members may wish to do their own, or they may wish to authorize their party to do something that has their image in it and they don't have a problem with it. But that would need to be expressed.

[Rob Walsh]

Mr. Chairman, the problem for the focus of the member's question with reference to members is that it begs the question with reference to persons who aren't members, like witnesses before committees.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

You'll need the person, then.

[Rob Walsh]

Would you also say you'd have to have the witness's permission to use the clip of the person testifying before the committee?