Bill C-60 (Historical)

An Act to amend the Copyright Act

This enactment amends the Copyright Act to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, to clarify the liability of network service providers, to facilitate technology-enhanced learning and interlibrary loans, and to update certain other provisions of the Act.

Copyright Modernization Act

[José Nunez-Melo, NDP, Laval, QC]

Mr. Speaker, this is the second opportunity I have had to rise in this House and speak about Bill C-11. The Minister of Industry has reintroduced former Bill C-32 on copyright modernization, the purpose of which is to make long overdue changes. These changes will adapt the Canadian rules to technological advances, and harmonize them with the current standards.

I have noticed since the start of the session that it is often the ministers and parliamentary secretaries who answer questions. We will not stop reiterating the need to amend this legislation before seeing it pass.

This bill creates new and very powerful anti-circumvention rights for owners of content. These new provisions are backed by fines of over $1 million and sentences of up to 5 years behind bars. They would also create a situation where digital locks would practically trump all other rights. The exceptions do not adequately recognize the rights of creators.

The political issue is actually more of a trend towards meeting the demands of the big owners of foreign content, particularly American content. When will Canadians finally have legislation that meets their needs?

Our party believes that Canadian copyright laws can strike a balance between the right of creators to receive fair compensation for their work and the right of consumers to have reasonable access to content. We are going to review all potential amendments to the bill in order to create a fair royalty system for artists.

This bill grants several new privileges regarding access to content but provides no alternative method of compensation for artists. This will greatly affect artists' ability to make ends meet.

The copyright modernization act contains a number of concessions for consumers. These are undermined by the government's refusal to adopt a position of compromise regarding the most controversial issue at stake in the area of copyright in Canada.

We propose that the clauses that criminalize the removal of digital locks for personal non-commercial reasons be removed from the copyright modernization bill. We support reducing penalties for those found guilty of having breached the Copyright Act.

Our party, the NDP, believes it is high time that the Copyright Act is modernized; however, this bill contains too many blatant problems.

Over 80 organizations from the artistic and cultural sectors in Quebec and the rest of the country maintain that the bill will be toxic to Canada's digital economy.

These organizations caution that, if the government does not amend the copyright modernization act to provide for adequate compensation for the owners of Canadian content, it will lead to a decline in the production of Canadian content and the distribution of that content in Canada and abroad.

The Society of Composers, Authors and Music Publishers of Canada, SOCAN, thinks that the bill should be amended to facilitate access to creative content using new media, and that a fair balance should be struck. Without that balance, creation of creative content will eventually decline because Canadian creators will no longer be able to make a living from their creations.

A law professor at the University of Ottawa said that the provisions relating to digital locks in Bill C-11 and in its predecessors, Bills C-32 and C-60, might be unconstitutional. He believes there are doubts as to whether Parliament has the necessary authority to legislate in relation to digital locks. That is an issue.

Similarly, even if there is an economic issue, it does not seem to fall under federal jurisdiction on trade and commerce, and consequently it falls under provincial jurisdiction. It is also by no means clear whether the federal government has the power to implement international treaties that would justify enacting the bill as it is proposed.

In general, the broader the proposed provisions, the more remote they are from federal jurisdiction and the more they encroach on provincial powers. At minimum, certain aspects of this issue affect the sphere of provincial powers. All of this suggests that the attorneys general and other provincial decision-makers should be actively involved in the discussion.

As for consumers, the "no compromise" provisions grant unprecedented powers to rights owners, which supersede all other rights. If Bill C-11 is enacted, it could mean that we will no longer have access to content for which we have already paid, and we will have no right or recourse. It is draconian and unacceptable to ask students to destroy course notes within 30 days of when the courses end, as this bill proposes.

[Paul Jones]

Yes, I can quickly speak to that.

The TPM or digital lock provisions in Bill C-32 stand out strangely as really containing no balance whatsoever. What it will mean is essentially the end of fair dealing, the end of a fundamental right enshrined in the Copyright Act, in any kind of digital environment.

What's unfortunate about the overbroad application of the TPM rule is that there's a really elegant solution available, and we saw it in Bill C-60, which says if you're going to break a lock in order to pirate a material, in order to steal from an artist, you can't do that. That's something we're four-square behind.

What we are saying, though, is that there are reasons you might want to break a lock for lawful purposes. It could be fair dealing. It could be archival reproduction of material. It could be to help visually impaired people access a work. You can make a simple amendment to the act that says, look, you can't break locks for infringement purposes, but if it's non-infringing, then it's permissible.

[Dr. Michael Geist]

Thank you for the question.

Let me deal with each of those, because you have in a sense highlighted two of the most important ones in terms of statutory damages and digital locks.

On statutory damages, I think there's increasing concern among many individual Canadians that cases of non-commercial infringement.... And I want to make clear: when you have someone who is infringing and seeking to profit from that infringement—the person who burns a copy of a DVD a thousand times and tries to sell it on a street corner. Everyone is in agreement that we need tough penalties to deal with cases in which people are profiting from that, and Canadian law already provides them.

What Bill C-32, the current Canadian copyright bill, seeks to do is say that we're going to have tough penalties, but we want to ensure at the same time that individuals, when there is non-commercial infringement—the proverbial teenager who is engaged in something they aren't profiting from and who is dealing with a 99¢ song—shouldn't face the prospect of $20,000 in liability just for that one song.

What Bill C-32 does, what the government has proposed, is to say that we're going to put a cap on non-commercial infringement. I think that's a good idea. I think it follows the approach in a lot of other countries that don't even have statutory damages. But what the Europeans are looking for is to increase the kinds of damages we have.

Canada has put on the table the notion that we should be able to continue having differences in the approaches we take for damages. I think that's the right approach. I think, actually, that the counter-proposal Canada has put on the table is the right one. I flag it because I think it's important to maintain the ability for Canada to make the choices it wants to make.

One area, though, in which the proposal from the Europeans would go beyond what the international treaties require, which has real implications for Bill C-32, is the area of digital locks. These locks are used to lock down such things as DVDs, electronic books, potentially CDs, and others. The concern many people have expressed is that there are legitimate consumer reasons why one might want to take a DVD and play it on one's iPad or iPod or video player, or take an electronic book and be able to exercise one's fair dealing rights; in a sense, that the same rights people have in the offline, non-digital world ought to be replicated in the digital world.

What the Europeans are proposing is rules that extend well beyond what is required at international law to provide legal protection for digital locks.

So my view about where Canada ought to go with respect to CETA is to say that we're going to provide protection for digital locks. We see it in Bill C-32; we saw it in Bill C-61; we saw it in Bill C-60. It's clear that Canada is moving forward to provide some legal protection for digital locks. But we're going to do it in a way that conforms with international law, and we're not necessarily going to go beyond those norms in a way that frustrates consumer expectations and that can have some real, harmful commercial effects as well for those who are purchasing things and ultimately find that their basic consumer rights are lost.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you very much for being here this morning and for giving your testimony.

I'd like to start off by focusing on TPMs or digital locks and the issue of the bill as it currently exists, which of course says very clearly that if you circumvent an existing digital lock you are breaking the law. The Liberal Party is very clear on its position that it agrees that if you are circumventing a product with a digital lock for commercial purposes—pirating or what have you—that is breaking the law, and we are against breaking the law. However, we do have a different position with respect to people buying a product and format shifting, copying, transferring it to another personal device for their personal purposes. We've been clear on this since Bill C-60, one of the predecessors of Bill C-32.

I'd like to start with Mr. Kerr-Wilson on this issue because he referred to it briefly in his opening comments. Would you please—and then, Mr. Beatty—explain your position with respect to the use of a product with a digital lock but in the case where it is strictly for personal purposes?

[John Manley, President and Chief Executive Officer, Canadian Council of Chief Executives]

Thank you very much, Mr. Chairman. It's nice to be back.

I will read a brief statement and then I will go into the questions.

The Canadian Council of Chief Executives, which I lead, has a long history of support for measures to strengthen Canada's economy and to promote innovation. A strong regime of intellectual property protection and copyright is fundamental to that overall mission. Laws that protect and reward the fruits of intellectual capital and artistic creativity are critical to maintaining a dynamic, innovative, and open economy.

By the same token, the society has an interest in ensuring that consumers and other users enjoy fair and reasonable access to copyrighted material. This can only be achieved through a balanced approach to copyright protection. For that reason, we are supportive of Bill C-32.

This legislation is, as you know, the product of extensive national consultations, round tables, town halls and submissions from thousands of individuals and organizations across Canada.

Throughout this process, care has been taken to respect the concerns, needs and legitimate rights of everyone who creates, markets, distributes or in any way makes use of copyrighted material.

I'm aware that some Canadians are of the view that this bill goes too far in protecting the rights of creators and copyright holders.

Similarly, there are people who feel this bill gives too much freedom to consumers and other users.

This divergence of views is inevitable. The challenge in copyright law has always been to strike a balance between the interests of creators and those of the general public.

To my mind, there are four key elements of Bill C-32. First, it brings Canada's copyright rules into the 21st century by legitimizing some activities that consumers in fact do every day. This includes recording television programs for later viewing, transferring digital content from one format to another, and making backup copies, provided the original material was acquired legally and the copying is for consumers' personal use.

Second, the bill gives creators and copyright owners stronger legal tools to control how their works are made available and to guard against copyright violation. As other witnesses have pointed out, these provisions are needed to ensure that Canada does not become a haven for international music, movie, and software piracy.

Third, the bill will improve the learning experience for Canadian students by providing educational institutions, as well as libraries and museums, with enhanced access to copyrighted material. It does this in part by expanding the concept of “fair dealing” in a way that recognizes the significant societal benefits of education.

This is consistent with the recommendations of the Competition Policy Review Panel, which in its 2008 report identified the use of the Internet for research and education as a cornerstone of Canada's ability to innovate and compete in a knowledge economy.

Fourth, Bill C-32 encourages the growth of Internet services in Canada by providing legal clarity for network service providers, web-hosting services and search engines.

Under the new rules, ISPs will be exempt from liability when they act strictly as intermediaries in the communication of copyrighted material.

At the same time, the bill includes new provisions targeting those who knowingly enable copyright violations.

On behalf of the Canadian Council of Chief Executives, I strongly endorse the overall thrust of this legislation.

Having said that, I think the committee may wish to consider certain technical changes to the bill so as to avoid unintended consequences. For example, important concerns have been raised with respect to the impact on Canada's software industry of the provisions dealing with encryption research, network security, reverse engineering, and copying for interoperability purposes.

In addition, some of the language dealing with user-generated content and copying for private purposes may be too broad, but I'll leave it to others to propose amendments that would address specific concerns while staying true to the spirit of the legislation.

Those issues aside, the bill generally strikes an appropriate balance among various stakeholder interests.

I note that Bill C-32 includes a mandated review of the Copyright Act by Parliament every five years. While it may not be possible to satisfy every demand of every group, this provision ensures that parliamentarians will have the tools to address unforeseen problems on the basis of experience. In that light, I urge you to move this bill forward as expeditiously as possible.

As others have noted, the Copyright Act was last revised when the Internet was in its infancy, and it badly needs updating to reflect the impact of new technologies on business practices and daily life.

Bill C-60, tabled in June 2005, and Bill C-61, tabled in June 2008, both died on the order paper after the dissolution of Parliament. If these hearings continue at the current pace, there just might be a danger that this bill, too, will die. That would not be in the interests of Canadian creators and it would not be in the interests of consumers.

Nor I suspect, would parliamentarians welcome the prospect of going back to the drawing board, with yet another round of consultations and hearings. Finally, I want to commend the committee for the work you are doing. I bear the scars of the last time Canada's copyright law was amended, and I am the first to admit that mediating among so many competing interests requires a great deal of care and effort.

I still bear some of the scars from that process.

Thank you very much, Mr. Chairman.

I'd be pleased to respond to questions.

[Prof. Michael Geist, Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual]

Thank you, Mr. Chair.

Good afternoon, everyone.

My name is Michael Geist. I am a law professor at the University of Ottawa. As I'm sure many of you know, I have been very active on copyright policy issues for many years. In 2007 I launched the Fair Copyright for Canada Facebook group, which grew to over 92,000 members and has local chapters across the country. Earlier this year I edited From “Radical Extremism” to “Balanced Copyright:” Canadian Copyright and the Digital Agenda. This book is the largest academic study on Bill C-32 to date, with peer-reviewed contributions from 20 leading Canadian experts.

That said, I appear before this committee today in a personal capacity and I represent only my own views.

While I am sometimes characterized as a copyright critic, the reality is that I am supportive of much of Bill C-32. When the bill was first tabled, I described it as flawed but fixable, and I had strong support for many of the compromises that are found within it. That's still my position.

l'm happy to talk about any elements of the bill, but I want to focus my opening remarks on two issues: fair dealing and digital locks. As you know, I believe the fair-dealing reforms represent an attempt to strike a balance between those seeking a flexible fair-dealing provision and those who are largely opposed to new exceptions altogether. I think the Bill C-32 compromise is largely a good one.

As a result of full-page advertisements and regular op-eds, we are all aware that some groups claim these changes will harm Canadian culture. l'd like to point to two reasons for thinking that the reality is far less worrisome and offer a potential amendment to alleviate some of those ongoing concerns.

First, fair dealing in education is not new. It already encompasses research, private study, news reporting, criticism, and review. As you can well imagine, these categories cover a considerable amount of the copying on Canadian campuses. These changes are not revolutionary but evolutionary. They are reforms that will enable the use of new technologies in the classroom and support student creativity, innovation, and curiosity.

Second, and most importantly, Canadian fair-dealing analysis involves a two-stage, two-part test. Part one is whether the use or the dealing qualifies for one of the fair-dealing exceptions. If it does qualify, part two is an analysis of whether or not the use itself is fair. The extension of fair dealing to education only affects the first part of the test. While Bill C-32 will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.

The Supreme Court of Canada has identified six non-exhaustive factors to assist a court that is part of a fairness inquiry, and this past summer the Federal Court of Appeal, in a case involving educational copying, confirmed that the Bill C-32 changes will still require a fairness analysis.

While I think some of these concerns are misplaced, there is still the potential to provide greater certainty to alleviate some of the writers' and publishers' fears. I believe this can be accomplished by codifying that six-part fairness test within the Copyright Act. This reform would ensure that judges would be required to assess the fairness of any use—including education—before it was treated as fair dealing. I believe it would also put to rest claims that fair dealing would lead to a free-for-all. In fact, quite the opposite is true; by design, the reforms would ensure that fair dealing is fair for all.

With regard to digital locks, which have been among the most discussed and most criticized aspects of the bill, I should start by clarifying that much of the concern does not come from digital locks per se. Companies are free to use them if they so choose, and there is general agreement that there should be some legal protection for digital locks since it is a requirement of the WIPO Internet treaties, and that's a clear goal of this legislation.

Rather, the concern stems from Bill C-32's unbalanced position on digital locks, in which the locks trump virtually all other rights, as the committee itself heard just last week from Mr. Blais in the context of education. This distorts the copyright balance not only for the existing exceptions within the Copyright Act, but also for the new consumer rights, which can be trumped by a digital lock just at the time they are widely found in devices, DVDs, electronic books, and more.

The most obvious solution to this would be to amend the bill to clarify that it is only a violation to circumvent a digital lock if the underlying purpose is to infringe copyright. This approach, which has been adopted by some of our trading partners, such as New Zealand and Switzerland, would ensure that while the law could be used to target clear cases of commercial piracy, individual consumer and user rights would be preserved.

l'd like to quickly make five points with respect to this proposal. First, this approach is compliant with the WIPO Internet treaties, which offer considerable flexibility in their implementation. I know there are competing opinions on the issue, but there is no shortage of scholarly analysis—including a piece I did in my book—as well as country implementations that confirm this is an option open to Canada. In fact, we need look no further than Canada's own Bill C-60 to see that Canadian officials recognize that this approach is consistent with WIPO.

Second, 13 years after the treaty, claims that Canada should adopt a U.S.-style approach run contrary to the emerging international record.

With the benefit of experience, there is a clear trend towards greater flexibility. Even the United States has recently added exceptions for jailbreaking phones and unlocking DVDs for some non-commercial purposes.

Third, the approach is entirely consistent with the goals of Bill C-32. It enables us to target commercial infringers who are profiting from their actions, since their circumventions would still constitute violations of the law. Meanwhile, it would provide businesses with the legal protections for locks that some are looking for and maintain consumer fairness by assuring Canadians that their personal property rights will still be respected.

Fourth, it is worth emphasizing that amending the new consumer exceptions alone--format shifting and the like--is not enough. For example, if the lock provision on format shifting were removed, consumers would still face the barrier of the general anti-circumvention provision. In order to address the issue, both must be amended to preserve the digital copyright balance.

Finally, in the event that the committee instead wants to consider specific, new, additional exceptions to the digital lock approach, I have provided the committee clerk with a full list of potential reforms, many of which are based on the rules found in other countries.

I look forward to your questions.

[Jean-Pierre Blais]

Yes, absolutely, but we are part of the evaluation process, as we speak.

I was involved in preparing Bill C-60, which led to a number of studies and, ultimately, Bill C-61. We held consultations for an entire summer. We followed the process in committee, and the fine tuning of the bill will occur right here. You will be hearing from the parties who will talk about its specific consequences for their business plans and their circumstances.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Mr. Speaker, I would like to take this opportunity to recognize the importance of this bill on modernizing copyrights. As a member of Parliament, I have spent a number of years working with my colleagues from all the parties to ensure that our country can support authors and copyright owners. That is an important principle.

We are at second reading of Bill C-32, which the government wants to move forward. This is not the first time we have seen such a bill. Before 2008, the government at the time introduced Bills C-60 and C-61, but they did not make it through. It is not true that these bills had a number of flaws and problems.

We are here today to talk about the importance of a bill that recognizes the changes going on in the increasingly technological world we live in.

The purpose of this bill is to modernize the Copyright Act to bring it in line with the digital age. I must mention some of the important changes that are being proposed. There are changes that would authorize individuals to make copies for personal use, such as recording television shows or transferring music onto an iPod or computer. There are also new rules that would make it illegal for individuals to circumvent a digital lock or a technological protection measure.

Furthermore, the bill gives new responsibilities to Internet service providers, which will have to inform copyright owners of a potential infringement of the copyright. As a party, we note the new exceptions regarding fair dealing for educational uses, for parody or for satire that are included in this bill.

Canada is definitely in the midst of a digital transformation. The dawning of the digital economy is upon us and it will no doubt have, and has had, profound impact on industries, especially our cultural industries.

It is clear that our aging copyright laws have received significant international criticism, which is not to be underestimated. The longer we remain behind in global best practices, the more Canadian artists and consumers will lose out. This initiative brings into play our international relations as well as the interests of consumers.

There are obviously a lot of ideas about what is in the best interests of consumers, and this is going to require serious attention in committee, where informed, serious debate will be held with a number of stakeholders, and all points of view will get a clear hearing.

We have all received significant lobbying from individuals, interested parties, stakeholders, and experts in this field. I appreciate these interventions because they are significant. This legislation and the work that we conduct in committee will, I hope, do justice to the attempts by many people to bring forth a better copyright law here in Canada.

A number of concerns were expressed by my colleagues prior to my taking the floor. Because of time considerations, I will not repeat them. Rather, I will focus on areas that my party and I believe are extremely important.

This is not a new issue for me as a member of Parliament. For a number of years, going back to 2006-07, I attempted to bring together an all-party copyright committee that would look at these issues.

I sat on the industry committee, where I am still a member, when we issued two reports on copyright, contraband, and other issues that were important to manufacturing and the evolution of technology, which we viewed in a context of modernizing our economic instruments.

Digital lock provisions allow Canadians who have legitimately purchased a CD or DVD or other products to transfer their purchase to their iPod or make a personal backup copy on their computer, so long, and I think this is the caveat, as they are not doing so for the purpose of sale or transfer to others.

That is what the legislation is looking to do. It distinguishes private personal use and commercialization. In some areas, a simple firewall can be established, but it is not clear and it becomes more clouded when we are dealing with new technologies and new electronics.

Many artists, many songwriters, many creators of art have expressed deep concern and substantial reservations about issues such as the new education provisions in this copyright legislation. They are concerned about mashups, statutory damages, and compensation for resale rights. While we have deep reservations, we will support this bill's going to committee and look for an opportunity to address the many concerns that have been brought forward.

We know the question of copyright is fundamental. It is important and must be treated with the same degree of seriousness that the public always expects from Parliament in enabling and modernizing legislation.

I explained earlier that Canada's shift to a digital economy has huge spinoffs for our cultural industries. I also mentioned that our copyright laws have been criticized internationally and that the more we drag our feet on global best practices, the more Canadian artists and consumers will lose out. We have obviously taken into consideration the fact that numerous artists, writers and creators have also expressed serious concerns about certain points, such as the new provisions concerning education, mashup applications, statutory damages and payment for resale rights. Despite these concerns, we are trying to make sure that this bill makes it to committee, where much more work can be done.

Since it was tabled, this bill has received staunch support and strong opposition from various stakeholders. The Liberal Party obviously supports modernization. However, concerns have been raised about numerous areas. The first is whether digital locks should take precedence over every other right to copy. The bill we are debating today, Bill C-32, provides for new rights authorizing Canadians to make copies for personal use, including format shifting—transferring content to a CD or iPod—as well as time shifting and making backup copies. The new provisions concerning digital locks take precedence over these rights. In other words, under the new law, a person who buys a CD that has had a digital lock on it cannot circumvent that lock to transfer the content to an iPod without breaking the law. Obviously this has given rise to some discussion. It is an extremely controversial point that was already contested when the Conservatives introduced their previous copyright bill, Bill C-61.

As a party, we obviously have concerns. As well, consumers have been passionate about sharing their fears about the digital lock provisions. We listened to these fears and we will listen to them again.

Other areas we would look at in Bill C-32 would be education. It has been mentioned here before, but the legislation introduces exemptions for copying, meaning teachers and institutions of higher learning. Education can now make copies of some work for education purposes and not infringe on copyright.

Broadly, the bill would implement two major changes. It would introduce making copies for education purposes as an exemption under Canada's fair dealing rules. It would also introduce several specific distance education exceptions to allow for copies used for lessons, communicated to the public through telecommunication for educational or training purposes. That public consists only of students who are enrolled in a course.

I think we can appreciate that there is in fact a growing concern and opposition to broad fair dealing exemption provisions. Writers and publishing groups in particular are very opposed. Fair dealing is so broad that question really becomes, what is in fact defined as fair? The writers and publisher groups believe new exemptions will give teachers and education institutions a veritable blank cheque to make copies of their work and to give it students. They believe teachers and educational institutions ought to compensate creators for their work.

In particular, one of the questions that arises is why private commercial education institutions should be permitted to disseminate works for education purposes without compensating copyright.

I do not need to get into the number of associations and groups that have advocated fair dealing exemption. They have to be taken in the context of the concerns that have been registered by those who freely and rightly create and ask that they be compensated for their work.

There again is another area that falls into what we consider the not so black and white debate about copyright. It is important for us to take and weigh both of these in accordance with the spirit of what the bill tries to achieve.

It would appear that another area we need to look at is the area known technically as mashups, and it is not something one would prepare at a dinner. It is the creation of an exemption for user-generated content where a personal movie is produced using music clips combined with personal video. Then, as some do, it is posted on YouTube.

In our view, this section is too broadly written. Under the rule, individuals can post an entire movie on YouTube as long as they add a small inserted clip at the beginning or the end. Then they can call the video a mashup. It is kind of the exemption given in this kind of circumstance.

We believe the language in this proposed legislation should be tightened to ensure that the mashup exemption cannot unexpectedly create what appears to be a loophole for further copyright infringement.

We are also concerned about the question of statutory damages. I raise this because I have not heard many other members talk about this point. The bill defines a new statutory damage provision of between $100 to $5,000 for all non-commercial infringement copyright.

A number of people to whom I have spoken, and who have come to meet with members of Parliament, have expressed concern about this section and believe applied statutory damages must be commensurate to, equal to and proportional to the severity.

That is an important factor that we must consider at committee. We may have differing opinions as to how these issues are going to be resolved. It would appear that the committee is going to be cast, once again, with having to judge two, or three or several very weighty issues.

The resale of art is also a new issue that has not really had a lot of attention, but it is one that leaves Canadian artists in a position of distinct disadvantage. As members will know, throughout Europe and in some parts of Central and Latin America, artists are rewarded when their works are sold and sold again. Original art increases in value over time and artists feel a share of the increase in value should be returned to them upon resale of their works.

At committee, we may wish to explore the European model or the European experience and see how Canadian artists can be better compensated for their work. Considering the level of interest that has now been brought forward, I am sure this is an area that our party and areas in other jurisdictions will be certainly interested in modelling as well.

It is clear that ephemeral recordings also present concerns for members of Parliament and will concern Canadians. To put that in perspective, currently copyright holders charge broadcasters for format-shifting their works. A simple example of this is a radio station that might purchase a song for broadcast. The current rules require the radio station to pay every time the radio station plays the song but, more important, when it transfers the song on to its computer servers.

As we know, modern radio stations are changing and these are being done in a way that outmodes and makes less necessary the old way of throwing a record on and paying someone at the end of the day. These are done and filed. Broadcasters want to simply pay once. Stations, whenever they play a song, do not want to pay again and again. The format shift, which is taking place will obviously do this time and time again, leaving artists without the traditional revenue stream they could once expect, basically as a result of changes in technology.

The right of copy for format-shifting and transfers is approximately $21 million each year to artists and musicians, creators of the works. Bill C-32 eliminates the ephemeral recording rights in the Copyright Act, eliminating this compensation to creators.

While I sit the industry side of things, we can all appreciate the importance of Canadian culture, Canadian music, Canadian songwriters and the great impact they have made as a result of these kinds of arrangements, constructed in large part by Parliament in previous times. We know the Canadian recording industry is sound and strong. We are very proud of it and we have to do everything we can, in modern times, to ensure it is effectively and equitably safeguarded.

I believe there is the basis in the country for solid rewrite and review of copyright. It is long overdue. Members of Parliament may have differing opinions as to where and how we view effective copyright legislation, but I think we recognize that as the world changes, as technology evolves, so must the panoply of laws and the framework that allows us to change with changing times. That is the pragmatic approach, which the bill will require in order for it to be an effective response to the demands, needs and realities that society, that those in the industry as well as those artists expect.

I am not only looking forward to the questions, but I am looking forward to the opportunity, with some of my colleagues in the House of Commons, to frame and to craft legislation that may meet those expectations. I am not saying that the bill is the be-all and end-all. It is a very important step and the first step in the right direction. It has a long way to go, but it is nevertheless a critical and very important and timely step.

I look forward to Parliament approving second reading and getting this to committee where the experts then have their work cut out for them. We can hear from Canadians and meet those expectations.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I will begin my questioning in general terms about the speech the hon. member made regarding copyright legislation. As he referred to, there have been many forms of this in the past little while: Bill C-60 and Bill C-61 that provided a lot of input from stakeholders.

I know he wants the bill to go to committee but once it gets to the committee process, what are the most fundamental changes that he would like to push forward in regard to Bill C-32? Would it be the digital measures that we talked about? I know he talked a lot about the educational exemption. I wonder if he could expand on that and how he proposes to change that once it goes to a special legislative committee.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, it is an honour to be here as I have been delving into this issue since 2004 when I was first elected and became a member of the Standing Committee on Canadian Heritage. Back then, we had to deal with what was from 1997 the major last reforms to copyright and then we went into a new bill in 2005, which was Bill C-60. In 2008, we received Bill C-61 from the government but that was put aside because the Conservatives wanted to change the bill to become more technologically neutral. Those were the words by the industry minister earlier today.

This signifies the first time that we have had a fulsome debate in the House for quite some time because those prior bills never had a fair hearing within the House. We had a few debates here and there but not a fulsome debate like we are having today. I congratulate my colleagues, the Minister of Industry, the Minister of Canadian Heritage, the critic from the Bloc Québécois and the critic from the NDP, for their speeches. They all, in their own way, put out well researched speeches with some incredibly valid points.

Once again I will reiterate that our party will vote at second reading to put this to a committee so we can give it a fair hearing. When I first looked at this bill, and despite the problems that I personally have with it, I wondered if it needed to be fundamentally changed before we reached second reading. I knew that if we voted yes at second reading, we would be accepting, by and large, the principles in the bill and, therefore, major amendments to change the direction of the bill in certain ways could not be done as they would be overruled by the Speaker.

At that point during the discussion, we decided to go ahead because we needed balanced copyright legislation. It is long overdue, no doubt about it, and everyone should perhaps grab just a little bit of blame in all of that as this discussion has gone on. We signed WIPO treaties in 1996, one dealing with the Internet and the other one dealing with phonograms. Since then, however, we have yet to ratify, pending, of course, the right amount of legislation or balanced copyright legislation. In this instance, Bill C-32, which is in front of us now, was really borne out of the ashes of other bills that have died on the order paper.

Going back to copyright and the issue therein, how do artists receive the right amount of remuneration for the work they have done? I will go back to the origins of copyright. The first time Canada had copyright legislation was in 1868. We felt the need, even back then, for artists to protect what they create but that it would be balanced with the right of users to have access to this material which was very important going back to the beginning and the genesis of the printing presses.

In 1868 and years thereafter, it started in Great Britain, moved its way to Canada and through the United States where it felt the same urge, need and desire to protect artists' rights and, at the same time, mass distribution for this material so it could be accessed by the public. However, by protecting some of this material we did not want to protect it to the point where we kept it under wraps from the general public and people could not get access to it.

The year 1875 was another time when Canada went full ahead and made changes to copyright legislation so that it would be more in line with other countries. Even at the very beginning of copyright legislation there was always the compulsion to bring it in line with what is international standards as artists' work really knows no boundaries. That was at a time when we were printing books for mass distribution. We did not have anything like the radio or record players but now, in the digital age with the Internet, the global village has become that much smaller.

In the very beginning, if memory serves me correctly, I believe the origins of copyright internationally was that British books were being distributed throughout the British Empire and there needed to be certain protections for that as it was distributed to countries like Australia, India or Canada, throughout the British Commonwealth.

The first time Canada saw a glimpse of modern copyright legislation, or at least something that was considered for quite some time to be the cornerstone of copyright legislation, came in 1924. Around that time it was comprehensive enough that it covered many aspects of what was out there in the public realm. Again I go back to books, certain recordings, photographs and that sort of thing, obviously at the very early stages.

As my colleague from the NDP pointed out earlier, the arguments that we are putting forth here today started in the latter part of the 19th century. He used the example of the rolling piano where music was played on an automatic piano, which we have seen in the movies, and whether that would destroy a piano player's career. Obviously, it did not. After that, would recorded music destroy the concert or would people stop going to concerts because they now had an album that featured the artist's recordings? That was not the case as, of course, concerts have increased dramatically from the time of their inception.

From 1924, we went on to make some substantial amendments to the legislation, obviously with the changing times, in 1985 as well as in 1997. Both governments, Progressive Conservative and Liberal, have made substantial changes throughout the years. There seems to be a camaraderie or general understanding to reach out to other parties within this House to ensure we have the right legislation.

However, so many stakeholders are involved in this that there needs to be a comprehensive look at how we deal with copyright and, in order to do that, it needs to receive a mature debate. Today we are debating the bill at second reading and it seems that we are now laying the building blocks for what is about to be a fulsome debate on where copyright is going in this digital age.

I also want to talk briefly about the other bills.

Bill C-60, which was introduced in 2005, received quite a bit of stakeholder response and a lot of it dealing with the fact that we are getting into the digital age. A lot of this was spurred on by the fact that all of a sudden we were sitting in front of a wide array of music selection that we did not need to pay for. It was free. This was the origin of Nabster and LimeWire. With those devices, all of a sudden the consumer had the ultimate choice. Not only was it available in many arrays and all types of genres, it was actually free. That was a fundamental misstep, a fundamental breaking of the contract that we as government have with artists, which is to say that we will help them protect their work.

Nabster has gone by the wayside, or at least the free version has, and other equivalent facsimiles of how that type of music is distributed, meaning peer-to-peer sharing. They have disappeared but there are business models out there. I personally purchase music at 99¢ a song, and I am fine with that. I do not have a very large collection but I do have a collection that is big enough that I gleefully pay for it.

One of the issues that came from peer-to-peer sharing and one of the issues that has not been discussed yet is the information out there about what is illegal. This is something that has been dear to my heart as an issue. As my colleague pointed out earlier, in the United States right now this is incredibly litigious. The lawyers are running overtime when it comes to areas of copyright. A lot of the rules that are put down in America right now are really laid down by court judgments throughout the court system. To a certain degree that has happened here as well, but not to that extent.

In America there were several illustrations where children downloading music in their basements were being sued by major companies in multi-million dollar lawsuits. Obviously they cannot be involved in multi-million dollar lawsuits because there is no way they can get the money. Instead, the companies felt compelled to make a statement and made their statement by taking the most vulnerable in society to court. I will not come down too hard on companies for doing that as they had a legitimate concern about people stealing their product. However, at the same time, they did it with a great deal of haste and aggression that I would not agree with. I think that we, as government, should address that issue.

However, the result of that was the introduction of Bill C-60 in 2005, which, as I stated previously, created a lot of input and for all good reasons. The government changed in 2006 and we found ourselves going back in 2008 with Bill C-61. Bill C-61 went off in different directions from Bill C-60 in many cases but some of the fundamental aspects remained intact.

However, the problem was that in many cases people felt that it had been rushed through too quickly or that it had never received the right debate within the House. Many of the stakeholders thought Bill C-61, because it was illustrative, was maybe too illustrative because it set out certain examples and put people in corners. Basically it was too smothering, as someone told me. Bill C-61 found itself it to be too much for everybody to handle. At this point it went back to the drawing board. As we have heard this morning, I think “technologically neutral” was the response that came back.

Bill C-32 is the latest version of this and hopefully with the agreement of members of this House it will actually make a fulsome attempt to put this into law, and that way the next time we deal with this will be as something that comes way down the pipeline.

One of the issues that keeps being raised is peer-to-peer sharing. I have always made the comment that the problem with having legislation that is too stringent and too detailed in nature is that it becomes oppressive to the point where it just does not adapt. I have said it before and I will say it again. It seems that whenever there is a technical measure by which people are not allowed to get to a certain piece of art, roadblocks are put up around it. Governments do it through regulation to keep people out for access reasons.

However, once that it is put in, I have a 16-year-old son who could get around it within 48 hours. I am not exaggerating because I have seen it happen. I would not want to say that it was my son because I would get him in trouble since this is a public forum, but I have seen it happen. Teenagers do not like to be told that they cannot access certain material for whatever reason.

In the old days, when we were told that we could not access certain material for whatever reason, we would get upset if we could not access certain art or music because it broke Canadian laws or regulations on content. Nowadays, when roadblocks are put up to deny teenagers access, they laugh. It is a big joke. In essence, they find that it is not a big deal because they will find it and get to it in 48 hours. They have done it before and they will do it again.

The concept is that they are breaking the law. Artists have protection around their material that they need to make a living. If a particular parent is sitting at home and is not familiar with the new ways for children to attain music, movies or any type of entertainment nowadays, a parent would be horrified. Parents would be horrified if someone were to call them at home and say that he or she had just caught their child shoplifting at HMV and that the child had tried to walk out of the building with a CD in his or her pocket.

Some kids can download about 20 to 25 CDs from their computer in the run of five minutes. That is okay. Some kids tell their dads that they just downloaded the new movie that is out in the theatres onto CD. A lot of parents just do not pay any attention and just say “Okay, that is great. Let us go watch it.” It is illegal.

I hope part of the debate elevates copyright infringement and how the protections in place for artists are there for a reason, which is to protect the artists' work. It is stealing. We can call it that. In the end, artists are unable to make a living if their material is not protected.

On the other hand, one of the provisions in the bill talks about digital locks. We have all talked about this. We have all heard about this. Is it too stringent in this particular bill? It needs to be discussed. Is it a situation where digital locks cannot be touched? I am not so sure.

I said earlier that I have a concern about the fact that one particular company may have a digital lock in place over certain material. If someone downloads a piece of music or a movie, that piece of music or that movie can only be listened to or viewed by that company's equipment. I have concerns about that because the individual probably purchased the movie legally but is locked in a corner as to how he or she can use it. That deserves to be revisited.

I refuse to believe that the digital lock issue is cut and dried. Educators have said that the digital lock provisions would be too harsh on them now that they have an educational exemption. We have one group weighed off against the other. That involves a full debate. That has to be talked about because many people have a point. I met yesterday with the Canadian Federation of Students who brought that issue up.

On the other hand, some artists are happily ensconced and making a good living by the fact that digital locks allow their material to be protected. Software companies are a case in point.

Canada has a fantastic software industry for games, the intellectual property of video games, Xbox, PlayStation. We have a great industry here and it certainly deserves protection. We need to look at this material with open minds and consider debating it.

Unfortunately the debate earlier was going in different directions regarding the levy that was imposed upon CDs, DVDs or DVDRs and the way artists are able to achieve money to protect their livelihoods. They came up with a solution in the late nineties but it is not within this bill. The government does not agree with it but it deserves to be discussed. I hope the government will be open to revisiting that issue once again when we get this legislation in committee.

There are other issues as well in these changing times. I mentioned the downloading, or making a copy, of music or movies. This is copyright.

This debate started back in 2005. It is not that long ago, if we think about it. We started out with P2P, or peer-to-peer sharing. Nowadays we have live streaming, where no copy is involved. An individual just logs on and live streams what he or she wants. YouTube is a classic example. This technology is going at a blistering speed in the digital age and now we have to keep up.

I was happy to hear the minister talk about a five-year review, and I congratulate him on that. That goes a long way toward looking at legislation once again. Personally, I feel that is the way we should be going.

Bill C-32 contains a number of other measures such as those regarding mashups and the creation of a new exemption for user-generated content, which broadly written, could create an opening for abuse. That is true. We have to consider that.

Statutory damage is another issue we have to look at.

Fair dealing in general has to be looked at, fair dealing for access for consumers, fair dealing for parody, satire, but fair dealing for education. We have had a lot of input on that. Some people are very concerned about it, artists in particular.

Some artistry groups have said that an open-minded, fair dealing provision puts in the hands of the courts what should be determined by Parliament. That is something we have to consider. Again, it becomes incredibly litigious. Fair dealing has that possibility so we have to consider that. We have to draft legislation to make sure that does not happen, in my humble opinion. Artist groups are saying that the full impact of an open-ended fair dealing provision may be difficult to predict but the fact that there will be unintended consequences is wholly predictable.

The intent of the education provisions put forward by people from the University of Ottawa and by the Canadian Federation of Students is not to destroy the livelihoods of people who write textbooks. So again we have the interests of one weighed off against the interests of the other. We have to come down the middle in what I consider to be fair copyright legislation.

[Graham Henderson]

I believe it starts with a very simple, straightforward baseline. We have to draw a little box around what's legal and what's illegal and send clear messages to the people of Canada about what's right and what's wrong.

I've always said about the people of Canada that I think we all think of ourselves as law-abiding citizens. The problem is that we have no laws to abide by. Now, lots of other countries--France in particular, South Korea, Sweden, England--are taking very aggressive stances to protect their creators. France is perhaps in the lead. We're nowhere near taking the steps that France has taken to protect its creative class and, in fact, its business community. But I would argue that to simply, as a very baseline, implement the intellectual property treaties as contemplated by, for example, Bill C-61, or before that Bill C-60, would be the first step on that road.

[André Cornellier, Co-Chair, Chief Executive Officer of La Maison de l'image et de la photographie, Canadian Photographers Coalition]

My name is André Cornellier. I'm an artist and a photographer. I'm also a director of UMA, La Maison de l'image et de la photographie, and I represent the Canadian Photographers Coalition, which represents 14,000 workers in the photography industry.

Thank you to the distinguished members of the committee for hearing us today.

You are asking about what is affecting our industry in the digital age and what you can do to help us. I will talk about one thing you could do to help us and one thing you should not do.

First, let's talk about how you can help us. Photographers from here do not have the same rights as other Canadian artists or other photographers in industrialized countries. Subsection 10(2) of Canada's Copyright Act provides that copyright belongs to the person who owns the negative. There is no negative in the digital age. Furthermore, why would copyright belong to the person who buys the film rather than the artist who created the work? Is copyright given to the person who supplies the guitar or the artist who composes the work?

The present government introduced an amendment, in the spring of 2008, in Bill C-61, which repealed subsections 10(2) and 13(2) and restored copyright to the photographer. We would like the present Conservative government to make the same amendment in the next bill, particularly since the Liberals also proposed that amendment in 2005 in Bill C-60.

Now let's talk about what the government should not do. The government should ensure that the Internet is accessible to everyone everywhere. It should ensure that the information highway is accessible everywhere at an affordable cost. That will assist in the development of commerce and Canadian culture. At the same time, it must resist the idea of making content free of charge. When the government builds roads and highways for goods and services to be accessible everywhere, what is transported on them is not free of charge. Making something available does not mean making it free of charge. It means that what is not available in a region is now available there and that people can now buy it.

What is the interest in building a refrigerator if it becomes free of charge because you transport it on a highway? Does selling shoes rather than giving them away undermine the shoe business? Does that make it so no other companies create new shoes?

The same is true for the Internet. Creating the information highway does not mean that what is transported on it must be free of charge. The right to own and enjoy one's inventions and creations is a fundamental right for a fair business. This actually encourages creation. Is the claim being made that you encourage creation by making everything free of charge? Where then is the encouragement?

When we advocate compliance with copyright, we're told that we are undermining creation, that we understand nothing, that we should deal with the new ideas and new needs of the digital revolution. A seminar was held in Toronto on April 29 and 30, 2008. It was attended by all segments of Canadian culture, representing all opinions on copyright. More than 140,000 creators in all fields were represented there: music, visual arts, performing arts, writing, film and video. There were also promoters of a free Internet, those who are opposed to copyright. There were the promoters of the Creative Commons. There was Mr. Geist, there were “appropriationist” artists and a number of representatives of the next generation, the young generations. All ideas and all ages were represented there.

One young artist, in his twenties, made a presentation on one of his creations. It was a three-minute video. He had taken hundreds of images off the Internet and had assembled them in layers. His creations consisted of numerous recombined images. The video images were collages. Hundreds of collages one after the other composed a symphony of highly coloured images. He explained that, if he had had to request copyright permission for each of those images, it would have taken him months and cost tens of thousands of dollars. He therefore asked that copyright be abolished on the Internet and that an exemption be introduced so that he exempt from copyright since it was holding back his creativity.

We told him about a hypothetical case. If a company, such as Ubisoft, for example, created a new electronic game and, liking his pictures, decided to take them off the Internet and include them in their software, to use them to package a product or whatever else, that shouldn't be a problem for him. He answered without hesitation that he would sue them.

On January 30 last, I was in the offices of a young design firm in Montreal. During a conversation, the two designers, knowing that I worked for the recognition of copyright, told me that I didn't understand the needs of their generation. One of them told me he was making music and that they preferred to distribute their music on the Internet so that people could download it free of charge so that they could make themselves known. As a result of that, the old models that I supported were no longer valid. There should be no more copyright.

I asked him if there would be a problem if a group in Canada or the United States liked their music and wanted to record it and distribute it on a CD and over the Internet. He answered without hesitation that he would sue them.

There are hundreds of examples of this kind. They all say they don't want copyright so as not to inhibit their creativity or the distribution of their creations, but they all want to sue those who appropriate their works. How could they sue if there was no act protecting them?

This doesn't show that they don't want copyright; it shows only one thing: ignorance of copyright. When you carefully listen and try to understand their thinking, you understand that they want to be able to decide when to share their creations free of charge and when to profit from them. The right to decide where, when and how you want to share your creations is called copyright.

Current copyright effectively achieves its mission and protects creators old and new, those of yesterday and those of tomorrow. It enables them to give away their works free of charge or to profit from them and to create new original works. Do not open the door to all these exemptions that are asked of you. The exemptions you create today to allegedly facilitate creation will in future turn against those who requested them and they will not be able to protect their own works. Giving permission to plagiarize encourages plagiarists, not talent. Real artists have never been afraid of any constraints. Respect for rights encourages creation. If you give in today to requess for exemptions, in 20 years, they'll be the first ones to criticize you, and rightly so, for not protecting their creations and their property.

Thank you.

Canadian Heritage

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I was at committee yesterday when we spoke to Michael Geist. In her speech the member gave the impression that she did not really agree with what he was saying. However, there is one aspect of it with which I think she would agree, which is to say that he did go on to say that further debate is needed on this. I believe in that as well and here is why.

The copyright issue has never faced a full debate in the House even though several bills have been introduced. It was debated back in the early part of the last decade but since bills C-60 and C-61 there really has not been a full vetting of what is going on. I think that is what Mr. Geist was also saying and I am sure she would agree.

Would the member agree that furthering the debate certainly would be beneficial for us as parliamentarians?

[James Rajotte, Conservative, Edmonton—Leduc, AB]

Thank you very much, Mr. Chairman. I certainly appreciate being here.

Mr. Geist, I always find it interesting to listen to you. Thank you very much for your comments here today.

I very much appreciated it when you talked about the silos of telecom broadcasting. I think you're fundamentally right on that. With respect to young people being active on copyright, I can say that's certainly true in my riding. I know a lot of people became active on Bill C-60 and Bill C-61.

I know you were quite a strong opponent of Bill C-61. Some people had the impression that you oppose any copyright measures. But as you've said this morning, you in fact support copyright policy in terms of implementing WIPO “notice and notice” of fair dealing. I appreciate those comments. I think you're recommending to the government that it be a smaller and more streamlined bill that's technologically neutral.

In the discussion on copyright, you also talked about creators and users. It's a real challenge in terms of the new online environment to ensure that creators are compensated for the work they do, including a person who writes a song, a producer, and all the way down the line for any field.

Could you comment on how to ensure that we actually compensate creators in the new online environment?

[Professor Michael Geist, Chair, Research in Internet and E-Commerce Law, University of Ottawa]

Great. Thank you, Chair.

Good morning. As you heard, my name's Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I'm also a columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. I was a member of the national task force on spam; I was on the board of directors for many years for the Canadian Internet Registration Authority, CIRA, which governs the dot-ca domain name; and I sit on the Privacy Commissioner of Canada's expert advisory board, but I appear before this committee today in a personal capacity and represent only my own views.

The committee posed several questions, but I think two capture the essence of the issue. First, how have developments in digital media changed the new media environment? Second, what can government do? I'd like to try to take a stab at least at opening some discussion on both.

First, how have things changed? As we move from a world that was largely characterized as one of scarcity to one of abundance, I think we're seeing Canadians play an important role. Record labels like Nettwerk Records in British Columbia or Arts&Crafts in Toronto are at the forefront of using the Internet to promote their artists and benefit from its great potential. Notwithstanding some doom and gloom, the Canadian digital music market has grown faster than the U.S. market each of the past four years. In fact, we rank seventh worldwide for digital music sales, which is virtually identical to our sixth-place ranking for offline music sales.

The Canadian entertainment software industry is growing at a breathtaking pace, with regular investments in Quebec, Ontario, and British Columbia. It's not legal frameworks that are dictating the investments but rather Canadian talent, creativity, and marketplace success. Smaller players are finding success in new markets as well, like iPhone and Facebook applications. The Canadian television network The Score is a North American leader for its online application. Companies like Polar Mobile now supply applications for the iPhone to a global market.

Canadians also play a key role in new book models. For example, Wikitravel is one of the Internet's most acclaimed travel sites. It was launched in 2003 by two Montreal residents, Evan Prodromou and Michele Ann Jenkins. They used the same Wiki collaborative technology that's proven so successful for Wikipedia, inviting travellers to post their comments and experiences about places around the world in an effort to create a community-generated travel guide. The site has accumulated more than 30,000 travel guides in 18 different languages, with 10,000 editorial contributions each week. Content is licensed under a creative commons licence that allows the public to use it, copy it, edit it, and freely work with it. Building on that success, they've established Wikitravel Press. It represents a new approach to the travel book publishing business based on Internet collaborative tools and print-on-demand technologies.

Now, the compelling stories aren't limited just to new entrants. Consider the National Film Board of Canada. I don't expect the NFB to replace YouTube in the minds of many when it comes to Internet video, but a series of innovations has highlighted the benefits of open distribution and the potential for Canadian content to reach a global audience. Last year, just months before the NFB celebrated its 70th anniversary, it launched the NFB Screening Room, an online portal designed to make its films more readily accessible to Canadians and interested viewers around the world. To meet its objective it committed to being as open, transparent, and accessible as possible, including making the films freely available and embeddable on third-party websites.

In January 2009, just over a year ago, it started with 500 films. Today that number has nearly tripled, with almost 1,500 films, clips, and trailers, and the growing selection has been accompanied by a massive increase in audience. There have been 3.7 million online film views just in that first year alone: 2.2 million from Canada and another 1.5 million from the rest of the world. That's set to grow as the daily views, just in January, were 20,000 Canadian films by the NFB. That's per day.

The site also uses mobile technology to increase public access. In October of last year, just a few months ago, it launched an iPhone application that was downloaded more than 170,000 times and led to more than half a million views on the ubiquitous mobile device.

Similarly, the CBC has experimented with new distribution models. In 2008 it released a high-resolution version of the program Canada's Next Great Prime Minister without any copy protection on BitTorrent, the peer-to-peer protocol that's often linked with unauthorized file sharing. The public was able to download, copy, and share the program without any restrictions.

The use of BitTorrent may come as a surprise to some who mistakenly equate file sharing solely with infringing activities. BitTorrent and other peer-to-peer technologies are finding increasing favour with legitimate businesses attracted to its ability to distribute content in an efficient, cost-effective fashion. It has become particularly important for Canadian independent filmmakers and creators, who see it as a cheaper way to distribute their work.

In fact, the CBC's model was inspired by what the Norwegian Broadcasting Corporation had done. It had earlier used BitTorrent to distribute Nordkalotten 365, one of that country's most popular programs. It proved successful, with tens of thousands of downloads at virtually no cost to the broadcaster.

These are a tiny fraction of the success stories we see today. We could canvass sector by sector to see how the Internet is proving enormously valuable to creators, consumers, and producers. But I want to turn to the question of what the Canadian government should be doing. I point to five issues as a starting point for discussion.

The first is Canadian networks. Canadian telecommunications networks were once the envy of the world. That's no longer, as we now rank far from the top in virtually every international ranking. Ensuring that Canadians have access to high-speed networks that rival current leaders like Japan and South Korea should be a top priority. I acknowledge that this is often perceived as an industry issue, but there is a critical heritage dimension here. We need to recognize that policies on high-speed networks and competitive wireless pricing are directly linked to new media success, since they are key distribution systems of Canadian digital content. This involves addressing several issues.

We need universal access so that all Canadians can access this new media.

We need to promote investment in fast fibre-to-the-home services so that Internet-based distribution models can take hold and remove the bottleneck that sometimes arises from either limited screen space or limited channel availability that has hampered some Canadian creators in the past.

Assist Canadians to become part of the creative and participative process. Many of us recognize that the line between creators and users is increasingly blurred today, and we need networks that facilitate both participation as well as consumption.

Finally, we need to ensure that we enforce network rules of the road, including net neutrality and traffic management guidelines, so that all content is afforded an equal opportunity and doesn't fall victim to limited access based on the kind of content or the program used to distribute it.

The next issue is digitization. I think there are few issues more central to new media policy than digitization. Most countries have recognized the need to ensure that national content is both preserved for future generations and made more readily accessible to the public. But in Canada, plans have languished to the point that it feels as if someone has hit the delete key on the prospect of a comprehensive Canadian digital library.

Our failure to keep pace has become readily apparent in recent years. Just by contrast, in September 2005 the European Union launched i2010, a digitization action plan. Several years later Europeana debuted—a website that provides direct access to more than 4.6 million digitized books, newspapers, film clips, maps, photographs, and documents from across Europe. The plan is to host 10 million of these objects by the end of this year.

By comparison, Canada is still largely stuck at the digitization starting gate. Library and Archives Canada was given responsibility for the issue, but was unable to muster the necessary support for a comprehensive plan. The Department of Canadian Heritage would seem to be a natural fit for a strategy designed to foster access to Canadian works. It has funded a handful of small digitization efforts, but has shown little interest in crafting a vision similar to what we see in Europe with Europeana.

The next issue is government as a model user. In recent years many countries have embraced open data initiatives, including both the United States and the U.K. Others, such as Australia, have adopted open licences to make sure that government content is more readily usable and accessible. We have started to see some of those same things in Canada at the municipal level. Cities such as Vancouver, Edmonton, and Toronto are leading the way.

Open government data is consistent with government transparency goals, and holds great economic potential by inviting Canadian businesses to add value to public data. Canadian policy should encompass principles such as open government data, the removal of crown copyright, and more open licences for government data, including things like government video, as well as a commitment to at least equal opportunities for procurement around open-source software. We should be, as a federal government, much like we see at the municipal level, talking about open data, open standards, and open-source software.

Fourth is cultural policy. Canadian cultural policy has long focused on the creation and promotion of Canadian culture. The government has already begun to shift much of its support toward new media and digital platforms. As we move from a world of scarcity, with limited bandwidth and difficulties in accessing culture, to one of abundance, where there is nearly unlimited access to culture, Canadian policies must shift as well from what I think are increasingly unworkable regulations that limit access to foreign content, toward efforts that back the creation and promotion of Canadian content.

In many ways, cultural policy is more relevant than ever. What we have to do is ensure that it becomes relevant by being effective in the current environment. In fact, with a new spectrum auction planned within the next couple of years, I think strong consideration should be given to earmarking some of those proceeds for a digital strategy, including digital cultural funding. We can use some of that revenue directly in this area.

Finally and fifthly, I can't help but deal with it: copyright. It goes without saying that copyright policy is an important part of a government strategy on new media. As part of that policy, I think it's absolutely crucial to ensure that we maintain in the online world the copyright balance that exists offline. This means that creators receive appropriate compensation and have the flexibility they need to be able to create. It means that users maintain their user rights. It means that companies don't face an intellectual property thicket when they attempt to innovate in this space.

I'd point to three key areas here. First off, Canada should implement the WIPO Internet treaties. That said, the WIPO Internet treaties offer considerable flexibility in how they are implemented, particularly around the issue of anti-circumvention rules--digital locks--a fact that was recently confirmed in a Conference Board of Canada report on intellectual property. This means that we can implement the treaties and link it to circumvention where there is actual copyright infringement.

Secondly, there is the issue of intermediary liability, largely thought of as ISPs. Frankly, I think this should be an easy one. Both of the digital copyright bills that we've seen in the past, Bill C-60 and Bill C-61, adopted the same approach: notice and notice. This involves a copyright holder sending a notification to an ISP, which is then obligated to send on that notification to a subscriber.

These notifications work. The Business Software Alliance has noted their effectiveness, as many users receive the notification and alter their conduct accordingly. In fact, recently, the Entertainment Software Association of Canada pointed to its own study, which found that 29% didn't respond to the notice, leaving an impressive 71% that did. I think those are pretty strong numbers.

Thirdly, there is fair dealing. Today, we all recognize that there is a problem with fair dealing. Everyday activities such as recording television shows or format shifting aren't covered. Artistic endeavours like parody aren't covered. Some teaching activities aren't covered, and innovative businesses can't rely on the provision either. This goes to the heart of new media creation.

The solution I'd propose, which I think is a clean, simple one, would be to add two words--“such as”--so that the current list of fair dealing would become illustrative rather than exhaustive, and we would build in flexibility, but--this is crucial--not lose fairness. It is fair dealing, not free dealing. Incorporating a “such as” provision would incorporate all the restrictions that currently exist within the fair dealing framework to ensure the uses are fair, but at the same time would ensure it is not limited to the narrow series of categories we currently have.

This is an exceptionally exciting period of time, I think, filled with potential for creators, consumers, and Canadian business. The Internet and the digital world offer new ways to meet the challenges of yesteryear, such as a lack of screen time, barriers in reaching an audience, and, increasingly, the high costs of production, particularly around distribution.

I think it's great to see this committee grappling with this important issue. I welcome your questions.