An Act to amend the Copyright Act

This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.

Sponsor

Jim Prentice  Conservative

Status

Not active, as of June 12, 2008
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Copyright Act in order to

(a) update the rights and protections of copyright owners to better address the Internet, in line with international standards;

(b) clarify the liability of Internet service providers;

(c) permit certain uses for educational and research purposes of Internet and other digital technologies to facilitate technology-enhanced learning, inter-library loans, the delivery of educational material and access to publicly available material on the Internet;

(d) permit certain uses of copyright material for private purposes; and

(e) amend provisions of the Act relating to photographs to give photographers the same rights as other creators.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Motions in AmendmentCopyright Modernization ActGovernment Orders

May 14th, 2012 / 12:50 p.m.
See context

NDP

Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, I am very proud today to rise on behalf of the New Democratic Party at this stage of Bill C-11 and as we are dealing with the amendments. There is probably not an issue I have spoken to more than the issue of copyright.

Since 2004, when Jack Layton was the new leader, we have been identifying the need to modernize Canada's Copyright Act. For the New Democratic Party, it is a fundamental pillar, creating a modern 21st century digital economy. We understand how having good copyright is essential for the creation of artists, for ensuring that we have a good and solid Canadian industry for arts and creation but also for innovation and that we can use this to leverage ourselves internationally.

I listened to the Minister of Canadian Heritage when he talked about the openness of the government. I think the reality will show it is a bit different. The government's first bill, Bill C-61, was literally a dog's breakfast. It died the day the government brought it forward because it was such a mishmash and it was so poorly thought out.

The government then brought out the following bill that ended becoming Bill C-11. There were elements about the bill that were much improved over the previous legislation and, for us, we came at this issue to improve the bill. We had heard from many groups that felt that the bill was still fundamentally flawed and could not be supported. However, our position was that we would rather have copyright than go back to square one, that we needed to find a mechanism to update the copyright regime to provide security for Canadian industry, for Canadian artists and for Canadian consumers.

We set out to work with the government but there were a number of serious flaws with the bill that needed to be amended. My hon. colleague for the Conservatives said that this was not an ideological issue. I agree with him. I think this is about making good public policy. The amendments that we brought forward were addressing the serious shortcomings in the bill.

When we talk about copyright, the term has been defined by English common law that “copyright” is the right to make a copy. Under French law it is “droit d'auteur”, the right of the author. These are fundamental principles. The right of the author. The right of the author to remuneration. The right of whoever is making the copy to remuneration. That is the fundamental principle of copyright.

Now it is not an exclusive right. It is not a property right. It is not something that a person just owns, because it is also a public right. Parliaments going back hundreds of years decided that there was a balance between the right of the person who creates the work and the right of citizens to participate in that work. Sometimes the participation in that work is how they take those ideas and change them. This is how art and culture is created. It is a balancing act.

However, what we cannot do at any point is to take a right that existed and erase that right to favour someone else. We cannot say, “You were able to receive remuneration for this part of your right as an author but we don't think that's really a good idea any more”. That is an undermining of the principle of copyright.

How does this all play out n terms of the digital realm that we are in?

There are elements of the bill that we supported. We supported bringing Canada into compliance with WIPO countries. We supported the moral rights of artists. For many years our artist communities have been asking for the moral right to have a say over their work.

Even with the government's mash-up provisions, which garnered some attention, we liked the idea of not criminalizing people for creating all these new elements in the Internet realm, things that we would not even have been able to imagine 15 years ago in copyright law. However, we said that there needed to be a moral right element as well to ensure that what was being created in the new format was not impacting the commercial value in the old.

There are about five clear areas where the government has absolutely failed to listen and failed to move forward.

One is, as my hon. colleague from Davenport talked about, the deliberate decision to create a loophole on the mechanical royalties so that a certain industry does not end up having to pay copyright. We cannot create a loophole so that people do not pay what they are obligated to pay. However, we heard again and again from the Conservative members on committee that they were creating this loophole because they did not think that artists should get paid. That is not what legislation should be used for. We either strike legislation that gives the artist the right to be paid but we do not create a loophole. We heard from the radio industry again and again saying that it was unfair to create this loophole because now it would need to exercise this loophole. It wanted it gone altogether.

That is $20 million erased right off the table for artists. We remain deeply opposed to that.

In terms of the technological protection measures, our colleague from Saanich—Gulf Islands pointed to a whole series of very narrow technical exceptions that her party is bringing forth.

Our overall principle is simple. We support the ability of new industries to use technological protection measures to protect their right to create a market. However, and this is under the WIPO treaty, those technological protection measures do not usurp the legal rights that already exist under legislation. We cannot have two tiers of rights. We cannot have a set of rights in the paper, analog world and a lower set of rights in the digital world. However, the government says again and again, if people do not like it, they should not buy the product, as though it would allow a corporate interest to define the rights that are defined by Parliament.

Rights for exemptions under the breaking of a technological protection measure would be for study, for satire, for research, for innovation. These are very clear, straightforward things, for a purpose that a person has a legal right to access.

This brings me to the third issue, that of people with perceptual disabilities, students who are up against some of the most onerous difficulties in getting an education. Under this bill, they would only be allowed to impair the technology protection measure “if they do not unduly damage it”, as though the government thinks a technological protection measure is some kind of lock, which is okay for an individual to pick and go in, but the individual cannot leave that lock open. We are talking about a complicated piece of software, a code. For a student who is hard of hearing or blind, this provision should have been very simple. Students with perceptual disabilities are not breaking the law to make the print bigger on their Kindle so that they can participate in class.

That is an issue of fundamental fairness. We would not, by allowing that, destroy the market for books or film. Yet students with perceptual disabilities are unfairly implicated to defend this black and white world view the Conservatives have. They talk about copyright being a balancing act. It is a balancing act, but to have a balancing act, we have to understand that there are some nuances, some play.

The other area which deeply concerned us is the impact on education. We will not get into the issues of what is under fair dealing and how that should be remunerated, because that is something that is continually fought in the courts and at the Copyright Board. In the transfer of information that people are using, we have an opportunity in a country as big as Canada to transmit library data, for example, but under the bill, we would be allowed to have the library information for five days and then it somehow would have to disappear in the air. Maybe we would have to burn it, or a technological protection measure would have to be placed on it.

I do not know who thought up that provision. Obviously they have nothing to do with education. For example, I want to get the memoirs of old Mrs. O'Grady who lived in Red Deer and wrote about what it was like to homestead in 1900. The memoirs are in a little library in Alberta and I am studying in Nova Scotia. Now, the library makes a photocopy and ships it to me and I have it for a month to study. That seems fair. However, if the library made a PDF and sent it to me, I would have it for five days and I would have to magically make it go away. That does not make sense. Who does any research within five days?

For legal research or medical research, the fact is that we have great universities and small high schools. Information is being transferred back and forth. Then we have this provision that would give us five days' use. It just does not make sense.

We have shown a willingness. All our amendments were reasonable. The government refused to deal with them. At the end of the day we will not support the bill because it is an unfair attack on the rights of artists and it unfairly impinges on the ability of education and the development of new business models.

We remain willing to work with the government, but it will have to show a little more of what it calls openness when we are talking about moving forward the digital strategy.

February 29th, 2012 / 4:25 p.m.
See context

Counsel, Canadian Consumer Initiative

John Lawford

I think I'll say the opposite and say that consumers are up against TPMs every day. They use their iTunes and they realize that they can't put it on more than five devices because that's what iTunes says they can do with it. They are very familiar with the fact that you can't copy a DVD without breaking a lock, that it's difficult, that you have to go and hunt for software to do so. So I think they are familiar with them.

How do we know whether that's the consumer position? Well, we work in this field every day. We saw the submissions that were made in the consultation between Bill C-61 and Bill C-32. The consumer comments in that, which came straight from the public, we thought were very much in line with the position we've taken today. We haven't had the money to do a survey of consumers on this. We're small organizations with limited budgets.

Copyright Modernization ActGovernment Orders

October 18th, 2011 / 11 a.m.
See context

NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, I am very honoured to rise on behalf of the New Democratic Party today representing the people of the great region of Timmins—James Bay. It is my honour every day to serve them, respect their issues as constituents and bring their concerns into this venerable House of debate and legislation.

Copyright is a crucial issue for Canadians. We need to move forward with a regime of copyright reform that will bring Canada into the 21st century.

The word “copyright”, the right to make a copy, was created out of English common law. I like the alternate emphasis in French law, which is “le droit d'auteur”, the right of the author. These are both very similar perspectives, but there is a different balance in the equilibrium of it. It respects an interesting balance of how we develop culture within Canada in terms of the right to make a copy. Who has the right to make a copy and profit from it? That is a “copy right” that goes back to the book wars of the 1700s and 1800s in England as to who actually could control a work and the right of authors to be remunerated for their work and to have some say as to how their work is exploited.

This is a debate that went on long before the digital age and the Internet. The balance of the right to make a copy is not a property right. It has been argued over the years, and copyright lobbyists today will talk about their property and their right to protect their property. They will say they want to put a lock on the door to keep people from going in or to make them pay to go in, and that it is their property.

However, it is not a piece of property. Creativity is not a piece of personal property. It has been defined in Parliament and the courts.

I refer back to the 1841 debates where Lord Macaulay, who was a writer himself who had been ripped off and plagiarized many times over the years, fought within the English Parliament to separate the idea that it was personal property that copyright was created to protect. Macaulay at that time imitated much of the modern debate. He even talked about the pirates of that generation, the “knaves who take the bread out of the mouths of deserving men”, the people who would unfairly infringe on the copyright of the author and not pay for it as they should.

At the same time, he also called copyright an evil. It is interesting that he said that. He called it a necessary evil. He said that copyright should only exist for a period to ensure the author was paid, but it could not be used to interfere with the larger development of society. He said that the creation of ideas is not something that can be compartmentalized: that when a work is created, it is brought into a larger frame. Parliamentarians around the world have been trying to find the balance between people's right of access to new ideas and the right of remuneration of the creator. Those are the two fundamental balances, and they are the balanced principles that the New Democratic Party has articulated throughout these debates for the last number of years. The two fundamental principles in the digital age are the same as they were back in the 1800s in the book wars: ease of access and the right to remuneration.

We talk about le droit d'auteur and copyright, but this bill does not deal with either of those rights. It is about corporate right, which is different from copyright. The fundamental problems with this bill are the provisions on digital locks, which I will get to in a moment, and the direct attack on the collective licensing regime that has existed for artists in Canada for the last number of decades. The right of artists to have remuneration for their copies is under direct attack in point after point in this bill. I will go through the areas wherein the right of artists to be paid is being taken away and replaced by a false right, which is the right to lock down content.

The Conservatives are good about locks. They understand prisons and locks. We heard the minister say the lock will restore the market. I spent many years in the music industry and I never met an artist could feed his or her family on a lock. They feed their families on the right they have as artists to be remunerated through their mechanical royalties, television rights and book rights, and they fight very hard for mechanical royalties. It is a small amount of return for their efforts, but that return is crucial, so when the government comes along and would strike out, as it does in this bill, the mechanical royalty rights that have been guaranteed under the Copyright Board of Canada, it is depriving artists of the millions of dollars that actually make it possible to carry on the works.

There is no balance there, and this is what we need to restore a good copyright regime in Canada: a balance of the rights of artists and the rights of access.

The New Democratic Party has spoken out time after time in this House on the need for a long-term digital strategy so that Canadians can fully participate as digital citizens in a digital public commons. A public commons is a place where people, not just from Canada but from around the world, can exchange ideas and art.

It is certainly fraught with many problems. We have seen that with downloading and with piracy, but it is essential for cultural development in the 21st century that Canada have a long-term digital strategy. We in the New Democratic Party see the need to codify net neutrality so that the large telecom giants and BDUs are not deciding for us what kind of content we can access.

We see establishing a national benchmark for broadband access, including in this latest spectrum auction. What provisions are there to ensure that the regions of rural Quebec and northern Alberta are given the same chance to develop in a digital economy as downtown Montreal or Vancouver? A broadband strategy that looks at the totality of our country is essential. This is the new national dream that we need to be pushing. We have heard dead silence over on the government benches in terms of a digital strategy for broadband, but for the New Democratic Party it is essential. We want to see within the programs of the Canadian government support for the enhancement of digital cultural products, because more products are moving away from the old models. Those old models worked well for us in the 1970s, but this is 2011, and we need to move toward that.

The other crucial element, which we have asked for again and again, is a copyright reform that will address the needs of Canadian consumers, artists and students in a digital realm.

Does this bill do that? No. In its present form, it does not.

What we need to do is to restore the balance. As it stands now, we cannot support this bill, but we are willing to work with the Conservative government to get this bill to committee. If we can make the vital technical changes to ensure that balance, then we are more than willing to bring our efforts as a party and to work with the government to ensure that this bill restores the balance.

I will grant that the government made efforts in Bill C-61, which was a dog's breakfast. Bill C-61 died as soon as it was born because it was the ugliest child of the backroom lobbyists, and they could never sell that publicly. Bill C-32 shows that it is obvious the Conservatives heard there were problems with Bill C-61, but we are not there yet. We have to see whether or not the government is willing to move forward.

I would like to talk about some of the major problems with this bill. There are three areas that are fundamentally flawed: the issue of the attack on collective licensing and the removal of artists' rights to be remunerated for their work, the issue of education, and the issue of digital locks.

I asked my hon. colleague, the heritage minister, about the fundamental problem with the education provisions, which is if students in Fort Albany on the James Bay coast want to take a college course, they would be obliged to burn their class notes after 30 days. As well, college professors who were teaching long-distance education courses to students in northern Canada would have to destroy all their class notes after 30 days because that is an infringement on copyright.

That requirement would mean the creation of a modern book-burning regime. As well, we would see the creation of a two-tier set of rights. There is one set of rights in the analog and paper world that would allow students going to school in Toronto to keep their class notes. Those class notes are important, because year after year students keep them to build a body of work towards getting their degree. However, students on a northern reserve trying to get long-distance learning do not have that same set of rights. They have a lesser set of rights.

I was absolutely shocked to hear from my hon. colleague, the heritage minister, where this crazy idea of modern book-burning had come from, this idea that after 30 days students would not have the right to their own class notes. He said it had come from the ministers of education.

I have met with the ministers of education many times, as well as people throughout the education sector, and I have never heard anyone say that the best idea for the digital development of Canadians is to make kids or adults going back to school burn their notes after 30 days.

That provision is unacceptable. It is backward thinking and it is needless. It is not protecting any business model, but it would have a major detrimental effect, so in terms of education, that provision has to go.

In terms of the digital locks, there is an important right of creators to protect their work. We can think of the amazing work of the gaming industry in Canada, particularly in Montreal, and the millions of dollars that have been invested in creating the games that people all over the world play. We want to make sure those products are not ripped off in their entirety and that business model made to disappear, so there is a provision for digital locks to protect those works.

However, the digital lock cannot override the rights that Parliament guarantees.

This legislation is going to create certain rights. An example is the right to extract the work for satire, parody, or political commentary. We all support that right, yet if there is a digital lock, we would not have that right. We have the right to access a work and move it into a new format; we are told we can do that, but if there is a digital lock on it, we cannot.

My colleague, the heritage minister, said that if we do not like the lock, then we do not have to buy the product. That is kind of a bullish way of talking. I wonder if this guy has lived in the digital world at all. How many times do people buy a product in a store? They will get it online, so if we make restrictive provisions with digital locks, people will just bypass them. That is problematic.

It is important that Canadians believe in the copyright regime, because the copyright regime is fundamental to creating a strong economy and a strong creative community. However, I would say there is not a six-year-old kid in this country who does not know how to break a digital lock, and people would break them with impunity. Should they be criminalized for that? I do not think so.

We need to look at why Canada is putting restrictive digital lock provisions in place. Under the U.S. DMCA, which is the most backward-looking copyright legislation on the planet, even the Americans have recognized the right to extract certain works.

I will give an example to show just how boneheaded the digital lock provisions are. If a journalist on the evening news wanted to show an excerpt from a movie that was being discussed or debated, the journalist would not be able to show that excerpt because he or she would have to break the digital lock to do it. The journalist would have to show a picture of the screen. Can anyone explain to me how having a shot of the screen somehow protects the copyright and the artist when a journalist is trying to extract it for a program?

It is the same with the documentary film producers. The documentary film community is very concerned about the digital lock provisions, because they would impede their ability to extract, which is their legal right under the bill. They have all those legal rights, but if a digital lock is placed on it, they would no longer have those rights.

The government is saying that the legislation of Canada should allow U.S. multinational corporate interests to decide what rights we have. If they decide we have no rights, then we have no rights. It does not matter what the bill says or what the House of Commons says; the government is saying that it would hand over all those rights to corporate interests. That is fundamentally wrong, and it is flawed.

It is also flawed in terms of our obligations under the WIPO treaties. We are signatories to international conventions about intellectual property and we can look at how other countries have dealt with the digital lock provisions. In particular, as I said earlier, sections 10 and 11 of the WIPO copyright treaty states clearly that limitations to technological protection measures may be supported as long as they “do not conflict with a normal exploitation of the work”. That is within the WIPO treaty.

I remember that my Conservative colleagues used to always say that they had to put the digital lock provisions on to be WIPO compliant. However, WIPO itself is saying that countries could decide what those exemptions and limitations are, the limitations being the technological protection measures and the exemptions being the rights that consumers and students should be able to employ.

All those rights are erased under this, so it actually puts us at a disadvantage in comparison to many of our European competitors, which have much more nuanced provisions when it comes to the digital lock provisions.

As it stands now, we have asked a fairly straightforward question on whether the government would be willing to work with us to amend the digital lock provisions to ensure that the normal rights that Canadians should legally be able to access would not be overridden by corporate rights. It has said no. Unless the digital lock provisions change, the New Democratic Party will not support the bill because it is not balanced.

We need to change the education provisions. We need to change the digital lock provisions. We also need to change the issue that the bill, time and time again, attacks the existing collective royalty rights of Canadian artists and that will not build the kind of cultural regime that we need in our country.

We have come through some of the most bizarre copyright wars of recent memory. In the United States we have seen the $30,000 to $50,000-plus lawsuits against kids. The large Sony, Warner, EMI companies are going after kids who download Hannah Montana songs, hitting them up with million dollar lawsuits. We have seen what is called the John Doe mass lawsuits, extending across the United States and moving into Canada, if individuals downloaded the movie Hurt Locker. Mass emails are being sent, suing people based on their IP addresses.

That model of attacking consumers is probably the most dead-end business model on the planet. I was so pleased to hear Canadian artists, all the great Canadian groups that came together under the Creative Music Coalition, say that they did not sue their fans, that their fans were what made them survive. The American model of suing kids, grandmothers and even dead people for copyright infringement is a dead-end model.

We have heard all this talk about piracy and the pirate bays. It is interesting that the very first pirate bay was in Los Angeles. We think Hollywood is the natural place to make movies, but it is not. Why, in God's name, when the vast majority of the U.S. population lives on the eastern seaboard, would filmmakers go to the dessert outside Hollywood to make films? It was because they were escaping the copyright rules of the day. They could not make movies in the eastern United States because Edison controlled the copyright on the camera. However, there was not the same copyright rules in California, so Hollywood was the original pirate bay.

It went on through the years when the VHS came out. Jack Valenti, the defender of the Hollywood industry, called the VHS the Boston strangler of movies and begged Congress to shut it down, to make it illegal because VHS was a threat.

The big pirate company at that time was Sony, which is suing people all over the planet for corporate infringement now, because it had created the VHS player with the record button.

At that time there was a big corporate fight and everybody said that the VHS would destroy Hollywood. However, as you know, Madam Speaker, and you are very young but you were probably right in your prime when the VHS came out, people started to rent movies, something they would never have thought about before because they would go to the theatre. Now they were able to rent movies, so this pirate activity, which Hollywood tried to shut down, became such a lucrative new business that it did not have to bother releasing movies to theatres. It could just release it to VHS and eventually on to DVD.

Copyright Modernization ActGovernment Orders

October 18th, 2011 / 10:45 a.m.
See context

Port Moody—Westwood—Port Coquitlam B.C.

Conservative

James Moore ConservativeMinister of Canadian Heritage and Official Languages

Madam Speaker, I am very pleased to be here with the Minister of Industry. I should also certainly give a great deal of thanks to the President of the Treasury Board for the work that he did on Bill C-32, which was last Parliament's version of Bill C-11, which we are debating today.

As the Minister of Industry said, the bill contains a number of provisions that Canadians, I think, will welcome and are welcoming. The bill contains provisions that will provide the ability of copyright owners to control the uses of their works to fight online piracy. This is about individual creators and creative industries, like the video game industry, the software industry, the movie industry, and others. It is having the tools to protect their art, their businesses and their jobs.

For example, the bill includes provisions to protect the technological protection measures and authorizes copyright holders to sue those who enable copyright infringement through such means as illegal peer-to-peer file sharing sites. Our government knows that the best way to deal with online copyright violation is to target those who enable this crime and profit from it.

More specifically, Bill C-11 introduces a new definition of civil liability for those who knowingly enable online copyright violation. Online piracy takes revenues away from creators and reduces the incentive to create. This measure sends a clear message that Canada is prohibiting piracy sites and giving copyright holders the tools to protect their activities. What is more, the bill also introduces new provisions to stop those who develop and sell tools and services for getting around technological protection measures.

Canada is among the first jurisdictions in the world, if not the first, to provide its copyright legislation with this very important tool to fight online piracy. At the same time, we are taking steps to ensure that Canadians are aware that they may be infringing copyright. Canadian Internet service providers have developed a unique model in which they tell subscribers when a rights holder notifies them that a subscriber has infringed on copyright material. This is known as notice and notice. The bill formalizes this practice into law. I would just point out here that this is one of the key elements that consumers have come to us and said they want as part of the bill.

We disagree with the American approach with regard to copyright. We have a notice and notice regime in our legislation, not a notice and take down regime as they have in the United States, for very good reason. These provisions are also on top of a wide array of legal protections already provided for in the Copyright Act that rights holders can use to assert their rights.

Educators, students, artists, companies, consumers, families, copyright holders and Canadians in general use technology in a number of different ways, and this bill simply recognizes that reality. It gives creators and copyright holders the necessary tools to protect their works, their investments, and to develop their business through innovative business models. It establishes clearer rules that will allow Canadians to fully participate in the digital economy today and in the future. More specifically, this bill gives creators and copyright holders the tools they absolutely need.

With this legislation Canadians will also be able to create new works incorporating existing publishing or publicly available works, as long as it is done for non-commercial purposes, as my colleague has said. The new user generated content cannot be a substitute for the original work or have the substantial negative impacts on the markets of the original material or on a creator's reputation.

Canadians with perceptual disabilities will be permitted to adapt legally acquired material to a format that they can easily use. Also, Canadian photographers will benefit from the same authorship rights as creators. Currently, photographers are not considered authors of commissioned works. This legislation changes that.

Consumers and users of content will also see their interests reflected in the bill. Canadians will be allowed to record television, radio and Internet programs to enjoy at their time and choosing with no restrictions as to the device or technology chosen or the time of day.

Under certain conditions, Canadians will also be able to copy for their personal use legally acquired works such as music, movies or other works, on the device or component of their choice. They will be able to make backup copies in the format and on the device or component of their choice.

I would like to close my speech by ensuring the House understands that this was, from the very beginning of the process that we initiated just prior to the summer of 2009, a good faith effort on the part of our government to get copyright legislation done effectively.

The member for Timmins—James Bay was engaged in debate on Bill C-61 when we tabled that legislation. Bill C-61, as it turned out, was not the balance that Canadians were looking for. We think this legislation achieves the balance that Canadians have come to expect. We tabled Bill C-61, there was the fall campaign, and then we came back.

We re-engaged Canadians from the beginning. We went back to square one. We did unprecedented consultation on this legislation. We heard from thousands of Canadians in the process. We went across the country to town halls and we did open, online consultation. We arrived at Bill C-32.

As a result of the participation of thousands of Canadians in that process, we thought we would respect that process--

February 15th, 2011 / 12:45 p.m.
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Communication and Policy Coordinator, Canadian Federation of Students

Noah Stewart

Yes, certainly I think this is one of several provisions that's out of touch with the reality of learning in modern post-secondary education. I think you're right; in many cases students who are using these works will not have run the ambit of uses they need within five days. When you think that a course will often last 120 days, 90 days, they are working with tools throughout that.

I think it's similar to another worrying provision, as mentioned by my colleague, in proposed section 30.01, where for the digital delivery of lessons for online learning, for e-learning, there's a provision that requires that within 30 days of the close of a course, all course materials be destroyed. This is both by the students who are using the materials and the already overworked teachers who have spent many hours preparing the course, preparing their lectures. All materials must be destroyed.

Both these provisions, I think, go to a fundamental lack of understanding of how learning occurs in the academy. The students don't simply take a course. Students don't simply write a paper and then move on to the next course and never think about it again. If you think about a biology student, they take a first-year organic chemistry class, then they take a second-year organic chemistry class, then a third-year. They need to be able to continue to access materials for their courses. They need to be able to take the language that they've used and continue to use it.

I think in the case of interlibrary loans, this is a provision that, for one, would be very hard to enforce. The Canadian Library Association in the last round of copyright reform with Bill C-61 said there was no possible way that they have the resources to enforce this kind of thing.

It also shifts the role, fundamentally, of librarians from being people who are there to assist learning, to facilitate learning, to facilitate education, to being copyright police, and I think that also sets a somewhat worrying precedent. I think that's also something that's very undesirable in the modern institution.

I think more than anything else these kinds of clauses are simply unnecessary. There isn't a problem right now that we have rabid students, foaming at the mouth, just waiting to get their hands on every work in the library so they can copy them and put them on the Internet. I think that's simply not the reality.

February 15th, 2011 / 9:30 a.m.
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Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual

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.

December 8th, 2010 / 4:50 p.m.
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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.

November 25th, 2010 / 10:40 a.m.
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Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage

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.

November 17th, 2010 / 6:30 p.m.
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Peterborough Ontario

Conservative

Dean Del Mastro ConservativeParliamentary Secretary to the Minister of Canadian Heritage

Madam Speaker, I will do my best to provide an answer for that statement as factually as I can.

To begin with, the Minister of Canadian Heritage and Official Languages is not in the House. That is the first answer I would provide, but the Minister of Canadian Heritage and Official Languages is most certainly on board with updating the Copyright Act.

Bill C-32 is an outstanding bill. While it may need some technical amendments, upon which we have consulted with some groups, let us face it. We have the basic tenets of the bill right.

What is so important to the constituent who has just been cited by the hon. member is that we will actually put a system in place again whereby a creator who creates a piece of music, video or intellectual property can sell it, rather than have it stolen or compromised over the Internet.

It was mentioned to me the other day that Canada is the number one location in the world for Bit Torrent sites. Why is this happening? It is happening because we need to update the Copyright Act. Unless members like this get on board, frankly, we will have a difficult time doing that. The hon. member would prefer to favour a system whereby we would put a tax on devices, an iPod tax, a digital tax or something like that, rather than actually tackle the problem. The problem is that the Copyright Act is out of date.

Furthermore, in the statement it was indicated that Bill C-32 is just Bill C-61. Actually, I worked on Bill C-32 and there are a lot of differences between Bill C-32 and Bill C-61. I thought Bill C-61 was a good bill, but Bill C-32 is a much better bill and corrects some of the shortfalls in Bill C-61.

I can also say to the hon. member that we have been told by groups from across the country that this bill does strike the appropriate balance. In fact, I would argue that she should actually speak to her constituents and indicate to them what she is lobbying for, and in fact she has asked the same question many times. What they are actually looking for she refers to as a levy, but my constituents will not see it as a levy. It will be as much as $28 per device, which is what ACTRA has indicated to me when they met with me the other day. It would be added on to digital devices. That is what they would request at the copyright collective. On top of that $28, which would be arbitrarily added to the price of every single digital device, we would then also pay sales taxes in the various jurisdictions, so it becomes even more.

People at home are asking why we are taxing technology. Why would we want to put a tax on technology? They want us to just make the system work. If people want music, they will buy it.

What we want to do is shut down the sites that are allowing people to obtain these works illegally, music, movies or whatever. We want to shut down illegal file-sharing.

At the same time, we will allow for format-shifting, so if people buy CDs and want to format-shift them on to their digital device, their BlackBerry, their iPod, their laptop, their home computer or whatever the case may be, we will allow that. Bill C-32 is entirely technologically neutral. It allows for a review every five years, and it is in the interest of all Canadians. An iPod tax is not in the interest of all Canadians.

Copyright Modernization ActGovernment Orders

November 3rd, 2010 / 5:35 p.m.
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NDP

Glenn Thibeault NDP Sudbury, ON

Mr. Speaker, I am pleased to rise today to speak to Bill C-32, An Act to amend the Copyright Act.

I, for one, am a strong advocate of reforming Canada's copyright regulations in order to modernize them and ultimately align them with the realities of the 21st century. Yet, despite my belief that Canada is in dire need of a modernized, intellectual property rights regime, the bill fails to realistically address what is needed.

The government has stated that its aim in updating the Copyright Act is not to punish individual users but rather to focus its deterrence and enforcement efforts on distributors and large websites that illegally host copyrighted content.

The first thing we need to know about creating balanced copyright is that we need to engage all the players. Bill C-61, the government's initial attempt at reforming copyright law in Canada was legislation that was so badly constructed it had to be dropped as soon as it was announced. The Conservatives were forced back to the drawing board, so here we are, after another two years of waiting. Unfortunately, they still have not got the message. The lack of thorough consultation has left major questions about the impacts of the bill.

Specifically, whether the bill will achieve the intended objectives is a subject of debate among the various stakeholders affected by copyright reform, including authors, artists, musicians, record labels, book publishers, collective societies, libraries, museums, school associations, software developers, retailers and consumers.

The lack of thorough consultation with independent stakeholders, such as those mentioned above, is troubling, considering the same problem plagued the bill's predecessor. It all seems to me that there needs to be a consensus-building process which takes into account the concerns of all stakeholders in order to wholly legitimatize the regulatory framework being proposed.

On a different note, it is my opinion that the scope of the bill strongly misses the mark through its heightened focus on individual consumers as opposed to going after the more heinous commercial pirates who profit monetarily off the intellectual property of others.

There are two key problems with the Conservative approach to copyright. The first problem is that the rights that are offered in terms of the fair dealing, mashup and parity exemptions can be overridden by the heavy, legal protections being put in place by digital locks.

Under Bill C-32, it is illegal to break a digital lock, even if that lock prevents us from accessing material that we would otherwise be legally entitled to access. In fact, it treats breaking of digital locks for personal use the same as if the lock were being broken for commercial counterfeit.

We oppose the criminalization of consumers, which this aspect of Bill C-32 represents. The government needs to re-evaluate its stance on copyright reform in order to properly address the current realities of the 21st century. Criminalizing hundreds of thousands of individual consumers for simply digitizing their music for personal consumption fails in this regard. We need to focus on commercial piracy, not individual consumption.

I happen to have a seven-year-old daughter who is a huge Hannah Montana and Jonas Brothers fan. We must buy as many Jonas Brothers and Hannah Montana movies and music as we possibly can in my household. I can rhyme off Hannah Montana songs. I am sure many other MPs who have young children could do the same thing. I will not sing one for the House. I do not want to embarrass myself that badly because I am not a great singer. My daughter has a CD collection but we cannot find CD players, so we need to put those on to our MP3 player. Under the bill, my seven-year-old daughter is now breaking the law.

We need to ensure that we are not criminalizing the consumers. The approach the Conservative government is taking goes far beyond the norms adopted by many of the World Intellectual Property Organization countries, or WIPO. In terms of copyright reform, we have been consistent. We support the fundamental principle of remunerating creators for their content. We have consistently called on the government to bring the WIPO treaty into the House to be ratified. If the government had taken this advice, it would have alleviated a great deal of international pressure and given us the space to create a truly made in Canada approach to digital copyright issues.

The Conservatives had five years to address issues in WIPO, and stalled on the WIPO ratification. Instead, their first run at copyright was constructed entirely behind closed doors and read like a wish list for the U.S. corporate lobby.

The second serious problem with the bill is that a number of previous revenue streams for artist organizations appear to be undermined through exemptions and changes. The most notable of these is the government's decision not to extend the private copying levy on CDs to music-playing devices. This fails to address the reality that more and more consumers are choosing to purchase intellectual property through non-traditional means such as digital music files. The levy worked on cassettes. It worked on writable CDs. However, if it is not updated for MP3 players, the levy will die.

The New Democrats put forward Bill C-499 to update the levy on devices marketed specifically as music players and recorders. The Conservatives have misrepresented this levy. They have used it as a straw man for their mailings attacks in our ridings. They have made up figures for the cost of the levy and have denounced copyright licensing as a killer tax.

Let us see what the national media have to say about this attack on the remuneration of artists. The Edmonton Journal said that the NDP offered a perfectly reasonable compromise, but that the industry minister misrepresented its contents on a bill that is thoughtful and upholds the basic Canadian values of straight dealing.

The National Post was even blunter, saying:

...the government's nonsensical, “Boo! Hiss! No new taxes!” response … is just dumb...

This is the National Post we are talking about, definitely not a progressive bastion that routinely calls for more expansive powers in taxation and regulation. Even this newspaper has shown a willingness to confront the real issues. Why has the government not come to its senses on this matter?

The widespread use of iPods, iPads, and MP3 players, as well as the emergence of products like Kindle, serves as an excellent example of the changing nature of consumption in a technology-driven environment. We must address this gap to ensure that Canada's intellectual property regime is appropriate for the ever-changing technological landscape.

The most obvious criticism that can be made of Bill C-32 is that it fails to address the realities presented to us by 21st-century technology. The fact is that no amount of legislation or legal action will force consumers to return to the business models of the 1990s. The emergence of the digital economy has changed the dynamics of intellectual property. The digital economy is not going away. We need to recognize this. We are attempting to rectify 21st-century problems with 20th-century solutions. Let us be clear. An intellectual property regime designed for the dynamics of the 1990s is not the best means for dealing with the issues of commercial piracy, which is really where our energies need to be focused.

Over the past 20-odd years, technological innovation has led to massive and abrupt changes in the way Canadians live their daily lives. Whether it is the way we get the news, or the way we do our banking, or pay our bills, technology has dramatically altered our consumption habits. Instituting a regulatory regime that fails to observe the significance of the transition to an information technology and e-commerce paradigm will only lead to further failure in distinguishing between commercial piracy and legitimate consumer uses.

Nowhere is this folly more clear than in the United States, with its digital millennium copyright act. The U.S. entertainment industry has used legislation in courts to lock down content and criminalize consumers. The result has been a scorched earth policy waged by the recording industry of America against its own consumers. After more than 35,000 lawsuits against kids, single moms, and even dead people, the digital genie has not been put back in the bottle. The market has simply moved on.

Does this mean that digital technology has trumped the traditional right of creators to be compensated? Certainly not. New markets and new models are emerging. The difficulty is to find the best way to update copyright to meet these challenges. We have a unique opportunity to develop legislation that looks forward rather than back. That is why it was unfortunate to hear the Minister of Canadian Heritage denounce citizens' legitimate questions about the bill as digital extremism.

If copyright reform is to succeed, the government must move beyond the rhetoric of a self-defeating culture war. The choice is really about whether we support regressive or progressive copyright. Regressive copyright tries to limit, control, or punish users of creative works. Regressive copyright is self-defeating, because the public will ultimately find ways to access these works.

Progressive copyright, on the other hand, is based on two clear principles: remuneration and access. The digital age has shown us that consumers of artistic works want to be able to access these works. The Internet is not a threat; it is an amazing distribution format. As legislators, artists, and technological innovators, we need to find the monetizing streams in this new distributing culture.

This balanced approach represents the mainstream of Canadian copyright opinion. I refer the House to the judgment in the case of Théberge v. Gallerie d'Art du Petit Champlain inc. The Supreme Court stated that copyright's purpose was to strike a balance between promoting the public interest in the encouragement and dissemination of works of art and intellect, and obtaining a just reward for the creator.

There is a public interest in the access and dissemination of works and a public interest in obtaining a just reward for the creator.

The New Democratic Party's position on copyright is based on the principles of compensation and access. Artists need to be paid for their work, and consumers should be able to access these works with a minimum of restrictions.

The New Democrat position is that we support collective licensing and fair access to educational materials. For example, under the bill, digital lessons for long-distance learning must be destroyed within 30 days of the completion of a course. This would treat students in digital learning environments as second-class citizens and would undermine new learning opportunities.

Specifically, under Bill C-32, students who take long-distance courses would be forced to destroy their class notes after 30 days, and teachers would be forced to destroy their on-line class plans after every semester. This is the digital equivalent of telling universities to burn their textbooks at the end of every session.

What kind of government would force students engaged in digital learning to burn their class notes? No writer gets compensated and no student benefits. This provision shows just how badly out of whack the government is when it comes to understanding the importance of digital education.

In my great riding of Sudbury, we have three fantastic post-secondary institutions: Laurentian University, Cambrian College, and Collège Boréal. All three of these post-secondary institutions offer distance education and distance learning. We want to ensure that this continues, because it is a great way for students in the vastness of northern Ontario to get the education they need.

All this is particularly troubling for me as an MP from northern Ontario. Our country contains many remote areas, and we should be encouraging distance and online education, since course offerings of this type are often the only way for Canada's rural residents to gain access to quality higher education.

We should not be discouraging these types of educational regimes with unduly burdensome regulations prescribing how long a digital lesson can be held.

It is therefore my hope that all parties will be able to reconcile their differences so that we can provide Canadian artists, performers, writers, and the cultural community as a whole with the intellectual property rights protection they deserve, while ensuring that the new regulatory regime respects the changing nature of individual consumption in the 21st century.

Copyright Modernization ActGovernment Orders

November 2nd, 2010 / 4:40 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, I am very pleased to rise today to speak to Bill C-32. I listened to a lot of very good presentations today regarding this very important bill.

At the outset I would like to say, following up on the previous member who spoke and the NDP critic who spoke to the bill this morning, that members of the NDP will certainly be supporting this bill going to committee. We support it in principle. It is a outstanding issue that has to be dealt with by Parliament.

In many ways, I hope it follows the route of Bill C-11, the immigration bill, which basically proved to be successful at the end of the day with the help of all four parties in the House. We have the potential to follow that route with this bill. Some of the concerns that were raised today by the NDP critic in debate were responded to by the minister of the government.

It appears to me that there certainly seems to be an interest on the government's part in working with the NDP critic and our party, and I believe, the other parties as well, to try to work out perhaps even an all-party agreement on this legislation. I really do not feel that we are that far apart.

Speaker after speaker has concentrated on really, more or less, the same issues. Some issues were not addressed, but by and large, the same issues came up over and over again. So it is incumbent upon the government in committee to resolve those issues, and perhaps before Christmas, Parliament will have a second successful bill as opposed to having it end up not going anywhere.

The government has certainly had ample experience over the last five years with bills it proposed going nowhere because it is in a minority situation and knows that all it takes is for it to bring forward a bill that the opposition does not agree with and the bill will not be successful. That is really the end of its effort.

I recognize that we have only 20 minutes to discuss this matter and I do not know that it will be sufficient. Nevertheless I want to deal with some of the issues involving Bill C-32.

Canada's technological community has long been calling for a major overhaul of the Copyright Act to bring fair and balanced copyright legislation to this country. The act has not been reviewed since 1997. I think back to those days 13 years ago and realize how the technologies have changed during that period. It is tremendous.

John Manley was the minister and Jean Chrétien was the prime minister in a majority government. How and why the Liberal government of the day, a sort of command style government with an absolute majority, could not get this job done seems a bit surprising to me. Nevertheless it did not do it. That might be indicative of how controversial it actually is and how many players are involved.

I recall a number of years ago, in 2000, when I was involved in putting together Bill 31 in Manitoba, the province's Electronic Commerce and Information Act. That was internal to the government. We had to sit down with four or five government departments that were dealing with electronic issues. The Uniform Law Conference had a template that we could follow. Just trying to get those silos, those departments within a provincial government, onside proved to be fairly difficult, although we did get the job done.

In this case, it goes way beyond the government, because we are dealing with many competing forces within the country itself. The Liberal critic pointed out this morning how substantial this area is in Canada in terms of jobs and employment and the large part of the economy that is involved.

The Conservatives' copyright modernization act seeks to enact long overdue changes that would bring Canada in line with advances in technology and current international standards. At the rate we are going and with the technology changing, we are never going to catch up unless we get this job done now.

The issue is highly complex. It features competing demands from stakeholders and the artistic, academic, business, technology, consumer rights and communities. We have heard conflicting views from a number of them even today. However, it is a top priority and a multi-faceted issue that the government must take on if it wants Canada to be a competitive player in our increasingly technology-reliant world.

When Canada signed onto the World Intellectual Property Organization, or WIPO, Internet treaties in 1997, 13 years ago, it committed then to modernize its copyright legislation. Before Bill C-32, two other attempts were made to enact legislation that would achieve the goal, most notably in 2008 when the Conservative government brought forward Bill C-61 and that bill was met with widespread opposition. It died when Parliament prorogued in 2008.

Bill C-32 is designed to be technology neutral, which is a very good way to deal with it, because if we do not do that we will be dealing with technology referencing typewriters or old technology from many years past. Taken forward to the future, 20 years from now people will not be understanding the type of technology that we are dealing with in the bill right now. So we have gone to a technology-neutral position that applies across a broad range of devices and technologies with a view of ensuring adaptability to a constantly evolving technology environment.

During the summer of 2009, as the minister referenced, Industry Canada held a series of nationwide consultations on copyrights, soliciting input from Canadian consumers, industry experts and content developers. During the consultations, the most discussed and most contentious issue was digital rights management, including the digital locks, which has been talked about by many speakers today, anti-circumvention measures and TPMs, or technological protection measures.

User rights advocates made it clear that they wanted to see the government expand the fair dealing provisions in the Copyright Act and provide more exceptions for consumers. In Canada, fair dealing as defined by the Copyright Act is more restrictive than the fair use provisions in the United States, particularly with regard to education and teaching. It refers to uses of content that are considered valid defences to copyright infringement, such as for purposes of criticism and review, news reporting or educational use.

While user rights appear to have been taken into some consideration in drafting the bill, Bill C-32 is fairly heavily weighted in favour of the rights of content owners. I reference Sony, Hollywood studios and so on and have asked the question about the influence of the Hollywood lobby, the American political lobby on the Canadian government to come up with a solution that they basically approve of.

The Conservatives laugh and say it has taken six years and obviously they are not responding to any pressure because had they responded to pressure they would have done this a long time ago. What matters here is that the American government and American business interests want to see a piece of legislation that fits in with their legislation, because they see this as a continental market. I have explained before that of the 88 countries that have approved the WIPO Internet agreements, only half of them follow the American model. The other half have a lesser approach than the American system of supporting digital locks.

The government tries to bamboozle us by telling us that we have to give industry the digital lock provisions because we are following the United States, following WIPO.

However, half the countries that have approved and ratified these agreements are not following the digital lock procedures the way the Americans are. Let us understand that from the beginning. We do not have to go holus-bolus, cap in hand, following on the trail of the Americans, contrary to what the government would like us to believe.

The government has stated that its aim in updating the Copyright Act is not to punish individual users, but rather to focus its deterrence and enforcement efforts on distributors and large websites that illegally host copyrighted content. Of course we agree with that. No party in this House wants to be causing grief to the citizens of Canada. There is no question about that at all.

The copyright modernization bill contains three broad categories of changes that Internet and e-commerce law expert Michael Geist termed sector-specific reforms, compromise provisions, and no-compromise rules regarding the DRMs.

The sector-specific reforms are designed to appeal to a wide cross-section of Canadians and include measures that extend the term of copyright for performers and producers to 50 years from the time of publication of a musical performance. They also create a new "making available" right in accordance with the WIPO treaties. This measure will give copyright owners exclusive control over how their content is made available on the Internet.

It also introduces a mandatory review of the Copyright Act, to take place every five years. It is important to have a mandatory review every five years. Even though the bill itself is technologically neutral, things may change in five years, and it is important that we have the ability to require the government to do a review after that point.

Bill C-32's compromise provisions will formally enshrine commonplace grey-area practices that enable users to record TV programs for later viewing, as long as they do not compile a library of recorded content. That is called time-shifting. I know that some people are not going to be happy with this. There are people who like to use their PVRs to copy programs and want to be able to make copies of those and record them. But they are not going to allow people to compile a library of recorded content.

The provisions regarding transferring songs from CDs to MP3 players, called format-shifting, and making backup copies create new limited exceptions to the fair- dealing provision of the Copyright Act. These include exceptions for educators and exceptions for parody and satire, which Canadian artists have been asking for. Bill C-32's compromise provisions will create an exception for content creators that would enable the circumvention of DRMs for the express purpose of reverse engineering for encryption research, security testing, perceptual disability, and software interoperability.

It would also introduce a new YouTube exception that would allow Canadian users to compile clips of copyrighted works into a remix work, as long as it is not created for commercial purposes.

I also want to point out that no one here today has mentioned that this legislation will also give photographers, for the first time, the same rights as other creators. I listened for that all day long and I did not hear anyone mention it. Photographers should be happy, because for the very first time in the history in Canada they will be given the same rights as other creators.

Bill C-32 also creates a new exception for broadcasters to allow them to copy music for their operations.

In addition, it creates a carve-out for network locks on cellphones. This is another one that I think is going to be popular. One of our members actually introduced a bill regarding cellphones, but understand that we are talking about network locks on cellphones. Right now we are stuck with a network when we buy a cellphone. The locks are going to be taken away, and Canadians are going to have the right to unlock their phones. I think people are going to be happy with that if they want to switch carriers, as long as they abide by the providers' contract terms when they make the switch.

There is also a reduction of statutory damages from a maximum fine of $20,000 per copyrighted work to a one-time maximum penalty of $5,000 in situations where copyrighted works have been illegally accessed for non-commercial purposes.

The government touts this reduction of penalties as a progressive, positive change. However, if we read Michael Geist's work, he argues that this is not going to be the effect, that it is not going to work, that we are creating legislation that is going to produce a lot of litigation.

Our critic mentioned that artists have better things to do with their time than hire lawyers. Therefore, the bill is going to be good for lawyers. But if we are talking about little artists who are trying to practise their trade, the last thing they are going to want to do is hire lawyers to track down people who are infringing on their copyrights.

Perhaps we have to take another look at the whole issue of the fines. Perhaps we ought not to think that, because we are reducing fines from $20,000 to $5,000, we have solved the problem. Michael Geist, who is a recognized expert in this area, has made a convincing argument that this is not the case.

Finally, the copyright modernization act contains no-compromise provisions that are likely to have a huge impact on the way Canadians obtain, use, and share copyrighted content. These include measures that create powerful new anti-circumvention rights for content owners like Sony and other big companies, as distinct from the creators and the developers, that prevent access to copyrighted works on pain of fines of up to $1 million, or five years in jail. This measure is based directly on the United States' controversial Digital Millennium Copyright Act, the DMCA, and that is one of our criticisms of the bill. The government is slavishly following the American model as opposed to following the 88 countries in the world that are not following the American model, that have separated from the American model, and have gone easier on the digital lock issue.

An immediate result of this provision would be to convince the United States, and particularly its powerful entertainment lobby, that this country is in line with U.S. regulations and is an attractive and secure place to conduct business.

I think that is what it is all about with the Conservative government. It wants to convince the Americans that we are a good, safe market, with the same standards that they have, so that they can come and do business with us. Instead of this, the government should be looking out for our citizens.

The foundational principle of the new bill remains that any time a digital lock is used, whether on books, movies, music, or electronic devices, the lock trumps all rights. So what is the point of giving people all these rights if we simply take them away by making sure that the digital lock trumps all these new rights?

This means that both the existing fair-dealing rights and Bill C-32's new rights all cease to function effectively so long as rights-holders place a digital lock on their content or device. It would also require that, where a digital lock exists, digital copies made for the purposes of self-study self-destruct within five days, and that course materials be destroyed no later than 30 days after the conclusion of a course. What good is that?

We have had speaker after speaker criticize that provision of the bill.

Perhaps I can deal with the remaining points in the question-and-comments period.

Copyright Modernization ActGovernment Orders

November 2nd, 2010 / 3:15 p.m.
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Liberal

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.

Copyright Modernization ActGovernment Orders

November 2nd, 2010 / 3:05 p.m.
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Liberal

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.

Copyright Modernization ActGovernment Orders

November 2nd, 2010 / 12:40 p.m.
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Liberal

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.

Copyright Modernization ActGovernment Orders

November 2nd, 2010 / 11:30 a.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, I am proud to rise today to speak to Bill C-32, which is legislation to update Canada's Copyright Act. I speak as someone who has actually tried to feed my family off copyright as an artist, a writer, a broadcaster, and a publisher.

The New Democratic Party has been clear about its desire to ensure that Canada's copyright regime is updated, and New Democrats place copyright reform at the centre of what must be a much broader innovation agenda for Canada. This includes codifying protection for net neutrality, committing to national benchmarks for broadband access right across rural and northern Canada and into the urban areas, and enhancing our digital cultural programs to ensure that Canadians are able to participate as international citizens within the democratic, culturally vibrant, public commons that is the Internet.

In respect of copyright reform, New Democrats have been consistent. We told the government to bring WIPO into the House and have it ratified. If we had done that, it would have taken some of the international pressure off Canada. We have been telling the government that we fundamentally support the principle of remunerating creators for their content and oppose criminalizing consumers.

The Conservative government had five years to ratify WIPO and bring it before the House, but it stalled. The previous bill was so poorly constructed that it pretty much died the day it was brought in. The first lesson to know about copyright is that it has to be balanced, and getting it balanced requires broad-based consultations with every stakeholder.

Bill C-61 was pretty much ditched as soon as it was brought in and that sent the Conservatives back to the drawing board. Here we are two years later and five years into the government's term.

Unfortunately, I do not think the government has yet gotten the message. We will be more than willing to work with it on addressing problems, but we want a clear understanding from the government that it is willing to work with the other parties to fix this bill.

Many international observers are looking to Canada. They think this is a country that can actually get it right when it comes to copyright. Like every other nation in the world, we are in the midst of unprecedented technological change. What we have seen over the last dozen years is a cultural copyright war that has been played out internationally, and some jurisdictions have gotten the mix wrong.

If we look at the history of copyright, we can see that the push for copyright has always come from technological threat. There are certainly those who are threatened. Some older business models would use copyright to make sure that new, potentially difficult platforms for distribution are stopped from going forward.

What we have learned in Canada from watching other countries trying to bring forward copyright is that no amount of legislation or legal action will force consumers to return to dead business models. Nowhere is this folly more clear than in the United States' Digital Millennium Copyright Act, the DMCA.

The U.S. entertainment industry has used both the courts and legislation to try to criminalize consumers, and the result has been a scorched-earth policy that was waged by the Recording Industry Association of America against its own consumer base. After 35,000-plus lawsuits against kids, single moms, and even dead people, the so-called digital genie has not gone back in the bottle, and it is not going to go back in the bottle.

The one thing I would say to the Conservative government is that, for all of its dumbed-down approach to social policy, it seems to understand that suing kids is not going to be a constructive, long-term solution. That might be one of the only positive results coming from what we have witnessed south of the border.

Does this mean that digital technology has simply trumped the principle of copyright, and endless downloading can simply erase the rights of creators? Certainly not. We need to look at the Internet and digital innovation for what it is. This is an exciting new distribution platform and new models are emerging.

We have the opportunity in Canada to come forward with something that is forward-looking rather than backward-looking. I found it unfortunate this summer when the Minister of Canadian Heritage and Official Languages denounced citizens who questioned the bill as digital extremists. If copyright reform is to succeed, we have to move beyond this self-defeating culture war, because the choice in the end is whether we support regressive or progressive copyright.

Regressive copyright is based on attempting to limit, control, or punish users of creative works. Regressive copyright is ultimately self-defeating, because the public will find ways to access those works.

Progressive copyright, on the other hand, is based on two time-honoured principles: remuneration and access.

The digital age has shown us that consumers of artistic works want to be able to access them how and when they please, and they will do so. To them the Internet is not a threat; it is an amazing vehicle for participation in exciting cultural exchange. The question is, how do we monetize it?

The balanced approach represents the mainstream of Canadian copyright opinion. I refer to the judgment in the case of Théberge v. Galerie d'Art du Petit Champlain inc. The Supreme Court said that the purpose of copyright was to strike “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”.

So the role of copyright is not simply the enforcement of property rights. It is, however, a public construct. That is what copyright is. It ensures that there is public access to artistic works and a public interest in remunerating the creator.

Unfortunately, I do not think Bill C-32 manages to strike this balance. It offers the public a series of rights in the same way a roadside carny offers good odds in a shell game. Attempting to access those rights under the digital lock provisions will prove that none of these rights actually exists. That is fundamentally problematic, because all the rights that are guaranteed in this bill can be erased by a corporate piece of software saying that consumers cannot access the works they have legally purchased.

Support for digital locks exists internationally. I think everyone in this house would agree that digital locks exist to protect a piece of copyrighted material from being stolen, or, as the Minister of Heritage said, from someone ripping it off and putting it on BitTorrent. However, it is another matter to use those digital locks to prevent access for educators or consumers who actually bought a product that they would normally be able to time-shift or format-shift.

As for the remuneration of artists, the other fundamental principle in copyright, this bill consistently undermines the revenue streams that artists have relied on. We can see this in the government's full-on political assault on the private copying levy. The government's attack on the levy is emblematic of its attempt to turn copyright into a political battle in which it gets to rant about taxes and go after them. The government, however, is really going after one of the time-honoured principles that Canadian copyright is based on, which is the remuneration of artists.

Before we get into the fundamental problems of this bill, let us put it in context. Technological change has always driven copyright reform. Music is a very good example. In 1906, John Philip Sousa denounced the threat of mechanical music, which was actually the roller piano. He felt that if people started buying roller pianos they would not need live musicians anymore. I do not know how many people bought a roller piano, but it was not quite the threat they made it out to be.

The Association of American Publishers picked up the threat of technology when the record player appeared. They thought that if there were record players nobody would buy sheet music. Sheet music was actually one of the great copyright-drivers for artists. If people listened to records, they would not have to play the piano in their parlours. This was clearly a case of a new business model threatening an older one.

In 1923, record companies, which had been considered a threat a few years before, suddenly found that they were being threatened themselves, because the radio appeared. The record industry thought that if people listened to music on the radio for free, they would not buy records.

By 1928 it appears their fears may have been realized. Record sales dropped off by about 80%. By 1931, they had dropped off over 90%. I would argue that perhaps some of that had to do with the Depression, but the argument could have been made by record company lobbyists that the appearance of radio had also had an effect.

Were the radio listeners criminalized? Did they put locks on access to radio? No, they learned to monetize radio revenue, and the record industry never looked back until it came across a kid who invented Napster.

Napster was enormously successful, not because the music was free, but because it offered a young generation almost unlimited access and the ability to choose what they wanted when they wanted it.

That was a phenomenal change in how music was accessed. Steve Knopper wrote an excellent book Appetite for Self-Destruction: The Spectacular Crash of the Record Industry in the Digital Age.The recording industry made a fundamental and colossal error when it decided to try to shut down the technology through losses rather than monetizing. At that point, digital music went underground for a number of years, and the market has never quite recovered. I went through this history because I believe it is important to put the issues of digital monetizing and technological change in perspective.

These are some of the fundamental problems with the bill and how it works. We believe that the government has declared war on one of the principles of Canadian copyright, which is collective licensing. To demonstrate this, one does not have to look any further than the government's attack on the levy. The levy was a made in Canada solution that allowed for format-shifting while providing a badly needed stream of revenue to the artists. The levy worked on consensus. It worked on writable CDs. However, when we tried to update it to the MP3, we saw the Conservatives misrepresenting the levy, misrepresenting the costs. They have used it as a straw man in numerous political mailings.

Let us see what the national media had to say about this Tory attack on remuneration of artists. The Edmonton Journal said that the New Democratic Party's support for the levy seemed to be a “perfectly reasonable compromise” and that the industry minister misrepresented the contents of what was actually a “thoughtful compromise that upholds basic Canadian values of straight dealing”.

The National Post was even blunter. It said that the government's nonsensical boo, hiss, no new taxes response is just plain dumb.

Bill C-32, as long as there are no digital locks, will allow for all manner of copying and backing-up on the pretense that it is technologically neutral. But it is clearly not technologically neutral, because it is going after one of the few revenue streams that exists for artists.

The government is saying it has all these fair-dealing exemptions for education, but let us look at some of the glaring irregularities of the bill. Under Bill C-32, students who are taking long-distance courses will be forced to destroy their class notes after 30 days. Teachers will be forced to destroy their on-line classes. This is the digital equivalent of telling universities they have to burn their textbooks at the end of every session. What kind of government would force students to burn their class notes in the name of protecting copyright? No writer benefits from this, and no student benefits. This provision shows how badly out of whack the government is when it comes to understanding the potential for digital education.

We see these same punitive measures brought to bear against librarians. They will be forced to destroy inter-library loans after five days. We saw the government's full-on assault against the long form census and its opposition to knowledge and data. But to go after students and librarians with such dumbed-down, regressive approaches is something the New Democratic Party will not support in any way.

Let us look at the issue of the digital lock provision. The digital locks make a mockery of any claim of giving fair rights. The government says that we will get fair dealing rights for education and for reproduction for private purposes. People can make back-up copies; there will be copying rights for the print disabled; there is the so-called YouTube mash-up provision. But if there is a digital lock in place, all those rights are erased.

Clause 41.1 lays out very clear technological protection measures, which supersede the rights that citizens would otherwise enjoy. Thus Bill C-32 offers citizens' rights that they will not actually be able to access. What the government is doing is creating a two-tiered set of rights between digital and non-digital products. Instead of legal certainty, Canadian citizens will face arbitrary limitations on what should be their legal right of access.

It is simply not credible to say that this is WIPO-compliant. If we look at the WIPO treaties, digital locks are not guaranteed copyright rights. They are simply enforcement measures. At most, technological protection measures may be thought of as an adjunct to exclusive rights, but they cannot trump the rights that exist by law. In fact, if we look at how other countries have implemented WIPO, we see that there is no reason the government and this Parliament cannot set up a made-in-Canada provision that represents a balance on the digital locks provision.

In article 10 of the WIPO Copyright Treaty, it says that limitations such as the TPMs may be supported as long as they “do not conflict with a normal exploitation of the work”. That is exactly what the bill would do. It would override the normal exploitations of this work.

The other problem with this jailhouse approach to digital locks and digital issues is the question of whether it will even be able to pass a constitutional challenge. Dr. Jeremy de Beer raised this issue when he looked at the previous bill, Bill C-61. He said that the digital rights provisions were a:

—poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada’s international obligations.

He said that further iterations of Bill C-61 that did not take the fair dealing provisions of the Copyright Act into account could fail constitutional scrutiny. In fact, there are questions whether the bill with the digital locks provision will actually be able to succeed in a charter challenge.

Fundamentally, we can make the digital locks provisions work in order to protect copyright data, but if the government thinks those locks can simply override the existing rights that are guaranteed in the rest of the bill, it will have problems. The New Democratic Party certainly has problems with that.

At this point in going forward, the New Democratic Party is willing to work with all members of the House, all four parties, because we believe we must update Canada's copyright laws. We need to find a way to do it and we think it can be done.

We are looking for a sense from the government that it is willing to work with us. If it is willing to address some of the fundamental problems, we can deal with this in committee. However, if it takes the approach that any suggestions or implementations slightly different than the government's are somehow a threat and that it will not work with us, then we will not support Bill C-32 at third reading.

The New Democratic Party is willing to take this to committee. We are willing to work on these issues. We believe we can make very good made in Canada copyright legislation that will not only stand the test of this year and next year, but that will be looked at in other jurisdictions around the world as a way to find the balance that has so far been elusive in the digital copyright wars of the 15 years.