Bill C-32 (Historical)

Copyright Modernization Act

An Act to amend the Copyright Act

This enactment amends the Copyright Act to
(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

[Dr. Michael Geist]

I think you're right. Especially in the copyright area, a change in technology represents a real challenge, but I think there are a couple of ways that you deal with that. One is that there is a continual revisiting of these issues, and Bill C-32, which your government has introduced, contains a requirement that we take a look at the law every five years. I think that's a good approach--recognizing that.

Now, the particular issue around digital locks that we're talking about involves treaties negotiated in the 1990s that attempted to be forward-looking. While we can debate whether they truly were forward-looking, the standards they set are the standards that have been adopted still today—even recently, in many other countries, among some of our other trading partners. I'm not saying we don't need to move forward with those rules; I'm saying that the kind of general outline they provide is one that's designed to stay current. I think we need to retain those flexibilities in the law.

I'd also just quickly note that we shouldn't underestimate the ability of copyright law, in its basic principles, to deal with some of these issues. I'll give you an example. The current bill provides a specific provision to deal with what are called enabler sites, sites that are designed to deal with clear pirate websites. Everybody says, well, of course we need to be able to deal with that.

Last year, three weeks before the bill was introduced, 26 record labels secretly filed a massive lawsuit against the largest known alleged pirate site in Canada, a site called isoHunt. They used existing Canadian copyright law. They're looking for millions of dollars in damages, they're looking for a full shutdown of the site, and they're using the law today.

The lawsuit suggests that all these claims that they are powerless and that we need reforms mistake a little bit where we really stand, because in fact there is the ability to use, in many instances, basic copyright principles that have been in place for decades to deal with some of these issues. It's in a sense old wine in new bottles, but it can still effectively apply.

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

Welcome to our witnesses. It's been a good discussion here this morning. However, there were a couple of comments made that I would like to drill into a bit deeper.

Mr. Geist, I don't think any of us, outside of you perhaps, are experts on intellectual property rights, and we're not trying to pretend to be. But certainly the world is changing and technology is changing, and I think we've got a bit of a double-edged sword with technology.

You made a comment, your last comment, actually, that the agreements and negotiations that took place in the 1990s should be maintained. That's better than a decade ago. Technology changes so rapidly that I don't know how we can maintain those agreements.

I'm not saying the European copyright laws don't go too far, so don't get me wrong. I do think we need a made-in-Canada solution, and I think that's what we're trying to do with Bill C-32.

But the difficulty of that—and I do have some faith in our trade negotiators who liaise with industry, and our WTO partners around the world who try to figure out exactly where we're headed in the future—is that with this one, I think the moment you think you have a grasp on it, it's gone.

I want you to comment on the whole concept of changing technology and how we could ever possibly keep up to it.

[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.

[Dr. Michael Geist]

So there were two global concerns with the anti-counterfeiting trade agreement. First, the secrecy associated with the negotiations led to widespread concern about negotiating an intellectual property agreement outside the conventional international forum of the World Intellectual Property Organization and with a level of secrecy normally accorded to military documents.

Second, the substance of the agreement extended far beyond addressing commercial counterfeiting issues. Instead, there was a concerted effort to renegotiate international intellectual property law by increasing the level of protection beyond required norms.

The final agreement raises some concerns—and I'm talking about ACTA here—though many of the most problematic provisions were ultimately amended under pressure from a coalition of countries that included Canada. I raise ACTA because many of the concerns associated with that treaty are being replicated within the CETA process, yet this time there is no coalition to argue for maintaining international flexibilities.

First, the same secrecy concerns that arose within the context of ACTA arise here. It's true that there have been leaks of various CETA chapters, including the intellectual property chapter, yet commenting on leaked chapters is not a full substitute for full and open consultations that permit expert analysis and opinion on proposed treaty rules. Waiting until we have a final or even near final text isn't good enough. We need public access for the purpose of informed commentary before the final trade-offs and the negotiations are concluded.

Second, and even more so, the substantive copyright provisions within CETA, from what we know, raise some significant concerns. In this regard, I'd like to make five brief points.

First, the inclusion of intellectual property policy marks a dramatic shift for Canadian trade negotiations, which have conventionally addressed market entry, investment, and tariff issues. As Dan Ciuriak, a former deputy chief economist at the Department of International Trade, has noted with respect to the CETA IP provisions, the process is not a sound one. In a hotly contested area, to have fundamental business regulation made in this fashion is not sound.

Second, the inclusion of copyright provisions within CETA is almost completely one-sided. With the exception of an anti-camcording provision that the EU has already rejected within ACTA and is therefore unlikely to accede to here, Canada has made virtually no demands on the copyright front. There is simply no evidence that there is much in this for us. Rather, the copyright provisions are a rather obvious attempt by the Europeans to export rules to Canada that they have been otherwise unable to do via ACTA or other international agreements.

Third, some rights holders have used the CETA process as an opportunity to circumvent domestic copyright reform by promoting reforms within CETA that may later tie our hands for a made-in-Canada approach on copyright. For example, the Canadian Publishers' Council has provided a submission to the government calling for an extension in the term of copyright and the creation of a sui generis approach to database protection, new kinds of protections for databases. Both of these reforms were soundly rejected during the 2009 copyright consultation that the government conducted and are not found in Bill C-32, yet this circumvention of the domestic policy process through international agreements carries significant dangers if we're not careful.

Fourth, the substantive proposals demanded by the EU are designed to rework Canadian copyright law in a manner that extends well beyond international law. Indeed there are instances where Europe's failed international efforts are being recycled within CETA despite the fact that Canada stood opposed in international fora. For example, the World Intellectual Property Organization has been negotiating a proposed broadcasting treaty for over a decade. The proposed treaty has never managed to obtain broad support, with many expressing understandable concern that extending new rights to broadcasters merely for the act of broadcasting represents a significant shift away from traditional notions of copyright that serve the interests of both creators and users. Canada has expressed similar doubts at WIPO, yet CETA seeks to import the failed provisions into Canadian law.

Another critically important example are the digital lock rules found within CETA. As you likely know, the digital lock rules in Bill C-32 have been among the most contentious in the bill. In fact those provisions have always been contentious, dating back to their initial inclusion in the WIPO Internet treaties in 1996. Those treaties established considerable flexibility and implementation in order to obtain consensus among the differing views on the issue.

The same concerns arose within the context of ACTA last year. CETA includes digital lock provisions that extend beyond the requirements in the WIPO Internet treaties, and therefore would remove some flexibility as Canada considers how best to comply with those treaties.

Fifth, there are potential concerns with CETA and the current draft of Bill C-32. For example, Bill C-32 codifies the notice and notice approach that has been used by Internet service providers across Canada for many years when they receive notifications of alleged infringement. The notice and notice approach in Bill C-32 strikes a good balance between the rights of copyright owners and the interests of Internet subscribers. Yet the Europeans have proposed language that would require ISPs to remove or disable access to content simply on being informed of alleged infringement—not proven, simply alleged. This appears to be an attempt to bring in a notice and take-down system that was rejected in Bill C-32; it was rejected in Bill C-61 before it; and it was rejected in Bill C-60, which the Liberals introduced even before that.

Another example involves statutory damages. Bill C-32 rightly distinguishes between commercial infringement, which carries full statutory damages of up to $20,000 per infringement--it gets tough with cases of commercial infringement--and non-commercial infringement, which carries a $5,000 cap on damages. The Europeans have proposed language that may contradict the Bill C-32 approach. Indeed, the Canadian counterproposal on this currently seeks to preserve the ability to make adjustments in special cases.

In sum, the copyright provisions were not part of the Canada-U.S. Free Trade Agreement or NAFTA. They were largely excluded or kept very minor in our more recent trade agreements. CETA represents a very significant change that's part of a broader effort to pressure Canada to change its copyright laws.

While most agree that there is need for some reforms, discarding a made-in-Canada approach for one drafted in Brussels raises significant concerns that implicate both future and current legislative proposals.

Thank you.

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

Thanks. Good morning.

My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada research chair on Internet and e-commerce law. I've been active on copyright and intellectual property issues for many years. Last year, I edited the largest academic study to date on Bill C-32, the current copyright bill, with peer-reviewed contributions from 20 leading Canadian experts.

I appear before this committee today in my personal capacity, representing only my own views.

The committee's recently released report on CETA's fact-finding mission focused primarily on two intellectual property issues--geographical indications and pharmaceutical patents--so the committee is aware of some of the concerns associated with the EU proposals, particularly some of the impact on agricultural products, and even more so on pharmaceutical pricing.

But I'd like to focus on another intellectual property issue within CETA: copyright. I believe that to fully understand the CETA copyright provisions, they should be viewed within the broader context of copyright trade pressures on Canada.

As committee members may be aware, Canada recently participated in the anti-counterfeiting trade agreement negotiations that led to a draft agreement in December of last year. The United States and the European Union were two of the leading protagonists behind the treaty. While few would oppose genuine efforts to deal with dangerous commercial counterfeiting, ACTA generated a global public outcry on at least two grounds.

First, the secrecy associated with the negotiations led to widespread concern about the negotiation of an intellectual property agreement--

[Alexander Crawley]

For our part, I think the graduated response is the thing. We don't want to go after widows and orphans. It's a culture that's not working. That approach is not working. However, as you've heard before at this committee, we need a test of what makes it an original work so that the definition would be clear for everyone who was using it--you know, the USG.

The other thing is that as we understand Bill C-32, Canada would be the only place in the world where a web service such as YouTube wouldn't have to pay anything to the owners or licensees.

[Hélène Messier]

It's based on use. Under our system, teachers have to report the works that are being used so that rights holders can be as fairly compensated as possible. The more often their work is reproduced, the more remuneration they receive.

We issue a cheque for a minimum of $25, but the maximum can be as high as several thousand dollars, depending on how much the work is used. There is an exception for exams, but when a work is used for a mandatory French exam and 70,000 copies are made in Quebec, an author can expect to receive several thousand dollars for the use of his or her work in that context. That will became an exception under Bill C-32.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Let's come back to education now.

If I'm not mistaken, you are asking that the term “education” be deleted from Bill C-32. We agree with you on the fact that this is a step backward that presents a risk for creators, and that it is not balanced in that respect. However, for other reasons, we don't go as far as to suggest removing that term, because education is important. What we want to do is limit the impact on creators as much as possible.

Do you have something in mind?

The solution I have been thinking of is in two parts. First of all, “education” would be defined in as restrictive a fashion as possible, excluding professional training. Second, the test would have to be as rigourous as possible, in order to limit use of this exception.

Do you have any comments on that?

[Hélène Messier]

The Canadian government has ratified a number of treaties, including the WIPO treaties, the Berne Convention and the TRIPS Agreement. All of these treaties include a provision under which exceptions relating to copyright must be limited to special cases which do not conflict with the normal exploitation of the work or the interests of creators.

In that regard, I am not the only one to be of that view. Several experts provided testimony before the legislative committee studying Bill C-32, including Ysolde Gendreau of ILAA Canada, and Georges Azzaria. The Quebec Bar and a number of other international associations have written many letters on this issue. In their opinion, the exceptions proposed by the Canadian government, particularly regarding fair use, contravene Canada's international obligations, because they are far too broad. Furthermore, given that they are already subject to remuneration, they will necessarily conflict with the rights of copyright owners.

[Hélène Messier]

I cannot presume to know what the drafters had in mind. However, what I noted is that wherever there was a definition including the concept of collective administration—for example, visual display of works or for exams—those exceptions only applied when the work was commercially available. The definition of “commercially available” had two parts to it: either the work could be purchased commercially or it would be available through licensing from a collective society. In both cases where that definition appeared, Bill C-32 removed the second part of that definition—in other words, collective administration.

It's obvious that by taking away compensation from authors or copyright owners that was channelled through a collective society, and by jeopardizing the livelihood of creators and copyright owners by forcing them to defend their rights before the courts, there will necessarily be fewer revenues collected by copyright collectives to cover their own administrative costs. As a consequence, they will be deprived of the possibility of distributing revenues to copyright owners.

Now, is that intentional or is it collateral damage? I will let you draw your own conclusions.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you, Mr. Chair.

Good morning and welcome to the committee. Thank you for being here.

Ms. Messier, you said that Bill C-32 is an attack on collective administration. This is not a partisan question, although those are strong terms: do you believe that it is a direct and voluntary attack on collective administration, or that it is an indirect effect—collateral damage, as they say?

[Danièle Simpson, President, Union des écrivaines et des écrivains québécois (UNEQ)]

Good morning, and thank you for this opportunity to address you.

The Union des écrivaines et des écrivains québécois is a professional union founded in 1977 which now represents almost 1,400 writers.

The UNEQ is recognized as the association most representative of artists working in the field of literature under the Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters—R.S.Q., c. S-32.01—and consequently speaks on behalf of all Quebec writers.

In the brief we are presenting today, we have chosen to analyze the clauses that concern us one by one, in order to clearly demonstrate the extent to which writers will lose out if the bill is passed in its current form.

The government is seeking to add to the Copyright Act a whole host of exceptions with the apparent goal of balancing the rights of creators and the interest of consumers. However, the vast majority of these exceptions provide neither for remuneration nor the possibility of control by the author of the work, which we automatically consider to be contrary to the spirit of an act that is supposed to protect creators.

Furthermore, the terms used in the often imprecise wording of the bill force copyright owners to look to the courts to define the scope of these exceptions. They will have to do that at their own expense, in order to receive only minimal damages, compared to the cost of such proceedings.

Thus there will not be an appropriate balance struck between creators and users, and only after lengthy legal proceedings will we know what is legitimate and what is not.

We would now like to look at the bill in detail, starting with clause 29, which concerns fair dealing for the purpose related of education, satire or parody.

It should be noted, to begin with, that the lack of any definition of the term “education” will enable any organization that offers training to claim that its purposes are educational and thus avail itself of the fair use provisions. Furthermore, free access to these works will deprive writers of fair remuneration. Because literary works circulate extensively in the educational sector, the latter represents a significant source of income for authors. To consider depriving them of the compensation they deserve when their works are the raw material of education is unacceptable. We are therefore recommending that the term “education” be struck from clause 29.

The addition of clause 29.21 aims to legalize the use of protected content by users who wish to use this content to create a new work which is then disseminated digitally at no profit, but with no due consideration for the fact that such new works may betray the spirit of the works used, something that simply mentioning the source cannot remedy. Such an exception violates an author's moral rights and should be removed.

New clauses 30.01 and 30.04 apply to educational institutions. The first one makes it possible for these institutions to communicate a protected work as part of a lesson using telecommunications. The institution must take measures that can “reasonably be expected” to prevent students from further disseminating the work, but no penalty is imposed should it fail to do so. Furthermore, the fact that educational institutions will not be obligated to pay authors for such use constitutes unprecedented prejudice which no one else involved in education would accept.

The second clause allows institutional institutions to use works available on the Internet for education purposes. At the present time, a work is protected under the Copyright Act as soon as it exists in some material form, whatever that may be. Clause 30.04 removes that protection in an educational setting. Yet collective administration would, in both cases, afford access to these works while compensating authors. We therefore recommend that clauses 30.01 and 30.04 be removed.

Clause 30.02 extends the license to photocopy by treating digital reproduction and print reproduction as one and the same thing, thereby allowing their costs to be assessed on the same basis, without regard for the possible dissemination of the work. We recommend that this clause be re-drafted to make a clear distinction between digital reproduction and print reproduction, with compensation adjusted accordingly.

As regards levies for private copying, the UNEQ believes that a modern Copyright Act should extend levies to new digital formats and provide compensation to all artists. in all areas, including literature.

With respect to those measures aimed at making Internet service providers accountable, the UNEQ believes that the notice and takedown system is the only one that ensure adequate protection of works disseminated over the Internet. The notice-and-notice approach is too weak and forces creators to police the web themselves, a burden that is disproportionate.

In summary, the UNEQ believes that Bill C-32, which purports to modernize the Act, actually greatly increases the number of exceptions, thus depriving writers and artists of fair compensation; denies their right to approve or not the use of their works; remains vague as to the meaning of the terms used in the bill, leaving it up to the courts to interpret them; sets laughable fines, compared to the costs that would be incurred; removes any accountability for Internet service providers; ignores Canadian copyright collective societies' successful negotiations; and endangers the book industry and the development of new markets in the educational sector.

We are therefore asking that Bill C-32 be completely overhauled so as to provide adequate compensation for the use of copyrighted works and to ensure that any exceptions are consistent with the terms of the Berne Convention. We are also asking that collective administration be recognized as the safest way to guarantee respect for the rights of creators and access to their works.

Thank you for your attention.

[Hélène Messier, Executive Director, Société québécoise de gestion collective des droits de reproduction]

Thanks for the invitation.

Copibec is a copyright collective society representing over 25,000 Quebec authors and publishers. It administers the rights of reproduction on paper and digital reproduction of newspapers, books and magazines, including the artistic works that they contain. Bill C-32 calls into question each of the fundamental principles underlying copyright.

By introducing approximately 40 new exceptions, it takes away the exclusive right of authors to decide for themselves whether or not they will authorize the use of their works. It also strips creators and other copyright owners of compensation that they already receive, as in the case of use for the purposes of examinations or distance education. These exceptions jeopardize substantial revenues by introducing fair dealing for education purposes—a vague and unnecessary concept. They compromise the development of new markets or existing markets, such as the reproduction of a work to display it for educational purposes or training, the production of non-commercial user-generated content, or reproduction for private purposes. What will be left of the fundamental principles which underlie copyright if authors are denied the right to dispose of their works as they see fit and to receive compensation? All that is left is the right to put digital locks on their works.

That solution does not suit the copyright owners represented by Copibec. Why? Because it is impossible to put a digital lock on a 200-page book or on the hard copy of a magazine. Furthermore, copyright owners have generally decided to provide digital books without locks to better meet consumer needs by fostering interoperable formats. Quebec publishers prefer to incorporate a watermark into the digital version of a book to allow traceability in cases of infringement. However, this is not a solution that copyright owners represented by Copibec consider acceptable, particularly because the largest users of literary works are institutional users or individuals, who almost always make copies for non commercial purposes. Bill C-32 provides for pre-determined damages ranging from $100 to $5,000 for these purposes, which is clearly less than it costs to institute court proceedings.

The bill attacks another fundamental principle of copyright: collective administration. By eliminating or jeopardizing the payment of large amounts to creators, the bill weakens copyright collectives, which withhold a percentage of the royalties collected to carry on their operations. And yet copyright collectives are an essential link in the chain, when it comes to copyright administration. That is what the legislation acknowledges in its definition of “commercially available”, which is found in section 2 and includes both purchasing a work on the market and obtaining a work through a license granted by the copyright collective. It is odd that Bill C-32 eliminates all references to collective administration in every case where mention is made of commercially available work.

If access to copyrighted works is guaranteed, why propose so many exceptions? On the contrary, use of exceptions must be sparing and carefully thought out, because they always involve an expropriation of rights. That is why the international community adopted strict rules in that area under the Berne Convention, signed by Canada in 1928, which have been since been included in many different treaties, including the well known WIPO treaties.

It is therefore surprising to see that the three-step test was not even considered during the drafting of Bill C-32. That test provides that exceptions must be limited to special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

The proposal to broaden fair use to add education will jeopardize the collection of more than $10 million in Quebec. It will certainly cause unreasonable prejudice to copyright owners and probably breaches Canada's international commitments. That is certainly the view of a number of stakeholders, including the International Association of Scientific, Technical and Medical Publishers, the International Publishers Association and the Quebec Bar, to name only a few.

Teachers will also have to cope with the vague wording of this provision, which will only be defined over time, through long and costly court proceedings. This provision is unnecessary, because access to copyrighted works is already guaranteed through the licenses administered by copyright collectives across Canada.

Last December, Ms. Line Beauchamp, the Quebec Minister of Education, Recreation and Sport expressed her disagreement with the education exception proposed in Bill C-32. Very recently, the Quebec Federation of School Boards, an important representative of users, as well as all the primary and secondary French language schools in Quebec, also expressed its opposition to Bill C-32. I am going to give that organization the last word. Here is how it stated its position:

The adoption of this change would not only adversely affect the right of authors to allow or disallow the use of their work, but also adversely affect their right to fair compensation. We understand that the government wants to facilitate access to copyright-protected works, but we believe that access to a copyrighted work must occur in a context where the author's rights are respected. Accepting the principle that access to copyrighted works is synonymous with offering them free of charge would negate the importance of authors' contribution to our children's education, and weaken the school publishing sector. Moreover, the concept of fair use for education purposes is imprecise and would not allow educational institutions to apply clear rules to copyright administration, something that current agreements with copyright collectives now enable them to do.

Thank you.

[Alexander Crawley, Executive Director, Professional Writers Association of Canada]

Thank you very much.

Good afternoon. My name is Alexander Crawley. I am executive director of the Professional Writers Association of Canada.

We represent the interests of Canadian freelance writers of non-fiction works and have been doing so for 35 years. We welcome this opportunity to offer our perspective on this reform process that is so vital to Canada's success in adapting our law to enable a thriving digital economy.

We will begin by reflecting on the committee process itself and will then highlight the issues that most affect writers and the direction we feel you must take to balance and strengthen Bill C-32. Finally, we will tell you what we like in Bill C-32.

First, we take you back to the observation of a witness you heard on the first day you opened the process beyond politicians and civil servants. Professor D'Agostino, of IP Osgoode, accurately informed you that individual creators are caught between corporate users of their works--that is, publishers, manufacturers, distributors, and retailers, and in the digital area, web-based services and ISPs--and the final recipients of our works, the individual users as consumers and as citizens. We need a law that clarifies our relationship with both types of users.

With appropriate recognition of our rights, we can negotiate with our industry partners, but we can't sustain our businesses without the fundamental principle, in the law, of compensation for use.

Next, we remind you of the testimony of freelance writer Douglas Arthur Brown on December 13 of last year. Mr. Brown provided clear evidence that illegal copying in the education sector is a real danger that is going on even now, and that by adding the term “education” under fair dealing, this bill will bring about a huge spike in such market-destroying behaviour.

We finally go to February 1, when Bill Freeman, freelance writer, and Marvin Dolgay, freelance composer, clearly outlined how this bill, as drafted, imperils their livelihoods and--more significantly, from the public interest perpective--imperils the very possibility of a new generation of creative Canadians sustaining themselves and a digital economy.

Our members' writings appear in magazines and newspapers of every size and description and in every region of Canada, online and in print. Digital technologies make their replication easy and efficient and provide the diversity of voices that give Canadians access to the rich and varied perspectives on which a healthy society depends. All of our writers encourage the copying of these works by educational institutions, corporations, government agencies, ancillary publications, online aggregators, and, of course, individual Canadians, but as with any small business, they need to be compensated for these uses of their property.

A strong system of collective rights administration is by far the most practical method of assuring appropriate compensation for these secondary uses that abound in the digital marketplace. We can and will continue to negotiate primary uses with our partners in industry. Everyone recognizes that models are changing and that the new tools can allow creators to reach the market much more efficiently than ever before. Indeed, we think we can compete with old models if we are allowed to develop our businesses through appropriate recognition of our rights in our own works.

For PWAC, the Professional Writers Association of Canada, these are our priority issues with Bill C-32.

First is the addition of “education” as an exception under fair dealing. This will deprive PWAC members of between $500 and $5,000 a year in income from secondary uses through our collectives. If the committee can't find its way to delete this provision for political reasons, we ask that at a minimum you define its application in such a way as to strengthen, not weaken, collective rights administration.

Second, on the test for fairness under fair dealing, we support the inclusion of the Berne three-step test that fulfils our international obligations, and we are heartened by indications that the committee will invoke it through the amending process. We certainly hope you do. We prefer CCH, by far, for obvious reasons.

Third, concerning the limit to statutory damages, the recent settlements in the class action suit Robertson v. Thomson and a subsequent suit involving Torstar Corporation and other publishers showed the level of damages to freelance writers that infringement can cause. The amounts there come to over $15 million paid to freelancers by major Canadian publishers. We have provided copies of the Supreme Court decision, in the first case, for your better understanding of the issue.

We have no objection to the concept of limiting damages for individual non-commercial infringement, but the system currently in place for institutional and commercial infringements should be retained.

With respect to the safe harbour provisions for ISPs, we need those who deliver our works to their markets to actively support the principle of compensation for use. Notice and notice will not change the culture of rampant illegal copying. We need a graduated response that contains a real incentive to diminish it. Better yet would be a new business model based on a true partnership with ISPs along the lines proposed by the Songwriters Association of Canada, but we understand that this is beyond the scope of this committee.

These are our primary issues with Bill C-32, as drafted.

On the positive side, we do appreciate some of the provisions of the bill that extend rights recognition to our fellow freelancers, such as photographers and performers. However, we fear that the weakening of our markets through the new exceptions undermines even these gains.

As to the much debated technical protection measures, we acknowledge that our industry partners in the corporate sector may find them useful, but they do not give individual creators the tools we need to fully exploit digital technology through innovation.

Thanks for your attention. I'll be glad to answer your questions, to the best of my ability, on our oral presentation or on the written brief we have provided.

[The Chair, Conservative, Gord Brown]

I call this 12th meeting of the special Legislative Committee on Bill C-32 back to order.

For the second hour, we have three witnesses with us. We have, from the Professional Writers Association of Canada, Alexander Crawley, executive director; from the Société québécoise de gestion collective des droits de reproduction, Hélène Messier, executive director; and from Union des écrivaines et des écrivains québécois, Danièle Simpson, présidente.

For five minutes, we'll hear from Mr. Crawley.