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.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Indeed, we do not have the same perspective at all in this debate. By introducing words like “such as”, and even keeping Bill C-32 as it is currently worded, given that it includes a new exception for education, we will be depriving artists of revenues, to the benefit of the educational sector.

Demonstrating a lack of respect for artistic works and artists is a very bad message to be sending to young people who are in school or university. You are basically saying that artists are “information”, which clearly shows that we really are not speaking the same language. This is a very poor way of teaching our young people to respect artistic works and the value of such works. If we tell them not to worry, that it's free—an open bar—we are not teaching them any new principle with respect to the value of artists. It's important to talk about that. One of the debates we're having here has to do with the fact that artistic works are not free. Music and books are not free.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

By introducing “fair use”, you are taking income away from artists. Under the current system in Canada, some $40 million a year is paid out to them. However, introducing “fair use” into Bill C-32 will take away at least $40 million a year. Is that how you want artists to be paid?

[Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association]

I would like to begin by thanking the committee for inviting the Canadian Civil Liberties Association to appear this morning to present its views. I will be as concise as possible so that everyone has a chance to be heard.

Founded in 1964, the Canadian Civil Liberties Association is a national organization dedicated to the protection of civil liberties in Canada. It has expressed its views on a number of occasions in the past with respect to the need to protect freedom of expression, the right to access to information and the protection of privacy. It is in that context that it is making its submission today.

With me this morning is Mr. Howard Knopf. He is a member of the Association and specializes in copyright law.

The CCLA has five submissions to make with respect to the bill.

Our brief is currently being translated, but you will receive it shortly. I will try to be as specific as possible, and I will, of course, be available to take your questions. The first part of my presentation will be in French, and the second, in English.

The membership of the Canadian Civil Liberties Association includes artists, authors, as well as educators, teachers and members of the public. It therefore has a special interest in the possibilities and repercussions of copyright reform.

Our first concern is that consideration must be given to the fact that we are all, in different respects, both consumers and producers of copyright. It is therefore important that the legislation properly recognize that duality in each community.

Copyright is obviously a core issue in terms of the debate and discussion that occurs in society. We know that the people who produce copyright have been consumers in the past and will be again. A society that seeks progress and innovation wants to ensure that all its members have full and easy access to information that allows them to expand their reflection and their social contribution.

CCLA wants to make five submissions.

The first is on freedom of expression. We note with great interest and approval and happiness that there is a recognition of parody in the bill and that parody and satire are protected and included in fair dealing. Our perspective has been that much criticism in our society, much freedom of expression, is expressed in the form of parody and through a sense of humour, and indeed a lot of political criticism takes the form of parody and satire. It is very important that they be protected under fair dealing.

I think, however, we are inviting the committee to consider the inclusion of the words “such as” in the fair dealing provisions under proposed section 29, with a view to ensuring support for the way the Supreme Court has considered the matter in the CCH decision, to support a constant recognition that fair dealing ought not to be a closed category, and to allow some flexibility in the system. In our view, that would be a way to ensure a proper interpretation of section 29 without causing a dramatic change.

We further note that Bill C-32 does not contain a blanket immunization against statutory minimum damages for educational institutions, such as exists in other jurisdictions--the United States, for example. This indeed would be a way to better protect the access to information through the mechanism of education.

Finally, with respect to fair dealing, an exception CCLA is particularly concerned about is the proposed educational exception for educational use of publicly available material. It is good, and we should have it, but the law is for everyone. To specify an exception just for educational use raises the prospect of this being interpreted a contrario in a way that would invite a different interpretation for the other provisions of the act, so that's a concern.

I think it's a concern that could be met by more cumbersome language that could be specific without changing the generality of what has been done, but it would be cumbersome language. Our view is that it's not necessary to have specific exceptions for education. Generally, I think people can download what's publicly available if it's done as fair dealing, and there's no need for the specific educational exceptions.

The second part of our submission is with respect to digital locks. In our submission, digital locks ought not to trump users' rights. The anti-circumvention provisions of Bill C-32, as they presently stand, may trump users' fair dealing rights and other users' rights. This was confirmed, I think, in testimony that you heard before.

In this context, I think we have to make sure that we give the citizens the ability to protect themselves against threats. It's completely insufficient to say that Bill C-32 would allow for these exemptions--

[The Chair (Mr. Gordon Brown (Leeds—Grenville, CPC)), Conservative, Gord Brown]

Good morning, everyone. I call this 12th meeting of the Legislative Committee on Bill C-32 to order.

Go ahead, Madame Lavallée, on a point of order.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you very much.

I want to move to Ms. Britski, just in the interests of time. To begin, for a point of clarification, Ms. Britski, are you aware that the ARR and the exhibition aspect as well, which our colleagues from Quebec have spoken about...that these two proposals are outside the scope of Bill C-32 and as a result, for all intents and purposes, are outside the scope of discussion at this committee?

[Christian Bédard, Executive Director, Regroupement des artistes en arts visuels du Québec]

I would like to thank the members of the committee for inviting us to speak today. I am Christian Bédard, Executive Director of the Regroupement des artistes en arts visuels du Quebec (RAAV), which represents over 3,000 visual artists.

I am accompanied by Nadia Myre, a well-known first nations artist from Quebec. Her work has been exhibited throughout Quebec, Canada and the world.

Along with CARFAC, RAAV is asking for the inclusion of the artists resale right in the Copyright Act. To illustrate the importance of that, I want to share with you the story of one Quebec artist. A painting by Marcel Barbeau was practically given away in the 1950s. In 2008, it was resold by the heir of the person to whom it had been given, fetching $86,000. The proposed royalty rate of 5% would have helped the artist, who is ill and can use all the income he can get.

In addition, RAAV would like to underline other aspects of Bill C-32 that we are concerned could pose serious problems for visual artists in Canada and Quebec. These artists are, for the most part, self-employed workers who are trying to make a living from their artwork. The federal government should not undermine their capacity to do so.

Since the recognition of the exhibition right in the Copyright Act, in 1988, many visual artists have seen their income grow substantially. Unfortunately, the mention of a cut-off date in the act, June 8, 1988, means that all works produced before that date are not covered by the exhibition right, which effectively discriminates against senior artists. That is why we respectfully ask the members of this committee to stop the discrimination against aging artists by removing the following words in the Copyright Act: "created after June 7, 1988".

RAAV salutes the government's intention to recognize the copyright of photographers, printmakers and portrait artists. But clause 38 of the bill reduces the capacity of these artists to be fairly remunerated for the uses of their works. That is why we are asking the committee to recommend the complete withdrawal of clause 38 from Bill C-32, in order to allow photographers, portrait artists and printmakers to fairly share in the wealth created by their work.

Finally, no other clause of Bill C-32 may be as damaging to visual artists in Canada and Quebec as the one including education among the fair dealing exceptions. This new exception will likely become a permanent source of lawsuits between artists, on the one hand, and organizations and individuals that claim to be providing educational services, on the other hand. Artists cannot afford to pay astronomical legal bills.

For visual artists, all of the income from classroom presentation of their works could be at risk, just as reproductions in textbooks could no longer be subject to remuneration. Our biggest concern is that public galleries may claim they fall under this exception because their mandates include education. Galleries are the main source of copyright income for visual artists. Because we don't know what a judge will decide is "fair" in our artistic sector, it is quite possible that this main source of income for visual artists will dry up for good. That would mean the end of the exhibition right for which we have fought so many years to obtain.

Consequently, along with more than 90 other cultural organizations that have signed the Canadian Cultural Industries' Joint Statement on Bill C-32, we are asking for the withdrawal of this clause from the bill. These recommendations may seem incidental to you, but they are very significant for visual artists. Canada must not hurt the daily efforts of its visual artists to achieve financial independence.

I will stop my presentation there to leave time for discussion of our recommendations.

[Patricia Feheley, Member of the Board of Directors, Art Dealers Association of Canada]

Good morning. My name is Patricia Feheley, and my colleagues and I represent the Art Dealers Association of Canada. We would first like to thank the chair and the honourable members of the committee for inviting us to appear today.

The ADAC is the only national association representing professional commercial art galleries and dealers. We are the major driving force behind the art market. I'm appearing here today with two colleagues from the ADAC: Johanna Robinson is the executive director of the association; Miriam Shiell is the immediate past president and is a senior dealer in both the Canadian and international art markets. I have a commercial gallery specializing in contemporary Inuit art as well as selected first nations artists.

The art market in Canada is increasingly fragile. Consumer spending on art in Canada plunged between 2000 and 2008 by 20.3%. Exports of works of art, central to sustaining a strong Canadian art market for our artists, fell in the same time period by over 25%. The average artist's income is pitifully low.

We did not prepare a formal brief regarding Bill C-32 because we have few objections to the majority of the provisions and because this is better addressed by our colleagues in the other cultural subsectors. Most of the provisions of Bill C-32 support our own view that it is essential that all creators retain not only control over their works but also rights to any secondary revenues.

We're particularly supportive of mandating a review of the Copyright Act every five years. In fact, we agreed to appear here today simply because we have been aware of a concerted effort to include in Bill C-32 a provision for artist resale rights or droit de suite, a provision that would allow certain artists to share in revenues from secondary market sales of their works. For the remainder of this statement, I'll refer to this provision as ARR.

Our position is simple: it is premature and it would be irresponsible to add these rights into Bill C-32 at this time. There are many negative aspects that must be considered. It is an extremely complex issue, one that could affect the art market in this country. This impact could be serious enough to warrant considered thought, research, and consultation, which takes time. In our estimation, this time will not be allowed if ARR is added to Bill C-32 at this late date.

Consider the following. We are the business professionals who are most intimately connected with the local and international art market. Neither the ADAC nor the auction houses, which are also major stakeholders, have even been consulted on this issue. Consider the countries that have signed on to the ARR. The United States, with the exception of California, has not implemented it, nor has Asia. The former is the strongest market for Canadian contemporary art; the latter is considered one of our fastest-growing art markets.

A considerable amount of the European art market has been moved to Switzerland, a major European art centre. Switzerland does not recognize it. In Europe there are fundamental problems with the design and implementation of the ARR. Protests have been lodged, both by dealers and by artists. A considerable amount of the European art markets have moved to Switzerland and even to New York.

Based on the European experience, ARR will most often have to be absorbed by art dealers. Typically, commissions for secondary market sales range from 10% to 20%, as we must compete with the auction commissions. An additional 5% is considerable, and it will have to be factored into the resale; that is to say, the resale price will go up. Ultimately, it is the consumer who will pay. Knowing that a 5% tax will be assessed when a work is sold could be a major disincentive to collectors in a fragile art market, particularly, as happens frequently, if the collector is selling at a loss.

It is our opinion that much of the secondary art market will either go underground or leave the country, masking any gains to artists' reputations that the secondary market has.

The expense should also be considered. Both small business and government will have to ensure that it is properly implemented and monitored--for instance, monitoring for compliance when it goes outside the common marketplace, such as to eBay sales. Revenue Canada will have to consider the ARR for both deductions and donations.

Most importantly, secondary market sales that would be counted for ARR account for only a very small portion of the total art market in Canada. Within this small proportion, the benefits will accrue only to a small percentage of artists.

According to a recent study of the ARR in Britain, the top 10% of artists shared 80% of the total amount collected.

In France, 70% of the amount collected goes to seven artists and their families.

[The Chair, Conservative, Gord Brown]

We will call this 11th meeting of the special Legislative Committee on Bill C-32 back to order.

For our second panel, we have quite a number of witnesses representing three different groups. From the Art Dealers Association of Canada, we have Patricia Feheley, Johanna Robinson, and Miriam Shiell; from the Canadian Artists' Representation, we have April Britski and Anthony Urquhart; and from the Regroupement des artistes en arts visuels du Québec, we have Christian Bédard and Nadia Myre.

We will hear from the Art Dealers Association of Canada first. You have the floor for five minutes.

[Ferne Downey]

Well, that's a very intriguing question. I think there are sufficient flaws embedded throughout all of Bill C-32 that you'd have to have a more holistic approach to fix it all. It's not as if the creators' rights and artists' rights are in just some few aspects of the bill; they are embedded in every part of the bill.

I'm going to ask Stephen to comment.

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

Thank you very much, and thank you for your presentations this morning.

I guess when we try to address the issues of Bill C-32 we are talking about copyright—the right to make copies. In French it's

“les droits d'auteur”,

the rights of the author.

We are in a different realm because everybody can make copies. Ten years ago people could make cassettes. Now we can copy books, we can copy television, and it's offered us the greatest distribution platform in human history—and it ain't about to change. The question we have as a committee is how do we address what rights and whose rights?

This is the tricky situation, because it seems from listening to my colleagues in the Conservative Party—and they're getting some things right on this bill; they talk about consumer rights and they talk about corporate rights, the right to lock down content. An individual artist doesn't put a digital lock on; Sony gets to put the lock on. So we have the principle that they're going to protect corporate rights; they're going to protect consumer rights.

But we're looking at the issue of what happens to the artists' individual revenues: the actual right to be paid for the copies, which was always the fundamental principle of copyright.

Do you see this bill as an attack on that right, and an attack on collective licensing?

[John Lewis, Vice-President, Director, Canadian Affairs, International Alliance of Theatrical Stage Employees]

Good morning, and thank you for this opportunity to come before the committee to speak on Bill C-32. I'm joined by my colleague, Paul Taylor, who will also be speaking to the committee.

The IATSE was founded in 1893—1898 in Canada—and now has nearly 120,000 members, 16,000 of whom reside in Canada, making it one of the largest trade unions in the entertainment industry. The IATSE represents workers in a number of crafts, with the majority employed in motion picture and television production. Our members are integral to the production, distribution, and exhibition of motion pictures and television.

The number of individuals employed in the production of a given motion picture may be anywhere from 100 to 1,000 employees. They are not in front of the camera, but they supply the absolutely necessary labour to make the movies. Our members include men and women who work on big-budget foreign service productions from the United States, such as The Twilight Saga: New Moon in Vancouver and Mummy: Tomb of the Dragon Emperor in Montreal, as well as on domestic television and motion picture productions, such as Republic of Doyle in St. John's and Heartland in Calgary.

How this government deals with digital theft will have a direct impact on our membership. For our members, there is no job security. They depend on a healthy industry to find enough employment to make ends meet. When the industry suffers because of digital theft, that is, when movies do not get made because of digital theft, our members suffer because they find themselves out of work.

The IATSE supports the strongly worded objectives of Bill C-32. Hundreds of our members wrote to their MPs before the introduction of the bill urging them to support strong copyright reform and, following the introduction of the bill, to support the bill's objectives. In particular, we welcomed the government's promise, made at the time of the bill's introduction, that the bill will provide a framework that is forward-looking and flexible, which will help protect and create jobs, stimulate our economy, and attract new investment to Canada.

However, we have serious concerns that the bill, as drafted, will fall short of meeting these objectives. We have prepared written submissions, which I understand have been circulated, but I would briefly summarize our position as follows.

I'll turn to my colleague, Mr. Taylor.

[The Chair (Mr. Gordon Brown (Leeds—Grenville, CPC)), Conservative, Gord Brown]

Good morning, everyone. We'll call this 11th meeting of the special Legislative Committee on Bill C-32 to order.

We have with us today, from the Alliance of Canadian Cinema, Television and Radio Artists, Ferne Downey and Stephen Waddell. From the International Alliance of Theatrical and Stage Employees, we have John Lewis and Paul Taylor.

For five minutes, we'll hear from the folks from the Alliance of Canadian Cinema, Television and Radio Artists, also known as ACTRA. Ferne Downey, you have the floor.

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

No, but that's not the role of Bill C-32.

I think the issue here.... And we all certainly support strong measures to take on counterfeit. We want the police, we want our border officials to have the power to get those products off the shelves and go after them. What concerns me is that...you said, “Why the secrecy for ACTA? Well, people are just more comfortable talking.” That could be used at municipal town hall meetings. That could be used by politicians of all sorts. People don't like doing their business in public because it raises questions. But we have a process in terms of assuring accountability that there is a public process.

Now you can roll your eyes, but we have WIPO, we have the WTO, and you—

[Daniel Drapeau]

--but therein is not the question. Bill C-32 is a portion. There's the whole trademark issue. There's the customs issue. That's not addressed by Bill C-32.

[Daniel Drapeau]

As I said in my earlier comments, Bill C-32, to my understanding, meets the ACTA requirements--