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.

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

What aspects of our domestic law in Bill C-32 have to be rewritten to make us meet the standard of ACTA?

[Dean Del Mastro, Conservative, Peterborough, ON]

We're actually making it applicable for opportunities where it does not apply right now. It's important that it's established in law.

I think you need to understand what the complexities in copyright are. There are two main groups that will oppose copyright no matter what. There's a group on the left that I call the “sticking it to the man” group. In other words, they don't want industry to make any money. Whatever you try to do that might push money into industry, where somebody might make money, they don't like that.

The other side is the extreme right. They're the libertarian group. They're the “stay the hell out of my life” group.

Those are the two groups, right? Most people are somewhere in the middle. But if you want to appeal to the voters on either side of that, then you take a position that is inherently opposed to them.

Now, most of the interventions I'm hearing at Bill C-32--certainly a lot of them from my colleagues opposite—seem to be appealing to the sticking-it-to-the-man group. They're very concerned about the creators. But whenever you talk about trying to re-establish a marketplace or an opportunity for groups to earn money legitimately, that doesn't appeal. What we need instead is a system of levies, taxes and so forth, that we can send out through various bodies, because we all know you can't have a marketplace. I actually think that's....

Unfortunately, your comments will be interpreted as being against Bill C-32, because you don't believe that Bill C-32 does anything to re-establish a marketplace. And that's unfortunate.

[Dean Del Mastro, Conservative, Peterborough, ON]

--and then I thought I had better spend my time bringing you up to speed on Bill C-32 instead.

You see, in Canada I think there are a couple of things. ISPs have been determined to be essentially infrastructure in Canada; in other words, they're the Internet super highway. We don't send the police out to charge the highway when somebody is speeding; we go after the driver. That's the approach we have taken in Canada--

[Dean Del Mastro, Conservative, Peterborough, ON]

Yes. Thanks, Mr. Chairman.

I was all prepared to be your charged-up fighter here, a street fighter on trademark, until you kind of dumped all over Bill C-32--

[Daniel Drapeau]

This is an intellectual property infringement and I would therefore suggest that it be enshrined in intellectual property legislation. Bill C-32 in its current form does not provide for this requirement. It is not easy to obtain from the Federal Court either since it is only possible through an equitable Bill of discovery.

an equitable bill of discovery.

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

For instance neither ACTA nor Bill C-32 cover the Internet providers you were talking about earlier. However, you are asking us to sign up as early as possible.

[Daniel Drapeau]

If you want to invite me back, it would be my pleasure to appear before you again. I gave a presentation on the issue to the ADISQ.

Bill C-32 does not resolve the disparity between the Trademark Act and the Copyright Act. It will not tackle the lack of legal provisions to protect trademarks.

There are provisions in the Criminal Code but they are not tailored to the issue of trademarks. In answer to your question: do it whenever you want but do both, and quickly.

[Daniel Drapeau]

Do it in any order you like, but just do it! It has dragged on for long enough. You have everything you need. You have recommendations from the Canadian Anti-Counterfeiting Network, numerous other groups, practitioners like me and also from an institute of intellectual property. Whichever one you choose to do first … just do it!

In my opinion, the current version of Bill C-32 makes the problem worse not better. However, I realize that that is not the topic of the discussion today. Consequently, I will stop there.

[Roger Pomerleau, Bloc, Drummond, QC]

Thank you Mr. Chair.

Thank you, both of you, for your presentations. In my opinion, they were among the best and clearest we have heard in a long time.

My question is for you Mr. Drapeau. The minister recently told us, with a straight face, that Bill C-32 would be dealt with first before tackling the Anti-Counterfeiting Trade Agreement.

Do you not think that it would be better to tackle things the other way around in order to send the message that our legislation will comply with the treaty we intend to develop?

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

Now tell me, how will ACTA impact the copyright bill, Bill C-32, if it's passed?

[Daniel Drapeau]

In my handout, you can see my observations on the weaknesses of the Canadian system, which are on the left, and my recommendations, which are on the right. In the middle I've added a column on the relevant provisions of ACTA.

Now please note--and I know there's a lot of discussion on Bill C-32 and on the Copyright Act--ACTA will impact not just on copyright. ACTA also impacts on trademarks, and a number of my comments today will be directed to trademark protection, which receives very little temps d'antenne.

The problems I've identified and that are dealt with in ACTA are in the left-hand column. I'll go through them briefly. From a criminal point of view, the RCMP and crown prosecutors do not act under the Trade-marks Act for the very simple reason that there are no criminal dispositions under the Trade-marks Act. We need criminal law, because fighting counterfeiters only under civil terms is basically fighting crooks by the books: it doesn't work. From a cooperation point of view, we have a blockage of information. The RCMP and Canada Customs cannot provide information to rights holders, which impedes their ability to institute civil actions in a timely fashion.

And finally, from a deterrence point of view--which I think is the worst part of our system--we have no statutory damages under the Trade-marks Act. The maximum penalty under the Copyright Act is $20,000, which is completely not comparable to the profits that are made by counterfeiting, and this maximum amount has been awarded only three times, in three cases where the plaintiffs were represented by our firm, since 2006.

Finally, case law is very ill equipped to deal with this. We still have some notions that the cost of the fight against counterfeit is the cost of business and should not be paid by the counterfeiters. This is jurisprudence from the Federal Court.

The solutions--and I have 30 seconds left--that I propose to you, which you have on the right side of my handout, you can implement either through piecemeal legislation--you can amend the Trade-marks Act to provide for criminal dispositions, statutory dispositions, and statutory damages--or you could have an omnibus bill with civil and criminal components that would ensure parity between trademarks and copyright, so not a different outcome, depending on which rate you can fit yourself under.

Copyright

[Monique Guay, Bloc, Rivière-du-Nord, QC]

Mr. Speaker, this week, representatives from 90 cultural organizations in Quebec and Canada have denounced Bill C-32 on copyright. They demand major changes to the bill to meet the needs of creators. By introducing a number of exceptions to copyrights, the Conservatives' bill robs creators of their livelihood.

Why is the government attacking the livelihood of artists who, for the most part, receive only a modest income?

Canadian Broadcasting Corporation

[Dean Del Mastro, Conservative, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, it is remarkable. The Conservative government, our party, campaigned to maintain or increase funding for the CBC and we have done that each and every year. We have kept our word regarding the CBC and it knows it can count on us.

Do members know what artists and creators cannot count on? They cannot count on the support of the Liberal Party. Bill C-32, the balanced copyright legislation, is before the committee and the Liberals will not allow the committee to meet enough to get that bill through this House. It is a shame and a disgrace.

[Terrance Oakey, Vice-President, Federal Government Relations, Retail Council of Canada]

Thank you, Mr. Chairman.

The Retail Council of Canada is pleased to provide our comments on Bill C-32. As you stated, my name is Terrance Oakey, and I'm a vice-president with the Retail Council of Canada.

Our members speak for an industry that touches the daily lives of Canadians in every corner of the country and one that directly contributes close to $75 billion in GDP, invests $5.9 billion in infrastructure and machinery, $1 billion in logistics, and is also quickly becoming the number one job-creating sector in our economy.

Our industry is innovative and highly reliant on emerging technologies, with one goal in mind: to deliver the highest-quality product and service to the customer in the most cost-effective manner.

Our members sell the very cultural products that this bill intends to protect, so it is in our members' interest to advocate for the best balance between the public and consumer interest on the one hand and the interest of creators, producers, and distributors on the other. RCC has always taken this approach, whether before committees such as this or before major court cases relating to some of the issues that I will deal with today.

I want to focus briefly on five issues in my opening remarks. I believe members of the committee have our submission, so more detail is provided there.

The first issue I want to deal with today is the levies, or some have referred to it as the iPod tax. Even though it is not addressed specifically in the bill, the issue has loomed large in the public debate around copyright. Our members feel that there are good reasons to ensure that the blank media levy is not extended to iPods, and actually should be repealed altogether.

We believe the tax is obsolete. There is nothing like it in the U.K. Australia, or, most importantly, the United States. Most of our retailers compete head to head with U.S.-based retailers. If it is expanded to iPods, we believe it will creep to cellphones, BlackBerrys, and even computers, and it will drive sales away from Canadian retailers.

Although there is persistent denial by iPod tax proponents, the fact is that in SOCAN's most recent attempt at the Copyright Board to impose a levy on digital audio recorders, they asked for an amount of $75 on each recorder with more than 30 gigabytes of memory. In other words, that would cover basically your classic iPod. We know now there are many devices that have three times this amount of memory in their capacity.

This tax would put Canadian retailers at a significant competitive disadvantage and I would argue would simply further incent Canadians to buy their devices outside our borders to escape this fee.

Our next issue is parallel imports. RCC is concerned that clause 4 of the bill may inadvertently affect the ability of retailers to bring in parallel imports of legitimate and competitively priced goods from abroad. This practice of parallel importation is expressly permitted by the 1996 WIPO treaties and other World Trade Organization agreements, and it is seen by consumers and retailers as being an indispensable tool in the maintenance of free trade, competition, and the prevention of international price discrimination.

We do not believe the government intended to change the status quo, so we suggest that this provision either be omitted or that the bill be amended with improved wording that would maintain the status quo. In our more detailed submission, we provide such wording.

Our next issue is fair dealing and exemptions. Our members believe that the performance of music for the sole purpose of demonstrating any consumer electronics device or selling CDs or DVDs should also explicitly be included as an exemption in the legislation. This would be perfectly consistent with long-standing American legislation that deals with this precise issue.

It would also be consistent with the fact that iTunes now can show or sample a song for up to 30 seconds without paying this fee. This is yet another example where bricks-and-mortar retailers are at yet another competitive disadvantage compared to their major trading partners.

Our next issue is photofinishing. As many of you are aware, today's inexpensive, high-tech cameras allow almost anyone to take pictures that look somewhat professional. Some of our members are becoming concerned and are refusing to make prints because they fear being sued under statutory damages, which can be as high as $20,000 for each photo.

This bill should include an explicit exemption that immunizes any commercial photofinisher who acts in good faith and relies on a written representation that the customer has the right to request the reproduction.

Our next issue is technical protection measures. We join the chorus of many manufacturers of consumer electronics, and many artists themselves, who believe that overly rigid measures to protect digital locks are bad for artistic creativity, bad for innovation, and bad for the retail business.

Consumers should be free to do whatever they want with their legitimately purchased hardware and software, as long as that use is for private purposes that are otherwise non-infringing. That is all that is required by the WIPO treaties, and we believe that is as far as Canada should go.

That concludes my opening remarks.

Howard or I will be happy to take your questions.

Thank you.

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

Okay. Thank you very much.

Mr. Kerr-Wilson, I wanted to ask if you could please speak to the role of ISPs in ensuring legitimate use, and under Bill C-32, the important rights and responsibilities that ISPs have.