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.

Copyright Modernization Act

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, Madam Speaker. So I would be interested in your answer to those suppliers of that and those artists and the complaints about digital locks for libraries, not allowing them access to information, which I am sure you have heard as well.

[The Acting Speaker, NDP, Denise Savoie]

Again, comments through the Chair.

The hon. minister.

[James Moore, Conservative, Port Moody—Westwood—Port Coquitlam, BC]

Madam Speaker, there is a lot packed into that question. I will just sum it up this way, because you are obviously signaling that you will not allow answers of more than 30 or 60 seconds.

We tried to get the appropriate balance, and the truth is, if we move one element of this bill over, if we expand fair dealing a little bit, if we open up the digital lock protection provisions of the legislation a little bit, we will have a whole new constituency of people who are upset with it. We tried to take the full scope and scale of those who are requesting change in our copyright regime: educators, movie industry, film industry, everybody concerned, especially consumers. We tried take in the full scope of what was in their best interest, and we think we have struck the right balance.

We think the issue with digital locks is a central element. If a person is a creator and has created a product, a piece of software, and has decided to protect it in the way that person chooses to protect it to engage in the marketplace, we think that person has the right to protect what he or she has created, in the way he or she has chosen to protect it. If people want to hack around that or break a digital lock without that person's consent, that person has the right to protect his or her own intellectual property. That is pretty basic. In terms of those who argue that digital locks should not be a part of this legislation, I just frankly disagree. I think they are wrong.

There are elements of the bill on which we can agree or disagree, certain defining elements of education and how that should be dealt with in fair dealing. There are certain things on which we can agree or disagree. But if a person creates some software and decides to put a digital protection measure on that software and to engage in the marketplace with 90-day trials in which things are locked down afterwards, and so on, if the person chooses to engage in that and chooses to protect his or her intellectual property, that person should have the right to protect his or her property in the way he or she chooses.

Obviously as part of this legislation, it should be illegal for one to hack somebody else's property and to steal it and put it onto BitTorrent and spam it around the Internet and degrade people's capacity to actually make a living on what they are doing.

The start of the hon. member's question was very profound. I do not want arts and culture creativity, the software industry, the video game industry, the creative community in this country, to become a hobby. I want business models to be able to work in this country, and that requires a strong and robust copyright regime.

[The Acting Speaker, NDP, Denise Savoie]

For the information of hon. members, when I see a lot of members rising, I try to keep the questions short and I try to balance the question and the answer in terms of time.

Resuming debate, the hon. member for Westmount—Ville-Marie.

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

Madam Speaker, it is with great pleasure that I rise today to begin the long awaited debate on Canada's proposed new copyright law, Bill C-32. If I may be permitted a personal comment, I would like to say that no other proposed legislation has occupied my time as the industry critic for my party as much as this bill has, nor have I received more visitors knocking on my door to discuss proposed legislation than for the case of Bill C-32. Suffice it to say there is a very large number of stakeholders watching very closely as Bill C-32 moves forward in the House.

I would like to go over the context in which we are undertaking this important task. Canada is right in the thick of its transition to the digital economy, which is having a major impact on our artists, writers, musicians, software developers, film-makers, photographers and others who create material protected by copyright.

We all recognize that the creators who inform and entertain us are major economic drivers. In Canada, according to a 2007 Conference Board of Canada study, culture generates over $80 billion in direct and indirect economic spinoffs every year. That accounts for more than 7% of our gross domestic product and creates about 1.1 million jobs in this country.

The digital economy is changing culture in this country. It is also changing our society and our economy. The information and communications technology sector employs some 600,000 Canadians and spends $6 billion a year on research and development. The digital economy is flourishing around the world. Last year, OECD countries invested nearly $3 trillion in hardware, software, communications and IT.

I know that Canada can play a leading role if it positions itself to exploit its full potential in this key sector. That would really boost the country's economic growth.

Among other innovations, the last decade brought us Facebook, the iPad, and YouTube, which have given Canadians unprecedented access to myriad choices. They have also presented a challenge to creators in terms of protecting the integrity of their work.

Unfortunately, when it comes to copyright, Canada has, for too long now, been way behind in terms of global best practices. Our outdated copyright legislation has been the subject of international criticism.

A 2005 OECD study found that Canada had the greatest per capita number of offenders engaging in illegal file-sharing. In May 2009, the United States put Canada on its blacklist of countries designated as being especially lax in protecting intellectual property, a list that includes Algeria, China, Russia, Pakistan, Indonesia and Venezuela.

Copyright and intellectual property protection have become a crucial component of trade talks with the European Union.

The time has come to ensure that our artists and creators receive fair compensation for their work and that, in this digital era, our entrepreneurs are compensated for their innovations. Canada must modernize its copyright legislation.

In short, the time has come for Canada to adopt a fair and balanced copyright law, one that takes the needs of both creators and consumers into account.

The Liberal Party of Canada is taking the following position with respect to the proposed copyright legislation. Bill C-32 takes a number of important steps to modernize copyright law, and at this time the Liberal Party will support sending the bill to committee. However, we believe serious challenges remain that must be addressed at committee.

Specifically, the Liberal Party has problems with digital locks and technological protection measures, or TPMs. The Liberal Party has concerns with the application of new TPM circumvention amendments in Bill C-32.

Specifically as it applies to music, video and other digital media, the Liberal Party believes the Copyright Act must allow Canadians who have legitimately purchased a CD, DVD or other product the ability to transfer their purchase onto other personal devices, such as an iPod, or make a personal backup copy on their computers so long as they are not doing so for the purposes of sale or transfer to others.

We do not believe that Bill C-32 achieves that principle at this time. There are various ways in which a solution could be found and we look forward to examining the different options in committee.

Let us talk about the exemption for the education sector. The Liberal Party agrees that educators need flexibility in order to ensure that education is as enriching as possible. However, we must see to it that authors and creators are paid fairly for their work. The education sector is in the best position to convey the message that copyright is important, and we must ensure that Canadians understand that it is important for our creators to be compensated fairly for their work.

With regard to the exemption for the education sector, the Liberal Party will attempt to amend the bill by proposing to clarify what exactly constitutes “fair dealing”. Naturally, the secret of a good policy always resides in the right balance. By defining what is fair, we will ensure that the law gives educators the necessary flexibility while offering artists, authors, and creators a better guarantee that their works will be protected.

Another issue is mash-ups. Bill C-32 creates a new exemption for user-generated content. However, it is broadly written and can create a potential opening for abuse. We will seek amendments to tighten the language to ensure that the mashup exemption can only be used for its intended purposes and not unexpectedly create a loophole for further copyright infringement.

On the subject of statutory damages, Bill C-32 defines new statutory damages for infringement of copyright. Many stakeholders have expressed deep concerns about this section. The Liberal Party believes applied statutory damages must be commensurate with the severity of the infringement.

With regard to the exhibition in public of works of art, the present Copyright Act defines the right to be compensated when a work created after June 7, 1988, is exhibited in public. The Liberal Party believes that this provision discriminates against artists who created works before 1988.

As for the resale of works of art, throughout Europe artists are compensated when their works are sold and then resold. The value of an original work may increase over the years and artists believe that a portion of the difference between the original price and the resale price should be paid to them. The Liberal Party proposes studying European practices in order to find a better way to compensate Canadian artists for their works.

Furthermore, the Liberal Party would also like to look at other technical issues surrounding, among other things, the collective responsibilities for neighbouring rights and the definition of exemptions with regard to hosting, information location tools and network services.

Modernizing Canadian copyright legislation is vital for our economy, job creation and appropriate compensation for our artists and creators. We believe that this modernization can best be achieved through dialogue and collaboration and we hope that all parties will work together to achieve this objective and to ensure that Canada continues to make a cultural contribution to the world.

[James Moore, Conservative, Minister of Canadian Heritage and Official Languages]

Madam Speaker, what my hon. colleague has put forward as the Liberals' position is interesting. It seems to me that he has a concern in one area that frankly ought not to be a concern, and then he has opened the door on another area of policy. I am wondering how he reconciles having a concern in one area and not the other.

He says that he is concerned that the legislation allows for mashups. For those watching, what that means is people might mix two songs together, for example, use the instrumental or drum portion of one song and the lyrical portion of a different song, put them together and experiment with songs. We do not see a problem with that, but he seems to think there is a problem with that.

We think the idea of having a certain song underneath a wedding video is okay. We want to allow people to experiment a bit if they so choose with the media that they have purchased, obviously so long as there is not a digital lock that prevents that from happening.

On the other hand, he says that he is concerned with the technological protection measures, the digital lock provisions of the bill. Every single arts and culture and creative community organization across this country, all of them support this portion of the bill. Is the Liberals' position really that they are not in favour of the digital lock provisions of this legislation?

Removing that portion of this bill would be devastating to Canada's cultural and investment communities. It would be devastating to the software and video game industry, which represents 14,000 jobs, many of them in his own riding. I think there are 10 software and video game companies in the member's own riding. All of them support this protection in the bill.

Is he really saying that he wants to strip away technological protection measures in the bill? Every single cultural organization in this country supports those measures. That would be a huge mistake, if that is what he is proposing.

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

Madam Speaker, I really wish the minister had clearly listened to what I said. This is politicking as opposed to actually listening. This is a complex subject and I wish he had clearly listened to what I said.

I, at no time, said anything against digital locks and TPMs. What I said, and I hope he will understand it this time, is that if people legitimately purchase a copyrighted product, and remember, they paid for it at the front end, if they want to transfer it to another device for their purposes, for copying or for their personal convenience, and it has nothing to do with reselling or commercial exploitation of that product, then they should be allowed to do so. We will work with the committee to try to find a way to make that possible. That is all I said and I hope that is clear to the minister at this point.

With respect to mashups, mashups need to be defined in the sense that people can copy somebody's work, let us say a piece of music, and at the very end, after it is over, add one little thing and call it a mashup. We just want greater clarity as to what actually a mashup means. Obviously if it is bits and pieces from different places, that is fine with us, but we need more clarity on the definition of a mashup.

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

Madam Speaker, I was listening to the back and forth between the minister and the Liberal critic on what was exactly under the digital lock, and I noticed my colleague, the minister, did one of those wonderful sleight of hands that the Conservatives do on this. He is telling us all about how great the mash-up thing is as long as there is no digital lock, and if there is a digital lock, then we cannot touch any of the rights that we would otherwise have.

In this bill, the government offers a whole series of rights that nobody can exercise if it is in the digital realm. The fair dealing rights can only be accessed if there is not a digital lock on it. The mash-up rights can only be accessed if there is not a digital lock. The government says that this is to bring them into compliance with WIPO, but in fact under article 10 of the WIPO Copyright Treaty, it says that the protection measures cannot override the rights that would otherwise exist, so that the rights that exist within this bill cannot be overridden by an adjunct measure, which is the technological protection measures.

I would like to ask the Liberal Party if it would be willing to work to amend this legislation so that the rights that are guaranteed to citizens can be legally accessed, and separate that, as my colleague the minister had said earlier, from people who would break a digital lock in order to steal works and put it on BitTorrent. It is a distinction that is recognized by numerous other countries that are WIPO compliant.

Does he think it is possible for Canada to understand and make this distinction?

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

Madam Speaker, the Liberal Party intends to take a very constructive approach to this because this is extremely complex legislation.

The issue of digital locks and TPMs are certainly very central to this whole thing. Let me repeat that the concept of digital locks or TPMs is not a subject with which we disagree. We want to make clear that individuals who purchase a product should be allowed to move that from one device to another for their personal use.

As it stands at the moment, Bill C-32, as proposed by the government, says that if there is a digital lock or a TPM on a product, then it would be illegal for a person to transfer it to another device for his or her personal use.

We have difficulty with that and it is something we definitely intend to explore. We will work with the NDP, the government and the Bloc on this issue.

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

Madam Speaker, my question is for the Liberal Party critic. He said that he would like the bill to be referred to committee and that he plans to propose amendments. Are the amendments he is talking about today all sine qua non? In other words, if the amendments are not made, will he vote against the bill at third reading?

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

Madam Speaker, I thank my hon. colleague for her question.

In my speech, I talked about the issues addressed by this bill. We would like to work in co-operation with the other parties to make changes that will better serve the needs of the people concerned, specifically consumers, creators and businesses. Our approach is constructive. We are all going to have to make concessions when it comes to this bill, which is extremely complex and polarizing. We plan to take a constructive approach and work with the other parties to come up with a solution that the majority can agree on.

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

Madam Speaker, when it comes to TPMs and digital locks, one of the concerns is if a consumer buys, and I will use one company for an example and my apologies to it, an Apple device and then buys a song through that Apple device, he or she can only use that song, movie or whatever it may be for a suite of devices only sanctioned by Apple. It cannot be used on another type of device. It pushes people into a corner where they are forced to only use a particular company's brand or suite of products. I think this concerns a lot of people.

It has become an issue with the education community as well. On the one hand, we have the exemption, but on the other hand, they cannot circumvent or look into digital locks.

Could the hon. member address that?

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

Madam Speaker, this is a big issue. The government said this morning that it now allowed for format-shifting and time-shifting. Then, as an aside at the end, it said that if it was protected by a digital lock, it could not be circumvented, except if there were specific defined exceptions in the bill.

Again, the issue is, in this case, addresses the consumer who may want to take a product that he or she has downloaded or purchased in a store and move it to another device for his or her own personal enjoyment and purpose.

We would like to talk about ways we can accommodate that, because the person has paid for the product upfront and is simply moving it from one device to another. This is problematic at the moment, and we would like to see if there is a way to solve it.

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

Madam Speaker, the Bloc Québécois believes that Bill C-32, whose goal is apparently—I repeat, “apparently”—to update the Copyright Act, does not achieve that objective. The Bloc also believes that it needs to be amended in committee in order to do justice to artists, copyright holders and copyright in the truest sense of the word. Without amendments, this bill will be unbalanced and will favour large corporations at artists' expense. I will explain this.

The approach in this bill is disheartening. The government says it is helping artists, but it is not putting its words into action. Yesterday, in the House, the Minister of Canadian Heritage and Official Languages said that on May 10, 2006, the Bloc had voted against the Conservatives' budget, which included a 20% increase in the Canada Council's budget, but that is an error. I do not know whether it is unparliamentary to use the word “error”, but the fact remains that the Bloc voted in favour of the Conservatives May 10 budget that included a 20% increase. It was not an increase so much as a cut to the increase previously announced by the Liberals. The Liberals had announced a $150 million increase, which was then reduced to $30 million. We see that the minister is twisting words and passing himself off as someone who is helping artists. He says he is helping them, but he is not. The Bloc Québécois obviously voted against the bill the government introduced in 2009 to take money away from artists.

My point is that the principle has not changed. What the government and its ministers are saying and what they are doing are two different things. It is all well for them to keep saying that they are helping artists, the fact remains that the approach in this bill is totally unbalanced. In fact, what this bill does is help major U.S. companies.

It is too bad that people are not listening because some interesting things are being said. Madam Speaker, can you please ask the hon. members to be quiet? Thank you, I think that calm has been restored.

This bill is totally unbalanced because it benefits major U.S. companies and major computer gaming software companies to the detriment of artists. There are two totally disheartening approaches in this bill and seven deadly sins, if I can put it that way.

The first approach is one using digital locks. Sure, we can say that digital locks are necessary, and that they must be respected, but to base an entire bill on them is a bit much. With this bill, the government is telling artists that if they want to make money, all they have to do is put digital locks on their musical works to prevent anyone from copying them. If people want to make a copy for themselves, or to transfer the music to another format, it would be absurd to make them buy the original work again. That makes no sense, and it will not work. We are talking about the survival of artists and their art here, and this is important for many reasons. An approach based on digital locks is completely ludicrous.

This bill was developed for the big American film and video game companies, and digital locks meet most of their needs. For these big American and European film and video game companies, the government did a good job.

But the bill does not address the needs of artists. Artists do not want to put locks on their musical works. They do not want to restrict the distribution of their works; they want people to be able to enjoy them. But for that to happen, we need to modernize the Copyright Act and maintain the royalties and levies in the existing act. But that is what the government does not understand.

I spoke about seven deadly sins. The first should come as no surprise, since I was the one who moved a motion in the House to modernize the current Copyright Act in order to maintain the levy on digital music recorders, a motion that was adopted by a majority in this House.

Not having these royalties is like depriving artistic creativity of oxygen. Not having these royalties means that artists will no longer earn enough to continue doing what they do. I am not making this up. Earlier, the Minister of Industry and the Minister of Canadian Heritage spoke about taxes. It is incredible that ministers who should be sensible and should understand the meaning of words are using the wrong words and giving disinformation in order to reach their goal, which is to help American companies.

The system of copying for personal use needs to be updated. This system exists already; it is already in the law. We just need to add “digital audio recording equipment” to “cassette” and “CD”.

The exception known as the “YouTube exception” allows a mother to post her son's first steps on YouTube along with music, used in good faith. That seems nice enough but it opens the door to a whole slew of music piracy. The scope of this clause needs to be reduced, and these so-called works created from other works should be banned. That is exactly what it means to respect artists' rights.

In addition, Bill C-32 should require broadcasters to pay for ephemeral copies. Again, this clause is poorly written, unbalanced. It benefits broadcasters and, again, takes money from artists. It takes away royalties that would come to them.

And the damages that a copyright owner could be paid should definitely not be capped at $20,000. That is like saying that any pirate can put $20,000 on the table and can make millions of dollars with a copy they have made. It makes absolutely no sense to cap damages for a work that has been copied.

We must also make Internet service providers more accountable. There are two ways of doing so. On the one hand, they could contribute to content costs, as called for by AGAMM, an association that maintains that free music is a myth. This Quebec artists' association wants Internet service providers to pay them royalties. On the other hand, we must also make Internet service providers more accountable by forcing them to be proactive to stop piracy. I am not convinced that the notice and notice system—as it is commonly known—is working. That is, when people realize their work has been copied, they inform the Internet service provider, which simply sends a letter. I am not convinced that this works. It would be very interesting to examine this aspect in committee and look at the consequences of an escalating response. We definitely need to examine this aspect very seriously. However, it is clear that the status quo is not enough.

As I said earlier, the seventh deadly sin of this bill is the digital lock, which cannot be the cornerstone of a bill to protect copyright. This would mean that consumers could no longer make copies for their own use on their MP3 players. The minister said earlier that everyone supports digital locks. That is false. Consumers' associations do not support digital locks. The following quotation is from a news release dated June 4, 2010:

The Canadian Consumer Initiative or CCI [an umbrella group of consumer protection agencies] deplores the fact that, with this bill to reform the Copyright Act introduced earlier this week [on June 2], the federal government is once again abandoning consumers and giving in to the demands of corporations.

The members can read it. It was dated June 4 and can be found on the Canadian Consumer Initiative website and the Union des consommateurs du Québec website. It is quite interesting and explains why this will not help consumers. When the Minister of Canadian Heritage and the Minister of Industry say that no one opposes protection measures, they have it all wrong, because in fact, many people object to these digital locks. Once again, the Conservatives are denying reality.

The Bloc Québécois wants to amend this bill in committee. We think it needs to be amended according to four basic principles. First, we have to find a way to compensate artists and copyright owners. Musical works are not free. Music is not free.

Music belongs to artists, and artists have the right to be compensated when people listen to their music in different formats. We have to encourage creation and dissemination. That is the Bloc Québécois's second principle: supporting dissemination.

New technologies improve access to the things people create, and consumers should be able to benefit from that. I doubt that digital locks will support that. We have to promote the dissemination of artistic works on all existing platforms. Through its subsidy programs, the government must support dissemination via new media without negatively affecting conventional media, which are often where new works appear in the first place.

As I said earlier, music is not free. That is why the government must launch an information and awareness campaign for large, medium-sized and small consumers, who need to understand that music belongs to artists. People can buy CDs, they can buy music online and they can listen to it on rhapsody.com, but they must respect artists when listening to music. If they do not, creation, production and design will suffer, and we will be overtaken by culture from other countries, especially by American music.

We also have to crack down on what I call professional piracy. We know there are websites where piracy professionals make multiple copies or allow point-to-point or peer-to-peer transfers. This allows people to download and listen to music online for free. We have to crack down on this. We cannot just tell these pirates that it will cost them only $20,000 in damages every time they use a work of music. The bill, as written, may not be harsh enough. As far as damages are concerned, it is quite clear that we cannot limit the price of a work of music to $20,000.

In the upcoming debates on the so-called Copyright Modernization Act, it is clear that the Bloc Québécois will defend its principles any way that it can. We saw yesterday in the House with regard to the TradeRoutes and PromArt programs that this government does not defend artists and does not help them. In fact, the government does more harm than good. Bill C-32 will do more harm to artists than good. A number of groups are going to lose a lot, particularly in the publishing community. With the addition of a fair dealing exemption, some francophone publishers will end up closing their doors. What textbooks will we find in schools? They will be textbooks from other countries that have protected their culture and the copyright of their creators.

This government does not protect artists. It does not protect copyright and it does not protect copyright owners, which is consistent with its long “anti-artist” history. The Bloc Québécois truly hopes that, throughout Quebec, the jurisdiction of arts and culture will be transferred to the Government of Quebec. There is an overwhelming consensus on this. Quebec takes care of its artists, and one way it does that is by helping them tour internationally.

The Government of Quebec helps artists and copyright owners. The education sector is treated very well by the Government of Quebec, which pays royalties to publishing companies and artists when schools use their artistic works.

For the Bloc Québécois, the transfer of responsibility for arts and culture to the Government of Quebec would be a step towards what we really desire—our own country. Not only do we want to manage all our areas of activity, but we also want to support and help our artists.

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

Madam Speaker, in the tone of this debate, there seems to be two sides arguing vehemently against each other about the right for picking up for artisans and groups. I thought the minister of heritage made some good points earlier about how the government intends on doing that through Bill C-32, the copyright legislation.

On the other hand, however, the Bloc seems to think that it has the best points by which it will protect artists when it comes to this legislation. I do not doubt the Bloc on that, but I wonder where she thinks the government has gone off the rails when it comes to supporting artists regarding this legislation.