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

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Madam Speaker, I greatly appreciate the comments by my colleague from Eglinton—Lawrence. We have to realize that Bill C-32 is basically the third attempt to update Canada's copyright laws in the last six years.

The legislation has remained untouched since 1997, and the Liberal government attempted to update the legislation in the dying days of the Paul Martin regime with Bill C-60. Therefore this is a similar type of bill.

The Conservative government introduced Bill C-61 nearly two years ago but had to withdraw the bill in the face of widespread criticism that it was too cumbersome and too closely modelled on the restrictive U.S. DMCA, the digital millennium copyright act.

At first glance, Bill C-32 appears to strike a balance between corporate and consumer interests. However, my colleagues on the NDP side and, from what I can understand, also my Liberal colleagues are raising some concerns with respect to whether or not the bill actually does what it should be doing. I hope the Liberal members are true to their word with regard to their concerns and when the bill gets to committee they will actually be honest about wanting to change the problematic areas of the bill and will not look at passing a bill that is still going to be defective.

In looking at Bill C-32, we see that it treats breaking of digital locks for personal use the same as if the lock were being broken by commercial counterfeiting. I am trying to get some sense if the member is in agreement with me with regard to whether or not this is politically problematic, as it potentially pits artist groups against students and educational organizations.

I know the member spoke about the education aspect of it and whether we should actually be trying give criminal records to our students. I guess that is the bigger question. Should we be treating our students like criminals?

The member talked about the teachers and whether or not they should be destroying those notes. So again it is the cost to the education process.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Madam Speaker, I come to this discussion on the proposed changes to the copyright law from the position of someone who had been in the classroom at one time in his life as a teacher always looking for opportunities to make the learning process relevant to those who were eager to get out of his class. In so doing, I and many of my colleagues used all the resources available to us. That meant going to those who make it their life's work to create new experiences. In the creation of those experiences, they have the right to profit from their genius, creativity and, indeed, the efforts of many who commercialize that creativity.

As a classroom teacher, I availed myself of many with that creativity. It was not always somebody who had the greatest piece of art or the greatest creation of an artifact or even someone who had written the greatest book. Sometimes it went so far, believe it or not, as picking a column out of a newspaper and giving people an opportunity to address all of the issues raised, how they were raised and how they should be addressed. In so doing, we actually photocopied some of these things and distributed them.

Now we are talking about an archaic age in communication. The consumption is still the same. Today we are in a digital age and Bill C-32 is an attempt for Canada to catch up to the digital age, not to enter into it. If one were to speak with young people, such as the pages in the House, they are experts and maybe we should have them stand up here and address these issues. We would learn a lot more from them than we are going to learn from members of Parliament.

We are good at identifying what the problems are, but they will give us the solutions. Why will they give us the solutions? It is because they have grown up and lived with the technology that we say is the new digital age. They are addressing the same problems that I addressed when I was a classroom teacher. High school students were always looking for a way to do something else because it is the nature of the age in that chronological part of our lives to be inquisitive, to look for solutions, to look for ways out, to look for alternatives.

When someone is a creator, the first thing we do is ask what we learn from that. Whether one admits it or not, that is really what one does. Teachers used to do that and maybe some university professors still do that. What we try to do is avail ourselves of the creativity of others. We do that in the classroom. We also do it in the arts industries, primarily music and the graphic arts industries.

Today, the digital age in which we find ourselves has made it much more easy and speedier to avail ourselves of somebody else's creativity. That is good, but in so doing we have been running the risk of eliminating the creator's right to profit from that creativity.

We know that modernizing Canada's copyright law is an absolute necessity. We have to catch up. Changes to the copyright legislation may also have to protect the rights of consumers. If we think for a moment about the example I gave, which is a personal example and I hope everyone will forgive me for it, the cost to educate the next generation of Canadians will be astronomical if every one of the classroom practitioners were to respect the letter of the law that prohibits a photocopy, or in this case, a file share. The cost would be horrendous. It is a question of balancing the commercial cost and commercial benefits.

Bill C-32 appears to meet some of these challenges. One should not always say that an initiative is negative simply because the Conservatives raised it. That would be the safe thing to do, but the bill risks being undermined due to some of the provisions dealing with digital locks and the technological protection measures, which some of my other colleagues have referred to as TPMs.

It seems a contradiction to say that a person could fairly use copyrighted items for certain purposes, but that the manner used to obtain them would be illegal. That is true. We need to clarify what we mean by that, otherwise we will be spinning around in circles over and over again. The moment we put the legislation in place, someone will find a vehicle, an avenue or a way to get out.

If Canadians have legitimately purchased a CD, DVD or other product, they should have the right to use that medium or any other device as long as it is not for commercial gain, because the commercial gain is resident in the person, persons or company that actually created whatever it is that is going to be used or shared.

It would be a waste of taxpayers' money and a betrayal of the public trust if Canadians, and I am now specifically talking about young Canadians, were fined or charged because they wanted to watch a movie they purchased on a DVD. We get into a situation where we are going to criminalize many people who are taking some things for granted because we have never really said that such activities are or are not legitimate. We have not identified that we would infringe on the legitimization of those items.

Other groups have expressed these concerns too. It is not just those of us who have been teachers, are teachers, or who are parents of a teenager, whose hair will grow my colour; other groups have expressed concerns as well.

The Quebec bar association, for example, in a letter to the ministers of heritage and industry states that the bill is severely flawed. I do not know why it is that we as parliamentarians constantly conjure up solutions that are so deeply flawed that people who deal with this every day see the holes in it immediately. We do not come here and extol the virtues of actually doing something. Specifically regarding Bill C-32 bar association officials say first of all that it does not meet Canada's international obligations as it goes against the three-step test before granting exceptions without remuneration to rights holders.

Think what that means for a moment. It really suggests that people have not done their homework in terms of what it is that has to be done. International bodies have a particular test and we do not meet it. We have not done that elementary homework. They also say it raises problems of coherence with international and provincial legal text and is ambiguous in the treatment of the responsibility of Internet service providers.

Now we have the medium, but those who activate the medium or who make it possible for all of the creators to get on the medium are also liable. This legislation does not address their liability and their responsibilities accurately, currently and effectively enough. That is from a bar association. I am assuming its officials had to talk to some consumers and experts in the use of the Internet either for file sharing, for pleasure, for education, or for the conduct of business. As I said, they probably did not talk to some of the young people who are in this House.

It introduces legal uncertainty, and whenever we introduce legal uncertainty, we are encouraging litigation. As a piece of legislation, this body representing lawyers is saying that it is good for the lawyers because if this bill is passed, there will be more people knocking on lawyers' doors. We will hear the sound of cash registers. Well, nobody uses cash registers any more; that is another archaic reference.

It reminds me of my own dad who wanted me to become a lawyer. There were at that time 4,000 lawyers in the province of Ontario. I think there are now 26,000, so my dad would have been right. He would have said, “Even if my son is not very good, look at all the market that is out there looking for bad lawyers”. It has increased from 4,000 to 26,000. Everybody is going to keep going ka-ching, as my colleague from Cape Breton—Canso said.

Those lawyers are honest enough. I realize some people would like to play with that, but those lawyers and those law associations are honest enough to say, “Pass the bill as it is and make us richer”, because that is what we will encourage, litigation. It creates exemptions, they go on to say, that depend on conditions that are either unrealistic or impossible to verify. They speak about the amounts of moneys and energies that will have to be consumed in order to bring some of these items to a forum where litigation is the order of the day. Can we avoid that? They are telling us to.

It introduces a dangerously imprecise concept of education that I talked about a few moments ago, and fair dealing, because according to the bar association, one can expect several cases of litigation, given the way the bill is written, on education alone. My principal, before I became one, said to me, “Do not go copying any of this stuff. Do not go distributing it to students. Do not do this. Do not do that”. “I have got a piece of chalk and a blackboard. Is that the way you want me to conduct my teaching?” “Well, we cannot afford to get sued.” I would not get sued if I referred to a book. However, if I copy a page out of the book, I am in trouble. If I want my students to have something physically in front of them, how do I overcome this liability that I will incur the moment I stand up in front of the class and say, “Hey, isn't this really great? You know that guy; he had great ideas, and let us take a look at it” and go on from there. I am not going into pedagogy, because it was boring then and it is boring today.

My point is that education is still the same process. It is still the same. The media and the techniques may vary, and we cannot expose today's teachers to litigation or potential for same. That same bar association says it negates the collective exercise of copyright and favours individual litigation through impractical and unrealistic remedies. So thank goodness we have members of Parliament who can read, because we actually read this material. Now we are looking at this proposed legislation in the context of some expertise from the legal side, but not from the technical side just yet.

The legal side says here is the ultimate test of unfairness. It removes remuneration from rights holders, thereby ruining the existing equilibrium between creators and users of protected material, contrary to the very objectives of the law. Certainly, if we want to make good legislation, we have to think that the legislation we propose and pass in this House has to meet that first test of balance so that it is fair for you, Madam Speaker, it is fair for me and it is fair for all those who come in between or who depend on us. It may not be the absolute thing, but at least it has to be a balance. It cannot be too much of one or too much of the other.

One can see that the bill tries to fix a problem introduced in and by the digital age, but we have been in this age for decades. As I said, these young pages were born in the digital age; they know no other. Yet here we are. We are trying to find a system that adequately compensates artists, because that is a word we have not used often in our debate so far. We have talked about creators, but really, they are artists, because that is the difference between a creator and someone who practises what has already been created. If somebody is artistic, it goes beyond the genius of a simple mathematical or scientific solution.

If we are going to find a system that adequately compensates these artists while recognizing the realities of the current world, this bill cannot be judged to work, and it will not work in the long term because that balance is gone.

The bill ignores the fact that people share files all the time. Ask any high school student, any university student, and we will receive a lesson, as I do all the time, on the latest file sharing techniques. There is always somebody out there who is smarter than the next person, and the moment one solution is imposed, somebody finds a different way to get around it.

The Conservative government aided in the creation of this file sharing culture. We might think this is good. Sure. But by not stepping in at the outset, the Conservatives implied that while file sharing might not necessarily be legal, there is no consequence to file sharing illegally. In other words, there is no consequence. No law is being broken if no law is being enforced.

There are people who are obviously interested. We have the advantage of these new technologies. A constituent of mine is following the debate today and says that it would be like a Brink's truck crashing and having all the cash fall out. At first nobody does anything, but eventually someone goes and picks up a bundle of cash, looks around, and there are no police officers. Other people show up. They pick up another bundle of cash. What do you do? You call the police. Of course that is the right thing to do, to try to enforce something. Meanwhile, a lot of people have walked away with a lot of cash.

That is why the government is implicitly culpable in the circumstances it is trying to address today. It has done very little to address the problems of the digital age when it comes to protecting the rights of artists and creators and balancing the rights of consumers and learners.

We need to create new business models not only as a government, but we need to engage industry so that it can provide those new models for us. Government needs to work with them as we move in a satisfactory direction.

Is there any example out there that we might use? The Apple iTunes that some people engage in, the 99¢ songs, is one example of the industry reacting in a positive way. I note that there are a lot of others. These ideas must also be encouraged.

Some of my colleagues have talked about mashups, statutory damages, public exhibition of arts, resale of arts, recordings, et cetera. These are the items that some of the stakeholders raised, some who have visited me in my riding office and some who have lobbied. There is a word that is not always a legitimate word to use in anything, but they have lobbied members of Parliament from all parties to give them a sense of what is involved, to give them an education about the best way to handle these problems as proposed by Bill C-32.

As a member who has been here for some time, I am constantly impressed by individuals who come with the infusion of a new idea and want to be able to resolve this. I listen to them as all members in this House of Commons tend to do and should do. I often wonder why it is that the government does not follow the same thing. It is a tried and true road to success. The government needs to listen to the people who are creators, listen to the people who are artist creators, listen to the distributors, listen to those who commercialize and manufacture, listen to the consumers, listen to the experts on the material and listen, as I have tried to do, to those who have a legal framework into which we place all of it.

All of this is to say that if we are going to have to support an initiative of this nature we need to give it more careful study, and we are going to study this more carefully.

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

With respect to exempting broadcasting content over the Internet, do you think Bill C-32 goes far enough in supporting your decision to exempt?

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Mr. Speaker, I would like to take this opportunity to recognize the importance of this bill on modernizing copyrights. As a member of Parliament, I have spent a number of years working with my colleagues from all the parties to ensure that our country can support authors and copyright owners. That is an important principle.

We are at second reading of Bill C-32, which the government wants to move forward. This is not the first time we have seen such a bill. Before 2008, the government at the time introduced Bills C-60 and C-61, but they did not make it through. It is not true that these bills had a number of flaws and problems.

We are here today to talk about the importance of a bill that recognizes the changes going on in the increasingly technological world we live in.

The purpose of this bill is to modernize the Copyright Act to bring it in line with the digital age. I must mention some of the important changes that are being proposed. There are changes that would authorize individuals to make copies for personal use, such as recording television shows or transferring music onto an iPod or computer. There are also new rules that would make it illegal for individuals to circumvent a digital lock or a technological protection measure.

Furthermore, the bill gives new responsibilities to Internet service providers, which will have to inform copyright owners of a potential infringement of the copyright. As a party, we note the new exceptions regarding fair dealing for educational uses, for parody or for satire that are included in this bill.

Canada is definitely in the midst of a digital transformation. The dawning of the digital economy is upon us and it will no doubt have, and has had, profound impact on industries, especially our cultural industries.

It is clear that our aging copyright laws have received significant international criticism, which is not to be underestimated. The longer we remain behind in global best practices, the more Canadian artists and consumers will lose out. This initiative brings into play our international relations as well as the interests of consumers.

There are obviously a lot of ideas about what is in the best interests of consumers, and this is going to require serious attention in committee, where informed, serious debate will be held with a number of stakeholders, and all points of view will get a clear hearing.

We have all received significant lobbying from individuals, interested parties, stakeholders, and experts in this field. I appreciate these interventions because they are significant. This legislation and the work that we conduct in committee will, I hope, do justice to the attempts by many people to bring forth a better copyright law here in Canada.

A number of concerns were expressed by my colleagues prior to my taking the floor. Because of time considerations, I will not repeat them. Rather, I will focus on areas that my party and I believe are extremely important.

This is not a new issue for me as a member of Parliament. For a number of years, going back to 2006-07, I attempted to bring together an all-party copyright committee that would look at these issues.

I sat on the industry committee, where I am still a member, when we issued two reports on copyright, contraband, and other issues that were important to manufacturing and the evolution of technology, which we viewed in a context of modernizing our economic instruments.

Digital lock provisions allow Canadians who have legitimately purchased a CD or DVD or other products to transfer their purchase to their iPod or make a personal backup copy on their computer, so long, and I think this is the caveat, as they are not doing so for the purpose of sale or transfer to others.

That is what the legislation is looking to do. It distinguishes private personal use and commercialization. In some areas, a simple firewall can be established, but it is not clear and it becomes more clouded when we are dealing with new technologies and new electronics.

Many artists, many songwriters, many creators of art have expressed deep concern and substantial reservations about issues such as the new education provisions in this copyright legislation. They are concerned about mashups, statutory damages, and compensation for resale rights. While we have deep reservations, we will support this bill's going to committee and look for an opportunity to address the many concerns that have been brought forward.

We know the question of copyright is fundamental. It is important and must be treated with the same degree of seriousness that the public always expects from Parliament in enabling and modernizing legislation.

I explained earlier that Canada's shift to a digital economy has huge spinoffs for our cultural industries. I also mentioned that our copyright laws have been criticized internationally and that the more we drag our feet on global best practices, the more Canadian artists and consumers will lose out. We have obviously taken into consideration the fact that numerous artists, writers and creators have also expressed serious concerns about certain points, such as the new provisions concerning education, mashup applications, statutory damages and payment for resale rights. Despite these concerns, we are trying to make sure that this bill makes it to committee, where much more work can be done.

Since it was tabled, this bill has received staunch support and strong opposition from various stakeholders. The Liberal Party obviously supports modernization. However, concerns have been raised about numerous areas. The first is whether digital locks should take precedence over every other right to copy. The bill we are debating today, Bill C-32, provides for new rights authorizing Canadians to make copies for personal use, including format shifting—transferring content to a CD or iPod—as well as time shifting and making backup copies. The new provisions concerning digital locks take precedence over these rights. In other words, under the new law, a person who buys a CD that has had a digital lock on it cannot circumvent that lock to transfer the content to an iPod without breaking the law. Obviously this has given rise to some discussion. It is an extremely controversial point that was already contested when the Conservatives introduced their previous copyright bill, Bill C-61.

As a party, we obviously have concerns. As well, consumers have been passionate about sharing their fears about the digital lock provisions. We listened to these fears and we will listen to them again.

Other areas we would look at in Bill C-32 would be education. It has been mentioned here before, but the legislation introduces exemptions for copying, meaning teachers and institutions of higher learning. Education can now make copies of some work for education purposes and not infringe on copyright.

Broadly, the bill would implement two major changes. It would introduce making copies for education purposes as an exemption under Canada's fair dealing rules. It would also introduce several specific distance education exceptions to allow for copies used for lessons, communicated to the public through telecommunication for educational or training purposes. That public consists only of students who are enrolled in a course.

I think we can appreciate that there is in fact a growing concern and opposition to broad fair dealing exemption provisions. Writers and publishing groups in particular are very opposed. Fair dealing is so broad that question really becomes, what is in fact defined as fair? The writers and publisher groups believe new exemptions will give teachers and education institutions a veritable blank cheque to make copies of their work and to give it students. They believe teachers and educational institutions ought to compensate creators for their work.

In particular, one of the questions that arises is why private commercial education institutions should be permitted to disseminate works for education purposes without compensating copyright.

I do not need to get into the number of associations and groups that have advocated fair dealing exemption. They have to be taken in the context of the concerns that have been registered by those who freely and rightly create and ask that they be compensated for their work.

There again is another area that falls into what we consider the not so black and white debate about copyright. It is important for us to take and weigh both of these in accordance with the spirit of what the bill tries to achieve.

It would appear that another area we need to look at is the area known technically as mashups, and it is not something one would prepare at a dinner. It is the creation of an exemption for user-generated content where a personal movie is produced using music clips combined with personal video. Then, as some do, it is posted on YouTube.

In our view, this section is too broadly written. Under the rule, individuals can post an entire movie on YouTube as long as they add a small inserted clip at the beginning or the end. Then they can call the video a mashup. It is kind of the exemption given in this kind of circumstance.

We believe the language in this proposed legislation should be tightened to ensure that the mashup exemption cannot unexpectedly create what appears to be a loophole for further copyright infringement.

We are also concerned about the question of statutory damages. I raise this because I have not heard many other members talk about this point. The bill defines a new statutory damage provision of between $100 to $5,000 for all non-commercial infringement copyright.

A number of people to whom I have spoken, and who have come to meet with members of Parliament, have expressed concern about this section and believe applied statutory damages must be commensurate to, equal to and proportional to the severity.

That is an important factor that we must consider at committee. We may have differing opinions as to how these issues are going to be resolved. It would appear that the committee is going to be cast, once again, with having to judge two, or three or several very weighty issues.

The resale of art is also a new issue that has not really had a lot of attention, but it is one that leaves Canadian artists in a position of distinct disadvantage. As members will know, throughout Europe and in some parts of Central and Latin America, artists are rewarded when their works are sold and sold again. Original art increases in value over time and artists feel a share of the increase in value should be returned to them upon resale of their works.

At committee, we may wish to explore the European model or the European experience and see how Canadian artists can be better compensated for their work. Considering the level of interest that has now been brought forward, I am sure this is an area that our party and areas in other jurisdictions will be certainly interested in modelling as well.

It is clear that ephemeral recordings also present concerns for members of Parliament and will concern Canadians. To put that in perspective, currently copyright holders charge broadcasters for format-shifting their works. A simple example of this is a radio station that might purchase a song for broadcast. The current rules require the radio station to pay every time the radio station plays the song but, more important, when it transfers the song on to its computer servers.

As we know, modern radio stations are changing and these are being done in a way that outmodes and makes less necessary the old way of throwing a record on and paying someone at the end of the day. These are done and filed. Broadcasters want to simply pay once. Stations, whenever they play a song, do not want to pay again and again. The format shift, which is taking place will obviously do this time and time again, leaving artists without the traditional revenue stream they could once expect, basically as a result of changes in technology.

The right of copy for format-shifting and transfers is approximately $21 million each year to artists and musicians, creators of the works. Bill C-32 eliminates the ephemeral recording rights in the Copyright Act, eliminating this compensation to creators.

While I sit the industry side of things, we can all appreciate the importance of Canadian culture, Canadian music, Canadian songwriters and the great impact they have made as a result of these kinds of arrangements, constructed in large part by Parliament in previous times. We know the Canadian recording industry is sound and strong. We are very proud of it and we have to do everything we can, in modern times, to ensure it is effectively and equitably safeguarded.

I believe there is the basis in the country for solid rewrite and review of copyright. It is long overdue. Members of Parliament may have differing opinions as to where and how we view effective copyright legislation, but I think we recognize that as the world changes, as technology evolves, so must the panoply of laws and the framework that allows us to change with changing times. That is the pragmatic approach, which the bill will require in order for it to be an effective response to the demands, needs and realities that society, that those in the industry as well as those artists expect.

I am not only looking forward to the questions, but I am looking forward to the opportunity, with some of my colleagues in the House of Commons, to frame and to craft legislation that may meet those expectations. I am not saying that the bill is the be-all and end-all. It is a very important step and the first step in the right direction. It has a long way to go, but it is nevertheless a critical and very important and timely step.

I look forward to Parliament approving second reading and getting this to committee where the experts then have their work cut out for them. We can hear from Canadians and meet those expectations.

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

Mr. Speaker, I will begin my questioning in general terms about the speech the hon. member made regarding copyright legislation. As he referred to, there have been many forms of this in the past little while: Bill C-60 and Bill C-61 that provided a lot of input from stakeholders.

I know he wants the bill to go to committee but once it gets to the committee process, what are the most fundamental changes that he would like to push forward in regard to Bill C-32? Would it be the digital measures that we talked about? I know he talked a lot about the educational exemption. I wonder if he could expand on that and how he proposes to change that once it goes to a special legislative committee.

The House resumed consideration of the motion that Bill C-32, An Act to amend the Copyright Act, be read the second time and referred to a committee.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

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

I would like to start by praising the member for Timmins—James Bay. He is the first digital affairs critic in the history of Parliament, named by our leader to push the government on digital affairs. He has a background as an artist who has depended on copyright. This bill is a result of his endless efforts to try to get the government to understand, after four years of sitting on its derriere, that they had to take action on copyright. It is because of the member for Timmins—James Bay that the government has moved at all.

There are positive provisions in the bill. But as with virtually everything else the government has done, there is an element of ineptness, whether it appears in bad financial management, the treatment of veterans, or corruption inside the government. In fact, everything that the government promised four years ago it has managed to botch or deliberately mishandle.

In this case, we see provisions that we can only liken to digital torches and pitchforks. Having been thrown into the bill, these provisions diminish some of the good elements that the member for Timmins—James Bay was able to promote and put into effect.

We have been calling for a mandatory review of the Copyright Act. When we look at the history of copyright and the new technology, we see that this type of mandated review is absolutely essential.

We have new exceptions to the fair-dealing provisions of the Copyright Act. They create an exception for content creators that would enable the circumvention of DRM for the express purpose of reverse engineering. At the same time, they introduce a number of exceptions that artists have called for. But the problem is that the negative elements of the bill overshadow these positive elements.

Here we have the introduction of long-overdue copyright legislation, something the government has been sitting on for four years. But now we see that, as a result of mishandling, this copyright legislation is bringing as much bad as good.

This is a challenge for Parliament. In this corner of the House, the member for Timmins—James Bay has expressed our opinion that this legislation is long overdue. There are important elements that have to be brought forward, but at the same time, the digital torches and pitchfork of the bill have to be dealt with in committee. Though we would favour pushing this forward to committee, we recognize that the committee will have much work to do to fix this the bill.

The member for Timmins—James Bay talked about the history of copyright, about how new technologies have often been feared by those with vested interests in existing technologies. Player pianos, recordings, radios, computer access to music: all these new technologies experienced obstruction from established interests attempting to protect themselves.

Owing to the hard work of the first digital affairs critic in Canadian parliamentary history, the NDP is pushing forward with what we feel is essential, and that is a balanced approach.

This bill does not have that balance. That is the fundamental problem. The bill ignores the three key components that would give us a balanced approach: copyright maintenance, public access to artistic productions, and rewards for artists. This balance has not yet been achieved in the bill, despite the efforts of the member for Timmins—James Bay to inform the government and lead it in the right direction.

What are the key problems?

First, there are the digital locks.

Second, to provide artists with reliable revenue streams, we proposed extending the levy on materials for music-playing devices. That was an adult approach. We are saying that we need to extend the levy for new devices to ensure that artists receive the remuneration that they need to feed their families. The current government, however, has childishly challenged the adult proposals of the NDP. It has given this legislation a remedy that only large corporations could use: the so-called court remedy. If we go to court, we have to pay a lawyer. Struggling artists cannot do that. That is why there has been so much criticism of this bill.

Third, there is the whole issue of collective licensing, of fair access to educational materials. This is not in the bill. Yet it is something that New Democrats, notably the member for Timmins—James Bay, have put forward as a principle essential to all copyright legislation.

This omission is perhaps the most egregious aspect of this bill. It is one of these digital torches and pitchforks. I am going to read an excerpt from Bill C-32. This is what it says about students and educational institutes. This is the famous clause 27 that my colleague, the member for Burnaby—Douglas, cited earlier. It contains new provisions that would add a new section to 30.01 of the Copyright Act. It says it is not an infringement of copyright for a student to receive a lesson. “However, the student shall destroy the reproduction within 30 days after the day on which the students who are enrolled in the course...have received their final course evaluations”.

That is the famous 30-day, retroactive book-burning clause of this copyright. It is absolutely absurd that those in the gallery, students across the country, would have to destroy these educational materials 30 days after they received their final course evaluation. It seems absurd. When I first heard about this, I said that the member for Timmins—James Bay could not be right. But he was right again: these provisions are clearly in the bill.

It goes on, and it gets worse. Here is the legal mandate:

The educational institution and any person acting under its authority...shall (a) destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course...have received their final course evaluations;

The university, the college, the educational institution has to destroy the material. The student has to destroy the material. Penalties kick in if they do not destroy the material. This is retroactive book burning. This takes us back to the Middle Ages. It is digital torches and pitchforks. It is absolutely absurd. It is laughable that the government would even bring forward such provisions, but there they are in the bill. That is why we are saying that we will not stand for it. We are going to ensure that those provisions are taken out at committee, because they would create two classes of students in this country.

It creates a class of students, largely urban, who can access educational institutions very easily. In the world's largest democracy, which at length and breadth is eight million square kilometres, we cannot have students in northern communities, rural communities and aboriginal communities destroying the material they use online to try to get to the next level of their education.

This is yet another attack by the government on rural and northern Canadians. There seems to be a lot of it. The government simply does not seem to like rural Canada. It likes to use rural Canadians, but does not seem to like rural Canada very much if it put these provisions in the bill.

It goes on to say that a library, archive or museum or a person acting under the authority of one must take measures to prevent the person who has requested it from using the digital copy for more than five business days from the day on which the person first uses it.

Libraries, archives and museums, particularly those in rural areas but also those right across the country, have to prevent people from using a digital copy for more than five business days otherwise they will be in contravention of the act. That is absolutely absurd. What was the government thinking when it put provisions such as the 30 day retroactive book burning and the 5 day retroactive library burning in the act? These are absurd provisions. It is unfortunate that these provisions overshadow some of the good provisions the NDP was able to push the government to observe.

As I mentioned earlier, there are some positive provisions in the bill. However, here is the rub and the symbol of the government's ineptness on digital issues, and that is the digital lock.

Despite all of the principles that are put into play, the positive aspects of the bill and the exemptions, we hit the digital pitchfork at clause 41.1(a). This is not a long a clause at all. It says very simply “No person shall circumvent a technological protection measure”; that is TPMs, or digital locks. This means that despite all the protections, expansions and exceptions that may be in the act, it is overridden by clause 41.1(1), which simply put says a person cannot circumvent.

What does that mean? We are talking about the government imposing penalties of $5,000. It could be less. In clauses 41.19 and 41.2, we see what the courts are directed to do. This is a court issue. We are talking about protections and exceptions. If a company decides to put a digital lock on and a person even attempts to exercise the exceptions in the act, that individual is out of luck.

Clause 41.19 states that:

A court may reduce or remit the amount of damages it awards in the circumstances described in subsection 41.1(1) if the defendant satisfies the court that the defendant was not aware, and had no reasonable grounds to believe, that the defendant’s acts constituted a contravention of that subsection.

In other words, there may be a reduction if the defendant defends himself or herself. We might be talking about young kids or teenagers. We might be talking about students. We might be talking about librarians. Who knows. In that case, the person has to defend himself or herself in court.

We have talked about the five day retroactive book burning and the thirty day retroactive student book burning. Clause 41.2 states that if a court finds the defendant that is a library, archive, museum or an educational institution has contravened these sections and the defendant satisfies the court that he or she was not aware that his or her actions constituted a contravention of that subsection, the plaintiff is not entitled to any remedy other than an injunction.

These are not small exceptions. This imposes a digital lock above and beyond anything else. Therefore, the good components of the act, which we mentioned earlier, are then subjected to digital lock, the TPM, that the government has included in its legislation in the now infamous section 41.1(a). People just simply cannot contravene or circumvent a digital lock. That is absurd.

Here is what some of the folks have said about the bill.

The Business Coalition for Balanced Copyright has said, “some parts of the legislation unfairly restrict consumer freedom and need to be revised before being passed by Parliament such as the inability to circumvent digital locks for private use”.

The Retail Council of Canada has said, “parts of the legislation unfairly restrict consumer freedom and choice and need to be revised before being passed by Parliament”.

The Association of Universities and Colleges of Canada is concerned about the overly strict prohibition against circumvention of technical measures.

The Canadian Booksellers Association would like to see the government allow the public, particularly students and educators, to circumvent digital locks on materials sought for educational and strictly non-commercial purposes.

The Canadian Library Association has said it “is disappointed that longstanding rights, the heart of copyright's balance, as well as the new rights, are all tempered by the over-reach of digital locks”. I talked about that earlier. This is what our critic on digital affairs and the NDP have brought forward, that balance.

Today, in the newspaper, Alain Pineau, national director of the Canadian Conference of the Arts, said that it bypassed the issue of extending copyright collectives in favour of lawsuits.

We are hearing concerns about how the legislation has been put forward from a wide variety of sources across the country. Earlier the member for Timmins—James Bay talked about the positive comments about the levy we proposed for artists. The National Post and the Edmonton Journal were two of those newspapers cited.

We very clearly have public and organizations all saying that the NDP is right to criticize aspects of the bill. That is what we have done. The member for Timmins—James Bay has pushed the government. We will ensure that the ineptitude of the government does not hurt the bill and that we can get the digital and digital pitchforks out of Bill C-32 before it comes back to Parliament for consideration.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am pleased to have the opportunity to participate in the debate on Bill C-32, the copyright modernization act.

It is interesting that we are debating copyright in the House of Commons again. This corner of the House has been clear and consistent over many years about the importance of updating Canada's copyright legislation and regime.

New Democrats have always said, and our spokesperson on this issue, the member for Timmins—James Bay, said it again this morning, that we believe copyright reform is in the centre of what we need to do around digital innovation. It is the centrepiece of a digital innovation strategy. It is not the only piece, but it is the key component of how we approach that. The debate today and the expansion of the Internet and the technological changes we have seen bring that home daily for Canadians.

Our digital innovation strategy would not just be about copyright reform. It would be about codifying the protection for net neutrality to ensure the democracy on the Internet is protected and preserved. The attempts to offer tiered services so some people get their Internet services faster than others and some content goes faster than others need to be addressed. New Democrats have put forward proposals to ensure net neutrality.

We also believe that there needs to be a commitment to national benchmarks for broadband access. Canada needs to put the whole question of broadband access on the front burner to ensure that all Canadians have the broadband access they need to survive and flourish in the current environment.

We are falling behind other countries that are doing more in this area. Australia is a great example of that. It was a key proposal in Australia over a number of years, and it factored again in its most recent election, about it establishment of a national broadband network, which it calls fibre to home, an open access network. With the latest fibre optic technology, it goes to 93% of homes and businesses in Australia. It is a very fast service, at 100 megabits per second.

This is a huge infrastructure project for Australia, but it has served Australia well. It is a huge investment. It is the largest infrastructure investment in the history of Australia, a megaproject that will put the Australians in good stead for the future. We should consider this kind of thing in Canada as well.

Another component of a digital innovation strategy, which the New Democrats believe is very important, is to enhance the role of digital cultural programs to ensure Canadians can fully participate as international citizens within a democratic culturally vibrant public commons. That public commons has changed with the introduction of the Internet. I think all of us realize our lives are very different because of that development.

There are very key things that we need to look at as part of not only this specific discussion about copyright reform, but the broader context of copyright reform in Canada and digital innovation as well.

Bill C-32 is the third attempt to update Canada's copyright laws in the last six years. We have not made any changes to our copyright law since 1997. The previous Liberal government, the Martin government, tried to bring in changes to the copyright regime at the end of its term with Bill C-60.

When the current government came to power, it introduced Bill C-61 nearly two years ago, but withdrew the bill because of very broad criticism. It was too cumbersome and too closely modelled on the restrictive digital millennium copyright act in the United States. There have been significant problems with the U.S. legislation, which I am sure we do not want to repeat in Canada.

Bill C-32 is intended to strike a balance between corporate and consumer interests when it comes to copyright interest.

Regarding some of the highlights of the bill, we are told that the intention of Bill C-32 is to be technologically neutral, that it should apply across a broad range of devices and technologies with a view to ensuring adaptability to a constantly evolving technology environment. We know this is crucial to any new legislation on copyright. It cannot be legislation that becomes outdated almost as quickly as it is passed. It has to be something that serves us into the future. We have to get the broad principles of the legislation right or it will be outdated by the time it even passes through Parliament.

The government has also stated that its aim in updating the Copyright Act is not to punish individual users, but rather to focus its deterrence and enforcement efforts on distributors and large websites that illegally host copyrighted content. We will have to see whether that goal is actually accomplished. There is some criticism that the bill does not have that kind of focus and does not accomplish that goal, but the government has said it hopes it does.

What is included in the bill?

The bill would extend the term of copyright for performers and producers to 50 years from the time of publication of a musical performance.

It would create a new "making available" right in accordance with the WIPO treaties. This measure would give copyright owners exclusive control over how their content would be made available on the Internet.

It would introduce a mandatory review of the Copyright Act to take place very five years. Given the pace of technological change and given that we want to ensure the legislation actually does what it is intended to do, this mandatory review is very crucial.

The bill would formally enshrine in legislation commonplace grey area practices that would enable users to record TV programs for later viewing, or time-shifting, as long as they did not compile a library of recorded content. It would allow for the transfer of songs from CDs onto MP3 players, for instance, or format-shifting, and it would allow folks to make backup copies.

The legislation would also create new limited exceptions to the fair dealing provision of the Copyright Act, including exceptions for educators and for parody and satire. Canadian artists have been demanding this.

It would also create an exception for content creators that would enable the circumvention of DRMs through the express purpose of reverse engineering, for encryption research, for security testing, for perceptual disability and for software interoperability.

The bill would also introduce a new so-called YouTube exemption to deal with mashups that would allow Canadian users to compile clips of copyrighted works into a remixed work, as long as it was not created for commercial purposes.

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

The bill would create a carve out for network locks on cellphones.

The bill would also reduce statutory damages from a maximum fine of $20,000 per copyrighted work to a one-time maximum penalty of $5,000 in situations in which copyrighted works had been illegally accessed for non-commercial purposes.

A number of changes are included in the legislation, but that does not mean there are not problems with what is there. New Democrats have identified two key problems with how the Conservative government has approached copyright.

The rights that are offered in the fair dealing, or mashup and parity exemptions, can be overridden by the heavy legal protections being put in place for digital locks. Under Bill C-32, it would be illegal to break a digital lock, even if that lock prevented one from accessing material that one would otherwise be legally entitled to access. In fact, it treats the breaking of digital locks for personal use the same as if the lock were being broken for commercial counterfeiting. The whole question of the use of digital locks and their application, the extent to which they can be applied and how that conflicts with the rights of consumers, which the bill apparently tries to protect, and how those two interact is a huge problem with this legislation.

Consumers are guaranteed certain rights in the bill, but the reality is the holder, the manufacturer or the digital lock producer has the final say so, and those digital locks do seem to override the rights of consumers when it comes to the legislation.

That is a huge problem with Bill C-32. The Conservatives might say that under the World Intellectual Property Organization agreement this is something that is necessary. While those things need to be considered given that commitment, other countries have taken different approaches. So there are alternative ways to deal with this, rather than this reliance on digital locks. That is something that must be discussed further at the committee and could be a deal breaker in terms of the legislation.

Another serious problem with the bill is that a number of previous revenue streams for artists' organizations appear to be undermined through exemptions and changes. The most noticeable one is the government's decision not to extend the private copying levy on CDs to music playing devices. This is a very serious problem. The whole question of how we respond, how we monetize, how we make sure that artists are remunerated for the work they do, given the changing technology, and how we make sure that there is money going into creators' pockets, given these new technologies, is something that we have struggled with for over a century.

Earlier today the NDP's Canadian heritage critic, our spokesperson on this issue, went through the whole history of how that worked from the last century, starting with John Philip Sousa denouncing the threat of mechanical music, the roller piano. He said the technology would destroy the livelihood of American musicians. Music publishers, people who publish sheet music, were similarly concerned about the introduction of the record player. They thought that would mean the end of artists being effectively or appropriately remunerated for their work.

The radio was new technology and it was thought that it too would end the ability of creators to be properly remunerated for their work. But we found ways through all of those issues, and that brings us up to today. So the scenario has not changed, and the need for creativity continues as well.

Here in Canada, when we were faced with the situation of artists losing remuneration because of people copying their works onto blank cassettes and blank CDs to make mixed tapes, and so on, they were not being compensated. Artists were not being compensated, and that was a serious issue in terms of their incomes. We found a made-in-Canada solution, which was to introduce a levy on blank cassettes and CDs, a levy that is paid to a copyright collective and then paid to creators, to artists. It has been hugely successful in Canada and has been very important to creators in terms of maintaining their income and ensuring that they were properly compensated for their work.

That continues to be an important approach that has broad support. I know New Democrats have consistently said this is something that we should be considering today as well, extending that levy to music playing devices such as iPods and MP3 players so that artists could be compensated appropriately for the works that are transferred onto those devices.

There is support for this among creators as well. Alain Pineau, the national director of the Canadian Conference of the Arts, has said that the bill's failure to extend copyright collectives into the digital area is a huge problem and that it bypasses that solution in favour of lawsuits.

If we had the choice of engaging a system that we worked out and developed here in Canada, which has been hugely successful, which has met the goals of ensuring that artists and creators are properly remunerated for their work, if we had the choice between that and forcing creators and publishers into court against consumers, the choice for me is absolutely clear that the levy is the way to go.

Unfortunately, the Conservatives have politicized the conversation about the levy. They have talked about it as if it were a tax. It is not a tax. It is a levy that is directed for a specific purpose, and I think it is a purpose that Canadians can support.

I think Canadians want to make sure that artists are appropriately compensated for their work and that they make an appropriate living from the important work they do from which we all benefit. I think that is something that Canadians would get behind.

It is a system that is in place; it is not a novel idea. It is a system that was criticized when it was first brought in, but I think that criticism died down when the fairness of the system became widely apparent.

That is another very serious problem with this legislation. We want to make sure that there is a system of copyright based on the principles of fair compensation for creators and artists and access to consumers. Those are very appropriate and needed principles. Remuneration of artists and creators for their work is crucial to the ongoing cultural viability of Canada and to the Canadian cultural sector.

Access is crucial for people in Canada who enjoy the work of creators and artists. I do not think that criminalizing consumers, putting the emphasis on finding ways to go after people who violate copyright, is the way to go. It takes its inspiration from the U.S. Digital Millennium Copyright Act, which we know has been a huge failure in a number of cases.

We have seen in the United States where children, parents and others have been sued, usually by large recording companies, for the violation of copyright, in a way that I think any reasonable person would see as unfair and inappropriate. This aspect of the American legislation is something that I hope we would not be copying in Canada. We should put a digital lock on that idea because it is just not appropriate for use here, especially when we have a solution that we created in this country and has served us well.

New Democrats also support the idea of collective licensing. We support fair access for educational materials, and in this bill there is a very troubling provision that digital lessons for long-distance learning would have to be destroyed within 30 days of the end of the course. This would treat students in digital learning environments as second-class citizens and undermine the potential of new learning opportunities.

My colleague has likened this provision to book burning. Requiring the destruction of those course materials within a time period at the end of the course really goes against the kind of freedom of intellectual inquiry that we want to stimulate in Canada. It amounts to a digital equivalent of book burning, hardly something that we want to be encouraging in an educational setting.

As well, the requirement that teachers would have to destroy lesson plans, as contained in clause 27 of this legislation, is extremely troubling. We want to encourage people to use distance education as a way of upgrading skills and getting the education and training they require, but we also want to make sure they have access to the materials they need to gain that education. Sometimes those materials are required for ongoing purposes. Clause 27 of this bill is a very serious issue in that it requires the destruction of course materials and lesson plans. Certainly it will be something that we will raise as best we can in the coming discussions.

There is much that we have to talk about on this issue of copyright legislation. We tried and we are here again debating it in the House of Commons after a number of ill-fated attempts. I am not sure that we have found the right legislation yet, but the New Democrats are here to participate in that debate and work to see if we can improve the legislation. Hopefully that is possible, but if not, we may have to make other decisions on it.

We want to work with everyone on whom this legislation would have an impact, to see if we can find an appropriate copyright regime for Canada for the 21st century and for a time of changing technology.

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

Mr. Speaker, it is an honour to be here as I have been delving into this issue since 2004 when I was first elected and became a member of the Standing Committee on Canadian Heritage. Back then, we had to deal with what was from 1997 the major last reforms to copyright and then we went into a new bill in 2005, which was Bill C-60. In 2008, we received Bill C-61 from the government but that was put aside because the Conservatives wanted to change the bill to become more technologically neutral. Those were the words by the industry minister earlier today.

This signifies the first time that we have had a fulsome debate in the House for quite some time because those prior bills never had a fair hearing within the House. We had a few debates here and there but not a fulsome debate like we are having today. I congratulate my colleagues, the Minister of Industry, the Minister of Canadian Heritage, the critic from the Bloc Québécois and the critic from the NDP, for their speeches. They all, in their own way, put out well researched speeches with some incredibly valid points.

Once again I will reiterate that our party will vote at second reading to put this to a committee so we can give it a fair hearing. When I first looked at this bill, and despite the problems that I personally have with it, I wondered if it needed to be fundamentally changed before we reached second reading. I knew that if we voted yes at second reading, we would be accepting, by and large, the principles in the bill and, therefore, major amendments to change the direction of the bill in certain ways could not be done as they would be overruled by the Speaker.

At that point during the discussion, we decided to go ahead because we needed balanced copyright legislation. It is long overdue, no doubt about it, and everyone should perhaps grab just a little bit of blame in all of that as this discussion has gone on. We signed WIPO treaties in 1996, one dealing with the Internet and the other one dealing with phonograms. Since then, however, we have yet to ratify, pending, of course, the right amount of legislation or balanced copyright legislation. In this instance, Bill C-32, which is in front of us now, was really borne out of the ashes of other bills that have died on the order paper.

Going back to copyright and the issue therein, how do artists receive the right amount of remuneration for the work they have done? I will go back to the origins of copyright. The first time Canada had copyright legislation was in 1868. We felt the need, even back then, for artists to protect what they create but that it would be balanced with the right of users to have access to this material which was very important going back to the beginning and the genesis of the printing presses.

In 1868 and years thereafter, it started in Great Britain, moved its way to Canada and through the United States where it felt the same urge, need and desire to protect artists' rights and, at the same time, mass distribution for this material so it could be accessed by the public. However, by protecting some of this material we did not want to protect it to the point where we kept it under wraps from the general public and people could not get access to it.

The year 1875 was another time when Canada went full ahead and made changes to copyright legislation so that it would be more in line with other countries. Even at the very beginning of copyright legislation there was always the compulsion to bring it in line with what is international standards as artists' work really knows no boundaries. That was at a time when we were printing books for mass distribution. We did not have anything like the radio or record players but now, in the digital age with the Internet, the global village has become that much smaller.

In the very beginning, if memory serves me correctly, I believe the origins of copyright internationally was that British books were being distributed throughout the British Empire and there needed to be certain protections for that as it was distributed to countries like Australia, India or Canada, throughout the British Commonwealth.

The first time Canada saw a glimpse of modern copyright legislation, or at least something that was considered for quite some time to be the cornerstone of copyright legislation, came in 1924. Around that time it was comprehensive enough that it covered many aspects of what was out there in the public realm. Again I go back to books, certain recordings, photographs and that sort of thing, obviously at the very early stages.

As my colleague from the NDP pointed out earlier, the arguments that we are putting forth here today started in the latter part of the 19th century. He used the example of the rolling piano where music was played on an automatic piano, which we have seen in the movies, and whether that would destroy a piano player's career. Obviously, it did not. After that, would recorded music destroy the concert or would people stop going to concerts because they now had an album that featured the artist's recordings? That was not the case as, of course, concerts have increased dramatically from the time of their inception.

From 1924, we went on to make some substantial amendments to the legislation, obviously with the changing times, in 1985 as well as in 1997. Both governments, Progressive Conservative and Liberal, have made substantial changes throughout the years. There seems to be a camaraderie or general understanding to reach out to other parties within this House to ensure we have the right legislation.

However, so many stakeholders are involved in this that there needs to be a comprehensive look at how we deal with copyright and, in order to do that, it needs to receive a mature debate. Today we are debating the bill at second reading and it seems that we are now laying the building blocks for what is about to be a fulsome debate on where copyright is going in this digital age.

I also want to talk briefly about the other bills.

Bill C-60, which was introduced in 2005, received quite a bit of stakeholder response and a lot of it dealing with the fact that we are getting into the digital age. A lot of this was spurred on by the fact that all of a sudden we were sitting in front of a wide array of music selection that we did not need to pay for. It was free. This was the origin of Nabster and LimeWire. With those devices, all of a sudden the consumer had the ultimate choice. Not only was it available in many arrays and all types of genres, it was actually free. That was a fundamental misstep, a fundamental breaking of the contract that we as government have with artists, which is to say that we will help them protect their work.

Nabster has gone by the wayside, or at least the free version has, and other equivalent facsimiles of how that type of music is distributed, meaning peer-to-peer sharing. They have disappeared but there are business models out there. I personally purchase music at 99¢ a song, and I am fine with that. I do not have a very large collection but I do have a collection that is big enough that I gleefully pay for it.

One of the issues that came from peer-to-peer sharing and one of the issues that has not been discussed yet is the information out there about what is illegal. This is something that has been dear to my heart as an issue. As my colleague pointed out earlier, in the United States right now this is incredibly litigious. The lawyers are running overtime when it comes to areas of copyright. A lot of the rules that are put down in America right now are really laid down by court judgments throughout the court system. To a certain degree that has happened here as well, but not to that extent.

In America there were several illustrations where children downloading music in their basements were being sued by major companies in multi-million dollar lawsuits. Obviously they cannot be involved in multi-million dollar lawsuits because there is no way they can get the money. Instead, the companies felt compelled to make a statement and made their statement by taking the most vulnerable in society to court. I will not come down too hard on companies for doing that as they had a legitimate concern about people stealing their product. However, at the same time, they did it with a great deal of haste and aggression that I would not agree with. I think that we, as government, should address that issue.

However, the result of that was the introduction of Bill C-60 in 2005, which, as I stated previously, created a lot of input and for all good reasons. The government changed in 2006 and we found ourselves going back in 2008 with Bill C-61. Bill C-61 went off in different directions from Bill C-60 in many cases but some of the fundamental aspects remained intact.

However, the problem was that in many cases people felt that it had been rushed through too quickly or that it had never received the right debate within the House. Many of the stakeholders thought Bill C-61, because it was illustrative, was maybe too illustrative because it set out certain examples and put people in corners. Basically it was too smothering, as someone told me. Bill C-61 found itself it to be too much for everybody to handle. At this point it went back to the drawing board. As we have heard this morning, I think “technologically neutral” was the response that came back.

Bill C-32 is the latest version of this and hopefully with the agreement of members of this House it will actually make a fulsome attempt to put this into law, and that way the next time we deal with this will be as something that comes way down the pipeline.

One of the issues that keeps being raised is peer-to-peer sharing. I have always made the comment that the problem with having legislation that is too stringent and too detailed in nature is that it becomes oppressive to the point where it just does not adapt. I have said it before and I will say it again. It seems that whenever there is a technical measure by which people are not allowed to get to a certain piece of art, roadblocks are put up around it. Governments do it through regulation to keep people out for access reasons.

However, once that it is put in, I have a 16-year-old son who could get around it within 48 hours. I am not exaggerating because I have seen it happen. I would not want to say that it was my son because I would get him in trouble since this is a public forum, but I have seen it happen. Teenagers do not like to be told that they cannot access certain material for whatever reason.

In the old days, when we were told that we could not access certain material for whatever reason, we would get upset if we could not access certain art or music because it broke Canadian laws or regulations on content. Nowadays, when roadblocks are put up to deny teenagers access, they laugh. It is a big joke. In essence, they find that it is not a big deal because they will find it and get to it in 48 hours. They have done it before and they will do it again.

The concept is that they are breaking the law. Artists have protection around their material that they need to make a living. If a particular parent is sitting at home and is not familiar with the new ways for children to attain music, movies or any type of entertainment nowadays, a parent would be horrified. Parents would be horrified if someone were to call them at home and say that he or she had just caught their child shoplifting at HMV and that the child had tried to walk out of the building with a CD in his or her pocket.

Some kids can download about 20 to 25 CDs from their computer in the run of five minutes. That is okay. Some kids tell their dads that they just downloaded the new movie that is out in the theatres onto CD. A lot of parents just do not pay any attention and just say “Okay, that is great. Let us go watch it.” It is illegal.

I hope part of the debate elevates copyright infringement and how the protections in place for artists are there for a reason, which is to protect the artists' work. It is stealing. We can call it that. In the end, artists are unable to make a living if their material is not protected.

On the other hand, one of the provisions in the bill talks about digital locks. We have all talked about this. We have all heard about this. Is it too stringent in this particular bill? It needs to be discussed. Is it a situation where digital locks cannot be touched? I am not so sure.

I said earlier that I have a concern about the fact that one particular company may have a digital lock in place over certain material. If someone downloads a piece of music or a movie, that piece of music or that movie can only be listened to or viewed by that company's equipment. I have concerns about that because the individual probably purchased the movie legally but is locked in a corner as to how he or she can use it. That deserves to be revisited.

I refuse to believe that the digital lock issue is cut and dried. Educators have said that the digital lock provisions would be too harsh on them now that they have an educational exemption. We have one group weighed off against the other. That involves a full debate. That has to be talked about because many people have a point. I met yesterday with the Canadian Federation of Students who brought that issue up.

On the other hand, some artists are happily ensconced and making a good living by the fact that digital locks allow their material to be protected. Software companies are a case in point.

Canada has a fantastic software industry for games, the intellectual property of video games, Xbox, PlayStation. We have a great industry here and it certainly deserves protection. We need to look at this material with open minds and consider debating it.

Unfortunately the debate earlier was going in different directions regarding the levy that was imposed upon CDs, DVDs or DVDRs and the way artists are able to achieve money to protect their livelihoods. They came up with a solution in the late nineties but it is not within this bill. The government does not agree with it but it deserves to be discussed. I hope the government will be open to revisiting that issue once again when we get this legislation in committee.

There are other issues as well in these changing times. I mentioned the downloading, or making a copy, of music or movies. This is copyright.

This debate started back in 2005. It is not that long ago, if we think about it. We started out with P2P, or peer-to-peer sharing. Nowadays we have live streaming, where no copy is involved. An individual just logs on and live streams what he or she wants. YouTube is a classic example. This technology is going at a blistering speed in the digital age and now we have to keep up.

I was happy to hear the minister talk about a five-year review, and I congratulate him on that. That goes a long way toward looking at legislation once again. Personally, I feel that is the way we should be going.

Bill C-32 contains a number of other measures such as those regarding mashups and the creation of a new exemption for user-generated content, which broadly written, could create an opening for abuse. That is true. We have to consider that.

Statutory damage is another issue we have to look at.

Fair dealing in general has to be looked at, fair dealing for access for consumers, fair dealing for parody, satire, but fair dealing for education. We have had a lot of input on that. Some people are very concerned about it, artists in particular.

Some artistry groups have said that an open-minded, fair dealing provision puts in the hands of the courts what should be determined by Parliament. That is something we have to consider. Again, it becomes incredibly litigious. Fair dealing has that possibility so we have to consider that. We have to draft legislation to make sure that does not happen, in my humble opinion. Artist groups are saying that the full impact of an open-ended fair dealing provision may be difficult to predict but the fact that there will be unintended consequences is wholly predictable.

The intent of the education provisions put forward by people from the University of Ottawa and by the Canadian Federation of Students is not to destroy the livelihoods of people who write textbooks. So again we have the interests of one weighed off against the interests of the other. We have to come down the middle in what I consider to be fair copyright legislation.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, culture is always compromised with this government. During the last federal election campaign, Quebec's artists and artisans took action to make the government understand that they would not accept cuts to existing culture programs that allow our creators to function.

After using federal funds and budgets and threatening artists with cuts, now the government is using legislation to make them understand that we are living in a completely open market, in the wild west, and that the big players—the broadcasters and Internet service providers—will get benefits. Those who form the very foundation of the services provided will be dropped. Big Internet service providers are nothing without these artists.

We need to ensure that cultural content, which is produced on platforms and sometimes used for other purposes, is first authorized and then receives fair royalties. This Conservative government always compromises culture. We saw it during the last election campaign, and we are now seeing it with Bill C-32.

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

Mr. Speaker, I would like to begin by thanking my colleague for his presentation and his detailed analysis of the situation, which he expressed very clearly. The member talked about a number of obligations that would apply should Bill C-32 be passed as it is currently written.

We know that this bill takes a lot of rights away from artists, particularly with respect to compensation. This bill fails to modernize legislation on royalties and creates exemptions that make it impossible for artists to get the same or, in some cases, better compensation.

This bill also places responsibility for proving copyright violation squarely on the shoulders of copyright owners and artists.

Can my colleague comment further on the fact that, if this bill were passed, artists would have to follow in Claude Robinson's footsteps? Perhaps members of the House do not know him, so maybe the member can explain the situation. Claude Robinson was a prolific and truly creative artist who spent 14 years of his life fighting for his copyright instead of creating and developing his ideas.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, I am delighted to speak to the bill before the House today. According to the government and as we can read for ourselves, this bill amends the Copyright Act in order to update people's ability and capacity to access great works.

Over the next 15 minutes, I will try to make the government understand that the real way to update the current legislation involves first acknowledging that certain rights exist for the creators, authors, writers and artists who agree to share their gifts with the rest of society for education and research purposes. However, the government needs to acknowledge that royalties must be associated with this and that it is not true that institutions, individuals and corporations can use these works—whether books, movies or plays—without recognizing that royalties must be associated with that use.

I listened to the government members who spoke earlier and who would have us believe that these royalties are essentially a consumption tax. Nothing could be further from the truth. Basically, there are two important things to understand and which, we believe, are not necessarily mutually exclusive. One possibility is recognizing rights while ensuring that new players in new technology can have access to the works available. A compromise can be reached as long as the government agrees not to play into the hands of the major players. For example, Internet service providers come to mind. These providers offer public access through an open market using new technology.

What the government is trying to achieve and the consequences Bill C-32 will have are two different things. First, with regard to permission fees and licence fees, the bill does not ensure that the author is necessarily consulted, and thus, Bill C-32 puts an end to the right to decide whether or not to authorize use of a work. It puts and end to remuneration for use. That is what is of concern in terms of the principle and the concept behind fairness, because clause 29 of the bill talks about a concept of use related to a notion of fairness and fair dealing. This was defined back in 2004 by the Supreme Court. What have the consequences of that Supreme Court ruling been? It has given a great advantage to the users at the expense of our creators, our authors, our writers and our artists.

We must not forget this 2004 ruling because it laid the groundwork for unfair dealing, in our opinion, when it comes to our artists and creators. What does clause 29 of the bill say? It says that a work used for the purpose of private study, education, parody or satire does not infringe copyright. Accordingly, a work may be used as long as it is for private educational purposes, education or parody.

This notion of fairness is not defined in the bill. The first step was taken in 2004 by a Supreme Court ruling that gave a great advantage to the users at the expense of the creators and our artists.

My colleague the Canadian heritage critic pinpointed the problem with the bill and that is that it contains exceptions, which she calls the deadly sins. There are 17 exceptions in total. We on this side of the House are not saying there should be no exceptions. International conventions state that there may be exceptions, but they apply in certain special cases. It is important to remember that. This bill has 17 exceptions that flout Canada's international obligations, specifically the Berne Convention for the Protection of Literary and Artistic Works. This convention stipulates in article 9 that exceptions made for users must be reserved for certain special cases where reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

With these 17 exceptions, the government is flouting its international obligations. This bill ignores Canada's commitments and is unfair to authors and creators.

There are a lot of exceptions in this bill. One particularly problematic exception stands in opposition to what should, in theory, be a positive principle. It concerns educational institutions. Teachers will be able to use protected materials in their courses without obtaining permission to reproduce them. This applies to movies and plays, among other things. The problem is not that people will be disseminating these cultural and artistic works, but that schools, for example, will not be required to pay royalties if they reproduce works. That is the problem.

We have to ensure that everyone in our society has access to culture. Our young people need rapid access to our literary works and their authors, but we must not forget that these are artists whose livelihoods depend on this.

I was reading the latest statistics. In the education sector alone, there are 175 million copies of parts of copyrighted works in schools, CEGEPs and universities. The education sector alone provides $9 million per year to 23 Quebec authors and 1,000 Quebec publishers. People's economic livelihood depends on publishing and culture. Of course we want our young people to have access to culture, but we must also recognize that our creators have the right to fair compensation.

This exception, therefore, is pernicious, the more so because the term “education” is not defined in this bill. It could therefore be defined quite broadly and have a broad scope. Given that the term “education” is not defined in this bill, this exception for the education sector, which allows teachers to use literary works, reproduce them and distribute them to their students, will leave it up to the courts to determine whether this use complies with the law.

Of course, this will force artists and creators, many of whom already have relatively low incomes, to take their cases to court.

We will further impoverish our artists, who are only asking for recognition of their work. Royalties are a measure of fairness. Unfortunately, the Canadian government, with this exemption for education, is not doing any favours for Quebec's artists and publishers that provide works, books and educational materials to our schools.

There is another exemption, the one I call the YouTube exemption. It refers to the creation of a new work by using, free of charge, part or all of a work on condition that it is to be used for non-commercial purposes. In addition, there is no requirement to name the source unless it is reasonable in the circumstances to do so. Thus, another exception is created, and one that is unique in the world, found only in Canadian legislation.

It means that someone could very well use a work, song or music—for which the rights are protected in principle—without asking the author's permission and without paying the associated royalties. This could be the end of private rights for these authors. I will say it again. We must provide greater access to Quebec and Canadian culture, but we must recognize the work of our artists. Even though new gateways and platforms make the use of their work possible, this broader distribution must not exempt us from honouring our commitments and ensuring fairness for our artists.

There is also an exemption for private purposes. An individual may reproduce a legally obtained work on a medium he or she owns and provide access for private purposes.

Once again, there is a refusal to create a new category, and that affects the levies. The government thinks that this levy is a tax on consumers, but on this side of the House, we see it more as fair recognition for our artists' work—nothing more, nothing less. For the Conservative government, “levy for artists” equals “consumer tax”. That is not how we read it.

Other exceptions are created, such as communicating a work by telecommunication. The bill introduces a vague, flexible and inadequate notion. It says that the institution must take measures that can be reasonably expected to limit dissemination of the work. What are these measures? Again “that can reasonably be expected” is not defined, just like those fairness principles, even though the Supreme Court provided some direction on this in 2004. It is up to the courts to later determine the scope of the concepts presented in the bill, and therefore the artists will have to appear in court. With this bill, the government is deliberately impoverishing our artists.

The concept of “that can reasonably be expected” is also used in the exceptions covering visual presentations, examinations and inter-library loans.

The other exceptions cover works on the Internet, extending photocopy licence and backup copies.

This is no longer in line with the Berne convention, which authorized states to create exceptions in special cases. The government is creating systematic exceptions, at the expense of our authors and artists.

It would have been better to stop creating exceptions and to recognize that artists are entitled to a fair shake and to fair royalties. The government should have recognized that the author's permission is required before his works can be reproduced and distributed on new platforms.

What is wrong here is that with the locking approach, artists and artisans are responsible for controlling access to their products on the Internet, while the major Internet service providers are responsible for ensuring that these artists and artisans are appropriately acknowledged. Permission must be given for works to be issued on new digital platforms. We must ensure that our artists, who spend their time creating and making us dream, do not end up caught up in expensive legal battles. The federal government must take responsibility and amend the bill to better protect our creators and our artists.

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

Mr. Speaker, on behalf of the constituents of Mississauga—Streetsville, I am happy to join the debate on Bill C-32, the copyright modernization act.

The last time we significantly amended the Copyright Act was in 1997. Like other countries, Canada continues to transition to a digital economy. This transition has had a profound effect on our artists, writers, musicians, software developers, filmmakers, photographers and other creators of copyright material.

For years, file sharing of music and video and large media storage in general has been possible, yet still a difficult task for most Canadians to accomplish. Today, transferring gigabytes is as easy as opening up the Internet browser. The world has changed and it is obvious Canada needs to keep pace to modernize its copyright legislation.

What has changed? Not long ago we were listening to eight-track tapes, cassettes and Sony Walkmans. We communicated through voice mail, not email, and fax, not instant messaging.

Today it is difficult to find children or adults alike who do not own an iPod or portable musical device. BlackBerrys, iPhones, laptops, iPads are seen everywhere and society has become dependent on them. Checking email and Facebook, sharing pictures and video, listening to music through one means or another have become integral parts of everyday life. Digital media is pervasive and omnipresent.

At one time Canada was a leader in the digital economy. In recent years though, our laws have fallen behind and we lag in global best practices. Our copyright laws are dated and we have received international criticism because of it. On this side of the House, we welcome modernization, but we want to do it right. We will agree to send the bill to committee at second reading. However, let me be clear. The bill needs work. It has numerous flaws and requires revisions and amendments at committee stage. The Liberal Party wants to make sure this work gets done.

Record labels, libraries, students, artists, authors, publishers, photographers, collective societies, video game creators, professors, consumers, film producers, educational resource centres to name a few have all come forward to show their discontent with the current status and structure of the bill. I have met with numerous stakeholders on this matter, and as my colleague from Westmount—Ville-Marie mentioned earlier, I have never had more requests for meetings and discussions than for Bill C-32.

In summarizing the complaints, I heard the following: “The bill tries to deal with piracy, but instead, it strips the industries of millions”. Also, “Intellectual property is not only a legal right, it is a human right”.

According to Jim Fleck, chairman of Business for the Arts:

Hill Strategies reports that Canadian consumers spent $25.1 billion on culture goods and services in 2005, more than consumer spending on household furniture, appliances and tools ($24 billion)....The output by the culture sector totalled: $46 billion in 2007, which was 3.8% of Canada's real GDP. If we were to include the induced and indirect impact, the value-added climbs to $84.6 billion.... The Conference Board estimates that 1,000,000 jobs are created by the cultural sector, representing 7.1 per cent of Canada's total employment in 2007.

Liberals understand that the rights of creators need to be protected and maintained, yet the fundamental rights of Canadians to access digital media must also be respected. Our goal is to find that middle ground.

Today I will be addressing some key flaws of the bill, primarily: one, a ratified collective licensing regime; two, technological protection measures, TPMs; three, file sharing; and four, statutory damages.

First is collective licensing and fair dealing. In 2004 a Liberal government legislated to allow for institutions such as libraries, museums, schools, their teachers and students to have access to materials under a collective licensing regime for fair dealing. These institutions have rights to materials for studying purposes. Unfortunately, these rights can be taken for granted and misused.

While students are expected to use materials for a finite period of time, sometimes the temptation to keep music or video is too great and many times simply overlooked.

The bill as it stands lacks a clear definition of “fair dealing”. This is a key component for our party and we will seek that definition in committee. Our goals are to offer materials for educational purposes, eliminate abuse and allow authors, artists and creators of the materials fair compensation, but at the same time give our students fair and affordable ways to obtain that information.

Two is technological protection measures, or TPMs. The exact amount of losses due to piracy is anyone's guess. Some report it is a $5 billion loss to the music and video industries. For years, the solution was thought to be digital rights management, DRM. Billions of dollars have been spent on the creation of software embedded into digital files which monitor the purchase method, the date and the amount of times a file has been used and/or transferred. Although this practice appears foolproof for combatting piracy, arguments can easily be made about the anti-constitutional measures.

Bill C-32 does not address the fact that when consumers purchase digital files for personal use, consumers assume, and expect to have, complete usage of those files without limitations and without restrictions.

Digital locking, or TPM, in Bill C-32 seeks to go even further than DRM by using file lock mechanisms. The circumvention of TPM in this bill requires extensive review.

We believe the Copyright Act must allow Canadians who have legitimately purchased media files the ability to transfer their purchase onto personal devices for their own personal use or to format or time shift or to make personal backup copies on their computer as long as they are not doing so for the purposes of sale or transfer to others.

There has been a common ground between balancing the rights of the creator and satisfying the consumer. We do not believe that Bill C-32 does either one. We look forward to examining these options further and finding that common ground.

Three is file sharing. A fundamental right in the digital age is the ability to share files. The whole concept of the Internet at its inception was to do just that. Peer-to-peer, or P2P, connection is a standard business practice. It allows for large file sharing among co-workers, clients, developers and anyone with an Internet connection. P2P has become the single most effective way of sharing large digital media. Unfortunately, it has also become a means for piracy. When two computers can communicate with each other and allow for file sharing, there are no restrictions on what can be shared.

Do members remember Napster? The case was supposed to set the precedent in the world to combat abusive and illegal digital file sharing. Napster was forced to pay $100 million for its P2P methods and infringing practices. What followed was the birth of penalties for those who share copyrighted files over the Internet without paying for them, but as we know, the piracy continued.

As a way to disguise P2P connections, Bit torrents have become a common piracy technique. Torrents were designed to track multiple share points of files and help for fast and steady download. Torrents are easily found through any Google search.

How do we stop P2P? How do we stop bit torrents? Quite frankly, we cannot, but appropriate penalties are a start. Copyright laws are only as good as the enforcement that accompanies them. Certainly in the age of the Internet, until some of this is sorted out, it remains, as we say, the wild west.

Four is statutory damages. Bill C-32 defines new statutory damages for infringement of copyright, but once again it is regressive.

We have many concerns with this section. How effective can it be to decrease the statutory damages? The government is proposing to reduce infringement damages from $500 up to a maximum of $20,000, to as low as $100 up to a maximum of $5,000. A main focus of the damage is to target individuals who download music from a peer-to-peer file sharing service.

I have already made the argument that P2P cannot be stopped. If peer-to-peer cannot be stopped and it is being used for piracy, then damages must be commensurate with the severity of the infringement.

In conclusion, there is no easy solution for modernizing Canada's copyright laws. I will not pretend to have all the answers. However, I can commit to working with all stakeholders on one hand and looking after the fundamental rights of Canadians on the other.

Listening to music while on the bus, walking or jogging, or watching videos on a two-inch screen or hearing last night's news from a podcast have become a way of life.

At the end of the day, my colleagues and I on this side of the House understand that the rights of the creators need to be maintained and protected, yet the fundamental rights of Canadians must also be respected. Our goal is to find that happy middle ground.

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

Madam Speaker, my question is clear. The member for Timmins—James Bay has read the bill, just as I have. He has met with a number of cultural organizations, so he knows what he is talking about. Can he tell us what there is in Bill C-32 that is good for artists? What benefits will artists get from this bill?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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