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

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Madam Speaker, I am presenting a petition that follows the hundreds already presented by the Bloc Québécois on behalf of the people of Quebec regarding copyright. The petitioners call upon legislators to review Bill C-32, to bring it back to the spirit of the Copyright Act and to restore artists' legitimate rights.

[Robert Bouchard, Bloc, Chicoutimi—Le Fjord, QC]

Mr. Speaker, in a letter published in the newspaper Le Quotidien, Ms. Russel-Aurore Bouchard, a historian and writer from Chicoutimi, spoke from the heart condemning Bill C-32 on copyright, which would deprive artists of $74 million in revenue.

Ms. Bouchard chastised the government, saying that the bill is terrible and completely unacceptable. She said that, despite a career devoted to community service in which she has published close to 70 historical works, her gross income this year will be $6,700. To make matters worse, under the current version of Bill C-32, the federal government would deprive her of half of her income. This is a major attack on our artists' dignity.

Bill C-32 is a blatant example of the Conservatives' disregard for artists, a disregard that was confirmed once again in the 2011 budget, which does not meet Quebec's cultural development needs.

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

Great.

Ms. Moore, thank you very much for being here today. I have a CNIB office in my riding of Waterloo. I'm very familiar with its importance and the valuable work and services you provide.

Bill C-32 clarifies the rights of persons with perceptual disabilities, as you've also concurred with. Could you just briefly explain why that's so important? Secondly, what are the practical day-to-day uses of the exceptions that we've provided for in terms of alternate formats?

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

Do you see advantages in Bill C-32 in further assisting the move to the digital age within the context of online?

[The Chair, Conservative, Gord Brown]

All right, folks, we will call this meeting of the legislative committee on Bill C-32 back to order.

We have witnesses from three organizations. From Athabasca University we have Troy Tait and Rory McGreal; from the Canadian National Institute for the Blind, Cathy Moore; and from the Canadian Association of Disability Service Providers in Post-Secondary Education, Karen Coffey.

We will start with Mr. McGreal from Athabasca University for five minutes.

[Serge Cardin, Bloc, Sherbrooke, QC]

The Canadian Conference of the Arts provided us with a summary of the financial impact of Bill C-32 on artists and other rights holders. It amounted to $126 million. That may not seem like very much when compared with $1 billion, but it turns out that the $1 billion covers more than just copyright. The percentage is lower.

Potential losses in the education field under the new fair dealing rules are said to total $41.4 million. That is based only on what has already been paid and not on what could be paid under the rules in the current legislation, which might increase.

You tell us that there will be no losses for authors, creators and collective societies. But the committee has received this other information and estimates of losses. The figures are not terribly precise and may end up being a little more or a little less, but there is still an expected loss of $41.4 million from the fair dealing rules.

Do you maintain your position? Do you believe that there will be no changes in copyright?

[Serge Cardin, Bloc, Sherbrooke, QC]

As my colleague said earlier, the Quebec National Assembly is opposed to Bill C-32 as it was presented to the House of Commons. National Assembly members are concerned that authors and creators will suffer a loss of income.

You mentioned that your organization has an open mind on this issue and that there were discussions with Quebec.

In your opinion, is the Quebec Ministry of Education wrong in thinking that creators and authors would lose significant income?

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Chair.

I thank all three witnesses for appearing before us today. I want to thank you for one of the most articulate explanations and defences of the fair-dealing provisions in this bill.

I agree with you. I think this does strike the right balance. I think you referred to the right balance being based on principles of fairness. This bill does that. And I think you referred to the bill as representing good policy. I want to assure you, in regard to the several amendments that you've talked about and have referred us to, that we will certainly take notice of those and seriously consider them.

I suppose what really troubles me and is profoundly disappointing is that after all of this work, after already having heard over a hundred witnesses, having received hundreds upon hundreds of submissions, the opposition coalition has chosen to basically defeat and throw out this work we've done on a bill that is critical to our economy.

You've referred to the fact that it is critical that this bill be passed and passed right away. I think there are several reasons why I would suggest that it's critical. It's critical for our digital economy, for our knowledge economy, for education, and for our creative industries. As you know, this is the third bill that is going to be dying because of elections being called. For me it's profoundly disappointing that we're going to lose all of that good work because of some political machinations on the part of the opposition coalition.

Having said that, you had referred to the expansion of fair dealing to include education as striking the right balance, and I agree with you. There are some who suggest that there's going to be considerable lost income to publishers and some creators. I disagree with them. In fact, I think you're probably familiar with the Alberta versus Access Copyright case, which is a Federal Court of Appeal case that actually states that the fair-dealing provisions contained in Bill C-32 do not impact how fair dealing will be applied. The CCH case, the Supreme Court of Canada case, applies and makes it very clear that essentially there is no loss of revenues. This is simply clarifying what fair dealing is, especially in the context of education.

I wanted to deal with the digital lock issue, and I've taken note of your comments regarding that. One of the complaints we've heard from many of the creators is that this balance we're seeking to strike appears to have shifted the balance primarily in one direction, and that's away from protecting creators and their copyright. It's one of the reasons why we, as a government, have actually maintained some protection for digital locks. We don't want those digital locks circumvented, because it opens up a whole new opportunity for abuse.

I wanted to refer you to clause 47 of the bill, which actually provides the minister with very broad regulatory power to introduce additional circumvention exemptions where the minister could say that as we move forward, as we develop experience with this new bill and the new legislation, we recognize that we may have to continue to provide additional opportunities for circumvention. I believe the flexibility that's designed into this bill will address some of the concerns that you've raised regarding digital locks. We don't know what the future holds, we don't know what new technology will arise, but we provide the minister with the tools to do this without having to go back and make statutory changes.

Perhaps I could have your comments on whether you support those broad regulatory powers and what impact those may have in the future as we continue to develop this experience with this new copyright regime.

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

Good morning to our witnesses.

I find this morning's discussion to be a bit theoretical. As you are surely aware, this bill is about to die on the Order Paper. I am fairly certain that we will not be talking about Bill C-32 for very much longer, that today is our last meeting and that the bill will die on the Order Paper. So this is a theoretical discussion.

To begin with, I was quite surprised to see, in the first paragraph of your speaking notes, a list of all the provinces and territories that are part of your consortium. We can see that Quebec is not among them; but the way in which it is indicated is not very clear. The text says: “...Ministers of Education in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick...”

Would it not have been simpler, and more honest and direct, to say that the Quebec Minister of Education was not part of your consortium? The approach used is misleading and implies that there may be other things just beneath the surface of the brief that are less than straightforward. It makes me uncomfortable.

So the Quebec Minister of Education and the Quebec Government are not included. As you know, the National Assembly unanimously passed a motion against Bill C-32, specifically because of the education exemptions. I am not sure if you are aware, but it is quite difficult to achieve unanimous consent in the National Assembly, where you have Liberal federalists, PQ sovereignists and ADQ right-wingers.

The Minister of Education wrote a letter in opposition to Bill C-32. She wrote that the bill did not respect the value of artists' work. The Fédération des commissions scolaires du Québec also came out against Bill C-32 for the same reasons, since the fair dealing provisions do not show respect for the work of artists or the value of that work.

I would not say that there is a unanimous Quebec view on Bill C-32, since I know one organization that supports it. That said, how is it that almost all Quebec institutions, organizations and orders of government are opposed to Bill C-32 and its education exemption and fair dealing provisions? How is it that, in Quebec, in the field of education, we all agree with paying artists and with the need to respect their work and to instil that value in our children? How is it that we do not have the same approach? Actually, I think that we do not share the same values. Last Tuesday, a witness sitting where you are sitting now told us that the difference was explained by the term “copyright,” that is, the right to copy.

In French, we do not talk about the right to copy. The term we use is the right of authors. We have respect for creators and their work.

So how is it that this works for Quebec and not for you? Would it be possible to have two approaches—each of us with our own sovereignty, you might say? If Canada and Quebec each developed its own approach, we would stop arguing about it. You could have your fair dealing roles, and we in Quebec would continue to respect our creators. Would it be possible to do that?

I would also like to know whether a school, a class, a child, a student or a school board has ever been taken to court by a copyright holder for breach of copyright.

[Ramona Jennex, Chair and Minister of Education for Nova Scotia, Council of Ministers of Education, Canada]

Thank you very much.

Good morning, everyone. As stated, I am accompanied today by Nova Scotia's deputy minister of education, Rosalind Penfound, who also serves as chair of the CMEC deputy ministers' committee respecting copyright issues, and by Wanda Noel, the legal counsel to our organization.

The Council of Ministers of Education Canada, CMEC, is an intergovernmental body founded in 1967 by education ministers to support their collective efforts in fulfilling the constitutional responsibilities for education conferred on provinces and territories. I am the chair of CMEC's Copyright Consortium, which is comprised of 12 of the provincial and territorial education ministers, the one exception being the minister from Quebec.

Copyright law directly affects our policies and practices in classrooms across Canada. The existing lack of clarity is why the CMEC Copyright Consortium has been persistent over the past decade in urging the federal government to clarify digital copyright law.

Ministers of education, as the guardians of the Canadian public education system, view copyright matters very seriously. We respect and teach respect for copyright within schools. We are actively engaged in the federal copyright reform process to seek fair and reasonable access for students and teachers in their educational pursuits.

Rapid advances in technology-enhanced learning call for a modernized Copyright Act. Students and teachers require a copyright law that addresses these new technologies, technologies that have opened doors to wonderful new ways for teachers to seize upon that “teachable moment” with their students. In the absence of the proposed education amendments that embrace this technological development, Canadian schools and post-secondary institutions may be legally obliged to forgo learning opportunities and curtail Internet use in the classroom out of fear that they may break the law. Bill C-32 deals appropriately with these significant education issues. This legislation provides the right balance between the rights of users, creators, and the industries that market the works of creators.

This morning I submitted to the committee clerk a set of recommendations addressing a number of Bill C-32 amendments that impact education. In certain cases, the consortium has suggested specific legislative wording. In my short introductory remarks I wish to highlight three matters that are of particular importance for education ministers.

First, Bill C-32 addresses the priority concern of the education community, which is to establish the legal framework for students and teachers to use the Internet for teaching and learning. The proposed educational use of the Internet amendment is a reasonable, balanced approach for learning in the digital age. We applaud the government for this, because balanced legislation, based on principles of fairness, can be effectively taught and enforced.

Second, the consortium applauds the inclusion of education in the fair-dealing provision. However, although welcome, we suggest the education and fair-dealing amendment needs to be clarified. For this amendment to have its desired effect, the term “education” should be clarified by stating that education includes teachers making copies for students in their classes. This clarification is needed so teachers may copy short excerpts from copyrighted material for their students--for example, a clip from a television program for a current events class or a diagram illustrating a science or math topic. The wording of our proposed clarification is similar to the United States fair-use clause, which has been in place since 1977. Adding education--including multiple copies for class use--to the list of enumerated fair-dealing purposes will not mean teachers can copy whatever they want. Copying by teachers still must be fair under the two-step test to qualify for fair dealing established by the Supreme Court of Canada. For example, copying entire books does not meet the second test for fairness.

Third, it has been suggested by some witnesses that the education community does not want to pay for education materials. This is clearly wrong. Educational institutions currently pay for content and for copying materials. For the education community, copyright reform law is not about getting material for free. The education section currently pays hundreds of millions of dollars to purchase and license content, such as textbooks, film, music, and art. With Bill C-32, the sector will continue to pay hundreds of millions of dollars. Nothing in Bill C-32 alters the current relationship among education, publishers, content providers, copyright collectives, and the Copyright Board.

In closing, the education ministers across this country have long maintained that a modern and balanced copyright framework will protect the public interest and produce many societal benefits. The need for such a framework has never been more important than now, when all levels of government are investing in connecting learning Canadians and promoting skill development and innovation. The CMEC Copyright Consortium would like to see this copyright legislation passed to establish that necessary framework for learning Canadians to excel in our digital world.

Thank you.

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

Good morning, everyone.

I will call to order this twentieth and apparently possibly the last meeting of the Special Legislative Committee on Bill C-32.

For the first hour today we have the Honourable Ramona Jennex, who is the Minister of Education for the Province of Nova Scotia, as well as her deputy minister, Rosalind Penfound, and Wanda Noel, legal counsel of the Copyright Consortium.

Minister Jennex, you have the floor for five minutes.

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

Mr. Speaker, I would like to present a petition from the people of the south shore and Baie-Comeau. It is another petition against Bill C-32, one that is modelled after the Culture équitable petition and that calls for the House to revise this bill to amend the Copyright Act. We must return to the spirit of the Copyright Act, copyright, and not shift to the right to copy, and we must restore the legitimate rights and, naturally, the compensation of creators. I am extremely pleased to add this petition to all the others that have already been presented in the House.

Democratic Representation Act

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

Madam Speaker, it is a great pleasure to rise on this somewhat eventful afternoon. In a few minutes, the Minister of Finance will deliver his budget speech. I hope all members will have the opportunity to listen to what I have to tell them, because the message that the Bloc Québécois wants to convey about Bill C-12 is very important.

Madam Speaker, I see that you are concerned. Sure, you can call members to order and tell them to listen to me. Go ahead, that is fine with me.

Bill C-12, An Act to amend the Constitution Act, 1867 (Democratic representation), is a bill that reduces Quebec's political weight within Canada. Unlike the Liberal member who just spoke, I do not think that is acceptable. Reducing Quebec's weight within Canada is yet another attack by this government—and the previous Liberal government—against Quebec.

The Bloc Québécois, which stands up for Quebec's interests, cannot accept this legislation, and it is asking the House to refuse to give second reading to Bill C-12, An Act to amend the Constitution Act, 1867 (Democratic representation), because it would reduce in an unacceptable fashion the political weight of the Quebec nation in the House of Commons.

In the Charlottetown accord of 1992, all the partners of the Canadian federation had agreed to guarantee Quebec 25% of the seats in the House of Commons. Even though the accord was rejected through a referendum, the specific needs of Quebec, the only province with a francophone majority, were highlighted. That specific issue had been recognized by all the partners of the Canadian federation. Not only was the issue recognized, a solution had also been found. Indeed, Quebec was guaranteed 25% of the seats in the House of Commons.

A few years later, after the referendum was lost, people began to say that this was a minor issue, that it was not important and that what really mattered was that elected members should express their views in the House.

Last Sunday, I watched a television program on Radio-Canada. I know that 75% of the members of this House do not listen to Radio-Canada on a Sunday evening, but that program is watched by over one million people in Quebec, somewhere around 1,2 million, 1.3 million or 1.5 million, depending on who the guests are. The ratings for last Sunday have not yet been released, but the TV show Tout le monde en parle is very popular in Quebec.

Jean Lapointe used to be a Liberal senator. Do you know what he said? He was reminiscing about his experiences as a senator and he was clearly not too proud of himself or of what he had seen and heard. He said this: “Since I left the Senate, the federalist in me has died a bit. I am not yet a separatist or a sovereignist, but it would not take a very big push to make me one.” Of course, he said that in his own characteristic manner. We understand that to mean that federalists who come here to Ottawa to this House or the other one and who see all the injustices against Quebec and all the attacks by Quebec and who care about Quebeckers are a lot less federalist when they leave here or the other place. As Jean Lapointe said, “it would not take a very big push” for them to become sovereignists.

But do not worry, Madam Speaker, the Bloc Québécois will give him that little push. As a senator, Mr. Lapointe witnessed many injustices against Quebec. He saw those injustices up close and he saw Canada attack Quebec, try to take away its place, try to impose its values on Quebec and ignore its needs, as is the case with Bill C-12. That bill is a good example of an injustice against Quebec. It shows once more that Quebec and Canada are two distinct countries in one, two solitudes. We do not talk to each other or if we do talk, we do not say much. Anyway, the conversations are often difficult because we do not speak the same language. When we talk to each other, we do not understand each other. Bill C-12 is proof of this.

Quebec federalists arrive in Ottawa with a romantic image of Canada as a great bilingual country with beautiful Rocky Mountains. The reality in Ottawa is quite different; the reality is Bill C-12, and there is nothing romantic about it.

This Conservative government is multiplying its injustices, aggressions and attacks. Yesterday morning, I was speaking to someone in my riding I did not know at all. She was determined to talk to me. She could not understand why the Conservative government is so aggressive towards Quebec. She wanted to know why the government was rejecting tax harmonization and refusing to pay the $2.2 billion it owes Quebec. It would only be fair since it paid compensation to Ontario, British Columbia and the maritime provinces, but not to Quebec. We have been pushing for this for years. For the past year, we have been asking questions every week and demanding that the government pay Quebec $2.2 billion as compensation for the sales tax harmonization it implemented several years ago, but the government is not responding. It is not giving us the real reasons. If we knew the real reasons, perhaps we could do it. Is it a matter of negotiation? Do they think we do not deserve it? We are not getting any answer. Once more, this is an unjustified attack against Quebec. Quebeckers do not understand why this government is always attacking Quebec.

While the Bloc Québécois is defending Quebec's interests, the Conservative government is attacking Quebec. Quebeckers cannot understand why this is happening, and yet there have been countless attacks. We can try to understand the government's attitude, but it is beyond comprehension. In November 2007, this House recognized Quebec as a nation, which was only fair since it is indeed a nation. In French, we call this a lapalissade, which means stating the obvious. La Palice was a man who used to say obvious things. For instance, he would say that a man was dead because he was not living any more. This is a lapalissade. For those who are watching, I am very pleased to enrich their vocabulary with this word. Recognizing Quebec as a nation was therefore a lapalissade, a truism. Yet Quebec's numerous claims remain unanswered.

Quebec has been asking for a long time that the responsibility for arts, culture and communications be transferred. Even the Conservative Minister of Foreign Affairs, when he was the Liberal Minister of Communications in the Quebec government, asked that the responsibility for telecommunications be transferred to the Quebec government. On March 23, 2009, Quebec Minister of Culture Christine Saint-Pierre asked the Minister of Canadian Heritage to set up a negotiating committee to transfer the responsibility for communications, arts and culture.

On June 19, 2010, Claude Béchard, the former Minister responsible for Canadian Intergovernmental Affairs who is now deceased, said to the daily Le Devoir:

... we are working on “a new approach” to conduct successful bilateral negotiations with the federal government in order to obtain certain constitutional amendments...These amendments would deal with “culture and communications”...“It might also be interesting to include the whole issue of the nation in the constitutional talks.”

Those words are from Claude Béchard, the former Quebec Minister of Canadian Intergovernmental Affairs and MNA for Rivière-du-Loup, who is now deceased. He was stating, on behalf of the Quebec government, his intention to continue to ask for the responsibility over arts and culture, because it is normal, because we are a nation, because those are our values, because in Quebec we respect our artists, our culture and particularly—because these days this is very important—we respect the value of the work done by artists. In its Bill C-32, this government did not add insult to injury, it added contempt to injury by depriving artists from $126 million in copyright revenues annually.

We are not talking about subsidies but copyrights. This is money that artists deserve. It is their salary. However, the bill introduced by the Minister of Industry and the Minister of Canadian Heritage and Official Languages is going to deprive artists of $126 million every year. Such an attitude is totally mind-boggling. As I said, it is not an insult to artists. To deprive people who earn an average of $23,000 annually of the money that they used to get is showing contempt towards them. Bill C-32 is totally unacceptable. It is another attack on Quebec, as is Bill C-12.

In conclusion, Bill C-12, which is against a fair representation for Quebec in the House of Commons, should be withdrawn.

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

But case law in Canada ensures that, on the contrary, fair dealing is assessed based on much broader criteria and based on the rights of users, and they don't have that in the United States. We wouldn't get the same results, because American judges do not use the same criteria and the situation is different. In Canada, when legal action is taken under the section on fair dealing, the results won’t be the same as in the United States. Anyway, this section opens the door to a wide range of lawsuits.

The Barreau du Québec was also against Bill C-32 saying that it would clog the courtrooms. Is that really what we want to do in order to save $40 million in annual revenue that should be going to the artists? In addition to short-changing artists of $40 million annually, do we want everyone to end up in court to solve our problems? Would it not be better to recognize that our culture is vibrant and our artists are creative, and say that we will pay what that’s worth? I understand that you don’t have enough money, but perhaps you should turn to other sectors, look at other budget items, rather than impoverish artists, a segment of the society whose annual income is $23,000 per year on average. That’s not quite fair, in my opinion.

Incidentally, when I look at what is happening in Quebec with all the protest against Bill C-32 and fair dealing compared to what is happening in the rest of Canada, let me say it again—I have already said this here—that is another good reason to convince Quebeckers to work towards Quebec's sovereignty.

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

Thank you very much.

Mr. Rahn, Ms. Owen and Ms. Moore, it is surprising to see you supporting fair dealing for education whereas, in Quebec, the approach is very different. You say you are representing the Canadian Federation for the Humanities and Social Sciences and the Canadian Library Association, but there is another viewpoint in Quebec, completely different from yours. First and foremost, the Assemblée nationale du Québec was unanimously against Bill C-32in its present form, and particularly against the broader education exception suggested under the bill. The minister of culture, Christine St-Pierre, was against it too. The minister of education—that's quite something—said:

In Quebec, the government wants to make sure that creators get what's fair for their works being used by third parties, especially by schools. Quebec's position that the right to education and the rights of creators go hand in hand is in line with the guidelines set out in the 1980 creators' fair share policy by the ministère de la Culture et des Communications.

I won't mention the Fédération des commissions scolaires du Québec. I will skip that and go to the Association des bibliothécaires du Québec. One of its representatives said the following:

Why have Quebec's public libraries taken a position opposite to that of the other provinces? Extending fair dealing and any other exceptions will result in a loss of revenue for authors and other rights holders. If we broaden the scope of these exceptions, as you suggest, the loss of revenue could be quite significant. Isn't this a funding issue rather than an access or fairness issue? Public libraries are certainly underfunded, but should authors be paying for that?

That's how it is everywhere in Quebec. There is also BIBLIO du Québec, another organization that is against fair dealing. Whatever you say, fair dealing, as defined under the bill, means a loss of revenue. It would be even worse if we added the infamous “such as”, as Mr. Rahn suggested. That's basically where we are headed. Yet, in Quebec—unlike the other provinces in Canada, it would seem—we have a great deal of respect for creators, for compensating creators and for our young people. As a result, we want to teach our young people about respect for creators and our duty to compensate them.

Mr. Rahn, you are saying that a professor is entitled to show students something through any digital media. That's true if the professor has the creator's permission and the creator is compensated. The creative work belongs to the creator. Mr. Rahn, if I want to come and visit your house, I will ask for your permission and I might even pay for the visit. It's the same thing: the creative work belongs to the creator. If we want to have a vibrant culture, it is even more important for young people to be aware of that, recognize it and compensate the artists.

You may comment.